Filed 3/16/18 In re A.R. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


In re A.R., a Person Coming Under the Juvenile Court Law. H043224
(Santa Clara County
Super. Ct. No. 3-12-JV39769D)


THE PEOPLE,

Plaintiff and Respondent,

v.

A.R.,

Defendant and Appellant.


I. INTRODUCTION
The minor, A.R., appeals from a dispositional order following his admission of having possessed a concealable firearm (Pen. Code, § 29610) and live ammunition (§ 29650). The minor contends that the juvenile court erred in denying his motion to suppress evidence that was found in an open safe in the backyard at his mother’s residence during a probation search regarding his brother, D.R. The minor also argues that the court erred in denying a Harvey/Madden objection to a police officer’s testimony regarding the residence being subject to search due to D.R.’s probation status.
For reasons that we will explain, we will affirm the dispositional order.
II. BACKGROUND
The minor’s residence was searched on August 9, 2015, pursuant to a probation search regarding his brother. During the search, the police found an open safe in the backyard containing a loaded .380-caliber handgun. The serial number on the gun had been removed. A short time earlier that day, the minor had been detained by the police a few feet away from the safe.
A. The Petition
In August 2015, a Welfare and Institutions Code section 602 petition was filed alleging that the minor, then age 16, possessed a concealable firearm (§ 29610; count 1, a felony), an unmarked firearm (§ 23920; count 2, a misdemeanor), and live ammunition (§ 29650; count 3, a misdemeanor).
B. The Motion to Suppress
The minor filed a motion to suppress evidence, including police officers’ observations relating to the search of the residence on August 9, 2015, the .380-caliber semiautomatic handgun and accompanying magazines, and any statements taken from the minor after his arrest. The minor contended that the search was conducted without a warrant. He also argued that “[i]f the officer’s justification relies upon information obtained from law enforcement sources, those sources must be made available for cross-examination during the hearing on the motion to suppress. This may require that the prosecution comply with the Harvey-Remers-Madden rule.” The prosecution filed written opposition. The following evidence was presented at the suppression hearing.
1. The initial police response to the residence
Morgan Hill police received a report shortly before 9:00 a.m. on August 9, 2015, that four males were fighting in front of a residence and that, at one point, one of the males was down on the ground. The caller also reported that one of the males stated that he had a gun. The police subsequently received additional information that one of the males had departed in a vehicle with a female, and that the other three males, including the male who had stated that he had a gun, went into the backyard of the residence.
Four Morgan Hill police officers were dispatched to the residence. Officer Wayne Bell testified that on the way to the residence, he asked the dispatcher to check whether anyone at the residence had a warrant or was on probation with a search clause. The dispatcher informed Officer Bell that a male, D.R., was on “searchable probation,” and that the Morgan Hill residence was D.R.’s “listed probation address.” Officer Bell had previously been dispatched to the residence approximately four times, and one of the other responding officers, Brandon Richards, had also previously responded to the residence.
When the four officers arrived at the residence, the front door was open but the front screen door was shut. Voices could be heard coming from the backyard area. Officer Bell and Officer Richards went to the gate on one side of the property, the third officer went to a gate on another part of the property, and the fourth officer remained at the front door.
As Officer Bell and Officer Richards waited briefly at the gate, they heard voices coming from the backyard. Officer Richards saw three males in the backyard. One male (not the minor) talked about wanting to assault someone with brass knuckles, and he indicated that he had robbed someone of a half-pound of drugs.
Officer Bell and Officer Richards entered the backyard with their weapons drawn, identified themselves as police, and gave commands to the three people, who included the minor and two other juveniles. Upon entering the backyard, Officer Richards saw one of the juveniles—not the minor—throw a black object. After the juveniles were detained in handcuffs, the black object was recovered and determined to be a “loaded .9-millimeter semi-automatic handgun.” The handgun’s serial number had been removed. The handgun was located near a backpack containing identification for the juvenile who had thrown the handgun.
The officers subsequently entered the residence to make sure no one was injured inside the residence. Officers did not find anyone or anything of evidentiary value in the house. The three juveniles, including the minor, were transported to the police department for booking.
2. The subsequent probation search at the residence
Later that day, shortly before 1:00 p.m., Officer Bell and Morgan Hill Police Officer Jeff Brandon returned to the same residence to conduct a probation search regarding D.R. Inside the house, the officers searched D.R.’s bedroom and the common areas. According to Officer Bell, it appeared D.R. currently lived in that bedroom based on all the clothes, mail, and plates with leftover food in the room.
The officers also searched the backyard. The officers found a safe that was against the house and under stereo equipment. The safe was about four feet from the rear sliding glass door and within 10 feet of where the farthest juvenile had been located that morning. The door to the safe was open about one to two inches. Inside the safe was a loaded .380-caliber handgun. The magazine in the gun had at least eight rounds in it, and there was a bullet in the chamber of the gun. The serial number on the gun had been removed.


3. Testimony by the mother
The minor’s mother testified in November 2015 that the minor was her youngest son, and that D.R. was her older son. D.R. had turned 19 years old a few days after the police searched the Morgan Hill residence. The mother had lived at the Morgan Hill residence for five and one-half years. The mother testified that the minor and his grandmother also lived at the residence in August 2015.
The mother indicated that it had been many years since D.R. lived in her house, and that he did not live at the Morgan Hill residence on August 9, 2015. She testified that D.R.’s room was being used as an office and a guestroom. The mother stated that if D.R. was “clean and sober at any point, we would discuss the ability of him coming home,” but he had “been unable to sustain sobriety.” According to the mother, D.R. had been a transient for many years. The mother acknowledged that D.R. had left behind clothes at the residence but she stated that she did not know if he had used those clothes in years. She was not aware of another permanent address that D.R. would have given out to people to receive mail.
The mother indicated that “the fight” that had occurred at the residence prior to the probation search was between D.R. and the minor. According to the mother, the minor knew that his brother was not allowed at the home.
The mother indicated that D.R. had had many interactions with the court. When asked whether she was aware prior to August 9, 2015, of any search conditions as part of D.R.’s juvenile probation, the mother testified that she “didn’t really pay too much attention because he was either in a program or a program situation.” When asked whether D.R. was placed on formal probation, the mother testified, “I don’t recall. I guess so. That’s what they do.”



4. Documents admitted into evidence and testimony by D.R.’s
probation officer
The juvenile court admitted into evidence two certified printouts, dated October 30, 2015, from the county’s Criminal Justice Information Control computer system (CJIC), which contained criminal records information. The exhibits reflect that D.R. was convicted of a felony and placed on probation in January 2015, for three years with various terms and conditions, including a search condition. The court also admitted into evidence a computer-aided police dispatch log, which reflects the police being dispatched to the Morgan Hill residence on the morning of August 9, 2015, based on a report of four males fighting.
A probation officer, who had been employed with the adult division of the probation department for approximately three years, testified that his duties involved the general supervision of defendants. The probation officer did not know the exact date that D.R. was added to his caseload, but D.R. was on his caseload by at least 10 days after the probation search was conducted.
The probation officer testified that a defendant initially meets with an assessment officer, who discusses what probation is, goes through the court orders, and informs the defendant what the defendant can and cannot do while on probation. During the assessment process, the defendant completes a blue form that includes the defendant’s address; a drawing of the defendant’s residence showing where, for example, the defendant’s bedroom is located; and a list of other people in the home. The form, and any other document filled out by the defendant, goes into the defendant’s probation file. Information provided by the probationer during the assessment, including address information, is also entered into the probation department’s internal computer database.
Based on his review of probation department records, including the probation department’s internal computer database, the probation officer testified that D.R. provided information during an assessment in February 2015. The Morgan Hill residence was the address listed for D.R.’s probation conditions. The probation officer testified that the address was most recently used on April 21, 2015, according to a printout from CJIC, which is accessible to law enforcement and the probation department. The CJIC printout was admitted into evidence.
The probation officer further testified that D.R. was on probation on August 9, 2015, the date the search was conducted, and that there was a search and seizure condition that applied to the address that D.R. had provided to probation. Having reviewed D.R.’s probation file, the officer was not aware of D.R. ever indicating that he was homeless. No other address was listed for D.R. other than the Morgan Hill residence, and there was no indication that he had changed his address. The officer testified that it is part of a defendant’s terms and conditions of probation to inform probation about a change of address.
C. The Juvenile Court’s Ruling and Dispositional Order
After considering the evidence presented at the hearing, supplemental briefing, and the parties’ arguments, the juvenile court denied the minor’s motion to suppress evidence. The court explained: “An officer who is aware of a search condition may act reasonably in conducting a probation search, . . . even in the absence of a particularized suspicion of criminal activity, and such a search does not violate any expectation of privacy. [¶] A search is arbitrary when the motivation for the search is unrelated to rehabilitative, reformative, or legitimate law enforcement purposes, such as, when the motivation is a mere whim or caprice. [¶] . . . Here, prior to entering the backyard of [the Morgan Hill residence], Morgan Hill Police Officer, Wayne Bell, confirmed that the minor’s brother, [D.R.], was on active, searchable probation, and that [the Morgan Hill residence] was his listed address. Therefore, officers satisfied the knowledge requirement for this probation search. [¶] Determining if a probationer was in possession of a firearm is undoubtedly a legitimate law enforcement purpose. Here, the officers received information that there may be a gun involved in a fight that was in the front yard. Additionally, if a probationer had engaged in a physical altercation in public, it’s also a legitimate law enforcement concern. After the officers seized the first firearm, I think the officers had a reasonable basis to conclude there may be other illegal firearms in the house or on the property. Therefore, the second probation search of the house and the backyard was lawful.”
The minor thereafter admitted the allegations that he possessed a concealable firearm (§ 29610; count 1) and possessed live ammunition (§ 29650; count 3). The remaining count was dismissed.
On March 3, 2016, the juvenile court declared the minor a ward of the court and placed him on probation, with 30 days on the electronic monitoring program.
III. DISCUSSION
A. The Motion to Suppress
The minor contends that the juvenile court erred by denying his motion to suppress evidence. He argues that the police did not have a reasonable belief that his brother resided at the house at the time of the search, and therefore the police did not conduct a valid probation search when the handgun was found in the open safe. The minor further argues that the search was not “reasonably and objectively related to the purposes of probation.”
The Attorney General argues that the property was lawfully searched based on the officer’s reasonable belief that D.R., a probationer, lived there, and that the search was not arbitrary or oppressive.
1. Reasonable belief regarding D.R.’s residence
“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard.” (People v. Ramos (2004) 34 Cal.4th 494, 505.) Under this standard, the trial court “is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. . . . But while we defer to the superior court’s express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found. [Citations.]” (People v. Woods (1999) 21 Cal.4th 668, 673-674 (Woods).)
A warrantless search of a probationer’s residence may be conducted pursuant to a search condition of probation. (Woods, supra, 21 Cal.4th at pp. 674-675; People v. Robles (2000) 23 Cal.4th 789, 797 (Robles).) The police “ ‘may search a residence reasonably believed to be the probationer’s. [Citations.] [T]he question of whether police officers reasonably believe an address to be a probationer’s residence is one of fact, and we are bound by the finding of the trial court, be it express or implied, if substantial evidence supports it.’ [Citations.]” (People v. Downey (2011) 198 Cal.App.4th 652, 658 (Downey).)
On appeal, the minor contends that there is not substantial evidence to support the juvenile court’s finding that the police conducted a valid probationary search. He argues that the Morgan Hill address “was only recent as to April 2015,” that the search occurred four months later in August 2015, that there was no further evidence that D.R. lived there, and that his mother testified that D.R. did not. The minor also argues that the probation department failed to keep an accurate record of D.R.’s current address. The minor contends that the search was therefore unreasonable and not based on a substantiated belief that D.R. still lived at his mother’s home.
We are not persuaded by the minor’s arguments. Officer Bell learned from the dispatcher that D.R. was on “searchable probation” and that the Morgan Hill residence was his “listed probation address.” The minor acknowledges on appeal that the Morgan Hill address was “recent” for D.R. at least as of April 2015, about four months before the search. Despite an obligation under the terms and conditions of probation to inform probation about a change of address, D.R. never indicated to the probation department that his address had changed or that he was homeless. To the extent the minor relies on his mother’s testimony that D.R. had not lived at the Morgan Hill residence in years, the mother also indicated in her testimony that D.R. was on the property as recently as the morning of the probation search during the fight outside the residence. There was also evidence that D.R. received mail and kept clothes at the Morgan Hill residence. We determine that substantial evidence supports the juvenile court’s finding that the police reasonably believed the Morgan Hill address was D.R.’s residence for purposes of conducting a probation search. (Downey, supra, 198 Cal.App.4th at p. 658.)
2. Reason for the probation search
The California Supreme Court has held that the warrantless search of a probationer’s residence pursuant to a search condition of probation may be conducted without any reasonable suspicion of criminal activity. (People v. Bravo (1987) 43 Cal.3d 600, 602, 607, 611 (Bravo); Woods, supra, 21 Cal.4th at pp. 674-675.) However, “[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. [Citations.]” (Bravo, supra, at pp. 610-611.) “Warrantless searches are justified in the probation context because they aid in deterring further offenses by the probationer and in monitoring compliance with the terms of probation. [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers. [Citation.]” (Robles, supra, 23 Cal.4th at p. 795.) Thus, a search of a probationer must be reasonably related to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes. (Id. at p. 797; Bravo, supra, at p. 610.)
“[I]f persons live with a probationer, common or shared areas of their residence may be searched by officers aware of an applicable search condition.” (Robles, supra, 23 Cal.4th at p. 798.) In the context of probation searches, if “the circumstances, viewed objectively, show a proper probationary justification for an officer’s search[,] . . . then the officer’s subjective motivations with respect to a third party resident do not render the search invalid. [Citations.]” (Id. at pp. 796-797.)
As we have explained, the police reasonably believed that D.R. was on probation, that he was subject to search, and that the Morgan Hill residence was his current address for purposes of a probation search. The officers also received information that a fight had occurred in front of the Morgan Hill residence, that a gun may have been involved, and that one male had left the scene before the officers arrived. The officers recovered a firearm in the backyard from one of the juveniles who apparently was present during the altercation. The probation search was conducted later that same day. As the juvenile court found, “[d]etermining if a probationer was in possession of a firearm is undoubtedly a legitimate law enforcement purpose,” as well as determining whether a probationer was involved in a physical altercation in public. Moreover, the officers, who recovered from the property one firearm with the serial number removed, had a reasonable basis for concern about other illegal firearms on the property. The record thus reflects that the officers’ probation search was reasonably related to the rehabilitative and reformative purposes of probation and legitimate law enforcement purposes, and was not conducted for harassment or for arbitrary or capricious reasons. (Robles, supra, 23 Cal.4th at p. 797; Bravo, supra, 43 Cal.3d at pp. 610-611.)
Accordingly, the juvenile court did not err in denying defendant’s motion to suppress.
B. The Harvey/Madden Objection
During the suppression hearing, the minor made a Harvey/Madden objection, contending that the prosecution failed to offer “any substantive evidence that a probationer with a search condition was living at [the Morgan Hill] residence.” On appeal, the minor contends that the juvenile court erred in denying the Harvey/Madden objection to Officer Bell’s testimony regarding the Morgan Hill residence being subject to search due to D.R.’s probation status. The minor argues that, in the absence of evidence that the police were sufficiently and reliably informed about D.R.’s probation status, the search was not a valid probation search and the motion to suppress should have been granted. The minor contends that the probation officer’s testimony “did not cure this problem” because the probation officer “merely parroted the information in a database.” The minor argues that the “Harvey/Madden error” resulted in a violation of his rights under the Fourth and Fourteenth Amendments.
The Attorney General contends that prosecution established that the probation search was based on information obtained from official police channels and databases that were reliable.
“[T]he line of cases epitomized by People v. Harvey (1958) 156 Cal.App.2d 516 and People v. Madden (1970) 2 Cal.3d 1017 holds that, ‘although an officer may make an arrest based on information received through “official channels,” the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony.’ ” (People v. Rogers (1978) 21 Cal.3d 542, 547.) The California Supreme Court has explained that “ ‘[i]t is well settled that while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, “when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness.” [Citations.] To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer. [Citations.] “If this were so, every utterance of a police officer would instantly and automatically acquire the dignity of official information; ‘reasonable cause’ or ‘reasonable grounds,’ . . . could be conveniently fashioned out of a two-step communication; and all Fourth Amendment safeguards would dissolve as a consequence.” [Citation.]’ ” (Madden, supra, 2 Cal.3d at p. 1021.)
However, “[t]here is no requirement that the officer whose personal observations were relied upon for purposes of the probable cause determination actually testify to his or her observations. To the contrary, the Harvey/Madden rule merely precludes the prosecution from relying on hearsay information communicated to the arresting officer that is not sufficiently specific and fact based to be considered reliable.” (People v. Gomez (2004) 117 Cal.App.4th 531, 541 (Gomez).) Thus, “[u]pon proper 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.” ’ [Citation.]” (People v. Romeo (2015) 240 Cal.App.4th 931, 943 (Romeo).)
“[W]hen an officer seeks to justify a warrantless . . . search based on information obtained from an electronic communication, a variation of the same hearsay problem arises. Although Harvey-Madden evolved in the context of information transmitted to officers in the field by telephone or radio [citation], the rule has been applied to various types of electronic communication. [Citations.]” (Romeo, supra, 240 Cal.App.4th at pp. 944-945.)
“When probation is granted, the probation department exercises supervisory control over the probationer as an arm or instrument of the court. [Citation.] It keeps records on the probationer, which are by statute declared to be part of the records of the court. [Citations.]” (County of Placer v. Superior Court (2005) 130 Cal.App.4th 807, 813-814 (County of Placer).)
In this case, we determine that the prosecution presented evidence demonstrating that the source of Officer Bell’s knowledge concerning D.R.’s probationary status and residence was “sufficiently specific and fact based to be considered reliable.” (Gomez, supra, 117 Cal.App.4th at p. 541.) Officer Bell testified that the police dispatcher informed him that D.R. was on searchable probation, and that the Morgan Hill residence was D.R.’s listed probation address.
In turn, D.R.’s probation officer testified about the process by which a probationer’s address is listed in the probation department’s records. The probation officer testified that, during the probation department’s assessment process after a person is placed on probation, the probationer provides his or her address on a blue form. That form, along with any other document filled out by the probationer, goes into the probationer’s file. Further, address information provided by the probationer is entered into the probation department’s internal computer database.
Based on a review of probation department records, the probation officer testified that the listed address for D.R. was the Morgan Hill residence. The probation officer further testified that it is part of the terms and conditions of probation that a probationer inform probation about a change of address, and that there was no indication in the probation department’s records that D.R. had changed his address or that he had indicated he was homeless.
In view of the probation officer’s testimony about (1) D.R. being on searchable probation on the date of the search and that the Morgan Hill residence was his listed address, (2) the probation department’s practice for collecting an address from the probationer himself or herself, (3) the maintenance of that information by the probation department (see County of Placer, supra, 130 Cal.App.4th at pp. 813-814), and (4) a probationer’s obligation to update probation with any change of address, the prosecution established “ ‘ “sufficient indicia of reliability” ’ ” regarding the source for Officer Bell’s knowledge that D.R. was on searchable probation at the Morgan Hill address. (Romeo, supra, 240 Cal.App.4th at p. 943.) Further, contrary to the minor’s suggestion on appeal, the Harvey/Madden rule does not require the prosecution to provide testimony from the probation officer who personally took the address information from D.R. (Gomez, supra, 117 Cal.App.4th at p. 541 [“There is no requirement that the officer whose personal observations were relied upon . . . actually testify to his or her observations”].)
Accordingly, we determine that the juvenile court properly allowed Officer Bell’s testimony regarding D.R.’s probationary status and address over the minor’s Harvey-Madden objection.
IV. DISPOSITION
The disposition order of March 3, 2016 is affirmed.







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Bamattre-Manoukian, J.






WE CONCUR:






__________________________
ELIA, ACTING P.J.






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MIHARA, J.