People v. Hernandez

Citation40 Cal.Rptr. 100,229 Cal.App.2d 143,8 A.L.R.3d 1092
Decision Date13 August 1964
Docket NumberCr. 3513
CourtCalifornia Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Vincent Fuentes HERNANDEZ, Defendant and Appellant.

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.

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, 282 P.2d 905, 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 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, 297 P.2d 451, 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, 154 P.2d 873, 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 evidentiary use of narcotics uncovered by a parole officer who had gone to the defendant's apartment to take him into custody and had searched the apartment in his absence. Similarly, in People v. Robarge, 151 Cal.App.2d 660, 312 P.2d 70, and People v. Contreras, 154 Cal.App.2d 321, 315 P.2d 916, the parole officer had discovered narcotics in the course of a search incidental to the defendant's apprehension for a parole violation. In all three cases the search was a by-product of the parole officer's prior determination, upon probable cause, to apprehend the parolee. People v. Triche, 148 Cal.App.2d 198, 306 P.2d 616, represents a variation. There the parole officer had gone to defendant's premises not to make an arrest but in the course of surveillance. His warrantless search revealed narcotics. Nevertheless, in the Triche case, as in Denne, Robarge, and Contreras, the search was held to be reasonable because of the parole officer's special supervisory and visitatorial powers. All four of these decisions assumed the necessity of some kind of probable cause. 2

These four decisions antedated Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39, decided in 1958. Priestly requires disclosure of the identity of a police informant whose communication is relied upon as probable cause for a warrantless search. The present appeal is the first 'parolee' case since the Priestly decision. It requires us to decide whether the Priestly doctrine applies to a parole officer's search of a parolee's person, automobile or home.

The concept of probable cause unfolded in Priestly v. Superior Court included an element which was not clearly revealed at the time of Denne and its companion decisions. The new element was the anonymous informer. 3 If, as a result of the Priestly decision, disclosure of the informer's identity is an inescapable ingredient of 'probable cause,' then the doctrine of People v. Denne falls considerably short of justifying admission of the heroin in the case at bench. Not only did defendant's connection with narcotics have its source in an unnamed informant; it was stipulated that the informant would remain cloaked in anonymity. Aside from Hernandez's status as a prior narcotics offender, the anonymous communication was the only component of probable cause for the search.

We arrive at a point where some kind of detente between the Priestly rule and the Denne group of decisions seems necessary. Priestly is imply a manifestation of a general exclusionary doctrine, barring evidentiary use of evidence produced by an unconstitutional search and seizure. Where the officer has no warrant, his search meets Fourth Amendment standards of reasonableness if it is incidental to an arrest made upon probable cause. (Ker v. California, 374 U.S. 23, 34-35, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726; People v. Winston, 46 Cal.2d 151, 162, 293 P.2d 40.) The court not the officer must make the determination whether the latter has a belief or state of mind amounting to probable cause. (People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967.) Reliability of an informer whose communication is claimed as probable cause is an ingredient of the inquiry, and the defense cannot fairly make this inquiry if the informer's identity is concealed. (Priestly v. Superior Court, supra, 50 Cal.2d at p. 818, 330 P.2d 39.) In this case, parole officer Boulton professed no prior determination to take Hernandez into custody. Because of information emanating from an anonymous source, he decided to search the parolee's car for narcotics and enlisted the help of other officers to that end. Search and not arrest was his immediate purpose. Weighed on the standard scale, the officer's entry into the automobile in a direct quest for incriminating evidence possessed dubious legality. (See People v. Edgar, 60 Cal.2d 171, 175, 32 Cal.Rptr. 41, 383 P.2d 449; People v. Cahan, supra, 44 Cal.2d at p. 445, 282 P.2d 905, 50 A.L.R.2d 513.)

These standard concepts of arrest and probable cause for arrest have little relevance as between correctional authorities and paroled prisoners. The parolee, although physically outside the walls, is still a prisoner; his apprehension, although outwardly resembling arrest, is simply a return to physical custody. (People v. Denne, supra, 141 Cal.App.2d at p. 510, 297 P.2d 451.) To weigh retaking of a parolee on scales calibrated for standard cases of arrest and probable cause is to compare incomparables. The decisive question in this case is not whether the parole officer had probable cause for an arrest and incidental search, but whether his paroled prisoner could invoke constitutional barriers against the search.

At this point we confront authorities theorizing that parole is an act of grace, acceptance of which entails the voluntary surrender or curtailment of constitutional rights. (See Note, 65 Harv.L.Rev. 309 at p. 310, fns. 11, 12.) The rationale is not particularly appealing. It makes constitutional rights dependent upon a kind of 'contract' in which one side has all the bargaining power. A better doctrine is that the state may not attach unconstitutional conditions to the grant of state privileges. (Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 545-546, 171 P.2d 885; see also Fort v. Civil Service Comm., 61 A.C. 329, 331-332, 38 Cal.Rptr. 625, 392 P.2d 385.) The problem should be approached by considering what constitutional guaranties the individual may claim as a paroled prisoner of the state, not what constitutional liberties he surrendered as a condition of parole.

Inmates of state prisons do not have the usual array of federal and state constitutional rights guaranteed to nonincarcerated...

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