Opinion
Review Granted July 15, 1993.
Review Transferred to the Court of Appeal Nov. 23, 1994.
Review Granted Previously published at: 29 Cal.App.4th 945, 19 Cal.App.4th 945, 14 Cal.App.4th 1151
COUNSEL
[17 Cal.Rptr.2d 924]Geri Lynn Green, San Francisco, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Roger E. Venturi and Gregory W. Baugher, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.
OPINION
VARTABEDIAN, Associate Justice.
This appeal from a Welfare and Institutions Code section 602 judgment challenges the juvenile court's denial of appellant Michael T.'s suppression motion. As will be discussed, we vacate the order of denial and remand for further proceedings. (See People v. Maestas (1988) 204 Cal.App.3d 1208, 1221, 252 Cal.Rptr. 739.) FACTS AND PROCEDURAL HISTORY
At 11:30 p.m. on February 9, 1992, appellant, a Youth Authority parolee, and two unidentified persons were in the parking lot of a Fresno apartment building.
Police were dispatched to the apartment building because of a call reporting that shots had been fired. As Fresno Police Officer Daly entered the parking lot, appellant and the other two persons fled. Appellant ran into the apartment building, and Daly caught up with appellant outside an apartment door.
Daly detained appellant and conducted a patdown for weapons. As appellant faced a wall, Daly held him in place with one hand, while patting down appellant with the other hand. Daly felt two audio cassettes in an outer pocket of appellant's coat. He felt a hard object behind the cassettes, in an inner pocket of the coat. He thought the object might be a small pistol or a zip gun.
Daly reached around appellant and into the inner pocket. He felt a bandanna or tissues and the hard object. He pulled out the object. Because his attention was focused on appellant, he took but a quick glance at the object, immediately handing it to Officer Sauceda, who was by this time standing behind him. It was only after Daly had pulled the object out that he realized it was a pill bottle. Appellant remarked, " It's just wax." The officers did not know appellant was on parole.
The bottle contained rock cocaine, not wax. Appellant was arrested. The Welfare and Institutions Code section 602 petition charged him with possession of cocaine base for sale in violation of Penal Code section 11351.5.
Appellant moved to suppress the cocaine on the basis it was the product of an unreasonable search and seizure. At the hearing, the prosecutor asserted two justifications for the search and seizure. First, he argued appellant was on California Youth Authority (Youth Authority) parole and had no standing to challenge the search and seizure. Second, the search was justified as part of the patdown and the seizure resulted from lawful plain-view observation of the cocaine after it was removed from appellant's pocket. While testifying at the suppression hearing, Officer Daly acknowledged that at the time he handed the bottle to Officer Sauceda he knew the bottle was not a weapon, but he did not look closely at its contents. On cross-examination, appellant's counsel asked Daly to look at the pill bottle and [17 Cal.Rptr.2d 925] describe what he saw. Daly said a label covered one side of the bottle, and on the other side he could see irregular-shaped objects through the orange, transparent bottle.
At the beginning of the suppression hearing, the parties made the following statements:
At this point in the hearing, the prosecutor indicated he intended to call Officer Sauceda to testify he saw the bottle contained rock cocaine before he opened it. However, Sauceda had been called to another court to testify. Accordingly, at the court's invitation, the parties argued the parole search issue, and the " plain view" evidence was never presented.
The juvenile court concluded that " C.Y.A. parolees would fall under the reasoning in In re Marcellus [ In re Marcellus L. (1991) 229 Cal.App.3d 134, 279 Cal.Rptr. 901] as opposed to falling under the reasoning of In re Martinez [ In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734] and People v. Burgener [ (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251], and that C.Y.A. parolees as well as probationers under the Juvenile Court law are subject to search and seizure irrespective of whether [the] law enforcement officer has knowledge of the fact that the person is a parolee or is on probation. [¶ ] So, I'm going to basically find that the search in this case was a valid one based on my findings."
After concluding the search was valid because appellant was on parole, however, the court continued on, as follows:
" If the case was submitted to me at this point on the issue of whether or not Officer Daly had sufficient grounds to conduct a search, unless there's other evidence, I would find that there was a valid search in view of the fact that the officer was responding to a dispatch that indicated that shots were being fired....
" The fact that these minors ran was sufficient cause for the officer to continue to investigate and he initiated a stop and a detention. And for his own safety, because of the dispatch a shot's been fired, it's reasonable that any police officer would conduct a pat down search for his own safety as well as the co-officers.
" .
" In this case, the officer indicated that he patted the outer garment or the jacket and found or felt some hard object. In this case, he was able, through his gloves, to distinguish that the object was a cassette tape or tapes. And he was also able to discern that there was some other object in the clothing.
" He had to reach into the pocket, unzip it and reach down into the pocket, felt another object which was somewhat obstructed by cloth or bandanna, but it was a hard object. And it wasn't until after the officer was able to pull it out that he was finally able to determine that it was not, in fact, a weapon but was a plastic bottle.
" So, I feel the officer's state of mind was such that he was acting within his reasonable powers as an officer. Unless there was other facts to contest these set of facts, then I would have found that the search was valid on— on the state of the law. So, I'm denying the motion to suppress. It's an issue for appeal."
After the court denied the suppression motion, appellant admitted the petition. The court committed appellant to the Youth Authority for a term not to exceed five years.
DISCUSSION
Appellant contends his suppression motion should have been granted. He argues the search exceeded the scope of a weapons patdown and his parole condition did not deprive him of standing to assert his Fourth Amendment protection against unreasonable search and seizure. Respondent concedes the present record does not support the view that the cocaine was seized in plain view as a part of the patdown, in the absence of testimony from Officer Sauceda. Respondent argues, nonetheless, that appellant had no reasonable expectation of privacy as a result of his Youth Authority parole, and hence no standing to seek suppression of the cocaine.
[17 Cal.Rptr.2d 926] The parties agree that under existing precedent a juvenile probationer who is subject to a search condition may be searched at any time by police for any legitimate law enforcement purpose. (See In re Binh L. (1992) 5 Cal.App.4th 194, 6 Cal.Rptr.2d 678; In re Marcellus L. (1991) 229 Cal.App.3d 134, 279 Cal.Rptr. 901.) They also agree that an adult parolee subject to a search condition may not be searched by an officer who has no knowledge of the search condition, unless the officer's conduct is reasonable under ordinary Fourth Amendment standards. (See In re Martinez (1970) 1 Cal.3d 641, 646, 83 Cal.Rptr. 382, 463 P.2d 734.) Finally, the parties agree there is no published case addressing the present circumstance of a Youth Authority parolee. The parties disagree whether Youth Authority parolees are, for the instant purposes, analogous to juvenile probationers or to adult parolees.
Respondent argues that one critical factor distinguishes Youth Authority parole from adult parole: " In contrast to adult parole, which is now virtually automatic and may not be declined, parole from the Youth Authority depends upon the juvenile's readiness for parole as determined by the Youth Authority Parole Board."
We find an insurmountable fallacy in this argument in that In re Martinez, supra, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734 was decided under the Indeterminate Sentencing Act. Under that law, parole was discretionary, parole was consensual, and parole conditions were tailored to the individual. (See 2 Cal.Criminal Law Practice (Cont.Ed.Bar 1969) § 23.77, pp. 526-527; id. (1980 Supp.) § 23.77B, pp. 516-519; People v. Montenegro (1985) 173 Cal.App.3d 983, 987-988, 219 Cal.Rptr. 331; People v. Icenogle (1977) 71 Cal.App.3d 576, 583-584, 139 Cal.Rptr. 637.) In short, adult parole at the time of the Martinez decision had the same features as respondent now claims distinguish Youth Authority parole. And under those circumstances, In re Martinez held that a search could be justified as being a parole search only if the searching peace officer knew the suspect was on parole. We conclude that In re Martinez is controlling, and that the trial court erred in denying the suppression motion on the basis of the parole condition.
The record in this case is particularly inadequate to support respondent's assertions about Youth Authority parole. We assume a search-and-seizure condition is standard in every Youth Authority parole. (See Cal.Code Regs., tit. 15, §§ 4845-4848.) However, such search authority is very narrowly circumscribed. " A parole agent, or any peace officer designated by a Youth Authority parole agent for a specific purpose, may search the person, property or residence of a ward as a necessary adjunct to parole supervision and surveillance." (Cal.Code Regs., tit. 15, § 4846.) There is no indication in the present record whether some additional power has been invoked by the Youth Authority to establish the broader parole condition contained in the parties' stipulation, or whether the parties were simply misinformed in their stipulation.
Nevertheless, the court's erroneous ruling prevented the prosecution from putting on its " plain view" evidence in the form of testimony from Officer Sauceda. Accordingly, we vacate the judgment and remand this matter for a limited hearing on the plain view issue, with further proceedings dependent upon the result of that hearing.
Because the facts essential for consideration of the " plain view" issue are not fully developed in the record now before us, we do not determine whether the bottle had already been impermissibly " seized" by Officer Daly before it came into Officer Sauceda's plain view. (Compare Soldal v. Cook County (1992) 506 U.S. 56, ---- - ----, 113 S.Ct. 538, 543-546, 121 L.Ed.2d 450.)
[17 Cal.Rptr.2d 927] DISPOSITION
The judgment is vacated and this matter is remanded for a further hearing limited to the issue of whether the search of the pill bottle was justified by Officer Sauceda's observations as the bottle was handed to him. If so, the juvenile court shall reinstate the judgment. If not, the suppression motion shall be granted, with further proceedings as may then be appropriate.
BEST, P.J., and STONE (Wm.A.), J., concur.
" MR. GARRISON [the prosecutor]: First, I'd like— I believe the parties are willing to stipulate that on February of— 9th of 1992, the minor, Michael [T.], was on parole from the California Youth Authority. And one of his conditions of parole was that he submit his person to search and seizure by any peace officer with or without a warrant.
" MR. GINGO [minor's counsel]: So stipulated.
" THE COURT: Very well, I'll accept that stipulation."
During the course of the hearing there was no further elaboration on the imposition or content of the search condition.
Even if the parole condition were as stipulated, and even if such a broad parole condition were permissible under current authority, it would not change the result in this case. In People v. Icenogle, supra, 71 Cal.App.3d at page 581, 139 Cal.Rptr. 637, the adult parole search condition was substantially the same as the stipulated condition in the present case. And even though the court there upheld a search of the parolee's apartment by police officers, it is clear that the search was lawful only because the officers knew the suspect was on parole. (Id. at pp. 584-585, 139 Cal.Rptr. 637.)
The broader condition to which the parties stipulated would, at most, expand the class of persons who could undertake a search of appellant's person for purposes of supervising his parole. (See Icenogle, supra, at pp. 584-585, 139 Cal.Rptr. 637.)