People v. Keller

• Decision Date: 13 January 1978
• Docket Number: Cr. 8565
• Citation: 143 Cal.Rptr. 184,76 Cal.App.3d 827
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Leo KELLER, Defendant and Appellant.
• Court: California Court of Appeals

Page 184

143 Cal.Rptr. 184

76 Cal.App.3d 827

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Leo KELLER, Defendant and Appellant.

Cr. 8565.

Court of Appeal, Fourth District, Division 1, California.

Jan. 13, 1978.

Hearing Denied March 9, 1978.

Appellate Defenders, Inc. by George C. Wetzel and Stephen J. Perrello, Jr., San Diego, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Michael E. Lasater, Deputy Attys. Gen., for plaintiff and respondent.

STANIFORTH, Associate Justice.

Defendant Joseph Leo Keller appeals from a judgment convicting him of possession of heroin (Health & Saf.Code § 11350). He pleaded guilty after an unsuccessful motion to suppress evidence (Pen.Code § 1538.5). Keller was granted three years probation.

The contested search of Keller's premises and discovery of the contraband was based upon Keller's waiver of his Fourth Amendment federal constitutional rights required as a condition of probation granted in a 1975 municipal court conviction for petty theft (Pen.Code § 488). Keller had stolen a 49 cent ball point pen.

Upon his guilty plea and after consideration of a probation officer's report, the municipal court ordered three years probation conditioned upon the usual "narcotics conditions." They were:

"2. That he submit to urinalysis tests for the use of controlled substances when required by the Probation Officer or other law enforcement officers;

"3. That he not associate with any known users of or traffickers in controlled substances;

"4. That he not enter Mexico;

"5. That he submit his person, property, place of residence or abode, vehicle, personal effects to search at any time, with or without a search warrant by the Probation Officer or any law enforcement officer; . . .."

The probation officer's report reflected Keller's prior record. It consisted of two offenses for marijuana possession, one in 1957 (juvenile) and the second in 1958. In 1962 Keller slaughtered a steer on a friend's ranch and pleaded guilty to grand theft, stealing a carcass (Pen.Code § 487a(b)). No other criminal activity appears on his record. However, Keller separated from his wife in 1969. She relates events of 1965 when "Joe was dealing in drugs; marijuana, pills . . .." She charges he was a drug trafficker and that she "took a rap for Joe"; she possessed half a "can" of marijuana. She also charges Keller with homosexual activities. She moved to Arizona in 1969 and stated "Joe does not see her or his children." Keller admitted shooting heroin five months prior to stealing the ball point pen. He then voluntarily entered a detoxification hospital, stayed seven days and had not, by his own statement, used heroin to date of the probation officer's report. No facts connected the theft of the ball point pen with narcotics activities; no facts point to the theft as a means to "feed" some unspecified drug craving. There was only the probation officer's speculation that Keller's habit was "of greater frequency and intensity than admitted" and "possibly this is influencing every aspect of his life." No evidentiary base is shown for this speculation in either the municipal court or superior court proceedings.

A sentencing court is vested under Penal Code section 1203.1 with broad discretion to prescribe conditions of probation to foster rehabilitation and to protect the public (People v. Richards, 17 Cal.3d 614, 619, 131 Cal.Rptr. 537, 540, 552 P.2d 97, 100). The court could impose any "reasonable conditions, as it may determine are fitting and proper to the end that justice may be done." ¹

The discretion granted is not boundless. In the first place, the authority is wholly statutory; the statute furnishes and limits the measure of authority which the court may thus exercise (Fayad v. Superior Court, 153 Cal.App.2d 79, 313 P.2d 669; Oster v. Municipal Court, 45 Cal.2d 134, 139, 287 P.2d 755).

Secondly, the discretion to impose conditions of probation as granted by Penal Code section 1203.1 is further circumscribed by constitutional safeguards. Human liberty is involved. A probationer has the right to enjoy a significant degree of privacy, or liberty, under the Fourth, Fifth and Fourteenth Amendments to the federal Constitution (see Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484; United States v. Consuelo-Gonzalez, 521 F.2d 259, 265; In re Martinez, 1 Cal.3d 641, 647, 83 Cal.Rptr. 382, 463 P.2d 734).

This judicial insight rests upon the premise that a probationer's (or parolee's) "condition is very different from that of confinement in a prison." (Morrissey v. Brewer, supra 92 S.Ct. at p. 2601.) The severe limitation on an inmate's Fourth Amendment rights in a custodial situation passes constitutional muster by virtue of the sheer necessity for orderly administration of a prison or jail. The spot check of a jail cell, however, bears no relationship to the reasonable expectation of privacy albeit reduced of the probationer living in his home with family. As a matter of constitutional principle, the scope of constitutionally permissible invasion of a prisoner's Fourth Amendment rights is not coterminous with those that may be taken from a probationer by the "waiver" process.

The California Supreme Court (People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630) justifies the warrantless search, the invasion of Fourth Amendment rights, of the narcotics-offender-probationer on the premise of a "reduced expectation of privacy" (id. at pp. 764-765, 97 Cal.Rptr. 302, 488 P.2d 630) flowing from the individual's consent given as part of the sentencing procedure. ² Under the Mason rationale a probationer who has waived the Fourth Amendment right would have no reasonable expectation of privacy as to those conditions which are necessitated "by legitimate governmental demands." Consent to search provisions as a condition of probation on a narcotics-drug charge have, following Mason, generally been upheld (People v. Calais, 37 Cal.App.3d 898, 903-904, 112 Cal.Rptr. 685; Russi v. Superior Court, 33 Cal.App.3d 160, 168, 108 Cal.Rptr. 716; see also People v. Kern, 264 Cal.App.2d 962, 71 Cal.Rptr. 105 and People v. Fitzpatrick, 3 Cal.App.3d 824, 84 Cal.Rptr. 78, pre-Mason decisions).

The question here is novel. No California case has extended the Mason rule to authorize the waiver of Fourth Amendment rights as condition of probation on a misdemeanor petty theft conviction. No California Supreme Court case has extended the Mason rule beyond the Mason facts. Therefore we must examine, for guidance, the statutory and constitutional underpinnings of a probation condition that would take away a constitutional right for theft of a ball point pen.

The landmark case People v. Dominguez, 256 Cal.App.2d 623, 64 Cal.Rptr. 290, is the point of beginning for any measurement of the precise authority and restrictions upon judicial discretion under Penal Code section 1203.1. There probation was granted a convicted robber with the condition she abstain from pregnancy while unmarried. The Dominguez court construed Penal Code section 1203.1 to set limits on the trial court's discretion in imposing conditions on probation stating:

"A condition of probation which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality does not serve the statutory ends of probation and is invalid." (Id. at p. 627, 64 Cal.Rptr. at p. 293.)

Concerning the first of these limitations, the Dominguez court said:

"If the condition of probation is not directly related to the crime, the condition may be invalidated. (Citation.)" (Id. at p. 628, 64 Cal.Rptr. at p. 294.)

In holding the particular condition invalid, the appeal court stated:

" . . . future pregnancy was unrelated to robbery. Becoming pregnant while unmarried is a misfortune, not a crime. Appellant's future pregnancy had no reasonable relationship to future criminality. It is certainly not pragmatically demonstrable that unmarried, pregnant women are disposed to commit crimes. There is no rational basis to believe that poor, unmarried women tend to commit crimes upon becoming pregnant." (Id. at p. 627, 64 Cal.Rptr. at p. 293.)

The public interest in saving taxpayers' dollars used to maintain children of unwed mothers "is by no means the same thing as the public interest in the reformation and rehabilitation of offenders." (Id. at p. 628, 64 Cal.Rptr. at p. 294.)

The Dominguez circumscriptions on the authority of the judge in imposing conditions of probation have uniformly been reaffirmed in later decisions of the Supreme Court of the State of California. See In re Bushman, 1 Cal.3d 767, 777, 83 Cal.Rptr. 375, 463 P.2d 727; People v. Mason, supra, 5 Cal.3d 759, 764, 97 Cal.Rptr. 302, 488 P.2d 630; People v. Lent, 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545; and People v. Richards, supra, 17 Cal.3d 614, 622, 131 Cal.Rptr. 537, 552 P.2d 97.

In In re Bushman, supra, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727, the Supreme Court affirmed the requirement of Dominguez that the condition of probation to be valid must be "directly related" to the crime committed and "reasonably related" to future criminality. Bushman had been convicted of disturbing the peace. The condition or probation imposed was that of psychiatric treatment. Said the Supreme Court:

"There is no evidence to support the trial court's conclusion that petitioner needed psychiatric care. No expert witnesses testified to his mental condition. Neither the prosecution nor the court questioned any witnesses about that condition. Under these circumstances the condition as to psychiatric care had no relationship to the crime of which petitioner was convicted. Furthermore, without any showing that mental instability...