Metropolitan News-Enterprise


Tuesday, July 18, 2006


Page 1


S.C. Limits Remedy for Allegedly Invalid Parole Searches


By KENNETH OFGANG, Staff Writer/Appellate Courts


A parolee who claims that a warrantless search of his person was illegal because the police did not know he was on parole is not entitled to have his conviction thrown out, but only to a new suppression hearing, the California Supreme Court ruled yesterday.

In a unanimous decision, the justices reversed a Fourth District Court of Appeal ruling that would have tossed out Adrian Moore’s conviction for possession of cocaine and his 25-year-to-life sentence under the Three Strikes Law and ordered that the case be remanded to San Bernardino Superior Court.

Evidence presented at Moore’s preliminary hearing showed that he was taken to a hospital by ambulance after an encounter with a police officer on a San Bernardino street. After he was sedated, doctors removed several objects from his mouth, including a rock containing cocaine, which was covered in plastic.

At the suppression hearing, prosecutors presented evidence that at the time of the seizure, Moore was on parole and subject to search “with or without a search warrant, with or without probable cause” as a condition of his release.

The judge ruled that this was a sufficient basis for the search and seizure and denied the motion. At a subsequent trial, Moore was convicted of possession of a controlled substance and was sentenced as a third-strike offender.

While the appeal was pending, however, the Supreme Court ruled in People v. Sanders (2003) 31 Cal.4th 318, that a search condition only supports a search if the officers knew of the condition.

Prosecutors contended, based on the police report and a declaration filed in opposition to the motion, that at least one of the officers involved in the search knew that Moore was on parole. In any event, they argued, they should be given an opportunity to present evidence on the issue at a new hearing.

A divided panel of the Fourth District’s Div. Two disagreed, saying that because the evidence presented at the suppression hearing did not establish the officers’ knowledge, the evidence was inadmissible and the conviction had to be thrown out.

But Justice Ming Chin, writing for all seven members of the high court, said there was no reason why the trial court could not conduct a new hearing.

He distinguished Lorenzana v. Superior Court (1973) 9 Cal.3d 626, in which the court held that where a search is found invalid based on the record of the suppression hearing, the court cannot remand for the prosecution to raise additional arguments. Allowing such a remand, the justices said at the time, would be inconsistent with the intent of the statute governing suppression hearings, which is to avoid “continued relitigation of the question of the admissibility of evidence.”

Chin wrote:

“[O]ur concern in Lorenzana did not address the situation here, where during the appeal a change in the law necessarily prevented parties from presenting all pertinent facts and theories at the suppression hearing.”

The justice also rejected the argument that the passage of seven years since the arrest has prejudiced the defense by limiting its access to evidence, rendering remand a due process violation.

The high court, Chin noted, held in a previous case that “[d]elays that are the product of the normal appellate process do not implicate due process concerns.”

Allowing a new suppression hearing, Chin added, serves “the interest of efficiency and fairness.” Lorenzana, he pointed out, limits the issues to be determined at the new hearing to those raised in the moving and opposing papers.


Copyright 2006, Metropolitan News Company