229 Cal.App.2d 143, 3513, People v. Hernandez

Docket Nº:3513
Citation:229 Cal.App.2d 143, 40 Cal.Rptr. 100
Opinion Judge:[10] Friedman
Party Name:People v. Hernandez
Attorney:[7] Ralph D. Drayton, under appointment by the District Court of Appeal, for Defendant and Appellant. [8] Stanley Mosk, Attorney General, Doris H. Maier, Assistant Attorney General, and Daniel J. Kremer, Deputy Attorney General, for Plaintiff and Respondent.
Case Date:August 13, 1964
Court:California Court of Appeals

Page 143

229 Cal.App.2d 143

40 Cal.Rptr. 100

The PEOPLE of the State of California, Plaintiff and Respondent,


Vincent Fuentes HERNANDEZ, Defendant and Appellant.

Cr. 3513.

California Court of Appeal, Third District

Aug. 13, 1964.

Hearing Denied Oct. 7, 1964.

Page 144

Ralph D. Drayton, Sacramento, for appellant.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., Daniel J. Kermer, Deputy Atty. Gen., Sacramento, for respondent.

Page 145

FRIEDMAN, Justice.

At the time of his apprehension and conviction of heroin possession (Health & Safety Code, sec. 11500), defendant was a paroled state prisoner. On appeal from the judgment of conviction he contends that the heroin in his automobile was uncovered as the result of an unreasonable search and seizure by his parole officer, hence inadmissible in proof of guilt.

Defendant Hernandez was paroled from state prison in November 1962. Edward Boulton, a state parole agent, was his parole officer. In April 1963 a narcotics agent received information from an unidentified informer that Hernandez might have narcotics on his person or in his automobile. This information was passed on to parole officer Boulton. Hernandez was employed at a restaurant and his shift terminated at midnight. Boulton and four narcotics agents stationed themselves in the restaurant parking lot shortly before midnight. When he finished work, Hernandez left the restaurant and approached his parked automobile. He was about to enter the car when the officers appeared. Boulton told him that he was going to search the car. Boulton did so and found 53 grams of heroin in the rear compartment. Later at headquarters Hernandez was found to have two bindles of heroin and $620 in cash on his person. The officers had no search warrant.

At defendant's trial parole officer Boulton testified that he had arranged the meeting for the specific purpose of searching defendant's car and for no other purpose. Defense counsel objected to evidentiary use of the heroin as the product of an illegal search and seizure and demanded disclosure of the police informer's identity. The objection was overruled. It was stipulated that the prosecution would decline to reveal the informer's name by invoking Code of Civil Procedure, section 1881, subdivision 5. 1

We approach the matter against the following decisional backdrop: In 1955 People v. Cahan, 44 Cal.2d 434, 50 A.L.R.2d 513, established the rule in California that evidence obtained in violation of the Fourth Amendment guaranty against unreasonable search and seizure is inadmissible in criminal trials. Among the spate of decisions

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which followed Cahan were four dealing with 'search and seizure' contentions raised by paroled state prisoners. These four decisions occurred in 1956 and 1957. First was People v. Denne, 141 Cal.App.2d 499, in which the court assumed, arguendo, that Fourth Amendment guaranties could be asserted by a parolee; holding, however, that a warrantless search by the parole officer was reasonable because of the special relationship between the parolee and the authorities who supervised his conduct on parole. Speaking for the court, Mr. Justice Fox stated: 'A prisoner on parole is not free from legal restraint by the penal authorities, In re Marzec, 25 Cal.2d 794, 797, but 'is constructively a prisoner of the state in the legal custody and under the control of the state board of prison directors.' * * * Because the public is entitled to maximum protection in the administration of the parole system, the process of rehabilitation takes place under the vigilant and tutelary eye of the parole officer. * * * Since the parolee constitutes a calculated risk to the security of the community, and since a breach of the faith reposed in him may subject him to summary return to the prison confines, the parole officer, in the nature of things is accorded broad visitatorial powers over his prisoner. * * * By accepting the privilege of parole a prisoner consents to the broad supervisory and visitatorial powers which his parole officer must exercise over his person and property until the term of his sentence shall have expired or been terminated.' (141 Cal.App.2d at pp. 507-510, 297 P.2d at pp. 456-458.)

The Denne case upheld...

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