# People v. Marcellus L.

> California Court of Appeal · April 10, 1991 · 229 Cal. App. 3d 134

URL: https://www.frixlaw.com/law-library/cases/9731615

## Case

- **Full name:** In Re MARCELLUS L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MARCELLUS L., Defendant and Appellant
- **Court:** California Court of Appeal
- **Decided:** April 10, 1991
- **Citations:** 229 Cal. App. 3d 134; 279 Cal. Rptr. 901; 91 Daily Journal DAR 4193; 91 Cal. Daily Op. Serv. 2591; 1991 Cal. App. LEXIS 1044
- **Precedential status:** Published
- **Opinion:** Dissent by Reardon
- **Judges:** Anderson, Reardon
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9731615

## Opinion text

REARDON, J.
I respectfully dissent from the conclusion reached by my learned colleagues in the majority. Today, we dispense with a requirement under existing law relating to the search of a probationer by police. The requirement eliminated is knowledge by the searching officer that the person searched is a probationer with a search condition. This holding takes us beyond Bravo (People v. Bravo (1987) 43 Cal.3d 600 [ 238 Cal.Rptr. 282 , 738 P.2d 336 ]), and represents an extension that is not only unsupported by, but is inconsistent with, Bravo and Griffin v. Wisconsin (1987) 483 U.S. 868 [ 97 L.Ed.2d 709 , 107 S.Ct. 3164 ], relied on by the majority.
In Bravo, supra, our Supreme Court held that a search of the home of a probationer with a search condition, by police officers with knowledge of that search condition ( 43 Cal.3d at p. 603 ), was permissible in the absence of reasonable or probable cause. In so holding, the court reasoned that a probationer’s search condition was equivalent to a consent to search. Therefore, if the searching officer was aware of the search condition or consent, nothing more by way of justification is required. “Our interpretation of the scope of appellant’s consent in agreeing to the search condition of his probation is consistent with the dual purpose of such a provision ‘to deter further offenses by the probationer and to ascertain whether he is complying with the terms of his probation’.” (Id., at p. 610, citing People v. Mason *147 (1971) 5 Cal.3d 759, 763 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ].) The Bravo court, nonetheless, observed: “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.” {Ibid.) This language, in my opinion, compels the conclusion that the searching officer must, at a minimum, know that the person to be searched is a probationer with a search condition.
Clearly, in order to have the requisite reason related to the “rehabilitative and reformative purposes of probation,” the searching officer must have knowledge that the defendant is indeed on probation. In the absence of such knowledge, the objective of the search is simply unrelated to any proper probationary purpose. Secondly, the language “other legitimate law enforcement purpose” must be construed in this same context. In short, this terminology can only refer to observations of activity not amounting to reasonable or probable cause to search but which activity is inconsistent with defendant’s status as a probationer, a status that requires the probationer to refrain from violations of the law. In either or both situations, knowledge of the defendant’s probationary status is essential.
Additionally, the very rationale of Bravo , that a probationary search condition is equivalent to consent, compels the conclusion that the search condition must be known to the searching officer. It seems well settled that where a search is sought to be justified on the basis of consent, the consent must be known or apparent to the searching officer before the search is conducted. (See, for example, People v. Poole (1986) 182 Cal.App.3d 1004, 1013 [ 227 Cal.Rptr. 594 ]; People v. Haven (1963) 59 Cal.2d 713, 719 [ 31 Cal.Rptr. 47 , 381 P.2d 927 ].) Without knowledge of consent, there can be no consensual search. This well-established rule is not changed or altered because the consent is embodied in a search condition rather than expressed at the time of the actual search.
“[Appellant’s waiver of his Fourth Amendment rights must be interpreted on the basis of an objective test. Law enforcement officers who rely on search conditions in probation orders, the probationer himself, and other judges who may be called upon to determine the lawfulness of a search, must be able to determine the scope of the condition by reference to the probation order. We cannot expect police officers and probation agents who undertake searches pursuant to a search condition of a probation agreement to do more than give the condition the meaning that would appear to a reasonable, objective reader. . . . The search condition must therefore be interpreted on the basis of what a reasonable person would understand from the language of the condition itself . . . . ” (People v. Bravo, supra, 43 Cal.3d at pp. 606-607, fn. omitted.)
*148 If knowledge of the search condition by the searching officer is no longer relevant, as the majority holds, why would the court in Bravo find it necessary to discuss the “objective” reasonableness of the officer’s interpretation of the search condition? For that matter, how is a search condition “interpreted” by the officer if he or she is unaware of the condition? The answer seems clear: to justify a search on the basis of a search condition, the condition must be known by the person conducting the search. Bravo , therefore, not only fails to support the rule announced by the majority, but in fact by its rationale dictates a contrary result.
The majority’s reliance on Griffin v. Wisconsin, supra, is misplaced. In Griffin , like Bravo , the person conducting the search knew that the person to be searched was a probationer. In upholding a warrantless search of a probationer’s home by a probation officer, the Supreme Court approved a regulation adopted under Wisconsin law that was described by the court as follows: “One of the Department’s regulations permits any probation officer to search a probationer’s home without a warrant as long as his supervisor approves and as long as there are ‘reasonable grounds’ to believe the presence of contraband—including any item that the probationer cannot possess under the probation conditions.” (Griffin v. Wisconsin, supra, 483 U.S. at pp. 870-871 [ 97 L.Ed.2d at p. 715 ].) Griffin , therefore, upholds a state’s regulation authorizing a probation officer to conduct a warrantless search of the home of the probationer that he is supervising when there are “reasonable grounds” to believe that contraband is present. The decision does not support the proposition that a police officer may conduct an unreasonable search of an individual and have that search subsequently validated if the individual happens to be a probationer with a search condition, a fact unknown to the officer at the time of the search. In fact, the courts of this state have repeatedly rejected this subsequent validation theory.
In In re Martinez (1970) 1 Cal.3d 641 [ 83 Cal.Rptr. 382 , 463 P.2d 734 ], a case involving a parolee with a search condition unknown to the searching officer, the court stated: “The investigation involved suspected criminal activity, not parole violations. Under these circumstances the officers cannot undertake a search without probable cause and then later seek to justify their actions by relying on the defendant’s parole status, a status of which they were unaware at the time of their search.” (Id., at p. 646.) In People v. Gastelum (1965) 237 Cal.App.2d 205, 207 [ 46 Cal.Rptr. 743 ], involving a similar parolee search, the court observed: “It is also true that when law enforcement officers are unaware of a defendant’s parolee status the fact of parole is irrelevant and cannot justify an otherwise unlawful search.” (See also People v. Gallegos (1964) 62 Cal.2d 176, 178 [ 41 Cal.Rptr. 590 , 397 P.2d 174 ].) Although the above cited authorities involved parolees and not probationers, and although there are recognized distinctions “between *149 probation and parole searches” (People v. Bravo, supra, 43 Cal.3d at p. 608 ), no distinction has ever been drawn to eliminate the requirement of knowledge that the person searched is either a parolee or a probationer. No such distinction, in my opinion, should be drawn. To dispense with the parole search requirement of “reasonable suspicion” in searching probationers (id., at p. 609) is one thing; to eliminate the requirement of knowledge of the search condition is an entirely different proposition. 1
Finally, it is argued that the search condition eliminates any reasonable expectation of privacy on the part of the probationer and, therefore, the probationer should not be heard to complain when searched by an officer who lacks knowledge of the search condition. In support of this position, the observation is made that the search condition does not expressly provide that the officer have knowledge of the search condition.
With respect to this latter observation, the absence of such an express provision in the search condition as somehow limiting the probationer’s expectation of privacy is unpersuasive. The current search condition does not contain an express provision that the police comply with the “knock-notice” requirements of Penal Code section 844, yet that protection or expectation is clearly recognized. (See People v. Negrete (1978) 82 Cal.App.3d 328, 336 [ 147 Cal.Rptr. 101 ].) Similarly, the current search condition does not contain an express provision informing the probationer that he or she may not be searched for purposes of “harassment or . . . for arbitrary or capricious reasons.” (People v. Bravo, supra, 43 Cal.3d at p. 610 .) Nonetheless, the probationer is protected from this type of activity. The absence of an express provision in the search condition that the officer have knowledge of the condition before searching the probationer is not controlling. What is controlling is “what a reasonable person would understand from the language of the condition itself . . . .” (Id., at p. 607.)
A reasonable person would understand the search condition to mean that he or she consents to be searched without a warrant and without reasonable or probable cause. This same reasonable person would also understand that if such a search is to be conducted, it will be conducted pursuant to the *150 search condition that defines the scope of his or her consent. (See People v. Bravo, supra, 43 Cal.3d at pp. 606-607.) This search was not conducted pursuant to the search condition because the officer did not know of the condition. The probationer reasonably retains this minimal expectation of privacy, an expectation that the searching officer will have knowledge of the consent, and the scope thereof, as embodied in the search condition. Since such an expectation or understanding was reasonable, appellant clearly has standing to complain.
Since Officer Dobie did not know that appellant was subject to a search condition, and there being no justification for the patsearch of appellant, the trial court erred in admitting the seized contraband. The judgment, therefore, should be reversed. 2
Appellant’s petition for review by the Supreme Court was denied June 11, 1991.
It must be observed that the appellant in this case is a juvenile probationer. He, unlike the adult probationer in Bravo , did not voluntarily accept the search condition. The condition was simply imposed as an element of a probation grant that he had no right or opportunity to refuse. (See In re Nathaniel Z. (1986) 187 Cal.App.3d 1132, 1140 [ 232 Cal.Rptr. 378 ]; In re Wayne J. (1979) 97 Cal.App.3d 776, 780 [ 159 Cal.Rptr. 106 ].) His status, then, with respect to the search condition, is not the same as an adult probationer, who may reject probation, but rather that of a parolee, upon whom parole is imposed. Accordingly, even if the majority’s distinction between probationer and parolee were accepted for purposes of dispensing with the knowledge requirement, that very distinction would compel suppression of the evidence here under the rule of Martinez rather than serve as a justification for the search.
It is important to note that the proceedings on the supplemental petition in this case are not akin to probation revocation proceedings, where admissibility of illegally seized evidence is analyzed under a less stringent standard. (See People v. Harrison (1988) 199 Cal.App.3d 803, 808-812 [ 245 Cal.Rptr. 204 ].) Here, like an adult defendant facing new criminal charges, appellant was entitled to the full “panopoly of constitutional protections” (In re Michael V. (1986) 178 Cal.App.3d 159 , 167 [ 223 Cal.Rptr. 503 ]), including invocation of the exclusionary rule where evidence has been obtained as the result of an unreasonable search.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731615. Public record. Not legal advice.