In re Simon J.

Filed 6/25/07 In re Simon J. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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The Sacramento CountyJuvenile Court found that minor Simon J. was within the provisions of Welfare and Institutions Code section 602 in that he possessed marijuana for sale. (Health & Saf. Code, 11359.) The minor was placed on probation and committed to juvenile hall for 60 days with 49 days of credit.

On appeal, the minor contends the juvenile court erred by denying his motions to (1) exclude his statements pursuant to Miranda^[1], and (2) suppress evidence obtained in the search of his bedroom. We affirm the judgment.

The relevant facts are set forth in the Discussion.

DISCUSSION

I

The minor contends the juvenile court erred in denying his Miranda motion, since the investigating officers question-first, warn-later interrogation rendered the Miranda warnings ineffective. We are not persuaded.

Background from Evidence Code section 402 hearing

On December 22, 2005, at 4:30 p.m., Sacramento County Deputy Probation Officer Al Brown and Sacramento Sheriffs Detective Brandon Luke drove to the residence of Reynaldo B., whom Brown supervised, to conduct a probation search. Reynaldos grandparents and his half brother, the minor, also lived at the residence. Brown knew the minor from six prior contacts at the residence.

As Brown and Luke arrived at the residence, Brown saw an unknown white male knocking on a window of the residence while looking back over his shoulder toward the street. Brown and Luke contacted the man, learned that he had an outstanding warrant, and took him into custody.

Brown then knocked on the door of Reynaldos residence. Brown could hear people running through the house. After about four or five minutes, Reynaldo opened the door. The minor, his girlfriend, and two male friends of Reynaldo were inside. Pursuant to instructions, they went outside to the driveway.

While there, Luke asked the individuals for identity-related information. In response to Browns question, the minor denied knowing the man who had knocked on the window. Brown did not ask about any illegal items that might be in the house.

Six uniformed officers arrived to conduct a search of the residence. After the house had been secured, the officers walked everyone back inside since it was raining. Deputy Probation Officer Ray Lozada stayed in the living room with the minor and the others while the officers conducted a search of the premises. Brown and another officer searched the minors bedroom. On top of the dresser or nightstand, in plain sight, was a plastic baggie containing marijuana.

Brown escorted the minor toward the bedroom. In the hallway, Brown asked whether there were any illegal items in the bedroom. The minor initially denied having anything illegal, but he later pointed to the plastic baggie of marijuana. Within minutes, other officers began searching the bedroom while the minor stood in the doorway watching. He finally admitted that the baggie of marijuana was his.

Brown and the minor went back to the living room where the other individuals were still waiting. Brown told them that having marijuana in the house was disrespectful to the grandparents. He told them this because each time he had been in the house it had smelled like weed. During Browns talk, the minor did not make any statements about the marijuana or other items in his room.

About eight minutes after Browns talk, the minor was placed in handcuffs. He did not say anything about the marijuana or other items in his bedroom.

As they left the house, Brown told the minor that the house had been hot for a long time, and you guys are out of control and disrespectful to the household. The minor told him, [Y]oure right, Brown, youre right, Brown.

Before the minor was placed inside the patrol car, his grandparents drove into the driveway. Brown told the minor to apologize to the grandparents for his behavior and to tell them what he was doing in the household. In response to Browns direction to tell your grandfather what youve been doing, the minor apologized and said, Ive been selling marijuana out of the house. Brown never advised the minor of his Miranda rights.

The minor was taken to the sheriffs central area station, where Brown told the minor to write a letter to his grandparents regarding his behavior.

At the station, Detective Luke took the minor to an interview room and advised him of his Miranda rights. After Luke read each right, he asked the minor if he understood the right, and the minor said that he did. He did not appear to be confused. About an hour had elapsed since his arrest.

After the Miranda warning was given and waived, the minor admitted that the weed and other items in a drawer were his, and that he had been selling weed for approximately two years. He claimed that he made approximately $200 per week, that he had sold a couple of dime bags before the officers arrived to conduct the search, and that he had given a portion of the sales proceeds to his grandparents for living at their house.

The minor testified that before Brown began searching the house, Brown asked, [I]s there anything that I might find that will make me mad? The minor showed Brown the marijuana in his bedroom and told him it was for his personal use. Later, in the living room, Brown asked the minor if he was selling marijuana. The minor responded, [N]o, sir. But Brown told the minor that he was selling marijuana. Brown added that, if the minor admitted selling marijuana, Brown would get the minor out of juvenile hall.

Regarding his interview with Detective Luke, the minor testified that Luke asked him only whether he wanted to write an apology letter to his grandmother. The minor denied that Luke gave him a Miranda advisement and denied making any admission of guilt.

The minor admitted that he had smoked marijuana on the morning of his arrest, before the officers had arrived at his house. The minor also admitted that he had seen Brown prior to December 22, 2005, and that Brown had never hassled him. During the December 22 search, Brown never yelled at the minor, and the minor never felt harassed. Browns tone of voice was generally pleasant.

In ruling on the motion to exclude the minors admissions, the juvenile court found that Detective Lukes recollection prevailed and that he had advised the minor of his Miranda rights prior to the interview. The court ruled that the preadvisement admissions to Probation Officer Brown were inadmissible, but the postadvisement admissions to Detective Luke were admissible.

Analysis

Defendant contends, as he did in the juvenile court, his statements to Detective Luke should have been excluded from evidence pursuant to Missouri v. Seibert (2004) 542 U.S. 600 [159 L.Ed.2d 643] (hereafter Seibert). We are not persuaded.

Seibert invalidated the practice of some peace officers of undermining the efficacy of Miranda warnings by asking questions in deliberate violation of Miranda, then Mirandizing the detainee, and then exploiting the unwarned statements to get the detainee to repeat or endorse them. Justice Kennedys concurrence was necessary to make up a majority and relied on narrower grounds, thereby setting forth the rule of decision. (See Romano v. Oklahoma (1994) 512 U.S. 1, 9 [129 L.Ed.2d 1, 11].)^[2] He stated the rule thusly:

The admissibility of postwarning statements should continue to be governed by the principles of [(Oregon v. Elstad (1985) 470 U.S. 298 [84 L.Ed.2d 222] [inadvertent failure to warn before questioning does not of itself undermine effectiveness of warnings])] unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspects situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. (Seibert, supra, 542 U.S. at p. 622.)

In this case, there was no evidence that Probation Officer Brown and Detective Luke employed the sort of deliberate two-step strategy that was condemned in Seibert. In any event, a reasonable person in the minors situation would have understood the import and effect of the Miranda warning and of the Miranda waiver as provided by Detective Luke. The minor had a one-hour break in time, a change of location from his home to the sheriffs station, and a change of interrogators from the probation officer to the detective. The minor does not contend, and no evidence suggests, the postwarning interview had any resemblance to a cross-examination on the earlier statement. These factors sufficed to allow the minor to distinguish the two contexts and appreciate that the interrogation had taken a new turn. (Seibert, supra, 542 U.S. at pp. 621-622 (conc. opn. of Kennedy, J.).) The minors Miranda motion was properly denied.

II

The minor contends his motion to suppress the fruits of the search of his bedroom (marijuana, cash, baggies, etc.) should have been granted because Probation Officer Brown did not know that he had waived his Fourth Amendment rights in connection with an existing grant of juvenile probation. We are not persuaded.

Background from suppression hearing

Brown testified that he had received training regarding probation and its conditions. Brown explained that his probationer, Reynaldo, had agreed to waive his Fourth Amendment rights as a condition of his probation. Because Reynaldo commonly had access to, and shared, items in the minors room, Reynaldos probation search condition allowed Brown to search that room.

In November 2005, Brown learned from the minors probation officer, Natalie Clemons, that the minor was on probation with general terms and conditions. Brown explained that while Clemons did not expressly say that the minors probation included search and seizure, the general terms and conditions of Sacramento County juvenile probation include search and seizure.

Brown also explained the reason for his discussion with Clemons: Deputy Clemons knows and is aware of the caseload that I supervise. She was aware that I supervised [Reynaldo] who also lived in the residence who is a known validated gang member. Shes not an armed officer. She works either informal or six month court with low level line of probation. She did not want to go out to the house by herself knowing that gang members could be associated at the residence, so she wanted someone who is familiar with the residence to go out to the house with her to do a home visit. As it turned out, Clemons was not present for the search.

Brown smelled marijuana when he entered Reynaldos house. He searched Reynaldos room, then the grandparents bedroom, and finally the minors bedroom. The minors bedroom door did not have a lock, and the door was open before Brown entered the room. On top of the dresser, he saw marijuana wrapped in a plastic bag that was tied closed. Inside the dresser, he found boxes containing plastic baggies. In the top dresser drawer, he found a small digital scale. Inside the scale was a green leafy substance that appeared to be marijuana leaves. A number of $20 bills were found in a dresser drawer.

The minor testified that his bedroom door was partially closed when Brown first opened it. The minor testified that he closed the door when he followed Brown into the living room.

The juvenile court found that based upon the totality of circumstances, Probation Officer Brown acted reasonably when he conducted the search of the minors bedroom. Thus, the suppression motion was denied.

Analysis

After briefing in this case was completed, a majority of the California Supreme Court held in In re Jaime P. (2006) 40 Cal.4th 128 that a juveniles probationary search condition does not justify an otherwise illegal search and seizure if the officer conducting the search is then unaware that the juvenile is on probation and subject to the search condition. (Overruling In re Tyrell J. (1994) 8 Cal.4th 68, 86, 89; In re Jaime P., supra, at pp. 130, 139.)

In this case, Probation Officer Brown knew that the minor was on probation. Contrary to the minors argument, Brown did not merely assume that the minors probation included a search condition.

Brown had seven years experience as a juvenile probation officer, and he had been trained on juvenile probation. Prior to the search, the minors probation officer, Clemons, told Brown that the minor was subject to [g]eneral terms and conditions of probation. Although Clemons did not speak the words search and seizure, Brown knew from his experience in Sacramento County Juvenile Court that juvenile probation general terms include search and seizure. Thus, Brown understood that, [i]f you have general terms and conditions included in your conditions of probation, yes, you are on search and seizure probation.

Although Brown had seen cases in which judges had stricken certain general terms and conditions of probation, he had never seen a case in which the judge had stricken a search and seizure condition.

We thus reject the minors argument that Probation Officer Brown was never informed that [the minor] was subject to a search condition. Although the minors probation officer did not tell Probation Officer Brown in those precise words, she told him that the minor was subject to general terms and conditions, which Brown knew included search and seizure. Had the minor not been subject to search and seizure, Clemons could not properly have told Brown that the minor was subject to general terms and conditions. Rather, Clemons would have been obligated to explain that the minor was subject to some, but not all, of the general terms or, more specifically, that the minor was not subject to search and seizure.

The remaining question is whether Brown was required to consult a source other than Clemons to verify what she had told him. The juvenile court recognized that there was no case law that says that, and the minor has not brought any such authority to our attention. Nor are we aware of any such authority.

Alternatively, any error with respect to Browns knowledge of the minors probation conditions was harmless. Brown knew that his own probationer, Reynaldo, had waived his Fourth Amendment rights as a condition of his probation, and that Reynaldo commonly had access to, and shared, items in the minors room. Thus, Brown understood that Reynaldos probation search condition allowed Brown to search that room. (People v. Woods (1999) 21 Cal.4th 668, 676 [if persons live with a probationer, shared areas of their residence may be searched based on the probationers advance consent]; see People v. Robles (2000) 23 Cal.4th 789, 795-796.) The minors testimony that he closed the door when he followed Brown into the living room may reasonably be understood as ineffectively concealing the room from Brown, not as legitimately excluding Reynaldo from his bedroom. For this reason alone, the minors suppression motion was properly denied.

DISPOSITION

The order of the juvenile court is affirmed.

NICHOLSON , J.

We concur:

SCOTLAND, P.J.

DAVIS , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1]Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (hereafter Miranda).

^[2] The minors discussion of Seibert is confined to the plurality opinion that was written by Justice Souter and joined by Justices Stevens, Ginsburg and Breyer.