People v. Palmquist
People v. Palmquist
Opinion of the Court
Opinion
This appeal, pursuant to Penal Code section 1538.5, subdivision (m), is from a judgment entered after defendant and appellant Phillip Palmquist’s motion to suppress evidence was denied and he pled guilty to a violation of Health and Safety Code section 11359.
Facts
On December 13, 1979, Officer Robert Jones of the Napa Special Investigations Bureau was contacted by a citizen informant who advised that appellant and his roommate, Bridget Barjkovich, were involved in sales of hashish. The informant further related that appellant and Barjkovich resided at and sold narcotics from 2021 First Street, apartment No. 3. Officer Jones was aware from a case in which he was previously involved that appellant and Barjkovich had resided together two years prior.
Officer Jones contacted appellant’s probation officer, Jan Barr, who advised that appellant was on probation, but had failed to report since
Later that day Officer Jones and other officers went to the residence at 2021 First Street, apartment No. 3, and observed appellant within the residence looking out of the living room window. Officer Jones recognized appellant from mug shots. Officer Jones then went to the apartment door, knocked repeatedly and announced he wished to speak with appellant about his probation conditions. There was no response. Appellant attempted to leave the house through the back door, but a police officer was stationed at the back of the house. Finally, Officer Jones forced the front door open, entered the residence and located appellant standing between the kitchen and living room. Appellant was immediately arrested “[f]or violation of his probation, for refusal to answer the door as ordered, and since [sic] he had not reported to his probation officer since September of ’79.” The officers then conducted a search of the apartment. In plain view on a table in the living room was a black and beige gram scale. In the refrigerator and in a ski parka in the kitchen were a number of plastic bags containing 52.45 grams of marijuana (i.e., between 2 and 3 ounces).
After appellant was advised of his Miranda rights, Bridget Barjkovich returned to the apartment. Appellant volunteered that all of the marijuana was his, and that the ski parka was his as well.
Appellant moved to suppress the evidence discovered during the search, stipulating that the preliminary hearing transcript would be
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
It is true as appellant Palmquist contends that the officers were not percipient witnesses to the illicit activity described by the unnamed informant
Further, when the officers arrived at appellant’s residence he refused to answer the door and attempted to flee out the rear after being told that the officers were there to discuss his probation conditions with him. Appellant Palmquist “had already, as a condition of probation, waived any right to refuse a law enforcement officer entry to [his] premises to conduct a search” (People v. Constancio, supra, at p. 546), and the officers were not required to recite the basis for their suspicion that a search was warranted in order to gain entry. Consequently, the fact of appellant’s attempted flight could lead one to suspect criminal activity to which appellant had been a party might have taken place in the residence. (People v. Garcia, supra, 44 Cal.App.3d 1029, 1032; cf. People v. Perry (1979) 100 Cal.App.3d 251, 262-263 [161 Cal.Rptr. 108].)
We conclude that substantial evidence existed to support the trial court’s finding that at the time the officers here entered Palmquist’s residence they reasonably suspected that criminal activity was afoot. (People v. Anthony (1970) 7 Cal.App.3d 751, 760 [86 Cal.Rptr. 767].)
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.
In his reply brief appellant raises for the first time
The question remains whether there was reason to believe the refrigerator and ski parka were either jointly shared by. appellant and Ms. Barjkovitch (People v. Alders (1978) 87 Cal.App.3d 313, 317 [151 Cal.Rptr. 77]; People v. Icenogle, supra, 71 Cal.App.3d 576, 586-587), or were appellant’s own effects (People v. Veronica (1980) 107 Cal.App.3d 906, 909 [166 Cal.Rptr. 109]) to warrant their search. In Icenogle the contraband was found in a bureau jointly controlled by the parolee and the woman with whom he lived. Joint control was established from the fact that all portions of the one bedroom apartment were found to be jointly occupied. In the case at bench, the facts indicating that appellant resided in the First Street apartment would be sufficient to support a finding that the refrigerator was jointly possessed.
The ski parka, being an item of clothing, requires a slightly different analysis. In both Alders and Veronica, it was presumed that distinctly female articles of clothing did not belong to the male probationer/parolee and were therefore not subject to a search. In Alders, the court said that where there “was no reason to suppose” (p. 317) that a female coat was jointly shared, a search thereof is not warranted. In Veronica, the court opined that “The particular circumstances may indicate that the object is, in fact, one of the parolee’s own effects or, at least jointly possessed by him and another. In this case, however, there was simply nothing to overcome the obvious presumption that the purse was hers, not his.” (Veronica, supra, at p. 909.) According to the police report, the green ski parka was found lying on the floor in the southwest corner in the kitchen near where appellant Palmquist was arrested. Presumably the parka was not “distinctly female.” After the parka was searched appellant volunteered that the parka belonged to him. Although the evidence is thin, it is sufficient to support a finding that the jacket was either jointly possessed by appellant and Ms. Barjkovitch or that it was appellant’s own jacket. “In reviewing a Fourth
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.
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.
Feinberg, J., and Barry-Deal, J., concurred.
Appellant thereafter pled guilty and was sentenced to the lower base term of 16 months. Execution of sentence was suspended and appellant was placed on probation on the condition that he serve six months in county jail.
Appellant ultimately concedes the point in his opening brief at page 9.
Consuelo-Gonzalez involves interpretation of the Federal Probation Act. In that case the court held that probation searches must be conducted by probation officers or in their presence. The court expressly declined to state an opinion on the constitutionality of Mason. (Id., at p. 266.)
United States v. Smith does not stand for the point for which it is cited. In that case a state parolee’s consent to search was held involuntary under Fourth Amendment standards. The court also held that a parolee may be subject to a search by his parole officer if the circumstances reasonably suggested an actual or imminent parole violation; no reasonable suspicion was articulated in United States v. Smith. The issue of whether a police officer could have conducted a parole search, however, was not presented.
“But the ‘reasonable cause’ called for by the probation condition is not to be equated with probable cause for issuance of a warrant. We construe ‘reasonable cause,’ in the context of the probation order, as meaning circumstances indicating that in the interests of effective probation supervision a search is advisable.” (See People v. Kasinger, supra, 57 Cal.App.3d 975, 978.)
When defense counsel requested the name of the informant the district attorney objected on grounds of relevance. He argued that the defense was entitled to the name of
In Icenogle, a confidential informant informed the police that the parolee was dealing in drugs from a particular address and provided the parolee’s telephone number. Other officers obtained similar information and a surveillance of the premises was undertaken during which the parolee was observed. When the officers finally approached the parolee he told them that he lived at the address given by the informant.
In Mason, the officers traced the probationer’s vehicle to the address listed as his residence. The vehicle from which the license number had been obtained was parked at that address when the officers arrived.
Once appellant below produced evidence to show that the seizure was without a warrant, the People bore the burden of proving the justification for the warrantless seizure. (People v. Cruz (1964) 61 Cal.2d 861 [40 Cal.Rptr. 841, 395 P.2d 889]; Badillo v. Superior Court (1956) 46 Cal.2d 269 [294 P.2d 23]; Wilder v. Superior Court (1979) 92 Cal.App.3d 90, 96 [154 Cal.Rptr. 494].) A defendant is not required to assert specific attacks upon the warrantless seizure of the evidence he seeks to suppress. (Ibid.) Where the defendant does assert specific contentions and the People demonstrate that such contentions are meritless, the evidence will nevertheless be suppressed if the People have failed to carry its burden of justification for the seizure. (Id., at p. 97.) The argument presented here for the first time is therefore timely and the fact that Montoya was decided after appellant’s submission of his opening brief is sufficient reason to consider the argument even though raised in appellant’s reply brief.
A valid probation order was admitted into evidence at the preliminary hearing evidencing appellant’s search condition.
Also note that Penal Code section 1203.2, subdivision (a), provides that a peace officer may rearrest a probationer during the probationary period “without warrant or other process” for violation of probation or for a subsequent offense. (In re Thomas (1972) 27 Cal.App.3d 31 [103 Cal.Rptr. 567]; Pierce v. Board of Nursing etc. Registration (1967) 255 Cal.App.2d 463 [63 Cal.Rptr. 107]; In re Young (1932) 121 Cal.App. 711 [10 P.2d 154].) The rationale behind section 1203.2, subdivision (a), is that because a probationer is in constructive custody of the probation officer, no war
Reference
- Full Case Name
- THE PEOPLE, and v. PHILLIP RONALD PALMQUIST, and
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- Published