Filed 3/20/14 P. v. English CA5 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

AQUEELAH ENGLISH, 

Defendant and Appellant. 

F064895 

(Kern Super. Ct. No. BF135310A) 

OPINION

 APPEAL from a judgment of the Superior Court of Kern County. Colette M. 

Humphrey, Judge. 

 Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and John W. 

Powell, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOooINTRODUCTION 

 Appellant/defendant Aqueelah English turned herself in at the courthouse in 

Mojave, Kern County, because she had two no-bail misdemeanor warrants for driving 
2. 

under the influence. The deputies took her into custody and conducted an inventory of 

her personal property. She had $287 in cash. The cash was placed in a money envelope 

in her property bag. The deputies maintained custody of the property bag and defendant 

did not have access to it. A few hours later, the deputies transported her to the Central 

Receiving Facility (CRF) jail in Bakersfield, and her property bag was given to the 

receiving deputies. A receiving deputy signed for defendant and her property after she 

arrived. When the booking deputy later examined defendant’s property bag and opened 

the money envelope, there was only $187 in cash. The senior deputy immediately 

decided to conduct a “visual body cavity search” of defendant to look for the missing 

cash – even though defendant never had access to the property bag, and the receiving 

deputy disavowed having actually received defendant or examined her property bag. The 

senior deputy told defendant they were going to conduct the strip search, asked if she 

would “cooperate,” and defendant said yes. Defendant removed all her clothes, and two 

female deputies examined her body without touching her. They saw a plastic bag 

concealed between her buttocks which contained marijuana, and also recovered an 

amount of methamphetamine concealed on her body. The missing cash was never found. 

 Defendant was charged with count I, unauthorized possession of 

methamphetamine in jail (Pen. Code,1 § 4573.6), and count II, unauthorized possession 

of marijuana in jail. 

 Defendant filed a motion to suppress the evidence and argued the visual body 

cavity search was unreasonable given the nature of her misdemeanor offenses and the 

lack of any evidence that she could have taken her own money after it had been counted 

and placed in the property bag. Defendant also filed a motion pursuant to Pitchess v. 

Superior Court (1974) 11 Cal.3d 531 (Pitchess), for disclosure of the confidential 

personnel records of two deputies at the Bakersfield jail: Deputy Warmerdam, who 

 1 All further statutory citations are to the Penal Code unless otherwise indicated. 
3. 

signed as the receiving deputy but later claimed he never received or checked her 

property; and Deputy Deval, who participated in the search. Defendant requested 

discovery of any records recording dishonesty. 

 The superior court found defendant’s Pitchess motion established good cause to 

review the confidential records for Deputy Warmerdam but not for Deputy Deval. The 

court conducted an in camera hearing, reviewed Warmerdam’s files, and advised 

defendant there was no discoverable information. The court then conducted an 

evidentiary hearing on the validity of the search, found defendant consented to the search 

when she agreed to “cooperate,” and denied the suppression motion. Thereafter, 

defendant pleaded no contest to count II, unauthorized possession of marijuana in jail, 

and she was placed on probation. 

On appeal, defendant raises several issues, primarily that the court should have 

granted her suppression motion because the visual body cavity search was unreasonable 

under the circumstances, and her agreement to “cooperate” did not constitute consent. 

Defendant also asks this court to review Deputy Warmerdam’s confidential personnel 

records which were before the superior court during the in camera Pitchess hearing, and 

determine whether the court abused its discretion and any records should have been 

disclosed. 

We find the deputies did not have reasonable suspicion to conduct the visual body 

cavity search, defendant did not voluntarily consent to the search, the suppression motion 

should have been granted, and the judgment must be reversed. We also address the 

procedural aspects of the Pitchess review because of our concerns about that issue in 

reference to any future proceedings. 
4. 

FACTS2

 At 7:00 p.m. on January 18, 2011, Deputy Aaron Warmerdam of the Kern County 

Sheriff’s Department was on duty at the CRF in Bakersfield. Warmerdam testified he 

was responsible for booking inmates into the jail. 

Warmerdam testified defendant arrived at the jail that evening. She was already 

an inmate in custody. She had been booked in Mojave by another deputy, and she was 

transported to Kern County. She was still wearing her own clothes. 

 Warmerdam testified that when defendant was taken into custody in Mojave, a 

deputy counted the money she had on her person and wrote the amount on a form. The 

money was transported to Kern County in a property bag. When defendant arrived at the 

Kern County jail, the data entry officer recounted the money in defendant’s presence and 

determined the amount of cash was $100 less than the amount in the report. The data 

entry officer advised Warmerdam about the discrepancy.3

At the preliminary hearing, Warmerdam was asked who recounted the money in 

Bakersfield. Warmerdam replied: “It was someone from the squad before me, so I do 

not know. [Defendant] said it was a pretty white deputy. That’s how she explained it.” 

Deputy Warmerdam testified Senior Deputy Burnett and Detention Deputy Deval 

(female deputies) conducted a “strip search” of defendant to determine if she hid the 

money on her body.4 Warmerdam conceded the money had never been given back to 

 2 There are several different versions of what happened in this case. The 

following facts are from the preliminary hearing transcript. There was additional 

evidence about defendant’s custodial status contained in her Pitchess motion, and 

introduced during the evidentiary hearing for her suppression motion. We will address 

these facts below. 

3 As we will explain below, Deputy Warmerdam testified at the suppression 

hearing about a different sequence of events when defendant arrived at the Bakersfield 

jail. 

4 The parties alternatively describe the search in this case as both a “visual body 

cavity search” and a “strip search.” As we will discuss in issue I, post, section 4030 
5. 

defendant after she was taken into custody, and the cash had been placed in the property 

bag in Mojave. 

Deputy Warmerdam testified Deputies Burnett and Deval found a white piece of 

plastic between defendant’s buttocks which contained marijuana. They also found a 

package concealed in her body which contained 0.81 grams of methamphetamine. 

On cross-examination, defense counsel asked Deputy Warmerdam if his report 

about the incident required any corrections. Warmerdam testified he might have 

mistakenly “switched” the weights of the narcotics found on defendant’s body: “I think 

the methamphetamine says 2.0 grams total package weight and the marijuana says .09 

grams total weight.”5

PRETRIAL MOTIONS 

 After the preliminary hearing, defendant filed a Pitchess motion for disclosure of 

the confidential personnel records of Deputies Warmerdam and Deval; and a motion 

pursuant to section 1538.5 to suppress the narcotics found on her body during the strip 

search. 

The Pitchess Motion 

 Defendant’s Pitchess motion moved for discovery of the confidential personnel 

records of Deputies Warmerdam and Deval, for complaints of acts or instances of 

 

defines a “[v]isual body cavity search” as the “visual inspection of a body cavity.” 

(§ 4030, subd. (d)(2).) At the very least, the visual inspection of an arrestee’s naked 

body, even without a visual examination of body cavities, constitutes a “strip search.” 

(Edgerly v. City & County of San Francisco (9th Cir. 2010) 599 F.3d 946, 957 (Edgerly); 

People v. Lowe (2013) 221 Cal.App.4th 1276, 1293.) 

5 Deputy Warmerdam later testified at the evidentiary hearing on the suppression 

motion that he signed as the receiving deputy for defendant, which indicated he examined 

and confirmed the contents of her property bag, but testified he did not actually receive 

her when she arrived at the jail, he just signed as the receiving deputy because the actual 

deputy failed to do so, and he never bothered to find out the identity of the actual 

receiving deputy. At the preliminary hearing, however, Warmerdam failed to explain 

these circumstances when asked if he needed to explain any discrepancies. 
6. 

dishonesty, false arrests, and the fabrication of charges, reports, and/or evidence, to 

impeach their credibility. 

In her supporting declaration, defense counsel stated defendant’s money was 

counted in Mojave and the total was $287. When defendant arrived at the Bakersfield 

jail, the money was counted again and the total was $287. Defendant was placed in a 

cell. Defendant later contacted a bond agent and arranged to use $200 of her money to 

make bail. Deputy Warmerdam escorted defendant from her cell into the cashier’s booth 

for the release of her money. In Warmerdam’s presence, the cashier opened a sealed 

envelope which said it contained $287. The cashier counted the money and the total was 

$187. 

Defense counsel declared Deputy Warmerdam contacted Deputy Deval and other 

female deputies to conduct a strip search for the missing cash. Defendant refused to 

consent. Deputy Deval threatened to take defendant to the hospital, strap her down, and 

humiliate her during a body search. Defendant was searched, the drugs were found, and 

the money was never recovered.6

In the responsive pleadings, the prosecution conceded defendant established good 

cause for the superior court to conduct an in camera review of Deputy Warmerdam’s 

confidential personnel records. The prosecution opposed review of Deputy Deval’s 

records since she merely conducted the search. 

Suppression motion 

 In her suppression motion, defendant argued the deputies’ decision to conduct the 

“visual body cavity search” was unreasonable because it violated section 4030, 

 6 As we will discuss below, the deputies who testified at the evidentiary hearing 

on the suppression motion described a different sequence of events leading to the search. 

Defense counsel’s hearsay declaration, which was filed in support of the Pitchess motion, 

was not admitted into evidence during the suppression hearing, and defendant did not 

testify at that hearing. 
7. 

subdivision (f), which prohibits strip searches of arrestees held on misdemeanors, except 

for weapons or controlled substances, unless there is reasonable suspicion the arrestee is 

concealing contraband. Defendant argued there was no reasonable suspicion that she 

took the missing cash from the property bag. 

In opposition, the People argued the deputies had reasonable suspicion defendant 

took the missing cash because “due to the busy nature of the inmate receiving facility, the 

The People asserted defendant had the opportunity to take the money,” which constituted 

contraband in jail.7 The People did not assert defendant consented or agreed to the 

search. 

THE PRETRIAL HEARINGS 

Pitchess hearing 

On February 16, 2012, the court conducted a hearing on defendant’s Pitchess

motion. The court advised the parties it found good cause to conduct an in camera 

review of Deputy Warmerdam’s personnel records for any allegations of dishonesty, but 

concluded defendant failed to establish good cause for review of Deputy Deval’s records. 

After the in camera hearing, the court returned on the record, advised the parties it 

reviewed Deputy Warmerdam’s records, and found there was no discoverable 

information. 

THE SUPPRESSION MOTION 

After the court denied the Pitchess motion, it conducted an evidentiary hearing on 

defendant’s suppression motion and her contentions the officers lacked reasonable 

suspicion to conduct the visual body cavity search. Several deputies testified generally 

 7 As we will discuss below, there was no evidence introduced at the suppression 

hearing which showed defendant had the opportunity to take her money once it was 

placed in the property bag in Mojave. 
8. 

about the booking, transportation and search procedures, and about the events which led 

to the search of defendant. 

Defendant’s arrival in Mojave 

Deputies Megan Hudson and Brenda Waidleich, who were assigned to the Mojave 

courthouse, testified defendant checked in at the Mojave counter with two no-bail 

misdemeanor warrants for driving under the influence (DUI). It was already past the cutoff time to add matters to the Mojave court calendar. Deputy Hudson advised defendant 

she would be taken into custody because of the no-bail warrants. 

Deputy Hudson testified she took defendant to the jail located in the back of the 

Mojave courthouse, where inmates are temporarily housed for court hearings. Hudson 

“handed her off” to Deputies Waidleich and James Clepacki, the detention deputies. 

Hudson testified defendant was going to be transported to the Bakersfield jail because it 

was too late to appear in the Mojave court. Hudson did not search defendant or check 

any of her property, and left that to the detention deputies. 

Deputy Waidleich testified she searched defendant in Mojave. Waidleich 

removed defendant’s property from her pockets and counted her cash. Waidleich 

testified defendant was upset about her money being taken from her. 

“[Defendant] wanted to count her money in front of me. I never let people 

count their own money; this day I did. [¶] [Defendant] counted it, she 

gave it back to me, I recounted it, I asked her what she got and she told me 

287 dollars, and I said that’s exactly what I got. Put it in the envelope.” 

(Italics added.) 

Waidleich testified she put defendant’s cash in a small money envelope and wrote the 

total amount on the envelope and on the field arrest data report.8

 8 Deputy Waidleich testified that at some later time, she was repeatedly asked by 

the sergeant in Mojave about how much money defendant had. Waidleich told the 

sergeant that she could not remember, but thought it was “two hundred and eightysomething maybe.” 
9. 

Deputy Waidleich testified defendant and other inmates were transported from 

Mojave to the Bakersfield jail in a bus. Defendant was still in custody. Defendant’s 

property bag was not given to her. Instead, the transportation deputies had the property 

bag, and they gave it to the receiving deputies when they arrived in Bakersfield. 

Defendant arrives at the Bakersfield jail 

 Deputy Aaron Warmerdam, who was assigned to the Bakersfield jail, testified 

generally that when an inmate is transported to the jail, the transportation deputies will 

escort the inmate to the receiving center counter. At that location, a deputy will ask 

medical screening questions, and recheck the field arrest data report to note the charges 

against the inmate and the inmate’s arrival time. The inmate’s property would be 

checked, and any cash would be counted to ensure the information on the field data arrest 

form was correct. 

Deputy Melissa Hunter, a shift supervisor for the jail’s clerical staff, similarly 

testified that when an inmate is transported to the Bakersfield jail, the transportation 

deputies will bring the inmate’s property bag from the prior facility and give it to the 

jail’s receiving deputies. 

 Senior Deputy Katherine Burnett testified that when defendant arrived at the 

Bakersfield jail from Mojave, a deputy at the receiving counter would have searched 

defendant, her clothing, pockets, socks, and shoes. 

Deputy Warmerdam signs defendant’s field arrest report 

Deputy Warmerdam testified he went on duty at 7:00 p.m. on the evening that 

defendant arrived at the Bakersfield jail. By the time Warmerdam started his shift, 

defendant had already arrived from Mojave and had been booked into the jail. 

Warmerdam thought she might have arrived around 6:30 p.m. 

Warmerdam testified he did not receive or process defendant when she arrived. 

However, Warmerdam testified he signed his name on defendant’s field arrest data report 
10. 

and declared he was the deputy who received defendant at the jail. Warmerdam 

explained why he did signed for defendant: 

“Because earlier ... I received another call that there was [a field arrest data 

report] that wasn’t signed from the people, from Mojave, the transfer from 

Mojave and it must be signed, and the date and time must be indicated on 

the [field arrest data] before they can be entered into [the computer 

system].” 

Deputy Warmerdam testified that even though he signed for defendant as the 

receiving deputy, he did not check defendant’s property bag to determine whether the 

contents were consistent with the report on the property envelope and the field arrest data 

report. Warmerdam testified defendant’s field arrest data report stated there was $287 in 

her property bag. Warmerdam did not confirm that amount was present in the property 

bag, even though he signed the field arrest report which declared he received her with 

that amount of money. 

Deputy Hunter meets defendant in the control booth 

Deputy Hunter testified her duties included being in control of the inmates’ 

property bags at the Bakersfield jail. Hunter explained how property is processed at the 

jail: 

“If we’re booking inmates, then the deputies will slide the property bags 

down to us and we will book the inmates with the information that they 

have given to us. The property bags are sealed, but money envelopes will 

be on the outside of the bags, where we can access it and count it and put it 

into our money drawer. And then once the property bags to go the office, 

then we just take them numerically and transfer them from facility to 

facility.” (Italics added.) 

Deputy Hunter testified that when she books an inmate, she counts the money in 

front of the inmate, adds the amount to the inmate’s commissary account, and puts the 

cash into the money drawer. 
11. 

Deputy Hunter testified about what she believed happened when defendant arrived 

at the Bakersfield jail from Mojave. Hunter believed the Mojave transportation deputies 

gave defendant’s property bag to the receiving deputies in Bakersfield. 

“Well, [defendant] was received by a receiving officer and then she was 

probably put into a holding cell, and then after the holding cell, then they 

come into our booking booth. Then at that point in time we already have 

her property bag which has her money envelope inside of it, and then I 

would have taken it out....” (Italics added.) 

 Deputy Hunter believed the receiving deputies gave defendant’s property bag to 

Hunter. Hunter testified defendant did not have the property bag, and she did not give it 

to Hunter. 

Deputy Hunter testified her first contact with defendant occurred about an hour 

after defendant arrived at the jail. Defendant was already sitting in the data entry 

officer’s booth. The booth was one of three separately enclosed and locked booths where 

deputies book inmates. Hunter testified each booth was about 6 feet by 20 feet. Hunter 

did not know which receiving officer escorted defendant into the booth. 

Deputy Warmerdam testified he did not escort defendant into the data entry 

officer’s booth, and he did not know which deputy provided the escort. 

Deputy Hunter testified there was a glass partition in the booth which separated 

defendant from Hunter. Each side of the booth could only be entered with a deputy’s 

key. There was a countertop on both sides of the glass partition. The glass partition was 

two feet by three feet, and did not completely reach the top of the ceiling. There was a 

small slot-like opening at the bottom of the glass partition. The slot was just large 

enough to slide a receipt and pen from the deputy’s side to the inmate to sign for the 

property. The slot was normally locked on the deputy’s side of the booth. 
12. 

Deputy Hunter believed that when she met with defendant, she was going to be 

released, based on comments defendant made about getting back to Lancaster. Hunter 

did not know if defendant was trying to arrange for bail.9

Deputy Hunter discovers the cash discrepancy 

Deputy Hunter testified she processed defendant just like she would do for any 

other inmate. Hunter received the field arrest data report, which stated that defendant had 

$287 when she was booked in Mojave. There was a money envelope in the property bag, 

and it also said defendant had $287 when she was booked in Mojave. 

Deputy Hunter testified she took the money envelope out of the property bag and 

counted the cash. There was only $187, which was $100 less than listed on the form. 

Defendant was sitting on the other side of the glass partition when Hunter counted the 

cash and discovered the discrepancy. Hunter could not recall if the slot through the glass 

was open or closed when she counted the cash. 

Deputy Hunter testified that when she realized the money was missing, she 

immediately searched her side of the control booth, and moved other property bags 

around to see if something had fallen out, and she did not see anything. Defendant kept 

asking what was going on with her money. Hunter told defendant they were checking on 

it. Defendant remained in the enclosed booth in front of Hunter for “quite awhile,” and 

repeatedly asked where was her money, and when was she going to be done. Deputy 

Hunter did not search defendant. 

 9 Defendant did not testify at the suppression hearing. Defense counsel’s Pitchess

declaration stated that defendant contacted a bail bond company while in the holding cell; 

she arranged to make bail for $200; the bail bond agent was on his way to the jail; and 

defendant was taken into the data entry control booth for the release of her money to pay 

the bail bond agent. These facts were not introduced at the suppression hearing. 
13. 

Deputy Warmerdam’s first contact with defendant 

After Deputy Hunter searched the area, she called “the receiving officer,” who was 

identified as Deputy Warmerdam. 

Deputy Warmerdam testified that at 10:00 p.m., he received a call from Deputy 

Hunter that $100 was missing from defendant’s money envelope. Warmerdam testified 

his first contact with defendant occurred after that call. Defendant was still in the data 

entry officer’s booth. Warmerdam did not know if defendant was trying to arrange for 

bail. 

 Deputy Warmerdam testified that when he arrived at the booth, he counted the 

cash in defendant’s money envelope and there was $187, even though the envelope said 

there was $287 inside. 

 Deputy Warmerdam testified he called Senior Deputy Burnett and told her about 

the discrepancy. As they waited for Burnett to arrive at the booth, Warmerdam asked 

defendant how much money she had when she was originally booked in Mojave. 

Defendant said she had $287. Warmerdam did not search defendant. 

Deputy Warmerdam testified that he had signed for defendant’s arrival at the jail 

as the receiving officer, but he did not receive defendant, and he never investigated who 

actually received defendant and her property bag when she arrived from Mojave. 

Senior Deputy Burnett decides to search defendant 

Senior Deputy Burnett testified Deputy Warmerdam called and advised her that 

$100 was missing from defendant’s property bag. Burnett’s first contact with defendant 

occurred while defendant was still in the control booth. Warmerdam was present. 

 Deputy Burnett testified she spoke to Deputy Hunter, who explained the 

discrepancy. Burnett confirmed the notations on the money envelope, counted the cash, 

and agreed there was only $187. 

 Deputy Burnett instructed Hunter to book defendant with the actual amount of 

cash that was in the bag, and “we would ... attempt to figure out what happened, and 
14. 

correct it if we could, if we could find the money or whatever, but we would have to 

work on getting an answer to it, how come there was a discrepancy on the money.” 

Deputy Burnett’s testimony about the timing of the search 

 Deputy Burnett initially testified that after the discrepancy was discovered, the 

deputies searched all the inmates in the female holding area, and Burnett searched 

Deputies Hunter and Miller, the control booth officers. The money was not found. 

Deputy Burnett testified that after these searches were unsuccessful, she decided to 

conduct a visual body cavity search of defendant to look for the money. Burnett 

conceded that no one reported to her that defendant had taken the money from the 

property bag. Burnett explained the reason she decided to search defendant: 

“It wouldn’t have been the first time that an inmate saw an 

opportunity to grab money, be it their own or someone else’s.... [¶] [¶] 

Everyone knows that if something comes up missing out of our custody, the 

County is going to replace it. And we have had instances where someone, 

an inmate, we’ve actually found property and/or money belonging either to 

them or someone else, in past instances.” 

On cross-examination, however, Burnett consulted her report and clarified the 

timing of the strip search. Burnett conceded that she searched defendant before she 

conducted the other searches. Burnett further clarified that after she searched defendant, 

found the drugs, and did not find the cash, she then searched the control booth deputies 

and the other inmates, and still did not find the money.10

Deputy Burnett’s testimony about defendant’s “cooperation” 

 Deputy Warmerdam testified he escorted defendant to the female “deck” area 

because Senior Deputy Burnett was going to conduct a strip search to look for the 

 10 Deputy Hunter confirmed that Deputy Burnett searched Deputy Miller and 

herself for the missing cash, and the money was not found. Hunter thought defendant 

was still in the control booth when Burnett searched them. 
15. 

missing cash. No other deputy had contact with defendant when Warmerdam escorted 

her from the control booth to Deputy Burnett’s area. 

 Deputy Burnett testified the deputies followed the department’s protocol and filled 

out a form to request to conduct a “visual body cavity search” of defendant to look for the 

missing cash. Burnett was not sure if the form was completed by Deputy Deval or 

herself.11

 Defense counsel asked Deputy Burnett whether she told defendant it would be 

easier if she agreed to the visual body cavity search, because otherwise defendant would 

be taken to the hospital and placed naked on a gurney, where everyone could see her. 

Burnett said no and explained: 

“I believe that’s out of context. [Defendant] actually agreed to the 

search. When I told her that we wanted to do a visual body cavity search, 

and I specifically, and I do it every time, I ask them are you going to 

cooperate with that, and [defendant] said yes.” (Italics added.)12

 Deputies Burnett and Deval conducted the strip search. Burnett testified they 

found a small amount of marijuana concealed between defendant’s buttocks. Burnett 

testified that once they found the marijuana, she “knew” something else was there. 

Burnett testified she told defendant she would obtain a search warrant “to get it if that’s 

what it took, and I would take her to [the hospital] and I would have a doctor remove 

 11 This form was attached as an exhibit to defendant’s Pitchess motion, but stated 

that Deputy Warmerdam, again identified as the receiving deputy, requested to conduct 

the strip search for the missing cash, and Senior Deputy Burnett granted the request. 

12 Deputy Burnett’s report about the search was included as an exhibit to 

defendant’s Pitchess motion, but the hearsay statements were not introduced at the 

suppression hearing. In her report, Burnett describes her interaction with defendant: 

“Prior to searching [defendant], I explained to her what we were doing and why. I told 

her if she had the money, she could give it to me and avoid any further trouble. She said 

she did not have any money on her person, and would not steal money from herself. She 

agreed to submit to the search.” 
16. 

it ....” Burnett never said defendant would be placed on a gurney. The officers also 

found a small amount of methamphetamine hidden in another part of defendant’s body.13

The court’s denial of the suppression motion 

 The court denied the suppression motion and found defendant consented to the 

visual body cavity search: 

“It’s apparent to me that the parties involved were actually legitimately 

searching for the money. They didn’t just search [defendant], they also 

searched all the other inmates that were in the holding cell at the time. 

They also searched the other employees that were nearby. So they weren’t 

just focusing on [defendant]. 

 “With regard to the actual strip search, Deputy Burnett testified that 

[defendant] consented to the search and then after they found the 

marijuana, apparently she became somewhat resistant, and at that point 

Deputy Burnett said I’ll get a warrant if I have to, and apparently at that 

point [defendant] cooperated. So, I don’t think there was any Fourth 

Amendment violation. I don’t know if there was a violation of some other 

sheriff’s protocol .... But in terms of a Fourth Amendment violation, I 

don’t see it in this situation, so I am going to deny the motion.” (Italics 

added.) 

The court did not address whether the deputies needed or had reasonable suspicion 

to conduct the search. 

 13 At the evidentiary hearing, Deputy Burnett simply testified they also found 

methamphetamine hidden in defendant’s body. Neither the prosecutor nor defense 

counsel asked Burnett further details about how they found the second amount of drugs 

Defendant attached Deputy Burnett’s investigative report about the search as an exhibit to 

her Pitchess motion. According to Burnett’s report, after they found the marijuana on her 

body, Deputy Deval instructed defendant to squat down, cough, and perform other 

maneuvers in order conduct a more thorough search of her body. Ultimately, Burnett told 

defendant that if she did not remove it, they would obtain a search warrant, take her to the 

hospital, and have a doctor remove it. After hesitating for several minutes, defendant 

produced a small amount of methamphetamine. This version of the second part of the 

search was not introduced at the suppression hearing. 
17. 

Plea and sentence 

 Thereafter, defendant pleaded no contest to count II, unauthorized possession of 

marijuana in jail, which was based on the first amount of drugs found on her body; and to 

two unrelated misdemeanor offenses. The court dismissed count I, unauthorized 

possession of methamphetamine in jail, which had been based on the second amount of 

drugs found in her body. The court also dismissed another unrelated charge. She was 

placed on probation for three years for count II, subject to certain terms and conditions, 

including serving 176 days in jail. 

DISCUSSION 

I. The deputies did not have reasonable suspicion to conduct the search 

 Defendant contends her suppression motion should have been granted because the 

visual body cavity search was unconstitutional and violated her due process rights. 

Defendant asserts the search violated section 4030, which regulates custodial strip 

searches; the deputies needed reasonable suspicion to conduct the search since she was 

being detained for nonviolent and minor offenses; and they lacked any reasonable 

suspicion she took her money from the property bag. 

A. Standard of review 

 On appeal from the denial of a suppression motion, this court upholds any factual 

findings, express or implied, that are supported by substantial evidence, but we 

independently determine, as a matter of law, whether the challenged search conforms to 

constitutional standards of reasonableness. (People v. Hughes (2002) 27 Cal.4th 287, 327 

(Hughes).) 

B. Section 4030 

We begin with defendant’s contention (repeatedly raised before the superior court) 

that the deputies violated section 4030, subdivision (f) when they conducted the visual 

body cavity search. This section states in relevant part: 
18. 

“No person arrested and held in custody on a misdemeanor or 

infraction offense, except those involving weapons, controlled substances 

or violence ... shall be subjected to a strip search or visual body cavity 

search prior to placement in the general jail population, unless a peace 

officer has determined there is reasonable suspicion based on specific and 

articulable facts to believe such person is concealing a weapon or 

contraband, and a strip search will result in the discovery of the weapon or 

contraband. No strip search or visual body cavity search or both may be 

conducted without the prior written authorization of the supervising officer 

on duty. The authorization shall include the specific and articulable facts 

and circumstances upon which the reasonable suspicion determination was 

made by the supervisor.” (§ 4030, subd. (f), italics added.) 

 Section 4030 was enacted “to protect the state and federal constitutional rights of 

the people of California by establishing a statewide policy strictly limiting strip and body 

cavity searches.” (§ 4030, subd. (a).) It provides for civil and criminal remedies upon 

violations of its terms. (§ 4030, subds. (n) & (p).)14

Despite these provisions, however, section 4030 does not state the basis for an 

exclusionary rule or a violation of the Fourth Amendment. Instead, evidence found 

during a visual body cavity search is subject to suppression only if it is the product of a 

search conducted in violation of the United States Constitution. (People v. McKay (2002) 

27 Cal.4th 601, 609-610; People v. Wade (1989) 208 Cal.App.3d 304, 307-309.) 

C. Florence and custodial detainees 

We thus turn to the constitutional standards to conduct visual body cavity 

searches. In Bell v. Wolfish (1979) 441 U.S. 520, the United States Supreme Court held 

that strip and visual body cavity searches may, in certain instances, be conducted on 

 14 Based on the exhibits submitted with defendant’s Pitchess motion, it appears 

the deputies complied with section 4030, subdivision (f)’s requirement for written 

authorization – Deputy Warmerdam filled out the form and officially requested to 

conduct the search, and Deputy Burnett signed the form to give her approval. These 

documents were not introduced into evidence at the suppression hearing. As noted 

above, however, Burnett testified at the suppression hearing that she made the decision to 

conduct the search, and she was not sure if the form was completed by Deputy Deval or 

herself. 
19. 

prisoners and pretrial detainees in institutional settings with less than probable cause. (Id. 

at p. 561.) To determine whether an institutional search policy is reasonable under the 

Fourth Amendment, the court must balance “the need for the particular search against the 

invasion of personal rights that the search entails....” (Id. at p. 559.) 

 In Florence v. Board of Chosen Freeholders (2012) ___ U.S. ___ [132 S.Ct. 

1510], the court held law enforcement officers do not need reasonable suspicion to 

conduct strip searches of pretrial detainees who enter the general population in a jail or 

prison, even if they have been arrested for nonviolent or minor offenses. (Id. at 

pp. 1522–1523.) “[T]he seriousness of an offense is a poor predictor of who has 

contraband ...,” and “[p]eople detained for minor offenses can turn out to be the most 

devious and dangerous criminals. [Citations.]” (Id. at p. 1520.) “There is a substantial 

interest in preventing any new inmate, either of his own will or as a result of coercion, 

from putting all who live or work at these institutions at even greater risk when he is 

admitted to the general population.” (Ibid., italics added.) 

Florence held the key question is not whether the detainee has been charged with a 

minor, nonviolent offense, but whether the detainee has been classified for housing in the 

custodial facility’s general population at the time of the strip search. The court concluded 

that requiring individualized suspicion would undermine the ability of custodial officers 

to maintain the security of the facility. (Florence, supra, 132 S.Ct. at pp. 1522–1523; see 

also Bull v. City and County of San Francisco (2010) 595 F.3d 964, 981–982 (Bull); 

Edgerly, supra, 599 F.3d at p. 957.)15

 15 It is well-settled that prisoners already in general population are validly subject 

to “visual body cavity searches” after engaging in “certain activities such as a visit to the 

law library, infirmary, or exercise room or an encounter with an outsider irrespective of 

whether the prison officials entertained a reasonable suspicion the prisoners had 

concealed contraband on their persons[,]” based on “the legitimate penological need to 

prevent drugs and weapons from being introduced into or transported throughout a prison 

and the relative lack of intrusiveness involved in the search,...” (People v. Collins (2004) 

115 Cal.App.4th 137, 154, italics in original.) 
20. 

 However, the majority opinion in Florence clarified it was not addressing “the 

types of searches that would be reasonable in instances where, for example, a detainee 

will be held without assignment to the general jail population and without substantial 

contact with other detainees....” (Florence, supra, 132 S.Ct. at pp. 1522–1523, italics 

added.) As an example, Florence cited Atwater v. Lago Vista (2001) 532 U.S. 318, 324, 

where officers took the arrestee’s “ ‘ “mug shot” ’ and placed her, alone, in a jail cell for 

about one hour, after which she was taken before a magistrate and released on $310 

bond.’ ” (Florence, supra, 132 S.Ct. at p. 1523.) Florence noted “[t]he accommodations 

provided in these situations may diminish the need to conduct some aspects of the 

searches at issue. [Citation.]” (Ibid.) 

Florence thus did not disturb a series of federal circuit cases which have 

consistently held that prison officials must have individualized reasonable suspicion to 

conduct strip searches of “arrestees charged with minor offenses who are not classified 

for housing in the general jail population. [Citation.]” (Edgerly, supra, 599 F.3d at 

p. 957, italics added; Bull, supra, 595 F.3d at pp. 972–973.) 

D. Analysis 

Defendant argues the strip search was unconstitutional because the deputies lacked 

reasonable suspicion as required by section 4030, since she was being held for nonviolent 

misdemeanor offenses. As we have explained, however, section 4030 does not state an 

exclusionary rule, and evidence seized during a strip search may be excluded only if the 

search violated the Fourth Amendment. (People v. McKay, supra, 27 Cal.4th at pp. 609–

610; People v. Wade, supra, 208 Cal.App.3d at pp. 307–309.) 

 Instead, the reasonableness of this search is dependent on Florence, which held 

that custodial officials may conduct strip searches of detainees, even if they are being 

held for nonviolent and minor offenses, if the detainees are being housed in the general 

population of a jail or prison. In this case, however, there is no evidence defendant was 

being placed in any type of general population. Defendant turned herself in at the 
21. 

Mojave courthouse for misdemeanor no-bail warrants for driving under the influence. 

She remained in her own clothes during the entirety of the incident. She was taken to 

Bakersfield because she had arrived too late to have her matter placed on the Mojave 

court calendar. There is no evidence she was moved to the Bakersfield jail to be placed 

in the general population. 

 In addition, there is no evidence defendant was going to be placed in the jail’s 

general population once she arrived in Bakersfield. Deputy Hunter testified about her 

interaction with defendant in the control booth, and that defendant’s statements indicated 

she was going to be released. The record suggests defendant was in a holding cell 

between her arrival in Bakersfield and the strip search, based on Deputy Burnett’s 

testimony that she later searched other female inmates who had been in the holding cell 

with defendant. 

Florence’s standard for strip searches would not apply in this case given the lack 

of evidence that defendant was going to be placed, or was already housed, in the jail’s 

general population. Thus, the deputies’ decision to conduct the strip search required 

individualized, reasonable suspicion that defendant had taken her own money at some 

point between Mojave, where Deputy Waidleich counted the cash and placed it in the 

money envelope, and the control booth in Bakersfield, where Deputy Hunter opened the 

property bag and discovered that $100 was missing. 

 Reasonable suspicion is a lesser standard than probable cause, but “to be 

reasonable, the officer’s suspicion must be supported by some specific, articulable facts 

that are ‘reasonably “consistent with criminal activity.” ’ [Citation.] The officer’s 

subjective suspicion must be objectively reasonable,” and cannot be “ ‘predicated on 

mere curiosity, rumor, or hunch ... even though the officer may be acting in complete 

good faith. [Citation.]’ [Citation.]” (People v. Wells (2006) 38 Cal.4th 1078, 1083.) 

 At the evidentiary hearing, Deputy Burnett testified she decided to conduct the 

strip search because “[i]t wouldn’t have been the first time that an inmate saw an 
22. 

opportunity to grab money, be it their own or someone else’s.... [¶] ... [¶] Everyone 

knows that if something comes up missing out of our custody, the County is going to 

replace it. And we have had instances where someone, an inmate, we’ve actually found 

property and/or money belonging either to them or someone else, in past instances.” 

Deputy Burnett’s stated justification was obviously based on her experience in the 

jail. Based on Florence and other circuit cases, however, individualized reasonable 

suspicion is required to conduct a strip search of an arrestee for a minor, nonviolent 

offense who was not being placed in general population. There was no evidence that 

defendant had access to her money after Deputy Waidleich seized her property in 

Mojave. The only possible evidence that defendant could have taken her own money 

could be based on Waidleich’s testimony that she allowed defendant to initially count her 

money when they were in Mojave, and defendant counted $287. However, Waidleich 

further testified that defendant then handed the cash to Waidleich, Waidleich counted it 

herself, and she also counted $287. Waidleich testified she placed $287 in the money 

envelope attached to defendant’s property bag, and wrote the amount on the relevant 

documents. 

The prosecution did not introduce any evidence that Burnett knew about the 

manner in which Waidleich conducted the search in Mojave.16 More importantly, there 

is no evidence defendant had access or control of the property bag after that point. 

Instead, the transportation deputies who escorted defendant from Mojave gave her 

property bag to the receiving deputy in Bakersfield. At that time, the receiving deputy 

 16 In her incident report, Burnett stated her belief that defendant might have been 

able to “pick up the money off of the counter without being noticed” because they were 

busy during the shift change “when the Mojave remands were brought in” to Bakersfield. 

Neither Burnett nor any other deputy testified to this belief at the evidentiary hearing. 

Moreover, there was no evidence that defendant had access to the property bag when she 

arrived at the jail. Instead, Burnett simply testified she believed defendant took the 

money to obtain reimbursement from the county. 
23. 

was supposed to sign for defendant and attest that he/she confirmed the contents of the 

property bag and counted the cash in the money envelope. Deputy Warmerdam signed as 

the receiving deputy. Deputy Hunter testified to her belief that Warmerdam was the 

receiving deputy who would have given the property bag to her. 

However, Warmerdam disavowed his status as receiving deputy and testified he 

merely signed to correct a clerical error, since the actual receiving deputy failed to do so. 

Warmerdam also testified he never checked defendant’s property bag or the money 

envelope prior to the discovery that defendant’s money was missing. He never tried to 

discover the actual identity of the receiving deputy who purportedly failed to sign for 

defendant’s arrival in Bakersfield. 

Deputy Hunter testified she opened the property bag and money envelope after 

defendant had been placed on the other side of the glass partition in the control booth. 

There was only a small opening in the glass between the booth’s two sides, and it was 

supposed to be kept locked on the deputy’s side. Hunter never testified the small opening 

was unlocked, that defendant reached through it, that she had the opportunity to do so, or 

that she could have reached the property bag and money envelope at any time she was in 

the control booth. 

Given these circumstances, there is no evidence to support the reasonable 

suspicion that defendant could have removed the cash after her belongings were seized 

and inventoried in Mojave, placed in the property bag, and delivered to the deputies in 

Bakersfield. Defendant remained in custody for the entire period. There is no evidence 

she had access to the property bag, or she could have or tried to reach for the money 

envelope when she was sitting in the control booth. 

Despite the absence of any reasonable suspicion that defendant took the money, 

Deputy Burnett’s immediate decision was to conduct the strip search. Based on the 

testimony at the suppression hearing, Burnett made this decision even before she 

searched other inmates in the holding cell, or any deputies who had access to the property 
24. 

bag. She also made the decision before she traced the path taken by the property bag and 

money envelope, which would have revealed Deputy Warmerdam’s admission that he 

falsely signed as the receiving deputy who confirmed the contents of the property bag. In 

addition, Burnett testified she decided to conduct the strip search of defendant solely 

because of her general belief that custodial inmates will likely steal their own money to 

file false claims against the county. At the evidentiary hearing, Burnett never testified 

that she (or any other deputy) had an individualized suspicion that defendant could have 

taken her money, and any such suspicion would not have been reasonable based on the 

record presented to this court. 

We thus conclude the deputies were required to have reasonable suspicion to 

conduct the strip search because there is no evidence defendant was going to be placed in 

general population, and there is no evidence to support any type of reasonable suspicion 

that she could have taken her own money. 

II. Defendant’s agreement to cooperate 

In ruling on defendant’s suppression motion, the superior court did not address 

defendant’s argument about whether there was reasonable suspicion to support the 

search. Instead, the court found the deputies acted in good faith and defendant consented 

to the search when she agreed to cooperate. Defendant now contends there is no 

evidence to support the court's conclusion that she consented to the strip search. We 

agree. 

A. Consent 

 “It has been long recognized that police officers, possessing neither reasonable 

suspicion nor probable cause, may nonetheless search an individual without a warrant so 

long as they first obtain the voluntary consent of the individual in question. [Citation.]” 

(United States v. Blake (11th Cir. 1989) 888 F.2d 795, 798; People v. Jenkins (2000) 22 

Cal.4th 900, 971.) 
25. 

“The voluntariness of consent is a question of fact to be determined from the 

totality of circumstances. [Citations.] If the validity of a consent is challenged, the 

prosecution must prove it was freely and voluntarily given – i.e., ‘that it was [not] 

coerced by threats or force, or granted only in submission to a claim of lawful authority.’ 

[Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 445-446, first brackets in original.) 

“The absence of official coercion is a sine qua non of effective consent, as it is axiomatic 

that ‘where there is coercion, there cannot be consent.’ [Citations.]” (United States v. 

Gonzalez (11th Cir. 1996) 71 F.3d 819, 828, citing Bumper v. North Carolina (1968) 391 

U.S. 543, 550; Florida v. Bostick (1991) 501 U.S. 429, 438.) 

A defendant’s consent to search may be express or implied, and may be 

demonstrated by conduct as well as words. (People v. Superior Court (Chapman) (2012) 

204 Cal.App.4th 1004, 1012.) “ ‘The existence of consent to a search is not lightly to be 

inferred,’ [citation], and the government ‘always bears the burden of proof to establish 

the existence of effective consent.’ [Citations.]” (United States v. Shaibu (9th Cir. 1990) 

920 F.2d 1423, 1426.) 

The court must determine whether the officer’s belief that defendant consented to 

the search is objectively reasonable under the circumstances. (People v. Lazalde (2004) 

120 Cal.App.4th 858, 865.) “The standard for measuring the scope of a suspect’s consent 

under the Fourth Amendment is that of ‘objective’ reasonableness – what would the 

typical reasonable person have understood by the exchange between the officer and the 

suspect? [Citations.]” (Florida v. Jimeno (1991) 500 U.S. 248, 251, italics added; 

People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) 

In asking for consent to search, officers are not required to advise the suspect of 

the right to refuse consent. (United States v. Drayton (2002) 536 U.S. 194, 206–207.) 

“ ‘The mere asking of permission to ... make a search carries with it the implication that 

the person can withhold permission for such an entry or search.’ [Citations.]” (People v. 

James (1977) 19 Cal.3d 99, 116.) 
26. 

B. Analysis 

 While we must defer to the trial court’s factual findings when supported by 

substantial evidence, there are no disputed facts about the exchange between Deputy 

Burnett and defendant regarding their conversation about “cooperation.” Deputy Burnett 

was the only witness who testified about this conversation, and defendant did not testify 

or offer a different version of events.17 Thus, the issue of whether this exchange 

constituted defendant’s voluntary consent to a visual body cavity search raises a question 

of law subject to our independent review. 

However, defendant was never asked if she would “consent” to the visual body 

cavity search. Instead, Deputy Warmerdam escorted defendant from the control booth to 

a private deck area, where she was met by Deputies Burnett and Deval. Deputy Burnett 

asked defendant a different question: 

“When I told her that we wanted to do a visual body cavity search, and I 

specifically, and I do it every time, I ask them are you going to cooperate 

with that, and [defendant] said yes.” (Italics added.) 

It is important to recognize exactly what defendant was being asked to “cooperate” 

with. As discussed ante, the parties and testifying witnesses alternatively described the 

search in this case as a “visual body cavity search” and a “strip search.” Section 4030 

defines a “ ‘[v]isual body cavity search’ ” as the “visual inspection of a body cavity,” and 

a “ ‘[p]hysical body cavity search’ ” as the “physical intrusion into a body cavity for the 

purpose of discovering any object concealed in the body cavity.” (§ 4030, subds. (d)(2), 

(d)(3).) 

The United States Supreme Court has observed that the term “strip search” is “... 

imprecise. It may refer simply to the instruction to remove clothing while an officer 

 17 A slightly different version of this conversation was set forth in defense 

counsel’s declaration in support of the Pitchess motion, but this hearsay declaration was 

not before the court at the suppression hearing. 
27. 

observes from a distance of, say, five feet or more; it may mean a visual inspection from 

a closer, more uncomfortable distance; it may include directing detainees to shake their 

heads or to run their hands through their hair to dislodge what might be hidden there; or it 

may involve instructions to raise arms, to display foot insteps, to expose the back of the 

ears, to move or spread the buttocks or genital areas, or to cough in a squatting 

position....” (Florence, supra, 132 S.Ct. at p. 1515.) The visual inspection of an 

arrestee’s naked body, even without a visual examination of body cavities, constitutes a 

“strip search.” (Edgerly, supra, 599 F.3d at p. 957; People v. Lowe, supra, 221 

Cal.App.4th at p. 1293.) 

As we have explained, “[t]he standard for measuring the scope of a suspect’s 

consent under the Fourth Amendment is that of ‘objective’ reasonableness – what would 

the typical reasonable person have understood by the exchange between the officer and 

the suspect? [Citations.]” (Florida v. Jimeno, supra, 500 U.S. at p. 251, italics added.) 

A stated desire to cooperate, standing alone, may be insufficient to constitute consent. 

(Honeycutt v. Aetna Ins. Co. (7th Cir. 1975) 510 F.2d 340, 344; cf., People v. Jenkins, 

supra, 22 Cal.4th at p. 973.) “Under some very limited circumstances,... courts will infer 

consent from the cooperative attitude of a defendant. [Citations.]” (United States v. 

Impink (1984) 728 F.2d 1228, 1232.) Officers may reasonably rely on a suspect’s 

apparent consent in situations where the suspect “ ‘ “deliberately chose a stance of eager 

cooperation in the hopes of persuading the police of his innocence” ’ [citation.]” and was 

“unfailingly cooperative and remained eager to prove his veracity ....” (Ford v. Superior 

Court (2001) 91 Cal.App.4th 112, 128.) 

As we have also explained, however, “the absence of official coercion is a sine 

qua non of effective consent, as it is axiomatic that ‘where there is coercion, there cannot 

be consent.’ [Citations.]” (United States v. Gonzalez, supra, 71 F.3d at p. 828, citing 

Bumper v. North Carolina, supra, 391 U.S. at p. 550; Florida v. Bostick, supra, 501 U.S. 

at p. 438.) Thus, consent is not voluntary when given in acquiescence to a claim of 
28. 

lawful authority. (Bumper v. North Carolina, supra, 391 U.S. at pp. 548–549; Florida v. 

Royer (1983) 460 U.S. 491, 497; People v. Boyer, supra, 38 Cal.4th at pp. 445–446.) 

Defendant was not asked if she would consent to a strip search. Instead, Deputy 

Burnett flatly told defendant the deputies were going to conduct the visual body cavity 

search to look for her missing money. Burnett never gave defendant the option to agree 

or disagree with what was about to happen. Burnett’s inquiry about whether defendant 

was going to “cooperate” was not the equivalent of asking for her consent or agreement 

to be searched in that manner. A typical reasonable person would have understood 

Deputy Burnett’s statements to mean that they were going to conduct the strip search 

regardless of defendant’s consent, and Burnett was trying to determine whether defendant 

was going to cooperate or comply with their orders to remove her clothing and follow 

their directives, or whether she would resist the strip search. When defendant said, “yes” 

to Burnett’s question, the plain meaning of the response under the circumstances was that 

she would cooperate and would not resist the deputies’ performance of the strip search. 

We thus conclude that, as a matter of law, the undisputed facts establish that 

defendant was not asked for and did not give her consent to be subject to a visual body 

cavity search. Given the absence of both reasonable suspicion to conduct the search, and 

any actual or reasonably inferable consent, we also conclude defendant’s motion to 

suppress the narcotics found during the illegal visual body search should have been 

granted, and defendant’s conviction based on her no contest plea to unauthorized 

possession of marijuana in jail must be reversed. 

III. Defendant’s Pitchess motion 

 While our resolution of the suppression motion will result in the reversal of 

defendant’s conviction, we find it important to address an additional issue regarding 

defendant’s Pitchess motion. As we will explain, we are concerned about the manner in 

which the custodian of records responded to the superior court’s directive to produce 

certain confidential personnel records at the in camera Pitchess hearing. 
29. 

A. Pitchess motions 

We begin with the well-settled standards for the Pitchess discovery procedure, 

which has two steps. First, the moving party must file a written motion describing the 

type of records sought, supported by “ ‘[a]ffidavits showing good cause for the discovery 

or disclosure sought, setting forth the materiality thereof to the subject matter involved in 

the pending litigation and stating upon reasonable belief that the governmental agency 

identified has the records or information from the records.’ ” (Evid.Code, § 1043, 

subd. (b)(3); People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc).) 

 Once the superior court finds good cause, it must conduct an in camera review of 

the pertinent documents to determine which, if any, are relevant to the case, typically 

disclosing only identifying information concerning those who filed complaints against the 

officers. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) “The trial court may 

not disclose complaints more than five years old, the ‘conclusions of any officer’ who 

investigates a citizen complaint of police misconduct, or facts ‘so remote as to make 

[their] disclosure of little or no practical benefit.’ [Citations.]” (Ibid., first brackets in 

original.) Even upon a showing of good cause, the defendant is only entitled to 

information that the court, after the in camera review, concludes is relevant to the case. 

(People v. Johnson (2004) 118 Cal.App.4th 292, 300.) 

 When the superior court conducts the in camera review, it must make a record that 

will permit future appellate review. (Mooc, supra, 26 Cal.4th at pp. 1229–1230; People 

v. Guevara (2007) 148 Cal.App.4th 62, 69.) The court may do so by either copying the 

documents and placing them in a confidential file, preparing a sealed list of the 

documents it reviewed, or “simply state for the record what documents it examined[]” 

and seal that transcript. (Mooc, supra, 26 Cal.4th at pp. 1229–1230.) 

The trial court has broad discretion in ruling on both the good cause and disclosure 

components of a Pitchess motion, and its ruling will not be disturbed absent an abuse of 
30. 

that discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; Haggerty v. 

Superior Court (2004) 117 Cal.App.4th 1079, 1086; Hughes, supra, 27 Cal.4th at p. 330.) 

 On appeal, this court is required to review the “record of the documents examined 

by the trial court,” and determine whether the superior court abused its discretion in 

refusing to disclose the contents of the officer’s personnel records pursuant to Pitchess. 

(Mooc, supra, 26 Cal.4th at p. 1229; Hughes, supra, 27 Cal.4th at p. 330.) Defendant is 

entitled to “meaningful appellate review” of the confidential files which were before the 

superior court when it denied his Pitchess motion for disclosure. (Mooc, supra, 26 

Cal.4th at p. 1228.) 

If there is any uncertainty in the record as to which documents were reviewed by 

the superior court, we may remand the matter with directions to conduct a hearing and 

clarify the materials it reviewed in camera before it denied the Pitchess motion. (Mooc, 

supra, 26 Cal.4th at p. 1231.) 

If this court determines that the superior court abused its discretion by denying 

disclosure of confidential records it had reviewed, reversal is not required unless the error 

was prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. 

(People v. Samuels (2005) 36 Cal.4th 96, 110; People v. Gaines (2009) 46 Cal.4th 172, 

182–183 (Gaines).) There must be a reasonable probability of a different outcome if 

potential impeachment evidence had been disclosed. (Gaines, supra, 46 Cal.4th at 

p. 182.) The determination of whether the court’s error was prejudicial “involves an 

assessment or weighing of the persuasive value of the evidence that was presented and 

that which should have been presented. [Citations.]” (Ibid., italics added.) 

B. The court’s original in camera review 

As explained ante, defendant’s Pitchess motion was filed in conjunction with her 

motion to suppress evidence. The Pitchess motion sought disclosure of Deputy 

Warmerdam’s personnel records for complaints of acts or instances of dishonesty, false 

arrests, and the fabrication of charges, reports, and/or evidence, to impeach his 
31. 

credibility, based on defendant’s allegations that one of the deputies took the cash from 

defendant’s property bag and it was unreasonable to conduct the strip search. 

In this case, the prosecution conceded, and the superior court found, defendant’s 

Pitchess motion established good cause for the superior court to conduct an in camera 

review of Deputy Warmerdam’s confidential personnel records for any allegations of 

dishonesty. 

On February 16, 2012, the court conducted an in camera review of Warmerdam’s 

confidential personnel records. After the in camera hearing, the parties returned to the 

courtroom, and the court advised them that it had reviewed Deputy Warmerdam’s 

records, and found there was no discoverable information. The court then conducted the 

evidentiary hearing on defendant’s motion to suppress. 

C. This court’s order for a settled statement 

 On appeal, defendant asked this court to review Warmerdam’s confidential 

personnel records and the sealed transcript of the in camera hearing pursuant to Mooc, 

and determine whether the superior court abused its discretion when it denied discovery. 

 When the appellate record was prepared, this court determined the superior court 

did not keep copies of Warmerdam’s confidential records it reviewed at the in camera 

hearing, and there were no records filed with this court which purported to be the records 

reviewed by the superior court at the in camera Pitchess hearing. 

On July 2, 2012, this court ordered the superior court to augment the appellate 

record with the confidential records it reviewed during the February 16, 2012, in camera 

Pitchess hearing, and to seal the records filed with this court, in order for this court to 

review defendant’s Pitchess contentions. We further ordered that if the superior court did 

not keep copies of those files, it should order the custodian to produce those records, 

conduct another confidential hearing, and prepare a confidential settled statement stating 

whether the records received from the custodian were the same records it previously 

reviewed; whether it had reviewed additional records at the previous in camera hearing; 
32. 

and any other pertinent information, with all records and transcripts to be filed under seal 

with this court. 

D. The superior court’s settled statement 

 On July 20, 2012, the superior court conducted a confidential in camera hearing to 

prepare the settled statement on the Pitchess motion, as ordered by this court. Thereafter, 

the superior court filed a sealed settled statement with this court, and stated that the 

custodian of records appeared and presented certain files, and “[u]pon review of the files 

the [superior] court finds that there are materials contained in the file which were not 

reviewed by the court at the time of the in camera hearing held on February 16, 2012.” 

Thereafter, the superior court transmitted the confidential settled statement and 

accompanying exhibits to this court under seal, in compliance with this court’s order to 

perfect the appellate record.18

E. Analysis 

As noted above, the trial court has broad discretion in ruling on the disclosure 

components of a Pitchess motion, and its ruling will not be disturbed absent an abuse of 

that discretion. (Alford v. Superior Court, supra, 29 Cal.4th at p. 1039; Haggerty v. 

Superior Court, supra, 117 Cal.App.4th at p. 1086; Hughes, supra, 27 Cal.4th at p. 330.) 

On appeal, this court is required to review the “record of the documents examined by the 

trial court” and determine whether the superior court abused its discretion in refusing to 

disclose the contents of the officer’s personnel records pursuant to Pitchess. (Mooc, 

supra, 26 Cal.4th at p. 1229; Hughes, supra, 27 Cal.4th at p. 330.) 

However, this court cannot conduct the review required by Mooc when the 

custodian of records fails to comply with the superior court’s Pitchess order to present the 

 18 With the exception of the sentence quoted herein, we hereby order that the 

entirety of the superior court’s settled statement of July 20, 2012, together with 

accompanying exhibits, shall remain sealed until further order of this court. 
33. 

entirety of the personnel records, in order for that court to conduct the discretionary 

review required by statute. (Mooc, supra, 26 Cal.4th at p. 1229; Hughes, supra, 27 

Cal.4th at p. 330.) 

We are very concerned about the custodian’s apparent failure or inability to 

comply with the superior court’s initial order to present the entirety of the confidential 

records at the February 16, 2012, Pitchess hearing. The superior court could not have 

known that it was not reviewing the entirety of the file when it conducted the initial 

Pitchess review. The custodian’s error was discovered simply through the happenstance 

of the superior court’s failure to preserve copies of the confidential documents it 

reviewed on February 16, 2012, and this court’s order for a sealed settled statement to 

perfect the appellate record. 

In an analogous situation, the proper remedy when the superior court “has 

erroneously rejected a showing of good cause for Pitchess discovery and has not 

reviewed the requested records in camera is not outright reversal, but a conditional 

reversal with directions to review the requested documents in chambers on remand. 

[Citation.]” (Gaines, supra, 46 Cal.4th at p. 180.) Thus, if the superior court had initially 

declined to conduct any in camera review, and we found it abused its discretion by 

making that ruling, we would conditionally reverse defendant’s plea, remand for another 

Pitchess hearing, and direct the court to conduct the necessary review of confidential 

documents. 

A similar remedy would have been appropriate if further proceedings had been 

necessary in this case. Based on this court’s resolution of the suppression motion, 

however, we find it unnecessary to order further additional proceedings pursuant to 

Pitchess. We have concluded that the deputies were required to have reasonable 

suspicion to conduct the visual body cavity search, they did not have any reasonable 

suspicion, and defendant did not consent to the search. We expect the custodians who 
34. 

respond to the superior court’s Pitchess orders will fully comply with their statutory 

duties to present the entirety of the records requested by the court.19

DISPOSITION 

 Defendant’s plea is vacated and the judgment is reversed. 

The superior court’s confidential settled statement of July 20, 2012, and the 

confidential records filed with this court as exhibits to the settled statement, shall remain 

under seal with this court. The confidential personnel records shall not be subject to 

routine destruction until further order of this court. (See, e.g., City of Los Angeles v. 

Superior Court (2002) 29 Cal.4th 1, 11–13.) 

 _____________________ 

 Poochigian, J. 

WE CONCUR: 

_______________________ 

Levy, Acting P.J. 

_______________________ 

Kane, J. 

 19 Given our resolution of defendant’s suppression motion, we need not address 

her remaining issues.