People v. Mason
| Decision Date | 28 January 1971 |
| Docket Number | Cr. 4270 |
| Citation | 92 Cal.Rptr. 628,14 Cal.App.3d 854 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Aloyslous MASON, Defendant and Respondent. |
James Don Keller, Dist. Atty., Richard H. Bein and Steven B. Davis, Deputy Dist. Attys., for plaintiff and appellant.
Neal Pereira, San Diego, for defendant and respondent.
Robert Aloysious Mason 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 the drugs for sale (Health & Saf.Code § 11911) and possessing marijuana (Health & Saf.Code § 11530). Having been bound over for trial at his preliminary hearing, Mason moved to suppress evidence of the stolen property, drugs and marijuana, claiming they were discovered in the course of an illegal search. The court granted the motion to suppress. When the deputy district attorney represented the People had no further evidence, the court dismissed the charges under Penal Code section 1385. The People appeal from the order of dismissal. We must construe all evidence and reasonable inferences from the evidence in favor of the court's implied findings in support of the orders suppressing evidence and dismissing the action.
Late in the evening of January 24, or early morning of January 25, 1970, burglars broke into the Alvarado Medical Center in San Diego. They cut into a safe with a cutting torch, broke into the Center's pharmacy and entered a doctor's office. Taken were money, stamps, retail sales items, a radio, 4,000 hypodermic needles and over 30,000 pills and capsules, mostly barbiturates or amphetamines.
About the time of the burglaries, an employee of a hospital located next to the Medical Center saw suspicious activity by two men in the parking lot. She and another employee noted the license number of the suspects' car and reported it to the police. The police traced the car's ownership to defendant Mason. The police also determined Mason lived at 2124 Reed Street in San Diego, had registered as a narcotics offender and was a probationer subject to a probation condition he '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 police went to Mason's residence and saw his car parked in front of it. A police officer knocked on the door of the residence, loudly identified himself and announced he wanted to search the apartment. Mason opened the door. An officer told Mason he had 'reason to believe [Mason] had participated in a burglary and * * * was subject to search and seizure by court order as a condition of his probation.' Mason said he was subject to that condition. The officer did not request permission to search and admittedly did not give Mason an opportunity to refuse or grant permission. Instead, one of the officers immediately searched and found a radio in the kitchen. It was one of the items stolen from the Medical Center.
Another officer arrested Mason and took him away. The police then further searched the apartment and Mason's car. They did not have a search warrant. The search took place after Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The People do not contend the search met the standards of reasonableness for a search incidental to an arrest as announced in Chimel. The People's sole contention on their appeal is the search was justified by Mason's probation condition he submit to search when requested by the officers. The deputy district attorney categorically told the court Mason gave no consent to the search.
In People v. Kern, 264 Cal.App.2d 962, 965, 71 Cal.Rptr. 105, we held a probation condition the probationer submit to search by law enforcement officers to be reasonable as a supervisional procedure related to the probationer's reformation and rehabilitation where the conviction was for a narcotics offense. Mason's probation condition was reasonable as it was based upon his earlier conviction for possessing marijuana. Here, however, the police did not ask Mason to submit to a search, as was required by the condition. The condition was never fulfilled by the officers; they made no request to search. A request implies a response will be given, either consenting or refusing. Instead, the officers proceeded on the assumption the condition gave them an automatic right to search without the necessity of a request and consent.
The district attorney contends Mason agreed to the officers' search when he accepted probation and its terms. We do not agree. Mason promised to consent to a search when asked by police officers. The agreement did not obviate the necessity the officers seek his consent. Submission is a yielding to authority and thus involves a coerced consent. The consent or yielding to authority takes place when law enforcement officers seek to conduct their search, not when probation is accepted.
The district attorney contends the search was justified because Mason had no right to violate his probation by refusing consent had it been requested. If the police had been entitled to employ self help upon a refusal to consent, Mason would not have been materially prejudiced by absence of a police request for consent.
We are persuaded, however, a violation of probation conditions does not give rise to a police remedy of self help. In civil law, a breach of contractual conditions may give rise to legal or equitable remedies in the courts, but does not warrant self help. The rule disapproving self help as a civil remedy is based upon a policy against violence. Unnecessary violence is to be avoided in criminal law enforcement too. While there was no evidence of an expressed objection to the search by Mason, the police gave him no opportunity to object. Under these circumstances the trial court could reasonably find, in support of its order, Mason's silence was not a tacit voluntary submission to the search or a yielding to the police in obedience to the probation order. Were we to hold Mason's failure to object, when the police gave him no opportunity to object, justified the search we would be placing a premium on the use of force or violence. The reasonableness of the search should not depend upon police action preventing an objection.
Had Mason's consent been requested and had he refused to consent to a search, the police could have then arrested him for violating his probation and sought revocation of his probation.
In re Young, 121 Cal.App. 711, 716-717, 10 P.2d 154, 157, says:
By limiting the remedy for violation of probationary terms to procedures to modify or revoke probation, the disabilities of a probationer are made personal to him. Were the police authorized to enforce Mason's probation by a forceable search, it is possible, if not probable, the Fourth Amendment rights of others, not subject to his probation terms, would be violated.
We see no impediment to the administration of probation programs by this limitation on probation violation remedies, as is urged by the district attorney. Revocation of probation and imposition of sentence to prison should be a sufficient sanction to compel compliance with probation.
Since the court below correctly ruled the search was illegal and not authorized by Mason's probation conditions, and since no contention is made the dismissal was not authorized after suppression of the evidence, the order of dismissal must be affirmed.
Order affirmed.
The threshold problem is the meaning of the probation order. It is fitting that trial judges who impose such a condition of probation be told what they mean by it. If it means that defendant was ordered to voice a consent to search if requested in terms to give such consent, the trial court's decision must be upheld.
If, on the other hand, the order was that defendant submit to a search in the sense that submission is made to a search under a warrant, there is a further question of interpretation as to the meaning of 'when requested.' If that means that the probation or police officer must use the phrase 'I request leave to search' or 'May I search?' it is equally clear that no such phrase was used, and the trial court's decision must be upheld.
If the order requires only such an indication of a desire to search as a reasonable person would infer from the language and manner of the police officer, which is the reasonable meaning, another question follows:
Can there be a waiver of the constitutional immunity from search made without reference to a specific search, and is a search made on the strength of such a waiver a reasonable search? If the authorities hereafter cited support the affirmative then we must determine whether the probation order's requirement of submission to search by 'any law enforcement officer' was a reasonable condition of probation under Penal Code section 1203.1, and whether under all of the circumstances preceding the particular search it was a reasonable one.
Finally, it must be determined whether defendant submitted to the search.
It is only if express consent were required to be given at the time of search that the trial court's implied finding no consent was given is significant.
While we are bound by the trial court's resolution of questions of fact, we need not accept its interpretation of the meaning of the order based solely upon...
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