Metropolitan News-Enterprise


Monday, January 8, 2007


Page 1


C.A. Rejects Bid for New Hearing After Drug Seizure Held Invalid

Prosecutor’s Sole Reliance on Probation Condition, of Which Police Had No Knowledge, Held to Make Remand Unnecessary




Prosecutors who defended a warrantless search on the sole ground that the defendant was on probation and subject to a search condition cannot argue on remand that the search may have been valid for other reasons, the Fourth District Court of Appeal has ruled.

Div. Three Thursday reversed Mason G. Miller’s conviction and two-year prison sentence for possession of methamphetamine, based on cases holding that the police search of a defendant who has consented to such searches as a condition of probation cannot be validated on that ground unless the officer was aware of the condition at the time.

Prosecutors are not entitled to a new suppression hearing, Justice Eileen Moore wrote for the Court of Appeal, because they did not argue in the trial court, as they did on appeal, that there may have been probable cause for the traffic stop that led to the search and seizure.

“The prosecution could have pursued both arguments simultaneously, yet it made the conscious decision to concede that without the probation search condition, the stop was not reasonable,” Moore wrote. “Fairness dictates the prosecution accept the consequences of its decision.”

Church Parking Lot

Miller was stopped by an in October 2003 by an Orange County deputy sheriff, who later testified that he became suspicious when he saw the defendant’s vehicle leaving a church parking lot at 3:30 a.m. He stopped the vehicle, he said, and the defendant told him that his license was suspended but that he was driving because his passenger, the registered owner of the car, had been drinking.

Miller said he ran a records check, learned that Miller was a probationer with a search condition, and asked for and received permission to search the vehicle and the defendant’s person. The search led to the seizure of 52 small, clear plastic bags; a glass pipe of the type normally used to smoke methamphetamine, about half a gram of marijuana, and about eight grams of what turned out to be methamphetamine.

Miller was charged with three drug and drug paraphernalia violations, as well as driving without a license. Prosecutors also sought enhancements based on prior felony drug convictions.

Defense Argument

In moving to suppress, the defense argued that Miller’s coming out of a church parking lot at an unusual hour did not constitute grounds for a stop which the prosecution conceded “was conducted without a warrant, without probable cause and without reasonable suspicion.”

Orange Superior Court Judge Suzanne Shaw, since retired, denied the motion to suppress, ruling that the search condition was sufficient to validate the stop, even though the officer did not know of it at the time. Miller pled guilty without waiving his right to appeal.

The Court of Appeal reversed in light of intervening case law, but the California Supreme Court ordered reconsideration in light of People v. Moore (2006) 39 Cal.4th 168, an intervening case in which the court reaffirmed earlier rulings that a search cannot be validated on the basis of a search condition of which the officer was unaware, but that prosecutors were entitled to a new suppression hearing where it was uncertain from the record whether the search could have been upheld on another ground.

In Miller’s case, however, the officer’s testimony that he only stopped the car because it was coming from the parking lot of a darkened church in the early morning hours, together with the prosecution’s concession that this did not constitute probable cause, forecloses the possibility that the search may be upheld on remand, Moore wrote for the court, and thus makes a new suppression hearing unnecessary.

The case is People v. Miller, 07 S.O.S. 91.


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