Lead Opinion
Opinion
This case involves the constitutional limits of a vehicle search based on a passenger’s parole status. Here, an officer, aware that the front seat passenger was on parole, searched the backseat of defendant’s car and recovered drugs and drug paraphernalia from a chips bag and a pair of shoes. Defendant, the driver, sought to suppress that evidence. We conclude that the search was reasonable under the Fourth Amendment to the United States Constitution. We hold that the Constitution permits a search of those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity. Additionally, the officer may search personal property located in those areas if the officer reasonably believes that the parolee owns those items or has the ability to exert control over them.
I. FACTUAL AND PROCEDURAL BACKGROUND
Early in the evening of November 24, 2006, Deputy Sheriff Mihaela Mihai saw defendant’s car turn into a dead-end alley lined with the garages of a condominium complex. When defendant then made a U-tum, Mihai stopped alongside his car and asked whether he was lost. Defendant said no, that he
Defendant had three passengers: a man in the front seat, and a woman and her small child in the back. The male passenger said he was on parole. Mihai searched the car on that basis after removing the occupants. In the backseat area, she found a syringe cap in a woman’s purse,
Defendant waived a preliminary hearing on resulting charges, but moved to suppress the evidence.
After defendant’s suppression motion was denied, he pleaded guilty to four misdemeanor counts.
The Court of Appeal reversed, holding that the search could not be justified on the basis of the front seat passenger’s parole status. It articulated an extremely broad rule that defendant Douglas George Schmitz, as the driver, “clearly had a reasonable expectation of privacy in his glove box, his console, his door pockets, his own seat, the backseat—indeed every part of his car except the front passenger seat where the parolee was sitting. . . . Nothing Schmitz did could reasonably have been viewed as ceding authority over his
We reverse the judgment of the Court of Appeal and clarify the permissible scope of a vehicle search based on a passenger’s parole status.
Challenges to the admissibility of evidence obtained by a police search and seizure are reviewed under federal constitutional standards. (Cal. Const., art. I, § 24; People v. Lomax (2010)
Under California statutory law, every inmate eligible for release on parole “is subject to search or seizure by a . . . parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause.” (Pen. Code, § 3067, subd. (b)(3).) Upon release, the parolee is notified that “[y]ou and your residence and any property under your control may be searched without a warrant at any time by any agent of the Department of Corrections [and Rehabilitation] or any law enforcement officer.” (Cal. Code Regs., tit. 15, § 2511, subd. (b)4; see Cal. Code Regs., tit. 15, § 2356 [requiring the department staff to. notify the prisoner of the conditions of parole before release].) There is no dispute that the passenger was on parole and subject to the standard search clause. The Attorney General defends the search solely on that basis.
When considering constitutional challenges to warrantless and suspicion-less parole searches based on a search condition, courts weigh the privacy interests of the parolee against society’s interest in preventing and detecting recidivism. Both we and the United States Supreme Court have concluded that such searches are reasonable, so long as the parolee’s status is known to the officer and the search is not arbitrary, capricious, or harassing. (See Samson, supra, 547 U.S. at pp. 846, 850-856; People v. Sanders (2003)
Different considerations are present, however, when a parole search affects the privacy interests of third parties. In the context of a residential search, we have expressed no doubt that “ ‘those who reside with [a person subject to a search condition] enjoy measurably greater privacy expectations in the eyes of society’ ” than those enjoyed by the parolee. (Sanders, supra,
We have encountered similar questions in the context of a residential search. In Woods, supra,
In Robles, supra,
In Sanders, supra,
A. The Officer’s Search of the Backseat of the Car Was Reasonable
This court has not addressed the permissible scope of a vehicle search based on a passenger’s parole status. We begin with the premise, uncontested by either party, that Deputy Mihai engaged in a search by physically entering defendant’s car to look for contraband and property related to the parolee.
The Court of Appeal relied on the consent-based “common authority” standard employed in Woods to conclude that the permissible scope of the parole search was narrowly confined to the parolee’s person and the seat he occupied. It reasoned that only persons with “ ‘common or superior authority’ ” over an area can authorize a search, and that “that rule means the police may ‘only search those portions of the [property] they reasonably believe the probationer has complete or joint control over.’ ” It observed that “there was no evidence that Schmitz, merely by allowing a parolee to ride as a passenger in his car, ceded to that parolee any authority over the car at all, let alone the authority to permit inspections of the vehicle’s interior ‘in his own right.’ ” Accordingly, it concluded that “[a] mere passenger in a vehicle, who claims neither a possessory nor property interest therein, lacks the ‘common authority’ over the vehicle which would allow him either to consent or object to its search.”
The Court of Appeal’s reliance on Woods led it astray. We conclude the rationale employed in Woods, justifying a search based on advance consent by a cohabitant probationer “with common or superior authority over the area to be searched” (Woods, supra,
Homes and cars are afforded different levels of Fourth Amendment protection. “[T]he ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” (Payton v. New York (1980)
By contrast, “the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.” (South Dakota v. Opperman (1976)
The Court of Appeal also failed to consider that Woods, unlike this case, involved a probation search. Our previous cases have drawn a clear distinction between probation and parole with regard to consent. A probationer explicitly agrees to being placed on probation, often in exchange for an opportunity to avoid incarceration in state prison. Likewise, a probationer who is subject to a search clause has explicitly consented to that condition. (Woods, supra,
“The touchstone of the Fourth Amendment is reasonableness . . . .” (United States v. Knights (2001)
Whether a search is reasonable within the meaning of the Fourth Amendment depends on the “ ‘totality of the circumstances.’ ” (Samson, supra,
We reject at the outset the Court of Appeal’s suggestion that the interior of defendant’s car was not subject to any modicum of search based on the passenger’s status as a parolee subject to a search condition.
The Court of Appeal’s focus on defendant’s ignorance of his passenger’s parole status when admitting him to the car is misplaced. We have never suggested that a probation or parole search of a house would be unlawful unless a defendant knew his or her cohabitant was a probationer or a parolee. No good reason appears to create such a rule for vehicle searches. Because the primary purpose of the exclusionary rule is to deter unlawful police conduct, the operative question is whether the officer knew of the passenger’s parole status before conducting the search. (See Sanders, supra, 31 Cal.4th at pp. 324, 332-335; Robles, supra, 23 Cal.4th at pp. 799-800; see also id. at p. 800 [“a knowledge-first requirement is appropriate to deter future police misconduct and to effectuate the Fourth Amendment’s guarantee against unreasonable searches and seizures”].)
Turning to the scope of the search, our state statute specifies only that the parolee “is subject to search or seizure by a . . . parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause.” (Pen. Code, § 3067, subd. (b)(3).) While that statute provides authority for the search, it does not purport to define its scope in any given case. Rather, the limits of a parole search flow from the nexus between the parolee and the area or items searched. How we define that nexus depends on the totality of the circumstances, and takes into account such factors as the nature of that area or item, how close and accessible the area or item is to the parolee, the privacy interests at stake, and the government’s interest in conducting the search.
As noted, the state’s interеst in supervising parolees is substantial. {Samson, supra,
On the other side of the balance, as noted, a driver has a reduced expectation of privacy with regard to an automobile. (South Dakota v. Opperman, supra,
The Court of Appeal placed the passenger parolee in a legal bubble and concluded that defendant retained a reasonable expectation of privacy in “every part of his car except the front passenger seat where the parolee was sitting.” In so holding, it artificially segmented the car’s interior and improperly limited the permissible scope of a search strictly to the parolee’s person and the seat he or she occupies. No authority supports such a circumscribed approach.
To the contrary, the law does not presume that a front seat passenger has nothing to do with items located elsewhere in the passenger compartment of a car. In Maryland v. Pringle (2003)
Moreover, the Court of Appeal’s rigid view does not reflect modem social conventions, which provide a framework for assessing whether an
In addition, a standard five-passenger automobile generally affords ready access to areas in both the front and the back seats. (See New York v. Belton (1981)
Balancing these factors, we reject the Court of Appeal’s holding. Instead we hold that a vehicle search based on a passenger’s parole status may extend beyond the parolee’s person and the seat he or she occupies. Such a search is not without limits, however. The scope of the search is confined to those areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity.
Applying this rule, we conclude that the officer’s search of the backseat of defendant’s car was reasonable. Defendant was driving an older model Oldsmobile or Buick. There was no evidence that the car was used for a commercial purpose or that it had any type of barrier (as might be found in a taxicab) dividing the front seats from the backseat. Nor would commonly held social conventions suggest to the officer that the passenger’s movement was restricted only to the seat he occupied. (Cf. Georgia v. Randolph, supra, 547 U.S. at pp. 111-112.) Considering the layout of a standard five-passenger car, it was objectively reasonable for the officer to expect that this parolee
Defendant would state the rule more restrictively. He contends that a search of an automobile based on a passenger’s parole status is limited to the areas immediately accessible to the parolee. Defendant seems to invoke a limiting principle applicable to a search incident to an arrest. Such a search is limited to the area within the arrestee’s “ ‘immediate control,’ ” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” (Chimel v. California (1969)
But that test undermines, rather than assists, defendant’s position. In upholding a search of an automobile incident to arrest, the Supreme Court in Belton, supra,
This search was not incident to arrest, and we do not adopt a bright-line rule here. Nonetheless, Belton’s analysis is instructive. The narrow and relatively nonprivate nature of the passenger compartment, and law enforcement’s need for a workable rule to monitor parolees, justify our rejection of a rule that would require the officer to assess in each case the parolee’s immediate grasping distance and limit the search to that area.
Justice Liu urges that our holding “defines the scope of a valid search in terms that exceed the scope of the parole search condition.” (Conc. & dis. opn. of Liu, J., post, at p. 938.) Our colleague would hold that a properly conducted parole search is limited to “the parolee’s person and to ‘any property under [the parolee’s] control.’ ” (Ibid., quoting Cal. Code Regs., tit. 15, § 2511, subd. (b)4.)
We respectfully disagree with the limits Justice Liu seeks to draw from the relevant authority. As noted, our parole statute provides that every parolee is subject to warrantless and suspicionless parole searches. (Pen. Code, § 3067, subd. (b)(3).) It does not purport to define the limits of a properly conducted parole search. Nor is it correct to say that the scope of the officer’s search is strictly tied to the literal wording of the notification given to the parolee upon release. (Conc. & dis. opn. of Liu, J., post, at p. 938, citing Cal. Code Regs., tit. 15, § 2511, subd. (b)4 [parolee must be notified that “[y]ou and your residence and any property under your control” are subject to warrantless search].) While we have so held for a probation search clause based on consent (Woods, supra, 21 Cal.4th at pp. 674-675, 682; accord, Walter v. United States (1980)
Justice Liu’s “control” test proves problematic when applied to a search of the interior of an automobile. He posits that “Officer Mihai had lawful authority to search the parolee’s person and the area immediately adjacent to the parolee. Absent unusual circumstances, a further search of the passenger compartment would have required Officer Mihai to make a reasonable determination of what areas or property in the car were under the parolee’s control.” (Cone. & dis. opn. of Liu, J., post, at p. 945.) It wоuld seem that a passenger’s act of tossing contraband behind him into the backseat would amount to an exercise of “control” over that area. If so, would our colleague require the officer to witness such conduct? To so require would demand an articulation of cause, a requirement expressly at odds with the search condition.
Justice Liu urges that his approach is consistent with the holdings in Maryland v. Pringle, supra,
In sum, because “cause” is not required, an officer does not have to articulate facts demonstrating that the parolee actually placed personal items
B. The Officer’s Search of the Chips Bag and Shoes Was Reasonable
We now turn to the officer’s search of the chips bag and the pair of shoes located in the backseat. (See ante, at p. 914 & fn. 1.) Because there is no testimony in the record that the contraband found inside these items was in plain view, we treat the officer’s conduct as a search. (See United States v. Ross (1982)
The United States Supreme Court has recognized that, like the automobile itself, property transported inside the automobile is subject to a reduced expectation of privacy. (Houghton, supra,
In Baker, an officer stopped a car for speeding. The male driver told the officer he was on parole. Baker, the only passenger, had a purse at her feet. A search of the purse revealed methamphetamine. The Court of Appeal held the search unreasonable. It observed that “a purse has been recognized as an inherently private repository for personal items” (Baker, supra,
Turning first to the chips bag, it is plainly distinguishable from the woman’s purse at issue in Baker. A chips bag is not an “inherently private repository for personal items” (Baker, supra,
The shoes were located in the backseat. Regardless of actual ownership, it was objectively reasonable for the officer to believe that the parolee was able to reach back to hide contraband inside the shoes. In this respect, an open shoe differs markedly from a purse, which is likely to be more closely monitored by its owner or otherwise secured.
Additionally, any further evidence regarding the style of the shoes would have only undercut defendant’s position. Had such evidence shown that the shoes were a man’s style, it would have strengthened the People’s position that they were properly searched as the property of the male parolee. In this regard, the shoes’ location in the backseat was equally accessible to the defendant driver and his male passenger, both seated in the front. Without an express claim of ownership, which was not asserted here, a pair of men’s shoes is not likely to have distinct characteristics identifying it as the property of the male driver, rather than the male passenger.
Conversely, had further evidence shown that the shoes were a woman’s style or diminutive in size, it would be reasonable to conclude, as defendant has argued, that they belonged to the female passenger (or her small child) seated in the back. But that fact would have necessarily undermined a claim that the officer’s search infringed on the driver’s reasonable expectation of privacy. As the high court has explained, to claim Fourth Amendment protection, defendant must demonstrate that he personally has an expectation of privacy in the property searched. (Minnesota v. Carter (1998)
III. DISPOSITION
The judgment of the Court of Appeal is reversed.
Cantil-Sakauye, C. J., Baxter, J., and Chin, J., concurred.
Notes
The Attorney General does not attempt to justify the search of the purse, stating that no evidence derived therefrom was used to sustain charges against defendant. As the Attorney General notes, a syringe cap is not contraband, and defendant’s trial motion did not identify the syringe cap in his list of evidence he sought to suppress.
Penal Code section 1538.5.
Driving under the influence of a drug or alcohol (Veh. Code, § 23152, subd. (a)), with a prior; being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)); unauthorized possession of a syringe (Bus. & Prof. Code, former § 4140, repealed by Stats. 2011, ch. 738, § 2); and child endangerment (Pen. Code, § 273a, subd. (b)). A charge of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) was dismissed prior to the suppression hearing.
In the Court of Appeal, defendant also contended the evidence should have been suppressed as the product of an illegal detention by the officer. The court rejected this contention, and defendant does not renew it here.
Writing separately, Justices Werdegar and Liu urge that defendant failed to challenge the permissible scope of the parole search in the trial court, and thus did not create an adequate record to litigate that issue on appeal. (Cone. & dis. opn. of Werdegar, J., post, at pp. 934-935; cone. & dis. opn. of Liu, J., post, at p. 935.) Our colleagues would reverse the Court of Appeal on the ground that defendant forfeited the claim now before us. They urge that it is unnecessary to reach the merits of the Fourth Amendment question on which we granted review. (Cone. & dis. opn. of Werdegar, J., post, at pp. 934-935 & fn. 2; cone. & dis. opn. of Liu, 1, post, at pp. 935, 947.) We respectfully find this argument unpersuasive.
It is the People’s burden to justify a warrantless search. (Vale v. Louisiana (1970)
In Williams we held that the defendant’s failure to orally argue a point he had raised in his written pleading did not forfeit the issue or otherwise excuse the gap in the prosecution’s evidence on the facts of that case. (Williams, supra, 20 Cal.4th at pp. 137-138.) Whether this defendant forfeited his challenge to the parole search is not as clear cut as our colleagues suggest, particularly absent a verbatim transcript of a substantial portion of the suppression hearing. What is clear is that the Attorney General nowhere raised the forfeiture issue in the Court of Appeal, in her petition for review here, or in her briefing before this court. The Court of Appeal addressed the legality of the parole search after full briefing by the parties. The Attorney General’s petition for review asked: “When conducting a search authorized by an automobile passenger’s parole condition, can the police search those areas of the passenger compartment that reasonably appear subject to the parolee’s access?” All seven justices voted to grant review on this significant and recurring legal question. Both parties have briefed the merits of the issue in this court and, as explained below, we find the record adequate to resolve it. Accordingly we exercise our discretion to do so. (See People v. Brendlin (2008)
As will be discussed below (post, at pp. 920-921 & fn. 9), we have never relied on a consent rationale to uphold a parole search condition.
This court further held that an officer’s reliance on the probation status of one of the residents as a pretext to secure evidence against the other residents did not render the search of the common area unconstitutional. (Woods, supra, 21 Cal.4th at pp. 671-672.)
Mihai did not testify that she saw incriminating evidence in plain view from where she stood outside of defendant’s vehicle. (See Horton v. California (1990)
There may be circumstances that could demonstrate a parolee passenger is exercising common authority over a vehicle through joint ownership, lease, or physical possession, for example. Such facts are not present here. We offer no opinion on the permissible scope of such a search.
In 1996, the Legislature enacted Penal Code section 3067. At the time of defendant’s release on parole, the statute provided that, for crimes committed on or after January 1, 1997, the inmate had to agree in writing to a mandatory search clause as a condition of parole. (Pen. Code, § 3067, subd. (a); id., subd. (c); both added by Stats. 1996, ch. 868, § 2, pp. 4656-4657.) If the inmate did not agree, he or she was required to remain imprisoned and serve the remainder of the sentence without worktime credits. (See Pen. Code, § 3067, former subd. (b); see also Pen. Code, former § 3060.5 [providing that “the parole authority shall revoke the parole of any prisoner who refuses to sign a parole agreement setting forth the general and any special conditions applicable to the parole . . . and shall order the prisoner returned to prison”].) The statutes were amended in Junе 2012 to omit the requirement that the parolee expressly agree in writing to the search clause, and to omit the parolee’s lack of agreement as a basis for denying or revoking parole. (Stats. 2012, ch. 43, § 49.) Before this change, one appellate court had indicated that a parolee’s acceptance of a search condition under Penal Code section 3067, former subdivision (a) constituted consent. (See People v. Middleton (2005)
See Houghton, supra, 526 U.S. at pages 300-307 (officer with probable cause to search a car may conduct a warrantless search of all belongings of driver and passengers that are capable of concealing the object of the search); New York v. Class, supra, 475 U.S. at pages 116-118 (officer may conduct a warrantless search of vehicle to remove items on dashboard obscuring vehicle identification number); South Dakota v. Opperman, supra, 428 U.S. at pages 367-373 (officer may conduct a warrantless inventory search of impounded vehicle); In re Arturo D. (2002)
See Samson, supra,
Notably, defendant does not adopt this position in his briefing before us.
Because California law requires that all parolees be subject to warrantless and suspicion-less searches as a condition of their release, an officer’s knowledge of a parolee’s status is equivalent to knowledge of the applicable search condition. (People v. Middleton, supra, 131 Cal.App.4th at pp. 739-740.)
The truncated record here does not reflect an expression by Deputy Mihai of concern for her safety once her backup officer arrived and the occupants were removed frоm the car. We do note, however, the Supreme Court’s observation that traffic stops are “especially fraught with danger to police officers.” (Michigan v. Long (1983)
Justice Liu postulates that a different etiquette may apply to a driver who picks up a rider in a casual carpool or volunteers to transport a group of parent chaperones on an elementary school field trip. (Conc. & dis. opn. of Liu, J., post, at pp. 936, 938-939.) Of course, those circumstances are not at play here. This officer encountered a driver with abscesses on his arms suggesting drug use, and a passenger on parole. Testimony at the suppression hearing established that defendant and the parolee had known each other for approximately three years at the time of the search. Accordingly, we have no occasion to consider what modem social conventions would govern, for example, a driver’s decision to allow a stranger into his or her private vehicle for the benefit of gaining access to a carpool lane. (See conc. & dis. opn. of Liu, J., post, at p. 938.) Further, while it is true that this officer was not privy to the precise relationship between the parties, the Fourth Amendment permits the officer to “rel[y] on what [is] usual and place[s] no burden on the [officer] to eliminate the possibility of atypical arrangements, in the absence of reason to doubt that the regular scheme was in place.” (Georgia v. Randolph, supra,
The facts here do not involve a search of closed compartments of the car like the glove box, center console, or trunk, and we express no opinion on whether a search of such closed-off areas could be based solely on a passenger’s parole status. The reasonableness of such a search must necessarily take into account all the attendant circumstances, including the driver’s legitimate expectation of privacy in those closed compartments, the passenger’s proximity to them, and whether they were locked or otherwise secured.
In Reyes, we affirmed that a parole search may be reasonable even in the absence of particularized suspicion so long as the search is not arbitrary, capricious, or harassing. (Reyes, supra, 19 Cal.4th at pp. 753-754.) As we noted there, “ ‘although “some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure[,] ... the Fourth Amendment imposes no irreducible requirement of such suspicion.” ’ ” (Id. at p. 751, quoting New Jersey v. T. L. O. (1985)
In addition to the rule we adopt here, an officer is authorized to search a vehicle and its occupants based on legitimate and articulated officer safety concerns, under the guidelines set forth in previous cases. (See, e.g., Arizona v. Johnson (2009)
In Gant, supra,
There is no similar reason to limit a parole search to the area within the parolee’s reach at the moment of the search. For the reasons previously explained (see ante, at pp. 917, 923-924), an officer has a compelling interest in detecting criminal activity by a parolee regardless of whether the parolee has been safely removed from the car and secured.
We discuss in further detail below the limits on a parole search of items of property located in an automobile. (Post, at pp. 930-931.)
We discuss People v. Baker (2008)
We do not hold, categorically or otherwise, that an officer may always search “the backseat, the area behind the backseat headrests, the backseat foot areas, any door pockets in the front or back on both sides of the car, and the floor areas under both front seats . . . .” (Conc. & dis. opn. of Liu, J., post, at p. 936.) Nor does the rule we announce today, taken to its logical conclusion, necessarily authorize a search of “closed-off areas” like the glove box or center console. (Id. at p. 942.) Justice Liu questions why such areas would be exempt. (Ibid.) The simple answer is that that is the way the common law evolves, incrementally and on a case-by-case basis. A more nuanced answer is that, applying a totality of the circumstances approach, the facts in another case may show that it would be unreasonable to expect that a parolee had access to those areas.
We use the concept of “reasonable belief’ in the same manner as the high court. The determination “must ‘be judged against an objective standard: would the facts available to the officer at the moment. . . “warrant a man of reasonable caution in the [requisite] belief’ ’....”
Consistent with our analysis above, we do not impose any further requirement that the officer articulate specific facts indicating that the parolee actually exercised control over the item of property in this manner. (See ante, at p. 926 & fn. 17.)
There was no evidence of a familial relationship between defendant and the female passenger or her child that would allow him to claim an ownership interest in their possessions.
Concurrence Opinion
I concur in the judgment reversing the Court of Appeal’s decision, but I respectfully dissent from the reasons set forth by the majority. I would find that defendant Douglas George Schmitz has failed to preserve for appeal the question whether the parole search was valid.
At issue in this case is whether a deputy sheriff’s warrantless search of defendant’s car violated his constitutional right to be free of unreasonable searches under the Fourth Amendment to the United States Constitution. “[T]he most basic constitutional mle in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ ‘The burden is on those seeking the exemption to show the need for it.’ ” (Coolidge v. New Hampshire (1971)
The procedure for raising a challenge to a warrantless search is well established: “[W]hen defendants move to suppress evidence, they must set forth the factual and legal bases for the motion, but they satisfy that obligation, at least in the first instance, by making a prima facie showing that the police acted without a warrant. The prosecution then has the burden of proving some justification for the warrantless searсh or seizure, after which, defendants can respond by pointing out any inadequacies in that justification.” (People v. Williams (1999)
Because defendant failed in the trial court to challenge the applicability of the passenger’s parole search condition or the permissible scope of the warrantless search, he must be held to have forfeited the issue. For this reason alone, I concur in the majority’s decision to reverse the judgment of the Court of Appeal, which reversed the trial court’s denial of the suppression motion.
Defendant’s apparent forfeiture, which became evidеnt only after we had granted review, would have weighed heavily against a grant regardless of any party’s preference for a decision interpreting the Fourth Amendment. “As a prudential matter, we routinely decline to address constitutional questions when it is unnecessary to reach them.” (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006)
Kennard, J., concurred.
The suppression hearing began on May 21, 2008, and was not recorded or transcribed. A settled statement of that day’s proceedings indicates Deputy Mihai testified she “conducted a search of the car based on the passenger’s parole status.” The settled statement does not reflect the legal arguments, if any, made by counsel, so there is no record of whether the parties discussed the scope of the search permitted by the passenger’s parole search condition. “To preserve such a point for review on appeal, a defendant must of course provide an adequate record.” (People v. Gordon (1990)
The hearing continued on June 23, 2008; this time a reporter was present and a transcript was prepared. Following the taking of evidence, the only issue the parties addressed in their arguments to the court was whether defendant had been detained and, if so, whether Deputy Mihai had sufficient cause to detain. Neither side mentioned the'scope of the search permitted by the passenger’s parole search condition.
“Principles of judicial restraint counsel that we not reach out to decide gratuitously constitutional questions of first impression. Sound jurisprudence dictates that such issues be decided only in the context of cases and controversies actually raising the issue.” (People v. Bennett (1998)
Concurrence Opinion
As Justice Werdegar observes, “defendant failed in the trial court to challenge the applicability of the passenger’s parole search condition or the permissible scope of the warrant-less search . . . .” (Cone. & dis. opn. of Werdegar, J., ante, at p. 934.) As a result, the record in this case is very limited. We know that the police officer conducted a search of the car based on the front seat passenger’s parole status. But we do not know what the officer asked, learned, or believed in the course of the search, even though such facts bear critically on whether the officer reasonably believed the areas and items searched were under the parolee’s control. Today’s opinion effectively deems such facts irrelevant to the lawfulness of the search and, in so doing, adopts a novel Fourth Amendment rule that may be broader than necessary to resolve the legality of what actually happened in this case. Because judicial restraint counsels against deciding constitutional questions when it is unnecessary to do so (see Santa Clara County Local Transportation Authority v. Guardino (1995)
The сourt holds that a police officer who discovers that the passenger in the front seat of a car is on parole may search “those areas of the passenger
This holding is unduly broad. After today, a commuter who picks up a rider in a casual carpool on the way to work and is stopped for speeding may be subject to a search of all open areas in the car’s passenger compartment if the police officer learns that the rider is on parole. The same goes for a driver who volunteers to drive a group of parent chaperones on an elementary school field trip. And the same goes for a person who agrees to pick up a friend of a friend on the way to the movies. I am not sure what societal baseline the court deems legally relevant when it suggests these arrangements are “ ‘atypical’ ” or not “ ‘usual.’ ” (Maj. opn., ante, at p. 925, fn. 15.) In any event, it seems an unduly cramped reading of the Fourth Amendment to say that the оnly sure way a driver in these everyday situations can protect himself or herself from the possibility of a warrantless, suspicionless search of all open areas of the passenger compartment is to ask, before letting a rider into the car: “By the way, are you on parole?” Yet that is apparently now the rule in California.
Further, the court holds that if an officer encounters personal property in the course of searching the car’s passenger compartment, the property also may be searched “if the officer reasonably believes that the parolee owns those items or has the ability to exert control over them.” (Maj. opn., ante, at p. 913.) This too is exceedingly broad. To say that an officer may search any property he or she reasonably believes to be under the parolee’s control is to adhere faithfully to the parole search condition. (See Cal. Code Regs., tit. 15, § 2511, subd. (b)4 [parolee upon release shall be notified that “[y]ou and your residence and any property under your control may be searched without a warrant at any time . . . .”].) To say that an officer may search any property that he or she reasonably believes to be within the parolee’s “ability to exert control” is to authorize the officer to search virtually any property found in the passenger compartment.
I would not hold, as the Court of Appeal seemed to imply, that a lawful parole search may never go beyond the front passenger seat when a police
I.
It is well established that California parolees “have severely diminished expectations of privacy by virtue of their status alone.” (Samson, supra,
Although parolees have “substantially diminished expectation^] of privacy” {Samson, supra,
The search in the present case implicates the privacy interests of a driver whose car carried a passenger who was on parole. As the court notes, the legality of a warrantless parole search is not based on consent. (Maj. opn., ante, at p. 921.) In Cahfornia, the parole search condition is specified by regulation. It provides that a parole search may extend to the parolee’s person and to “any property under [the parolee’s] control.” (Cal. Code Regs., tit. 15, §2511, subd. (b)4.) In upholding the parole search at issue here, today’s opinion defines the scope of a valid search in terms that exceed the scope of the parole search condition. Instead of focusing on what property is under the parolee’s control, the court expands the scope of a parole search, first, by authorizing a police officer to search any “areas of the passenger compartment where the officer reasonably expects that the parolee could have stowed personal belongings or discarded items when aware of police activity” and, second, by authorizing the officer to search items of “personal prоperty located in those areas if the officer reasonably believes that the parolee . . . has the ability to exert control over them.” (Maj. opn., ante, at p. 913.) The upshot is that an officer is permitted to search all open areas of the car’s passenger compartment and virtually any property located in those areas, simply upon ascertaining that the front seat passenger is a parolee.
The court says its holding reflects “commonly held social conventions” (maj. opn., ante, at p. 926) concerning the places in a car where “[a] front seat passenger, even if only a casual acquaintance of the driver, will likely feel free to stow personal items . . . .” {Id. at p. 925.) I suspect many law-abiding citizens who drive or ride in cars will be surprised to learn that the areas under the “control” of a front seat passenger invariably extend to anywhere the passenger “could have stowed personal belongings or discarded items when aware of police activity” {id. at p. 913), including the backseat, the area behind the backseat headrests, the backseat foot areas, any door pockets in the front or back on both sides of the car, and the floor areas under both front seats. For example, the etiquette of a causal carpool for commuters may call for riders in the front passenger seat to place belongings on the floor at their feet or in their laps, but not in the backseat or anywhere else unless permission is asked and given. Five coworkers driving to lunch in a five-passenger car may understand that they must keep their possessions next to
Because social conventions vary depending on the situation, the issue of whether a car’s backseat or items located there are “property under [the parolee’s] control” (Cal. Code Regs., tit. 15, § 2511, subd. (b)4) must be decided on the basis of the totality of the circumstances in each case. That is a straightforward application of settled law. As the high court stated in Ohio v. Robinette (1996)
Although today’s opinion purports to examine the totality of the circumstances (maj. opn., ante, at pp. 921-922), it is clear that the court does so at a wholesale level rather than on the facts of this particular case. The court notes that Officer Mihai “observed that [defendant’s] arms were covered with abscesses, which she associated with drug use.” (Maj. opn., ante, at p. 914; see id. at p. 925, fn. 15.) But the court does not explain how this fact is relevant to the scope of a lawful parole search where the front seat passenger, not defendant, was the parolee. The court also notes that “[testimony at the suppression hearing established that defendant and the parolee had known each other for apрroximately three years at the time of the search.” (Id. at p. 925, fn. 15.) But nothing in the record indicates that this fact was known to Officer Mihai at the time of the search. Indeed, the record before us contains no facts indicating what areas or property in the car Officer Mihai reasonably believed to be under the parolee’s control.
Moreover, the court authorizes a parole search not just of “property under [the parolee’s] control” (Cal. Code Regs., tit. 15, § 2511, subd. (b)4), but of property within the parolee’s “ability to exert control” (maj. opn., ante, at pp. 913, 930). This is a subtle but important difference that significantly expands the permissible scope of a parole search. It may be true, as a matter of sheer physicality, that a parolee has the “ability to exert control” over any unlocked container within the passenger compartment. But it is an odd definition of “control” to say that any item of property in which a parolee might potentially discard or conceal contraband is property under the parolee’s “control.” Apart from a single case that glancingly constmed property under a parolee’s control to encompass portions of a house “to which [the parolee] had access” (People v. LaJocies (1981)
The available authority interprets “control” more naturally and sensibly to mean not mere physical access but rather ownership, possession, or authority over the property searched. For example, in People v. Baker (2008)
In People v. Veronica (1980)
In People v. Montoya (1981)
The cases above indicate that “search conditions should be literally construed in order to protect the rights of both probationers/parolees and nonprobationers/nonparolees who associate with the individual subject to the
Because this rule cannot be correct when followed to its logical conclusion, the court drops a footnote that purports to leave undecided whether a search of “closed-off areas” such as “the glove box, center console, or trunk” can “be based solely on a passenger’s parole status.” (Maj. opn., ante, at p. 926, fn. 16.) But why should such closed-off areas be exempt (at least for now) from the rule announced by the court today? After all, it seems entirely plausible that a front seat passenger who seeks to hide contraband from an approaching officer would put it in the glove box or center console, both of which are areas within the parolee’s “ability to exert control” and areas where the parolee “could have stowed personal belongings or discarded items when aware of police activity.” (Id. at p. 913; see, e.g., People v. Chavers (1983)
The court declines to follow its own reasoning to this obvious conclusion on the ground that “[t]he reasonableness of such a search must necessarily take into account all the attendant circumstances, including the driver’s legitimate expectation of privacy in those closed compartments, the passenger’s proximity to them, and whether they were locked or otherwise secured.” (Maj. opn., ante, at p. 926, fn. 16.) That is exactly right. But why shouldn’t the reasonableness of searching the backseat or other parts of a car’s passenger compartment likewise turn on such contextual factors? There is no reason , to evaluate the reasonableness of searches of closed compartments through an analysis that differs from the analysis used to evaluate searches of other parts of a car. The same analysis applies: “we ‘examin[e] the totality of the circumstances’ to determine whether a search is reasonable within the meaning of the Fourth Amendment.” (Samson, supra,
In sum, because the driver and other passengers in a car retain a legitimate if diminished privacy interest, it is important to properly delimit the scope of a lawful parole search when the front seat passenger is a parolee. The court cites no authority for construing the term “control” in the parole search condition (Cal. Code Regs., tit. 15, § 2511, subd. (b)4) to mean the mere “ability to exert control.” By contrast, there is ample precedent suggesting that “property under [the parolee’s] control” (ibid.) is most sensibly read to mean property over which the parolee appears to have authority, possession, or ownership from the perspective of a reasonable police officer. This latter reading, applied to the circumstances of each case, is what distinguishes the proper scope of a parole search from an unlawful intrusion on someone else’s privacy.
II.
The court cites Maryland v. Pringle (2003)
In Pringle, a police officer stopped a car for speeding and obtained the driver’s cоnsent to search the car. The officer found a roll of cash amounting to $763 in the glove compartment and five plastic baggies of cocaine behind the backseat armrest. The officer asked the three occupants of the car about the ownership of the drugs and money. When none of the car’s occupants claimed ownership, the officer arrested all three. Pringle, who was the front seat passenger, argued that the officer lacked probable cause to arrest him. In upholding the arrest, the high court noted that the cocaine behind the backseat armrest was “accessible to all three men.” (Pringle, supra,
In Vermouth, the police stopped a vehicle at 3:30 a.m. for having a defective rear light. During the stop, the police questioned the two male occupants of the car and obtained consent to search the car and trunk. The search turned up, among other things, a five-inch pocket knife sticking out between the instrument panel and tape-playing machine, a billy club resting against the driver’s door, and a pair of wire strippers and a small paring knife from the backseat area. (Vermouth, supra, 20 Cal.App.3d at pp. 750-751.) Inside the trunk, the police found “an electronic unit or part of a stereo, a small speaker, and a tool which at one end had a tirе lug wrench and at the other a prying edge. The prying section had fresh, long scrape marks on it.” (Id. at p. 751.) The police arrested both men for burglary and unlawful possession of a billy club. Although the driver had claimed ownership of the billy club during the stop, the Court of Appeal held that the police had probable cause to also arrest the passenger for possession of the billy club because the facts gave rise to an inference that “there was an alliance
Pringle and Vermouth thus follow the settled principle that the reasonableness of police conduct under the Fourth Amendment must be determined based on the facts of each case. We should follow the same approach. As those cases demonstrate, a police officer in the ordinary conduct of a lawful automobile stop has many ways to determine what areas or items of property in a car are within a passenger’s control. Requiring each case to be decided on its own facts would not place an undue burden on law enforcement.
In the present case, Officer Mihai had lawful authority to search the parolee’s person and the area immediately adjacent to the parolee. Absent unusual circumstances, a further search of the passenger compartment would have required Officer Mihai to make a reasonable determination of what areas or property in the car were under the parolee’s control. Officer Mihai could have done this by asking a few simple questions of the driver, the parolee, or the other passengers. For example, “does that chips bag belong to any of you?” If the parolee had said yes, then it would have been subject to search. If no one had claimed the chips bag—a scenario with some likelihood, since the chips bag contained contraband—then Officer Mihai could have lawfully searched it because she would have had a good faith belief that the search would invade no one’s privacy. Upon discovering the contraband, she would have been justified in arresting the occupants of the car (see Pringle, supra,
In sum, there are many ways that Officer Mihai could have developed a reasonable belief that the chips bag was under the parolee’s control and thus within the scope of a parole search. Contrary to what the court suggests (maj. opn., ante, at p. 929), my approach would not require Officer Mihai to have witnessed the front seat passenger tossing contraband into the backseat area. It requires only that an officer have a reasonable belief that the area or item
In adopting a novel categorical rule instead of the case-by-case approach dictated by precedent, the court appears motivated by “law enforcement’s need for a workable rule to monitor parolees.” (Maj. opn., ante, at p. 927.) But the court places artificial limits on its own theory. For example, the court limits its ruling to a noncommercial, standard five-passenger car, apparently leaving open the permissible scope of a parole search involving sport utility vehicles or passenger vans, even though in those vehicles no less than in a five-passenger car, “[t]he driver is not necessarily in a position to supervise his passengers at every moment, nor is he in a position to control their every move once they are in the car” and “an occupant of an automobile may hide contraband without the other occupants’ knowledge or permission.” (Id. at p. 925.) Moreover, as noted, the court declines to apply its ruling to “closed compartments” (id. at p. 926, fn. 16), even though such compartments are places where a parolee may readily stow or discard evidence or contraband.
Further, if there is any logic to the court’s exception for closed compartments like the glove box or center console, it would seem also to exempt closed containers found in the car. But whether a container is open or closed can itself be problematic. In the present case, the limited record states only that two syringes were found in “a bag of chips” in the backseat of the car. It is not clear whether this bag of chips should be treated as an open or closed container. The record does not reveal whether the bag was wide open, partially open, flattened or clipped at the top, or otherwise sealed. If “it was objectively reasonable for the officer to believe that the parolee was able to reach back and conceal contraband inside the chips bag” (maj. opn., ante, at p. 931), then "what about a shoebox whose cover is partially off? Or a backpack whose zipper is partially open?
The stock response is to say that these concerns are not presentеd on the facts of this case and that we can decide such issues when they arise. (Maj. opn., ante, at p. 926, fn. 16, p. 930, fn. 22.) Of course, there is nothing wrong with that response insofar as precedent dictates that reasonableness under the Fourth Amendment requires case-by-case analysis. But if that is the response, then it is all the more inexplicable why the court arbitrarily cordons off some cases, but apparently not others, from the usual fact-specific inquiry.
Finally, it cannot be said that today’s opinion has the virtue of bringing certainty to situations where there previously was none. Before today, there was no uncertainty for many law-abiding citizens who would, for any number of innocuous or even virtuous reasons, occasionally or regularly give a ride
After today, we must all be more wary of the company we keep when we drive or ride in a car, lest we surrender our legitimate expectations of privacy. Although Fourth Amendment doctrine is built on cases involving guilty people, it is important to remember that “the ‘reasonable person’ test presupposes an innocent person.” (Florida v. Bostick (1991)
For the reasons above, I join the court in reversing the judgment of the Court of Appeal but respectfully disagree with the erosion of Fourth Amendment protections worked by today’s opinion.