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The State

Ruling Says Parolees Entitled to a Limited Right to Privacy

State Supreme Court overturns conviction in Bakersfield drug case. Ex-convict's home was searched without a warrant.

August 01, 2003|Jean Guccione | Times Staff Writer

Finding that even an ex-convict has some right to privacy, the California Supreme Court ruled Thursday that police who are unaware that a suspect is on parole may not legally search his apartment over his objection.

Justices voted 6 to 1 to overturn the drug conviction of a Bakersfield parolee who tried to refuse to allow police responding to a report of domestic violence to enter his apartment.

"It reaffirms the principle that police should not search first and ask questions later," said J. Peter Axelrod, the lawyer who won the case.

Under California law, Kenton McDaniel, as a parolee, was subject to warrantless searches of his home and person. But officers were unaware of his parole status until after they found illegal drugs inside a pair of work boots in an open bedroom closet.

The justices concluded that the search was unjustified because the officers did not have probable cause nor did they know McDaniel was on parole when they handcuffed him and his roommate and searched the apartment.

"A parolee's expectation of privacy certainly is diminished, but it is not eliminated," the majority opinion states. The majority ruled that the use of evidence discovered when police responded to a domestic disturbance and conducted a "protective sweep" of the premises "would legitimize unlawful police conduct."

Two Bakersfield officers responding to a call in 1999 heard screaming and knocked on the door. McDaniel and his roommate, Arlene Sanders, who had been fighting, stopped and, after a short delay, opened the door. She had an abrasion on her face, and police saw McDaniel hide something they described as "metal" in the sofa.

Sanders and McDaniel demanded that the police leave and, when they did not, a tussle ensued, with police handcuffing both of them. While trying to secure the apartment, one of the officers spotted the illegal drugs and called for backup. Both residents were arrested and charged with possessing cocaine base for sale.

When the trial judge refused to throw out the evidence, Sanders and McDaniel pleaded guilty to lesser charges. She was sent to prison for 16 months; he for five years.

Four justices in the majority said the ruling was needed to deter police misconduct.

Without suppressing evidence, "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," Justice Carlos Moreno wrote for the majority.

In separate concurring opinions, Justices Joyce Kennard and Janice Rogers Brown concluded the deterrent effects were irrelevant. Brown admonished her colleagues, "We should avoid sloppy analysis that could cause future mischief."

All seven justices agreed that the search infringed upon Sanders' constitutional right against unreasonable searches and seizures.

The California attorney general's office at first conceded the search was illegal as to Sanders, according to the opinion, then argued "the evidence was later obtained independently during a valid parole search."

Only Justice Marvin Baxter found that when police arrived McDaniel should have expected, as a parolee, that his apartment might be searched.

He also noted that police were responding to a fight and did not arbitrarily select McDaniel to search.

Baxter reasoned that "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" and admitting the drug evidence.

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