Filed 7/7/20 (unmodified opn. attached)

                     CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                                     DIVISION SIX


 THE PEOPLE,                                    2d Crim. No. B295921
                                             (Super. Ct. No. 2017023660)
      Plaintiff and Respondent,                   (Ventura County)

 v.                                            ORDER MODIFYING
                                             OPINION AND DENYING
 LUCIO SEDENO ROSAS,                        REHEARING [NO CHANGE
                                                 IN JUDGMENT]
      Defendant and Appellant.


       THE COURT:
       The opinion filed in this matter on June 8, 2020, is modified
as follows:

      1. On page 13, the first full paragraph beginning “Aside
from being forfeited,” is deleted.

        2. On page 13, in the second paragraph, the first sentence
beginning “In any event” is deleted and replaced with the
following:
         Even assuming that this theory is properly raised for the
first time on appeal, the record does not support a finding that
Officer Coronel had reasonable suspicion to search under the
blanket for weapons.
       3. On the last page, counsel for appellant is modified to
state:
       Richard B. Lennon, Emma Gunderson, under appointment
by the Court of Appeal, for Defendant and Appellant.

     These modifications do not change the judgment.
     Respondent’s petition for rehearing is denied.




                               2
Filed 6/8/20 (unmodified opinion)

                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                                DIVISION SIX


 THE PEOPLE,                               2d Crim. No. B295921
                                        (Super. Ct. No. 2017023660)
      Plaintiff and Respondent,              (Ventura County)

 v.

 LUCIO SEDENO ROSAS,

      Defendant and Appellant.


       Lucio Sedeno Rosas appeals the judgment entered after he
pleaded guilty to possessing methamphetamine with a prior
conviction that required him to be registered as a sex offender.
(Health & Saf. Code, § 11377, subd. (a); Pen. Code,1 § 290, subd.
(c).) In exchange for his plea, a misdemeanor charge of
possessing drug paraphernalia, i.e., a methamphetamine pipe
(Health & Saf. Code § 11364, subd. (a)) was dismissed.
Imposition of sentence was suspended and appellant was placed
on three years formal probation under Proposition 36 (§ 1210.1)
with various terms and conditions.


      All statutory references are to the Penal Code unless
        1

otherwise stated.
       Appellant contends the trial court erred in denying his
motion to suppress the evidence obtained from the warrantless
searches of his person and vehicle (§ 1538.5) because the People
did not meet their burden to justify either search under the
Fourth Amendment. We agree. Both searches were premised
upon erroneous information that appellant was on probation.
Even assuming that the officers who conducted the searches
reasonably concluded from this information that appellant was
on probation, they had no reason to believe he was subject to
search terms as a condition of that probation. It is well-settled
that the probation exception to the warrant requirement cannot
be satisfied under these circumstances. (See, e.g., People v.
Thomas (2018) 29 Cal.App.5th 1107, 1114.) Moreover, the People
offered no evidence to meet their burden of proving that the
evidence was nevertheless admissible under the good faith
exception to the exclusionary rule. Accordingly, we reverse.
             FACTS AND PROCEDURAL HISTORY
       The relevant facts are derived from the transcript of the
hearing on appellant’s suppression motion and other evidence
admitted at the hearing. At around 2:00 a.m. on July 3, 2017,
Oxnard Police Officers Ignacio Coronel and Christopher Salvio
were dispatched to a residential address in the 700 block of
Forest Park Boulevard in response to a report of a suspicious
person in a passenger truck in front of the residence. When the
officers arrived at the location, they saw appellant sitting in the
driver’s seat of a parked truck with the driver’s side door open.
       As reflected in video footage captured on Officer Salvio’s
body cam,2 the officer approached appellant and asked him where

      2 The video footage was admitted as a defense exhibit along
with a transcript of the conversations it depicts.



                                 2
he lived. Appellant replied that he lived just two houses away
and had come outside to smoke a cigarette and listen to music.
Appellant gave his name and address, said he did not have a
driver’s license, and added that he had a state identification card
but did not have it on him. During this exchange, Officer Coronel
walked over to the front passenger window of the truck, shone a
flashlight through the slightly-open window and into the front
passenger compartment, and moved the flashlight around to
illuminate the compartment.
       In response to further questioning, appellant provided
Officer Salvio with his date of birth and said the truck belonged
to his father Alberto Sedeno, with whom he lived. He also
retrieved the truck’s registration card from the glove box and
gave it to Officer Salvio. The registration card reflected that the
truck was registered to Alberto Sedeno who lived at the address
appellant had given. The officer asked appellant “Do you have
any probation or parole or anything like that?” Appellant replied,
“No.”
       Officer Salvio retained the registration card and called
police dispatch to run a records check to confirm appellant’s
identity and determine if he had any warrants or was on
probation or parole. Officer Salvio continued to talk to appellant
while waiting for this information. Approximately two minutes
into the encounter, Officer Coronel turned off his flashlight but
remained in his position by the front passenger window. As
Officer Salvio continued to talk to appellant, Officer Coronel
turned his flashlight on again, pointed the end of the light
through the slightly-open front passenger window, and began
moving the light around again to illuminate the interior.




                                3
       Approximately four minutes into the encounter, the
dispatcher verified appellant’s identity and address and stated
that appellant was “on probation out of Kern County for [a] 647.6
[and] also a 290 registrant.” Officer Coronel, who heard
everything the dispatcher was saying, turned off his flashlight
and remained in his position by the front passenger window.
Officer Salvio questioned appellant about his record and asked
“What’d you do to get yourself registered as a 290?” Appellant
replied that “[t]his one time [he] was walking the streets and [he]
accidentally . . . grabbed [a] girl and tried to kiss her.” During
this exchange, Officer Salvio proceeded to ask appellant for his
middle name, height, weight, and eye color, and had him repeat
his date of birth. After appellant conveyed this information,
Officer Salvio asked Officer Coronel, “Anything on that end,
Ignacio?” Officer Coronel replied, “No.”
       After a brief period of silence, Officer Salvio told appellant
“you’re on probation, you told me no.” Appellant reiterated that
he was not on probation and Officer Salvio replied, “You are on
probation. They just told me you’re on probation.” Appellant
repeated that he was not on probation and did not have to report
to anyone and the officer interjected, “You don’t report, then
you’re on summary probably.” After appellant once again verified
his address, Officer Salvio said, “So, you don’t report to a P.O.,
but . . . you are on probation.” Appellant replied, “Oh, okay. I – I
didn’t know about that.” Appellant added that when he had been
on probation before he “would go and talk to [his] probation
officer but . . . they stopped . . . a long time ago.” At that point,
the body cam video footage ended.
       At the outset of the suppression hearing, the parties
stipulated that appellant was not on probation and that the




                                 4
information conveyed by the dispatcher to the contrary was
erroneous. Officer Salvio testified that he decided to conduct a
probation search of appellant based upon the information he had
received from dispatch. In appellant’s pocket, the officer found a
bag containing a substance that appeared to be
methamphetamine. Officer Salvio then conveyed that
information to Officer Coronel, who subsequently questioned
appellant about the “crystalline substance” that had been found
on his person.
      Under cross examination by defense counsel, Officer Salvio
acknowledged that the dispatcher did not tell him that appellant
was subject to search terms as a condition of his probation.
Following recross-examination by defense counsel, the court
questioned Officer Salvio as follows: The court: “[Dispatch] made
no mention, one way or the other, whether [appellant] had search
terms, I take it; is that correct? [¶] [Officer Salvio]: That is
correct, your Honor. [¶] The Court: Did that cause you to
assume that he had search terms? [¶] [Officer Salvio]: “Yes,
your Honor. [¶] The court: Okay. Why did that cause you to
assume that? [¶] [Officer Salvio]: At that time, your Honor, I
was fairly – I was a fairly new officer and I believed probation to
commonly be associated with supervised release, which usually
includes search terms. [¶] The court: Okay. All right. So that
was common in your experience, I take it, then? [¶] [Officer
Salvio]: Yes, your Honor.” The court then asked the prosecutor if
she had “[a]nything further on that” and the prosecutor replied,
“No, your Honor.”
      Officer Coronel testified on direct examination that as he
was looking through the front passenger window of the truck, he
saw “a lot of things on top of a small blanket that was covering




                                5
the bottom portion of the seat and under that carpet [sic] there
was a bulge.” Officer Coronel added “[t]hat bulk—I didn’t
know—I could tell that there was something under there;
however, I was not sure. I suspected it might be . . . a weapon or
something, contraband.” The officer went on to testify that
“[w]hen [appellant] directed his attention to Officer Salvio, I took
the opportunity to reach through the cracked window and
uncover the blanket.” Under the blanket, the officer discovered a
glass pipe with residue that appeared to be methamphetamine.
       In response to further questioning by the prosecutor,
Officer Coronel testified that he believed he did not discover the
pipe until after the officers had received the information that
appellant was on probation. After reviewing his report of the
incident, the officer acknowledged that he first questioned
appellant about the pipe while appellant “was seated next to the
vehicle, somewhere along the sidewalk.” At that time, he also
asked appellant about “the crystalized [sic] substance that was
found on his person” and appellant confirmed it was
approximately one gram of methamphetamine. Appellant was
subsequently cited for violations of Health and Safety Code
sections 11377, subdivision (a) and 11364, subd. (a), and was
released with a notice to appear.
       On cross-examination, Officer Coronel was asked to view
Officer Salvio’s body cam footage. After watching the video, the
officer acknowledged conveying to Officer Salvio that he had not
seen anything inside the truck that gave him reasonable
suspicion or probable cause to search it.
       Following the presentation of evidence at the suppression
hearing, appellant argued he was unlawfully detained at the
inception of the encounter and that he and his father’s truck were




                                 6
unlawfully searched. Defense counsel argued among other things
that Officer Salvio “just assumed if probation, then search terms.
But that’s not enough. . . . If an officer is out there imposing
search term[s] on every defendant on probation, even in cases
where the Court found it was not reasonable or not necessary,
that’s very deleterious to public health, the public psyche, to
think it doesn’t matter what the Court says[] what your terms
are, the police are going to do whatever they’re going to do
. . . .” So, you know, I don’t think anything was done
purposefully to . . . violate any kind of constitutional rights, but,
nonetheless, constitutional rights were violated.”
         The court denied the motion. After finding that the initial
encounter was consensual and that the circumstances that
followed gave the officers sufficient reason to conduct an
investigatory detention, the court stated “it’s a little more
problematical for the People when we get to the issue of whether
[probation] equates to search terms. And, you know, the officer[s]
made the logical conclusion that [probation] me[ant] search terms
because 99.9 percent of the time that’s true.”
         The court went on to add: “I don’t think that the integrity
of the search has to rely on that because . . . [Officer] Coronel[]
indicated that while all this was going on, he observed a bulge
below or underneath a blanket [on] the seat. And obviously that,
I think, an objective and reasonable interpretation of that was
that some effort to conceal whatever it was made as the officers
approached, and that would indicate reasonably that it was some
type of contraband or even a weapon. And so I think at that
point he had probable cause to reach in and find out what in the
heck that was. There was a search, no question about it, but I
don’t think that it need rely solely on the probation information.




                                 7
I think that the observation of the officer was sufficient under the
circumstances as well.”
                            DISCUSSION
       Appellant contends that his motion to suppress the
evidence obtained through the warrantless searches of his person
and his father’s truck should have been granted because the
People failed to meet their burden to show either an exception to
the warrant requirement or that the good faith exception to the
exclusionary rule applied. We agree.3
       “Pursuant to article I, section 28, of the California
Constitution, a trial court may exclude evidence under . . . section
1538.5 only if exclusion is mandated by the federal Constitution.”
(People v. Banks (1993) 6 Cal.4th 926, 934.) “The Fourth
Amendment to the federal Constitution prohibits unreasonable
searches and seizures.” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 365, italics omitted.) When a defendant
moves to suppress evidence under section 1538.5, the People have
“the burden of proving that the warrantless search or seizure was
reasonable” (People v. Williams (1999) 20 Cal.4th 119, 130
(Williams)), and alternatively, “‘the burden . . . to prove that
exclusion of the evidence is not necessary because of [the good
faith] exception.’” (People v. Willis, supra, 28 Cal.4th at p. 36.)
       “‘“In ruling on a motion to suppress, the trial court must
find the historical facts, select the rule of law, and apply it to the


      3 In light of our conclusion, we need not address appellant’s
contention that both searches were the fruits of an unlawful
detention. We also need not address his claim that the erroneous
information conveyed by dispatch was not attributable to the
police, such that the good faith exception did not apply. (See, e.g.,
People v. Willis (2002) 28 Cal.4th 22, 36.)



                                  8
facts in order to determine whether the law as applied has been
violated. We review the court’s resolution of the factual inquiry
under the deferential substantial evidence standard. The ruling
on whether the applicable law applies to the facts is a mixed
question of law and fact that is subject to independent review.”
[Citation.] On appeal we consider the correctness of the trial
court’s ruling itself, not the correctness of the trial court's reasons
for reaching its decision.’” (People v. Bryant, Smith and Wheeler,
supra, 60 Cal.4th at pp. 364–365, italics omitted.) When “the
facts are basically undisputed, we independently review the
decision, applying federal law, as well as state law where it does
not conflict with federal law, to evaluate the issues involved.”
(People v. Downing (1995) 33 Cal.App.4th 1641, 1650, fn.
omitted.)
       The trial court upheld the warrantless searches of
appellant’s person and his father’s truck based on the
information that the officers received from dispatch indicating
that appellant was on probation. Although the dispatcher did not
convey any information indicating that appellant was subject to
search terms as a condition of his probation, the court found that
“the officer[s] made the logical conclusion that [probation]
me[ant] search terms because 99.9 percent of the time that’s
true.” The law dictates otherwise.
       “A search conducted without a warrant is unreasonable per
se under the Fourth Amendment unless it falls within one of the
‘specifically established and well-delineated exceptions.’” (People
v. Woods (1999) 21 Cal.4th 668, 674.) One such exception exists
for probation searches. (People v. Robles (2000) 23 Cal.4th 789,
795.) By accepting a search and seizure condition, a probationer
gives advance consent to a search, and a police officer may




                                  9
conduct a reasonable search even without a particularized
suspicion of criminal activity. (People v. Bravo (1987) 43 Cal.3d
600, 610 (Bravo).
       It is well-settled, however, that “the [probation] exception is
inapplicable if police are unaware of the probation search
condition at the time of a warrantless search.” (People v.
Hoeninghaus (2004) 120 Cal.App.4th 1180, 1184, italics added.)4
“Because the terms of probation define the allowable scope of the
search [citation], a searching officer must have ‘advance
knowledge of the search condition’ before conducting a search
[citations]. Without such advance knowledge, the search cannot
be justified as a proper probation search, for the officer does not
act pursuant to the search condition.” (Romeo, at pp. 939–940,
italics added; see also, e.g., Hoeninghaus, at p. 1194 [“[W]hen
police are unaware of the [search] condition, they cannot know
that a probationer has given advance consent and therefore
cannot claim to be conducting a probation or consent search”].)
       It is thus clear that the warrantless searches of appellant’s
person and truck cannot be upheld as probation searches.
Moreover, the People failed to meet their burden of proving that
the good faith exception to the exclusionary rule applied; indeed,
the People offered no evidence whatsoever on this issue.
Although Officer Salvio testified that he thought all probationers
were subject to search terms because he was a “fairly new officer”

      4 Accord, e.g., In re Jaime P. (2006) 40 Cal.4th 128, 136;
People v. Sanders (2003) 31 Cal.4th 318, 335; People v. Thomas,
supra, 29 Cal.App.5th at p. 1114; People v. Romeo (2015) 240
Cal.App.4th 931, 939-940; People v. Douglas (2015) 240
Cal.App.4th 855, 863; People v. Durant (2012) 205 Cal.App.4th
57, 64; People v. Medina (2007) 158 Cal.App.4th 1571, 1577;
Myers v. Superior Court (2004) 124 Cal.App.4th 1247, 1254.)



                                 10
at the time, that testimony was elicited by the trial court after
the prosecutor had completed her questioning. (See People v.
Rigney (1961) 55 Cal.2d 236, 241 [Although “[a] trial judge may
examine witnesses to elicit or clarify testimony[,]” the judge
“must not become an advocate for either party”].)
       In any event, neither Officer Salvio’s testimony regarding
his subjective belief on this issue—nor the trial court’s factually
unsupported assertion that “99.9 percent” of probationers are
subject to search terms—is sufficient to establish the good faith
exception to the exclusionary rule. “‘[The] good-faith inquiry is
confined to the objectively ascertainable question whether a
reasonably well-trained officer would have known that the search
was illegal’ in light of ‘all of the circumstances.’ [Citation.]”
(Herring v. United States (2009) 555 U.S. 135, 145 [172 L.Ed.2d
496], italics added, citing United States v. Leon (1984) 468 U.S.,
897, 922, fn. 23 [82 L.Ed.2d 677].) “These circumstances
frequently include a particular officer’s knowledge and
experience, but that does not make the test any more subjective
than the one for probable cause, which looks to an officer’s
knowledge and experience . . . but not his subjective intent.” (Id.
at pp. 145-146, internal citations omitted.)
       Officer Salvio’s subjective justification for the search—i.e.,
that he believed all probationers were subject to search terms
because he was a “fairly new officer”—presents the very
antithesis of the controlling standard, which requires us to
determine whether “a reasonably well-trained officer” would have
known otherwise. Police officers are presumed to know the law,
particularly those laws that relate to the performance of their
duties. (People v. Tersinski (1982) 30 Cal.3d 822, 832; see also
Heien v. North Carolina (2014) 574 U.S. 54, 67 [190 L.Ed.2d 475]




                                 11
(lead opn. of Roberts, J. [recognizing that “an officer can gain no
Fourth Amendment advantage through a sloppy study of the
laws he is duty[-]bound to enforce”].) Because a reasonably well-
trained officer would know that a probation search cannot be
conducted absent knowledge that the party to be searched is
subject to search terms, the good faith exception to the
exclusionary rule does not apply here.
        The court alternatively found that “the integrity of the
search” did not depend upon the information that appellant was
on probation because Officer Coronel testified that he saw “a
bulge below or underneath a blanket [on] the seat,” and “an
objective and reasonable interpretation of that was that some
effort to conceal whatever it was was made as the officers
approached, and that would indicate reasonably that it was some
type of contraband or even a weapon. And so I think at that
point he had probable cause to reach in and find out what in the
heck that was.”
        The People, however, did not argue any such theory below.
In purporting to meet their burden of establishing the lawfulness
of the searches, the People’s written response to the suppression
motion and the prosecutor’s arguments at the hearing on the
motion focused exclusively on the information that appellant was
on probation. In their respondent’s brief, the People nevertheless
contend for the first time on appeal that “[g]iven appellant’s
strange behavior, lack of identification, apparent lie about his
probation status, and the existence of a suspicious bulge under
the blanket, reasonable suspicion supported searching [under]
the blanket” for weapons. The People go on to argue, also for the
first time on appeal, that “[p]robable cause supported the search




                                12
of appellant’s pocket once he was discovered with a
methamphetamine pipe.”
       Aside from being forfeited, these claims are based on the
factually unsupported premise that the search of the truck
preceded the search of appellant’s person. Although the
prosecution called Officer Coronel to testify first at the
suppression hearing, nothing in the record demonstrates that he
searched the truck before Officer Salvio searched appellant. On
direct examination, Officer Coronel testified that “[w]hen
[appellant] directed his attention to Officer Salvio, I took the
opportunity to reach through the cracked window and uncover
the blanket.” The officer went on to make clear, however, that he
first confronted appellant about the methamphetamine pipe after
Officer Salvio had found the methamphetamine on his person.
       In any event, the record does not support a finding that
Officer Coronel had reasonable suspicion to search under the
blanket for weapons. “[T]he search of the passenger
compartment of an automobile, limited to those areas in which a
weapon may be placed or hidden, is permissible if the police
officer possesses a reasonable belief based on ‘specific and
articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant’ the officer in
believing that the suspect is dangerous and the suspect may gain
immediate control of weapons.” (Michigan v. Long (1983) 463
U.S. 1032, 1049 [77 L.Ed. 2d 1201], italics added.)
       Officer Coronel did not articulate any facts that would
support a protective search of the truck for weapons. Moreover,
we have watched the bodycam footage. “If a picture is worth a
thousand words, a moving picture is worth a million.” (People v.
Webb (1999) 74 Cal.App.4th 688, 690.) As the trial judge noted,




                               13
the footage “speak[s] for itself.” Suffice to state that nothing
displayed in the footage could be reasonably construed to support
the finding urged by the People for the first time on appeal.
       The cases the People cite in support of their claim are
plainly inapposite. For example, in People v. King (1989) 216
Cal.App.3d 1237 (King), one of two officers conducting a traffic
stop “saw the driver . . . reach under the driver’s seat and heard
the contact of metal on metal.” (Id. at p. 1239.) At the
suppression hearing, the officer testified that he “feared for the
safety of his partner and himself because there was increased
gang activity in the area and the driver reached under the seat.”
(Ibid.) The officer then “ordered the occupants out of the [vehicle]
and checked for weapons under the seat,” finding a loaded
firearm. (Ibid., italics added.)
       These facts and testimony bear no relation to those
presented in this case. The cases cited by the People in which the
court upheld patdown searches (see, e.g., People v. Osborne (2009)
175 Cal.App.4th 1052, 1061; People v. Superior Court (Brown)
(1980) 111 Cal.App.3d 948, 955) are equally unavailing.
       In respondent’s brief, the People emphasize that
“investigative detentions involving suspects in vehicles are
especially fraught with danger to police officers.” (Michigan v.
Long, supra, 463 U.S. at p. 1047.) The People would nevertheless
have us conclude that Officer Coronel—purportedly out of
concern for the safety of himself and Officer Salvio, and while
appellant was still sitting in the driver’s seat—put his arm
through the top of the slightly-opened front passenger window,
reached his arm all the way down to a blanket on top of the seat
(which the officer testified had “a lot of things on top of” it), lifted
the blanket, saw the glass pipe, and retrieved it. Even assuming




                                  14
that the officer could have performed such a maneuver—which,
from the bodycam footage, would appear to be physically
impossible—it defies logic to even suggest he would have done so
while appellant, who could quickly gain access to anything under
the blanket, was still in the vehicle.
                           DISPOSITION
      The judgment is reversed. The matter is remanded with
directions that the trial court permit appellant to withdraw his
guilty plea and enter an order granting his motion to suppress.
      CERTIFIED FOR PUBLICATION.




                                    PERREN, J.

I concur:



      GILBERT, P. J.




                               15
      YEGAN, J., DISSENTING:
      The majority opinion could serve as a textbook example of
the exclusionary rule gone awry. Our Supreme Court has said
that exclusion of evidence should be our last resort, not our first
impulse. The objective reader, schooled in Fourth Amendment
jurisprudence and traditional appellate rules will make up his or
her own mind. The trial court’s express ruling is as follows: “At
what point did it change from a consensual encounter to a
detention? I’m not quite sure I want to even try to demarcate at
this point. But certainly when they receive information that he
was on probation as a [Penal Code section] 290 registrant and a
[Penal Code section] 647.6 conviction out of Kern County,
whether he’s on probation or not, given the nature of the offense,
the hour, the neighborhood, the residential neighborhood, they’ve
got even more reason to detain at that point and determine
whether they’ve got a stalker or what in the world is going on.”
      The ruling is accurate as to the facts and law. It is
presumed on appeal to be correct. At all times the police acted
not only reasonably, not only courtesy, but outright friendly.
These were not rogue cops out on a mission to roust a citizen.
How do I know this? At the conclusion of the “unlawful search
and seizure,” they had appellant sign a promise to appear and let
him go on his way.
      No, the police did not order him out of his car at gunpoint.
They did not handcuff or arrest him, or beat him with a baton.
They were nice to him and we should not second guess the police,
who at all times, reasonably believed him to be on probation with
search terms. They did not blunder. They reasonably relied
upon information given to them by the police dispatcher who told
them that appellant was a registered sex offender on probation.
They then drew the inference that he had search terms. He was,
in fact, a registered sex offender but not on probation with search
terms. We do not judge the actions of the police with hindsight.
We judge their actions based upon what they were relying upon
at the time they acted.
       So, what did they know? 1. They were ordered by a police
dispatcher/watch commander to investigate a reported suspicious
car with a single occupant at approximately 2 a.m. in a
residential neighborhood; 2. Appellant had no identification
which, of course, hampers police investigation; 3. Appellant said
he had not slept in three days; and 4. Appellant was reported by
the police dispatcher to be a registered sex offender, on probation.
So what inference do they draw, i.e., that appellant had search
terms. What are the police supposed to do? Should they
automatically credit appellant’s innocent explanation or do they
utilize their training and common sense and conclude that
“something is amiss.” Would it have been reasonable for the
police to just walk away from a registered sex offender sitting in
a car in a residential neighborhood at 2 a.m.? As indicated by the
trial court, appellant could have been out at night, stalking
another victim for sexual assault. This is an articulated and well
reasoned factual finding and rationale to execute the search
terms thought to be extant. And what about the admission that
appellant had not slept for three days? This is consistent with a
medical condition of insomnia. It is also consistent with
methamphetamine use.
       Without expressly saying so, the fair import of the majority
opinion is that the officers in the field cannot rely on a police
dispatcher who is reading from a rap sheet and they cannot draw
the inference of search terms from a grant of probation. This is a




                                 2
novel claim and is at variance with common sense and
experience. And this mistake is not subject to the good faith
exception to the exclusionary rule? This is also a novel claim.
      I agree with the trial court and it’s implied finding that the
search can be upheld as a probation search. There may be cases
where probation does not carry search terms but I again concur
in the trial court’s observation that such terms are extant in 99
percent of the cases. The officers acted in “good faith” (United
States v. Leon (1984) 468 U.S. 897 (Leon)) and suppression is not
here warranted. The mistaken entry on appellant’s rap sheet
was entered by a court clerk. Our Supreme Court has expressly
held that a court clerk is not part of the law enforcement team
and police action predicated there on, is not a ground for the
exclusion and evidence. (Arizona v. Evans (1995) 514 U.S. 1, 14-
15; People v. Willis (2002) 28 Cal.4th 22, 29-35; see also People v.
Hamilton (2002) 102 Cal.App.4th 1311.)
      An appellate court should not reweigh the evidence as if it
were the trier of fact and draw inferences away from the order
denying suppression. (E.g., People v. Leyba (1981) 29 Cal.3d 591,
596-597.) Here the majority opinion impermissibly does both.
      We have come a long way since Justice Traynor wrote the
opinion establishing the exclusionary rule in California. (People v.
Cahan (1955) 44 Cal.2d 436.) A rereading of this case is
refreshing. It shows why the blatantly illegal conduct of the
police lead to the rule. By factual comparison, the police conduct
here would barely, if at all, register on a scale. As indicated by
our United State’s Supreme Court, the “touchstone” here is
“reasonableness.” In my view, and given the rules on appeal, as a
matter of law, the officers’ actions were reasonable. If there was
a “minor transgression,” it is excused by their “good faith.”




                                 3
Application of the exclusionary rule here offends justice. (Leon,
supra, 468 U.S. at p. 908.) I would affirm the order denying
suppression.
      CERTIFIED FOR PUBLICATION.




      YEGAN, J.




                                 4
                    Bruce A. Young, Judge
               Superior Court County of Ventura
                ______________________________

     Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
     Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Noah P. Hill and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.




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