People v. Arron C. , 59 Cal. App. 4th 1365 ( 1997 )

Opinion

PETERSON, P. J.

Arron C. appeals from a disposition placing him on probation. He contends the juvenile court erred when it denied his motion to suppress. In rejecting this argument, we will hold that evidence seized in violation of the Fourth Amendment of the federal Constitution by a police officer, acting in reasonable reliance on information obtained from a juvenile probation officer that a search condition exists, need not be suppressed if it is determined subsequently that the information was incorrect.

I. Factual and Procedural Background

In October 1995, a petition was filed in the Contra Costa County Juvenile Court alleging that Arron came within the provisions of Welfare and Institutions Code¹ section 602. The petition was resolved informally in January 1996. Arron was placed on probation for a period of six months. One of the conditions of probation was that Arron submit his person and residence to search, without a warrant, at any time.

Arron was unable to stay out of trouble. On February 9, 1996, the court terminated probation and set the matter for a contested jurisdictional hearing.

Before that hearing could occur, Arron got in trouble yet again. On April 9, 1996, Detective David Ishikawa of the Concord Police Department was investigating a series of car burglaries in the area where Arron lived, so he called the probation department and spoke with Samuel Jiminez, the probation supervisor, and told him he wanted to search Arron’s residence. Jiminez could not find Arron’s file, so he checked his computer records. They showed, incorrectly, that Arron was still on probation and that he was subject to a search condition. Jiminez faxed that information to Ishikawa. Ishikawa and other officers then searched Arron’s home without a warrant. Inside they found several items that had been stolen during a car burglary.

Based on these facts, a supplemental petition was filed alleging that Arron had received stolen property. (Pen. Code, § 496, subd. (a).) Arron filed a motion arguing the evidence seized from his home must be suppressed because the search was conducted under the authority of a probation condition that was no longer in effect. The trial court conducted a hearing on the issue, and it ruled the search was indeed illegal because it was based on a search clause that was “not operative.’’ However, the court declined to suppress the evidence seized from Arron’s home because the officers conducting the search had relied in “good faith . . . on the validity of the search clause.”

Subsequently, the court sustained the supplemental petition and placed Arron on probation. This appeal followed.

II. Discussion

Arron contends, and the People implicitly concede, that the search in this case was illegal because it was based on a search condition that was no longer in effect. (Cf. People v. Ramirez (1983) 34 Cal.3d 541, 552 [194 Cal.Rptr. 454, 668 P.2d 761] (Ramirez) [“[A]n arrest based solely on a recalled warrant is made without probable cause.”].) The issue here is whether the constitutional violation requires a remedy.

While the “Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands” (United States v. Leon (1984) 468 U.S. 897, 906 [104 S.Ct. 3405, 3411-3412, 82 L.Ed.2d 677] (Leon)), an exclusionary rule has developed as a “judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect” (United States v. Calandra (1974) 414 U.S. 338, 348 [94 S.Ct. 613, 620, 38 L.Ed.2d 561]). Since the rule’s primary purpose is to “deter ... unlawful police conduct” (id. at p. 347 [94 S.Ct. at p. 619]), it is applied most commonly where a police officer conducts a search which violates a person’s Fourth Amendment rights in some significant way. However, the rule is also applied where a police officer conducts a search on the basis of faulty information from police sources. (See Ramirez, supra, 34 Cal.3d at p. 552.) As our Supreme Court has explained, even if an officer acts “in good faith reliance on . . . information communicated to him through ‘official channels,’ law enforcement officials are collectively responsible for keeping those channels free of outdated, incomplete, and inaccurate . . . information.” (Ibid.) Accordingly, the “test ... is not merely the good faith of the individual officer in the field, but the good faith of law enforcement agencies of which he is a part.” (Ibid.; see also Miranda v. Superior Court (1993) 13 Cal.App.4th 1628, 1636 [16 Cal.Rptr.2d 858]; People v. Armstrong (1991) 232 Cal.App.3d 228, 241 [283 CaL.Rptr. 429].)

Outside of these two areas, however, courts have been reluctant to apply the exclusionary rule. For example in Leon, the issue was whether the rule should be applied to exclude evidence that is seized by a police officer conducting a search in objectively reasonable reliance on a warrant issued by a neutral and detached magistrate but that is later determined to be invalid. (468 U.S. at p. 900 [104 S.Ct. at p. 3409].) The court concluded exclusion was unwarranted under those circumstances, reasoning as follows: “First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. [Ü Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.” (Id. at p. 916 [104 S.Ct. at p. 3417], fns. omitted.) The Leon principles are now well established in California law. (See, e.g., People v. Camarella (1991) 54 Cal.3d 592, 602-607 [286 CaL.Rptr. 780, 818 P.2d 63]; People v. Leonard (1996) 50 Cal.App.4th 878, 884-886 [57 Cal.Rptr.2d 845].)

Similarly, in Illinois v. Krull (1987) 480 U.S. 340, 342 [107 S.Ct. 1160, 1163, 94 L.Ed.2d 364] (Krull), the issue was whether the exclusionary rule should be applied to a search based upon statutory authority that was later declared unconstitutional. Following the rationale of Leon, the court noted that legislative action was beyond the control or influence of the police department, and that suppressing evidence because statutory authority was subsequently declared invalid would have no beneficial effect upon police work. (Krull, supra, at pp. 349-352 [107 S.Ct. at pp. 1166-1168].) Accordingly, the court declined to apply the exclusionary rule, holding that the police are entitled to rely on the validity of statutes, just as they are entitled to rely upon an apparently valid search or arrest warrant. (Id. at p. 360 [107 S.Ct. at p. 1172].)

More recently, in Arizona v. Evans (1995) 514 U.S. 1, 3-4 [115 S.Ct. 1185, 1187-1188, 131 L.Ed.2d 34] (Evans), the issue was whether “evidence seized in violation of the Fourth Amendment by an officer who acted in reliance on a police record indicating the existence of an outstanding arrest warrant—a record that is later determined to be erroneous—must be suppressed by virtue of the exclusionary rule regardless of the source of the error.” Applying the framework developed in Leon, the court ruled that if a court employee was responsible for the erroneous information, exclusion of the evidence would not be warranted. “First... the exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees. [Citations.] Second, respondent offers no evidence that court employees are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. [Citations.] . . . [H Finally, and most important, there is no basis for believing that application of the exclusionary rule in these circumstances will have a significant effect on court employees responsible for informing the police that a warrant has been quashed. Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime [citation] they have no stake in the outcome of particular criminal prosecutions. [Citations.] The threat of exclusion of evidence could not be expected to deter such individuals from failing to inform police officials that a warrant had been quashed.” (Evans, supra, at pp. 14-15 [115 S.Ct. at p. 1193].) The ruling in Evans is also now established in California law. (See People v. Downing (1995) 33 CaL.App.4th 1641, 1654-1657 [40 Cal.Rptr.2d 176] (Downing) [Exclusion of evidence was not warranted where the arrest was made on the basis of erroneous information supplied by the judicial system.].)

Here, the search was conducted on the basis of faulty information supplied by Jiminez, the supervisor of the probation office, to Ishikawa, the searching police officer. For reasons that have been left unexplained, the computer system in the probation department showed appellant was subject to a search condition even though that condition was no longer in effect. Applying the principles of Leon, Krull, and Evans, we conclude the “extreme sanction of exclusion” was not warranted. (Evans, supra, 514 U.S. at p. 15 [115 S.Ct. at p. 1193].)

First, as was noted in Leon and Evans, the exclusionary rule was designed as a means to deter illegal conduct by police officers; and here, the incorrect information was provided by a probation officer. While it is true that probation officers possess some of the powers of a peace officer (see § 283 & Pen. Code, § 830.5), in a general law county such as Contra Costa,² probation officers are appointed by and serve at the pleasure of the judge of the juvenile court (see § 270).³ Since the juvenile probation office is, in effect, an arm of the juvenile court, we see no reason to subject probation officers to a rule designed to deter illegal police conduct.

Second, Arron has not provided, and we are not aware of, any evidence that suggests juvenile probation officers are “inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.” (Evans, supra, 514 U.S. at pp. 14-15 [115 S.Ct. at p. 1193].)

Third, we do not believe that applying the exclusionary rule in this context would have a significant effect on juvenile probation officers responsible for informing the police about the status of juvenile probationers. Probation officers are not “adjuncts to the law enforcement team.” (Evans, supra, 514 U.S. at p. 15 [115 S.Ct. at p. 1193].) Instead, as persons who are appointed by and who serve at the pleasure of the juvenile court, they are more like the court employees identified in Evans, who have “no stake in the outcome of particular criminal prosecutions.” (Ibid.) Furthermore, to the extent the threat of exclusion might, on some level, encourage probation officers to be more diligent about providing accurate information, a far more effective remedy already exists. If a probation officer fails to perform his job correctly, he can be disciplined or dismissed. (See § 270.) The direct remedy of discipline or dismissal is far more likely to encourage probation officers to provide accurate information than the indirect remedy of exclusion. (Cf. Leon, supra, 468 U.S. at pp. 917-918, fn. 18 [104 S.Ct. at pp. 3417-3418] [Imposition of the exclusionary rule is not necessary to ensure that magistrates perform their job correctly because, “If a magistrate serves merely as a ‘rubber stamp’ for the police or is unable to exercise mature judgment, closer supervision or removal provides a more effective remedy than the exclusionary rule.”].)

The result we reach here is consistent with at least one California case that has considered a similar issue. In People v. Tellez (1982) 128 Cal.App.3d 876 [180 Cal.Rptr. 579], the police conducted a search based on information from a parole officer who said the defendant was subject to a search condition. Although that information later proved to be incorrect, the court declined to apply the exclusionary rule because the searching officers had acted “reasonably] ” and in “good faith” on the information from the parole officer. (Id. at p. 880.)

Our result is inconsistent with another case, People v. Howard (1984) 162 Cal.App.3d 8, 20-21 [208 Cal.Rptr. 353] (Howard), where the court ruled that a search conducted on the basis of incorrect information received from a probation officer had to be suppressed even if the searching officers had acted in good faith because the probation officer was within the collective knowledge of law enforcement. The ruling in Howard has been criticized by another court which stated its interpretation of the good faith exception was overly rigid. (Downing, supra, 33 Cal.App.4th 1641,1652, fn. 17.) We agree with this criticism, and note further that Howard was decided long before the decisions in Krull and Evans, which limited and clarified the scope of the exclusionary rule. We respectfully decline to follow the holding of Howard on this issue.

Our dissenting colleague concludes the exclusionary rule must be applied in this case because various statutes that define the duties and responsibilities of probation officers show they are “ ‘adjuncts] to the law enforcement team.’ ” (Dis. opn., post, at p. 1373.) In our view, none of the statutes the dissent cites undermines the essential fact that in a general law county such as Contra Costa, the juvenile probation department is effectively an arm of the juvenile court (see § 270). As such, we believe the probation officer whose conduct is at issue here was similar to the court employee identified in Evans as to whom the Federal Supreme Court declined to apply the exclusionary rule.

The dissent also interprets our opinion as “suggesting] that the relationship between the probation office and the juvenile court insulates a probation officer from ever being deemed an adjunct to law enforcement.” (Dis. opn., post, at p. 1376.) That is not our holding, and we do not believe such a rule would be appropriate. Certainly, if a probation officer becomes enmeshed in law enforcement activities, such as if he actively participates in a search, it would be appropriate to conclude he is an “ ‘adjunct to the law enforcement team’ ” (id. at p. 1373) and, thus, apply the exclusionary rule. (Cf. Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319, 326-328 [99 S.Ct. 2319, 2324-2325, 60 L.Ed.2d 920] [The court holds a search conducted pursuant to a warrant was invalid because the issuing magistrate was the leader of the search team and he actively participated in the search.].) However, contrary to the suggestion in the dissent, there is absolutely no evidence that Probation Officer Jiminez initiated, encouraged, or actively participated in the search of Arron’s home, so there are no grounds for concluding he acted as an “ ‘adjunct to the law enforcement team.’ ”⁴

Finally, the dissent cites Griffin v. Wisconsin (1987) 483 U.S. 868, 876 [107 S.Ct. 3164, 3169-3170, 97 L.Ed.2d 709] to support its conclusion that a probation officer is more like a police officer than a court employee. (Dis. opn., post, at p. 1376.) However, the portion of the case that the dissent cites fails to support its conclusion. The Griffin court stated, “Although a probation officer is not an impartial magistrate, neither is he the police officer who normally conducts searches against the ordinary citizen.” (483 U.S. at p. 876 [107 S.Ct. at p. 3170], italics added.) The passage from Griffin is, at best, equivocal on the issue under consideration here.

We conclude the trial court properly denied Arron’s motion to suppress.⁵

III. Disposition

The disposition is affirmed.

Haning, J., concurred.

1 Unless otherwise indicated, all subsequent statutory references are to the Welfare and Institutions Code.

2 We take judicial notice of the fact that Contra Costa County is a general law county.

3 The record does not reflect that Contra Costa County has established any sort of merit or civil service systems that govern the appointment and tenure of probation officers. (Cf. §271.)

4 Jiminez’s comment that he “see[s] the Probation Department as a resource for the police agencies ... to provide whatever information we have available . . does not change this conclusion. Jiminez’s subjective beliefs are irrelevant here.

5 Arron also contends the search of his home was illegal because it was not a genuine attempt to enforce probation but was, instead, an investigative search. (See U.S. v. Ooley (9th Cir. 1997) 116 F.3d 370.) We reject this argument for two reasons. First, appellant never raised this issue in the trial court so he has waived the right to pursue it on appeal. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1216-1217 [9 Cal.Rptr.2d 628, 831 P.2d 1210].) Second, the argument is without merit because it is based on federal law, and California law controls on this point. (See In re Tyrell J. (1994) 8 Cal.4th 68, 80, fn. 2 [8 Cal.4th 727a, 32 Cal.Rptr.2d 33, 876 P.2d 519].)