People v. Cervantes

Filed 5/18/17

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D069959

Plaintiff and Respondent,

v. (Super. Ct. No. SCD264150)

JAIME E. CERVANTES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Michael S.

Groch and Joseph A. Brannagan, Judges. Affirmed.

David W. Beaudreau, under appointment by the Court of Appeal, for Defendant

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Genevieve Herbert, A. Natasha

Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and

Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of Discussion part II.
 Police validly stopped defendant Jaime Cervantes for driving with expired vehicle

registration. They searched his vehicle after they learned that the adult female riding in

the front passenger seat had provided them with a false identity and was subject to a

felony warrant and probation search condition. Police initially discovered large

quantities of illegal drugs and paraphernalia in a closed toiletries bag and an opaque

plastic drawstring bag in the backseat behind the driver. They continued their search and

found more methamphetamine in the front center console. They arrested defendant, who

admitted to transporting drugs for sale.

Defendant moved to suppress the seized drugs and his confession on the basis the

officers were unjustified in searching the bags in the backseat because the probationer on

whom the police justified their search was female, yet the closed bags in the backseat

undisputedly contained male toiletries and clothing. After the trial court denied the

motion, defendant pleaded guilty to transporting drugs for sale. The trial court granted

him probation, one of the conditions of which requires him to submit to warrantless and

suspicionless searches of his electronic devices and social media accounts.

On appeal, defendant contends the trial court erred by denying his suppression

motion. The contention lacks merit. The policy considerations articulated by the

California Supreme Court in People v. Schmitz (2012) 55 Cal.4th 909 (Schmitz), which

upheld a search of personal items in the backseat of a car based on a front seat

passenger's status as a parolee, justify the search of defendant's center console based on

his passenger's status as a probationer. The discovery of illegal drugs there would

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inevitably have led to the discovery of the drugs in the bags located in the backseat.

Thus, the trial court did not err in denying defendant's suppression motion.

Defendant also challenges the reasonableness and constitutionality of the

electronics search condition of his probation. The challenges lack merit.

We affirm.

FACTUAL AND PROCEDURAL SUMMARY1

Defendant's October 18, 2015 Arrest

On October 18, 2015, San Diego Police Officer Peter Larson and his partner,

Officer Thomas Cooper, stopped "a four-door compact sedan" (a 2001 Toyota Corolla)

for having expired registration. Defendant was driving. A female sitting in the front

passenger seat identified herself to Officer Larson as Sarah Craft. After a computer-

based record search returned no information for Sarah Craft, Officer Larson learned that

the passenger's real name was Tiffany Craft. Records indicated she had "a felony warrant

and a valid [F]ourth waiver."2 Officer Cooper detained Craft outside of the car.

Officer Larson told defendant he was "going to search his vehicle." Defendant

wanted to know why and asked to speak to a sergeant. Officer Larson called his sergeant

1 We base our summary of the facts on evidence presented at the preliminary
hearing.

2 "A 'Fourth Waiver' is a shorthand term police use to describe a person whose
'reasonable expectation of privacy' under the Fourth Amendment has been either
'significantly diminished' by a condition of probation [citation], or extinguished as a
condition of his parole." (Cobb v. Juarez (S.D. Cal., Feb. 11, 2013, No. 10CV1872-CAB
(WMC)) 2013 WL 12108124, at *3.) The parties agree Craft was on probation.
3
to the scene. After speaking with the sergeant, defendant got out of his car. Officer

Larson then searched defendant's car.

Officer Larson began by searching two bags he found on the driver's side backseat

that were "within arm's reach of where the passenger was sitting." He first searched a

"toiletries bag" that was zipped closed. He saw "numerous men's toiletries" (deodorant,

shaving cream, and razors) and a black pouch. Officer Larson opened the pouch and

found "numerous items," including "one small clear plastic bag with a crystalline material

inside" that he believed was methamphetamine. He told Officer Cooper to handcuff

defendant. Officer Larson continued to search the pouch and found 4.46 grams of heroin

(about 80 dosage units), a digital scale, and a cigar cutter (commonly used to cut

narcotics for sale).

Officer Larson then searched the other bag, which was an opaque gray plastic bag

with the drawstrings drawn closed. He untied the drawstring and "immediately noticed

men's boxers," "men's white tennis shoes," and "men's body wash." He continued

searching the bag and found an opaque Tupperware container. Officer Larson opened the

container and found 185.65 grams of methamphetamine ("well in excess of 3600 dosage

units").

Craft never claimed ownership of either bag, and Officer Larson never saw her try

to grab or look at them.

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 Officer Larson then searched the center console,3 where he found two "orange

zipper bags, and inside one was the same material which [he] believed was

methamphetamine." He also found two cell phones in the car.

After Officer Larson completed his search of defendant's car, Officer Cooper

searched defendant and found a glass pipe and about $300 in cash. The officers arrested

defendant and transported him to the police station. After being read his Miranda

rights,4 defendant told Officer Cooper that a man named Carlos had been paying him to

transport methamphetamine once or twice per month from Los Angeles to San Diego,

where "[h]e gave it to another man to sell."5

Defendant was released on bail.

Defendant's October 20, 2015 Arrest

Two days after his arrest, a patrolman stopped defendant in his car for having

tinted windows. Defendant acknowledged his recent arrest and admitted to having used

drugs the day of his October 18 arrest. A search of his car revealed 17.1 grams of

methamphetamine (approximately 342 dosage units) and a glass pipe. Defendant was

arrested again.

3 The record does not indicate whether the center console was an open area or a
closed compartment. Nothing in the record indicates Officer Larson searched any areas
of defendant's car that were locked or otherwise secured.

4 Miranda v. Arizona (1966) 384 U.S. 436.

5 A special agent with the Drug Enforcement Administration agreed that defendant's
conduct in connection with his October 18 arrest was consistent with drug sales.

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 Defendant's Suppression Motions

In connection with his October 18 arrest, the People charged defendant with one

count of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), with

an allegation that he was transporting in excess 28.5 grams (Pen. Code,6 § 1203.073,

subd. (b)(2)); and one count of transporting heroin (Health & Saf. Code, § 11352, subd.

(a)). In connection with his October 20 arrest, the People charged defendant with one

count of transporting methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) The

People alleged as to all counts that the drugs were not for personal use. (§ 1210, subd.

(a).)

Before the preliminary hearing, defendant moved to suppress the evidence

obtained and statements he made in connection with his October 18 and 20 arrests.7 The

prosecution argued the October 18 search was justified under Schmitz, supra, 55 Cal.4th

909, which held that "a vehicle search based on a passenger's parole status may extend

beyond the parolee's person and the seat he or she occupies," but "is confined to those

areas of the passenger compartment where the officer reasonably expects that the parolee

could have stowed personal belongings or discarded items when aware of police

activity." (Id. at p. 926.) Defendant agreed Schmitz was controlling, but argued Officer

Larson's search exceed the permissible scope. At the preliminary hearing, the trial court

6 Undesignated statutory references are to the Penal Code.

7 Defendant's appeal does not concern his October 20 search or arrest. Therefore,
we discuss it only as it relates to his challenge to the electronics search condition of his
probation.
6
(Hon. Frederic L. Link) found the search was "valid and legal" because "the items were

within the reach of the female" who "had a Fourth waiver." The court denied the

suppression motion and bound defendant over for trial.

Defendant renewed his suppression motion (§ 1538.5, subd. (i)) and moved to

dismiss the case (§ 995). He again acknowledged Schmitz was controlling, but argued

Officer Larson exceeded the permissible scope of a Fourth-waiver search because it was

immediately apparent that the toiletries bag and plastic drawstring bag contained male

items. The prosecution responded that the search was within the bounds of Schmitz

because the exterior of the bags appeared gender-neutral or, in any event, because "the

center console contained narcotics," was "absolutely within arm's reach of the felon

passenger," and thus the "officers could have started their search there and moved to the

back seat, resulting in the inevitable discovery of the methamphetamine." The trial court

(Hon. Joseph P. Brannagan) found the decision made by the judge at the preliminary

hearing was a close call, but not unreasonable: "So on a close call like this, I can't say

that Judge Link's finding is unreasonable. I would need to find it unreasonable in order to

overturn it, and I can't make that finding." The court denied defendant's motions.

Guilty Plea and Sentence

Two days later, defendant pleaded guilty as charged.

Defendant told his probation officer he had been transporting drugs for Carlos for

approximately one year, but said it was " 'not a daily thing.' " The probation officer

reported that the street value of the methamphetamine seized in the Tupperware container

on October 18 was between $111,000 and $222,000. He believed the quantity of seized

7
drugs "would potentially have had a significant impact on the community if [defendant]

had completed his mission." Nevertheless, the probation officer recommended defendant

be granted formal probation with 365 days of custody. He further recommended the

court impose an electronics search condition.

The trial court (Hon. Michael S. Groch) followed the probation officer's

recommendation and granted defendant 36 months of formal probation with 365 days in

local custody. One condition of defendant's probation requires that he submit his

"computers, . . . recordable media[,] electronic devices[, and] social media [accounts] to

search at any time with or without a warrant, and with or without reasonable cause, when

required by [a probation] or law enforcement officer." The court expressly stated during

sentencing, without objection, that it was annotating the probation form to add "electronic

communication devices" and "social media accounts" to the search condition.

DISCUSSION

I. Suppression Motion

Defendant argues the trial court erred in denying his suppression motion. In the

trial court, defendant acknowledged the principles articulated in Schmitz, supra, 55

Cal.4th 909 were controlling, but argued the search of his car exceeded those principles.

Now, on appeal, defendant contends Schmitz is "inapposite" because it involved a search

based on a parole search clause, whereas the search of defendant's car was based on a

probation search condition. We recognize that, in certain contexts, Schmitz draws

distinctions between parolees and probationers. However, we find more compelling the

similarities it notes in the context of a vehicle search: (1) parolees and probationers both

8
have demonstrated histories of criminal activity and share a motivation to conceal further

criminal activity; and (2) drivers' already-diminished expectation of privacy in their

vehicles is even further diminished when they transport a passenger, particularly one

subject to warrantless and suspicionless parole or probation searches. Based on these

considerations, we will apply Schmitz.

Doing so, we find (1) the search of defendant's center console was justified, and

(2) the search of the console would inevitably have led to the discovery of the drugs in

the backseat bags.

A. Relevant Legal Principles

" 'The standard of appellate review of a trial court's ruling on a motion to suppress

is well established. We defer to the trial court's factual findings, express or implied,

where supported by substantial evidence. In determining whether, on the facts so found,

the search or seizure was reasonable under the Fourth Amendment, we exercise our

independent judgment.' " (People v. Redd (2010) 48 Cal.4th 691, 719.)

"We review challenges to the admissibility of evidence obtained by a police search

and seizure under federal constitutional standards." (People v. Lomax (2010) 49 Cal.4th

530, 564, fn. 11; Cal. Const., art. I, § 24.) "A warrantless search is unreasonable under

the Fourth Amendment unless it is conducted pursuant to one of the few narrowly drawn

exceptions to the constitutional requirement of a warrant." (Schmitz, supra, 55 Cal.4th at

p. 916; U.S. Const., 4th Amend.; Arizona v. Gant (2009) 556 U.S. 332, 338.) In Schmitz,

the California Supreme Court discussed the recognized exceptions to the presumption of

9
unreasonableness that apply to searches of parolees and probationers. (Schmitz, at pp.

916-918.)

In Schmitz, police validly stopped a noncommercial five-passenger vehicle being

driven by the male defendant, then searched the passenger compartment when they

learned the male front seat passenger was on parole. (Schmitz, supra, 55 Cal.4th at pp.

914, 925.) In the backseat area, which was occupied by a woman and her small child,

police found "two syringes in a chips bag, and some methamphetamine in a pair of

shoes." (Id. at p. 914.) The defendant sought to suppress the drugs and paraphernalia,

claiming the scope of a parole search of the passenger could validly extend only to the

front passenger's seat and the floor in front of it. (Id. at pp. 914-915.) The trial court

denied the suppression motion and the defendant pleaded guilty. (Id. at p. 914.) The

defendant prevailed in the Court of Appeal, but the California Supreme Court reversed.

(Id. at pp. 914-915.)

The Supreme Court explained that the reasonableness of a parole search is

determined by "weigh[ing] the privacy interests of the parolee against society's interest in

preventing and detecting recidivism." (Schmitz, supra, 55 Cal.4th at p. 916.) Because

parolees " 'have severely diminished expectations of privacy' " in contrast to the state's

" ' " 'overwhelming interest' " in supervising parolees,' " warrantless and suspicionless

searches of parolees "are reasonable, so long as the parolee's status is known to the

officer and the search is not arbitrary, capricious, or harassing." (Id. at p. 916.) But the

court observed "[d]ifferent considerations are present . . . when a parole search affects the

10
privacy interests of third parties," such as "a third party driving a car with a parolee

passenger." (Id. at p. 917.)

In determining the permissible scope of a parole-based search of a car and its

contents, the Schmitz court analogized to probation-based searches of residences and

their contents. (Schmitz, supra, 55 Cal.4th at pp. 917-918.) In the latter context, the

court explained that because " 'probationers may validly consent in advance to

warrantless searches in exchange for the opportunity to avoid service of a state prison

term,' " by extension, "if others live with a probationer, the shared areas of their residence

may be searched based on the probationer's consent." (Id. at p. 917.) However,

" 'officers generally may only search those portions of the residence they reasonably

believe the probationer has complete or joint control over.' " (Id. at p. 918; see People v.

Woods (1999) 21 Cal.4th 668, 681-682; People v. Robles (2000) 23 Cal.4th 789, 798

(Robles).)

But the Schmitz court found the probation/consent-based rationale for third-party

searches of residences "unworkable when applied to [a] parolee . . . who was a mere

passenger in [the] defendant's automobile." (Schmitz, supra, 55 Cal.4th at p. 919.) To

begin with, in contrast to a residence, "[b]oth drivers and passengers have a reduced

expectation of privacy in the interior of a car and its contents because cars ' "trave[l]

public thoroughfares" [citation], "seldom serv[e] as . . . the repository of personal effects"

[citation], are subjected to police stop and examination to enforce "pervasive"

governmental controls "[a]s an everyday occurrence" [citation], and, finally, are exposed

to traffic accidents that may render all their contents open to public scrutiny.' " (Id. at p.

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920.) Schmitz reasoned a driver's already-diminished expectation of privacy is even

"further diminished when he allows others to ride in his car, thus ceding some measure of

privacy to them." (Id. at p. 924.)

The Schmitz court also found the probation-based consent analogy "inapt" because

"previous cases have drawn a clear distinction between probation and parole with regard

to consent. A probationer explicitly agrees to being placed on probation," whereas

" 'parole is not a matter of choice.' " (Schmitz, supra, 55 Cal.4th at pp. 920-921.) Thus,

while the scope of consent granted by a probationer is determined by the express terms of

his or her probation conditions,8 the scope of a nonconsensual "parole search flow[s]

from the nexus between the parolee and the area or items searched. How we define that

nexus depends on the totality of the circumstances, and takes into account such factors as

the nature of that area or item, how close and accessible the area or item is to the parolee,

the privacy interests at stake, and the government's interest in conducting the search."

(Schmitz, at p. 923.)9

8 A standard probation search condition—like the one imposed on defendant—
requires the probationer to submit to warrantless, suspicionless searches of his "person,
vehicle, residence, property, [and] personal effects." Craft's probation conditions are not
in the appellate record.

9 Schmitz observed that every inmate released on parole must receive an advisement
that he or she " 'is subject to search or seizure by a . . . parole officer or other peace
officer at any time of the day or night, with or without a search warrant or with or without
cause.' " (Schmitz, supra, 55 Cal.4th at p. 923, quoting § 3067, subd. (b)(3); see Cal.
Code Regs., tit. 15, § 2511, subd. (b)(4) [upon release, the parolee is 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."].)
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 The Schmitz court then applied these principles to the context of a vehicle search.

Considering the nature, proximity, and accessibility of the searched area to the parolee,

the court observed that "a standard five-passenger automobile generally affords ready

access to areas in both the front and the back seats." (Schmitz, supra, 55 Cal.4th at p.

925.) Recognizing that a parolee or probationer—"more than an ordinary passenger"

(ibid.)—has "a heightened incentive to conceal or quickly dispose of incriminating

evidence" (ibid.), the court observed that "an artificially narrow rule" that would limit a

parole search to the front seat passenger's immediate seating area would allow a parolee

to "frustrate a valid parole search simply by sitting in the front seat of the car and placing

or discarding his belongings in the back" (id. at p. 926). The court explained that

allowing searches of backseat areas accessible to front seat passengers would not offend

"modern social conventions" (id. at p. 924) with regard to the driver's already-reduced

expectation of privacy:

"Typically, automobile occupants do not act as if they were confined
in separate divided compartments, coats and other possessions piled
on their laps, elbows clamped at their sides. A front seat passenger,
even if only a casual acquaintance of the driver, will likely feel free
to stow personal items in available space at his or her feet, in the
door pocket, or in the backseat, until they are needed or the journey
ends. Even if the driver's personal preferences are otherwise, it is
not reasonable to expect that the passengers will always adhere to
them. The driver is not necessarily in a position to supervise his
passengers at every moment, nor is he in a position to control their
every move once they are in the car. . . . [A]n occupant of an
automobile may hide contraband without the other occupants'
knowledge or permission." (Schmitz, supra, 55 Cal.4th at p. 925.)

In light of this practicality, the state's substantial interest in supervising parolees,

and the driver's "reduced expectation of privacy with regard to an automobile" (Schmitz,

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supra, 55 Cal.4th at p. 924), the court held "that a vehicle search based on a passenger's

parole status may extend beyond the parolee's person and the seat he or she occupies,"

but is "confined to those areas of the passenger compartment where the officer reasonably

expects that the parolee could have stowed personal belongings or discarded items when

aware of police activity" (id. at p. 926). The searchable area includes "items of personal

property if the officer reasonably believes that the parolee owns the items or has the

ability to exert control over them." (Id. at p. 930.)10 The court clarified that "the officer

need not articulate specific facts indicating that the parolee has actually placed property

or contraband in a particular location in the passenger compartment before searching that

area." (Id. at p. 926.)

Turning to the chips bag and pair of shoes, the Schmitz court upheld the searches.

(Schmitz, supra, 55 Cal.4th at pp. 930-932.) The court expressed concern about searches

of personal items when there are clear indicia of ownership by someone other than the

parolee on whom the search is based. (Id. at p. 931, citing People v. Baker (2008) 164

Cal.App.4th 1152, 1160 [during a vehicle search based on the male driver's parolee

status, it was unreasonable to search a "distinctly feminine purse" (Baker, at p. 1160)

located at the feet of the female, nonparolee passenger]). But the court found that

concern unwarranted on the record before it: the chips bag was "plainly distinguishable"

10 The court expressed no opinion on the reasonableness of a search of "closed-off
areas" such as "the glove box, center console, or trunk . . . . The reasonableness of such a
search must necessarily take into account all the attendant circumstances, including the
driver's legitimate expectation of privacy in those closed compartments, the passenger's
proximity to them, and whether they were locked or otherwise secured." (Schmitz, supra,
55 Cal.4th at p. 926, fn. 16.)
14
from something " 'inherently private' " like a purse (id. at p. 931); and, although "[t]he

shoes present[ed] a much closer question" (id. at p. 932), the court upheld the search

because the record was silent as to "the shoes' owner or whether the style of the shoes

was gender specific" (id. at p. 932).

B. Analysis

We find Schmitz dispositive because the similarities between parolees and

probationers in the context of vehicle searches are compelling. First, defendant's

expectation of privacy in his car was just as diminished as the Schmitz defendant's. Both

drivers were carrying passengers on public thoroughfares where they were subjected to

potential police stops for myriad technical traffic violations or exposed to traffic

accidents " 'that may render all their contents open to public scrutiny.' " (Schmitz, supra,

55 Cal.4th at p. 920.) Schmitz warned the public—including defendant, about two years

before his arrest—that one's expectation of privacy in a vehicle is even further diminished

if a passenger is a parolee. We find it exceedingly unlikely that defendant (or other

members of the public) construed Schmitz as applying only to passengers who are

parolees but not to probationers.

Second, just as with parolees, the state has a substantial interest in monitoring

probationers to prevent and detect recidivism. "[I]t must be remembered that 'the very

assumption of the institution of probation' is that the probationer 'is more likely than the

ordinary citizen to violate the law.' " (United States v. Knights (2001) 534 U.S. 112,

120.) "And probationers have even more of an incentive to conceal their criminal

activities and quickly dispose of incriminating evidence than the ordinary criminal

15
because probationers are aware that they may be subject to supervision and face

revocation of probation, and possible incarceration . . . ." (Ibid.) Indeed, Schmitz (a

parole search case) cited Knights (a probation search case) to support this proposition.

(Schmitz, supra, 55 Cal.4th at pp. 923-924.)

By extension, as with searches of parolees, an "artificially narrow rule" (Schmitz,

supra, 55 Cal.4th at p. 926) restricting searches of probationers to their immediate seating

area would allow probationers—who are as equally incentivized as parolees to conceal

further criminal activity—to frustrate a valid probation search by placing contraband in

the backseat or mere inches away in an adjacent center console.

Accordingly, we hold "that a vehicle search based on a passenger's [probation]

status may extend beyond the [probationer]'s person and the seat he or she occupies," but

is "confined to those areas of the passenger compartment where the officer reasonably

expects that the [probationer] could have stowed personal belongings or discarded items

when aware of police activity." (Id. at p. 926.) The searchable area includes "items of

personal property if the officer reasonably believes that the [probationer] owns the items

or has the ability to exert control over them." (Id. at p. 930.) Applying this standard, and

considering the totality of these circumstances, we conclude it was objectively reasonable

for Officer Larson to search those areas of defendant's car where Craft could have

concealed contraband upon becoming aware of police activity.

We turn now to the specific areas Officer Larson searched. Defendant's primary

argument on appeal is that it was unreasonable for Officer Larson to continue searching

the toiletries bag and the plastic drawstring bag once he became aware they contained

16
male belongings and, thus, likely belonged to defendant and not to probationer Craft.

(See, e.g., Schmitz, supra, 55 Cal.4th at p. 932.) We need not address this specific

argument because we agree with the Attorney General that even if Officer Larson had not

begun his search with those bags, he would inevitably have discovered the drugs

contained in them. That is, Officer Larson was (as we will explain) entitled to search the

center console; he undoubtedly would have done so regardless of whether he first

discovered drugs in the backseat bags; he would have found the methamphetamine in the

center console; and he then would have justifiably searched the rest of defendant's car and

its contents, leading to his inevitable discovery of the drugs in the backseat bags.

"The inevitable discovery doctrine acts as an exception to the exclusionary rule,

and permits the admission of otherwise excluded evidence 'if the government can prove

that the evidence would have been obtained inevitably and, therefore, would have been

admitted regardless of any overreaching by the police.' " (People v. Hughston (2008) 168

Cal.App.4th 1062, 1071; Robles, supra, 23 Cal.4th at p. 800.) "The purpose of the

inevitable discovery rule is to prevent the setting aside of convictions that would have

been obtained without police misconduct." (Robles, at p. 800.) "Fairness can be assured

by placing the State and the accused in the same positions they would have been in had

the impermissible conduct not taken place. However, if the government can prove that

the evidence would have been obtained inevitably and, therefore, would have been

admitted regardless of any overreaching by the police, there is no rational basis to keep

that evidence from the jury in order to ensure the fairness of the trial proceedings. In that

situation, the State has gained no advantage at trial and the defendant has suffered no

17
prejudice. Indeed, suppression of the evidence would operate to undermine the adversary

system by putting the State in a worse position than it would have occupied without any

police misconduct." (Nix v. Williams (1984) 467 U.S. 431, 447.)

"The prosecution bears the burden of proving by a preponderance of the evidence

that evidence otherwise unlawfully obtained would have been inevitably discovered."

(People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1217 (Walker).)11

"The showing must be based not on speculation but on 'demonstrated historical facts

capable of ready verification or impeachment.' " (Hughston, supra, 168 Cal.App.4th at p.

1072.) However, in assessing whether evidence would inevitably have been discovered,

"this 'court does not leave its common sense at the door.' " (Walker, at p. 1216.)

We are satisfied that Officer Larson would have found the drugs contained in the

toiletries bag and the plastic drawstring bag even if he had not begun his search there.

Under Schmitz, he was entitled to search those areas of defendant's car where Craft could

reasonably have concealed contraband upon detecting police activity. Schmitz

recognized that a passenger "will likely feel free to stow personal items in available space

at his or her feet, in the door pocket, or in the backseat, until they are needed or the

journey ends." (Schmitz, supra, 55 Cal.4th at p. 925.) We would extend this rationale to

an unlocked center console, where, for example, a passenger would likely feel free to

place his wallet or charge her cell phone using an adapter plugged into the car's cigarette

11 "The phrase 'inevitable discovery' is somewhat of a misnomer" inasmuch as the
"doctrine does not require certainty. [Citation.] Rather, the People must show a
'reasonable probability that [the challenged evidence] would have been procured in any
event by lawful means.' " (Walker, supra, 143 Cal.App.4th at p. 1215.)
18
lighter. Provided the center console was not locked, secured, or otherwise "closed[ ]off"

(id. at p. 926, fn. 16), we conclude a search of such a center console based on a front seat

passenger's probation search condition would be objectively reasonable. Nothing in the

record suggests the center console of defendant's car was closed off, locked, or otherwise

secured in any manner. Accordingly, Officer Larson was entitled to search the center

console based on Craft's proximity to it, her apparent ability to conceal contraband in it

upon learning of police activity, and her probation status.

Common sense tells us Officer Larson intended to search the interior of the car,

including the center console. Upon learning Craft was a wanted felon who was subject to

a valid "Fourth waiver" and had just provided the officers with a false identity, Officer

Larson advised defendant he was "going to search his vehicle" (italics added), not just

two bags in it. The fact that Officer Larson persisted in searching the vehicle over

defendant's objection and request to speak to a sergeant satisfies us that Officer Larson

would inevitably have searched the area most immediately accessible to the front seat

passenger—the center console—and discovered the methamphetamine located there.

Once Officer Larson found the methamphetamine in the center console, he would have

been justified in searching the remainder of defendant's car and its contents. (See People

v. Dey (2000) 84 Cal.App.4th 1318, 1322; United States v. Ross (1982) 456 U.S. 798,

821-824.) That would inevitably have led to the discovery of the drugs in the toiletries

bag and the plastic drawstring bag.

Defendant contends the People forfeited their ability to invoke the inevitable

discovery doctrine by failing to assert it below. The contention lacks merit. As noted,

19
the prosecutor's opposition to defendant's motion to dismiss and renewed suppression

motion expressly raised the doctrine. This was sufficient to preserve the issue for appeal.

In sum, we conclude that although Officer Larson happened to have begun his

search of defendant's car by searching the toiletries bag and plastic drawstring bag in the

backseat, he inevitably would have also searched the center console, and been legally

justified in doing so. The discovery of methamphetamine there would have justified the

search of the backseat bags and led to the discovery of the drugs that led to defendant's

guilty plea. Under these circumstances, the exclusionary rule's deterrent purpose is

inapplicable. To the extent the rule is even implicated here at all, it is only by the

happenstance of the sequence in which Officer Larson searched defendant's vehicle. This

is not the kind of police conduct the exclusionary rule was intended to address. The trial

court did not err in denying defendant's suppression motion.

II. Electronics Search Condition

Defendant contends the electronics search condition is unreasonable and

unconstitutionally overbroad.12 We disagree.

A. Relevant Legal Principles

"In granting probation, courts have broad discretion to impose conditions to foster

rehabilitation and to protect public safety . . . ." (People v. Carbajal (1995) 10 Cal.4th

1114, 1120.) Under People v. Lent (1975) 15 Cal.3d 481 (Lent), " '[a] condition of

12 Defendant acknowledges he failed to object to this condition below. To eliminate
the need to address defendant's claim of ineffective assistance of counsel, we exercise our
discretion to consider the challenge despite its apparent forfeiture. (See People v. Leon
(2016) 243 Cal.App.4th 1003, 1023.)
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probation 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

. . . " . . . .' " (People v. Olguin (2008) 45 Cal.4th 375, 379, quoting Lent at p. 486.) "This

test is conjunctive—all three prongs must be satisfied before a reviewing court will

invalidate a probation term." (Olguin, at p. 379.)

" 'A probation condition that imposes limitations on a person's constitutional rights

must closely tailor those limitations to the purpose of the condition to avoid being

invalidated as constitutionally overbroad.' [Citation.] 'The essential question in an

overbreadth challenge is the closeness of the fit between the legitimate purpose of the

restriction and the burden it imposes on the defendant's constitutional rights—bearing in

mind, of course, that perfection in such matters is impossible, and that practical necessity

will justify some infringement.' " (People v. Pirali (2013) 217 Cal.App.4th 1341, 1346.)

We generally review the imposition of probation conditions for an abuse of

discretion, and constitutional challenges to probation conditions de novo. (People v.

Appleton (2016) 245 Cal.App.4th 717, 723 (Appleton).)

Our court recently upheld the validity of an electronics search condition in People

v. Nachbar (2016) 3 Cal.App.5th 1122 (Nachbar).13 There, we found that an electronics

13 The California Supreme Court granted review in Nachbar, but deferred further
action pending consideration and disposition of In re Ricardo P. (2015) 241 Cal.App.4th
676, review granted February 17, 2016, S230923. However, whereas In re Ricardo P.
concerns a juvenile offender and an electronics search condition justified under Lent's
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search condition imposed on a defendant convicted of unlawful sexual intercourse with a

minor satisfied the first Lent prong because the defendant "communicated with his victim

via social media, sent her sexually explicit text messages, and intended to watch a movie

with her on a mobile device on the date of the offense." (Nachbar, at p. 1130.) We also

found the search condition was not unconstitutionally overbroad. We recognized the split

of authority among California Courts of Appeal evaluating electronics search conditions

in the wake of the United States Supreme Court's decision in Riley v. California (2014)

__ U.S. __ [134 S.Ct. 2473, 2493] (Riley), which held that a warrantless search of a

suspect's cell phone incident to arrest implicated and violated his Fourth Amendment

rights. (See Nachbar, at pp. 1128-1129, comparing Appleton, supra, 245 Cal.App.4th at

pp. 724-729 [condition satisfied first Lent prong because defendant met victim via

smartphone social media application, but was unconstitutionally overbroad in light of

privacy concerns recognized in Riley] with In re J.E. (2016) 1 Cal.App.5th 795, 803-804

[finding Riley inapposite in the context of a probationer whose expectation of privacy is

already diminished due to her criminal conviction].) We found persuasive the reasoning

that concluded Riley was inapposite: "As a defendant who has pleaded guilty to a felony

and accepted probation in lieu of additional punishment, defendant has a diminished

expectation of privacy as compared to law-abiding citizens or those subject to searches

incident to arrest. Thus, we conclude the privacy concerns voiced in Riley are inapposite

in the context of evaluating the reasonableness of a probation condition." (Nachbar, at p.

third prong, Nachbar concerns an adult offender and an electronics search condition
justified under Lent's first prong. (Nachbar, supra, 3 Cal.App.5th at p. 1130, fn. 5.)

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1129.) We then found the electronics search condition was not unconstitutionally

overbroad under the circumstances, which included the facts that (1) the defendant

"reoffended with a younger victim within a matter of mere months, while already on

probation"; (2) a psychological evaluation revealed the defendant was sexually attracted

to adolescents; and (3) the probation officer assessed him has having "a moderate to high

risk of reoffending if released on probation." (Id. at p. 1130.)

B. Analysis

We conclude the electronics search condition is reasonable under the first and

third Lent prongs. Defendant admitted he was being paid to transport drugs from Los

Angeles to San Diego once or twice per month for approximately one year. Two days

after his October 18 arrest for transporting drugs, and while he was out on bail, he was

arrested again for committing the same crime. Although there is no direct evidence that

defendant used electronic devices in the commission of the offenses for which he was

convicted, there is strong circumstantial evidence of it in light of (1) the pervasive use of

such technology in modern society; (2) the geographic distance involved; (3) the

involvement of, and need to coordinate with, two other traffickers (Carlos in Los

Angeles, and the dealer in San Diego); (4) defendant's admission of his frequent, but

sporadic, trafficking activity; and (5) the fact two cell phones were recovered from

defendant's car while he was transporting large quantities of drugs.14 This evidence

supports a strong inference that defendant used some form of electronic device to

14 Although it is reasonable to infer that one phone belonged to each of defendant
and Craft, that still leaves defendant with one cell phone.
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coordinate with Carlos regarding the transportation of drugs on October 18 and 20. Thus,

the electronics search condition satisfies Lent. (See People v. Smith (2017) 8 Cal.App.5th

977, 986 ["Since defendant used a cell phone to arrange the illegal drug transaction for

which he was convicted in this case, it was imperative that his cell phone use be

monitored by the probation officer to ensure that he was not violating his probation by

engaging in drug trafficking."].)

Alternatively, even if defendant did not actually use an electronic communications

device in connection with his October 18 and 20 criminal activities, the electronics search

condition satisfies the third Lent prong (relation to future criminality) because it is likely

defendant will use an electronic communications device or social media to coordinate

with Carlos (or others) in Los Angeles if he engages in any future drug trafficking

activities.

Having concluded the electronics search condition is reasonable under Lent, we

also conclude it is suitably tailored in light of the substantial protective and rehabilitative

concerns demonstrated by the record. We find our court's reasoning in Nachbar

persuasive. "As a defendant who has pleaded guilty to a felony and accepted probation in

lieu of additional punishment, defendant has a diminished expectation of privacy as

compared to law-abiding citizens or those subject to searches incident to arrest."

(Nachbar, supra, 3 Cal.App.5th at p. 1129.)

By contrast, the public has a substantial interest in monitoring defendant. He was

caught transporting (among other drugs) more than 3,600 doses of methamphetamine

with a street value between $111,000 and $222,000. The probation officer opined this

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"would potentially have had a significant impact on the community if [defendant] had

completed his mission."15 Defendant admitted to a prolonged and extensive history of

trafficking activity. Indeed, despite his October 18 arrest and release on bail, he was

arrested a mere two days later transporting 342 dosage units of methamphetamine with an

estimated street value between approximately $10,000 and $20,000. (See, e.g., Nachbar,

supra, 3 Cal.App.5th at p. 1130 ["Defendant reoffended . . . within a matter of mere

months, while already on probation."].) Given the pervasiveness of electronic

communications devices in modern society, and the unquestionable reality that defendant

was using them to communicate with Carlos to coordinate drug trafficking,16 we

conclude the electronics search condition is suitably tailored under the circumstances.

15 Defendant asserts "he isn't a [dangerous] gang member" like the defendant in
People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175, which upheld an electronics
search condition where the defendant was "a criminal street gang member who
promote[d] his gang on social media, ma[de] violent threats in person to armed police
officers, and physically resist[ed] armed police officers." True, but given the quantities
of drugs defendant was transporting, he nonetheless poses a significant threat to public
safety.

16 Defendant's failure to object below to the electronics search condition prevented
the development of a more comprehensive record regarding his use of electronic
communications devices or social media in connection with his criminal activities.
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 DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

MCCONNELL, P. J.

AARON, J.

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