NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Pursuant to a plea agreement, defendant pleaded guilty to committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). In return, defendant was granted three years of formal probation on various terms and conditions, including serving one year in jail. On appeal, defendant contends the probation condition requiring him to submit to and cooperate in field interrogations infringes upon his Fifth Amendment constitutional right against self-incrimination and is unconstitutionally overbroad. We reject this contention and affirm the judgment.
I. FACTUAL BACKGROUND1
On November 26, 2005, officers were dispatched regarding a complaint that defendant had sexually assaulted his nine-year-old female neighbor. The victim said that she and her brother went to defendant's house, where they usually stayed after their mother left for work. While inside the house, defendant grabbed the victim's hand and pulled her toward him. He sat her on his lap, grabbed her face, pulled it toward his face, and "tongue kissed" her. Defendant also rubbed her chest underneath her shirt and asked her if she wanted to be showered by him. The victim replied, "No," and pulled away from defendant. She left the residence with her brother. The victim acknowledged being scared of defendant.
Defendant later admitted committing the offense. He stated that he "embraced" the victim and "touched" her chest. He also admitted kissing her mouth. He denied being attracted to the victim and claimed that he now knew "it was bad." He also stated that he would like to be given a "second chance" and that it would "never happen again."
At sentencing, defense counsel objected to several of the proposed probation conditions, including condition No. 20 (the field interrogation condition), which requires defendant to "[s]ubmit to and cooperate in a field interrogation by any peace officer at any time of the day or night," as "unconstitutional and overbroad." The court denied the request to strike this condition.
Defendant contends on appeal that the field interrogation condition violates his constitutional right against self-incrimination and is overbroad. We disagree.
"`The primary goal of probation is to ensure `[t]he safety of the public . . . through the enforcement of court-ordered conditions of probation.' [Citation.] [C]onditions of probation `are routinely imposed when the sentencing court determines, in an exercise of its discretion, that a defendant who is statutorily eligible for probation is also suitable to receive it.' [Citation.] In the granting of probation, the Legislature has declared the primary considerations to be: `the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant.' [Citation.] [¶] In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] `The court may impose and require . . . [such] reasonable conditions as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.' [Citation.] The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, . . . Penal Code section 1203.1 . . . require[s] that probation conditions which regulate conduct `not itself criminal' be `reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; see also Pen. Code, § 1203.1; People v. Welch (1993) 5 Cal.4th 228, 233; People v. Warner (1978) 20 Cal.3d 678, 682- 683.)
Defendant's concern that the field interrogation condition is overly broad and serves no legitimate purpose is not well founded. Like the standard probation search condition, a field interrogation condition is a correctional tool that can be used to determine whether the defendant is complying with the terms of his 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 condition will provide practical, on-the-street supervision to defendant. Field interrogations will be used to monitor defendant's compliance with conditions of his probation. Also, information obtained from field interrogations will provide a valuable measure of his amenability to rehabilitation, which is related to his future criminality. A condition allowing field interrogations may further dual purposes of deterring future offenses by the probationer and ascertaining whether he is complying with the terms of his 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 he disobeys the law, but also whether he 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 his interrogator and walk away'" (United States v. Mendenhall (1980) 446 U.S. 544, 553 [100 S.Ct. 1870, 64 L.Ed.2d 497]), 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 his probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria. (Id. at p. 486.) In addition, implicit in almost every probation condition, including the field interrogation condition, is reasonableness.
Here, defendant committed the crime of a lewd act on a child under the age of 14. He admitted to committing the crime and knowing his actions to be inappropriate. He also claimed that he would like to be given a "second chance" and that it would "never happen again." We believe the field interrogation condition is necessary to help reform defendant by discouraging him from committing lewd acts upon children or concealing future criminality and to ensure that defendant remains in compliance with probation. The field interrogation term is reasonably related to defendant's future criminality.
Additionally, "interrogation" inherently means questions related to "seek solution of a crime." (See Black's Law Dict. (6th ed. 1990) p. 818, col. 2.) Thus the inherent meaning of the term limits the questions that could be asked of a probationer in a field interrogation to those designed to monitor the probationer's compliance with the other terms of his or her probation as well as future criminality. We do not find that the failure to make this limitation explicit provides any justification for striking the condition. It may be that this limitation is implicit in the language that the court adopted and could be permitted to stand without modifying the language of the condition. Moreover, as discussed in detail, post, it is unlikely that a probationer would likely be found to have violated the field interrogation condition in a probation revocation hearing for merely refusing to answer questions unrelated to the conduct of the probationer. This condition would assist defendant in maintaining compliance with the law and the terms of his probation.
Again, even assuming the challenged condition could have been more narrowly tailored, that does not render it invalid; rather, it simply must not exceed the bounds of reason. The challenged condition will provide a means to monitor defendant's progress toward rehabilitation, and deter future criminality. This is amply within the bounds of reason.
Defendant claims the field interrogation condition implicates his Fifth Amendment right of self-incrimination. We find no constitutional violation.
Defendant is not an ordinary citizen. He 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 his 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 [88 S.Ct. 1868, 20 L.Ed.2d 889].) Although an ordinary citizen "may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen [to a peace officer] or answer [any question put to him] 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 [103 S.Ct. 1319, 75 L.Ed.2d 229].) The impingement on his constitutional right to remain silent is warranted due to his status as a felon. The condition is sufficiently narrow to serve the interests of the state and his reform and rehabilitation while merely requiring him to submit to and cooperate in a field interrogation. Defendant still retains his 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 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda).
While probationers have long been required to "cooperate" with their probation officers, a probationer is not foreclosed from asserting his Fifth Amendment privilege, and it would not be inherently uncooperative for him 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, he retains the right to assert the Fifth Amendment, and his probation cannot be revoked based on a valid exercise of that right. (Minnesota v. Murphy (1984) 465 U.S. 420, 427, 434 [104 S.Ct. 1136, 79 L.Ed.2d 409].) 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.) Therefore, although defendant must generally cooperate with the police, he retains the right to assert the Fifth Amendment, and his probation cannot be revoked based on a valid exercise of that right.
Furthermore, 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 him unnecessarily. Also, defendant may, when questioned, give a truthful answer, and his answer may be used at trial without offending the Fifth Amendment. His obligation to answer questions truthfully is the same obligation borne by any witness at a trial or before a grand jury. (Murphy, supra, 465 U.S. at p. 427.) It is not too onerous to require him, for purposes of rehabilitation and reform, to speak truthfully to an officer. Because he has a duty to answer an officer's questions truthfully, unless he asserts the privilege, it does not violate his right not to incriminate himself. 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 his 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.)
Moreover, the field interrogation condition is less intrusive than some of the other conditions of defendant's probation that defendant does not challenge. For example, condition No. 10, requires defendant to "[s]ubmit to a search and seizure of [his] person, residence and/or property under [his] control at any time of the day or night by any law enforcement officer, with or without a search warrant, and with or without cause . . . ." (Italics added.) Condition No. 5 requires defendant to "[c]ooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer." Condition No. 8 requires defendant to keep his probation officer "informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes." Condition No. 15 requires defendant to participate in a counseling program and "submit monthly proof of attendance and/or successful completion . . . ." Condition No. 16 forbids defendant from associating "with known convicted felons or anyone actively engaged in criminal activity . . . ." Likewise, condition No. 17 prohibits defendant from associating "with known illegal users or sellers of controlled substances."
Defendant recognizes that under Murphy a probation condition which merely requires a probationer to be truthful does not violate a person's right against self-incrimination. (Murphy, supra, 465 U.S. at p. 436.) The condition here is similar. The obligation to "cooperate" entails the general obligation to appear and to answer questions truthfully, just as in Murphy and Davis, supra, 242 F.3d 49. Defendant is constrained by the condition from doing something which is otherwise lawful, i.e., he may not simply "`ignore his interrogator and walk away'" (United States v. Mendenhall, supra, 446 U.S. at p. 553), but it is integral to the purposes of probation as described in 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 his probation, and it deters further criminal activity. Thus, the field interrogation condition serves the purposes of probation and is valid under the Lent criteria.
To the extent defendant relies on United States v. Saechao (9th Cir.2005) 418 F.3d 1073 (Saechao), that reliance is misplaced. In Murphy, supra, 465 U.S. 420, the United States Supreme Court held that the probation condition that a defendant "be truthful with his probation officer in all matters" was constitutional because it only proscribed false statements. (Id. at p. 436.) There was nothing in the probation condition that compelled the defendant to answer all questions; the defendant was only required to be truthful if he chose to answer his probation officer's questions. (Ibid.) In contrast, the probation condition in Saechao explicitly stated that the defendant must "`promptly and truthfully answer all reasonable inquiries'" during a field interrogation. (Saechao, at p. 1075, italics added.) The Ninth Circuit held that this probation condition was unconstitutional because, "[n]ot only was [the defendant] required to be truthful to his probation officers, but he was expressly required, under penalty of revocation, to `promptly . . . answer all reasonable inquiries.'" (Id. at p. 1078.) The court held that this condition violated the Fifth Amendment because, unlike the condition in Murphy, the probationer was not permitted to invoke the privilege against self-incrimination without jeopardizing his supervised release. (Saechao, at p. 1078.)
Here, defendant is not subject to a condition like the one found impermissible in Saechao requiring him to answer all reasonable inquiries; he is subject to a condition like the one found permissible in Murphy, bearing the implied general obligation to be truthful in his answers. If asked a question, the answer to which is likely to incriminate him, he is free to invoke his Fifth Amendment privilege and refuse to respond.
Additionally, as explained above, "interrogation" inherently means questions related to "seek solution of [a] crime." (See Black's Law Dict., supra, p. 818, col. 2.) Thus, the inherent meaning of the term limits the questions that could be asked of a probationer in a field interrogation to those designed to monitor the probationer's compliance with the other terms of his or her probation, i.e., future criminality. We do not find that the failure to make this limitation explicit provides any justification for striking the condition. This limitation is implicit in the language of the probation condition, and may stand without modifying the language of the condition. Moreover, pursuant to this decision, we hold that a probationer may not be found to have violated the field interrogation term in a probation revocation hearing for merely refusing to answer questions, where those questions are unrelated to the conduct of the probationer.
In the alternative, defendant claims that if the condition is valid, then this court should require peace officers to give Miranda warnings to probationers before commencing field interrogations. He reasons that because a probationer must submit to and cooperate in the field interrogation, a field interrogation is a custodial interrogation. As we have explained above, defendant is mistaken. A field interrogation is not a custodial interrogation for purposes of Miranda; thus, a Miranda warning need not be given.
An interrogation is custodial when the person has been taken into custody or otherwise has been deprived of his freedom of movement in a significant way. (Miranda, supra, 384 U.S. at p. 444; Stansbury v. California (1994) 511 U.S. 318, 322 [114 S.Ct. 1526, 128 L.Ed.2d 293]; People v. Ochoa (1998) 19 Cal.4th 353, 401.) In California v. Beheler (1983) 463 U.S. 1121 [103 S.Ct. 3517, 77 L.Ed.2d 1275], the highest court in the nation explained that "the ultimate inquiry is simply whether there is a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." (Id. at p. 1125; see also Stansbury, at p. 324.) If this is the case, defendant, of course, is free to bring a suppression motion. In that regard, in determining whether the interrogation was custodial, the court will apply an objective standard and decide whether a reasonable person in defendant's position would feel that he was under arrest or otherwise restricted from acting autonomously. (Berkemer v. McCarty (1984) 468 U.S. 420, 442.) However, "the term `custody' generally does not include `a temporary detention for investigation' where an officer detains a person to ask a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. [Citation.]" (People v. Farnam (2002) 28 Cal.4th 107, 180.) In other words, Miranda does not apply to non-custodial interrogations. (See e.g., Pennsylvania v. Muniz (1990) 496 U.S. 582 [Miranda does not apply to routine identification-type questions at booking]; Murphy, supra, 465 U.S. 420 [the defendant not in custody during interview by his probation officer]; Beheler, at p. 1122 [Miranda did not apply when the defendant voluntarily came to police station, was interviewed briefly, and then left]; Mathis v. United States (1968) 391 U.S. 1 [Miranda applies when the person is in custody for another crime].) Thus, "police officers are not required to administer Miranda warnings to everyone whom they question." (Oregon v. Mathiason (1977) 429 U.S. 492, 495.)
In summary, we note that the limitation on defendant's liberty is warranted due to his status as a felon. The condition is sufficiently narrow to serve the interests of the state -- his reform and rehabilitation -- while requiring him merely to submit to and cooperate in a field interrogation. And any custodial interrogation that might follow a field interrogation would be subject to the requirements of Miranda, supra, 384 U.S. 436. In these circumstances, we conclude that the condition is reasonable and constitutional.
The judgment is affirmed.
We concur: RAMIREZ P.J., McKINSTER J.
1. The factual background is taken from the probation officer's report.