Opinion
Review Granted May 13, 1998.
Previously published at 61 Cal.App.4th 246
Daniel E. Lungren, Attorney General and John H. Deist, Deputy Attorney General, for Appellant.
Carlton E. Lacy, First District Appellate Project, Walnut Creek, for Respondent Woods.
David J. Briggs, First District Appellate Project, for Respondent Benson.
PARRILLI, Associate Justice.
Defendants Cheryl Woods and William Benson shared a residence with Gayla Loza. Loza was on felony probation and had agreed to submit her residence to warrantless searches as a condition of probation. During a warrantless probation search of Loza's residence, the police uncovered evidence of criminal activity (drugs and firearms) against Woods and Benson. The superior court concluded the police obtained the evidence against the defendants as the result of a pretextual probation search. That is, the court found the police had searched the defendants' residence not to discover evidence that the probationer had violated her probation, but instead to obtain evidence of criminal We affirm the judgment under the compulsion of People v. Pipitone (1977) 86 Cal.App.3d 681, 152 Cal.Rptr. 1, although we express grave doubts concerning the continuing validity of that case.
I
FACTS
Viewing the evidence in the light most favorable to defendants, as we must in this case (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621; People v. Green (1996) 46 Cal.App.4th 367, 372, 54 Cal.Rptr.2d 12; People v. Pipitone, supra, 86 Cal.App.3d 681, 683, 152 Cal.Rptr. 1), the record discloses the following facts:
" ' "A proceeding under [Penal Code] section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact." [Citation.]' [Citation.] (Italics added.) In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence. The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution. Although that issue is a question of law, the trial court's conclusion on the point should not lightly be challenged by appeal or by petition for extraordinary writ. Of course, if such review is nevertheless sought, it becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness." (People v. Lawler, supra, 9 Cal.3d at p. 160, 107 Cal.Rptr. 13, 507 P.2d 621, quoted in People v. Green, supra, 46 Cal.App.4th at p. 372, 54 Cal.Rptr.2d 12.)
Antioch Police Officer Norm Wielsch was on patrol in a marked police car on the night of September 9, 1995. About 8:30 p.m. he saw Jason Mofield walking from a house at 615 West 9th Street. Mofield was carrying a long object which was covered with a cloth.
Officer Wielsch was suspicious of Mofield. Based on his past experience and a recent tip he had received, Wielsch believed someone was selling drugs from the house Mofield had just left. Three days before, an unidentified man told Wielsch he had recently purchased drugs at 615 West 9th Street. In addition, Wielsch had helped execute a narcotics search warrant at that house about a year earlier. The long object Mofield was carrying appeared to be a weapon of some kind.
Officer Wielsch made a U-turn to follow Mofield. As Mofield continued walking up the street, he moved the cloth-covered object from hand to hand and behind his back. When Mofield walked into a private driveway, Wielsch pulled in behind him. Wielsch told Mofield to keep his hands where the officer could see them. Mofield raised the cloth-covered object above his head and two plastic baggies fell to the ground. One contained white substance and the other appeared to contain marijuana. Wielsch immediately grabbed Mofield and pulled the long object from his hand. As he did so, Mofield used his other hand to throw a glass pipe and several baggies into some nearby ivy. After Wielsch handcuffed Mofield, he picked up the cloth-covered object and discovered it was a long fixed-blade knife.
Wielsch arrested Mofield and took him to the police station. During booking, Mofield said he lived with his girlfriend, Gayla Loza, at 615 West 9th Street. Wielsch was familiar with Loza because he had seen her while executing a search warrant at another location. He also knew Loza was currently on felony probation for receiving stolen property, and that she had consented to warrantless searches as a condition of probation. Officer Wielsch believed Mofield might have other drugs stored at the residence. Consequently, he decided to conduct a warrantless probation search to look for drugs in the house.
Immediately after he booked Mofield, Officer Wielsch drove back to 615 West 9th Street. Ms. Loza met him at the front door. Officer Wielsch told Loza he was going to search her residence. She responded by saying "No." Wielsch then said: "Well, you're on probation and we're going to search it." Wielsch entered the house and The superior court granted defendants' motion to suppress evidence. The court specifically found Wielsch had used the "probation search" as a pretext to search the residence for evidence against Mofield. The court stated: "In this particular case the facts pretty well indicate that Mofield was the main guy. Mofield got arrested. Mofield is close to the place. The officer testified that he had some information I believe there had been drug dealings going on before. He certainly could have done a search on Ms. Loza earlier if he wanted to. If he thought drug dealing was going on there.... [This was] [a]n easy way to do it while she's on probation, let's go in that way rather than going in with a warrant. [p] Pipitone [People v. Pipitone (1977) 86 Cal.App.3d 681, 152 Cal.Rptr. 1] says you can't do [that].... I don't believe W[h]ren [Whren v. U.S. (1996) 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89] addresses directly [the] issue as to whether or not Pipitone is no longer good law in this case. Pipitone essentially says that you cannot search a probationer unless you have some reason to do so that goes to the terms and conditions of probation. You can't use it as a subterfuge to get into a place. And I think essentially that's what was going on here. It just all happened so close together.... Motion to suppress is granted."
The court denied Mofield's motion to suppress the evidence the police obtained during Mofield's detention.
II
DISCUSSION
In People v. Pipitone, supra, 86 Cal.App.3d 681, 152 Cal.Rptr. 1, this appellate district held that when the police conduct a warrantless residential search pursuant to a probation search condition for the sole purpose of obtaining evidence against a probationer's cotenant they violate the Fourth Amendment. (86 Cal.App.3d at pp. 686-688, 152 Cal.Rptr. 1.)
In Pipitone, supra, 86 Cal.App.3d 681, 152 Cal.Rptr. 1, the police conducted a lengthy investigation which indicated Pipitone was manufacturing PCP and that there might be evidence of that crime in his home. Pipitone lived with his wife, Linda, who was on misdemeanor probation for a drug-related conviction. As a condition of her probation, Linda had consented to permit the police to search her residence without warrant at any time. Although the police had ample evidence to obtain a search warrant against Pipitone, they did not obtain a warrant. Instead, they arrested Pipitone at his home and then searched his home pursuant to Linda's probation search condition. (Id., at pp. 683-685, 152 Cal.Rptr. 1.) The superior court found the officers' sole purpose in searching the residence was to obtain evidence against Pipitone, and Linda's involvement was "purely coincidental." (Id., at pp. 686-687, 152 Cal.Rptr. 1.) The appellate court affirmed the order suppressing evidence. The court noted: "By finding that the officers' sole purpose was to collect evidence against respondent, the [superior] court determined that they pursued it for the ostensible purpose of executing Linda's search condition. In granting the motion to suppress, the [superior] court accordingly applied the rule that 'where the right to conduct a search is obtained ostensibly for one purpose it may not Pipitone--if it is still good law--controls this case. Viewing the lower court's statements in the light most favorable to the suppression order, we conclude the court found as a matter of fact that the sole purpose of the search was to obtain evidence against Mofield, not to investigate whether Loza had violated her probation. (People v. Pipitone, supra, 86 Cal.App.3d at p. 687, 152 Cal.Rptr. 1; 6 Witkin, California Criminal Law (2d ed. 1989) Appeal § 3206, p. 3964 ["It is a generally accepted principle of appellate review, in both civil and criminal cases, that where the evidence is in substantial conflict, the ... finding of the judge on issues of fact will not be disturbed. In other words, the judgment is presumed correct...."].) This is evidenced by the court's explicit reliance on Pipitone, and its statement that "[y]ou can't use [a probation search condition] as a subterfuge to get into a place. And I think essentially that's what was going on here. It just all happened so close together."
In Pipitone, there was a dispute whether the superior court had in fact found the sole reason for the search was to obtain evidence against Pipitone. (86 Cal.App.3d at pp. 686-687, 152 Cal.Rptr. 1.) The appellate court concluded that, read in the light most favorable to the suppression order, the record showed that the superior court had in fact found the officers' sole purpose in conducting the search was to uncover evidence against Pipitone. (Ibid.)
Moreover, although we might have reached a different conclusion had we been the factfinders in this case, there is substantial evidence to support the superior court's factual finding that, subjectively, Officer Wielsch's sole reason for searching the residence was to discover evidence against Mofield. (People v. Pipitone, supra, 86 Cal.App.3d at p. 689, 152 Cal.Rptr. 1.) We are therefore bound by this finding of fact, even though we do not necessarily agree with it.
Although the People essentially concede Pipitone would control this case if it were still good law, they contend subsequent developments since Pipitone have undermined that case. First, they cite People v. Bravo (1987) 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336, where the California Supreme Court held that a probation search condition which permits a search without a warrant also permits a search without "reasonable cause." (Id., at pp. 602, 609-610, 238 Cal.Rptr. 282, 738 P.2d 336.) Thus, the People contend, "any search of a probationer is proper so long as the search is conducted in a reasonable manner, and is not intended solely to harass the probationer." However, in Bravo, the Supreme Court also stated: "We do not suggest that searches of probationers may be conducted for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes. A waiver of Fourth Amendment rights as a condition of probation does not permit searches undertaken for harassment or searches for arbitrary or capricious reasons. ( ....; cf. People v. Pipitone (1978) 86 Cal.App.3d 681, 688, 152 Cal.Rptr. 1 [pretext search].) We hold only that a search condition of probation that permits a search without a warrant also permits a search without 'reasonable cause,' as the former includes the latter." (Id., at pp. 610-611, 238 Cal.Rptr. 282, 738 P.2d 336.)
Thus, the California Supreme Court did not explicitly decide that pretext searches (a la Pipitone ) are now proper; in fact, the Bravo court's "cf." citation to Pipitone suggests it considered pretext searches among--or at least analogous to--improper searches which are conducted for "arbitrary or capricious reasons."
According to the California Style Manual (3d ed.1986) section 101, "When the cited case deals with an analogous situation, as when there is a similar statute, and the decision is in accord, the citation should be preceded by the abbreviation 'cf.' "
Nor are we persuaded by the People's citation to cases where the courts have relied on probation search conditions to justify otherwise unlawful searches even where the searching officers were unaware of the search condition. The rationale of those cases is that an adult probationer who consents to a search has voluntarily waived his
This is not to say we would decide Pipitone the same way today were we writing on a clean slate. It is clear here and in Pipitone, that, regardless of the officer's subjective intent, the objective facts justified the police intrusion into the probationer's residence. Under Bravo, an officer does not need reasonable cause to conduct a search pursuant to a probation search clause. However, where there is reasonable cause to believe contraband is in a probationer's house, the police are amply justified in entering the house to determine if the probationer is complying with the terms of probation. In these circumstances, the police are objectively carrying out a "legitimate law enforcement purpose" within the meaning of Bravo.
Moreover, there is a clear trend in Fourth Amendment jurisprudence to ignore the officer's subjective intent--which Pipitone focuses on--and to focus instead on whether the facts objectively justify the action the officer has taken. If we were to take that approach in this case, we would reverse the suppression order.
The United States Supreme Court most recently applied this principle in Whren v. United States, supra, 517 U.S. 806, 116 S.Ct. 1769, a case which both parties to this appeal argue in great detail. In Whren, the Supreme Court held that the temporary detention of a motorist whom the police have probable cause to believe has committed a civil traffic violation is reasonable under the Fourth Amendment even if the detaining officers subjectively stopped the car to search for illegal drugs. In that case, undercover police officers temporarily detained a motorist whom the officers had probable cause to believe had committed a civil traffic violation. There was evidence, however, that the officers actually stopped the motorist to investigate whether he was engaged in illegal drug dealing. In the course of the temporary detention of the motorist and his passenger, the police spotted crack cocaine in plain view inside the vehicle. The defendants in Whren moved to suppress the drug evidence on the ground the officers' traffic stop was a mere pretext to search their car for evidence of drugs. (--- U.S. at p. ----, 116 S.Ct. at p. 1772.)
The Court in Whren expressly rejected the pretext argument, at least in the context of searches based on probable cause. The court flatly dismissed the notion that "ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred." (517 U.S. at p. ----, 116 S.Ct. at p. 1773; see also U.S. v. Hudson (9th Cir.1996) 100 F.3d 1409, 1415.) The People argue the same rule should apply in this case.
Defendants counter by contending the Supreme Court's holding in Whren is limited to police action that is justified by probable cause. There is some basis for this contention. In Whren, the Court stated:
"Petitioners contend that the standard they propose is consistent with our past cases' disapproval of police attempts to use Defendants contend the passage just quoted stands for the proposition that where the search is justified by a special purpose (such as in the case of an administrative or inventory search) rather than by ordinary probable cause, then "a defendant can still claim that in actuality the search was not made for the special purpose and is hence illegal."
We would not read the quoted passage as broadly as defendants do. In our view, the Court's opinion indicates it was not considering the pretext argument in the context of administrative or inventory searches, but only in the specific context before it: an automobile stop justified by probable cause. However, the Whren court apparently limited its holding to the statement that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." (517 U.S. at p. ----,116 S.Ct. at p. 1774, italics added; see U.S. v. Hudson, supra, 100 F.3d at p. 1415.)
In Hudson, supra, the Ninth Circuit held that the Whren analysis applies to arrests based on ordinary probable cause. The Hudson Court reasoned: "Whren's rationale dictates application of the Whren standard to the arrest in this case. Whren made clear that where 'police conduct [ ] is justifiable on the basis of probable cause to believe that a violation of law has occurred,' we may not inquire into whether the officer's behavior had improper motives or deviated from the typical practice of reasonable officers. Because the police action in this case--arrest--is subject to 'an ordinary, probable-cause Fourth Amendment analysis,' ... we conclude that Whren sets forth the applicable standard for arrests alleged to be pretextual." (100 F.3d at pp. 1415-1416.)
Here, of course, the warrantless search of defendants' residence was not justified by "ordinary probable cause." Even if the police did have probable cause to search the residence based on their encounter with Mofield, probable cause alone would not have excused the police from obtaining a warrant. Thus, probable cause alone could not have justified the police action in this case (searching the residence without a warrant). (Coolidge v. New Hampshire (1971) 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564; People v. LeBlanc (1997) 60 Cal.App.4th 157, 166, 70 Cal.Rptr.2d 195.) Instead, the police must rely on the existence of Ms. Loza's search condition to justify the warrantless entry.
Nevertheless, other statements in the Whren opinion indicate the Supreme Court would be willing to extend its analysis to the probation search condition context. In rejecting the notion that an officer's subjective intent is relevant in the context of a search which is justified by probable cause, the Court stated: "Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary.... In United States v. Robinson, 414 U.S. 218, 94 S.Ct. If we were to accept this final statement as an accurate description of current Fourth Amendment law, then there is no question the "probation" search in this case would be lawful, regardless of the officer's subjective intent. This is because Ms. Loza's probation search condition, viewed objectively, justified the officer's action in searching her house. The facts as found by the trial court were that Officer Wielsch believed Mofield had drugs within the probationer's residence. It makes no sense to say the officer believed there were drugs in the probationer's house and had a recent tip that drugs were being sold from the probationer's house, and not authorize entry under the search condition to see if the probationer was in violation of her probation. Viewed objectively, there simply is no "pretext" in this factual setting. Only a search will determine whether contraband is in the house and whether the probationer is in actual or constructive possession of it. The fact the officer did not have the state of mind which is hypothecated by the reasons which provide the legal justification for the search--namely, to determine if the probationer was complying with probation--would not invalidate the search.
Nevertheless, we are unable to abandon Pipitone because our Supreme Court has tacitly approved that case. As we discussed above, the California Supreme Court held in Bravo that a probation search may not be "undertaken for harassment or ... for arbitrary or capricious reasons." (43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336.) To support this statement, the Supreme Court gave a "cf." citation to "People v. Pipitone (1977) 86 Cal.App.3d 681, 688, 152 Cal.Rptr. 1 [pretext search]." (43 Cal.3d at pp. 610-611, 238 Cal.Rptr. 282, 738 P.2d 336.) In our view, the Bravo court's "cf." citation to Pipitone suggests it considered "pretext" searches among--or at least properly analogous to--improper searches which are conducted for "arbitrary or capricious reasons." (See fn. 4, ante.)
We are aware Bravo's tacit approval of Pipitone is dicta. However, our Supreme Court's dicta is highly persuasive, and we may not lightly ignore it. (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 328, 27 Cal.Rptr.2d 406; In re Brittany M. (1993) 19 Cal.App.4th 1396, 1403, 24 Cal.Rptr.2d 57; Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 212, 262 Cal.Rptr. 513; Jermstad v. McNelis (1989) 210 Cal.App.3d 528, 549, 258 Cal.Rptr. 519 ["Regardless of compulsion, the views expressed in a majority opinion of our Supreme Court are entitled to respectful deference in the absence of persuasive argument to the contrary."].) To paraphrase the court in People v. Jones (1991) 234 Cal.App.3d 1303, 1311-1312, 286 Cal.Rptr. 163 "we are disinclined to take issue with [Pipitone ] in the face of our Supreme Court's ... approving reference to [Pipitone ] in the [Bravo ] opinion...."
Moreover, Whren does not clearly overrule Pipitone. Whren explicitly distinguished the administrative and inventory search cases on the basis they involved searches which were not justified by probable cause. (517 U.S. at p. ----, 116 S.Ct at p. 1774; U.S. v. Hudson, supra, 100 F.3d at p. 1415). The Whren court limited its holding to ordinary, probable-cause Fourth Amendment analysis. (Id., at pp. ---- - ----, 116 S.Ct. at pp. 1771-1772 ["In this case, we decide whether the temporary detention of a motorist who the police We believe there is ample reason to question Pipitone in light of the trend toward ignoring the officer's subjective intent, and asking only whether the facts objectively justified the officer's action. Here, the record supports a finding that objective facts existed which justified police entry under the search clause to determine whether Ms. Loza was violating her probation, regardless of the officer's subjective intent in conducting the search. We note that the rights of third parties who share residences with probationers--such as the defendants in this case--would be protected by the rule that the police may only search those portions of the residence they reasonably believe the probationer has complete or joint control over. (People v. Johnson (1980) 105 Cal.App.3d 884, 888, 164 Cal.Rptr. 746; People v. Lajocies (1981) 119 Cal.App.3d 947, 955, 174 Cal.Rptr. 100; People v. Fuller (1983) 148 Cal.App.3d 257, 265, 210 Cal.Rptr. 1.) If the officers came across a room or area that was under the sole control of the probationer's cotenant, they would have to obtain a search warrant to search that room or area.
In sum, we conclude our Supreme Court or the United States Supreme Court could--and may--extend the Whren analysis to "pretextual" probation searches. In this case, we conclude they have not done so yet and, in light of the Supreme Court's tacit approval of Pipitone, we do not believe it is our office to do so on their behalf.
III
DISPOSITION
The judgment is affirmed.
CORRIGAN, Acting P.J., and WALKER, J., concur.