Filed 9/28/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A140146
v.
JOE VINCENT ROMEO, (Contra Costa County
Super. Ct. No. 51318039)
Defendant and Appellant.
“ ‘[P]rivate residences are places in which the individual normally expects privacy
free of governmental intrusion not authorized by a warrant, and that expectation is plainly
one that society is prepared to recognize as justifiable.’ [Citations.] Likewise, a garage
that is attached or adjacent to a home may give rise to a legitimate expectation of privacy
therein. [Citations.] Under the Fourth Amendment, a warrantless search of such an area
is unreasonable per se unless it falls within a recognized exception to the warrant
requirement, for example, where consent to the search has been given.” (People v.
Robles (2000) 23 Cal.4th 789, 795 (Robles).)
In this case, Appellant Joe Vincent Romeo was living in a garage attached to the
home of two probationers. Police conducted a warrantless search of the home, detaining
Appellant in handcuffs during the search, and found methamphetamine in the garage.
While detained, Appellant admitted the drugs were his. He later pled guilty to possession
(Health & Saf. Code, § 11377, subd. (a)) and now appeals from the denial of his motion
to suppress. The appeal presents the question whether the justification for the search—
advance consent, based on the probation status of Appellant’s hosts—overcomes the
presumption of unreasonableness. For the reasons explained below, we conclude that, on
this record, it does not. Accordingly, we reverse.
1
FACTUAL AND PROCEDURAL BACKGROUND
On July 12, 2013, Appellant was charged by complaint with possession of a
controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)) and
misdemeanor being under the influence of a controlled substance (methamphetamine)
(Health & Saf. Code, § 11550, subd. (a)). On August 22, 2013, he filed a motion to
suppress evidence pursuant to Penal Code1 section 1538.5, arguing that both the search of
his living quarters and the seizure of his person had been unreasonable and violated his
rights under the Fourth Amendment. He filed a written motion to suppress both the items
found in the garage and his statement acknowledging they were his. The motion was
very brief, but did raise a specific challenge to the search team’s basis for conducting a
probation search, citing People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey) and
People v. Madden (1970) 2 Cal.3d 1017 (Madden), among other authorities. The motion
was heard before a magistrate concurrently with the preliminary examination on August
29, 2013.
At the hearing, Martinez Police Officer Dirk Miller testified that on November 8,
2012 at approximately 10:00 a.m., he and Sergeant Glen Walkup, along with six other
officers, performed a warrantless probation search of 628 Walnut Avenue in Martinez
(628 Walnut Avenue), the home of Randy Mills and Julie Bolstad. Officer Miller
testified that Mills and Bolstad were the targets of the probation search. Nothing in his
testimony, however, indicated whether he or anyone else on his search team had grounds
to suspect criminal activity was taking place at 628 Walnut Avenue. The sole justification
for the search, as Officer Miller explained it, was that Mills and Bolstad were
probationers subject to search.
At the beginning of his testimony, Officer Miller testified that he knew Mills and
Bolstad were “on probation with [a] search clause” and that he “confirmed” their
1
Statutory references, unless otherwise indicated, are to the Penal Code.
2
probation status using a “countywide computer system called ARIES.”2 The magistrate
sustained hearsay and lack of foundation objections to this testimony and granted a
motion to strike. Following these rulings, the prosecutor posed a series of preliminary
questions about the basis of Officer Miller’s knowledge. Without providing any detail,
Officer Miller testified that, prior to the search, he had unspecified “personal contact
with” Mills and Bolstad and he was “familiar” with them.3 Officer Miller also testified
that he uses ARIES routinely in the course of his duties, that he has been trained in the
use of ARIES, and that “you can get probation information” from ARIES, which “is what
I did in this case.” In view of this further testimony, and over renewed objections, the
magistrate allowed Officer Miller’s testimony that he had “personal knowledge” Bolstad
and Miller were on probation subject to a probation search clause and that he had
confirmed their probationary status using ARIES.
After explaining why he believed Mills and Bolstad were on probation and
subject to search, Officer Miller summarized what happened upon the search team’s
arrival at 628 Walnut Avenue as follows. Sergeant Walkup knocked and announced the
team’s presence. Officer Miller then saw Bolstad approach the front door from the
direction of the interior door leading to the garage. When she opened the front door,
Officer Miller saw Appellant in the bathroom, whom Officer Miller had known for his
“whole career” (12 years). The officers entered with their guns drawn, handcuffed
Appellant and Bolstad, and escorted them to the driveway. Officer Miller testified to the
effect it is standard procedure in his department to handcuff and detain anyone found on
the premises when conducting a search. “It’s our―the way we do things, we handcuff
everybody that’s involved.”
2
The Sheriff’s Department and other law enforcement agencies in Contra Costa
County utilize a computer database system called the Automated Regional Information
Exchange System (ARIES) (See Hunter, Automated Regional Information Exchange
System User Satisfaction Survey Results (August 30, 2006) [as of Sept. 22, 2015].)
3
Officer Miller was not asked anything about this prior “personal contact” with
Mills and Bolstad and he said nothing about the circumstances surrounding it.
3
While performing a protective sweep through the house, which took some five to
ten minutes, police located Bolstad’s brother and father in a back bedroom. The officers
removed them and began the probation search. Mills was not present in the house when
the officers arrived, but he was located about a block away and transported by police to
his home about half an hour after the search began, where he was detained with the
others. Within the first ten minutes, the officers located hypodermic needles in a
bedroom that had been pointed out by Bolstad as the one she shared with Mills. The
needles were found in a dresser drawer next to the bed in the closet.
Officer Miller also searched the attached garage because “the whole family lived
in [the house] and had access to [the garage].” As Officer Miller entered the garage, he
noticed it was arranged as living quarters would be. “It had a couch in it; had a large
desk with a TV and computer on it.” Officer Miller observed, in plain view on top of the
desk, a clear Ziploc baggie containing 2.444 grams of methamphetamine. He also
recovered a small amount of marijuana, wrapped in cellophane, from a cigarette box on
top of the desk, as well as six hypodermic needles from a toolbox in the garage. The
drugs were found approximately 45 minutes after the search began. Officer Miller then
went outside to discuss the discovered contraband with the detainees. The probation
search lasted for approximately an hour all told.
During the search, Sergeant Walkup watched the detainees in the driveway. After
Walkup overheard other officers discussing the methamphetamine found in the garage, he
Mirandized4 Appellant, Bolstad and Mills and asked them about the drugs. Appellant
told Walkup he was staying in the garage and admitted the methamphetamine, marijuana
and hypodermic needles found in the garage were his.5 Walkup reported Appellant’s
admission to Officer Miller. After observing Appellant more closely, Officer Miller
suspected he was under the influence of a controlled substance because he appeared
nervous and spoke rapidly. Officer Miller arrested Appellant and drove him to the police
4
Miranda v. Arizona (1966) 384 U.S. 436.
5
Appellant also told Miller he slept on the couch in the garage.
4
station. At the police station, Officer Miller conducted several sobriety tests, and
Appellant failed them all. A phlebotomist called to the jail drew a sample of Appellant’s
blood. The phlebotomist had difficulty drawing the blood because Appellant’s veins
were collapsed from years of shooting drugs. Appellant’s blood tested positive for
methamphetamine and opiates.
At the conclusion of the suppression hearing, defense counsel challenged the
officers’ warrantless search of the residence at 628 Walnut Avenue as unlawful, arguing
that the prosecution had failed to establish the existence and scope of the probation search
condition. Defense counsel further contended that Appellant’s detention was a de facto
arrest without probable cause because he was handcuffed for 45 minutes during the
probation search. The prosecution countered that the testimony of Officer Miller
established the existence and scope of the probation search condition because he testified
he had personal knowledge of the probationers’ search conditions, and the ARIES
database confirmed their current status as probationers. The prosecution also argued that
(1) Appellant’s privacy rights in the shared common areas of their residence were limited
because he lived with probationers subject to warrantless search, and (2) the officers were
allowed to briefly detain nonprobationers during a residential probation search.
The magistrate denied the suppression motion and held Appellant to answer on the
complaint. Her full explanation was as follows: “I don’t believe that this search vis-à-vis
Mr. Romeo was improper and that he was not detained for a long period of time.” She
did not specifically address or make any express findings concerning Officer Miller’s
knowledge of the existence and scope of probation search conditions justifying a
warrantless search of 628 Walnut Avenue. A renewed motion to suppress, filed with the
superior court along with a section 995 motion to set aside the information, was denied
on substantially the same grounds, based on the same record.
On October 16, 2013, Appellant pled guilty to the possession charge and the
district attorney dismissed the misdemeanor count for being under the influence. The
court sentenced Appellant to a split sentence of four months in county jail, followed by
32 months on mandatory supervision. With credit for presentence custody, Appellant
5
was released immediately after sentencing. Appellant appealed, raising solely issues
related to the denial of his suppression motion and his section 995 motion.
On appeal, Appellant argues that (1) the People failed to justify the warrantless
search of 628 Walnut Avenue because (a) the only proof that Mills and Bolstad were on
probation subject to search derived from the ARIES database, and since ARIES is an
“official channel” of information, the Harvey-Madden rule requires independent evidence
of reliability, which was never supplied, and (b) there is no evidence in the record of the
specific terms of the probation search condition and, since the scope of a probation search
is bounded by the terms of the probation order involved, it is impossible to determine
whether in searching the residence the officers went beyond the permitted scope of
search; (2) even if the officers were justified in entering the house without a warrant, they
acted unreasonably and in violation of the Fourth Amendment by entering and searching
the attached garage, which was set up as separate living quarters; and (3) the officers
unreasonably seized Appellant when they detained him in handcuffs for 45 minutes while
they conducted the search of the house.
We reject Appellant’s Harvey-Madden argument, but find merit in his contention
that the prosecution failed to present sufficient evidence of the existence and scope of a
probation search clause to justify a warrantless search of the residence at 628 Walnut
Avenue. We reverse on that ground and have no occasion to reach the remainder of
Appellant’s arguments.
DISCUSSION
I. Legal Landscape and Standard of Review
The Fourth Amendment to the United States Constitution provides: “The right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.” (U.S. Const., 4th
Amend.) Because the “ ‘physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed,’ ” “[i]t is a ‘basic principle of Fourth
6
Amendment law’ that searches and seizures inside a home without a warrant are
presumptively unreasonable.” (Payton v. New York (1980) 445 U.S. 573, 585–586, fn.
omitted.)
When a defendant raises a challenge to the legality of a warrantless search or
seizure, the People are obligated to produce proof sufficient to show, by a preponderance
of the evidence, that the search fell within one of the recognized exceptions to the warrant
requirement. (People v. James (1977) 19 Cal.3d 99, 106, fn. 4; People v. Rios (2011) 193
Cal.App.4th 584, 590 (Rios).) A probation search is one of those exceptions. (People v.
Schmitz (2012) 55 Cal.4th 909, 916; People v. Woods (1999) 21 Cal.4th 668, 674–675
(Woods) [probation exception based on advance consent].) This is because a
“probationer . . . consents to the waiver of his Fourth Amendment rights in exchange for
the opportunity to avoid service of a state prison term,” except insofar as a search might
be “undertaken for harassment or . . . for arbitrary or capricious reasons.” (People v.
Bravo (1987) 43 Cal.3d 600, 608, 610 (Bravo); accord, People v. Medina (2007) 158
Cal.App.4th 1571, 1577 (Medina).)
Because the terms of probation define the allowable scope of the search (Bravo,
supra, 43 Cal.3d at pp. 606, 608), a searching officer must have “advance knowledge of
the search condition” before conducting a search. (In re Jaime P. (2006) 40 Cal.4th 128
(Jaime P.); accord, People v. Durant (2012) 205 Cal.App.4th 57, 64 [“a police officer
who relies on a probation condition to justify an otherwise illegal search or seizure must
know of that condition when he acts”]; Medina, supra, 158 Cal.App.4th at p. 1577
[search must be conducted “pursuant to a known probation search condition”]; Myers v.
Superior Court (2004) 124 Cal.App.4th 1247, 1252 [“officer must know the person is on
probation at the time of the search”].) Without such advance knowledge, the search
cannot be justified as a proper probation search, for the officer does not act pursuant to
the search condition. (People v. Sanders (2003) 31 Cal.4th 318, 333 (Sanders) [parole
search]; People v. Middleton (2005) 131 Cal.App.4th 732, 738 (Middleton) [same].) As
the Supreme Court has held, “a search founded on neither reasonable suspicion of
criminal activity nor advance knowledge of a probation search condition can aptly be
7
characterized as arbitrary.” (Jaime P., supra, 40 Cal.4th at p. 138; see People v.
Hoeninghaus (2004) 120 Cal.App.4th 1180, 1188 (Hoeninghaus).)
Section 1538.5 affords criminal defendants a procedure by which they may seek
suppression of illegally seized evidence. (§ 1538.5, subds. (a)(1), (d), (f)(1), (i), (m).)
Our high court has said that section 1538.5 “provides a comprehensive and exclusive
procedure for the final determination of search and seizure issues prior to trial.” (People
v. Brooks (1980) 26 Cal.3d 471, 475.) Under section 1538.5, subdivision (f)(1), a motion
to suppress may be filed independently or at the preliminary hearing. The Evidence
Code, including hearsay rules, applies to section 1538.5 motions. (Evid. Code, §§ 130,
300; Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927.)
“Section 1538.5, by its terms, authorizes a motion to suppress if ‘[t]he search or
seizure without a warrant was unreasonable.’ ” (People v. Williams (1999) 20 Cal.4th
119, 129 (Williams).) This requires that the “defendant[] must do more than merely
assert that the search or seizure was without a warrant. The search or seizure must also
be unreasonable; that is, it must not fall within any exception to the warrant requirement.”
(Ibid.) A three-step allocation of the burden of producing evidence governs, with the
ultimate burden of persuasion always remaining on the People. “[W]hen defendants
move to suppress evidence, they must set forth the factual and legal bases for the motion,
but they satisfy that obligation, at least in the first instance, by making a prima facie
showing that the police acted without a warrant. The prosecution then has the burden of
proving some justification for the warrantless search or seizure, after which, defendants
can respond by pointing out any inadequacies in that justification.” (Id. at p. 136.) The
prosecution retains the ultimate burden of “proving that the warrantless search or seizure
was reasonable under the circumstances.” (Id. at p. 130.)
When a suppression motion is made before a magistrate in conjunction with a
preliminary hearing, as in this case, the magistrate tries the facts, resolving credibility
issues and conflicts in the evidence, weighing the evidence, and drawing appropriate
inferences. (People v. Shafrir (2010) 183 Cal.App.4th 1238, 1244; see § 1538.5, subd.
(f)(1).) If the magistrate denies the motion and holds the defendant to answer, the
8
defendant must, as a prerequisite to appellate review, renew his challenge before the
trial court by motion to dismiss under section 995 or in a special hearing. (People v.
Lilienthal (1978) 22 Cal.3d 891, 896; § 1538.5, subds. (i), (m).) At that stage, the
evidence is generally limited to the transcript of the preliminary hearing, testimony by
witnesses who testified at the preliminary hearing (who may be recalled by the
prosecution), and evidence that could not reasonably have been presented at the
preliminary hearing. (§ 1538.5, subd. (i).) The factual findings of the magistrate are
binding on the court, except as affected by any additional evidence presented at the
special hearing. (Ibid.)
We, too, are “concerned solely with the findings of the [magistrate].” (People
v. Gentry (1992) 7 Cal.App.4th 1255, 1262.) After submission on the transcript at the
special hearing, the appellate court, like the superior court, is bound by the
magistrate’s factual findings so long as they are supported by substantial evidence.
(People v. Hua (2008) 158 Cal.App.4th 1027, 1033; People v. Trujillo (1990) 217
Cal.App.3d 1219, 1223–1224.) On review of the superior court ruling by appeal or
writ, a two-step standard of review applies. In the first step of our review, “we in
effect disregard the ruling of the superior court and directly review the determination
of the magistrate.” (People v. Shafrir, supra, 183 Cal.App.4th at p. 1244.) At this
stage, we consider the record in the light most favorable to the People since “all factual
conflicts must be resolved in the manner most favorable to the [superior] court’s
disposition on the [suppression] motion.” (People v. Martin (1973) 9 Cal.3d 687, 692.)
Accepting as established all implied or express factual findings by the
magistrate as are supported by substantial evidence, we then proceed to measure those
findings against Fourth Amendment standards articulated by the United States
Supreme Court. (People v. Nottoli (2011) 199 Cal.App.4th 531, 545.) At this stage,
we independently apply the law to the factual findings (Ornelas v. United States (1996)
517 U.S. 690, 699 (Ornelas); People v. Loewen (1983) 35 Cal.3d 117, 123), determining
de novo whether the factual record supports the magistrate’s conclusion that the
challenged search met the constitutional standard of reasonableness. (Ornelas, supra, at
9
pp. 696–697 [determination of reasonable suspicion a mixed question of law and fact
reviewable independently]; People v. Lawler (1973) 9 Cal.3d 156, 160 (Lawler) [same].)
II. Justification for the Warrantless Search of 628 Walnut Avenue
A. The Harvey-Madden Rule
In a series of cases dating from the 1950s the California courts developed what
came to be known as the Harvey-Madden rule. The rule takes its name from People v.
Harvey, supra,156 Cal.App.2d 516, decided by Division Two of this court in 1958, and
People v. Madden, supra, 2 Cal.3d 1017, decided by the California Supreme Court in
1970. In Harvey, two officers were instructed to “ ‘ “stake out” ’ ” an area near the
defendant’s home. (Id. at p. 519.) They were told by their departmental superiors that
the defendant “ ‘had been under surveillance . . . for some time and that he was believed
to be dealing in narcotics.’ ” (Id. at p. 519.) The officers were also told to arrest the
defendant if they believed “ ‘ “something was wrong.” ’ ” (Ibid.) Upon encountering the
defendant, the officers did not did not observe any criminal activity; nevertheless, they
made a warrantless arrest and found a package of marijuana on defendant’s person. (Id.
at pp. 519–520.) On appeal from the ensuing conviction for drug possession, the
defendant challenged the legality of the arrest and search. This court found that the
information the arresting officers had about defendant was “of a very vague nature. One
of [them] . . . testified that he had only seen an informant (who had worked on a different
case) talking to his superior officer. The officer admitted that he did not hear the
conversation and did not know what it was about.” (Id. at p. 521.) Finding it was clear
that “the arrest was made solely in reliance on the information and briefing from [their
departmental superiors]” (ibid.) , the court held proof of probable cause was lacking, and
reversed (id. at p. 522).
Twelve years later, in Madden, another case involving suspected narcotics
trafficking reported second-hand to an officer in the field, our Supreme Court endorsed
and applied Harvey. From today’s standpoint, the significance of the Harvey-Madden
rule is perhaps best understood by considering the change in the law it effected. Until the
Supreme Court embraced Harvey, some courts of appeal took a distinctly uncritical view
10
of the evidentiary burden placed on the prosecution when it was called upon to establish
probable cause for a warrantless search or seizure. Under a line of cases that for years
were in tension with Harvey, these courts held that the law supplies an evidentiary
presumption permitting police officers to rely on information coming to them from
official sources. “The information provided by one police department to another,” these
courts held, “must be presumed reliable unless it [was] manifestly shown to be
otherwise.” (People v. Schellin (1964) 227 Cal.App.2d 245, 251, italics added; see
People v. Gardner (1967) 252 Cal.App.2d 320, 325, 326, fn. 2.) The Supreme Court’s
decision in Madden put to rest the idea that an officer challenged to justify a warrantless
search or seizure may simply refer to information obtained through “official channels,”
without any need to establish the basis for that information.6 (Madden, supra, 2 Cal.3d at
p. 1021.) The durability of the Harvey-Madden rule as a basic feature of criminal
procedure in California is evident in People v. Brown (2015) 61 Cal. 4th 968 (Brown),
where the court recently applied it, explaining the rule as follows. “An officer may arrest
or detain a suspect ‘based on information received through “official channels.” ’ ” (Id. at
p. 983.) Upon proper objection, however, “ ‘ “ ‘the People must prove that the source of
the information is something other than the imagination of the officer who does not
become a witness’ ” ’ ” by offering evidence that the source has “ ‘sufficient indicia of
reliability.’ ” (Ibid.) Harvey-Madden is a close cousin of the exclusionary rule—and in
some respects operates similarly to it (e.g., subjecting certain evidence proffered to
6
Although the two cases most commonly cited as foundational in this line of
precedent are Harvey and Madden (see People v. Rogers (1978) 21 Cal.3d 542, 547 (the
rule is “epitomized by” Harvey and Madden), its earliest application by the California
Supreme Court came in People v. Lara (1967) 67 Cal.2d 365 (Lara) and Remers v.
Superior Court (1970) 2 Cal.3d 659 (Remers). Both Lara and Remers are cited in
Madden. The rule announced in these cases is occasionally referred to as Harvey-
Madden-Remers (see Caskey, Cal. Search & Seizure (2015) § 3:33, p. 386), or some
other combination thereof (see People v. Johnson (1987) 189 Cal.App.3d 1315, 1320
[referring to Harvey-Remers]). All of these labels refer to the same body of case law,
which we describe by its most commonly used name, the Harvey-Madden rule or simply
Harvey-Madden.
11
justify police activity to a test of reliability)—but the two are distinct. Unlike the
exclusionary rule, which is a judge-made remedy aimed at deterring violations of the
Fourth Amendment by law enforcement, Harvey-Madden is set of state law evidentiary
rules governing the manner in which the prosecution may establish grounds for a
challenged stop or search.7
In its most conventional application, the Harvey-Madden rule is, in effect, nothing
more than the hearsay rule adapted specifically to motions to suppress. Obviously, when
one officer relies on information provided by someone else to justify a stop or search, a
hearsay problem arises. “In most cases where the rule has been applied the information
furnished the arresting officer has been the product of hearsay evidence and consisted
either of (1) a statement by the informing officer asserting as a fact the defendant had
committed a particular crime or was at a particular place where subsequently he was
arrested, without stating the basis for the assertion [citations]; (2) a statement by the
informing officer a lay informer had told him the defendant was guilty of a crime or
relating information given by the informer, without identifying the informer, which has
been described as information given by a ‘phantom informer’ [citations]; or (3) a request,
through official channels, to arrest the defendant for a particular crime for which no
warrant has been issued.” (People v. Poehner (1971) 16 Cal.App.3d 481, 486–487; see
People v. Gomez (2004) 117 Cal.App.4th 531, 541 [“Harvey/Madden rule merely
precludes the prosecution from relying on hearsay information communicated to the
7
See People v. Collins (1997) 59 Cal.App.4th 988, 997, fn. 6 (Collins)
[“[w]hile . . . a challenge to the underlying validity of the warrants [under the
exclusionary rule] is legally permissible . . . it is a step beyond the actual challenge that
appellant makes in this case. In this case, appellant actually argues the prosecution failed
to prove, in accordance with the established evidentiary rules, that there was a facially
valid arrest at all”]; People v. Armstrong (1991) 232 Cal.App.3d 228, 241 (Armstrong)
[“[i]t is first obvious that, where a search occurs incident to an arrest warrant a reporting
officer tells the arresting officer exists, the objective reasonableness of the reporting
officer cannot be determined if no evidence he obtained the warrant information he
transmits is produced. Remers, Harvey, and Madden require production of such
evidence”].
12
arresting officer that is not sufficiently specific and fact based to be considered
reliable”].)8
By the same token, when an officer seeks to justify a warrantless stop or search
based on information obtained from an electronic communication, a variation of the same
hearsay problem arises. Although Harvey-Madden evolved in the context of information
transmitted to officers in the field by telephone or radio (see, e.g., In re Richard G.
(2009) 173 Cal.App.4th 1252), the rule has been applied to various types of electronic
communication. (See People v. Alcorn (1993) 15 Cal.App.4th 652, 660 (Alcorn) [where
officer reviewed computer generated abstract of arrest warrant, court notes “[i]n today’s
age of electronic communications and computerized record-keeping, the use and reliance
on abstracts are a necessary part of the administration of justice”]; Miranda v. Superior
Court (1993) 13 Cal.App.4th 1628, 1630 (Miranda) [officer ran computer check and
reviewed her “ ‘probation book’ ” to confirm defendant’s probationary status].) Our
Supreme Court has recognized that the use of electronic database information in modern
law enforcement presents hearsay issues, and has provided clear guidance on how to
address them. Under Evidence Code section 1280, the official records exception to the
hearsay rule, a properly authenticated printout from a law enforcement database is
admissible in criminal proceedings. (People v. Martinez (2000) 22 Cal.4th 106, 126,
134). But unless offered in admissible form, the information residing in a computer
database is still hearsay, often multilevel hearsay. (See 1 Jefferson, Cal. Evidence
Benchbook (Cont.Ed.Bar 4th ed. 2015) Official Records and Writings, § 5.5, p. 5–4
8
As noted in Gomez, “the hearsay involved in the Harvey/Madden rule is not
affected by the Supreme Court’s . . . decision in Crawford v. Washington (2004) 541 U.S.
36. . . . [T]he issue in Crawford involved the admissibility of ‘testimonial hearsay’ at the
defendant’s trial in violation of his Sixth Amendment right to confront his accusers.
(Crawford v. Washington, supra, 541 U.S. at p. 53 [‘testimonial hearsay’ includes ‘prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police
interrogations’].) The testimony [at the suppression hearing in this case] did not
implicate this right. Consequently, Crawford does not apply.” (Gomez, supra, 117
Cal.App.4th at pp. 541–542; see People v. Navarro (2006) 138 Cal.App.4th 146, 161,
fn. 10.)
13
[“Most computer output is hearsay because it reflects information assembled and entered
into the computer by human operators.”].)
The People do not seriously question that the use of an electronic database may be
considered an “official channel” of communication under the Harvey-Madden rule, but
they do question Harvey-Madden’s continued vitality for other reasons. They point out
that, under Article I, section 28, subdivision (f) of the California Constitution, popularly
known as Proposition 8, “ ‘ “federal constitutional standards govern issues related to
suppression of evidence by the police.” ’ ” (People v. Lazlo (2012) 206 Cal.App.4th
1063, 1069; see In re Lance W. (1985) 37 Cal.3d 873, 879, 890, 896 [Proposition 8 bars
exclusion of relevant evidence in criminal proceedings only if exclusion is required by
the Fourth Amendment exclusionary rule as defined by the United States Supreme
Court].) From this premise, they argue that the Harvey-Madden rule was effectively
overruled by Herring v. United States (2009) 555 U.S. 135 (Herring) insofar as it might
be applied to police action predicated on a law enforcement computer database. So long
as the police act “in objectively reasonable reliance” on information obtained in good
faith from such a database, the Supreme Court held in Herring, even if the information
turns out to be erroneous—as it did in that case—exclusion is not warranted. (Id. at
pp. 145–146.) The argument that Harvey-Madden is a dead letter runs contrary to our
Supreme Court’s recognition of its continuing viability in Brown, supra, 61 Cal.4th 968,
but in any event, Herring has no applicability here. There is no question presented in this
case of good faith reliance on inaccurate information, from the ARIES database or
elsewhere. The issue, instead, is whether Officer Miller had sufficient information to act
without a warrant. 9 As we explain below, that presents a threshold evidence question,
which we resolve under well-established hearsay principles.10
9
See Collins, supra, 59 Cal.App.4th 988 and Armstrong, supra, 232 Cal.App.3d
228, cited in footnote 7 ante, both drawing the distinction between the ultimate question
of admissibility under the exclusionary rule and the antecedent question of evidentiary
sufficiency. Notably, both Collins and Armstrong considered the continuing viability of
Harvey-Madden rule in light of the good faith exception to the warrant requirement under
United States v. Leon (1984) 468 U.S. 897 (Leon), and concluded the Harvey-Madden
14
B. Application of the Harvey-Madden Rule
Appellant argues that the evidence relied upon by the People to prove Officer
Miller’s advance knowledge of Mills’s and Bolstad’s probationary status—specifically,
the references in his testimony to information obtained from the ARIES database—was
hearsay. “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) The reasons for excluding hearsay—the same
reasons undergirding the Harvey-Madden rule—are that out-of-court statements are not
made under oath, the defendant has no opportunity to cross-examine the person who
made them, and the trier of fact cannot observe the demeanor of the person making them.
“Except as provided by law, hearsay evidence is inadmissible.” (Evid. Code, § 1200,
subd. (b).)
In response, the People suggest that Officer Miller’s testimony about having
obtained information from the ARIES database was admissible because information in
the database would have been admissible as a public record, but that is incorrect. While a
printout from the database would have been admissible as an “official record,” if properly
authenticated, Officer Miller’s testimony about his reliance on the database was
admissible only if some other hearsay exception applied. “[A] hearsay objection cannot
be eliminated by eliciting the content of the statement in an indirect form.”
(2 McCormick On Evidence (7th ed. 2013) § 249, at pp. 196–197; see id.at p. 197
[“testimony regarding ‘information received’ by the witness and the results of
investigations made by other persons are properly classified as hearsay”].) The pertinent
remains good law and was not abrogated by Leon. (Collins, at pp. 996–997; Armstrong,
at pp. 235–241 [Leon did not eliminate Harvey-Madden rule]); see Alcorn, supra, 15
Cal.App.4th at pp. 656–660 [after Leon, abstract of arrest warrant, in lieu of actual
warrant, is sufficient to discharge prosecution’s duty]; Miranda, supra, 13 Cal.App.4th at
p. 1634 [same].) We perceive no basis to come to a different conclusion in light of
Herring.
10
To the extent Proposition 8 is relevant here, the proviso in Article I, section 28,
subdivision (f)(2) expressly preserves specified “statutory rule[s] of evidence” under
California law, including the hearsay rule.
15
hearsay exception here is Evidence Code section 1250, subdivision (a)(1), the state-of-
mind exception. Under that exception, Officer Miller’s testimony that he obtained
information from the database was admissible to prove his receipt of information from an
independent source. (See People v. King (1956) 140 Cal.App.2d 1, 5 [hearsay admissible
to prove an officer’s state of mind when the legality of police conduct is in issue].)11
So long as Officer Miller’s testimony had sufficient indicia of reliability, it was
admissible. There is, of course, always a backstop test for trustworthiness as a
prerequisite to limited purpose admission of hearsay under Evidence Code section 1252,
subdivision (a)(1). (See Evid. Code, § 1252.) “The decision whether trustworthiness is
present requires the court to apply to the peculiar facts of the individual case a broad and
deep acquaintance with the ways human beings actually conduct themselves in the
circumstances material under the exception. Such an endeavor allows, in fact demands,
the exercise of discretion.” (People v. Gordon (1990) 50 Cal.3d 1223, 1251 [interpreting
Evid. Code, § 1230].) A reviewing court may overturn the trial court’s finding regarding
trustworthiness only if there was an abuse of discretion. (Id. at pp. 1250–1251; People v.
Edwards (1991) 54 Cal.3d 787, 819–820; People v. Frierson (1991) 53 Cal.3d 730, 745.)
Giving the magistrate’s evidentiary ruling appropriate deference under this standard, we
conclude that Officer Miller’s testimony concerning his use of the ARIES database may
have been hearsay, but it was admissible for a limited non-hearsay purpose under
Evidence Code section 1250, subdivision (a)(1). The magistrate did not explain her
ruling in these terms, but she did not need to do so. And we are bound by her implied
findings. (§ 1538.5, subd. (i); e.g., People v. Magee (2011) 194 Cal.App.4th 178, 182–
183.)
11
To the extent the “fact” of Mills’s and Bolstad’s probationary status came from
ARIES, it was double hearsay, since someone other than Officer Miller recorded it in the
database at an unknown date and time, and Officer Miller retrieved it at a later date.
Wherever multilevel hearsay is offered, each level of hearsay must satisfy a recognized
hearsay exception if it is to be eligible for admission into evidence. (Evid. Code, § 1201;
see People v. Ayers (2005) 125 Cal.App.4th 988, 994–995). Evidence Code section
1250, subdivision (a)(1) applies at this second hearsay level as well.
16
Officer Miller was the lead investigating officer, and he testified to his
considerable experience using ARIES. It would have been perfectly logical for an
experienced officer to conclude that, since the information he obtained from a database
he used routinely about two reported probationers was consistent with his prior
knowledge of those two people, his decision to carry out a probation search in reliance on
what he saw in the database was solidly grounded and current.12 As we read the record,
that is essentially what Officer Miller’s testimony was, and the magistrate credited it.
The question whether Officer Miller “knew” Mills and Bolstad were on probation and
subject to search is one of pure historical fact to which we defer since it is supported by
substantial evidence. (Cf. People v. Downey (2011) 198 Cal.App.4th 652, 658 [whether
police “reasonably believed” probationer lived at the address searched is a question of
fact reviewed deferentially]; People v. Tidalgo (1981) 123 Cal.App.3d 301, 306 [same];
People v. Palmquist (1981) 123 Cal.App.3d 1, 11–12 [same], disapproved on another
point by People v. Williams (1999) 20 Cal.4th 119, 135.)
Appellant urges us to disregard Officer Miller’s testimony that he had personal
knowledge of Mills’s and Bolstad’s probation status. He relies primarily on Collins,
supra, 59 Cal App.4th 988, where the Court of Appeal upheld a Harvey-Madden
challenge because the arresting officer claimed to have relied in good faith on the
existence of an arrest warrant which was never proved up (it could not have been proved
up because the officer’s understanding was mistaken and the warrant was for someone
else). Appellant seeks to bring this case within the Collins holding by inviting us to take
the view that the true and only source of Officer Miller’s claimed “personal knowledge”
12
Cf. Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1074 [construing section
872, subdivision (b), which permits admission of hearsay testimony by an investigating
officer for purposes of establishing probable cause in a preliminary hearing, to permit
only “officers with lengthy experience or special training to testify” in order to ensure the
“testifying officer will be capable of using his or her experience and expertise to assess
the circumstances under which the statement is made and to accurately describe those
circumstances to the magistrate so as to increase the reliability of the underlying
evidence”].
17
was the ARIES database. This, we cannot do. We consider the record in the light most
favorable to the People, the prevailing party below, since “ ‘all factual conflicts must be
resolved in the manner most favorable to the [superior] court’s disposition on the
[suppression] motion.’ ” (Woods, supra, 21 Cal.4th at p. 673.)
The magistrate was charged with the responsibility of evaluating Officer Miller’s
credibility. As we read the record, the magistrate impliedly found that Officer Miller’s
“personal knowledge” was not derived solely from the database. Instead, the magistrate
evidently was convinced Miller’s “personal knowledge” was in part due to his pre-
existing familiarity with the probationers, and we are bound by her implied finding that
he had a reliable second source of information. (Martinez, supra, 22 Cal.4th at p. 120
[trial court’s ruling on admissibility “ ‘implies whatever finding of fact is prerequisite
thereto; a separate or formal finding is, with exceptions not applicable here,
unnecessary’ ”]; see Evid. Code, § 402, subd. (c).) Determining whether Officer Miller
truly had sufficient knowledge to confirm the reliability of the database information on
which he relied was a preliminary fact committed to her discretion. (See Evid. Code, §
403, subd. (a) (2); 1 Jefferson, Cal. Evidence Benchbook, supra, Determining
Preliminary Facts Under Evidence Code § 403: Relevancy, Personal Knowledge,
Identity, and Authenticity, § 25.11, p. 25–8 [“Proof of the preliminary fact of a witness’s
personal knowledge may be made by any otherwise admissible evidence, including the
witness’s own testimony.”]; see People v. Tafoya (2007) 42 Cal.4th 147, 165 [trial court
rulings on “sufficiency of the foundational evidence” reviewed under abuse of discretion
standard].) Given absence of detail concerning Officer Miller’s pre-existing familiarity
with Mills and Bolstadt, the evidence of corroborating information bolstering his reliance
on ARIES is slight, but there is enough to survive substantial evidence review of what
was, at bottom, a discretionary evidence ruling.
C. Reasonableness of Officer Miller’s Grounds for Search
The admissibility of Officer Miller’s testimony, however, does not end the
analysis. Although Officer Miller’s subjective belief that Mills and Bolstad were
probationers subject to search was a matter of historical fact for the magistrate as finder
18
of fact, the further question whether, under the Fourth Amendment, Officer Miller’s basis
for executing a warrantless search was reasonable in light of the total mix of information
known to him, requires “critical consideration, in a factual context, of legal principles and
their underlying values” (Crocker National Bank v. City and County of San Francisco
(1989) 49 Cal.3d 881, 888), thus presenting a mixed question of law and fact, reviewable
de novo. (People v. Ault (2004) 33 Cal.4th 1250, 1264, fn. 8; see Ornelas, supra, 517
U.S. at p. 699; Haworth v. Superior Court (2010) 50 Cal.4th 372, 384; Lawler, supra, 9
Cal.3d at p. 160.)
In a series of probation and parole search cases in recent decades, starting with
Bravo, supra, 43 Cal.3d 600, in 1987, our Supreme Court has enunciated a set of
principles that guide our analysis of this question. We distill those principles down to
four. First, as noted above, and most fundamentally, “ ‘whether a search is reasonable
must be determined based upon the circumstances known to the officer when the search is
conducted.’ ” (Jaime P., supra, 40 Cal.4th at p. 133, quoting Sanders, supra, 31 Cal.4th at
pp. 332, 334.) That principle applies to both adult and juvenile probation searches (Jaime
P., supra, at pp. 132–133) as well as to parole searches (Sanders, supra, at p. 332).
Second, the rationale for warrantless probation searches is consent-based.
“ ‘[W]hen [a] defendant in order to obtain probation specifically [agrees] to permit at any
time a warrantless search of his person, car and house, he voluntarily [waives] whatever
claim of privacy he might otherwise have had.’ ” (Bravo, supra, 43 Cal.3d at p. 607.)
The consent is a “complete waiver of [the defendant’s] Fourth Amendment rights, save
only his right to object to harassment or searches conducted in an unreasonable manner.”
(Ibid.)
Third, because probation searches are undertaken to “ ‘deter further offenses by
the probationer and to ascertain whether he is complying with the terms of probation’ ”
(Bravo, supra, 43 Cal.3d at p. 610), the scope of permitted search must be “reasonably
related to the purposes of probation.” (Robles, supra, 23 Cal.4th at p. 797.) And fourth,
“whether the purpose of the search is to monitor the probationer or to serve some other
law enforcement purpose, or both, the search in any case remains limited in scope to the
19
terms articulated in the search clause.” (Woods, supra, 21 Cal.4th at p. 681.) Unlike the
parole context, where the scope of permissible search is imposed by law13—and deemed
known to the searching officer from nothing more than the fact that someone is on
parole—a probationer’s expectation of privacy, and hence the reasonableness of a
warrantless search, may vary depending on the scope of advance consent. And in
determining the scope of consent, we must use an objective test, evaluating the terms of
the operative search clause in objective terms, without regard to either the subjective
understanding the probationer might have (Bravo, supra, at pp. 606–607) or the searching
officer’s subjective intent in conducting the search (Woods, supra, at p. 680).
In each of the four leading California Supreme Court probation search cases,
Bravo, Woods, Robles and Jaime P., there was evidence that the probation conditions at
issue expressly permitted or contemplated the warrantless search of a residence. (Jaime
P., supra, 40 Cal.4th at p. 132 [probationer agreed to “submit his person and property,
including his vehicle and residence, to a warrantless search”]; Woods, supra, 21 Cal.4th
at p. 681 [probationer agreed to “submit her residence to warrantless searches”]; Robles,
supra, 23 Cal.4th at p. 796 [probationer agreed to “warrantless searches of his ‘property,
including any residence premise[s]’ ”]; Bravo, supra, 43 Cal.3d at pp. 602–603, fn. 1
[probationer agreed to “[m]aintain [his] residence as approved by probation officer” and
“[s]ubmit his person and property to search or seizure at any time of the day or night”].)
Here, by contrast, there is nothing in the record to aid an objective evaluation of the scope
of advance consent that was given. We do not know whether the authorized scope of
search extended just to the persons of Mills and Bolstad, or to all property under their
control as well; and if it did extend to their property, we do not know whether it extended
specifically to their residence. Nor do we know whether a search was authorized for any
13
Section 3067, subdivision (b)(3); see People v. Schmitz, supra, 55 Cal.4th at p.
916. Upon release from prison, all parolees are notified that “[y]ou and your residence
and any property under your control may be searched without a warrant at any time by
any agent of the Department of Corrections [and Rehabilitation] or any law enforcement
officer.” (Cal.Code Regs., tit. 15, § 2511, subd. (b)(4).)
20
particular kind of contraband.14 Even if we were inclined to draw an inference from
Officer Miller’s testimony that he likely knew the terms of the governing probation
orders—thus supporting an implied finding on this point in light of the fact he checked
the ARIES database—we would need some form of objective proof from which such an
inference, logically, could be drawn. His subjective belief is not enough.
The omission of any particulars concerning the authorized scope of the search is
not a minor detail. Unlike parole searches—where a searching officer’s knowledge of a
person’s parole status alone is enough to justify a search of the parolee’s person or any
property under his control, including his residence—the permissible scope of a probation
search is circumscribed by the terms of the search clause, and the scope may vary.
Conditions of probation may be imposed so long as they are “fitting and proper to the end
that justice may be done, that amends may be made to society for the breach of the law,
for any injury done to any person resulting from that breach, and generally and
specifically for the reformation and rehabilitation of the probationer.” (§ 1203.1, subd.
(j).) Courts therefore attempt to individualize the terms and conditions of probation to fit
the offender. (See People v. Lent (1975) 15 Cal.3d 481, 486; People v. Contreras (2015)
237 Cal.App.4th 868, 878.) A search condition is not mandated by statute for every
probationer, and probation search clauses are not worded uniformly. (See United States
v. King (9th Cir. 2013) 736 F.3d 805, 811 & fn. 1 (dis. opn. of Berzon, J.).) On occasion,
judges may limit the scope of the defendant’s consent to searches for particular
contraband, such as drugs or stolen property, or place spatial limits on where searches
may take place. Some judges have “standard” probation terms for particular crimes and
particular circumstances (and if so, those terms may be subject to proof by judicial
notice, which was not sought here), but practices vary by county all over the state.
14
In a footnote to their brief opposing Appellant’s renewed motion to suppress
filed with the superior court, the People list the docket numbers of the criminal
proceedings in which the probation orders applicable for Mills and Bolstad purportedly
were entered, but that brief says nothing about the search condition applying to their
residence. Nor was any request for judicial notice ever made, in the trial court or on
appeal.
21
On the record presented here, it is impossible to tell what limits may have been
imposed on any probation search of Mills and Bolstad. Because Bravo rests on the idea
that “knowledge of a probation condition is what informs police about the limits of their
authority to conduct warrantless searches” (Hoeninghaus, supra, 120 Cal.App.4th at p.
1196), mere knowledge that someone is on probation and subject to search, without more,
may be insufficient where there is a challenge to the search. In fact, because “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” (Bravo, supra, 43 Cal.3d
at p. 606), proof of the written probation terms is arguably required whenever the
prosecution is called upon to justify a warrantless probation search. But while presenting
the probation order itself may be the better practice, we do not view it as mandatory. The
only court of appeal to have addressed this precise issue took the same view. (See Rios,
supra, 193 Cal.App.4th 584, 597 [“we do not read [Bravo] as requiring the People to
prove the scope and precise terms of a probation condition before a warrantless entry
pursuant to such a condition can be found lawful”]; see also Armstrong, supra, 232
Cal.App.3d at p. 245 [“Proof that the warrant information precipitating the arrest was not
manufactured [in violation of Harvey-Madden] may be made by circumstantial evidence
other than the warrant or a certified copy.”].) Here, by unambiguously asserting a
Harvey-Madden objection in its written motion to suppress, the defense gave plenty of
notice that it intended to challenge the evidentiary foundation for the warrantless search
in this case, and in response to that objection, the prosecutor might have proved up the
operative terms of probation in any number of ways. The bottom line, however, is that
the limited evidentiary presentation the prosecutor chose to make leaves us with no
objective grounds upon which to rely in evaluating whether the permitted scope of search
was exceeded.
The People seek to shore up their position by contending it was unnecessary to
prove advance knowledge beyond Officer Miller’s belief that Mills and Bolstad were on
probation and subject to search. For that proposition, they rely on Rios, supra, 193
Cal.App.4th 584, a case involving the warrantless search of a juvenile probationer’s
22
residence by members of a police unit assigned to monitor high risk juveniles. Rios is
worth considering in some depth because, by comparison, it illustrates what is missing
from the record in this case. There, both the probationer, R.R., and his residence were
known to the officers because, during a recent prior visit to that house, they found R.R.
inside, under the influence of methamphetamine. They also found drug paraphernalia
and gang tagging in the house. (Id. at p. 589.) Upon returning to check on R.R. a couple
of months later, the officers encountered Rios inside the house and recognized gang
tattoos on his arms. He was wearing unusually heavy clothing for a hot summer day, and
he behaved in a belligerent manner toward them. (Id. at p. 589.) When the officers
sought to detain Rios for questioning, he resisted. A struggle ensued; a gun fell from his
clothing; and a search of his person yielded a switchblade. (Id. at p. 590.) Rios
eventually pleaded no contest to resisting arrest and various weapons possession charges,
and was sentenced to a three-strikes term of life imprisonment. (Id. at p. 588.)
On appeal, Rios did not challenge the officers’ warrantless entry into R.R.’s
residence, that issue having been waived in the trial court. The lawfulness of the officers’
warrantless entry did arise obliquely, however, in the context of an ineffective assistance
claim on which he had the burden of proof. He failed to meet that burden. Rios argued
that his counsel had been ineffective for not moving to suppress based on the
prosecution’s failure to prove the “exact terms” of R.R.’s probation order. (Rios, supra,
193 Cal.App.4th at p. 595.) The court rejected that argument, but did so on a record,
unlike the one we have, where the prosecution proved up the operative probation
conditions in some detail and connected them specifically to the purposes of the officers’
followup probation supervision visit to R.R.’s residence. The lead officer testified that,
prior to his team’s followup visit, he knew that the probationer’s sentencing judge had
imposed “ ‘every [probation] term and condition possible . . . , a furlough program
similar to being on parole, so you have drug orders, orders not to associate with gang
members, stolen property, weapons, spray marking . . . devices,’ ” including “ ‘search
terms’ ” for the items the probationer was barred from possessing. (Id. at p. 596.) Thus,
in Rios, in light of the investigating officers’ recent visit to R.R.’s residence, and their
23
duty to monitor compliance with specific, known terms of R.R.’s probation, there were
objectively reasonable grounds to conduct a warrantless residential search for drugs,
stolen property, or evidence of gang activity inside the house. We have nothing like that
in this case. Officer Miller testified to his general familiarity with Mills and Bolstad and
to having had unexplained prior contact with them, but beyond that there is nothing. Nor
can the People fall back on a burden of proof argument, for in this case they have the
burden.
Although the Rios court did not place much weight on the fact that the rights of a
non-probationer guest were involved—understandably, because the record there amply
justified warrantless entry to R.R.’s residence, and once the officers were properly inside,
the arrest and search of Rios was plainly justified by his conduct—we think the
involvement of a non-probationer is important here. The rationale for probation searches
embraced by the California Supreme Court in Bravo and its progeny is essentially
transactional. The probationer is deemed to have consensually surrendered his
expectations of privacy as a quid pro quo for avoiding imprisonment. Although this
theory of consent does extend constructively to house guests in some circumstances—
based on sharing of common areas in the residence (Woods, supra, 21 Cal.4th at pp. 675–
676)—the basis for the theory is more attenuated for guests than it is for their probationer
hosts. Guests are therefore entitled to demand adherence to the proper scope of their
host’s search conditions, despite the usual rule prohibiting the assertion of someone else’s
Fourth Amendment rights in search and seizure cases. (See Rakas v. Illinois (1978) 439
U.S. 128.) The California Supreme Court took care to underscore this point in Woods,
supra, 21 Cal.4th 668, where, in the course of upholding the probation search of a
residence that yielded incriminating evidence against two non-probationer guests, the
court emphasized that “our holding is not intended to legitimize unreasonable searches
with respect to nonprobationers who share residences with probationers. In all cases, a
search pursuant to a probation search clause may not exceed the scope of the particular
clause relied upon.” (Id. at pp. 681–682, italics added.)
24
The court expanded on the same theme in Robles, supra, 23 Cal.4th 789.
“[R]esidences frequently are occupied by several people living together, including
immediate family members and perhaps other relatives or friends, as well as guests.
Allowing the People to validate a warrantless residential search, after the fact, by means
of showing a sufficient connection between the residence and any one of a number of
occupants who happens to be subject to a search clause, would encourage the police to
engage in facially invalid searches with increased odds that a justification could be found
later. It also would create a significant potential for abuse since the police, in effect,
would be conducting searches with no perceived boundaries, limitations, or justification.”
(Id. at p. 800.) “The potential for abuse, with its consequent impact on the citizenry,” the
court explained, “is especially heightened in high crime areas where police might suspect
probationers to live.” (Ibid.) “With respect to the goals of probation, society would be
hard pressed not to ‘ “ ‘recognize as legitimate’ ” ’ [citation] third party privacy
expectations concerning the illegality of warrantless searches that bear no reasonable
relation to the purposes of probation.” (Id. at p. 799.) Permitting arbitrary and
indiscriminate probation searches might cause “[m]any law-abiding citizens . . . not to
open their homes to probationers if doing so were to result in the validation of arbitrary
police action. If increased numbers of probationers were not welcome in homes with
supportive environments, higher recidivism rates and a corresponding decrease in public
safety may be expected, both of which would detract from the ‘optimum successful
functioning’ of the probation system.” (Ibid.)
We conclude that, on this record, the search of 628 Walnut Avenue cannot be
upheld. We are asked to sustain the warrantless search of a residence without any
showing that the searching officers knew that the target of their search, the residence
itself, fell within the scope of a probation search clause. A probation search carried out
by police heedless of any limits in the operative search clause might turn out to be lawful
or unlawful—depending on an after-the-fact check. (See Hoeninghaus, supra, 120
Cal.App.4th at p. 1196 [“If, as the People argue, police did not need to know that their
authority to search defendant was limited to searching for drugs, then police could search
25
him without any limitation and without any grounds to believe the search was reasonable;
and if, after learning about the condition, they claimed that they were looking for drugs,
the search could be upheld under the consent exception”].) This is the “search first,
justify later” approach that the Supreme Court has consistently decried, while pointing
out that it is particularly problematic where third-party non-probationers are involved.
To meet their burden of proof, the People were required to present evidence
demonstrating the objective reasonableness of a warrantless search. The presentation of a
search clause expressly allowing a residential search would have sufficed, as would more
detailed testimony from Officer Miller showing some understanding of the operative
terms of probation and connecting those terms to the need for a warrantless search. Even
without any of that, the search might still have been justified if the objective
circumstances otherwise warranted it. (See Woods, supra, 21 Cal.4th at p. 680 [“ ‘ “the
fact that the officer does not have the state of mind which is hypothecated by the reasons
which provide the legal justification for the officer’s action does not invalidate the action
taken as long as the circumstances, viewed objectively, justify that action” ’ ”], quoting
Whren v. U.S. (1996) 517 U.S. 806, 813.) But we find no such justification on this
record.
DISPOSITION
We reverse the order denying Appellant’s motion to suppress. Because the People
do not dispute that the order denying Appellant’s section 995 motion rises or falls with
the order denying the suppression motion, we also reverse the order denying the section
995 motion. The case is remanded with directions to vacate the judgment of conviction.
26
_________________________
Streeter, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.
A140146/People v. Romeo
27
People v. Romeo (A140146)
Trial Court: Contra Costa County Superior Court
Trial Judges: Hon. John Laettner;
Hon. Susanne M. Fenstermacher
Counsel for Defendant and Appellant: Donn Ginoza, by appointment of
the Court of Appeal under the First District
Appellate Project’s Independent-Case System
Counsel for Plaintiff and Respondent: Kamala D. Harris
Attorney General of California
Gerald A. Engler
Senior Assistant Attorney General
Jeffrey M. Laurence
Supervising Deputy Attorney General
Na’Shaun Neal
Deputy Attorney General
28