19 Cal.4th 743, S058825, People v. Reyes

• Citation: 19 Cal.4th 743, 80 Cal.Rptr.2d 734, 968 P.2d 445
• Opinion Judge: [9] The opinion of the court was delivered by: Brown, J.
• Party Name: People v. Reyes
• Attorney: [7] Attorneys for Appellant: Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger, Shirley A. Nelson, Margaret Garnand Venturi and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintif...
• Case Date: September 21, 1998
• Court: California Supreme Court

Page 743

19 Cal.4th 743

80 Cal.Rptr.2d 734, 968 P.2d 445

THE PEOPLE, Plaintiff and Appellant,

v.

RUDOLFO REYES, Defendant and Appellant.

S058825.

Supreme Court of California

September 21, 1998

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[Copyrighted Material Omitted]

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COUNSEL

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General,

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Michael J. Weinberger, Shirley A. Nelson, Margaret Garnand Venturi and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Appellant.

William J. Arzbaecher III, under appointment by the Supreme Court, for Defendant and Appellant.

Jose R. Villarreal, Public Defender (Santa Clara), Ronald A. Norman, Alternate Public Defender, and Stephen B. Elrick, Deputy Public Defender, as Amici Curiae on behalf of Defendant and Appellant.

OPINION

BROWN, J.—

In People v. Burgener (1986) 41 Cal.3d 505 [224 Cal.Rptr. 112] (hereafter Burgener), this court held a parolee subject to a search condition still retains a reasonable, though somewhat diminished, expectation of privacy under the Fourth Amendment. Thus, a warrantless search of his person or property must be justified by at least a reasonable suspicion "that the parolee has violated the law or another condition of his parole, or is planning to do so." (41 Cal.3d at p. 533, fn. omitted.) Subsequently, in In re Tyrell J. (1994) 8 Cal.4th 68 [32 Cal.Rptr.2d 33] (hereafter Tyrell J.), we upheld the warrantless search of a juvenile probationer, subject to a search condition, because he did not have "a reasonable expectation of privacy over his ... person or property" (id. at p. 86) that society is "willing to recognize as legitimate." (Id. at p. 89.) The Attorney General contends there is no constitutionally significant difference between an adult parolee and a juvenile probationer in these circumstances. Thus, in light of Tyrell J., reasonable suspicion is no longer a prerequisite to a lawful search of a parolee. The Court of Appeal concluded Burgener remains good law and the standard articulated in Tyrell J. does not apply to adult parolees. We granted review to resolve the tension apparent in our precedents and to decide whether the logic of Tyrell J. has significance in the context of adult parole searches.

I. Procedural and Factual Background

Defendant was released on parole and signed a parole agreement including a standard search condition: "[Y]ou 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." Defendant's parole agent, Gordon McClaskey, contacted the Woodlake Police Department after receiving an anonymous telephone tip, and asked the

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officers to evaluate defendant to see if he was under the influence of drugs. Later that evening, the police officers saw defendant coming out of a shed in his backyard. They searched the shed and found a small amount of methamphetamine.

The trial court denied defendant's motion to suppress the evidence. The court found the evidence available to the parole agent more than satisfied the reasonable suspicion standard. Defendant pled guilty and admitted one prior felony conviction. The Court of Appeal reversed his conviction because, in its view, the search was not supported by reasonable suspicion, ¹ which is a prerequisite to a lawful parole search. We granted the Attorney General's petition for review to consider whether reasonable suspicion is still required for a lawful parole search based on a search condition. ²

II. Discussion

A. Introduction

In Griffin v. Wisconsin (1987) 483 U.S. 868 [107 S.Ct. 3164, 97 L.Ed.2d 709] (hereafter Griffin), the United States Supreme Court considered the constitutional limits applicable to probation searches. The court reviewed a state regulation permitting a probation officer to search a probationer's home without a warrant if the officer reasonably suspected the presence of contraband and the officer's supervisor approved the search. Conceding at the outset that "[a] probationer's home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be 'reasonable,' " the court stopped short of equating reasonableness with particularized suspicion. (Id. at p. 873 [107 S.Ct. at p. 3168].) In fact, the court declined the opportunity to "embrace a new principle of law" and articulate a federal reasonable grounds standard. (Id. at pp. 872, 880 [107 S.Ct. at pp. 3168, 3172].) The court noted neither probationers nor parolees enjoy " 'the absolute liberty to

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which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special [probation] restrictions.' " (Id. at p. 874 [107 S.Ct. at p. 3169], quoting Morrissey v. Brewer (1972) 408 U.S. 471, 480 [92 S.Ct. 2593, 2600, 33 L.Ed.2d 484].)

The court acknowledged that a "[s]tate's operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents 'special needs' beyond normal law enforcement" that justify departure from the usual warrant and probable cause requirements. (Griffin, supra, 483 U.S. at pp. 873-874 [107 S.Ct. at p. 3168].) The court also recognized supervision as 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 [107 S.Ct. at p. 3169].)

B. The State Standards Applicable to Parole and Probation Searches

Among our own cases, Burgener, People v. Bravo (1987) 43 Cal.3d 600 [238 Cal.Rptr. 282], and Tyrell J. illustrate what a moveable feast the Fourth Amendment can be. In Burgener, an adult parolee, subject to a warrantless search condition, became the prime suspect in the police investigation of a robbery and murder at a convenience store. The search was authorized by the defendant's parole agent after the police related the circumstances leading them to believe the defendant was involved. We relied on a balancing test to find imposition of a warrantless search condition was not "per se unreasonable if conducted for a purpose properly related to parole supervision." (Burgener, supra, 41 Cal.3d at p. 532.) However, in assessing the validity of the parole search, we returned to a consideration of the warrant requirement and the probable cause standard before concluding a lesser standard of reasonable suspicion would suffice. "The balance thus falls heavily on the side of the governmental interest in public safety, and leads to a conclusion that the appropriate standard of reasonableness to justify a parole search is a reasonable suspicion on the part of the parole officer 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. That suspicion must of course be based on articulable facts which together with rational inferences from those facts warrant objectively reasonable suspicion." (Id. at p. 535.)

In People v. Bravo, supra, 43 Cal.3d 600 (hereafter Bravo), an anonymous informant told police the volume of traffic in and around the defendant's home indicated he was involved in the sale of narcotics. The defendant was

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an adult probationer subject to a warrantless search condition. Although police surveillance failed to confirm any suspicious activity, the officers learned the defendant was on probation and searched his residence. The search led to the seizure of cocaine, firearms and cash. The defendant challenged the search, claiming the officers' actions were unlawful because they lacked reasonable suspicion. We disagreed. An adult probationer consents to a waiver of his Fourth Amendment rights in exchange for the opportunity to avoid serving a state prison sentence. (43 Cal.3d at p. 608.) " '[W]hen [a] defendant in order to obtain probation specifically [agrees] to permit at any time a warrantless search of his person, car and house, he voluntarily [waives] whatever claim of privacy he might otherwise have had.' " (Id. at p. 607, quoting People v. Mason (1971) 5 Cal.3d 759, 766 [97 Cal.Rptr. 302].) "We read the consent in Mason as a complete waiver of that probationer's Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner." (Bravo, supra, 43 Cal.3d at p. 607.) " Bravo ... establishes that an adult probationer subject to a search condition may be searched by law enforcement officers having neither a search warrant nor even reasonable cause to believe their search will disclose any evidence." (Tyrell J., supra, 8 Cal.4th at p. 80, fn. omitted.)

The consent exception to the warrant requirement may not be invoked to validate the search of an adult parolee because, under the Determinate Sentencing Act of 1976, parole is not a matter of choice. The Board of Prison Terms must provide a period of parole; the prisoner must accept it. (Pen. Code, § 3000 et seq.) Without choice, there can be no voluntary consent to inclusion of the search condition. (See Burgener, supra, 41 Cal.3d at p. 529.)

In Tyrell J., an officer on patrol during a high school football game saw Tyrell J. and two other minors, all identified as members of the U-Boys gang—a group involved in a shooting incident a week earlier. Because one of the boys was wearing a heavy quilted coat in 80-degree heat, the officer stopped the trio. The officer retrieved a large hunting knife from the youngster wearing the coat. Because Tyrell J. made several furtive adjustments to his clothing, the officer conducted a patdown search and retrieved a bag of marijuana the juvenile had partially concealed in his pants. Tyrell J. was on juvenile probation and subject to a warrantless search...