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
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
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)


                                           3
        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.)



                                          4
                                  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

                                           5
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.



                                            6
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.)



                                          7
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

                                           8
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.).)



                                           9
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.



                                              10
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)

                                           11
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.)



                                         12
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).



                                         13
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.)



                                         14
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
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
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
        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
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
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
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
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
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
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
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
                             III. DISPOSITION
     The judgment of the Court of Appeal is reversed.
                                                        CORRIGAN, J.


WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.




                                     30
    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
       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.




                                           2
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
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
          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


                                         1
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.



                                          2
       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

                                           3
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

                                           4
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
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]

                                           6
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

                                           7
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

                                           8
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

                                          9
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

                                         10
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

                                         11
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.)



                                          12
       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

                                          13
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

                                          14
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

                                         15
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.



                                          16
       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,

                                          17
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.




                                         18
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.
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
