WRIGHT, C.J.
The People seek mandamus to compel the respondent court to set aside an order granting a motion to suppress evidence which was found in the search of an apartment claimed to have been occupied by the real parties in interest. (Pen. Code, § 1538.5, subd. (o).)
The real parties in interest (Clarence Stevens, Teresa Bustillos, and Pamela Thames) first moved to suppress evidence at the preliminary hearing. The magistrate denied the motion and held the real parties in interest to answer on charges of violating Health and Safety Code sections 11350 (possession of certain controlled substances) and 11366 (maintaining a place for the purpose of unlawfully selling, giving away, or using certain controlled substances). The motion was granted, however, when renewed in the respondent trial court and submitted on the preliminary hearing transcript. We issued an alternative writ and, pending final determination of the matter, stayed all proceedings in the trial court. (1) We now conclude that the search was unlawful and deny the peremptory writ.
At the time of the search Stevens was on an outpatient status from the California Rehabilitation Center. The People seek to justify the search of the apartment on the basis of permission claimed to have been granted in an "upon request" provision contained in Stevens' conditional release as an outpatient. In People v. Mason (1971) 5 Cal.3d 759 [ 97 Cal.Rptr. 302, 488 P.2d 630], we upheld the validity of a condition of probation requiring the probationer to "`submit his person, place of residence, vehicle, to search and seizure at any time of the day or night, with or without a search warrant, whenever requested to do so by the Probation Officer or any law enforcement officer.'" ( Id., at p. 762.) We noted in Mason, however, "that the words `whenever requested' were added to require the officers to notify defendant before conducting a search of his house or car. Thus, a search made without defendant's knowledge would [be] invalid." ( Id., at p. 763.)
Stevens' release was granted by the Narcotic Addict Evaluation Authority and accepted by him subject to enumerated conditions, one of which was, "You shall submit to a search of your person, your residence and any property under your control upon request by your agent, any agent of the Department of Corrections or law enforcement officer."
Stevens was released to outpatient status in July 1973. During the latter part of October 1973, Parole Officer Hann twice visited Stevens at a Redwood City apartment. On both occasions body fluid tests proved negative and no contraband was observed. On November 7, 1973, a police detective contacted Hann and told him police surveillance indicated that "sales of narcotics were being conducted out of [Stevens'] apartment," and that another detective had observed Bustillos come out of that apartment and sell heroin to an informant.
Surprise narcotics testing is authorized by Welfare and Institutions Code section 3152
Hann and two police officers went to the vicinity of the apartment in the afternoon of November 7. Hann observed Bustillos descend the apartment stairs and walk towards a man who had a $20 bill in his hand. Hann approached the apartment and knocked and, while he was standing outside the apartment door, Bustillos returned holding a $20 bill. She asked Hann what he wanted and Hann replied that he was Stevens' parole agent and believed that some illegal activities had taken place out of the apartment and that he "intended to search, which was within [his] right." Bustillos said she did not want Hann and the detectives to enter and denied that Stevens lived in the apartment. Hann replied that he had twice visited Stevens at the apartment and that Stevens had listed the address of the apartment as his home address. Bustillos thereupon opened the door and Hann and the police officers followed her in and searched the premises. The officers had no arrest or search warrants and Hann testified that he entered the apartment because of the search condition of Stevens' release to outpatient status.
The search produced three balloons containing heroin, syringes, a marijuana cigarette, marijuana smoking paraphernalia, and papers indicating that Thames also lived in the apartment. Bustillos was arrested. Sometime later that same day Stevens and Thames returned to the apartment and were confronted by one of the officers who requested that Thames remove her coat. A search of the coat revealed a balloon containing heroin. Stevens and Thames were then arrested.
Although the People purport to rely on Stevens' release condition, it requires a submission to search only "upon request" which, according to Mason, means that notice is a prerequisite to the validity of the search. We conclude that lack of notice invalidated the entry and search of the apartment in the instant case. The subsequent search of Thames' coat, which was tainted by the illegal entry and search of the apartment, is also invalid. ( People v. Lawler (1973) 9 Cal.3d 156 [ 107 Cal.Rptr. 13, 507 P.2d 621]; People v. Haven (1963) 59 Cal.2d 713 [ 31 Cal.Rptr. 47, 381 P.2d 927].)
In suppressing the evidence, the superior court noted that Stevens' absence from the premises invalidated the search. Mason does not require the physical presence of the probationer or other person who is entitled to notice before the search can occur, so long as such notice is given. (See People v. Byrd (1974) 38 Cal.App.3d 941, 949 [ 113 Cal.Rptr. 777].) The notice, moreover, need not be formally given and might even be implied in circumstances which warrant a conclusion that a parolee, probationer, outpatient or other such person had knowledge that a request was to be made. Such circumstances might be any action taken to avoid having to respond to a request or "fleeing" from notice.
The alternative writ of mandate is discharged and the peremptory writ is denied.
Tobriner, J., Mosk, J., and Sullivan, J., concurred.