People v. Spence

93 Cal.Rptr.2d 607

78 Cal.App.4th 1242

The PEOPLE, Plaintiff and Respondent, v. Kevin Bryan SPENCE, Defendant and Appellant.

No. C028033.

Court of Appeal, Third District.

March 10, 2000.

As Modified on Denial of Rehearing April 10, 2000.

Review Granted July 12, 2000.

Todd D. Riebe, Madera, and Colin J. Heran, Sacramento, under appointments by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert Anderson, Senior Assistant Attorney General, Stan Cross and Alison Elle Aleman, Deputy Attorneys General for Plaintiff and Respondent.

MORRISON, J.

This case presents the question whether the exclusionary rule should apply to a probation search conducted by police officers in reliance on a probation roster that was designed to omit information concerning judicially imposed limitations on the authority to conduct a probation search.

In reliance on a computer generated probation roster that told law enforcement that an individual was on probation and if he was subject to a search condition, but did not indicate any limitations on the right to search, police officers looking for drugs, conducted a probation search of the defendant's residence. The defendant was on searchable probation, but the right to search was limited to a search for stolen property.

A judge may grant probation conditioned on the defendant's consent to warrantless searches. On occasion, a judge may limit the scope of the defendant's consent to searches for particular contraband, such as drugs or stolen property. Here, the defendant consented solely to searches for stolen property as a condition of his probation. The probation department provided to a law enforcement agency a computer generated roster of probationers subject to search conditions. The roster was.designed to omit any limitations on the scope of the probationer's consent, and thus did not reflect that the scope of the defendant's consent, in this case, was limited to searches for stolen property. Relying on this incomplete roster, police officers searched the defendant's residence for drugs, believing the defendant's consent was without limitation.

The Attorney General argues that this case involves the good faith exception to the application of the exclusionary rule, but Law enforcement agencies may not rely in good faith on information conveyed to them in a report designed to omit a judge imposed limitation on the scope of a probation search. The good faith exception does not permit reliance on the "objectively reasonable" belief of individual police officers when law enforcement agencies have knowledge of flaws in their record keeping and reporting systems. (See People v. Downing (1995) 33 Cal.App.4th 1641, fn. 26, 1657, 40 Cal.Rptr.2d 176.)

FACTUAL AND PROCEDURAL

BACKGROUND

Defendant Kevin Bryan Spence was convicted of auto theft in 1994 and was placed on probation

In 1996, a petition was filed alleging he failed to obey all laws in that he possessed drug paraphernalia and a controlled substance. His motion to suppress evidence was denied, and the petition's allegations were found true.

Defendant was sentenced to state prison for two years. Execution of sentence was suspended and he was reinstated on probation on the condition, among others, that he serve 365 days of incarceration.

On appeal, defendant contends his suppression motion should have been granted because the search of his residence for drugs was not authorized by the probation search condition which was limited to searches for evidence of theft. He is correct.

On January 23, 1996, Woodland Police Officers Matthew Sears and Steven Gill conducted a probation search of defendant's residence. Prior to the search, Sears had obtained information that defendant was on probation with a search condition. The source of the information was a computer-generated roster prepared by the clerical staff of the Yolo County Probation Department and furnished to the Woodland Police Department. Sears either viewed the roster personally or obtained the information from a police department employee. Before conducting the search, Sears verified the information with the Probation Department and with defendant himself.

Officer Sears testified that he searched defendant's residence primarily for narcotics. The officers found drug paraphernalia and a small amount of methamphetamine in defendant's bedroom.

The probation roster did not reflect the limitation on the search condition, and the probation department has no procedure for including such information in its roster. If a probationer has any type of search condition, the roster so indicates by a numeric code or it will simply say "search". The numeric code is known by the police agencies that receive the roster. The absence of any indication that defendant was on "searchable probation for stolen property only" was "not a clerical error." Rather, the omission was "what happens usually" under the system used by the police and probation departments.

Defendant did not mention the search limitation when the officers questioned him about his probation status.

DISCUSSION

Defendant contends the probation search violated his Fourth Amendment rights because it was conducted without a warrant pursuant to a narrowly drawn search condition that did not encompass a search for narcotics. (People v. Howard (1984) 162 Cal.App.3d 8, 13, 208 Cal.Rptr. 353; cf. People v. Ramirez (1983) 34 Cal.3d 541, 552, 194 Cal.Rptr. 454, 668 P.2d 761.) We agree.

"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.)

"An adult probationer consents to a waiver of his Fourth Amendment rights in exchange for the opportunity to avoid serving a state prison sentence. [Citation.] '"[W]hen [a] defendant in order to obtain probation specifically [agrees] to permit at any time a warrantless search of his person, car and house, he voluntarily [waives] whatever claim of privacy he might otherwise have had."'" (People v. Reyes (1998) 19 Cal.4th 743, 749, 80 Cal. Rptr.2d 734, 968 P.2d 445, quoting People v. Bravo (1987) 43 Cal.3d 600, 607, 238 Cal.Rptr. 282, 738 P.2d 336.) The consent is a complete waiver of the defendant's Fourth Amendment rights, save only his right to object to searches conducted for harassment or in an unreasonable manner. (People v. Reyes, supra, at pp. 753-754, 80 Cal.Rptr.2d 734, 968 P.2d 445.) For present purposes, a search is conducted in an unreasonable manner if it exceeds the scope of the probationer's consent as articulated in the search clause. (People v. Woods (1999) 21 Cal.4th 668, 681, 88 Cal. Rptr.2d 88, 981 P.2d 1019.) "[W]hether the purpose of the search is to monitor the probationer or to serve some other law enforcement purpose, or both, the search in any case remains limited in scope to the terms articulated in the search clause." (Ibid; Bravo, supra, at pp. 605, 607, 238 Cal.Rptr. 282, 738 P.2d 336.)

Defendant claims the search exceeded the scope of his consent because the search clause authorized searches "for stolen property" but not searches "[p]rimarily for drugs."¹ The phrase "for stolen property" places both spatial and volitional limitations upon warrantless searches: it limits them to places where stolen property is likely to be found,² and to searchers who subjectively intend to search for stolen property.³ Defendant argues the scope of his consent was exceeded because the officers subjectively intended to search "primarily" for drugs that had not necessarily been stolen.

The People do not refute defendant's contention regarding the officers' subjective intent. Nor do they identify facts demonstrating that the warrantless search of his residence was objectively reasonable, regardless of the officers' subjective intent, because of evidence of observed narcotics activity or otherwise. (Cf. People v. Woods, supra, 21 Cal.4th 668, 88 Cal. Rptr.2d 88, 981 P.2d 1019 [search of probationer's residence was objectively reasonable based on evidence that drugs were being sold out of her house, regardless of the officer's subjective intent to investigate the probationer's boyfriend].) Finding no objectively reasonable basis for the warrantless search, we conclude it was unreasonable under the Fourth Amendment.

The People contend the good faith exception to the exclusionary rule (United States v. Leon (1984) 468 U.S. 897, 906, 104 S.Ct. 3405, 3411, 82 L.Ed.2d 677, 687) applies because the searching officers relied upon the probation roster, "a judicial document that on its face authorized a generalized probation search."⁴ (Original italics.) We disagree.

The issue of police reliance on outside sources of information for authority to conduct a search or seizure has arisen in a variety of contexts. In the pre-Leon case of People v. Tellez (1982) 128 Cal.App.3d 876, 180 Cal.Rptr. 579, the defendant's parole agent told the searching officer that the defendant was then on parole. It was later judicially determined that a statute extending periods of parole could not be applied retroactively to the defendant. Nevertheless, suppression of evidence found in the warrantless search was held to be unnecessary because the searching officer had no basis to question the information provided by the parole agent. (At pp. 879-881, 180 Cal.Rptr. 579.)

In People v. Ramirez (1983) 34 Cal.3d 541, 194 Cal.Rptr. 454, 668 P.2d 761 an officer arrested the defendant based on his dispatcher's advisement that the police department's computer indicated the existence of an outstanding arrest warrant....