IN RE: JOSE A. (1991)

Jose Luis A., a minor, appeals from an order of wardship (Welf. & Inst.Code, § 602) based on sustained allegations of possession of cocaine.  (Health & Saf.Code, § 11350.)   He contends, inter alia, that the evidence upon which the petition was sustained was obtained through an unlawful search and seizure.   We agree, and reverse.

FACTS

On September 4, 1989, appellant was a passenger on a motorcycle that was stopped by the police for speeding.   The People concede the lack of probable cause for the arrest and search of appellant which led to the seizure of the contraband upon which the instant wardship petition is based.   The People contend, however, that the search was nonetheless authorized by a fact unknown to the arresting officer:  Appellant was on probation and subject to a “search & seizure” condition.

The juvenile court determined there was no probable cause to support the arrest and search of appellant, or the seizure of the contraband.   However, it took judicial notice of the fact that on January 17, 1989, it had placed appellant on probation with a search and seizure condition, and ruled that the search of appellant was proper in light of the search condition, even though the officer conducting the search had no knowledge thereof.   The court's minute order of January 17, 1989 sheds no light on the scope of the search and seizure condition;  it merely states, “[S]earch & seizure.”   Thus, it cannot be determined from the order itself whether the search is circumscribed in any fashion, e.g., whether it is limited to the minor's probation officer or extends to peace officers in general, whether it requires probable cause, or contains other limitations.  (See People v. Bravo (1987) 43 Cal.3d 600, 606–607, 238 Cal.Rptr. 282, 738 P.2d 336.)   The minute order states that the hearing was not reported.

Following the denial of appellant's suppression motion, he admitted the charge.   The parties stipulated that the vial contained 1.7 grams of cocaine and the court sustained the petition.

DISCUSSION

Appellant did not contend at trial and does not contend on appeal that he was not subject to search as a condition of probation, that he was not advised of the full scope of the search condition, or that there is insufficient evidence to show the full scope of the search condition.   He contends only that the search cannot be justified under the search condition because at the time of the search the officer had no knowledge of the existence of the probationary conditions.

 As a general rule, evidence obtained by unlawful searches and seizures is inadmissible in a criminal prosecution.  (Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652;  Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.)   The primary purposes of the exclusionary rule are to deter unlawful police action in carrying out searches and seizures;  maintenance of the dignity of the courts by disassociating them from such unlawful government conduct;  and assuring “all potential victims of unlawful government conduct—that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.”  (United States v. Calandra (1974) 414 U.S. 338, 357, 94 S.Ct. 613, 624, 38 L.Ed.2d 561, dis. opn. of Brennan, J.;  Terry v. Ohio (1968) 392 U.S. 1, 12–13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889.)

 When a warrantless search is conducted, the People have the burden of establishing justification under a recognized exception to the warrant requirement.  (People v. James (1977) 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135.)   In the instant case the People concede there was no probable cause to justify the search, but contend that appellant waived his Fourth Amendment rights by consenting to the search as a condition of his probation.   Constitutionally protected rights to be free from unreasonable searches and seizures may be waived as a condition to gaining some other advantage, but the waiver must appear of record to have been knowingly and intelligently made.  (People v. Myers (1972) 6 Cal.3d 811, 818–819, 100 Cal.Rptr. 612, 494 P.2d 684.)   A search conducted pursuant to a valid consent may constitute a waiver of Fourth Amendment rights if the search does not exceed the scope of the consent.  (Washington v. Chrisman (1982) 455 U.S. 1, 9–10, 102 S.Ct. 812, 818, 70 L.Ed.2d 778;  People v. Bravo, supra, 43 Cal.3d at p. 605, 238 Cal.Rptr. 282, 738 P.2d 336.)

 Appellant relies on In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, in which our Supreme Court invalidated a warrantless search conducted by police without probable cause because the police were unaware at the time of the search that the defendant was a parolee.   The Martinez court stated:  “In the instant case regular police officers undertook the search pursuant to their general law enforcement duties;  the officers, at the time of the search, did not even know of defendant's parole status.   The investigation involved suspected criminal activity, not parole violations.   Under these circumstances the officers cannot undertake a search without probable cause and then later seek to justify their actions by relying on the defendant's parole status, a status of which they were unaware at the time of their search.  [Citations.]”  (Id., at p. 646, 83 Cal.Rptr. 382, 463 P.2d 734.)  Martinez also held that when the police are unaware of a defendant's parole status, an intrusion into the parolee's privacy cannot be justified by the needs of the parole system.  (Id., at p. 647, fn. 6, 83 Cal.Rptr. 382, 463 P.2d 734.)

The People rejoin that Martinez is inapplicable because a probationer has a lesser expectation of privacy than a parolee.   They rely on Bravo, which held that a probationer's consent to a search condition constitutes “a complete waiver of that probationer's Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner.  [Citation.]”  (People v. Bravo, supra, 43 Cal.3d at p. 607, 238 Cal.Rptr. 282, 738 P.2d 336.)   Thus, they argue, that by consenting to the search condition appellant completely waived his Fourth Amendment rights and has no basis to challenge the search regardless of the officer's knowledge of the probation condition, because the record does not demonstrate that the search was conducted for arbitrary or capricious reasons.

Bravo concerned a warrantless search of a probationer's home carried out pursuant to a probationary search condition, but without reasonable cause.   (People v. Bravo, supra, 43 Cal.3d at pp. 602–603, 238 Cal.Rptr. 282, 738 P.2d 336.)   In Bravo, the police officers conducting the search were aware of and searched the defendant's home pursuant to the following search condition:  “Submit his person and property to search or seizure at any time of the day or night by any law enforcement officer with or without a warrant.”   (Ibid, fn. 1, emphasis and internal quotation marks omitted.)   The court upheld the search on the ground that the probationer's consent to the search condition authorized the search despite the fact that it was conducted in the absence of reasonable or probable cause.

In discussing the scope of the defendant's consent to search given as a condition to the grant of probation, Bravo stated:  “[A]ppellant's waiver of his Fourth Amendment rights must be interpreted on the basis of an objective test.   Law enforcement officers who rely on search conditions in probation orders, the probationer himself, and other judges who may be called upon to determine the lawfulness of a search, must be able to determine the scope of the condition by reference to the probation order.   We cannot expect police officers and probation agents who undertake searches pursuant to a search condition of a probation agreement to do more than give the condition the meaning that would appear to a reasonable, objective reader․   The search condition must therefore be interpreted on the basis of what a reasonable person would understand from the language of the condition itself․”   (People v. Bravo, supra, 43 Cal.3d at pp. 606–607, 238 Cal.Rptr. 282, 738 P.2d 336.)

Bravo recognized that while a warrantless search of a parolee pursuant to the terms of his parole is unreasonable in the absence of reasonable suspicion that the parolee is engaged in criminal conduct or has violated parole (People v. Burgener (1986) 41 Cal.3d 505, 533–534, 224 Cal.Rptr. 112, 714 P.2d 1251), there is no “reasonable suspicion” requirement with regard to a warrantless probation search.   Citing In re Martinez, supra, Bravo relied on the distinction between parolees and probationers:  A term of parole is imposed on a parolee and a term of probation is consented to by a probationer.  “Probation is not a right, but a privilege.   If the defendant considers the conditions of probation more harsh than the sentence the court would otherwise impose, he has the right to refuse probation and undergo the sentence.”  (People v. Bravo, supra, 43 Cal.3d at p. 608, 238 Cal.Rptr. 282, 738 P.2d 336, citations and internal quotation marks omitted.)

Bravo suggested that its interpretation of the scope of a defendant's consent in agreeing to a probation search condition is consistent with the purposes of such a condition:  To deter further offenses and to determine whether the probationer is complying with the terms of his probation.   (People v. Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336.)  “ ‘The purpose of an unexpected, unprovoked search of defendant is to ascertain whether he is complying with the terms of probation;  to determine not only whether he disobeys the law, but also whether he obeys the law.   Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.’  [Citation.]”  (Ibid, quoting People v. Mason (1971) 5 Cal.3d 759, 763–764, 97 Cal.Rptr. 302, 488 P.2d 630, in turn quoting People v. Kern (1968) 264 Cal.App.2d 962, 965, 71 Cal.Rptr. 105.)

However, Bravo also noted that the scope of the probationer's consent is not unlimited:  “We do not suggest that searches of probationers may be conducted for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes.   A waiver of Fourth Amendment rights as a condition of probation does not permit searches undertaken for harassment or searches for arbitrary or capricious reasons.  [Citations.]”  (People v. Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336.)

We conclude that Bravo does not support the search in the instant case.   In Bravo, the officers conducting the search were aware of the defendant's probationary status and the search condition, and the search was conducted in reliance on that condition.   In that factual context, a search unsupported by reasonable cause is permissible because by accepting the terms and conditions of probation, the defendant had waived his Fourth Amendment rights under those circumstances and consented to the search.   Such consent is consistent with the purposes of probation—deterring further offenses by the probationer and monitoring compliance with the terms of his probation.   (People v. Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336.)

The distinction between parolees and probationers relied on by Bravo supports appellant's position in the instant case, because he is a juvenile probationer.  “Unlike adult probation, juvenile probation is not a grant of leniency imposed as an alternative to the legally authorized sentence.   An adult may reject the sentencing court's offer of leniency and refuse probation;  juveniles may not.  [Citation.]”  (In re Nathaniel Z. (1986) 187 Cal.App.3d 1132, 1140, 232 Cal.Rptr. 378;  In re Wayne J. (1979) 97 Cal.App.3d 776, 780, 159 Cal.Rptr. 106.)   As is true of most adults on parole, a juvenile placed on probation by the juvenile court may not refuse probationary status, and the probationary conditions do not depend on the juvenile's acceptance, consent or waiver of rights.   Nor can the juvenile court require that a probationer submit to unlawful police conduct.   Therefore, we conclude that the Martinez rule is controlling when the probationer is a juvenile.

For the foregoing reasons, the suppression motion should have been granted.   The order of wardship is reversed, with directions to vacate the order denying the motion to suppress and to enter a new order granting the motion.

HANING, Associate Justice.

LOW, P.J., and KING, J., concur.