Filed 10/25/17 P. v. Baca CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Shasta)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

SABRINA MARIE BACA,

Defendant and Appellant.
C081871

(Super. Ct. No. 15F7260)




Following a traffic stop, a police officer searched the car defendant Sabrina Baca was driving and found contraband. The officer testified he knew that defendant was on searchable probation, and the trial court later confirmed that fact and denied defendant’s motion to suppress the evidence obtained as a result of the search, finding the search was a valid probation search.
On appeal, defendant contends the search was not valid because the officer’s knowledge of defendant’s probationary status was not objectively reasonable. For reasons we will explain, we disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Vehicle Stop and Probation Search
On November 20, 2015, Anderson Police Officer Chris Chimenti conducted a traffic stop of an automobile for having defective reflective coating on its rear license plate. Defendant was the driver and sole occupant of the vehicle. Chimenti knew defendant from previous pedestrian stops that were usually related to narcotics, and he knew she was on probation for a methamphetamine-related offense.
When Officer Chimenti asked defendant for her driver’s license, she provided him with a California identification card instead. He ran a records check and found that her driver’s license was expired. Chimenti then asked her to get out of the car, placed her in handcuffs, and asked her to sit in his patrol car. He told her she was being detained for driving on an expired license and for a probation search. He then searched the car in advance of having it towed. In a purse on the floor of the car, he found methamphetamine and drug sales and consumption paraphernalia. When confronted with what Chimenti had found, defendant admitted it was methamphetamine possessed for sale.
Charges and Motion to Suppress
Defendant was charged with possession for sale as well as transporting methamphetamine, possessing drug paraphernalia, and driving without a license. After waiving a preliminary hearing, defendant moved to suppress all of the evidence obtained as a result of the warrantless search of her car. In opposition, the People contended the search was permissible because defendant was on searchable probation from a previous drug conviction sustained in August 2015.
At the hearing on the motion to suppress, the trial court first asked whether defendant contested that she was on searchable probation at the time of the search. Defense counsel said she did. The prosecutor asserted that in her written opposition to the suppression motion she had asked the court to take judicial notice of the misdemeanor court file, and defense counsel said she had no opposition to that request. Upon review of the file, however, the court determined that on the “sentencing orders,” the box providing that defendant submit to warrantless searches was not checked. When the court asked where defendant was sentenced, the prosecutor responded and then added: “I can’t imagine as a matter of course that anybody would take a plea to an 11377 without having a search term added.”
The prosecutor then expressed the need to secure a transcript of the plea and sentence because: “It was our belief, as well as the [police’s] belief that [defendant] was searchable pursuant to the case file.” The court suggested taking testimony pending receipt of the transcript. Defense counsel interjected that the transcript would be irrelevant because “the relevant issue is what the officer was aware of at the time of conducting the search.” According to defense counsel, Officer Chimenti “indicated [in his report] that he was aware . . . that [defendant] had searchable or warrantless search terms for drugs and paraphernalia,” and he had attached to his arrest report a copy of the court docket for the prior case, but “[t]he court docket d[id] not reflect that [defendant was] searchable.”
The prosecutor then stated that Officer Chimenti would “testify that he is in charge of putting together a probationer book for his department,” which “contains pictures of those who are searchable,” and he “knew the Defendant was on probation based on that book.” The court proposed to “take all the testimony Counsel believes relevant and then deal with a second phase of the hearing.” Counsel agreed.
Officer Chimenti first testified generally as to his encounter with defendant in the manner we have outlined ante. As relevant here, he testified that he knew defendant from multiple previous contacts, which he characterized as “ped stops” or “pedestrian stops, usually narcotic related.” He added that he “also knew [defendant] was on Court probation for methamphetamine.”
On cross examination, Officer Chimenti confirmed that he was aware at the time of the stop that defendant was on probation and “had warrantless search terms.” He testified that he did not recall whether he had asked defendant if she was on probation at the time of the stop, including whether she was on searchable probation. When asked if he contacted dispatch to verify defendant’s probationary status, he offered that his dispatch did not have access to that information. He was then asked who he would “normally contact to confirm whether or not somebody is on Court probation.” (He was not asked what he did in this instance, if anything, and he was not then asked how he would verify terms of probation.) In response, he described and referenced the “page” (court docket summary) that he had attached to his report. He testified that he would not have access to this summary during a traffic stop. He was asked how he would ascertain someone’s probationary status if on a traffic stop, and he responded that it would “depend[]” on whether his partner was at the office, because his partner could look it up. Then he was asked if “it would be the same process to find out whether or not somebody had warrantless search terms imposed on a sentence” and he said “[t]hat would be correct.” He testified that the month before the stop he had completed a binder of these summaries to assist his partners in determining whether a subject was on probation; defendant’s court docket summary was in that binder.
After a long discussion between court and counsel regarding the import of the just-admitted court docket summary, Officer Chimenti agreed with the judge’s conclusion that he had seen the summary at some point in the undefined past but had printed it and attached it to his report after defendant’s arrest. He specifically denied knowing “the exact verbiage” of the summary, but asserted: “I just knew she was on court probation with terms prior to my stop.”
The court docket summary showed that in August 2015 defendant pleaded no contest to the charge in the prior case, and was placed on 36 months of probation. Nowhere on the summary, however, does there appear any indication that defendant was ordered to submit to warrantless searches as a condition of probation.
After hearing the testimony and some argument, the trial court continued the case for 10 days to secure a transcript of the sentencing in the prior case. At the continued hearing, the transcript from the prior case revealed that a different court had ordered defendant, as a condition of probation, to submit to warrantless searches. Nevertheless, defense counsel argued that while Officer Chimenti “believed Ms. Baca to be on probation and . . . believed she was subject to warrantless search terms,” “[t]he docket that [he] attached to his police report did not reflect warrantless search terms.” When the court pointed out that Chimenti’s belief was correct, counsel responded “that an officer’s later discovery of search terms doesn’t validate an unlawful search. . . . Had he called to do a check he would have been informed she was not subject to warrantless search terms.” The court replied that counsel’s argument “assumes a fact that I don’t think was part of the evidence: What’s in the docket may or may not be what is in the computer system. I don’t know. I don’t think they simply scan a court docket. I don’t know how, from this evidence, information that is retrievable by a law enforcement individual, whether it’s beforehand to make a list, as he said that he did, or in the field, is a copy of the court docket which is incorrect.” Defense counsel pointed out that Chimenti had testified that the binder was composed of court docket summaries, and argued that his actions were “exactly the type of actions that the exclusionary rule [was] created for,” because the “purpose of that rule is to deter any future police misconduct.” When the court asked what the officer’s misconduct was, counsel responded, “working off memory that was actually inaccurate based on the information that he was provided; and not following through with the procedure to call a fellow police officer, if necessary, to confirm whether or not warrantless search terms were present.”
The trial court denied the suppression motion. On the issue of the search condition, the court emphasized that “the officer knew there was a search term, he articulated it was his belief there was a search term, and there was a search term. Whether he was -- he put evidence in or not, he was correct: She was on searchable probation. To deter officers from searching people they know to be on searchable probation, that’s a rule that can’t work. She was on probation, and she was searchable.”
Plea
Following the denial of her suppression motion, defendant agreed to plead no contest to the charge of possessing methamphetamine for sale in exchange for dismissal of the remainder of the charges and a grant of probation. Thereafter, defendant timely appealed the order granting probation.
DISCUSSION
“The Fourth Amendment proscribes all unreasonable searches and seizures, and it is settled that warrantless searches are per se unreasonable unless they come within an established exception to the warrant requirement. [Citation.] A search by police under an adult probationer’s search condition comes within an exception.” (People v. Hoeninghaus (2004) 120 Cal.App.4th 1180, 1184 (Hoeninghaus).) That exception is based on consent: A person who voluntarily accepts a grant of probation subject to a condition allowing warrantless searches has consented to such searches, and a “search conducted pursuant to a valid consent does not violate the Fourth Amendment unless the search exceeds the scope of the consent.” (People v. Bravo (1987) 43 Cal.3d 600, 605.) “[T]he exception is inapplicable[, however,] if police are unaware of the probation search condition at the time of a warrantless search.” (Hoeninghaus, at p. 1184.)
This case is unusual; here we are not asked to decide if the officer’s incorrect belief that the defendant was searchable was reasonable, but rather whether his correct belief was reasonable. It is not disputed that Officer Chimenti both knew and had reason to know that defendant was on probation; the only issue here is whether his expressed knowledge that she was searchable as a condition of probation--although undisputedly true--was also objectively reasonable.
In addition to the correctness of the officer’s recollection that defendant was searchable, here we have the fact that the trial court deciding the officer’s credibility as well as the reasonableness of the officer’s knowledge also knew at the time it decided to uphold the search that the officer was correct. “[W]e cannot turn a blind eye to the undisputed fact that defendant was actually on probation and consented to a search condition.” (People v. Hill (2004) 118 Cal.App.4th 1344, 1351.)
Defendant contends that while “the officer may have subjectively believed [defendant] had search terms, it was not objectively reasonable for him to so believe because the document he specifically relied on”--the court docket summary--“did not support his subjective belief.” She also contends this case is analogous to Hoeninghaus, where the officer who searched the defendant did not know the defendant was on probation and subject to a search condition until after the officer searched the defendant’s car, where the officer discovered contraband. (Hoeninghaus, supra, 120 Cal.App.4th at p. 1185.)
For their part, the People contend Hoeninghaus is inapposite because, in contrast to the officer in that case, here Officer Chimenti testified that he was aware that defendant was subject to a search condition before he searched her car. The People further contend that the fact that “the docket record (Exhibit A) which Officer Chimenti had copied and put into the police department binder did not reflect [defendant]’s search condition of probation is not dispositive” because, as “the trial court found, the officer had actual knowledge of [defendant’s] search condition of probation irrespective of the contents of Exhibit A.”
We agree with the People that Hoeninghaus is neither analogous nor particularly helpful here. In that case, the searching officer did not even purport to claim knowledge of the defendant’s search condition before the officer conducted the search that resulted in discovery of the contraband. Here, however, Officer Chimenti did claim that he knew defendant was on searchable probation at the time he searched her car. Hoeninghaus simply does not speak to such a case.
“[W]hether a search is reasonable must be determined based upon the circumstances known to the officer when the search is conducted.” (People v. Sanders (2003) 31 Cal.4th 318, 332.) “ ‘[A]lmost without exception in evaluating alleged violations of the Fourth Amendment the [United States Supreme] Court has first undertaken an objective assessment of an officer’s actions in light of the facts and circumstances then known to him.’ ” (Id. at p. 334.) Thus, the basic question in a search and seizure case is generally whether the officer acted in an objectively reasonable manner in light of the facts and circumstances known to him when he acted. This means that where (as here) the particular search in question is sought to be justified by the prior consent of the defendant by accepting the grant of probation, the pertinent question is whether it was objectively reasonable for the officer to believe that the defendant had, in fact, given his or her prior consent to the search.
In evaluating a trial court’s ruling on a motion to suppress, we defer to that court’s factual findings, express or implied, if supported by substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 924.) We then exercise our independent judgment in determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment of the United States Constitution. (Ibid.)
Officer Chimenti testified that he knew defendant was on probation for a drug conviction and knew she was searchable. An officer’s awareness of a search condition is an exception to the warrant requirement and provides a valid basis for the search. (Hoeninghaus, supra, 120 Cal.App.4th at p. 1184.) Thus, the search was lawful if there was substantial evidence to provide an objective basis for the officer’s belief that defendant had a search condition.
Defendant contends the officer relied solely on the “court summary document” that did not show the search condition, and therefore his belief was unreasonable. The record does not support this contention. Officer Chimenti did not testify that he had relied on this “court docket summary” during the stop of defendant or immediately prior thereto. He did not testify that he knew defendant was on probation due to this summary, let alone that he knew she was searchable because of this summary. He discussed the binder of summaries that he had prepared in response to general questions about looking up suspected probationers to confirm that they were on probation.
Rather, Officer Chimenti claimed: “I just knew [defendant] was on court probation with terms prior to my stop.” The prosecutor did a poor job of eliciting how the officer knew defendant had a search condition. The facts and circumstances known to the officer, however, show his belief in the search condition was objectively reasonable. He testified that he was familiar with defendant, having encountered her many times, usually related to narcotics. On one occasion, she consented to a search that revealed a methamphetamine pipe in her purse. Chimenti had recently included her information in a binder of probationers that he prepared for the other officers. His knowledge of the search condition was based, in large part, on her probation status for a drug conviction.
This foundation for the officer’s actual knowledge is similar to that found sufficient in People v. Douglas (2015) 240 Cal.App.4th 855 (Douglas). There, the question was whether the officer’s belief in defendant’s postrelease community supervision (PRCS) status was objectively reasonable. In finding it was, the appellate court cited the officer’s personal involvement in the arrest of defendant on weapon charges, his presumed knowledge of the law pertaining to firearm offenses and punishment, and that defendant’s name appeared on a list of active probationers within the past two months. (Id. at p. 870.)
Just as it was reasonable for the officer in Douglas to make “a rough calculation” that the defendant was still on PRCS (Douglas, supra, 240 Cal.App.4th at p. 871), here it was reasonable for Officer Chimenti to conclude defendant had a search condition due to her drug conviction. The record reflects that going into the suppression hearing, before the erroneous order omitting the search condition was discovered in the file, the prosecutor also believed defendant was searchable. If the prosecutor, as she claimed, could not “imagine as a matter of course that anybody would take a plea to a [drug charge] without having a search term added,” certainly it was reasonable for the officer to think so.
Officer Chimenti’s belief in defendant’s search condition was objectively reasonable, actual, and correct. The trial court did not err in denying the motion to suppress.
DISPOSITION
The judgment is affirmed.



/s/
Duarte, J.



I concur:



/s/
Nicholson, Acting P. J.
ROBIE, J.

I respectfully dissent.
Paraphrasing People v. Douglas (2015) 240 Cal.App.4th 855, 868, the pertinent question here is “whether, judged against an objective standard, the facts available to [Officer Chimenti] at the moment he [search]ed [defendant’s car] would have warranted an officer of reasonable caution to believe [defendant] was on [searchable probation]. Or to put it most simply -- Was [Chimenti’s claimed knowledge] that [defendant] was on [searchable probation] objectively reasonable?” The majority says the answer to that question is “yes.” On the record here, I have to disagree.
As the majority acknowledges, Officer Chimenti’s bare claim of knowledge that defendant was on searchable probation (“I just knew”) is not enough, by itself, to uphold the purported probation search. Rather, the question is “whether the officer’s claimed knowledge that [defendant] was on [searchable probation] was objectively reasonable in light of the known facts.” (People v. Douglas, supra, 240 Cal.App.4th at p. 870, italics added.) And the “known facts” must be established by evidence. Without evidence of facts known to Officer Chimenti that support his claim of knowledge, it is simply not possible for me to say his claimed knowledge was objectively reasonable.
According to the majority, “[t]he prosecutor did a poor job of eliciting how the officer knew defendant had a search condition.” I would venture to say that the prosecutor did not do that job at all. I will accept the majority’s conclusion that Officer Chimenti “did not testify that he knew defendant was on probation due to [the court] summary [document], let alone that he knew she was searchable because of this summary.” So what was the basis of Officer Chimenti’s claimed knowledge, as shown by the evidence?
This is where an evidentiary gap exists that the prosecutor failed to fill. Although theoretically there might have been various bases for Officer Chimenti’s claimed knowledge that there was a search condition on defendant’s probation, on the record here there was no evidence to fill the gap between the search condition that was orally imposed but not included in the sentencing order and the officer’s claimed knowledge of that condition.
In that regard, I disagree with the majority’s assessment that this case is like Douglas. In Douglas, the question was whether the officer had an objectively reasonable basis for believing the defendant was on postrelease community supervision (PRCS), such that the officer could lawfully detain the defendant without reasonable suspicion of criminal activity. (See People v. Douglas, supra, 240 Cal.App.4th at pp. 857, 870-871.) In concluding it was objectively reasonable for the officer to believe the defendant was on PRCS, the appellate court relied primarily on evidence that the officer “had personally been involved in a previous arrest of [the defendant] for a weapons violation approximately two years before the current offense.” (Id. at p. 870.) According to the appellate court, the officer’s testimony that “he knew [the defendant] was on PRCS, not probation, . . . suggest[ed] he knew [the defendant] had been sent to prison for the earlier offense. Based 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” when he detained the defendant. (Douglas, at pp. 870-871, fn. omitted.) The appellate court further concluded that the officer’s “further information that [the defendant’s] name appeared on a list of active probationers within the . . . two months [prior to the detention] tended to substantiate the officer’s preexisting knowledge” because that further information “provided objective corroboration for [the officer’s] belief that [the defendant] remained subject to an active PRCS search condition.” (Id. at p. 871.) The appellate court also concluded that the defendant’s “furtive action in trying to pull away from the curb to avoid contact with [the officer] gave further support to the inference that [the defendant] was still on PRCS and trying to avoid a search . . . .” (Ibid.)
This case stands in stark contrast to Douglas. Here it was not enough for Officer Chimenti to have an objectively reasonable basis for believing defendant was on probation; rather, he had to have knowledge of facts that gave him an objectively reasonable basis for believing she was on searchable probation -- that is, that the terms of her probation included a search condition. This is so because, in contrast to PRCS, a search condition is not mandatory or inherent in every grant of probation.
So what facts were known to Officer Chimenti that justified a belief that defendant was on searchable probation? The majority says this: “He testified that he was familiar with defendant, having encountered her many times, usually related to narcotics,” and “[o]n one occasion, she consented to a search that revealed a methamphetamine pipe in her purse.” Also, “Chimenti had recently included her information in a binder of probationers that he prepared for the other officers.” From these facts, the majority concludes that Officer Chimenti’s “knowledge of the search condition was based, in large part, on [defendant’s] probation status for a drug conviction.”
In fact, on this record, Officer Chimenti’s claimed knowledge of the condition could not have been based on anything else, because the evidence did not show any other fact known to Officer Chimenti that could have supported his belief that defendant was on searchable probation. So the ultimate question is this: On the evidence presented, was it objectively reasonable for Officer Chimenti to believe defendant had a search condition on her probation just because he knew she was on probation for a drug offense? I think not.
In concluding otherwise, the majority relies on the prosecutor’s assertion that she herself could not “imagine as a matter of course that anybody would take a plea to a [drug charge] without having a search term added.” That unsworn statement is not evidence. Beyond that, the record does not disclose the factual basis for the prosecutor’s belief, let alone any basis for me to conclude that, whatever the factual basis for her belief may have been, Officer Chimenti was aware of the same facts. Thus, even if I could conclude that the prosecutor’s belief was reasonable (which I cannot), the record offers no basis for extending that conclusion to the officer. Under these circumstances, to conclude that the officer’s belief was reasonable because the prosecutor shared the same belief is pure bootstrapping.
In the end, I do not doubt that Officer Chimenti had some reason for believing that defendant’s probation for a drug offense included a search condition, and it may well be that his reason was a good reason, which, if offered into evidence, would have supported the conclusion that his belief was objectively reasonable. Unfortunately, however, the prosecutor failed to offer any evidence of what Officer Chimenti knew that would have made his belief reasonable, and I cannot simply ignore that evidentiary gap. In the absence of evidence sufficient to support the conclusion that Officer Chimenti’s belief in the existence of the search condition was reasonable, the People failed to establish that the warrantless search of defendant’s car was justified as a probation search.
I also conclude the search cannot be justified as an inventory search because no evidence was presented as to why it was necessary for the car to be impounded and, consequently, searched. (See People v. Torres (2010) 188 Cal.App.4th 775, 788, 790 [inventory search not justifiable where the impounding officer “did not offer any community caretaking function served by impounding defendant’s [car],” and “[t]he prosecution failed to show the [car] was illegally parked, at an enhanced risk of vandalism, impeding traffic or pedestrians, or could not be driven away by someone other than defendant”].) Further, the good faith exception to the exclusionary rule cannot be applied here for the very same reason I cannot justifiably conclude that Officer Chimenti’s belief in the existence of the search condition was objectively reasonable. Absent evidence of what Officer Chimenti knew that would have made his belief reasonable, there is no basis for me to conclude that what happened here did not arise from “deliberate, reckless, or grossly negligent conduct, or . . . recurring or systemic negligence.” (Herring v. United States (2009) 555 U.S. 135, 144 [172 L.Ed.2d 496, 507].)
For these reasons, I would reverse the judgment and remand the case with instructions to allow defendant to withdraw her no contest plea, to vacate its order denying the motion to suppress, to enter a new order granting the motion to suppress, and for further proceedings in accordance with the law.



/s/
Robie, J.