THE PEOPLE, Plaintiff and Respondent, v. ARLENE DENA SANDERS et al., Defendants and Appellants.
No. S094088
Supreme Court of California
July 31, 2003.
31 Cal. 4th 318
J. Peter Axelrod, under appointment by the Supreme Court, for Defendant and Appellant Arlene Dena Sanders.
Elizabeth M. Campbell, under appointment by the Supreme Court, for Defendant and Appellant Kenton Michael McDaniel.
Alan L. Schlosser; Kathy Kahn and John T. Philipsborn for American Civil Liberties Union of Northern California and California Attorneys for Criminal Justice as Amici Curiae on behalf of Defendants and Appellants.
Law Offices of the Alternate Defender, Jose R. Villarreal, Ronald A. Norman and Stephen Elrick for California Public Defenders Association and Alternate Defender Office as Amici Curiae on behalf of Defendants and Appellants.
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Jo Graves, Assistant Attorney General, Louis M. Vasquez, Robert P. Whitlock, Leah Ann Alcazar, John G. McLean and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
Steve Cooley, District Attorney (Los Angeles), George M. Palmer, Head Deputy District Attorney, Brentford J. Ferreira and Phyllis C. Asayama, Deputy District Attorneys, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.
MORENO, J.—In In re Martinez (1970) 1 Cal.3d 641 [83 Cal.Rptr. 382, 463 P.2d 734], we held that the warrantless search of a residence could not be justified as a parole search if the police did not know of the suspect‘s parole status when they conducted the search. In In re Tyrell J. (1994) 8 Cal.4th 68 [32 Cal.Rptr.2d 33, 876 P.2d 519], we declined to follow the reasoning of Martinez and instead upheld the warrantless search of the person of a juvenile who was on juvenile probation and subject to a search condition of which the police were unaware at the time of the search. In People v. Robles (2000) 23 Cal.4th 789, 800 [97 Cal.Rptr.2d 914, 3 P.3d 311], we held that the search of a residence could not be justified by the circumstance that the defendant‘s brother, who lived in the residence, was on probation and subject to a search condition of which the police were unaware at the time of the search. In the present case, police searched the residence of two persons, one of whom was on parole and subject to a search condition of which the police were unaware at the time of the search. For the reasons that follow, we conclude that evidence seized during the search must be suppressed as to both defendants.
FACTS
Defendants Arlene Dena Sanders and Kenton Michael McDaniel were charged by information with possession for sale of cocaine base in violation of
On April 6, 1999, Bakersfield Police Officers Glen Davis and Scott Thatcher responded to a report of a disturbance at an apartment building. They spoke to the building manager, who indicated that there was a fight going on in defendants’ apartment. As they approached the apartment, Officer Davis heard a man and woman inside yelling at each other. Officer Thatcher knocked on the door. The yelling stopped and, a short time later, Sanders peeked out through some blinds. Officer Thatcher knocked again and ordered the occupants to open the door. After a short delay, Sanders opened the door. She had an abrasion on her face, and McDaniel was nearby, standing behind a couch. The officers entered the apartment. They saw McDaniel place something behind a couch cushion. Officer Thatcher caught a glimpse of something metal. Sanders demanded that the officers leave and began “tussling” with Officer Thatcher. McDaniel also demanded that the officers leave and moved toward Officer Thatcher, telling him to leave Sanders alone. The officers handcuffed both defendants.
The prosecution introduced into evidence at the suppression motion a one-page document entitled “Notice and Conditions of Parole” that reflected that on May 23, 1998, McDaniel had been released on parole for three years on the condition, among others, that “You and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer.”1
The superior court denied the motion to suppress evidence. Sanders pled guilty to a reduced charge of possession of a controlled substance, in violation of
Defendants appealed. They did not challenge the validity of the officer‘s entry into the apartment, but argued it was unlawful for the police to search the apartment after defendants were handcuffed. The Court of Appeal reversed the judgment, holding that the “protective sweep” of the apartment was unlawful under the rule announced in Maryland v. Buie (1990) 494 U.S. 325 [108 L.Ed.2d 276, 110 S.Ct. 1093], and was not justified as a parole search because the officers were unaware at the time of the search that McDaniel was on parole. We granted review to decide whether the search
DISCUSSION
Exclusion of “relevant, but unlawfully obtained evidence” is permitted under
“The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim: ‘[T]he ruptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late.’ [Citation.] Instead, the rule‘s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the
” ‘[P]hysical entry of the home is the chief evil against which the wording of the
United States v. Knights (2001) 534 U.S. 112 [151 L.Ed.2d 497, 122 S.Ct. 587] held that a law enforcement officer investigating criminal conduct could search the residence of a probationer without a warrant pursuant to a probation search condition. The defendant in Knights was on probation that included a condition that he ” ‘[s]ubmit his person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.’ ” (Id. at p. 114.) A sheriff‘s detective who knew of the search condition and suspected Knights had committed acts of vandalism and an act of arson, searched Knights‘s home without a warrant and found incriminating evidence.
The high court declined to decide “whether Knights’ acceptance of the search condition constituted consent in the Schneckloth [v. Bustamonte (1973) 412 U.S. 218 [36 L.Ed.2d 854, 93 S.Ct. 2041]] sense of a complete waiver of his
With these principles in mind, we turn to an examination of California law.
In In re Martinez, supra, 1 Cal.3d 641, we addressed a situation similar to that of the present case, in which police conducted a warrantless search of a residence and later discovered that the suspect was on parole. Martinez was arrested in a car outside his home. Police then conducted a full search of his home without a warrant. The officers were unaware that Martinez was on parole.
We held that the search of the defendant‘s residence could not be justified as a parole search, stating: “Although past cases have sometimes declared that a parolee is in ‘constructive custody’ or ‘without liberty,’ ‘[f]ictions of “custody” and the like . . . cannot change the reality of a parolee‘s conditional freedom and cannot affect the constitutional protections surrounding his interest in that conditional freedom.’ [Citation.] In the instant case regular police officers undertook the search pursuant to their general law enforcement duties; the officers, at the time of the search, did not even know of defendant‘s parole status. The investigation involved suspected criminal activity, not parole violations. Under these circumstances the officers cannot undertake a search without probable cause and then later seek to justify their actions by relying on the defendant‘s parole status, a status of which they were unaware at the time of their search. [Citations.]” (In re Martinez, supra, 1 Cal.3d 641, 646.)
Nearly 25 years later, we questioned the reasoning of Martinez in In re Tyrell J., supra, 8 Cal.4th 68. In that case, police searched the person of a juvenile probationer without knowing he was subject to a condition of probation that he ” ‘[s]ubmit to a search . . . by any law enforcement officer.’ ” (Id. at p. 74.) The officer in Tyrell J. encountered the juvenile at a high school football game and conducted a pat-down search after the minor repeatedly adjusted his pants, causing the officer to suspect the juvenile was hiding a weapon. The officer did not find a weapon, but retrieved a bag of marijuana from the minor‘s pants. The officer was unaware that the minor was on juvenile probation subject to the condition that he ” ‘[s]ubmit to a search of [his] person and property, with or without a warrant, by any law enforcement officer, probation officer or school official.’ ” (In re Tyrell J., supra, 8 Cal.4th 68, 74.)
This court assumed without deciding that the officer lacked sufficient cause for the search, but ruled the search was lawful nevertheless because “a
The court in Tyrell J. also relied upon the circumstance that the suspect in that case was a juvenile, observing that “imposing a strict requirement that the searching officer must always have advance knowledge of the search condition would be inconsistent with the special needs of the juvenile probation scheme. That scheme embraces a goal of rehabilitating youngsters who have transgressed the law, a goal that is arguably stronger than in the adult context.” (In re Tyrell J., supra, 8 Cal.4th 68, 86-87.) We also recognized, however, that such advance knowledge of the search condition is desirable, because it “helps ensure that the resulting search is not conducted ‘for reasons unrelated to the rehabilitative and reformative purposes of probation or other legitimate law enforcement purposes.’ [Citation.]” (Id. at p. 87.)
We acknowledged that language in our opinion in Martinez “appears conducive to the minor‘s position,” but we declined to follow “the stated rationale in Martinez because, at the time that decision was rendered, there existed no automatic search condition imposed on parolees, inclusive of searches to be performed either by parole officers or law enforcement officers. Therefore, although the defendant in Martinez might have been subject to search by his parole officer, he could reasonably expect to be free of arbitrary searches by police officers. [Citation.]” (In re Tyrell J., supra, 8 Cal.4th 68, 88-89.)
The majority in Tyrell J. observed that its opinion was “consistent with the primary purpose of the
Justice Kennard disagreed, stating that the majority‘s holding “offers police officers an incentive to search any juvenile despite the lack of probable cause and a warrant, for if it later turns out that the juvenile has a probation search condition, the fruits of the search will be admissible in court.” (In re Tyrell J., supra, 8 Cal.4th 68, 98 (dis. opn. of Kennard, J.).)
Our holding in Tyrell J. that police could justify a search based upon the existence of a search condition of which they were unaware received a chilly reception. Referring to our earlier decision in Martinez, one commentator stated: “Regrettably, that eminently sound position was later abandoned in In re Tyrell J. on the bizarre reasoning that a probationer who knows that he is subject to ‘a valid search condition’ to his release consequently ‘does not have a reasonable expectation of privacy over his person or property’ vis-à-vis any search by anyone, including a search by a police officer unaware of the probationer status! As the dissent in Tyrell J. aptly noted, that strange conclusion, without precedent in any jurisdiction, gives police an incentive to make searches even without probable cause because, should it turn out that the suspect is a probationer, the evidence will be admissible nonetheless.” (4 La Fave, Search and Seizure (3d ed. 1996) § 10.10(e), p. 792.) Other commentators have been equally unkind. (Comment, Fourth Amendment Protections for the Juvenile Probationer After In Re Tyrell J. (1996) 36 Santa Clara L.Rev. 865, 884 [“The court‘s decision is unsettling, as it erodes the
We limited the holding in Tyrell J. in People v. Robles, supra, 23 Cal.4th 789, in which we examined whether the warrantless search of the defendant‘s residence was proper because, unknown to the searching officers, a cohabitant was on probation and subject to a search condition. Police conducted an unlawful search of the defendant‘s garage and discovered a stolen car. The next day, police learned that the defendant‘s brother, who shared the apartment with the defendant, was on probation and was subject to a search condition. We held the search was unlawful, because the police violated the defendant‘s reasonable expectation of privacy by entering the garage without a warrant and without knowledge of the brother‘s search condition. (23 Cal.3d at p. 800.)
We declined to extend the logic of Tyrell J. to validate the search of the garage, stating: “Even though a person subject to a search condition has a severely diminished expectation of privacy . . . those who reside with such a person enjoy measurably greater privacy expectations in the eyes of society.” (People v. Robles, supra, 23 Cal.4th 789, 798.) We recognized that the extent of such a cohabitant‘s expectation of privacy hinged, in part, upon the searching officer‘s knowledge of the search condition: “[C]ohabitants need not anticipate that officers with no knowledge of the probationer‘s existence or search condition may freely invade their residence in the absence of a warrant or exigent circumstances. Thus, while cohabitants have no cause to complain of searches that are reasonably and objectively related to the
We then turned to the conclusion in Tyrell J. that its holding is consistent with the primary purpose of the exclusionary rule—to deter future unlawful police conduct. (In re Tyrell J., supra, 8 Cal.4th 68, 89.) We noted in Robles that “residential searches present an altogether different situation.” (People v. Robles, supra, 23 Cal.4th 789, 800.) “Notably, residences frequently are occupied by several people living together, including immediate family members and perhaps other relatives or friends, as well as guests. Allowing the People to validate a warrantless residential search, after the fact, by means of showing a sufficient connection between the residence and any one of a number of occupants who happens to be subject to a search clause, would encourage the police to engage in facially invalid searches with increased odds that a justification could be found later. It also would create a significant potential for abuse since the police, in effect, would be conducting searches with no perceived boundaries, limitations, or justification. [Citation.] The potential for abuse, with its consequent impact on the citizenry, is especially heightened in high crime areas where police might suspect probationers to live. Thus, while society generally has an interest in having all probative evidence before the court, in circumstances such as these a knowledge-first requirement is appropriate to deter future police misconduct and to effectuate the
Our holding in Robles mandates the conclusion that the search in the present case was unlawful as to Sanders. As we held in Robles, Sanders had a reduced expectation of privacy because she was living with a parolee subject to a search condition, but she “need not anticipate that officers with no knowledge of the probationer‘s existence or search condition may freely invade their residence in the absence of a warrant or exigent circumstances.” (People v. Robles, supra, 23 Cal.4th 789, 799.) The circumstance that McDaniel was on parole, while the defendant‘s brother in Robles was on probation, makes no difference; the expectation of privacy of cohabitants is the same whether the search condition is a condition of probation or parole. It is clear that the search was unlawful as to Sanders.
The Attorney General‘s belated justification for the search fails. Citing Segura v. United States (1984) 468 U.S. 796 [82 L.Ed.2d 599, 104 S.Ct. 3380], the Attorney General argues that “the evidence discovered in this case resulted from lawful police conduct, independent from the protective sweep.” The decision in Segura, however, involved facts that were far different from the circumstances in the present case.
In Segura, law enforcement officers illegally entered the defendant‘s apartment to secure the premises while a search warrant was being obtained. Despite the illegal entry into the apartment, the high court held “the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as ‘fruit’ of the illegal entry, because the warrant and the information on which it was based were unrelated to the entry, and therefore constituted an independent source for the evidence . . . .” (Segura v. United States, supra, 468 U.S. 796, 799.) In the present case, it cannot be said that the parole search was unrelated to the unlawful protective sweep of the apartment. It was only after drugs were discovered during the unlawful protective sweep that Officer Davis contacted the police department and learned that McDaniel was on parole and subject to a search condition. On the record before us, we have no basis upon which to conclude that the seizure of the drugs was not the fruit of the unlawful protective sweep of the apartment.
Having concluded that the search was unlawful as to Sanders, we turn to the more difficult question of whether the search also was unlawful as to McDaniel. We did not consider in Robles whether a search that violates the
In Martinez, we rejected the view “that a parolee is without any constitutional protection against unreasonable searches and seizures. [Citation.]” (In re Martinez, supra, 1 Cal.3d 641, 647, fn. 5.) Instead, we recognized ” ‘the reality of a parolee‘s conditional freedom and . . . the constitutional protections surrounding his interest in that conditional freedom.’ [Citation.]” (Id. at p. 646.) A parolee‘s expectation of privacy certainly is diminished, but it is not eliminated.4 In Tyrell J., however, we declined to follow the reasoning of MartinezIn re Tyrell J., supra, 8 Cal.4th 68, 86.)
In People v. Reyes (1998) 19 Cal.4th 743, 754 [80 Cal.Rptr.2d 734, 968 P.2d 445], we held that “even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy ‘society is “prepared to recognize as legitimate.“’ [Citations.]” (Contra, United States v. Crawford (9th Cir. 2003) 323 F.3d 700.) In Reyes, unlike the present case and Tyrell J., the searching officer was aware of the existence of the search condition. In fact, the standard adopted in Reyes, upholding a search conducted “under the auspices of a properly imposed parole search condition,” presumes the officer‘s awareness of the search condition, because a search cannot be conducted “under the auspices” of a search condition if the officer is unaware that the condition exists.
But our reasoning in Reyes does not apply if the officer is unaware that the suspect is on parole and subject to a search condition. Despite the parolee‘s diminished expectation of privacy, such a search cannot be justified as a parole search, because the officer is not acting pursuant to the conditions of parole.
In order to determine whether the search was unlawful as to McDaniel, we must examine ” ‘the totality of the circumstances,’ ” with two salient circumstances being McDaniel‘s parole search condition and the officer‘s lack of knowledge of that condition. (United States v. Knights, supra, 534 U.S. 112, 118.) “The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual‘s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ [Citation.]” (Id. at pp. 118-119.)
The decision in United States v. Knights, supra, 534 U.S. 112, upheld a search of a probationer for an “investigatory” rather than a “probationary” purpose conducted by a police officer who knew the probationer was subject to a search condition. The high court relied upon the probationer‘s diminished expectation of privacy and the state‘s dual interest in determining whether the probationer is complying with the terms of probation and protecting the community from further criminal acts by the probationer: “When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer‘s significantly diminished privacy interests is reasonable.” (Id. at p. 121.) But if an officer is unaware that a suspect is on probation and subject to a search condition, the search is not justified by the state‘s interest in supervising probationers or by the concern that probationers are more likely to commit criminal acts.
The requirement that the reasonableness of a search must be determined from the circumstances known to the officer when the search was conducted is consistent with the primary purpose of the exclusionary rule—to deter police misconduct. The rule serves ” ‘to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.’ ” (Mapp v. Ohio (1961) 367 U.S. 643, 656 [6 L.Ed.2d 1081, 81 S.Ct. 1684].) “The rule also serves another vital function—‘the imperative of judicial integrity.’ [Citation.] Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. Thus, in our system, evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state agents. A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.” (Terry v. Ohio (1968) 392 U.S. 1, 12–13
Thus, the admission of evidence obtained during a search of a residence that the officer had no reason to believe was lawful merely because it later was discovered that the suspect was subject to a search condition would legitimize unlawful police conduct. Accordingly, we hold that an otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted.5
An additional reason for suppressing the evidence obtained in the search of the residence in the present case, where the police were unaware that one of the residents was subject to a search condition, is to protect the rights of the parolee‘s cohabitants and guests. As we recognized in Robles, and as is demonstrated by the circumstances of the present case, a search of the residence of a person subject to a search condition often affects the rights of cohabitants and guests as well. Permitting evidence that has been suppressed as to a cohabitant to be used against the parolee would encourage searches that violate the rights of cohabitants and guests by rewarding police for conducting an unlawful search of a residence.
As we noted in Robles: “Many law-abiding citizens might choose not to open their homes to probationers [or parolees] if doing so were to result in the validation of arbitrary police action. If increased numbers of probationers were not welcome in homes with supportive environments, higher recidivism rates and a corresponding decrease in public safety may be expected, both of which would detract from the ‘optimum successful functioning’ of the probation system.” (People v. Robles, supra, 23 Cal.4th 789, 799.) The assurance that evidence discovered during such an arbitrary search could not be used against the “law-abiding citizen” would provide little solace if the police still were encouraged to conduct such unlawful searches by permitting them to use any evidence discovered against the probationer or parolee. “The potential for abuse, with its consequent impact on the citizenry, is especially heightened in high crime areas where police might suspect probationers to live.” (Id. at p. 800.)
CONCLUSION
For the foregoing reasons, the judgment of the Court of Appeal is affirmed.
George, C. J., Werdegar, J., and Chin, J., concurred.
KENNARD, J. —For reasons stated in my dissenting opinion in In re Tyrell J. (1994) 8 Cal.4th 68, 96 [32 Cal.Rptr.2d 33, 876 P.2d 519] (Tyrell J.), I here agree with the majority‘s holding invalidating the search of the apartment occupied by parolee Kenton Michael McDaniel and his cohabitant, Arlene Dena Sanders. Here, as in Tyrell J., the issue is whether, under the
I
The federal Constitution‘s
At issue in Tyrell J. was the warrantless search of a minor at a school football game. When the minor moved to suppress the marijuana found during that search, the prosecution sought to justify it based on a condition of the minor‘s juvenile probation in an earlier unrelated case that he submit ” ‘to a search of [his] person and property, with or without a warrant, by any law enforcement officer, probation officer or school official.’ ” The juvenile court denied the suppression motion and declared the minor a ward of the court. (Tyrell J., supra, 8 Cal.4th at pp. 74-75.) The Court of Appeal reversed, reasoning that “the fortuity of the search condition did not validate the otherwise improper search” by a police officer who did not know of the search condition. (Id. at p. 75.)
A majority of this court disagreed with that holding, concluding that to impose “a strict requirement that the searching officer must always have advance knowledge of the search condition would be inconsistent with the special needs of the juvenile probation scheme.” (Tyrell J., supra, 8 Cal.4th at pp. 86-87.) Because of those “special needs,” the Tyrell J. majority reasoned, a juvenile probationer subject to a search condition must “assume every law enforcement officer might stop and search him at any moment.” (Id. at p. 87.)
In expressing a different view in my dissenting opinion, joined by Justice Mosk, I relied on two decisions, In re Martinez (1970) 1 Cal.3d 641 [83 Cal.Rptr. 382, 463 P.2d 734] and People v. Gallegos (1964) 62 Cal.2d 176 [41 Cal.Rptr. 590, 397 P.2d 174], in which this court had held that the prosecution may not rely on a probation or parole search condition when the searching officer did not know of its existence. (See Tyrell J., supra, 8 Cal.4th at p. 94 (dis. opn. of Kennard, J.).) Embracing that view in this case, the majority invalidates the warrantless search of the apartment occupied by defendants Sanders and McDaniel because at the time of the search the officers did not know that McDaniel was on parole and therefore subject to a parole condition that he submit to warrantless searches. (Maj. opn., ante, at p. 335.) Left open by the majority here is the continuing vitality of the majority opinion in Tyrell J., which upheld an officer‘s warrantless search of a minor based upon the minor‘s probation search condition of which the officer conducting the search was unaware.
I would draw no distinction between the warrantless search of an adult parolee and the warrantless search of a juvenile probationer. As to each, I
II
I have an additional observation about the majority‘s analysis. As I noted at the outset, the purpose of the Fourth Amendment is to safeguard the right to be free from unreasonable searches and seizures. (See Tyrell J., supra, 8 Cal.4th at p. 98 (dis. opn. of Kennard, J.).) Throughout the opinion, the majority in this case refers to the exclusionary rule‘s goal of deterring unlawful police conduct as supporting its holding that the search here cannot be justified by a parole search condition of which the searching officers were ignorant. But that goal is not relevant in determining whether a particular search or seizure violates the
CONCLUSION
For the reasons given, I join the majority in affirming the Court of Appeal‘s judgment invalidating the search of the apartment occupied by defendants Sanders and McDaniel.
BROWN, J.—I fully concur in the majority‘s determination that as to both defendants the search of their residence cannot be justified by a parole search condition of which the officers were ignorant at the time. I write separately because I question the majority‘s references to—and ostensible reliance on—the deterrent purpose of the exclusionary rule to support its analysis of the scope of
“The
A review of United States Supreme Court decisions discussing the purpose of the exclusionary rule confirms this premise. In each case, the court was not determining if the defendant had suffered a constitutional violation but whether—given a violation—illegally obtained evidence could nevertheless be admitted, i.e., whether under the circumstances exclusion would advance the goal of deterring future police misconduct. For example, in United States v. Leon, supra, 468 U.S. 897, the court considered whether the deterrent effect of the exclusionary rule justified extending its scope to evidence seized pursuant to a facially valid warrant later found unsupported by probable cause. (See id. at pp. 908–912, 918–919.) In United States v. Calandra (1974) 414 U.S. 338 [38 L.Ed.2d 561, 94 S.Ct. 613], the question was whether the exclusionary rule should apply to grand jury proceedings. Similarly, in United States v. Janis (1976) 428 U.S. 433 [49 L.Ed.2d 1046, 96 S.Ct. 3021], the court considered its application to federal civil proceedings where evidence had been illegally seized by state officials.1
Until In re Tyrell J., supra, 8 Cal.4th 68, and People v. Robles (2000) 23 Cal.4th 789 [97 Cal.Rptr.2d 914, 3 P.3d 311], this court‘s search and seizure jurisprudence was generally consistent with the United States Supreme Court‘s view that the purpose of the exclusionary rule was relevant to the scope of the remedy, not the contours of the constitutional right itself.2 Both of these decisions concerned the legality of the officers’ conduct, not the appropriateness of excluding the evidence. In Tyrell J., however, the court‘s analysis for the first time—perhaps to shore up a constitutionally suspect result—included reference to the “primary purpose of the
Now, once again, the majority embraces the same misdirected reasoning. Error, however, does not improve with repetition. The third time is not the charm. The deterrent purpose of the exclusionary rule is not a consideration in assessing the totality of the circumstances affecting the reasonableness of a search. While conflating
The precise question here is whether police officers violated the
I concur in the majority‘s decision that the search infringed upon defendant Sanders‘s constitutional right to be free from unreasonable searches and seizures. ” ‘[E]xamining the totality of the circumstances’ ” (Knights, supra, 534 U.S. at p. 118), however, I conclude otherwise with respect to defendant McDaniel. Even though the officers did not know McDaniel was a parolee when they arrived at the apartment and conducted the challenged search, that circumstance did not meaningfully alter or increase McDaniel‘s legitimate expectation of privacy as a parolee in that situation. I therefore would affirm McDaniel‘s conviction.
I.
The
The rules and regulations governing the California parole system authorize any law enforcement officer to search a parolee and his or her residence at any time without a warrant. (
This case requires us to evaluate the reasonableness of a warrantless search of the home of a parolee who was subject to a validly imposed search term. “Pursuant to
In Knights, supra, 534 U.S. 112, the United States Supreme Court reiterated the now familiar principle that “[t]he touchstone of the
Here, the factual circumstances surrounding the challenged search are undisputed. Defendant McDaniel was a parolee. He was subject to a lawfully imposed parole search term that put him on notice that any law enforcement officer might search his person and his residence at any time without a warrant. While in their apartment, defendants McDaniel and Sanders engaged in a loud fight that led neighbors to call the police. When police officers arrived and knocked on the door, someone deadbolted the door, refusing them entry. Eventually Sanders opened the door and allowed the officers inside. At that point, the officers saw McDaniel hide something metallic behind a couch cushion. The officers also observed that Sanders appeared to have been in a physical altercation, with a fresh abrasion on her face. Sanders and McDaniel soon became belligerent and combative with the officers. McDaniel demanded that they leave the apartment, even though his parolee status entitled
Defendants do not challenge the validity of the officers’ entry into the apartment, but argue it was unlawful for the officers to search the apartment after handcuffing them. The majority agrees with defendants. Assuming the officers’ protective sweep was, as the Court of Appeal found, unlawful under Maryland v. Buie (1990) 494 U.S. 325 [108 L.Ed.2d 276, 110 S.Ct. 1093],1 the majority concludes it was not justified as a parole search because the officers did not know when they made the sweep that McDaniel was on parole. I disagree. Given the totality of the circumstances surrounding the challenged search, I find it did not violate the parolee‘s
Following Knights‘s totality-of-the-circumstances analysis, I first examine the degree to which the search intruded on the parolee‘s reasonable expectation of privacy. On this score, it is settled that an individual‘s ” ‘capacity to claim the protection of the
Here, McDaniel was subject to a lawfully imposed search term that expressly applied both to his person and to his residence. There appears no reason to doubt that McDaniel was unambiguously informed of this term. The existence of this search term is, as the United States Supreme Court puts it, a “salient circumstance” in the analysis. (Knights, supra, 534 U.S. at p. 118 [describing a probation search condition as a “salient circumstance“].) But whatever subjective expectation of privacy McDaniel may have had with
Knights next calls for assessing the degree to which a warrantless search of a parolee is ” ‘needed for the promotion of legitimate governmental interests.’ ” (Knights, supra, 534 U.S. at p. 119.) Plainly, the governmental interests at stake here are legitimate and well established. “As a convicted felon still subject to the Department of Corrections, a parolee has conditional freedom—granted for the specific purpose of monitoring his transition from inmate to free citizen. The state has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public, and the importance of the latter interest justifies the imposition of a warrantless search condition.” (Reyes, supra, 19 Cal.4th at p. 752.) The state‘s requirement of search terms for parolees “is triggered by [the parolee‘s] own conduct. The existence of this triggering event—the crime which results in conviction . . . —creates the compelling need for government intervention and diminishes any reasonable expectation of privacy.” (Ibid.)
The high court similarly recognizes that a state‘s “interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen.” (Knights, supra, 534 U.S. at p. 121, italics added.) A parolee such as McDaniel, however, presents a much more serious risk to society than a probationer, in that a parolee is not placed on probation but is sent to prison, either because of the seriousness of his or her crimes or because of criminal recidivism that warrants a state prison sentence. A fortiori, a state‘s interest in protecting the public is even greater in the case of parolees, who more so than probationers have demonstrated a “proclivity for anti-social criminal, and often violent, conduct” and an inability “to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint.” (Hudson v. Palmer (1984) 468 U.S. 517, 526 [82 L.Ed.2d 393, 104 S.Ct. 3194] [describing prisoners].)
Relying on New Jersey v. T.L.O. (1985) 469 U.S. 325, 337–338 [83 L.Ed.2d 720, 105 S.Ct. 733], and other high court authority, Reyes observed there are two additional factors relevant to determining whether a challenged intrusion is justified: the necessity for the intrusion, and the procedure used in conducting the search. (Reyes, supra, 19 Cal.4th at p. 751.) In our case, both of these factors support the reasonableness of the search as to the parolee. As noted, in this case the police officers did not decide randomly or arbitrarily to investigate an individual and search his house without justification, hoping to find evidence of criminal activity. Rather, the parolee‘s own conduct—
II.
Because our decisions and those of the high court uniformly instruct courts to examine the totality of the circumstances when evaluating the reasonableness of a warrantless search, it is wrong as a matter of law for the majority to regard only one factor as controlling, i.e., the searching officers’ lack of knowledge that McDaniel was a parolee. (See Ohio v. Robinette (1996) 519 U.S. 33, 39 [136 L.Ed.2d 347, 117 S.Ct. 417] [“we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry“].)
While lack of knowledge certainly is significant, the search here was reasonable in light of all the following circumstances: (1) when the officers conducted the search, McDaniel was subject to a parole search term that provided legal authority and a valid justification for the search; (2) McDaniel‘s expectation of privacy in his home was greatly reduced due to his parolee status and parole search term; (3) the officers did not go to defendants’ apartment arbitrarily or capriciously or for purposes of harassing the occupants; rather, defendants’ engagement in a loud and apparently physical fight, their belligerence, and McDaniel‘s suspicious hiding of a metallic object, prompted the officers’ involvement and actions; (4) the officers acted with what they believed was proper justification in making the protective sweep; (5) although, given their grasp of the situation, the officers apparently misjudged the propriety of a protective sweep, that sweep was in fact not intrusive of McDaniel‘s privacy expectations, because his parole terms expressly authorized it, and he could reasonably have expected it, given the circumstances that brought the officers to his door; and (6) the government‘s
The majority properly acknowledges that a search‘s validity does not turn on the individual officers’ actual motivations. (Maj. opn., ante, at p. 334.) But by evaluating the search‘s reasonableness with reference to only those “circumstances known to the officer when the search is conducted” (ibid., italics added), the majority fails to ” ‘examin[e] the totality of the circumstances’ ” (Knights, supra, 534 U.S. at p. 118). In so doing, the majority effectively rejects the high court‘s determination that a lawfully imposed search term “significantly diminish[es]” one‘s “reasonable expectation of privacy” (id. at p. 120) and is “a salient circumstance” in the analysis (id. at p. 118).
Moreover, the majority is demonstrably wrong in concluding that actual circumstances may never validate a search where the facts known or otherwise available to the searching officer would not have justified a person of reasonable caution in the belief that a search was appropriate. In a consensual search, for instance, it generally is accepted that the facts available to the officer when conducting a search must cause the officer to have a reasonable belief that a third party who consents has authority over the premises to be searched. But if the facts do not give rise to such reasonable belief, then the officer‘s “warrantless entry without further inquiry is unlawful unless authority actually exists.” (Illinois v. Rodriguez (1990) 497 U.S. 177, 188–189 [111 L.Ed.2d 148, 110 S.Ct. 2793], italics added.) Hence, by excluding consideration of the circumstance that a lawful basis for the search (i.e., the parole search term) existed at the time of the officers’ protective sweep, the majority disregards this established
The majority‘s rule leads to absurd consequences, as the following two hypothetical scenarios illustrate.
First, let us assume facts very similar to those here. Police officers respond to a report of a loud fight between X and Y at their apartment. The officers’ arrival stops the fight, but both X and Y begin to act belligerently toward the officers, who handcuff them. Rather than conducting a protective sweep, the officers immediately call the police department. They are told, erroneously, that neither disputant is a probationer, but that Y is a parolee. Relying on this incorrect information, the officers search the apartment unit and find illegal drugs, which they seize, in Y‘s open closet. A day later, the officers discover that, in fact, Y‘s parole had long since expired, but he currently is on probation subject to a search condition. Under these circumstances, the
Second, let us assume that police officers respond to a report of a loud fight between X and Y at a house Y owns. Again, the officers’ arrival stops the fight, but both X and Y begin to act belligerently toward the officers, who handcuff them. The officers immediately call the police department and are told, again erroneously, that neither disputant is a probationer, but that Y is a parolee. Relying on this incorrect information, the officers search the house and find firearms, which they seize, in one of the bedrooms. After arresting Y, the officers discover that Y‘s parole had long since expired, but that he in fact had escaped from prison after a later conviction. As in the previous hypothetical, the officers’ good faith reliance on the erroneous parole status information does not validate the search of the bedroom. (People v. Willis, supra, 28 Cal.4th 22.) But even though Y had virtually no reasonable expectation of privacy as a prison escapee, the majority‘s analysis would deem the search unreasonable within the meaning of the
As indicated, Knights, supra, 534 U.S. 112, and Illinois v. Rodriguez, supra, 497 U.S. 177, both support my position that courts may properly consider facts not available to an officer in evaluating the reasonableness of a warrantless search. Apart from these two decisions, however, the other authorities the majority cites largely are inapposite (see maj. opn., ante, decisions cited at p. 334), for none considered the reasonableness of a search pertaining to a defendant whose expectation of privacy had been drastically reduced due to a lawfully imposed search term or search condition.
Moreover, in proposing to find constitutional violations as to both defendants here, the majority unduly emphasizes the fact that a residence is involved and fails to heed the controlling principle that “the
Finally, relying on People v. Robles, supra, 23 Cal.4th 789, the majority erroneously concludes that suppressing the evidence here as to the parolee, in addition to the nonparolee cohabitant, is necessary to deter police misconduct. (See maj. opn., ante, at p. 335.) Applying the suppression sanction in the nonparolee‘s case is appropriate, of course, because her
III.
In sum, McDaniel‘s parolee status and the search term to which he was subject severely diminished any reasonable expectation of privacy McDaniel may have had in his home and provided legal authority for the challenged search. Although the police officers initially knew nothing of McDaniel‘s parolee status, their sweep search was in actuality no more intrusive of McDaniel‘s privacy than what his parole terms expressly authorized. Finally,
Given the totality of these circumstances, I find the challenged search did not violate McDaniel‘s
I would affirm defendant McDaniel‘s conviction.
Respondent‘s petition for a rehearing was denied October 22, 2003, and the opinion was modified to read as presented above. Brown, J., did not participate therein. Baxter, J., was of the opinion that the petition should be granted.