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Case Summary: Abraham Hernandez et al. v. The Superior Court of Sacramento County; The People (Court of Appeal of California, Third District, Sept. 17, 1980)

Factual and Procedural Background

This opinion concerns pretrial appellate review of trial-court orders denying motions to suppress certain evidence (Pen. Code, § 1538.5, subd. (i)). Petitioners (Abraham Hernandez and codefendants Sosa, Delia, and Juan Hernandez) face a four-count indictment charging conspiracy to commit murder and murder of Ellen Delia.

Relevant facts described by the court: Ellen Delia was found shot to death on February 18, 1977. On February 19 defendant Michael Delia (the victim's husband) told Sacramento Police Officer Steed that his wife had possessed a purse containing credit cards, including a Texaco card. Monterey Park officers stopped a vehicle on February 20 containing defendant Sosa and another; a gun was found, the occupants were arrested and the vehicle impounded. An impound search on February 21 produced a Texaco sales slip "soft copy" (from the vehicle) indicating a gasoline purchase using a Texaco card in the name of M.A. Delia on February 17 for vehicle license number 926 MUR.

The trial court suppressed the soft copy as the fruit of an illegal detention and arrest; the People do not contest this suppression. Sacramento officer Steed later received the soft copy from an LAPD sergeant. Separately, Officer Padovan obtained Texaco's "hard copy" of the February 17 sales slip from Texaco's regional distributor on February 23 without a search warrant or subpoena duces tecum.

Defendant Hernandez moved to suppress the hard copy, arguing it was obtained without a valid warrant and without the cardholder's consent, invoking recent authority concerning privacy in financial records. The trial court denied suppression of the hard copy, finding a reasonably strong probability it would have been discovered by lawful means independent of the earlier illegality. The court also denied suppression of evidence seized in a subsequent parole search of Hernandez's residence and Volkswagen. The defendants petitioned for a writ; this Court issued an alternative writ of mandate and addressed the issues on the papers.

Legal Issues Presented

  1. Whether Texaco's hard-copy sales slip for the February 17 transaction (the challenged credit card record) must be suppressed because it was seized without a warrant or lawful process and thus violated a cardholder's expectation of privacy.
  2. Whether the rule announced in People v. Blair (1979) — recognizing a credit-card holder's reasonable expectation of privacy in issuer-held transaction records — should be applied retroactively to bar admission of evidence obtained before Blair was decided.
  3. Whether the "inevitable discovery" doctrine permits admission of (a) the Texaco hard copy and (b) evidence seized during a parole search of Hernandez's residence and vehicle despite their being indirectly connected to antecedent unlawful police conduct.
  4. Whether the parole search of Hernandez's residence and Volkswagen was a lawful, non-pretextual exercise of the parole condition consenting to searches, and whether the vehicle was within Hernandez's control so that its search was valid despite registration in his wife's name.

Arguments of the Parties

Petitioners' (Defendants') Arguments

  • The Texaco hard copy was obtained by Officer Padovan from the Texaco regional distributor without a warrant or subpoena and without the cardholder Delia's consent, violating Delia's rights against unreasonable searches and seizures (Cal. Const., art. I, § 13).
  • Relying on People v. Blair (1979) and Burrows v. Superior Court (1974), petitioners argued a reasonable expectation of privacy exists in issuer-held credit card transaction records, rendering the unconsented seizure unconstitutional.
  • Defendant Hernandez argued the parole search of his residence and Volkswagen was a ruse or pretext for an otherwise improper warrantless search, and that the Volkswagen (registered to his wife Sally) was not under his control so the vehicle search and its fruits should be suppressed.

Real Party in Interest's (The People) Arguments

  • The hard copy of the Texaco sales slip would have been discovered by lawful means independent of the illegal vehicle stop and impound search (invoking the inevitable discovery doctrine and citing People v. Superior Court (Tunch)).
  • The Sacramento police investigation had independently begun and the police were aware of the Texaco credit card and its relevance from information provided by defendant Delia prior to the illegal stop; thus admission of the hard copy would not violate the exclusionary rule.
  • As to the parole search, the People contended the search was lawful because Hernandez had executed a parole agreement consenting to warrantless searches; the parole agent made an independent decision to arrest and search, and the search was supported by reasonable suspicion of continued misconduct (so it was not merely a police ruse).
  • The Volkswagon, although registered to the wife, was shown by evidence to be under Abraham Hernandez's control, so lack of Sally's consent did not invalidate the search.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v. Superior Court (Sosa) (Cal.App.) Referenced as the contemporaneous opinion concerning suppression of information supplied by Gonzales as tainted by illegal detention and arrest. The court noted it had denied the People's petition in that matter; that suppression of Gonzales' information (as product of illegal stop) was upheld in that separate opinion.
People v. Superior Court (Tunch), 80 Cal.App.3d 665 Describes and applies the "inevitable discovery" doctrine to admit evidence that would otherwise be the fruit of illegal police conduct if there is a reasonably strong probability the evidence would have been discovered lawfully. The People relied on Tunch to argue the Texaco records would inevitably have been discovered; the court cited Tunch in upholding trial-court finding that the hard copy would have been discovered by lawful means.
People v. Blair, 25 Cal.3d 640 (1979) Holds that credit-card holders have a reasonable expectation of privacy in issuer-held transaction information; official seizure without prior judicial determination violates Cal. Const., art. I, § 13. Defendant invoked Blair to attack the hard copy. The court analyzed whether Blair announced a new rule and concluded Blair should not be applied retroactively to bar admission of the records in this case.
Burrows v. Superior Court, 13 Cal.3d 238 (1974) Established that a bank customer may have a reasonable expectation of privacy in banking records held by a bank. The court noted Blair applied Burrows' rationale to credit-card records. The court considered the similarity but concluded that Blair expounded a new legal principle for retroactivity analysis.
People v. Kaanehe, 19 Cal.3d 1 (1977) Notes that applying the general framework for "reasonable expectation of privacy" does not automatically settle specific privacy questions; referenced for retroactivity criteria and legal framework. The court cited Kaanehe for the principle that retroactivity must be determined by established criteria and that applying a framework does not preordain results in different factual contexts.
In re Johnson, 3 Cal.3d 404 (1970) One of the cases setting forth criteria to determine whether a new rule should be applied retroactively. The court relied on the settled policy criteria discussed in Johnson (and Kaanehe) when deciding that Blair is a new rule and should not be applied retroactively.
People v. Superior Court (Harris), 100 Cal.App.3d 386 (1979) Discussed in context of retroactivity and the deterrent purpose of exclusionary rules. The court cited Harris in support of the proposition that retrospective application of exclusionary rules does not serve the deterrent purpose and thus weighs against retroactive application.
United States v. Peltier, 422 U.S. 531 (1975) Addressed the role of good faith and judicial integrity when admitting evidence obtained by law enforcement acting in reasonable good-faith belief of lawful procurement. The court cited Peltier to support the conclusion that admission of the Texaco evidence would not violate judicial integrity because Sacramento officers acted in reasonable good faith and independently of the illegal conduct by Monterey Park officers.
People v. Lawler, 9 Cal.3d 156 (1973) Supports the application of inevitable discovery to admit otherwise tainted evidence and is cited in relation to parole-search evidence. The court relied on Lawler (and related cases) to conclude that the inevitable discovery doctrine applies to evidence seized in the parole search as well as to the Texaco records.
People v. Emanuel, 87 Cal.App.3d 205 (1978) Referenced as authority supporting admission of evidence under inevitable discovery in contexts similar to parole searches. Cited with Lawler and Tunch to support admissibility of parole search evidence under inevitable discovery.
People v. Mason, 5 Cal.3d 759 (1971) Holds that a parolee's waiver of privacy rights as a parole condition is a valid basis for a warrantless search if the condition is reasonably related to future criminality. The court cited Mason to support the lawfulness of the parole search based on Hernandez's parole agreement consenting to searches.
People v. Turner, 54 Cal.App.3d 500 (1976) States that a parole search may be founded on "any report, or suspicion, or belief of continued misconduct" reasonably suggestive of criminal activity and not used for harassment. The court used Turner to support that the parole search here was lawful given reasonable suspicion and the parole waiver, and to reject the proposition the search was merely pretextual.
People v. Howard, 79 Cal.App.3d 46 (1978) Related authority concerning parole-search waivers and the reasonable relationship to preventing future criminality. Referenced with Mason and Turner to support legal principles permitting parole searches under such conditions.
People v. Guerrero, 85 Cal.App.3d 572 (1978) Addresses parole searches and provides authority that such searches must not be for harassment. Cited to emphasize that parole searches are permissible when not conducted for harassment and grounded in reasonable suspicion.
People v. Coffman, 2 Cal.App.3d 681 (1969) Condemns searches conducted by a parole agent acting solely as a "front" for the police and based only on parole status. The court distinguished Coffman as inapposite here because Hernandez's parole agreement expressly permitted searches by "any law enforcement officer," and the parole agent exercised independent judgment.
People v. Icenogle, 71 Cal.App.3d 576 (1977) Addresses situations where a parolee consents to searches by law enforcement and third-party consent issues. Cited to show Coffman does not apply where parolee agreed to searches by "any law enforcement officer" and to support the proposition that third-party (spouse) lack of consent does not defeat a lawful search based on the parolee's consent.
People v. Anglin, 18 Cal.App.3d 92 (1971) Holds that a parole officer may enter and search a parolee's residence even if suspicions do not amount to probable cause. The court cited Anglin to support the relaxed standard for parole searches and the propriety of the parole agent's entry and search in this case.
People v. Reynolds, 55 Cal.App.3d 357 (1976) Addresses control of a vehicle by a defendant for purposes of search validity. The court cited Reynolds to support the finding that the Volkswagen—though registered in Sally's name—was under Abraham Hernandez's control and therefore lawfully searchable, noting Reynolds was disapproved on other grounds in People v. James (1977) on unrelated issues.
People v. James, 19 Cal.3d 99 (1977) Referenced only to note that Reynolds was disapproved on other grounds in James. The court mentioned James to acknowledge Reynolds had been disapproved on other grounds; it did not rely on James for the controlling principle here.
Russi v. Superior Court, 33 Cal.App.3d 160 (1973) Discusses a defendant's inability to assert lack of third-party consent when the defendant's own rights permit the search. The court cited Russi to support the proposition that Sally's lack of consent is irrelevant because the vehicle was searchable under Hernandez's parole condition and control.

Court's Reasoning and Analysis

The court proceeded in a sequential analysis limited to the record and authorities cited in the opinion:

  1. Background and immediate suppression: The trial court suppressed the Texaco soft copy discovered in the Monterey Park impound search as the fruit of an illegal detention and arrest; that suppression was not contested by the People. The hard copy, however, was later obtained by Sacramento Officer Padovan from Texaco's regional distributor without a warrant or subpoena.
  2. Nature of defendant's attack and Blair: Defendant's primary attack on the hard copy invoked People v. Blair, which applied Burrows' "reasonable expectation of privacy" analysis to credit-card issuer records and held seizure without prior judicial determination unconstitutional. The court first addressed whether Blair should be applied retroactively to the facts here.
  3. Retroactivity analysis: The court concluded Blair announced a new legal principle (even though it applied a test similar to Burrows) and therefore retroactivity rules must be applied. Citing precedents (Kaanehe, In re Johnson, Harris), the court emphasized the deterrent purpose of exclusionary rules and noted that retrospective application of such rules typically does not serve deterrence. The court also reasoned it was unrealistic to expect Sacramento police to have anticipated Blair's applicability in February 1977 and observed the Sacramento investigation was independent of Monterey Park's illegal conduct.
  4. Good-faith and judicial integrity: Citing United States v. Peltier, the court held that admission of the Texaco records would not violate judicial integrity because the Sacramento officers acted in reasonable good faith and independently of the wrongful acts of other officers. The court therefore concluded Blair should not be applied retroactively and that Delia had no legally cognizable privacy interest in the Texaco records for purposes of retroactivity.
  5. Additional factual points: The court noted that defendant Delia had supplied information to Sacramento police about the Texaco card (including the account number) before Padovan's acquisition of the hard copy, further undermining any claim of a cognizable privacy expectation in this context.
  6. Inevitable discovery: Turning to whether the Texaco hard copy (indirect product of the earlier illegal stop) would nevertheless have been discovered lawfully, the court applied the inevitable discovery doctrine (as articulated in Tunch and Lawler). It found substantial evidence supported the trial court's finding of a reasonably strong probability that the hard copy would have been discovered independent of the illegality because Sacramento detectives had already begun investigating the Texaco card based on information from Delia.
  7. Parole search evidence: The court extended the inevitable discovery analysis to evidence seized in the parole search of Hernandez's residence and Volkswagen. It found the parole search lawful because Hernandez had executed a parole agreement consenting to searches, the parole agent Rodriguez made an independent decision to arrest and search (not merely a front for police), and the information linking the Volkswagen to the murder provided legitimate reason to suspect Hernandez's involvement. The court rejected Hernandez's arguments that the parole search was a ruse or that the vehicle was not under his control, citing authority that a parolee's waiver permits warrantless searches reasonably related to preventing future criminality and that a parole officer may search without probable cause.
  8. Third-party consent: Because Hernandez's parole consent covered property under his control, the lack of Sally Hernandez's consent to search the vehicle was irrelevant to his ability to challenge the search; the court relied on authority to support that point.

Holding and Implications

Holding: The court denied the petition for writ of mandate and discharged the alternative writ. The court affirmed the trial court's orders denying suppression of (1) the Texaco hard copy of the February 17 sales slip and (2) the evidence seized in the parole search of Hernandez's residence and Volkswagen. In particular, the court held that the People may introduce the Texaco hard copy and the parole search evidence at trial.

The court specifically determined that (a) People v. Blair announced a new rule that should not be applied retroactively to bar admission in this case, and (b) substantial evidence supported the trial court's finding that the Texaco hard copy would have been discovered by lawful means (inevitable discovery), and (c) the parole search was lawful under Hernandez's parole consent and the parole agent's independent actions.

Implications: The direct effect is to permit admission at trial of the contested Texaco records and the fruits of the parole search; the petition for mandamus relief was denied and the alternative writ discharged. The opinion addresses the retroactivity of Blair and applies established retroactivity criteria to conclude Blair does not apply here; the court did not purport to announce a change in law beyond its retroactivity conclusion and did not state that it was establishing a new precedent beyond resolving the suppression questions in these proceedings.

ABRAHAM HERNANDEZ et al., Petitioners, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

OPINION

PUGLIA, P.J.

Abraham Hernandez seeks pretrial appellate review of orders denying the suppression of certain evidence. (Pen. Code, § 1538.5, subd. (i).) He faces a four-count indictment charging him and codefendants Sosa, Delia, and Juan Hernandez with conspiracy to commit murder (Pen. Code, § 182, subd. 1) and murder (Pen. Code, § 187) of Ellen Delia, the estranged wife of codefendant Michael Delia. The codefendants have joined in the present petition. (Hereafter Abraham Hernandez will be referred to as defendant or Hernandez and his codefendants in the underlying prosecution will be referred to as defendants.) We have issued an alternative writ of mandate.

I.

On February 18, 1977, the body of Ellen Delia was found in the vicinity of the Sacramento Metropolitan Airport; she had been shot, execution-style, the previous evening. There were no personal belongings or identification of Ellen at the murder scene.

On February 19, Sacramento Police Officer Steed, who was investigating the murder, telephoned defendant Delia, the victim's husband. Defendant Delia told Steed that he had last seen his wife when he took her to the Los Angeles International Airport on February 17 and that she had in her possession at the time a purse containing a number of credit cards, including one issued by Texaco. The absence of credit cards on Ellen Delia's body suggested to Steed that the killer had taken them.

Between February 19 and 21, Sacramento police officers began investigating certain airline credit cards which defendant Delia had indicated his wife had possessed, but no action was taken at this time with respect to the Texaco credit card.

Meanwhile on the evening of February 20, officers of the Monterey Park Police Department stopped a vehicle occupied by defendant Sosa and Armando Varela. A gun was found in the passenger compartment of the car; as a consequence the two occupants were arrested and the vehicle impounded. An impound search on February 21 uncovered a customer's sales slip (soft copy) from a Texaco credit card transaction. This sales slip showed that a Texaco credit card in the name of M.A. Delia had been used to purchase gasoline from Ron Mahoney's Texaco station in Sacramento on February 17, the day of the homicide. The gasoline was purchased for a vehicle with California license number 926 MUR.

The trial court found the detention and arrest of defendant Sosa and Varela by Monterey Park police officers to be illegal. Accordingly, the trial court suppressed as evidence the soft copy of the sales slip as the fruit of an illegal arrest. The People do not contest this ruling.

On February 21, Officer Steed went to Los Angeles to develop clues regarding the Ellen Delia murder. Sometime after his arrival, he received the soft copy of the Texaco credit card transaction from Sergeant Helvin of the Los Angeles Police Department. Helvin had participated in the impound search of the vehicle occupied by Sosa and Varela. Steed then contacted the Sacramento Police Department and requested that an officer obtain Texaco's copy (hard copy) of the sales slip from the credit card transaction.

On February 22, Steed again talked to defendant Delia at his home in Alhambra. At this time, Delia supplied Steed with the account number of the Texaco credit card and said the card was issued to M.A. Delia.

Also on February 22, Sacramento Police Officer Padovan went to Ron Mahoney's Texaco station to locate the hard copy of the sales slip of the February 17 purchase. Padovan was unable to recover the hard copy because it had already been sent to the Texaco distributor. On February 23, Padovan recovered the hard copy from the Texaco regional distributor. Padovan had neither a search warrant nor a subpoena duces tecum.

On March 5, Steed interviewed Edward Gonzales, who was incarcerated in the Los Angeles jail on unrelated charges. Gonzales had previously decided to cooperate with law enforcement regarding his knowledge of and participation in criminal activity, including the Ellen Delia homicide.

The trial court ordered suppressed the information supplied by Gonzales, having determined it was the tainted product of the illegal detention and arrest of Sosa and Varela. In an opinion filed contemporaneously herewith ( People v. Superior Court ( Sosa) (Cal.App.)), this court denied the People's petition for peremptory writ of mandate to vacate the trial court's ruling.

Reporter's Note: Hearing granted July 3, 1981 (S.F. 24311).

In the interview, Gonzales related that defendants Sosa and Abraham Hernandez and his wife, Sally Hernandez, had purchased gasoline for Hernandez' Volkswagen on the morning of February 17, the day of the murder, by using defendant Delia's Texaco credit card. Gonzales said that prior to the homicide he and defendant Sosa had used the credit card several times in their travels throughout the state.

Because Steed wanted to corroborate Gonzales' account of the several Texaco credit card transactions before and after Ellen Delia's murder, he served a subpoena duces tecum on Texaco on May 25, 1977. The subpoena was directed to all transactions using the Delia Texaco card from January 20, 1977, to February 24, 1977.

On June 14, Steed received the subpoenaed records from Texaco and delivered them in a sealed condition to the Sacramento County Grand Jury. These records did not contain evidence of the February 17 credit card transaction, however, because Padovan had already received Texaco's hard copy from that transaction.

Defendant Hernandez moved to suppress the hard copy of the February 17th Texaco sales slip contending it was obtained from the Texaco distributor without a valid search warrant and without defendant Delia's consent in violation of Delia's constitutional rights. In opposition, the People contended that the hard copy inevitably would have been discovered independent of the illegality of the vehicle stop and impound search on February 20 and 21 respectively. ( People v. Superior Court ( Tunch) (1978) 80 Cal.App.3d 665 [ 145 Cal.Rptr. 795].)

The trial court found ". . . there is a reasonably strong probability that the [hard copy] would have been discovered by legal means" independent of the illegality which began with the vehicle stop; accordingly, the court denied defendant's motion to suppress the hard copy. The court emphasized that an investigation by Sacramento police independent of the unlawful conduct by the Monterey Park officers had begun and the police were aware of the Texaco credit card before the illegal vehicle stop.

The inevitable discovery doctrine applies only to evidence obtained as the indirect product, or fruit, of other evidence illegally seized. ( People v. Superior Court ( Tunch), supra, 80 Cal.App.3d at pp. 672-673.) It is inapplicable to a situation where the challenged evidence is itself illegally obtained apart from any taint imputed to it from its connection with antecedent illegal police conduct, here, the vehicle stop. (1) In this proceeding, defendant's primary attack on the Texaco hard copy is based on People v. Blair (1979) 25 Cal.3d 640 [ 159 Cal.Rptr. 818, 602 P.2d 738], a decision rendered after the acquisition of the challenged evidence. Thus defendant contends that the police seizure of the Texaco credit card record without lawful process in and of itself violated defendant Delia's constitutional guarantee against unreasonable search and seizure (Cal. Const., art. I, § 13).

Applying the rationale of Burrows v. Superior Court (1974) 13 Cal.3d 238 [ 118 Cal.Rptr. 166, 529 P.2d 590], Blair holds that a credit card holder has a reasonable expectation of privacy in information in the hands of the issuer concerning his credit card charges; official seizure of this information without a prior judicial determination of entitlement thereto constitutes an unconstitutional invasion of the holder's right guaranteed by California Constitution, article I, section 13 to be secure against unreasonable searches and seizures. ( People v. Blair, supra, 25 Cal.3d at pp. 646, 651-652.) (Presumably a warrant is not needed as in all other cases where there is consent or exigent circumstances exist.)

Blair does not address the question whether the rule it announces is to be applied retroactively. If the Blair holding is a straightforward application of existing precedent, no issue of retroactivity arises and Blair clearly controls this case. We conclude, however, that Blair does expound a new legal principle thus requiring the application thereto of settled policy criteria to determine whether Blair should operate prospectively only or retroactively as well.

The seminal case of Burrows v. Superior Court, supra, turned on whether a bank customer entertains "a reasonable expectation of privacy" in records of his banking transactions in the hands of the bank. Blair applies the same test to the credit card holder. However, the fact that the identical test is applied to resolve each case is not dispositive of the issue of retroactivity. "There is a vast array of possible circumstances in which a person may or may not have a reasonable expectation of privacy. These questions cannot be deemed to be settled merely because the general framework for evaluating them has been established." ( People v. Kaanehe (1977) 19 Cal.3d 1, 10, fn. 6 [ 136 Cal.Rptr. 409, 559 P.2d 1028].) Indeed when the highest court in California is convened solemnly to decide "whether the rationale of Burrows applies to copies of bills charged to a credit card used by defendant . . ." ( Blair, supra, 25 Cal.3d at p. 646) the assumption that the Sacramento police should have anticipated the decision and its applicability to the present facts as a test of their good faith is totally unrealistic. One need not disagree with the Blair holding to appreciate that the similarities between the records of banks and credit card companies in terms of the privacy interests therein of the customers of such institutions are not so palpably congruent that a rule fashioned to protect the privacy interest in one situation will necessarily be applied to the other.

The criteria used to determine whether a new rule is to be applied retroactively have been set forth elsewhere in the reported decisions and will not be repeated here. ( People v. Kaanehe, supra, at p. 10; In re Johnson (1970) 3 Cal.3d 404, 410-413 [ 83 Cal.Rptr. 465]. It is sufficient to point out that the application of exclusionary rules implementing the constitutional prohibition against unreasonable searches and seizures is not necessary to ensure the reliability of the fact finding process; the purpose underlying such exclusionary rules is to deter illegal police activity; retrospective application of such rules obviously does not serve that purpose ( People v. Kaanehe, supra, 19 Cal.3d at p. 10; In re Johnson, supra, 3 Cal. 3d at p. 412; People v. Superior Court ( Harris) (1979) 100 Cal.App.3d 386, 389 [ 160 Cal.Rptr. 880]. Moreover, the Sacramento police investigation was independent of that of the Monterey Park Police Department and the officers conducting it acted in the reasonable good faith belief that the Texaco records were lawfully obtained. Therefore the imperative of judicial integrity will not be violated by introduction of the Texaco credit card evidence at trial. ( United States v. Peltier (1975) 422 U.S. 531, 536-539 [45 L.Ed.2d 374, 380-382, 95 S.Ct. 2313].)

In summary, we conclude that the Blair holding does not operate retroactively and therefore defendant Delia had no legally cognizable privacy interest in the Texaco credit card records.

Moreover, at the time the Sacramento police obtained the hard copy of the Texaco credit card transaction, defendant Delia, the holder of the card, without apparent reservation, had furnished information to the police concerning the card. However the conduct of the police may be viewed in hindsight, the responsible officers can hardly be faulted if they did not consider acquisition of the hard copy an act implicating defendant Delia's right to privacy.

Since it is not contended nor does the record in any way indicate that any privacy interest of Texaco was violated, seizure of the Texaco credit card record was not the direct consequence of unlawful police conduct.

(2a) It remains to be determined whether substantial evidence supports the trial court's finding that the Texaco hard copy, which was the indirect product of antecedent unlawful police conduct, i.e., the detention and arrest of defendants Sosa and Varela, would nevertheless have been discovered by lawful means.

(3) The doctrine of inevitable discovery applies to evidence which otherwise would be inadmissible as the fruit of the poisonous tree; it was developed to avoid unjustly conferring immunity from prosecution and conviction on criminals. ( People v. Superior Court ( Tunch), supra, 80 Cal.App.3d at p. 673.) Thus where there is a reasonably strong probability that the evidence would have been discovered by lawful means independent of the illegality, such evidence will not be excluded. ( Id., at p. 681.)

(2b) Prior to the receipt by the Sacramento police of the illegally seized Texaco soft copy, Steed was aware through information from defendant Delia of the Texaco credit card and its significance to his investigation. He later learned from defendant Delia the number of the card and that it was in the name of M.A. Delia.

We conclude that substantial evidence supports the trial court's finding there was a reasonably strong probability that the Texaco hard copy would have been discovered by legal means.

II.

It will be recalled that the unlawfully seized soft copy of the Texaco sales slip showed that gasoline was purchased for a vehicle with California license number 926 MUR; Officer Padovan obtained the hard copy from Texaco on February 23.

On about February 22, Officer Willover of the Sacramento police learned that the vehicle for which the gasoline had been purchased was a blue Volkswagen registered to Sally Hernandez residing at 3800 43d Avenue in Sacramento. Willover learned from police intelligence records that Sally was living at that address with her husband Abraham Hernandez and that Abraham was a reputed member of the Mexican Mafia.

On February 25, Willover contacted defendant Hernandez' parole officer, Martin Rodriguez, who verified that Hernandez was on parole and advised that he had consented to a law enforcement search as a condition of parole. Willover informed Rodriguez of the credit card transaction and how it linked defendant Hernandez to the Delia murder. Rodriguez already knew from talking to Hernandez that he drove the blue Volkswagen and appeared to own it. Later in the evening of that same day, Rodriguez, who had requested to be present at a search of Hernandez, went alone to the Hernandez residence. He arrested Hernandez for missing a narcotics test on February 24, for failure to make an appointment on the afternoon of February 25, and for his suspected involvement in the Ellen Delia murder. Willover's car pulled up as Rodriguez said to Hernandez, "We're going to be taking you in."

A parole search of the Hernandez Volkswagen and residence ensued which resulted in the seizure of photographs, address books and miscellaneous documents belonging to Sally and Abraham Hernandez. Hernandez' motion to suppress this evidence was denied by the trial court.

(4a) Although the soft copy of the Texaco sales slip provided the immediate impetus for the parole search, we believe the trial court's findings with respect to inevitable discovery apply equally to evidence seized in the parole search as to the Texaco hard copy, rendering admissible the parole search evidence. ( People v. Lawler (1973) 9 Cal.3d 156, 160 [ 107 Cal.Rptr. 13, 507 P.2d 621]; People v. Superior Court ( Tunch), supra, 80 Cal.App.3d at p. 673; People v. Emanuel (1978) 87 Cal.App.3d 205, 214 [ 151 Cal.Rptr. 44].)

As heretofore stated, the trial court specifically found the credit card investigation had begun independently of any illegal acts; the police were aware of the Texaco credit card and its significance to their investigation from information supplied them by defendant Delia on February 19 and 22. The trial court's findings are supported by substantial evidence.

Defendant Hernandez further contends, however, that the purported parole search of his residence and Volkswagen was merely a ruse for an otherwise improper warrantless search. The trial court dismissed this contention as lacking in merit. The record amply supports the court's determination. ( People v. Lawler, supra, 9 Cal.3d at p. 160.)

Defendant Hernandez had executed a parole agreement containing the following provision: "I agree that I, my residence and any property under my control may be searched without a warrant at any time by any agent of the Department of Corrections or any law enforcement officer."

(5a) The law is settled that a parolee's waiver as a parole condition of his privacy rights is a valid basis for a warrantless search if the condition imposed is reasonably related to future criminality. ( People v. Mason (1971) 5 Cal.3d 759, 762, 764-765 [ 97 Cal.Rptr. 302, 488 P.2d 630]; People v. Turner (1976) 54 Cal.App.3d 500 [ 126 Cal.Rptr. 652]; People v. Howard (1978) 79 Cal.App.3d 46, 49 [ 143 Cal.Rptr. 342].) When a parolee has waived such rights, a parole search may be founded on "any report, or suspicion, or belief of continued misconduct" reasonably suggestive of criminal activity and is legal as long as the search is not for the purpose of harassment. ( People v. Turner, supra, 54 Cal.App.3d at p. 507; People v. Guerrero (1978) 85 Cal.App.3d 572, 581-582 [ 149 Cal.Rptr. 555] ; see also People v. Mason, supra, 5 Cal.3d at p. 765, fn. 3.) (4b) Here, the information provided by Willover regarding the connection of the Hernandez vehicle to the Delia murder was legitimate reason to suspect that Abraham Hernandez was involved in the homicide.

People v. Coffman (1969) 2 Cal.App.3d 681 [ 82 Cal.Rptr. 782], relied on by Hernandez, condemned a search conducted by a parole agent acting solely as a "front" for the police and based solely on the parolee's status (at p. 688). Coffman is inapposite to a situation where the parolee has agreed to a search by "any law enforcement officer." ( People v. Icenogle (1977) 71 Cal.App.3d 576, 584-585 [ 139 Cal.Rptr. 637]; People v. Mason, supra, 5 Cal.3d 759.)

Moreover, Parole Agent Rodriguez made an independent determination to arrest Hernandez and to conduct the parole search. As the trial court found, Rodriguez decided that Hernandez had violated his conditions of parole by missing a scheduled narcotics test and an appointment the following day. He was also aware of the information linking Hernandez to the Delia murder. (5b) A parole officer may enter and search a parolee's residence even if his suspicions do not amount to probable cause. ( People v. Anglin (1971) 18 Cal.App.3d 92, 95 [ 95 Cal.Rptr. 588] .) The need to maintain the restraints and social safeguards accompanying the parolee's status justifies the relaxed standard for the invasion of the parolee's privacy. ( People v. Howard, supra, 79 Cal.App.3d at p. 49.) (4c) Finally, defendant Hernandez contends that the fruits of the search of the Volkswagen should be suppressed because the police had no probable cause to believe that the vehicle was connected to Abraham Hernandez. This argument is specious. Although the Volkswagen was registered solely in Sally's name, Sally and Abraham Hernandez were known to be living together as husband and wife at the time of the search. Thus, substantial evidence supports the superior court's conclusion that the vehicle was under defendant Hernandez' control. ( People v. Reynolds (1976) 55 Cal.App.3d 357, 368-369 [ 127 Cal.Rptr. 561], disapproved on other grounds in People v. James (1977) 19 Cal.3d 99, 106, fn. 4 [ 137 Cal.Rptr. 447, 561 P.2d 1135].)

Because the police search founded on the parole condition was lawful as to property under Hernandez' control, Sally's lack of consent is irrelevant; defendant, through his wife, is in no position to claim the officers had no right to search this vehicle. ( Russi v. Superior Court (1973) 33 Cal.App.3d 160, 167-168 [ 108 Cal.Rptr. 716]; People v. Icenogle, supra, 71 Cal.App.3d at pp. 586-588.)

The petition for writ of mandate is denied. The alternative writ is discharged.

Blease, J., and Janes, J., concurred.

Retired Associate Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

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HERNANDEZ v. SUPERIOR COURT
(Sep 17, 1980)