Freytes v. Superior Court

California Court of Appeal Aug 12, 1976 No. Civ. 38870Published

Before: Caldecott

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Holding. The court held that a warrantless search condition from an initial probation order did not survive the revocation and subsequent restoration of probation when the new order omitted the search condition. Because waivers of Fourth Amendment rights cannot be implied, the search was illegal.

Issues

Whether a warrantless search condition from an initial probation order remains in effect after probation is revoked and restored without explicit inclusion of that condition in the new order.
Whether a waiver of Fourth Amendment rights can be implied upon the restoration of probation.

Disposition. remanded

Quotations verified verbatim against the opinion

“In view of the fact that the only probation order that included a consent to search was revoked, that the second probation order did not include a consent to search, and that a waiver of Fourth Amendment rights cannot be implied, the search was illegal”

[960]

Opinion

CALDECOTT, P. J.

Petitioner Frank Freytes seeks review of an order of the San Francisco Superior Court denying his motion to suppress evidence. (Pen. Code, § 1538.5.) Petitioner is charged with possession of heroin for sale (Health & Saf. Code, § 11351) and with possession of narcotic paraphernalia (Bus. & Prof. Code, § 4143, subd. (a)).

On December 4, 1975, San Francisco police officers received information that petitioner was dealing in heroin at his residence and had just received a large supply. The officers believed that petitioner was subject to a warrantless search of his person, residence and automobile as a condition of probation.

The officers went to petitioner’s residence. Petitioner arrived shortly thereafter. The officers approached, advised him they were conducting a narcotics investigation and were going to search pursuant to the probation condition. Petitioner unlocked the door, the officers entered and searched and found a large amount of heroin and cocaine in a black purse on the floor of a bedroom closet. Petitioner spontaneously stated that the heroin was his and that he put it in the closet.

At the time of his arrest, petitioner was on probation, on a February 7, 1974, conviction, for driving under the influence of drugs (Veh. Code, § 23105) and driving while his license was suspended (Veh. Code, § 14601, subd. (a) j. As a condition of probation he was sentenced to 90 days in the county jail, suspended, and two years probation, ordered to pay a $360 fine in monthly installments and he agreed to consent to a warrantless search “of his person, home, or vehicle, at any time, day or night, during the period of probation, by any police officer or probation officer, with or without probable cause.”

On April 26, 1974, the court revoked petitioner’s probation on its own motion and issued a bench warrant for his arrest because petitioner had failed to make the payments on his fine. At a hearing on May 15, 1974, the court recalled the bench warrant and restored petitioner to probation. At the conclusion of that hearing, petitioner was given a printed form entitled “Order Admitting Defendant To Probation To The Court.” That form stated: “Defendant having been convicted of 23105 V.C. on the 15 day of May, 1974, and no legal cause being shown why judgment should not now be pronounced: It Is Hereby Ordered that the

Freytes v. Superior Court

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CALDECOTT, P. J.

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