Opinion
Rehearing Denied April 15, 1998.
Review Dismissed Dec. 22, 1998.
Previously published at 62 Cal.App.4th 683
Frank D. Bloksberg, under appointment by the Court of Appeal, Nevada City, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
VARTABEDIAN, Associate Justice.
Defendant Danny Ray Pate appeals from his felony conviction. He contends the trial court should have granted his suppression motion. We will affirm the judgment.
Facts and Procedural History
Taft police officer Bron Sanders was controlling traffic at a hazardous materials spill on the afternoon of August 17, 1996. Occasionally, cars appeared to be traversing the restricted section of road, although other means of access to the roadway made it difficult to know for sure whether such a transgression had occurred. When Sanders Sanders saw defendant approach from the direction of the restricted area. As he waved defendant to a stop, Sanders noticed defendant was not wearing a seat belt. Sanders approached defendant's car and asked for defendant's driver's license. Defendant identified himself orally and said he did not have a driver's license.
Sanders was the Taft Police Department liaison with the local parole agent, Dale Annis. Twice a month Annis sent Sanders a list of all parolees living in the Taft area. He asked Sanders to search the person for drug use or possession or other violations of the law whenever Sanders encountered any parolee on the list. The list had a code indicating parole status and other information. Defendant was on the list. He was shown as a parolee at large, and there was an annotation "arrest 3056."
Penal Code section 3056 provides: "Prisoners on parole shall remain under the legal custody of the department and shall be subject at any time to be taken back within the inclosure of the prison."
When defendant identified himself to Sanders, Sanders recalled that his name was on the parolee list. Sanders confirmed with defendant he was on parole. As he interacted with defendant, Sanders did not recall that Annis had requested defendant's arrest.
Sanders ordered defendant and his passenger from the car and frisked them, finding nothing of interest. Then, "[i]ncident to PATE's terms of parole," Sanders searched the passenger compartment of the car. He found methamphetamine, diazepam and other inculpatory items that belonged to defendant. He arrested defendant on suspicion of selling and transporting methamphetamine. At the police station, he was informed by the dispatcher that defendant was a parolee at large. Sanders "booked PATE for violating HS11378, HS11379, VC14601.1(A), and PC3056."
After an information was filed against him, defendant moved to suppress the fruits of the search of his car. The court denied that motion at a hearing on December 3, 1996. That same day, defendant pled guilty to one count of possession of methamphetamine for sale (Health & Saf.Code, § 11378) and one count of possession of diazepam (Health & Saf.Code, § 11377, subd. (a)). The court dismissed other counts and allegations on the motion of the prosecutor.
On January 6, 1997, the court sentenced defendant to concurrent upper terms of three years on the two counts. Defendant filed a timely notice of appeal pursuant to Penal Code section 1538.5, subdivision (m).
Discussion
Defendant's sole contention on this appeal is that the search of his car was unlawful, requiring suppression of the evidence derived from the search. He says reasonable suspicion of criminal activity or violation of parole is necessary to support a parole search, and that the prosecutor waived any other possible theory of justification for the search. Respondent contends reasonable suspicion is no longer required for a parole search; that Sanders had reasonable suspicion in any event; and that the search was incident to the lawful arrest of defendant for driving without a license, even though Sanders had not yet formed an intention to arrest defendant for that offense.
As an initial matter, we agree with defendant that reasonable suspicion is required for parole searches. "[A] parole search is reasonable under the Fourth Amendment 'if there is a reasonable nexus ... between the search and the parole process, and a reasonable suspicion, based on articulable facts, that the parolee has violated the terms of his parole or engaged in criminal activity.' " (People v. Stanley (1995) 10 Cal.4th 764, 789, 42 Cal.Rptr.2d 543, 897 P.2d 481; see People v. Burgener (1986) 41 Cal.3d 505, 533-534, 224 Cal.Rptr. 112, 714 P.2d
Second, we agree with defendant that the information apart from the Annis list did not constitute reasonable suspicion to support a search of defendant for drugs or evidence of drug dealing. Sanders could not remember who provided him with information about defendant, the basis for their knowledge, nor the details of the information that was provided. Accordingly, the totality of the circumstances does not support a well-founded suspicion defendant was engaged in criminal drug activity at the time Sanders detained him. (See Alabama v. White (1990) 496 U.S. 325, 329, 110 S.Ct. 2412, 2415-2416, 110 L.Ed.2d 301; cf. People v. Ramirez (1996) 41 Cal.App.4th 1608, 1616-1620, 49 Cal.Rptr.2d 311 [finding reasonable suspicion based on officers' corroboration of tip].)
Nevertheless, we cannot agree with defendant that the search was unlawful. The guiding principle under current Fourth Amendment analysis is that an objective standard is applicable. If the law permits an officer to engage in the objective acts in question, there is no Fourth Amendment violation, regardless of the subjective motivations of the officer as he actually engages in the acts. (Scott v. United States (1978) 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168; see Whren v. United States (1996) 517 U.S. 806, ----, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89.)
The United States Supreme Court has recognized there may be other constitutional deprivations that can result from an officer's subjective motivations, such as an equal protection violation for actions motivated by racial animus. (See Whren v. United States, supra, 517 U.S. at p. 812-813, 116 S.Ct. at p. 1774.) The present case involves no such issues.
This principle leads to two others that are relevant in the present case. First, a search incident to arrest is permitted any time an officer has probable cause to arrest, even if he has not yet made the arrest and even if he does not harbor the motivations concerning officer safety or evidence destruction that underlie the constitutional permissibility of a search incident to arrest. (See Rawlings v. Kentucky (1980) 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633; United States v. Robinson (1973) 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed.2d 427.)
Second, if there is a constitutional justification for a search, the search is valid even if the officer does not know of the justification at the time of the search. If there is a valid reason to search or seize a person, that person no longer has a reasonable expectation of privacy; accordingly, the officer's actions in searching or seizing the person do not violate the Fourth Amendment even if the officer does not know the person has no protected expectation of privacy. (In re Tyrell J., supra, 8 Cal.4th at pp. 88-89, 32 Cal.Rptr.2d 33, 876 P.2d 519.)
It is clear that an officer may make an arrest based on the request of another officer or agency that has probable cause for such an arrest. (United States v. Hensley (1985) 469 U.S. 221, 232, 105 S.Ct. 675, 682, 83 L.Ed.2d 604.) In this case, the printout from Annis adequately establishes there was probable cause for the arrest pursuant to Penal Code section 3056. (People v. Alcorn (1993) 15 Cal.App.4th 652, 660, 19 Cal.Rptr.2d 47.) When an officer makes a valid custodial arrest of a person in an automobile, the officer may search the passenger compartment of the automobile. (New York v. Belton (1981) 453 U.S. 454, 460-461, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768.) Where Under the terms of In re Tyrell J., supra, 8 Cal.4th at pages 88-89, 32 Cal.Rptr.2d 33, 876 P.2d 519, if an officer has probable cause to arrest based on the request of another agency, the officer has the right to make the arrest--seize the person--even if the officer does not "know"--have a present subjective awareness--he has that right. The person arrested simply has no Fourth Amendment expectation of privacy or freedom from seizure that the officer invades by making the arrest. (Id. at p. 89, 32 Cal.Rptr.2d 33, 876 P.2d 519.)
At oral argument, defendant's attorney contended Tyrell J. was applicable only to juvenile probation cases. We disagree. While the court's imprimatur for involuntary, without-cause probation searches was limited to the special needs of juvenile rehabilitation and reformation (8 Cal.4th at pp. 81-82, 32 Cal.Rptr.2d 33, 876 P.2d 519), there was no such limitation on the holding concerning the officer's prior lack of knowledge of the search condition. (See id. at pp. 87-89, 32 Cal.Rptr.2d 33, 876 P.2d 519.)
Because we hold that the search of defendant's car was permissible as a search incident to arrest of defendant as a parolee at large, we need not resolve certain other issues raised by the parties' treatment of the case. Thus, respondent contends the search was valid because Sanders had probable cause to arrest defendant for driving without a license or because driving without a license would be a violation of parole, permitting a parole search. Defendant says there is no nexus between driving without a license and searching the car for drugs. (See People v. Stanley, supra, 10 Cal.4th at p. 789, 42 Cal.Rptr.2d 543, 897 P.2d 481.) And there appears to be no definitive resolution of the question how the "search incident to arrest, but prior to actual arrest" doctrine works out in the context of an offense that can be citable or cause for custodial arrest in the officer's discretion. (See Veh.Code, § 40303, subd. (i); People v. Monroe (1993) 12 Cal.App.4th 1174, 1180, 16 Cal.Rptr.2d 267; see also People v. Sirak (1969) 2 Cal.App.3d 608, 611, 82 Cal.Rptr. 716.)
Monroe involved a search after the officers had actually exercised their Vehicle Code section 40302, subdivision (b) discretion. (People v. Monroe, supra, 12 Cal.App.4th at p. 1179, 16 Cal.Rptr.2d 267.) Sirak involved a search after the officer decided the driver might be intoxicated, but before the officer had actually decided to arrest the driver. (People v. Sirak, supra, 2 Cal.App.3d at pp. 610-611, 82 Cal.Rptr. 716.)
Because we conclude the search was properly conducted incident to the Penal Code section 3056 arrest request, the search was not a "parole search" with its attendant "nexus" requirement. Because the search was lawful apart from the possibility of a Vehicle Code arrest, we express no opinion concerning a search that precedes a Vehicle Code section 40303 discretionary arrest.
Defendant complains that the prosecutor did not rely on the theory of search incident to arrest to justify the search before the trial court. By this, it appears he means the prosecutor did not argue this theory at the end of the hearing. However, in the written opposition to the suppression motion, the prosecutor stated: "In this case the officer was aware that the defendant was a parolee at large subject to search and arrest."
Defendant also contends there was "no evidence that defendant was actually a 'parolee at large' or wanted by Agent [A]nnis for parole violations." However, exhibit 1, the listing of parolees with their status, was admitted into evidence. In the absence of any objection to the document or any showing that there was not in fact a valid request for arrest as a parolee at large, exhibit 1 adequately proved there were facially valid grounds to arrest defendant. (See People v. Alcorn, supra, 15 Cal.App.4th at p. 657, 19 Cal.Rptr.2d 47.)
At the suppression hearing itself, there was the following discussion:
"THE COURT: How is this any different than an arrest warrant being issued for someone who is wanted?
"In other words, if a parole agent determines that one of his parolees has violated the terms of parole why can't that parole agent prepare a list showing the names of the various parolees who should be arrested if they are contacted? "[Defense counsel]: I don't have any quarrel with that. I agree with the Court."
Defense counsel then argued that Sanders did not know there was an arrest request, as he might have if the listing contained only the names of those to be arrested or if the parole agent had contacted him specifically about defendant. The court seems to have accepted the idea that Sanders had to know about the request to arrest in order to validly search incident to such an arrest:
"I believe the evidence was that the officer did not have in fact in mind the specifics of the list. The reference by Mr. Pate's name, 'arrest 3056' I don't believe the officer testified that he had that in mind when he was contacting Mr. Pate, but he did have in mind that Mr. Pate was on the list as a parolee, and then he testified that he had information from other sources that Mr. Pate was involved in the sale of methamphetamine. What about that ?"
The point, for present purposes, is not whether the court was correct about the requirement of knowledge; rather, the point is that the issue was fully aired in the trial court. Defendant could have challenged the authority to arrest on Harvey/Madden grounds, but he did not do so. He could have challenged the fact that there was a facially valid arrest request (see People v. Alcorn, supra, 15 Cal.App.4th 652, 19 Cal.Rptr.2d 47), but he did not do so. These issues were within the scope of the hearing. It is neither unfair nor prejudicial to base our resolution of this case on the exact issue counsel did raise, namely, the need for subjective knowledge Sanders of his authority to arrest defendant. (See Green v. Superior Court (1985) 40 Cal.3d 126, 137-138, 219 Cal.Rptr. 186, 707 P.2d 248.)
See People v. Madden (1970) 2 Cal.3d 1017, 88 Cal.Rptr. 171, 471 P.2d 971; People v. Harvey (1958) 156 Cal.App.2d 516, 319 P.2d 689.
Finally, defendant contends in his reply brief that the prosecutor made judicial admissions that waived the right to claim defendant was subject to lawful arrest at the time of the search. This "admission" not only occurred during a separate hearing on defendant's separate Miranda motion, but it also occurred after the trial court had rejected reliance on the arrest request because Sanders did not remember the request at the time of the search. Accordingly, we decline to give any effect to the prosecutor's statement. In any event, as respondent notes, "custody" for Miranda purposes is an entirely different concept than "subject to arrest" for purposes of the search-incident-to-arrest doctrine.
The prosecutor stated: "The officer arrests him because of what is found in the bag [after the search]. Prior to that the officer doesn't know if he is going to arrest this person. This is just a preliminary investigation ."
See Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
In sum, we conclude that under the broad reach of In re Tyrell J., supra, 8 Cal.4th at pages 88-89, 32 Cal.Rptr.2d 33, 876 P.2d 519, a person who is the subject of a facially valid Penal Code section 3056 request may be searched by a police officer without further cause, even if the officer does not know about the Penal Code section 3056 request. The interior of any vehicle in which such a parolee-at-large is found may be searched without any further cause incident to such arrest pursuant to New York v. Belton, supra, 453 U.S. at pages 460-461, 101 S.Ct. at page 2864. While this is not an open invitation to police recklessness (see In re Tyrell J., supra, 8 Cal.4th at p. 89, 32 Cal.Rptr.2d 33, 876 P.2d 519), the result is compelled by our recognition that defendant had no reasonable expectation of privacy in the car he drove while a parolee at large.
Disposition
The judgment is affirmed.
STONE (WM.A.), Acting P.J., and HARRIS, J., concur.
At oral argument, defendant's attorney contended the list did not call for defendant's arrest because the list stated, "Prior to a 3056 Detainer being placed, Agent must be contacted." We interpret "detainer" in this context as an authorization for continuation in custody pending revocation proceeding; it is not the original request for arrest.