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Court of Appeal, Second District, Division 4, California.

Manuel GOMEZ, Petitioner, v. The SUPERIOR COURT OF SANTA BARBARA COUNTY, APPELLATE DEPARTMENT, Respondent, The PEOPLE, Real Party in Interest.

Civ. 64830.

Decided: June 18, 1982

Glen Mowrer, Jr., Santa Barbara Public Defender, and Thomas Bleauvelt, Asst. Public Defender, for petitioner. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Gary R. Hahn and Shunji Asari, Deputy Attys. Gen., for real party in interest.

This proceeding in mandate presents the question of whether a person released on parole under the determinate sentencing law may be required as a condition of parole to waive in advance his Fourth Amendment right against warrantless searches by police officers who conduct searches wholly without the knowledge of the parole officer for purposes other than administration of the parole process.

For the reasons discussed in detail herein, it is concluded that such an advance waiver of Fourth Amendment protection is invalid because the basis therefor, derived from People v. Mason (1971) 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, cannot be justified in the context of a parole release following service of a determinate term of confinement.

On February 12, 1980, petitioner was released on parole after completing a determinate state prison term for possession of controlled substances for purpose of sale (Health & Saf.Code, § 11351) and burglary (Pen.Code, § 459).   Upon release, the Department of Corrections issued petitioner a form entitled, “Notice and Conditions of Parole,” which, among other provisions, stated:  “You and your residence and any property under your control may be searched without a warrant by any agent of the Department of Corrections or any law enforcement officer.”   The notice also provided the special parole condition that petitioner consent to submit to “anti-narcotic testing.”   The form bears the signature of petitioner and that of a department staff member.

On October 15, 1980, misdemeanor complaint number 192271 was filed in Santa Barbara/Goleta Municipal Court, charging petitioner with a September 18, 1980, violation of Health and Safety Code section 11550, using and being under the influence of a controlled substance.   Petitioner was arraigned and entered a plea of not guilty.   His motion to suppress the results of narcotics tests performed on him was heard and denied on February 9, 1981, by Judge James M. Slater.

On November 10, 1980, misdemeanor complaint number 192749 was filed in the same court, charging petitioner with a separate violation of Health and Safety Code section 11550 on October 7, 1980.   He pleaded not guilty and his motion to suppress narcotics test results was heard and granted by Judge Slater on February 4, 1981.

The People appealed from the order granting suppression to the Santa Barbara Superior Court Appellate Department, and petitioner appealed from the order denying suppression.   On January 27, 1982, after briefing and argument, the order granting suppression was reversed and the order denying suppression was affirmed without written opinion.   Petitioner's applications to the appellate department for rehearing or transfer to this court under California Rules of Court, rule 62, were denied on February 5, 1982.   The present petition followed.   We issued the order to show cause to determine the important issue of law raised by these cases.

The evidence adduced at the February 4, 1981 hearing concerning the September 18, 1980 offense was by testimony of one of the two arresting officers, Detective Simmons.   Detective Simmons was told approximately two weeks prior to September 18, 1980, by his partner, Detective Lohse, that a confidential informant had said “Manuel Gomez is using heroin.” 1  The officers knew Manual Gomez was on parole and “subject to search and seizure,” although they did not know the nature of his prior conviction offenses.   They predetermined to detain and test Gomez for narcotic use when they encountered him.   During the afternoon of September 18, 1980, the officers were “driving around the westside” of Santa Barbara in an unmarked police car when they saw a man they believed to be Manuel Gomez backing a car out of a residential driveway.   Detective Simmons had either been given a general description of Gomez at some prior unspecified time at the local parole office or had seen a photograph of him there.   He had never before seen Gomez in person.   Simmons did not testify to having discussed Gomez with his parole officer prior to that September 18 encounter.   Simmons could not relate the extent of the general physical description of Gomez he had nor how he learned the residence and car were owned by Gomez.   The officers stopped the Gomez car solely because they “were conducting a narcotics investigation.”   After approaching the stopped car, Detective Simmons noticed that Gomez's speech “appeared to be somewhat slow and deliberate” without an odor of alcohol.   Simmons asked if he was taking medication, to which Gomez replied negatively.   Simmons believed Gomez's eyes were “slightly” constricted and performed a field test by cupping his hands over Gomez's eyes for one minute and observing the speed of pupil reaction on re-exposure to daylight.   He observed a “slow reaction time” compared to that of Detective Lohse's eyes, which he shaded “just briefly.”   Simmons then examined Gomez's arms.   There was no testimony as to whether this involved rolling up Gomez's sleeves.   Simmons observed two “puncture type marks” over a vein which he estimated to have been made within the prior three days.   Simmons thereupon placed him under arrest on suspicion of using a controlled substance and transported him for further narcotics testing.   Upon re-examining Gomez's eyes at the police station 40 minutes later, Simmons could detect no abnormality indicating the influence of a narcotic.

The trial court ruled that both the initial detention and the resulting arrest were unlawful, commenting that the information from the confidential informant was second hand through a nontestifying officer and that the casual field testing of Gomez's eyes turned out to be incorrect upon observation 40 minutes later.

Detectives Simmons and Lohse were on duty in an unmarked police car investigating a local burglary on the afternoon of October 7, 1980, when they observed petitioner lawfully parked in his car by a curb.   The officers testified at the February 4, 1981 hearing that they immediately turned their car around and contacted petitioner and his passenger, one George Paz, for the sole purpose of “conducting a narcotics investigation.”   Detective Lohse testified that, on or about September 23, he had received information from a confidential informant that petitioner and Mr. Paz were using heroin.   The officers had known for three or four months prior that petitioner was on parole and “subject to search and narcotics testing” and decided to detain him when they saw him.   The officers did not testify that they then had knowledge of positive results from petitioner's September 18 tests.   Upon approaching petitioner, Detective Lohse noticed petitioner's speech was “thick and deliberate or slow with no odor of intoxicants.”   Lohse asked if he was taking any medication and petitioner replied he was not.   Lohse had him confirm that he was still on parole.   The trial court found that petitioner had been detained at this point.   Detective Lohse then requested petitioner to roll up the long sleeves of his shirt for examination of his arms.   He complied and revealed five puncture marks on his inner arms which suggested narcotic injection to Lohse.   Lohse suspected, but did not yet form the opinion, that petitioner was under the influence of a controlled substance.   Petitioner was not arrested, but was placed in the police car and transported to police headquarters for narcotics testing.   The court found the confidential informant was reliable.   There was no evidence that either of the detaining officers had contacted petitioner's parole officer prior to October 7 for authorization to search and test petitioner for narcotics use.   An authenticated copy of petitioner's “Notice and Conditions of Parole” was admitted in evidence.

There is no contention in this case, nor could any be sustained, that there was probable cause for these warrantless searches and tests upon petitioner by the police.   This conduct must be justified, if at all, under the search condition of petitioner's parole.

Warrantless searches of probationers and parolees by or under direction of probation or parole officers on less than probable cause have been upheld by a long line of Court of Appeal decisions on the theory of custodia legis.   Warrantless searches of probationers and parolees by police officers acting independently of probation and parole officers have been upheld on the rationale that a search condition of probation or parole is one voluntarily accepted by the probationer or parolee in order to obtain the preferred freedom from prison confinement and is thus a constitutional advance waiver of Fourth Amendment rights.   This doctrine, as discussed later in detail, was first pronounced in People v. Mason, supra, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, in the context of a probationer, and was extended to parolees by analogy in later cases.   As will be shown, neither of these rationales has present application to justify the subject police searches of petitioner.

The doctrine of custodia legis, founded in Penal Code section 3056, is well explained in People v. Thompson (1967) 252 Cal.App.2d 76, at pages 84–85, 60 Cal.Rptr. 203, as follows:  “It is well established that although a parolee is entitled to basic rights entitling him to constitutional protection against arbitrary or oppressive official action [citations] these rights are not necessarily tested by the same rules which apply to citizens who are possessed of full civil rights.  (People v. Hernandez, 229 Cal.App.2d 143, 149–150 [40 Cal.Rptr. 100];  People v. Denne, 141 Cal.App.2d 499, 507–510 [297 P.2d 451];  People v. Quilon, 245 Cal.App.2d 624, 626 [54 Cal.Rptr. 294].)

“The rationale underlying this principle is that a parolee is at all times in custodia legis.   Although he is not a prison inmate in the physical sense, he is serving the remainder of his term outside rather than within the prison walls.  (People v. Quilon, supra;  People v. Hernandez, supra.)   Accordingly, so far as necessary for the maintenance of parole guardianship, the status of a parolee as a prisoner is no different than that of one who remains in confinement, and, therefore, for the purpose of maintaining the restraints and social safeguards accompanying such status, the correctional authorities who supervise the parolee on parole may subject him, his home and his effects to such constant or occasional inspection and search as may seem advisable to them.  (People v. Hernandez, supra;  People v. Quilon, supra;  People v. Denne, supra;  People v. Triche, 148 Cal.App.2d 198, 202–203 [306 P.2d 616];  People v. Robarge, 151 Cal.App.2d 660, 665–666 [312 P.2d 70].)

“In the light of the foregoing it has been held that a parole officer needs neither a search warrant nor consent of a parolee in order to search the latter's premises (People v. Denne, supra;  People v. Triche, supra;  People v. Gastelum, 237 Cal.App.2d 205, 208–209 [46 Cal.Rptr. 743];  People v. Quilon, supra), nor is he bound by the requirement of reasonable or probable cause in conducting a search.  (People v. Hernandez, supra, pp. 150–151 [40 Cal.Rptr. 100] );  People v. Quilon, supra, p. 627 [54 Cal.Rptr. 294].)  The fact that a person is on parole does not, however, justify a search by peace officers other than parole officers.  (People v. Quilon, supra ;  see People v. Gallegos, 62 Cal.2d 176 [41 Cal.Rptr. 590, 397 P.2d 174].)  But when a parole officer is justified in making a search he may enlist the assistance of ordinary peace officers.  (People v. Quilon, supra;  People v. Contreras, 154 Cal.App.2d 321, 326 [315 P.2d 916];  see People v. Hernandez, supra;  People v. Triche, supra.)”

The critical distinction between a parole search conducted by a parole officer primarily for the purpose of administration of parolee and a search conducted by police officers in the presence of the parole officer for primarily law enforcement purposes was pointedly expressed in People v. Coffman (1969) 2 Cal.App.3d 681, at pages 688–689, 82 Cal.Rptr. 782:

“A parolee is not stripped of constitutional protection.  [Citations.]  Parolee status alone does not justify a search by peace officers other than parole agents.  [Citations.]  When a parole agent is justified in making a search, he may enlist the aid of the police.  [Citation.]  The parole agent's physical presence, even his nominal conduct of the physical acts of search, does not signalize validity.   The purpose of the search, not the physical presence of the parole agent, is the vital element.   In Hernandez, supra, [229 Cal.App.2d 143 [40 Cal.Rptr. 100] we explicitly conditioned the search's validity upon a ‘purpose of maintaining the restraints and social safeguards accompanying the parolee's status ․.’  (229 Cal.App.2d at p. 150 [40 Cal.Rptr. 100].)  [¶]  The parole agent was not engaged in administering his supervisorial function.   He had not instigated the search nor evinced any official interest in it except in his role as a ‘front’ for the police.   His presence was a ruse, calculated to supply color of legality to a warrantless entry of a private dwelling.   The Fourth Amendment hardly lends itself to such totemism.   The search was primarily aimed at ordinary law enforcement, not parole administration.”  (Fn. omitted.)

In People v. Natale (1978) 77 Cal.App.3d 568, 143 Cal.Rptr. 629, a warrantless search of a known parolee's car was held not justified as a parole condition when police who detained the parolee on suspicion of committing a recent burglary merely telephoned the parole officer and, without relating the particular facts upon which they intended to search, obtained carte blanche authorization to search under the parole search condition.

Clearly, the nature of the doctrine of custodia legis does not extend to justify searches by government law enforcement officers other than those responsible for administering probation and parole.   Searches by police officers acting independently of probation and parole officers must be founded on another rationale.

The only California Supreme Court case upholding a warrantless police search of a probationer without authorization from the probation officer is People v. Mason, supra, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630.  Mason did not apply the custodia legis doctrine, but based its holding instead upon the rationale that probationers validly give advance consent to such searches by police in order to obtain the status of probation which the sentencing court need not otherwise grant.

There, police officers investigating a burglary traced the license number of the car involved to the defendant, who was on probation for a narcotics offense and subject to the condition of probation requiring him to “ ‘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.’ ”  People v. Mason, supra, 5 Cal.3d at p. 762, 97 Cal.Rptr. 302, 488 P.2d 630.)   The police officers went to defendant's residence without a warrant and without contacting his probation officer.   They announced their identity, advised that they suspected the defendant of a burglary, and asked confirmation that he was on parole and subject to a search condition.   When he replied that he was, the officers entered and searched the residence, finding items of stolen property.   The scope of the search exceeded constitutional limits for a warrantless search incident to arrest.

In holding the condition of probation a valid waiver of Fourth Amendment rights, the Mason court noted that the courts are granted broad discretion by Penal Code section 1203.1 to impose restrictive conditions reasonably related to the defendant's offense to foster rehabilitation and protect public safety and that “ ‘If the defendant considers the conditions of probation more harsh than the sentence the court would otherwise impose, he has the right to refuse probation and undergo the sentence.’ ”  (People v. Mason, supra, 5 Cal.3d at p. 764, 97 Cal.Rptr. 302, 488 P.2d 630, citing In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727.)   It noted that in the circumstances before it the conditions of probation conformed to the requirements of Penal Code section 1203.1 and had a reasonable relationship to the offense committed and the probationer's rehabilitation needs.   The court then resolved the Fourth Amendment abridgement issue as follows:  “Defendant contends that a probation condition which requires submission to a warrantless search constitutes an unreasonable invasion of his Fourth Amendment rights.   We have heretofore suggested, however, that persons conditionally released to society, such as parolees, may have a reduced expectation of privacy, thereby rendering certain intrusions by governmental authorities ‘reasonable’ which otherwise would be invalid under traditional constitutional concepts, at least to the extent that such intrusions are necessitated by legitimate governmental demands.  (See In re Martinez, 1 Cal.3d 641, 647, fn. 6 [83 Cal.Rptr. 382, 463 P.2d 734];  cf. People v. Gilkey, 6 Cal.App.3d 183, 186–188 [85 Cal.Rptr. 642], and cases cited.)   Thus, a probationer who has been granted the privilege of probation on condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection.”  (People v. Mason, supra, 5 Cal.3d at pp. 764–765, 97 Cal.Rptr. 302, 488 P.2d 630;  fn. omitted.)

The Mason court, cognizant of the need to justify this abridgment of Fourth Amendment rights, relied upon Zap v. United States (1946) 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477, for the principle that “ ‘[a] search to which an individual consent [sic] meets Fourth Amendment requirements' ” and an advance waiver of such requirements may be valid.  (People v. Mason, supra, 5 Cal.3d at p. 765, 97 Cal.Rptr. 302, 488 P.2d 630.)  Zap involved a government contractor who agreed to a contract provision that “ ‘The accounts and records of the contractor shall be open at all times to the Government and its representatives, ․’ ”  (Zap v. United States, supra, at p. 627, 66 S.Ct. at p. 1278.)   Certain evidence was uncovered during a subsequent government audit conducted in the contractor's absence, which evidence led to his conviction for fraud.   Noting the Zap holding that the contractor had voluntarily given advance waiver of his Fourth Amendment protection “in order to obtain the Government's business,” Mason concluded:  “Similarly, in the instant case, when defendant in order to obtain probation specifically agreed to permit at any time a warrantless search of his person, car and house, he voluntarily waived whatever claim of privacy he might otherwise have had.”   (People v. Mason, supra, at p. 766, 97 S.Ct. 302, 488 P.2d 630.)

Accordingly, it is manifest that Mason, supra, is founded upon the rationale that a probationer may constitutionally give a voluntary advance waiver of Fourth Amendment protections he might otherwise expect with regard to police searches in consideration for obtaining probation.2

In People v. Icenogle (1977) 71 Cal.App.3d 576, 139 Cal.Rptr. 637, this court reasoned that the circumstances of a parolee were sufficiently identical to those of a probationer in the context of police reliance on a search condition to extend the Mason rationale to parolees.  (See Pen.Code, § 3053.)   In Icenogle we observed the general language of Mason, quoted infra, referring to parolees as exemplary of persons released from prison who have a “ ‘reduced expectation of privacy.’ ”   (People v. Icenogle, supra, 71 Cal.App.3d at pp. 584–585, 139 Cal.Rptr. 637.)   This language, of course, rested upon the fundamental rationale of Mason :  a voluntary advance waiver of some constitutional protections as consideration for obtaining the relative freedom of probation.   When decided, Icenogle correctly determined that the Indeterminate Sentence Law, under which that parolee was sentenced and paroled, did not entitle a parolee to release on parole after service of any particular term of commitment.   Rather, parole was an alternative to service of the entire indeterminate term.  (See former Pen.Code, §§ 1168, 3020.)   Accordingly, under that statutory scheme, a prisoner's consent to submit to warrantless searches by parole or police officers could in some real sense be characterized as voluntarily given in fair exchange for the freedom of release on parole.  (See also People v. Knox (1979) 95 Cal.App.3d 420, 157 Cal.Rptr. 238.)

This rationale is undermined by the advent of the Determinate Sentence Law in California.   Petitioner herein was released on parole under the determinate sentencing law which provides that prisoners are entitled to release from prison confinement upon completion of their determinate term of commitment.   The Department of Corrections has no statutory authority to refuse parole at that time and the prisoner has no option to refuse parole and demand immediate discharge or to serve his term of parole in prison.  (Pen.Code, §§ 1170, 1170.2, 3041.)   Thus, the bargaining aspect of consenting to abridgement of Fourth Amendment rights in consideration for early release on parole no longer exists.   It must therefore be concluded that neither the custodia legis doctrine nor the rationale of voluntary bargained-for waiver derived from Mason, supra, justifies the warrantless searches in the underlying actions before us.

It should be noted, however, that the Mason rationale remains valid as to probationers.   Further, this decision does not question the doctrine of custodia legis, and does not diminish or affect the administration of parole or the cooperation which should exist between police officers suspecting a parolee of present criminal activity and the parole officer who has an interest and responsibility to monitor parolees under his supervision.

The People advance the conclusionary argument that the subject parole search condition should be viewed as an additional punitive aspect of the determinate sentencing law and thus not unconstitutional unless it constitutes cruel and unusual punishment.   This contention has no merit.   It ignores the reality that there is no legislative statement specifying that the period of parole is intended as an aspect of punishment which includes volunteer police searches of parolees.   To the contrary, while the terms of confinement provided by determinate sentencing law are intended as punitive (Pen.Code, § 1170, subd. (a)(1)), the purposes of parole are stated in Penal Code section 3000 as follows:  “The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship.   It is in the interest of public safety for the state to provide for the supervision of and surveillance of parolees and to provide educational, vocational, family and personal counseling necessary to assist parolees in the transition between imprisonment and discharge.”   Unless and until the Legislature indicates otherwise, parole is intended as a transitionary rather than a punitive process.

In the interim, it is no great burden upon investigative police officers to contact and obtain the cooperation of a parole officer should they wish to take advantage of the laxer search requirements attendant to the suspect's parole status.   In other circumstances, the police have the clear alternative of waiting to obtain probable cause or, when required, a search warrant to conduct their law enforcement operations.

Let a peremptory writ of mandate issue directing the Santa Barbara Superior Court Appellate Department to vacate its judgments of January 27, 1982, in case numbers 136492 and 136493, entitled People v. Manuel Gomez, and to enter new judgments affirming the trial court order granting defendant's motion to suppress in Santa Barbara/Goleta Municipal Court case number 192749 and reversing the trial court order denying defendant's motion to suppress in Santa Barbara/Goleta Municipal Court case number 192271.   Trial in these municipal court cases shall remain stayed pursuant to this court's prior order until 60 days from the filing of this opinion or until compliance by the municipal court.


1.   At the February 4, 1981 hearing, the trial court inappropriately conducted in camera proceedings under Evidence Code section 1042, subdivision (d), outside the presence of petitioner and his counsel, to determine the reliability of the confidential informant.   Such in camera proceedings, which may upon the People's request exclude the defendant and his counsel, are proper only when the identity of the confidential informant is demanded by a defendant on the “ground the informant is a material witness on the issue of guilt.”   The identity of the informant in the present action was not demanded upon this ground.   Accordingly, the proper procedure in the underlying action was a hearing in open court under subdivision (c) of section 1042.   The in camera proceedings were reported but not transcribed and, accordingly, were not a part of the record on appeal in the appellate department.   There is no testimony in the record to establish that the information was personally related to the officer by the informant or that the informant related any other facts sufficient to allow a reasonable suspicion that petitioner would be “using” or “under the influence” of heroin two weeks after the tip was given, as required by People v. Madden (1970) 2 Cal.3d 1017, 1021–1024, 88 Cal.Rptr. 171, 471 P.2d 971.   Further, the officer who initially obtained the tip did not testify.

2.   In the earlier case of In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, the Supreme Court had held invalid a warrantless search by police officers which was solely part of a law enforcement investigation and wholly independent of the parole officer.   There police searched a parolee's house after he was arrested outside in his car for possession of heroin.   The search was without warrant and was otherwise unlawful.   The police officers were acting solely to investigate suspected present criminal activity and did not even know of the parole status of the defendant as subject to a search condition.   Preliminary to reaching other issues, the Martinez court held:  “Under these circumstances the [police] officers cannot undertake a search without probable cause and then later seek to justify their actions by relying on the defendant's parole status, a status of which they were unaware at the time of their search.”  (Id., at p. 646, 83 Cal.Rptr. 382, 463 P.2d 734.)   The court was careful to point out that it did not address the different issue of “a search of a parolee initiated by a parole agent in connection with duties of parole administration.”  (Id., at p. 647, 83 Cal.Rptr. 382, 463 P.2d 734.)In People v. Myers (1972) 6 Cal.3d 811, 818–819, 100 Cal.Rptr. 612, 494 P.2d 684, the Supreme Court stated that the status of a narcotics rehabilitation program outpatient did not in itself allow warrantless police searches otherwise violative of the patient's Fourth Amendment rights but that such a waiver of Fourth Amendment protection could be valid if the patient expressly did so in order to achieve outpatient status.

WOODS, Presiding Justice.

KINGSLEY and McCLOSKY, JJ., concur. Hearing denied;  KAUS, J., dissenting.