PEOPLE v. MADRID (1989)

OPINION

On January 20, 1988, appellant was arraigned in the Tulare County Municipal Court and pleaded not guilty to one count of selling or transporting a controlled substance.  (Health & Saf.Code, § 11352.)   In February 1988 the court granted the People's motion to amend the complaint to charge only a violation of section 11550 [under the influence of a controlled substance].

On February 3, 1988, appellant filed a motion to suppress pursuant to Penal Code section 1538.5 on the grounds of an illegal detention.   At the conclusion of a hearing held on February 17, 1988, the court asked the parties for points and authorities.   On receipt of the requested points and authorities and after further hearing, the court denied the suppression motion.   The court noted it was originally going to grant the motion because there were no articulable facts justifying the detention.   However, the court concluded the detention was lawful based on appellant's being subject to a probationary search condition even though the officers were not aware appellant was on probation at the time of the detention.

After a court trial, appellant was found guilty of being under the influence of a controlled substance.   The Tulare County Superior Court Appellate Department affirmed the judgment of the municipal court concluding the officers' lack of knowledge of the existence of the probationary search condition was irrelevant.

On October 5, 1988, the appellate department of the superior court certified the case to this court for its consideration and review.  (Cal.Rules of Court, rule 63.)   On October 6, 1988, this court ordered the proceeding transferred for hearing and decision.  (Cal.Rules of Court, rule 62(a).)

The issue before this court is whether a probationer who has specifically consented to submit to search and seizure without a warrant at any time during his probation may assert a colorable objection under the Fourth Amendment to a detention and subsequent search conducted without probable cause by a police officer who is unaware of the search condition.   We conclude appellant, by agreeing to the search condition, has waived the traditional privacy protections of the Fourth Amendment.   Moreover, he has failed to demonstrate the officers acted on improper reasons or motivations.   As such, he has failed to demonstrate a violation of any limited protectable interest.   Accordingly, we affirm.

FACTS

On January 17, 1988, at approximately 6:40 p.m., Officers Stow and Shear of the Visalia Police Department were on routine patrol in a high crime area in the City of Visalia.   During their patrol, the officers drove up Northwest Fifth Street.   They observed a car parked in front of one of the houses on that street.   Officer Stow testified at the suppression hearing that in the two weeks prior to the detention herein, they had “been involved in arrests at that location for either drug or alcohol related offenses and additionally through briefings [they] knew other officers were making arrests for related criminal activity there.”

The officers noted a vehicle with two individuals inside and appellant standing alongside the vehicle talking to the occupants.   Appellant noticed the marked patrol car and abruptly walked away.   Officer Stow testified he found appellant's behavior suspicious and stopped his patrol car, exited the vehicle and “hollered at [appellant] to stop.”   Appellant did stop and returned to the officer's location when Officer Stow motioned for him to do so.   Subsequently, appellant was detained and arrested when a plastic baggie containing suspected narcotics was found in the car.

DISCUSSION

Appellant argues the court erred in denying his suppression motion.   He asserts the detention was unlawful as there were no articulable facts supporting a reasonable suspicion he was involved in criminal activity.   Appellant concedes he previously had been granted probation with the condition he “submit to a search of his person, place, automobile, residence without a search warrant at any time during the period of probation.”   Appellant further concedes he was on probation at the time of the detention.   He does not challenge the validity of the search condition, or the validity of his agreement to the search condition.   He argues, however, that because the officers were not aware at the time of the detention that he was on probation and had a search clause as part of the conditions of probation, the search cannot be validated on the “after the fact” discovery of his probationary status and corresponding search condition.

I

Whether Specific and Articulable Facts Justified the Detention

The People respond that the detention was justified on the basis of reasonable suspicion and, in any event, appellant waived any objection to a search such as was conducted in the present case.

 Initially, the People argue the facts of the case justified appellant's limited detention.   They claim the officers had a reasonable, objective and articulable basis for suspecting appellant of criminal activity, thus justifying his detention.  (In re James D. (1987) 43 Cal.3d 903, 913–914, 239 Cal.Rptr. 663, 741 P.2d 161;  In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.)   They rely on the fact appellant was seen in a high crime area leaning against a car talking to the people inside and quickly walked away on seeing the officers.

None of the facts, considered alone or together, are sufficient to warrant appellant's detention.   First, mere presence in a high crime area or in a “specific locale in which a number of crimes [have] occurred” does not justify a detention.  (People v. Aldridge (1984) 35 Cal.3d 473, 479, 198 Cal.Rptr. 538, 674 P.2d 240.)   Although appellant was seen leaning against a car talking to the passengers, there was no testimony indicating any furtive hand gestures or other activities associated with a narcotics transaction.  (Id. at p. 480, 198 Cal.Rptr. 538, 674 P.2d 240.)   Neither does appellant's apparent desire to avoid contact with the police constitute suspicious behavior.   In People v. Bower (1979) 24 Cal.3d 638, 156 Cal.Rptr. 856, our Supreme Court rejected the argument that an individual's apparent desire to avoid contact with a police officer justified a detention.   The court stated:

“[A]n outright refusal to cooperate with police officers cannot create adequate grounds for an intrusion which would otherwise be unjustifiable.   No reason is suggested why this principle does not apply with equal force to detentions.   If the right to be free from unjustified detentions is lost merely by seeking to avoid such encounters, then the right is meaningless;  it would exist only to the extent it was not exercised.   Such a conclusion is unacceptable.”  (Id. at p. 649, 156 Cal.Rptr. 856, fn. omitted.)

In short, the People in the present case failed to show the required objective, specific, and articulable facts necessary to support this detention.   Thus, absent appellant's waiver of his traditional Fourth Amendment rights via the search condition, the search would be unlawful.

II

Does the Subsequent Discovery of a Probationary Search Clause Validate an Otherwise Unlawful Detention and Search?

Relying on People v. Bravo (1987) 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336, the People persuasively argue that, in the absence of evidence the detention was con ducted in bad faith, appellant is estopped from challenging the legality of the detention and search.   In Bravo, police officers received an anonymous tip the defendant likely was involved in selling narcotics.   The officers conducted a surveillance of the defendant's home, but observed nothing of significance.   They learned, however, the defendant was on probation and subject to warrantless search.   The officers searched defendant's home “pursuant to the apparent waiver of [his] Fourth Amendment rights reflected in the probation order.”  (Id. at p. 603, 238 Cal.Rptr. 282, 738 P.2d 336.)

On appeal, the defendant argued the search was unlawful because the officers who conducted the search lacked reasonable cause.  (Ibid.)  The Court of Appeal held the probation condition accepted by the defendant did not waive “all protection from ‘unreasonable searches'.”  (Id. at p. 604, 238 Cal.Rptr. 282, 738 P.2d 336.)   The court reasoned the waiver should be narrowly construed and concluded “the condition waived the right to be free from warrantless searches, but not the right to be free from ‘unreasonable’ searches, ․” (Ibid.) The Supreme Court reversed.

“We think the wording of appellant's probation search condition authorized the instant search.   The condition is worded almost identically to the condition at issue in People v. Mason [1971] 5 Cal.3d 759 [97 Cal.Rptr. 302, 488 P.2d 630].  As in this case, the defendant in Mason agreed as a condition of his probation to ‘ “submit his person, place of residence, vehicle, to search and seizure at any time of the day or night, with or without a search warrant, ․” ’ (5 Cal.3d at p. 762 [97 Cal.Rptr. 302, 488 P.2d 630].)  We observed in Mason that ‘a probationer who has been granted the privilege of probation on condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection.’  [Citation.]  Consequently, ‘when defendant in order to obtain probation specifically agreed to permit at any time a warrantless search of his person, car and house, he voluntarily waived whatever claim of privacy he might otherwise have had.’  [Citation.]  We read the consent in Mason as 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.  (5 Cal.3d at p. 765, fn. 3 [97 Cal.Rptr. 302, 488 P.2d 630].)  We see no reason to interpret the condition imposed on this appellant more narrowly.”  (People v. Bravo, supra, 43 Cal.3d at p. 607, 238 Cal.Rptr. 282, 738 P.2d 336.)

The court further addressed the assertion that a “reasonableness” requirement implicitly attached to probationary search conditions by noting the conflict on the issue between several Court of Appeal opinions.   Rejecting this implied condition, the court determined the requirement of “reasonable suspicion” as a prelude to a probationary search blurred “what has traditionally been a distinction between probation and parole searches.”   (People v. Bravo, supra, 43 Cal.3d at pp. 607–608, 238 Cal.Rptr. 282, 738 P.2d 336.)   The court noted such a reasonableness requirement had been applied to parole searches.

“We have ․ held that 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 other violation of his parole.”   (Id. at p. 608, 238 Cal.Rptr. 282, 738 P.2d 336, citing People v. Burgener (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251, emphasis in original.)

The court, however, emphasized the substantial distinction between a term of parole imposed upon a parolee and a term of probation consented to by a probationer.

“A probationer, unlike a parolee, consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term.   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.  [Citations.]’ [Citations.] ․ We see no basis for denying a defendant the right to waive his Fourth Amendment rights in order to accept the benefits of probation. The reasonable suspicion standard adopted in Burgener, supra, 41 Cal.3d 505 [224 Cal.Rptr. 112, [714 P.2d 1251], for parole searches, therefore, has no application to searches conducted pursuant to a consensual probation order.‘ (Bravo, supra, 43 Cal.3d  at pp. 608–609, 238 Cal.Rptr. 282, 738 P.2–d 336.)

 Appellant here argues Bravo does not directly address the issue presented.   Unlike the present case, in Bravo the officers were aware of and searched the defendant's home “pursuant” to the search condition.  (Id. at p. 603, 238 Cal.Rptr. 282, 738 P.2d 336.)   Nonetheless, we find the court's analysis regarding a probationer's waiver of Fourth Amendment protections on acceptance of a search condition equally applicable to the present case.   As the Supreme Court concluded in People v. Mason (1971) 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, and more recently in Bravo, a defendant who accepts probation with a search condition, does not have a reasonable expectation of privacy.   His voluntary consent to permit at any time a warrantless search of his person, place, automobile and residence constitutes “a complete waiver of [his] Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner.”   (People v. Bravo, supra, 43 Cal.3d at p. 607, 238 Cal.Rptr. 282, 738 P.2d 336.)   In Bravo, the court reiterated and reemphasized the point made in People v. Mason:

“[W]hen defendant in order to obtain probation specifically agreed to permit at any time a warrantless search of his person, car and house, he voluntarily waived whatever claim of privacy he might otherwise have had.   [People v. Mason, supra, 5 Cal.3d at p. 766, 97 Cal.Rptr. 302, 488 P.2d 630.]”  (Bravo, supra, at p. 607, 238 Cal.Rptr. 282, 738 P.2d 336.)

Relying in part on In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, appellant argues the probation search condition may not be relied on to justify the detention and subsequent search because the officers were not aware of the condition at the time of the detention.   In Martinez the 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.”  (Id. at p. 646, 83 Cal.Rptr. 382, 463 P.2d 734.)

Martinez is distinguishable in that the case involved a parolee.   As Bravo makes clear, parole searches differ from probation searches.   (Bravo, supra, 43 Cal.3d at p. 608, 238 Cal.Rptr. 282, 738 P.2d 336.)  “A probationer, unlike a parolee, consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term.”  (Ibid.)  Appellant's agreement as a condition of probation to submit to a search of his person, place, automobile, residence without a search warrant at any time during the period of probation, constitutes a “complete waiver [of his] Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner.”  (Id. at p. 607, 238 Cal.Rptr. 282, 738 P.2d 336.)   The essence of such a waiver is a restriction on the legal grounds that would constitute a valid basis for suppression of evidence based on a violation of traditional Fourth Amendment protections.

 We find no dependency between the validity of this waiver and the officers' knowledge, or lack thereof, of the search condition.   Appellant, by virtue of his waiver, does not have a colorable claim to the traditional privacy protections of the Fourth Amendment.   Having waived his traditional Fourth Amendment rights, he necessarily waived any derivative protection or benefits flowing from those rights, including the right to exclude the fruits of a search related to either “the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes.”  (Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336.)

Although a probationer who consents to a search condition does not give up his right to object to searches undertaken “for harassment or searches for arbitrary or capricious reasons” (id. at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336), he has no other protectable privacy claim under the terms of his Fourth Amendment waiver.   Appellant makes no claim that the officers' actions herein were predicated on a desire to harass or that the officers' actions herein were unrelated to any legitimate law enforcement purpose.   Rather, in essence, he is arguing the officers' lack of knowledge of the search condition in and of itself renders the officers' actions “unreasonable.”   In effect, by imposing the requirement of knowledge, appellant would confer on himself a protectable interest that otherwise would have been waived by agreeing to the search condition.   We have noted, however, that the waiver and knowledge of the waiver are not interdependent.   In other words, it is not that appellant has no standing to object to a violation of his Fourth Amendment rights but, rather, he has only limited rights to assert.   By virtue of his waiver, no rights he retained have been violated.

The officers' lack of knowledge of the search condition does not necessarily mean the search was initiated for arbitrary or capricious reasons or for something other than a legitimate law enforcement purpose.   Appellant's protectable interest does not extend beyond objections to such ill-considered motivation or purposes.   Even though officers proceed on information or circumstances generating less than the traditional threshold requirement of reasonable suspicion or probable cause, the appellant has limited those traditional Fourth Amendment protections by his consent.   He has retained only the right to object to searches conducted for arbitrary or capricious reasons or reasons unrelated to legitimate law enforcement purposes.   Although the officers' lack of knowledge of the search condition might be a factor to be considered, it is not conclusive of whether the officers proceeded with improper reasons or motivations as set forth in Bravo.   Although appellant implies our conclusion would encourage searches without probable cause, we find such an implication unfounded.   There is no reason to assume police would engage in searches without probable cause on the slight chance the searches might include a probationer subject to a search condition.

Appellant does not argue the conduct of the officers herein would give rise to an objection had the officers been aware of the search condition.   We conclude, therefore, that their lack of knowledge does not expand the appellant's protectable interest.   Appellant has failed to demonstrate any infringement on the limited protectable interest to which he agreed via acceptance of the search condition.   When he consented to the terms of his probation, he waived his right to object to the conduct herein and to suppress the product of that conduct.

Accordingly, the lower court properly denied appellant's suppression motion.

The judgment is affirmed.

ARDAIZ, Associate Justice.

BEST, Acting P.J., and GEO. A. BROWN **, J., concur.