TAYLOR BUS SERVICE v. DEPARTMENT MOTOR VEHICLES

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Court of Appeal, Fourth District, Division 3, California.

TAYLOR BUS SERVICE, Plaintiff and Appellant, v. DEPARTMENT of MOTOR VEHICLES, Defendant and Respondent.

Civ. 27623.

Decided: May 14, 1984

James R. Goff, Orange, for petitioner and appellant. John K. Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., Alan S. Meth, Deputy Atty. Gen., for respondent.

OPINION

Under the unique facts of this case, we hold the exclusionary rule is appropriately applied in an administrative proceeding.

I

Department of Motor Vehicles (DMV) suspected Taylor was using some of its buses for non-exempt transportation without paying the requisite registration fees.   After unsuccessfully attempting to obtain Taylor's business records through an administrative subpoena, DMV sought a search warrant for the records.1  The affidavit supporting the warrant alleged the records would establish a violation of Penal Code sections 484/487, grand theft.

The warrant was issued by a magistrate on October 11, 1978, and the seized records were introduced over objection at the administrative hearing on March 13, 1981.   The administrative referee found Taylor owed DMV $21,586 for registration fees and penalties.   The trial court agreed, finding “[t]he exclusionary rule employed in criminal proceedings does not apply to evidence obtained by a state employee unrelated to any element of law enforcement and not used in a criminal proceeding.”

Taylor argues the records were illegally seized and must be suppressed, the superior court's findings of fact and conclusions of law are as a matter of law invalid, and the trial court's failure to make findings on a material issue requires reversal.

II

 Taylor correctly argues the affidavit in support of the search warrant failed to establish probable cause.  (Pen.Code, § 1525.)   Probable cause has been defined as a state of facts as would lead a person of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused and the person or place to be searched contains contraband or evidence of the crime.   Although the instant affidavit contains facts which may be sufficient to demonstrate Taylor's failure to properly register its buses, the search warrant was issued for a nonexistent crime.

The affidavit alleged the evidence would prove Taylor's officers committed grand theft (Pen.Code §§ 484/487) with the “victim being the State of California.”   Although a novel theory of criminal liability, it is simply incorrect.

Taylor's conduct does not fit the crime of theft.  Penal Code section 484 defines theft as “[e]very person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft․”

Although Taylor may well have intentionally registered its buses improperly and thus deprived the State of California of fees due and owing, Taylor neither took money from the state nor defrauded the state of money within the meaning of the grand theft statutes.   Rather, liability, if any, would be premised on Taylor's violation of Vehicle Code section 4000 in failing to properly register its buses and pay appropriate fees.   Apart from any civil penalties which are assessable for violation of Vehicle Code section 4000, Vehicle Code section 40001, subdivision (b)(1) makes it unlawful to operate a vehicle for which appropriate fees have not been paid with Vehicle Code section 40000.1 making such violation an infraction.   Thus, the legislature in devising criminal penalties for failure to pay registration fees specifically relegated violations to the level of an infraction.   Having determined the affidavit in support of the search warrant does not identify a felony, we must determine if the warrant could have issued for the infraction of failing to properly register a vehicle.  (Veh.Code § 4000.)

Penal Code section 1524 authorizes the issuance of a search warrant where probable cause has been demonstrated in any one of five instances:  “(1) [w]hen the property was stolen or embezzled.  [¶] (2) [w]hen the property or things were used as a means of committing a felony.  [¶] (3) [w]hen the property or things are in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom he or she may have delivered it for the purpose of concealing it or preventing its being discovered.  [¶] (4) [w]hen the property or things to be seized consist of any item or constitutes any evidence which tends to show a felony has been committed, or tends to show that a particular person has committed a felony.   [¶] (5) [w]hen the property or things to be seized consist of evidence which tends to show sexual exploitation of a child, in violation of section 311.3, has occurred or is occurring.”

A careful reading of Penal Code section 1524 discloses a legislative decision to greatly restrict the use of search warrants for misdemeanor and infraction offenses.  Penal Code section 1524, subdivisions (a)(2) and (a)(4) are by their very terms limited to felony offenses, while subdivisions (a)(1) and (a)(5) authorize limited use of search warrants for certain misdemeanors.2  Generally, only in the limited circumstance where objects are intended to be used as a means of committing a public offense (Pen.Code § 1524, subd. (a)(3)) may a misdemeanor be the subject of a search warrant.

No appellate decision has directly defined the parameters of Penal Code section 1524, subdivision (a)(3).   In Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 34 Cal.Rptr. 251, the defendant was convicted of possession of unstamped deer and elk meat, a misdemeanor violation of Fish and Game Code section 3081.   A game warden obtained a search warrant for the meat based upon the statements of an untested informant.   Although the court reversed the conviction for lack of probable cause in the search warrant, it noted in dicta, “[b]y the mere possession of such meat in violation of the statute, the possessor is thereby using it as a means of committing a public offense within the contemplation of section 1524, subdivision 3.”  (Id., at p. 875, 34 Cal.Rptr. 251.)

In People v. Enskat (1973) 33 Cal.App.3d 900, 109 Cal.Rptr. 433, police obtained a search warrant for a film, The Collection, based upon the belief it was obscene in violation of Penal Code section 311.2, a misdemeanor.   Although the defendant argued the affidavit did not establish facts justifying the conclusion defendant possessed “the film to commit a public offense with it” (id., at p. 915), the court determined the evidence supported the conclusion defendant had rented the film to theaters in violation of the statute and thus had used the film to commit the offense.

Finally, in People v. Superior Court (Morton) (1984) 151 Cal.App.3d 899, 199 Cal.Rptr. 153, the defendant obtained an order from the superior court to return seized property.  (Pen.Code § 1540.)   A search warrant had been issued based upon an affidavit which alleged various items of drug paraphernalia were being sold in violation of Health and Safety Code section 11364.7, a misdemeanor.   In issuing a writ of mandate, the appellate court held the proper vehicle for challenging the search was through Penal Code section 1538.5 rather than Penal Code section 1540.   The court did not question whether a search warrant could issue for the misdemeanor offense since the legislature has specifically authorized a misdemeanor search warrant to seize illicit drug paraphernalia.  (Health & Saf.Code § 11472.)

 From a reading of the above decisions and in consideration of the restrictive nature of Penal Code section 1524, we conclude a search warrant could not issue for violation of Vehicle Code section 4000.   While the documents sought to be seized were evidence of a crime, they were not the means of committing the offense of improper vehicle registration.   Thus, although the affidavit in support of the search warrant established probable cause to believe Taylor had violated Vehicle Code section 4000, there is no authority permitting a search warrant to issue for evidence of that offense.

The Attorney General's arguments do not compel a different result.   That Taylor bears the burden of proving its buses are exempt from commercial fees does not change the character of the search warrant.   Whether Taylor would, in the absence of the illegal seizure of its records, submit those records at the administrative hearing is speculative.   Further, the argument an administrative subpoena could have issued for the records serves to undercut DMV's position.   DMV could have proceeded lawfully, but this does not excuse their having obtained an unlawful search warrant.

One question still remains.   Must evidence illegally seized pursuant to an invalid criminal search warrant be suppressed in this administrative DMV hearing? 3

III

 Both the United States and California Supreme Courts have held unconstitutionally obtained evidence is not automatically suppressed in civil administrative proceedings.   Its exclusion is to be determined on a case-by-case basis by weighing the cost to society of extending the exclusionary rule against the deterrent effect on the wrongful conduct.  (U.S. v. Janis (1976) 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046;  Emslie v. State Bar (1974) 11 Cal.3d 210, 113 Cal.Rptr. 175, 520 P.2d 991.)   When the deterrent effect outweighs the societal cost, the evidence is excluded.

Emslie involved an attorney disciplinary hearing.   Although the court determined the evidence had been legally seized by Nevada law enforcement officers for criminal prosecution, it nevertheless considered “the social consequences of applying the exclusionary rules and [its effect] on the integrity of the judicial process.”  (Id., at p. 229, 113 Cal.Rptr. 175, 520 P.2d 991.)

Cases decided before Emslie 4 had addressed the admissibility of illegally obtained evidence in civil administrative hearings.   But it was the Emslie court which developed the guidelines to be used in making such a determination.   First the nature of the proceeding is to be considered by analyzing its relationship to the aims and objectives of criminal law enforcement and whether the proceeding involves the potential deprivation of liberty or property.   Second the court must consider the effect of the use of non-use of the exclusionary rule on the integrity of the judicial process.

The Emslie court found a state bar proceeding has little relationship to the aims and objectives of criminal law enforcement.   The court acknowledged the proceeding could involve the potential deprivation of a property right but found this outweighed by the lack of any relationship between the proceeding and the policy of the exclusionary rule.   Finally, inclusion of the evidence did not undermine the integrity of the judicial process, but on the contrary, exclusion of an attorney's unethical conduct would undermine that integrity.   Therefore, the Emslie court concluded the application of the exclusionary rule would provide little effect and the cost to society could be great.

IV

In U.S. v. Janis (1976) 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046, the court considered whether to rule “evidence seized by a state criminal law enforcement officer in good faith, but nonetheless unconstitutionally, inadmissible in a civil proceedings by or against the United States.”  (Id., at p. 434, 96 S.Ct. at p. 3023.)   The guidelines used by the U.S. Supreme Court in Janis are similar to those employed by the California Supreme Court in Emslie.  Janis involved a taxpayer's suit for a refund of money levied on by the IRS.   The government counterclaimed for payment of the balance of a tax assessment based exclusively on evidence illegally seized by state law enforcement officers pursuant to an invalid criminal search warrant.

The court concluded “that exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion.”  (Id., at p. 454, 96 S.Ct. at p. 454.)   The court noted the distinction between “those cases in which the officer committing the unconstitutional search or seizure was an agent of the sovereign that sought to use the evidence ․ [and those] where the officer has no responsibility or duty to, or agreement with, the sovereign seeking to use the evidence.”  (Id., at p. 455, 96 S.Ct. at p. 3032.)   A state law enforcement officer would not be deterred in the future by use of illegally seized evidence in federal civil proceedings.   The evidence was excluded from use in the criminal enforcement process—“the offending officer's zone of primary interest.”  (Id., at p. 458, 96 S.Ct. at p. 3034.)

Importantly, the court in Janis explicitly limited its holding to inter-sovereign violations (in which the offending officer is not the agent of the sovereign seeking to use the evidence).  “The seminal cases that apply the exclusionary rule to a civil proceeding involve ‘intrasovereign’ violations, a situation we need not consider here.”  (Id., at p. 456, 96 S.Ct. at p. 3033.)

Thus Janis found the deterrent effect outweighed by the cost to society.   The evidence was already excluded from the state criminal proceedings and would be excluded from any federal criminal proceedings.   The affidavit was signed in good faith by an agent of a sovereign not seeking the introduction of the evidence and the case fell outside the offending officer's zone of primary interest.   In other words, judicial integrity remains intact without inviting further Fourth Amendment violations.

V

 Applying the Emslie and Janis guidelines to this proceeding, we find the deterrent effect on the wrongful conduct outweighs any cost to society.   This proceeding does have some identity to the aims and objectives of criminal law enforcement.   A substantial portion of the assessment against Taylor was a penalty.   Thus, there is a threatened deprivation of property.   Also, the DMV proceeding does bear a close relationship to the policy of the exclusionary rule.   Deterrence is considered the “touchstone” in a determination of whether to exclude illegally seized evidence from a civil proceeding.  (Lopez-Mendoza v. Immigration and Naturalization Service (1983) 705 F.2d 1059 (cert granted, 464 U.S. 1037, 104 S.Ct. 697, 79 L.Ed.2d 163.)

We are presented “with a question expressly left open in Janis—whether the exclusionary rule should be applied in civil cases involving ‘intrasovereign violations':  cases in which ‘the officer committing the unconstitutional search or seizure[s] [is] an agent of the [same] sovereign that [seeks] to use the evidence.’  [Citation.]”  (Lopez-Mendoza v. Immigration and Naturalization Service, supra, 705 F.2d 1059, 1068.)   And “[i]n deciding [Taylor's] appeal ․ we engage in the same inquiry the Court made in Janis, assessing the marginal deterrent benefit of imposing the exclusionary sanction against the [DMV], and weighing that effect against the social cost of excluding from [this particular DMV hearing] evidence that is the product of unlawful conduct by [DMV] agents.”  (Id., at p. 1068.)

In this case, the connection between those who illegally obtained the evidence and those who seek to use it in subsequent proceedings could not be more direct;  they are the same.   And there is no parallel criminal proceeding from which it can be excluded.   DMV will have little incentive to engage in future violations of the Fourth Amendment if the evidence proves worthless.  “In sum, the Janis [and Emslie ] analysis, when applied here, compels the conclusion that the deterrent impact of invoking the rule in [DMV] proceedings will be ‘substantial and efficient.’ ”  (Lopez-Mendoza v. Immigration and Naturalization Service, supra, 705 F.2d 1059, 1070.)

The cost to society of applying the exclusionary rule in these proceedings is minimal and primarily consists of lost revenue to the state.  “When [the amount is] analyzed in these terms, it becomes clear that only an infinitesimal fraction of the [monies otherwise collected from those who challenge fees owed to the DMV will be lost] based on the exclusionary rule and that the small number who do so successfully will not appreciably increase the [amount of revenue lost].”  (Lopez-Mendoza v. Immigration and Naturalization Service, supra, 705 F.2d 1059, 1071, all fns. omitted.)

 “[T]he exclusionary rule [is] designed to control the conduct of law enforcement officers, to keep the court from being an unwilling participant in such conduct, and to insure the reliability of evidence.”  (Pating v. Board of Medical Quality Assurance (1982) 130 Cal.App.3d 608, 624, 182 Cal.Rptr. 20.)  “An administrative agency ․ must refuse to consider ‘evidence inconsistent with the dignity of its proceedings and the fair administration of justice.’  [Citation.]”  (Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638, 669, fn. 19, 153 Cal.Rptr. 802, 592 P.2d 289.) 5

In the present case, the proper procedure is explicitly set down in the Government Code.   Section 11181 permits the issuance of subpoenas for the production of documents in an investigation and section 11187 permits the Department to petition the superior court to compel compliance.   This procedure not only provides for expedient enforcement of its regulations but also protects the public from Fourth Amendment violations.6

We now must decide if a reversal of the trial court's denial of Taylor's petition for a writ of administrative mandamus is required.   We determine under the facts of this case that it is.

 The trial court was required to determine whether the hearing officer's findings were supported by substantial evidence and whether any errors of law were committed.  (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 395, 188 Cal.Rptr. 891, 657 P.2d 383.)   The court therefore erred in failing to recognize the hearing officer committed two errors of law in finding the search warrant valid and in allowing the records into evidence.   As a result, the trial court considered illegally seized evidence when it reviewed the administrative record for substantial evidence supporting the hearing officer's determination.

 However, a hearing officer's erroneous admission of illegally seized evidence does not automatically require reversal.   The record is to be reviewed for substantial evidence disregarding the evidence that should have been excluded.  “[T]he applicable rule is, that the [erroneous] admission of ․ evidence by the [agency] is not [a] ground to annul its action if there is sufficient competent evidence to support its determination.  [Citations.]”  (So. Cal. Jockey Club v. Cal. Etc. Racing Bd. (1950) 36 Cal.2d 167, 176, 223 Cal.2d 167.)   The only information before the DMV hearing officer besides Taylor's records was the DMV records showing Taylor owned the buses in question and had not paid the commercial fees in dispute.   The DMV presented no admissible evidence on how the buses were used.   The finding additional fees and penalties were due was predicated on evidence the buses were used for purposes which subjected them to the commercial fees.   A record with no evidence on the use of the buses cannot sustain a finding their use subjected Taylor to additional fees and penalties.   As the DMV puts it in its petition, “[w]ithout the records, there is no way to determine what the buses were used for.”

 When a trial court is limited to the substantial evidence test in reviewing the decision of an administrative agency, the trial and appellate courts occupy identical positions with respect to the administrative record, and the appellate court must itself review the whole administrative record to determine whether the agency's decision was supported by substantial evidence.  (Mt. San Antonio College Faculty Assn. v. Board of Trustees (1981) 125 Cal.App.3d 27, 36–37, 177 Cal.Rptr. 810.)   We are not bound by the legal conclusions of the hearing officer or trial court as legal questions are reviewed de novo by an appellate court.  (Cochran v. Board of Supervisors (1978) 85 Cal.App.3d 75, 80, 149 Cal.Rptr. 304;  People ex rel. Fund American Companies v. California Ins. Co. (1974) 43 Cal.App.3d 423, 431, 85 Cal.App.3d 75.)   Absent the inadmissible evidence, the administrative record lacks substantial evidence to support the decision and the errors of law are prejudicial.

The DMV, however, contends the errors are harmless.   We disagree.   DMV contends reversal is an idle act because Taylor would have to introduce these same business records at a new hearing in order to prove it was exempt from the disputed fees.   But this is only speculation.   In addition, unless the DMV gathers and presents sufficient evidence on the use of the buses to sustain a finding Taylor owes the additional fees and penalties.   Taylor will have no duty to respond.   In this context, we see no reason to apply a different rule than that enunciated in Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 189 Cal.Rptr. 512, 658 P.2d 1313, a driver's license suspension case, in which a unanimous Supreme Court held, “[u]ntil the agency has met its burden of going forward with the evidence necessary to sustain a finding, the licensee has no duty to rebut the allegations or otherwise respond.  [Citations.]”  (Id., at p. 536, 189 Cal.Rptr. 512, 658 P.2d 1313.)   The DMV cannot rely on Taylor to relieve it of its burden to produce evidence.

DMV also argues any error was harmless because Taylor is not exempt from those fees and penalties.   However, a resolution of this question is neither possible nor appropriate now.   Should DMV desire to proceed with a new hearing on the issues of fees and penalties, a new evidentiary record will be developed and we cannot speculate on what that record might contain.

We need not address Taylor's other contentions.   It claims the superior court's findings of fact and conclusions of law are as a matter of law invalid, and the trial court's failure to make findings on a material issue requires reversal.   Both of these arguments concern Taylor's claim for an exemption from the additional fees and penalties.   Since we determine Taylor is entitled to a writ setting aside the findings of the DMV because of the use of illegally seized evidence, a resolution of these additional contentions is unnecessary.   Taylor's claim to an exemption can only be addressed in the context of whatever evidentiary record is developed should the DMV hold a new hearing.

The denial of Taylor's petition for a writ of administrative mandamus pursuant to Code of Civil Procedure section 1094.5 is reversed and the cause is remanded to the trial court with directions to grant Taylor Bus Service's petition and issue a peremptory writ commanding the Department of Motor Vehicles to set aside its order assessing additional registration fees and penalties and proceed in accordance with the views expressed herein.

FOOTNOTES

1.   Relevant portions of the affidavit in support of the warrant state:“Your affiant personally went to the office of the Taylor Bus Service in the City of San Diego (the locale wherein your affiant is presently assigned) on July 10, 1978 and talked with a Taylor Bus Service employee named Ron Holt.   I requested permission to see their bus logs, and was told that the logs are sent to their main office in Anaheim at the end of each month.   However, on August 11, 1978 I returned and saw John Jessie and this employee did show me their log for the first ten (10) days of August, 1978 upon my request.  [¶] Your affiant observed from this business log that a total of seventeen (17) buses had been chartered during those ten (10) days, that five of those buses had ‘passenger’ license plates, and that of those five (5), one (1) was chartered by the San Diego Unified School District for a ‘school activities' [sic] while the other four (4) were chartered by the San Diego Parks and Recreation to take individuals to the San Diego Wild Animal Park.   The other twelve (12) buses chartered had ‘commercial licenses.’  [¶] John Jessie, the employee of Taylor Bus Services in San Diego, set up an appointment for your affiant to go to the Anaheim office of Taylor Bus Services, located at 917 East Pacifico to inspect the company's bus log records.   This appointment was scheduled for August 29, 1978.   On that date I arrived at that address and met Tom Berthold.   He identified himself as a vice president of Taylor Bus Service.   Mr. Berthold refused to show your affiant his bus log records, indicating he felt it might incriminate himself.  [¶] On August 30, 1978, Mr. Berthold was served with an administrative subpoena to deliver to your affiant his bus log records from June 1, 1978 to August 31, 1978, including invoices for billing and bus license numbers.   See attached addendum A.   [¶] Your affiant was told by Cecil Erwin and Jean Tibbett, investigators for the Department of Motor Vehicles in the Fullerton office, that Mr. Berthold had cancelled the meeting on the 13th day of September, 1978 and that he would appear on the following day with said records.   Your affiant drove to the Fullerton office, arriving at 9:15 am on September 14, 1978.   Mr. Berthold was not present, but sent a letter to DMV indicating he was there at 9:00 am, but had to leave.   See attached addendum B.  [¶] At 10:15 am on September 14, 1978, your affiant telephonically contacted Mr. Berthold.   He said he would make the records available to your affiant, however, it was inconvenient for him during the next two weeks, and he didn't think he should show your affiant the records because they might incriminate him.  [¶] Your affiant was told by Investigator Tibbetts of the DMV, that on September 15, 1978, she went to 917 East Pacifico to serve Mr. Berthold with another administrative subpoena.  (See attached addendum C.)   Mr. Berthold's secretary told Investigator Tibbetts that she would notify Mr. Berthold of the Investigator's presence.   Investigator Tibbetts told your affiant that she could hear the voice of Mr. Berthold whom she had met before.   Less than fifteen (15) minutes later, the secretary returned and told Investigator Tibbetts that Mr. Berthold had to go to an important meeting and had left the area.   Subsequently, your affiant was told by Investigator Tibbetts that Mr. Berthold had made an appointment to meet her on September 25, 1978 at 2:30 pm.   However, on that date, Mr. Berthold's secretary telephoned and said he would be unable to keep that appointment.  [¶] It is your affiant's opinion that Mr. Berthold is purposefully and intentionally avoiding a meeting with the DMV investigators, he is purposefully and intentionally avoiding the administrative subpoena process, and it is your affiant's belief that these records contain evidence of grand theft committed by the officers of M.T. Enterprises dba Taylor Bus Services with the victim being the State of California.   It is your affiant's belief that these registration violations are continuing, that at least one citation has been issued during the summer months, and that the summer months are the months when most violations of this nature occur;  hence, the request of all company records from June 1, 1978 to August 31, 1978.”

2.   Subdivision (a)(1) of Penal Code section 1524 alludes to the offense of receiving stolen property (Pen.Code § 496) which may be a misdemeanor.  Penal Code section 311.3, contained in Penal Code section 1524, subdivision (a)(5), makes sexual exploitation of a child a misdemeanor unless the defendant has been previously convicted of delineated crimes.

3.   We emphasize our holding in this instance does not provide a categorical rule applicable to every DMV proceeding.   Our decision is based on the particular facts of this situation.

4.   In People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 41 Cal.Rptr. 290, 396 P.2d 706, the Supreme Court held illegally seized evidence could not be admitted in a forfeiture proceeding.   The court reasoned the detrimental effect of excluding the illegally seized evidence would be negated if the same evidence could be used in the civil forfeiture proceedings.   The court found the proceeding, which by its nature arises out of a defendant's criminal conduct, is closely identified to the aims and objectives of criminal law enforcement.In People v. Moore (1968) 69 Cal.2d 674, 72 Cal.Rptr. 800, 446 P.2d 800, reversed on other grounds in People v. Thomas (1977) 19 Cal.3d 630, 139 Cal.Rptr. 594, 566 P.2d 228, the court found a close identity between a civil narcotic addict commitment proceeding and the aims and objectives of criminal law enforcement.   The court held unconstitutionally obtained evidence must be excluded:  to do otherwise would furnish an incentive to violate the Fourth Amendment.  (Id., at p. 682, 139 Cal.Rptr. 594, 566 P.2d 228.)In In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734 the court admitted unconstitutionally seized evidence in a parole revocation hearing.   The court found the proceeding to be administrative but recognized the close identity to a criminal proceeding because of the possibility of deprivation of freedom and concluded that excluding the evidence provided no deterrent since the evidence was not seized for use at the hearing and the costs to society may be great by allowing a non-rehabilitated convict to go free.   The court concluded each case must be determined on a case-by-case basis.

5.   The court in Donovan v. Sarasota Concrete Co. (1982) 693 F.2d 1061 applied the exclusionary rule in an OSHA administrative proceeding where an administrative warrant was beyond the scope of the alleged violations.  “[T]he administrative scheme governing OSHA inspections provides a ready mechanism for the enforcement of fourth amendment rights․  [T]he introduction of an exclusionary sanction would have an ‘appreciable impact on actions of OSHA officials and inspectors.’ ”   (Id., at p. 1071.)   In particular, to enforce Fourth Amendment rights, the Secretary had “the capability of issuing and enforcing guidelines to effectuate holdings involving fourth amendment claims ․”  (Ibid.)

6.   We are cognizant the Department may be unable to compel a defendant in a civil action to produce documents if they tend to incriminate.  (Goldsmith v. Superior Court (1984) 152 Cal.App.3d 76, 199 Cal.Rptr. 366.)   As a practical matter, this simply means the Attorney General must choose between seeking criminal sanctions or civil penalties.   If the choice is the former, no subpoena may issue;  if the choice is the latter, immunity from prosecution (Pen.Code § 1324) must first be extended.  (United States v. Doe (1984) 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552.)

SONENSHINE, Associate Justice.

TROTTER, P.J., and CROSBY, J., concur.