People v. Reyes

KENNARD, J., Concurring and Dissenting.

Twelve years ago, this court unanimously held that a warrantless search of a parolee is permissible only if *757there is a “reasonable suspicion” that the parolee has committed a crime or has violated the terms of parole. (People v. Burgener (1986) 41 Cal.3d 505 [224 Cal.Rptr. 112, 714 P.2d 1251] (Burgener).) This standard has been adopted by the vast majority of jurisdictions that have considered the issue. Today the majority, without pausing to consider whether the search here satisfied this test, unnecessarily reaches out to overturn the “reasonable suspicion” standard, instead permitting the suspicionless search of parolees.

Because the majority has put forth no persuasive reasons for upsetting the balance that this court in Burgener, supra, 41 Cal.3d 505, so carefully struck between the competing interests of the government and of the individual, I would continue to adhere to the reasonable suspicion standard this court established in Burgener. Here that test was satisfied, for defendant’s parole agent had a reasonable suspicion that defendant was engaged in criminal behavior when the agent authorized police officers to search defendant’s property. For this reason only, I agree with the majority that the search was lawful and I concur in the judgment.

I

As a condition of parole, defendant, his residence, and any property under his control could be “searched without a warrant by an agent of the Department of Corrections or any law enforcement officer.” On February 23, 1995, an anonymous informant telephoned the office of defendant’s parole agent, Gordon McClaskey, and gave this information: defendant was using “crank” (methamphetamine), he had lost his job because his employer suspected him of stealing, he had falsely reported to the police that his VCR (videocassette recorder) had been stolen in a burglary, and his wife had left him because he had “threatened to use a gun on her.” The caller said the source of this information was a drug user named “Shirley.” At the time, defendant was living in Woodlake, a small town in Tulare County, California.

Parole Agent McClaskey called the Woodlake Police Department and verified the informant’s statement that defendant had reported a burglary of his home. McClaskey also made this request: “[I]f... or when you see this guy check him out for being under the influence [of drugs].”

That evening, Woodlake Police Officer Justin Beal, who had been told of Parole Agent McClaskey’s request, was driving by defendant’s home when he saw defendant walk out of a shed in the backyard. After radioing for assistance, Beal “began to evaluate” defendant to determine whether he was under the influence of any drug and concluded that he was not. Beal then asked Officer Jay Brock, who by then had arrived at the scene, to *758telephone Parole Agent McClaskey for permission to search defendant’s property. After obtaining McClaskey’s authorization, Officer Brock entered defendant’s shed, where he found a piece of tinfoil containing .9 grams of methamphetamine.

Defendant was charged with possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) He moved to suppress the methamphetamine seized from the shed, asserting it was obtained through an illegal search. The trial court denied the motion. Defendant pled guilty to the crime charged. He appealed, arguing that the trial court should have granted his suppression motion. The Court of Appeal agreed. Citing Burgener, supra, 41 Cal.3d 505, the court concluded that Parole Agent McClaskey, when he authorized Officer Brock to search defendant’s property, lacked a “reasonable suspicion” that defendant had committed a crime or had violated the conditions of parole.

II

California law requires that every prisoner, after completing a prison term, be released on parole unless “the parole authority for good cause waives parole.” (Pen. Code, § 3000, subd. (b)(1).) The various conditions of parole include the requirement that the parolee submit to warrantless searches by law enforcement authorities.

In Burgener, supra, 41 Cal.3d 505, the defendant’s parole officer authorized police officers to search the defendant’s apartment, where they found evidence that he had committed a murder. This court rejected the defendant’s challenge to the legality of the search condition, holding that a warrantless search of a parolee is proper when based upon reasonable suspicion. Parole searches, we said, are a type of administrative search and therefore “ ‘subject to the broad reasonableness requirement of the Fourth Amendment [to the federal Constitution].’ ” (Burgener, supra, 41 Cal.3d at p. 534.) We explained: “ ‘The determination of the standard of reasonableness governing any specific class of searches requires “balancing the need to search against the invasion which the search entails.” ’ ” (Ibid., quoting from New Jersey v. T.L.O. (1985) 469 U.S. 325, 337 [105 S.Ct. 733, 740, 83 L.Ed.2d 720].)

On one side of the balance are the state’s substantial interests in conducting parole searches: “ ‘The State has found the parolee guilty of a crime against the people. That finding justifies imposing extensive restrictions on the individual’s liberty. . . . [W]ith many prisoners there is a risk that they will not be able to live in society without committing additional antisocial acts.’ ” (Burgener, supra, 41 Cal.3d at p. 531, quoting Morrissey v. Brewer *759(1972) 408 U.S. 471, 483 [92 S.Ct. 2593, 2601, 33 L.Ed.2d 484].) The interest in ensuring public safety, this court observed, “permits restrictions on parolees’ liberty and privacy interests.” (Burgener, supra, 41 Cal.3d at p. 532.)

On the other side of the balance are the substantial privacy interests of those affected by parole searches: “The United States Supreme Court has . . . recognized that ‘the liberty of a parolee . . . includes many of the core values of unqualified liberty,’ and that his ‘condition is very different from that of confinement in a prison.’ ” (Burgener, supra, 41 Cal.3d at p. 530, quoting Morrissey v. Brewer, supra, 408 U.S. at p. 482 [92 S.Ct. at pp. 2600-2601].) The Burgener court observed that a parolee’s expectation of privacy “is not diminished by the surveillance which is a concomitant of confinement in prison.” (Burgener, supra, at p. 530.)

The court in Burgener went on to say: “Inasmuch as authority to search the residence of a parolee extends to areas which are jointly controlled with other occupants of the residence [citations], the authority to search these premises necessarily portends a massive intrusion on the privacy interests of third persons solely because they reside with a parolee. [Citation.] A parole search must therefore be directly and closely related to parole supervision in order to avoid unreasonable invasion of the privacy interests of the parolee and those with whom he resides.” (Burgener, supra, 41 Cal.3d at pp. 533-534.)

After carefully balancing the competing interests at stake, this court in Burgener upheld the validity of a warrantless search of a parolee if the parole officer has “a reasonable suspicion . . . that the parolee is again involved in criminal activity, or has otherwise violated his parole, and that the search may turn up evidence of that activity, or that evidence of a proposed future violation by the parolee will be uncovered.” (Burgener, supra, 41 Cal.3d. at p. 535.)

Ill

The United States Supreme Court has never held that the Fourth Amendment to the federal Constitution permits warrantless, nonconsensual government searches of private residences without at least reasonable suspicion. And that court has never addressed whether the Fourth Amendment permits warrantless, suspicionless searches of parolees. The closest it has come to considering this issue is its decision in Griffin v. Wisconsin (1987) 483 U.S. 868 [107 S.Ct. 3164, 97 L.Ed.2d 709], There a probationer was subject to a search condition allowing the probation officer to conduct a warrantless *760search of the probationer’s home based on “reasonable cause” to believe he possessed contraband. The high court rejected the probationer’s contention that, by permitting a search without a warrant and without probable cause, the search condition violated the Fourth Amendment. (483 U.S. at pp. 873-878 [107 S.Ct. at pp. 3168-3171].) As this court had done earlier in Burgener, supra, 41 Cal.3d 505, the high court in Griffin balanced the state’s needs against those of the individual, holding that the government’s “special needs” in operating a probation system justified warrantless probation searches that are based only on reasonable rather than probable cause. (Griffin v. Wisconsin, supra, at p. 873 [107 S.Ct. at p. 3168]; see also Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 619 [109 S.Ct. 1402, 1414, 103 L.Ed.2d 639] [stating that in Griffin the court “balance[d] the governmental and privacy interests to assess the' practicality of the warrant and probable-cause requirements”].) The Griffin court was not called upon to decide whether a probation search can be conducted on less than reasonable suspicion.1

Applying the balancing test that the high court articulated in Griffin v. Wisconsin, supra, 433 U.S. 868, most state courts that have considered the legality of parole searches have adopted a reasonable suspicion standard. Just last year the Pennsylvania Supreme Court held that under the Fourth Amendment a parolee’s search condition can be invoked only “if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer’s duty.” (Com. v. Williams (1997) 547 Pa. 577 [692 A.2d 1031, 1036].) In accord are these decisions from other states: State v. Massey (1996) 81 Wn.App. 198 [913 P.2d 424, 425]; People v. Woods (1995) 211 Mich.App. 314 [535 N.W.2d 259, 261-262]; State ex rel. Corgan v. King, supra, 868 P.2d 743, 746 (“The *761majority of states that have addressed this issue . . . afford Fourth Amendment protection for parolees by requiring reasonable grounds to exist in order for a warrantless search to be valid. [Citations.] ft[] We agree that the Fourth Amendment contains a reasonableness standard for parole searches . . . People v. Slusher (Colo.Ct.App. 1992) 844 P.2d 1222, 1225 (A parole officer must have “reasonable grounds to believe that a parole violation has occurred.”); Pena v. State (Wyo. 1990) 792 P.2d 1352, 1357-1358; Allan v. State (Nev. 1987) 746 P.2d, 138, 140 (“A parole officer must have reasonable grounds to believe a violation of a parole agreement has occurred to justify a warrantless search.”); and State v. Johnson (Utah 1987) 748 P.2d 1069, 1072. (See also Com. v. LaFrance (1988) 402 Mass. 789, 793 [525 N.E.2d 379, 381-382] [“It appears doubtful that any standard below reasonable grounds or reasonable suspicion would meet Fourth Amendment requirements” for probation search]; State v. Fields (1984) 67 Hawaii 268 [686 P.2d 1379, 1390] [reasonable suspicion required for invocation of probation search condition].)2

In three other states, statutes or administrative regulations authorize parole officers to search only on reasonable suspicion. (State v. West (1994) 185 Wis.2d 68, fn. 2 [517 N.W.2d 482, 484] [Wisconsin Administrative Code permits parole searches only on “reasonable grounds” to believe contraband is present]; State v. Boston (1994) 269 Mont. 300 [889 P.2d 814, 817] [Montana statute permits parole searches only on reasonable suspicion]; State v. Ashley (S.D. 1990) 459 N.W.2d 828, 830 [South Dakota parole agreement permitted search “whenever reasonable cause is ascertained by a parole agent”]; see also People v. Eiland (1991) 217 Ill.App.3d 250 [160 Ill.Dec. 231, 576 N.E.2d 1185, 1191] [Illinois statute permits probation search only on reasonable cause].)

Applying a slightly different analysis, some courts have held that under the Fourth Amendment a parole search “may not be used as a ‘subterfuge for a criminal investigation,’ ” which occurs when “a parole . . . officer conducts a parole . . . search on prior request of and in concert with law enforcement officers.” (U.S. v. Richardson (9th Cir. 1988) 849 F.2d 439, 441.) Most of the federal appellate courts have adopted such a rule. (U.S. v. McFarland (8th Cir. 1997) 116 F.3d 316, 318; U.S. v. McCarty (10th Cir. 1996) 82 F.3d 943, 947; U.S. v. Coleman (7th Cir. 1994) 22 F.3d 126, 129; U.S. v. Hill, supra, 967 F.2d 902, 910-911; U.S. v. Giannetta (1st Cir. 1990) 909 F.2d 571, 581; Owens v. Kelley (11th Cir. 1982) 681 F.2d 1362, 1369; *762see also U.S. v. Martin (6th Cir. 1994) 25 F.3d 293, 296 [applying same standard to probation searches].) Several state courts have imposed a similar limitation. (State v. Zeta Chi Fraternity (1997) 142 N.H. 16 [696 A.2d 530, 542]; Com. v. Pickron (1993) 535 Pa. 241 [634 A.2d 1093, 1097]; State v. Johnson, supra, 748 P.2d 1069, 1072; State v. Flakes (1987) 140 Wis.2d 411 [410 N.W.2d 614, 620]; State ex rel. Corgan v. King, supra, 868 P.2d at p. 747; People v. Candelaria (1978) 63 A.D.2d 85 [406 N.Y.S.2d 783, 786]; People v. Slusher, supra, 844 P.2d at p. 1226; see also State v. Smith (1992) 117 Or.App. 473 [844 P.2d 276] [under state law, probation search conditions can authorize searches only by probation officers, not by police].)

To summarize, state and federal courts that have considered the validity of parole or probation searches have generally adopted either a reasonable suspicion requirement, as this court did in Burgener, supra, 41 Cal.3d 505, or a rule barring searches when the parole or probation officer was acting as an agent of the police, or they have adopted both rules. Against this considerable weight of authority imposing some limitations on warrantless searches of parolees, the majority here instead permits virtually unrestricted searches of parolees, with the equivocal caveat that such searches “ ‘could’ ” be illegal if the searching officer engages in “ ‘arbitrary or oppressive conduct.’ ” (Maj. opn., ante, at pp. 753-754.)

In concluding that Officer Brock, acting on Parole Agent McClaskey’s authorization, could conduct a warrantless search without a reasonable suspicion that defendant had violated the terms of his parole, the majority relies on three cases. Two are from other jurisdictions (State v. Zeta Chi Fraternity, supra, 696 A.2d 530 (Zeta Chi) and Owens v. Kelley, supra, 681 F.2d 1362) and one is from this court (In re Tyrell J. (1994) 8 Cal.4th 68 [32 Cal.Rptr.2d 33, 876 P.2d 519]). None of these cases provide persuasive support for the majority’s holding.

In Zeta Chi, a college fraternity (a New Hampshire corporation) was convicted of prostitution and selling alcohol to persons under the age of 21. As a condition of probation, the trial court ordered the fraternity to submit to unannounced random searches of its premises for alcohol and for any other violations of the terms of probation. The New Hampshire Supreme Court upheld the legality of the search condition because it was “reasonably related to the supervision and rehabilitation of the probationer . . . (Zeta Chi, supra, 696 A.2d at p. 540.)

In Zeta Chi, the search condition was based on a showing of particularized need to conduct random searches, in light of the trial court’s finding that the defendant corporation had “plotted to circumvent the underage drinking laws *763and avoid detection by law enforcement.” (Zeta Chi, supra, 696 A.2d at p. 539.) Here, by contrast, the search condition is a blanket search condition, imposed indiscriminately on all parolees. (See Cal. Code Regs., tit. 15, § 3901.9.2.) Nothing in Zeta Chi supports the majority’s holding that the state may impose suspicionless search conditions on all parolees. Moreover, the court in Zeta Chi placed a significant limit on the power of probation officers generally to invoke a probationer’s search condition, allowing them to do so only when not acting as an agent of the police, rather than for purposes related to probation. (Zeta Chi, supra, 696 A.2d at pp. 541-542.) As I discussed earlier, at pages 761-762, ante, most federal appellate courts, and some state courts as well, have a similar rule.

In Owens v. Kelley, supra, 681 F.2d 1362, the second case on which the majority relies, a defendant convicted of two violations of the Georgia Controlled Substances Act was placed on probation on the condition, among others, that he submit to warrantless searches without reasonable suspicion. The federal appellate court rejected the defendant’s contention that this condition violated his Fourth Amendment rights. It concluded that searches without reasonable suspicion would “dissuade [the defendant] from possessing illegal drugs by making him cognizant that unlawful possession can be discovered at any time” and would promote the defendant’s rehabilitation “by providing probation supervisors with a practical mechanism to determine whether rehabilitation is indeed taking place.” (Id. at p. 1367, fns. omitted.)

As in Zeta Chi, supra, 696 A.2d 530, the court in Owens v. Kelley, supra, 681 F.2d 1362, was concerned only with the legality of a search condition imposed as a matter of discretion upon a showing of particularized need in an individual case, unlike the blanket search condition in this case that is imposed indiscriminately against all parolees. And as in Zeta Chi, the Owens court stressed that searches pursuant to search conditions in general are lawful only “so long as they are in fact conducted for probationary purposes” and are not “ ‘a subterfuge for criminal investigations.’ ” (Owens v. Kelly, supra, 681 F.2d at p. 1369.) Therefore, like Zeta Chi, Owens is distinguishable from this case.

In In re Tyrell J., supra, 8 Cal.4th 68, the third case on which the majority relies, a majority of this court held that when a police officer conducts an otherwise illegal search of a minor, the search is constitutionally permissible if the minor was subject to a probation search condition of which the searching officer was unaware. But the Tyrell J. majority made this assertion without any reasons or supporting analysis, “[a]lmost as an afterthought,” as I pointed out in my dissent. (Id. at p. 98 (dis. opn. of Kennard, J.).) Thus, *764Tyrell J. offers no support for the majority’s abandonment of Burgener’s reasonable suspicion standard.3

Conclusion

In Burgener, this court observed: “ ‘ [I]n most cases the life of a parolee more nearly resembles that of an ordinary citizen than that of a prisoner. The parolee is not incarcerated; he is not subjected to a prison regimen, to the rigors of prison life and the unavoidable company of sociopaths. . . . The parolee lives among people who are free to come and go when and as they wish. Except for the conditions of parole, he is one of them.’ ” (Burgener, supra, 41 Cal.3d at p. 530.) The United States Supreme Court too has recognized that “the liberty of a parolee . . . includes many of the core values of unqualified liberty,” thus making the parolee’s condition “very different from that of confinement in a prison.” (Morrissey v. Brewer, supra, 408 U.S. at p. 482 [92 S.Ct. at p. 2601], fn. omitted.)

The purpose of parole is to monitor and assist those who have completed prison sentences as they make the transition from regimented prison life to free society. (See Morrissey v. Brewer, supra, 408 U.S. at pp. 477-478 [92 S.Ct. at pp. 2598-2599].) To accomplish this purpose, the parolee is granted a conditional liberty that is significantly less than that of an ordinary free adult but substantially greater than that of a prison inmate. (Id. at pp. 481-482 [92 S.Ct. at pp. 2600-2601].) The legitimate scope of the parolee’s privacy expectations are consistent with this intermediate status, which should determine the standard by which the validity of parole searches are judged.

Just as the parolee possesses a qualified liberty that is partway between that of a free adult and that of a prisoner serving a sentence within prison walls, so also the standard for judicial review appropriate for parole searches is one that lies between, on the one hand, the probable cause standard ordinarily used to determine the constitutional validity of most law enforcement searches (see Whren v. United States (1996) 517 U.S. 806, 818 [116 *765S.Ct. 1769, 1776-1777, 135 L.Ed.2d 89]) and, on the other hand, the virtually complete absence of constitutional restraints on searches of prisoners conducted by prison authorities within prison walls (see Hudson v. Palmer (1984) 468 U.S. 517, 527-530 [104 S.Ct. 3194, 3200-3202, 82 L.Ed.2d 393] [federal Constitution does not prohibit random searches of prison cells unless searches constitute calculated harassment unrelated to prison needs]). The reasonable suspicion standard that this court adopted in Burgener, supra, 41 Cal.3d 505, is such an appropriate intermediate standard and one I would retain. Today, by permitting suspicionless searches of all parolees unless shown to be arbitrary or oppressive, the majority casts this intermediate standard aside, replacing it with a rule that is virtually indistinguishable from the standard for in-prison searches.

As a consequence of today’s decision by the majority, government officials may now search private homes in neighborhoods throughout the state, by day or by night, for any reason or for no reason, if one of the home’s residents is a parolee subject to a search condition. As the United States Supreme Court has stressed, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (United States v. United States District Court (1972) 407 U.S. 297, 313 [92 S.Ct. 2125, 2134, 32 L.Ed.2d 752].) By requiring reasonable suspicion for parole searches, the court in Burgener, supra, 41 Cal.3d 505, protected the privacy of the home while at the same time recognizing the government’s substantial interest in supervising parolees. I decline to join the majority in adopting a rule that recognizes no distinction between a private home occupied by a parolee and a prison cell, and that authorizes warrantless, suspicionless searches of private homes.

MOSK, J., concurred.

At issue in Griffin v. Wisconsin, supra, 483 U.S. 868, was the legality of a probation search condition, while this case concerns a parole search condition. Most courts in other jurisdictions have found no significant differences, for purposes of the Fourth Amendment, between search conditions imposed as a condition of probation and those imposed as a condition of parole. (See, e.g., U.S. v. Hill (3d Cir. 1992) 967 F.2d 902, 909; U.S. v. Davis (9th Cir. 1991) 932 F.2d 752, 758; State ex rel. Corgan v. King (Okla.Crim.App. 1994) 868 P.2d 743,746, fn. 3.) But in People v. Bravo (1987) 43 Cal.3d 600, 608 [238 Cal.Rptr. 282, 738 P.2d 336], this court drew a distinction between parolees and probationers who are subject to search conditions: “A probationer, unlike a parolee, consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term. Probation is not a right, but a privilege.” Based on its conclusion that probationers who accept search conditions have voluntarily waived their Fourth Amendment rights, Bravo held that a court considering the validity of such a condition need not balance the probationer’s privacy interests against the government’s interests in public safety. (Ibid.) I agree with the court in Bravo that parolees do not voluntarily consent to search conditions imposed on them; whether Bravo correctly held that probationers give such consent is not before us, and I therefore do not address it.

Indeed, the Iowa Supreme Court has held that except for the admissibility of evidence at a parole revocation hearing, “an Iowa State parolee’s Fourth Amendment rights . . . [must] be accorded the same recognition as any other person.” (State v. Cullison (Iowa 1970) 173 N.W.2d 533, 537.)

In this case, however, the trial court correctly found that the search of defendant’s property was based on reasonable suspicion that defendant had violated his parole. As I explained previously, Parole Agent McClaskey received a report from an anonymous informant that defendant had violated the terms of parole by using methamphetamine and by falsely reporting to the Woodlake Police Department that his house had been burglarized. This information gave rise to a reasonable suspicion that defendant might be violating the terms of parole, particularly when McClaskey verified that defendant had indeed reported a burglary to the police. Thus, the search of defendant’s property did not violate the Fourth Amendment. I therefore concur with the majority in reversing the decision of the Court of Appeal, which held that the trial court should have granted defendant’s motion to suppress the evidence seized during the search of defendant’s shed.