5 Cal.3d 759, 15480, People v. Mason

Docket Nº:15480
Citation:5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630
Opinion Judge:[10] Burke
Party Name:People v. Mason
Attorney:[7] Edwin L. Miller, Jr., and James Don Keller, District Attorneys, Richard H. Bein and Steven B. Davis, Deputy District Attorneys, for Plaintiff and Appellant. [8] Neal Pereira for Defendant and Respondent.
Case Date:September 22, 1971
Court:Supreme Court of California

Page 759

5 Cal.3d 759

97 Cal.Rptr. 302, 488 P.2d 630

The PEOPLE, Plaintiff and Appellant,


Robert Aloysious MASON, Defendant and Respondent.

Cr. 15480.

Supreme Court of California

Sept. 22, 1971.

In Bank

Edwin L. Miller, Jr., and James Don Keller, Dist. Attys., Richard H. Bein, and Steven B. Davis, Deputy Dist. Attys., for plaintiff and appellant.

Neal Pereira, San Diego, for defendant and respondent.

BURKE, Justice.

This case involves the legality of a search conducted pursuant to the terms of a condition of defendant's probation requiring him to submit to a search by police officers at any time without the necessity of a search warrant.

Defendant was accused of burglary with an acetylene torch (Pen.Code, § 464), receiving stolen property (Pen.Code, § 496, subd. 1), possessing restricted dangerous drugs (Health & Saf.Code, § 11910), possessing these drugs for sale (Health & Saf.Code, § 11911) and possessing marijuana (Health & Saf.Code, § 11530) At a pretrial hearing in superior court, defendant moved to suppress certain evidence on the ground that it was the product of an illegal search. (Pen.Code, § 1538.5.) The court granted the motion to suppress and, since the People had no further evidence

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against defendant, dismissed the charges against him. (Pen.Code, § 1385.) The People appeal from the order of dismissal. (Pen.Code, § 1238, subd. (a), subsec. (7).)

We have concluded that the search was proper and that the order of dismissal must be set aside and the case remanded for trial.

The facts leading to defendant's arrest are as follows: In January 1970 burglars broke into the Alvarado Medical Center in San Diego and stole money, stamps, retail sales items, a radio, 4,000 hypodermic needles and over 30,000 pills and capsules, mostly barbiturates and amphetamines. At the time of the burglary, a hospital employee observed suspicious activity by two men in the parking lot; a second employee noted the license number of their car, and reported it to the police. The officers traced the car to defendant, living at 2124 Reed Street in San Diego, and discovered that defendant had registered as a narcotics offender and was on probation for possessing marijuana in 1969. The officers noted that one of the conditions of defendant's probation required him to 'submit his person, place of residence, vehicle, to search and seizure at any time of the day or night, with or without a search warrant, whenever requested to do so by the Probation Officer or any law enforcement officer.'

The officers went to defendant's residence and saw his car parked in front. One of the officers knocked on the door of the house, loudly identified himself and announced that he wanted to search the apartment. Defendant opened the door and an officer informed him that he had reason be believe defendant had participated in a burglary and was subject to search and seizure by court order as a condition of his probation. According to the officer, defendant replied that he was subject to such a condition. Thereupon, without giving defendant the opportunity to refuse or grant permission for a search, the officers entered the house, searched and found in the kitchen a radio which resembled the one stolen from the Medical Center. They arrested defendant, took him away, and subsequently searched defendant's car and house, uncovering further items of contraband.

The foregoing search was conducted without a warrant and, at least in part, extended in scope beyond the limits of a reasonable search incidental to arrest, as set forth in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The People contend, however, that the warrantless search was justified by the terms of defendant's condition of probation that he submit to a search, with or without a warrant, whenever requested by police officers. We agree that under the circumstances

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in the instant case, the probation condition authorized the search of defendant's residence and car. 1

Our analysis of the question requires a two-step approach. First, we must determine whether by the terms of the condition the officers were permitted to conduct a particular search without obtaining defendant's prior consent to that search. Second, if no prior consent was required, we must determine whether that condition constituted an unreasonable or unconstitutional invasion of defendant's rights.

Defendant contends that since the condition required him to submit to a search 'whenever requested to do so,' the officers should have requested permission to search, thereby affording defendant the opportunity to grant or refuse permission. To so construe the condition would, however, render it utterly meaningless. A 'condition' implies a qualification or restriction; accordingly, a condition to a grant of probation contemplates some limitation upon the probationer's rights. (See In re Bushman, 1 Cal.3d 767, 776, 83 Cal.Rptr. 375.) If defendant had the right to withhold his consent to a warrantless search, the protection thereby afforded him would have been as broad as that afforded all other persons under the Fourth Amendment. We conclude that the probation condition, by use of the words 'with or without a search warrant,' was intended to restrict defendant's right to refuse a warrantless search, and that the words 'whenever requested' were added to require the officers to notify defendant before conducting a search of his house or car. Thus, a search made without defendant's knowledge would have been invalid.

We also note that to accept defendant's interpretation of the probation condition would defeat the acknowledged purposes of such a provision to deter further offenses by the probationer and to ascertain whether he is complying with the terms of his probation. 'With knowledge he may be subject to a search by law enforcement officers at any time, he will be less inclined to have narcotics or dangerous drugs in his possession. The purpose of an unexpected, unprovoked search of defendant is to ascertain whether he is complying with his 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 the defendant and

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his amenability to rehabilitation.' (People v. Kern...

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