People v. Cervantes

Opinion

BENKE, J. Victor Morales Cervantes pled guilty to transportation of methamphetamine and admitted a prior prison term. He was sentenced to a term of five years. Cervantes appeals, arguing the trial court erred in denying his motion to suppress evidence pursuant to Penal Code1 section 1538.5.

Facts and Background

Appellant was stopped by police officers for failing to signal a right turn. A records check showed he was subject to a probation condition allowing a search of his person and vehicle at any time. Pursuant to that waiver the officers searched the car and found a gun, methamphetamine and scales. A related search of appellant’s residence revealed additional methamphetamine.

Appellant moved for suppression of the items seized, arguing evidence would show he committed no turn signal violation and there was, therefore, no legitimate basis for his stop, detention and search. Appellant acknowledged the existence of his probation search condition and the general rule that such condition saves from exclusion evidence otherwise illegally seized even when an officer making the stop or search was unaware of the Fourth Amendment waiver. Appellant argued, however, the general rule did not apply when the stop or search was arbitrary or capricious and was not motivated by the legitimate needs of probation.

In reply the prosecution asserted appellant failed to signal a right turn and was lawfully stopped. It argued in the alternative that appellant was subject [1407]to a probation search condition, had no reasonable expectation of privacy, and any alleged illegality in stopping him was constitutionally irrelevant.

At the section 1538.5 hearing, appellant made an offer of proof that he would, through the testimony of three witnesses, prove there was no turn signal violation and that the officers were not telling the truth when they stated there was. The prosecution replied that, even assuming no violation, exclusion was not proper since appellant was subject to search as a condition of his probation.

The trial court declined to hear appellant’s evidence, holding that the search condition made irrelevant any illegality in the stop and detention.

Discussion

Appellant argues the trial court erred in excluding defense evidence that there was no turn signal violation and that the officers who stated there was were not telling the truth. He concedes as a general matter there is no basis for the exclusion of evidence seized during what would otherwise be an illegal search when it is conducted pursuant to a condition of probation. He contends, however, that evidence is excludible when seized during a probation condition search that is arbitrary, capricious or harassing. He argues if he committed no traffic violation, then his stop and detention were all of those things. The trial court, therefore, erred in not allowing him to prove the illegality of the stop. We agree.2