In Re Martinez ( 1970 )

Opinion

TOBRINER, J.

Ralph Martinez, currently incarcerated in Folsom State Prison, petitions for a writ of habeas corpus, seeking release on the grounds that the Adult Authority revoked his parole without adequate cause. Petitioner alleges that the authority’s determination to terminate his parole status was based primarily on (1) evidence obtained through an unconstitutional search and seizure and (2) a confession obtained in violation of People v. Dorado (1965) 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], and petitioner contends that such matters should not properly be considered by the Adult Authority. We conclude that in view of the uniquely critical responsibilities inherent in the administration of the parole system, the authority could properly consider all the evidence before it.

Initially we review the facts of the case. On May 12, 1955, petitioner was convicted of violation of section 11500 of the Health and Safety Code (sale of narcotics other than marijuana), sentenced and committed to the state prison. After serving over seven years of his sentence, petitioner was released on parole on June 12, 1962. Then in February 1963 he was arrested and charged with possession of heroin; in October 1963 he was found guilty of the charges and sentenced to state prison.

Following the conviction in October 1963, petitioner’s parole was can-celled on November 15, 1963, and formally revoked on February 13, 1964. The revocation was ostensibly based on three grounds: (1) the October 1963 conviction; (2) driving a motor vehicle without the knowledge or consent of his parole agent or the Division of Parole, and (3) using alcoholic beverages to excess.

The following year, on March 11, 1965, the Court of Appeal, Second District, reversed petitioner’s 1963 conviction, concluding that evidence introduced at trial was obtained pursuant to an unconstitutional search¹ and that statements used against petitioner were obtained in violation of the dictates of People v. Dorado, supra, 62 Cal.2d 338 (People v. Martinez (1965) 232 Cal.App.2d 796 [43 Cal.Rptr. 197]). On July 13, 1965, the charges on which petitioner had been convicted in 1963 were dismissed. Petitioner remained in prison, however, because his parole on his 1955 conviction had been revoked.

When petitioner’s application for parole next came before the Adult Authority in October 1965, the reversal of petitioner’s 1963 conviction was brought to the authority’s attention. The authority nonetheless decided not to restore petitioner to his parole status. The comments recorded on the authority’s official evaluation sheet disclose the panel’s reasoning: “panel notes that although 1963 charges dismissed on legal technicality of illegal search—case was not dismissed because of lack of involvement—also noted that inmate initially admitted to the charges—and [did] not prosecute appeal for some two years—continuance of incarceration based on parole behavior and not on 1963 commitment.”

The circumstances of the present case are comparable to those addressed by this court in In re Brown (1967) 67 Cal.2d 339 [62 Cal.Rptr. 6, 431 P.2d 630], There, as here, the Adult Authority revoked the defendant’s parole on several grounds, a criminal conviction constituting the primary, most serious ground. In Brown, as in the instant case, the conviction was later overturned on appeal; in Brown, reversal rested solely on the introduction at trial of a confession obtained in violation of Dorado. Under those circumstances we held that the invalid conviction, relied on by the Adult Authority, could not properly constitute a basis for “cause” to revoke the defendant’s parole, and we remanded the case to the authority so that they could decide whether to retain the revocation on the basis of the lesser parole violation with which the parolee had been charged. In addition, we indicated that the reversal of the conviction would not preclude further inquiry by the Adult Authority into the subject matter of the crime in question, to determine if the defendant “had engaged in conduct that constitutes cause for parole revocation.” (67 Cal.2d at p. 342.)²

Although the February 1964 parole revocation order in the instant case is identical to the one before the court in Brown in that it grounds revocation primarily on a conviction which has subsequently been found invalid, we agree with the People’s contention that the proceedings in the Adult Authority after the appellate reversal of the defendant’s 1963 conviction must properly be viewed as “further inquiry” into the subject matter of the conviction as approved in Brown and thus must be considered by this court. In its subsequent proceeding the authority sustained “continuance of incarceration based on parole behavior and not on 1963 commitment.” Upon a complete reading of the authority’s records we believe that, although the authority predicated its decision on “parole behavior” rather than on the conviction, the authority considered the illegally obtained evidence that resulted in the reversal of the conviction; the People concede that this is true.³ In this case we thus face two of the questions left open by our decision in Brown: May the Adult Authority, in exercising its broad authority over the parole system and parolees, properly consider evidence which has been obtained by government officials (1) as a result of an unconstitutional search and seizure and (2) through a confession obtained through interrogation when a defendant has not been adequately apprised of his constitutional rights?

We are required to face these issues directly in this case, only because we find, from the facts as related in the prior judicial decision (People v. Martinez, supra, 232 Cal.App.2d 796, 797-799), that the police authorities, in obtaining the extrinsic evidence and statements from defendant,' did indeed violate the defendant-parolee’s Fourth and Fifth Amendment constitutional rights.⁴ Although past cases have sometimes declared that a parolee is. in “constructive custody” or “without liberty,” “[fjictions 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.” (Rose v. Haskins (6th Cir. 1968) 388 F.2d 91, 98, fn. 2 (Celebrezze, J., dissenting).) 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. (People v. Gallegos (1964) 62 Cal.2d 176, 178 [41 Cal.Rptr. 590, 397 P.2d 174]; People v. Gastelum (1965) 237 Cal.App.2d 205, 207 [46 Cal.Rptr. 743]; People v. Hernandez (1964) 229 Cal.App.2d 143, 147, fn. 2 [40 Cal.Rptr. 100]; cf. People v. Rosales (1968) 68 Cal.2d 299 [66 Cal.Rptr. 1, 437 P.2d 489] (parolee entitled to protection of Penal Code section 844).)⁵

Since we do not adjudicate a search of a parolee initiated by a parole agent in connection with duties of parole administration, we need not decide under what circumstances, if any, such a search may be “reasonable” within the meaning of the Fourth Amendment even without a full showing of probable cause.⁶ The Court of Appeal, in the previous criminal action, correctly determined that evidence obtained pursuant to this search could not be admitted at the defendant’s criminal trial.

In addition, the defendant’s parole status, of course, did not permit the police to interrogate the defendant in connection with the suspected criminal activity without first apprising him of his constitutional rights. The strictures of Dorado apply whenever the police initiate custodial interrogation in connection with their investigation of a new criminal matter; indeed, in Dorado itself, the defendant was an incarcerated prisoner, who had allegedly committed a crime within the prison and who was interrogated by prison officials. (62 Cal.2d at pp. 342-344.) The Fifth Amendment rights of parolees equally demand these protections. (See In re Brown, supra, 67 Cal.2d 339, 340; People v. Gastelum, supra, 237 Cal.App.2d 205, 209.) Thus the statements elicited from defendant Martinez in the instant case were obtained in violation of his constitutional rights and were properly determined to be inadmissible at his criminal trial.

We therefore must now turn to the difficult problems presented by the Adult Authority’s consideration of this evidence. In resolving these questions we look initially to the test, articulated by our court in People v. Moore (1968) 69 Cal.2d 674 [72 Cal.Rptr. 800, 446 P.2d 800]; there we examined the applicability of the Fourth Amendment exclusionary rule to a civil narcotics commitment proceeding. We declared in Moore: “Whether any particular rule of criminal procedure should be applied in a narcotic addict commitment proceeding depends upon consideration of the relationship of the policy underlying the rule to the proceeding. (Cf. In re Gault, 387 U.S. 1, 13-14 [18 L.Ed.2d 527, 538, 87 S.Ct. 1428].)” (69 Cal.2d at pp. 681-682.) In determining the applicability of the Fourth Amendment and the Dorado-Miranda exclusionary rules to Adult Authority proceedings we examine both the policies underlying the rules and the purposes and nature of the proceeding.

1. One purpose of both the Fourth Amendment exclusionary rule and the Dorado-Miranda exclusionary rule is the deterrence of illegal governmental conduct.

As we recognized in Moore, “[t]he basic purpose of the [Fourth Amendment] exclusionary rule is to deter unconstitutional methods of law enforcement. (Elkins v. United States, 364 U.S. 206, 217 [4 L.Ed.2d 1669, 1677, 80 S.Ct. 1437]; Mapp. v. Ohio [1961] supra, 261 U.S. 643, 656 [6 L.Ed.2d 1081, 1090, 81 S.Ct. 1684]; People v. Parham, 60 Cal.2d 378, 385 [33 Cal.Rptr. 497, 384 P.2d 1001]; People v. Cahan, supra, 44 Cal.2d 434, 445 et seq. [282 P.2d 905, 50 A.L.R.2d 513].)” (69 Cal.2d at p. 682.) The rule attempts “to compel respect for the constitutional guarantee [to be free from unreasonable search and seizure] in the only effectively available way—by removing the incentive to disregard it.” (Elkins v. United States (1960) 364 U.S. 206, 217 [4 L.Ed.2d 1669, 1677, 80 S.Ct. 1437, 1453].) “By denyihg any profit from the unconstitutional methods of law enforcement, it is to be anticipated that law enforcement officials will have no incentive to engage in such methods.” (People v. Moore, supra, 69 Cal.2d 674, 682.)

The decision of this court in Dorado, and subsequently the decision of the United States Supreme Court in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], requiring the exclusion of confessions elicited through custodial interrogation when the defendant was not adequately apprised of his constitutional rights, rested, in part, on a similar need to deter improper law enforcement activity. As the extensive discussion of the coercive police interrogation procedures in Miranda indicates (384 U.S. at pp. 445-458 [16 L.Ed.2d at pp. 707-714]), the warnings were believed constitutionally required to insure that government officials would not exceed constitutional bounds in eliciting confessions from suspects. The remedy of excluding all confessions obtained without such warnings contemplated a dual purpose: (1) to prevent the introduction of a confession that may not have been truly the product of a free will and (2) to deter the police from engaging in “third degree” practices, activities “at odds with one of our Nation’s most cherished principles —that the individual may not be compelled to incriminate himself.” (384 U.S. at pp. 457-458 [16 L.Ed.2d at pp. 713-714].)

As we stated explicitly in In re Lopez (1965) 62 Cal.2d 368, 372-373 [42 Cal.Rptr. 188, 398 P.2d 380], the companion case of Dorado: “[W]e believe that the United States Supreme Court in Escobedo sought primarily to prevent police tactics which, in the past, have spawned involuntary confessions. . . . [T]he rule contemplated the prospective prevention of coercive practices—not the extirpation of such practices committed in the past.” (See also Johnson v. New Jersey (1966) 384 U.S. 719 [16 L.Ed.2d 882, 86 S.Ct. 1772].)

2. The critical responsibilities of the administration of the parole system require that the Adult Authority generally be permitted to consider all relevant evidence.

Although we recognize that theoretically the exclusion of the products of illegal searches and interrogations from Adult Authority proceedings would supplement the deterrent force of the criminal trial exclusionary rules, we must also consider the unique nature and responsibilities of the Adult Authority and the extremely high costs which the expanded application of the exclusionary rule would entail in this context. Our desire to preserve legalistic symmetry cannot obscure the necessity of examining the practical merits of the underlying competing societal interests actually at stake. We must be ever-cautious of becoming “so overly concerned with ‘the internal perfecting of [the law’s] own categories’ as to forget the goals of the [judicial] enterprise.” (See Cox, Chief Justice Earl Warren (1969) 83 Harv.L.Rev. 1, 2.)

We believe, at this time, that the incremental deterrent effect that will realistically be achieved by shielding the Adult Authority from illegally procured evidence is slight; the bungling police officer is not likely to be halted by the thought that his unlawful conduct will prevent the termination of parole because the authority cannot consider the evidence that he unlawfully procures. When, as in the instant case, the police are not even aware that a suspect is a parolee, the supplemental deterrent factor is, of course, completely absent.

On the other hand, the social consequences of imposing the exclusionary rule upon the authority can be disastrous. Conceivably, if the improperly obtained evidence were the sole basis for parole revocation, the authority might find itself unable to act in the case of the paroled murderer whom the police improperly discovered had cached a minor armory for future use or the paroled narcotics peddler who had collected a quantity of heroin for future sale. Although we recognize, of course, that such evidence would not be admissible in a court of law, we believe that an agency whose delicate duty is to decide when a convicted offender can be safely allowed to return to and remain in society is in a different posture than the court which decides his original guilt. To blind the authority to relevant facts in this special context is to incur a risk of danger to the public which, at least as of this date, outweighs the competing considerations of a problematical gain in deterrence. We thus conclude that at this time the general Fourth Amendment and Dorado exclusionary rules are not applicable to Adult Authority proceedings.

In holding that the Adult Authority could properly consider the illegally obtained evidence in this case, we specifically note that we are not faced with a situation in which it has been alleged that the circumstances surrounding the interrogation are of a nature to render the confession “involuntary” or “coerced” (see, e.g., Brooks v. Florida (1967) 389 U.S. 413, 414-415 [19 L.Ed.2d 643, 645-646, 88 S.Ct. 541]; Beecher v. Alabama (1967) 389 U.S. 35, 36-38 [19 L.Ed.2d 35, 37-38, 88 S.Ct. 189]; Sims v. Georgia (1967) 389 U.S. 404, 406-407 [19 L.Ed.2d 634, 636-637, 88 S.Ct. 523])⁷ or that the police conduct in effectuating the search was so egregious as to offend “the ‘traditions and [collective] conscience of our people.’ ” (Griswold v. Connecticut (1965) 381 U.S. 479, 493 [14 L.Ed.2d 510, 520, 85 S.Ct. 1678] (Goldberg, J., concurring) (quoting Snyder v. Massachusetts (1934) 291 U.S. 97, 105 [78 L.Ed. 674, 677, 54 S.Ct. 330, 90 A.L.R. 575]) or to “shock the conscience.” (See Rochin v. California (1952) 342 U.S. 165, 172-174 [96 L.Ed. 183, 190-191, 72 S.Ct. 205, 25 A.L.R.2d 1396],)⁸ If we were presented with an instance in which the Adult Authority considered evidence obtained under those circumstances we might well conclude that the constitutional demands of due process could not countenance any governmental use of such evidence, even by the Adult Authority.

In declining to apply the exclusionary rules to Adult Authority proceedings, we do not, of course, intimate that these exclusionary rules are not applicable to other administrative proceedings. (See Knoll Associates, Inc. v. Federal Trade Com. (7th Cir. 1968) 397 F.2d 530, 533-534 (Fourth Amendment exclusionary rule applied to Fed. Trade Com. hearing); Leogrande v. State Liquor Authority (1966) 25 App.Div.2d 225 [268 N.Y.S.2d 433], revd. on other grounds (1967) 19 N.Y.2d 418, [280 N.Y.S.2d 381, 227 N.E.2d 302] (Breitel, J.) (Fourth Amendment exclusionary rule applied to liquor license revocation proceeding); cf. In re Marsh (1968) 40 Ill.2d 53 [237 N.E.2d 529, 531] (Fourth Amendment exclusionary rule applied to juvenile proceedings).)⁹ In other circumstances, the consequences of excluding some relevant information may not be as dire as they are in the Adult Authority context, and thus our evaluation of the appropriateness of applying the exclusionary rule may well be altered.

We thus conclude that in the instant case the Adult Authority could properly consider all the evidence before it and its decision to reaffirm the revocation of petitioner’s parole, after the reversal of his 1963 conviction, may stand.

The writ is denied.

Traynor, C. J., McComb, J., Mosk, J., Burke, J., and Sullivan, J., concurred.

1 The Court of Appeal found that police officers, after arresting defendant in a car outside his home, had conducted a full search of his home without a search warrant. It concluded on the authority of People v. Cruz (1964) 61 Cal.2d 861 [40 Cal.Rptr. 841, 395 P.2d 889], that the search was not incident to an arrest and thus that the fruits of the search should be suppressed. (People v. Martinez (1965) 232 Cal.App.2d 796, 799-800 [43 Cal.Rptr. 197].)

2 In our original opinion in Brown we included a sentence which read: “The Authority should not, however, use defendant’s confession for any purpose foreclosed to the courts.” (67 Cal.2d 339, 341.) The opinion was later modified to omit this sentence (67 Cal.2d 339, 342) when it was recognized that the issue with which the sentence dealt was not properly before the court and had not been fully argued.

3 When the Adult Authority acts to suspend or to revoke a parolee’s parole status, it must issue a formal order designating the grounds for revocation. (Pen. Code, § 3063.) The authority apparently does not normally prepare such an order, designating the grounds for its decision, when it denies a parolee’s initial request for release on parole. An order incorporating the grounds for the authority’s decision should be prepared, however, whenever, as in the instant case, the authority reconsiders a previous parole revocation after one of its initial grounds for revocation is invalidated. This formal order is necessary to facilitate judicial review of the authority’s subsequent determination on the issue of revocation.

Although the authority did not prepare a formal, written statement in the instant case, and the precise nature of the “parole conduct” referred to in the informal record of the authority’s 1965 hearing is not clear, the state has conceded that the authority relied at least in part on acts of the defendant evidenced by the illegally obtained matter. We proceed to analyze the authority’s determination on the basis of the state’s concession.

4 The Court of Appeal’s opinion does not mention defendant’s parole status. From its discussion of the facts, however, it made clear that the officers were not aware of defendant’s status, but were merely performing their normal investigatory activities. The People do not suggest otherwise.

5 People v. Goss (1961) 193 Cal.App.2d 720, 724-725 [14 Cal.Rptr. 569], is disapproved insofar as dictum therein implies that a parolee is without any constitutional protection against unreasonable searches and seizures. (See Brown v. Kearney (5th Cir. 1966) 355 F.2d 199, 200.)

6 Searches by parole officers pursuant to their duties, just as other administrative searches (see Camara v. Municipal Court (1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727]) are subject to the broad reasonableness requirement of the Fourth Amendment. (See, e.g., People v. Langella (1963) 41 Misc.2d 65 [244 N.Y.S.2d 802, 805]; Martin v. United States (4th Cir. 1950) 183 F.2d 436, 439, cert. den. 340 U.S. 904 [95 L.Ed. 654, 71 S.Ct. 280]; cf. Terry v. Ohio (1968) 392 U.S. 1, 16-20 [20 L.Ed.2d 889, 902-905, 88 S.Ct. 1868].) The conditional nature of a parolee’s freedom may result in some diminution of his reasonable expectation of privacy and thus may render some intrusions by parole officers “reasonable” even when the information relied on by the parole officers does not reach the traditional level of “probable cause.” A diminution of Fourth Amendment protection, however, can be justified only to the extent actually necessitated by the legitimate demands of the operation of the parole process (see United States v. Lewis (S.D.N.Y. 1967) 274 F.Supp. 184. 190; cf. Camara v. Municipal Court, supra, 387 U.S. 523, 534-539 [18 L.Ed.2d 930, 938-941, 87 S.Ct. 1727]; Note, Parole Status and the Privilege Concept, 1969 Duke L.J. 139, 145 fn. 19.) When a police officer is not awar.e that a suspect is on parole, or is not investigating a parole violation, an intrusion into the parolee’s privacy cannot be properly justified by the needs of the parole system. (See also United States v. Hallman (3d Cir. 1966) 365 F.2d 289 (parole officer was acting merely as “agent, tool or device" of arresting police officers and thus his search of parolee without probable cause was illegal).)

7 In Johnson v. New Jersey, supra, 384 U.S. 719, the United States Supreme Court drew this identical distinction between “involuntary” confessions and confessions inadmissible under the prophylactic rules of Escobedo and Miranda in concluding that Escobedo and Miranda were to be applied prospectively, while the rules concerning “involuntary” confessions had full retroactive effect. (384 U.S. at pp. 729-732 [16 L.Ed.2d at pp. 889-891].) (See also People v. Varnum (1967) 66 Cal.2d 808, 812-813 [59 Cal.Rptr. 108, 427 P.2d 772].)

8 Compare Rochin v. California, supra, 342 U.S. 165 (use of evidence obtained through “stomach pumping" violates due process) with Aguilar v. Texas (1964) 378 U.S. 108 [12 L.Ed.2d 723, 84 S.Ct. 1509] (use of evidence obtained through search pursuant to invalid warrant violates Fourth Amendment). In Schmerber v. California (1966) 384 U.S. 757 [16 L.Ed.2d 908, 86 S.Ct. 1826], after concluding that a requirement that a defendant submit to a blood test performed by a physician in a hospital environment according to accepted medical practices was permissible, the court went on to point out that “[w]e are thus not presented with the serious questions which would arise if a search involving the use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain." (Italics added.)

9 We must note that in reaching our decision we do not rely on the fact that strict rules of evidence may not be applicable because of the informal, administrative nature of the Adult Authority proceedings. (Cf. Robinson v. Cox (1966) 77 N.M. 55 [419 P.2d 253, 256].) The purposes of the constitutional exclusionary rules are entirely unrelated to the ends served by normal rules of evidence, and the mere fact that rules of evidence are relaxed will generally have no bearing on the applicability of the constitutional exclusionary rules.