Opinion
Review Granted May 16, 1985.
Opinions on pages 1127-1306 omitted.
Garey & Bonner and Michael Ian Garey, Newport Beach, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Harley [211 Cal.Rptr. 440] D. Mayfield, Asst. Atty. Gen., Jay M. Bloom and Lilia E. Garcia, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
WALLIN, Associate Justice.
Robert Terry Bravo appeals the denial of his motion to suppress evidence (Pen.Code, § 1538.5) after pleading guilty to possessing cocaine for sale (Health & Saf.Code, § 11351) and being an ex-felon in possession of a firearm (Pen.Code § 12021). The question presented is whether the search of his residence was lawfully conducted pursuant to a "search and seizure" condition of a probation grant. We hold the probation condition in this case did not authorize the search at issue since Bravo retained some Fourth Amendment protection from unreasonable searches.
I
Bravo came to the attention of the Anaheim Police Department in February of 1982 after an anonymous caller reported he suspected narcotics were being sold out of a neighbor's house. Since Bravo had only recently moved in, the informant did not know who lived at the house; but he did not think his new neighbor was employed. Although the informant "felt" narcotics sales were involved, his suspicions were apparently based entirely on the heavy traffic of people and cars in and around Bravo's house.
Officer Manley investigated the anonymous tip. A utilities check on the residence identified Bravo as the person paying the bills. Manley learned Bravo was on probation for a narcotics offense which included a "search and seizure" condition and Manley requested a copy of the probation order. In an effort to corroborate the report of heavy foot and vehicle traffic, Manley conducted a surveillance of Bravo's residence. The results of that surveillance contradicted the anonymous information; Manley observed no unusual traffic during the five to seven times he was staked out at Bravo's house. Even though Manley was now suspicious of the tipster's reliability, he decided to go ahead and search pursuant to the probation condition. Manley received a copy of the probation order on March 19, 1982 and conducted a search of Bravo's home four days later. Cocaine, cash and three guns seized in that search led to this prosecution.
II
People v. Mason (1971) 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545, validated generally probation conditions requiring the probationer to submit his person or property to search and seizure with or without a warrant. Acknowledging the court's broad discretion to impose probation conditions designed "to foster rehabilitation and to protect public safety" (id., at p. 764, 97 Cal.Rptr. 302, 488 P.2d 630, quoting from In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727), the Mason court held a defendant may waive traditional Fourth Amendment rights in exchange for release on probation. (Id., at pp. 765-766, 97 Cal.Rptr. 302, 488 P.2d 630.) At the same time, the Mason court specifically disclaimed any suggestion "that one who has accepted such a condition to the grant of probation is thereafter barred from objecting to the unreasonable manner in which that condition is carried out by police officers." (Id., fn. 3 at p. 765, 97 Cal.Rptr. 302, 488 P.2d 630.) Having found the search "was reasonable and proper," the court held Mason's motion to suppress evidence should have been denied.
Innumerable cases since Mason debate its import. Some suggest the waiver leaves a probationer with no protection whatsoever under the Fourth Amendment. (People v. Turner (1976) 54 Cal.App.3d 500, 507, 126 Cal.Rptr. 652.) Most insist one retains some Fourth Amendment protection, requiring some cause to "trigger" a probationer's advanced consent to search. (People v. Guerrero (1978) 85 Cal.App.3d 572, 581, 149 Cal.Rptr. 555; People v. Bremmer [211 Cal.Rptr. 441](1973) 30 Cal.App.3d 1058, 1064, 106 Cal.Rptr. 797.) The case at bar cannot reconcile this debate since our interpretation of Bravo's specific probation condition leads to the conclusion there was no waiver of all protection from unreasonable searches. The condition in question was an agreement to submit to a search with or without a warrant. We do not reach the question of the validity of a condition which extracts advanced consent to a search with or without reasonable cause.
III
Bravo's probation required he "submit his person and property to search or seizure at any time of the day or night by any law enforcement officer with or without a warrant." He has not challenged the voluntariness of his agreement to this condition. Nor does he complain the condition is unreasonable. Following the lead of Mason, we must decide what Bravo agreed to when he accepted this term of probation.
We begin by iterating the fundamental nature of Fourth Amendment protection, the right to be secure from unreasonable searches and seizures. (See United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538.) A warrantless search is unreasonable per se unless the circumstances fall into one of the narrowly drawn exceptions to the warrant requirement. (Mincey v. Arizona (1978) 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290.) The People suggest Bravo gave his consent to the search at issue by agreeing to submit his property to search with or without a warrant in exchange for his release on probation.
Constitutional rights may be waived as a condition to gaining some other advantage, but the waiver must be knowing and intelligent. (Johnson v. Zerbst (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.) By the same token, a waiver of fundamental constitutional rights will not be presumed or implied. (Ibid.) Thus, in People v. Myers (1972) 6 Cal.3d 811, 100 Cal.Rptr. 612, 494 P.2d 684 the defendant's status as an outpatient of the narcotic addict commitment program did not imply a waiver of his Fourth Amendment right to be free from unreasonable searches and seizures. While Mason holds a probationer may expressly waive his Fourth Amendment rights, we must strictly construe any such waiver.
Bravo's probation condition does not expressly waive his right to be free from unreasonable searches and seizures. Other reported cases deal with probation conditions requiring submission to search "with or without reasonable cause" (see, e.g., People v. Palmquist (1981) 123 Cal.App.3d 1, 6, 176 Cal.Rptr. 173), or "with or without probable cause" (see, e.g., Freytes v. Superior Court (1976) 60 Cal.App.3d 958, 960, 132 Cal.Rptr. 26). Other probation conditions subject the person to search "upon reasonable cause." (See, e.g., People v. Kasinger (1976) 57 Cal.App.3d 975, 977, 129 Cal.Rptr. 483; People v. Constancio (1974) 42 Cal.App.3d 533, 538, 116 Cal.Rptr. 910.) Since Bravo's probation condition makes no reference to whether reasonable or probable cause is required, we will not imply that a search relying on that order is justified irrespective of cause. (See People v. Guerrero, supra, 85 Cal.App.3d 572, 149 Cal.Rptr. 555; People v. Bremmer, supra 30 Cal.App.3d 1058, 106 Cal.Rptr. 797.) This is not interpretation of an arm's length contract; we are dealing with the waiver of a fundamental constitutional right.
Our narrow interpretation of Bravo's probation search condition is consistent with other authorities interpreting "advanced consent" conditions generally. For example, in Mason, supra, the probation condition required notice be given to Mason when law enforcement officers sought to search, since the words "whenever requested" accompanied the search and seizure condition. The court stated a search without notice would be invalid because of that language. The search was illegal in People v. Superior Court (Stevens) (1974) 12 Cal.3d 858, 117 Cal.Rptr. 433, 528 P.2d 41, because Stevens was not given notice. Stevens [211 Cal.Rptr. 442] was subject to a search and seizure condition imposed upon release as an outpatient from the narcotics commitment program which required he submit "upon request." Nevertheless, notice is not required when not included in the search and seizure condition. (People v. Lilienthal (1978) 22 Cal.3d 891, 899-900, 150 Cal.Rptr. 910, 587 P.2d 706.) While the Lilienthal court refused to imply a notice requirement, that is not inconsistent with our refusal to imply Bravo must submit "with or without reasonable cause." Notice is not part and parcel of one's Fourth Amendment protections; freedom from unreasonable searches is. We cannot say Bravo expressly waived that freedom when he agreed to probation under the condition at issue.
IV
Having determined Bravo retained some freedom from unreasonable searches, was the search at issue "unreasonable"? We acknowledge Bravo's Fourth Amendment rights are reduced because of the probation condition whereby he agreed to submit to search or seizure with or without a warrant. But the retention of his right to be free from unreasonable searches does not equate itself with the necessity of probable cause. In interpreting a probation condition which required submission to search upon "reasonable cause," one court construed the phrase "as meaning circumstances indicating that in the interests of effective probation supervision a search is advisable." (People v. Kasinger, supra, 57 Cal.App.3d at p. 978, 129 Cal.Rptr. 483.) Relying on Kasinger and People v. Garcia (1975) 44 Cal.App.3d 1029, 1032, 119 Cal.Rptr. 128, the court in People v. Guerrero, supra, 85 Cal.App.3d at p. 582, 149 Cal.Rptr. 555 stated: "It thus appears that a consent-to-search clause, to be a valid condition of probation or parole, must bear a reasonable relationship to the crime committed and the protection of the public; such a clause is strictly construed; there must be a reasonable cause which may be less than the grounds for an arrest or search warrant to 'trigger' the search; and such a search may not be for purposes of harassment or merely because the subject happens to be a probationer or parolee, but must be based on a reasonable suspicion of criminal activity." (Accord United States v. Johnson (9th Cir.1983) 722 F.2d 525, 527; People v. Bremmer, supra, 30 Cal.App.3d 1058, 1064, 106 Cal.Rptr. 797.) Both Guerrero and Bremmer involved search conditions similar to Bravo's condition to the extent there was no requirement he submit to a search "with or without reasonable cause." Reasonable cause did exist in Guerrero's case because specific information linking him to a robbery had been corroborated. While some may suggest anonymous information alone does not require corroboration before conducting a "reasonable" search in reliance on a probation condition, Bravo's situation is unique. Manley's decision to search was based on the probation condition and information from an anonymous, untested informant in spite of the results of his subsequent investigation which contradicted the anonymous information. We find the search unreasonable in these circumstances.
Simply stated, Bravo did not expressly consent to this type of unreasonable search when he accepted probation. Bravo's motion to suppress evidence should have been granted in light of the People's failure to offer any other justification for the warrantless entry into his home.
The judgment is reversed.
TROTTER, P.J., concurs.
SONENSHINE, Associate Justice.
I respectfully dissent. The majority states "Bravo did not expressly consent to this type of unreasonable search when he accepted probation." (See maj. opn., p. 442.) This, they maintain, is so because he agreed to submit to a search "with or without a warrant" (maj. opn., p. 441) but did "not expressly waive his right to be free from unreasonable searches and seizures." (Maj. opn., p. 441, emphasis added.) In other words, they hold defendant [211 Cal.Rptr. 443] must expressly waive both the necessity of a warrant and reasonable cause to search. I disagree and would affirm the judgment.
Simply stated, the issue is what does a defendant give up when he accepts as a term of probation a search and seizure waiver? The majority opinion is premised on the concept "reasonable cause" to search is a Fourth Amendment right and therefore, unless expressly waived, continues to exist. I maintain "reasonable cause" is a judicial creation with no appropriate application in the present context. In any event, a waiver of traditional Fourth Amendment rights by definition waives reasonable cause. An express waiver would only be redundant.
The Fourth Amendment to the federal constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Fourth Amendment rights include (1) security from unreasonable searches and seizures, and (2) the guarantee that warrants shall not issue without probable cause. When one submits to "search or seizure at any time," one gives up the right to complain about reasonable cause to search. As did the defendant in People v. Mason (1971) 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545, Bravo, by accepting the "privilege of probation as condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection." (Id., at p. 765, 97 Cal.Rptr. 302, 488 P.2d 630.)
Justice Peters recognized, in his dissenting opinion in Mason, acceptance of this probation condition equates to a "total denial of Fourth Amendment rights." (Id., at p. 768, 97 Cal.Rptr. 302, 488 P.2d 630.) One commentator, while most disapproving of the result, acknowledges Mason holds this condition is an express waiver of all Fourth Amendment rights. In fact, he cites Mason as "leaving the parolee or probationer with virtually no assurance of privacy at all." (3 LaFave, Search and Seizure (1978) § 10.10, p. 428.) Mason explicitly holds the defendant "voluntarily waived whatever claim of privacy he might otherwise have had."
My colleagues confuse reasonable cause to search with the reasonableness of the search. Mason underscores this distinction by recognizing a defendant who has waived traditional Fourth Amendment rights is not "thereafter barred from objecting to the unreasonable manner in which that condition is carried out by police officers." (People v. Mason, supra, 5 Cal.3d 759, 765, fn. 3, 97 Cal.Rptr. 302, 488 P.2d 630, emphasis added.) Taken in context the Mason court was referring to probation conditions which are used to harass. As Mason and People v. Pipitone (1984) 152 Cal.App.3d 1112, 201 Cal.Rptr. 18 point out, a probation condition improperly enforced can result in a modification of the order or a suppression of the fruits of a bad faith search. The recognition of these remedies for the unreasonable manner in which a search is conducted is not the same as concluding there must be reasonable cause to search.
By waiving his Fourth Amendment right to be free from unreasonable searches and seizures, Bravo has not waived his due process rights to be free from searches which are conducted unreasonably. By confusing reasonable cause with the unreasonableness of the search, the majority attempts to rewrite the Fourth Amendment. But the rights under the amendment are finite. One has a right to be free from unreasonable searches and seizures. There is no right to both reasonable cause to search and seize and another right to be free from unreasonable searches and seizures. It is one right; not two. "The Fourth Amendment proscribes all unreasonable searches and seizures...." (Mincey [211 Cal.Rptr. 444] v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290.)
Moreover, the majority's concern that Bravo's waiver was not knowing and intelligent is unfounded. However, this analysis is not even necessary as "[a]lmost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial." (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 237, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854.) But "[t]here is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes behind requiring a 'knowing' and 'intelligent' waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures." (Id., at p. 241, 93 S.Ct. at p. 2055.)
Nor am I impressed with previous attempts to interpret Mason as requiring a specific waiver of reasonable cause. In People v. Palmquist (1981) 123 Cal.App.3d 1, 176 Cal.Rptr. 173, the police searched the home of a known probationer who was subject to a search waiver. Cause was predicated upon information supplied by an untested confidential informant. The court affirmed the conviction finding the police were possessed with a reasonable suspicion Palmquist was involved in criminal activity. The court did not address whether in the abstract reasonable suspicion was required. The decision distinguished People v. Guerrero (1978) 85 Cal.App.3d 572, 149 Cal.Rptr. 555 as dealing with a probation order conditioned on reasonableness and failed to consider People v. Bremmer (1973) 30 Cal.App.3d 1058, 106 Cal.Rptr. 797.
People v. Guerrero, supra, 85 Cal.App.3d 572, 149 Cal.Rptr. 555 specifically held police probation searches are limited by "[t]he rule [ ] that there must be some conduct reasonably suggestive of criminal activity to 'trigger' the search." (Id., at p. 581, 149 Cal.Rptr. 555.) However, Guerrero reached its conclusion by relying upon People v. Icenogle (1977) 71 Cal.App.3d 576, 139 Cal.Rptr. 637 and People v. Garcia (1975) 44 Cal.App.3d 1029, 119 Cal.Rptr. 128 which blurred what has traditionally been a distinction between probation and parole searches and did not require reasonable suspicion. In Icenogle a police search of a parolee was found to be valid based upon the officer's reasonable suspicion of criminal activity. In Garcia a search was found to be proper where police did not act arbitrarily, capriciously or to harass; words which do not equate to reasonable suspicion. Neither Icenogle nor Garcia support Guerrero's conclusion reasonable suspicion is required for a probation search.
Finally in People v. Bremmer, supra, 30 Cal.App.3d 1058, 106 Cal.Rptr. 797 the court found an automobile search improper where the defendant was stopped for a traffic violation and her car searched based solely upon a probationary search condition. The court held probation searches must be restricted by reasonableness as to time, manner and execution. Since the officer had no cause, the search was unlawful. Apart from the fact the court did not address what standard should control probation searches, the purposes underlying probation search conditions were never considered.
The majority opinion defeats one of two goals of the waiver. The purposes of a probation condition which authorizes warrantless police searches are "to deter further offenses by the probationer and to ascertain whether he is complying with the terms of his probation. 'With knowledge he may be subject to a search by law enforcement officers at any time, he will be less inclined to have narcotics or dangerous drugs in his possession. The purpose of an unexpected, unprovoked search of defendant is to ascertain whether he is complying with the terms of probation; to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances [211 Cal.Rptr. 445] would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.' (People v. Kern [1968] 264 Cal.App.2d 962, 965 [71 Cal.Rptr. 105].)" (People v. Mason, supra, 5 Cal.3d 759, 763-764, 97 Cal.Rptr. 302, 488 P.2d 630, emphasis added; see also annot. 79 A.L.R. 1083.)
Probationers, by consenting to clear and unconditional conditions such as Bravo's, are on notice their behavior is being monitored. They have, as a condition precedent to receiving the court's leniency, agreed in advance to waive their Fourth Amendment rights. To condition warrantless probation searches upon reasonable cause would make the probation order superfluous and vitiate its purpose. (See also People v. Lilienthal (1978) 22 Cal.3d 891, 150 Cal.Rptr. 910, 587 P.2d 706.)