Metropolitan News-Enterprise


Friday, August 1, 2003


Page 1


Unknown Parole Condition Held Not to Justify Residence Search


By KENNETH OFGANG, Staff Writer/Appellate Courts


A search of a residence cannot be justified on the ground that one of the occupants was a parolee subject to a search condition that the officers had no knowledge of at the time, the California Supreme Court ruled yesterday.

The justices affirmed the Fifth District Court of Appeal’s decision to throw out the drug possession convictions of Arlene Sanders and Kenton McDaniel. The vote was 7-0 with respect to Sanders and 6-1 as to McDaniel, the parolee, with Justice Marvin Baxter dissenting.

Sanders and McDaniel were arrested by Bakersfield police who responded to reports of a domestic disturbance at the couple’s apartment. The officers testified at a suppression hearing that Sanders opened the door, that she had an abrasion on her face, and that McDaniel was nearby, standing behind a couch.

McDaniel, according to the testimony, placed something behind a couch cushion, with one of the officers catching a glimpse of something metal. Sanders demanded that the officers leave and began “tussling” with the officer as McDaniel also demanded that the officers leave.

The officers handcuffed both defendants, and conducted what one of them testified was a “protective sweep” of the apartment to make sure that no one else was present in the apartment. While searching one of the rooms, an officer saw a pair of work boots, one of which “had a bunch of plastic bags stuffed into it and it had little white chunks of cocaine base knotted into the corners.”

Search Condition

After notifying their headquarters, the officers learned for the first time that McDaniel was subject to a parole search condition. They then conducted a full search of the apartment, seizing the boots with the drugs and other evidence.

After a Kern Superior Court judge denied their suppression motions, Sanders pled guilty to possession of a controlled substance and McDaniel to possession of cocaine base, each reserving the right to appeal. Sanders was sentenced to 16 months in prison and McDaniel to five years.

The Fifth District panel reversed, ruling that the officers had no right to conduct a “protective sweep” once the defendants were handcuffed and that there was no valid parole search because the officers were unaware McDaniel was on parole. The Supreme Court granted the attorney general’s petition for review, but only as to whether there was a valid parole search.

Justice Carlos Moreno, writing for the court, said the search was unlawful.

Court’s Reasoning

The search was unlawful as to Sanders, he explained, because there was” no basis upon which to conclude that the seizure of the drugs was not the fruit of the unlawful protective sweep of the apartment.” And while the legality of the search with respect to McDaniel was a “more difficult question,” Moreno wrote, the appropriate conclusion is that “a search that violates the reasonable expectation of privacy of a cohabitant of a parolee subject to a search condition also is unlawful as to the parolee.”

The justice elaborated:

“The requirement that the reasonableness of a search must be determined from the circumstances known to the officer when the search was conducted is consistent with the primary purpose of the exclusionary rule — to deter police misconduct.”

Baxter, dissenting in part, argued that the evidence was validly admitted against McDaniel, based on the totality of the circumstances, including McDaniel’s participation in the events that brought the police to the apartment in the first place. He reasoned that “...McDaniel’s parolee status and the search term to which he was subject severely diminished any reasonable expectation of privacy McDaniel may have had in his home and provided legal authority for the challenged search.”

The case is People v. Sanders, 03 S.O.S. 4090.


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