People v. Marcellus L.

229 Cal. App. 3d 134, 279 Cal. Rptr. 901, 91 Cal. Daily Op. Serv. 2591, 91 Daily Journal DAR 4193, 1991 Cal. App. LEXIS 1044

• Court: California Court of Appeal
• Decided: April 10, 1991
• Docket: A048369
• Status: Published

Opinions

Opinion

ANDERSON, P. J.

Today we are called upon to decide whether a minor who is on probation with a search condition has standing to object to the reasonableness of a search conducted by an officer who is unaware of the minor’s probationary status and its search condition.

By supplemental petition the Contra Costa County District Attorney alleged that ward Marcellus L. (minor) was in felonious possession of cocaine on November 17, 1989, and previously had been found to have committed a felony (sale of a controlled substance). The minor moved to suppress the cocaine evidence as the fruit of an unreasonable search.

At the combined hearing on the suppression motion and the supplemental petition, the juvenile court referee took judicial notice that the minor had been adjudged a ward eight months earlier and was subject to a general search clause as a condition of his probation.¹ The court determined that “the search absent the search clause is unconstitutional.” However, since the minor had given up his Fourth Amendment right “the community is entitled to the benefit of the fact that the minor had waived his right” and it would serve “an insufficiently useful purpose to deny the People the right to use the evidence.” Therefore it denied the suppression motion, sustained the petition and ultimately committed the minor to the custody of the probation department for placement in a court-approved home or institution.

On appeal we conclude that the search condition left the minor with no expectation of privacy which he could assert in claiming a violation of his Fourth Amendment rights even when the arresting officer was unaware of his probationary status. Therefore, we affirm the judgment.

I. Facts

Around noon on November 17, 1989, Richmond Police Officer Avon Dobie was in the vicinity of 420 20th Street, an area known for drug dealing and where loitering and shootings were common. He had worked that beat for the past year and had retrieved drugs from that address. Dobie described the house at 420 20th Street as “a house where crack cocaine is sold.”

On that afternoon he spotted the minor and two other people, who appeared to be adults, sitting in front of the residence. The minor looked “very young” to Dobie to not be in school. He asked the minor why he was not in school. The minor told him he was between transfers. Dobie asked the minor his name and decided to investigate why he was not in school. But first he decided to conduct a patsearch “for safety reasons.” The minor himself did nothing threatening, and Dobie did not have reason to believe he was armed or dangerous, but Dobie patsearched the minor anyway “for my safety, as I do every time I go into the area and contact someone.” (Officer Dobie was unaware that the minor was on probation which was conditioned with a search clause.)

During the patsearch Dobie saw a lump in the minor’s pants pocket, felt it and concluded the lump was consistent with the feeling of rock cocaine. Dobie then removed from the minor’s pocket the bagged rock which was subsequently determined to be 1.68 grams of cocaine base.

II. Discussion

Everyone, including this court, agrees there were no articulable facts justifying the patsearch.² Our question is whether the probationary search clause renders the minor without standing to object to Officer Dobie’s objectively unreasonable frisk.

The minor approaches this case from the vantage point of the officer’s conduct and state of mind; he presses for reversal on the theory that the search clause does not validate the search since Officer Dobie was neither pursuing a valid probationary purpose nor was he aware of the minor’s probationary status. Focussing solely on the minor’s status, the People counter that the minor had no grounds to challenge the search because he waived Fourth Amendment protection in exchange for the benefits of probation. We hold that because of the terms of his probation the minor had no expectation of privacy to assert in objecting to this search.

A. Fourth Amendment Rights May Be Circumscribed for Probationers

The United States Supreme Court recently upheld a warrantless search of a probationer’s home carried out pursuant to state administrative regulations which themselves satisfied the Fourth Amendment’s reasonableness requirement. (Griffin v. Wisconsin (1987) 483 U.S. 868, 873 [97 L.Ed.2d 709, 717, 107 S.Ct. 3164].) Under the Wisconsin scheme probationers are subject to departmental conditions and regulations; one such regulation authorizes warrantless searches of a probationer’s home if there are “reasonable grounds” to believe contraband is present. The rules spell out a slate of factors which the officer should consider in deciding if reasonable grounds exist, ánd further provide that it is a violation of the terms of probation to refuse to consent to a home search. (Id., at pp. 870-871 [97 L.Ed.2d at pp. 715-716].)

The court explained that a probationer’s home, like ours, is protected by the Fourth Amendment imperative that searches be reasonable. (Griffin v. Wisconsin, supra, 483 U.S. at p. 873 [97 L.Ed.2d at p. 717].) However, the operation of a state probation system gives rise to special needs beyond normal law enforcement demands that may permit dispensing with the warrant and probable cause requirements. (Id., at pp. 873-874 [97 L.Ed.2d at pp. 717-718].) Liberties are restricted “to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed. . . . Supervision, then, is a ‘special need’ of the State, permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large. . . .” (Id., at p. 875 [97 L.Ed.2d at. p. 718].)

Griffin permits warrantless probation searches undertaken pursuant to valid state law responding to the special supervisory and other needs of its probation system. The authority to search in that case existed by way of regulation, not because the defendant specifically agreed to submit to warrantless, unexpected searches.

Shortly after Griffin was decided our Supreme Court examined the validity of a search conducted pursuant to a search condition substantively identical to that in the case at bar. (People v. Bravo (1987) 43 Cal.3d 600, 608-609 [238 Cal.Rptr. 282, 738 P.2d 336].) The court in Bravo held there was no requirement of a “reasonable suspicion” for a probation search undertaken pursuant to such a clause, reasoning that where there is a valid consent, the resulting search does not violate the Fourth Amendment unless it exceeds the scope of the consent. (Id., at p. 605.) “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.’ ” (People v. Bravo, supra, 43 Cal.3d at p. 607, quoting People v. Mason (1971) 5 Cal.3d 759, 766 [97 Cal.Rptr. 302, 488 P.2d 630].) This broad interpretation of the scope of the probationer’s consent in turn facilitates the dual purposes of the search clause, namely, to deter further offenses and discover whether the probationer is obeying the terms of probation. (43 Cal.3d at p. 610.)

However, we note that such a waiver by a probationer is not absolute: “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.” (43 Cal.3d at p. 610.) There is no claim that Officer Dobie’s search here was undertaken for harassment, arbitrary or capricious reasons. The evidence is uncontradicted that the frisk was but a minimal intrusion of the minor’s privacy and was pursued for what Officer Dobie perceived as necessary for his personal safety. While the search did not satisfy the objective standard of reasonableness, it cannot be classified as harassment.

Viewing Bravo through Griffin eyes, the standard California probation clause is a valid state practice calculated to respond to the special needs of our probation system by enabling probation officers and others to monitor the probationer’s progress and compliance with the terms of probation. It goes without saying that a search undertaken pursuant to that clause for monitoring or other probationary purposes would pass review under Griffin and Bravo. However, this search was not conducted pursuant to the authority granted by the probationary search clause. We are, thus, faced with the dilemma of two conflicting social policies—the need to enforce conditions to make probation effective for the community and meaningful for the probationer versus the need to insure that peace officers are not “rewarded” for unconstitutional behavior. While we do not condone unreasonable police conduct, and we do not hold that the probationer is without standing to object to indiscriminate police harassment, under the circumstances here present we do not ignore the probation violation because the constable was unaware of his actual authority and has not followed the letter of the law.

Contrary to the minor’s assertion, we do not think the validity of his search condition is dependent upon the searching officer’s knowledge of that condition. Admittedly, both Griffin and Bravo involved officers who knew of the probationary status of the subject of their search. Nevertheless, we are unaware of any relevant authority which invalidates the search of a probationer who is duty bound to subject himself or herself to search upon request by a peace officer, because that peace officer did not know the subject was on probation and subject to a search condition.

B. Constitutional Rights of Probationers Cannot Be Equated With Those of Parolees

The minor, amicus curiae³ and our dissenting colleague argue strongly that our analysis must be governed by those cases involving parole search conditions; those cases, they contend, lead to the inescapable conclusion that this search must be invalidated. They correctly conclude that the law will not justify an otherwise unreasonable search when the subject of the search is subsequently determined to be on parole. (In re Martinez (1970) 1 Cal.3d 641 [83 Cal.Rptr. 382, 463 P.2d 734]; People v. Gastelum (1965) 237 Cal.App.2d 205 [46 Cal.Rptr. 743]; People v. Gallegos (1964) 62 Cal.2d 176 [41 Cal.Rptr. 590, 397 P.2d 174].) But as even they recognize, there are important distinctions between probation and parole searches.

Certainly one major distinction is that the probationer has consented to waive his Fourth Amendment rights, while a parolee has not; a defendant may refuse probation, while a parolee must accept parole. (People v. Bravo, supra, 43 Cal.3d at p. 608.) In rejecting a rule that a probationer’s waiver of Fourth Amendment rights validates only searches which meet the reasonable-suspicion standard, our California Supreme Court clearly recognized this probation/parole distinction: “The reasonable-suspicion standard adopted in [People v.] Burgener [1986] 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.” (43 Cal.3d at p. 609.) The issue, as framed in Bravo, is the scope of the probationer’s consent. Bravo teaches us that the probationer retains a limited Fourth Amendment right to complain about searches which have nothing to do with the “rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes.” (Id. at p. 610.) We cannot say that Officer Dobie’s lack of knowledge concerning the minor’s probationary status rendered his patsearch without any rehabilitative or reformative effect; without question the frisk advanced a legitimate law enforcement purpose. Officer Dobie explained he wanted to pursue the school attendance matter with the minor but first decided to patsearch him, that being his standard practice when he contacted anyone in that particular location. There was no harassment or other improper motive on Officer Dobie’s part. Finally, although the search was not occasioned by any suspicious or threatening conduct by the minor, we conclude a protective frisk in the course of questioning a minor about school attendance when encountered near a suspected crack house falls within the “other legitimate law enforcement purposes” language of Bravo.

Other significant differences justify disparate treatment for probationers and parolees. Probation is an act of judicial grace or clemency, while the grant of parole is a mandatory act trusted to an administrative agency— in California, to the Board of Prison Terms. A parolee is said to have earned his release from prison by proving through good prison conduct his suitability for rehabilitation. As succinctly stated in State v. Young (1966) 237 Minn. 240 [141 N.W.2d 15, 19]: “While probation may be considered a mild form of ambulatory punishment imposing meaningful restraints, its true nature is an act of judicial grace. The [L]egislature has granted to the judiciary discretionary power to grant probation as a means of testing a convicted defendant’s integrity and future good behavior. Unlike parole, granted by an administrative agency probation is granted by the court when the sentencing judge deems the protection of society does not demand immediate incarceration. It is not granted because of any merit or worthiness of the wrongdoer. Parole is the result of an investment of discipline in a prisoner who has earned the rewards of a milder form of punishment. The parolee has demonstrated an empirical need for a new form of punishment more effectively suited to prepare him for society and to his rehabilitation.” (Italics added; accord, United States v. Shead (10th Cir. 1978) 568 F.2d 678, 683; State v. Loveland (1976) 307 Minn. 519 [240 N.W.2d 326, 327, 328]; Mills v. State (Iowa 1981) 308 N.W.2d 65, 67.)

Considering such distinct underlying principles between probation and parole, it is no wonder that in upholding an unreasonable search conducted pursuant to a search condition of a probationer, our Supreme Court expressly overruled those Court of Appeal cases which, in reliance upon parole cases, had held otherwise. (See People v. Guerrero (1978) 85 Cal.App.3d 572 [149 Cal.Rptr. 555]; People v. Bremmer (1973) 30 Cal.App.3d 1058 [106 Cal.Rptr. 797].) Thus, reliance on parole cases in determining the validity of probation conditions was condemned by our highest court as “blurring what has traditionally been a distinction between probation and parole searches.” (People v. Bravo, supra, 43 Cal.3d at pp. 607-608.) In parole cases our Supreme Court has found it necessary “to balance the parolee’s privacy interest with the societal interest in public safety [citations].” (Id. at p. 608.) But in probation cases “No such balancing is necessary . . . .” (Ibid.)

In determining whether to impose on the probationary search condition the requirement that the searching officer have knowledge of its existence, we but follow the lead of our highest court, which has refused to impose the requirement of “reasonable cause” upon that condition. Conditioning warrantless probation searches upon the officer’s knowledge renders the probation order just as superfluous and vitiates its purpose just as much as conditioning those searches upon reasonable cause, which our Supreme Court found unwarranted. Since the search herein was of a probationer, we find it unnecessary to balance the probationer’s privacy interest with society’s interest in public safety. We will not thus blur the distinction between probation and parole.

Furthermore, it has long been held that in determining suppression motions, courts generally examine “the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.” (Scott v. United States (1977) 436 U.S. 128, 138 [56 L.Ed.2d 168, 178, 98 S.Ct. 1717] [a case affirming admission of wiretap evidence under the Omnibus Crime Control and Safe Streets Act of 1968 despite law enforcement agent’s failure to make good faith efforts to minimize interception of nonnarcotics related calls].) Scott relied in part on United States v. Robinson (1973) 414 U.S. 218 [38 L.Ed.2d 427, 94 S.Ct. 467], in which a suspect being searched incident to arrest complained that the officers’ motivation in searching did not coincide with the legal justification for the search incident-to-arrest exception; the argument was rejected. “Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed.” (Id. at p. 236 [38 L.Ed.2d at p. 441].) This basic principle compels the conclusion that since the search herein, when viewed in light of the probation condition, was objectively reasonable, the officer’s knowledge of the search condition, like motivation, is irrelevant in determining its lawfulness.

C. Minors on Probation Are Entitled to No Greater Immunity for Criminal Acts Than They Would Be Entitled to If on Adult Probation

Finally, the minor and amicus curiae urge that there is a significant difference between adult and juvenile probation: an adult may refuse probation and choose to be sentenced to prison, while a juvenile may not. Thus, they argue, the juvenile probationer is more like the parolee; he has no choice; he did not voluntarily waive his Fourth Amendment rights: “[ujnlike 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.” (In re Nathaniel Z. (1986) 187 Cal.App.3d 1132, 1140 [232 Cal.Rptr. 378].) The argument advanced by appellant and amicus does not persuade us.

First, it is not altogether clear that such is the law of California. The quoted language appears as a final thought (without further analysis) to buttress an opinion which rejected the county’s attempt to charge the parents for costs incurred in monitoring their son’s probation—costs which the court correctly found to be the responsibility of society at large. The court concluded that since parents could not be charged for incarceration costs of adult children, “Likewise there is no basis for charging parents of juvenile offenders.” (In re Nathaniel Z., supra, 187 Cal.App.3d at p. 1140.) Appellant and amicus curiae also rely heavily on In re Wayne J. (1979) 97 Cal.App.3d 776 [159 Cal.Rptr. 106], for the proposition that like “. . . adults on parole, a juvenile ordered on probation may not refuse probation.” We find appellant’s reliance unjustified. The minor in In re Wayne J. argued only that imposition of probation for misdemeanor marijuana possession denied him equal protection because its terms were more onerous than the punishment prescribed for adult offenders, i.e., a $100 fine. The court characterized his objection to the disposition as a refusal of probation; relying on In re Aline D. (1975) 14 Cal.3d 557 [121 Cal Rptr. 816, 536 P.2d 65], it found probation to be a “preferred disposition” which was not an act of leniency which the minor could refuse. The foundations of Aline D. were seriously eroded by subsequent legislative amendments to the Juvenile Court Law (see In re Michael D. (1987) 188 Cal.App.3d 1392, 1396 [234 Cal.Rptr. 103]; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151 [257 Cal.Rptr. 134]). Two years after Aline D. our Legislature changed the course of juvenile court law by tempering its previous preoccupation with rehabilitation with a new purpose: “To protect the public from criminal conduct by minors.” Seven years after Aline D. the Legislature further expanded on this new theme by requiring that public agencies take “the protection of the public” into consideration in administering the juvenile court law. (See Welf. & Inst. Code, § 202, subd. (d).) Thus, whether a minor may refuse probation in California today is still open to some question.

Indeed, there is considerable case authority outside California which holds that the juvenile can refuse probation. Thus, in In the Matter of Anthony J. (1976) 87 Misc.2d 34 [383 N.Y.S.2d 851] the juvenile refused to accept probation by arguing that since probation is a privilege, it cannot be imposed upon him against his will. The reviewing court agreed and held that since probation is a voluntary agreement, offered by a court in its discretion as a privilege, it can be refused. In its reasoning the court stated as follows: “In the criminal realm it is considered an alternative to imprisonment, and is offered to those who, in the court’s estimation, need not be confined. Generally it is a written agreement in which the defendant promises to conform to a certain standard of behavior in consideration for his release. The defendant understands that a violation of the terms may lead to a revocation of probation and the imposition of any sentence that could have been imposed at the time of conviction. [Citations.] The decision as to who will be offered a sentence of probation rests entirely with the court. It is a privilege accorded in the exercise of its broad discretionary powers. It is not a right.” (383 N.Y.S.2d at p. 853; see also People v. Oskroba (1953) 305 N.Y. 696 [112 N.E.2d 778].)

But whether a minor may or may not refuse probation is not the determinative factor here. What is critical is that the juvenile probationer has been admitted to probation upon a legitimate search condition (see People v. Bravo, supra, 43 Cal.3d 600) and has absolutely no reasonable expectation to be free from the type of search here conducted: “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 Fourth Amendment protection.” (People v. Mason, supra, 5 Cal.3d at p. 765; People v. Bravo, supra, 43 Cal.3d at p. 607.) The lack of such expectation applies to adult and juvenile alike. It is, of course, axiomatic that the capacity or standing to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place or item, but rather on whether the person who claims the constitutional protection has a legitimate expectation of privacy in the item seized. (Rakas v. Illinois (1978) 439 U.S. 128, 143 [58 L.Ed.2d 387, 400-401, 99 S.Ct. 421].) Appellant’s expectation of privacy cannot reasonably be said to extend to searches conducted by officers who are ignorant of his probationary status. He was placed on probation subject to being searched by a peace officer without a warrant; he was frisked by a peace officer without a warrant; his condition was not that he was subject to search by a peace officer who knew of the search condition; hence the peace officer’s lack of knowledge extended appellant’s expectation of privacy not one whit. Appellant’s release on probation with a search condition was tantamount to taking away his legitimate expectation of privacy in the contraband seized; this, in turn, resulted in a loss of standing to invoke his Fourth Amendment right. Needless to say, the constitutional principle of standing does not depend on the age of a criminal defendant; it has applicability to all claimants regardless of whether they are tried as adults or juveniles.

We conclude that our holding that the minor may not object to this frisk even though the peace officer was unaware that he was duty bound by the terms of his probation to submit is consistent with and in furtherance of the purposes of the juvenile jourt law: “Juvenile courts and other public agencies charged with enforcing, interpreting, and administering the juvenile court law shall consider the safety and protection of the public and the best interests of the minor in all deliberations pursuant to this chapter.” (Welf. & Inst. Code, § 202, subd. (d).) To suppress this evidence would not be in the best interests of the minor.

The judgment is affirmed.

Perley, J., concurred.

1 Specifically, the clause read as follows: “Submit person, any vehicle under minor’s control, & residence to search & seizure by a peace officer at any time of the day or night with/without a warrant.”

We note that appellant’s initial disposition on April 21, 1989, was a commitment to the county’s boys’ ranch; he was released from that program on August 22, 1989, on probation.

2 First, although Officer Dobie initiated contact with appellant to find out why he was not in school, a truancy detention is limited to the purpose of the stop and may not be used as a pretext for investigating criminal matters. (In re James D. (1987) 43 Cal.3d 903, 915 [239 Cal.Rptr. 663, 741 P.2d 161].) That Dobie had a legitimate reason to question appellant does not, and did not, mean he had a legitimate reason to frisk him. Second, we cannot justify the search as a self-protective stop and frisk because Dobie had no belief, reasonable or otherwise, that appellant was armed or dangerous. (Terry v. Ohio (1968) 392 U.S. 1, 32 [20 L.Ed.2d 889, 912, 88 S.Ct. 1868].) Finally, while the neighborhood profile, including its bustling drug activity, could be relevant when combined with additional factors (see People v. King (1989) 216 Cal.App.3d 1237, 1241 [265 Cal.Rptr. 370]), we know of no authority validating a search on this factor alone, absent anything peculiar to the defendant to prompt the officer’s suspicion.

3 The Los Angeles County Public Defender’s Office was granted leave to file an amicus curiae brief.