Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Ct. No. KF003195A, Michael G. Bush and Arthur E. Wallace, Judges.
Judge Bush presided over motion to suppress; Judge Wallace presided over change of plea hearing and sentencing.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Detjen, J. and Franson, J.
This is an appeal from an order admitting defendant to probation after he pled no contest to one count of transportation of a controlled substance, a violation of Health and Safety Code section 11352, subdivision (a). We conclude the trial court erred in denying defendant’s suppression motion. Accordingly, we reverse the judgment.
FACTS AND PROCEDURAL HISTORY
Deputy Sheriff Michael Dorkin and his partner were walking on an unlighted, dirt side street in the town of Lake Isabella near midnight on December 9, 2007. They were on their way to a house at the end of the street to conduct a parole search as part of a drug investigation. The yards along the street were bounded by six-foot chain-link fences. As the deputies passed in front of one house, defendant Brian Satre climbed over the fence and landed in the road in front of them. Startled, Dorkin pulled his gun and flashlight, aiming both on the figure in front of him. Once defendant was illuminated by the flashlight, Dorkin recognized him from previous encounters. Dorkin recalled that defendant was on probation. He conducted a probation search and discovered 2.3 grams of what Dorkin believed to be crystal methamphetamine in defendant’s pocket.
An information was filed, charging defendant with count 1, transportation of a controlled substance (hydrocodone) (Health & Saf. Code, § 11352, subd. (a)); count 2, transportation of a controlled substance (methamphetamine) (Health & Saf. Code, § 11379, subd. (a)); count 3, possession of a controlled substance (hydrocodone) (Health & Saf. Code, § 11350, subd. (a)); and count 4, possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11377, subd. (a)). The information alleged that defendant had four prior strike convictions arising from 1993 robbery convictions.
Defendant filed a motion to suppress the drugs seized by the deputies during the December 9, 2007, search. At the hearing on the motion, the prosecutor conceded the search was without a warrant and that the People had the burden of proving the search was reasonable.
The only evidence presented by the People was the testimony of Deputy Dorkin. Dorkin testified that defendant came over the fence, as described above. Dorkin said that he “was aware of” the fact that defendant was, as the prosecutor phrased the question, “on probation with search terms for stolen property at that time.” Dorkin testified: “I’ve had several contacts with Mr. Satre, including prior probation searches. I’ve been present when he was under arrest for H and S 11550, under the influence of controlled substance, and I’ve contacted him several times on either traffic stops or pedestrian stops maybe a minimum of three to five times in which case I personally know of his probation status.” Dorkin said he did not remember how long before the present detention he ascertained defendant’s probation status (the suppression hearing occurred 27 months after the detention). He testified that defendant’s name came “up quite a bit in narcotics investigations, drug dealing and stuff. So checking his status was kind of a normal basis anyway since he was one of several players that everyone or deputies in Kern Valley knew about.” On cross-examination, Dorkin stated he knew defendant was on probation because he had “conducted records checks and my own personal records checks during drug investigations.” Dorkin believed the probation cases were misdemeanor cases and that defendant was searchable for drugs and stolen property. He did not know, however, when the last time was that he checked to determine defendant’s probation status. He did not, on the day in question, run a check to determine defendant’s probation status.
Defendant testified he came out through a gate in the fence. He also testified the area was lighted and Dorkin did not use a flashlight during the encounter. He said he had contact with Dorkin on two previous occasions, that neither occasion involved him being searched, and that Dorkin had never asked about his probation status. On cross-examination, the prosecutor asked defendant if he “recall[ed] being put on probation” on an “insufficient funds” charge earlier in 2007. Defendant responded: “It was summary probation.”
The trial court denied the suppression motion stating, “It appears to me that the officer’s actions are reasonable. He believed that the defendant was on probation so he could search. Therefore, the motion is denied.”
Subsequently, defendant entered into a plea agreement pursuant to which he pled no contest to count 1 in return for dismissal of the other three counts and an indicated sentence of Proposition 36 probation. (See Pen. Code, § 1210.1, subd. (a).) Defendant admitted the four strike allegations.
The People stipulated the transportation of the controlled substance was for personal use. (See Pen. Code, §§ 1210, subd. (a), 1210.1, subd. (a).)
Pursuant to the plea agreement, the trial court suspended imposition of sentence and admitted defendant to probation for a term of three years. Among other terms of probation, defendant was ordered to submit to a search of his person, residence, motor vehicles, and possessions during the period of probation.
DISCUSSION
The Fourth Amendment prohibits unreasonable searches and seizures. In the absence of a search warrant, the prosecution has the burden of proving that the search was reasonable. (People v. Pearl (2009) 172 Cal.App.4th 1280, 1293.) “The exclusionary rule, when applicable, forbids the use at trial of evidence obtained in violation of the Fourth Amendment.” (Id. at p. 1292.)
When a defendant is admitted to probation, one condition of probation that can be imposed by the sentencing court in an appropriate case requires the probationer to submit to a search of his person by any probation officer or law enforcement officer, with or without reasonable suspicion that defendant is committing or is about to commit a crime. (People v. Mason (1971) 5 Cal.3d 759, 764; disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1; see People v. Medina (2007) 158 Cal.App.4th 1571, 1576 (Medina). A search without a warrant can be reasonable, for Fourth Amendment purposes, if conducted pursuant to such a probation condition. (Medina, supra, 158 Cal.App.4th at pp. 1575-1576.)
There are two conditions necessary to justify a probation search. First, the suspect must be on probation with an applicable search condition. (See People v. Downing (1995) 33 Cal.App.4th 1641, 1650-1651.) Second, the officer conducting the search must know or reasonably believe the suspect is on probation with an applicable search condition. (See In re Jaime P. (2006) 40 Cal.4th 128, 139 (Jaime P.).) In order to establish the reasonableness of a search as a probation search, in the face of a defendant’s suppression motion challenging a warrantless search, the prosecutor is required to prove these two facts. While the discussion in the cases primarily focus upon the second requirement, the officer’s knowledge of the search condition, the first requirement, that there actually be a search condition is necessary because the consent of the probationer, expressed through acceptance of the probation condition, is constitutionally required to obviate the requirement that the search occur only upon probable cause. (See People v. Bravo (1987) 43 Cal.3d 600, 605, 608, 611; Medina, supra, 158 Cal.App.4th at p.1580; see also People v. Hill (2004) 118 Cal.App.4th 1344, 1350-1351.)
In this case, the prosecutor presented evidence that, if believed, is sufficient to establish the second of the foregoing facts, namely, that Dorkin reasonably believed defendant was on probation with an applicable search condition. The prosecutor did not, however, present any evidence that defendant actually was, at the time of the search, on probation and subject to a search condition. Nothing in the present record permits an inference that defendant was actually subject to such a condition. While defendant admitted he had been convicted of a misdemeanor involving an insufficient-funds check, he testified only that he was placed on “summary probation.” He was not asked, and did not testify, whether he was still on probation at the time of the search or, more importantly, whether the summary probation included a search condition. The imposition of various conditions of probation is committed to the discretion of the sentencing judge and those conditions may, or may not, contain a search condition in any particular case. (See In re Bushman (1970) 1 Cal.3d 767, 776, disapproved on other grounds in People v. Lent, supra, 15 Cal.3d at p. 486, fn. 1.) Because the Fourth Amendment reasonableness of a search is premised upon the probationer’s advance consent to the search in accepting probation, the scope of a permissible search is limited by the condition imposed in a particular case. (See People v. Bravo, supra, 43 Cal.3d at p. 607.)
Our decision in People v. Rios (2011) 193 Cal.App.4th 584, does not conflict with our holding here. Rioswas searched when he was in R.R.’s residence. R.R. was on juvenile probation. Rioscomplained that the evidence was insufficient to establish the scope of R.R.’sprobation search condition, upon which the officers relied when entering the apartment. The evidence presented at the motion to suppress in Rios came from a probation officer who was a member of the High Risk Juvenile Supervision Unit. Unlike this case, the prosecutor in Rios presented evidence that the probation officer, prior to going to the location to search, reviewed the juvenile record of R.R. and determined that the terms of R.R.’sprobation included search terms that included stolen property and drug orders. (Id. at p. 589.)The issue in Rios was the sufficiency of the evidence regarding the scope and precise terms of that search condition. (Id. at p. 588.) In this case, the prosecutor presented nothing more than the officer’s unverified belief, a belief based on dated recall. Allowing searches of probationers based solely on an officer’s “supposed subjective ‘belief’ that legal cause exist[s] for a search” is disapproved as it creates the risk of “repeated harassment and arbitrary searches.” (Jaime P., supra, 40 Cal.4th at p.138.)
Because the prosecutor failed to prove that there was an applicable search condition and what its terms may have been, and otherwise failed to prove that the warrantless search was reasonable, the evidence must be suppressed.
Respondent, properly, does not contend the search may be saved by reliance on the good faith exception to the exclusionary rule established in United States v. Leon (1984) 468 U.S. 897, 906. Dorkin was not misinformed that defendant was subject to a probation search condition (see generally Herring v. United States (2009) 555 U.S. 135 [129 S.Ct. 695]), he simply did not contact anyone to determine whether defendant was subject to such a condition, trusting instead his memory. The recency of his contacts with defendant provided a sufficient basis to establish that he was not acting in total disregard of the Fourth Amendment, as was the case, for example, in People v. Sanders (2003) 31 Cal.4th 318, 331-332, but it is not sufficient to satisfy the higher threshold necessary for Leon, namely, good faith reliance on a defective warrant or other mistaken official records. (See Herring v. United States, supra, 555 U.S. at p. ___ [129 S.Ct. at pp. 701-702].)
DISPOSITION
The parties agree that the court erroneously imposed probation supervision costs as a condition of probation. However, in light of our reversal of the conviction, we are not required to address or correct any possible sentencing error.