2015-IPG#12(NEW CASES ON SEARCH CLAUSES: DOUGLAS- ROMEO-WOLFGANG)

Transcription

1 Date: May 4, 2015 November 5, #2- IPG (RODRIGUEZ - SASSER- SEDILLO - KEITH) 2015-IPG#12(NEW CASES ON SEARCH CLAUSES: DOUGLAS- ROMEO-WOLFGANG) This edition of IPG discusses a trio recent appellate cases involving search clauses: People v. Douglas (2015) 240 Cal.App.4th 855; People v. Romeo (2015) 240 Cal.App.4th 931; and People v. Wolfgang (2015) 240 Cal.App.4th Among the issues raised in the cases: Can an officer s knowledge a defendant is on PRCS, by itself, provide the required pre-search knowledge of the existence and scope of the search clause? Is an officer always required to run a check to verify the status of a probationer immediately before conducting a probation search? Has the Harvey-Madden rule been abrogated in certain circumstances by Proposition 8? Must an officer know of the specific terms of a probation search condition before conducting a probation search? Will evidence obtained during a probation search by an officer who was not specifically aware of the scope of a search clause always have to be suppressed? This edition of IPG is accompanied by a podcast featuring noted search and seizure expert and author of the California District Attorneys Association search warrant manual, Santa Clara County Deputy District Attorney Mike Galli. The podcast will provide 55 minutes of self-study general MCLE credit if you listen to all of it and may be accessed at: Editor s Note: If you only have 15 seconds to read this memo just read the boxed headings for the gist of the holding. The remaining analysis explains the facts, the rationale, and consequences of the decision. 1

2 An Officer Must Have Advance Knowledge of a Search Condition in Order to Rely on It to Justify a Seizure or Search. Since Any Defendant Placed on Postrelease Community Supervision (PRCS) is Subject to a Mandatory Search Condition, an Officer Aware the Defendant is on PRCS Will Be Held to Have the Required Advanced Knowledge of the PRCS Search Condition. Immediately Checking a Database to Determine if a Defendant is on PRCS Before Conducting a Search or Seizure is Not Necessarily Required if the Officer Otherwise Reasonably Believes Defendant is on PRCS People v. Douglas (2015) 240 Cal.App.4th 855 [Pin cites are to 193 Cal.Rptr.3d 79] Facts A police detective assigned to monitor persons on probation and parole was driving around in an area of recent gun violence when he spotted the defendant behind the wheel of a parked car. The detective was familiar with the defendant because he had arrested him a couple of years earlier for a firearms-related offense and might have contacted the defendant since then as well. The detective was aware that the defendant was on postrelease community supervision probation (PRCS) because part of his job was to regularly monitor to see who is on probation and parole. (at p. 83.) The detective routinely used a countywide law enforcement database (ARIES) and consulted with lists regularly supplied by the probation department to check the status of individuals. The detective remembered seeing the defendant s name on a list of active probationers issued by the probation department sometime within the preceding two months although he could not recall when he last checked the ARIES database. Nevertheless, because of lack of time, he did not consult with any database or list immediately before deciding to speak with the defendant and to search him to ensure he was complying with the term of his PRCS. (at p. 83.) In an apparent attempt to pull away from the curb, the defendant moved his car forward a few feet as the detective approached on foot. This caused the detective to believe the defendant was trying to flee. The detective ordered defendant to stop his car. After defendant put his car into reverse and the detective repeated his order, the defendant came to a stop. The detective ordered the defendant out of the car. For his own safety, the detective pinned the defendant between the car s door and a loaded handgun fell from defendant hand or arm area. The detective then confirmed with the defendant that he was on PRCS probation. (at p. 83.) 2

3 After the defendant was charged with being a felon in possession of a firearm, his motion to suppress the gun was denied. This did not stop the defendant from arguing on appeal the firearm should have been suppressed as the poisonous fruit of an allegedly unlawful detention. The defendant claimed there was no reasonable suspicion for the detention. The defendant recognized that a detention could be justified based on his PRCS search condition. However, the defendant claimed the detective had to be aware of the search condition before relying on it; and the detective did not have actual, current knowledge he was on searchable PRCS before detaining the defendant. (at pp. 83, 84.) The Court of Appeal identified the appeal as raising several distinct but closely related questions: (1) Must an officer who knows an individual is on PRCS also have specific knowledge of a search condition imposed upon him or her? (2) What quantum of advance knowledge must an officer have of a subject's PRCS status before conducting a PRCS detention and search? (3) Was there substantial evidence that [the detective] knew in advance that [the defendant] was on PRCS, or did his failure to check a current computer database of probation information render his detention of [the defendant] unreasonable? (4) Was [the detective s] belief that [the defendant] was subject to PRCS search objectively reasonable? (at p. 84.) Holding and Reasoning 1. Suspicionless searches are lawful in California for both probationers and parolees, so long as they are not conducted arbitrarily, capriciously, or for harassment. (at p. 85 [citing to the California Supreme Court cases of People v. Bravo (1987) 43 Cal.3d 600, 610 (probationers) and People v. Reyes (1998) 19 Cal.4th 743, 752 (parolees)].) 2. Some of the rules governing parole searches apply equally to probation searches. As noted above, neither search may be conducted for arbitrary, capricious, or harassing reasons. In addition, [i]n the case of both probation and parole searches, the officer must have known the individual was on probation or parole before conducting the search. (Douglas at p. 86.) Similarly, in order to detain either a parolee or probationer, the officer must have advance knowledge that the individual is on searchable probation or parole[.] (Douglas at p. 85.) Editor s note: Similarly, the level of certainty (i.e., a reasonable belief ) an officer must have that the probationer or parolee resides at a particular address before conducting a search pursuant to a search clause is the same regardless of whether it is a parole or probation search clause. (See People v. Downey (2011) 198 Cal.App.4th 652, 662.) 3

4 3. On the other hand, the rules are not always identical. The difference in rules stems in part from the fact the rationale for finding a warrantless parole search to be reasonable under the Fourth Amendment is somewhat different than the rationale for finding a warrantless probation search to be reasonable under the Fourth Amendment. (Douglas at p. 86.) Editor s note: Albeit there is some overlap even when it comes to the underlying rationale. As noted below, parole searches without suspicion are justified, in part, because of the parolee s diminished expectation of privacy and the state s interest in supervising parolees. A probationer also has a diminished expectation of privacy although not as diminished as the parolee. (Douglas at p. 86.) Moreover, the state also has an interest in supervising probationers. Aside from the advanced consent rationale discussed below in point #4, the state interest in supervising probationers has been identified as an additional justification for warrantless probation searches. (Douglas at p. 86, fn. 5 citing to People v. Sanders (2003) 31 Cal.4th 318, 325 and Griffin v. Wisconsin (1987) 483 U.S. 868, ) (Emphasis added by IPG.) 4. In People v. Bravo (1987) 43 Cal.3d 600, the California Supreme Court held suspicionless and warrantless probation searches are reasonable under the rationale that the probationer has agreed in advance to a search condition at the time probation was granted, and searches pursuant to consent may be conducted without reasonable suspicion of criminal behavior or a violation of probation. (Douglas at p. 85 citing to Bravo at pp. 608, 610.) However, like any consent search, [t]he scope of the search is confined to the consent given and thus the scope of a probation search must be assessed by reference to the probation order[.] (Douglas at p. 85, fn. 4 citing to Bravo at p. 606.) Editor s note: The United States Supreme Court has upheld probation searches based on reasonable suspicion. (See United States v. Knights (2001) 534 U.S. 112 [finding a warrantless search of probationer s apartment, supported by reasonable suspicion and authorized by a condition of his probation, was reasonable within the meaning of the Fourth Amendment].) However, the High Court has not yet decided whether a completely suspicionless probation search would violate the Fourth Amendment. Nor has the High Court adopted the consent theory of justification for warrantless and suspicionless probation searches utilized in Bravo to justify a probation search. (See Douglas at p. 85, fn 4.) In People v. Sanders (2003) 31 Cal.4th 318, the California Supreme Court noted that in United States v. Knights (2001) 534 U.S. 112, 118, the High Court held that the defendant s probation condition significantly diminished Knights reasonable expectation of privacy but did not decide whether the probation condition so diminished, or completely eliminated, Knights reasonable expectation of privacy (or constituted consent...) that a search by a law enforcement officer without 4

5 Editor s note cont d: any individualized suspicion would have satisfied the reasonableness requirement of the Fourth Amendment. (Sanders at pp citing to Knights at p. 120, fn. 6.) 5. Because a search condition is not mandated by statute for every probationer, and probation search clauses are not worded uniformly[,] an officer conducting a probation search must have some knowledge not just of the fact someone is on probation, but of the existence of a search clause broad enough to justify the search at issue. (at p. 87, emphasis added by IPG.) 6. The California Supreme Court has adopted a different rationale for finding suspicionless parole searches are reasonable. (Douglas at p. 86.) In the parole context the search is justified by the state s compelling interest to supervise parolees and to ensure compliance with the terms of their release. (Douglas at p. 86 citing to People v. Schmitz (2012) 55 Cal.4th 909, 921.) This approach recognizes that parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment. (at p. 86.) Editor s note: As noted in the recent case of People v. DeLeon 2015 WL , [t]he liberty interest of parolees is also lesser than that of offenders placed on probation: A convicted defendant released on probation, as distinguished from a parolee, has satisfied the sentencing court that notwithstanding his offense imprisonment in the state prison is not necessary to protect the public. The probationer may serve a jail term as a condition of probation ( ), but his probation is not a period of reintegration into society during which the same degree of surveillance and supervision as that deemed necessary for prison inmates is required. A parolee cannot claim an equivalent status. The imprisonment preceding his parole has come about just because he poses a significantly greater risk to society. (DeLeon at p. *4 citing to People v. Burgener (1986) 41 Cal.3d 505, ) Editor s note: In People v. Reyes (1998) 19 Cal.4th 743, the California Supreme Court held (1) particularized suspicion is not required to conduct parole search based on properly imposed search condition, and (2) search conducted for proper purpose does not intrude on any expectation of privacy that society was prepared to recognize as reasonable. The Reyes court held [t]he consent exception to the warrant requirement may not be invoked to validate the search of an adult parolee because, under the Determinate Sentencing Act of 1976, parole is not a matter of choice. (People v. Reyes (1998) 19 Cal.4th 743, 749, emphasis added by IPG.) Without choice, there can be no voluntary consent to inclusion of the search condition. (Ibid.) 5

6 Editor s note: When it comes to parole searches, the California Supreme Court and the United States Supreme Court are on the same page. As noted in People v. Schmitz (2012) 55 Cal.4th 909, whether a search is reasonable within the meaning of the Fourth Amendment takes into account the totality of the circumstances and requires the court to assess the degree to which a search promotes legitimate governmental interests, balanced against the degree to which it intrudes upon an individual's privacy. (Schmitz at p. 921 citing to Samson v. California (2006) 547 U.S. 843, 848.) Both the California Supreme Court and the United States Supreme Court have employed traditional standards of reasonableness to evaluate the constitutionality of... parole searches and considered the presence of a parole search condition to be a salient circumstance. (Schmitz at pp ) Applying this test, both the High Court in Samson v. California (2006) 547 U.S. 843, and the California Supreme Court in People v. Reyes (1998) 19 Cal.4th 743, 754 have held the searching officer need not have any suspicion of criminal activity before conducting a parole search. 7. Because a search condition is statutorily mandated for all parolees..., the officer need only know that the individual is on parole. (at p. 86 citing to People v. Middleton (2005) 131 Cal.App.4th 732, ) That is, an officer s knowledge of parole status [is] equivalent to knowledge of a parole search condition. (at p. 86.) 8. When it comes to search clauses, PRCS is more closely akin to parole than to probation. PRCS, like parole, involves the post-incarceration supervision of individuals whose crimes were serious enough to result in a prison sentence and thereby implicates important public safety concerns, as well as the state s overwhelming interest in supervising released inmates. (at p. 89.) PRCS, like parole, includes a statutory mandatory search condition: The person, and his or her residence and possessions, shall be subject to search at any time of the day or night, with or without a warrant, by an agent of the supervising county agency or by a peace officer. ( 3453, subd. (f); see 3465.) (at p. 88.) PRCS, like parole, also includes a mandatory notification of the search condition. Penal Code section 3067(b)(3) requires that an inmate eligible for parole or PRCS be advised before release that he or she is subject to search or seizure by a probation or parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause. (at p. 87, fn. 6.) 6

7 Editor s note: The Douglas court noted some disparity in the statutory language between Penal Code section 3067 (which states what persons released on PRCS or parole must be told) and Penal Code section 3465 (which actually authorizes warrantless searches of PRCS releases). (at p. 88, fn. 7.) The former requires that such individuals be notified before release that they are subject to search or seizure with or without cause while the latter omits the with or without cause language. (at p. 88, fn. 7.) The Douglas court ultimately resolved this disparity by effectively finding that any search condition that permits a search without a warrant also permits a search without reasonable cause, as the former includes the latter. (at p. 88, fn. 7 citing to People v. Bravo (1987) 43 Cal.3d 600, 611 [holding a probation condition that specified the probationer must submit to search without a warrant but did not specify without cause allowed for a search even without reasonable suspicion ].) The Douglas court rejected the argument that PRCS should be treated more like probation than parole... because the supervisory function in such cases is performed by local probation officers and because PRCS releasees are less serious offenders than those on parole. (at p. 88.) 9. In light of the above conclusion, the Douglas court answered the four issues before it in the following manner: Must an officer who knows an individual is on PRCS also have specific knowledge of a search condition imposed upon him or her? If a police officer knows an individual is on PRCS, he may lawfully detain that person for the purpose of searching him or her, so long as the detention and search are not arbitrary, capricious or harassing. (at p. 87.) It is not necessary for the officer to recite or for the People to prove the precise terms of release, for the search condition is imposed by law, not by consent. As in the case of a parole search, an officer s knowledge that the individual is on PRCS is equivalent to knowledge that he or she is subject to a search condition. (at p. 89.) What quantum of advance knowledge must an officer have of a subject s PRCS status before conducting a PRCS detention and search? The court held it is not required that the officer know to an absolute certainty based on up-tothe-minute information that the subject is on PRCS[.] (at p. 89.) Rather, the test for determining whether the officer has sufficient advance knowledge that a defendant is on PRCS is an objectively reasonable belief standard. (at p. 89.) That is, the officer s belief in the subject s status as a probationer, parolee or person subject to PRCS must have been objectively 7

8 reasonable in the totality of the circumstances. (at p. 89.) There is no rigid formula for how the standard must be met. (at p. 89.) The test is whether, judged against an objective standard, the facts available to [an officer] at the moment he detain[s] [a defendant] would have warranted an officer of reasonable caution to believe [the defendant] was on PRCS. (at p. 92.) Editor s note for prosecutors who get annoyed by illogical arguments: Defense counsel will sometimes argue that because a certain circumstance is commonly present in cases upholding the constitutionality of a particular kind of search, this means that circumstance must be present in order for the particular kind of search to be constitutional. The next time this type of argument is raised, cite to footnote 8 of the Douglas opinion. There, the court roundly rejected the argument that since past cases upholding probation or parole searches involved the police checking with a defendant s parole or probation officer or confirming his status with radio dispatch right before conducting a search, this type of recent confirmation is required before conducting a probation or parole (or PRCS) search. Agreeing with DAG Ronald Niver, and quoting from United States v. Knights (2001) 534 U.S. 112, the Douglas court stated: This dubious logic that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it [citation omitted] provides no framework for the determination of whether [the detective s] knowledge [in this case] was sufficient. (at p. 91, fn. 8.) Was there substantial evidence that [the detective] knew in advance that [the defendant] was on PRCS, or did his failure to check a current computer database of probation information render his detention of [the defendant] unreasonable? Substantial evidence supported the court's implicit finding that the detective subjectively believed the defendant was on PRCS based on (i) the detective s recollection of having seen the defendant s name on a probation list within the last two months; (ii) the detective s preexisting familiarity with [the defendant] based on a prior arrest - a familiarity that was substantiated with specifics as to the nature of [the defendant s] prior encounter with [the defendant] and when it occurred[.] (at p. 92.) Indeed, the mere fact the detective testified he knew [the defendant] was on PRCS... was substantial evidence in and of itself to support a finding of subjective belief. (at p. 93) The court rejected the idea that officers in the field have a sort of due diligence requirement to check a database or contact the defendant s parole or probation officer before the officer may conduct a probation, parole, or PRCS search. (at p. 93.) The court observed the detective testified there was not enough time to run an ARIES check, and the trial court evidently 8

9 credited his testimony. In the circumstances, the failure to run a computer check did not undermine [the detective s] own belief in [the defendant s] PRCS status and as we shall explain, did not render his belief objectively unreasonable. (at p. 93.) Was [the detective s] belief that [the defendant] was subject to PRCS search objectively reasonable? [W]hether the officer s claimed knowledge that [the defendant] was on PRCS was objectively reasonable in light of the known facts and in light of the demands of the Fourth Amendment presents a legal issue that should be reviewed de novo on appeal. (at p. 93.) The standard takes into account the context in which the decision to detain and search arose. The test is not whether [the detective] sought out all available information or undertook the best possible course of action, but whether his decision to detain [the defendant] was objectively reasonable in light of the knowledge he had. (at p. 94.) Accordingly, in deciding whether the detective s actions and his belief that the defendant was on PRCS, it is proper to consider the fact that the detective had to make a rapid evaluation of the circumstances of his encounter with Douglas through the filter of his preexisting knowledge of him which called for judgment, and was not simply a binary matter of whether [the detective] subjectively knew of [the defendant s] PRCS status or not. (at pp ) Using that standard, the Douglas court concluded that under the totality of the circumstances the detective s belief in the defendant s PRCS status and his actual detention of the defendants were objectively reasonable. (at p. 93.) The court pointed to several factors in support of its conclusion: First, the court considered that the detective had personally been involved in a previous arrest of the defendant for a weapons violation approximately two years before the current offense and knew the defendant was on PRCS, not probation. This suggested to the court that the detective knew the defendant had been sent to prison for the earlier offense; and [b]ased on the officer s own familiarity with the prior arrest and his presumed knowledge of the law pertaining to firearms offenses, related punishments, and the usual length of PRCS (Evid.Code, 664), it was reasonable for him to make a rough calculation that [the defendant] would still be on PRCS as a result of that earlier offense. (at pp ) 9

10 Second, the defendant s name appeared on a list of active probationers within the past two months[.] (at p. 94.) This provided objective corroboration for the detective s belief that defendant remained subject to an active PRCS search condition (i.e., the detective was not just acting on a hunch). (at p. 94.) Third, the defendant s furtive action in trying to pull away from the curb to avoid contact with [the detective] gave further support to the inference that [the defendant] was still on PRCS and trying to avoid a search, and provided increased suspicion to detain him. (at p. 94.) The court rejected the argument the failure to run a computer check to determine the currency of defendant s PRCS status rendered the detective s actions and his belief in the defendant s PRCS status objectively unreasonable. (at p. 95.) The court noted that [c]ircumstances did not permit a deliberative analysis of the probative value of various facts contributing to his fund of knowledge, with time for reflection and the information possessed by [the detective] was reasonably reliable, ultimately proved to be accurate, and led to an objectively reasonable conclusion [defendant] was on PRCS and therefore subject to detention and search. (at p. 95.) 1o. The court also held that in undertaking independent review of a parole or probation search, or the reasonableness of the detention that preceded the search, it was required to consider the totality of the circumstances known to the officer and balance the intrusion of the search upon the suspect s privacy with the need for such intrusion to promote legitimate government interests. (at p. 95.) The intrusion upon the defendant s privacy was slight considering (i) the fact it was greatly diminished due to his being on PRCS and (ii) the defendant knew he was still on active supervision and was subject to search, yet he tried to pull away from the curb in an apparent attempt at evasion ; and (iii) the defendant was simply asked to stop and exit his car. (at p. 95.) Editor s note: The officer did escalate the scope of the intrusion when he handcuffed the defendant but that was prompted by defendant s own dangerous conduct in scuffling with [the detective] while armed with a loaded gun[.] (at p. 95.) On the other side of the scale, there was a legitimate government interest justifying the intrusion. The detective was engaged in street-level police work in dangerous territory, specifically investigating at night a recent spate of gun violence and saw a known felon in the area. The 10

11 detective reasonably believed the felon was on PRCS and the felon was, in fact, on PRCS; the felon had previously been involved in illegal weapons possession; and the felon began pulling his car away from the curb as the detective approached. (at p. 95.) 11. Because the court concluded the detention was reasonable under the aforementioned test, it declined to decide whether it was also a lawful Terry stop or, as the People argue[d] a lawful arrest. (at pp ) Editor s note: However, the court was kind enough to identify the cases relied upon by the People in support of the argument that once the defendant started to move his car forward, he was, in effect, fleeing from a police detention and therefore subject to arrest for delaying arrest in violation of Penal Code section 148: In re Muhammed C. (2002) 95 Cal.App.4th 1325, ; In re Gregory S. (1980) 112 Cal.App.3d 764, 778; and People v. Allen (1980) 109 Cal.App.3d 981, (Douglas at p. 96, fn. 11.) The Harvey-Madden Rule Was Not Abrogated by Proposition 8. A Harvey- Madden Objection to Reliance on a Probation Search Clause May be Overcome Without Introducing the Court Record of the Probation Conditions Even Though that is the Easiest Way to Overcome the Objection. However, to Conduct a Probation Search of a Residence, the Officer Must be Aware the Search Clause Specifically Allows for Searches of the Residence. People v. Romeo (2015) 240 Cal.App.4th 931 [Pin cites are to 193 Cal.Rptr.3d 9615] Facts: Two officers went to the home of a pair of probationers (Mills and Bolstad) to conduct a search of their residence. The sole justification for the search was that the two probationers had a search condition. (at pp ) The defendant was inside the home during the search. The officers detained and handcuffed the defendant along with one of the probationers who was also present. The detention lasted approximately forty-five minutes. The officers searched the home, including an attached garage which appeared to be set up as living quarters. The officers found methamphetamine, marijuana, and hypodermic needles in the garage. The search lasted approximately an hour. As it turned out, the defendant lived in the garage. When questioned, the defendant said he stayed in the garage and admitted to possession of the items found inside of it. (at pp ) 11

12 Defendant made a motion to suppress challenging the search of the garage. He also made a Harvey-Madden objection, challenging the search team s basis for conducting a probation search. (at pp ) At the hearing, an officer testified that he knew Mills and Bolstad were on probation with a search clause and that he confirmed their probation status by using ARIES, a countywide computer system. (at p. 101.) The magistrate initially sustained hearsay and lack of foundation objections to this testimony and granted a motion to strike. However, the magistrate then allowed the officer to testify that prior to the search, he had unspecified personal contact with Mills and Bolstad and he was familiar with them. The officer also was permitted to testify that he used the ARIES system routinely in the course of his duties, that he has been trained in the use of ARIES, and that you can get probation information from ARIES, which is what I did in this case. (at p. 101.) In view of this further testimony, and over renewed objections, the magistrate allowed the officer to state he had personal knowledge that Bolstad and Miller were on probation subject to a probation search clause and that he had confirmed their probationary status using ARIES. (at p. 101.) After the defendant s motion to suppress was denied, he pled guilty and appealed his conviction. (at pp ) On appeal, the defendant, inter alia, argued the People failed to justify the warrantless search... because (a) the only proof that Mills and Bolstad were on probation subject to search derived from the ARIES database, and since ARIES is an official channel of information, the Harvey Madden rule requires independent evidence of reliability, which was never supplied, and (b) there is no evidence in the record of the specific terms of the probation search condition and, since the scope of a probation search is bounded by the terms of the probation order involved, it is impossible to determine whether in searching the residence the officers went beyond the permitted scope of search. (at p. 103.) Harvey-Madden Issue 1. Under what has come to be known as the Harvey Madden rule, an officer may arrest or detain a suspect based on information received through official channels. However, upon objection, the People must prove that the source of the information is something other than the imagination of the officer who does not become a witness by offering evidence that the source has sufficient indicia of reliability. (at p. 107.) 2. In the eyes of the Romeo court, in conventional application, the Harvey Madden rule is, in effect, nothing more than the hearsay rule adapted specifically to motions to suppress. (at p. 107.) 12

13 3. In the instant case, there was sufficient (but barely sufficient) evidence presented to overcome the Harvey-Madden objection to the officer s reliance on the information from the database that Mills and Bolstad were on probation with search clauses. This evidence consisted of the testimony of the officer that he had personal knowledge of Mills s and Bolstad s probation status knowledge which the magistrate impliedly found was not derived solely from the database but in part from the officer s his pre-existing familiarity with the probationers. (at p. 111.) The officer was the lead investigating officer, and he testified to his considerable experience using ARIES. It would have been perfectly logical for an experienced officer to conclude that, since the information he obtained from a database he used routinely about two reported probationers was consistent with his prior knowledge of those two people, his decision to carry out a probation search in reliance on what he saw in the database was solidly grounded and current. (at p. 111.) 4. The court rejected the defense argument that the evidence relied upon by the People to prove the officer s advance knowledge of Mills s and Bolstad s probationary status specifically, the references in his testimony to information obtained from the ARIES database should not have been relied upon because it was hearsay. (at p. 109.) The Romeo court rejected the argument because the court believed the information was admissible pursuant to Evidence Code section 1250(a)(1), the state-of-mind exception. Under that exception, [the officer s] testimony that he obtained information from the database was admissible to prove his receipt of information from an independent source. (at p. 110.) That is, while the officer s testimony concerning his use of the ARIES database may have been hearsay,... it was admissible for a limited non-hearsay purpose under Evidence Code section 1250, subdivision (a)(1). (at p. 110.) Editor s note: The court did not agree with the People that the testimony regarding the probation search condition was admissible under the public records exception. (at p. 110.) While a printout from the database would have been admissible as an official record, if properly authenticated, [the officer s] testimony about his reliance on the database was admissible only if some other hearsay exception applied. (at p. 110.) 5. In the course of finding the testimony of the officer regarding the probation search clause was admissible over a Harvey-Madden objection, the Romeo court rejected both the People s claim that the Harvey-Madden rule has effectively been abrogated and the defendant s claim that reliance on the information from the computer system violated the Confrontation Clause. 13

14 The Romeo court rejected the People s argument, made in reliance on Proposition 8, that the Harvey Madden rule can no longer result in the exclusion of evidence as evidence may only be excluded if exclusion is mandated by the federal Constitution; and exclusion was not mandated by the federal Constitution. The Romeo court acknowledged that the High Court in Herring v. United States (2009) 555 U.S. 135 held a search conducted by the police in objectively reasonable reliance on information obtained in good faith from computerized database may not be suppressed even if the information turns out to be erroneous. (at p. 108.) However, the Romeo court rejected the People s argument because it believed the issue was not whether the officer could properly rely on inaccurate information from the ARIES database but whether the officer had sufficient information to act without a warrant. (at pp [and also noting the California Supreme Court has continued to assume the applicability of the Harvey Madden rule, i.e., in People v. Brown (2015) 61 Cal.4th 968].) The Romeo court rejected the defendant s argument that there were Confrontation Clause implications in admitting arguably testimonial hearsay at the motion to suppress. The Romero court rejected the argument because the Sixth Amendment right to confront his accusers is a trial right and the hearsay being admitted to overcome a Harvey-Madden objection is being offered at a motion to suppress. (at p. 108, fn. 8.) Editor s note: Setting aside the Romeo court s conclusion as to whether the Harvey-Madden objection was properly overcome, its analysis of the Harvey-Madden rule seems a little askew. The Romeo court characterized the Harvey Madden rule as nothing more than the hearsay rule adapted specifically to motions to suppress and continually referred to the information that an officer relies on to justify a stop or search as hearsay. (Romeo at pp ) But this is not an apt analogy because it is rare that information offered by an officer at a motion to suppress is offered for the truth. Rather, the question is generally whether the information objectively provided the requisite level of suspicion necessary to justify the conduct engaged in by the police. Unless the statements made by the original source of the information are being offered to prove the fact asserted by the original source, the information is simply not hearsay. As discussed in People v. King (1956) 140 Cal.App.2d 1, extra-judicial statements to establish probable cause at a motion to suppress are admissible over a hearsay objection because the truth of the information given to the officer is not in issue and is not being offered to prove any element of the offense against the defendant. The evidence is being offered solely to establish that the officer had reasonable or probable cause to effect the search and seizure. (Id. at p. 5.) 14

15 Editor s note cont d: It is only when the prosecution seeks to uphold a search based on something other than probable cause or reasonable suspicion that evidence is offered at a motion to suppress for its truth. For example, when the People wish to justify the search on the ground that the defendant had a search clause, statements from a witness that the defendant had a search clause are being offered for their truth, i.e., that the defendant had a search clause. Similarly, if, at a motion to suppress, the People want to show a defendant did not have a reasonable expectation of privacy in a car by showing the car was registered to someone else, any registration information offered is being offered for its truth. But even when the information is just being offered to overcome a Harvey-Madden objection, in most cases it is not being offered to prove the truth of the matter being asserted. It is being offered simply to show that the information was actually provided (i.e., not generated by the imagination of the officer who does not become a witness ). Thus, the Harvey-Madden rule is probably better understood in most cases as a non-statutory evidentiary rule requiring some independent evidence that the information the officer is claiming was provided to law enforcement was not made up from whole cloth. In this sense, the Harvey-Madden rule is akin to the corpus delicti rule, not to the hearsay rule. The corpus delicti rule prevents a conviction based solely on an out of court statement of the defendant and requires that there be independent proof that a crime has actually occurred aside from the out of court statement of the suspect. (See People v. Alvarez (2002) 27 Cal.4th 1161.) Similarly, the Harvey-Madden rule prevents an arrest or search from being upheld based solely on an out-of-court statement being recounted by an officer with no personal knowledge the statement is true and requires that there be independent proof there is actually information supplying probable cause for a search or seizure when the officer testifying is not the original source of that information. In those situations when a defendant s Harvey-Madden objection is directed at challenging whether a probation search condition existed and the People are relying on a statement from the computer database that a search clause or warrant existed, then the statement is being offered for the truth of the matter, i.e., that a search clause or search warrant existed. In that case, the statement does not become admissible over a hearsay objection unless it falls within a hearsay exception or the court takes judicial notice of the fact. When the statement is being offered to prove the existence of the probation search clause, then the appropriate hearsay exception is the public records exception of Evidence Code section (Albeit this is not to say the foundation for that exception was actually shown in Romeo by simply having the officer attest to the existence of a search clause based on a computer printout.) In this circumstance, the applicable hearsay exception is not, as the court of appeal indicated, the state of mind hearsay exception of Evidence Code section 1250 because section 1250 requires that the state of mind of the declarant be at issue or that the evidence is being offered to explain the conduct of the declarant. In Romeo, the state of mind of the declarant (i.e., the dispatcher and/or the clerk who entered the data into the database) was not at issue; and the evidence was not offered to prove the conduct of the dispatcher or the clerk who entered the data in the computer database. 15

16 Editor s note cont d: If the question is whether the officer subjectively believed there was search clause, then the officer s state of mind is in issue - but you don t need a hearsay exception to introduce evidence that the officer looked at a computer printout of a probation search clause because the computer printout is not being offered to prove a probation clause existed only that the officer could believe a probation clause existed. Seeking to introduce the fact there is a computer database showing there is a search clause under Evidence Code section 1250 is redundant when the search clause information is only being offered for a nonhearsay purpose. It doesn t add anything to simply introducing the information as nonhearsay because subdivision (b) of section 1250 prevents the use of evidence of a statement of memory or belief to prove the fact remembered or believed. Finally, if the information regarding the search clause from the computer printout is being offered to show the officer reasonably relied on the computer printout (i.e., if the search clause can be shown to have actually existed, this helps show reliance on it was reasonable) then the computer printout is being offered for its truth. But once again, the applicable hearsay exception to prove the search clause existed is the public records exception of Evidence Code section 1280 not the state of mind exception under Evidence Code section This is because subdivision (a) of section 1250 only allows in the evidence to prove the declarant s state of mind or to explain the declarant s conduct and neither the state of mind of the dispatcher nor the state of mind of the person inputting the information in the computer is at issue when the question is whether the probation search clause actually existed. Sufficiency of Proof of the Scope of the Probation Search Clause Issue 6. Because the terms of probation define the allowable scope of the search, a searching officer must have advance knowledge of the search condition before conducting a search. (at p. 104.) Without such advance knowledge, the search cannot be justified as a proper probation search, for the officer does not act pursuant to the search condition. (at p. 104.) 7. A search condition is not mandated by statute for every probationer, and probation search clauses are not worded uniformly. (at p. 114.) On occasion, judges may limit the scope of the defendant's consent to searches for particular contraband, such as drugs or stolen property, or place spatial limits on where searches may take place. Some judges have standard probation terms for particular crimes and particular circumstances (and if so, those terms may be subject to proof by judicial notice, which was not sought here), but practices vary by county all over the state. (at p. 114.) 8. Accordingly, mere knowledge that someone is on probation and subject to search, without more, may be insufficient where there is a challenge to the search. (at p. 114.) 16

17 9. The search in the instant case cannot be justified without any showing that the searching officer knew the target of their search, the residence itself, fell within the scope of a probation search clause. (at p. 117 [and indicating the search first, justify later approach is particularly problematic where third-party non-probationers are involved ].) On the record presented here, it is impossible to tell what limits may have been imposed on any probation search of Mills and Bolstad. (at p. 114.) The Romeo court observed that even if it were inclined to draw an inference from [the officer s] testimony that he likely knew the terms of the governing probation orders thus supporting an implied finding on this point in light of the fact he checked the ARIES database [the court] would need some form of objective proof from which such an inference, logically, could be drawn. His subjective belief is not enough. (at pp ) Editor s note: The Romeo court distinguished the case of People v. Rios (2011) 193 Cal.App.4th 584, which indicated that the People are not required to prove the scope and precise terms of a probation condition before a warrantless entry pursuant to such a condition can be found lawful (Rios at p. 597) on the ground that there was evidence presented in Rios that the searching officer knew the judge had imposed every term and condition possible including search terms. (Romeo at p. 115.) 11. The court did say that the People could have met their burden of proving the objective reasonableness of a warrantless search in a few different ways. First, the People could have presented a search clause expressly allowing a residential search. (at p. 117.) However, while presenting the presenting the probation order itself may be the better practice, the court did not view it as mandatory. (at p. 114.) Second, the People could have presented more detailed testimony from [the officer] showing some understanding of the operative terms of probation and connecting those terms to the need for a warrantless search. (at p. 117.) Third, the search could have been justified if the objective circumstances otherwise warranted it. (at p. 117.) 17

18 Evidence Seized During the Search of a Home Was Held Admissible Where the Searching Officer Was Erroneously Told the Defendant Was on Probation for a Weapons Offense by Dispatch, the Officer Knew Probation for Such Offenses Usually Carry Search Clauses but Did Not Know for Sure Whether the Defendant s Probation Had a Search Clause, and the Defendant Was on Probation with a Search Clause but on a Different Case than the Case Provided by Dispatch People v. Wolfgang (2015) 240 Cal.App.4th 1268 [Pin cites are to 193 Cal.Rptr.3d 25679] Facts: A deputy was dispatched to the modular home of the defendant on a suspicious activity call. Upon arrival, he saw a trailer parked on the property. After learning the trailer had been reported stolen, the deputy contacted the defendant. The defendant provided the deputy his license. When the deputy ran the defendant s name through dispatch, he was told the defendant was on probation for brandishing a weapon. The deputy did not ask (and was not told) whether defendant s probation included a search condition. However, the deputy knew, based on his training and experience, that when a person is on probation for a weapons violation, the probation generally has search conditions. The deputy had never encountered an individual on probation for a weapons violation who was not subject to some type of search condition. (at p. 258.) The deputy did not know any of the specific terms and conditions of defendant s probation. Nevertheless, because the defendant apparently had a stolen trailer and was on probation, the deputy conducted a probation search of defendant s home to investigate whether the defendant had any other items of evidence. (at p. 258.) The deputy discovered a loaded.22 caliber rifle on defendant s bed. Editor s note: The record did not reflect whether dispatch was even able to provide the specific terms and conditions of a defendant s probation but the deputy testified that law enforcement officers are not given, and do not obtain, specific terms and conditions of the probation when officers are checking the individual through dispatch and that law enforcement officers do not directly contact the court to find an individual s specific terms and conditions. (at pp ) As it turned out, at the time of the search, defendant was no longer on probation for the brandishing a weapon conviction that probation had ended about one month before the search. However, defendant was on probation for a different felony case containing search terms. (at p. 259.) 18

19 After the defendant was charged with being an ex-felon in possession of a firearm, he filed a motion to suppress in the trial court. The trial court denied the motion, finding the deputy acted completely in good faith based upon information from dispatch defendant was on probation for a weapons violation; and that it is common policy and procedure that probation cases include search terms. (at p. 259.) On appeal, the defendant claimed the trial court should have suppressed the firearm because the deputy presumed, but did not know for certain at the time of the search, that defendant was subject to a search condition. He also argued that the good faith exception was irrelevant under the circumstances of this case and is inapplicable to mistakes by law enforcement. (at p. 259.) 1. It is now settled that an officer must have advance knowledge about an individual s probation or parole search conditions at the time such a search is conducted. (at p. 260.) 2. [I]t is an officer's knowledge of a search condition that transforms what would otherwise be a presumptively unreasonable warrantless search into a probation search and thus valid as an exception to the warrant requirement[.] (at pp ) 3. The Wolfgang court did not hold, but assumed, a search can only be justified as a probation search where the officer is specifically informed by dispatch that a defendant s probation contains a search condition, as opposed to here where the deputy actually believed, and was aware based on his training and experience, weapons violation cases contain search conditions[.] (at p. 264.) 4. Moreover, the Wolfgang court recognized that searches of probationers may not be conducted for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes and that [a] waiver of Fourth Amendment rights as a condition of probation does not permit searches undertaken for harassment or searches for arbitrary or capricious reasons[.] (at p. 264.) 5. Nevertheless, despite its assumption the officer must be specifically aware a search condition exists, the court held that a search of a person subject to a search condition by an officer unaware of the search condition violates a suspect s Fourth Amendment rights only if the search is otherwise unlawful. (at p. 264, emphasis added by IPG.) 6. The court held the search was not otherwise unlawful. The record shows, at most, that the deputy made a legal... error, viz., he did not confirm with dispatch that defendant s probation contained a 19