29 Cal.App.5th 820
Cal. Ct. App.2018Background
- On Dec. 22, 2014, Antioch police detained John Neal for a psychiatric evaluation after reports he acted suicidal and told officers he had police/military weapons at home.
- Officers visited Neal’s home that evening; his wife Mimi admitted there were firearms and led officers to a walk‑in closet containing six guns; officers took the guns for safekeeping and gave a property receipt.
- After discovering Neal’s 2006 felony conviction, officers converted the guns to evidence; Neal later left a voicemail asserting the guns were his and asking how to get them back.
- Neal was charged with possession of a firearm by an ex‑felon; he was convicted by a jury and placed on three years’ probation.
- The trial court denied Neal’s pretrial suppression motion (finding Mimi voluntarily consented to officers’ entry and the seizure) but ordered Neal to pay probation supervision fees “as determined by Probation, not to exceed $75/month.”
- Neal appealed, challenging (1) the warrantless search/seizure as the fruit of unconstitutional police authority, and (2) imposition of the probation supervision fee without an ability‑to‑pay determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of warrantless search/seizure based on wife’s consent | Police: officer testimony shows Mimi voluntarily invited officers, pointed to closet, and repeatedly asked them to take the guns; no coercive assertion of authority | Neal: consent was not voluntary—wife was home at night with children, two uniformed officers, and acquiesced to a show of authority; compliance ≠ voluntary consent | Court affirmed denial of suppression: factual finding of voluntary consent supported by substantial evidence; police did not assert a legal right to search and no coercion shown |
| Imposition of probation supervision fee without ability‑to‑pay process | State: probation officer will determine ability to pay; court may defer to probation to make the determination | Neal: statutory scheme (Pen. Code § 1203.1b) requires probation officer determination and, absent a knowing waiver, right to a court hearing; here no ability‑to‑pay determination or advisals occurred | Court reversed as to fee: vacated the probation‑fee order and remanded for statutorily required ability‑to‑pay determination or a knowing waiver and, if necessary, a court hearing |
Key Cases Cited
- Florida v. Jimeno, 500 U.S. 248 (1991) (objective standard for scope of consent searches)
- People v. Munoz, 24 Cal.App.3d 900 (1972) (consent valid where occupants knowingly admitted officers and no coercion asserted)
- People v. Pacheco, 187 Cal.App.4th 1392 (2010) (remand required where statutory §1203.1b procedure for probation fee ability‑to‑pay was not followed)
- People v. McCullough, 56 Cal.4th 589 (2013) (court must determine ability to pay when statute conditions fee on that finding)
- People v. O’Connell, 107 Cal.App.4th 1062 (2003) (vacatur/remand where neither probation nor court made ability‑to‑pay finding or advised right to hearing)