NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant pleaded guilty to possession for sale of a controlled substance (Health & Saf. Code, § 11378) as alleged in two separate cases (case Nos. FSB046741 and FSB046795); in return, defendant was promised three years of probation. In accordance with the plea agreement, defendant was granted three years of formal probation on each case subject to various terms and conditions, including serving 270 days in county jail and submitting to and cooperating in field interrogations by any peace officer at any time of the day or night. Defendant's sole contention on appeal is that the probation condition requiring her to submit to and cooperate in field interrogations is vague, is overly broad, and infringes upon her Fifth Amendment right against self- incrimination. We reject this contention and affirm the judgment.
I. FACTUAL BACKGROUND1
On March 26, 2004, an officer was dispatched to a location in reference to a verbal dispute between a girlfriend and boyfriend. Once at the scene, the officer found defendant fighting with her mother. The officer made contact with defendant and noticed that she was unable to sit still and was evasive in her answers to the officer's questions. The officer also noted that defendant was clenching a purse. The officer, concerned that the purse might contain a weapon, asked defendant to hand him the purse. When she refused, the officer attempted to take defendant into custody for assaulting her mother. Defendant, however, would not let go of the purse; she began to struggle with the officer while yelling and screaming. The officer eventually calmed defendant and placed her in the back of the patrol car. When the officer asked defendant if she had anything illegal in her purse, defendant replied she had drugs. The officer found 52 grams of methamphetamine in her purse. After waiving her constitutional rights, defendant admitted that she was planning on selling the methamphetamine.
On September 30, 2004, officers were dispatched to a high narcotics activity location. Once there, officers saw defendant and a male -- later identified as defendant's boyfriend -- walking down a street, where they met a female. After a brief conversation, all three of them began walking very rapidly and watching vehicles as they passed. The officers then contacted defendant and the other two. When the officers asked them if they had anything illegal, defendant's boyfriend removed a methamphetamine pipe that was heavily coated with methamphetamine from his pocket. The officers then conducted a search of all three subjects and found 12.26 grams of methamphetamine in defendant's purse. Defendant and her boyfriend were arrested. Defendant denied that the methamphetamine was hers.
Defendant contends the probation condition requiring her to "submit to and cooperate in a field interrogation by any peace officer at any time of the day or night" violates her Fifth Amendment constitutional right against self-incrimination and is overly broad. We disagree.
A trial court has broad but not unlimited discretion in setting the terms and conditions of probation. (Pen. Code, § 1203.1; People v. Carbajal (1995) 10 Cal.4th 1114, 1121; People v. Welch (1993) 5 Cal.4th 228, 233; People v. Warner (1978) 20 Cal.3d 678, 682-683.) While a probationer retains rights of privacy and liberty under the federal Constitution (People v. Keller (1978) 76 Cal.App.3d 827, 832, overruled on other grounds in Welch, at p. 237), probationary conditions may nevertheless place limits on constitutional rights if reasonably necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941; see also Gilliam v. Municipal Court (1979) 97 Cal.App.3d 704, 708 ["[a] condition of probation which requires a defendant to give up a constitutional right is not per se unconstitutional"].)
The California Supreme Court in People v. Lent (1975) 15 Cal.3d 481 established the rule on probationary conditions: "A condition of probation will not be held invalid unless it `(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' [Citation.]" (Id. at p. 486, fn. omitted, abrogated by Proposition 8 on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) It is well established that "probation conditions which regulate conduct `not itself criminal' must be `reasonably related to the crime of which the defendant was convicted or to future criminality.'" (People v. Welch, supra, 5 Cal.4th 228, 233-234, quoting Lent, at p. 486.) All three factors must be present for a condition of probation to be invalid. (People v. Wardlow (1991) 227 Cal. App.3d 360, 365-366.)
Like the standard probation search condition, a field interrogation probation condition is a correctional tool that can be used to determine whether the defendant is complying with the terms of her probation or disobeying the law. (See People v. Reyes (1998) 19 Cal.4th 743, 752 [purpose of an unexpected search is to determine not only whether parolee disobeys the law, a basic condition of parole, but also whether he obeys the law; the condition helps measure the effectiveness of parole supervision]; In re Anthony S. (1992) 4 Cal.App.4th 1000, 1006 [probation is an alternative form of punishment, carrying with it certain burdens, such as a search term, which can be used as a correctional tool].)
This court observed in People v. Adams (1990) 224 Cal.App.3d 705 that "a warrantless search condition is intended and does enable a probation officer `"to ascertain whether [the defendant] is complying with the terms of probation; to determine not only whether [the defendant] disobeys the law, but also whether he obeys the law. Information obtained . . . would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation."' [Citation.]" (Id. at p. 712.) In addition, as our Supreme Court observed, "[w]hen [warrantless search and seizure] conditions are imposed upon a probationer . . . , it is established that the individual `consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term. Probation is not a right, but a privilege.' [Citation.]" (In re York (1995) 9 Cal.4th 1133, 1150, quoting People v. Bravo (1987) 43 Cal.3d 600, 608.)
Likewise, here, the field interrogation probation condition will provide practical, on-the-street supervision to defendant. Field interrogations will be used to monitor defendant's compliance with conditions of her probation. Also, information obtained from field interrogations will provide a valuable measure of her amenability to rehabilitation, which is related to her future criminality. A condition allowing field interrogations may further dual purposes of deterring future offenses by the probationer and ascertaining whether she is complying with the terms of her probation. The purpose of an unexpected, unprovoked field interrogation of defendant is to ascertain whether defendant is complying with the terms of probation -- to determine not only whether she disobeys the law, but also whether she obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given defendant. (See, e.g., People v. Reyes, supra, 19 Cal.4th 743, 752.)
Although the field interrogation probation condition forbids defendant from doing something that is not in itself criminal, that is, "`ignore [her] interrogator and walk away'" (United States v. Mendenhall (1980) 446 U.S. 544, 553), it is related to the purposes of probation as described in People v. Lent, supra, 15 Cal.3d 481. It provides officers with a means of assessing defendant's progress toward rehabilitation, it assists them in enforcing other terms of her probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria. (Lent, at p. 486.)
Defendant claims the field interrogation condition implicates her Fifth Amendment right against self-incrimination and must be modified "to make it clear that [she] retains [her] Fifth Amendment right against self-incrimination, or it must be stricken in its entirety." We find no constitutional violation.
Defendant is not an ordinary citizen. She is a convicted felon who has been granted the privilege of probation. It has long been settled that certain constitutional rights can be limited where appropriate in the probation process. (See People v. Arvanites (1971) 17 Cal.App.3d 1052, 1063 [prohibition against planning and engaging in demonstrations was valid where defendant falsely imprisoned a man during a protest rally]; In re Mannino (1971) 14 Cal.App.3d 953, 968-969, overruled on other grounds in People v. Welch, supra, 5 Cal.4th 228, 237 [probation condition prohibiting defendant from active participation in demonstrations following his conviction of assault at a college demonstration was reasonable]; People v. King (1968) 267 Cal.App.2d 814, 822-823 [condition of probation proscribing participation in demonstrations valid where defendant battered police officers at an antiwar demonstration].) Because of her status as a felon, defendant may be detained and questioned by a peace officer without the requirement that the officer have at least a reasonable suspicion, based on articulable facts, that defendant is engaged in criminal activity. (See Terry v. Ohio (1968) 392 U.S. 1.) Although an ordinary citizen "may not be detained even momentarily without reasonable, objective grounds for doing so[,] and [her] refusal to listen [to a peace officer] or answer [any question put to her] does not, without more, furnish those grounds[,]" we repeat that defendant is not an ordinary citizen. (Florida v. Royer (1983) 460 U.S. 491, 498.) The impingement on her constitutional right to remain silent is warranted due to her status as a felon. The condition is sufficiently narrow to serve the interests of the state and her reform and rehabilitation while merely requiring her to submit to and cooperate in a field interrogation. Defendant still retains her Fifth Amendment rights, as discussed below. Furthermore, any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda v. Arizona (1966) 384 U.S. 436, 478-479.
While probationers have long been required to "cooperate" with their probation officers, a probationer is not foreclosed from asserting her Fifth Amendment privilege, and it would not be inherently uncooperative for her to assert that privilege. (See United States v. Davis (1st Cir. 2001) 242 F.3d 49, 52 [finding no realistic threat in a requirement to "cooperate" with the probation officer].) Therefore, although defendant must cooperate with the police, she retains the right to assert the Fifth Amendment, and her probation cannot be revoked based on a valid exercise of that right. (Minnesota v. Murphy (1984) 465 U.S. 420, 427, 434.) In Murphy, the Supreme Court explained that if a state attaches "[t]he threat of punishment for reliance on the privilege" against self-incrimination by asserting either "expressly or by implication . . . that invocation of the privilege would lead to revocation of probation . . . [,] the probationer's answers would be deemed compelled and inadmissible in a criminal prosecution." (Id. at p. 435.) However, defendant's probation condition contains no such threat. It would not be inherently uncooperative for defendant to assert the Fifth Amendment; defendant could still follow instructions and answer nonincriminating questions. (See Davis, at p. 52.)
Furthermore, law enforcement officers may not engage in harassing questions, searches, or other limitations that, for example, have no relation to the crime for which defendant is under supervision. If the officer inquires into improper matters or otherwise acts improperly, defendant may present evidence at the probation violation hearing to show that the interrogation or conduct was arbitrary, capricious, harassing, or otherwise not reasonably related to the purposes for which she is on probation. (See In re Tyrell J. (1994) 8 Cal.4th 68, 87, fn. 5.) Similarly, the field interrogation condition does not allow law enforcement officials to awaken defendant "at any time or place." Rather, the challenged condition requires defendant to submit to and cooperate in a field interrogation -- the condition does not allow officers to barge into defendant's home and question her unnecessarily. Also, defendant may, when questioned, give a truthful answer, and her answer may be used at trial without offending the Fifth Amendment. Her obligation to answer questions truthfully is the same obligation borne by any witness at a trial or before a grand jury. (Minnesota v. Murphy, supra, 465 U.S. at p. 427.) It is not too onerous to require her, for purposes of rehabilitation and reform, to speak truthfully to an officer. Because she has a duty to answer an officer's questions truthfully, unless she asserts the privilege, it does not violate her right not to incriminate herself. The purpose of probation is, of course, defendant's reformation and rehabilitation, and speaking truthfully to a peace officer is arguably an implied condition of probation. (See People v. Cortez (1962) 199 Cal.App.2d 839, 844.) Nevertheless, defendant is not required to give up her freedom to decline to answer particular questions. (Murphy, at p. 429.) The Constitution does not forbid the asking of incriminating questions (id. at p. 428), and the state in this case has neither expressly nor by implication threatened that invocation of the Fifth Amendment privilege would lead to revocation of probation.
The defendant in People v. Miller (1989) 208 Cal.App.3d 1311, 1315, who was required to submit to polygraph testing at the direction of his probation officer as a condition of probation, also argued that the condition violated his privilege against self-incrimination. The Miller court stated: "Defendant misconstrues the nature of the privilege. The privilege against self-incrimination is not self-executing; it must be claimed. [Citation.] Although defendant has a duty to answer the polygraph examiner's questions truthfully, unless he invokes the privilege, shows a realistic threat of self-incrimination and nevertheless is required to answer, no violation of his right against self-incrimination is suffered. [Citation.] The mere requirement of taking the test in itself is insufficient to constitute an infringement of the privilege." (Ibid.)
In summary, we note that the limitation on defendant's liberty is warranted due to her status as a felon. The condition is sufficiently narrow to serve the interests of the state -- her reform and rehabilitation -- while requiring her merely to submit to and cooperate in a field interrogation. Any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda v. Arizona, supra, 384 U.S. 436. In these circumstances, we conclude that the condition is reasonable and not overbroad.
The judgment is affirmed.
We concur: RAMIREZ P.J., GAUT J.
1. The factual background is taken from the probation officer's report.