Filed 6/18/98





Plaintiff and Respondent,



Defendant and Appellant.


(Super. Ct. No. 95NF2738)


    Appeal from a judgment of the Superior Court of Orange County, Richard L. Weatherspoon, Judge. Reversed with directions.

    Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant.

    Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Larissa Karpovics Hendren and Michael Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

    Antonio Robles appeals his conviction for car theft contending the trial court erred by failing to grant his motion to suppress evidence. We reverse.

* * *

    Ten days after Rolando Sanchez's Oldsmobile was stolen, he saw Robles drive it into a convenience store parking lot, leave on foot, and return with a can of gas. Robles drove off, but Sanchez found him in a nearby alley standing by the vehicle with two other people. Sanchez brought the police to the scene, and identified Robles in a field showup soon after. The Oldsmobile was no longer in view.

    When the stolen vehicle report was put on the air, Officer Ryan Stack was directed to a likely location by a police helicopter. He learned from other officers Robles had been detained. Armed with Robles's address, Stack went to the garages behind Robles's apartment house. Through a small hole in one aluminum garage door, and without use of a flashlight, the officer was able to see the rear of an automobile. The license plate number matched that of Sanchez's Oldsmobile.

    Stack tried but failed to contact anyone at the apartment. Although Robles was in custody nearby, his consent was not sought. Stack simply opened the garage door and entered. A forensic technician was summoned, and he lifted Robles' palm print from the interior surface of a window in the vehicle. The ignition was punched and Sanchez's key no longer worked; the automobile had to be started with a screwdriver.

    Officer Hector Robles See footnote 1 went to defendant's apartment the day after his arrest and the recovery of the Oldsmobile. The officer's purpose, apparently, was to speak to defendant's mother.See footnote 2 She was not home, but defendant's brother, Armando Robles, came to the door. The officer obtained Armando's name and date of birth and asked to look in the garage. Presumably aware that his brother had been arrested and the stolen vehicle had been removed the previous day, Armando escorted the officer to the garage and permitted him to examine it. Armando was on probation and had waived his search and seizure rights as a condition of it, although the police were not aware of this until at least some days later. The trial court denied Robles's motion to suppress evidence, reasoning Armando's search and seizure condition justified it. See footnote 3

    When, as here, a search and seizure is accomplished without a warrant, the prosecution has the burden to justify it. (See People v. Torres (1992) 6 Cal.App.4th 1324, 1334.) The Attorney General seeks to justify the search on the ground it was really a search pursuant to a probation condition of Robles's brother, Armando. (See generally, People v. Bravo (1987) 43 Cal.3d 600.)

    In People v. Bravo, supra, 43 Cal.3d 600, the Supreme Court held probation searches could be made without a warrant and without probable cause, but the court stressed such searches "may [not] be conducted for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes." (Id. at p. 610.) We must decide whether this case comes within the purview of permissible probation condition searches under Bravo.

    In People v. Pipitone (1978) 86 Cal.App.3d 681, the court held the police could not use a probation condition solely as a pretext to search for evidence against a co-tenant. (Id. at pp. 687-688.) In Whren v. United States (1996) 517 U.S. 806, however, the United States Supreme Court concluded the police may rely on a traffic violation to stop a vehicle as a pretext for a drug investigation, primarily because it is the objective circumstances which determine the legality of the search, not the officer's subjective intent. (Id. at p. ___, 116 S.Ct. 1774.) There is a question whether Whren, by rejecting the pretext theory, dispatched Pipitone, which relied on that theory to reach its result.

    We need not answer that question, however, to resolve this case. The police may rely on a search-and-seizure probation condition to validate a search even if they are unaware of it when they search. Indeed, we reached that conclusion in People v. Viers (1991) 1 Cal.App.4th 990, 993. (See also In re Marcellus L. (1991) 229 Cal.App.3d 134, 142-144.)See footnote 4 And, in general, the police may find and gather evidence against non-probationer cotenants, even if the cotenant is unaware of the probationer's search condition. (Russi v. Superior Court (1973) 33 Cal.App.3d 160, 165-171.) But the lawfulness of the search fades where, as here, those two factors are linked together, the non-probationer is the target of the search, and the police are unaware of the probationer, let alone the probation condition when they search.

    The justification for validating probation condition searches even when the police are unaware of the condition is the probationer has waived any right to complain about the search by agreeing to the condition. (People v. Viers, supra, 1 Cal.App.4th at p. 993; see also People v. Bravo, supra, 43 Cal.3d at pp. 608-610.) The non-probationer, however, has waived nothing.

    The basis for allowing the fruits of a probation search against a non-probationer is that society's interest in controlling probationers' behavior outweighs the privacy interests of the probationers' cotenants. (Russi v. Superior Court, supra, 33 Cal.App.3d at pp. 168-170.) But where, as here, the search has nothing to do with the probationer, no societal interest regarding probationers is implicated by upholding the right of the non-probationer to be free from warrantless searches absent some other justification.

    We need not resort to a pretext theory to conclude the search here could not be justified on the basis of a probation condition search. Even under the "objective standard," the search cannot be justified. Although the arresting or searching officer need not personally be aware of facts justifying the arrest or search, the police must at least have "collective knowledge" objectively justifying the action. (See, e.g., People v. Ramirez (1983) 34 Cal.3d 541, 547; People v. Ford (1984) 150 Cal.App.3d 687, 698-699.) Even if the law were willing to attribute to the police knowledge Robles' brother Armando was on probation, this problem exists: When the search was performed no one knew Armando existed.

    Upholding the search in this case would spawn a rule that a warrantless search or an arrest without probable cause will be validated whenever the police acquire information after the fact justifying the search. That result would negate the long-standing axiom in search and seizure law that "a search cannot be justified by what it turns up. . . ." (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 821.) Whatever the plight of Pipitone, we are unwilling to carve such a big piece out of Fourth Amendment protections.

    The Attorney General asserts that even if the search was improper, the court's ruling can be upheld by applying the inevitable discovery doctrine. Although the district attorney made no such claim below, the Supreme Court has held inevitable discovery may be asserted for the first time on appeal, contrary to the usual rule. (People v. Clark (1993) 5 Cal.4th 950, 993, fn. 19; but see Mestas v. Superior Court (1972) 7 Cal.3d 537, 542.)

    The Attorney General reasons the car would have been inevitably discovered because Armando consented to a police examination of the garage the next day, and because the officers had probable cause, a search warrant application would have surely been granted had it been presented. What Armando's brother did after there was nothing to hide proves nothing. And, the notion that a hot car would have reposed unmoved for an entire day awaiting police discovery is idle speculation. We will not indulge in it, except to ask whether defendant's brother, or another friend or relative, might have been tempted to remove the evidence after defendant's arrest. Robles could have used one of his two phone calls at booking to suggest just such a course. In other words, the Attorney General's suggestion is more of a nonstarter than the venerable Oldsmobile was after it was recovered.

    The Attorney General's second inevitable discovery argument, that a search warrant would have issued had it been sought, also lacks merit. If probable cause alone were the functional equivalent of a search warrant, the police would rarely, if ever, bother to seek one. "To [] stretch the doctrine of inevitable discovery to the point where a warrantless search can be justified on the ground that a search warrant would have been 'inevitably' issued had it been sought is not only sophistry, but would constitute a practical repeal of the Fourth Amendment. Such reasoning requires a retroactive evaluation of a nonexistent affidavit presented to an imaginary magistrate, all of which must then be reviewed at a subsequent hearing by employing mere speculation." (People v. Ruggles (1981) 125 Cal.App.3d 473, 488, vacated on other grounds in California v. Ruggles (1982) 459 U.S. 809.)

    The Attorney General urges that even if the motion was erroneously denied, the error was harmless. The prosecution's case without the car was: Robles was seen driving it briefly 10 days after it was stolen. An officer saw what appeared to be the Oldsmobile through a crack in Robles' garage. When detained, he blurted out "I didn't steal no fucking car . . . " and gave false information concerning his identity. While these facts might have been enough to satisfy the substantial evidence standard on appeal, they hardly inspire confidence that all reasonable jurors would find guilt beyond a reasonable doubt based on that evidence alone.

    Beyond these facts, the prosecution was able to show at trial the recovery of the stolen vehicle in Robles's garage with Sanchez's identification of it, the punched ignition, and Robles's palm print on the inside of one of the windows. That was a compelling case. Of course, our decision does not foreclose retrial. If the case is as strong as the Attorney General contends without the evidence from the garage, Robles will be convicted again, this time without tainted evidence.

    The judgment is reversed with directions to grant the motion to suppress.


            WALLIN, J.



CROSBY, J., concurring:

    I concur in the result, but disagree with the obvious non sequitur that "The police may rely on a search-and-seizure probation condition to validate a search even if they are unaware of it when they search." (Maj. opn., p. 4.) Not only is that factually offensive, it is legally as well. For as I read the implications of the Supreme Court's opinion in In re Tyrell J. (1994) 8 Cal.4th 68 such after the fact hocus pocus is defensible with respect to juveniles only because of the state's unique interest in looking out for their welfare, a consideration that does not apply in the adult criminal justice system.

        CROSBY, J.

Footnote: 1     No relation to defendant.
Footnote: 2     The record does not reveal why he wanted to do so.
Footnote: 3     The court said: "So I think probably if that was the only thing, the only issue, that the defendant may prevail. But I think that the search and seizure on his brother is sufficient here, it is objectively and not subjectively, and the vehicle is noted in that area, the probable cause leading them to that area. There is no way of knowing whether it is his brother that has the stolen car or he has the stolen car. [¶] So I think the search stands under the search and seizure that was forfeited, rights forfeited by the brother in the prior proceeding in conformity with [the probationary document received in evidence]. So the motion to suppress is denied."
Footnote: 4     Our concurring colleague is wrong to the extent he suggests In re Tyrell J. (1994) 8 Cal.4th 68 held that the police must have knowledge of the search condition if an adult probationer is involved. (Conc. opn. at pp. 3-4.) The Supreme Court made some distinctions between adult and juvenile probationers, but knowledge of the condition was not one of them. Indeed, the court cited Marcellus L. with approval. (In re Tyrell J., supra, 8 Cal.4th at pp. 84-85.)