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

The PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Aloyslous MASON, Defendant and Respondent.

Cr. 4270.

Decided: January 28, 1971

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:

‘A violation of the terms of probation is not deemed to be a separate offense for which one may be punished independently of his original sentence. The breach of probation is inseparably associated with the original sentence.’

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.

I dissent.

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 the terms of the instrument. (Trubowitch v. Riverbank Canning Co., 30 Cal.2d 335, 339, 182 P.2d 182.)

Judicial orders are to be construed under substantially the same canons of interpretation as other writings. (Verdier v. Verdier, 121 Cal.App.2d 190, 193, 263 P.2d 57.)

A provision of a probation order similar to that under consideration is constitutional. (People v. Kern, 264 Cal.App.2d 962, 71 Cal.Rptr. 105; People v. Fitzpatrick, 3 Cal.App.3d 824, 84 Cal.Rptr. 78.)

There would be little point in arguing its constitutionality if its meaning and effect were that defendant should in express terms voice his consent to a probation or peace officer when the latter in express terms should ask if he might search. The constitutional question would not arise if in accepting probation the defendant waived no constitutional right; there would have been no waiver if his express consent must be given on every occasion of request to search.

The order could not be interpreted, of course, as requiring submission to a search that might be demanded capriciously and without reasonable justification.

The interpretation that the terms of probation merely ordered defendant when requested to give consent to a search makes redundant the language ‘with or without a search warrant.’ If there were a search warrant no consent would be necessary. If defendant was merely ordered to give consent, the mention of a warrant was meaningless; should consent be given, no warrant would be required.

The meaning of the probation order should not be determined merely with a view of what happened in the present case.

The interpretation of the order should not be influenced by the fact that McCain was a police officer who had knowledge of a new crime that might have been committed by the defendant, evidence of which was disclosed by the search. That fact goes rather to the reasonableness of the search under the circumstances.

The provision of the order that defendant submit his residence to search was probably because of the high incidence of recidivism among those convicted of narcotic violations, and was deemed necessary to exercise of effective supervision. It was not to obtain a consent to search or to test the willingness of defendant on occasion to consent to search, but to obtain a right to search with or without consent. Whatever value such an order might have as a psychological deterrent to possessing narcotics because of the possibility of an unexpected search would be lost by the trial court's interpretation of the order.

The interpretation placed upon the probation order by the police and the defendant is not irrelevant as to the reasonableness of the search.

When McCain told defendant he was subject to search and seizure by court order as a condition of probation, defendant stated ‘that yes, he was.’

It is clear the police believed the order authorized a search upon demand; in that interpretation defendant concurred.1 He voiced no objection to the search and made no attempt to deny to the police the right to search, and did not testify to any reason for not having so objected. Very evidently he believed the order authorized a search without expressed consent.2

Although the rules for interpretation of the order may be the same as for interpretation of contracts, it is doubtful that the acceptance of the terms of probation creates a contractual relationship between the court and the probationer; or that contract law analogies are appropriate.

Probation is a privilege, an act of grace or clemency. (In re Osslo, 51 Cal.2d 371, 377, 334 P.2d 1.)

The order does not speak in terms of giving consent, but of submission; because of the use of the words ‘when requested by any law enforcement officer,’ in conjunction with the words ‘submit his person,’ etc., such a request is in fact a demand. The primary definition of the verb ‘demand’ is to ask with authority.

The language and conduct of McCain implied a demand to search.

Fourth Amendment immunity may be waived in advance of a specific search; the waiver is not required to be made only in prior immediacy to a specific search. Within limits there may be a waiver general as to time of search for searches to be made by certain public officials. (Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477; Bowles v. Misle, D.C., 64 F.Supp. 835; Bowles v. Curtiss Candy Co., D.C., 55 F.Supp. 527 531; United States v. Rabicoff, D.C., 55 F.Supp. 88; Tucker v. State, 244 Md. 488, 224 A.2d 111, cert. denied 386 U.S. 1024, 87 S.Ct. 1381, 18 L.Ed.2d 463; People v. Allen, 406 Ill. 596, 96 N.E.2d 446, cert. denied 341 U.S. 922, 71 S.Ct. 739, 95 L.Ed. 1355; Zukowski v. State, 167 Md. 549, 175 A. 595.)

In Zukowski v. State, supra, the court stated, at page 597:

‘The search which resulted in the discovery of the defendant's illegal possession of liquor was made with his consent voluntarily and formally given, under the terms of the statute, to induce the issuance of a license to him for the sale of alcoholic beverages. The consent was none the less voluntary because of the fact that it was a prerequisite to his obtaining the license. In thus authorizing the search he debarred himself from contending successfully that it was unlawful.’

Such waivers are usually with regard to licensees in businesses made subject to search by statute.3

However, in Zap v. United States, supra, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477, the waiver was a contract provision.

The order that defendant submit to search by any law enforcement officer was a reasonable condition under Penal Code section 1203.1. (People v. Kern, supra, 264 Cal.App.2d 962, 71 Cal.Rptr. 105; People v. Fitzpatrick, supra, 3 Cal.App.3d 824, 84 Cal.Rptr. 78.)

Section 1203.2 gives a related power of arrest without a warrant to any peace officer. (See Pierce v. Board of Nursing etc. Registration, 255 Cal.App.2d 463, 467, 63 Cal.Rptr. 107.)

By accepting probation, Mason submitted his place of residence to search without a warrant whenever requested to do so by any law enforcement officer, subject to the limitation that the search be reasonable in other respects.

If the search was authorized by the probation order, it should be held the be a reasonable search if there were reasonable grounds to demand it.

The circumstances detailed as a matter of law gave good reason to search defendant's premises for narcotics if the purpose of the probationary order was to control defendant in his freedom to obtain and possess such drugs.

The visit of the officers, which was made shortly after 12:00 noon, was not unrelated to defendant's probationary status, in view of the terms of the probation order,4 a copy of which had been furnished the police and seen by Officer McCain.

While the officers went to the residence for the purpose of making a search, their intention to do so was not capricious; they did so because they had reason to suspect defendant might be in possession of large quantities of restricted dangerous drugs.

McCain, the arresting officer, and the one who asserted the right to search, was in the narcotics division of the police department. The ranking officer of the group, Lieutenant Helmick, was the head of that division.

Shiveley, another of the officers, testified McCain told defendant his reason for being there was to search defendant's premises for narcotics; and that the probation order made defendant subject to search and seizure at any time in regard to narcotics.5

There is some possible analogy between the right of freedom from search of a parolee under a person sentence and a probationer under a probation order of the kind under study.

The parolee is not subject to search, even by a parole officer, unreasonable under the circumstances. (In re Martinez, 1 Cal.3d 641, 647, footnote 6, 83 Cal.Rptr. 382, 463 P.2d 734.)

A search of a parolee by a peace officer unaware of the parole status may not be justified by that status. (In re Martinez, supra, 1 Cal.3d 641, 646, 83 Cal.Rptr. 382, 463 P.2d 734; People v. Gallegos, 62 Cal.2d 176, 178, 41 Cal.Rptr. 590, 397 P.2d 174.)

A search of a parolee's property made without a warrant must be related to the parole process. (People v. Gilkey, 6 Cal.App.3d 183, 190, 85 Cal.Rptr. 642, 647.) There the court said:

‘We conclude that the parole officer was meeting legitimate demands of the operation of the parole process. The fact that he was cooperating with ordinary peace officers does not mean that he was not performing, simultaneously, the duties of his office. [Citations.] In the nature of things, parole violations frequently must be brought to the attention of parole officers by regular police officers. Although the concept that a parolee's abode is simply an enlargement of his prison cell no longer seems valid, nevertheless the court should not engage in fine metaphysical distinctions as to which effort was primary and which secondary, the proper enforcement of parole or the solution of criminal cases.’

The provisions of Penal Code section 844 must be observed in entering to search a parolee's residence (People v. Rosales, 68 Cal.2d 299, 66 Cal.Rptr. 1, 437 P.2d 489); and also when entering to search a probationer's residence (People v. Hayko, 7 Cal.App.3d 604, 86 Cal.Rptr. 726).

However, there is a point at which the analogy between the Fourth Amendment rights of a parolee and a probationer under an order such as that of defendant breaks down.

The narrowing of a parolee's Fourth Amendment rights against search is not one specified in the Penal Code sections on parole (§ 3040 et seq.). Judicial notice may be taken that it is not mentioned in the standard forms of parole agreement in use by the Adult Authority.

Here the probation order was specific and ordered submission to search by the probation officer or any law enforcement officer.

In contrast to the situation in People v. Hayko, supra, 7 Cal.App.3d 604, 86 Cal.Rptr. 726, McCain in the instant case scrupulously observed the requirements of section 844.

Whether defendant might have withdrawn the waiver given by his acceptance of probation because he feared the rights of third parties might be affected by the search, or for any other reason, is not involved.

Had defendant voiced or otherwise indicated an objection, and if in the face of such objection the officers nevertheless made a search, we would be presented with a different problem. That they might have done so is irrelevant.

The proposition would seem to be self-proving that every search by a law enforcement officer, made in the presence of a person aware of what is going on and who evidences no objection by word or conduct, is one to which he gives his voluntary consent or to which he submits.

Submission is ‘a yielding to authority.’ The transitive verb ‘submit’ means ‘to yield in surrender, compliance or obedience.’

Not only does the trial court's decision necessarily imply that the search was not made upon a voluntary consent given at the time, but it is beyond question defendant did not at the time voice a voluntary consent.

Although a defendant's failure to voice an objection to a search has sometimes been considered as evidence of the reasonableness of the search (People v. Villarico, 140 Cal.App.2d 233, 238, 295 P.2d 76; People v. Zavaleta, 182 Cal.App.2d 422, 426, 6 Cal.Rptr. 166), in the present case the only possible conclusion is that the search was made not as the result of a voluntary consent given at the time but in submission to an express assertion of authority based upon the probation order.

Where there is a voiced or implied consent, it may nevertheless have been the result of a wrongful assertion of authority and be in fact involuntary.

The waiver of the right under the Fourth Amendment to be free from unreasonable searches and seizures cannot be conclusively presumed from a voiced expression of consent. (Cipres v. United States, 9 Cir., 343 F.2d 95, 97.)6

Thus if the defendant here should give an apparent consent to a search by a probation officer which produced evidence of a new crime, it would still be possible for the probationer to claim with regard to such evidence that his apparent consent was coerced.

There can be no doubt that here any consent to the search that might otherwise be implied from defendant's apparent ac quiescence was in submission to an express assertion of authority.7

There is no evidence from which it could be inferred he either did indicate or would have indicated objection to the search.

The question is whether that assertion of authority was legal or illegal.

A search is unreasonable if it is permitted in submission to an illegal assertion of authority. (Castaneda v. Superior Court, 59 Cal.2d 439, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Haven, 59 Cal.2d 713, 31 Cal.Rptr. 47, 381 P.2d 927; People v. Martin, 225 Cal.App.2d 91, 36 Cal.Rptr. 924; People v. Porter, 227 Cal.App.2d 211, 38 Cal.Rptr. 621.)

Not every search made in submission to an express assertion of authority is unreasonable.

Searches made under warrants are in submission to an express assertion of authority.

Even to such legal assertions of authority, the law furnishes instances of refusal to submit.

The defendant here made no such refusal. By failing to object in any manner, he complied with the probation order; he yielded the residence for search in compliance and obedience.

Defendant had been ordered to do so and that is what he did, thus obeying the probation order.

The trial court was concerned only with the correct interpretation of the order, and professed some doubts as to what that interpretation should be. The majority opinion, however, seems to suggest a policy that a court should not impose a condition of probation that would amount to a waiver of Fourth Amendment rights effective in future.

I would reverse.


1.  In People v. Gorg, 45 Cal.2d 776, 783, 291 P.2d 469, 473, the court stated:‘Under these circumstances the officers were justified in concluding that Stevens had the authority over his home that he purported to have, and there was nothing unreasonable in their acting accordingly. In this proceeding we are not concerned with enforcing defendant's rights under the law of trespass and landlord and tenant, but with discouraging unreasonable activity on the part of law enforcement officers.’

2.  Although on cross-examination a question to and an answer of McCain were:‘Q And in essence isn't it a fact that you did not give Mr. Mason an opportunity to refuse to allow you to search; isn't that correct?‘A I would say that is correct.’that would be significant only if the effect of the probation order was that defendant should give his consent expressed in terms to a request expressed in terms by the police for permission to search.

3.  In contrast to most of the statutes, the statute under consideration in United States v. Cardiff, D.C., 95 F.Supp. 206, 207–208, provided:‘The following acts and the causing thereof are hereby prohibited:‘* * *‘(f) The refusal to permit entry or inspection as authorized by section 704.’Section 704: ‘For purposes of enforcement of this Act, officers or employees duly designated by the Administrator, after first making request and obtaining permission of the owner, operator, or custodian thereof, are authorized (1) to enter, at reasonable times, any factory * * *’The defendant there was convicted of refusing to consent to the inspection.An interpretation of the probation order that it only commanded the giving of consent gives it the meaning of the quoted statute in the Cardiff case.

4.  Judicial notice may be taken of the records of this court. The record on appeal in case Crim. 4469 shows that the probation granted on September 3, 1969 by the order in question was revoked. It is not determinable from that record whether the revocation was because of the evidence discovered in the search of January 1970 or because of a conviction of possession for sale alleged in an indictment filed December 2, 1969 to have been committed on august 16, 1969.

5.  Although the police arrested Mason and took him away after one of the officers saw openly visible in the kitchen a radio stolen in the Alvarado Medical Center burglary, the rest of the search was made while a woman in the apartment remained there.

6.  ‘The substantial probability that the unlawful entry essential to securing consent and the inescapable uncertainty whether the consent was voluntary preclude treating the consent as an independent valid basis for the ensuing search of defendant's person.’ (People v. Haven, 59 Cal.2d 713, 718, 31 Cal.Rptr. 47, 50, 381 P.2d 927, 930.)

7.  The phrase used in the majority opinion, ‘tacit voluntary submission,’ would be inappropriate to use in describing the submission by a victim of forcible rape.

GERALD BROWN, Presiding Justice.

AULT, J., concurs.

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