People v. Cervantes
THE PEOPLE, and v. VICTOR MORALES CERVANTES, and
- Area
- criminal
- Panel
- Patricia D. Benke (author)
Analysis
The trial court denied the defendant's motion to suppress evidence, ruling that his probation search condition rendered any potential illegality in the traffic stop irrelevant. The Court of Appeal reversed, holding that the trial court erred by refusing to hear evidence that the stop was arbitrary, capricious, or harassing, and directed a second hearing.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion to suppress evidence under Penal Code section 1538.5“The trial court declined to hear appellant’s evidence, holding that the search condition made irrelevant any illegality in the stop and detention.” | de novo | error | agree with court The appellate court found the trial court's categorical exclusion of evidence regarding the motive of the stop was an error of law because it failed to account for the exception where a probation search is arbitrary, capricious, or harassing. By refusing to hear the defense's offer of proof that the officers had no legitimate basis for the stop, the trial court prevented the necessary factual inquiry into whether the search condition was being abused. |
Authorities
- relied: People v. Reyes (1998) 19 Cal.4th 743 — A search under a properly imposed parole/probation condition does not intrude on a legitimate expectation of privacy, but such a search must not be arbitrary, capricious, or harassing.
- relied: People v. Robles (2000) 23 Cal.4th 789 — There is no strict requirement that the searching officer have advance knowledge of the probation search condition.
- relied: In re Tyrell J. (1994) 8 Cal.4th 68 — Supports the principle that probationers have no legitimate expectation of privacy subject to search conditions.
The appellate opinion: sound — The opinion correctly identifies the legal standard from People v. Reyes that probation searches are valid unless arbitrary, capricious, or harassing. It logically concludes that the trial court's refusal to hear evidence on the motive of the stop was an error because that motive is the dispositive factor in determining if the exception applies. The court provides a clear standard for when a 'mere legal or factual error' differs from an 'arbitrary' motivation, ensuring the lower court has the proper framework for the remand.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Cervantes's Penal Code section 1538.5 suppression motion without hearing his proffered evidence that the officers fabricated the turn-signal violation used to justify the stop, holding that his probation search condition made any illegality in the stop irrelevant. The Court of Appeal reversed and directed a new suppression hearing, holding that a probationer retains the right to be free from arbitrary, capricious or harassing searches and that a stop based on a fabricated traffic violation could fall in that category, so the trial court was required to hear the evidence.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1538.5 motion without hearing defense evidence that no turn-signal violation occurred, on the ground that the probation search condition rendered any illegality in the stop and detention irrelevant“The trial court declined to hear appellant’s evidence, holding that the search condition made irrelevant any illegality in the stop and detention.” | unclear | error (law misapplied) | agree with court Under People v. Reyes a probationer or parolee subject to a search condition has no legitimate expectation of privacy but still retains the right to be free from searches that are arbitrary, capricious or harassing, meaning searches motivated by whim, personal animosity, or no legitimate law-enforcement purpose. A stop premised on a traffic violation the officers knew did not occur is at least arguably a stop on a whim with no legitimate purpose, so the offer of proof was relevant to a recognized exception and the trial court could not treat the issue as legally foreclosed. The appellate court's distinction between a good-faith legal or factual mistake (which does not make a search arbitrary) and a fabricated justification is consistent with Reyes. The court did not state a standard of review, but whether the trial court applied the correct legal rule in refusing to take evidence is a question of law, and the result follows from the cited authority. The opinion is thin in that it does not discuss People v. Bravo, the original source of the harassment limitation for adult probationers, or People v. Woods on officer motivation, and its citation of Robles for the no-advance-knowledge rule is loose since Robles limited rather than extended Tyrell J. |
Implicit rejection of appellant's contention that a probation condition authorizing 'search' does not authorize 'seizure' of property, so that all seizures under the condition were unlawful“The use of the word “search” in a probation search condition means submission to that whole process.” | unclear | correct | agree with court The appellate court rejected the search-versus-seizure argument as a semantic game, reasoning that in criminal procedure 'search' is understood to encompass the whole process of seeking out and seizing contraband. Appellant cited no authority for his reading, and a search condition that permitted looking for but not taking contraband would be meaningless as a probation tool. The reasoning is brief but the conclusion is sensible and unopposed by any cited authority. |
Authorities
- relied: People v. Reyes (1998) 19 Cal.4th 743 — A suspicionless search under a properly imposed parole search condition does not intrude on a legitimate expectation of privacy, but the parolee retains the right to be free from searches that are arbitrary, capricious or harassing, i.e., motivated by whim, personal animosity, or purposes unrelated to rehabilitation or legitimate law enforcement.
- relied: People v. Robles (2000) 23 Cal.4th 789 — Cited for the proposition that an officer need not have advance knowledge of a probationer's search condition; Robles in fact declined to extend Tyrell J. to justify the search of a residence shared with a non-probationer when officers were unaware of the condition, so it is only limited support for the rule stated.
- relied: In re Tyrell J. (1994) 8 Cal.4th 68 — A search of a juvenile probationer subject to a search condition is not rendered unlawful by the searching officer's lack of knowledge of the condition, because the probationer has no reasonable expectation of privacy.
- missed: People v. Bravo (1987) 43 Cal.3d 600 — An adult probationer who has accepted a search condition may be searched without reasonable cause, but the search may not be undertaken for harassment or for arbitrary or capricious reasons; this is the binding source of the limitation the court applied to an adult probationer and was not cited.
- missed: People v. Woods (1999) 21 Cal.4th 668 — Officer motivation is largely irrelevant to the validity of a probation search so long as the search is not arbitrary, capricious or harassing; relevant to the court's discussion of when motivation renders a probation-condition search unlawful.
The appellate opinion: sound with gaps — The court correctly identified the Reyes exception for arbitrary, capricious or harassing searches and reasonably concluded that an offer of proof that officers invented the traffic violation fell within it, so a remand to take evidence was the appropriate remedy. The opinion, however, states no standard of review, does not cite Bravo or Woods, which are the binding adult-probationer authorities on the harassment limitation and officer motivation, and cites Robles somewhat loosely for a rule Robles actually confined.
Opinion — Benke
Opinion
BENKE, J.Victor Morales Cervantes pled guilty to transportation of methamphetamine and admitted a prior prison term. He was sentenced to a term of five years. Cervantes appeals, arguing the trial court erred in denying his motion to suppress evidence pursuant to Penal Code1 section 1538.5.
Facts and Background
Appellant was stopped by police officers for failing to signal a right turn. A records check showed he was subject to a probation condition allowing a search of his person and vehicle at any time. Pursuant to that waiver the officers searched the car and found a gun, methamphetamine and scales. A related search of appellant’s residence revealed additional methamphetamine.
Appellant moved for suppression of the items seized, arguing evidence would show he committed no turn signal violation and there was, therefore, no legitimate basis for his stop, detention and search. Appellant acknowledged the existence of his probation search condition and the general rule that such condition saves from exclusion evidence otherwise illegally seized even when an officer making the stop or search was unaware of the Fourth Amendment waiver. Appellant argued, however, the general rule did not apply when the stop or search was arbitrary or capricious and was not motivated by the legitimate needs of probation.
In reply the prosecution asserted appellant failed to signal a right turn and was lawfully stopped. It argued in the alternative that appellant was subject *1407to a probation search condition, had no reasonable expectation of privacy, and any alleged illegality in stopping him was constitutionally irrelevant.
At the section 1538.5 hearing, appellant made an offer of proof that he would, through the testimony of three witnesses, prove there was no turn signal violation and that the officers were not telling the truth when they stated there was. The prosecution replied that, even assuming no violation, exclusion was not proper since appellant was subject to search as a condition of his probation.
The trial court declined to hear appellant’s evidence, holding that the search condition made irrelevant any illegality in the stop and detention.
Discussion
Appellant argues the trial court erred in excluding defense evidence that there was no turn signal violation and that the officers who stated there was were not telling the truth. He concedes as a general matter there is no basis for the exclusion of evidence seized during what would otherwise be an illegal search when it is conducted pursuant to a condition of probation. He contends, however, that evidence is excludible when seized during a probation condition search that is arbitrary, capricious or harassing. He argues if he committed no traffic violation, then his stop and detention were all of those things. The trial court, therefore, erred in not allowing him to prove the illegality of the stop. We agree.2
In People v. Reyes (1998) 19 Cal.4th 743, 754 [80 Cal.Rptr.2d 734, 968 P.2d 445], the court held “that, even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy ‘society is “prepared to recognize as legitimate.” ’ ” Since the parolee, or in this case probationer, has no legitimate expectation of privacy, no strict requirement exists that the searching officer have advance knowledge of the search condition. (People v. Robles (2000) 23 Cal.4th 789, 797 [97 *1408Cal.Rptr.2d 914, 3 P.3d 311]; In re Tyrell J. (1994) 8 Cal.4th 68, 86-87 [32 Cal.Rptr.2d 33, 876 P.2d 519].)3
However, a probationer subject to a search condition retains the right to be free from a search that is arbitrary, capricious or harassing. A search is arbitrary “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.” (People v. Reyes, supra, 19 Cal.4th at p. 754.) A search is a form of harassment when its motivation is a mere whim or caprice. (Ibid.)
A mere legal or factual error by an officer that would otherwise render a search illegal, e.g., a mistake in concluding that probable cause exists for an arrest, does not render the search arbitrary, capricious or harassing. If it did, then we would have no occasion to struggle with the doctrine of search authorization based on an unknown search condition. This is so since recourse to the doctrine is necessary only when no other legitimate basis supports the search. It is only when the motivation for the search is wholly arbitrary, when it is based merely on a whim or caprice or when there is no reasonable claim of a legitimate law enforcement purpose, e.g., an officer decides on a whim to stop the next red car he or she sees, that a search based on a probation search condition is unlawful.
The offer of proof here that appellant made the turn signal the officers accused him of omitting is arguably such a case. The trial court should have heard the evidence and decided first if the officers stopped appellant for a traffic violation. If it concluded they did not, it should have reached the issue as to whether their action was arbitrary, capricious or harassing.
The judgment is reversed; the trial court is directed to conduct a second section 1538.5 hearing.
Kremer, P. J., and Nares, J., concurred.
On December 23, 2003, the opinion was modified to read as printed above.
All further statutory references are to the Penal Code unless otherwise specified.
Perhaps drawing inspiration from Shakespeare’s The Merchant of Venice, appellant notes that while his search condition requires he submit to search at any time, it makes no reference at all to seizures. He contends, therefore, that while he may have consented to searches, he did not consent to seizures and any seizure of any property pursuant to his search condition was unlawful. Appellant cites no authority so holding. Appellant seeks to play semantic games. In the criminal procedural context, the word “search” and the phrase “search and seizure”, are mere rubrics. They are understood to mean the whole process of seeking out and, when appropriate, seizing contraband or evidence. The use of the word “search” in a probation search condition means submission to that whole process.
This latter rule is presently under reconsideration by our Supreme Court in People v. Sanders (2000) 84 Cal.App.4th 1211 [101 Cal.Rptr.2d 546], review granted February 28, 2001, S094088.
Cites, in this corpus
- People v. Sanders F033862 · 2001-02-28
- International Billing Services, Inc. v. Emigh C028706 · 2000-11-17
- People v. Robles No. S072243 · 2000-07-17
- People v. Reyes S058825 · 1998-12-02
- People v. Tyrell J. S030266 · 1994-07-28
Cited by
- People v. Lowe CA5 F082437 · 2023-01-27
- People v. Valdivia C082622 · 2017-11-08
- People v. Trujillo D071715 · 2017-09-21
- People v. Wolfgang E059661 · 2015-10-05
- People v. Jaime P. S135263 · 2006-11-30
- People v. Hoeninghaus H025621 · 2004-07-26