Stanford Law School - Robert Crown Law Library

Filed 7/17/06 (reposted same date to correct counsel listing)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S125314
v.
Ct.App. 4/2 E032142
ADRIAN EUGENE MOORE,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. FSB022611

In 2003, we held that police officers must know of a defendant’s parole
search condition to justify a warrantless search under that exception. (People v.
Sanders (2003) 31 Cal.4th 318, 335 (Sanders).) In this case, because the hearing
on the defendant’s suppression motion (Pen. Code,1 § 1538.5) occurred before we
decided Sanders, the trial court concluded that the search was valid based only on
evidence that the defendant was subject to a parole search condition. (See In re
Tyrell J. (1994) 8 Cal.4th 68 (Tyrell J.); People v. Reyes (1998) 19 Cal.4th 743.)
The parties did not present evidence whether the officers knew of the defendant’s
search condition at the time of the search.

1
All further statutory references are to the Penal Code unless otherwise
noted.
1

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The question before us is the appropriate remedy in light of Sanders’s
holding. The Court of Appeal majority here simply reversed the judgment
outright, rather than remand for a new suppression hearing. For reasons that
follow, we reverse the Court of Appeal’s judgment and remand the matter for
further proceedings, including to determine whether the officers knew of the
search condition.
FACTUAL AND PROCEDURAL BACKGROUND
In outlining the relevant facts, we focus on the April 2000 suppression
hearing proceedings, including evidence of the preliminary hearing transcript
which the trial court considered. (§ 1538.5, subd. (i) [defendant may challenge
search “on the basis of the evidence presented at a special hearing”]; Lorenzana v.
Superior Court (1973) 9 Cal.3d 626, 640 (Lorenzana) [review of ruling on
suppression motion limited to record of suppression hearings].)
The preliminary hearing transcript reveals only that on May 5, 1999, San
Bernardino City Police Officer Brennan encountered defendant Adrian Eugene
Moore on the street. An ambulance later transported defendant to the hospital.
After defendant was sedated, doctors removed several objects from his mouth,
including an off-white rock covered in plastic. The parties stipulated that this
substance tested positive for cocaine.
At the suppression hearing, the prosecution also presented a certified copy
of the parole terms for defendant, which included a search term that defendant
“will agree to search or seizure by a parole officer or other peace officer at any
time of the day or night with or without a search warrant, with or without probable
cause.” Based on the existence of this valid search condition, the trial court denied
the suppression motion. The parties presented no evidence regarding whether the
officers knew about defendant’s search condition, although the prosecution’s
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opposition to the suppression motion and the police report suggested at least one
of the officers had such knowledge.
The jury found defendant guilty of the charged offense. (Health & Saf.
Code, § 11350, subd. (a) [possession of a controlled substance].) On July 26,
2002, after finding defendant’s two prior conviction allegations to be true, the trial
court sentenced him to 25 years to life. Defendant appealed. During the pendency
of defendant’s appeal, we decided Sanders, supra, 31 Cal.4th 318, which held that
officers must know of a defendant’s parole search condition to justify a
warrantless search under that exception.
In a divided opinion, the Court of Appeal reversed. Applying Sanders, the
Court of Appeal majority found the prosecution did not present any evidence that
police officers knew defendant was on parole when they searched him. It pointed
out that at the preliminary hearing, the only witness, Officer Brennan, testified
only that he had an exchange with defendant, who was then taken to the
emergency room where doctors removed a rock of cocaine from defendant’s
mouth. Because Officer Brennan’s preliminary hearing testimony did not describe
details of either the initial encounter between police officers and defendant, or the
subsequent events at the hospital, the Court of Appeal majority could not
determine from the record whether the search of defendant’s mouth was conducted
pursuant to a lawful arrest. Thus, the majority concluded: “On the basis of the
only evidence the prosecution presented, the search was unreasonable under the
Fourth Amendment and we therefore must reverse the judgment.”
Presiding Justice Ramirez dissented, questioning whether there was error
under Sanders in the first place. In any event, he believed that remand, not
outright reversal, was appropriate. He emphasized that “at the time of the hearing,
both sides believed that the existence of the parole search condition alone justified
the search of [defendant]. It was not until more than three years later that Sanders
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was decided.” The dissenting justice pointed out that even defendant believed
remand—to determine whether officers had prior knowledge of defendant’s parole
status—was fair to both parties. In his supplemental reply brief in the Court of
Appeal, defendant had proposed that “in light of the recent decision in Sanders,
the appropriate remedy at this time would be to remand the matter for a new
hearing in the trial court. . . . It would be unfair to both the People and to
[defendant] for the [Court of Appeal] to determine the constitutionality of the
search based on a record which was not created for this purpose.”
We granted the People’s petition for review to decide whether the matter
should be remanded for a new suppression hearing.
DISCUSSION
In Sanders, we held 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.” (Sanders, supra, 31 Cal.4th at p. 335.)
Prohibiting this type of unreasonable search, we concluded, serves the purpose of
the exclusionary rule, which is to deter future police misconduct. (Id. at pp. 324,
334.)
In moving away from our decision in Tyrell J., supra, 8 Cal.4th 68, which
upheld the warrantless search of a juvenile probationer by officers unaware of his
probation search condition, Sanders made clear that although an adult parolee has
a diminished expectation of privacy, a warrantless search of the parolee by officers
unaware of his parole search condition “cannot be justified as a parole search,
because the officer is not acting pursuant to the conditions of parole.” (Sanders,
supra, 31 Cal.4th at p. 333; see also People v. Robles (2000) 23 Cal.4th 789
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[invalid warrantless search where officers entered defendant’s garage without
knowledge of brother’s search condition].)2 Arguably, Sanders constituted a
major change in our search and seizure law, requiring some appellate courts to
reconsider pending causes in light of our new holding. (See, e.g., People v.
Lazalde (2004) 120 Cal.App.4th 858 (Lazalde); People v. Hester (2004) 119
Cal.App.4th 376 (Hester); People v. Bowers (2004) 117 Cal.App.4th 1261
(Bowers); see also People v. Jordan (2004) 121 Cal.App.4th 544 (Jordan); People
v. Hoeninghaus (2004) 120 Cal.App.4th 1180 (Hoeninghaus).)
In this case, the People do not dispute that Sanders is controlling or that the
trial court’s ruling on defendant’s suppression motion was incorrect under that
case. The only issue is the appropriate remedy. Did the Court of Appeal majority
properly reverse the judgment outright, or should it have remanded the cause to
allow the trial court to conduct a new suppression hearing? For reasons that
follow, we conclude the Court of Appeal should have remanded.
In fashioning an appropriate disposition in a case, an appellate court “may
reverse, affirm, or modify a judgment or order appealed from, or reduce the degree
of the offense or attempted offense or the punishment imposed, and may set aside,
affirm, or modify any or all of the proceedings subsequent to, or dependent upon,
such judgment or order, and may, if proper, order a new trial and may, if proper,
remand the cause to the trial court for such further proceedings as may be just
under the circumstances.” (§ 1260; see also People v. Minor (1980) 104
Cal.App.3d 194, 199 (Minor).) If the court reverses a judgment without further

2
The issue whether Tyrell J., supra, 8 Cal.4th 68, remains viable in light of
subsequent developments, including our own decision in Sanders, supra, 31
Cal.4th 318, is before us in In re Jaime P., review granted August 31, 2005,
S135263.
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directions, that unqualified reversal is an order for a new trial, placing the parties
in the same position as if the cause had never been tried. (§ 1262; People v.
Barragan (2004) 32 Cal.4th 236, 247.)
Reversing the judgment outright, the Court of Appeal could not determine
from the record “whether the search of defendant’s mouth was conducted pursuant
to a lawful arrest,” and concluded the search was unreasonable based on “the only
evidence the prosecution presented.” Because the suppression hearing occurred
before we decided Sanders, supra, 31 Cal.4th 318, the trial court and the parties
acted with the understanding that they were not required to present evidence
whether the officers knew of defendant’s parole search condition. In that
situation, where the parties understandably did not present arguments and
evidence relating to search issues, a reviewing court should remand to the trial
court to consider any alternate grounds for or against suppression. (See People v.
Brooks (1980) 26 Cal.3d 471, 483 (Brooks) [with bifurcated suppression
proceeding, on reversal reviewing court should remand for disposition of alternate
grounds for suppression].)
Indeed, several Courts of Appeal applying Sanders remanded the cause,
rather than reversed the judgment outright, when the record was insufficient to
determine if the search was “otherwise unlawful” (Sanders, supra, 31 Cal.4th at p.
335). (Lazalde, supra, 120 Cal.App.4th at pp. 865-866; Bowers, supra, 117
Cal.App.4th at pp. 1272-1273.) For instance, in Lazalde, after we directed it to
reconsider the cause in light of Sanders, the Court of Appeal concluded that
because the searching officer was unaware of the defendant’s probation search
condition when he searched the motel room, the search was unjustified under that
exception. (Lazalde, supra, 120 Cal.App.4th at p. 865.) However, because the
prosecution relied only on that search condition and the defendant was
“foreclosed” from challenging the search on other grounds, the Court of Appeal
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“lack[ed] an adequate evidentiary record on which to decide the suppression
motion on any theory other than the probation search justification advanced
below.” (Ibid.) Out of fairness to the defendant, the Court of Appeal remanded
the matter to the trial court to conduct a new hearing on his suppression motion.
(Id. at pp. 865-866.)
Similarly, the Bowers Court of Appeal, relying on Sanders, held that the
defendant’s probationary status did not justify the warrantless search because the
police officer conducting the search was unaware of the defendant’s probation
search condition at the time. (Bowers, supra, 117 Cal.App.4th at pp. 1270-1271.)
However, the Court of Appeal concluded that remand was appropriate to
determine whether the search was “otherwise unlawful” under Sanders, which
issue was not fully litigated below. (Id. at p. 1271.) The Court of Appeal found
that based on the record, it was “impossible” to determine if the defendant’s initial
contact with officers constituted a detention or consensual encounter. (Id. at p.
1272.) The Court of Appeal concluded that the “evidence is simply inadequate to
enable us to determine, based on the state of the law after Sanders, whether the
trial court’s ruling is sustainable on the rationale that the search was lawful.” (Id.
at p. 1271.) It directed the trial court to hear evidence and make factual
determinations at a new suppression hearing, and to ultimately determine whether
to deny the suppression motion and reinstate the judgment or grant the motion and
conduct further appropriate proceedings. (Id. at p. 1273; see also Jordan, supra,
121 Cal.App.4th at p. 565 [superior court to determine “whether the record should
be reopened on remand to allow additional evidence to be presented”];
Hoeninghaus, supra, 120 Cal.App.4th at p. 1198 [where trial court addressed only
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search condition in suppression motion, remand proper to determine prosecution’s
alternative justification for warrantless search].)3
Moreover, section 1538.5, which “provides a comprehensive and exclusive
procedure for the final determination of search and seizure issues prior to trial”
(Brooks, supra, 26 Cal.3d at p. 475), does not preclude remand in this case.
“Section 1538.5 imposes certain limits on the relitigation of suppression issues.
However, no case has decided the extent to which section 1538.5 precludes such
relitigation after an appellate reversal. [Citations.]” (People v. Boyer (2006) 38
Cal.4th 412, 443, fn. 18; see People v. Mattson (1990) 50 Cal.3d 826, 850, fn. 10
(Mattson) [“[p]rior to the adoption of section 1538.5 we did not question the right
of the prosecution to reopen the question of admissibility of evidence challenged
on the basis of an allegedly unlawful search and seizure”]; but see id. at p. 883
(conc. opn. of Kennard, J.) [§ 1538.5 does not change rule that prosecution may
introduce new evidence to relitigate suppression motion].) We have recognized
that a party’s right to have “objections to the evidence fully aired” is consonant
with section 1538.5’s “statutory goal of achieving pretrial determination of search
and seizure issues.” (Brooks, supra, 26 Cal.3d at p. 482 [court must balance
§ 1538.5’s policy “of conserving judicial resources and efficiently resolving all
pretrial matters in one hearing” against a defendant’s right to litigate grounds for
suppression].)

3
Although one Court of Appeal applying Sanders reversed outright rather
than remand for a new suppression hearing, the record in that case was adequate to
determine if the search was “otherwise unlawful.” (Hester, supra, 119
Cal.App.4th at pp. 392, 398 [officers unaware car’s occupants were on probation;
“[m]ere membership in a criminal street gang, without additional facts supporting
an inference of criminal activity, does not permit a detention”].)
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Although we have stated that reopening a suppression motion on the basis
of new legal theories would defeat section 1538.5’s purpose “to avoid the
continued relitigation of the question of the admissibility of evidence” (Lorenzana,
supra, 9 Cal.3d at p. 640), our concern in Lorenzana did not address the situation
here, where during the appeal a change in the law necessarily prevented parties
from presenting all pertinent facts and theories at the suppression hearing. Here,
the record reveals the trial court denied defendant’s suppression motion based on
his parole search condition alone. Based on the trial court’s ruling, the
prosecution did not present evidence of the officers’ knowledge regarding
defendant’s search condition, although the prosecution’s opposition to the motion
and the police report suggested at least one of the officers knew about the
condition. (See ante, at pp. 2-3.) In that situation, a reviewing court should
remand to the trial court for disposition of any alternate grounds for or against
suppression. (See Brooks, supra, 26 Cal.3d at p. 483.) Based on the foregoing,
we conclude that section 1538.5 does not bar remand in this case.
Moreover, in the interest of efficiency and fairness, we conclude that
remanding the cause to give the People an opportunity to present evidence
justifying the search under Sanders, supra, 31 Cal.4th 318, is more appropriate
than reversing the judgment outright. (See § 1260 [reviewing court “may, if
proper, remand the cause to the trial court for such further proceedings as may be
just under the circumstances”].) Section 1260 evinces a “legislative concern with
unnecessary retrials where something less drastic will do.” (People v. Vanbuskirk
(1976) 61 Cal.App.3d 395, 405 (Vanbuskirk) [remand to take evidence of fairness
in pretrial identification procedures “may avert the need for a retrial”].) “[W]hen
the validity of a conviction depends solely on an unresolved or improperly
resolved factual issue which is distinct from issues submitted to the jury, such an
issue can be determined at a separate post-judgment hearing and if at such hearing
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the issue is resolved in favor of the People, the conviction may stand.” (Ibid.) In
other words, “when the trial is free of prejudicial error and the appeal prevails on a
challenge which establishes only the existence of an unresolved question which
may or may not vitiate the judgment, appellate courts have, in several instances,
directed the trial court to take evidence, resolve the pending question, and take
further proceedings giving effect to the determination thus made.” (Minor, supra,
104 Cal.App.3d at p. 199.)
Because the exclusionary rule’s purpose in suppressing evidence of
unreasonable searches is to deter police misconduct (Sanders, supra, 31 Cal.4th at
p. 324; see ante, at p. 4), the issues relating to a suppression motion, which do not
directly implicate the guilt determination process, are distinct from issues the jury
must consider. (See Vanbuskirk, supra, 61 Cal.App.3d at p. 405; Minor, supra,
104 Cal.App.3d at p. 199.) Remand for a new suppression hearing is appropriate
and necessary here because our 2003 decision in Sanders significantly changed the
law, requiring the lower court to consider its impact on defendant’s suppression
motion. (See People v. Collins (1986) 42 Cal.3d 378, 393 [declining to adopt a
“rule of reversal per se” based on a prior decision’s impact and cautioning against
“unwarranted retrials in cases in which there was actually no prejudice”]; see also
People v. Welch (1993) 5 Cal.4th 228, 238 [finding remand proper because
“defendant should not be penalized for failing to object where existing law
overwhelmingly said no objection was required”].)
Defendant, however, points out that he made several claims challenging the
warrantless search in his suppression motion. Because the prosecution chose to
argue only the parole search justification below, defendant maintains it was not he
“who limited the scope of the suppression hearing, it was the People, and it is the
People who must bear the consequences of a woefully deficient presentation.” We
disagree. The trial court denied defendant’s suppression motion based on
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defendant’s parole search condition, rendering any additional argument from the
prosecution unnecessary. (See Brooks, supra, 26 Cal.3d at p. 482 [trial court has
discretion to limit presentation of evidence to avoid a “tedious and superfluous
proceeding”].) In that regard, we reject defendant’s speculative claim that at the
time of the April 2000 suppression hearing the prosecution should have
anticipated our 2003 Sanders decision and presented evidence of the officers’
knowledge.
Arguing that remanding for a new suppression hearing would violate his
right to due process, defendant asserts that because the search occurred in 1999, it
would be difficult to locate witnesses who would likely remember events relating
to the search. We have already rejected such a claim. “We are not persuaded that
relitigation should have been denied because of delay. Delays that are the product
of the normal appellate process do not implicate due process concerns. The
difficulty in locating witnesses, and the possibility of fading recollection, are no
different with respect to the hearing on the admissibility of [evidence] than with
respect to the trial itself.” (Mattson, supra, 50 Cal.3d at p. 852.)
In the event of remand, both parties agree that a full hearing on the motion
to suppress, rather than a limited hearing on whether the officers were aware of the
parole search condition at the time of the warrantless search, is required. Because
the parties focused solely on the existence of defendant’s parole search condition,
which the trial court relied on to justify the warrantless search and to deny
defendant’s motion, we conclude that a new suppression hearing to decide any
alternate grounds contained in the original suppression motion and the opposition
thereto is proper. (See Brooks, supra, 26 Cal.3d at p. 483; Hoeninghaus, supra,
120 Cal.App.4th at p. 1198; Lazalde, supra, 120 Cal.App.4th at pp. 865-866; see
also Lorenzana, supra, 9 Cal.3d at p. 640 [party may not raise for first time on
appeal a new theory to support or contest admissibility of evidence].)
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DISPOSITION
We reverse the Court of Appeal’s judgment and remand for further
proceedings consistent with our opinion.
CHIN, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Moore
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 4/23/04 – 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S125314
Date Filed: July 17, 2006
__________________________________________________________________________________

Court:

Superior
County: San Bernardino
Judge: Patrick J. Morris, Brian S. McCarville, Kenneth Barr and Linda M. Wilde

__________________________________________________________________________________

Attorneys for Appellant:

Sharon M. Jones, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Robert M. Foster, William M. Wood, Frederick R. Millar, Jr., Steven T.
Oetting, Bradley A. Weinreb and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and
Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Sharon M. Jones
P. O. Box 1663
Ventura, CA 93002
(805) 653-0195

Charles S. Ragland
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2203

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Opinion Information

Date:	Docket Number:
Mon, 07/17/2006	S125314A

Disposition
Jul 17 2006	Opinion: Reversed

Dockets
Jun 2 2004	Petition for review filed   (in San Diego) by Respondent People
Jun 4 2004	Record requested
Jun 8 2004	Received Court of Appeal record   one doghouse/one box
Jul 14 2004	Petition for review granted (criminal case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Aug 5 2004	Counsel appointment order filed   Sharon M. Jones is appointed to represent appellant. Appellant's brief on the merits must be served and filed on or before 30 days from the date respondent's opening brief on the merits is filed.
Aug 6 2004	Request for extension of time filed   respondent requesting to Sept. 12, 2004 to file opening brief on the merits. (recv'd in San Diego)
Aug 13 2004	Extension of time granted   to and including Sept. 13, 2004 for respondent to file the opening brief on the merits.
Sep 9 2004	Request for extension of time filed   In San Diego by counsel for respondent The People, requesting a a 14-day extension to including September 27, 2004 to file respondent's opening brief on the merits.
Sep 16 2004	Opening brief on the merits filed   In San Diego by Respondent {The People}.
Sep 16 2004	Extension of time granted   To September 27, 2004 to file respondent's opening brief on the merits.
Oct 7 2004	Request for extension of time filed   by appellant, asking for a 30-day extension to and including November 15, 2004 to file appellant's answer brief on the merits.
Oct 12 2004	Extension of time granted   To November 15, 2004 to file Appellant's Answer Brief on the Merits.
Nov 16 2004	Answer brief on the merits filed   By counsel for appellant {Adrian Eugene Moore} / CRC 40(K).
Dec 6 2004	Reply brief filed (case fully briefed)   In San Diego by respondent {The People}.
Jan 19 2005	Compensation awarded counsel   Atty Jones
May 2 2006	Case ordered on calendar   June 8, 2006, at 9:00 a.m., in Los Angeles
Jun 8 2006	Cause argued and submitted
Jul 17 2006	Opinion filed: Judgment reversed   and remand for further proeeding consistent with our opinion. Opinion by: Chin, J. -----joined by: George, C.J. Kennard, Baxter, Werdegar, Moreno, Corrigan, J.J.
Aug 25 2006	Remittitur issued (criminal case)
Sep 1 2006	Received:   Receipt for remittitur from the CA4 Div. 2
Oct 3 2006	Returned record   4 Volumes to CA4 Div. 2
Oct 11 2006	Returned record   10 Confidential Transcript Folders
Nov 15 2006	Compensation awarded counsel   Atty Jones
Feb 27 2007	Received Court of Appeal record   one full box

Briefs
Sep 16 2004	Opening brief on the merits filed
Nov 16 2004	Answer brief on the merits filed
Dec 6 2004	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website