Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD210508 Theodore M. Weathers, Judge.
McDONALD, Acting P. J.
After the trial court denied Steven Brammer's Penal Code section 1538.5 motion to suppress evidence, he entered a guilty plea to one count of receiving stolen property (§ 496, subd. (a)). In accordance with the plea bargain, he was sentenced to the upper term of three years in prison. Brammer challenges the court's denial of his motion to suppress evidence. He contends the court erred because police did not have legal authority to impound his truck and perform an inventory search in violation of his Fourth Amendment rights. We affirm the judgment.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2007, around 4:20 a.m., a security guard stopped San Diego Police Detective Anthony R. Bryant. The security guard suspected a truck parked at the end of the street was stolen. Bryant investigated the truck ownership information, and determined the truck was registered to Brammer. During Bryant's truck registration identification process, the security guard lifted a tarp laid over the bed of the truck and saw two large spools of copper wire. The security guard and Bryant suspected the copper wire was stolen. After Bryant determined Brammer was the registered owner of the truck, the second officer on the scene, David Quan, performed a criminal research check on Brammer. Quan determined Brammer was on parole at that time. Anticipating Brammer would return, officers set up a surveillance of the truck. Brammer did not return to his truck during Bryant's nearly three-hour surveillance. Bryant then impounded the truck, suspecting it contained stolen property and knowing Brammer was subject to warrantless searches and seizures because of his status as a parolee.
Detective Maura Parga performed an inventory search of the truck. She found three to four commercial size spools of copper wiring with "AT&T" labels and 29 receipts totaling $5,960.72 for copper recycling. AT&T officials confirmed Brammer never worked for AT&T and there was no reason he should have spools of AT&T copper wire. AT&T representatives later identified the copper spools as those from their yard in El Cajon.
On January 24, 2008, Brammer filed a section 1538.5 motion to suppress the evidence obtained from the search of his truck, contending the police did not have probable cause to impound his truck and conduct an inventory search. During the motion hearing, detectives Bryant and Parga testified on behalf of the People. The court denied Brammer's motion to suppress evidence. On February 25, 2008, Brammer pleaded guilty to one count of receiving stolen property. Brammer appeals the ruling of the trial court, contending his constitutional rights were violated by impoundment of his truck, and in the absence of the impoundment the People could not establish the copper wire was stolen.
DISCUSSION
Pursuant to the California Constitution, article I, section 28, subdivision (d), we review Brammer's challenge to the admissibility of evidence obtained by the police inventory search under federal constitutional standards. (People v. Bradford (1997) 15 Cal.4th 1229, 1291.) The Fourth Amendment of the United States Constitution protects the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures without a warrant. A warrantless search ordinarily requires a degree of probability that a crime is being or has been committed, a concept embodied in the term "probable cause." (U.S. v. Knights (2001) 534 U.S. 112, 121.) A warrantless search without probable cause is unreasonable under the Fourth Amendment unless the circumstances are within one of several exceptions. (Katz v. United States (1967) 389 U.S. 347, 357.) One established exception to warrantless searches without probable cause is a search conducted pursuant to consent. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.)
The authority of the Fourth Amendment prohibition against unreasonable search and seizure and the exclusion of evidence so obtained applies exclusively to governmental action and does not apply to private citizen searches. (People v. North (1981) 29 Cal.3d 509, 514.) The exclusionary rule applies only to a private citizen who acts as an agent of the police or participates in a joint operation with law enforcement authorities who either request the illegal search or knowingly allow it to take place without protecting the third party's rights. (Id. at p. 515.) The rule does not exclude evidence obtained by a citizen in cooperation with the criminal police investigation. (Id. at p. 516.) The California Supreme court previously stated the Fourth Amendment's purpose to deter unconstitutional searches and seizures will not be served by the exclusion of evidence obtained by unlawful citizen searches. Evidence obtained by an illegal search by a private citizen without the knowledge, approval, consent, or direction of law enforcement personnel does not deter improper law enforcement practices and should not be excluded. (Ibid.) In the present case, the security guard did not act as an agent or joint operator with law enforcement authorities when he removed the canvas from the bed of the truck. Without Bryant's knowledge, approval, consent, or direction the security guard discovered the copper wire in the bed of Brammer's truck and informed Bryant. Bryant directed the security guard to "put down the canvas" and "return [it] to the rear of the truck." The information obtained privately without police knowledge, approval, consent or direction is admissible and should not be excluded against Brammer.
Law enforcement's additional invasion based on the private search is tested by the scope of the prior private search. (United States v. Jacobsen (1984) 466 U.S. 109, 116.) When a private person reveals information to another, he or she assumes the risk that the confidant will reveal that information to the authorities. (Id. at p. 117.) The court in Jacobsen held the FBI's subsequent viewing of previously privately ascertained videos did not change the nature of the search and therefore did not require a warrant. (Id. at p. 116.) After the private person's findings were revealed and the frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of no-longer-private information. (Id. at p. 117.) Here, after the private security guard discovered the spools of copper, Brammer's expectation of privacy was diminished and discovery of the copper was not the result of an illegal search. Thereafter, before a further search was conducted by Bryant and the truck impounded, the officers learned that Brammer was a parolee subject to a Fourth Amendment waiver.
In California, all parolees consent in advance to a warrantless search in exchange for the opportunity to avoid extended physical detention. (See Cal. Code. Regs., tit. 15, § 2511(b)(1), (4); People v. Lewis (1999) 74 Cal.App.4th 662, 668.) The purpose of a search condition is to aid rehabilitation of convicted criminals, deter the commission of crimes, and protect the public. (People v. Woods (1999) 21 Cal.4th 668, 686, citing People v. Reyes (1998) 19 Cal.4th 743, 753.) The government's interests therefore outweigh the parolee's privacy interest. (People v. Lewis, supra, 74 Cal.App.4th at p. 669.) As such, the parolee enjoys a diminished expectation of privacy and is subject to government monitoring. (Woods, at p. 686.)
The government may, without a warrant, search and seize Brammer and his possessions because of his parole waiver. In In re Tyrell J., the court held that a minor probationer with a search waiver condition was subject to a warrantless search by an officer without the necessity of probable cause to justify the search. (In re Tyrell J. (1994) 8 Cal.4th 68, 77-78, overruled on other grounds by In re Jamie P. (2006) 40 Cal.4th 128, 133-134, 139.) The court in People v. Reyes, supra, 19 Cal.4th at pp. 753-754 extended the court's reasoning in Tyrell J. to paroled adults. Here, Brammer was on parole from the California correctional system on November 26, 2007, and therefore enjoyed a diminished expectation of privacy from full Fourth Amendment protection. The continued search and seizure of Brammer's truck after the officers were aware of his parolee status was a permissible application of the police officer's authority under Tyrell J. and Reyes.
Our holding that the search was not illegal and reasonable suspicion of the commission of a crime was not required to conduct a warrantless search or seizure of a parolee does not mean, however, parolees have no protections. The parolee is still protected from constitutionally unreasonable searches or seizures. (People v. Clower (1993) 16 Cal.App.4th 1737, 1741-1742.) A parole search or seizure could become unconstitutional if it is arbitrary, capricious, or harassing. (People v. Reyes, supra, 19 Cal.4th at p. 752.) If the motivation for the search is unrelated to rehabilitative and reformative purposes or legitimate law enforcement purposes, the search is "arbitrary." (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.) A search by law enforcement officers at their whim is a capricious form of harassment. (Clower, at pp. 1741-1742.)
In this case, Brammer's Fourth Amendment protections were not violated by an arbitrary, capricious or harassing search and seizure. The seizure was motivated by legitimate law enforcement purposes because officers believed the truck contained stolen property. The record does not show the seizure was done out of personal animosity or harassment towards Brammer. The vehicle was seized around 7:00 a.m. and, although early, it is not an unreasonably early hour of the day. The search was not arbitrary, capricious or harassing, and therefore was not unconstitutional.
Brammer contends that although the initial search of his truck may have been permissible because of his parole status, the officers nevertheless needed probable cause to impound the truck. However, the search did not become unreasonable as a result of the length of time the police possessed the truck. Immobilization of a vehicle is a minimal intrusion on a person's constitutional rights equal to that of an immediate search. (See People v. Laursen (1972) 8 Cal.3d 192, 201-02, citing People v. McKinnon (1972) 7 Cal.3d 899 and Chambers v. Maroney (1970) 399 U.S. 42.) Vehicle impoundment is of no greater constitutional significance than immobilization because there is no greater inconvenience, invasion, or infringement of the defendant's rights by the fact the vehicle was removed to an impound garage. (Laursen, at p. 202.) It follows that the three-day duration for Brammer's truck impound was not an unconstitutionally unreasonable amount of time. Finding property suspected of being stolen in the truck bed allowed the police to search and seize the truck at the scene or at the impound lot. Because the police retained lawful possession of the vehicle at impound to perform an inventory search, the duration of time for which the vehicle was impounded was not unconstitutionally unreasonable.
The seizure was also not unreasonable simply because the police did not fully search the truck before impound. A seizure is not unreasonable because the police do not remove incriminating articles at the first opportunity. (People v. Harris (1967) 67 Cal.2d 866, 871-72.) Because officers could have taken possession of evidence at the scene during an initial search, it does not mean that because they did so at a different time and place the entire inventory search was unreasonable. (Id. at p. 872.) An officer retains discretion to impound a vehicle and may do so at different times to ensure officer safety and containment of evidence in a readily moveable vehicle. (People v. Green (1996) 46 Cal.App.4th 367, 372-374.) Bryant reasonably suspected the truck contained stolen copper wire and impounded the truck to further the investigation of the wire. The use of police discretion in the location of the search does not stretch beyond the bounds of reasonableness. Here, officers acted with a legitimate purpose and in a reasonable manner; therefore, the search and seizure of Brammer's truck did not violate his right to privacy under the Fourth Amendment.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., AARON, J.