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,

 Plaintiff and Respondent,

v.

LUCIO SEDENO ROSAS,

 Defendant and Appellant.

2d Crim. No. B295921

(Super. Ct. No. 2017023660)

(Ventura County)

ORDER MODIFYING 

OPINION AND DENYING 

REHEARING [NO CHANGE 

IN JUDGMENT]

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 
2

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.
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,

 Plaintiff and Respondent,

v.

LUCIO SEDENO ROSAS,

 Defendant and Appellant.

2d Crim. No. B295921

(Super. Ct. No. 2017023660)

(Ventura County)

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. 

1 All statutory references are to the Penal Code unless 

otherwise stated.
2

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.
3

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. 
4

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 
5

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 
6

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 
7

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. 
8

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.)
9

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 
10

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.)
11

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] 
12

(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 welltrained 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 
13

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, 
14

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 
15

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.
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. 
2

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 
3

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.” 
4

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.
1

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.