People v. Barbarick

• Decision Date: 23 May 1985
• Citation: 214 Cal.Rptr. 322,168 Cal.App.3d 731
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Leo Allen BARBARICK, Defendant and Appellant. E000852.

Page 322

214 Cal.Rptr. 322

168 Cal.App.3d 731

The PEOPLE of the State of California, Plaintiff and Respondent, v. Leo Allen BARBARICK, Defendant and Appellant.

E000852.

Court of Appeal, Fourth District, Division 2, California.

May 23, 1985.

Review Denied Aug. 1, 1985. ^*

[168 Cal.App.3d 733] Jill M. Bojarski, Santa Ana, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Keith I. Motley and Roberta L. Woodrick, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

MORRIS, Presiding Justice.

Defendant Leo Allen Barbarick pleaded guilty to a misdemeanor violation of Health and Safety Code section 11357, subdivision (c), for possession of marijuana. He was given a six-month suspended sentence and placed on six months probation.

On appeal defendant contends the trial court erred in denying his motion to suppress the evidence seized (marijuana plants) pursuant to a warrantless search. More specifically, defendant contends that the search was based on an illegal search condition of his own recognizance release pending appeal of another conviction; that the search constituted an unreasonable invasion of privacy and was not subject to the plain view exception; that the good faith exception was inapplicable; and that the search condition did not include the garden area in which the marijuana plants were found.

I. FACTS

In 1982, defendant was convicted of misdemeanor possession of concentrated cannabis (Health & Saf.Code, § 11357, subd. (a)), defendant refused probation and was sentenced to serve six months in the county jail. Execution of the judgment was stayed pending appeal, and defendant was released on his own recognizance (OR) upon the condition, among others, that he "... submit to search of his person, automobile, garage or home for the purpose of detection of narcotics, dangerous drugs or marijuana by a Probation Officer or any other Law Enforcement Officer." Defendant stated that he accepted the conditions of his OR release.

Thereafter, on September 7, 1982, two police officers drove to defendant's residence to serve him with papers in a civil matter. As they drove up to the west, or rear side of defendant's house, and stopped, one of the officers observed defendant looking out a rear window of the house, and then heard a loud bang come from the house. The two officers parked and walked around to the east, or front side of defendant's house. As they came around the corner, they saw defendant rushing out of a garden-greenhouse area about 30 feet away, and separated from the house by a small dirt yard and alley. Defendant hurried past the officers back into the house; a sprinkler system came on in the garden-greenhouse, and defendant, appearing nervous, returned to where the officers were standing in the dirt yard. The officers detected the smell of burning marijuana coming from the house.

While one of the officers served defendant with the civil papers, the other, his suspicions aroused and knowing of the search condition, walked back to the entrance of the garden-greenhouse. Scanning the garden the officer observed an uprooted marijuana plant laying underneath a vegetable plant. After asking defendant to turn off the water, the officer walked around the outside of the garden until he was adjacent to the marijuana plant, which he then picked up and examined. Taking a few more steps, the officer observed a group of growing marijuana plants in a cleared out spot in the midst of thick foliage. Finally, the officer found another group of growing marijuana plants in another cleared out area at the end of a small pathway that led into the thick foliage. Defendant was arrested.

Defendant moved to suppress the evidence of the marijuana plants pursuant to Penal Code section 1538.5. The trial court ruled that the marijuana plants were not in plain view and that the search was unreasonable unless justified by the search condition of defendant's OR release. The court held the search condition of the OR release to be invalid, but found that the search condition included the garden area, and that defendant's acquiescence to the search condition vitiated his reasonable expectation of privacy. The motion to suppress was denied.

The trial court issued a certificate of probable cause and this appeal followed.

II. DISCUSSION

We agree with the trial court that the condition requiring defendant to submit to searches was not a valid condition of defendant's release upon his own recognizance. We hold, however, that the good faith exception to the exclusionary rule, as articulated by the United States Supreme Court subsequent to the decision of the trial court, is applicable. (See United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.) ¹

Impropriety of Search Condition

In setting the amount of bail or other conditions of release, the primary issue, before or after conviction, is whether the detainee will appear for subsequent court proceedings. (In re Podesto (1976) 15 Cal.3d 921, 934, 127 Cal.Rptr. 97, 544 P.2d 1297, citing In re Brumback (1956) 46 Cal.2d 810, 813, 299 P.2d 217.) The statutory provisions on bail and OR release, which refer to "appearance bond[s]," "imposition of ... conditions ... necessary to assure the defendant's appearance" (Pen.Code, § 1269d), and the like (see, e.g., Pen.Code, §§ 1268a, 1269, 1269b, 1269c, 1270, 1270.1, 1273, 1275, 1289, 1305, 1310, 1318, 1318.1, 1320) are consistent with this conclusion. Indeed, whether the defendant will subsequently appear is the sole issue at preconviction OR release hearings. (Van Atta v. Scott (1980) 27 Cal.3d 424, 438, 166 Cal.Rptr. 149, 613 P.2d 210.) Accordingly, the "... court's discretion to impose conditions upon [a preconviction] OR release is limited to conditions which are reasonably related to and attempt to insure subsequent court appearances." (McIntosh v. Municipal Court (1981) 124 Cal.App.3d 1083, 1085, 177 Cal.Rptr. 683.)

Plaintiff relies on People v. Sylvestry (1980) 112 Cal.App.3d Supp. 1, 169 Cal.Rptr. 575, to support the contention that the condition was reasonably related to securing future court appearances by defendant. This reliance is misplaced. In Sylvestry the defendant was charged with using or being under the influence of an opiate pursuant to Health and Safety Code section 11550. (People v. Sylvestry, supra, at p. Supp. 3, 169 Cal.Rptr. 575.) The court allowed an OR release, but only upon the condition that the defendant stay in a drug rehabilitation center. The court was to be notified within 24 hours if the defendant left the program. (Id., at p. Supp. 5, 169 Cal.Rptr. 575.) The court in McIntosh v. Superior Court, supra, 124 Cal.App.3d at page 1086, 177 Cal.Rptr. 683, later described this condition as "... reasonably related to future court appearances by a defendant who uses drugs."

In contrast to Sylvestry, the OR condition here, that defendant, while pursuing his appeal, "... submit to search of his person, automobile, garage or home for the purpose of detection of narcotics, dangerous drugs or marijuana by a Probation Officer or any other Law Enforcement Officer," was not reasonably related to securing defendant's subsequent appearance. (See McIntosh v. Superior Court, supra, 124 Cal.App.3d at p. 1085, 177 Cal.Rptr. 683.) Defendant was convicted of possession of concentrated cannabis. We disagree with the plaintiff that from this "... it might reasonably be assumed that he would [ingest] the drug, become intoxicated and fail to meet his court appearance requirements," and that "[t]he search condition would then serve to deter such conduct on [defendant's] part and help to ensure his future court appearances." The record is absent of any showing that defendant personally used cannabis, a derivative of marijuana, or that he had missed court appearances, because of cannabis intoxication or otherwise. The number of inferences plaintiff's argument requires is inconsistent with the standard that an OR condition be reasonably related to securing defendant's later appearance. (See id.)

As above stated, for both preconviction and postconviction releases, the primary purpose of release conditions is to help insure subsequent appearances by the defendant. (In re Podesto, supra, 15 Cal.3d at p. 934, 127 Cal.Rptr. 97, 544 P.2d 1297; In re Underwood (1973) 9 Cal.3d 345, 348, 107 Cal.Rptr. 401, 508 P.2d 721.) However, plaintiff correctly notes that another factor the court may consider in deciding whether to release a convicted felon on bail is the danger to the community, or, in other words, whether there is any danger that, if released, defendant will continue to commit crime. (In re Pipinos (1982) 33 Cal.3d 189, 200, 187 Cal.Rptr. 730, 654 P.2d 1257; In re Podesto, supra, 15 Cal.3d at p. 935, 127 Cal.Rptr. 97, 544 P.2d 1297; In re Scaggs (1956) 47 Cal.2d 416, 419, 303 P.2d 1009.)

We decline to apply the danger to the community reasoning to the instant case. Because defendant was convicted of only a misdemeanor, he had an absolute statutory right to a bail release. (Pen.Code, § 1272.) The discretion to admit bail or grant an OR release " 'is not ... an arbitrary discretion to do abstract justice according to the popular meaning of that phrase, but is a discretion governed by legal rules to do justice according to law....' " (In re Podesto, supra, 15 Cal.3d at p. 933, 127 Cal.Rptr. 97, 544 P.2d 1297, quoting Ex Parte Hoge (1874) 48 Cal. 3, 5.) Plaintiff cites no cases, nor have we discovered any, that grant a judge discretion to add a search condition to a misdemeanor OR release merely because the judge is concerned that defendant will continue to engage in criminal conduct. (Cf. In re Pipinos, supra, 33 Cal.3d at p. 200, 187 Cal.Rptr. 730, 654 P.2d 1257.) Considerable questions exist concerning the ability of courts to predict future conduct (In re Underwood, supra, 9 Cal.3d at p. 349, fn. 5, 107 Cal.Rptr. 401, 508 P.2d 721); thus, the Supreme...