# Answer to Petition for a Writ of Certiorari — Berg v. Schmidt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Answer to Petition for a Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 405 U.S. 978

## Text

Se ARs eee te Shee ue

IN° THE .-

Supreme. Court of the United States

~ October Term, 1971]
No. 71-593

RICHARD Hewry Bera.

. . , Petitioner,
vs.

-- CAtvin P. ScuMipr, as Judge of the Municipal Court
_ of the Orange County Harbor Judigial. District. State,
of Califofnia,

Respondent. /

‘Answer 16 Petition for Writ of Certiorari to the United
, ‘States Court of Appeals tor the Ninth Circuit.

Ceci, Hicks. ——
Diss#ict ‘Attorney, County of
~~ QOvange, State of California.
oe ay MICHAFL R. Capizzi.
Assistant District Attorney.
7 By Oretta D. Seags.
; ‘Deputy District Attorney,
700 Civic Center Drive West.
Santa Ana. Calif. 927701.

Attorneys for Respondent.

“ Parker & Son, Inc. Law Printers.

eM + eye nom-s
e

SUBJECT INDEX

m es ' Page
Statement of the Casé 220.005... Teiasuuidsleweiae: Le
Questions. Presented a
Argument... sichisy ie sassaabeadioteee cate schdpaoe ee

‘ ; E - 4

Probation Is a Privilege. Which a Defendant Has
the Right to Refuse. ‘and. a Condition of Pro-
bation Is Proper so, Long as It Is Reasondble

- and Relevant to the Offense for Which Proba-

RR De CONES csc. tle le 4

Il.

Requiring a’ Defendant to Give Up His Fourth
Amendment Rights in Return for Receiving
the Privilege of Probation Is Not Unconstitu-
Is sractenc tenth... Sasiien diate URLs errs

toe fll. aa est)

Waiver of Immunity From Search and Seizure
Renders the Evidence /altaaantle in Any Pro-
Cop acgee RO eT OTL: SOPENLES AED” VOT ae

TABLE OF AUTHORITIES CITED

aay Cause — ; Page
Bowles v. Cito Candy Co., 55 Fr. Supp. 527 i
Bowles v. Misle. 64- F.Supp: 835 22... Scien: AG
Burns v.. United States. 287 US. 216, 77. jLEd.+-
SET ita dearhcn seca (Se OE RTE ante. Oe eae VO
Chimel ¥. Rere, Foe SIG, TID oS occ ccsienine 1%
Cooper v. ‘United States. (C2.A, Sth) -) F.2d
Bg PEE CN BE EIT ELIE DN i INS LE IOI TED: COED
Escoe v.'Lerbst. 295 US. 490 i
Katz v. United States. 389, U.S. 347. 19 L.Ed. 04
Ne UE MA at hls conagticoniceatndanoarsoeienaiavrsage ‘9
- Miranda v. Arizona. 384 U.S. 436 2002. 14
Peeler, In re. -266. Cal. App.2d 483°... poe aoe

People. v. Allen. 407 All. 596. 96.N. E. 2d 446, cert. ¢
denied 341° U:S. ae 299 L.Ed. 1355. vi SAC.

ee ee ee nL oe
People v. ‘Fitzpe arick, 3 Cal. New. 3d $24, 84 Cal.
Rptr. 78 __. ROOTES ONE RE eee Oe panties oe
People v. Hamilton. 260 Cal. App.2d 103 _.... saan 14
People: v. Heuz, 253 Cal-App.2d 986 00. 140
People v. Kern. 264 Cat.App.2d 962 00 o,. 7
People v. King. 267 Cal.App.2d 814. cert. den: 90 |
$.Ct. 576. 396 U.S. 1028, 24 L.Ed.2d 514 -....... 14
People’ v. Mason, 5 Ca1.3d 759 5. 6. 9543
People v. Osslo. 50 Cal.2d 75. 323 Pi2d 397 a5
Pe Oh, pened cara eens ace “Oe eT
Pegple v. Williams (1966). 247 Cal. App. 2d 394,
Pah ws eer ee "ogy QR bp
‘Toyosaburo Kerematsu v. “United States A U.S.
432, 87 L.Ed. 1497 . x ; 10
_Trueblodd Longknife 7 United States. (C.A. Ha-
1967) 381 F.2d 17° cert. den, 399 U.S:-131. 100°
L.Ed. 1013 Fp A a tens or eS SO 9

Tucke rv. State, 244 Md. 4ss. 224 A, 2d ri, cert.
— denied 386 U.S, 10247 18 L.Ed.2d 463. 87 S.Ct.

$M BE ED es NE ans WO 1:
United States v. Rubicott 35 F.Supp. eT eee 1
Vale v. Louisiana, 399 U.S. 30. 26 ease
- 90 S.Ct., Jp ESR ano OIE innsnateanngabannsns 9
Woreester v..C.LR.2 370 F.2d 7137000... TS 7
~ Zap v/ United States. 328 'U. S. 624, 90 1... ed. ‘1477; 5

sine i i RE ENT Bee a OR COTE AY mm eS

~. Zukowski v, State, 167 ue 549. 175 Al. 505 cae

Statutes | -_.

California Health and Safety Code. Sec. 11530 . a
California Penal Code, See. 1203.10 23.8
California Penal Code. See. baeowe-<.... eee 14:
7 Federal Code Annotated. Title 18. Sec.-724 Dat 10
7 Federai Code Annotated. Title 18; Sec: 725 _.... 10
7 Federal Code Annotated. Title 18, Sec. 727 ie

Jnited States Code Annota ted: Title 18. Sec. 724. . 10
‘United Stutes Code: Annotated. Title .i8. Sec. 725

at bacbemnestdnnenicces <schacreone=s acchenee tose mencce SPORE Woke!) | Lin
United States Code Annotated, Title LS. = wat: Oe
- United States Code. Title 18: Sec. | eae ee
Unitcd States Consiitution. fourth. Asecadiuess ee ;
3 Me ASAP DS cel ~ we thy Oe.
o<.— , »
e i
: °

RICHARD HENRY BERG,

IN THE |

‘Supra Court of the United tales

- _ October Term, 1971.
No. 71-593

Petitioner,
~~. se 2. ‘as :
CaLvin P. ScHMipT, as Judge of the Municipal Court

of the Orange County Harbor Judicial District. State.
of California,

<i spear

3

7 Answer. to Petition for Writ of Certiorari, to. tlie United

States Court of Appeals for the Ninth Circuit.

_, Statement of the Case. pan
On Noventber 24, 1969," in on No. F.3637 in ‘the |

: Municipal Court of the Orange County Harbor Judicial:

District; Petitioner upon a plea of guilty to @ violation ‘

of California Health and - Safety Code Section 11530, .

a Misdémeangr. was: granted | ‘probation on condition:

‘that he “submit to search and- seizure ‘upon request of

4

‘a police officer.” _ 4 .
* On October 23. 1970. officers of the ‘Newport Beach.
— . ae a. : ee :

Police Department, having received informatron that
Petitioner was again dealing with “narkotics. Went to

‘Petitioner s residence and searched ike reliance upon

E 2 |. ; 7 :
= ‘a the condition of probation, On November 17, 1970,
Officer -Epfein of the Neveport Beach Police Depart-

, went returag

i '. Teskdeonce once mare and in reli- ° |
i tye on the

condityen “ol probation sought. and .db- -

—

tained. or % search? in both instances the édarch
Tealett: numerous items J cantraband. tt both=in- *
stamees Potigioner was held to answer and was Chageed*” - °
by infigmation swith several fclonies. ai een

iy ‘both insiinces. The California Superios Court sup. 2
reysed the evidence und dismissed the actions because
tht condition: bof probation Was ipo narrow ‘to. allow
/-. tora search of the stértoncy. The _ Specific facts and
. -. findings in the casey are to be ounid in tic -recorils SG:
at * “the € alifornia Supestot Court Orange County cn- )
* titled “People v. Henty- Berg. Yo. C-24853"and “Peo 6”
plerv? Flenry Bere. No rs = Var ee
Subscquently. ‘the lunicipal Court of ‘Orange Coun-*
ee % ty Jusliciab-District maditicd the condition of Petition; .- _
cr’s probatieg, to requife Petitfoner to sabmit his resi-
/ Bence? property and person to search and seizure upon
as : arf “ “request of any peace officer at any time of ‘ile day or

. ¥.- night. ~s @-- . * .
tes Retitioner appealed’ the modified conitition. of pro
| a ” bation: io the Appellate Department of. the Orange ~

* County Superior Court” Tht Appellate Depaftmest
Joni the appeal and Petitioner filed for 9 Writ. of *
- Habeas Corpus in: a United States, District: “Curt,
Central District of California. That ‘Couft detiied the :
ae 7 Petition as did the United States Circuit Court wt Ap* -.—
7...” peas for,the Ninth Circuit.

'

1. Whether California Penal €ode -Section. 1203.F
which provides that the Court may as part of its
sentence impose «and require “any or al} of the’ above- °
mentionad terms of. imprisonment . . . and other
reasonable conditions, as it may Actctmine are fitting
“and proper 10 the end. that justice rig be done .

“and specifically for the reformation and rehebilitation

- Of the, probationer”. was -uriconstitutionally upplicd by.

* conditioning Petitioner's probation on ‘the requiremept
‘that he submit his- person. hts property and his home .
to search and fe upon request by a-police
‘ait ate acai : oe eae

‘IL. © Whether contraband found purseent ’ ‘sé a

Séarch conducted under authority of a waiver‘of search

‘and scizufe Aehts in retutn for fecciving the privilege
of probation can be used ap evidence

”

?

7

‘

_ ARGUMENT.
_ Probation Is a Privilege Which a .Defendant Has the .
Right to Refuse, and a Condition of Probation Is

Proper so Long as It is Reasonable and Relevant
to the Offense for Which Probation Is Granted.

Calitornia Sentencing statutes, " subject to specific

statutory limitations, allow the Gouft to” suspend the
_ sentence and to place the defendant on’ probation — for
a certain period of-time on condition that he perfor —
or refrain from performing certam acts. The -condi-
‘tions imposed,. to be valid. must be feusonably related |
to controlling the particular type -pt criminality to
which the defendarit, though his conviction, has shown
himself to be prone. Thus ‘the Court in Jv re Peeler,
' 266 Cal-App.2d 483: 488,, sets forth the purpose of
the a period ats follows:

.

**An integral and-important part of the ‘penolog-
ical plan of California is the discretionary reten-
tion in the trial court of jurisdiction over.the de-
fendant and the cause of action against, him in a
‘large area of crinies by virtue of the probation
procedures. (Peoplé v. Banks (1959) -53 Cal.2d
370, 383 -{1 Cal. Rptr:. 669, 348 P.2 102]) .

“The purpose. of. probation is rehabilitation:
and the considerations which influence thee grant-
ing of it are stated only ‘in the most general terms:

‘lf the court shall determine that thei re are ‘citcum-
stances ip mitigation of punishment prescribed by.
law, or that the ends of justice would be subserved

‘by granting probation to the deféndant. that court

_. Shail have power in its discretion to place the de-
_ fendant on probation. ;..°(P2C..1203.)"

-
. -

Lt

In setting forth .the ‘scope. of the court's discretion ,
concerning the types of conditions the court may im-
pose, /n re Peeler, supra, goes on to state: : at oe
The ‘judge. notwithstanding a wide. discretion
vested in him, must consider éach application for
probation upon its -merits. (People vy. Rojas |
(1962) 57 Cal.2d 676 |21, Cal. Rptr. 564, 371
P.2d -300|.) “Moreover. the determination to
grant-or deny probation. is also one in which the
state, as well as. the defendants, has an interest
within ‘the statutory *declarations.” (Id. p. 683.)
Although the discretion of the trial court in grant-
a ing probation. and imposing the conditions of:
“probation ‘and in revoking or .modifying those
_ conditions gsee below) is wide. its powers “are not -
‘boundless. Conditions. imposed must be reasoable
- and relevant to the offense for’ which - probation

is being granted. ( Emphasis added. ).

' The same principles set forth above were enunciated
by the California Supreme Court in -People +v. ‘Mason,
5 Cal,3d 759,-764, ‘where the court goes on to point
out that the defendant has the right to accept or "refuse
probation. The court-states: |” |
Turning to the question of the validity of the
condition as we have interpreted it. we are guided
by ‘the principles set forth in In re ‘Bushman,
me supra, 1 -Cal.3d 767. °776-777, as follows: “When
” granting’ probation. “courts have broad discretian
to impose restrictive conditions to foster rehabili-
; tation and to protect public safety. Penal Code
section 1203.1 authorizes the court to impose any
‘reasonable conditions. as it may determine are
fittine and proper to the end that justice may he*
dorfe. .. . and specifically for the reformation and +

“rehabilit: tien of the probationer.’ If the defend-
ant considers. the conditions of - probation more
harsh than the ‘sentence the court would’ other-
wise impose, ix has. the right: to. refuse ‘proba-
“tien and un detgo the sentence. (Citations. | In
such case he ptay challenge the legality of any
proposed, conditions of probation on cal uppeal .

- from the Judgment or on habeas corpus.” * | Cita-
tions. |..

In conformity with ‘the above authorities the Cali-
fornia. :Courts have held’ that- where as here a defend.
ant has been found guilty of either possession or sale
of ‘narcotics or dangerous driigs, the conditioning of a
defendant's probation .to a requirement -that defend-
_ant submit to search and seizure is reasonably related”
to.the crime. reasonably designed to avoid future ¢rim-
inality and constitutionally bigrsent As pointed out in-
Pe ople v. Mason, supra, at p. 764: -

° It ‘seems “beyond dispute that a condition of-* -
* probation w lich, requires a prior narcotics offend-
er to submit to a search meets the test set forth
in‘ Bushman.. since that condition is. reasanably
related to the probationer’s -prior criminal con-.
duct and is aimed at deterring or discovering stib- °
séquent criminal offenses. Indeed. the cases have
held that such a condition is reasonable and valid.
* beirig * ‘related to |the probationer’s| reformation
©* and. rehabilitatfonrin -the light’ of the offense’ of
“which he was conyicted.” (People v. Kern, supra.
_ 264 Cal.App.2d- 962. 965: see People v. Fitz:
_ patrick, 3 CalApp.3d 824. .827 [84 Cal. Rpt.
_78|:.cf. People y. -Osslo, 50 Cal.2d 75, 103
. {323 °P.2d 397}: People v. Williams, 247 Cal.
App.2d 394, 403-404 [55 Cat. Re $50]. ).:

or. ee ;

Worcester v. CA.R.- 370 F.2d 713 is of no conse-
quence here since. unlike a condition: requiring sub-
mission to search “and seizure. a- condition prohibiting

‘appeal is in no way related to the crime and can in no

way further the rehabilitatien ‘of a defendant.

Reqeiting a Defendant to Give Up His. Fourth Amend-

ment Rights in Return for Receiving the Privilege
of. Probation is Not U Aconstitutional.

-

Petitioner was granted probation on condition that me.

Submit to search and Seizure at any time. He was
granted a- privilege in return for the waiver of one of .
his rights. The question can thus be restated as fol-
lows: Can -the court. require the waiver ‘of certain con-
Stitutional rights in return for the granting of .thé’ priv-
ilege ‘of probation? a

« The California. hovedlieke -Court in : eee vy. Wil-
liams (1966). 247 Cal.App.2d 394, ° 35 Cal. Rptr.
550. concluded in the affirmative. There the defend-
gant had alleged the unconstitutionality of. requesting
“restitution as a condition of probation. After a ees
review of the authorities the court stated: ;
From the foregoing -it is concluded { the
discretion to be exereised in. imposing condi itions
of probation -is not hounded by constitutional .
- limitations, but by. the terms ‘of the statute which
authorizes’ the grant of probation and the public
policy of that jurisdiction. (See Escoe v. Lerbst.
295 U.S. 490: Burns 'v. United States,“287 US.-
216) id. pp.. 307-408. } (Emphasis added)

The reasoning. of W illiams, supra, Was adopted in

People v. Kern,-264 Cal. App.2d 962. where the court

eat x a ai

-. -

.

ai ~

specifically upheld a condition of: probation similar .to
that here involved. There the. coug went on to say:

Defendant was granted probiition upon condi-
tion, gimeng others, that he use no narcotics: asso-
ciate with no known narcotic users: violate no laws:
and submit his pegson and property to Search and .
seizure at_any time of the day or nigitt by any
-- law ‘enforcement officer with or without a war-

raht, He contends the latter. condition’ is unrea-

sonable and should be stricken.
r ™ . nN

In granting: probation: a courl may impow such
“reasonable conditions, as it may eterntine are
fitting- and proper for reformy ation and rehabil®
_ ation of the probationer.” (Penal Code- Section -
1203.1) : Sate
‘Imposition of the condition. that defendant sub-
mit to a search ‘by law enforcement Officers at —
any time gS a gondition to probation does not |
resent a constitutional quéstion- (People v. Wil-
.-liams, 247 Cal.App:2d 394, 407, 55 Cal.Rptr.
1 a ee er ae Sahat 7

al
In explaining the rationale atainine the ‘validity

of the. waiver of a constitutional privile ege the court

in Williams, supra, held that: Eo

_ The answer, to thisaargument is ‘that probation —
is A matter of grage and cannot be demanded of
right. and. whatev¢r may be the rule under other
statutes, under ou law: it is expressly provided

*that no one shail. be put on probation excest
-with his cofisent. Thus appellant was given the
privilege — of probation upon ‘certain _conditiong
_.which he voluntarily accepted. tate Gg ‘,

ee

-

cetihe

That same rationale is set forth in People vy. Masan, .
‘5 Cal.3d 759 where’the Court states: oe

_ dt should’ be kept in mind that although the
Scope of ‘the search in the instant Case may Jhave
~exceeded the permissible limits announced *

Chimel y. California, supra, 395 U.S. 752; root
case-aeknowledged the existence of “well “recog-—

nized exceptions” to the general rule- requiring a
‘warrant in ‘order to conduct a-house search. (2s.

sg 763 {23 L.Ed.2d 694|.) One of those exceptions,

referred to in Katz vy. United States, 389 U.S. 347.
- 358. footnote 22 | 19 L.Ed:2d 576, 586. 88 S.Ct..
507]. is’ that “A search. to which an individual

consent meets Fourth Amendment’ requirenients. .
-Zap v. United. States, 328 U.S. 624. .. 22 (Ge -

also Vale v. Louisiana, 399 U.S. 30, 35° {26
‘L.Ed.2d_ 409. 413, 90 “S.Ct. 1969].) The Zap
case is: comtroHing here. for it upheld, the validity of

Aah advance waiver of. Fouith Amendment rights
—. akin to the- ‘provisions of the probation condition ,

before us. ° acer 5 as

The California probationary aim. when analyzed, i
thus similar in ‘structure and scope with that set ce
in 18 U.S.C. $3651, And im California as in the Fed:

eral Court the vranting of probyition and the conditions.
“upon, which it is granted are matters purely within* the

discretion of the court having “Jurisdiction over the con-
victed defendant - (Cf. e.8. True hlood Longknife v.

“United States, (C.A. Hawaii 1967) 38% F.2d 17 cert.
"den. 390 US. 131, 100 L.Ed. 1013.)

Js

a

_ In foyosaburo Korematsu v._ United States, 319-
U.S. 432, 433. 87 L.Ed. -[497, 1498, this Honorable-
Court desibed the status of a probationer as foHows:
Tik probationary’ surveillance is the ‘same
whether ‘or not-sentence is iniposed. In either ‘case,
-the probation order follows a finding of -guilt or a
plea of nolo ‘contendere. Thereafter, the defendant
must abide -by the orders of the .court. He must
obey the terms ‘and ‘conditions imposed upon him,
of subject himself .to a possible revocation or mod- -
-* ification of his probation; .and under some cir-
:. cumstances he may, during the probationary _pe-—
| -riod,g required to pay a fine, or make repara-
tion’ to aggrieved - ‘partics, or provide | for. the su
port of persons ‘for whom he is legally responsible.
48 US.CA. $724.7 F.C.A. title 18, $724. He ts
under the “supervision” of ‘the probation officer
whose duty it is to make reports to the court con-
cerning his activities, 18: 30:S9.A. §727. 7 F.C.A.
title: 18, 9727, and at “any-time within the proba-
tion period the probation officer may arrest the
probationer, wherever found, without: 2 Warrant, or
the -court which has granted the probation may |
issue ;a warrant for his arrest.” 18 U.S.C.A. $725, __
- .7 F.C.A. title “18, $725. These and. other inci- ~~
dents of probation emphasize that a probation or-
der_ is “an authorized. mode -of mild. and ambula-.
tory" punishment. the probation. being intended as
a reforming discipline.” Cooper vy, United States,
(CCA. Sth) 91 F.2d 195,199. .

- “a

Tt 1S axiomatic that Fourth “Amendment immunity
may be waived in. advance of a Specifie search. Within
_ limits there may be a waiver general as to-time of

.

(7 11

search for searches. to be made by certain-public of-

Ticials. (Zap v. United States, 328 U.S. 624 [90 L:Ed.

1477, 66 S.Ct. 12771: Bowles:v! Miste, 64 F.Supp.
. 835; Bowles. v. Curtiss Candy Co., 55 F.Supp. 527;
~, 531:-United States: v. Rabicoff, 55 F.Supp.. 88: Tucker
v. State, 244 Md. 488, {224 A.2d 111], cert. denied -
386 U.S. 1024-|.18 L.Ed.2d 463. 87 SiCt. 138L4——.
People v. Allen, 407 1. 596 be ME.2d 446], cert. |
“denied 341 U.S : 922 ]95 L.Ed., 1355.74 S.Ct. 739]; = *.
Zukowski v. State. 167 Md. 549" 175 Atl. 595 |.)

In Zukowski v. State, supra, the court stated. at.
page 597: “The search which resulted in the discovery
@5f 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 li- °
~ cense. to -him for the sale of ‘alcholic. beverages. The
consent wus none. the less voluntary bécause 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. |

Given the above propositions. it cannot lronestly be
argued that the Constitution of the United States pro-
hibits the conditioning of a.grant of probation upon |
relinquishment, of Fourth Amendment rights. Chief Jtis-* }
tice Hughes in Burns v. United States, 287 U.S. 216.
221-222. 77 L.Ed. 266, .268- 269 properly sets forth
the discretionary power of the sentencing court .and
states: ~ ; o
Probation is thuis conferred as a -privilege and
cannot be demanded as a sight. It is a matter
of favof\ not of. centract. There is no requirement
- ‘ i

e is ms - -
. . a“
. - .
- . .
‘ 5 “es
‘ - : ty . Ae ve
" + °
.

that it must be granted on a specified’ showing. -
The defendant: stands convicted; ‘he faces punish-

-.. © ment and ‘cannot insist on terms or strike a bar-_
gain. To accomplish the purpose of the statute,
é an "exceptional degree of flexibility in ‘administra-

tion is essential. * It is necessary to individualize |
éach case? to give that careful, humane and com-
prehensive consideration to the’ particular situa-
tion ofeach offender which would be’ possible
‘only -in the exercise of a broad discretion. The -
provisions of the Act are adapted to this end. It
authorizes courts of. original jutisdiction, ‘when
satisfied “that ‘the’ ends of -justice and the best in-
terests of the public. ‘as well as thé defendant,
will be-subserved,” to’ suspend the imposition or.’
execution of sentence and * to place the defendant
upon probation for such period and upon. such
terms’ and conditions as they may deem best.” -

. -3he purpose of an ‘act allowing " probation is thus -
clear, and Burns, supra, aptly states: oe
e is’ still-a person convicted of an -offense,

and the suspension’ of his seritence remains within
th Aontrel of the court. The continuance of that’.
ae apparent from the terms of the statute,
is: essential to the accomplishment of its benefi-
cent purpose, as otherwise probation “might be |
more reluctantly ‘gragted or, when granted, might
‘hes made the occasion sf delays and obstruction
which would bring oo upon the - “adminis-
tration of justice. Sa

If, as in cases involving the trafficking of contraband
a waiver of Fourth Amendment rights - IS necessary
_to maintain* the control described by ‘Chief -Justice

: = ° e = re .
es .

pre ee eM: :
be said to hive abused its diseretion by in effect, telling
4 defendant: | “You have a choice. You lcan go to jail

“Or you can, give up ‘Certain ‘constitutional immunities.’
‘And, once the defendant has accepted the bériefit of

_ Supreme Court of Miitornia, in Mason, if and when
_' the Se “arch and. Seizure. condition 4s arbitrarily: used
by police officers.the courts can correct the abuses.

* Moreover, to- argue that the giving’ up of a right i in.
return for a privilege is unconstitutional is 10 avoid ,

‘reality. Eyery day. in every walk of life. people are

giving up constitutionally protected rights in return for

.

certain privileges. Thus. for example, those working
for the “federal government pay -for their privilege by
giving up their right to work to elect the cdindidates
of ‘their choice. Those who work -for™ any state govern-
mént or for the federal government give up their right

lo .strike in return for the - privilege. More important,

every condition of probation. if analyzed. constitutes‘ a

Hughes | ‘In Burns: sitpra, ‘the sentencing court cannot.

probation he- cannot be -heard 4a complain of ‘the bur-
dem imposed by its conditions.- As pointed out by the.

violation of a constitutional right. A jail sentence im- .

Coat posed ‘as a condition of probation violates «a -defend:

ant’s right to personal. freedom. A: condition requiring ”

a-probationer ‘to work at a specific. place violates an-

oe other of -defendant’s fundamental rights., A. condition.
‘that defendant not frequent certain places ‘or persons.
or that he not hold certain. positions violate still other.

rights. .. . vet all of these Conditions have béen Con-
sidered proper. if they are reasonably related to the
crime volved in ‘the ‘conviction and are reason: ably
-designed® to, curb future criminal: activities (cf. People
“y, Osslo, 50 Cal.2d 75, 127: People- 4 -W illiams.
supra). And .the r equirement that probationer: report

. dence of the commission of a new and different crime :

ah. poss e

‘monthly has been considered as violins a. valid waiver

of a probationer’s rights’ under Miranda -v. Arizona,

384 U.S. 436. (People v.-Hamilton, 260 Cal. App.2d
; 103.) And People v. King, 267 Cal.App.2d 814, 823,-
- cert. den. 90 S.Ct. 576, 396 U.S. 1028, 24° L.Ed.2d

5.14 fouitd proper a condition of probation limiting the
defendant 's constitutional right to assembly and stated:

A: reading of the record makes the purpose of

" inte, the disputed condition’ obvious. Since defendant
was guilty of crimes ‘growing out of a demonstra-
tion-and had suffered a prior conviction arising

out of one, it was not in uproper that restraint was
~ placed on such activity. ;

; Il. . ;
Waiver of Immunity From Search and Seizure Renders
_ the Evidence. Admissible in Any Proceeding.
While the issue of whether evidence found through a
search conducted pursuant to a condition of probation
waiver of search and seizure rights is admissible evi-

is not properly before the Court because not in issue. in

,this case, Respondent submits that Petitioner's hinted-

at argument that the evidence so obtained should not.
be-made ‘adinissible in the prosecution. of a new and

different crime is not well founded. Respondent respect-
fully nny cece of the familiar rule that

probable cause for search exists whenever - there is
probable: cause for an arrest. In the case of a proba-
tioner, probable cause for an arrest is supplied by

‘suspicion plus knowledge that the person is on proba-
tion (See California Penal Code 120%. - 8. People
v. Osslo, 51 Cal.App.2d» 380: People v. Heuz,~253+

Cal.App.2d 986) and by analogy, knowledge of the

Honorable Court to deny the Petition.

So: |
existence of a search and seizure condition of proba-
tion is thus sufficient to give the officers Probable cause

_to search the -probationer. Evidence so obtained is le-°

gally ‘admissible for all purposes. To. hold otherwise -
would in. fact nullify the condition: since illegally scized
evidence -is admissible in all probation revocation hear-

ings regardless of whether the’ ‘condition concerning

search and seizure has been imposed or not.

For all the above reasons,’ Respondent urges This

‘Dated this 9th day of February, 1972.
Respectfully submitted,

Ceci Hicks, _ :

District Attorney, County of

Orange, State of California,

. MICHAEL R. Capizzt.
Assistant District Attorney,

By OrETTA D. ‘Sears,
~ Deputy District Attorney,

A ftorney s dud Respondent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0442%3A2. Public record. Not legal advice.