Opinion
A120110
4-16-2008
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; ANTHONY EARL, Real Party in Interest.
NOT TO BE PUBLISHED
Real party Anthony Earl faces criminal charges related to his alleged possession for sale of cocaine base. The People seek a writ of mandate and/or prohibition to vacate the San Francisco County Superior Courts order granting Earls motion to suppress evidence, pursuant to Penal Code section 1538.5. The suppressed evidence consists of (1) observations made by the police before, during, and after Earls arrest; (2) statements made by Earl before, during, and after his arrest; and (3) physical evidence, including crack cocaine and currency, retrieved from Earl during a search. One of the arresting officers had previously arrested Earl and was aware that Earl was subject to a probation search condition when he encountered Earl sitting in a parked car. As he approached, the officer observed Earl move his right hand as if he were hiding something either near the drivers seat or in his pants. The police decided to search Earl and transported him to a police station where they conducted a strip search that resulted in discovery of the seized drugs and money. We conclude the search was a permissible probation search. We therefore issue a writ vacating the superior courts order suppressing the evidence and direct that it enter a new order denying Earls motion to suppress.
FACTUAL HISTORY
On October 20, 2007, at approximately 5:30 in the afternoon, Officer Edison saw Earl sitting in a white Mazda Miata in the vicinity of Grove Street and Octavia Boulevard in San Francisco. Edison recognized Earl because he previously arrested Earl on a narcotics charge. He also knew Earl was on felony probation with a search condition. Court records corroborate that on May 10, 2007, Earl was charged with the unlawful possession for sale or purchase of a controlled substance, the possession for sale of cocaine base, possession of marijuana for sale, and resisting arrest. The charges were disposed of when Earl was given a suspended sentence for possession of cocaine base and placed on three years probation. He agreed to the following condition of probation: "Defendant is subject to a warrantless search condition, as to defendants person, property, premises and vehicle, any time of the day or night, with or without probable cause, by any peace, parole or probation officer."
Petitioners request for judicial notice, pursuant to Evidence Code section 452, subdivision (d), is granted. We take judicial notice of two documents—the felony complaint in case number 2315854, filed in San Francisco County Superior Court on May 14, 2007, and the minutes of the San Francisco County Superior Court, case number 2315854, July 18, 2007.
Edison pulled his police cruiser behind Earls car. When he got out and approached Earl, he observed Earl move his right hand "either making a movement that was consistent with either putting something down near the drivers seat or possibly into his pants." Edison directed Earl to step out of the car and he complied. Since Edison was aware that Earl attempted to flee an earlier arrest, the police handcuffed him. The officers received permission to transport Earl and his vehicle to Northern Station to be searched. They intended to conduct the search using a trained canine unit, but none was available. At the station parking lot, Edison told Earl he was going to be strip searched when Earl admitted having some "stuff" in his pants. During the strip search officers found nine rocks of crack cocaine in Earls underwear and $1,485 in his pants pocket. An additional $170 and a cell phone were found in the center console of his car.
PROCEDURAL HISTORY
Earl was arrested for possession of crack cocaine for sale. The district attorney filed a two-count felony complaint alleging violations of Health and Safety Code sections 11352, subdivision (a) and 11351.5 and Earl was bound over for trial following a preliminary hearing. Following the preliminary hearing Earl filed a motion to suppress arguing that his initial detention was unconstitutional because it was arbitrary and done to harass him. Earl relied upon People v. Bravo (1987) 43 Cal.3d 600, 611, to argue that his waiver of Fourth Amendment rights as a condition of probation did not permit harassing, arbitrary or capricious searches. The trial court took judicial notice that Earl was subject to warrantless search of "his person, his place, his vehicle." Earl contended that the officers knowledge that he was subject to a probationary search condition, coupled with the officers observation of Earls hand movement, did not justify the search. Since Earls hand movement was not suspicious behavior, the search was done to harass Earl, and was, thus, illegal.
The court, however, did not grant the motion because the search was harassing or arbitrary. It granted the motion for a different reason. It explained: "It would appear to me that under the circumstances, an arrest and a movement by car, I assume the defendant was handcuffed, and being taken to the police station is more than what the law allows under a warrantless search. And to me, it is overly prolonged, moves him a distance which is not reasonable under the circumstances and is tantamount, as I indicated, an arrest, going beyond what is permissible under a probation search. Motion is granted."
The People timely filed this petition to reverse the superior courts ruling on the motion to suppress. They also sought a stay of Earls trial, which had been set to begin on January 4, 2008. On December 27, 2007, we temporarily stayed proceedings below and requested informal briefing. On January 24, 2008, we issued an order to show cause after reviewing the informal briefing.
DISCUSSION
I. The Standard of Review Is De Novo.
Pursuant to the Victims Bill of Rights (Cal. Const., art. I, § 28, subd. (d)), "a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution." (People v. Banks (1993) 6 Cal.4th 926, 934.) Thus, if the results of Earls probation search are to be excluded, the search must have been impermissible under the United States Constitution. This case presents no disputed facts. Accordingly, we consider de novo whether the probation search of Earl was constitutional. (People v. Alvarez (1996) 14 Cal.4th 155, 182.)
II. When as a Condition of Probation, a Probationer Makes Waivers of His Privacy Rights, the Probationer is Subject to Search by a Law Enforcement Officer Unless the Search Is Arbitrary or Done to Harass the Probationer.
The requirement that a search must be done pursuant to a warrant supported by probable cause, does not apply to probationers who have waived those protections. (People v. Matelski (2000) 82 Cal.App.4th 837, 851.) Nonetheless, probation searches may not be arbitrary or capricious, or undertaken to harass the probationer. (People v. Bravo, supra, 43 Cal.3d at p. 610.) When a probation search is neither harassing nor arbitrary and capricious, it is legal even though officers have not obtained a warrant nor have reasonable cause. (Ibid.)
Earl relies upon United States v. Knights and argues that whether his probation search was legal is to be considered in light of the " `totality of the circumstances " surrounding the search. (United States v. Knights (2001) 534 U.S. 112, 118.) But in our analysis of the totality of the circumstances, we consider the facts and circumstances known to the officer when he conducted the search. (People v. Sanders (2003) 31 Cal.4th 318, 334 [citing United States Supreme Court cases].) When we do, we have no difficulty upholding the search in this case. Officer Edison saw Earl sitting in a car idling on a city street. He knew Earl was subject to a probation search condition and pulled his police cruiser up behind Earl. When Edison got out of the police car, he saw Earl move his right hand as though he was putting something under his car seat or into his pants. It was legitimate for Edison to search Earl to deter him from committing another offense or to verify Earls compliance with conditions of his probation. (People v. Bravo, supra, 43 Cal.3d at p. 610.) Neither state nor federal law requires that a probation search be motivated by reasonable suspicion.(Id. at pp. 607, 611; People v. Medina (2007) 158 Cal.App.4th 1571, 1577.) In this case, Edisons actions appear to have been motivated by the twin permissible goals of deterrence and compliance.
Although Sanders involves a parole search and analysis of the circumstances of parole and probation search conditions are not interchangeable, harassing, arbitrary or capricious searches are not permissible in either case. (People v. Bravo, supra, 43 Cal.3d at p. 608.)
Nothing in this record suggests that the officer acted arbitrarily or capriciously or was motivated by a desire to harass Earl. For example, there is no showing that Earl was repeatedly searched by Officer Edison, that Edison was motivated by any personal animus toward Earl, or that Edison undertook the search for other than legitimate law enforcement purposes. (See People v. Clower (1993) 16 Cal.App.4th 1737, 1742-1743.) Moreover, there is nothing to indicate that Officer Edison lied about his reason for the search. (See People v. Cervantes (2002) 103 Cal.App.4th 1404, 1408.) Edisons search of Earl was not undertaken for purposes of harassment, and was not arbitrary or capricious.
III. The Search Was Not More Intrusive Than Necessary to Accomplish
Its Legitimate Goals.
Even if the motivation for the search was proper, the search could still be illegal if, as the superior court suggests, it was overly prolonged and Earl was transported a greater distance than was reasonable. (See People v. Clower, supra, 16 Cal.App.4th at p. 1741, citing United States v. Follette (S.D.N.Y. 1968) 282 F.Supp. 10, 13 [listing "unreasonably prolonged" as a basis for determining that a parole search is constitutionally unreasonable].) Earl contends that, at most, he should have been given a pat search at the scene. He argues that because no contraband had been found at the scene, the original stop, even if it was valid, became an invalid de facto arrest when he was handcuffed and transported to the stationhouse. Earl claims it was unreasonable for the police to resort to an extended detention and transport when a pat search would have been sufficient.
Implicit in Earls argument is the knowledge that nine cocaine rocks and significant cash was ultimately found secreted in his underwear and pants. A pat search would likely have discovered this evidence. But that argument turns upon what we know now—the quantity of the evidence found—and not what was known by the police when they decided to search Earl. When Edison first suspected that Earl may have been trying to hide something, he could not know what or how much Earl was trying to hide. The contraband could have been of a kind or amount that would not be discovered in a pat search. Moreover, since Edison knew Earl was on probation for a drug-related offense, there was a legitimate law enforcement purpose in conducting a search likely to disclose a small amount of contraband.
A detention is a seizure of an individual which is strictly limited in duration, scope and purpose. (People v. Soun (1995) 34 Cal.App.4th 1499, 1516, citing In re James D. (1987) 43 Cal.3d 903, 911.) An investigative detention must be temporary, last no longer than is necessary for its purpose, and must employ the least intrusive method reasonably available to verify or refute police suspicion in a short period of time. (People v. Soun, supra, at p. 1516.) The inquiry that distinguishes a permissible detention from an impermissible de facto arrest is " `whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances. " (Id. at p. 1517, citing In re Carlos M. (1990) 220 Cal.App.3d 372, 384-385.) In Soun the Sixth Appellate District approved a detention where police had reasonable suspicion to remove defendant and his friends from their car at gunpoint, forced them to lie on the ground, handcuffed and separated, transported them three blocks to a parking lot, and detained them for an additional half an hour without telling them why. The police had acted to confirm their suspicions efficiently and as unintrusively as possible. (People v. Soun, supra, at pp. 1517, 1520.)
Earls probation condition allowed the police to search him for any legitimate reason, so long as the search was done as efficiently and unintrusively as reasonably possible under the circumstances. The police had a concern over what Earl may have had hidden in his pants, and their decision to strip search him was reasonable, especially when we consider there was no available canine unit. Their decision to transport him to the police station where this could be done with minimal invasion of Earls privacy rights was also reasonable. Earls subsequent comment, while being taken into the police station, that he had "stuff" in his pants strengthened the justification for the search. There is nothing in this record to suggest that the police carried out their plan to confirm or dispel their suspicion in an overly intrusive manner or over an unreasonably prolonged time period. Thus, the search was reasonable and its results should not be suppressed.
Let a writ of mandate issue directing the superior court to vacate its order granting real partys motion to suppress and to enter a new and different order denying that motion.
The stay previously ordered by this court on December 27, 2007, is dissolved.
We concur:
McGuiness, P.J.
Pollak, J.