IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S094088
v.
) Ct.App.
5
F033862
ARLENE DENA SANDERS et al.,
Kern
County
Defendants and Appellants.
Super. Ct. No. 77313
In In re Martinez (1970) 1 Cal.3d 641 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 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, 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.
1
FACTS
Defendants Arlene Sanders and Kenton McDaniel were charged by
information with possession for sale of cocaine base in violation of Health and
Safety Code section 11351.5. The information further alleged that McDaniel had
suffered a prior conviction of the same offense. Defendants moved to suppress
evidence, and a hearing was conducted at which the following evidence was
presented.
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.
Officer Davis then conducted a “protective sweep” of the apartment “to
make sure there [was] no one else in the residence that could endanger [the
officers’] safety.” In one of the bedrooms, the closet door was open and Officer
Davis saw a pair of work boots. One of the boots “had a bunch of plastic bags
stuffed into it and it had little white chunks of cocaine base knotted into the
corners.” After making this discovery and completing the sweep of the apartment,
2
Officer Davis contacted the police department and learned that McDaniel was on
parole and “subject to search terms.” Officer Davis requested assistance,
including a police dog, and conducted a parole search of the apartment. He seized
the baggies he previously had seen in the work boot, as well as other items.
Officer Thatcher recovered a pair of scissors from between the couch cushions.
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
Health and Safety Code section 11350 and was sentenced to a term of 16 months
in prison. McDaniel pled guilty as charged to possession of cocaine base in
violation of Health and Safety Code section 11351.5. The alleged prior conviction
was stricken and McDaniel was sentenced to a term of five years in prison.
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
1
Shortly before oral argument, the Attorney General filed a request for
judicial notice of copies of the complaint, the information, and the abstract of
judgment in People v. Kenton Michael McDaniel, Kern County Superior Court
No. SC69228A. Defendant Sanders objects on the ground that these documents
were not before the trial court. We agree with defendant Sanders and deny the
request for judicial notice. (People v. Amador (2000) 24 Cal.4th 387, 394.)
3
under the rule announced in Maryland v. Buie (1990) 494 U.S. 325, 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 was lawful because McDaniel was on parole, despite the fact that the
officers were unaware of McDaniel’s parole status when they conducted the
search.2
DISCUSSION
Exclusion of “relevant, but unlawfully obtained evidence” is permitted
under article I, section 28, subdivision (d) of the California Constitution “only if
exclusion is required by the United States Constitution.” (In re Lance W. (1985)
37 Cal.3d 873, 890.) “The exclusionary rule was adopted to effectuate the Fourth
Amendment right of all citizens ‘to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures . . . .’ ” (United States v.
Calandra (1974) 414 U.S. 338, 347.) “[T]he ‘prime purpose’ of the
[exclusionary] rule, if not the sole one, ‘is to deter future unlawful police conduct.’
[Citations.]” (United States v. Janis (1976) 428 U.S. 433, 446; Stone v. Powell
(1976) 428 U.S. 465, 479 [“ ‘[T]he exclusion of illegally seized evidence is simply
a prophylactic device intended generally to deter Fourth Amendment violations by
law enforcement officers.’ ”].)
“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
2
We express no view regarding the Court of Appeal’s ruling that the
“protective sweep” of the apartment violated the rule announced in Maryland v.
Buie, supra, 494 U.S. 325.
4
effectuate the guarantee of the Fourth Amendment against unreasonable searches
and seizures: ‘The rule is calculated to prevent, not to repair. Its purpose is to
deter – to compel respect for the constitutional guaranty in the only effectively
available way – by removing the incentive to disregard it.’ [Citations.] In sum,
the rule is a judicially created remedy designed to safeguard Fourth Amendment
rights generally through its deterrent effect, rather than a personal constitutional
right of the party aggrieved.” (United States v. Calandra, supra, 414 U.S. 338,
347-348, fn. omitted; United States v. Leon (1984) 468 U.S. 897, 906.)
“ ‘[P]hysical entry of the home is the chief evil against which the wording
of the Fourth Amendment is directed.’ ” (Payton v. New York (1980) 445 U.S.
573, 585 [100 S.Ct. 1371, 1379-1380, 63 L.Ed.2d 639].) “At the very core [of the
Fourth Amendment] stands the right of a man to retreat into his own home and
there be free from unreasonable governmental intrusion.” (Silverman v. United
States (1961) 365 U.S. 505, 511.)
Griffin v. Wisconsin (1987) 483 U.S. 868, upheld a warrantless search of
the residence of a probationer pursuant to a state regulation permitting any
probation officer “to search a probationer’s home without a warrant as long as his
supervisor approves and as long as there are ‘reasonable grounds’ to believe the
presence of contraband – including any item that the probationer cannot possess
under the probation conditions.” (Id. at pp. 870-871.) The high court began its
analysis by recognizing that “[a] probationer’s home, like anyone else’s, is
protected by the Fourth Amendment’s requirement that searches be ‘reasonable.’ ”
(Id. at p. 873.) But the usual requirement “that a search be undertaken only
pursuant to a warrant” was excused based upon the “special need” to supervise
probationers. (Ibid.) The court also recognized that probationers and parolees “do
not enjoy ‘the absolute liberty to which every citizen is entitled, but only . . .
conditional liberty properly dependent on observance of special [probation]
5
restrictions.’ [Citation.]” (Id. at p. 874.) The court concluded: “Supervision,
then, is a ‘special need’ of the State permitting a degree of impingement upon
privacy that would not be constitutional if applied to the public at large.” (Id. at p.
875.) The court was quick to add, however, that the “permissible degree [of
impingement upon privacy] is not unlimited.” (Ibid.)
United States v. Knights (2001) 534 U.S. 112 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’ 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] sense of a complete waiver of his Fourth amendment rights” because the
court concluded that the search “was reasonable under our general Fourth
Amendment approach of ‘examining the totality of the circumstances,’ [citation]
with the probation search condition being a salient circumstance.” (United States
v. Knights, supra, 534 U.S. 112, 118.) The court observed that “[i]nherent in the
very nature of probation is that probationers ‘do not enjoy “the absolute liberty to
which every citizen is entitled.” ’ [Citations.]” (Id. at p. 119.) The court
concluded that “[t]he probation condition thus significantly diminished Knights’
reasonable expectation of privacy” (id. at pp. 119-120, fn. omitted), but the court
did “not decide whether the probation condition so diminished, or completely
6
eliminated, Knights’ reasonable expectation of privacy (or constituted consent . . .)
that a search by a law enforcement officer without any individualized suspicion
would have satisfied the reasonableness requirement of the Fourth Amendment.”
(Id. at p. 120, fn. 6.)
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
7
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 juvenile
probationer subject to a valid search condition does not have a reasonable
expectation of privacy over his or her person or property.” (In re Tyrell J., supra,
8 Cal.4th 68, 86.) We observed that both adult and juvenile probationers “ ‘have a
reduced expectation of privacy, thereby rendering certain intrusions by
governmental authorities ‘reasonable’ which otherwise would be invalid under
traditional constitutional concepts, at least to the extent that such intrusions are
necessitated by legitimate governmental demands.” ’ [Citations.]” (Id. at p. 85.)
We relied upon the decisions in Hudson v. Palmer (1984) 468 U.S. 517, which
held that a prison inmate had no expectation of privacy in his or her prison cell,
and Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, which
upheld as constitutional federal regulations requiring the testing of the blood and
urine of railway workers involved in certain train accidents. Acknowledging that
Hudson and Skinner involved situations quite different from the circumstances
involved in Tyrell J., we stated: “Although the image of a train wreck in Skinner
. . . and the prison cell in Hudson . . . are perhaps extreme examples, the
controlling legal proposition in both cases is nevertheless apt. There, as here, the
circumstances surrounding the challenged search reveal that the person’s
8
expectation of privacy is not one society is prepared to recognize as reasonable
and legitimate.” (In re Tyrell J., supra, 8 Cal.4th 68, 86.)
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.)
Justice Kennard, joined by Justice Mosk, argued in her dissent that the
court’s basis for distinguishing our earlier decision in Martinez was flawed, noting
that when Martinez was decided “express search conditions were rarely used with
parole grants because, under the doctrine of ‘custodia legis,’ the status of parolee
was deemed sufficient in itself to justify excepting searches by parole authorities
from the Fourth Amendment’s warrant requirement. [Citations.] Under this view,
9
every grant of parole included an implied search condition, and an officer’s
knowledge of parole status was equivalent to knowledge of a parole search
condition.” (In re Tyrell J., supra, 8 Cal.4th 68, 94 (dis. opn. of Kennard, J.).)
The majority in Tyrell J. observed that its opinion was “consistent with the
primary purpose of the Fourth Amendment exclusionary rule,” which, as noted
above, “ ‘ “is to deter future unlawful police conduct and thereby effectuate the
guarantee of the Fourth Amendment against unreasonable searches and
seizures.” ’ [citations],” reasoning that because the officer did not know the minor
was subject to a search condition, he “took the chance that the search would be
deemed improper.” (In re Tyrell J., supra, 8 Cal.4th 68, 89.) The majority
concluded, therefore, that “our reluctance to adopt a strict ‘knowledge-first’ rule
for juvenile probation search conditions will not encourage police to engage in
warrantless searches.” (Ibid.)
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
10
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 credibility of Fourth Amendment protections.” (Fn. omitted.)];
Comment, Fourth Amendment Protection for Juvenile Probationers in California,
Slim or None?: In re Tyrell J. (1995) 22 Hastings Const. L.Q. 893, 895 [“The
decision in Tyrell is insupportable in fact and law.”]; Note, In re Tyrell J.:
California’s Application of Search and Seizure Limitations to Juvenile
Probationers, (1995) 21 J. Contemp. L. 307 [“[T]he Tyrell court misapplied
United States Supreme Court precedent and . . . . eroded the Fourth Amendment’s
protections as applied to California juveniles . . . .”]; Note, In re Tyrell J.:
Children and Their Reasonable Expectations of Privacy (1995) 25 Golden Gate
U.L.Rev. 391, 414, [“In In re Tyrell J., the California Supreme Court strayed from
the United States Supreme Court’s interpretation of the Fourth Amendment.”];
contra, Comment, The Fourth Amendment Rights of Probationers: What Remains
After Waiving Their Right to be Free from Unreasonable Searches and Seizures?
(1995) 35 Santa Clara L.Rev. 1237, 1266 [urging the United States Supreme Court
to adopt the holding in Tyrell J.].)3
3
One jurisdiction has followed our decision in Tyrell J., but that case
involved a condition of probation in which the defendant agreed to “waive ‘his
Fourth Amendment right against unreasonable searches and seizures’ for one
year.” (Anderson v. Commonwealth (1997) 25 Va. App. 565, 567 [490 S.E.2d
274].) No comparable issue of waiver is raised in the present case, because the
(Footnote continued on next page.)
11
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 purposes of probation . . . they
may legitimately challenge those searches that are not. Tyrell J., which focused
(Footnote continued from previous page.)
search condition at issue here was imposed as a condition of parole, which
defendant could not refuse. (See In re Tyrell J., supra, 8 Cal.4th 68, 81-83.)
12
specifically on the reasonableness of a probationer’s privacy expectations, does
not indicate otherwise.” (Id. at p. 799.)
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 Fourth Amendment’s guarantee against unreasonable searches
and seizures. [Citation.]” (Ibid.)
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
13
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 conceded in the Court of Appeal that the search was
unlawful as to Sanders and repeated that concession in his opening brief in this
court. The Attorney General recanted that concession, however, in response to the
amicus curiae brief of the California District Attorneys Association. The Attorney
General now argues that although the evidence was discovered during the invalid
protective sweep, “the evidence was later obtained independently during a valid
parole search, untainted by the protective sweep.”
The Attorney General may not assert this justification for the seizure of the
evidence for the first time before this court. (People v. Wash (1993) 6 Cal.4th
215, 244.) In a motion to suppress evidence, once the defendant has made a prima
facie showing of an unlawful search, the prosecution “has the burden of proving
some justification for the warrantless search or seizure, after which, defendants
can respond by pointing out any inadequacies in that justification. [Citation.]”
(People v. Williams (1999) 20 Cal.4th 119, 136.) “ ‘[T]he scope of issues upon
review must be limited to those raised during argument . . . . This is an elemental
matter of fairness in giving each of the parties an opportunity adequately to litigate
the facts and inferences relating to the adverse party’s contentions.’ [Citation.]”
(Ibid.)
In any event, the Attorney General’s belated justification for the search also
fails on the merits. Citing Segura v. United States (1984) 468 U.S. 796, the
Attorney General argues that “the evidence discovered in this case resulted from
14
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
reasonable expectation of privacy of a cohabitant of a parolee subject to a search
condition also is unlawful as to the parolee. We now conclude that it is. As we
recognized in In re Martinez, supra, 1 Cal.3d 641, 646, police cannot justify an
otherwise unlawful search of a residence because, unbeknownst to the police, a
resident of the dwelling was on parole and subject to a search condition. As we
explain, this result flows from the rule that whether a search is reasonable must be
15
determined based upon the circumstances known to the officer when the search is
conducted and is consistent with the primary purpose of the exclusionary rule – to
deter police misconduct.
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
Martinez and held instead that “a juvenile probationer subject to a valid search
condition does not have a reasonable expectation of privacy over his or her person
or property.” (In re Tyrell J., supra, 8 Cal.4th 68, 86.)
In People v. Reyes (1998) 19 Cal.4th 743, 754, 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
4
In support of its holding that law enforcement “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,” the decision in Martinez notes that “[t]he investigation involved
suspected criminal activity, not parole violations.” (In re Martinez, supra, 1
Cal.3d 641, 646.) This observation supports the conclusion that the police were
unaware of the suspect’s parole status when the search was conducted. It does not
suggest that a valid parole search may not be conducted for an investigatory
purpose. (See United States v. Knights, supra, 534 U.S. 112, 120; People
v. Reyes, supra, 19 Cal.4th 743, 752.)
16
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.
We recognized in Reyes that whether the parolee has a reasonable
expectation of privacy is inextricably linked to whether the search was reasonable.
A law enforcement officer who is aware that a suspect is on parole and subject to a
search condition may act reasonably in conducting a parole search even in the
absence of a particularized suspicion of criminal activity, and such a search does
not violate any expectation of privacy of the parolee. We observed in Reyes:
“The level of intrusion is de minimis and the expectation of privacy greatly
reduced when the subject of the search is on notice that his activities are being
routinely and closely monitored. Moreover, the purpose of the search condition is
to deter the commission of crimes and to protect the public, and the effectiveness
of the deterrent is enhanced by the potential for random searches. We thus
conclude a parole search may be reasonable despite the absence of particularized
suspicion.” (People v. Reyes, supra, 19 Cal.4th 743, 753.)
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
17
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.
This is not to say that the validity of the search depends upon the officer’s
purpose. The validity of a search does not turn on “the actual motivations of
individual officers.” (Whren v. United States (1996) 517 U.S. 806, 813.) But
whether a search is reasonable must be determined based upon the circumstances
known to the officer when the search is conducted. “[A]lmost without exception
in evaluating alleged violations of the Fourth Amendment the Court has first
undertaken an objective assessment of an officer’s actions in light of the facts and
circumstances then known to him.” (Scott v. United States (1978) 436 U.S. 128,
137; Ornelas v. United States (1996) 517 U.S. 690, 696 [probable cause is based
18
upon “the known facts and circumstances”]; Illinois v. Rodriguez (1990) 497 U.S.
177, 188 [“As with other factual determinations bearing upon search and seizure,
determination of consent to enter must ‘be judged against an objective standard:
would the facts available to the officer at the moment . . . “warrant a man of
reasonable caution in the belief” ’ that the consenting party had authority over the
premises? ”]; United States v. Brignoni-Ponce (1975) 422 U.S. 873, 884 [Officers
stopping vehicles on roving patrols must be “aware of specific articulable facts”
that justify the stop.]; Henry v. United States (1959) 361 U.S. 98, 102 [“Probable
cause exists if the facts and circumstances known to the officer warrant a prudent
man in believing that the offense has been committed.”]; Carroll v. United States
(1925) 267 U.S. 132, 149 [probable cause must be based upon “a belief,
reasonably arising out of circumstances known to the seizing officer”].)
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.) “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
19
constitutional imprimatur.” (Terry v. Ohio (1968) 392 U.S. 1, 12-13; Stone v.
Powell, supra, 428 U.S. 465, 492 [“this demonstration that our society attaches
serious consequences to violation of constitutional rights is thought to encourage
those who formulate law enforcement policies, and the officers who implement
them, to incorporate Fourth Amendment ideals into their value system” (fn.
omitted)].)
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
5
In its amicus curiae brief, the California District Attorneys Association
argues that the holding in Tyrell J. was correct because “The Special Needs of the
Juvenile Probation Scheme Emanating from the Doctrine of Parens Patriae
Allows a Juvenile Probationer Only a Residual Right to be Free from Arbitrary,
Capricious and Harassing Searches.” Because this case does not involve a
juvenile, we need not, and do not, decide this issue.
20
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.)
We held in Robles that permitting police to use a search condition to justify
the search of a residence when the officer was unaware of the probation condition
serves to encourage unlawful police conduct, especially in neighborhoods in
which a higher than average number of persons are on probation. (People v.
Robles, supra, 23 Cal.4th 789, 800.) The same would be true if we permitted the
People to admit the evidence only against the person subject to the search
condition, rather than against all of the occupants of the residence. The police still
would be encouraged to engage in facially invalid searches in the hope that at least
one of the occupants would be subject to a search condition. Suppressing the
evidence only as to cohabitants of a person subject to a search condition, but not
as to the probationer or parolee, would do little to decrease the chance that a
21
person living with a probationer or parolee would be the victim of an unlawful
search and would largely eviscerate the protections granted in Robles.
CONCLUSION
For the foregoing reasons, the judgment of the Court of Appeal is affirmed.
MORENO,
J.
WE CONCUR: GEORGE, C. J.
WERDEGAR,
J.
CHIN,
J.
22
CONCURRING OPINION BY KENNARD, J.
For reasons stated in my dissenting opinion in In re Tyrell J. (1994) 8
Cal.4th 68, 96 (Tyrell J.), I here agree with the majority’s holding invalidating the
search of the apartment occupied by parolee Kenton McDaniel and his cohabitant,
Arlene Sanders. Here, as in Tyrell J., the issue is whether, under the Fourth
Amendment to the United States Constitution, a search may be validated after the
fact by reliance on a search condition unknown to the searching officer at the time
of the search. In each case, the search condition had been imposed without the
agreement or consent of the person later subjected to the search. In each case,
consideration of the purpose of the Fourth Amendment, to “safeguard the privacy
and security of individuals against arbitrary invasions by governmental officials”
(Camara v. Municipal Court (1967) 387 U.S. 523, 528), leads to the conclusion
that the search was unlawful.
I
The federal Constitution’s Fourth Amendment provides: “The right of the
people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause . . . .” The United States Supreme Court has said:
“ ‘[S]earches conducted outside the judicial process, without prior approval by a
judge or magistrate, are per se unreasonable . . . subject only to a few specifically
established and well-delineated exceptions. The exceptions are ‘jealously and
1
carefully drawn,’ and there must be ‘a showing by those who seek exemption . . .
that the exigencies of the situation made that course imperative.’ ” (Coolidge v.
New Hampshire (1970) 403 U.S. 443, 454-455.)
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 and People v.
Gallegos (1964) 8 Cal.4th 68, 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
2
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. 20.) 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 would
apply the same analysis: Neither search can later be justified by information such
as the search condition in this case that was unknown to the searching officer.
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 Fourth
Amendment, which is the issue here. The exclusionary rule’s purpose comes into
play only when the inquiry is whether unlawfully obtained evidence must be
suppressed. As the United States Supreme Court has pointed out: “Whether the
exclusionary sanction is appropriately imposed in a particular case . . . is ‘an issue
separate from the question whether . . . Fourth Amendment rights . . . were
violated by police conduct.’ ” (United States v. Leon (1984) 468 U.S. 897, 906.)
Here, there is no dispute between the parties that any evidence seized unlawfully
from defendants cannot be used against them in a criminal trial. Thus, not at issue
3
here is whether unlawful police conduct justifies suppression of evidence. Unlike
the majority, therefore, I see no need to consider the deterrent effect of the
exclusionary rule.
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.
KENNARD,
J.
4
CONCURRING OPINION BY 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 Fourth Amendment
protections. (See maj. opn., ante, at pp. 5-6, 20.)
“The Fourth Amendment contains no provision expressly precluding the
use of evidence obtained in violation of its commands . . . .” (United States v.
Leon (1984) 468 U.S. 897, 906.) The exclusionary rule “thus operates as ‘a
judicially created remedy designed to safeguard Fourth Amendment rights
generally through its deterrent effect, rather than a personal constitutional right of
the party aggrieved.’ [Citation.]” (Ibid.) Accordingly, “[w]hether the
exclusionary sanction is appropriately imposed in a particular case”—and hence
the relevance of its deterrence purpose—“is ‘an issue separate from the question
whether the Fourth Amendment rights of the party seeking to invoke the rule were
violated by police conduct.’ [Citation.]” (Ibid.) This distinction logically follows
from the fact that an exclusionary remedy presupposes some illegality. (See
United States v. Peltier (1975) 422 U.S. 531, 539; Michigan v. Tucker (1974) 417
U.S. 433, 447.) In other words, until police officers conduct an unlawful search or
seizure, the question of sanction or deterrence does not arise.
1
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, the question was whether the
exclusionary rule should apply to grand jury proceedings. Similarly, in United
States v. Janis (1976) 428 U.S. 433, the court considered its application to federal
civil proceedings where evidence had been illegally seized by state officials.1
1
See Illinois v. Krull (1987) 480 U.S. 340 (question whether exclusionary
rule applies to evidence obtained in objectively reasonable reliance on statute
subsequently found unconstitutional); Nix v. Williams (1984) 467 U.S. 431
(question whether to adopt inevitable discovery exception to exclusionary rule);
United States v. Payner (1980) 447 U.S. 727 (question whether to extend
exclusionary rule to evidence seized from third party); Rakas v. Illinois (1979) 439
U.S. 128 (question whether exclusionary rule extends to evidence seized in
automobile in which defendant had no property or possessory interest); United
States v. Ceccolini (1978) 435 U.S. 268 (question whether scope of exclusionary
rule should extend to witness’s testimony); Mapp v. Ohio (1961) 367 U.S. 643
(question whether exclusionary rule applies in state court proceedings); Walder v.
United States (1954) 347 U.S. 62 (question whether exclusionary rule extends to
use of illegally seized evidence to impeach defendant’s trial testimony); cf. United
States v. Johnson (1982) 457 U.S. 537 (question whether decision construing
Fourth Amendment should apply retroactively); Stone v. Powell (1976) 428 U.S.
465 (question whether exclusionary remedy extends to federal habeas corpus
proceedings).
2
Here, we confront a threshold Fourth Amendment question: whether the
officers conducted an illegal search because they were unaware at the time that
McDaniel was subject to a parole search condition, which would have otherwise
validated their conduct. (See People v. Woods (1999) 21 Cal.4th 668, 681-682;
People v. Reyes (1998) 19 Cal.4th 743, 754; cf. In re Tyrell J. (1994) 8 Cal.4th 68,
89-90.) Until we know they acted unlawfully, deterrence is not at issue because
the matter of sanction has not yet arisen. And, the fact that deterrence is the
primary purpose of the exclusionary rule does not assist in analyzing the predicate
question.
Until
In re Tyrell J., supra, 8 Cal.4th 68, and People v. Robles (2000) 23
Cal.4th 789, 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 Fourth
Amendment” as part of its rationale. (Tyrell J., at p. 89.) The misstep instigated
by Tyrell J. was compounded in Robles with a similar discussion. (Robles, at
pp. 799-800.)
2
See, e.g., People v. Phillips (1985) 41 Cal.3d 29, 79; In re William G.
(1985) 40 Cal.3d 550, 568, fn. 17; Donaldson v. Superior Court (1983) 35 Cal.3d
24, 38-39; People v. Teresinski (1982) 30 Cal.3d 822, 837-838; People v. Cook
(1978) 22 Cal.3d 67, 82-83; see also In re Lance W. (1985) 37 Cal.3d 873,
882-883; Dyas v. Superior Court (1974) 11 Cal.3d 628, 632-633; but see People
v. Miller (1972) 7 Cal.3d 219, 226; Mann v. Superior Court (1970) 3 Cal.3d 1, 8.
3
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 Fourth Amendment principles does not produce an incorrect result in
this case, we should avoid sloppy analysis that could cause future mischief.
BROWN, J.
4
CONCURRING AND DISSENTING OPINION BY BAXTER, J.
In United States v. Knights (2001) 534 U.S. 112 (Knights), the United
States Supreme Court recently reminded courts to “ ‘examin[e] the totality of the
circumstances’ ” when determining whether a warrantless search violates a
defendant’s right to be free from unreasonable searches and seizures under the
Fourth Amendment to the United States Constitution. (Knights, supra, 534 U.S. at
p. 118.) Disregarding that admonishment, the majority holds here that if police
officers do not know a defendant is a parolee when searching the defendant’s
home without a warrant, the circumstance that the defendant is in fact subject to a
parole term that provides legal authority for the search is absolutely irrelevant to
the search’s validity. But a parole search term significantly diminishes a
defendant’s reasonable expectation of privacy, whether or not the searching
officers know the defendant is on parole. Accordingly, I find that, whether or not
the officers are aware of it, a defendant’s status as a parolee with a validly
imposed parole search term warrants full consideration in assessing a search’s
reasonableness under the “totality of the circumstances” test.
The precise question here is whether police officers violated the Fourth
Amendment rights of defendants Kenton McDaniel and Arlene Sanders when they
responded to a report of a loud and apparently physical domestic dispute in
progress at defendants’ apartment unit and then searched the unit without a
warrant and without knowing that McDaniel was on parole. The majority gives no
1
weight to the circumstance that McDaniel’s parole terms authorized the officers to
search his home when investigating the reported dispute. The majority further
concludes that the officers’ lack of knowledge regarding McDaniel’s parolee
status renders the search constitutionally invalid as to both defendants.
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 Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers and effects, against unreasonable searches and
seizures” and provides that “no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” (U.S. Const., Amend. IV.)
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. (Pen. Code, § 3052; Cal. Code Reg., tit. 15, § 2511, subd.
(b)(4).) “The state has a duty not only to assess the efficacy of its rehabilitative
efforts [with respect to parolees] but to protect the public, and the importance of
the latter interest justifies the imposition of a warrantless search condition.”
(People v. Reyes (1998) 19 Cal.4th 743, 752 (Reyes).)
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.
2
“Pursuant to California Constitution, article I, section 28, subdivision (d), we
review challenges to the admissibility of evidence obtained by police searches and
seizures under federal constitutional standards. [Citations.]” (People v. Woods
(1999) 21 Cal.4th 668, 674.) Application of those standards leads me to conclude
that the challenged search did not violate McDaniel’s Fourth Amendment rights.
In Knights, supra, 534 U.S. 112, the United States Supreme Court
reiterated the now familiar principle that “[t]he 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.]” (Knights, supra,
534 U.S. at pp. 118-119.) Under the high court’s general Fourth Amendment
approach, courts “ ‘examin[e] the totality of the circumstances’ ” to evaluate
whether a particular warrantless search was reasonable. (Id. at p. 118.)
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 the officers to stay and to search
3
him and his residence without a warrant. After handcuffing both defendants, the
officers made a protective sweep of the other rooms of the apartment to check for
third persons. During this sweep, the officers saw a boot containing drug
contraband in plain view in an open closet of one of the bedrooms. After seeing
the boot, the officers contacted the police department and learned that McDaniel
was on parole and subject to a search term. They requested assistance and
conducted a parole search of the apartment. The contraband was seized, and a pair
of scissors was recovered from between the couch cushions.
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. 325,1 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 Fourth
Amendment right to privacy. My reasons are as follows.
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 Fourth Amendment depends . . . upon whether the person who
claims the protection of the Amendment has a legitimate expectation of privacy in
the invaded place.’ ” (Minnesota v. Carter (1998) 525 U.S. 83, 88.) For a person
to have a legitimate expectation of privacy, he or she must have manifested a
1
The majority expresses no view regarding this aspect of the Court of
Appeal’s analysis (maj. opn., ante, at p. 4, fn. 2), and neither do I.
4
subjective expectation of privacy in the object of the challenged search, and that
expectation must be one society recognizes as reasonable. (California v. Ciraolo
(1986) 476 U.S. 207, 211; People v. Robles (2000) 23 Cal.4th 789, 795; In re
Tyrell J. (1994) 8 Cal.4th 68, 83.)
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 respect to the illegal drugs in
his apartment bedroom, the parole search term significantly diminished his
reasonable expectation of privacy in the same way that a search condition
significantly diminishes a probationer’s reasonable expectation of privacy. (See
id. at pp. 119-120.)
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
5
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 [describing prisoners].)
Relying on New Jersey v. T.L.O. (1985) 469 U.S. 325, 337-338, 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—participating in an altercation that caused concerned
neighbors to call police—prompted the police to come to the parolee’s apartment.
Also, what the officers saw in plain view—a fresh abrasion on Sanders’s face,
McDaniel’s attempt to hide something metallic behind a couch cushion, and both
6
defendants’ becoming belligerent and combative toward them—prompted them to
handcuff both defendants and to make a protective sweep of the residence.
Although the officers evidently misjudged the propriety of a protective sweep in
the situation before them, the procedure they employed was in fact no more
invasive or violative of McDaniel’s privacy than what he could reasonably expect,
given his parole search term and his conduct. Indeed, as a parolee involved in a
loud, and apparently physical, domestic dispute, McDaniel should fully have
expected police intervention and invocation of his parole search term. The fact
that the searching officers did not know of the parole term at the outset of their
involvement did not, from McDaniel’s perspective, meaningfully alter or increase
any reasonable expectation of privacy he may have had as a parolee in those
circumstances.
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 [“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’
7
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 significant interests in deterring parolees from criminal activity and
protecting the public from their crimes would be advanced by our finding the
search reasonable as to McDaniel and allowing admission of the drug contraband
evidence at his criminal trial.
The majority properly acknowledges that a search’s validity does not turn
on the individual officers’ actual motivations. (Maj. opn., ante, at p. 18.) 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
8
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, 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 Fourth Amendment principle.
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 officers’ good faith reliance on the
outdated and erroneous parole status information would not validate the search of
Y’s closet (People v. Willis (2002) 28 Cal.4th 22), and according to the majority’s
analysis, the search would have intruded unreasonably upon Y’s Fourth
Amendment rights because, notwithstanding Y’s significantly diminished
expectation of privacy as a probationer, the officers did not know that Y was on
probation (in fact, they were led to believe that probation was not an issue), and
they consequently acted without a probation-related purpose.
9
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
Fourth Amendment because the officers did not know of Y’s status as an escapee
when they conducted the search. Neither of these results makes any logical sense.
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 pp. 18-
19), 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 Fourth Amendment
protects people, not places.” (Katz v. United States (1967) 389 U.S. 347, 351.)
10
That a search may be deemed valid as to one occupant of a residence but invalid as
to another comports fully with the high court’s teaching that “the legitimacy of
certain privacy expectations vis-à-vis the State may depend upon the individual’s
legal relationship with the State.” (Vernonia School Dist. 47J v. Acton (1995) 515
U.S. 646, 654.) And as this court has itself recognized, “[t]hat persons under the
same roof may legitimately harbor differing expectations of privacy is consistent
with the principle that one’s ability to claim the protection of the Fourth
Amendment depends upon the reasonableness of his or her individual
expectations.” (People v. Robles, supra, 23 Cal.4th at p. 798; accord, People v.
Hernandez (1996) 639 N.Y.S.2d 423, 426-427 [suppression of evidence found
inappropriate in case against a prison escapee, but appropriate in case against the
escapee’s homeowner brother].) Therefore, even though a parolee’s home, like
anyone else’s, is protected by the Fourth Amendment’s requirement that searches
be reasonable (see Griffin v. Wisconsin (1987) 483 U.S. 868, 873 [concluding the
same in the context of probationers]), parolees remain properly subject to specific
constraints on their privacy that would not be constitutional if applied to their
cohabitants and the public at large (see id. at p. 875).
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. 21.) Applying the suppression sanction in the
nonparolee’s case is appropriate, of course, because her Fourth Amendment
privacy interests were in fact violated. (People v. Robles, supra, 23 Cal.4th at pp.
798-800.) But the majority unjustifiably extends the suppression sanction for the
benefit of the parolee, whose constitutional privacy interests were not violated, in
order to “decrease the chance that a person living with a probationer or parolee
would be the victim of an unlawful search.” (Maj. opn., ante, at pp. 21-22.) That
11
is just plain wrong and gives the parolee a huge and undeserved windfall. (Rakas
v. Illinois (1978) 439 U.S. 128, 134 [“it is proper to permit only defendants whose
Fourth Amendment rights have been violated to benefit from the [exclusionary]
rule’s protections”].) Nothing in People v. Robles or any other authority supports
such a novel and disproportional approach to deterring potential police
misconduct.
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, even though the officers may
have misjudged the propriety of a protective sweep in the situation facing them, no
decision to conduct a search should have surprised McDaniel, in light of his
participation in the events that brought the officers to his door.
Given the totality of these circumstances, I find the challenged search did
not violate McDaniel’s Fourth Amendment right to be free from unreasonable
searches and seizures. Moreover, finding the search reasonable in circumstances
such as these—where a parolee’s search term provides a legal basis for a
warrantless search when the parolee’s involvement in an altercation and criminal
wrongdoing is at issue—would advance the significant governmental interests in
deterring parolees from criminal activity and protecting the public from their
crimes.
12
I would affirm defendant McDaniel’s conviction.
BAXTER, J.
13
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Sanders
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S094088Date Filed: July 31, 2003
__________________________________________________________________________________
Court:
SuperiorCounty: Kern
Judge: Clarence Westra, Jr., Stephen P. Gildner and Coleen Ryan
__________________________________________________________________________________
Attorneys for Appellant:
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant Arlene DenaSanders.
Elizabeth M. Campbell, under appointment by the Court of Appeal, for Defendant and Appellant Kenton
Michael McDaniel.
Alan L. Schlosser; Kathy Kahn and John T. Phillipsborn 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.
__________________________________________________________________________________
Attorneys for Respondent:
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.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
J. Peter Axelrod1275 Fourth Street, No. 341
Santa Rosa, CA 95404
(707) 538-1002
Elizabeth M. Campbell
Central California Appellate Program
2407 J Street, Suite 301
Sacramento, CA 95816
(916) 441-3792
Doris A. Calandra
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
9916) 324-5250
2
Opinion Information
| Date: | Docket Number: |
| Thu, 07/31/2003 | S094088 |
Parties
| 1 | The People (Plaintiff and Respondent) Represented by Doris A. Calandra Attorney General P.O. Box 944255 Sacramento, CA |
| 2 | Sanders, Arlene Dena (Defendant and Appellant) Represented by James Peter Axelrod Attorney At Law 1275 4th St #341 Santa Rosa, CA |
| 3 | Mcdaniel, Kenton (Defendant and Appellant) Represented by Elizabeth M. Campbell Attorney at Law 2407 "J" Street, #301 Sacramento, CA |
| 4 | Mcdaniel, Kenton (Defendant and Appellant) Represented by Central California Appellate Program 2407 "J" Street, Suite 301 2407 "J" Street, Suite 301 Sacramento, CA |
| 5 | Aclu Foundation Of Northern California, Inc. (Amicus curiae) Represented by Alan L. Schlosser A.C.L.U. Foundation of Northern California 1663 Mission Street, Suite 460 San Francisco, CA |
| 6 | California Attorneys For Criminal Justice (Amicus curiae) Represented by John T. Philipsborn Chair, CACJ Amicus Curiae Committee 507 Polk St #250 San Francisco, CA |
| 7 | California District Attorneys Association (Amicus curiae) Represented by Phyllis Chiemi Asayama L A Cnty Dist Atty 320 W. Temple St., Suite 540 Los Angeles, CA |
| 8 | California Public Defenders Association (Amicus curiae) Represented by Stephen B. Elrick Alternate Defender Office 4 No. Second St., Suite #1270 San Jose, CA |
| Disposition | |
| Jul 31 2003 | Opinion: Affirmed |
| Dockets | |
| Dec 28 2000 | Petition for review filed In Fresno by counsel for Resp. {The People} |
| Jan 2 2001 | Received Court of Appeal record One doghouse |
| Jan 9 2001 | Answer to petition for review filed Counsel for appellant Arlene Dena Sanders |
| Feb 15 2001 | Time Extended to grant or deny Petition for Review To March 28, 2001. |
| Feb 28 2001 | Review Granted/briefing deferred (Rule 29.3) - criminal case hold for Peo v. Moss S087478. votes:unanimous |
| Mar 27 2002 | Briefing ordered Review was granted on 2-28-01 & further action deferred pending disposition of a related issue in People v. Moss (S087478). Submission of additional briefing was also deferred pending further order. People v. Moss was dismissed pursuant to California Rules of Court, rule 29.4 (c) on January 16, 2002. Respondent is now directed to serve file a Brief on the Merits on or before 4-26-2. Additional briefing is to be served & filed in a timely fashion. The brief is to address the following issues: 1) Should court reconsider In re Tyrell J. that otherwise illegal search of minor subject to probation search condition is "not unconstitutional despite office's ignorance of search condition"? 2) If our holding in In re Tyrell J. remains viable, should it apply to adult parolees who are subject to search conditions? 3) Under People v. Robles, does admissibility of fruits of search in present case differ as to defendant Sanders, who was not subject to a search condition, as compared to defendant McDaniel who was? Chin, J., was absent and did not participate. |
| Apr 22 2002 | Request for extension of time filed by resp to file the brief on the merits, to 5-26. |
| Apr 30 2002 | Extension of time granted Respondent to and including 5/26/2002, to file the Opening Brief on the Merits |
| May 8 2002 | Counsel appointment order filed J. Peter Axelrod is appointed to represent aplt. Arlene Sanders. Aplt's brief on the merits will be due w/in 30 days from the filing date of resp's opening brief on the merits. |
| May 8 2002 | Counsel appointment order filed the Central Calif. Appellate Program is appointed to represent aplt Kenton Mc Daniel. Aplt's brief on the merits is due w/in 30 days from the filing of resp's opening brief on the merits. |
| May 24 2002 | Opening brief on the merits filed by Resp (A.G.) |
| Jun 4 2002 | Request for extension of time filed by aplt Sanders to file the ans brief on the merits, to July 23. |
| Jun 10 2002 | Extension of time granted to 7-23-02 for aplt Sanders to file the answer brief on the merits. |
| Jun 24 2002 | Request for extension of time filed for aplt Mc Daniel to file the answer brief on the merits, to 7-24. |
| Jun 27 2002 | Extension of time granted to 7-23-02 for aplt Mc Daniels to file the answer brief on the merits. |
| Jul 22 2002 | Answer brief on the merits filed by aplt Sanders |
| Jul 24 2002 | Answer brief on the merits filed aplt Mc Daniel (timely per CRC 40k) |
| Aug 5 2002 | Request for extension of time filed by resp to file the reply brief on the merits, to 8-21-02. |
| Aug 12 2002 | Extension of time granted respondent's time to serve and file the reply brief on the merits is extended to and including August 21, 2002. |
| Aug 21 2002 | Reply brief filed (case fully briefed) by counsel for resp. |
| Sep 20 2002 | Received application to file amicus curiae brief; with brief by ACLU of No. Cal. and Cal. Attorneys for Criminal Justice, in support of aplts. |
| Sep 20 2002 | Received application to file amicus curiae brief; with brief California District Attorneys Association |
| Sep 23 2002 | Received application to file amicus curiae brief; with brief from the California Public Defenders Association in support of aplts. (timely-CRC 40k) |
| Sep 27 2002 | Permission to file amicus curiae brief granted by the ACLU of No. Calif. and Calif. Attorneys for Criminal Justice in support of appellants. An answer may be filed w/in 20 days. |
| Sep 27 2002 | Amicus Curiae Brief filed by: ACLU and Calif. Attorneys for Crim. Justice |
| Sep 27 2002 | Permission to file amicus curiae brief granted by the Calif. Public Defenders Association and Alternate Defender Office in support of aplts. Any answers may be filed w/in 20 days. |
| Sep 27 2002 | Amicus Curiae Brief filed by: by the Calif. Public Defenders Assn. and Alternate Defender Office in support of aplts. |
| Sep 27 2002 | Permission to file amicus curiae brief granted by the California District Attorneys Association in support of resp. Any answers may be filed w/in 20 days. |
| Sep 27 2002 | Amicus Curiae Brief filed by: the Calif. District Attorneys Assn. in support of resp. |
| Oct 11 2002 | Exhibits lodged People's exhibits #1 & 2 (trial ct. exhibits) |
| Oct 15 2002 | Response to amicus curiae brief filed by counsel for appellant Arlene Dena Sanders to AC brief of The Calif. District Attorney Assn. |
| Oct 15 2002 | Received document entitled: Corrected Declaration of Service re response to AC brief filed by appellant on 10/15/02. (Stapled to back inside cover of brief.) |
| Oct 16 2002 | Request for extension of time filed by (AG) counsel for respondent requesting a 10-day extension to October 24, 2002 to file an answer to the Calif. District Attorneys Association's amicus curiae brief. |
| Oct 17 2002 | Request for extension of time filed For aplt Mc Daniel to file a response to the A/C Brief of the Cal. DA's Assn., to 10/31. (rec'd in Sac.) |
| Oct 21 2002 | Extension of time granted Respondent's time to serve and file the answer to amicus curiae brief is extended to and including October 24, 2002. |
| Oct 24 2002 | Response to amicus curiae brief filed by Respondent to the A/C brief of Calif. Dist. Attorneys Assn. |
| Oct 25 2002 | Extension of time granted to 10-31-02 for aplt Mc Daniels to to file the response to the A/C brief of the Calif. Dist. Attys. Assn. |
| Oct 31 2002 | Request for extension of time filed for aplt Mc Daniel to file the answer to the A/C brief of the Calif. District Attorneys Assn., to 11/27. |
| Nov 7 2002 | Extension of time granted Appellant's time to serve and file the answer to the amicus curiae brief of California District Attorneys Association is extended to and including November 27, 2002. |
| Nov 27 2002 | Request for extension of time filed by aplt Mc Daniel to file a response to the A/C brief of Calif. Dist. Attys' Assn., to 12/11. |
| Dec 6 2002 | Extension of time granted to 12-11-02 for aplt Mc Daniel to file the response to the A/C brief of the Calif. District Attorneys Assn. |
| Dec 11 2002 | Received: from counsel for appellant (K. McDaniel) Response A/C brief of Calif. District Atty's Assoc. |
| Dec 16 2002 | Response to amicus curiae brief filed with permission by counsel for appellant (K. McDaniel) to the A/C brief of Calif. District Attorneys Assoc. |
| Dec 18 2002 | Compensation awarded counsel Atty Campbell |
| Jan 15 2003 | Filed: notice of change of counsel for resp. |
| Jan 24 2003 | Filed letter from: counsel for aplt Sanders, re unavailability for oral argument between 6/10 and 7/10, 2003. |
| Apr 30 2003 | Case ordered on calendar 5-29-03, 9am, S.F. |
| May 12 2003 | Filed: request of counsel for aplt McDaniel to divide oral argument time with counsel for aplt Sanders. |
| May 14 2003 | Order filed The request of counsel for aplts to allow two counsel to argue on behalf of aplts is granted. |
| May 14 2003 | Order filed The request to allocate 15 min. to aplt Sanders and to allocate 15 min to aplt McDaniel of aplts' 30-min. alloted oral argument time is granted. |
| May 15 2003 | Received document entitled: Aplt. Sanders' Supplemental Brief on the Merits |
| May 19 2003 | Received: aplt McDaniel's notice of joinder to aplt Sanders' supp. brief. |
| May 22 2003 | Request for judicial notice filed (in non-AA proceeding) by resp. |
| May 28 2003 | Filed: Aplt Sanders' opposition to resp's request for judicial notice. |
| May 29 2003 | Cause argued and submitted |
| Jul 31 2003 | Opinion filed: Judgment affirmed in full Majority opinion by Moreno, J. -- joined by George C.J., Werdegar & Chin, JJ. Concurring Opinion by Kennard, J. Concurring Opinion by Brown, J. Concurring & Dissenting Opinion by Baxter, J. |
| Aug 15 2003 | Request for modification of opinion filed by resp |
| Aug 19 2003 | Rehearing petition filed Respondent ( People) |
| Aug 26 2003 | Time extended to consider modification or rehearing to 10-29-03 |
| Aug 27 2003 | Compensation awarded counsel Atty Axelrod |
| Oct 22 2003 | Remittitur issued (criminal case) |
| Oct 22 2003 | Rehearing denied Baxter, J., is of the opinion the petition should be granted. Brown, J., was absent and did not participate. |
| Oct 22 2003 | Opinion modified - no change in judgment |
| Oct 27 2003 | Received: receipt for remittitur from CA 5 |
| Aug 17 2005 | Compensation awarded counsel Atty Campbell - Central California Appellate Program |
| Briefs | |
| May 24 2002 | Opening brief on the merits filed |
| Jul 22 2002 | Answer brief on the merits filed |
| Jul 24 2002 | Answer brief on the merits filed |
| Aug 21 2002 | Reply brief filed (case fully briefed) |
| Sep 27 2002 | Amicus Curiae Brief filed by: |
| Sep 27 2002 | Amicus Curiae Brief filed by: |
| Sep 27 2002 | Amicus Curiae Brief filed by: |
| Oct 15 2002 | Response to amicus curiae brief filed |
| Oct 24 2002 | Response to amicus curiae brief filed |
| Dec 16 2002 | Response to amicus curiae brief filed |
