People v. Woods , 21 Cal. 4th 668 ( 1999 )

KENNARD, J., Dissenting.

Recently, dissenting from this court’s decision in People v. Reyes (1998) 19 Cal.4th 743 [80 Cal.Rptr.2d 734, 968 P.2d 445] to permit warrantless, suspicionless searches of homes occupied by parolees with a parole search condition, I wrote: “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 [People v.] Burgener [(1986)] 41 Cal.3d 505 [224 Cal.Rptr. 112, 714 P.2d 1251], 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.” (19 Cal.4th at p. 765 (dis. opn. of Kennard, J.).)

The effects of today’s decision are equally pernicious. It permits police to use a probation search condition, which authorizes the warrantless, suspicionless search of a probationer, as authority to search a home for the express purpose of seeking evidence against nonprobationers who share the residence with the probationer. Once again, in an era in which privacy has become increasingly fragile and endangered, this court has chosen to erode the constitutional protections that help to preserve it. The majority’s arguments supporting this regrettable result are ill-founded for the reasons explained in Justice Brown’s dissent, which I join.

Mosk, J., concurred.