IN RE: Ralph MARTINEZ on Habeas Corpus.

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Court of Appeal, Third District, California.

IN RE: Ralph MARTINEZ on Habeas Corpus.

Cr. 5171.

Decided: July 23, 1969

Marsha B. Shanle, Sacramento, for petitioner. Thomas C. Lynch, Atty. Gen., by Doris Maier, Asst. Atty. Gen., and David Cunningham, Deputy Atty. Gen., Sacramento, for respondent.

Petition for writ of habeas corpus on the ground that cancellation of his parole and refusal to grant parole were not for cause cognizable by the Adult Authority.

QUESTION PRESENTED

Do the exclusionary rules prohibiting use of evidence obtained as a result of an unconstitutional search and seizure and statements of petitioner obtained without the constitutional warning apply to proceedings for revocation of parole and hearings to determine whether parole should be granted?

RECORD

Petitioner is now confined in Folsom State Prison. On May 12, 1955 petitioner was convicted in the Los Angeles Superior Court of violation of section 11500 Health and Safety Code (sale of narcotics—heroin), sentenced and committed to state prison. He had admitted a prior narcotics conviction. He was released on parole on June 14, 1962. In February 1963 he was arrested and charged with possession of heroin. In October he was found guilty, sentenced to state prison and committed to the California Department of Corrections, in whose custody he has been ever since. On March 11, 1965 the Court of Appeal, Second District, reversed the conviction (People v. Martinez, 232 Cal.App.2d 796, 43 Cal.Rptr. 197), on the ground that the search involved in his conviction was in violation of People v. Cruz, 61 Cal.2d 861, 40 Cal.Rptr. 841, 395 P.2d 889, and the statements used against him were in violation of People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. On July 13, 1965 the charges on which he had been convicted were dismissed by the Los Angeles Superior Court.

Petitioner's parole on the 1955 conviction was canceled November 15, 1963 and formally revoked February 13, 1964, after a hearing at which he was present, on the following grounds: (1) The above-mentioned conviction which was later set aside; (2) Driving a motor vehicle without the knowledge or consent of his parole agent or the Division of Paroles; (3) Using alcoholic liquors to excess.

Annually, commencing in October 1965, hearings on petitioner's applications for parole have been heard and his applications denied. At the 1968 hearing the matter was referred to the 1969 calendar. At the hearing in 1965 the Adult Authority took cognizance of the reversal of petitioner's conviction and based its denial of parole on his ‘parole behavior and not on [his] 1963 commitment.’

THE EXCLUSIONARY RULES

Petitioner contends that although his parole was revoked more than a year prior to the reversal of his 1963 conviction the reversal had the effect of invalidating the revocation order and all subsequent Adult Authority denials of parole to the extent the illegal evidence was relied on.

While the Adult Authority may not suspend or revoke parole (§ 3063 Pen.Code) nor redetermine a sentence without cause (In re Schoengarth (1967) 66 Cal.2d 295, 302, 57 Cal.Rptr. 600, 425 P.2d 200), the courts may not interfere with decisions made by the Adult Authority unless there has been error of law. The court stated at page 300, 57 Cal.Rptr. at page 603, 425 P.2d at page 203: ‘[T]he decision to grant or deny parole is committed entirely to the judgment and discretion of the Adult Authority.’

In re Brown (1967) 67 Cal.2d 339, 62 Cal.Rptr. 6, 431 P.2d 630 dealt with a situation similar to that in the case at bench. While on parole from an earlier prison term, Brown was convicted in October 1962 of first degree robbery. Thereupon the Adult Authority, because of that conviction and his driving a motor vehicle without permission of his parole officer, revoked his parole. On appeal the 1962 conviction was reversed because of Dorado violations. In a habeas corpus proceeding brought by Brown to secure his release from custody the court ruled that although the Adult Authority could not use the invalid conviction as cause for the parole revocation, the reversal did ‘not foreclose further inquiry into the subject matter of that conviction * * * The Adult Authority may properly, under its own procedures, determine whether defendant has engaged in conduct that constitutes cause for parole revocation.’ (p. 342, 62 Cal.Rptr. p. 8, 431 P.2d p. 632) (Italics ours.)

In In re Anderson (1951) 107 Cal.App.2d 670, 237 P.2d 720, the defendant's parole was suspended when he was arrested for an alleged violation of the Deadly Weapons Control Act. After a trial where he was acquitted of the charge, the Adult Authhority ‘proceeded upon charges that he had in fact been in possession of a gun and additionally that his conduct and attitude on parole did not justify that privilege.’ (p. 671) Parole was revoked on both grounds. The petitioner contended that, because of his acquittal in the criminal proceeding, that acquittal was binding upon the Adult Authority in the proceedings for revocation. The court held that the acquittal was not binding on the Adult Authority nor was evidence of the petitioner's innocence and that the Authority had the right to determine for itself the acts upon which the criminal charge had been founded.

In the case at bench, after the reversal of the 1962 conviction the Adult Authority fulfilled its obligation by reconsidering its revocation of parole and finding adequate grounds for such revocation in the facts surrounding the charge which was reversed, the driving of a motor vehicle without the parole officer's consent and the use of alcoholic liquors.

A fair statement of the proceedings at the annual parole hearings is that in addition to considering the other facts relating to the 1963 arrest, the Adult Authority did consider the evidence obtained by the illegal search and defendant's statements made in violation of Dorado.

That the Adult Authority could consider petitioner's acts in connection with the criminal charge, although the conviction thereon had been reversed, cannot be gainsaid. (In re Brown, supra, 67 Cal.2d 339, 342, 62 Cal.Rptr. 6, 431 P.2d 630; In re Anderson, supra, 107 Cal.App.2d pp. 672–674, 237 P.2d 720.) Petitioner has cited no authority holding that the exclusionary rules apply to parole proceedings.

Parole and rights related thereto are creatures of statute, not of constitutional directive. (Dunn v. California Department of Corrections (9th Cir. 1968) 401 F.2d 340, 342.) Information may be considered by the parole board in an informal setting without strict observance of technical rules of evidence. (Robinson v. Cox (1966) 77 N.M. 55, 419 P.2d 253, 256; Hyser v. Reed (1963) 115 U.S.App.D.C. 254, 318 F.2d 225, 240, cert. denied Thompson v. United States Board of Parole and Jamison v. Chappell, 375 U.S. 957, 84 S.Ct. 446–447, 11 L.Ed.2d 315–316.) A parole hearing is not an adversary proceeding, and there is no federally-protected right of counsel, or confrontation of witnesses at such hearing. (Dunn, supra, 401 F.2d p. 342; Hyser, supra, 318 F.2d p. 238.)

A parolee does not enjoy full Fourth Amendment reghts. A prison sentence ‘suspends all the civil rights of the person so sentenced.’ (Pen.Code § 2600.) For instance, although search by a parole officer was not involved in this case, we note that a parole officer is not bound by the requirements of reasonable or probable cause when searching a parolee's premises. (People v. Hernandez (1964) 229 Cal.App.2d 143, 150–151, 40 Cal.Rptr. 100, 104, cert. denied 381 U.S. 953, 85 S.Ct. 1810, 14 L.Ed.2d 725.) ‘Inmates of state prisons do not have the usual array of federal and state constitutional rights guaranteed to nonincarcerated citizens. * * * Prison authorities may subject inmates to intense surveillance and search unimpeded by Fourth Amendment barriers * * * Although a parolee is not a prison inmate in the physical sense, he is constructively a prisoner under legal custody of the State Department of Corrections and may be returned to the prison walls without notice and hearing * * * For the purpose of maintaining the restraints and social safeguards accompanying the parolee's status, the authorities may subject him, his home and his effects to such constant or occasional inspection and search as may seem advisable to them. Neither the Fourth Amendment nor the parallel guaranty in article I, section 19, of the California Constitution blocks that scrutiny. He may not assert these guaranties against the correctional authorities who supervise him on parole * * * If this constitutional fact strips him of constitutional protection against invasions of privacy by his parole officer, the answer is that he has at least as much protection as he had within the prison walls. He did not possess this guaranty in prison and it was not restored to him when the gates of parole opened.’ (pp. 149–150, 40 Cal.Rptr. p. 104) In view of the foregoing restrictions on the rights of a parolee, we see no reason why the exclusionary rules should apply to the determination of whether he has violated the terms of his parole, even though the violation of exclusionary rules is done by police rather than parole officers.

The basic philosophy behind the Fourth Amendment ‘is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’ (Camara v. Municipal Court (1967) 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930.) The search warrant requirement protects the individual's right ‘to dwell in reasonable security and freedom from surveillance.’ (Johnson v. United States (1948) 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436.) These principles form the basis for the exclusionary rule. But, as hereinbefore shown, a parolee does not enjoy full Fourth Amendment rights. Moreover, the exclusionary rule's purpose has been held ‘to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.’ (Elkins v. United States (1960) 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669.) The unlawful actions of the police did cause petitioner's 1963 conviction to be reversed and ultimately the charge against him dismissed. To apply the exclusionary rules to parole hearings would not necessarily implement the deterrent policy. Such application would unduly restrict the Adult Authority whose functions are entirely separate from that of the police, prosecution, and the trial courts.

No reported California case has considered the Escobedo-Dorado nor the Cruz issues in a parole hearing context. It is interesting to note, however, that the Supreme Court in In re Brown, supra, 67 Cal.2d 339, 62 Cal.Rptr. 6, 431 P.2d 630, modified its opinion in the same case first filed in 67 A.C. 338, 341, by omitting the following language appearing in the original opinion: ‘The Authority should not, however, use defendant's confessions for any purpose foreclosed to the courts.’

In considering whether the exclusionary rules should apply to the Adult Authority in parole hearings, it should be borne in mind that there are three aspects to the granting of parole. One, of course, is that as hereinafter set forth, the prisoner, by reason of his conviction has lost his civil rights and that parole is a matter of grace and not of right. (People v. Ray (1960) 181 Cal.App.2d 64, 69, 5 Cal.Rptr. 113. Secondly, it is the duty of the Adult Authority to protect the public by not allowing to remain loose in the community prisoners who have demonstrated by their actions in violating parole or the law that they should not be left outside prison walls. (See In re Schoengarth (1967) 66 Cal.2d 295, 300, 57 Cal.Rptr. 600, 425 P.2d 200.) Thirdly, there would be a deterrent effect on the granting of parole if the matter of revoking parole in a proper case is hedged with technicalities and difficulties. The Adult Authority now admits to parole prisoners who perhaps appear on the borderline as to their ability to behave in the outside world because the Authority has great discretion in returning them to prison when indications are that such parolees are not behaving themselves. If, however, returning them is to be hidebound with technicalities and difficulties, the result will necessarily be that granting of parole will be greatly restricted and discouraged.

It should be remembered that a parole officer may search without a warrant a parolee's home or car. Hence, although, except in certain situations not applicable here, a police officer may not do so, the fact that he may illegally do so does not relieve the person concerned of any criminal liability or responsibility for violating the law including the possession of the contraband found. It merely means that in a criminal prosecution, the evidence may not be used against him. No good reason exists in view of all the limitations upon the rights of a prisoner why the parole officer may not use the evidence obtained. The barring of its use in a criminal prosecution is a sufficient deterrent against illegal conduct of the police officers. While it may be true that the situation between a parole officer and a police officer is somewhat anomalous, that situation results from the fact that an unconvicted person is presumed to be innocent and his liberty may not be curtailed while a parolee has lost his liberty and is subject to complete control and supervision of his parole officer.

The suggestion that police officers might knowingly violate the law to gain evidence inadmissible in a criminal proceeding in order to turn it over to the Adult Authority to be used for parole revocation, is an extremely remote possibility. If a police officer learns of the violation of law by a parolee such officer is as anxious, if not more so, of providing legal evidence for a conviction of the crime, as of assisting in the revocation of parole. To accord significant weight to the remote possibility that police officers will violate their duty in order to bring about the revocation of paroles would deter the granting of paroles by the Adult Authority and frustrate the humanitarian purpose of such proceedings. As herein pointed out, the convicted prisoner has already by reason of his conviction been deprived of constitutional rights.

‘The administration of the parole system must be realistic, and not strangled in technical niceties. A parole officer's physical apprehension of his prisoner for suspected violation of parole is not an ‘arrest’ in the sense that a peace officer arrests a private individual suspected of a crime but a mere transfer of the subject from constructive custody into acutal or physical custody.' (People v. Denne (1956) 141 Cal.App.2d 499, 510, 297 P.2d 451, 458.)

In People v. Hernandez, supra, 229 Cal.App.2d 143, 40 Cal.Rptr. 100, the defendant was convicted of heroin possession. On appeal, he contended that the heroin in his automobile was uncovered as the result of an unreasonable search and seizure by his parole officer and four narcotics agents, and hence that it was inadmissible in proof of guilt. The court said: ‘The decisive question in this case is not whether the parole officer had probable cause for an arrest and incidental search, but whether his paroled prisoner could invoke constitutional barrriers against the search.’ (p. 148, 40 Cal.Rptr. p. 103.) After referring to the fact that approximately one-half of all California parolees return to prison within five years, either as the result of parole revocation or a new felony commitment, the court said: ‘Criminal acts by parolees evoke public resentment and criticism of the parole authorities, usually stemming from failure to understand the purpose and operation of an enlighted parole system. Close supervision, surveillance and control not only minimize the social risks inherent in parole, but safeguard the system for the sake of those who make good. Intense scrutiny by the correctional authorities is a vital ingredient of a publicly acceptable parole system. For the purpose of maintaining the restraints and social safeguards accompanying the parolee's status, the authorities may subject him, his home and his effects to such constant or occasional inspection and search as may seem advisable to them. Neither the Fourth Amendment nor the parallel guaranty in article I, section 19, of the California Constitution blocks that scrutiny. He may not assert these guaranties against the correctional authorities who supervise him on parole. [Citation.] If this constitutional fact strips him of constitutional protection against invasions of privacy by his parole officer, the answer is that he has at least as much protection as he had within the prison walls. He did not possess this guaranty in prison and it was not restored to him when the gates of parole opened.’ (pp. 149–150, 40 Cal.Rptr. p. 104.) The court stated: ‘We conclude that the requirement of reasonable or probable cause does not apply to search of a paroled prisoner when conducted by his parole supervisors.’ (pp. 150–151, 40 Cal.Rptr. p. 104.)

While Hernandez did not deal with parole revocation, it is illuminating in showing how far the courts go in denying a parolee constitutional rights. Here, the parolee was convicted in the criminal court and that conviction affirmed in the reviewing court, upon evidence which in the absence of the parole officer would have been held to be obtained by an illegal search and seizure, as was done in the former appeal in the case at bench, supra, 232 Cal.App.2d 796, 43 Cal.Rptr. 197.

In People v. Giles (1965) 233 Cal.App.2d 643, 43 Cal.Rptr. 758 (petition for hearing in Supreme Court denied), the situation was somewhat similar to that in Hernandez, except that search and seizure which it was contended were illegal were made by a police officer without a warrant, but who was requested by defendant's parole officer to apprehend defendant as a parole violator. The parole officer was not present at the search. The court upheld the conviction of the defendant which was based upon the search and seizure made by the police officer, stating that as the parole officer had authorized the apprehension and arrest of the defendant as a parole violator, the defendant could not invoke constitutional barriers against the search.

In People v. Denna, 40 Misc..2d 717, 243 N.Y.S.2d 797, where parole under a state conviction was revoked after commission of a federal offense, the prisoner contended that the information given his parole officer emanated from an unlawful search and seizure. The court said: ‘Whether the federal arrest was or was not bottomed upon an illegal search and seizure is of no moment in this proceeding. For the information of that arrest imparted to the parole officers was not used or to be used by them to convict him of a crime, but merely to recall a privilege. No constitutional right of the petitioner was invaded by the action of the parole board.’ (p. 800.)

In People v. Langella (1963) 41 Misc.2d 65, 244 N.Y.S.2d 802, a parole officer was given a warrant to be served upon the defendant ‘if and when he found the defendant violating his parole.’ The officer went to defendant's house, took him into custody, asked him about a car parked in front of the house. The officer demanded the key to it and on searching it found a revolver. Concerning this search, the court held ‘if this were the ordinary search and seizure case dealing with an ordinary individual—not a parolee—I would hold the search to be illegal * * * [U]nder the facts of this case the search of the automobile theretofore driven by the defendant, although delayed, was not only permitted but dictated by a duty imposed by law, which also required the parolee's submission despite his tacit or express opposition thereto.’ (p. 808.)

In People ex rel. Oddo v. Fay (1963) 13 N.Y.2d 762, 242 N.Y.S.2d 63, 192 N.E.2d 30, the petitioner contended that the revocation of his parole was based on his arrest without probable cause and that the use of the evidence to revoke his parole was obtained during the course of the illegal search and seizure, was without a search warrant, and was a denial of his rights under the Fourth and Fourteenth Amendments and further that at the hearing at which the parole board revoked his parole he was deprived of his constitutional rights under the Sixth and Fourteenth Amendments by being denied the right to be represented by counsel. Without discussion the court, after stating that the relator's uncontroverted testimony at the revocation hearing was that the revocation was based on evidence obtained in the course of an illegal search and seizure, upheld the denial by the trial court of a petition for writ of habeas corpus. Later in People ex rel. Oddo v. Fay, 13 N.Y.2d 928, 244 N.Y.S.2d 73, 193 N.E.2d 896, the New York Court of Appeals without discussion other than a statement as to the relator's contentions as set forth in the prior case, stated there was no ‘denial or deprivation of relator's constitutional rights.’ (p. 897.)

In Williams v. Dunbar (1967) (9th Cir.) 377 F.2d 505, an action for damages based on the Civil Rights Act (secs. 1983 and 1985 of Title 42, U.S.Code) the applicant claimed that his constitutional right to due process of law was violated by the state officers in the procedure followed in determining that he had violated his parole in that he was denied a court hearing, with the right to be represented by counsel, to confront and cross-examine witnesses, and to have process to summon witnesses to support his denial of violation of parole. In holding that no federal question was presented, the court said, in part: ‘If the appellant's contentions were valid, the use by the states and the federal government of the beneficent practice of releasing prisoners from the confines of the prison to the custody and supervision of parole officers would be impractical and would have to be abandoned. The release from the confines of the prison would become substantially equivalent to the discharge of the prisoner from his sentence, and if, as in the instant case, the parolee denied the fact of the violation or the legal sufficiency of the act alleged to be a violation of his parole, the prison authorities would be required, in a hearing before a judge, with all the concomitants of a non-jury criminal trial, to justify their resumption of in-prison custody of their prisoner.’ (p. 506.)

Even though police officers might produce evidence inadvisable in a criminal prosecution, it is necessary that such evidence be available to the parole board in determining whether it would be safe to leave an admitted law violator outside the prison walls.

Hyser v. Reed, supra, 318 F.2d 225, 237, holds that the Sixth Amendment does not apply to parole revocation proceedings: ‘In a real sense the Parole Board in revoking parole occupies the role of parent withdrawing a privilege from an errant child not as punishment but for misuse of the privilege.’

In People v. Moore (1968) 69 A.C. 701, 72 Cal.Rptr. 800, 446 P.2d 800, it was held that evidence obtained by police officers in violation of the rule against unlawful searches and seizure could not be used in a proceeding to commit the defendant as a narcotic addict to the Department of Corrections for placement at the California Rehabilitation Center, that such proceeding ‘although technically classified as civil proceedings, must be considered criminal proceedings for purposes of the Fourth Amendment.’ (pp. 707–708, 72 Cal.Rptr. p. 804, 446 P.2d p. 804.) The court further stated that: ‘Whether any particular rule of criminal practice should be applied in a narcotic commitment proceeding depends upon consideration of the relationship of the policy underlying the rule to the proceeding.’ (p. 709, 72 Cal.Rptr. p. 805, 446 P.2d 805.) The court then gave as the reasons for applying the rule to such proceeding that it is in the nature of a criminal proceeding in which the defendant is protected by the Fourth Amendment (in the instant case petitioner has no such protection) and that ‘[n]arcotic addict proceedings involve a loss of liberty.’ (p. 709, 72 Cal.Rptr. p. 805, 446 P.2d 805.)

A parolee, however, does not lose his liberty by revocation of or refusal to grant parole. By reason of his conviction he has already lost his liberty. Parole proceedings determine where he has to undergo that loss of liberty, in prison or without. If without, his liberty in nevertheless restrained.

The same reasoning given to support our holding that illegally-seized evidence may not be denied admittance in parole hearings and revocation proceedings applies equally to self-incriminating statements obtained in violation of the Escobedo-Dorado rule. In view of a parolee's peculiar status and the relationship existing between him and his parole officer and parole board, we see no reason why he should be entitled therein to the benefit of these exclusionary rules. Additional to the reasons herein set forth is that, since he is not entitled to representation by counsel in such matters, nothing need be said to him about a lawyer. It is extremely doubtful, also, if there ever was a convict who spent any time in a prison who needs to be told that any statement he might make could be used against him.

The order to show cause is discharged. The petition for a writ of habeas corpus is denied.

BRAY, Associate Justice.

FRIEDMAN, Acting P.J., and REGAN, J., concur.