People v. Bremmer

HERNDON, J.

I dissent from the majority’s holding that the search of a previously convicted dealer in dangerous drugs conducted by the police officer in this case was unauthorized and unreasonable. In my opinion, it is a plain and demonstrable fact that the majority opinion is in direct conflict with the recent and controlling decision of the Supreme Court in People v. Mason, 5 Cal.3d 759, 766 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ].

The truth that the majority opinion contradicts and refuses to follow the law as declared in People v. Mason, supra, is made manifest by the fact that in all substantial respects it appears to be nothing more than a paraphrased version of the dissenting opinion in Mason authored by Justice Peters. Five justices of the California Supreme Court rejected the views expressed in that dissent.

By way of example, the two dissenters in Mason , like the majority here, would permit searches of probationers in such cases as this only (1) by probation officers (cf. Mason dissent at pp. 768-769); or (2) by law enforcement officers with probable cause to arrest (cf. Mason dissent at p. 769).

*1068 In view of the great deference which the majority here pay to the dissenting opinion in Mason , it strikes me as remarkable that the vigorous language of the dissent concerning the intent and effect of the prevailing opinion is so completely ignored. Justice Peters indicated his interpretation of the prevailing opinion and his sharp disagreement with its holdings with such expressions as the following: “I cannot believe that such a total denial of Fourth Amendment rights is necessary or even desirable. . . .” (P. 768.) “I can see no justification, however, in subjecting the probationer to any search by any law enforcement officer at any time.” (P. 769.) “The majority appear to assert that prior consent to search by any law enforcement officer is necessary to the discovery of future offenses. ... I can see no justification for extending the waiver of all Fourth Amendment rights to all law enforcement officers.” (P. 769.) “It is simply not necessary in any way to effective law enforcement, much less to effective probation supervision, that all law enforcement officers- be given the right to search probationers or parolees at any time for any reason.” (P. 769.) (Italics added in part.)

In light of the foregoing statements concerning the effect of the prevailing opinion in Mason as interpreted by the dissenters, I am wholly at a loss to understand how it can be said that the law as now stated by the majority in the case at bench—adopting as completely as it does the reasoning and the conclusions of the Mason dissent—is consistent with the law as stated in the prevailing and controlling opinion of the Supreme Court.

I submit that no amount of sophistical argument can so effectively obscure the plain import of the decision as to raise the slightest doubt that it sustains the legality of the officer’s search in this case and the correctness of the decisions of the magistrate and the trial judge whose statements indicate that they had studied the Mason decision and correctly understood its meaning.

I proceed upon the assumption that when five members of the Supreme Court of California signed the decision containing the following statement of the purpose and effect of the “consent to search” provision of the probation order here involved, they were well aware of the import of their language: “[T]he acknowledged purposes of such a provision [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 *1069 complying with the terms of probation; to determine not only whether he disobeys the law, but also whether he obeys the law. . . .’ ” (Italics added.) (People v. Mason, supra, 5 Cal.3d at p. 763 .)

Certainly the majority opinion in Mason needs no support in the form of any concurrence. However, I am unable to resist the impulse to express my view that it is an exceedingly clear and well written opinion, fully supported by the authorities upon which it relies, entirely consistent with every dictate of reason and common sense, and well designed to protect and promote extremely vital interests of society.

Appellant in this case has been twice blessed in having both her cases tried by judges who were so- lenient as to grant her probation despite the seriousness of her offenses—especially in this, the second case, in which the report of the probation officer discloses her very bad record and her unqualified admissions of guilt in both cases. The probation report discloses that in addition to her two narcotic offenses, she pled guilty in January of 1969 to a charge of “hit and run” in violation of Vehicle Code section 20002, subdivision (a), and in July of 1969 she was again convicted of a hit and run offense involving property damage. Obviously the justice of a substantial prison term would have been unassailable.

Officer Tracy evidently was an alert and well-informed police officer. It was after dark when he observed the appellant’s car being driven at an excessive speed with only one headlight. It is conceded that the officer acted in strict conformity with his duty when he stopped and detained appellant and ran the warrant check.

When he was informed that appellant had been previously arrested and convicted of selling dangerous drugs and had been granted probation on the condition that she give her consent to- being searched, Officer Tracy indicated his understanding of the law and his care in applying it when he asked appellant if she were “still open to search and seizure.”

Appellant’s affirmative answer to the officer’s question was not only a reaffirmation of her consent to being searched, but it was also a clear indication that she herself entertained no such expectation of privacy as that with which the majority opinion would now so generously endow her. Appellant’s conduct in submitting herself and her purse to search without protest is still further evidence of her consent and of her own common sense recognition that she was entitled to no such reasonable expectation of privacy as would give her immunity from search.

The law of the Mason decision sustaining the validity and effectiveness of the consent to search provision of an order granting probation applies *1070 a fortiori to the case at bench. In Mason , the probation was granted to a defendant who had been convicted of possession of marijuana. In the case at bench, appellant was granted probation after her conviction of the more serious crime of selling dangerous drugs.

The majority opinion indulges in pages of sophistic argument in which various structures of straw are demolished and, with all the flourish of new discovery, it undertakes to fortify such unchallenged truisms as the proposition that “unrestricted search at the whim and caprice” of police officers is impermissible and that “reasonableness under the Fourth Amendment requires that the search of a probationer pursuant to general search order would be related to the legitimate objectives the probation is designed to accomplish.”

Certainly I would not undertake to improve upon the language of Justice Burke above quoted which so clearly explains the “acknowledged purposes” of such a “consent to search” provision and which unqualifiedly declares the reasonableness of its employment without reference to the coexistence of other grounds of probable cause. I submit that it is self-evident that Officer Tracy did not act upon “whim or caprice” and that his search was directly related to the accomplishment of the objectives of probation as stated in Mason at page 763 above quoted.

A striking example of fallacy in the majority opinion appears in its assertion that “Mason enlightens us on the scope of a justifiable search but not on the justification for the search itself.” This false dichotomy of the issues indicates careless reading of a decision which provides us with a great deal of “enlightenment” on the “justification” for a search of a probationer made pursuant to the “consent” provision of an order granting probation.

The Mason court could have reasoned that the evident existence of probable cause in that case justified the search and that the search could then be expanded in scope due to the probation condition, but it did not employ that process of reasoning. What the Mason court did say was that a warrantless search could be justified as incident to a valid arrest but that such a search was also justified by the individual’s waiver of Fourth Amendment rights by way of an effective consent.

It is noteworthy that in People v. Myers, 6 Cal.3d 811 [ 100 Cal.Rptr. 612 , 494 P.2d 684 ], the Supreme Court twice restates the teaching of Mason in terns of waiver. At page 819 of the Myers opinion, Mason is cited in support of the statement that “A proper waiver may consist of the knowing consent to Fourth Amendment infringements as a condition to *1071 achieving a status otherwise affording greater personal freedoms.” Tire same truth is made apparent by the parallel drawn in Mason by its reference to the waiver upheld in Zap v. United States, 328 U.S. 624 [ 90 L.Ed. 1477 , 66 S.Ct. 1277 ].

After stating the truism with respect to the Fourth Amendment requirement of “reasonableness,” the majority opinion observes that “this abstract formulation gives off little warmth until kindled with the content of specific factual situations.” With this introduction, the opinion sets forth several hypothetical factual situations in which the requisite “reasonable relationship” would exist.

It would unduly extend this dissent if I were to discuss these hypothetical cases at any length but, by way of example, I quote only one of them: “c. A police officer sees a person sitting in a parked car in a warehouse district at midnight, and on investigation he learns by radio that this person is on probation for burglary and subject to a general search order. A warrantless search of the probationer and his vehicle is authorized.”

Having in mind the dangers of deciding hypothetical cases as a form of prophetic prophylaxis to insure against the assumed dangers of police action based upon “whim and caprice,” I would add the following example of permissible police conduct which happens to coincide with the facts of the case presently under review:

“A police officer sees a person driving a vehicle at night with improper lighting at an excessive rate of speed and learns by radio that this person is on probation by reason of his past involvement with dangerous drugs and is subject to a general search order. A warrantless search of the probationer and his vehicle is authorized.”

The majority opinion finally posits the proposition that the test of reasonableness in such cases as this is whether or not the observations of the officer were “sufficient to trigger a peace officer’s suspicion at the time of temporary detention that probationer might be trafficking in dangerous drugs or might otherwise have lapsed into past misconduct.” In applying this test to the case at bench, the majority state that “the facts at that time suggested no more than that probationer had committed two ordinary traffic violations.”

The gross factual inaccuracy of the last quoted statement is obvious. Quite apart from the fact that the majority’s proposed test adds a requirement which contradicts the law of the Mason decision, the facts of the case at bench more than adequately satisfy the majority’s added requirement.

*1072 When an officer observes a person driving an automobile in the nighttime at an excessive rate of speed and with only one headlight burning, and when the officer learns that this reckless driver has recently engaged in traffic in dangerous drugs, I submit that such officer would be grossly remiss in his duty if he failed to follow the procedure followed by Officer Tracy in this case.

The great frequency with which narcotic sellers- are found to be narcotic users and the recidivistic tendencies of such users are matters of common knowledge. Universal also is the knowledge that persons who drive automobiles while under the influence of drugs are prone to drive recklessly and to constitute a deadly menace to the innocent users of our streets and highways. (See People v. O’Neil, 62 Cal.2d 748 , 753 et seq. and fns. 9 and 10 [ 44 Cal.Rptr. 320 , 401 P.2d 928 , 17 A.L.R.3d 806 ].)

To characterize this appellant’s two traffic violations as “ordinary” in a sense connoting triviality is worse than unrealistic;' and to say that there was nothing more than these violations to “trigger” the officer’s suspicion that appellant’s reckless driving might have been related to the influence of narcotics is to ignore one of the most significant of the relevant facts.

In short, I would apply the law as stated in the prevailing opinion in Mason and affirm the judgment.

A petition for a rehearing was denied April 3, 1973, and respondent’s petition for a hearing by the Supreme Court was denied May 3, 1973. Wright, C. J., McComb, J., and Burke, J., were of the opinion that the petition should be granted.