P. v. Diaz

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Filed 4/13/07 P. v. Diaz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE DIAZ,
Defendant and Appellant.
E040679
(Super.Ct.No. FSB055803)
OPINION
APPEAL from the Superior Court of San Bernardino County. John W. Bunnett,
Judge. (Retired judge of the L.A. Mun. Ct. for the Southeast Jud. Dist. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General,
Barry Carlton, Supervising Deputy Attorney General, Marissa Bejarano and Scott C.
Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

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Pursuant to a plea agreement, defendant pleaded guilty to evading a police officer
(Veh. Code, § 2800.2, subd. (a)). In return, the remaining allegation for driving under the
influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)) was dismissed, and
defendant was granted three years of formal probation on various terms and conditions,
including serving 150 days in county jail. On appeal, defendant contends (1) the
probation condition requiring him to give the probation officer 24 hours written notice of
any change in his pet ownership is unreasonable; and (2) the probation condition
requiring him to submit to and cooperate in field interrogations infringes upon his Fifth
Amendment constitutional privilege against self-incrimination, is unconstitutionally
overbroad, and must be modified. We reject these contentions and affirm the judgment.
I
FACTUAL BACKGROUND1
In April 2006, a police officer attempted to pull defendant over for speeding.
Defendant did not stop, and led the officer, who was activating his patrol vehicle’s lights
and siren, on a seven-and-a-half-mile pursuit. During the pursuit, defendant’s vehicle
“jumped” over a concrete divider, weaving in and out of traffic through streets and
freeways. When defendant eventually pulled over, he admitted he saw and heard the
patrol vehicle’s lights and sirens.
While speaking with defendant, the officer smelled an odor of alcohol emitting
from defendant. A field sobriety test was performed, and the officer found defendant was
1 The factual background is taken from the probation officer’s report.

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driving under the influence of alcohol. The officer also discovered an open can of beer in
the center console of defendant’s vehicle. Defendant did not have a valid driver’s license
and stated he had consumed one beer.
II
DISCUSSION
A. Pet Condition
At sentencing, defense counsel objected to the term “pets” of probation condition
No. 7 as it was unconstitutional and overbroad as phrased. The court did not grant that
request.
Condition No. 7 specifically provides that defendant “[k]eep the 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. Prior to any move, provide
written authorization to the Post Office to forward mail to the new address.” (Italics
added.) Defendant contends the trial court abused its discretion in denying his request to
strike the pet condition because the condition is not reasonably related to his crime or
future criminality.2 We disagree.3
2 Defendant argues the condition is invalid in light of this court’s ruling in
People v. Quintero (Sept. 27, 2006, E039290). However, subsequent to the filing of
defendant’s opening brief, that case was modified to vacate the publication order and
cannot be cited as authority for defendant’s position. (Cal. Rules of Court, rule
8.1115(a).)
3 We note that this issue is currently pending before the Supreme Court.
(People v. Olguin (Dec. 15, 2006, E039342) review granted Mar. 21, 2007, S149303;
People v. Lopez (Nov. 30, 2006, E039251) review granted Mar. 21, 2007, S149364.)

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“‘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 § 1203.1; People v. Welch (1993)
5 Cal.4th 228, 233; People v. Warner (1978) 20 Cal.3d 678, 682-683.)

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While pet ownership is not, in itself, criminal, it is reasonably related to the
supervision of a probationer, and hence to his future criminality.
“‘[C]onditions of probation that impinge on constitutional rights must be tailored
carefully and “reasonably related to the compelling state interest in reformation and
rehabilitation . . . .” [Citation.]’ [Citation.]” (In re Byron B. (2004) 119 Cal.App.4th
1013, 1016 [Fourth Dist., Div. Two], quoting People v. Delvalle (1994) 26 Cal.App.4th
869, 879, quoting People v. Mason (1971) 5 Cal.3d 759, 768 (dis. opn. of Peters, J.).)
However, there is no constitutional right to keep a pet. (See Nahrstedt v. Lakeside
Village Condominium Assn. (1994) 8 Cal.4th 361, 388.) A fortiori, there is no
constitutional right to keep a pet without telling your probation officer.4
Absent any such constitutional concerns, “[a]n adult probation condition is
unreasonable if ‘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.]’
[Citation.]” (In re Byron B., supra, 119 Cal.App.4th at p. 1016, quoting People v. Lent
(1975) 15 Cal.3d 481, 486, fn. omitted, quoting People v. Dominguez (1967) 256
Cal.App.2d 623, 627.) “As with any exercise of discretion, the sentencing court violates
this standard when its determination is arbitrary or capricious or ‘“‘exceeds the bounds of
4 Arguably, if keeping the pet was, in itself, a crime, such a requirement
might violate the right against self-incrimination. This, however, is not the thrust of
defendant’s argument.

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reason, all of the circumstances being considered.’” [Citations.]’ [Citation.]” (People v.
Carbajal, supra, 10 Cal.4th at p. 1121, quoting People v. Welch, supra, 5 Cal.4th at
p. 234, quoting People v. Warner, supra, 20 Cal.3d at p. 683, quoting People v. Giminez
(1975) 14 Cal.3d 68, 72.)
“[Probation conditions] are meant to assure that the probation serves as a period of
genuine rehabilitation and that the community is not harmed by the probationer’s being at
large. [Citation.] These same goals require and justify the exercise of supervision to
assure that the restrictions are in fact observed. Recent research suggests that more
intensive supervision can reduce recidivism, [citation], and the importance of supervision
has grown as probation has become an increasingly common sentence for those convicted
of serious crimes, [citation].” (Griffin v. Wisconsin (1987) 483 U.S. 868, 875 [97
L.Ed.2d 709, 107 S.Ct. 3164].) A probation condition therefore may be deemed
reasonable if it “enable[s] the [probation] department to supervise compliance with the
specific conditions of probation.” (People v. Kwizera (2000) 78 Cal.App.4th 1238,
1240.)
A probation officer may need to visit a probationer’s home unannounced. Here,
for example, defendant’s probation conditions required him to “[s]ubmit to a search . . .
of your . . . residence . . . at any time of the day or night . . . .” Knowing, in advance,
what animals are in the probationer’s home is reasonably related to the safety of the
probation officer.

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However, while some pets are so innocuous that they could not possibly interfere
with a probation officer’s performance of his or her duties, it is perfectly reasonable for
the trial court not to be more specific as to species, breed, or temperament. Animals can
be unpredictable, particularly when confronted by a stranger in what they consider to be
their own territory. Ask any letter carrier. Or ask any professional animal trainer -- they
have a saying: “[A]nything with a mouth bites.” (Sutherland, Kicked, Bitten and
Scratched (2006) p. 63.)
It can hardly be questioned that certain pets, especially dogs, can pose a great
hazard and/or life-threatening danger to others. In fact, both statutory law and case law
routinely address the notable problems presented by dogs, dog bites, and poor dog-
owner/handler control. (See, e.g., People v. Henderson (1999) 76 Cal.App.4th 453, 461;
Pen. Code, § 399 [mischievous animal causing death or serious bodily injury]; Pen. Code,
§ 597.5 [felonious possession of fighting dogs]; Civ. Code, § 3342 [dog bites; strict
liability of owner].) Dangerous pets can also include venomous reptiles or spiders, pigs,
and/or potentially any animal faced with a stranger in its territory.
Moreover, a probation officer is entitled to some protection against undue surprise.
A trial court drafting probation conditions in the abstract might not think to include a
parrot among the pets that must be disclosed; presumably, however, a probation officer
would appreciate being warned that that voice in another room may just be a bird.
Likewise, any probation officer who has to open a closet or reach under a bed during a

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search would no doubt like to know ahead of time whether the probationer keeps snakes
-- regardless of whether the snakes are venomous.
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. It
is not unreasonable to put the burden on the probationer to tell the probation officer what
animals may be present. The probation officer can then decide what precautions to take.
The challenged condition does not prevent the probationer from owning a pet of any
kind. It does not even require approval of the pet! It simply requires notice to the
probation officer. This is amply within the bounds of reason.
The interpretation of “pets” is a case of first impression but should be analyzed
using the same standards as that used to approve notification of “cohabitants,” which is
also included in condition No. 7. Notification of “cohabitants” is imposed in order to
ascertain whether the probationer is associating with people who would negatively affect
his rehabilitation. (See People v. Lopez (1998) 66 Cal.App.4th 615, 622-626 [holding
that a condition forbidding contact with gang members was necessary to rehabilitation
and future criminality].) For example, a defendant convicted of drug possession should
not live with drug users or dealers. The purpose of notification about pets is similar: (1)
to assure proper rehabilitation of defendant, and (2) to protect the probation officer. We
believe knowledge of pets is a prerequisite to the search condition, which ensures that
defendant is complying with his sentence and is not reoffending. (See People v. Bravo
(1987) 43 Cal.3d 600, 610 [holding that probation search conditions serve to promote

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rehabilitation and reduce recidivism while helping to protect the community from
potential harm by probationers].) The implied power of the probation officer regarding
both cohabitants and pets is also the same: notification of pets implies a probation
officer’s authorization to exclude certain pets or direct the care of the pets (i.e. keeping
them contained) in order to allow searches. Again, this does not authorize capricious
exclusions but allows directives that further the rehabilitation of defendant.
Significantly, defendant does not challenge the portion of the probation condition
that required him to keep the probation officer informed of his cohabitants. This
condition serves the salutary, rehabilitative purpose of preventing defendant from
associating with those who might lead him into criminal behavior. Defendant does not
seem to think this condition had to be more narrowly drawn so as to require defendant to
report only cohabitants who are gang members, drug users, or known felons. It is just as
reasonable to require defendant to report all of his pets as it is to require him to report all
of his cohabitants. Condition No. 7 is valid, as it protects the probation officer and
allows him or her to oversee defendant for future criminality.
B. Field Interrogation Condition
At sentencing, defense counsel also objected to probation condition No. 18, 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 this probation condition

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violates his constitutional privilege against self-incrimination and is overbroad. We
disagree.
As described above, trial courts have broad discretion in determining what
conditions of probation will aid the reformation and rehabilitation of the defendant.
(§ 1203.1; People v. Carbajal, supra, 10 Cal.4th at pp. 1120-1121.) Again, a condition
will not be held invalid unless it has no relationship to the crime of which the defendant
is convicted, relates to conduct which is not itself criminal, and requires or forbids
conduct which is not reasonably related to future criminality. (People v. Lent, supra, 15
Cal.3d 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, 366.)
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 probation condition is a correctional tool that can be used
to determine whether the defendant is complying with the terms of his or 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 or she 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].)

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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, supra, 43 Cal.3d at p. 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 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

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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 crimes of evading a peace officer and driving
under the influence of alcohol. He admitted to being aware of the red lights and siren on
the patrol car, but he failed to stop. We believe the field interrogation condition is
necessary to help reform defendant by discouraging him from evading law enforcement
and driving while intoxicated 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.

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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 term 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
privilege against 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. In fact, defendant had been granted that privilege in

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the past after he was convicted of inflicting corporal injury on a spouse/cohabitant and
possession of a deadly weapon.
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 the defendant falsely imprisoned a man during a protest rally]; In re Mannino
(1971) 14 Cal.App.3d 953, 968-969 [probation condition prohibiting the defendant from
active participation in demonstrations following his conviction of assault at a college
demonstration was reasonable], overruled on other grounds in People v. Welch, supra, 5
Cal.4th 228, 237; People v. King (1968) 267 Cal.App.2d 814, 822-823 [condition of
probation proscribing participation in demonstrations valid where the 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

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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 (Davis) [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] (Murphy).) 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

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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

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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 to which defendant does not challenge. For example,
condition No. 9, 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].” Additionally, condition No. 4, 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. 16 forbids defendant from

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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

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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

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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; People v.
Ochoa (1998) 19 Cal.4th 353, 401.) In California v. Beheler (1983) 463 U.S. 1121, 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

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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 noncustodial
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.

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III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
HOLLENHORST
J.

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