P. v. Hester

Filed 11/7/01
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE
Plaintiff and Respondent
v.
DONTEE TYREE HESTER,
Defendant and Appellant.
F034897
(Super. Ct. No. 07856)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice,
Judge.
Jo Anne D. Roake, under appointment by the Court of Appeal, for Plaintiff and
Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney
General, Robert R. Anderson, Assistant Attorney General, Lloyd G. Carter and Michelle
L. West, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

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Dontee Tyree Hester (Hester) appeals his conviction for possessing a gun which
derived from his plea after the trial court denied his motion to suppress. He argues the
trial court erred in denying the motion to suppress and we agree.
DISCUSSION
Leon Anderson (Anderson), Michael Anthony Hanks (Hanks) and Hester
(collectively defendants) were in a Chevrolet stopped by Bakersfield Police Officers
Gary Carruesco and Martin Heredia in the early morning hours of August 7, 1999. A gun
was found in the car and all of the occupants were arrested and charged with conspiracy
to possess a handgun by gang members.
The defendants moved to suppress the gun and to dismiss the indictment arguing
that Carruesco and Heredia did not have probable cause to stop the vehicle and there was
no evidence of a conspiracy. The trial court denied both motions. Hester and Anderson
then pled guilty.
I. Hester’s Right to Contest the Stop
The rights provided by the Fourth Amendment are personal, and the proponent of
those rights must prove that the challenged governmental action infringed on his or her
rights. (United States v. Kimball (1st Cir. 1994) 25 F.3d 1, 5.) The People argue Hester
does not have a right under the Fourth Amendment to contest the stop of the vehicle
because he did not have a legitimate expectation of privacy in the vehicle that was
protected by the Fourth Amendment. The People rely on Rakas v. Illinois (1978) 439
U.S. 128, People v. Jackson (1992) 7 Cal.App.4th 1367, and United States v. Carter (6th
Cir. 1994) 14 F.3d 1150 which hold that a passenger does not have a Fourth Amendment
right to privacy in the passenger compartment of a vehicle when the passenger disclaims
any interest in the items seized.
The People’s reliance on the cited cases is misplaced because they fail to
recognize the distinction between a stop of a vehicle and a search of a vehicle. (United
States v. McKneely (10th Cir. 1993) 6 F.3d 1447, 1450.) The question is not whether the

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search of the Chevrolet was supported by probable cause. The question is was there a
reasonable suspicion that a crime had been committed to support the initial stop of the
Chevrolet? Accordingly, the issue is whether a passenger has the right to contest the
initial stop of the vehicle.
The People ignore those cases that have addressed this issue. In People v. Grant
(1990) 217 Cal.App.3d 1451, 1458 this court held that a passenger may challenge an
unlawful stop of a vehicle because the stop intrudes on his personal liberty and freedom
of travel. In People v. Bell (1996) 43 Cal.App.4th 754 the defendant argued that the
investigating officer unlawfully extended the traffic stop of the vehicle in which he was
riding by questioning the driver on issues unrelated to the traffic stop. The court noted
that the majority of both state and federal opinions concluded that the passenger was
detained and could challenge the stop as unlawful. (Id. at pp. 760-765.) The appellate
court concluded that the defendant was detained as a result of the traffic stop and that if
the driver was unlawfully detained, so was the defendant. (Ibid.; Accord, United States v.
Kimball, supra, 25 F.3d 1, 5 [“When a police officer effects an investigatory stop of a
vehicle, all occupants of that vehicle are subject to a seizure, as defined by the Fourth
Amendment. The fact that a defendant is a passenger in a vehicle as opposed to the
driver is a distinction of no consequence in this context.”]; United States v. McKneely,
supra, 6 F.3d at. p. 1450.)
The reasoning of Bell and Grant has not received universal acceptance. In People
v. Cartwright (1999) 72 Cal.App.4th 1362 the defendant was a passenger in a car
lawfully stopped for a Vehicle Code violation. When the driver was unable to produce
registration or a driver’s license, the officer asked the driver for permission to search the
vehicle for the registration. When the driver agreed the officer asked the defendant to
exit the vehicle and if there was anything illegal inside the vehicle. The defendant
responded that a friend left drugs in her purse.

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The defendant argued that the search was illegal because the driver was subject to
an illegally prolonged detention and, therefore, her consent was invalid. The appellate
court concluded that the defendant was not detained until the officer ordered her to sit on
the curb. (People v. Cartwright, supra, 72 Cal.App.4th at p. 1365.) Accordingly, since
the defendant was not detained, her Fourth Amendment rights were not violated. In so
concluding, the court rejected what it described as the position of the majority of courts in
California. (Id. at pp. 1365-1366.)
The Cartwright court relied on Maryland v. Wilson (1997) 519 U.S. 408. The
issue in Maryland was whether an officer could order the passenger in a vehicle stopped
for a traffic violation out of the vehicle without violating the passenger’s Fourth
Amendment rights in the absence of any reason to suspect the passenger of wrongdoing.
The issue was not whether the stop of the vehicle was unlawful or unlawfully prolonged.
The Supreme Court concluded that concerns for officer safety outweighed the passengers
interest in personal liberty because, as a practical matter, the passenger was already
stopped and the only change in circumstance was that the passenger now had to wait
outside of the vehicle for completion of the stop. (Id. at pp. 413-414.) We find no
authority in Maryland for the proposition that a passenger has no right to challenge the
constitutionality of the stop of a vehicle.
We also note the absurdity that would result from the application of the
Cartwright rationale to this case. Hanks, the driver of the Chevrolet, could move to
suppress the handgun by contesting the legality of the initial stop. If successful, the
handgun would be suppressed as to the driver and he would be free to go. However,
according to Cartwright, the passengers’ Fourth Amendment rights would not be
implicated because they were not detained when the stop occurred. Accordingly, the
passengers would not have any right to suppress the handgun.
We also note a significant distinction exists between Cartwright and this case. In
Cartwright, the stop of the vehicle was lawful because of a Vehicle Code violation.

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Cartwright makes this distinction clear in it’s conclusion: “Passengers are not seized
within the meaning of the Fourth Amendment simply because they occupy a seat in a
vehicle which a police officer stops for a violation of the Vehicle Code.” (People v.
Cartwright, supra, 72 Cal.App.4th at p. 1369, italics added.) In this case, the Chevrolet
was not stopped for a violation of the Vehicle Code. It was stopped because the officers
believed that a crime involving not only the driver, but also the passengers, was being
committed because each occupant of the vehicle was believed to be a gang member and
the officers believed they would find at least one gun in the vehicle. The prosecution was
based on the theory that there was a conspiracy to possess the handgun among all the
occupants of the vehicle. Therefore, we conclude that each passenger had a Fourth
Amendment right that could properly be asserted in a motion to suppress.
II. The Suppression Motion
Hester complains that Carruesco and Heredia did not have sufficient cause to
justify the initial detention of the Chevrolet, and accordingly, any evidence obtained
should have been suppressed. The People argue there was probable cause to stop the
vehicle.
The rules for review of denial of a motion to suppress are well established. This
court reviews the explicit and implicit factual findings to determine if they are supported
by substantial evidence. (People v. Soun, supra, 34 Cal.App.4th at p. 1507.) We then
exercise our independent judgment to determine if the facts found by the trial court
establish a seizure in violation of the Fourth Amendment. (Ibid.)
Moreover, the rules applicable to search and seizure are also easily stated, if not
easily applied. A seizure within the meaning of the Fourth Amendment occurs whenever
an individual’s liberty is restrained by the police either by physical force or by an
assertion of authority to which the individual submits, in circumstances in which a
reasonable person would have believed he or she was not free to leave. (People v. Soun,
supra, 34 Cal.App.4th 1499, 1515.) Distinctions are drawn between “detentions” and

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“arrests,” since, although both are seizures under the Fourth Amendment, the
constitutional standard for permissible detentions “is of lesser degree than that applicable
to an arrest.” (People v. Harris (1975) 15 Cal.3d 384, 389.) A detention may be
undertaken “if there is an articulable suspicion that a person has committed or is about to
commit a crime” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784), while probable
cause for an arrest exists only “when the facts known to the arresting officer would lead a
person of ordinary care and prudence to entertain an honest and strong suspicion that the
person arrested is guilty of a crime.” (People v. Price (1991) 1 Cal.4th 324, 410.)
We here are concerned with the initial detention of the Chevrolet in which the
defendants were traveling. Temporary detention of individuals during the stop of an
automobile by the police constitutes a detention under the Fourth Amendment. (Whren v.
U.S. (1996) 517 U.S. 806, 809-810.) The reasonableness of official suspicion is
measured by what the officers knew before they acted. (Florida v. J.L. (2000) 529 U.S.
266, 271.)
Our review of the facts found by the trial court is relatively straightforward since
there is virtually no dispute as to what occurred on the night in question. Heredia and
Carruesco were on patrol on the night of August 6, and the early morning of August 7,
1999, in an area of Bakersfield which the officers considered to be the territory of the
criminal street gang East Side Crips. Heredia and Carruesco were aware that earlier that
evening a drive-by shooting had occurred at Casa Loma Park. Two people were killed in
that shooting and at least two others were wounded. Some of the victims were members
of the criminal street gang Country Boy Crips, a rival to the East Side Crips. Heredia and
Carruesco were also aware that the East Side Crips were suspected of being responsible
for the shooting.
At approximately 12:30 a.m. Heredia and Carruesco observed three vehicles, a
Chevrolet, Chrysler and Mazda, driving side-by-side on a three-lane road. The officers
followed the vehicles and tried to determine who and how many people occupied the

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vehicles using the spotlights on their patrol vehicle. They determined that four Black
males between 15 and 25 years of age occupied the Chevrolet, and one of these
individuals was Leon Anderson, a person they knew to be a member of the East Side
Crips. They also determined that four individuals occupied the Chrysler and that two
were Black males of the same age. They could not identify the sex or race of the two rear
passengers in the Chrysler. The officers did not observe the number, race or sex of the
occupants in the Mazda. The officers could not identify any individual other than
Anderson.
After following the three vehicles for approximately one-quarter mile, and making
the observations described above, Carruesco and Heredia activated the emergency lights
on their patrol vehicle and stopped the Chevrolet.
Carruesco explained his justification for the stop of the Chevrolet:
“Based on the occupants of the vehicle being all black males and the
recognition of Mr. Anderson as an East Side Crip, it has been my
experience that gang members oftentimes hang out together in large groups
because they have strength in numbers and [are] more intimidating in a
larger group. [¶] … [¶]
“There had been a shooting at Casa Loma that turned into a
homicide where the East Side Crips were suspected to be suspects. I
believed that if they knew that they were suspected as being suspects, they
would probably arm themselves. [¶] … [¶]
“There has been since I’ve been working here, an ongoing geud
between those specific gangs, and it has been my experience that when
there is a shooting against one gang, the victim gang retaliates against the
suspect gang in a short period of time. [¶] … [¶]
“Based on the fact that there was a homicide in rival gang member
territory and the fact that the East Side Crips were being named as the

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suspects, it is my opinion that the East Side Crips would arm themselves in
fear of retaliation and for their own protection.”1
Although not pertinent to our analysis, upon approaching the Chevrolet after the
traffic stop, Heredia saw that one of the passengers had a handgun. When the vehicle
was searched a loaded handgun was located under the front seat. Cocaine base was found
in the back seat of the police vehicle in which Hester was placed after he was arrested.
We are required to determine whether Carruesco’s reasoning resulted in a seizure
that was unreasonable in violation of the Fourth Amendment. “A detention is reasonable
under the Fourth Amendment when the detaining officer can point to specific articulable
facts that, considered in light of the totality of the circumstances, provide some objective
manifestation that the person detained may be involved in criminal activity.” (People v.
Souza (1994) 9 Cal.4th 224, 231.) We focus on the totality of the circumstances in
assessing whether the particularized and objective facts known to the police provided
reasonable cause to detain appellant. (Id. at p. 238.)
“The idea that an assessment of the whole picture must yield a
particularized suspicion contains two elements, each of which must be
present before a stop is permissible. First, the assessment must be based
upon all the circumstances. The analysis proceeds with various objective
observations, information from police reports, if such are available, and
consideration of the modes or patterns of operation of certain kinds of
lawbreakers. From these data, a trained officer draws inferences and makes
deductions--inferences and deductions that might well elude an untrained
person.
“The process does not deal with hard certainties, but with
probabilities.… Finally, the evidence thus collected must be seen and
weighed not in terms of library analysis by scholars, but as understood by
those versed in the field of law enforcement.
1 Carruesco admitted the stop was not made as a result of a Vehicle Code violation.

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“The second element contained in the idea that an assessment of the
whole picture must yield a particularized suspicion is the concept that the
process just described must raise a suspicion that the particular individual
being stopped is engaged in wrongdoing.” (United States v. Cortez (1981)
449 U.S. 411, 418.)
We quote Cortez at length because it is on the principles stated therein that the
People rely in arguing that the stop of the vehicle was reasonable. The People emphasize
the “whole picture,” as well as the “inferences and deductions” Carruesco made in
deciding to stop the Chevrolet. The whole picture consists of the Casa Loma shooting,
the three cars driving together at 12:30 a.m. in East Side Crip territory, the identification
of one occupant as an East Side Crip, and the presence of several Black males in the
Chrysler and Chevrolet. The inferences and deductions include (1) all three vehicles
were traveling together, (2) everyone in the Chevrolet was an East Side Crip because they
were Black males and were riding with Anderson, (3) everyone in the Chrysler was an
East Side Crip because there were two Black males in the car and they were traveling
with the Chevrolet, (4) everyone in the Mazda was an East Side Crip because it was
traveling with the Chevrolet, even though Carruesco did not know the age, sex or race of
the occupants, (5) these gang members were aware of the Casa Loma shooting, (6) these
gang members were expecting retaliation, and, (7) they were armed because they were
expecting retaliation.
This stop violated the Fourth Amendment for two reasons. The first is that the
inferences and deductions drawn by Carruesco are not supported by the facts. The
second is that the inferences and deductions that were made did not lead to a probability
that anyone in the Chevrolet was engaged in criminal activity. The trial court seemed to
understand the defect in the People’s case, yet denied the motion.
Carruesco begins by concluding that all three cars were traveling together. First,
his observations were for a very short distance. Second, Carruesco did not provide any

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facts to support this conclusion other than that the cars were traveling side-by-side, and
later were in the same lane together.
Next, Carruesco inferred that each individual in the Chevrolet was a gang member
because the only individual in the car who he identified was known to him to be a East
Side Crip, the cars were driving in East Side Crip territory, and the Chevrolet contained
Black males between 15 and 25 years of age. Carruesco’s conclusion is unreasonable.
While Carruesco’s conclusion is one possible explanation for the few facts he observed,
there are far too many other possible explanations which fit these facts to conclude that
everyone in the cars was a gang member. The only way to justify Carruesco’s conclusion
is to assume as fact that every Black male between 15 and 25 in this part of Bakersfield is
an East Side Crip, or that every Black male between the ages of 15 and 25 who is in a car
with an East Side Crip must also be an East Side Crip. These conclusions are far too
consistent with racial profiling to be permitted by the Constitution. (Whren v. U.S.,
supra, 517 U.S. at p. 813; United States v. Brignoni-Ponce (1975) 422 U.S. 873, 885-
886.)
Carruesco’s third conclusion, that everyone in the Chrysler was an East Side Crip,
is even more suspect. First, he only observed two of the occupants in the Chrysler. For
all Carruesco knew, the other two occupants could have been elderly females. Second,
the short time Carruesco followed the three cars did not justify his conclusion that the
three cars were traveling together. Even if they were traveling together, the myriad of
innocent explanations ignored by Carruesco precludes the conclusion that every occupant
in the Chrysler was an East Side Crip.
Since we conclude that the inference that the occupants of the Chrysler were East
Side Crips was unreasonable, it is obvious that Carruesco’s conclusion that the occupants
of the Mazda were East Side Crips was also unreasonable. Carruesco did not know the
sex, race, age or number of occupants in the Mazda. It was irresponsible of Carruesco to
come to any conclusion about the occupants of this vehicle.

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There were no facts introduced to show that Carruesco, at the time he stopped the
Chevrolet, knew that the occupants, even if they were gang members, knew about the
Casa Loma shooting. The shooting in the park occurred six hours before the stop. At
least two of the suspects were arrested a short time after the shooting. While Carruesco
may have believed that every East Side Crip knew of the shooting, a mere belief will not
support a detention. (People v. Conway (1994) 25 Cal.App.4th 385, 389.)
Carruesco’s final inference, that these gang members were expecting retaliation
that night and, accordingly, were armed, is belied by Carruesco’s own testimony.
Carruesco stated to the court that he has seen retaliation for gang shootings that has
occurred months after the first shooting. If we accept Carruesco’s reasoning, since
retaliation was possible for at least the next few months, he would be justified in stopping
every vehicle in which he believed East Side Crips were riding for the next few months
because they may be expecting retaliation and would therefor arm themselves. The
absurdity of this proposition demonstrates the flaw in Carruesco’s logic.
The trial court stated on several occasions during the motion to suppress that this
was an unusual situation. It was unusual only because the detention was not supported by
any facts that would justify the detention. Instead the People relied on inference and
deduction to justify the prosecution. However, no inference or deduction will support a
detention if there are not any facts indicating that the person being detained was involved
in criminal activity. (People v. Conway, supra 25 Cal.App.4th at p. 389.) The trial court
erred when it failed to recognize this fundamental distinction when it denied the motion
to suppress.
We find support for our conclusion in Cortez. In Cortez, the border patrol was
investigating a particular group that was smuggling illegal aliens across the border. The
border patrol learned the following facts during a two-month investigation. The area they
were investigating was a border crossing for illegal aliens. They had over a period of
time located numerous tracks of individuals all headed from the Mexican border that

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terminated near a specific point at Highway 86. Because they terminated at the highway,
the officers concluded that a vehicle picked up the groups.
One set of footprints, which appeared repeatedly, left an impression with a
distinctive pattern. The investigating officers designated this person “Chevron” and
concluded he was the guide. Because the tracks often led into dead ends that required
backtracking by the groups, and these areas would easily be avoided in daylight, the
officers concluded the trips were made at night. The officers determined by examining
the tracks that the groups usually contained between 8 and 20 individuals. Based on the
times when they discovered “Chevron’s” tracks, the officers determined that “Chevron”
usually led groups across the border during or near weekends and on nights when the
weather was clear.
The investigating officers were on duty on a Sunday night in late January. The
absence of “Chevron’s” tracks revealed that his last border crossing was in early January.
The night in question was the first clear night after three days of rain. The officers
concluded there was a strong possibility that “Chevron” would make a crossing that
night.
The officers assumed that if “Chevron” made a crossing that night he would leave
Mexico after dark. They estimated the time it would take to make the crossing by those
on foot and determined that “Chevron” would reach the pick-up point between 2 a.m. and
6 a.m. that morning. The officers also determined that the pick-up vehicle would
approach the pick-up point from the east, and return to the east since that was the
direction the groups were walking before they were picked up and it was unlikely that the
groups would walk away from their ultimate destination.
On the night in question, the officers began their surveillance of Highway 86
approximately 27 miles east from the pick-up point. The officers were looking for a
vehicle large enough to carry groups of illegal aliens without drawing unwanted
attention, such as pick-ups, vans, motor homes, campers and like vehicles. They also

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were looking for a vehicle which headed west bound, and then returned east bound within
one and one half hours, the time they estimated it would take to make the round trip from
their vantage point to the pick-up point. Only one distinctive camper met the criteria
established by the officers. When the officers stopped the vehicle, they found six illegal
aliens in the camper and an individual wearing shoes that matched the pattern of
“Chevron’s” shoes in the cab.
The United States Supreme Court held that the above facts established probable
cause for the stop of the vehicle. The Court began by reiterating that the Fourth
Amendment applied to brief investigatory stops such as the one at issue here. (United
States v. Cortez, supra, 449 U.S. at p. 417.) They also reiterated that the essence of
Fourth Amendment analysis “… is that the totality of the circumstances--the whole
picture--must be taken into account. Based upon that whole picture the detaining officers
must have a particularized and objective basis for suspecting the particular person
stopped of criminal activity. [Citations.]” (Id. at pp. 417-418.)
The Court concluded the officers used objective facts to draw permissible
inferences to form a legitimate basis for suspicion of a particular person and for action on
that suspicion. (Id. at p. 419.) The Court held that, based on the whole picture of the
two-month investigation, these experienced Border Patrol agents could reasonably
surmise that the particular vehicle they stopped was engaged in criminal activity. (Id. at
pp. 421-422.)
Carruesco and Heredia’s investigation lasted closer to two minutes than two
months. They were on a heightened state of alert because of the desire to prevent
escalation of ongoing gang conflicts. While their intentions may have been good, the
tragedy at Casa Loma Park did not result in suspension of the Fourth Amendment. In
contrast to the extensive investigation and rational deductions found in Cortez, Carruesco
and Heredia acted on a hunch and intuition, neither of which will support a detention.
(People v. Conway, supra, 25 Cal.App.4th at p. 389.) Reducing this stop to its essence,

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Carruesco and Heredia acted because a passenger in the vehicle was a member of the
East Side Crips. Mere membership in a criminal street gang, without additional facts
supporting an inference of criminal activity, does not permit a detention. (People v.
Rodriquez (1993) 21 Cal.App.4th 232, 239.) Carruesco and Heredia violated the Fourth
Amendment rights of the occupants of the Chevrolet by stopping the vehicle without a
reasonable suspicion that the occupants were engaged in criminal activity.
III. Probation Search Conditions
The People assert that even if Carruesco and Heredia did not have justification for
stopping the vehicle, the motion to suppress was properly denied because three of the
occupants in the Chevrolet were subject to probation or parole search conditions.
Although the record is far from clear, it appears that Hanks, Dawson, and Hester were on
probation. Hester’s search condition apparently required a reasonable suspicion of
criminal activity before he could be searched although the record is unclear as to the
scope of the search condition for any of the defendants.
Carruesco and Heredia were unaware that the occupants were on probation at the
time they stopped the Chevrolet. Hester argues that the officers’ lack of knowledge that
there were probation search conditions makes the stop illegal.
Resolution of this issue requires a review of California Supreme Court cases
dealing with parole and probation searches. In People v. Burgener (1986) 41 Cal.3d 505
the defendant was suspected of committing a robbery during which a convenience store
clerk was fatally wounded. The defendant was on parole with a warrantless search
condition. After the defendant was arrested, the police searched the apartment he lived in
with the consent of defendant's parole officer. Incriminating evidence was found in the
apartment.
The defendant argued the incriminating evidence should have been suppressed
because the search was conducted without a warrant. The Supreme Court first affirmed
that parolees have a reduced expectation of privacy and, accordingly, certain

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governmental intrusions into their privacy are permissible. (People v. Burgener, supra,
41 Cal.3d at p. 531.) The Supreme Court, after noting the myriad of regulations a parolee
is subjected to upon release from prison, held “The interest in parole supervision to
ensure public safety, which justifies administrative parole revocation proceedings in lieu
of criminal trial with the attendant protections accorded defendants by the Bill of Rights,
also permits restrictions on parolees’ liberty and privacy interests. Balancing these
interests of the parolee against the societal interest in public safety leads us to conclude
that warrantless searches of parolees are not per se unreasonable if conducted for a
purpose properly related to parole supervision.” (Id. at p. 532.) The court continued that
society's interest in public safety permits parole searches on a reasonable suspicion
standard, a standard which would not rise to the level of probable cause in the typical
criminal context. (Id. at p. 534.) This standard must be based on articulable facts and
rational inferences that would lead an objectively reasonable person to conclude there
was reasonable suspicion that the parolee was involved in criminal activity. (Ibid.) The
Supreme Court concluded that the search met the required standard and that the fact that
the search was conducted for the purpose of discovering evidence to support new
criminal charges was of no moment. (Id. at p. 536.) “The societal interest in parole
supervision and in the speedy return of parole violators to prison in order to protect the
public has added weight, not less, when a reasonable suspicion exists to believe that a
parolee has been involved in criminal activity. Any violation of the law is also a
violation of the conditions of a parole. The law enforcement purpose of the police who
seek authorization from the parole agent for a warrantless search, and the parole
supervision purpose of the agent who gives that authorization are indistinguishable.”
(Ibid.)
In People v. Bravo (1987) 43 Cal.3d 600 the defendant was a probationer who had
a warrantless search condition as a condition of his probation. Police officers received a
tip that defendant was selling drugs. However, surveillance of his residence did not

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reveal any suspicious activity. A search of his residence pursuant to the probation terms
located illegal drugs.
Defendant argued that a search pursuant to the probation requirement could only
occur if the officers had reasonable cause to suspect defendant was involved in criminal
activity. The Supreme Court rejected this argument holding that by accepting probation
with a warrantless search condition, the defendant voluntarily waived his right to privacy
save only his right to object to harassment or to object to searches conducted in an
unreasonable manner. (People v. Brugener, supra, 41 Cal.3d at p. 607.) The Supreme
Court distinguished Burgener by distinguishing between probation, in which a
probationer voluntarily waives a right to be free from unreasonable searches in exchange
for escaping a prison sentence, and parole, in which the warrantless search requirement is
not voluntary. (Id. at p. 608.) A parolee does not waive his right to be free from
unreasonable searches, but the condition is imposed on him by statute on his release from
prison. A probationer, however, voluntarily waives his right since probation is a
privilege, and the probationer has an option to refuse the condition if he or she finds it too
burdensome. (Ibid.)
The Supreme Court added that the probationer’s waiver of his Fourth Amendment
rights did not allow searches undertaken for harassment nor searches for arbitrary or
capricious reasons. (Id. at p. 610.) “We do not suggest that searches of probationers may
be conducted for reasons unrelated to the rehabilitative and reformative purposes of
probation or other legitimate law enforcement purposes…. We hold only that a search
condition of probation that permits a search without a warrant also permits a search
without ‘reasonable cause,’ as the former includes the latter. [Citation.]” (People v.
Burgener, supra, 41 Cal.3d at pp. 610-611.)
In In re Tyrell J. (1994) 8 Cal.4th 68, a juvenile was on probation and was subject
to a search condition at any time by any law enforcement officer. An officer stopped the
juvenile and some friends because of suspicious behavior. The officer did not know the

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juvenile was on probation. During the course of the stop the officer searched the juvenile
and found illegal drugs. The trial and appellate court both concluded that absent the
probation term, the search violated the Fourth Amendment.
The Supreme Court, after distinguishing between adult and juvenile probationers,
concluded that the juvenile did not have a reasonable expectation of privacy that society
was willing to recognize as legitimate. (In re Tyrell J., supra, 8 Cal.4th at p. 86.) “Tyrell
J. was subject to a valid search condition, directly imposed on him by the juvenile court
in a prior matter. We presume he was aware of that limitation on his freedom, and that
any police officer, probation officer, or school official could at any time stop him on the
street, at school, or even enter his home, and ask that he submit to a warrantless search.
There is no indication the minor was led to believe that only police officers who were
aware of the condition would validly execute it. The minor certainly could not
reasonably have believed [the officer] would not search him, for he did not know whether
[the officer] was aware of the search condition. Thus, any expectation the minor may
have had concerning the privacy of his bag of marijuana was manifestly unreasonable.”
(Ibid.)
Parole searches were next addressed in People v. Reyes (1998) 19 Cal.4th 743
where the court addressed the “tension” between Tyrell J. and Burgener. In Reyes,
defendant was on parole and agreed to a parole condition which allowed any law
enforcement officer to search defendant and his residence without a warrant.
Defendant’s parole officer received a tip that defendant may be under the influence of
illegal narcotics. The parole agent requested the local police to evaluate defendant to
determine if the tip was accurate. The officers observed defendant exiting a small shed in
back of his house, but did not identify any suspicious activity. The officers searched the
shed and located methamphetamine.
The Supreme Court held that when an involuntary search condition is properly
imposed the searching officers are not required to have a reasonable suspicion of criminal

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activity before conducting the search. “Such a search is reasonable within the meaning of
the Fourth Amendment as long as it is not arbitrary, capricious or harassing.” (People v.
Reyes, supra, 19 Cal.4th at p. 752.) Accordingly, the search of defendant did not violate
his Fourth Amendment rights.
In People v. Woods (1999) 21 Cal.4th 668 an officer observed Mofield walking in
front of a house occupied by Loza carrying a long object covered by a cloth. The officer
knew that Loza was on probation and that she had agreed to warrantless searches of her
residence. When Mofield saw the officer, he quickened his pace and turned into a
driveway. The officer detained Mofield and discovered a long knife under the cloth and
drugs and drug paraphernalia on Mofield.
After he was arrested, Mofield told the officer he resided with Loza. Believing he
would find incriminating evidence against Mofield, the officer decided to conduct a
probation search of Loza’s residence. When he knocked on the door, Loza refused
permission to enter. The officer reminded Loza of her probation search requirement and
entered the premises. He discovered defendants, who also lived in the residence, in a
bedroom along with additional drugs and paraphernalia.
The trial court ordered the evidence against defendants suppressed because it
found that the officer used the probation search condition as a pretext to look for
incriminating evidence against Mofield. The Supreme Court accepted this factual
finding, but reversed the trial court’s order of suppression. Concluding that the
subjective intent of the officer conducting the search is irrelevant. (People v. Woods,
supra, 21 Cal.4th at pp. 680-681.) The court found that the probation search was justified
because the officer had been told three days before that drugs were being sold out of the
house and because of Mofield’s actions as observed by the officer that day. (Id. at p.
681.) The court limited its holding by stating that the search may not exceed the
probation search clause at issue, the search may not be undertaken in a harassing or
unreasonable manner, and that the search is limited to those portions of the residence that

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the officers reasonably believe the probationer has complete or joint control over. (Id. at
p. 682.)
In People v. Robles (2000) 23 Cal.4th 789 the Supreme Court was faced with the
question of a warrantless search conducted at the home of a probationer. The officers
suspected defendant, who lived with the probationer, of being involved in the theft of a
car. The officers believed the stolen vehicle was located in the garage of the residence
shared by the probationer and defendant, who were brothers. However, at the time the
officers conducted the search, they were not aware the probationer lived at the house and
that his probation contained a search condition. The People tried to justify the otherwise
illegal search by arguing the police had a right to conduct the search since the probationer
lived at the house.
The Supreme Court rejected the argument and found the search violated the
defendant’s Fourth Amendment rights. “It is true that if persons live with a probationer,
common or shared areas of their residence may be searched by officers aware of an
applicable search condition. [Citations.] Critically, however, cohabitants need not
anticipate that officers with no knowledge of the probationer’s existence or search
condition may freely invade their residence in the absence of a warrant or exigent
circumstances. Thus, while cohabitants have no cause to complain of searches that are
reasonably and objectively related to the purposes of probation—for example, when
routine monitoring occurs [citation] or when facts known to the police indicate a possible
probation violation that would justify action pursuant to a known search clause
[citation]—they may legitimately challenge those searches that are not.” (People v.
Robles, supra, 23 Cal.4th at pp. 798-799.)
Significant for our purposes the court rejected the People’s argument that any
search conducted of a probationer’s home is authorized regardless of whether the police
had knowledge that the probationer resided at the home. “Contrary to the People’s
argument, People v. Woods, supra, 21 Cal.4th 668 does not support the proposition that

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police officers may lawfully enter a residential premises, without a warrant and without
any awareness of a resident’s probation search condition, to indiscriminately search for
and seize evidence of suspected criminal wrongdoing. As our decisions indicate,
searches that are undertaken pursuant to a probationer’s advance consent must be
reasonably related to the purposes of probation. [Citations.] Significantly, a search of a
particular residence cannot be ‘reasonably related’ to a probationary purpose when the
officers involved do not even know of a probationer who is sufficiently connected to the
residence. Moreover, if officers lack knowledge of a probationer’s advance consent
when they search the residence, their actions are wholly arbitrary in the sense that they
search without legal justification and without any perceived limits to their authority.”
(People v. Robles, supra, 23 Cal.4th at p. 797.)
The United States Supreme Court decisions on this issue are not helpful. The only
decision we found which remotely approaches this issue is Whren v. U.S., supra, 517
U.S. 806, which held that a Wisconsin statute, which provided that parole searches could
be conducted without a warrant anytime a parole agent had a reasonable suspicion the
parolee was involved in criminal activity, did not violate the Fourth Amendment. Whren
did not hold that the Fourth Amendment imposes a reasonable suspicion requirement.
The California Supreme Court cases referred to above, indicate that a police
officer need not have a reasonable suspicion of criminal activity to conduct a warrantless
search pursuant to a probation waiver. However, the search must be reasonably related to
the probation requirement. This will require in most situations, if not all situations, that
the officer knows at the time the search is conducted that the person or residence being
searched is subject to a warrantless search. The Supreme Court has not held in any of
these cases that a probation waiver may justify a search where the officer did not know
that person or residence was subject to such a waiver. Tyrell J. is distinguishable
because, as pointed out by the Supreme Court, a juvenile probationer does not voluntarily
waive his rights as an adult probationer does, but is subject to an imposed condition

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similar to an adult parole. (In re Tyrell J., supra, 8 Cal.4th at pp. 81-83.) Robles
suggests that the requirement that the officer have knowledge of the probation waiver
before conducting a search is equally applicable to the probationer as well as third parties
affected by the probationer’s waiver. Thus, Carruesco and Heredia’s ignorance of the
probation status of Hanks, Dawson and Hester precludes reliance on the search condition
to justify the stop of the vehicle.
Even if we had concluded that a search could be conducted in the absence of
knowledge of probation, we would find the trial court erred in denying the motion to
suppress for another reason. This case does not present the issue of whether a probation
waiver can justify a search. The question is whether a stop of a lawfully operated vehicle
can be justified because a passenger in the vehicle was on probation. The answer to this
question is no. We can envision no conduct more unreasonable than stopping a vehicle
and then hoping the stop can later be justified if one of the occupants in the vehicle
happens to be on probation. Whether such conduct is described as unreasonable,
harassment, or arbitrary and capricious, it is prohibited by the Fourth Amendment.
DISPOSITION
The judgment is reversed and the cause remanded to the superior court. The court
is directed to vacate its order denying the motion to suppress and enter a new order
granting the motion. The court is directed to vacate the guilty plea if Hester makes an
appropriate motion within 30 days after the remittitur is issued. In that event, the

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superior court should reinstate the original charges and allegations contained in the
information if the prosecution so moves. If Hester does not move to vacate the guilty
plea, the trial court is directed to reinstate the original judgment.
_____________________
Cornell, J.
WE CONCUR:
______________________
Buckley, Acting P.J.
______________________
Levy, J.

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