Stanford Law School - Robert Crown Law Library

Filed 12/3/12



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S186707

v.

Ct.App. 4/3 G040641

DOUGLAS GEORGE SCHMITZ,

Orange County

Defendant and Appellant.

Super. Ct. No. 06HF2342



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

1

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condominium complex. When defendant then made a U-turn, Mihai stopped

alongside his car and asked whether he was lost. Defendant said no, that he had

driven into the alley to avoid making a U-turn on the street. Mihai got out of her

car and asked defendant for his driver‘s license. As defendant complied, Mihai

observed that his arms were covered with abscesses, which she associated with

drug use. Asked if defendant was on probation or parole, defendant said, ―No.‖

Mihai then asked him for permission to search the car. Defendant did not respond.

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,1 two syringes in a chips bag, and

some methamphetamine in a pair of shoes.

Defendant waived a preliminary hearing on resulting charges, but moved to

suppress the evidence.2 The suppression hearing took place in a misdemeanor

courtroom. Most of the proceedings were not reported. The judge approved a

settled statement of the unreported portion of the officer‘s testimony. The record

does not reflect the condition of the items searched or their precise location in the

backseat. The officer had no memory of the style of the shoes.

After defendant‘s suppression motion was denied, he pleaded guilty to four

misdemeanor counts.3 The trial court suspended imposition of sentence and


1

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.
2

Penal Code section 1538.5.

3

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


(footnote continued on next page)

2

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placed defendant on informal probation for three years on condition he serve 90

days in the county jail. Defendant appealed from the denial of his suppression

motion.

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 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 backseat to the parolee. The parolee had

no right to open packages, eat food, or even read magazines he found in the

backseat.‖4


(footnote continued from previous page)

& Saf. Code, § 11550, subd. (a)); unauthorized possession of a syringe (former
Bus. & Prof. Code, § 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.
4

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. (Conc. & dis. opn. of
Werdegar, J., post, at pp. 2-4; conc. & dis. opn. of Liu, J., post, at p. 1.) 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. (Conc. &
dis. opn. of Werdegar, J., post, at pp. 3-4 & fn. 2; conc. & dis. opn. of Liu, J., post,
at pp. 1, 18.) We respectfully find this argument unpersuasive.


It is the People‘s burden to justify a warrantless search. (Vale v. Louisiana

(1970) 399 U.S. 30, 34; People v. Johnson (2006) 38 Cal.4th 717, 723 (Johnson);


(footnote continued on next page)

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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.



(footnote continued from previous page)

People v. Williams (1999) 20 Cal.4th 119, 127 (Williams).) The defendant does
have the burden to file a motion asserting the absence of a warrant and, if the
prosecution offers a justification for the warrantless search or seizure, to present
arguments as to why that justification is inadequate. (Williams, supra, at p. 130.)
Here, defendant‘s written suppression motion challenged both his detention and
the search of his vehicle. He argued generally that the officer‘s conduct was not
supported by a warrant, ―particularized suspicion,‖ or lawful consent, and that it
was the People‘s burden to justify the warrantless search and seizure. According
to the settled statement, the officer testified at the suppression hearing that she
searched the defendant‘s car based on the passenger‘s parole status. Thereafter, in
the reported portion of the hearing, both parties focused their brief oral argument
on the detention issue. The trial court denied defendant‘s motion in its entirety.


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)
45 Cal.4th 262, 267, fn. 1.) To do otherwise would be unfair to the parties,
particularly the defendant, who was not asked to address the forfeiture issue in
briefing or at oral argument. (See Gov. Code, § 68081.)

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II. DISCUSSION

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) 49 Cal.4th 530, 564, fn. 11; People v. Woods

(1999) 21 Cal.4th 668, 674 (Woods).) A warrantless search is unreasonable under

the Fourth Amendment unless it is conducted pursuant to one of the few narrowly

drawn exceptions to the constitutional requirement of a warrant. (U.S. Const., 4th

Amend.; Arizona v. Gant (2009) 556 U.S. 332, 338 (Gant); Woods, supra, 21

Cal.4th at p. 674; People v. Bravo (1987) 43 Cal.3d 600, 609.) California‘s parole

search clause is one of those exceptions. (Samson v. California (2006) 547 U.S.

843, 846, 850-857 (Samson).)

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 also 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

suspicionless 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

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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) 31 Cal.4th

318, 332-334 (Sanders); People v. Reyes (1998) 19 Cal.4th 743, 750-754 (Reyes).)

―[P]arolees . . . have severely diminished expectations of privacy by virtue of

their status alone.‖ (Samson, supra, 547 U.S. at p. 852.) ―As a convicted felon

still subject to the Department of Corrections, a parolee has conditional freedom—

granted for the specific purpose of monitoring his transition from inmate to free

citizen.‖ (Reyes, supra, 19 Cal.4th at p. 752.) The state, by contrast, ―has an ‗

―overwhelming interest‖ ‘ in supervising parolees because ‗parolees . . . are more

likely to commit future criminal offenses.‘ Pennsylvania Bd. of Probation and

Parole, 524 U.S., at 365 (explaining that the interest in combating recidivism ‗is

the very premise behind the system of close parole supervision‘).‖ (Samson,

supra, 547 U.S. at p. 853.) ―The state has a duty not only to assess the efficacy of

its rehabilitative efforts but to protect the public . . . .‖ (Reyes, supra, 19 Cal.4th at

p. 752.) Accordingly, a parolee does not have a legitimate expectation of privacy

that would prevent a properly conducted parole search. (Samson, supra, 547 U.S.

at p. 852; Reyes, supra, 19 Cal.4th at p. 754.)

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, 31 Cal.4th at p. 329, quoting

People v. Robles (2000) 23 Cal.4th 789, 798 (Robles).) Here, we consider the

permissible scope of a parole search that infringes on the privacy of a third party

driving a car with a parolee passenger. The facts here raise two distinct questions.

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First, what is the permissible scope of the search of the car‘s interior? Second,

what is the permissible scope of a search of property located in the car?

We have encountered similar questions in the context of a residential

search. In Woods, supra, 21 Cal.4th 668, police officers searched a house based

on the probation status of one of the residents. We held that evidence found in the

house‘s only bedroom was admissible against two other residents who were not

probationers. (Id. at pp. 672, 681-682.) We observed that ―[i]n California,

probationers may validly consent in advance to warrantless searches in exchange

for the opportunity to avoid service of a state prison term. [Citations.]‖ (Id. at p.

674.)5 Relying on the ―common authority‖ theory of consent, we concluded that,

if others live with a probationer, the shared areas of their residence may be

searched based on the probationer‘s consent, given in advance by agreeing to a

search condition. (Id. at pp. 674-676, citing Schneckloth v. Bustamonte (1973)
412 U.S. 218 and United States v. Matlock (1974) 415 U.S. 164, 170.)6 We

emphasized, however, that our holding would not ―legitimize unreasonable

searches with respect to nonprobationers who share residences with probationers.

In all cases, a search pursuant to a probation search clause may not exceed the

scope of the particular clause relied upon. [Citation.] Nor may such a search be

undertaken in a harassing or unreasonable manner. [Citations.] Moreover,

officers generally may only search those portions of the residence they reasonably


5

As will be discussed below (post, at pp. 11-13 & fn. 9), we have never

relied on a consent rationale to uphold a parole search condition.
6

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.)

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believe the probationer has complete or joint control over. [Citation.]‖ (Woods,

supra, 21 Cal.4th at pp. 681-682.)

In Robles, supra, 23 Cal.4th 789, we reaffirmed that, if someone lives with

a probationer, ―common or shared areas of their residence may be searched by

officers aware of an applicable search condition.‖ (Id. at p. 798, citing Woods,

supra, 21 Cal.4th 668, and Russi v. Superior Court (1973) 33 Cal.App.3d 160.)

We further observed that nonprobationers ―maintain normal expectations of

privacy over their persons. In addition, they retain valid privacy expectations in

residential areas subject to their exclusive access or control, so long as there is no

basis for officers to reasonably believe the probationer has authority over those

areas.‖ (Robles, supra, at p. 798.) We found the search unreasonable as to the

nonprobationer, Robles, because the officers were unaware that the other resident

was on probation. A fortuitous subsequent discovery of a probation search clause

could not be relied upon to justify the search. (Id. at pp. 798-800.)

In Sanders, supra, 31 Cal.4th 318, we considered a Fourth Amendment

challenge to a warrantless search of a home occupied by two people, ―one of

whom was on parole and subject to a search condition of which the police were

unaware at the time of the search.‖ (Id. at p. 322.) Addressing the nonparolee‘s

challenge to the search, we observed that the nonparolee ―had a reduced

expectation of privacy because she was living with a parolee subject to a search

condition . . . .‖ (Id. at p. 330.) We concluded, however, that she ― ‗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.‘ ‖ (Ibid., quoting Robles, supra, 23 Cal.4th at p. 799.) In

extending the holding of Robles to require that officers know of a resident‘s parole

search condition before conducting the search, we declined to distinguish between

probation and parole searches for this purpose, concluding that ―the expectation of

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privacy of cohabitants is the same whether the search condition is a condition of

probation or parole.‖ (Sanders, supra, 31 Cal.4th at p. 330.)

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. (See

New York v. Class (1986) 475 U.S. 106, 111, 114-115.)7 The burden is on the

People to justify the warrantless search as reasonable. (Vale v. Louisiana, supra,

399 U.S. at p. 34; Johnson, supra, 38 Cal.4th at p. 723; Williams, supra, 20

Cal.4th at p. 127.)

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


7

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)
496 U.S. 128, 136-137; Texas v. Brown (1983) 460 U.S. 730, 739-740 (plur. opn.
of Rehnquist, J.).)

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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, 21 Cal.4th at p. 675), is unworkable when applied to this

parolee, who was a mere passenger in defendant‘s automobile.8 There are

significant distinctions between the residential probation search in Woods, and the

search of defendant‘s car based on his passenger‘s parole status.

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) 445

U.S. 573, 585.) There is good reason to limit a warrantless, suspicionless

residential search to areas where an officer reasonably believes the parolee or

probationer exercises ―common authority.‖ (Woods, supra, 21 Cal.4th at pp. 674-

676; United States v. Matlock, supra, 415 U.S. at p. 171, fn. 7.) ―The authority

which justifies the third-party consent . . . rests . . . on mutual use of the property

by persons generally having joint access or control for most purposes, so that it is

reasonable to recognize that any of the co-inhabitants has the right to permit the

inspection in his own right and that the others have assumed the risk that one of

their number might permit the common area to be searched.‖ (United States v.

Matlock, supra, 415 U.S. at p. 171, fn. 7.) The sanctity of the home demands


8

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.

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recognition that persons living with a probationer or parolee ―retain valid privacy

expectations in residential areas subject to their exclusive access or control, so

long as there is no basis for officers to reasonably believe the probationer has

authority over those areas.‖ (Robles, supra, 23 Cal.4th at p. 798; accord, Sanders,

supra, 31 Cal.4th at pp. 329-330.)

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) 428 U.S. 364, 367, fn. omitted; accord, Indianapolis v. Edmond

(2000) 531 U.S. 32, 54.) Both drivers and passengers have a reduced expectation

of privacy in the interior of a car and its contents because cars ― ‗trave[l] public

thoroughfares,‘ Cardwell v. Lewis, 417 U.S. 583, 590 (1974), ‗seldom serv[e]

as . . . the repository of personal effects,‘ ibid., are subjected to police stop and

examination to enforce ‗pervasive‘ governmental controls ‗[a]s an everyday

occurrence,‘ South Dakota v. Opperman, 428 U.S. 364, 368 (1976), and, finally,

are exposed to traffic accidents that may render all their contents open to public

scrutiny.‖ (Wyoming v. Houghton (1999) 526 U.S. 295, 303 (Houghton).)

Accordingly, ―warrantless examinations of automobiles have been upheld in

circumstances in which a search of a home or office would not.‖ (South Dakota v.

Opperman, supra, at p. 367.)

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, 21 Cal.4th at p.

674; People v. Bravo (1987) 43 Cal.3d 600, 605-607; People v. Mason (1971)

5 Cal.3d 759, 764, disapproved on another ground in People v. Lent (1975)

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15 Cal.3d 481, 486, fn. 1.) By contrast, in parole cases we have not relied on the

consent principle that naturally applies in probation. In Reyes we explained that

―under the Determinate Sentencing Act of 1976, parole is not a matter of choice.

The Board of Prison Terms must provide a period of parole; the prisoner must

accept it.‖ (Reyes, supra, 19 Cal.4th at p. 749, citing Pen. Code, § 3000 et seq.)9

Finding a consent analysis inapt, we adopted a totality of the circumstances

balancing test to evaluate the reasonableness of a warrantless and suspicionless

parole search. (Reyes, supra, at pp. 753-754; accord, Samson, supra, 547 U.S. at

p. 848.) This approach, unlike the consent exception to the warrant requirement,

recognizes the state‘s compelling interest to supervise parolees and to ensure

compliance with the terms of their release. It also recognizes that ―parolees have


9

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, former subd. (a), & subd. (c),
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
former Pen. Code, § 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 June 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) 131 Cal.App.4th 732, 739-740.) The Attorney General,
however, expressly disavows any reliance on a theory of advance consent to
justify the search in this case. Because we assess the reasonableness of the search
without regard to an advance-consent theory, we need not resolve this question.
(Cf. Samson, supra, 547 U.S. at p. 852, fn. 3.)

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fewer expectations of privacy than probationers, because parole is more akin to

imprisonment than probation is to imprisonment.‖ (Samson, supra, at p. 850.)

―The touchstone of the Fourth Amendment is reasonableness . . . .‖ (United

States v. Knights (2001) 534 U.S. 112, 118-119 (Knights).) ―When faced with . . .

diminished expectations of privacy, minimal intrusions, or the like, the Court has

found that certain general, or individual, circumstances may render a warrantless

search or seizure reasonable.‖ (Illinois v. McArthur (2001) 531 U.S. 326, 330;

accord, People v. Robinson (2010) 47 Cal.4th 1104, 1120.)

Whether a search is reasonable within the meaning of the Fourth

Amendment depends on the ― ‗totality of the circumstances.‘ ‖ (Samson, supra,

547 U.S. at p. 848; Ohio v. Robinette (1996) 519 U.S. 33, 39.) This test includes

an assessment of the degree to which a search promotes legitimate governmental

interests, balanced against the degree to which it intrudes upon an individual‘s

privacy. (Samson, supra, at p. 848; Houghton, supra, 526 U.S. at p. 300.) Both

we and the United States Supreme Court have employed traditional standards of

reasonableness to evaluate the constitutionality of warrantless vehicle searches10

and parole searches.11 Accordingly, we consider whether the officer‘s search here


10

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) 27 Cal.4th 60, 68 (officer may conduct a limited, warrantless search of
vehicle incident to traffic stop for license or registration when driver fails to
produce those documents).
11

See Samson, supra, 547 U.S. at page 848 (parole search condition upheld);

Reyes, supra, 19 Cal.4th at pages 750-754 (same); see also Knights, supra, 534
U.S. at pages 118-119 (probation search condition upheld).

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was reasonable, with a ―salient circumstance‖ being the presence of a parolee

subject to a search condition. (Knights, supra, 534 U.S. at p. 118; accord, Samson,

supra, 547 U.S. at p. 848; Sanders, supra, 31 Cal.4th at p. 333.)

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.12 Emphasizing that

defendant was not on parole, and that there was ―no evidence [defendant] knew his

passenger was a parolee,‖ the Court of Appeal found that defendant ―gave up none

of his own expectation of privacy, nor of his authority to prevent the officer‘s

search of the vehicle.‖ However, ― ‗[o]ur [inquiry] is not what the privacy

expectations of particular defendants in particular situations may be . . . . Our

[inquiry], in terms of the principles announced in Katz [v. United States (1967)
389 U.S. 347], is what expectations of privacy are constitutionally

―justifiable‖ . . . .‘ ‖ (Hudson v. Palmer (1984) 468 U.S. 517, 525, fn. 7, quoting

United States v. White (1971) 401 U.S. 745, 751-752 (plurality opn. of White, J.).)

Here, defendant knowingly allowed passengers to ride in his car, thereby opening

its interior to them and allowing them to see and access some of its contents. (Cf.

United States v. Jacobsen (1984) 466 U.S. 109, 117; Smith v. Maryland (1979)
442 U.S. 735, 743-744.) Once an officer learns of the passenger‘s parole status

(see Sanders, supra, 31 Cal.4th at p. 330; Robles, supra, 23 Cal.4th at p. 799),13

and informs the driver of it, the driver cannot reasonably expect to shield the

interior of the car completely from any search aimed at uncovering criminal


12

Notably, defendant does not adopt this position in his briefing before us.

13

Because California law requires that all parolees be subject to warrantless

and suspicionless 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.)

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activity by the parolee. However, the driver can reasonably expect that the scope

of the search will be ― ‗ strictly tied to and justified by ‘ ‖ the circumstances

authorizing it (Terry v. Ohio (1968) 392 U.S. 1, 19), and that the search will not be

conducted in an arbitrary, capricious, or harassing manner (Woods, supra, 21

Cal.4th at p. 682; Reyes, supra, 19 Cal.4th at pp. 752-754; see also Samson, supra,

547 U.S. at p. 856).

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.

15

---

As noted, the state‘s interest in supervising parolees is substantial.

(Samson, supra, 547 U.S. at p. 853.) Parolees ― ‗are more likely to commit future

criminal offenses‘ ‖ (ibid.) and pose ―grave safety concerns that attend recidivism‖

(id. at p. 854).14 Additionally, because of their conditional release into society,

parolees have an even greater ―incentive to conceal their criminal activities and

quickly dispose of incriminating evidence than the ordinary criminal . . . .‖

(Knights, supra, 534 U.S. at p. 120 [discussing probationers]; accord, Samson,

supra, at pp. 854-855 [the ―incentive-to-conceal concern‖ applies with ―even

greater force‖ to parolees].) Warrantless, suspicionless searches are a vital part of

effective parole supervision (Reyes, supra, 19 Cal.4th at p. 752; Samson, supra, at

p. 854), and are mandated in California as a condition of every parolee‘s release

(Pen. Code, § 3067, subd. (b)(3); Cal. Code Regs., tit. 15, § 2511, subd. (b)(4)).

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, 428 U.S. at p. 368; Cardwell v. Lewis (1974) 417 U.S. 583, 590.) A

driver‘s expectation of privacy is further diminished when he allows others to ride

in his car, thus ceding some measure of privacy to them. (Cf. United States v.

Jacobsen, supra, 466 U.S. at p. 117; Smith v. Maryland, supra, 442 U.S. at pp.

743-744; Sanders, supra, 31 Cal.4th at p. 330.)

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 the car except the front passenger seat where the parolee was sitting.‖ In so


14

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 from 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) 463 U.S. 1032, 1047.)

16

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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) 540 U.S. 366, a police officer conducting a routine

traffic stop obtained the driver‘s consent to search the car. He located a large sum

of cash in the glove box and five plastic baggies containing cocaine hidden behind

the backseat armrest. Upon questioning, the driver and two passengers declined to

say who owned the drugs or money. (Id. at pp. 368-369.) Observing that the

baggies of cocaine were in an area ―accessible‖ to all three passengers, the court

found it ―an entirely reasonable inference from these facts that any or all three of

the occupants [including the front seat passenger] had knowledge of, and exercised

dominion and control over, the cocaine,‖ thus justifying their arrests. (Id. at

p. 372.) Similarly, in People v. Vermouth (1971) 20 Cal.App.3d 746, police

officers stopped a car for a traffic violation. The Court of Appeal held that the

officers had probable cause to arrest both the passenger and the driver for

possession of a billy club seen resting against the driver‘s door. (Id. at p. 756.)

Moreover, the Court of Appeal‘s rigid view does not reflect modern social

conventions, which provide a framework for assessing whether an expectation of

privacy is reasonable. (Oliver v. United States (1984) 466 U.S. 170, 178 & fn. 8;

Rakas v. Illinois (1978) 439 U.S. 128, 143, fn. 12; cf. Georgia v. Randolph (2006)
547 U.S. 103, 111-112.) The vehicle here was a noncommercial five-passenger

car. Typically, automobile occupants do not act as if they were confined in

separate divided compartments, coats and other possessions piled on their laps,

elbows clamped at their sides. A front seat passenger, even if only a casual

acquaintance of the driver, will likely feel free to stow personal items in available

17

---

space at his or her feet, in the door pocket, or in the backseat, until they are needed

or the journey ends. Even if the driver‘s personal preferences are otherwise, it is

not reasonable to expect that the passengers will always adhere to them. The

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. As the

Houghton court observed, an occupant of an automobile may hide contraband

without the other occupants‘ knowledge or permission. (Houghton, supra, 526

U.S. at p. 305.) For these reasons, the permissible scope of a search is ―not

defined by the subjective intent of those asserting the rights.‖ (Hudson v. Palmer,

supra, 468 U.S. at p. 525, fn. 7.) Rather, a reasonable officer may take all of the

circumstances into account when conducting a parole search of an automobile for

property, contraband, or weapons associated with the parolee.15

In addition, a standard five-passenger automobile generally affords ready

access to areas in both the front and back seats. (See New York v. Belton (1981)
453 U.S. 454, 460 (Belton), holding limited in part on another ground in Gant,


15

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. 2, 5-6.) 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
modern 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. 6.) 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, 547 U.S. at p. 112.)

18

---

supra, 556 U.S. 332, 344-348.) This fact is particularly significant given the

Supreme Court‘s observation that parolees have a heightened incentive to conceal

or quickly dispose of incriminating evidence. (Samson, supra, 547 U.S. at pp.

854-855; accord, Knights, supra, 534 U.S. at p. 120.) A parolee, more than an

ordinary passenger, may be expected to conceal contraband or weapons in places

other than on his person, well aware that his own privacy rights are severely

limited. Under the Court of Appeal‘s approach, a parolee passenger could

frustrate a valid parole search simply by sitting in the front seat of the car and

placing or discarding his belongings in the back. Imposing such an artificially

narrow rule frustrates the legitimate goals of parole. ―When balancing the

competing interests, our determinations of ‗reasonableness‘ under the Fourth

Amendment must take account of [the] practical realities‖ facing the officer.

(Houghton, supra, 526 U.S. at p. 306.)

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.16 Within these limits, the officer need not articulate specific facts

indicating that the parolee has actually placed property or contraband in a

16

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.

19

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particular location in the passenger compartment before searching that area. Such

facts are not required because the parole search clause explicitly authorizes a

search ―without cause.‖ (Pen. Code, § 3067, subd. (b)(3); see also Reyes, supra,

19 Cal.4th at pp. 753-754.)17

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 could have stowed

his personal property in the backseat, tossed items behind him, or reached back to

place them in accessible areas upon encountering the police. Accordingly, under

these circumstances, the parolee status of the front seat passenger justified a

warrantless search of the backseat area where the chips bag and shoes were

located.18


17

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) 469 U.S. 325, 342, fn. 8; accord, Samson, supra, 547
U.S. at pp. 846, 857; see also In re Randy G. (2001) 26 Cal.4th 556, 565.)
18

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.


(footnote continued on next page)

20

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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) 395 U.S. 752, 763 (Chimel).)

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, 453 U.S. 454, observed that ―the relatively narrow compass of the

passenger compartment of an automobile‖ is in fact ―generally, even if not

inevitably, within ‗the area into which an arrestee might reach in order to grab a

weapon or evidentiary ite[m].‘ ‖ (Id. at p. 460, quoting Chimel, supra, 395 U.S. at

p. 763.) Accordingly, the court adopted a bright-line rule that ―when a policeman

has made a lawful custodial arrest of the occupant of an automobile, he may, as a

contemporaneous incident of that arrest, search the passenger compartment of that

automobile.‖ (Belton, supra, at p. 460, fns. omitted.)

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



(footnote continued from previous page)

Johnson (2009) 555 U.S. 323, 331-332 [permissible patdown of occupants based
on reasonable suspicion that they may be armed and dangerous]; New York v.
Class, supra, 475 U.S. at pp. 108, 114 [permissible seizure of a weapon protruding
from under driver‘s seat]; Michigan v. Long, supra, 463 U.S. at pp. 1045-1050
[permissible search of passenger compartment of automobile based on reasonable
suspicion that suspect is dangerous and may gain immediate control of weapon].)

21

---

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.19 Allowing a search of areas where, under the

circumstances, the officer reasonably expects that the parolee could have placed or

discarded items furthers the purposes of a warrantless parole search to facilitate

close monitoring of the parolee‘s conduct and to deter the commission of crime.

(See Terry v. Ohio, supra, 392 U.S. at p. 19 [the scope of the search must be

commensurate with the rationale authorizing it].)

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. 5.) Our colleague would hold that a properly

conducted parole search is limited to ―the parolee‘s person and to ‗any property


19

In Gant, supra, 556 U.S. 332, a divided Supreme Court rejected a

sweeping interpretation of Belton that permitted automobile searches incident to
arrest even after the arrestee had been safely secured away from the vehicle.
(Gant, supra, at pp. 335, 341-347; id. at p. 354 (conc. opn. of Scalia, J.).) Because
concerns about officer safety and evidence destruction underlie this exception to
the warrant requirement, the court concluded that a vehicle search incident to an
arrest cannot be justified when these concerns are not implicated. (Id. at pp. 335,
338.) Accordingly, it held that the police may search the passenger compartment
of an automobile incident to arrest only when (1) ―the arrestee is unsecured and
within reaching distance of the passenger compartment at the time of the search‖
(id. at p. 343) or (2) there is reason to believe that evidence of the offense for
which the arrest was made might be found in the vehicle (id. at pp. 343-344, 351).
A close reading of Gant confirms that, under these two circumstances, Belton‘s
holding with respect to the permissible scope of an automobile search incident to
arrest remains intact. (People v. Nottoli (2011) 199 Cal.App.4th 531, 555.)


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. 6, 16), 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.

22

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under [the parolee‘s] control.‘ ‖ (Ibid., quoting Cal. Code Regs., tit. 15, § 2511,

subd. (b)(4).)20 He contends that 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.‖ (Conc. & dis. opn. of Liu, J.,

post, at p. 9.)

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. 5, 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) 447 U.S. 649,

656), as we have explained, our rule here does not derive from a theory of advance

consent by either the parolee or the driver. Rather, we assess the reasonableness

of this search based on the totality of the circumstances, with the passenger‘s

parole status, applicable search condition, and presence in a car all being salient

circumstances. (Samson, supra, 547 U.S. at p. 848; Knights, supra, 534 U.S. at p.

118; Sanders, supra, 31 Cal.4th at p. 333.) Finally, the authority Justice Liu cites

for his interpretation of ―control‖ amounts to six Court of Appeal decisions (conc.

& dis. opn. of Liu, J. at pp. 9-10), five of which involve searches of residences, not


20

We discuss in further detail below the limits on a parole search of items of

property located in an automobile. (Post, at pp. 25-26.)

23

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automobiles, and predate the most recent pronouncements from this court and the

United States Supreme Court on the validity of parole searches (see ante, at pp. 5-

6).21

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.‖ (Conc. & dis. opn.

of Liu, J., at p. 15.) It would 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, 540 U.S. 366 and People v. Vermouth, supra, 20

Cal.App.3d 746. (Conc. & dis. opn. of Liu, J., at p. 15.) While we consider those

cases illustrative, they are distinguishable in that they involved probable cause to

arrest, while this case involves a suspicionless search. Justice Liu further suggests

that the officer could have determined the relationship among the car‘s occupants

or sought an admission about who owned property located in the car. We have

already rejected the Court of Appeal‘s holding that would require evidence of

common authority over the car or admissions of property ownership before


21

We discuss People v. Baker (2008) 164 Cal.App.4th 1152 (Baker), the lone

Court of Appeal decision to confront a parole search of an automobile, post, at
pages 26-27.

24

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searching beyond the seat the parolee passenger physically occupied. Justice Liu

states that he would not endorse the Court of Appeal‘s rule. (Conc. & dis. opn. of

Liu, J., post, at p. 3.) Yet, in the final analysis his approach does just that.

In sum, because ―cause‖ is not required, an officer does not have to

articulate facts demonstrating that the parolee actually placed personal items or

discarded contraband in the open areas of the passenger compartment. That is not

to say, as Justice Liu asserts, that an officer can always search the open areas of

the passenger compartment of a standard five-passenger car. (Conc. & dis. opn. of

Liu, J., post, at pp. 2, 6.) Rather, an officer may search only those areas where he

or she reasonably expects, in light of all the circumstances, that the parolee could

have placed personal items or discarded contraband. Thus, a parole search of an

automobile based on a passenger‘s parole status does have reasonable limits. To

the extent he argues otherwise, Justice Liu criticizes a rule of his own articulation,

not the rule we adopt here.22



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. 2 & fn. 1.) Because there is no testimony

in the record that the contraband found inside these items was in plain view, we


22

We do not hold, categorically or otherwise, that an officer may always

search ―the back seat, the area behind the back seat headrests, the back seat 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. 2.) 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. 11.) 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.

25

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treat the officer‘s conduct as a search. (See United States v. Ross (1982) 456 U.S.

798, 822-823 [―the Fourth Amendment provides protection to the owner of every

container that conceals its contents from plain view‖].)

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, 526 U.S. at p. 303.) As noted,

California‘s parole search clause authorizes warrantless and suspicionless parole

searches. (Pen. Code, § 3067, subd. (b)(3); see also Reyes, supra, 19 Cal.4th at pp.

753-754.) Taking these factors into account, along with the ―the relatively narrow

compass of the passenger compartment of an automobile‖ (Belton, supra, 453 U.S.

at p. 460), we hold that an officer conducting a search of a vehicle‘s passenger

compartment based on a passenger‘s parole status may search items of personal

property if the officer reasonably believes that the parolee owns the items or has

the ability to exert control over them.23

Defendant argues that the officer‘s search of the shoes and chips bag was

unlawful because ―by virtue of their very nature and location, [these] items in the

back seat . . . were either obviously feminine‖ or clearly belonged to the woman

passenger in the backseat, rather than the male parolee in the front. He relies for

this point on Baker, supra, 164 Cal.App.4th 1152, but his argument lacks merit.

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


23

We use the term 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‖ ‘ . . . .‖ (Illinois v. Rodriguez (1990) 497 U.S. 177, 188;
accord, Sanders, supra, 31 Cal.4th at p. 334.)

26

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search unreasonable. It observed that ―a purse has been recognized as an

inherently private repository for personal items‖ (Baker, supra, 164 Cal.App.4th at

p. 1159) and that ―[h]ere, there is nothing to overcome the obvious presumption

that the purse belonged to the sole female occupant of the vehicle who was not

subject to a parole-condition search‖ (id. at p. 1160). The purse sat at the female

passenger‘s feet and the officer recounted no conduct, such as furtive movements,

by the driver towards the purse. (Id. at pp. 1156-1157.) The Court of Appeal

concluded that, ―on these facts . . . there could be no reasonable suspicion that the

purse belonged to the driver, that the driver exercised control or possession of the

purse, or that the purse contained anything belonging to the driver. [Citation.]‖

(Id. at p. 1159.)

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, 164 Cal.App.4th at p. 1159), and has

no distinct characteristics that would identify it as belonging to any particular

person. Unlike a purse, which is not generally shared by two or more people, a

chips bag is not so carefully guarded. Occupants of a car commonly share food

like a bag of chips during a journey. Once the bag‘s contents are consumed, it

becomes mere trash, or, in some instances, a receptacle for trash. Any occupant of

the car would be free to commandeer an empty chips bag to discard or conceal

items, without objection by the others. Further, while not dispositive, neither

nonparolee occupant of the car claimed exclusive control over the chips bag at the

time of the search. Considering these circumstances, it was objectively reasonable

27

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for the officer to believe that the parolee was able to reach back and conceal

contraband inside the chips bag.24

The shoes present a closer question. The record does not reveal the shoes‘

owner or whether the style of the shoes was gender specific. (See ante, at p. 2.) It

is the People‘s burden to present facts justifying a warrantless search. (Vale v.

Louisiana, supra, 399 U.S. at p. 34; Johnson, supra, 38 Cal.4th at pp. 723, 726;

Williams, supra, 20 Cal.4th at p. 127.) We conclude, however, that under the

circumstances of this case, the ambiguous record is not fatal to the People‘s

position.

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


24

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
pp. 19-20 & fn. 17.)


28

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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) 525 U.S. 83, 88.)25 ― ‗Fourth Amendment

rights are personal rights which, like some other constitutional rights, may not be

vicariously asserted.‘ ‖ (Rakas v. Illinois, supra, 439 U.S. at pp. 133-134, quoting

Alderman v. United States (1969) 394 U.S. 165, 174.) As it stands, the Attorney

General has not argued that defendant lacked a Fourth Amendment right to

challenge the search of the shoes. We conclude that the ambiguous record inured

to defendant‘s benefit. We further conclude, based on the factors identified above,

that the officer‘s search of the shoes was reasonable.

Because the officer could search the chips bag and shoes located in the

backseat of defendant‘s car based on the passenger‘s parole status and applicable

search condition, the trial court properly denied defendant‘s motion to suppress

evidence.


25

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.

29

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III. DISPOSITION

The judgment of the Court of Appeal is reversed.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.


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CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.

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 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 rule 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) 403

U.S. 443, 454-455, fns. omitted.) The rule is the same under the state

Constitution: ―It is axiomatic . . . that warrantless searches are per se unreasonable

under the California and federal Constitutions with only a few carefully

circumscribed exceptions, and that the People have the burden of proving that any

search without a warrant comes within one of those exceptions.‖ (People v. Laiwa

(1983) 34 Cal.3d 711, 725.)

1

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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 search or seizure, after which, defendants can respond by pointing

out any inadequacies in that justification.‖ (People v. Williams (1999) 20 Cal.4th

119, 136 (Williams).)

In his motion to suppress, defendant challenged both his detention and the

ensuing warrantless search of his car. In opposition to the motion, the district

attorney asserted the detention was lawful. The trial court ruled in favor of the

district attorney. While the district attorney‘s opposition mentioned in passing the

front seat passenger‘s parole condition, defendant did not respond, and the record

discloses neither any argument by the parties concerning the significance or the

permissible scope of the passenger‘s parole search condition, nor any ruling on the

point by the trial court.1 Although the burden is on the district attorney to justify a


1

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) 50 Cal.3d 1223, 1250.)

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.

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warrantless search, here the district attorney did so, to the satisfaction of the trial

court. If defendant thought otherwise, the burden was then on him to assert his

objection and make a record adequate to preserve it for appellate review (see

People v. Gordon, supra, 50 Cal.3d at p. 1250), even while the People bear the

ultimate burden of justifying the search (see Williams, supra, 20 Cal.4th 119, 127).

―Defendants who do not give the prosecution sufficient notice of [the]

inadequacies [of its justification for a challenged search] cannot raise the issue on

appeal. ‗[T]he scope of issues upon review must be limited to those raised during

argument . . . . This is an elemental matter of fairness in giving each of the parties

an opportunity adequately to litigate the facts and inferences relating to the

adverse party‘s contentions.‘ [Citation.]‖ (Id., at p 136.)

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 evident 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) 40 Cal.4th 1, 17, fn. 13.)2 This


2

―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) 17 Cal.4th 373, 393 (conc.


(footnote continued on next page)

3

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case illustrates the prudential rule‘s wisdom, as defendant‘s failure to raise the

parole search issue in the trial court, in response to the People‘s effort to justify the

search (see Williams, supra, 20 Cal.4th, 119, 136), prevented the development of a

factual record that might have obviated any perceived need to revisit the

permissible scope of warrantless searches. Unfortunately, the majority reaches out

to decide the Fourth Amendment issue, proclaiming categorically that ―the

Constitution permits a [warrantless] search of those areas of the passenger

compartment [of a third party‘s car] where the officer reasonably expects that the

parolee could have stowed personal belongings or discarded items when aware of

police activity.‖ (Maj. opn., ante, p. 1.) Given the majority‘s choice to speak to

the issue, I do no further offense to our prudential rule by noting my agreement

with Justice Liu that the majority‘s reasoning is unpersuasive.

WERDEGAR, J.

I CONCUR:

KENNARD, J.



(footnote continued from previous page)

opn. of Werdegar, J.); see People v. Reyes (1998) 19 Cal.4th 743, 767 (conc. &
dis. opn. by Werdegar, J.) [same].)

4

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CONCURRING AND DISSENTING OPINION BY LIU, J.




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 warrantless search.‖ (Ante, at p. 3 (conc. & dis. opn. of

Werdegar, J.).) 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 Transp. Auth. v.

Guardino (1995) 11 Cal.4th 220, 230), I agree with Justice Werdegar that the

prudent course here is to reverse the Court of Appeal based on defendant‘s

apparent forfeiture in the trial court. However, because the court has reached out

to announce a far-reaching constitutional rule, I write further to explain why

today‘s decision is unpersuasive on the merits.

The court 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

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compartment where the officer reasonably expects that the parolee could have

stowed personal belongings or discarded items when aware of police activity.‖

(Maj. opn., ante, at pp. 1, 19.) The court describes a search pursuant to this

standard as ―confined‖ and ―not without limits.‖ (Id. at p. 19.) But the logic of

today‘s holding appears to authorize a police officer, simply upon learning that the

front seat passenger is on parole, to search all open areas of the passenger

compartment of a standard five-passenger car. These areas include the back seat,

the area behind the back seat headrests, the back seat 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 these are all places where an officer may reasonably expect ―the

parolee could have stowed personal belongings or discarded items when aware of

police activity.‖ (Id. at pp. 1, 19.)

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. 18, fn. 15.) Indeed, it seems an unduly cramped

reading of the Fourth Amendment to say that the only 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.

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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. 1.) 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 officer

knows the passenger in that seat is a parolee. But nor would I hold, as the court

does today, that a lawful parole search may always go beyond the front passenger

seat. Instead, I would hold, as precedent dictates, that the reasonableness of a

search beyond the front passenger seat depends on the ― ‗totality of the

circumstances‘ ‖ in each case. (Samson v. California (2006) 547 U.S. 843, 848

(Samson).) Accordingly, I respectfully disagree with the broad rule adopted by the

court in derogation of the Fourth Amendment‘s protections.

I.

It is well established that California parolees ―have severely diminished

expectations of privacy by virtue of their status alone.‖ (Samson, supra, 547 U.S.

at p. 852.) As today‘s opinion notes: ―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

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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 also Cal. Code Regs.,

tit. 15, § 2356 [requiring the department staff to notify the prisoner of the

conditions of parole prior to release].)‖ (Maj. opn., ante, at p. 5.) The parole

search condition furthers the state‘s ― ‗ ―overwhelming interest‖ ‘ in supervising

parolees because ‗parolees . . . are more likely to commit future criminal

offenses‘ ‖ as well as the state‘s ―interests in reducing recidivism and thereby

promoting reintegration and positive citizenship among . . . parolees.‖ (Samson,

supra, 547 U.S. at p. 853.)

Although parolees have ―substantially diminished expectation[s] of

privacy‖ (Samson, supra, 547 U.S. at p. 855), our cases have been careful to

delimit the proper scope of a warrantless, suspicionless parole search where such a

search implicates the privacy interests of third parties. In the context of a

residential search, we have said that ―the expectation of privacy of cohabitants is

the same whether the search condition is a condition of probation or parole.‖

(People v. Sanders (2003) 31 Cal.4th 318, 330.) The cases involving persons who

are not on probation or parole living with a person who is (see maj. opn., ante, at

pp. 7–9) make clear that ―common or shared areas of their residence may be

searched by officers aware of an applicable search condition.‖ (People v. Robles

(2000) 23 Cal.4th 789, 798 (Robles).) At the same time, we have ―emphasized‖

that ―a search pursuant to a probation search clause may not exceed the scope of

the particular clause relied upon. [Citation.] Nor may such a search be undertaken

in a harassing or unreasonable manner. [Citations.] Moreover, officers generally

may only search those portions of the residence they reasonably believe the

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probationer has complete or joint control over. [Citation.]‖ (People v. Woods

(1999) 21 Cal.4th 668, 681–682 (Woods); see Robles, at p. 798 [nonprobationers

―retain valid privacy expectations in residential areas subject to their exclusive

access or control, so long as there is no basis for officers to reasonably believed

the probationer has authority over those areas‖].)

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. 12.)

In California, 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

property 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. 1.) 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. 20) 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. 17.) I suspect many law-abiding citizens who

5

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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. 1), including the back seat, the area behind the back seat headrests, the back

seat 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 back seat 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 them and not elsewhere in the vehicle. But a driver who picks up a friend

at the airport may expect that the passenger will place a suitcase on the back seat

or in the trunk of the automobile. As these examples suggest, it is questionable to

posit — as the court does without empirical or other authority — what social

conventions in an automobile are ―commonly held,‖ ―usual,‖ or ―typical.‖ (See id.

at pp. 18, fn. 15, 21.)

Because social conventions vary depending on the situation, the issue of

whether a car‘s back seat 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)
519 U.S. 33, 39: ―We have long held that the ‗touchstone of the Fourth

Amendment is reasonableness.‘ [Citation.] Reasonableness, in turn, is measured

in objective terms by examining the totality of the circumstances. [¶] In applying

this test we have consistently eschewed bright-line rules, instead emphasizing the

fact-specific nature of the reasonableness inquiry.‖ (Accord, Samson, supra, 547

U.S. at p. 848 [― ‗under our general Fourth Amendment approach‘ we ‗examin[e]

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the totality of the circumstances‘ to determine whether a search is reasonable

within the meaning of the Fourth Amendment‖]; U.S. v. Knights (2001) 534 U.S.

112, 118 [―we conclude that the search of Knights was reasonable under our

general Fourth Amendment approach of ‗examining the totality of the

circumstances‘ [citation]‖]; People v. Robinson (2010) 47 Cal.4th 1104, 1120

[― ‗As the text of the Fourth Amendment indicates, the ultimate measure of the

constitutionality of a government search is ―reasonableness.‖ ‘ [Citation.] [¶]

‗Reasonableness‘ is ‗measured in objective terms by examining the totality of the

circumstances . . . .‘ ‖].)

Although today‘s opinion purports to examine the totality of the

circumstances (maj. opn., ante, at pp. 13–14), it is clear that the court does so at a

wholesale level rather 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. 2; see id. at p. 18,

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 ―[t]estimony at the suppression hearing

established that defendant and the parolee had known each other for

approximately three years at the time of the search.‖ (Ibid.) 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.

Given the deficiencies in the record, the court upholds Officer Mihai‘s

search of the back seat and the property found there on the basis of general

considerations rather than facts specific to this case. Those considerations include

the ―general[]‖ characteristics and layout of a standard, non-commercial, five-

passenger car (maj. opn., ante, at pp. 18, 20), the ―[t]ypical[]‖ behavior of

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occupants in a standard five-passenger car according to ―modern social

conventions‖ (id. at pp. 17–18), a general statement of ―the state‘s interest in

supervising parolees‖ (id. at p. 16), and a general statement of a driver‘s ―reduced

expectation of privacy with regard to an automobile‖ especially ―when he allows

others to ride in his car‖ (ibid.). Because this is what the court understands the

―totality of the circumstances‖ to mean, there is no real significance to the limiting

phrases in the court‘s statement of its holding: ―Considering the layout of a

standard five-passenger car, it was objectively reasonable for the officer to expect

that this parolee could have stowed his personal property in the back seat, tossed

items behind him, or reached back to place them in accessible areas upon

encountering the police. Accordingly, under these circumstances, the parolee

status of the front seat passenger justified a warrantless search of the backseat area

where the chips bag and shoes were located.‖ (Id. at pp. 20–21, italics added.)

How does it matter that the present case involved ―this parolee‖ ―under these

circumstances‖ when today‘s opinion authorizes a search of the same breadth with

respect to any parolee riding in the front passenger seat of any standard five-

passenger car?

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. 1,

26). 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 construed property under a parolee‘s control to

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encompass portions of a house ―to which [the parolee] had access‖ (People v.

LaJocies (1981) 119 Cal.App.3d 947, 955), I am aware of no authority — and the

court cites none — that supports today‘s expansive and unusual interpretation of

―control‖ as that term is used in the parole search condition.

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) 164 Cal.App.4th

1152, the male driver of a car stopped for speeding was on parole. The female

defendant, Baker, was the front seat passenger, and her purse was on the floor at

her feet. Upon discovering that the driver was on parole, the officer ordered the

occupants out of the car. ―Baker did so without taking her purse and without

asserting ownership of the purse.‖ (Id. at p. 1156.) The officer searched the

vehicle and found drugs in Baker‘s purse. The Court of Appeal held the search

unlawful on the ground that ―there was no reasonable basis to believe the purse

belonged to anyone other than the sole female passenger.‖ (Id. at p. 1160.) The

court reached this conclusion even though Baker did not claim ownership of the

purse and even though the parolee who drove the car could have easily stowed

contraband in the purse.

In People v. Veronica (1980) 107 Cal.App.3d 906, the court similarly

suppressed contraband found in a purse during a parole search of a male parolee‘s

residence. The court explained: ―We do not, of course, suggest that simply

because a garment or container is clearly designed for a person other than the

parolee, it may never be searched under the parolee‘s prerelease consent. The

particular circumstances may indicate that the object is, in fact, one of the

parolee‘s own effects or, at least, jointly possessed by him and another. In this

case, however, there was simply nothing to overcome the obvious presumption

that the purse was hers, not his.‖ (Id. at p. 909; cf. People v. Boyd (1990) 224

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Cal.App.3d 736, 749–751 (Boyd) [upholding search of a handbag where

― ‗articulable facts‘ ‖ supported a rational inference that the handbag was owned

or controlled by a parolee].)

In People v. Montoya (1981) 114 Cal.App.3d 556, the court suppressed

drugs found in a pair of jeans during a parole search of a residence. The

circumstances indicated that the jeans belonged to one of two female guests, one

of whom was on parole. The court held the search unlawful on the ground that the

officer failed to determine ―who owned the jeans before searching them‖ when ―he

had no more reason to believe [the jeans] belonged to [the parolee] rather than to

appellant.‖ (Id. at p. 562.) A number of probation search cases similarly focus on

the reasonableness of an officer‘s belief as to who owned or possessed the area or

item searched. (See, e.g., People v. Tidiago (1981) 123 Cal.App.3d 301, 308

(Tidiago) [finding substantial evidence that ―it was unreasonable for officers to

believe that the [searched] residence was occupied or owned by respondent‖];

People v. Alders (1978) 87 Cal.App.3d 313, 317–318 [invalidating search of ―a

distinctly female coat‖ because ―there was no reason to suppose [the coat] was

jointly shared by [the female defendant] and [the male probationer].)

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

particular search condition.‖ (Tidiago, supra, 123 Cal.App.3d at p. 306.) The

cases also demonstrate that whether an officer reasonably believed an item of

property is under a parolee‘s ―control‖ within the meaning of the parole search

condition must be determined case by case based on indicia of ownership,

authority, or possession, not mere physical access. By focusing the inquiry in this

way, the cases give due regard to the fact that property that does not belong to the

parolee likely belongs to someone else. To equate ―control‖ with ―ability to exert

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control,‖ as the court does today, eviscerates any limit on the scope of a parole

search as applied to the open areas of a car‘s passenger compartment,

notwithstanding the privacy interests of third parties.

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. 19, 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. 1; see,

e.g., People v. Chavers (1983) 33 Cal.3d 462, 466 [firearm found in glove

compartment]; People v. Walker (1969) 273 Cal.App.2d 720, 723 [two firearms

found in glove compartment]; People v. Prochnau (1967) 257 Cal.App.2d 22, 25–

26 [two firearms found in glove compartment of car driven by parolee]; People v.

Allen (1967) 254 Cal.App.2d 597, 602 [drugs found in glove compartment].)

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. 19, fn. 16.) That is exactly right. But why shouldn‘t the reasonableness of

searching the back seat 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

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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, 547 U.S. at p. 848.)

The court notes that ―a driver has a reduced expectation of privacy with

regard to an automobile.‖ (Maj. opn., ante, at p. 16.) That is true, but the

automobile search cases serve only to highlight how (literally) unprecedented

today‘s opinion is. This is not a case involving an inventory search of an

impounded vehicle (South Dakota v. Opperman (1976) 428 U.S. 364), a search

incident to arrest (New York v. Belton (1981) 453 U.S. 454), a protective search for

weapons based on specific, articulable facts indicating that a suspect is dangerous

(Michigan v. Long (1983) 463 U.S. 1032), or a search for a vehicle identification

number, license, registration, or other information that a driver is legally obligated

to disclose (New York v. Class (1986) 475 U.S. 106; In re Arturo D. (2002) 27

Cal.4th 60). This is not a case where the police found contraband in plain view.

(Maj. opn., ante, at p. 25.) And this is not a case where the police had probable

cause to believe that the car or the belongings or containers within it contained

evidence or contraband. (Wyoming v. Houghton (1999) 526 U.S. 295; California

v. Acevedo (1991) 500 U.S. 565.) This case involves a suspicionless, warrantless

search of the passenger compartment based solely on the police officer‘s

knowledge that the front seat passenger was on parole. The automobile search

cases have never hinted, much less held, that this kind of search is valid under the

Fourth Amendment. Instead, the automobile search cases, while premised on a

reduced expectation of privacy, recognize that ―[a] citizen does not surrender all

the protections of the Fourth Amendment by entering an automobile.‖ (Class,

supra, 475 U.S. at p. 112.)

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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) 540 U.S. 366 (Pringle) and

People v. Vermouth (1971) 20 Cal.App.3d 746 (Vermouth) for the proposition that

―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.‖ (Maj. opn., ante, at

p. 17.) That is true, but equally important — and contrary to today‘s holding —

Pringle and Vermouth show that whether a police officer reasonably believes there

is a relationship between a front seat passenger and items elsewhere in the

passenger compartment depends on the totality of the circumstances in each case.

In Pringle, a police officer stopped a car for speeding and obtained the

driver‘s consent 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 back

seat 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

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high court noted that the cocaine behind the back seat armrest was ―accessible to

all three men.‖ (Pringle, supra, 540 U.S. at p. 372.) But the high court further

observed that the rolled-up cash was ―in the glove compartment directly in front of

Pringle‖ (ibid.), that ―[u]pon questioning, the three men failed to offer any

information with respect to the ownership of the cocaine or the money‖ (ibid.),

and that ―[t]he quantity of drugs and cash in the car indicated the likelihood of

drug dealing, an enterprise to which a dealer would be unlikely to admit an

innocent person with the potential to furnish evidence against him‖ (id. at p. 373).

Based on these facts, and not the mere accessibility of the cocaine, the high court

found it ―an entirely reasonable inference . . . that any or all three of the occupants

had knowledge of, and exercised dominion and control over, the cocaine.‖ (Id. at

p. 372.)

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 back seat 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 tire 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

between [the passenger and the driver], either defensive or offensive.‖ (Id. at

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p. 756.) The reasonableness of arresting the passenger for possession of the billy

club turned on the ―alliance‖ between the two men as inferred from the totality of

the circumstances, not on the mere accessibility of the billy club to the passenger.

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 said yes,

then it would have been subject to search. If no one 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, 540 U.S. at p. 372) and searching the rest of the car for additional

contraband. Even if a passenger other than the parolee claimed the chips bag,

Officer Mihai could have asked whether the chips had been shared with the

parolee. As to any such question, the officer need ―not be bound by the reply in

the face of overwhelming evidence of its falsity.‖ (Boyd, supra, 224 Cal.App.3d

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at p. 749.) The officer could have taken into account the relationship among the

car‘s occupants, the demeanor of the individuals questioned, and any other verbal

or observable indicators of what areas or property in the car were under the

parolee‘s control.

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. 24), my approach would not require Officer Mihai to have

witnessed the front seat passenger tossing contraband into the back seat area. It

requires only that an officer have a reasonable belief that the area or item searched

is owned, controlled, or possessed by the parolee. And the reasonableness of an

officer‘s belief will depend on the totality of the circumstances in each case.

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 pp. 21–22.) 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. 18.) Moreover, as noted, the

court declines to apply its ruling to ―closed compartments‖ (id. at p. 19, fn. 16),

even though such compartments are places where a parolee may readily stow or

discard evidence or contraband.

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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 back seat 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 pp. 27–28), 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 presented on the

facts of this case and that we can decide such issues when they arise. (Maj. opn.,

ante, at p. 19, fn. 16, p. 25, 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 to, or ride

with, a stranger or mere acquaintance. Under ―commonly held social

conventions‖ (maj. opn., ante, at p. 20), those citizens had no reason to think that a

front seat passenger invariably would have ―control‖ over the open areas of a car‘s

passenger compartment. They had no reason to think that the passenger

compartment or items of property located in it would be subject to a suspicionless,

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warrantless search simply because the front seat passenger turned out to be a

parolee.

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) 501 U.S. 429, 438.) Just as ―[m]any

law-abiding citizens might choose not to open their homes to probationers if doing

so were to result in the validation of arbitrary police action‖ (Robles, supra, 23

Cal.4th at p. 799), so too many law-abiding citizens might decline to spare the air,

to help a person in need, or to otherwise be a good Samaritan because doing so

may result in a suspicionless invasion of their privacy.

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.

LIU, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Schmitz
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 187 Cal.App.4th 722
Rehearing Granted

__________________________________________________________________________________

Opinion No. S186707
Date Filed: December 3, 2012
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: James Howard Poole

__________________________________________________________________________________

Counsel:

William D. Farber, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Steven T. Oetting, Emily
R. Hanks and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

William D. Farber
369-B Third Street, #164
San Rafael, CA 94901
(415) 472-7279

Theodore M. Cropley
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-3196

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Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case presents the following issue: When conducting a vehicle search authorized by a passenger's parole condition, can the police search any areas of the vehicle's interior that appear reasonably accessible to the passenger?

Opinion Information

Date:	Citation:	Docket Number:	Cross Referenced Cases:
Mon, 12/03/2012	55 Cal. 4th 909	S186707	288 P.3d 1259 149 Cal. Rptr. 3d 640

Opinion Authors
Opinion	Justice Carol A. Corrigan
Concur	Justice Goodwin Liu, Justice Kathryn M. Werdegar
Dissent	Justice Goodwin Liu, Justice Kathryn M. Werdegar

Brief Downloads
Respondent's Petition for Review.pdf (1083766 bytes) - Respondent's Petition for Review
Respondent's Opening Brief on the Merits.pdf (1930459 bytes) - Respondent's Opening Brief on the Merits
Appellant's Answer Brief on the Merits.pdf (1321287 bytes) - Appellant's Answer Brief on the Merits
Respondent's Reply Brief on the Merits.pdf (840542 bytes) - Respondent's Reply Brief on the Merits

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Jun 6, 2013 Annotated by Amanda Brouillette

FACTS:On November 24, 2006, Mr. Schmitz was driving with 3 passengers: a man in the front seat, and a woman and child in the back seat.After he turned into an alley and made a U-turn, Mr. Schmitz was pulled over by Officer Mihai. She asked if he was lost, and he said no, he just didn't want to make a U-turn on the street. Officer Mihai noticed Mr. Schmitz had abscesses on his arms, which she associated with drug use. She asked if Mr. Schitz was on parole, and when he said no, she asked for permission to search the car. Mr. Schmitz did not respond, but the male passenger stated that he was on parole. On the basis of that information, Officer Mihai removed everyone from the car and performed a search. During the search, she found a syringe cap in a woman's purse, 2 syringes in a chips bag, and methamphetamine in a pair of shoes. PROCEDURAL HISTORY: Mr. Schmitz filed a motion to suppress the evidence, which was denied. He then pled guilty to 4 misdemeanor counts. After being sentenced, Mr. Schmitz appealed the denial of his motion to suppress. The Court of Appeal reversed the district court, holding that the search was not justified by the front seat passenger's parole status. It believed Mr. Schmitz was entitled to privacy in all areas of the car except the seat where the parolee was sitting. Thus, the Court of Appeal found the backseat was off limits for a warrantless search based on the parole status of the front seat passenger. ISSUES: Is a warrantless search of the backseat of a vehicle justifiable solely because the front seat passenger is on parole? If so, what is the permissible scope of a search of property in the car? HOLDING: A "vehicle search based on a passenger's parole status may extend beyond the parolee's person and the seat he or she occupies...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." The reasonableness of the officer's belief is based on the totality of the circumstances. ANALYSIS: A search without a warrant is unreasonable under the Fourth Amendment unless it falls into one of the few exceptions. California has a parole search clause, which is one of those exceptions under Samson v. California. This means that, in California, a parolee, his residence, and any property under is control may be searched at any time without suspicion and without a warrant. This notion becomes problematic when the rights of third parties might be infringed. Most of the relevant prior cases deal with this issue in the context of a residence. In People v. Woods, the California Supreme Court held that an officer could search those areas of a residence he reasonably believed a probationer had complete or joint control over, thus permitting the search of an apartment's only bedroom. This decision was driven largely by the "common authority" theory of consent, under which the other residents consented to having common areas searched when they consented to living with a probationer. The California Court of Appeal analogized to the situation in Woods to hold the search unreasonable because there was no indication that the driver ceded any control at all to the parolee, other than the seat he was in. The California Supreme Court found this analogy inapt, since the sanctity of the home demands more respect than the car. In South Dakota v. Opperman, the Supreme Court made it clear that drivers and passengers have a reduced expectation of privacy and that cars have been subject to warrantless searches that would not be upheld in homes. The California Supreme Court here also found consent in general to be inapt because probation is a matter of consent, whereas the terms of parole are imposed and must be accepted. As such, the court found that a balancing test analyzing the totality of the circumstances was the appropriate approach. Thus the court goes on to balance the government's interests in conducting the search with the intrusion on individual privacy. The court finds it irrelevant that there is no indication Mr. Schmitz knew his passenger was a parolee. The main purpose of search and seizure restriction is to deter unlawful police conduct, so the key issue is whether the officer knew of the passenger's parole status. In analyzing the totality of the circumstances, the court finds the state interest in supervising parolees to be substantial because they pose a recidivism risk and have incentive to conceal or quickly dispose of any evidence of criminal activity. On the other side of the balance, the court finds that Mr. Schmitz has a reduced privacy interest by being in a car, and this expectation of privacy is further reduced by the fact that he invited passengers in. The court notes that a car does not function as if divided into pieces, but rather that passengers are generally free to store their belongings throughout the vehicle. Furthermore, given the risks parolees would face if found with contraband, they have heightened incentive to hide such items away from their person and immediate vicinity. Given these interests, the court concludes that a search may extend to areas the officer reasonably believes the parolee could have stored contraband. The officer doesn't need evidence the parolee actually placed something in an area before searching it. The court found the parolee could have tossed personal belongings behind him or stored them in the backseat. As such, the search of the backseat was reasonable. The court then applies similar reasoning and determines that an officer can search personal property located within the vehicle if the officer reasonably believe the parolee owns them or has the ability to exert control over them. The court determines that any occupant of a vehicle would feel free to dispose of items in an empty bag. Similarly, regardless of ownership, the court determines that it was objectively reasonable for the officer to believe the parolee could have reached behind him and slipped contraband into an open shoe. Thus, the searches in question were permissible and the decision of the Court of Appeals was reversed. Justice Werdegar concurred in the reversal of the Court of Appeals opinion, but not in the rationale. Justice Werdegar believed Mr. Schmitz did not properly raise the parole search issue in the trial court, so he forfeited the right to bring it up on appeal. Justice Liu similarly concurred in the reversal but not in the rationale. He agreed with Justice Werdegar's forfeiture argument, especially in light of the doctrine of constitutional avoidance. Consitutional avoidance means that the court should avoid deciding constitutional issues unless it is absolutely necessary, which Justice Liu believed it was not in the case. Because the majority reached the constitutional issue, however, he went on to state that he believed the court's holding was too broad and did not take into account the particularized facts of the case. It put too high a burden on the driver of a vehicle. The "ability to exert control" test allows search of almost the entire vehicle. Rather than statically apply this test, Justice Liu would hold true to the totality of the circumstances test. He makes it clear that, although he supports the reversal because he believes the issue was forfeited, he disagrees with the majority's determination of reasonableness.