People v. Palmquist

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 [ 50 L.Ed.2d 299 , 97 S.Ct. 335 ]. 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 [ 31 L.Ed.2d 478 , 92 S.Ct. 1289 ], 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

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; 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 , 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.

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 , and People v. Icenogle, supra, 71 Cal.App.3d 576 . In Mason, the defendant’s vehicle, identified by its license plate, was seen leaving the scene of a burglary. The police traced the car to the defendant, learned that he was on probation with a search condition and proceeded to conduct a search of his residence. In Icenogle, police officers obtained information from a confidential informant that defendant’s live-in boyfriend, a parolee subject to a search condition, jvas dealing in heroin. Other police officers received similar information and thereafter the officers began a surveillance of the premises. They observed defendant and her boyfriend for over four hours and saw them drive to various locations, park, get out and have conversations with drivers and occupants of other vehicles. The officers then searched defendant’s house. The searches in both Mason and Icenogle were found valid.

It is true as appellant Palmquist contends that the officers were not percipient witnesses to the illicit activity described by the unnamed informant^[5] nor did they receive corroboration of the informant’s tip

The evidence adduced at the preliminary hearing indicates that the informant told Officer Jones that appellant lived at the 2021 First Street address with Bridget Barjkovich, and that Officer Jones knew from a case in which he had previously been involved that appellant had lived with Ms. Barjkovich two years prior. It was also shown that the officers had made two telephone calls to the residence and at least found that a “Phil” answered the phonp and that a “Phil” possibly resided there. Then, just prior to their entry, an officer in the search party observed a person he believed to be appellant looking out the window.

It is settled that where probation officers or law enforcement officials are justified in conducting a warrantless search of a probationer’s residence, they may search a residence reasonably believed to be the probationer’s. (People v. Kanos (1971) 14 Cal.App.3d 642 [ 92 Cal.Rptr. 614 ]; cf. People v. Ott (1978) 84 Cal.App.3d 118 , 126 [ 148 Cal. Rptr. 479 ].) Appellant cites People v. Icenogle, supra, 71 Cal.App.3d 585 , and People v. Mason, supra, 5 Cal.3d 759 , as cases where the officers had ample reason to believe that the defendant lived in the residence searched, contrasting them with the situation here which he claims lacks the same detailed information establishing his residence at the time of the search.^[6] We agree that in both Icenogle and Mason the officers had definitive information as to the residence of the defendant. However, the question of whether police officers reasonably believe an

In his reply brief appellant raises for the first time^[7] the argument that the judgment should be reversed because “there was at best a 50 percent chance the jacket and refrigerator belonged to Appellant,” citing People v. Montoya (1981) 114 Cal.App.3d 556 [ 170 Cal.Rptr. 624 ], decided subsequent to the filing of appellant’s opening brief. The gravamen of appellant’s contention is that since there was no positive indication that the refrigerator and ski parka, in which the contraband was found, belonged to him, the officers needed a search warrant or consent to search them. In Montoya, the court held that the state parole agent was under a duty to inquire as to who owned the pair of cutoff jeans prior to searching them since he believed that it was equally as likely that they belonged to defendant, a nonparolee, as it was that they belonged to a second guest known to the agent also to be a parolee with a search condition. As there existed only a 50 percent chance that the jeans were lawfully subject to the search condition, the search was undertaken without probable cause and in violation of defendant’s reasonable expectation of privacy. The court rejected the People’s argument that the search was permissible because there was no positive indication or basis for reasonably believing that the pants probably did not belong to the parolee (i.e., a consent search remains reasonable if there is at least a 50 percent chance that the item belongs to a person subject to a search condition.) For two reasons we find Montoya’s reasoning less than persuasive. First, the court apparently ignores statements in

Appellant next contends that the officers could not rely on the probation order in their possession to conduct the search because it did not contain the correct dates of his actual probation term, and it was not signed by any judge.^[8] He analogizes to Bowyer v. Superior Court (1974) 37 Cal.App.3d 151 [ 111 Cal.Rptr. 628 , 112 Cal.Rptr. 266 ], which proscribed the use of telephonic search warrants and argues that the search here was invalid. The argument is frivolous. We are aware of no rule which requires that the searching officers must have a certified copy of a probation order, and in practice it is not uncommon that peace officers conduct probation searches on the basis of oral representations by the probation officer. We are thus guided by the general test of reasonableness in determining the legality of the search which requires us to look to all of the circumstances known to the officers prior to implementing the search. (People v. Gallegos (1964) 62 Cal.2d 176 [ 41 Cal.Rptr. 590 , 397 P.2d 174 ].) In the present case the officers obtained a copy of appellant’s probation conditions from appellant’s probation officer which revealed that Palmquist was required to submit himself and his residence to warrantless searches. The officers subsequently undertook a search pursuant to the search condition. In our view, the searching officers reasonably and in good faith relied on the probation order given to them by the probation officer, and the search should not be invalidated simply because the copy of the order the officers received was technically deficient. (Cf. People v. Spratt (1980) 104 Cal.App.3d 562 [ 164 Cal.Rptr. 78 ] (search upheld even though police officers conducted search pursuant to minute order showing defendant to be on probation until a certain date when, in fact, defendant’s probation had been revoked and defendant was on parole at the time with a similar search condition of which the officers had no knowledge).)

Respondent points out that the trial court lacked jurisdiction to entertain the renewed motion to suppress in which this argument was first advanced because Ramey was not new law at the time and Payton merely adopted the reasoning of Ramey. (See Pen. Code, § 1538.5, subd. (h); People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605 , 611 [ 94 Cal.Rptr. 250 , 483 P.2d 1202 ].) As such there can be no appellate review of this issue. We agree and note that the argument lacks substantive merit as well.

It is true that warrantless arrests in the home are constitutionally impermissible where exigent circumstances do not exist to justify the arrest. However, it is equally clear that consent to enter also renders such entries reasonable. (People v. Escudero (1979) 23 Cal.3d 800 [ 153 Cal.Rptr. 825 , 592 P.2d 312 ]; Ramey, supra, at pp. 275-276; People v. Newton (1980) 107 Cal.App.3d 568 , 577 [ 166 Cal.Rptr. 60 ].) Here appellant expressly consented to warrantless searches of his residence as a condition of probation. Such consent constituted a voluntary waiver of whatever claim of privacy under the Fourth Amendment appellant might otherwise have had, and his refusal to answer the door did not vitiate that advance consent. (People v. Mason, supra, 5 Cal.3d 759 , 763, 766.) No Ramey violation can occur on this state of facts. “[I]t is the intrusion into, rather than the arrest in, the dwelling which offends constitutional standards under Ramey.” (People v. Evans (1980) 108 Cal.App.3d 193 , 196 [ 166 Cal.Rptr. 315 ]; see People v. McCarter (1981) 117 Cal.App.3d 894 , 908 [ 173 Cal.Rptr. 188 ].) Since the officers had authorization to enter the home to search, the arrest inside was of no constitutional significance.^[9] (Ibid.)