Opinion
F051754
5-31-2007
In re JOSE D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSE D., Defendant and Appellant.
Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
The court adjudged appellant, Jose D., a ward of the court (Welf. & Inst. Code, § 602) and placed him on probation after it sustained allegations charging Jose with possession of concentrated cannabis (count 1/Health & Saf.. Code, § 11357, subd. (a)), transportation of marijuana (count 2/Health & Saf. Code, § 11360, subd. (a)), and possession of marijuana for sale (count 3/Health & Saf. Code, § 11359). On October 3, 2006, after finding that Jose violated his probation, the court continued Jose on probation and committed him to juvenile hall for 30 days. On appeal, Jose contends that the court erred when it denied his motion to suppress. We will affirm.
FACTS
On November 14, 2005, Jose was the backseat passenger of car that was stopped by police officers. A search of the car uncovered approximately 45 grams of marijuana, some concentrated cannabis, two marijuana smoking pipes and a digital scale.
On January 3, 2006, Joses case was transferred from Tuolumne County to Stanislaus County for disposition.
On February 28, 2006, the court placed Jose on probation and committed him to juvenile hall for 60 days. As part of his terms and conditions of probation, the court ordered Jose to refrain from possessing gang paraphernalia, including red clothing, and from using or possessing drugs or drug paraphernalia. Another condition required Jose to submit his person, vehicle, and place of residence to search for alcohol, illegal drugs, and drug and gang paraphernalia by any peace officer.
On August 17, 2006, the Stanislaus County probation department conducted probation searches of minors, who like Jose, were subject to gang and drug conditions. During a search of Joses room the officers found gang paraphernalia, including red clothing.
On August 29, 2006, a supplemental petition was filed alleging that Jose violated the terms of his probation by testing positive for marijuana on July 24, 2006, and August 17, 2006, and by possessing gang paraphernalia.
At Joses adjudication hearing on October 3, 2007, Jose moved to suppress the evidence obtained during the August 17, 2006, probation search of his room. Prior to the commencement of the hearing, defense counsel stipulated that Jose tested positive for marijuana on July 24, 2006, and August 17, 2006. Probation Officer Belinda Putnam then testified that the probation searches of August 17, 2006, were performed on probationers who, like Jose, were subject to both gang and drug conditions and that the purpose of the searches was to ensure the probationers were in compliance with the terms of their probation. That evening the officers conducted nine to 10 searches over an 11-hour period, including a search of Joses room. When the officers arrived at Joses house, they explained to his mother the reasons they were there before searching the room. In Joses closet the officers found six red shirts, red shorts, a red hat, red and black shoes, and five pictures of people making gang signs. After denying Joses motion to suppress, the court found that Jose violated the terms of his probation.
DISCUSSION
Jose contends that the probation officers did not have a reasonable suspicion that he was involved in criminal activity prior to searching his room on August 17, 2006. Alternatively, he contends that even if the search was supported by a reasonable suspicion, the search was arbitrary, capricious, and conducted for purposes of harassment. Thus, according to Jose, the court erred when it denied his motion to suppress. We will reject these contentions.
The Fourth Amendment protects people "against unreasonable searches and seizures." (U.S. Const., 4th Amend.) Implementing this prohibition against unreasonable searches in the context of juvenile probation search conditions presents the following question: Does the Fourth Amendment prohibit a juvenile court from imposing a suspicionless search condition when it orders probation for a juvenile offender?
This particular question has not been resolved explicitly by either the United States Supreme Court or the California Supreme Court. (See United States v. Knights (2001) 534 U.S. 112, 120, fn. 6 (Knights) [not deciding whether Californias standard probation condition would validate a search by a law enforcement officer who had no individualized suspicion concerning an adult probationer].) On June 19, 2006, the United States Supreme Court issued an opinion stating:
"California law provides that every prisoner eligible for release on state parole `shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause. Cal. Penal Code Ann. § 3067(a) (West 2000). We granted certiorari to decide whether a suspicionless search, conducted under the authority of this statute, violates the Constitution. We hold that it does not." (Samson v. California (2006) 547 U.S. ___ [126 S.Ct. 2193, 2196, 165 L.Ed.2d 250] (Samson).)
The opinion in Samson approved the decision by the California Supreme Court in People v. Reyes (1998) 19 Cal.4th 743 (Reyes). In Reyes, the California Supreme Court concluded that a shed in an adult parolees backyard could be searched by police officers in the absence of a particularized suspicion where the suspect was subject to a parole search condition and the search was not arbitrary, capricious or harassing. (Id. at pp. 753-754.) In Reyes, the officers knew of the search condition before they searched the shed.
The significance of the officers knowledge of the search condition was established in People v. Sanders (2003) 31 Cal.4th 318 (Sanders). In Sanders, the court concluded that a warrantless and "otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted." (Id. at p. 335.)
The question raised in this appeal can be answered by (1) combining principles adopted in Samson, Reyes and Sanders, and (2) extending those principles from cases involving adult parolees to cases involving juvenile probationers. This approach produces the answer that the Fourth Amendment allows searches of juveniles subject to a probation search condition where the officer conducting the search knows of the search condition before initiating the search, even in the absence of a reasonable suspicion of criminal activity or a violation of probation.
Using an approach that combined principles from Reyes and Sanders, this court held that a stop and frisk of a juvenile probationer was unconstitutional where the officers did not have a reasonable suspicion of criminal activity and the officers were not aware of a juveniles probation search condition. (In re Joshua J. (2005) 129 Cal.App.4th 359.) The extension of the principles adopted in Samson, Reyes, and Sanders to juvenile probationers is appropriate because (1) societys interest in subjecting juvenile probationers to suspicionless searches is at least as great as its interest in subjecting adult parolees to suspicionless searches and (2) a juveniles privacy interest is no greater than that of an adult. (See In re Joshua J., supra, 129 Cal.App.4th at pp. 363-365 [on the question of an officers awareness of the search condition, juveniles given the same constitutional protection as adults because special considerations of the juvenile probation system did not justify less protection for juveniles privacy]; In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033 [juveniles need more guidance and supervision than adults and their constitutional rights are more circumscribed].)
Jose contends that Samsons holding that reasonable suspicion is not required to search a parolee does not apply to probationers because, in reaching this conclusion, the court relied on the need for intense parole supervision of people who have actually been sentenced to prison. We disagree.
In Knights the Supreme Court noted, "The State has a dual concern with a probationer. On the one hand is the hope that he will successfully complete probation and be integrated back into the community. On the other is the concern, quite justified, that he will be more likely to engage in criminal conduct than an ordinary member of the community." (Knights, supra, 534 U.S. at pp. 120-121.) Thus, like parolees, probationers also need intense supervision to prevent them from engaging in criminal conduct. This is particularly true of juvenile probationers because, as noted above, juveniles need more guidance and supervision. Further, as noted earlier, the extension of the principles adopted in Samson, Reyes, and Sanders to juvenile probationers is appropriate because societys interest in subjecting juvenile probationers to suspicionless searches is at least as great as its interest in subjecting adult parolees to suspicionless searches.
Jose also contends that the search of his room was arbitrary, capricious, and harassing simply because it was based on no more than the arbitrary and capricious decision to search minors with drug and gang probation conditions.
A search is arbitrary and capricious when the motivation for the search is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee or probationer. (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004.) Further, unrestricted search of a probationer or parolee by law enforcement officers at their whim or caprice is a form of harassment. (People v. Bremmer (1973) 30 Cal.App.3d 1058, 1063.)
Here, the probation searches involved probationers who had gang and drug conditions and were conducted to ensure that they were complying with their probation terms. Further, there is no evidence in the record indicating that the searches were conducted to harass any of the probationers who were subject to the search. Thus, since the record discloses only a legitimate law enforcement purpose for the search of Joses room, we reject his contention that the search was invalid because it was arbitrary, capricious of or purposes of harassment. Accordingly, we conclude that the court did not abuse its discretion when it denied Joses motion to suppress.
DISPOSITION
The judgment is affirmed. --------------- Notes: Before Harris, Acting P.J., Wiseman, J. and Hill, J.