The PEOPLE, Plaintiff and Respondent, v. Christopher RIDGE, Defendant and Appellant.
Following denial of his motions to suppress evidence and quash a search warrant, Christopher Ridge, also known as Christopher Atchison, entered a plea of guilty to a charge of receiving a stolen pickup truck.1 (Pen.Code,2 § 496, subd. (a).) The court sentenced him to state prison for the middle base term of two years. On appeal, Ridge contends the court erred when it denied his pretrial motions.
The facts are unusual, but undisputed:
Officer Beckwith of the Delano Police Department met with a confidential informant on March 4, 1995. The informant advised him Ridge had a stolen white Chevrolet pickup bed in Ridge's garage on Madison Street in Delano. The informant had observed the truck bed; Ridge told the informant it was stolen.
Beckwith was acquainted with Ridge and believed he was a state parolee under the supervision of parole officer Joe Salcido. Beckwith unsuccessfully attempted to contact Salcido. Beckwith then spoke by telephone with Salcido's supervisor, Mr. Shipman, of the Bakersfield Parole Office. Beckwith related the information disclosed by the informant and asked for permission to search Ridge's residence for stolen property. Shipman asked the parolee's name and Beckwith informed him. Shipman then stated if Beckwith had information that Ridge's residence contained stolen property to proceed with a search.
At approximately 10 p.m. the same date, Beckwith and several other officers proceeded to the Madison Street address. Ridge opened the front door. Beckwith informed him state parole authorities had granted the officers permission to search his residence for stolen property. Ridge replied, “ ‘Go [a]head and search.’ ”
The officers located two vehicles and a white Chevrolet truck bed in the garage. Due to computer problems, the Department of Motor Vehicles was unable to confirm the status of the license and vehicle identification numbers (VIN numbers) on the vehicles at that time. Around this time Ridge revealed he recently had been discharged from parole. The officers stopped searching and returned to headquarters. That same night Beckwith received a call from Salcido confirming Ridge was no longer on parole.
When Beckwith returned to work the next day, he learned one of the vehicles in the garage, a red pickup truck, was reported stolen. Beckwith included all of these facts in an affidavit in support of a search warrant, and a magistrate issued the warrant. Beckwith served it that night and recovered items including the stolen red pickup truck and the white Chevrolet pickup bed.
AN OVERVIEW OF THE LAW
In sum, case law provides exclusion of evidence serves a deterrent purpose and is an appropriate remedy when the source of misinformation leading to an unlawful search and seizure is erroneous police department computer records (People v. Ramirez (1983) 34 Cal.3d 541, 194 Cal.Rptr. 454, 668 P.2d 761; Miranda v. Superior Court (1993) 13 Cal.App.4th 1628, 16 Cal.Rptr.2d 858), but not when an officer acts in a good faith, objectively reasonable manner and the mistake leading to an illegal search is wholly attributable to conduct within the judicial system. (Arizona v. Evans (1995) 514 U.S. 1 [131 L.Ed.2d 34, 115 S.Ct. 1185]; United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677; People v. Downing (1995) 33 Cal.App.4th 1641, 40 Cal.Rptr.2d 176.)
In our case the source of the misinformation leading to an unlawful, warrantless search and seizure was a state parole official. In a pre-Leon case, People v. Tellez (1982) 128 Cal.App.3d 876, 880, 180 Cal.Rptr. 579, the court declined to invoke the exclusionary rule when a police officer acted “reasonably” and “in good faith” in checking the defendant's parole status. The officer was advised defendant was on parole and subject to search and relied on that information in effecting a search, only to have the courts later declare non-retroactive the legislation that extended the defendant's parole period into the time of the police search. In a post-Leon case, People v. Howard (1984) 162 Cal.App.3d 8, 19–21, 208 Cal.Rptr. 353, this court employed the exclusionary rule when a probation officer erred in failing to inform a police officer of the limits of a probation search waiver. This court reasoned the probation officer's information, which led to the unlawful search, fell within the “collective knowledge of law enforcement” as that term is used in Ramirez and Leon.
On appeal we will hold observations made during the unlawful parole search must be suppressed, the later warrant search, based in part on the original observations, was also unlawful.
SUPPRESSION OF EVIDENCE
Following enactment in California of Proposition 8, (Cal. Const., art. I, § 28) effective June 8, 1982, exclusion of evidence because of an illegal search must be determined pursuant to federal constitutional law. (In re Lance W. (1985) 37 Cal.3d 873, 886–887, 896, 210 Cal.Rptr. 631, 694 P.2d 744.) The Fourth Amendment to the United States Constitution forbids unreasonable governmental searches or seizures. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 335, 105 S.Ct. 733, 739, 83 L.Ed.2d 720.) A search conducted without a warrant is presumptively unreasonable unless it is shown to fall within one of the established exceptions to the warrant requirement. (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.) A parole search is a recognized exception, subject to the Fourth Amendment test of reasonableness and only to the extent necessary for effective parole supervision. (People v. Burgener (1986) 41 Cal.3d 505, 534, 224 Cal.Rptr. 112, 714 P.2d 1251; People v. Williams (1992) 3 Cal.App.4th 1100, 1106–1107, 5 Cal.Rptr.2d 59.)
When a parole search is later found to be invalid, as in this case in which it was conducted pursuant to an expired parole condition or consent, a Fourth Amendment violation is established and “the question thus becomes whether such constitutional violation is appropriately remedied by the application of the judicially created exclusionary rule which prohibits the admission at trial of the evidence obtained during the unlawful search. [Citation.]” (Cf., People v. Downing, supra, 33 Cal.App.4th at pp. 1650–1651, 40 Cal.Rptr.2d 176; United States v. Leon, supra, 468 U.S. at pp. 906–907, 104 S.Ct. at pp. 3411–3412; Arizona v. Evans, supra, 514 U.S. 1, ––––, 115 S.Ct. 1185, 1191.)
Leon and its Progeny.
In United States v. Leon, supra, 468 U.S. 897, 104 S.Ct. 3405, an officer seized evidence pursuant to a search warrant. The warrant was valid on its face, but later declared defective due to insufficient facts in the supporting affidavit. (Id. at pp. 901–903, 104 S.Ct. at pp. 3409–3410.) The Supreme Court held the evidence should not be suppressed, and crafted the “good faith” exception to the exclusionary rule: When officers act “in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause” (id. at p. 900, 104 S.Ct. at p. 3409), the search is conducted in “good faith” and evidence seized will not be suppressed. (Id. at p. 913, 104 S.Ct. at p. 3415.)
The Supreme Court reached this result after examining the grounds and objectives of the exclusionary rule. The court noted the rule is designed “ ‘to safeguard Fourth Amendment rights generally through its deterrent effect, rather than [as] a personal constitutional right of the party aggrieved.’ ” (United States v. Leon, supra, 468 U.S. at p. 906, 104 S.Ct. at p. 3411, quoting United States v. Calandra (1974) 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561.) A review of the evolution of the rule led the court to conclude “the exclusionary rule [should] be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment. [Citation.]” (Id. at p. 909, 104 S.Ct. at p. 3413.) “[W]here the officer's conduct is objectively reasonable, ‘excluding the evidence will not further the ends of the exclusionary rule in any appreciable way[.] ․’ [Citation.]” (Id. at pp. 919–920, 104 S.Ct. at pp. 3418–3419.)
The Supreme Court examined three factors. First, the essential rationale supporting the so-called “good faith” exception was the court's conclusion “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” (United States v. Leon, supra, 468 U.S. at p. 916, 104 S.Ct. at p. 3417.) The error in Leon was made by the magistrate. “Judges and magistrates are not adjuncts to the law enforcement team; [3 ] as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected significantly to deter them․” (Id. at p. 917, 104 S.Ct. at p. 3417.)
Second, there was “no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires [the] application of the extreme sanction of exclusion.” (United States v. Leon, supra, 468 U.S. at p. 916, 104 S.Ct. at p. 3417.) Finally, “and most important,” the court could discern no basis and was offered none, “for believing that exclusion of evidence seized pursuant to a warrant [would] have a significant deterrent effect on the issuing judge or magistrate.” (Ibid., fns. omitted.)
Shortly after Leon, this court held the “good faith” exception inapplicable when a search for stolen goods was based on information from a probation officer who negligently or recklessly omitted telling an arresting officer that a defendant's probation search condition was restricted to a search for narcotics. (People v. Howard, supra, 162 Cal.App.3d at pp. 20–21, 208 Cal.Rptr. 353.) The court distinguished People v. Tellez, supra, 128 Cal.App.3d 876, 880, 180 Cal.Rptr. 579, by noting there the status of the parolee was altered by judicial proceedings which occurred after the search, with the legal effect that the parolee was not on parole at the time of the search. However, the police, parole agent and parolee all reasonably believed the parolee was subject to search at the time of the search. The Tellez officer conducting the search acted in “good faith”; suppression was not required. (People v. Howard, supra, 162 Cal.App.3d at p. 16, 208 Cal.Rptr. 353.)
In Miranda v. Superior Court, supra, 13 Cal.App.4th at p. 1631, 16 Cal.Rptr.2d 858, an officer received an anonymous tip Miranda possessed a large quantity of marijuana at his residence. Relying on erroneous information in a police computer and in her personal “ ‘probation book’ ” that Miranda was subject to a Fourth Amendment search waiver, the officer conducted a warrantless search and recovered controlled substances and a firearm. (Id. at p. 1630, 16 Cal.Rptr.2d 858.) The trial court denied Miranda's suppression motion but the appellate court granted writ relief and ordered the contraband suppressed. Although the officer acted in the reasonable belief Miranda was subject to a search waiver, the court concluded the Leon “good faith” exception did not apply because the error derived from police negligence, not as the result of an act by a judicial officer. (Id. at p. 1636, 16 Cal.Rptr.2d 858.) “[T]he Leon court did not purport to create a broad or general rule of admissibility of evidence collected in erroneous but good faith reliance on some supposed ground of search.” (Id. at p. 1633, 16 Cal.Rptr.2d 858.) (Accord, People v. Ramirez, supra, 34 Cal.3d at pp. 544, 552, 194 Cal.Rptr. 454, 668 P.2d 761 [police department computer printout showed Ramirez had an outstanding arrest warrant when, in fact, it had been recalled six months earlier; contraband found during booking search suppressed. “ ‘[T]he police may not rely upon incorrect or incomplete information when they are at fault in permitting the records to remain uncorrected.’ ” (Id. at pp. 545–546, 194 Cal.Rptr. 454, 668 P.2d 761.) ].)
More recently, in Arizona v. Evans, supra, 514 U.S. 1, 115 S.Ct. 1185, Chief Justice Rehnquist writing for the majority, the United States Supreme Court held ministerial acts of a court employee did not require suppression of marijuana seized during a search of an auto following a routine traffic stop. A patrol car computer reflected an outstanding arrest warrant for Evans; a court clerk had failed to enter into the computer records that the warrant was quashed two weeks earlier. While being taken into custody, Evans dropped a marijuana cigarette and the officer discovered more contraband in the vehicle. The trial court granted Evans's suppression motion; following a succession of intermediate court reversals, the United States Supreme Court reversed again, holding exclusion of the evidence was not warranted. (Id. at pp. –––– – ––––, 115 S.Ct. at pp. 1188–1189.)
The Evans court concluded application of the Leon framework supported an exception to the exclusionary rule for clerical errors of court employees. (Arizona v. Evans, supra, 514 U.S. at p. ––––, 115 S.Ct. at p. 1194.) The court reasoned:
“If court employees were responsible for the erroneous computer record, the exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction. First, as we noted in Leon, the exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees. [Citations.] Second, respondent offers no evidence that court employees are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. [Citations.] To the contrary, the Chief Clerk of the Justice Court testified at the suppression hearing that this type of error occurred once every three or four years. [Citation.] [¶] Finally, and most important, there is no basis for believing that application of the exclusionary rule in these circumstances will have a significant effect on court employees responsible for informing the police that a warrant has been quashed. Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, … they have no stake in the outcome of particular criminal prosecutions. [Citations.] The threat of exclusion of evidence could not be expected to deter such individuals from failing to inform police officials that a warrant had been quashed. [Citations.]” (Id. at p. ––––, 115 S.Ct. at p. 1193.)
In a concurring opinion, Justice O'Connor defined the holding narrowly as exempting the exclusionary rule from application in limited situations in which court employees depart from established recordkeeping procedures. She noted the court employee's mistake might not be the only error that may have occurred and to which the exclusionary rule might apply:
“While the police were innocent of the court employee's mistake, they may or may not have acted reasonably in their reliance on the recordkeeping system itself. Surely, it would not be reasonable for the police to rely, say, on a recordkeeping system, their own or some other agency's, that has no mechanism to ensure its accuracy over time and that routinely leads to false arrests, even years after the probable cause for any such arrest has ceased to exist․” (Arizona v. Evans, supra, 514 U.S. at p. ––––, 115 S.Ct. at p. 1194.)
She opined “[c]ertainly the reliability of recordkeeping systems deserve no less scrutiny than that of informants.” (Ibid.) Noting that computer-based recordkeeping systems in law enforcement have come to the fore in recent years, Justice O'Connor observed the police are not entitled to rely on such technology “blindly.” “With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities.” (Id. at p. ––––, 115 S.Ct. at p. 1195.)
In another concurring opinion, Justice Souter responded to Justice O'Connor's warning regarding reliance on faulty recordkeeping systems: “we do not answer another question that may reach us in due course, that is, how far, in dealing with fruits of computerized error, our very concept of deterrence by exclusion of evidence should extend to the government as a whole, not merely police, on the ground that there would otherwise be no reasonable expectation of keeping the number of resulting [illegal searches] within an acceptable minimum limit.” (Arizona v. Evans, supra, 514 U.S. at p. ––––, 115 S.Ct. at p. 1195.)
In a dissenting opinion, Justice Stevens criticized the majority's assumption that the Fourth Amendment, particularly the exclusionary rule, “has the limited purpose of deterring police misconduct․ The Amendment is a constraint on the power of the sovereign, not merely on some of its agents. [Citations.]” (Arizona v. Evans, supra, 514 U.S. at p. ––––, 115 S.Ct. at p. 1195.) He reasserted his position that the Leon framework is inapplicable to warrantless searches and seizures, reasoning “Leon's logic does not extend … to court clerks and functionaries, some of whom work in the same building with police officers and may have more regular and direct contact with police than with judges or magistrates. [¶] ․ We should reasonably presume that law enforcement officials, who stand in the best position to monitor such errors as occurred here, can influence mundane communication procedures in order to prevent those errors. That presumption comports with the notion that the exclusionary rule exists to deter future police misconduct systematically. [Citations.] The deterrent purpose extends to law enforcement as a whole, not merely to ‘the arresting officer.’ [Citations.]” (Id. at p. ––––, 115 S.Ct. at p. 1196, emphasis added.)
And in a dissenting opinion Justice Ginsburg warned “[w]idespread reliance on computers to store and convey information generates, along with manifold benefits, new possibilities of error, due to both computer malfunctions and operator mistakes. Most germane to this case, computerization greatly amplifies an error's effect, and correspondingly intensifies the need for prompt correction; for inaccurate data can infect not only one agency, but the many agencies that share access to the data-base.” (Arizona v. Evans, supra, 514 U.S. at p. ––––, 115 S.Ct. at p. 1199.) Justice Ginsburg criticized the majority's conclusion that “exclusion of evidence, even if capable of deterring police officer errors, cannot deter the carelessness of other governmental actors․ [T]he Court's conclusion is not the lesson inevitably to be drawn from logic or experience. [¶] In this electronic age, particularly with respect to recordkeeping, court personnel and police officers are not neatly compartmentalized actors. Instead, they serve together to carry out the State's information gathering objectives․” (Id. at p. ––––, 115 S.Ct. at p. 1200.)
Most recently, in People v. Downing, supra, 33 Cal.App.4th 1641, 40 Cal.Rptr.2d 176, a police officer, following established protocol, received confirmation from a monthly Fourth Amendment waiver “Log” that Downing was subject to a Fourth Amendment probation waiver. The Log was prepared by and under the control of the superior court. In fact, Downing's probation and search waiver had terminated nearly one year earlier. A superior court clerk who entered the data had erred in making the computer entry. The trial court suppressed the evidence seized pursuant to the nonexistent waiver. Applying the Leon/Evans framework, the appellate court reversed, holding the investigating police officer's objectively reasonable “good faith” reliance upon the erroneous computer-generated Log, developed solely within the judicial branch of government, constituted an exception to the exclusionary rule. (Id. at pp. 1644–1645, 40 Cal.Rptr.2d 176.)
In passing, the Downing court criticized the language in Howard that a probation officer fell within the “collective knowledge/collective officer” network of law enforcement, and characterized Howard as a “rigid” application of Leon. In support of its result, the Downing court cited two out-of-state cases that declined to invoke the exclusionary rule when the “independent” source of the erroneous information was the Department of Motor Vehicles (State v. Lanoue (1991) 156 Vt. 35, 587 A.2d 405) 4 and the Department of Transportation (State v. Ewoldt (Iowa.Ct.App.1989) 448 N.W.2d 676, 678.) (People v. Downing, supra, 33 Cal.App.4th at pp. 1652–1653, 40 Cal.Rptr.2d 176, fns. 17–18.)
We independently review the decision of the trial court, applying federal law, and state law when it does not conflict with federal law,5 to determine whether the facts of the challenged search and seizure conform to the constitutional standard of reasonableness. (People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961; People v. Downing, supra, 33 Cal.App.4th at p. 1650, 40 Cal.Rptr.2d 176.)
Ridge's disagreement to the contrary notwithstanding, following Evans, the Leon analysis is the proper vehicle for determining whether the exclusionary rule should apply under these facts. (Arizona v. Evans, supra, 514 U.S. at p. ––––, 115 S.Ct. at p. 1191; accord, People v. Downing, supra, 33 Cal.App.4th at pp. 1654–1656, 40 Cal.Rptr.2d 176.) Aside from the fact other cases have applied Leon in nonwarrant situations,6 an Evans majority specifically invokes the Leon framework. (Arizona v. Evans, supra, 514 U.S. at p. ––––, 115 S.Ct. at p. 1194.)
As we have seen, the exclusionary rule applies to police and other members of “the law enforcement team” [United States v. Leon, supra, 468 U.S. at pp. 917, 923, fn. 24], but not to judges [id. at p. 918, 104 S.Ct. at p. 3418], court clerks [Arizona v. Evans, supra, 514 U.S. at pp. –––– – ––––, 115 S.Ct. at pp. 1193–1194] or state legislatures [Illinois v. Krull, supra, 480 U.S. at pp. 352–353, 107 S.Ct. at pp. 1168–1169]. Even in situations involving “the law enforcement team,” however, the rule does not apply if all members of the team relied in an objectively reasonable way on a warrant later found to be invalid. The reason, according the to United States Supreme Court, is that the exclusionary rule “cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” (United States v. Leon, supra, 468 U.S. at pp. 918–919.)
Our question is whether the parole supervisor was operating as a member of the “law enforcement team.” We conclude he was.
Parole agents occupy a position decidedly different from that of the “neutral and detached” judges, magistrates and clerks of the judicial system. Parole officers are “peace officers whose authority extends to any place in the state while engaged in the performance of the duties of their … employment․” (§ 830.5.) Subject to the terms and conditions of their employing agency, parole agents of the Department of Corrections are authorized to carry firearms. (§ 830.5.) During local or regional emergencies or during wartime, peace officers within the Department of Corrections have the full powers accorded a deputy sheriff or city police officer. (§ 830.1; Gov.Code, §§ 8597–8598.)
State parole agents have the authority to transport parolees, apprehend escaped detainees and authorize limited searches of parolees under their control; an agent's authority extends to violations of any penal provisions of law discovered while performing the usual or authorized duties of the agent's employment. (§ 830.5, subds. (a)(1)–(a)(4).) The types of searches authorized by the parole agency can lead to a new arrest and further criminal charges, or further judicial proceedings for parole violation. (§ 830.5, subds. (a)(1), (a)(4).) Parole officers are further charged with “rendering of mutual aid to any other law enforcement agency.” (§ 830.5, subd. (a)(5), emphasis added.)
A parole agent has a direct interest in the outcome of any parole search. The result of such a search may affect the success or failure of supervision, the parole officer's caseload, or the removal of an uncooperative parolee. Parole officers maintain professional working relationships with other law enforcement agencies. Unlike the judges, magistrates or court clerks, the parole authority is charged with supervision of the conduct of a suspect when the suspect to be searched is a parolee. Unlike judges or court clerks, it is not unusual for parole agents to accompany or assist police officers in parole searches. In its supervisorial role, the parole authority does not always operate independently from local police agencies; rather, it frequently works hand-in-hand with local law enforcement. (See § 830.5, subd. (a)(5), supra.)
Here parole supervisor Shipman purported to provide Beckwith, through official channels, the authority for a warrantless search. As this court noted in Howard, citing Ramirez: “ ‘Although in this case the arresting officer no doubt acted in good faith reliance on the information communicated to him through “official channels,” law enforcement officials are collectively responsible for keeping those channels free of outdated, incomplete, and inaccurate warrant information.’ ․” (People v. Howard, supra, 162 Cal.App.3d at p. 18, 208 Cal.Rptr. 353.) Shipman's conduct is, in effect, imputed to the “law enforcement team.”
Here, incorporating the words of Howard, “[i]f negligent or inadequate recordkeeping is excused merely because [Beckwith] is dispatched to … effectuate a search without actual knowledge of the negligence, inaccuracies, or inadequacies in the recordkeeping procedure [of the Bakersfield Parole Office], important safeguards now in place to protect the rights guaranteed by the Fourth Amendment will be lost. Additionally, it may be argued that law enforcement agencies will be encouraged by such excuse to be less than meticulous in maintaining and checking their records․” (People v. Howard, supra, 162 Cal.App.3d at p. 19, 208 Cal.Rptr. 353.)
The contrary result in Tellez is attributable to its facts (similar to the result reached in the later-decided Illinois v. Krull ) and is not inconsistent with Howard. At the time of the search in Tellez, the parole search was apparently valid; no one had made a mistake concerning the records or information available. It was only afterwards the legislative extension of the defendant's parole period was declared invalid. Contrary to the footnote discussion in Downing (People v. Downing, supra, 33 Cal.App.4th at p. 1652, fn. 17, 40 Cal.Rptr.2d 176), Tellez did not even discuss whether a parole officer could fall within the “ ‘collective’ police network[.]”
Having determined the parole supervisor fell within the law enforcement network, was the official conduct pursued in “ ‘complete good faith,’ ” thus diminishing the deterrence rationale? (United States v. Leon, supra, 468 U.S. at p. 919, 104 S.Ct. at p. 3418.) Case law tells us in order to invoke the good faith exception, the facts underlying the police investigation must be ascertained and evaluated against a standard of objective reasonableness. (Id. at pp. 911, 918, 924, 104 S.Ct. at pp. 3414, 3418, 3421; People v. Downing, supra, 33 Cal.App.4th at p. 1652, 40 Cal.Rptr.2d 176; People v. Howard, supra, 162 Cal.App.3d at p. 20, 208 Cal.Rptr. 353; Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 942, 216 Cal.Rptr. 817.) The record before us does not permit a determination that Shipman's conduct was “objectively reasonable” within the meaning of Leon.
First, we do not know the basis upon which Shipman approved the “parole” search. He may have checked computerized records, he may have checked internal documents or paperwork generated by the Department of Corrections; he may have had no basis other than Beckwith's belief Ridge was a current parolee with stolen goods in his possession. Shipman was either negligent in failing to check Ridge's record, and thus ascertain his parole period had terminated, or he checked Ridge's record and the parole agency's recordkeeping was inadequate or negligent. We do not know what the parole supervisor did or did not do because the prosecution did not call Shipman as a witness in order to establish the reasonableness of the warrantless search.7 The prosecution did not recall Beckwith at the special hearing in superior court in order to elicit further details regarding his telephone conversation with Shipman in an attempt to resolve this gap. (§ 1538.5, subd. (i).) “[Howard and Ramirez both state] the arresting officer's good faith must include the ‘collective knowledge’ of law enforcement agencies and persons through whom the information sustaining the warrant has passed. [Citations.] ‘If there is a defect in that chain of information, the good faith of the executing officer does not operate to validate the arrest.’ (Howard, supra, at p. 18, 208 Cal.Rptr. 353.)” (People v. McCraw (1990) 226 Cal.App.3d 346, 350, 276 Cal.Rptr. 208; cf., Higgason v. Superior Court, supra, 170 Cal.App.3d at pp. 944–945, 216 Cal.Rptr. 817 [“The present record does not permit a determination that the officers' conduct was objectively reasonable. Put another way, application of Leon to this case does not present a pure issue of law. Other than the bare statement in the search warrant affidavit, nothing is known about how the police pursued the investigation in this case. [¶] Too much is left to speculation․”]; State v. White (Fla.1995) 660 So.2d 664, 667 [“The [‘fellow officer’ or ‘collective knowledge’] rule does not function ‘solely permissively, to validate conduct otherwise unwarranted; the rule also operates prohibitively, by imposing on law enforcement the responsibility to disseminate only accurate information.’ Ramirez, 34 Cal.3d at 547, 194 Cal.Rptr. 454, 668 P.2d 761. The Evans court, in recognizing the ongoing validity of this rule, stated that ‘Whiteley [v. Warden, Wyoming State Penitentiary (1971) 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306] clearly retains relevance in determining whether police officers have violated the Fourth Amendment.’ 514 U.S. at p. ––––, 115 S.Ct. at p. 1192.”].)
Unlike Evans, in which the Chief Clerk of the Justice Court testified at the suppression hearing that such an error there occurred once every three or four years, in this case, the prosecution failed to question Beckwith about his past experience regarding the accuracy of the information provided by the parole department in similar situations. (Arizona v. Evans, supra, 514 U.S. at p. ––––, 115 S.Ct. at p. 1193.) The People failed to establish the violation of the Fourth Amendment does not merit the sanction of exclusion.
We now address the validity of the second search—the search following issuance of the search warrant. Up to this point the facts reveal: Officer Beckwith had information from a confidential informant that stolen property existed at Ridge's residence; Beckwith knew Ridge had been on parole and Salcido was his parole agent; unable to locate Salcido, Beckwith talked to Salcido's supervisor, Shipman; Beckwith advised Shipman of the identity of Ridge and the information that Ridge had stolen property; Shipman said to proceed with a search; Beckwith and other officers searched; during the search when Ridge advised he was no longer on parole, Beckwith and his fellow officers stopped the search and left the premises; Salcido later telephoned Beckwith to advise Ridge, in fact, was no longer on parole; Beckwith set forth this information thoroughly and accurately in an affidavit in support of a search warrant; the magistrate issued the warrant.
With the totality of these facts presented to the magistrate, and with the issuance of the warrant by the magistrate, was Beckwith acting in “good faith” in relying on the sufficiency of the affidavit to support the warrant? We think not, and our conclusion rests in large part on People v. Machupa (1994) 7 Cal.4th 614, 617, 29 Cal.Rptr.2d 775, 872 P.2d 114, in which the court addressed the question of the extent to which the Leon “ ‘good faith’ ” exception extends to the “ ‘fruit of the poisonous tree’ ” doctrine. There the defendant told officers near the scene of a recent shooting that he had guns of a different caliber than shell casings found at the site in his nearby residence and, at the officers request, departed to retrieve them. (Id. at pp. 617–618, 29 Cal.Rptr.2d 775, 872 P.2d 114.) The officers stated they “ ‘wished to accompany him’ ” for personal safety reasons. (Id. at p. 618, 29 Cal.Rptr.2d 775, 872 P.2d 114.) Inside the residence the officers observed marijuana in plain view. Another officer seized the marijuana and other contraband pursuant to a later-obtained search warrant, the probable cause for which arose during the nonconsensual entry. The affiant officer quoted the crime scene officers as having represented to defendant that they “ ‘would have to go with him ’ ” to his house. (Id. at p. 619, 29 Cal.Rptr.2d 775, 872 P.2d 114.)
A unanimous Supreme Court affirmed the appellate court opinion suppressing the evidence, holding the officers could have no “good faith” belief if the search warrant was based on evidence from a previous illegal search. “ ‘[C]onducting an illegal warrantless search and including evidence found in this search in an affidavit in support of a warrant is an activity that the exclusionary rule was meant to deter․’ ” (People v. Machupa, supra, 7 Cal.4th at p. 628, 29 Cal.Rptr.2d 775, 872 P.2d 114, quoting United States v. Vasey (9th Cir.1987) 834 F.2d 782, 789.) By analogy to Machupa, the Leon exception does not extend to an unlawful warrantless search that forms the basis for a subsequent warrant application. The fruits of Beckwith's search should be suppressed. (Accord, People v. Ingham (1992) 5 Cal.App.4th 326, 333–334, 6 Cal.Rptr.2d 756 [officers arrested suspect in her home, took her and her purse to the booking station where they conducted a warrantless (illegal) search of the purse that produced narcotics; later warranted search of house producing more contraband was not saved by Leon because “the good faith exception is inapplicable where, as here, the search warrant is based on illegally seized evidence.”].)
Although our disposition in this action is to reverse the judgment and remand to the trial court with directions to grant the motion to suppress and motion to quash, the plea agreement entered into by the parties and the court was conditioned upon the plea remaining effective. We see no impediment to the court setting aside the dismissal of Count 3 and proceeding on that count and any appended enhancement. (See fn. 1, ante.)
The judgment is reversed and the cause remanded to the superior court with directions to grant the motion to suppress and motion to quash.
1. At the time of Ridge's plea, the court dismissed counts 2 and 3 of the consolidated information. Count 2—removal of a vehicle identification number in violation of Vehicle Code section 10802—arose out of the same search as the receiving stolen property charge but pertained to a different vehicle. Count 3—vehicle theft in violation of Vehicle Code section 10851, subdivision (a)—did not arise out of the instant search. As part of the plea agreement, the court dismissed a prior prison term allegation affixed to all three counts. All dismissed counts and allegations were conditioned on the plea remaining in effect.
FN2. All further statutory references are to the Penal Code unless otherwise indicated.. FN2. All further statutory references are to the Penal Code unless otherwise indicated.
3. The term “adjunct law enforcement officer” is found in Lo–Ji Sales, Inc. v. New York (1979) 442 U.S. 319, 326–328, 99 S.Ct. 2319, 2324–2325, 60 L.Ed.2d 920, where a local “Town Justice” not only issued a search warrant but participated with the police and prosecutors in its execution.
4. Accord, Bunse v. State (Fla.App. 5 Dist.1995) 661 So.2d 389, 392. In Bunse, a Missouri Department of Motor Vehicle Bureau employee negligently failed to update computer records on the truck in question at the time the owner paid a fee and the vehicle license tag issued. A computer record response to an inquiry by a Florida officer two weeks after the owner paid the fee was that a different tag had been assigned to the truck bearing the truck's VIN number rather than the tag displayed. A search of Bunse incident to arrest for the Vehicle Code violation produced crack cocaine. The Bunse court affirmed the denial of the defendant's suppression motion, using the Leon/Evans framework. “The record contains no evidence that Motor Vehicle Bureau clerks have either the opportunity or the inclination to ignore or subvert Fourth Amendment rights, and the exclusion of evidence in the instant case would do nothing to speed up the process of updating computer records at the Motor Vehicle Bureau.” (Id. at p. 392.)
5. Decisions of the lower federal courts are persuasive but not controlling on this court. (Raven v. Deukmejian (1990) 52 Cal.3d 336, 352, 276 Cal.Rptr. 326, 801 P.2d 1077.)
6. In Illinois v. Krull (1987) 480 U.S. 340, 348, 107 S.Ct. 1160, 1166, 94 L.Ed.2d 364, the Supreme Court extended the Leon rationale to a warrantless search of an auto wrecking yard under an administrative search statute later declared unconstitutional.
7. The prosecution bears the burden of proving the Fourth Amendment search waiver by competent evidence. (Cf. Miranda v. Superior Court, supra, 13 Cal.App.4th at p. 1630, 16 Cal.Rptr.2d 858.)
STONE (Wm. A.), Associate Justice.
ARDAIZ, P.J., and DIBIASO, J., concur.