People v. Palmquist

• Decision Date: 23 July 1981
• Docket Number: Cr. 21562
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Ronald PALMQUIST, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 173

176 Cal.Rptr. 173

123 Cal.App.3d 1

PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip Ronald PALMQUIST, Defendant and Appellant.

Cr. 21562.

Court of Appeal, First District, Division 3, California.

July 23, 1981.

Harry V. Lehmann, Steven C. Duditch, Novato, for defendant and appellant.

George Deukmejiam, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Division, Edward P. O'Brien, Asst. Atty. Gen., John T. Murphy, Stan M. Helfman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

WHITE, Presiding Justice.

This appeal, pursuant to Penal Code section 1538.5, subdivision (m), is from a judgment entered after defendant and appellant Phillip Palmquist's motion to suppress evidence was denied and he pled guilty to a violation of Health and Safety Code section 11359.

FACTS

On December 13, 1979, Officer Robert Jones of the Napa Special Investigations Bureau was contacted by a citizen informant who advised that appellant and his roommate, Bridget Barjkovich, were involved in sales of hashish. The informant further related that appellant and Barjkovich resided at and sold narcotics from 2021 First Street, Apartment No. 3. Officer Jones was aware from a case in which he was previously involved that appellant and Barjkovich had resided together two years prior.

Officer Jones contacted appellant's probation officer, Jan Barr, who advised that appellant was on probation, but had failed to report since September 1979. Ms. Barr further advised that appellant was subject to a search probation condition and she requested Officer Jones to investigate further. Ms. Barr provided Officer Jones with a copy of the probation report and the order, which provided, in part, that appellant was not to possess or deal in drugs. The probation order also provided that appellant was subject to a search of his person and residence by his probation officer or by any law enforcement officer with or without a search warrant, warrant of arrest or reasonable cause. Officer Jones checked with Barjkovich's employer and verified her address as being the one given by the informant. Officer Jones also verified with the landlord that the apartment was leased in Barjkovich's name. Officer Jones then attempted to confirm appellant's presence at the residence by calling the residence and asking for "Phil." The female who answered stated that he was not home. Officer Lynn Harmston of the Napa Special Investigations Bureau also phoned the residence on December 17, 1979, and spoke with a person who identified himself as "Phil."

Later that day Officer Jones and other officers went to the residence at 2021 First Street Apartment No. 3, and observed appellant within the residence looking out of the living room window. Officer Jones recognized appellant from mug shots. Officer Jones then went to the apartment door, knocked repeatedly and announced he wished to speak with appellant about his probation conditions. There was no response. Appellant attempted to leave the house through the back door, but a police officer was stationed at the back of the house. Finally, Officer Jones forced the front door open, entered the residence and located appellant standing between the kitchen and living room. Appellant was immediately arrested "(f)or violation of his probation, for refusal to answer the door as ordered, and since (sic) he had not reported to his probation officer since September of '79." The officers then conducted a search of the apartment. In plain view on a table in the living room was a black and beige gram scale. In the refrigerator and in a ski parka in the kitchen were a number of plastic bags containing 52.45 grams of marijuana (i. e., between two and three ounces).

After appellant was advised of his Miranda rights, Bridget Barjkovich returned to the apartment. Appellant volunteered that all of the marijuana was his, and that the ski parka was his as well.

Appellant moved to suppress the evidence discovered during the search, stipulating that the preliminary hearing transcript would be considered in determining the motion. The motion was denied. Thereafter appellant renewed his motion to suppress. Said motion was also denied. ¹

Appellant attacks the search and seizure pursuant to his probation condition on the grounds that: (1) it was conducted by police officers rather than by the probation department as a subterfuge for a general police investigation; (2) there was no reasonable suspicion that he was involved in criminal activity; (3) there was no reasonable belief he lived at the residence searched; (4) it was conducted pursuant to an incorrect and defective probation order; and (5) it was conducted subsequent to a warrantless arrest in the home, which arrest violated People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, cert. den. 429 U.S. 929, 97 S.Ct. 335, 50 L.Ed.2d 299. For reasons we are about to discuss, we affirm the judgment.

As to appellant Palmquist's first contention, our Supreme Court in People v. Mason (1971) 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, certiorari denied 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545, upheld a warrantless search made by a police officer who had previously determined that the defendant was on probation and subject to search by any law enforcement officer as a condition of his probation. (Accord, People v. Kasinger (1976) 57 Cal.App.3d 975, 129 Cal.Rptr. 483; People v. Turner (1976) 54 Cal.App.3d 500, 126 Cal.Rptr. 652.) Adhering to the teaching of Mason this court in People v. Knox (1979) 95 Cal.App.3d 420, 157 Cal.Rptr. 238, also upheld the warrantless search of a parolee by law enforcement officers as had the court in People v. Icenogle (1977) 71 Cal.App.3d 576, 139 Cal.Rptr. 637. Further, in Knox, we distinguished People v. Coffman (1969) 2 Cal.App.3d 681, 82 Cal.Rptr. 782, upon which appellant here places considerable reliance, as involving a case where no explicit consent to warrantless searches by law enforcement officers had been given. (See People v. Natale (1978) 77 Cal.App.3d 568, 143 Cal.Rptr. 629.) Since appellant Palmquist gave express consent to warrantless searches by any law enforcement officer as a condition of his probation, the search need not have been instigated by appellant's probation officer nor must she have accompanied the officers on the search. ² Likewise in view of the express waiver and the probation officer's request that the police officers further investigate the informant's tip, the search here was not a subterfuge for a search otherwise impermissible as in Coffman. (Compare In re Martinez (1970) 1 Cal.3d 641, 647, fn. 6, 83 Cal.Rptr. 382, 463 P.2d 734, cert. den. 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88; People v. Natale, supra; People v. Hernandez (1964) 229 Cal.App.2d 143, 40 Cal.Rptr. 100, 150, cert. den. 381 U.S. 953, 85 S.Ct. 1810, 14 L.Ed.2d, 725; with People v. Knox, supra; People v. Icenogle, supra; People v. Kasinger, supra.) In light of Mason and its progeny, we are not persuaded that United States v. Consuelo-Gonzalez (9th Cir. 1975) 521 F.2d 259, and United States v. Smith (W.D.N.Y.1975) 395 F.Supp. 1155, also relied upon by appellant, compel a contrary conclusion. ³

We turn now to the question of whether the officers had sufficient cause to lawfully conduct the search. Mason held valid the advance waiver of Fourth Amendment rights in order to obtain probation. (People v. Mason, supra, 5 Cal.3d 759, 766, 97 Cal.Rptr. 302, 488 P.2d 630; see People v. Calais (1974) 37 Cal.App.3d 898, 903-904, 112 Cal.Rptr. 685.) Such a waiver is considered voluntary since the defendant is not compelled to consent to the condition. (Ibid.; contra, People v. Bremmer (1973) 30 Cal.App.3d 1058, 1063-1064, 106 Cal.Rptr. 797; People v. Keller (1978) 76 Cal.App.3d 827, 832-833, fn. 2, 143 Cal.Rptr. 184.) Some courts, however, have concluded that there must still be conduct "reasonably suggestive of criminal activity to 'trigger' the search." (People v. Guerrero (1978) 85 Cal.App.3d 572, 581, 149 Cal.Rptr. 555; see People v. Garcia (1975) 44 Cal.App.3d 1029, 119 Cal.Rptr. 128; People v. Bremmer, supra; contra, People v. Turner, supra, 54 Cal.App.3d 500, 126 Cal.Rptr. 652, per Elkington, J.) In those cases the probationer had consented only generally to probation searches or to warrantless probation searches, but had made no express waiver of all reasonableness under the Fourth Amendment.

Where, as in the case at bench, a probationer expressly consents to probation searches without a search warrant and without any reasonable cause it would appear, therefore, that he has waived whatever claim of privacy he might otherwise have had. (See People v. Mason, supra, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630; compare People v. Kasinger, supra, 57 Cal.App.3d 975, 129 Cal.Rptr. 483; People v. Constancio (1974) 42 Cal.App.3d 533, 116 Cal.Rptr. 910 (probation condition required reasonable cause to initiate probation search; reasonable cause found).) Accordingly, appellant here waived whatever Fourth Amendment rights he might have had to require reasonable cause to conduct the search by consenting to searches without any cause as a condition of probation.

Nevertheless, we address appellant's argument in order to establish that reasonable cause ⁴ existed even though none was required. Appellant argues that the single tip from an unidentified informant was insufficient as a matter of law to establish reasonable cause to trigger the search of his residence. To establish his contention he contrasts the facts in the present case with the facts in People v. Mason, supra, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, and People v. Icenogle, supra, 71 Cal.App.3d 576, 139 Cal.Rptr. 637. In Mason the defendant's vehicle, identified by its license plate, was seen leaving the scene of a burglary. The...