Marcellus L., In re
| Decision Date | 10 April 1991 |
| Docket Number | No. A048369,A048369 |
| Citation | 229 Cal.App.3d 134,279 Cal.Rptr. 901 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re MARCELLUS L., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. MARCELLUS L., Defendant and Appellant. |
Christopher E. Judge, Richmond, for defendant and appellant.
Wilbur F. Littlefield, Public Defender of Los Angeles County, Laurence M. Sarnoff, Albert J. Menaster, Deputy Public Defenders, Appellate Div., Los Angeles, for amicus curiae on behalf of defendant and appellant.
John K. Van de Kamp, Atty. Gen., Daniel E. Lungren, Atty. Gen., of the State of Cal., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan Helfman, Supervising Deputy Atty. Gen., Morris Beatus, Supervising Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
Today we are called upon to decide whether a minor who is on probation with a search condition has standing to object to the reasonableness of a search conducted by an officer who is unaware of the minor's probationary status and its search condition.
By supplemental petition the Contra Costa County District Attorney alleged that ward Marcellus L. (minor) was in felonious possession of cocaine on November 17, 1989, and previously had been found to have committed a felony (sale of a controlled substance). The minor moved to suppress the cocaine evidence as the fruit of an unreasonable search.
At the combined hearing on the suppression motion and the supplemental petition, the juvenile court referee took judicial notice that the minor had been adjudged a ward eight months earlier and was subject to a general search clause as a condition of his probation. 1 The court determined that "the search absent the search clause is unconstitutional." However, since the minor had given up his Fourth Amendment right "the community is entitled to the benefit of the fact that the minor had waived his right" and it would serve "an insufficiently useful purpose to deny the People the right to use the evidence." Therefore it denied the suppression motion, sustained the petition and ultimately committed the minor to the custody of the probation department for placement in a court-approved home or institution.
On appeal we conclude that the search condition left the minor with no expectation of privacy which he could assert in claiming a violation of his Fourth Amendment rights even when the arresting officer was unaware of his probationary status. Therefore we affirm the judgment.
At around noon on November 17, 1989, Richmond Police Officer Avon Dobie was in the vicinity of 420 20th Street, an area known for drug dealing and where loitering and shootings were common. He had worked that beat for the past year and had retrieved drugs from that address. Dobie described the house at 420 20th Street as "a house where crack cocaine is sold."
On that afternoon he spotted the minor and two other people, who appeared to be adults, sitting in front of the residence. The minor looked "very young" to Dobie to not be in school. He asked the minor why he was not in school. The minor told him he was between transfers. Dobie asked the minor his name and decided to investigate why he was not in school. But first he decided to conduct a pat-search "for safety reasons." The minor himself did nothing threatening, and Dobie did not have reason to believe he was armed or dangerous, but Dobie pat-searched the minor anyway "for my safety, as I do every time I go into the area and contact someone." (Officer Dobie was unaware that the minor was on probation which was conditioned with a search clause.)
During the pat-search Dobie saw a lump in the minor's pants pocket, felt it and concluded the lump was consistent with the feeling of rock cocaine. Dobie then removed from the minor's pocket, the bagged rock which was subsequently determined to be 1.68 grams of cocaine base.
II. DISCUSSION
Everyone, including this court, agrees there were no articulable facts justifying the pat-search. 2 Our question is whether the probationary search clause renders the minor without standing to object to Officer Dobie's objectively unreasonable frisk.
The minor approaches this case from the vantage point of the officer's conduct and state of mind; he presses for reversal on the theory that the search clause does not validate the search since Officer Dobie was neither pursuing a valid probationary purpose nor was he aware of the minor's probationary status. Focussing solely on the minor's status, the People counter that the minor had no grounds to challenge the search because he waived Fourth Amendment protection in exchange for the benefits of probation. We hold that because of the terms of his probation the minor had no expectation of privacy to assert in objecting to this search.
The United States Supreme Court recently upheld a warrantless search of a probationer's home carried out pursuant to state administrative regulations which themselves satisfied the Fourth Amendment's reasonableness requirement. (Griffin v. Wisconsin (1987) 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709.) Under the Wisconsin scheme probationers are subject to departmental conditions and regulations; one such regulation authorizes warrantless searches of a probationer's home if there are "reasonable grounds" to believe contraband is present. The rules spell out a slate of factors which the officer should consider in deciding if reasonable grounds exist, and further provide that it is a violation of the terms of probation to refuse to consent to a home search. (Id., at pp. 870-871, 107 S.Ct. at pp. 3166-3167.)
The court explained that a probationer's home, like ours, is protected by the Fourth Amendment imperative that searches be reasonable. (Griffin v. Wisconsin, supra, 483 U.S. at p. 873, 107 S.Ct. at p. 3168.) However, the operation of a state probation system gives rise to special needs beyond normal law enforcement demands that may permit dispensing with the warrant and probable cause requirements. (Id., at pp. 873-874, 107 S.Ct. at pp. 3168-3169.) Liberties are restricted (Id., at p. 875, 107 S.Ct. at p. 3169.)
Griffin permits warrantless probation searches undertaken pursuant to valid state law responding to the special supervisory and other needs of its probation system. The authority to search in that case existed by way of regulation, not because the defendant specifically agreed to submit to warrantless, unexpected searches.
Shortly after Griffin was decided our Supreme Court examined the validity of a search conducted pursuant to a search condition substantively identical to that in the case at bar. (People v. Bravo (1987) 43 Cal.3d 600, 608-609, 238 Cal.Rptr. 282, 738 P.2d 336.) The court in Bravo held there was no requirement of a "reasonable suspicion" for a probation search undertaken pursuant to such a clause, reasoning that where there is a valid consent, the resulting search does not violate the Fourth Amendment unless it exceeds the scope of the consent. (Id., at p. 605, 238 Cal.Rptr. 282, 738 P.2d 336.) "Consequently, 'when defendant in order to obtain probation specifically agreed to permit at any time a warrantless search of his person, car and house, he voluntarily waived whatever claim of privacy he might otherwise have had.' " (People v. Bravo, supra, 43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336, quoting People v. Mason (1971) 5 Cal.3d 759, 766, 97 Cal.Rptr. 302, 488 P.2d 630.) This broad interpretation of the scope of the probationer's consent in turn facilitates the dual purposes of the search clause, namely, to deter further offenses and discover whether the probationer is obeying the terms of probation. (43 Cal.3d at p. 610, 238 Cal.Rptr. 282, 738 P.2d 336.)
However, we note that such a waiver by a probationer is not absolute: (Ibid.) There is no claim that Officer Dobie's search here was undertaken for harassment, arbitrary or capricious reasons. The evidence is uncontradicted that the frisk was but a minimal intrusion of the minor's privacy and was pursued for what Officer Dobie perceived as necessary for his personal safety. While the search did not satisfy the objective standard of reasonableness, it cannot be classified as harassment.
Viewing Bravo through Griffin eyes, the standard California probation clause is a valid state practice calculated to respond to the special needs of our probation system by enabling probation officers and others to monitor the probationer's progress and compliance with the terms of probation. It goes without saying that a search undertaken pursuant to that clause for monitoring or other probationary purposes would pass review under Griffin and Bravo. However, this search was not conducted pursuant to the authority granted by the probationary search clause. We are, thus, faced with the dilemma of two conflicting social policies--the need to enforce conditions to make probation effective for the community and meaningful...
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