Opinion
A146384
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN HILLIARE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC083554)
John Hilliare pleaded no contest to felony possession of methamphetamine for sale (Health & Saf. Code, § 11378) and was placed on probation. Hilliare contends the trial court erroneously denied his motion to suppress evidence obtained from a warrantless search of his vehicle (Pen. Code, § 1538.5) because the People did not meet their burden to justify the search, either as a search incident to arrest or under the good faith exception to the exclusionary rule. In the alternative, Hilliare challenges two of his probation conditions as vague. We agree the trial court erred in denying the motion to suppress. We reverse the judgment and remand with directions for further proceedings.
Undesignated statutory references are to the Penal Code.
Hilliare also filed a petition for writ of habeas corpus (No. A149567). Our colleagues in Division Four deferred the question of whether to issue an order to show cause pending this appeal. By separate order, we deny the habeas petition as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 2015, the San Mateo County District Attorney filed an information charging Hilliare with possession of methamphetamine for sale (Health & Saf. Code, § 11378) and transportation of methamphetamine (id., § 11379, subd. (a)). Hilliare initially pleaded "not guilty" to the charges. He filed a motion to suppress, arguing "[his person], the car, and [his] passenger were subjected to a warrantless search, revealing purported drugs, money and a phone," and the prosecution bore the burden of proving the search's legality. The People opposed the motion, arguing (1) the warrantless search of the car's interior was lawful as a search incident to the passenger's arrest, and (2) the good faith exception to the exclusionary rule applied because the searching officer had a good faith, albeit erroneous, belief that Hilliare was subject to warrantless search as a condition of probation. The People's opposition brief, however, did not set out the legal requirements for a valid probation search. At the hearing on the motion, the parties stipulated the searches were conducted without a warrant.
The facts are taken primarily from the testimony received at the suppression hearing. On May 16, 2015, San Mateo Police Department (SMPD) Officers Scott Valencia and Phoenix O'Rourke were conducting undercover surveillance at a convenience store in San Mateo. Valencia testified that, around 10:30 p.m., he noticed two people sitting in a car who did not appear to be entering the store or leaving the store's parking lot. Valencia requested dispatch conduct a "DMV inquiry" of the vehicle's license plate and was informed the car was registered to Hilliare. Valencia then requested dispatch conduct a "persons inquiry" and was informed Hilliare was on "active San Mateo County probation," for violation of Health and Safety Code section 11377. Valencia did not receive (or request) any further information at that time.
In the statement of facts section of the respondent's brief, the People rely on facts set forth in their trial court brief, but not established in the record. We disregard this statement of facts and remind the Attorney General that matters outside the record cannot be considered on appeal. (See Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.)
SMPD Senior Dispatcher Amy White described the California Law Enforcement Teletype System (CLETS) as an electronic system used by law enforcement to relay information to officers in the field concerning outstanding warrants, missing persons, stolen vehicles, and other data obtained, entered, and updated by a variety of personnel from different agencies. White reviewed the CLETS record that matched Hilliare's name on May 16, 2015, and listened to the audio recording of the computer-aided dispatch log. The CLETS record was admitted into evidence. Although White was unsure if she was the dispatcher responsible for the call in question, she believed the dispatcher reviewing the record relayed to the field officer that Hilliare was on county probation, out of San Mateo County, for violation of Health and Safety Code section 11377, subdivision (a).
When Hilliare's car exited the parking lot, Valencia and O'Rourke followed in an unmarked car. Observing Hilliare's license plate light was not working, Valencia conducted a traffic enforcement stop. When asked if he was still on probation, Hilliare told Valencia "he didn't believe he was." After obtaining Hilliare's identification, Valencia requested dispatch to confirm the identification card number on the CLETS hit "was in fact the same as the number on [Hilliare's identification] card." After the dispatcher confirmed a match between the two numbers, Valencia directed Hilliare to step out of the vehicle. Valencia conducted a probation search of his person, which did not reveal anything noteworthy. Valencia searched the vehicle because he believed Hilliare was on probation with a search condition. Valencia found "some items" and placed Hilliare under arrest.
The unmarked police car was not equipped with a computer.
The People did not present evidence at the suppression hearing regarding the results of the search. At the preliminary hearing, Valencia testified O'Rourke searched the passenger side of the car, where O'Rourke found a fanny pack on the floorboard. Valencia opened the fanny pack, which contained methamphetamine, a digital scale, and "well over 100" small Ziplock bags. Inside Hilliare's wallet, Valencia found $69. Another container of methamphetamine was found inside a duffel bag in the trunk of the car. Valencia also found a cell phone in the car, between the center console and the driver's seat, which Hilliare identified as his. Valencia searched Hilliare's phone and found a series of texts "indicative of . . . selling narcotics." When Hilliare was asked if the methamphetamine belonged to him, Hilliare "claimed ownership of all the methamphetamine" and told Valencia he was in San Mateo "to sell to [someone with whom he had been] speaking . . . on the phone."
Before the vehicle search and while Valencia was talking to Hilliare, O'Rourke contacted a female in the front passenger seat. O'Rourke did not testify at the suppression hearing. However, Valencia testified O'Rourke noticed "symptomology [sic] of being under the influence prior to even having [the female passenger] exit the vehicle." O'Rourke removed her from the car and eventually placed her under arrest. "The initial charge was being under the influence of a controlled substance," but she was subsequently arrested for possession of methamphetamine as well. Valencia could not recall specifically when the passenger was placed under arrest.
After booking Hilliare at the San Mateo County jail, Valencia conducted his own search of the CLETS database. Hilliare's name generated an "active hit" for county probation. However, Valencia noticed the expiration date for Hilliare's probation was "odd in the sense it was 60 years probation for a possession charge." At the suppression hearing, the parties stipulated Hilliare was not, in fact, on probation at the time of the search and arrest. Valencia testified he relied on the information in the CLETS records to be accurate and had no previous experience with inaccuracies in the county probation records.
The CLETS record indicated Hilliare's probation commenced on December 4, 2006, and expired on June 4, 2066. White indicated a dispatcher would not recognize the significance of the probation end date because they are not trained to recognize typical sentences and "don't look at the begin and discharge date when we're looking at probation. We . . . assume that this information—if it's in the system—is current." She further testified that, generally, a dispatcher would only inform an officer of an individual's probation status, not its start and end dates, unless specifically asked for that information.
Similarly, White stated dispatchers rely on the information contained in CLETS to be reliable and would not cross reference any other system or database for a probation "hit." Entries for prior periods of probation are not contained within CLETS. Thus, no entry should appear if an individual is not currently on probation. The CLETS record provided phone numbers to reach a probation officer at any time of day. White stated she would only contact a probation officer when an officer requested a "probation hold."
White had been told, or told others during training sessions, that the probation portion of the CLETS database occasionally contained incorrect information. She described an occasion where the CLETS information concerning postrelease community supervision (PRCS) was incorrect in that "[w]hen that originally was instated, it was conveyed to the police departments that everyone who was on [PRCS] was searchable; however, this became not the case so there were certain people who were on what was stated as PRCS that were in fact not searchable. So . . . the wording on the system was changed so that it now states 'search and seizure PRCS.' " She also recalled delays in updating CLETS to reflect county jail release dates and sex offender registration. In those circumstances, dispatchers would either check a separate database or contact another state agency to verify information in the CLETS record.
Aside from this case, White had not experienced a situation where CLETS erroneously reported a person was on probation. In her experience, there was generally no lag time between the end of probation and the removal of the record from CLETS. She testified on direct examination that the "court clerk" enters probation information appearing in CLETS. On cross-examination, she equivocated, stating she was unsure if it was the superior court clerk's office or the probation department that maintained probation information in CLETS. SMPD does not input the information.
After hearing the evidence and argument, the Honorable Barbara J. Mallach denied the suppression motion, concluding the exclusionary rule did not apply. Judge Mallach impliedly found the erroneous information was provided as a result of a court clerical error, at most SMPD acted negligently, and systemic errors or reckless disregard of constitutional requirements were not demonstrated.
Thereafter, Hilliare waived his constitutional rights and pleaded no contest to the possession for sale charge. After accepting the plea, the Honorable Leland Davis III found Hilliare guilty of that charge, dismissed the remaining count, suspended imposition of sentence, and placed Hilliare on probation for three years. Hilliare filed a timely notice of appeal. He did not seek or file a certificate of probable cause; his notice of appeal indicates he challenges only the denial of his motion to suppress (§ 1538.5, subd. (m)).
II. DISCUSSION
Hilliare concedes he was lawfully subject to a traffic stop. He maintains, however, the trial court erroneously denied his motion to suppress the fruits of the warrantless vehicle search because the People did not meet their burden to show either a warrant exception or application of the good faith exception to the exclusionary rule. In particular, he contends a police officer's belief that an individual is on probation is not sufficient alone to inform the officer of a search condition and, thus, does not justify a warrantless search. Hilliare also contends, in the event any argument in support of his motion to suppress was forfeited, his trial counsel was ineffective in failing to present all meritorious arguments. Finally, he insists we must, at a minimum, modify certain probation conditions to add an explicit scienter requirement. We agree the trial court erred in denying Hilliare's motion to suppress, and we therefore need not address his other arguments.
"Pursuant to article I, section 28, of the California Constitution, a trial court may exclude evidence under . . . section 1538.5 only if exclusion is mandated by the federal Constitution." (People v. Banks (1993) 6 Cal.4th 926, 934.) "The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 365, italics omitted.) "A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the 'specifically established and well-delineated exceptions.' " (People v. Woods (1999) 21 Cal.4th 668, 674.) A search incident to a lawful arrest is one such exception. (Arizona v. Gant (2009) 556 U.S. 332, 338.) Another exception exists for probation searches. (People v. Robles (2000) 23 Cal.4th 789, 795.) By accepting a search and seizure condition, a probationer gives advance consent to a search, and a police officer may conduct a reasonable search even without a particularized suspicion of criminal activity. (People v. Bravo (1987) 43 Cal.3d 600, 610 (Bravo); Myers v. Superior Court (2004) 124 Cal.App.4th 1247, 1252.) However, "the exception is inapplicable if police are unaware of the probation search condition at the time of a warrantless search." (People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1184; accord, Myers, at p. 1254 [adult probationer]; In re Jaime P. (2006) 40 Cal.4th 128, 136 [juvenile probationer].) "[W]hen police are unaware of the condition, they cannot know that a probationer has given advance consent and therefore cannot claim to be conducting a probation or consent search." (Hoeninghaus, at p. 1194.)
When a defendant files a motion to suppress pursuant to section 1538.5, the People have "the burden of proving that the warrantless search or seizure was reasonable" (People v. Williams (1999) 20 Cal.4th 119, 130 (Williams)), and alternatively, " 'the burden . . . to prove that exclusion of the evidence is not necessary because of [the good faith] exception.' " (People v. Willis (2002) 28 Cal.4th 22, 36.) " ' "In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review." [Citation.] On appeal we consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision.' " (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at pp. 364-365, italics omitted.) When "the facts are basically undisputed, we independently review the decision, applying federal law, as well as state law where it does not conflict with federal law, to evaluate the issues involved." (People v. Downing (1995) 33 Cal.App.4th 1641, 1650, fn. omitted.)
The trial court upheld the warrantless search of Hilliare's car on alternative bases: as a search incident to a lawful arrest or under the good faith exception to the exclusionary rule. We begin by addressing the exception to the warrant requirement for a search incident to arrest. A. Search Incident to Arrest
The People contend, in a very brief and unsupported argument, the trial court properly denied the motion to suppress because the search of the passenger side of Hilliare's car was a valid search incident to the passenger's arrest. Hilliare argues the evidence admitted at the suppression hearing was insufficient to show the officers had probable cause—prior to the vehicle search—to arrest the passenger for being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) or any other crime.
An officer is permitted "to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest." (Arizona v. Gant, supra, 556 U.S. at p. 346.) A search incident to arrest must be spatially and temporally connected to the arrest. (United States v. Camou (9th Cir. 2014) 773 F.3d 932, 937.) However, "[w]hen a custodial arrest is made, and that arrest is supported by independent probable cause, a search incident to that custodial arrest may be permitted, even though the formalities of the arrest follow the search." (People v. Macabeo (2016) 1 Cal.5th 1206, 1218, italics added.) " '[P]robable cause' . . . is defined as ' "a reasonable ground for belief of guilt" ' that is 'particularized with respect to the person to be searched or seized.' " (People v. Troyer (2011) 51 Cal.4th 599, 606, quoting Maryland v. Pringle (2003) 540 U.S. 366, 371.) " 'Probable cause exists when the facts known to the arresting officer would persuade someone of "reasonable caution" that the person to be arrested has committed a crime.' " (People v. Scott (2011) 52 Cal.4th 452, 474, italics added.)
Here, Valencia did not interact with the passenger, and O'Rourke did not testify at the suppression hearing (or the preliminary hearing). Valencia's testimony was conclusory and vague regarding O'Rourke's interactions with the passenger. Valencia could not recall when the passenger was arrested in temporal relation to the search; he could not recall if the search was conducted before or after her arrest. Most importantly, the full extent of Valencia's testimony supporting probable cause was that O'Rourke noticed "symptomology [sic] of being under the influence prior to even having [the passenger] exit the vehicle." Valencia did not state O'Rourke observed any particular indicia of controlled substance intoxication. Substantial evidence does not support the trial court's implicit finding the passenger's arrest was supported by probable cause. The People's argument that the warrantless vehicle search can be upheld as a search incident to the passenger's arrest is unpersuasive. B. Good Faith Exception to Exclusionary Rule
The People's claim is, in any event, forfeited because it is wholly unsupported by reasoned legal analysis or citations to the record. (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)
Assuming the search incident to arrest exception does not apply, the People implicitly concede the search of Hilliare's car violated the Fourth Amendment. The People argue the trial court properly denied Hilliare's suppression motion under the good faith exception to the exclusionary rule. Hilliare's appellate counsel contends Valencia could not show he acted in good faith reliance on the CLETS information without determining, not just that Hilliare was on probation, but whether Hilliare was subject to a search condition broad enough to reasonably justify searching Hilliare's car and phone.
"The Fourth Amendment protects the right to be free from 'unreasonable searches and seizures,' but it is silent about how this right is to be enforced. To supplement the bare text, [the United States Supreme Court] created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation." (Davis v. United States (2011) 564 U.S. 229, 231-232 (Davis).) The United States Supreme Court has made clear that exclusion is not a necessary consequence of a Fourth Amendment violation. (Herring v. United States 555 U.S. 135, 141 (Herring).) Rather, the exclusionary rule "operates as 'a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.' " (United States v. Leon (1984) 468 U.S. 897, 906.) "Where suppression fails to yield 'appreciable deterrence,' exclusion is 'clearly . . . unwarranted.' " (Davis, at p. 237.)
"Suppression of evidence . . . has always been our last resort, not our first impulse." (Hudson v. Michigan (2006) 547 U.S. 586, 591.) "Real deterrent value is a 'necessary condition for exclusion,' but it is not 'a sufficient' one. [Citation.] The analysis must also account for the 'substantial social costs' generated by the rule. [Citation.] Exclusion exacts a heavy toll on both the judicial system and society at large. [Citation.] It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. [Citation.] And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. . . . For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs." (Davis, supra, 564 U.S. at p. 237.) "[T]he deterrence benefits of exclusion 'var[y] with the culpability of the law enforcement conduct' at issue. [Citation.] When the police exhibit 'deliberate,' 'reckless,' or 'grossly negligent' disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. [Citation.] But when the police act with an objectively 'reasonable good faith belief' that their conduct is lawful, [citation], or when their conduct involves only simple, 'isolated' negligence, [citation], the ' "deterrence rationale loses much of its force," ' and exclusion cannot 'pay its way.' " (Davis, at p. 238.)
The United States Supreme Court has applied the good faith exception in cases where the police conducted searches in compliance with then binding precedent that was later overruled. (Davis, supra, 564 U.S. at pp. 232, 241; see, e.g., id. at p. 239 [officer relied on then binding "bright-line rule authorizing the search of a vehicle's passenger compartment incident to a recent occupant's arrest," which was later held unconstitutional by Arizona v. Gant]; Illinois v. Krull (1987) 480 U.S. 340, 358-360 [extending good faith exception to searches conducted in reasonable reliance on subsequently invalidated statutes].) "Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, . . . searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule." (Davis, at p. 232.) "The high court has also applied the good faith exception when officers have acted in reasonable reliance on information that subsequently is determined to be inaccurate." (People v. Macabeo, supra, 1 Cal.5th at p. 1222; accord, Arizona v. Evans (1995) 514 U.S. 1, 16 ["a categorical exception" to the exclusionary rule applies to clerical errors by court employees].)
Before Herring, supra, 555 U.S. 135, the good faith exception did not apply to negligent conduct by law enforcement officials, such as conducting a search when the officials in question should have known a search was unconstitutional. (See, e.g., People v. Willis, supra, 28 Cal.4th at p. 48.) After Herring, the good faith exception remains applicable "when police mistakes are the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements." (Herring, at p. 147.) In other words, if the error made by the officer was merely negligent, the extreme sanction of suppression is not appropriate. However, the exclusionary rule continues to serve "to deter deliberate, reckless, or grossly negligent [law enforcement] conduct, or in some circumstances recurring or systemic negligence." (Id. at p. 144.)
In Herring, supra, 555 U.S. 135, the United States Supreme Court considered a computer database error made by police employees in a neighboring jurisdiction. In that case, a police officer arrested the defendant, believing he had an outstanding arrest warrant. The officer's belief was based on the report of a county warrant's clerk check of the county computer database. (Id. at p. 137.) However, the information in the database was factually incorrect. Shortly, after the defendant had been arrested and searched, the arresting officer learned the warrant had been recalled but that information had not been entered into the database. (Id. at p. 138.) The defendant's motion to suppress was denied on the basis that, even if there was a Fourth Amendment violation, the exclusionary rule did not apply because the arresting officer had acted on a good faith belief the warrant was outstanding and "there was 'no reason to believe that application of the exclusionary rule here would deter the occurrence of any future mistakes.' " (Ibid.) The officer testified "he had never had reason to question" information about the neighboring county's warrants, and the clerks involved "could remember no similar miscommunication ever happening on their watch." (Id. at p. 147.)
Herring held exclusion is not warranted if the officers who arrested and searched the defendant "acted 'in objectively reasonable reliance.' " (Herring, supra, 555 U.S. at p. 142; see id. at pp. 145-146.) " '[A]n assessment of the flagrancy of the police misconduct constitutes an important step in the calculus' of applying the exclusionary rule" (id. at p. 143) and necessitated consideration of "the actions of all the police officers involved" (id. at p. 140). Because the arresting "officers did nothing improper" and the error in failing to update the database to reflect recall of the warrant was only negligent, but not reckless or deliberate, the police error was not enough "by itself to require 'the extreme sanction of exclusion.' " (Ibid.) Herring concluded: "[W]hen police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way.' " (Id. at pp. 147-148.) The calculus might differ, Herring reasoned, if police "have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future arrests." (Id. at p. 146.) Further, "where systemic errors were demonstrated, it might be reckless for officers to rely on an unreliable warrant system." (Ibid.) Herring simply involved conduct that "was not so objectively culpable as to require exclusion." (Ibid.)
"[T]he term 'good faith exception' may be somewhat of a misnomer, because the exception focuses on the objective reasonableness of an officer's conduct." (People v. Willis, supra, 28 Cal.4th at p. 29, fn. 3.)
"Indeed, the error was noticed so quickly because [the arresting officer] requested a faxed confirmation of the warrant." (Herring, supra, 555 U.S. at p. 140.)
Here, the People argued the exclusionary rule should not apply because Valencia relied in good faith on the inaccurate CLETS information regarding Hilliare's probation status. Hilliare contends Valencia's reliance on the CLETS information was not objectively reasonable because neither White nor Valencia knew, or attempted to learn, whether Hilliare was subject to a search condition authorizing the search. Although evidence supports the trial court's finding Valencia reasonably relied on records which disclosed Hilliare was on probation, we agree with Hilliare the record is insufficient to support Valencia's apparent understanding Hilliare's probation included a search condition.
Hilliare relies primarily on People v. Romeo (2015) 240 Cal.App.4th 931 (Romeo). In Romeo, Division Four of this court observed: "Because the terms of probation define the allowable scope of the search (Bravo, supra, 43 Cal.3d at pp. 606, 608), a searching officer must have 'advance knowledge of the search condition' before conducting a search (In re Jaime P.[, supra,] 40 Cal.4th [at p.] 132 . . . ; accord, People v. Durant (2012) 205 Cal.App.4th 57, 64 ['a police officer who relies on a probation condition to justify an otherwise illegal search or seizure must know of that condition when he acts . . .']; [People v.] Medina [(2007)] 158 Cal.App.4th [1571,] 1577 [search must be conducted 'pursuant to a known probation search condition']; Myers v. Superior Court[, supra,] 124 Cal.App.4th [at p.] 1252 ['officer must know the person is on probation at the time of the search']. Without such advance knowledge, the search cannot be justified as a proper probation search, for the officer does not act pursuant to the search condition." (Romeo, at pp. 939-940, italics added.)
Romeo held, in order to meet their burden of proof to establish the probation consent exception for a warrantless search of a probationer's home, the People were required to present evidence "of a search clause expressly allowing a residential search" or "detailed testimony from [the searching officer] showing some understanding of the operative terms of probation and connecting those terms to the need for a warrantless search." (Romeo, supra, 240 Cal.App.4th at p. 955.) Romeo explained that, unlike in the parole context, "where the scope of permissible search is imposed by law—and deemed known to the searching officer from nothing more than the fact that someone is on parole—a probationer's expectation of privacy, and hence the reasonableness of a warrantless search, may vary depending on the scope of advance consent." (Id. at p. 950, fn. omitted.) Because a search condition is not mandatory in every grant of probation (§§ 1203.1, subd. (j), 1210.1, subd. (a)) and search conditions are not worded uniformly, "in the case of probation searches, the officer must have some knowledge not just of the fact someone is on probation, but of the existence of a search clause broad enough to justify the search at issue. (See Bravo, supra, 43 Cal.3d at pp. 605, 606, 608.)" (People v. Douglas (2015) 240 Cal.App.4th 855, 863 (Douglas), italics added.)
In their briefing, the People wholly fail to address Romeo or Douglas. Instead, the People contend Hilliare forfeited the point, by failing to address this authority or otherwise highlight the void in the record below. It is true that Hilliare's trial counsel did not cite, in either his moving papers or at argument, Romeo, Douglas, or the underlying authorities cited therein. However, in his motion to suppress, Hilliare cited Williams, supra, 20 Cal.4th 119, and correctly observed the People bore the burden of proving a justification for the warrantless search. Furthermore, after hearing White's and Valencia's testimony at the suppression hearing, Hilliare's trial counsel maintained the People had failed to meet their burden of proving the good faith exception. In particular, defense counsel argued the People had presented insufficient evidence of who entered the incorrect probation information into CLETS. Defense counsel also argued it was unreasonable for White and Valencia to believe Hilliare was subject to search in reliance on the incomplete information appearing in the CLETS record.
Romeo and Douglas had not been decided at the time Hilliare's suppression motion was denied. (Romeo, supra, 240 Cal.App.4th 931; Douglas, supra, 240 Cal.App.4th 855.)
Williams explained the shifting burdens involved in a motion to suppress and held that a defendant seeking to suppress evidence must give the prosecution sufficient notice of specific inadequacies or risk forfeiting the issue. (Williams, supra, 20 Cal.4th 119 at p. 136.) "[W]hen defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless search or seizure, after which, defendants can respond by pointing out any inadequacies in that justification. [Citation.] Defendants who do not give the prosecution sufficient notice of these inadequacies cannot raise the issue on appeal." (Ibid.) "[I]n specifying the inadequacy of the prosecution's justifications, defendants do not have to help the prosecution step-by-step to make its case. The degree of specificity that is appropriate will depend on the legal issue the defendant is raising and the surrounding circumstances. Defendants need only be specific enough to give the prosecution and the court reasonable notice. Defendants cannot, however, lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked." (Id. at pp. 130-131, italics added.)
Williams stressed that a defendant should be allowed to file a reply, but also permits a defendant to "wait[] until after the hearing and challenge[] the prosecution's proof of its justification, at which point a court should grant a continuance if necessary to allow the prosecution to offer additional evidence." (Williams, supra, 20 Cal.4th at p. 134.) "The determinative inquiry in all cases is whether the party opposing the motion had fair notice of the moving party's argument and fair opportunity to present responsive evidence." (Id. at p. 135.) Williams also observed: "[T]he prosecution should avoid the 'trap' of simply responding to the defendant's arguments and then resting. [Citation.] The prosecution has the burden of proving a justification for a warrantless search or seizure, not merely refuting the defendant's arguments for why its justification is inadequate." (Id. at pp. 136-137.)
These rules were applied in People v. Smith (2002) 95 Cal.App.4th 283. In that case, a defendant, despite not having raised the argument in a reply in the trial court, successfully challenged an alleged inventory search on the ground the prosecution had not presented evidence of a standardized inventory policy. (Id. at p. 300.) The reviewing court concluded the existence of such a policy was an element of a valid inventory search and the prosecution and court were on notice of the issue by virtue of the prosecution's own opposition, which summarily raised the inventory search justification (without stating its requirements). (Id. at pp. 289, 293-300.) "Once the justification of an inventory search was raised by the prosecution, the burden of establishing a standardized police policy remained with the prosecution; and by not producing evidence of that policy, the inventory search justification . . . was not sustained." (Id. at p. 300.) Concluding outright reversal would be inappropriate, the judgment was reversed, and the matter was remanded with directions for the trial court to conduct a further hearing at which the prosecution could present evidence of any standardized inventory policy. (Id. at pp. 305-306 & fn. 7.)
Here, as in People v. Smith, the People asserted a basis for justifying the search, but failed to establish its requirements. In opposition to the suppression motion, the People raised the good faith exception to the exclusionary rule—specifically citing Herring and raising Valencia's purported knowledge of Hilliare's status "on active probation with search and seizure terms." (Italics added.) However, the People did not cite Bravo, or any of the additional authority in existence at the time, which made clear probationers are not necessarily subject to search simply by virtue of being on probation. (See People v. Robles, supra, 23 Cal.4th at pp. 797-800 [probation search is valid only if officers have advance knowledge of search condition]; In re Jaime P., supra, 40 Cal.4th at p. 136; People v. Miller (2007) 146 Cal.App.4th 545, 549; Myers v. Superior Court, supra, 124 Cal.App.4th at pp. 1254-1255; People v. Hoeninghaus, supra, 120 Cal.App.4th at p. 1189 ["it is an officer's knowledge of a search condition that transforms what would otherwise be a presumptively unreasonable warrantless search into a probation search and thus valid as an exception to the warrant requirement" (italics added & omitted)]; In re Arron C. (1997) 59 Cal.App.4th 1365, 1367 ["evidence seized in violation of the Fourth Amendment of the federal Constitution by a police officer, acting in reasonable reliance on information obtained from a juvenile probation officer that a search condition exists, need not be suppressed if it is determined subsequently that the information was incorrect"].)
At the suppression hearing, Hilliare's trial counsel cross-examined Valencia regarding his belief that Hilliare was on probation and subject to a search condition. Defense counsel also cross-examined White establishing the information found in the CLETS record was the full extent of the dispatcher's investigation. Hilliare argued the officer and dispatcher unreasonably relied on the CLETS information, in the absence of making additional inquiries. In doing so, he provided the prosecution with reasonable notice of the need to demonstrate why it was objectively reasonable for Valencia to believe Hilliare was subject to a warrantless search condition. Accordingly, we agree with Hilliare that the issue is properly before us on appeal.
In denying the suppression motion, Judge Mallach made no express findings concerning Valencia's knowledge of the existence or scope of a purported probation search condition. Judge Mallach explained: "[T]he issue seems to hinge on a systemic error that has happened more than once and what is the duty of the dispatcher in terms of going further to get further information. [¶] . . . [¶] . . . I think that there was sufficient good faith in this particular case on that particular issue of the driver's status." We review these factual determinations under the substantial evidence standard of review. (Herring, supra, 555 U.S. at p. 147, fn. 5; People v. Robinson (2010) 47 Cal.4th 1104, 1126.)
We agree with Hilliare that substantial evidence does not support the trial court's implicit finding it was objectively reasonable or no more than negligent for Valencia to believe Hilliare's vehicle was subject to a probation search condition. It is undisputed Valencia believed (incorrectly) Hilliare was on probation prior to the warrantless search. Valencia also testified that, at the time, he subjectively believed Hilliare was subject to a warrantless search condition. We do not end our analysis here, however, because the issue is objective, rather than subjective. (Herring, supra, 555 U.S. at p. 145; United States v. Leon, supra, 468 U.S. at pp. 919-920, fn. 20 ["objective standard . . . requires officers to have a reasonable knowledge of what the law prohibits"].) The prosecution attempted to show the belief that Hilliare was on probation was reached in reasonable reliance on the inaccurate CLETS entry. (See Arizona v. Evans, supra, 514 U.S. at p. 16; People v. Downing, supra, 33 Cal.App.4th 1641.) However, the People made no attempt to present objective facts supporting Valencia's belief that Hilliare was subject to a search condition.
People v. Downing, supra, 33 Cal.App.4th 1641 teaches when a police officer relies on data in a computer system, furnished by the judicial system, and that data contains errors "based on mistakes made solely within the judicial system, the deterrent effect of the Fourth Amendment's exclusionary rule will not be served by suppressing evidence seized in a search based on the [officer's] 'objectively reasonable' good faith reliance." (Id. at p. 1644.) In that case, however, the officer ran the defendant's name through the police department "criminal history" computer log, which showed the defendant was subject to an unexpired Fourth Amendment search waiver. The officer then double-checked with a "Fourth Amend[ment] Log" to verify the defendant's search waiver was still valid. (Id. at p. 1645.)
In fact, the record before us compels a finding Valencia's claimed belief—that Hilliare was subject to warrantless search as a condition of probation—was not objectively reasonable. Valencia was asked if he made further inquiries of dispatch when informed that Hilliare was on probation for a violation of Health and Safety Code section 11377. Valencia said he only asked dispatch to confirm Hilliare's identification number matched the CLETS record. White, too, stated Hilliare's probation status and prior offense was all a dispatcher viewing the CLETS record would have told Valencia. The CLETS record itself does not indicate whether Hilliare's probation, had it been in effect, included a search condition. The incomplete information provided by dispatch and Hilliare's statement that he was no longer on probation constituted the universe of Valencia's knowledge at the time of the search. Because Valencia had no knowledge of the terms of Hilliare's probation, the only reasonable inference from the record is that Valencia simply (and erroneously) assumed all probationers have warrantless search conditions. While search conditions for probationers convicted of drug offenses may be common, they are by no means mandatory and, as we have discussed, that assumption was unreasonable. (See Bravo, supra, 43 Cal.3d at pp. 605-608; Romeo, supra, 240 Cal.App.4th at pp. 939-940, 950, 955; Douglas, supra, 240 Cal.App.4th at p. 863; People v. Durant, supra, 205 Cal.App.4th at p. 64.)
Beyond the stipulation he was no longer on probation in May 2015, the record does not contain any other information regarding Hilliare's prior offense and period of probation.
Under Herring, supra, 555 U.S. 135, evidence seized in violation of the Fourth Amendment is to be suppressed when, under an objective standard of deterrence and culpability involving a reasonably well-trained officer, the police have engaged in "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (Id. at pp. 144-145.) White's testimony cannot be reconciled with any implicit finding that Valencia's negligence was isolated. The CLETS record did not indicate whether Hilliare was subject to a search condition, but it did provide a phone number for Hilliare's probation officer. White indicated SMPD dispatchers do not look at any other system for probationers and do not contact probation officers unless a probation hold is requested. Thus, it appears to be a widespread practice to assume a probationer is subject to a warrantless search and seizure condition merely from his or her probation status. Furthermore, White candidly admitted a very similar problem had been encountered before—when it was assumed all individuals subject to PRCS were searchable. Thus, substantial evidence does not support the trial court's implicit finding there was no "deliberate, reckless, or grossly negligent conduct, or . . . recurring or systemic negligence." (Herring, at p. 144.)
We are asked to uphold a warrantless vehicle search under the good faith exception in a case where the searching officers merely believed (erroneously) its owner was on probation, but without any effort to justify the searching officer's belief that the owner was subject to a search condition, much less any effort to determine whether his car or phone fell within the scope of any applicable probation search clause. Had law enforcement inquired as to the existence and scope of any search condition, we can reasonably infer they would have learned Hilliare was not, at least in 2015, subject to a warrantless search condition at all. Failing to conduct this additional investigation was "deliberate, reckless, or grossly negligent," or at minimum "systemic negligence" under all the circumstances (Herring, supra, 555 U.S. at pp. 144, 146-147), warranting suppression of the evidence. Accordingly, we need not address Hilliare's other arguments.
III. DISPOSITION
The judgment is reversed, and the matter is remanded with directions to allow Hilliare to withdraw his no contest plea, reverse the order denying Hilliare's motion to suppress, and enter a new order granting the motion.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.