People v. Bremmer

• Citation: 106 Cal.Rptr. 797,30 Cal.App.3d 1058
• Decision Date: 07 March 1973
• Docket Number: Cr. 21752
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Freda Elaine BREMMER, Defendant and Appellant.

Page 797

106 Cal.Rptr. 797

30 Cal.App.3d 1058

The PEOPLE of the State of California, Plaintiff and Respondent, v. Freda Elaine BREMMER, Defendant and Appellant.

Cr. 21752.

Court of Appeal, Second District, Division 2, California.

March 7, 1973.

Hearing Denied May 3, 1973.

Richard S. Buckley, Public Defender of Los Angeles County, James L. McCormick, Fred Manaster, Elinor Levinson, Harry W. Brainard and Richard A. Curtis, Deputy Public Defenders, for appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Criminal Division, William E. James, Asst. Atty. Gen., Appeals Section, James H. Kline and Bernardine M. Baldwin, Deputy Attys. Gen., for respondent.

FLEMING, Associate Justice.

After appellant's motion to suppress evidence had been denied, she was convicted of possession of a restricted dangerous drug (Health & Saf.Code, § 11910; Pen.Code, § 1538.5). She appeals the judgment of summary probation.

At 6:55 p.m. on 20 November 1971, appellant, in the company of another young woman, was stopped by Officer Tracy for a speeding violation and for driving with one headlight only. When asked for identification, she produced a driver's license. Then, as the officer testified: 'A. When I received the driver's license from the young lady, I went back to the radio car and ran a warrant check, and while I was waiting for the warrant check, I issued a citation for speeding. Q. What was the result of the warrant check? A. I was advised by radio that there were no outstanding warrants; however, the subject had a prior arrest for sales of dangerous drugs and that she was on probation and that the stipulation of the probation was that she was open to search and seizure.'

The officer returned to appellant's car, requested her to step out, and inquired if she had been previously arrested. She replied she had. He then asked if she were 'open to search and seizure,' and when she answered that so far as she knew she still was, he said he was going to search the vehicle and her handbag. Inside her handbag he found a change purse containing 114 white double-scored tablets, later identified as amphetamine sulphate (benzedrine). The search lasted no longer than five minutes.

Appellant challenges the reasonableness of the search, contending first, that the discovery of the evidence resulted from an unlawful detention and, second, that the search was unauthorized because it was unreasonable.

I

Appellant argues the dangerous drugs were discovered as a result of an unreasonably prolonged detention and therefore must be suppressed.

It is true a temporary detention constitutes a seizure of the person subject to the constraints of the Fourth Amendment. (Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889.) '(J)ust as a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope (citation), so may an investigatory detention exceed constitutional bounds when extended beyond what is reasonably necessary under the circumstances which made its initiation permissible.' (Willett v. Superior Court, 2 Cal.App.3d 555, 559, 83 Cal.Rptr. 22, 24; see also, Pendergraft v. Superior Court, 15 Cal.App.3d 237, 93 Cal.Rptr. 155; People v. Lingo, 3 Cal.App.3d 661, 83 Cal.Rptr. 755.)

It is also true that '. . . where a car is stopped for a traffic violation, it is not unreasonable to detain the occupants for a short period of time for the purpose of determining whether there are outstanding traffic warrants against the driver or other information relating to him in police records. (Citations.)' (People v. Brown, 272 Cal.App.2d 448, 450, 77 Cal.Rptr. 438, 440; accord, People v. Elliott, 186 Cal.App.2d 185, 189, 8 Cal.Rptr. 716.)

We think the Brown-Elliott rule applies to the facts of this case. In contrast to Willett the detention at bench appears to have been brief and to have lasted no more than a few minutes. The sequence of events is not comparable to that in People v. Lingo, Supra, 3 Cal.App.3d 661, 83 Cal.Rptr. 755, where after the officers completed their activities relating to motor vehicle equipment and licensing violations, they initiated an inquiry into narcotic possession without any reason to do so.

We conclude that under the circumstances of this case, the temporary detention was of appropriate duration and did not invalidate the seizure of evidence.

II

The more difficult question is whether the search was authorized by law. The prosecution argues that a court order requiring a probationer to 'submit his person and property to search and seizure at any time of the day or night by any law enforcement officer with or without a warrant' establishes a valid condition of probation which authorized the present search. ¹ The defense argues that the search was invalid because it violated the reasonableness requirement of the Fourth Amendment.

In evaluating the merits of these divergent contentions we note certain considerations that form a framework for the problem.

(a) The policy requiring suppression of relevant evidence is designed to vindicate the law and discourage those charged with enforcement of the law from themselves violating the law. Suppression of evidence obtained as a result of an unlawful search and seizure by the police is designed to discourage the police from violating the law by prohibiting the use in court of illegally-seized evidence and thereby make it unprofitable for the police to violate the law. This case, however, does not present any violation of law initiated by the police, for the police search took place in accordance with the terms of a court order.

(b) The present situation is analogous to that arising from a claim that a search warrant has been issued by a magistrate on less than probable cause or an arrest warrant on less than reasonable cause. Our present concern is with judicial power rather than police power. It is, of course, a commonplace to observe that the Fourth Amendment applies to judicial power as well as police power, for a search and seizure pursuant to warrant is unreasonable when the warrant is not supported by probable cause and does not describe with particularity the place to be searched and the person or things to be seized. In this connection we note some resemblance between the proscribed general warrants of Revolutionary times and the general search order that has been made a condition of appellant's probation. Although the validity of such a general search order has been justified on the theory of waiver (People v. Kern, 264 Cal.App.2d 962, 964--965, 71 Cal.Rptr. 105) the probationer who purportedly waives his rights by accepting such a condition has little genuine option to refuse, and the waiver cannot be said to be voluntary in any generally-accepted sense of the term. (Parrish v. Civil Service Commission, 66 Cal.2d 260, 268--272, 57 Cal.Rptr. 623, 425 P.2d 223.) Advance waiver of constitutional rights is viewed critically by the courts (People v. Vickers, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313; People v. Hernandez, 229 Cal.App.2d 143, 148, 40 Cal.Rptr. 100), and this viewpoint extends to advance waiver of the Fourth Amendment's requirement of reasonableness (In re Martinez, 1 Cal.3d 641, 647, 83 Cal.Rptr. 382, 463 P.2d 734).

(c) Reasonableness under the Fourth Amendment, however, varies from place to place, time to time, and circumstance to circumstance. A condition of probation that subjects a convicted person to search and seizure at any time may serve a useful purpose by providing a workable alternative to imprisonment of the convicted person. Patently, the constitutional rights of a probationer--like the rights of those convicts who have been imprisoned--are circumscribed by the judgment of conviction and are not coterminous with those possessed by persons whose status remains unimpaired by conditions of probation imposed by court order. The probationer, like the parolee, has what is euphemistically known as a reduced expectation of privacy. (People v. Mason, 5 Cal.3d 759, 764, 97 Cal.Rptr. 302, 488 P.2d 630; In re Martinez, 1 Cal.3d 641, 647, 83 Cal.Rptr. 382, 463 P.2d 734.) Yet a probationer is not without rights under the Fourth Amendment, even one whose rights have been radically restricted by court-imposed conditions of probation. (In re Martinez, 1 Cal.3d 641, 647, 83 Cal.Rptr. 382, 386, 463 P.2d 734, 738 ('Searches by parole officers . . . are subject to the broad reasonableness requirement of the Fourth Amendment.').)

(d) Unrestricted search of a probationer by any and all law enforcement officers at their whim and caprice is a form of harassment that amounts to an unreasonable search proscribed by the Fourth Amendment. (People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630; People v. Vickers, 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313.)

From these general propositions we conclude that the Fourth Amendment imposes limits on the search of a convict pursuant to a general search order, limits which are comprehended within the notion of reasonableness. A court order authorizing search necessarily implies conditions of reasonableness as to time, place, manner, and execution. Whether a particular search complies with the Fourth Amendment's requirement of reasonableness requires an evaluation of the facts and circumstances of the search under question. In delineating the limits of permissible search pursuant to a general search order our starting point is an analysis of the facts, holding, and opinion in People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630.

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