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Date: May 4, 2015 2015 #2- IPG (RODRIGUEZ - SASSER- SEDILLO - KEITH)

November 5, 2015

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 1268. 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: https://www.youtube.com/channel/UC5aiUCbAzLfrlQ8AdCF3GCA

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.

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

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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.)

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]

People v. Brown (2015) 61 Cal.4th 968

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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.)

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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.)

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

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, 873–875.) (Emphasis added by IPG.)

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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: 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.)

Editor’s note: As noted in the recent case of People v. DeLeon 2015 WL 6508911, “[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 (§ 1203.1), 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, 532–533.)

Editor’s note cont’d: any individualized suspicion would have satisfied the reasonableness

requirement of the Fourth Amendment.” (Sanders at pp. 325-326 citing to Knights at p. 120, fn. 6.)

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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, 739–740.) 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.)

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. 921-922.)

Applying this test, both the High Court in Samson v. California (2006) 547 U.S. 843, 856–857 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.

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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-to-

the-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

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”].)

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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.)

“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

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.)

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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. 94-95.)

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. 93-94.)

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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.)

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

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.)

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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. 95-96.)

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. 100-101.) 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. 101-103.)

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, 1329–1330; In re

Gregory S. (1980) 112 Cal.App.3d 764, 778; and People v. Allen (1980) 109 Cal.App.3d 981, 986–

987. (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]

People v. Brown (2015) 61 Cal.4th 968

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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. 100-101.)

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. 100-101.) 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.)

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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.)

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.

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.)

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. 108-109 [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. 107-111.) 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.)

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

1280. (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.

16

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.)

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 1250. 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.

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. 113-114.)

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.)

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.)

18

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.

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.)

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]

People v. Brown (2015) 61 Cal.4th 968

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. 258-259.)

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. 260-261.)

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

20

search term and therefore mistakenly believed he was justified in searching defendant’s home.” (at

p. 265.) A mere legal or factual error by an officer that would otherwise render a search illegal . . .

does not render the search arbitrary, capricious or harassing. (at p. 265.) “The fact, if it be a fact,

that a search is not supported by probable cause does not establish that the search was necessarily

conducted for purposes of harassment. (at p. 264.)

6. The court concluded “because the search was conducted for a legitimate law enforcement purpose

[i.e., to investigate the stolen trailer] and because defendant, by accepting probation and the

concomitant search condition, waived his Fourth Amendment rights, the search, though conducted

without a warrant and without specific knowledge of defendant’s search condition, was not

constitutionally unreasonable.” (at p. 265.) Accordingly, “no purpose would be served by

application of the exclusionary rule to suppress the rifle found in defendant’s

bedroom.” (at p. 265.)

7. In coming to its conclusion, the Wolfgang court relied heavily on the case of People v. Hill

(2004) 118 Cal.App.4th 1344. In Hill, a police officer suspected that evidence of a burglary would be

found in the defendant’s motel room. The officer checked with dispatch and was initially told that

the defendant was not on probation. The officer began the process of seeking a search warrant.

While awaiting the arrival of the detective responsible for obtaining the warrant, the officer received

another call from dispatch who advised the officer that the defendant was on parole. This

information was incorrect and due to a misreading of the relevant information by the dispatcher.

Relying on this misreport of defendant's active parole status, the officer searched defendant’s motel

room and found the victim's property. About two days later, the officer learned that defendant’s

parole had expired, but that defendant was, indeed, on probation with a search condition. Under

these circumstances, the Hill court held it would not serve the purpose behind the exclusionary rule

to suppress the evidence since the officer did everything he was supposed to do (his conduct did not

Editor’s note: It should be kept in mind that while the Wolfgang court placed some emphasis on

the fact the defendant waived his Fourth Amendment by accepting probation and search conditions,

the court’s conclusion is contingent on the fact the officer was aware of defendant’s probation status

and had a good faith belief defendant had a search condition. (See Wolfgang at p. 261 [“Here, the

issue is whether the search may be justified by defendant’s advance consent when the officer

conducting the search was aware at the time of the search of defendant's probation status and actually

believed defendant had a search condition.”].)

21

reflect a disregard for the Fourth Amendment) and admitting the evidence would not present a

danger of legitimizing unlawful police misconduct. (Wolfgang at pp. 262-263 citing to Hill at pp.

1347-1351.)

NEXT EDITION ETA: NOVEMBER 17, 2015

Suggestions for future topics to be covered by the Inquisitive Prosecutor’s Guide, as well as any other comments or criticisms, should be

directed to Jeff Rubin at (408) 792-1065.