43 Cal.3d 600, 24540, People v. Bravo

Docket Nº:24540
Citation:43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336
Opinion Judge:[11] Panelli
Party Name:People v. Bravo
Attorney:[7] Garey & Bonner and Michael Ian Garey for Defendant and Appellant. [8] John K. Van de Kamp, Attorney General, Jay M. Bloom, Michael D. Wellington and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent. [9] Cecil Hicks, District Attorney (Orange), Michael R. Capizzi, Assist...
Case Date:July 09, 1987
Court:Supreme Court of California

Page 600

43 Cal.3d 600

238 Cal.Rptr. 282, 738 P.2d 336

The PEOPLE, Plaintiff and Respondent,


Robert Terry BRAVO, Defendant and Appellant.

Crim. 24540.

Supreme Court of California

July 9, 1987.

In Bank

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[Copyrighted Material Omitted]

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John K. Van de Kamp, Atty. Gen., Jay M. Bloom, Michael D. Wellington and Lilia E. Garcia, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

Garey & Bonner and Michael Ian Garey, Santa Ana, for defendant and appellant.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and Michael Khouri, Deputy Dist. Attys., as Amici Curiae on behalf of plaintiff and respondent.

PANELLI, Justice.

In this proceeding we review a decision of the Court of Appeal reversing a judgment of conviction in a criminal case. (Cal. Rules of Court, rule 28(a)(2).) The Court of Appeal held that a condition of probation that expressly authorizes only a warrantless search cannot properly be construed as permitting a search without reasonable cause. We disagree and reverse the judgment of the Court of Appeal.


On January 20, 1981, appellant was convicted of possessing concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)). He was granted probation and, as a condition of that probation, agreed to "submit his person and property to search or seizure at any time of the day or night by any law enforcement officer with or without a warrant." 1 Appellant was still on

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probation and subject to the search condition in February 1982 when an anonymous informant, who stated that he was a neighbor, telephoned the Anaheim Police Department and reported that the volume of traffic in automobiles and people in and around appellant's home suggested to the caller that appellant was involved in the sale of narcotics. 2

Police officers conducted surveillance of appellant's home, but observed nothing to substantiate the caller's suspicions other than one occasion when numerous persons who might have been engaged in construction in the rear yard came and went. After ascertaining appellant's name, however, the officers learned that he was on probation and subject to search without a warrant. They confirmed this by obtaining a copy of the probation conditions. On March 19, 1982, the officers conducted a search of appellant's home in his presence, pursuant to the apparent waiver of Fourth Amendment rights reflected in the probation order. 3 The trial court found, and appellant does not challenge the finding, that the officers conducted the search for a proper law enforcement purpose, not for harassment.

The search of the appellant's home led to discovery and seizure of cocaine, firearms, and a large amount of cash. He was charged with possession of cocaine (Health & Saf. Code, § 11350), possession of cocaine for sale (Health & Saf. Code, § 11351), and possession by a convicted felon of a concealable firearm (Pen.Code, § 12021). After his motions to set aside the information (Pen.Code, § 995) and to suppress the evidence seized in his home (Pen.Code, § 1538.5) were denied by the trial court, appellant pleaded guilty to the charges of possessing cocaine for sale and possession of a concealable firearm. He appealed from the ensuing judgment pursuant to Penal Code section 1538.5, subdivision (m).

Appellant claimed in his appeal that the search of his residence was unlawful because the Anaheim police officers who conducted the search lacked reasonable cause to do so. He acknowledged that he was subject to

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search as a condition of probation, and he made no claim that the waiver effected by the acceptance of that condition was not voluntary or that the search condition was unreasonable. (See People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905; People v. Mason (1971) 5 Cal.3d 759, 764-765, 97 Cal.Rptr. 302, cert. den. (1972) 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478, disapproved on other grounds in People v. Lent, supra, at fn. 1.) He argued, however, that notwithstanding the search condition of his probation, a "rule of reasonableness" applied, permitting a search only if there were reasonable cause to believe he was currently involved in criminal activity.

The Court of Appeal did not reach the questions of whether search conditions in general are subject to such a rule or, if not, whether a search condition which dispenses with any cause is valid. Instead, it held that the specific probation condition accepted by this appellant did not waive all protection from "unreasonable searches." The Court of Appeal reasoned that because a search condition is a waiver of a fundamental constitutional right, it should be interpreted narrowly as with other advance waivers of constitutional rights. The proper narrow construction, the court concluded, was that the condition waived the right to be free from warrantless searches, but not the right to be free from "unreasonable" searches, as that term may be defined in the context of a probation search. 4 The court held that the search of appellant's apartment, based only on uncorroborated information--which subsequent investigation did not confirm--provided by an anonymous, untested informant, was unreasonable by any standard.

The People, seeking review of this decision, argue that an express waiver of both the warrant requirement and reasonable cause is not necessary when a defendant agrees as a condition of probation to submit to search "at any time with or without a warrant." Relying on our statement in People v. Mason, supra, 5 Cal.3d at page 765, 97 Cal.Rptr. 302, that a probationer who has agreed to submit at any time to a warrantless search "may have no expectation of traditional Fourth Amendment protection," the People argue that this agreement alone waives all protection under the Fourth Amendment. If the waiver is not interpreted this broadly, the People suggest, the purpose of the search condition--deterrence of further narcotic-related offenses by the probationer--will be defeated. The Court of Appeal, it is argued, has confused the proposition that acceptance of a search condition does not waive the right to object to a search conducted in an unreasonable manner, with the rule that a search condition does waive the right to expect that a search will be undertaken only on reasonable cause.

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A search conducted pursuant to a valid consent does not violate the Fourth Amendment unless the search exceeds the scope of the consent. (Washington v. Chrisman (1982) 455 U.S. 1, 9-10, 102 S.Ct. 812, 818, 70 L.Ed.2d 778.) Appellant acknowledges that he voluntarily consented to be searched without a warrant at any time. The only issue therefore is the scope of appellant's consent.

The Court of Appeal believed that waivers of Fourth Amendment rights are subject to the same strict scrutiny as are waivers of other fundamental rights. For that reason the court apparently applied the strict standard of Johnson v. Zerbst (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, which rejects an implied waiver and requires a showing that the waiver is both "knowing and intelligent." This court too, has used the language of Johnson with respect to the waiver of Fourth Amendment rights, stating in People v. Myers (1972) 6 Cal.3d 811, 819, 100 Cal.Rptr. 612, that while those rights may be waived, "the waiver must appear of record to have been knowingly and intelligently made." As we later explained in People v. James (1977) 19 Cal.3d 99, 117-118, 137 Cal.Rptr. 447, however, in Myers there had been no waiver at all. In James we rejected as unnecessary and impractical a requirement that officers soliciting a waiver of Fourth Amendment rights expressly advise the person of those rights. We concluded that if a person of normal intelligence is asked to give consent for a search he will infer that he has a right to withhold that consent. We referred with approval to the explanation given by the United States Supreme Court in Schneckloth v. Bustamonte (1973) 412 U.S. 218, 235-246, 93 S.Ct. 2041, 2051-2057, 36 L.Ed.2d 854, for distinguishing consents to search from waivers of other constitutional rights. (19 Cal.3d 99, 118, fn. 17, 137 Cal.Rptr. 447.)

In Schneckloth the high court reasoned that the purpose and application of the "knowing and intelligent waiver" requirements of Johnson v. Zerbst, supra, 304 U.S. 458, 58 S.Ct. 1019, do not require or justify extension to a consent to search of the strict test of a valid waiver of constitutional rights, a test designed to protect the fairness of the trial itself. "There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring a 'knowing' and 'intelligent' waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.

"A strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest

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possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. Any trial conducted in derogation of that model leaves open the possibility that the trial reached an unfair result precisely because all the protections specified in the Constitution were not provided....

"The protections of the Fourth Amendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial.... The guarantees of the Fourth Amendment stand 'as a protection of quite different constitutional values--values reflecting the concern of our society for the right of each individual to be let alone....' [Citation.] [p ] Nor can it even be said that a search, as opposed to an eventual trial, is somehow 'unfair' if a person...

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