P. v. Sinclair

Filed 9/29/06 P. v. Sinclair CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

After defendant Sally Ann Sinclair unsuccessfully moved to suppress evidence (Pen. Code, § 1538.5) and to dismiss the information (Pen. Code, § 995), she pled no contest to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) (count 1 in case No. 216072) and forgery (Pen. Code, § 470, subd. (d)) (count 2 in case No. 222097).^[1] Pursuant to a plea bargain, she was sentenced to four years eight months in state prison. Imposition of sentence was suspended due to defendant’s commitment to the California Rehabilitation Center. On appeal, she contends her motion to suppress was erroneously denied. We reject the contention and affirm.

Background^[2]

Prior to the preliminary hearing, defendant filed a written motion to suppress the evidence found in the May 26, 2004, search of her car. She argued that her detention following the traffic stop and the subsequent warrantless arrest were presumptively illegal and the prosecution had the burden of justifying the detention. A footnote in the motion stated, “Defendant places the prosecution on notice that she will raise a Harvey-Madden objection^[3] at the hearing of this motion.”

Preliminary Hearing

At the December 17, 2004 preliminary hearing, Solano County Deputy Sheriff Dan Flohr testified that about 4:00 a.m. on May 26, he initiated a traffic stop of a car in which defendant was the passenger, after noticing it had a brake light out. Defendant was seated in the front passenger seat and David Spencer was the driver. Flohr ran a check on Spencer’s license and was informed by “dispatch” that Spencer was “on probation search and seizure.”^[4] Flohr then asked Spencer if he was on probation and Spencer answered affirmatively.^[5] Spencer and defendant both told Flohr that the car belonged to defendant.

Thereafter, Flohr asked Spencer and defendant to exit the car and they were pat searched and placed in separate patrol cars while Flohr conducted a “routine probation search” of the car. Inside the car, near the driver’s seat, Flohr found a long wooden club with a handle on one end. On the passenger side, leaning against the transmission hump, under where defendant had been seated, Flohr found a small bundle wrapped in black electrical tape. Inside the bundle Flohr found a syringe, multiple zip lock baggies containing a white crystalline substance that Flohr suspected was methamphetamine and a glass pipe.^[6] Defendant was then arrested. A postarrest search of defendant’s person turned up about $553.

At the conclusion of the hearing the court denied the motion. Subsequently, defendant filed a written motion to set aside the information (Pen. Code, § 995), and, in part, relied on the Harvey-Madden rule: “because protection must be given against easily manufactured reasonable suspicion, the People are constitutionally required to produce the original source of the broadcast” regarding Spencer’s probation status at the time of the challenged search. In addition to challenging Flohr’s knowledge of Spencer’s probation status, defendant also argued that because the search of her car was conducted without any reasonable suspicion of wrongdoing, it was arbitrary and capricious and therefore unconstitutional.

The prosecution filed a written response to defendant’s motion, asserting that its failure to introduce a certified copy of Spencer’s probation search condition to support Flohr’s testimony regarding the dispatch Flohr received was a “minor error of omission” that could be corrected by permitting the prosecution to reopen the evidence at the preliminary hearing to submit to the court a certified copy of Spencer’s probation terms. (Pen. Code, § 995a, subdivision (b)(1).) The prosecution requested that the court remand the matter to the court who heard the preliminary hearing (Judge Nail) to permit the prosecution to do so.

The court ruled that the Harvey-Madden rule did not apply to a situation where a police officer received information that the driver of a vehicle was on probation subject to a search and seizure condition. Alternatively, the court found that assuming the Harvey-Madden rule applied, Spencer’s confirmation that he was on probation was sufficient corroboration that the dispatch information received by Flohr was valid and justified the search. As a result, the court found it unnecessary to remand the matter for a supplemental hearing.

Discussion

I. Standard of Review

On appeal from a trial court’s ruling on a motion to suppress evidence we apply federal standards. (Cal. Const., art. I., § 28, subd. (d); People v. Lenart (2004) 32 Cal.4th 1107, 1118 (Lenart).) Pursuant thereto, “we defer to that court’s factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]” (Lenart, supra, 32 Cal.4th at p. 1119.)

II. Reasonable Suspicion Is Not Necessary to Support a Probation Search

Defendant first contends the prosecution failed to establish the probation search was based upon a reasonable suspicion of Spencer’s violation of probation or any illegal activity.

Defendant relies heavily on United States v. Knights (2001) 534 U.S. 112 (Knights) in asserting that reasonable suspicion must support a probation search. However, Knights did not address that question. In Knights, the United States Supreme Court held that a warrantless probation search supported by reasonable suspicion did not violate the Fourth Amendment. (Id. at pp. 120-121.) Since the search in Knights was predicated on both the probation search condition and reasonable suspicion, the Supreme Court did not address whether the search would have been constitutionally reasonable had it been predicated solely on the probation condition. (Id. at p. 120, fn. 6.)

Recently, in Samson v. California (2006) ___ U.S. ___ [126 S.Ct. 2193], the United States Supreme Court held that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. (Samson, at p. 2202.)^[7] The high court has not yet addressed whether reasonable suspicion is a constitutional prerequisite for a valid probation search. However, in People v. Bravo (1987) 43 Cal.3d 600, 608 (Bravo), the California Supreme Court concluded that an adult probationer consents to a waiver of his Fourth Amendment rights in exchange for the opportunity to avoid serving a state prison sentence. “ ‘[W]hen [a] defendant in order to obtain probation specifically agree[s] to permit at any time a warrantless search of his person, car and house, he voluntarily waive[s] whatever claim of privacy he might otherwise have had.’ “ (Id. at p. 607.) The probationer’s consent to warrantless searches need not be limited to searches conducted on reasonable suspicion, in part because “the opportunity to choose probation might well be denied to many felons by judges whose willingness to offer the defendant probation in lieu of prison is predicated upon knowledge that the defendant will be subject to search at any time for a proper probation or law enforcement purpose.” (Id. at p. 609.) “By accepting a search and seizure condition, a probationer is giving advance consent to search. [Citation.] The search must not exceed the scope of the consent. [Citation.] Persons that have agreed to a search and seizure condition have a severely diminished expectation of privacy. [Citation.]” (Myers v. Superior Court (2004) 124 Cal.App.4th 1247, 1252.) Absent any direct authority from the United States Supreme Court, we are bound to follow this decision by the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; accord, People v. Woods (1999) 21 Cal.4th 668, 675; Bravo, supra, 43 Cal.3d at p. 607.)

That defendant was not herself a probationer, but a passenger in a car driven by a probationer, does not change the analysis. Areas that are shared by a probationer and nonprobationer may be searched by officers aware of an applicable search condition. (People v. Robles (2000) 23 Cal.4th 789, 798; accord People v. Smith (2002) 95 Cal.App.4th 912, 916.) Common or shared areas of a vehicle may thus be searched by officers aware of a search condition.

III. The Probation Search Of Defendant’s Car Was Proper

Defendant concedes that Spencer was on probation at the time the car in which they were riding was pulled over. She argues that Flohr’s testimony that “dispatch notified me that [Spencer] was on probation search and seizure” did not establish substantial evidence of Spencer’s specific search condition sufficient to overcome defendant’s “Harvey-Madden“ objection to Flohr’s testimony and to support a finding that he was subject to a probation condition that justified the officer’s search of the car in which he and defendant were riding. She asserts that even if Flohr’s testimony about the dispatch was sufficient to establish the existence of a probation search condition, without evidence of the actual search condition, there was no evidence establishing that the scope of the search condition was sufficient to justify the search.

As we noted, ante, on appeal from a ruling on a suppression motion, we uphold the trial court’s express or implicit findings which are supported by substantial evidence. (Lenart, supra, 32 Cal.4th at p. 1119.)

The “Harvey-Madden“ rule is a set of evidentiary rules “established to govern the manner in which the prosecution may prove the underlying grounds for arrest when the authority to arrest has been transmitted to the arresting officer through police channels.” (People v. Collins (1997) 59 Cal.App.4th 988, 993 (Collins).) “The rationale and general scope of the rule was summarized in Madden: ‘[A]lthough an officer may make an arrest based on information received through “official channels,” the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony.’ “ (Collins, supra, 59 Cal.App.4th at p. 993.) The rule requires that the prosecution prove that the source of the information on which the arrest was based was “ ‘something other than the imagination of an officer’ “ who did not testify. (Ibid.; People v. Armstrong (1991) 232 Cal.App.3d 228, 246.)

The Harvey-Madden rule arose in the context of proof of probable cause to make a warrantless felony arrest when probable cause was purportedly possessed by another member of the police department. The rule has since been applied in a variety of contexts where the probable cause for arrest is based on a warrant resulting from a magistrate’s review of facts as reported in documents supporting the arrest warrant. (Collins, supra, 59 Cal.App.4th at p. 994, fn. 3.) Defendant cites no case, nor have we found one, that applies the Harvey-Madden rule in the context of establishing the existence of a probation search condition. Even if Harvey-Madden applies in this context, we would affirm. “The best way of negating ‘do it yourself probable cause’ is to have the officer who received the information from outside the police department testify, but that is not the only way.” (People v. Orozco (1981) 114 Cal.App.3d 435, 444.) An officer’s observations at the scene may sufficiently corroborate the information transmitted by the police dispatcher such that it would be “virtually impossible” for the dispatch information to have been fabricated in the police department. (See, e.g., People v. Johnson (1987) 189 Cal.App.3d 1315, 1320 [flight of defendants as officers approached corroborated police dispatch information regarding robbery suspects].)

We conclude that Spencer’s admission to Flohr that he was on probation provided substantial corroborating evidence that the dispatch information relayed to the officer was based on something other than the officer’s imagination. A “search and seizure” condition is standard in probationary orders and generally covers a person’s residence, car, person, and areas under the person’s dominion and control. (See, e.g., People v. Bravo, supra, 43 Cal.3d at p. 607; People v. Lazalde, supra, 120 Cal.App.4th at p. 861.)

Based on the statements by dispatch and Spencer’s confirmation of his probation status, the court could properly find that Spencer was on probation and subject to a search and seizure condition.

Finally, we reject defendant’s contention that Flohr’s search of the car was unreasonable because he did not know whether the specific terms of the condition authorized the search of the car. To ascertain if the prosecution has met its burden of establishing the search condition exception to the warrant requirement, the trial court determines whether an officer’s belief that he or she had consent to search is objectively reasonable under the circumstances known to the officer at the time the search is conducted. (People v. Sanders, supra, 31 Cal.4th at p. 334; People v. Lazalde, supra, 120 Cal.App.4th at p. 865.) Based on the dispatch information and Spencer’s statements, the trial court could properly conclude that Flohr believed that Spencer was subject to a standard search and seizure provision permitting a search by police at any time of areas under Spencer’s dominion and control. The trial court properly determined the search was reasonable and denied defendant’s motion to suppress.

Disposition

The judgment is affirmed.

SIMONS, Acting P.J.

We concur.

GEMELLO, J.

BRUINIERS, J.^*

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^[1] In exchange for her no contest pleas, the remaining charges in case Nos. 216072 and 222097 were dismissed with Harvey waivers (People v. Harvey (1979) 25 Cal.3d 754).

^[2] Because this appeal involves only the court’s denial of defendant’s suppression motion, we report only those facts relevant to that motion.

^[3] People v. Harvey (1958) 156 Cal.App.2d 516 and People v. Madden (1970) 2 Cal.3d 1017.

^[4] The court initially sustained a defense Harvey-Madden hearsay objection to the dispatch report that he was on probation.

^[5] The court overruled a defense hearsay Harvey-Madden hearsay objection to this testimony as defendant admitted he was on probation.

^[6] Later testing revealed that the white substance was 229.66 grams of methamphetamine.

^[7] Samson acknowledged that in People v. Sanders (2003) 31 Cal.4th 318, 333, the California Supreme Court established that a suspicionless parole search is not constitutionally reasonable absent the police officer’s knowledge that the person stopped for the search is a parolee. ( Samson v. California, supra, 126 S.Ct. at p. 2202, fn. 5.) Since Sanders, California appellate courts have required police officers to be aware of the search conditions of parolees and probationers in order to justify searches pursuant to those search conditions. (See, e.g., People v. Moore (2006) 39 Cal.4th 168, 171, 173; People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1191; People v. Lazalde (2004) 120 Cal.App.4th 858, 864 & fn. 2; People v. Bowers (2004) 117 Cal.App.4th 1261, 1269-1270.)

^* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.