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
2
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.
4
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.
5
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.
11
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."].)
12
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,
13
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.)
22
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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