Opinion
G054291
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN ROBERT VIGIL, Defendant and Appellant.
Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Mary Katherine Strickland, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16NF1572) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen and Patrick Donahue, Judges. Reversed. Michael S. McCormick, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Mary Katherine Strickland, Deputy Attorney General, for Plaintiff and Respondent.
Judge Leversen heard the suppression motion in this matter. Judge Donahue presided over the trial.
* * *
A jury convicted Justin Robert Vigil of second-degree burglary (Pen. Code, §§ 459 & 460, subd. (b), all further statutory references are to the Penal Code unless otherwise indicated), and possession of burglary tools (§ 466). Vigil's sole contention on appeal is the lower court erred in denying his pretrial motion to suppress evidence (§ 1538.5). We agree and reverse with directions.
FACTS
Because Vigil is only appealing the ruling on his suppression motion, we only discuss facts adduced at or relevant to the motion hearing, and not what transpired at his subsequent trial unless necessary.
Prior to trial, Vigil brought a motion to suppress evidence. He sought to suppress his statements to police as well as any physical evidence obtained during their subsequent search of his backpack. His moving papers were mainly boilerplate, and included the level of discussion and specificity our Supreme Court found sufficient in People v. Williams (1999) 20 Cal.4th 119 (Williams).
Significant to our discussion below, Vigil's motion did tell the prosecution that if a testifying police officer "does not have personal knowledge of the facts that provide probable cause, the evidence at the suppression hearing must establish that it was reasonable for the officer to rely on the information," citing People v. Madden (1970) 2 Cal.3d 1017, and People v. Harvey (1958) 156 Cal.App.2d 516 (Harvey-Madden). Vigil's moving papers and the citations to Harvey-Madden were sufficient to give the prosecution notice of what must be shown in any subsequent evidentiary hearing. (People v. Romeo (2015) 240 Cal.App.4th 931, 940-941 (Romeo).)
The prosecution filed a written opposition, but did not address Harvey-Madden. In a footnote, the prosecutor requested the court take judicial notice of Orange County Superior Court case No. 15NF3266, generically citing "Evidence Code §§ 450 et. [sic] seq." The prosecutor did not attach an exhibit or otherwise describe what in that court file the prosecution was asking the court to notice. Similarly, was nothing in the record to indicate the court did so, nor was this request ever mentioned by either party, or ruled on during the motion hearing. We have no evidence before us what was in that case file, whether Vigil was actually on a search and seizure term of probation on May 15, 2016, or whether the scope of any such waiver would have included Vigil's backpack.
We also note the prosecution did not comply fully with the Evidence Code with regard to the requirements for judicial notice. "If the trial court resorts to any source of information not received in open court . . . such information and its source shall be made a part of the record in the action and the court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken." (Evid. Code, § 455, subd. (b).) "Making the information and its source a part of the record assures its availability for examination by the parties and by a reviewing court. In addition, subdivision (b) requires the court to give the parties a reasonable opportunity to meet such additional information before judicial notice of the matter may be taken. [Citation.]" (Cal. Law Revision Com. com., 29B, Pt. 1B, West's Ann. Evid. Code (2011 ed.) foll. § 455, p. 273 (italics added).)
Officer Herb Johnson, called by the prosecution, provided the only evidence at the suppression motion hearing. Johnson was on patrol at 4:24 a.m. on Sunday, May 15, 2016, when he saw Vigil riding a bicycle off the railroad tracks and onto Colfax Street in the city of La Habra. Vigil was wearing "all black" and a baseball cap. This drew Johnson's interest because the previous night La Habra police had received a burglary call from a nearby business, and the description of the individual attempting to gain entry was of an individual also wearing dark clothing and a baseball cap, and also riding a bicycle. Johnson decided to follow Vigil because of this earlier incident, and also because riding on the railroad tracks at that hour was suspicious.
Johnson's vague and undeveloped testimony regarding the railroad tracks does not provide sufficient support for the possibility Vigil could have been trespassing on railroad property in violation of section 369i, thereby providing probable cause to arrest him.
By the time Johnson turned onto Colfax, Vigil was out of sight. Soon thereafter, Johnson spotted Vigil again, this time sitting on the front porch of a nearby Colfax Street residence. Johnson parked his patrol car in front of the residence, and activated a "white side alley light." Before getting out of his car, Johnson called for backup, and another officer soon arrived.
The parties make much ado about the "white side alley light," and dispute whether it was more like a directly focused spotlight often derided in appellate court decisions, or merely an unmovable white colored light found on each side of a modern patrol car's light bar, designed to provide sideways illumination as needed, when, for example, driving down a dark alley. The court below ultimately found it to be more the latter, and distinguished it from the cases where a traditional moveable spotlight was pointed directly at a subject. There was no evidence the other lights on the patrol car's light bar were on, and Johnson stated "just the white side alley light" was on when he approached Vigil on the porch.
Johnson walked up to the residence, his gun holstered, and made contact with the still-seated Vigil. It is unclear exactly when the backup officer arrived. The record shows Johnson and his backup officer stood a few feet away from and in front of Vigil. Johnson testified Vigil was not free to leave at that point, but there is nothing in the record to suggest this fact was in any way conveyed to Vigil.
Johnson initially asked Vigil if he lived at the residence, to which Vigil answered "Yes." However, when asked what the address was, Vigil admitted he did not know, and actually did not live there, and instead a friend named Bobby did. When asked what he was doing in the area at such an hour, Vigil remarked his brother had a shop in the area, but gave no further details.
Johnson obtained Vigil's name and date of birth and, following this exchange, Johnson ran some type of records check and discovered Vigil was purportedly on probation with a search and seizure condition. The scope and limits of that condition, if any, are not in our record. Neither is any indication what kind of records check was run, the nature and source of the records found, nor what the records actually said. We also have no evidence whether Johnson obtained this information through an on-board computer in his patrol car, or whether it came through contact with a dispatcher, or other person at the police department, or elsewhere.
Just before running the records check, Johnson frisked Vigil for weapons, finding nothing. Following the pat-down, Johnson physically escorted Vigil off the porch, over to the curb, and had him sit down. The entire encounter, from initial contact with Vigil on the porch to having him sit on the curb, took three minutes, and the records check only took "seconds." Johnson returned to speak to Vigil, who confirmed he was on probation after "getting caught with someone else's stuff." There was no evidence Vigil told Johnson his probationary terms included a search and seizure condition.
Based on the records check and Vigil's apparent probationary terms, Johnson searched the backpack Vigil was wearing, and found incriminating evidence, including a drill bit, scissors, a crescent wrench, latex gloves, pliers, and three keys. The record shows some of this evidence was later introduced at trial, as were some of his statements.
The court stated it had read the briefs, read the preliminary hearing transcript, listened to Johnson's testimony, and then asked for counsel's arguments. Perhaps tellingly, the court made no mention of the prosecution's request for judicial notice, the contents of the case file in case No. 15NF3266, nor of Vigil's terms and conditions of probation.
Following argument, none of which involved the issue of a search and seizure probationary term, the court appears to have concluded the initial encounter was consensual. Even so, it also determined there were grounds to detain Vigil at the outset, based on the time, dark clothing, and the nearby burglary report from the previous night involving an individual in dark clothing also riding a bike. The court concluded grounds for a continued detention arose when Vigil lied about his residence and gave suspicious responses to questions as to why he was there. The court reasoned: "That kind of information or lack of information indicates to me that the officer would have been derelict in his duties if he hadn't investigated further. [¶] For those reasons, I think the officer's actions were reasonable and your motion to suppress is denied." In its ruling, the court did not mention the subsequent backpack search, any probationary terms, or the prosecution's justifications for the search.
DISCUSSION
Vigil, as the moving party, had the initial burden of proving a warrantless search or seizure was undertaken. (Williams, supra, 20 Cal.4th at pp. 127-128, 136.) The parties stipulated there were no warrants, so Vigil met this threshold, and the burden then shifted to the prosecution to prove any warrantless search or seizure was justified under the Fourth Amendment to the United States Constitution. (Id. at pp. 130, 136-137; People v. Rios (1976) 16 Cal.3d 351, 355-356.) "[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence." (United States v. Matlock (1974) 415 U.S. 164, 177, fn. 14.)
"As the finder of fact in a proceeding to suppress evidence [citation], the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. [Citation.]" (People v. Woods (1999) 21 Cal.4th 668, 673 (Woods).) We view the facts in the light most favorable to the trial court's ruling, resolve all conflicts in its favor, and defer to those express or implied findings supported by substantial evidence. (People v. Jenkins (2000) 22 Cal.4th 900, 969 (Jenkins). Nonetheless, we independently review the trial court's application of the law to the facts. (Id. at p. 969.)
While the parties sometimes conflate them, there are two distinct Fourth Amendment interests at play here as there is both a search and a seizure in this case, and each resulted in evidence Vigil sought to suppress. We therefore address them separately.
I. Seizures: Consensual Encounter or Detention? And When?
A. Consensual Encounters
The California Supreme Court has explained: "Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope and purpose; and formal arrests or comparable restraints on an individual's liberty. [Citations.] . . . Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime." (In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)
"The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur. [Citations.]" (Manuel G., supra, 16 Cal.4th at p. 821.) Basically, "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citations.]" (Florida v. Royer (1983) 460 U.S. 491, 497.) The test for determining the existence of a show of authority is objective; it is "not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed this to a reasonable person." (California v. Hodari D. (1991) 499 U.S. 621, 628.)
"'[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.' [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled." (Manuel G., supra, 16 Cal.4th at p. 821.)
Here, the parties acknowledge Vigil was detained when he was patted down and physically escorted to the curb. We agree. (See Brendlin v. California (2007) 551 U.S. 249, 254 (Brendlin).) However, Vigil argues he was detained from the outset, prior to any questioning, from the moment Johnson illuminated his white side alley light and began to approach the porch. He suggests Johnson's testimony Vigil was not really free to leave even before questioning began demonstrates Vigil was detained at that point. There is nothing in the record to indicate Johnson communicated his subjective intentions to Vigil, or that Vigil is clairvoyant, so this is actually irrelevant to our inquiry. As mentioned above, "[t]he test for the existence of a show of authority is an objective one and thus, '[n]either the officer's uncommunicated state of mind nor the subjective belief of the individual citizen is relevant to the determination of whether a police contact is a detention.' [Citation.]" (People v. Linn (2015) 241 Cal.App.4th 46, 58; see People v. Zamudio (2008) 43 Cal.4th 327, 341 ["[t]he test is 'objective,' not subjective; it looks to 'the intent of the police as objectively manifested' to the person confronted"]; United States v. Mendenhall (1980) 446 U.S. 544, 554, fn. 6 ["the subjective intention of the DEA agent in this case to detain the respondent, had she attempted to leave, is irrelevant except insofar as that may have been conveyed to the respondent"].)
In opposition, the Attorney General posits two arguments: 1) the initial encounter was consensual and thus needed no justification; and 2) even if Vigil is correct and there was a detention at the outset, there were sufficient grounds to detain him at that time anyway. We address them both.
As we observed above, a person is seized within the meaning of the Fourth Amendment when an officer, using a show of authority or physical force, intentionally restrains the person's freedom to move. (Brendlin, supra, 551 U.S. at p. 254.) Even if "an individual's submission to a show of governmental authority takes the form of passive acquiescence . . . a seizure occurs if . . . 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' [Citation.]" (Id. at p. 255.)
On this issue, Vigil argues the facts of this case are closely analogous to the circumstances in People v. Garry (2007) 156 Cal.App.4th 1100 (Garry). We disagree. In Garry, a police officer, who was patrolling "a high-crime, high-drug area" late at night, turned on his patrol vehicle's spotlight, directly illuminating the defendant. (Id. at pp. 1103-1104.) The evidence indicated the officer, "immediately after spotlighting defendant, all but ran directly at him, covering 35 feet in just two and one-half to three seconds, asking defendant about his legal status as he did so." (Id. at p. 1112.) During that approach, defendant indicated that he lived "'right there' and took three or four steps back . . . ." (Id. at p. 1104.) Defendant answered that he was on parole in response to the officer's question whether he was on probation or parole. (Id. at p. 1104.) "[The officer] reached out and grabbed [defendant], but defendant started to pull away 'violently.' As defendant continued to actively resist, [the officer] put defendant in an arm-shoulder lock and put him on the ground and handcuffed him. [The officer] arrested defendant and searched him incident to arrest." (Id. at p. 1104.)
The Garry court concluded: "No matter how politely [the officer] may have stated his probation/parole question, any reasonable person who found himself in defendant's circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be 'under compulsion of a direct command by the officer.' [Citation.]" (Garry, supra, 156 Cal.App.4th at p. 1112.) This case is unlike Garry.
Here, neither Johnson nor his backup used words, gestures, or other coercive conduct to detain Vigil prior to the pat-down. Neither officer displayed or used his weapon, or made any show of force. They did not shine a police vehicle spotlight or other light directly on Vigil, and they did not run at or yell at him, nor command him to do anything. The record does not suggest they spoke to Vigil in a forceful or hostile manner and, although two officers were present, the encounter was brief and casual enough that we do not view this factor as significant in the totality of the circumstances. Even if Vigil may have felt he was "the object of official scrutiny, such directed scrutiny does not amount to a detention." (People v. Perez (1989) 211 Cal.App.3d 1492, 1496.)
Thus, the circumstances that typically demonstrate a detention rather than a consensual encounter were not present. Here, when viewed in the light most favorable to the trial court's ruling, the evidence reflects Johnson initiated a consensual encounter when he parked his patrol car at the curb, illuminated the general area with his white side alley light, and walked up to the porch. The encounter remained consensual while Johnson simply asked Vigil whether he lived there, and determined Vigil had lied to him. Until Johnson physically escorted Vigil over to the curb, there were no objective circumstances to suggest that Vigil was not free to leave or end the exchange and the lower court so found. During this brief three-minute encounter, neither Johnson nor his backup officer, by words or conduct, indicated to Vigil he was not free to leave.
Thus, we conclude Vigil's initial contact with Johnson was a consensual encounter, not a seizure, and required no justification. "The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation." (Florida v. Bostick (1991) 501 U.S. 429, 439.) Johnson's overt actions and conduct did not cause the encounter to ripen into a detention, and while the lower court's ruling in this regard may be somewhat ambiguous, we exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. Here, because we find a consensual encounter, there was no Fourth Amendment seizure prior to the pat-down search, and that ends the inquiry. (People v. Maury (2003) 30 Cal.4th 342, 384.)
Of course, a pat-down is a search, and not a seizure. But because the pat-down search of Vigil's person did not lead to any evidence, there was nothing to suppress, and there is no need for us to evaluate the legality of that particular search. In any event, Vigil does not raise this rather academic issue on appeal.
We next turn to the question whether Vigil's detention at curbside while Johnson ran a records check was supported by sufficient suspicion of criminal activity. On appeal, Vigil argues it was not. We find it was.
B. Detentions
In United States v. Cortez (1981) 449 U.S. 411, the high court stressed the importance of taking into account "the totality of the circumstances" in determining the propriety of an investigative stop or temporary detention: "Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like 'articulable reasons' and 'founded suspicion' are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." (United States v. Cortez, supra, 449 U.S. at pp. 417-418; see also United States v. Arvizu (2002) 534 U.S. 266, 273 (Arvizu) ["When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing"].)
As this court has previously observed, "[t]he touchstone of analyzing a detention, or for that matter any Fourth Amendment issue, is reasonableness." (People v. Foranyic (1998) 64 Cal.App.4th 186, 188 (Foranyic).) That standard is of particular importance when considering the concept of "'reasonable suspicion,'" which governs detentions, because that term "does not lend itself to ready definition." (Id. at pp. 188-189.) Indeed, "[t]he concept of reasonable suspicion, like probable cause, is not 'readily, or even usefully, reduced to a neat set of legal rules.' [Citation.]" (United States v. Sokolow (1989) 490 U.S. 1, 7 (Sokolow).) The Fourth Amendment requires "some minimal level of objective justification" for a detention. (INS v. Delgado (1984) 466 U.S. 210, 217.) That level of suspicion is "considerably less than proof of wrongdoing by a preponderance of the evidence." (Sokolow, supra, 490 U.S. at p. 7; see also Alabama v. White (1990) 496 U.S. 325, 330 [Different in "quantity and content" from that required for probable cause and can "arise from information less reliable than that required to show probable cause"].) "Although an officer's reliance on a mere "'hunch'" is insufficient to justify a stop [citation], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, [citation]." (Arvizu, supra, 534 U.S. at p. 274.) The reasonable suspicion justifying a detention is "simply . . . 'a particularized and objective basis' for suspecting the person stopped of criminal activity, [citation] . . . ." (Ornelas v. United States (1996) 517 U.S. 690, 696.)
Moreover, a reasonable suspicion of involvement in criminal activity may justify a temporary detention even though the circumstances are also consistent with lawful activity. (Sokolow, supra, 490 U.S. at pp. 9-10.) In fact, often the purpose of the detention is to resolve that very ambiguity. (In re Tony C. (1978) 21 Cal.3d 888, 894, superseded by statute on other grounds as stated in In re Christopher B. (1990) 219 Cal.App.3d 455, 460 fn. 2; Illinois v. Wardlow (2000) 528 U.S. 119, 125 [explaining conduct "ambiguous and susceptible of an innocent explanation" could nevertheless support a reasonable suspicion of criminal activity justifying detention by officers "to resolve the ambiguity"].) "'What is required is not the absence of innocent explanation, but the existence of "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" [Citation.] Although each of a series of acts may be "'perhaps innocent in itself,'" taken together, they may "'warrant[ ] further investigation.'" [Citations.] The purpose of the detention is to resolve the ambiguity by allowing the officer to briefly investigate further. [Citations.]" (People v. Brown (2015) 61 Cal.4th 968, 985-986 (Brown).) So long as the facts known to the officer reasonably cause him or her to suspect that the person he or she intends to detain might be or has been involved in criminal activity, the detention is lawful. (United States v. Place (1983) 462 U.S. 696, 702; see United States v. Hensley (1985) 469 U.S. 221, 227-228 [analysis is same if suspicion involves past, as opposed to present or future criminal activity].)
Thus, "[t]o legally detain an individual because of 'suspicious circumstances,' the prosecution must establish on the record that at the moment of the detention, there were specific and articulable facts, which reasonably caused the officer to believe that (1) some activity out of the ordinary had taken place or was occurring or about to occur; (2) the activity was related to crime; and (3) the individual under suspicion was connected to the activity. [Citation.]" (People v. Bower (1979) 24 Cal.3d 638, 644, superseded by statute on other grounds as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733.) In our view, the prosecution met its burden in this regard.
Instructive here is our decision in Foranyic, where we concluded "that a reasonable police officer, considering the totality of the circumstances, would reasonably suspect criminal activity might be afoot upon viewing someone on a bicycle, with an ax, at [3:00 a.m.]. Certainly we would expect a diligent officer to investigate such unusual behavior through the relatively unintrusive means of a detention. This is so even though no recent 'ax crime' had been reported." (Foranyic, supra, 64 Cal.App.4th at p. 189.) "This incident did take place during the hours of darkness. Stygian darkness. No one who has ever worked a graveyard shift can underestimate the significance of any bicycle traffic at that hour, much less lethally armed bicycle traffic. In People v. Holloway (1985) 176 Cal.App.3d 150, 155, the court upheld a detention based upon defendant's presence in a high crime area with four other men. While acknowledging the defendant's right to be in such an area conversing with acquaintances, the court explained, 'Three a.m., on the other hand, is both a late and an unusual hour for anyone to be in attendance at an outdoor social gathering, particularly in a residential neighborhood where he does not reside.' (Id. at p. 155.) We consider it equally unusual to be abroad at that hour on any errand that requires an ax." (Foranyic, supra, 64 Cal.App.4th at p. 190; see also People v. Souza (1994) 9 Cal.4th 224, 241 ["time of night" is a "pertinent factor in assessing the validity of a detention"].)
Although Vigil's cycling activity here was not as dramatic as the ax carried in Foranyic, it was still enough to support a detention; perhaps more so since here Johnson was aware of facts indicative of specific recent nearby criminal activity, whereas in Foranyic, no such concern was present. In addition, the defendant in Foranyic had not given suspicious answers to routine police questioning before he was detained.
We find the initial consensual encounter turned into a detention when Johnson physically escorted Vigil to the curb, patted him down for weapons, and had him sit. While this was a seizure within the meaning of the Fourth Amendment, it was lawful based as it was on a reasonable and articulable suspicion of criminal activity. In our view no detention occurred until after Vigil lied to Johnson about why he was sitting on someone else's porch at 4:30 in the morning. When that information was conjoined with Johnson's observations of Vigil bicycling off the railroad tracks at 4:30 a.m., wearing clothing similar to what a suspect wore on the previous night during a nearby burglary attempt by a man on a bicycle, there were sufficient grounds for an investigative detention. Thus, the lower court did not err in denying this part of the suppression motion, and substantial evidence supports its findings in this regard. This conclusion does not extend to the subsequent search of Vigil's backpack.
II. Searches: The Backpack
Unlike a detention, a limited seizure justified merely by reasonable articulable suspicion of criminal activity, normally a search may only be justified by probable cause, whether with or without a warrant. Below and on appeal, the prosecution has argued the warrantless search of Vigil's backpack was justified by his probationary Fourth Amendment waivers and a concomitant search and seizure condition.
In a curious passage near the end of his brief, and again at oral argument, the Attorney General suggests even if the probation search justification for the backpack search fails, "the objective circumstances independently justified the search of the backpack." No authority is cited for this claim, nor are we told what the "independent objective circumstances" exception to the warrant requirement might possibly be. We are unaware of one. Whatever it is, since it was neither raised below nor supported here by any authority, we need not consider it further.
"A warrantless search is unreasonable under the Fourth Amendment unless it is conducted pursuant to one of the few narrowly drawn exceptions to the constitutional requirement of a warrant. [Citations.]" (People v. Schmitz (2012) 55 Cal.4th 909, 916.) A search pursuant to a valid term of probation is an exception to the warrant requirement, and if established, requires no further justification. (Woods, supra, 21 Cal.4th at pp. 668, 674-675.)
Vigil argues the prosecution failed to present evidence of a waiver, nor of the scope and limits, if any, of a search condition. Vigil also claims Johnson's bare-bones testimony at the suppression hearing was insufficient because the prosecution did not satisfy its Harvey-Madden obligations after having been put on notice Vigil was raising the issue. We find Vigil's argument has merit.
Because there is no evidence the trial court granted (or even considered) the prosecution's request for judicial notice of the case No. 15NF3266 case file, we are not in a position to take such notice on our own. "Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally 'when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.' [Citation.]" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; Evid. Code, §§ 452, subd. (h), 459.)
Even if its existence had been satisfactorily established, the "permissible scope of a probation search is circumscribed by the terms of the search clause, and the scope may vary." (Romeo, supra, 240 Cal.App.4th at p. 951.) Thus, "mere knowledge that someone is on probation and subject to search, without more, may be insufficient where there is a challenge to the search." (Id. at pp. 951-952.) In Romeo, defendant lived in a garage attached to the home of two probationers. (Id. at p. 935.) A searching officer testified he personally knew the probationers were on probation with a search clause and he confirmed their status using a countywide computer system. (Id. at p. 936.) Because there was no other evidence of the precise search condition, the court could not determine whether the authorized scope of the search extended just to the probationers' persons or to all property under their control, including their residence. (Id. at pp. 950-951.) Consequently, the trial court in Romeo erred in denying the suppression motion. (Id. at p. 955.) So too here. In fact, unlike Romeo, in the case before us we do not know how Johnson learned of Vigil's probationary terms, nor whether Johnson used a countywide computer system or simply talked to a dispatcher. Similarly, as in Romeo, here we have no evidence of the actual search condition, nor its scope and limitations, if any.
The Attorney General argues the trial court "could have easily verified appellant's search condition." Perhaps so, but that misses the point, because the trial court never did so. More importantly, the prosecution's burden of proof is just that — proof — and not what a court could have done to satisfy the prosecution's burden for it.
The Attorney General also argues Vigil admitted to Johnson he was on probation for theft-related offenses. Yes, but Vigil did not admit to having a search condition of probation, nor mention its scope and limits, if any, so this is of little evidentiary assistance here. It is true a criminal defendant, in order to obtain a grant of probation, may specifically agree to allow the police to search him and his property without a warrant, and thereby waive his Fourth Amendment rights. (People v. Bravo (1987) 43 Cal.3d 600, 607.) But because any subsequent search is premised on that advance consent, the scope of any search is limited "to the terms articulated in the search clause." (Woods, supra, 21 Cal.4th at p. 681.) Put another way, "a probationer's expectation of privacy, and hence the reasonableness of a warrantless search, may vary depending on the scope of advance consent." (Romeo, supra, 240 Cal.App.4th at p. 950.) To determine "the scope of consent, we must use an objective test, evaluating the terms of the operative search clause in objective terms, without regard to either the subjective understanding the probationer might have [citation] or the searching officer's subjective intent in conducting the search [citation]." (Ibid.) Because we have no evidence of a search clause applicable to Vigil, we have nothing to "evaluate."
Here, "there is nothing in the record to aid an objective evaluation of the scope of advance consent that was given. We do not know whether the authorized scope of search extended just to" Vigil's person, or if it also extended to property under his control. (Romeo, supra, 240 Cal.App.4th at p. 950.) Nor do we know whether a search was authorized, but only for a particular kind of contraband or evidence. (Id. at p. 951.) "The omission of any particulars concerning the authorized scope of the search is not a minor detail. Unlike parole searches — where a searching officer's knowledge of a person's parole status alone is enough to justify a search of the parolee's person or any property under his control, including his residence — the permissible scope of a probation search is circumscribed by the terms of the search clause, and the scope may vary." (Ibid.; see Woods, supra, 21 Cal.4th at p. 681 [search is "limited in scope to the terms articulated in the search clause"].)
The prosecution not only failed to establish Vigil was actually on a probationary search and seizure condition, it also provided no evidence of the scope of any such search and seizure term. Rather, the prosecutor's proof was brief, to say the least:
"[Prosecutor]: [D]id you conduct a records check on the defendant?
"[Johnson]: I did.
"[Prosecutor]: And what, if anything, did that records check reveal?
"[Johnson]: He was on probation with search and seizure."
"[[¶] . . . [¶]]
"[Prosecutor]: Okay. What, if anything [else], did you ask him?
"[Johnson]: Why he was on probation.
"[Prosecutor]: And what did he tell you?
"[Johnson]: Getting caught with someone else's stuff.
"[Prosecutor]: And did you ask him about that further?
"[Johnson]: I did.
"[Prosecutor]: And what did he say?
"[Johnson]: I asked him if it was for burglary.
"[Prosecutor]: And what was his response?
"[Johnson]: Something like that."
This was the entirety of the evidence presented on this topic at the suppression hearing. The prosecutor never referred to the probation file she had asked the court to notice, nor did she ever establish any actual "search and seizure" term. While she quoted a search term in her moving papers, she produced no evidence it was Vigil's, or was in effect at the time police searched his backpack. Indeed, her moving papers do not even identify the unattributed quotation with a reference. The Attorney General attempts to avoid this rather inconvenient shortcoming by suggesting the prosecution offered its needed evidence by quoting unknown probationary order language in its moving papers. Offers of proof are not proof, and absent stipulations, evidentiary hearings are not resolved by the briefs. More importantly, the Evidence Code, including its hearsay rules, applies equally to section 1538.5 suppression motions (Evid. Code, §§ 130, 300; Romeo, supra, 240 Cal.App.4th at p. 940), and foundationally deficient hearsay in a party's brief is still hearsay.
In assessing "the legality of a warrantless search or seizure, the People are obligated to produce proof sufficient to show, by a preponderance of the evidence, that the search fell within one of the recognized exceptions to the warrant requirement. [Citations.]" (Romeo, supra, 240 Cal.App.4th at p. 939, italics added.) Here, the prosecution neglected to provide that necessary proof.
The Attorney General maintains the fact Vigil's probation was revoked and terminated following the preliminary examination shows the motion hearing court was aware of case No. 15NF3266, the probationary case, and its contents. This fails to recognize the preliminary examination was held before a different superior court judge, and not the judge who heard the suppression motion. Moreover, the preliminary examination transcript makes no mention of Vigil's probationary terms, and since no suppression motion was made at that hearing, even reading that document would not have assisted the motion hearing judge in any event.
In addition, while the superior court docket shows case No. 15NF3266 was "kept with" the instant case up to and through the preliminary examination, by the time the suppression motion hearing was heard, reference to case No. 15NF3266 is no longer found in the docket. Finally, the docket also fails to show the case No. 15NF3266 case file was ever sent to the court to consider on the day of the suppression motion hearing. From this we must conclude the case file in case No. 15NF3266 was not before the court when the motion was heard, and the Attorney General does not point to any evidence to the contrary.
As we observed above, "mere knowledge that someone is on probation and subject to search, without more, may be insufficient where there is a challenge to the search." (Romeo, supra, 240 Cal.App.4th at pp. 951-952.) As in Romeo, in this case "the limited evidentiary presentation the prosecutor chose to make leaves us with no objective grounds upon which to rely in evaluating whether the permitted scope of search was exceeded." (Id. at p. 952.)
The Attorney General insists Vigil forfeited this claim by not reiterating it during his counsel's oral argument at the conclusion of the motion hearing. The cases he cites in support, however, are unavailing. People v. Hawkins (2012) 211 Cal.App.4th 194, involved the procedural requirement a defendant in a section 995 motion must renew his grounds for suppression in the superior court after his section 1538.5 motion is denied by a magistrate at a preliminary examination. (Id. at pp. 203-204.) His references to People v. French (2008) 43 Cal.4th 36, and People v. Walker (1991) 54 Cal.3d 1013, are also inapposite. French involved a waiver of the Sixth Amendment right to a jury trial, and simply stated the established rule "[o]rdinarily an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. [Citation.]" (French, supra, 43 Cal.4th at p. 46.) Here, Vigil's Harvey-Madden claim was specifically made in his motion to suppress in the lower court, so French is inapt. Walker is off-point as well, involving as it did a defendant's failure to object to a fine imposed at the time of his sentencing. (Walker, supra, 54 Cal.3d at p. 1023, overruled on other grounds by People v. Villalobos (2017) 54 Cal.4th 177, 183.)
More on point is Williams, where our Supreme Court rejected a similar argument in an inventory search case: "[D]efense counsel did not expressly concede the issue. Counsel was of course free to focus his oral argument on one aspect of his motion and not another. Therefore, we find no significance in the fact that defense counsel did not specifically discuss the issue. . . . [D]efense counsel's argument came after the prosecution presented evidence. Therefore, nothing in that argument can explain the gap in the prosecution's evidence." (Williams, supra, 20 Cal.4th at pp. 137-138.)
The Attorney General also suggests Vigil abandoned his challenge to the backpack search when counsel "informed the trial court that he was only contesting the initial detention." The portion of the record cited in support, however, does not support that claim. Instead, it involves Vigil's counsel explaining her argument why a flawed detention would result in all subsequent evidence, including the contents of the backpack, being suppressed as unlawful fruit of the proverbial poisonous tree.
Basically, the Harvey-Madden rule "[i]n its most conventional application" is "nothing more than the hearsay rule adapted specifically to motions to suppress." (Romeo, supra, 240 Cal.App.4th at p. 944.) "An officer may arrest or detain a suspect 'based on information received through "official channels.'" [Citations.]" (Brown, supra, 61 Cal.4th at p. 983.) Upon proper objection, """the People must prove that the source of the information is something other than the imagination of the officer who does not become a witness."" [Citations.]" (Ibid.) Thus, for example, if an in-field officer receives a dispatch referring to a 911 call, the prosecution may be required to bring in the dispatcher to testify. It may also satisfy Harvey-Madden indirectly, by producing the 911 call itself, thereby corroborating the in-field officer's testimony, and assuring "the source of the information is something other than the imagination of the [dispatching] officer who does not become a witness. [Citations.]" (Brown, supra, 61 Cal.4th at p. 683.)
However, even assuming a properly authenticated statement of a suspect's search and seizure terms of probation would be sufficient to provide such corroboration, we cannot get that far, because we have no evidence of what Johnson was told, or by whom (or what). In other words, we have nothing to corroborate.
The prosecution failed to provide specific and reliable non-hearsay evidence of its justification for the warrantless search of Vigil's backpack sufficient to meet its burden at the suppression motion hearing. By citing Harvey-Madden in his moving papers, Vigil was in effect making an advance hearsay objection should the prosecution attempt to introduce evidence from non-testifying sources to justify a warrantless search. Had the court taken notice of its file in case No. 15NF3266, or had the prosecutor provided a certified copy of Vigil's search and seizure terms, a Harvey-Madden objection would likely not have been well taken. Depending on the details of those probationary terms, the prosecution may well have satisfied its evidentiary burden, and the backpack search may have been found lawful. But we do not know, because it failed to do so.
In his final argument, the Attorney General appeals to the "good faith" exception to the warrant requirement, and in support cites Davis v. United States (2011) 564 U.S. 229, among other cases. Ordinarily, the prosecution may not on appeal advance a new theory to support the denial of a defendant's motion to suppress. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640; but see People v. Moore (2006) 39 Cal.4th 168, 177 [following appellate reversal, it may be appropriate to remand for new suppression hearing where significant, intervening change in the law].) In this case, the prosecution did not raise the "good faith" exception to exclusionary rule below, and the cases the Attorney General relies upon all pre-date the search of Vigil's backpack, so there has been no intervening change in the law.
Moreover, "appellate courts should not consider a Fourth Amendment theory for the first time on appeal when 'the People's new theory was not supported by the record made at the first hearing and would have necessitated the taking of considerably more evidence . . . ' or when 'the defendant had no notice of the new theory and thus no opportunity to present evidence in opposition.' [Citation.]" (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1242; see also Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 942 ["[T]he good faith exception depends upon ascertaining and evaluating facts about the police investigation"].)
The question here is not whether Johnson acted in good faith, and we do not suggest Johnson did anything otherwise. Rather, the issue is whether the prosecution presented evidence he did so. (Romeo, supra, 240 Cal.App.4th at p. 946, fn. 9, citing People v. Collins (1997) 59 Cal.App.4th 988 and People v. Armstrong (1991) 232 Cal.App.3d 228, 241 [distinguishing ultimate question of admissibility under exclusionary rule (i.e., "good faith"), and the more simple threshold question of evidentiary sufficiency].) As in Romeo, "[t]here is no question presented in this case of good faith reliance on inaccurate information . . . . The issue, instead, is whether [the officer] had sufficient information to act without a warrant." (Romeo, supra, 240 Cal.App.4th at pp. 945-946, fn. omitted.) Since the prosecution neglected to establish any details regarding Johnson's records check, or to confirm Vigil actually had a search and seizure term of probation we cannot even reach the question whether Johnson's reliance on his records check was reasonably made in good faith.
We conclude the prosecution failed to meet its burden to prove Vigil's probationary terms and conditions. Instead, the prosecution established Vigil admitted he was on probation, and Johnson received information from somewhere Vigil's probation included a search and seizure term of some kind. That was not enough. No exception to the Fourth Amendment's warrant requirement was shown to justify the warrantless search of Vigil's backpack. On the record before us, it was unlawful, and the results of that search should have been suppressed. Because some of that evidence was introduced at trial, and its probity is manifest, we further find its introduction was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
DISPOSITION
The judgment is reversed, with directions to grant the suppression motion as to the contents of Vigil's backpack.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. MOORE, J.