IN RE: THOMAS M. (1993)

In this case a prior juvenile court order required that a juvenile submit to searches and seizures by law enforcement officers.   After this order was imposed the juvenile was stopped and subjected to a weapons “pat down”.   During the course of the pat down the juvenile allegedly dropped a bindle of rock cocaine on the ground.

The juvenile moved to suppress the rock cocaine on the grounds the stop and search violated his rights under Fourth Amendment of United States Constitution.   The juvenile court granted the motion and the People filed a timely notice of appeal.   We reverse.   Given the terms of the juvenile court's prior order, the juvenile had no reasonable expectation he could avoid a stop and pat down performed by law enforcement officers.

FACTUAL AND PROCEDURAL BACKGROUND

On November 14, 1990, the juvenile court issued a number of orders to Thomas M., a minor.   Among other mandates, Thomas was required to “submit your person and property to search and seizure at any time by any Law Enforcement Officer or Probation Officer.”   The search and seizure order grew out of Thomas's violation of probation previously imposed as a result of a 1989 finding Thomas had been in possession of cocaine for sale.   On the face of the order Thomas acknowledged in writing that he read and understood the court's order.

Four months later on March 30, 1991, San Diego police officers observed Thomas and a companion, James Evans, approaching the entrance to Dr. J's Liquor Store, a known hangout for members of the Syndo/Lincoln Park gang.   The officers were looking for information about a recent gang-related homicide in the area and one of the officers told Thomas and Evans he wanted to talk to them.   Thomas and Evans walked over to the officers' car and were instructed to put their hands on top of the car so that they could be patted down for weapons.

According to one of the officer's testimony, as he was patting Thomas down, he noticed Thomas's left hand go to Thomas's left side and a small paper bindle drop to the ground.   The officer picked up the bindle and found two rocks of cocaine in it.   The officer then placed Thomas under arrest.   Initially Thomas identified himself to the police as Ronald Johnson.

On April 2, 1991, the People filed a petition, alleging Thomas violated Health and Safety Code section 11350 (possession of cocaine) and therefore came within the jurisdiction of the juvenile court under the provisions of Welfare and Institutions Code section 602.   The petition further alleged Thomas violated the juvenile court's prior order by being in possession of a controlled substance, by wearing a green baseball cap which identified him as a member of the Syndo gang and by being within four blocks of 5000 Logan Avenue in San Diego.   On April 15, 1991, an amended petition was filed which repeated the allegations of the original petition and added an allegation Thomas falsely identified himself to the police in violation of Penal Code section 148.9.

Thomas moved to suppress the rock cocaine and the false identity he gave the police.   At the hearing on Thomas's motion, the police conceded that at the time they stopped Thomas and discovered the bindle of rock cocaine, they did not know he was subject to an order requiring that he submit to searches and seizures performed by law enforcement officers.

On April 30, 1991, the juvenile court granted Thomas's motion with respect to the rock cocaine.   The court found the search conditions imposed on Thomas did not alter his protection under the Fourth Amendment because the officers who stopped him were unaware of the conditions.   Later the court denied Thomas's motion to suppress his false identity.

Thereafter the parties stipulated the evidence received at the hearing on the motion to suppress would be considered by the juvenile court in lieu of trial.   In light of its order suppressing the rock cocaine, the trial court dismissed the two counts which alleged possession of a controlled substance.   The juvenile court then sustained the remaining allegations of the petition.

At a disposition hearing Thomas was continued as a ward of the court and placed in a 24–hour school in Pennsylvania as an alternative to California Youth Authority placement.   The court also set review hearings.

The People filed a timely notice of appeal from the trial court's order dismissing the allegations based on Thomas's possession of the rock cocaine.¹

ISSUE ON APPEAL

 On appeal the People argue that in light of the juvenile court's November 14, 1990, order requiring Thomas to submit to searches and seizures, Thomas had no standing to contest the lawfulness of his stop, the pat down search or the officer's recovery of the bindle of rock cocaine.   In particular the People argue the prior order governed Thomas's reasonable expectations at the time of the stop even though the police were unaware of the order.   We agree and reverse.

I

A. Recent Opinions

The issue raised by the People has been the subject of recent Court of Appeal opinions.   In In Re Marcellus (1991) 229 Cal.App.3d 134, 145–146, 279 Cal.Rptr. 901 (Marcellus ), and In re Binh L. (1992) 5 Cal.App.4th 194, 205–206, 6 Cal.Rptr.2d 678 (Binh ), courts held conditions imposed in orders granting probation to juveniles will defeat later Fourth Amendment claims even when officers conducting challenged searches and seizures are unaware of the previously imposed conditions.  (See also In re Jamont C. (1993) 14 Cal.App.4th 95, 17 Cal.Rptr.2d 336;  People v. Viers (1991) 1 Cal.App.4th 990, 993, 2 Cal.Rptr.2d 667.)

On appeal Thomas contends these opinions are inconsistent with the holdings in In re Martinez (1970) 1 Cal.3d 641, 646, 83 Cal.Rptr. 382, 463 P.2d 734 (Martinez ), and People v. Burgener (1986) 41 Cal.3d 505, 535, 224 Cal.Rptr. 112, 714 P.2d 1251 (Burgener ).   In Martinez the court held the People may not rely on search conditions imposed as a condition of parole unless the police officers are aware of the condition at the time they conduct a search.  (Martinez, supra, 1 Cal.3d at p. 646, 83 Cal.Rptr. 382, 463 P.2d 734.)   In Burgener the court held parole searches must also be supported by a “reasonable suspicion” the parolee is involved in criminal activity or has otherwise violated his parole and that a search will disclose evidence of the crime or parole violation.  (Burgener, supra, 41 Cal.3d at p. 535, 224 Cal.Rptr. 112, 714 P.2d 1251.)   Like the courts in Marcellus and Binh, we believe the Fourth Amendment rights of juvenile probationers are not governed by principles applicable to adult parolees.

B. Parole Searches and Probations Searches

The Supreme Court has repeatedly drawn sharp distinctions between offenders subject to parole and those subject to probation.  (Burgener, supra, 41 Cal.3d at pp. 531–532, 224 Cal.Rptr. 112, 714 P.2d 1251;  People v. Bravo (1987) 43 Cal.3d 600, 607–609, 238 Cal.Rptr. 282, 738 P.2d 336 (Bravo ).)  “ ‘The State has found the parolee guilty of a crime against the people.   That finding justifies imposing extensive restrictions on the individual's liberty.   Release of the parolee before the end of his prison sentence is made with the recognition that with many prisoners there is a risk that they will not be able to live in a society without committing additional antisocial acts.   Given the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.’   (Morrissey v. Brewer [ (1972) ] 408 U.S. [471,] 483 [92 S.Ct. 2593, 2601, 33 L.Ed.2d 484.])   That the parole may come at the end of a term of imprisonment, rather than as part of that term, does not lessen the societal interest identified by the court.”  (Burgener, supra, 41 Cal.3d at pp. 531–532, 224 Cal.Rptr. 112, 714 P.2d 1251.)

On the other hand, “A convicted defendant released on probation, as distinguished from a parolee, has satisfied the sentencing court that notwithstanding his offense imprisonment in the state prison is not necessary to protect the public.   The probationer may serve a jail term as a condition of probation ( [Pen.Code] § 1203), but his probation is not a period of reintegration into society during which the same degree of surveillance and supervision as that deemed necessary for prison inmates is required.   A parolee cannot claim an equivalent status.   The imprisonment preceding his parole has come about just because he poses a significantly greater risk to society.   His offense may have been such that he was ineligible for probation initially.  (See [Pen.Code] §§ 11203, 1203.06–1203.09.)   The sentencing judge may have determined that the defendant posed too great a risk to the public to warrant a grant of probation.  [Citation.]   Or, the defendant may have been sentenced to prison following a revocation of probation occasioned by his failure to comply with conditions of probation.”   (Burgener, supra, 41 Cal.3d at pp. 532–533, 224 Cal.Rptr. 112, 714 P.2d 1251.)

In addition to the material differences in status, the court has noted each system of governmental restraint—parole and probation—imposes burdens on individual offenders in a distinct manner.  “The Board of Prison Terms has no discretion to grant or withhold parole to a prisoner who has served a determinate term.   The prisoner neither applies for nor has the right to reject release on parole.   Section 3000, subdivision (a), is a mandatory ‘kick-out’ providing that ‘[a]t the expiration of a term of imprisonment ․ imposed pursuant to Section 1170 or at the expiration of such term as reduced pursuant to Section 2931 ․ the inmate shall be released on parole for a period not exceeding three years, unless the board for good cause waives parole and discharges the inmate from custody of the department.’   Although the board must revoke parole if the prisoner refuses to sign the parole agreement (§ 3060.5), the parolee's acceptance of parole under the determinate sentence law is in no sense pursuant to a voluntary agreement by which he has waived his right to privacy in exchange for release on parole.”  (Burgener, supra, 41 Cal.3d at p. 529, fn. 12, 224 Cal.Rptr. 112, 714 P.2d 1251.)

In addition, although the Board of Prison Terms has discretion in imposing some parole conditions, a search condition must be imposed on every parolee.  (Cal.Code of Regs. tit. 15, § 2511, subd. (b) 4;  Pen.Code, §§ 3052–3053;  see also Burgener, supra, 41 Cal.3d at pp. 531–532, 224 Cal.Rptr. 112, 714 P.2d 1251.)

Imposition of probation is markedly different.  “The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate.”  (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.)  “When granting probation, courts have broad discretion to impose restrictive conditions to foster rehabilitation and to protect public safety.  Penal Code section 1203.1 authorizes the court to impose any ‘reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, ․ and specifically for the reformation and rehabilitation of the probationer.’   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.]”  (In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727.)

Unlike a parole condition, a probation condition is invalid under Penal Code section 1203.1 “if it (1) has no relationship to the crime of which the defendant is convicted, (2) relates to conduct that is not itself criminal, or (3) requires or forbids conduct that is not reasonably related to future criminality.  [Citation.]”  (In re Bushman, supra, 1 Cal.3d at p. 777, 83 Cal.Rptr. 375, 463 P.2d 727.)

Significantly the Supreme Court has found the discrete circumstances which make individuals subject to each system of restraint and the distinctive manner in which each system operates require separate analysis of due process and Fourth Amendment claims.   Thus the Supreme Court has found that given the heightened danger parolees represent to society, the state may impose search conditions on parolees without regard to the nature of the crime they have committed.  (Burgener, supra, 41 Cal.3d at p. 533, 224 Cal.Rptr. 112, 714 P.2d 1251.)

 However, parolees are not entirely without legitimate privacy interests.  (Burgener, supra, 41 Cal.3d at p. 533, 224 Cal.Rptr. 112, 714 P.2d 1251.)   Because the need to supervise parolees is the justification for permitting warrantless searches, those searches must be directly related to proper parole supervision purposes.  (Ibid.)  Moreover a parole search must be supported by information which raises a reasonable suspicion the parolee is engaged in criminal behavior or otherwise violating the terms of his parole.  (Id. at pp. 533–534, 224 Cal.Rptr. 112, 714 P.2d 1251.)

In determining that information which supports a parole search need only raise a reasonable suspicion of illicit activity rather than establish probable cause that such activity is occurring, the court engaged in a process of balancing the interests of the government in performing parole searches against the invasion which such searches entail.  (Burgener, supra, 41 Cal.3d at p. 534, 224 Cal.Rptr. 112, 714 P.2d 1251.)  “ ‘On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security;  on the other, the government's need for effective methods to deal with breaches of public order.’ ”  (Ibid.)

In contrast, in considering probation searches the court found that no balancing of competing interests was required.  (Bravo, supra, 43 Cal.3d at pp. 608–609, 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.   Probation is not a right, but a privilege․   A probationer's waiver of his Fourth Amendment rights is no less voluntary than the waiver of rights by a defendant who pleads guilty to gain the benefits of a plea bargain.  [Citations.]   Were we to conclude that a probationer's waiver of Fourth Amendment rights were either impermissible or limited to searches conducted only upon a reasonable-suspicion standard, the opportunity to choose probation might well be denied to many felons by judges whose willingness to offer the defendant probation in lieu of prison is predicated upon knowledge that the defendant will be subject to search at any time for a proper probation or law enforcement purpose.   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.”  (Ibid.)

C. Juvenile Probation Searches

Because some authorities have suggested that unlike the adult probation discussed in Bravo, imposition of juvenile probation is not consensual (see e.g. 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;  1 Cal.Juvenile Court Practice (Cont.Ed.Bar 1981) § 9.52, p. 255), Thomas has argued we cannot rely upon Bravo in determining what the Fourth Amendment requires of juvenile probation searches.   We agree.

Although the cases which have found that juvenile probation is mandatory have done so in discussing unrelated issues, our examination of the underlying statutory provisions convinces us that unlike adult probation under Penal Code section 1203.1, juvenile probation is not consensual.²  The problem we have with this premise is that it has led Thomas to a faulty conclusion.   While we agree the lack of consent in juvenile probation orders prevents us from adopting the consent rationale set forth in Bravo, we cannot share Thomas's conclusion we are left with no alternative other than adopting the limitations mandated by Martinez and Burgener for parole searches.   Having recognized the differences between juvenile probation and adult probation, we are not inclined to ignore what we view as even larger differences between juvenile probation and adult parole.

The differences between juvenile probation and adult parole were fully set forth in Binh:  “Unlike a parolee, a minor cannot be made subject to an automatic search condition.   The statutory authority for juvenile probation condition is Welfare and Institutions Code section 730, which provides in pertinent part that when a ward is placed under the supervision of the probation officer ‘[t]he court may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.’   It has been suggested that cases which fix the statutory boundaries of adult probation provisions are pertinent as well to juvenile probation orders [citations], and thus that ‘[a] probation condition “will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality․’ ”  [Citation]' [Citations.]   Indeed, the power of the juvenile court is even broader than that of a criminal court:  ‘Because of its rehabilitative function, the juvenile court has broad discretion when formulating conditions of probation.  “A condition of probation which is impermissible for an adult criminal defendant is not necessarily unreasonable for a juvenile receiving guidance and supervision from the juvenile court.”  [Citation.]  “[I]n planning the conditions of appellant's supervision, the juvenile court must consider not only the circumstances of the crime but also the minor's entire social history.  [Citations.]”  [Citation.]’  [Citations.]   ‘Even conditions which infringe on constitutional rights may not be invalid if tailored specifically to meet the needs of the juvenile [citation].’  [Citations.]   But every juvenile probation condition must be made to fit the circumstances and the minor.”  (5 Cal.App.4th at p. 203, 6 Cal.Rptr.2d 678.)

Admittedly, because juvenile probation is not consensual, in determining what the Constitution requires before juvenile probation searches may be performed, like the court in Burgener we are required to balance the competing interests of juvenile probationers and the government.  “The balancing of competing interests to determine the scope of Fourth Amendment protections in a particular setting is well settled.   Whether a particular search is reasonable depends on a balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ”  (In re William G. (1985) 40 Cal.3d 550, 563–564, 221 Cal.Rptr. 118, 709 P.2d 1287;  see also New Jersey v. T.L.O. (1985) 469 U.S. 325, 327, 105 S.Ct. 733, 735, 83 L.Ed.2d 720.)

Initially we note that as a juvenile probationer subject to a search condition, Thomas's expectations of privacy were plainly more circumscribed than those of an adult parolee.  “Because the search condition was tailored for and expressly made known to and individually imposed upon the minor, the search condition must be deemed to have had an impact on the minor's reasonable expectation of privacy far more direct than that of a parole condition automatically imposed one every parolee.   The minor knew, by a direct and valid order of the juvenile court, that he was subject to warrantless search at any time or place by any probation or police officer.”   (Binh, supra, 5 Cal.App.4th at p. 205, 6 Cal.Rptr.2d 678.)

The question which remains, however, is whether an order creating such diminished expectations is permissible.  “[T]he reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test.   In those situations in which the balance of interests precludes insistence upon ‘some quantum of individualized suspicion,’ other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.’  [Citations.]”  (Delaware v. Prouse (1979) 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660.)

 Here the intrusion posed by a juvenile probation search is limited by significant procedural protection afforded juvenile probationers.   Importantly, unlike adult parolees, juvenile probationers have the opportunity to object to the imposition of search conditions when they believe the intrusion they represent is not warranted by the offenses they have committed.  (See In re Frank V. (1991) 233 Cal.App.3d 1232, 1242–1243, 285 Cal.Rptr. 16.)   In addition, even when the Fourth Amendment does not require individualized suspicion, no search may be carried out for harassment or for arbitrary or capricious reasons.  (Bravo, supra, 43 Cal.3d at p. 611, 238 Cal.Rptr. 282, 738 P.2d 336.)

Moreover the government's interests in knowing about the activities of a particular juvenile probationer are unique and significant.   Unlike the adult criminal justice system, one of the fundamental goals of the Juvenile Court Law is strengthening the juvenile's ties with his family when the family has been unable to provide necessary discipline and guidance.  (Welf. & Inst.Code, § 202, subd. (a);  In re Wayne J., supra, 97 Cal.App.3d at pp. 782–783, 159 Cal.Rptr. 106;  People v. Dotson (1956) 46 Cal.2d 891, 895, 299 P.2d 875.)   Thus, where a juvenile court has previously found a search condition is warranted, the goal of reunification and rehabilitation (see fn. 2, ante ) is greatly served both by the deterrence created when a juvenile recognizes he is subject to search by law enforcement officers at anytime and by the government's enhanced ability to detect violations of probation conditions and promptly address continuing problems.  (See People v. Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336.)

In sum then, given a juvenile's ability to object to search conditions before they are imposed and the particular societal interests present when juvenile probation is imposed, we do not believe the additional protections required by Martinez and Burgener are warranted.   Rather those additional requirements—prior knowledge of the search condition and reasonable suspicion of proscribed conduct—would materially impede the rehabilitative and reunification goals of juvenile probation without significantly advancing the interests of juvenile probationers.  (In re Jamont C., supra, 14 Cal.App.4th 95, 17 Cal.Rptr.2d 336.)

II

 Our analysis does not end with our conclusion Thomas's search condition was not subject to the requirements of Martinez and Burgener.   As we have noted, even when the usual individualized suspicion required by the Constitution has no application, citizens still have the right to be free of harassment and searches conducted for arbitrary and capricious reasons.   (Bravo, supra, 43 Cal.3d at pp. 610–611, 238 Cal.Rptr. 282, 738 P.2d 336;  Binh, supra, 5 Cal.App.4th at P. 206, 6 Cal.Rptr.2d 678.)

 Here, Thomas argues that even if no prior knowledge of his search condition or reasonable suspicion of proscribed behavior was required before he was searched, the officers nonetheless were guilty of harassment.   However we note there is no dispute Thomas was wearing gang colors in an area where gang activity is prevalent and that the officers testified they were investigating a gang-related homicide.   Thus, the record does not support Thomas's contention that he established as a matter of law the level of bad faith needed to support a harassment claim.  (See Binh, supra, 5 Cal.App.4th at p. 206, 6 Cal.Rptr.2d 678.)

On the other hand, although the trial court's unwillingness to suppress the false identity Thomas gave the police suggests the court did not believe the officers were acting in bad faith, there is no direct finding in the record on the harassment issue.   Thus on remand Thomas will be free to again urge that, even in light of Thomas's probation condition, the police conduct requires suppression of the rock cocaine.

CONCLUSION

Because the trial court's order suppressing the cocaine was based on its conclusion prior knowledge of the search condition was necessary, and because the suppression led to dismissal of the two counts alleging possession of the cocaine, the judgment must be reversed with respect to those two counts.

Judgment reversed in part and affirmed in part.³

The majority opinion provides a comprehensive review of the relevant caselaw on this issue and a helpful framework for analysis.   It correctly concludes, in my view, that the consent rationale of People v. Bravo (1987) 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336 is inapplicable in the juvenile probation context and that the propriety of the search here must be evaluated by balancing “ ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ”  (In re William G. (1985) 40 Cal.3d 550, 564, 221 Cal.Rptr. 118, 709 P.2d 1287, quoting United States v. Place (1983) 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110;  see maj. opn., ante, pp. 715, 716.)

The Supreme Court's decision in People v. Burgener (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251 establishes that the privacy interests of adult parolees are outweighed by the governmental interests in discovering parole violations to the extent of permitting searches without a warrant based on reasonable suspicion.  (Id. at pp. 533–534, 224 Cal.Rptr. 112, 714 P.2d 1251.)   A similar balancing process would yield the conclusion that juvenile probationers may be subject to similar searches.   Indeed, it is arguable that the broad rehabilitative purposes of the juvenile court law might justify, at least in some circumstances, probation conditions allowing searches unaccompanied even by reasonable suspicion on the theory that law enforcement officers should be allowed virtually random administrative searches to confirm that the juvenile is complying with probation requirements.

Even assuming a juvenile probationer may be required to submit to warrantless searches unsupported even by reasonable suspicion, I am unable to discern any legitimate governmental purpose to be served by permitting such searches by officers who do not know the juvenile is on probation and subject to a broad search condition.   Based on the information known to the officer, a search is impermissible unless accompanied by probable causes and, in most cases, a warrant.

It could of course be argued that once it is determined an individual may properly be subject to a search without a warrant and probable (or perhaps even reasonable) cause, it makes no difference from the individual's standpoint whether the officer conducting the search knows of the probation search condition.  (See e.g., In re Marcellus L. (1991) 229 Cal.App.3d 134, 143, 279 Cal.Rptr. 901.)   Yet such an approach is plainly inconsistent with the Supreme Court's decisions in Burgener and In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734 which evaluate the search from the government's perspective.  (Martinez, supra, 1 Cal.3d at pp. 646 and 647, fn. 6, 83 Cal.Rptr. 382, 463 P.2d 734;  Burgener, supra, 41 Cal.3d at p. 534, 224 Cal.Rptr. 112, 714 P.2d 1251.)

The reasons offered by the majority do not address the governmental interest in permitting what would otherwise be unreasonable searches of persons whom officers do not know to be subject to a probation search condition.   The rationale articulated in In re Binh L. (1992) 5 Cal.App.4th 194, 6 Cal.Rptr.2d 678 and adopted by the majority here—that the minor's knowledge of the search condition reduces his reasonable expectation of privacy (see id. at p. 205, 6 Cal.Rptr.2d 678)—begs the question since any unreasonable condition could be justified on the theory that the juvenile was told of the condition in advance.   Unconstitutional practices do not become constitutional merely because there has been adequate warning.  (See De Lancie v. Superior Court (1982) 31 Cal.3d 865, 876, 183 Cal.Rptr. 866, 647 P.2d 142.)   In any event, the minor's subjective expectations, whatever they may be, do not create or supplement a governmental interest in allowing unreasonable searches.   Similarly the fact that a juvenile may challenge an unreasonable search condition following its imposition (see maj. opn., ante, at p. 717) does not address what governmental purpose is served when law enforcement officers conduct an unreasonable search “and then later seek to justify their actions by relying on the defendant's [juvenile probation] status, a status of which they were unaware at the time of their search.”   (In re Martinez, supra, 1 Cal.3d at p. 646, 83 Cal.Rptr. 382, 463 P.2d 734.)

Finally, the majority attempts to justify the search here with the conclusionary statement that a requirement of prior knowledge of the search condition “would materially impede the rehabilitative and reunification goals of juvenile probation without significantly advancing the interests of juvenile probationers.”  (Maj. opn., ante, at p. 717.)   I have already suggested some broad purposes might justify a search condition on less than reasonable suspicion.   Even this broad and arguably benevolent governmental interest cannot be furthered by encouraging unreasonable police conduct, unless one takes the extreme position that errant juveniles must be apprehended, no matter what the cost.   Carried to its logical conclusion, such a theory would suggest that Fourth Amendment protections are simply inapplicable to anyone under the age of eighteen, a proposition clearly inconsistent with established precedent.   As the Supreme Court explained in In re Scott K. (1979) 24 Cal.3d 395, 402, 155 Cal.Rptr. 671, 595 P.2d 105, “Justice should not be compromised by well-intentioned aims to correct transgressing youths, and the rehabilitative value of treating juveniles with fairness must not be underrated.”

Consistent with binding Supreme Court precedent in Martinez and Burgener, I see no basis to conclude there is a legitimate governmental purpose to be served by allowing law enforcement officers without probable cause to conduct unreasonable searches of juveniles who later turn out to be subject to a broad probation search condition which would have permitted the search.   Accordingly, I respectfully dissent.

FOOTNOTES

1.   Thomas M. also filed a notice of appeal and we consolidated his appeal and the People's appeal.   Thomas's counsel filed a Wende brief.  (See People v. Wende (1979) 25 Cal.3d 436, 443, 158 Cal.Rptr. 839, 600 P.2d 1071;  People v. Johnson (1981) 123 Cal.App.3d 106, 109–112, 176 Cal.Rptr. 390.)   We have reviewed the record and have found no arguable grounds for appeal on Thomas's behalf.   Accordingly with respect to the counts upon which the trial court made true findings, the judgment is affirmed.

2.   Welfare and Institutions Code section 202, subdivision (a), states the purpose of the Juvenile Court Law “is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public.   When removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective.   When the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents.   This chapter shall be liberally construed to carry out these purposes.”When a child has been found within the jurisdiction of the juvenile court because of a violation of law, the court must either make him a ward of the court or place him on probation for six months without adjudging him a ward.  (Welf. & Inst.Code, § 725, subds. (a) and (b).)  Welfare and Institutions Code section 727, subdivision (a), states in pertinent part:  “When a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 601 or Section 602 the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor, including medical treatment, subject to further order of the court․“․”“In the discretion of the court, a ward may be ordered to be on probation without supervision of the probation officer․“In all other cases, the court shall order the care, custody, and control of the minor to be under the supervision of the probation officer who may place the minor in any of the following:“(1) The home of a relative.“(2) A suitable licensed community care facility.“(3) With a foster family agency to be placed in a suitable licensed foster family home or certified family home which has been certified by the agency as meeting licensing standards.”In describing this statutory scheme the Supreme Court has stated:  “Unlike adult criminal proceedings in which probation may be granted as an act of leniency in appropriate cases, but where denial of probation and imposition of sentence to a term of imprisonment is ordinarily not an abuse of discretion, the Juvenile Court Law ‘ “contemplates a progressively restrictive and punitive series of disposition orders in cases such as that now before us—namely, home placement under supervision, foster home placement, placement in a local treatment facility and, as a last resort, Youth Authority placement.” ’  (In re Aline D. (1975) 14 Cal.3d 557, 564, 121 Cal.Rptr. 816, 536 P.2d 65.)”  (In re Arthur N. (1976) 16 Cal.3d 226, 237, 127 Cal.Rptr. 641, 545 P.2d 1345.)

3.   See footnote 1, ante.

BENKE, Associate Justice.

HUFFMAN, J., concurs.