Binh L., In re

• Decision Date: 06 April 1992
• Docket Number: No. H008329,H008329
• Citation: 6 Cal.Rptr.2d 678,5 Cal.App.4th 194
• Court: California Court of Appeals Court of Appeals
• Parties: In re BINH L., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. BINH L., Defendant and Appellant.

Page 678

6 Cal.Rptr.2d 678

5 Cal.App.4th 194

In re BINH L., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. BINH L., Defendant and Appellant.

No. H008329.

Court of Appeal, Sixth District, California.

April 6, 1992.

Review Denied June 25, 1992.

Sixth District Appellate Program, Michael A. Kresser, Santa Clara, for defendant and appellant under appointment by the court of appeal.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Morris Beatus, Deputy Atty. Gen., for plaintiff and respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

Binh L., a minor, was required by the terms of a preexisting juvenile probation order to submit to warrantless search. A police officer, acting in apparent good faith but with neither probable cause nor knowledge of the preexisting probation search condition, searched the minor's person and found incriminating evidence. Should the evidence have been suppressed? We conclude that in the circumstances of record the answer is no. Our conclusion is consistent with that in In re Marcellus L. (1991) 229 Cal.App.3d 134, 279 Cal.Rptr. 901, but our analysis differs from that of Marcellus L. in some respects.

In November 1990 a juvenile court adjudged the minor a ward of the juvenile court, under Welfare and Institutions Code section 602, on the basis of the minor's admission that he had stolen one car and had had possession of a second stolen car. The court ordered the minor returned to his home on probation, upon the condition among others that he "submit to search & seizure anytime, day or night, with or without a warrant by any peace officer or school official."

In January 1991, in a second juvenile court proceeding under section 602, the minor admitted having taken another vehicle without the owner's permission. He was continued as a ward, on probation, with the notation that all prior orders would remain in effect.

In March 1991 a police officer with no knowledge of the minor's probation or of the search condition found the minor in an automobile in what the officer regarded as suspicious circumstances, concluded the minor was a truant, and in the course of a pat-down of the minor's clothing for purposes of "officer safety" found a loaded pistol. A new section 602 petition was filed. The minor's motion to suppress all evidence collected by the police officer was denied. The minor then admitted certain of the allegations of the new petition and was continued as a ward, and in April 1991 he was committed to juvenile rehabilitation facilities.

The minor appeals from the April 1991 judgment, seeking review of the denial of his suppression motion. (Welf. & Inst.Code, §§ 800, 700.1.) He argues here, as he did in the juvenile court, that the police activity which led to discovery and seizure of the evidence against him was not justified by circumstances of which the officer was aware and could not be justified by the probation search condition of which the officer was unaware. Thus, he argues, the police activity violated his rights under the Fourth and Fourteenth Amendments to the federal Constitution.

The juvenile court rejected the minor's argument in its entirety, concluding that the search was based on probable cause and in any event was validated, in light of Marcellus L., by the preexisting probation search condition.

In this court the People do not attempt to defend the juvenile court's finding of probable cause, electing instead to rely upon the probation search condition. Accordingly we shall not, and in light of our conclusion we need not, reach the question whether the search would have been constitutionally sound apart from the search condition.

The only evidence at the suppression hearing was the testimony of the police officer.

The officer recited that at 7:50 a.m. on March 7, 1991, while on patrol, he saw a car with a registration tag--the so-called "month tag" affixed to the rear license plate--which he could not read. He stopped the car and asked its driver for his license and the vehicle registration. The driver produced both license and registration; within three minutes after he stopped it the officer determined the car was legally registered.

Meanwhile the officer observed that there were three passengers in the car who appeared "pretty young," perhaps 14 to 15 years old. It was a school day, and the officer believed school would start at about 8:15 a.m. at Andrew Hill High School near where the officer had stopped the car. He believed the passengers "should be in school." Although the sequence of events is not clear, it appears the officer then ordered each of the three passengers out of the car separately, pat-searched the passenger, asked the passenger to state his name and the name of the school he attended, and then allowed the passenger to return to the car while he proceeded to the next passenger. The officer pat-searched the passengers primarily because they were wearing bulky coats, although he also had in mind reports of violence in the Vietnamese community of which the passengers appeared to be members. The officer found nothing incriminating in the course of this first pat-down search.

One of the passengers was the minor appellant in this case. The minor gave the name of a high school some distance from the site of the automobile stop. None of the passengers named Andrew Hill High School; the officer did not know what time the school day began at either of the schools the passengers named.

The officer radioed the information he had obtained to his dispatcher, and in due course was advised that none of the three passengers was enrolled at the school he had named. Although it was not yet 8:15 a.m., the officer concluded that the passengers were truants and should be transported, in his patrol car, to a "truant abatement center." For this purpose he again ordered the passengers out of the car in which they had been riding and, for reasons of "officer safety," patted them down again. On the minor's person the officer found the loaded pistol. The officer then handcuffed the minor and took him directly to police headquarters.

During these events the officer was unaware that the minor was on probation or that he was subject to a probation search condition.

"[T]he application of the Fourth Amendment depends on whether the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been invaded by government action. [Citations.]" (Smith v. Maryland (1979) 442 U.S. 735, 740, 99 S.Ct. 2577, 2579, 61 L.Ed.2d 220.) This principle "posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" (California v. Ciraolo (1986) 476 U.S. 207, 211, 106 S.Ct. 1809, 1811, 90 L.Ed.2d 210.)

In this case the minor undeniably knew he was required to "submit to search & seizure anytime, day or night, with or without a warrant by any peace officer or school official": He signed, at the bottom of the written November 1990 probation order, an acknowledgment that "[t]he foregoing Order has been read by me or read to me and I fully accept it and understand its contents." We shall conclude that the probation search condition was valid, and that in the circumstances described in the officer's testimony any subjective expectation the minor might have had that the loaded pistol would not be subject to discovery by the officer was unreasonable.

The circumstances in which the minor in this case was made subject to a probation search condition must be distinguished from the situation in which an adult probationer assents to a probation search condition, and also from the situation in which a parole search condition is imposed upon a parolee.

Our Supreme Court has recently reaffirmed that an adult probationer can waive his or her privacy rights by agreeing to a probation search condition: "A probationer, unlike a parolee, consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term. Probation is not a right, but a privilege. 'If the defendant considers the conditions of probation more harsh than the sentence the court would otherwise impose, he has the right to refuse probation and undergo the sentence. [Citations.]' [Citations.] A probationer's waiver of his Fourth Amendment rights is no less voluntary than the waiver of rights by a defendant who pleads guilty to gain the benefits of a plea bargain. [Citations.]" (People v. Bravo (1987) 43 Cal.3d 600, 608-609, 238 Cal.Rptr. 282, 738 P.2d 336.) Once an adult probationer has effectively waived his or her Fourth Amendment rights, he or she can complain of an official invasion of his or her privacy only if the search is conducted for purposes of harassment or for arbitrary or capricious reasons (People v. Bravo, supra, 43 Cal.3d at pp. 610-611, 238 Cal.Rptr. 282, 738 P.2d 336; People v. Mason (1971) 5 Cal.3d 759, 765, fn. 3, 97 Cal.Rptr. 302, 488 P.2d 630, disapproved on an unrelated point in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1, 124 Cal.Rptr. 905, 541 P.2d 545) or if the officials violate the knock-notice requirements of Penal Code sections 844 and 1531. (Cf. People v. Lilienthal (1978) 22 Cal.3d 891, 900, 150 Cal.Rptr. 910, 587 P.2d 706.) Short of these exceptions, the fact a searching officer proceeded without probable cause, or even in ignorance of the search condition (cf. People v. Viers (1991) 1 Cal.App.4th 990, 993, 2 Cal.Rptr.2d 667), is rendered irrelevant by the adult probationer's voluntary waiver.

In contrast to an adult probationer, a parolee is given no opportunity to agree to a search condition: The condition is imposed automatically, as an invariable concomitant of parole,...