In Re Martinez

PETERS, J.

I dissent.

The majority hold that evidence concededly obtained in violation of the constitutinonal protection to which a parolee continues to be entitled may properly be considered by the Adult Authority “in exercising its broad authority over the parole system and parolees, . . .” In reaching their conclusion, the majority purport to apply the following test: “In determining the applicability of the Fourth Amendment and the DoradoMiranda exclusionary rules to Adult Authority proceedings we examine both the policies underlying the rules and the purposes and nature of the proceeding.”

Although I agree with the basic test set out by the majority, I am of the opinion that the majority have reached an incorrect result by failing to examine adequately the opposing interests involved. In the first place, they assert without any analysis their belief that the incremental deterrence of police misconduct to be reaped from an application of the exclusionary rule to Adult Authority proceedings would be “slight.” Second, they fail even to mention a second purpose served by the exclusionary rule—to uphold the integrity of our system of government. On the other hand, in discussing the “social consequences” of applying the exclusionary rule to Adult Authority proceedings, the majority mention no “consequences” that are unique to such proceedings and that distinguish them from court proceedings; instead, they merely state their belief that the authority is “in a different posture” than the courts.

Contrary to the majority, I believe that to hold unconstitutionally obtained evidence admissible in Adult Authority proceedings will furnish an incentive to government officials to violate the Fourth, Fifth, and Fourteenth Amendments, especially when the subject of their investigation is a parolee.

As this court stated in People v. Moore, 69 Cal.2d 674, 682 [ 72 Cal.Rptr. 800 , 446 P.2d 800 ], “[t]he basic purpose of the exclusionary rule it to deter unconstitutional methods of law enforcement. [Citations.] The exclusionary rule is not a penalty but is derived from the principle that the state must not profit from its own wrong. [Citation.] By denying any profit from the unconstitutional methods of law enforcement, it is to be *653 anticipated that law enforcement officials will have no incentive to engage in such methods.” (Italics added.)

Conversely, once law enforcement officials are permitted to profit in any conceivable way as a direct result of unconstitutional methods of law enforcement it is to be anticipated that they will have an incentive to engage in such methods in the hope of uncovering some evidence from which they may profit. The officials ordinarily suffer no penalty for their unlawful conduct. (See, e.g., Mapp v. Ohio (1961) 367 U.S. 643, 670 [ 6 L.Ed.2d 1081, 1098 , 81 S.Ct. 1684 ] (Douglas, J., concurring).) Faced with a situation where there might be something to gain, even where the possibility of gain is remote, and where they cannot secure evidence by legal means, the danger of the officials engaging in unconstitutional methods of law enforcement is acute. (Cf. People v. Cahan, 44 Cal.2d 434, 449 [ 282 P.2d 905 , 50 A.L.R.2d 513 ].)

Because the laudable purpose of the exclusionary rule—to deter unconstitutional methods of law enforcement—can only be served by denying the government any and all profit from such methods, any exception to the rule eliminates the deterrent effect of the rule and encourages law enforcement officials to engage in the unlawful conduct. When those officials have nothing to lose and something to gain by such conduct, the deterrent effect of the rule is largely if not entirely destroyed. Under today’s majority decision, a law enforcement official is encouraged to engage in unconstitutional law enforcement methods in the hope that the evidence thereby secured may be profitably used should it subsequently appear that the victim of such conduct was a parolee.

Not only does the majority opinion jeopardize the constitutional rights of citizenry in general, it completely emasculates those limited constitutional rights to which it concedes parolees are entitled. Investigations of parole violations and new criminal offenses are very often cooperative efforts; police and parole officers frequently work together to reimprison the parolee suspected of criminal activity. When the cost of prosecution in terms of time and money is considered too high, and when the parolee still has a considerable time to serve on his original sentence, the People will often forego a new criminal trial and instead will look to the parole revocation to serve the ends of a new conviction. 1

*654 Thus the similarity of the results of conviction and parole revocation and the ongoing participation of general law enforcement officials in parole violation cases support the conclusion that the consequences of potential parole revocation are within the general police officer’s train of thought. Unless the exclusionary rule is applied to Adult Authority proceedings, there will be no protection for the Fourth, Fifth, and Fourteenth Amendment rights retained by the parolee. It is anomalous for the majority to recognize the limited constitutional rights of parolees and at the same time to render them meaningless by allowing police to violate them with impunity so as to secure a parolee’s parole revocation.

Moreover, the majority state merely that “[o]ne purpose of both the Fourth Amendment exclusionary rule and the Dorado-Miranda exclusionary rule is the deterrence of illegal governmental conduct.” (Italics deleted in part.) They fail completely to mention another purpose of the exclusionary rule that also would be served by withdrawing illegally obtained evidence from the proper consideration of the Adult Authority—“the imperative of judicial integrity.” (Elkins v. United States (1960) 364 U.S. 206, 222 [ 4 L.Ed.2d 1669, 1680 , 80 S.Ct. 1437, 1453 ].) This secondary function of the exclusionary rule draws its strength from the profound philosophical roots that support a government of law. This court has articulated this concern in a variety of ways, declaring that “the state must not profit from its own wrong” (People v. Parham, 60 Cal.2d 378, 386 [ 33 Cal.Rptr. 497 , 384 P.2d 1001 ]), and that it is “morally incongruous” for the state to impose punishment when it, itself, has become a law breaker. (People v. Cahan, supra, 44 Cal.2d 434, 446 .) In both Miranda v. Arizona (1966) 384 U.S. 436, 479-480 [ 16 L.Ed.2d 694, 726-727 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], and Mapp v. Ohio, supra, 367 U.S. 643, 659 [ 6 L.Ed.2d 1081, 1092 , 81 S.Ct. 1684 ], the United States Supreme Court cited with approval Justice Brandeis’ eloquent dissent in Olmstead v. United States (1928) 277 U.S. 438, 485 [ 72 L.Ed. 944, 960 , 48 S.Ct. 564 , 66 A.L.R. 376 ]: “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. ... If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” (See also, People v. Cahan, supra, 44 Cal.2d 434, 446 .)

Reliance on fruits of illegal government action is as destructive of the appearance of justice and as likely to lead to the miseducation of the *655 public in the case of parole revocation as it is in a more formal criminal trial. Indeed, the condonation of government lawlessness is conceivably even less acceptable in parole proceedings than in criminal trials; the rehabilitative foundations of the entire parole system can be completely undermined when a parolee observes his teacher, the government, violate the law with apparent immunity.

On the other hand, the majority fail to mention any “social consequences” of applying the exclusionary rule to Adult Authority proceedings that are not equally a result of applying the rule to court proceedings. In either case, the result will sometimes be that the government will be unable to act against criminals—even dangerous criminals. This would be true in Adult Authority proceedings when the illegally obtained evidence is the sole basis for parole revocation just as it is now true in court proceedings when the illegally obtained evidence is the sole basis for conviction. The United States Supreme Court and this court were both well aware that the application of the exclusionary rule to court proceedings would sometimes result in the freeing of criminals who would otherwise be incarcerated. (See, e.g., Mapp v. Ohio, supra, 367 U.S. 643, 659 ; Elkins v. United States, supra, 364 U.S. 206, 217-218 [ 4 L.Ed.2d 1669, 1677-1678 , 80 S.Ct. 1437, 1453 ]; People v. Cahan, supra, 44 Cal.2d 434, 438-439, 449-450 .) As this court stated in People v. Cahan, supra, 44 Cal.2d 434, 449 , “[i]t is contended, however, that the police do not always have a choice of securing evidence by legal means and that in many cases the criminal will escape if illegally obtained evidence cannot be used against him. This contention is not properly directed at the exclusionary rule, but at the constitutional provisions themselves. It was rejected when those provisions were adopted.” And certainly police officers who violate the fundamental guarantees in order to obtain parole revocation are no less guilty of violating the basic law of the land than officers who violate those guarantees for the purpose of the apprehension and conviction of criminal offenders. (Cf. People v. Moore, supra, 69 Cal.2d 674, 680 .)

Recognition of the basic rationales underlying the exclusionary rule has led many courts to hold the rule applicable in noncriminal proceedings. In addition to our decision involving narcotic commitment proceedings in People v. Moore, supra, 69 Cal.2d 674 , the United States Supreme Court has held the rule applicable in civil forfeiture proceedings, proceedings in which the government is one of the adversary parties. (One 1958 Plymouth Sedan v. Pennsylvania (1965) 380 U.S. 693 [ 14 L.Ed.2d 170 , 85 S.Ct. 1246 ]; see People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 96-97 [ 41 Cal.Rptr. 290 , 396 P.2d 706 ]; cf. Hinchcliffe v. Clarke (N.D. Ohio 1963) 230 F.Supp. 91, 100-102 (rule applied in civil tax assessment proceeding); United States v. Blank (N.D. Ohio 1966) 261 F.Supp. 180, *656 182-184 (same); In re Marsh (1968) 40 Ill.2d 53, 55 [ 237 N.E.2d 529, 531 ] (rule applied in juvenile proceedings).)

Although the Supreme Court has not yet addressed the question of the rule’s application to administrative proceedings, the genre encompassing Adult Authority interviews, several courts, state and federal, have recently concluded that the purposes of the rule dictate that it be given effect in such proceedings. (Knoll Associates, Inc. v. Federal Trade Com. (7th Cir. 1968) 397 F.2d 530, 533-534 (F.T.C. proceeding); Leogrande v. State Liquor Authority (1966) 25 App.Div.2d 225 [ 268 N.Y.S.2d 433 ], reversed on other grounds (1967) 19 N.Y.2d 418 [ 280 N.Y.S.2d 381 , 227 N.E.2d 302 ] (Breitel, J.) (liquor license revocation proceeding); Finn’s Liquor Shop, Inc. v. State Liquor Authority (1968) 31 App.Div.2d 15, 19 [ 294 N.Y.S.2d 592, 596 ] (same); Malik v. New York State Liquor Authority (1968) 30 App.Div.2d 1040 [ 294 N.Y.S.2d 948 ] (same).)

Judge Breitel’s reasoning in Leogrande v. State Liquor Authority, supra, 25 App.Div.2d 225, 231-232 [ 268 N.Y.S.2d 433, 440 ], is germane to the parole revocation context: “All of the reasons in policy which suggest the application of the exclusionary rule to illegal searches and seizures by public officers in criminal proceeding's apply equally to administrative proceedings of the present character, namely those involving penalties, forfeitures, or other sanctions for the violation of law or regulation.[ 2 1 . . . The exclusionary rule is addressed to the obnoxiousness of illegal conduct by public officials and the visiting by officials of serious official consequences upon the victims of such illegal conduct. ... The exclusionary rule rests on a theory of deterrence; that policy would not be served if the illegal official activity could be used, despite unavailability in criminal proceedings, to effect parallel sanctions of forfeiture in an administrative proceeding.” (Italics added.)

I recognize that many of the constitutional criminal protections available to defendants at trial, or even at noncriminal narcotic commitment proceedings, have in the past been held not constitutionally required in parole revocation proceedings. (See, e.g., In re McLain, 55 Cal.2d 78, 85 [ 9 Cal.Rptr. 824 , 357 P.2d 1080 ] (no constitutional right to notice or hearing); In re Schoengarth, 66 Cal.2d 295, 304 [ 57 Cal.Rptr. 600 , 425 P.2d 200 ] (no constitutional right to appointment of counsel).) The *657 People maintain that these decisions demonstrate the inapplicability of the exclusionary rule in the instant case. This argument, however, overlooks the distinct rationale of the exclusionary rule. While the right to hearing or the right to counsel are protections aimed at preserving the accuracy and integrity of a given decision-making process, the exclusionary rule’s purpose of deterrence is not related to the fairness of the parole revocation proceeding but is concerned with protecting the constitutional rights of all citizens, including the limited rights to which the majority concede parolees are entitled. While a parolee may enjoy no constitutional right to a hearing at parole revocation, he does—as the majority themselves concede (majority opinion, fn. 6)—have a constitutional right to be free of at least certain governmental intrusions into his privacy; in this case it has already been determined that this constitutional right of defendant has been violated. A decision finding the exclusionary rule applicable to Adult Authority proceedings is thus not irreconcilable with our prior case law. As I have pointed out, to hold unconstitutionally obtained evidence admissible in Adult Authority proceedings would furnish an incentive to government officials generally to violate the Fourth, Fifth, and Fourteenth Amendments, especially when the subject of their investigation is a parolee.

In sum, the “social consequences” of applying the exclusionary rule to Adult Authority proceedings are no different from the “social consequences” of applying the exclusionary rule to court proceedings. More important, the result of the majority’s holding that the exclusionary rule does not apply to Adult Authority proceedings is that the constitutional rights of the general citizenry will be jeopardized and that a parolee’s limited constitutional rights—to which even the majority readily concede he is entitled—will be held only at the whim of the police.

The People maintain that the Adult Authority had before it other evidence,- untainted by the illegal police conduct, implicating petitioner in the 1963 criminal activity, and thus that there are grounds to sustain the parole revocation even if the illegally obtained evidence should have been excluded. It is unclear from the meagre Adult Authority records, however, what the authority relied on in finding the petitioner guilty of errant “parole behavior.” Given this ambiguity, the proper disposition of the case would be a remand to the authority to consider whether revocation was justifiable absent the illegally obtained evidence.

The California Adult Authority’s Statement of Policy Concerning Cooperation With Law Enforcement Regarding Revocation of Parole for New Offenses Without Prosecution (Nov. 1, 1957) declares: “Whenever a parolee comes to the attention of law enforcement for a new offense, the parole agents, under established policy, are instructed to cooperate fully with investigating and prosecuting agencies. . . . [¶] Experience reveals that prosecution usually follows where evidence is sufficient to establish guilt. However, there are .a number of exceptions involving cases in which prosecution agencies have indicated that the time, trouble and expense of prosecution *654 seemed unnecessary since the return to prison under revocation of parole offered adequate protection to society. [¶] In principle, the Adult Authority is in accord with this approach. In the past this procedure has been followed in some areas with such good effect that it seems desirable that this policy be made clear throughout the State so that the program may be adopted and followed to whatever extent local agencies care to employ it.”

Leogrande cannot be distinguished from the instant case on the grounds that there is no forfeiture because the parolee has no right to his parole status. The dissent in Leogrande emphasized the “privilege” nature of a liquor license but was unable to persuade the majority that the label of “privilege” had any substantive effect. The trend of the developing case law is to deny any distinction flowing from the “right-privilege” terminology. (See Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law (1968) 81 Harv.L.Rev. 1439; Note, Constitutional Law: Parole Status and the Privilege Concept, 1969 Duke L.J. 139 .)