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Name: People v. Lazalde
Case #: H022775
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 07/19/2004
Subsequent History: 10/13/04: revw. den.

In the trial court, appellant’s motion to suppress the evidence seized from his hotel room was denied because appellant was subject to a probation search condition of which the searching officer was unaware. The appellate court affirmed the judgment, relying on In re Tyrell J. The Supreme Court granted appellant’s petition for review deferring action pending disposition of People v. Sanders. The Supreme Court then transferred the matter to the appellate court with directions to vacate the decision and reconsider in light of Sanders. In this opinion, the appellate court reversed, concluding that appellant’s probation search condition could not be used to justify the search. The fact that Sanders concerned a parole search condition, and appellant was subject to an informal probation search condition, is an irrelevant distinction. A search is not justifiable as a consent search when the officer is not undertaking the search pursuant to consent, which must be known to the officer before the search is conducted. Here, the officer could not have believed he had consent because he did not know who appellant was or that he was subject to a search condition. The record contained an inadequate evidentiary recond on which to decide the suppression motion based on any other theory than the probation search justification advanced below. Therefore, remand is required to conduct a new motion to suppress hearing.