PEOPLE v. IBBOTSON (1989)

Defendant Roy Ibbotson appeals a judgment sentencing him to prison after the court revoked his probation.   Ibbotson contends the court abused its discretion in denying his motion to continue the probation revocation hearing until after a hearing on his Penal Code 1 section 1538.5 motion to suppress evidence.   Ibbotson also contends evidence which was later suppressed under section 1538.5 could not properly be used to revoke his probation.   We affirm.

I

In 1986 in San Diego Superior Court case number CR81579 Ibbotson was convicted of possessing a throwing star.  (§ 12020, subd. (c).)  Ibbotson was placed on three years probation with conditions he not possess any firearms, not violate any laws and submit to search by authorities with or without a search warrant and with or without probable cause.²

On July 17, 1987, police went to Ibbotson's residence to conduct a search.   Plain-clothed officer Van Wey approached the front door while other officers remained out of sight.   The front door was open.   Van Wey knocked on the door frame.   A young man came to the door and asked what Van Wey wanted.   Without identifying himself or stating his purpose, Van Wey said he was looking for Roy.   The young man told Van Wey to “wait a minute” and walked back inside.   Van Wey walked four or five steps into the house.   Van Wey heard the young man say, “Roy, there is somebody here to see you.”   A male voice replied, “Who is it?”   The young man returned to the front door and asked Van Wey his name.   Van Wey replied “Jerry.”   The young man went back into the house and said, “Jerry—you want me to ask him to come in?”   Without waiting for a response, Van Wey signaled to the other officers and entered the home.   Before entering, Van Wey did not identify himself as a police officer, explain his purpose or demand entry.   Upon contacting Ibbotson inside the house, Van Wey first identified himself as a police officer.

Police discovered a working methamphetamine laboratory inside the residence's bedroom and bathroom.   Police found a gun on a bedroom shelf.   After police admonished him, Ibbotson waived his rights and admitted he lived in the house and knew of the methamphetamine laboratory.   Ibbotson also stated with his permission a friend had set up the laboratory.

II

On July 30, 1987, in CR81579 the People filed a petition for hearing to show cause why Ibbotson's probation should not be revoked based on the events of July 17, 1987.   The same day the court revoked Ibbotson's probation.   Hearing was calendared for August 14, 1987.

On August 14, 1987, Ibbotson denied the alleged probation violation and asked for an evidentiary hearing.   Hearing was set for August 21, 1987.   On August 21, 1987, at Ibbotson's request the hearing was continued until September 17, 1987.

On August 24, 1987, the People filed a complaint in San Diego Municipal Court case number F105903 charging Ibbotson with manufacturing methamphetamine (Health & Saf.Code, § 11379.6, subd. (a)), controlling a place for the manufacture of methamphetamine (Health & Saf.Code, § 11366.5, subd. (a)), causing the endangerment of a child (§ 273a, subd. (1)), and firearm possession by a felon (§ 12021, subd. (a)).

On September 10, 1987, Ibbotson pleaded not guilty to all charges in F105903.   Preliminary examination was set for October 9, 1987.

On September 17, 1987, Ibbotson requested continuance of the CR81579 probation revocation hearing until after hearing on his section 1538.5 motion to suppress in F105903.   The court denied Ibbotson's request for continuance.   On September 18, 1987, the probation revocation matter proceeded to hearing.   The court found Ibbotson had violated his probation conditions.   The court revoked probation.

On October 9, 1987, Ibbotson waived preliminary examination in F105903.   The People filed an information against Ibbotson.  (San Diego Super.Ct., case no. CR90388.)

On October 15, 1987, in CR81579 the court sentenced Ibbotson to two years in prison.

In November 1987, in San Diego Superior Court case CR90388 (F105903) the court granted Ibbotson's section 1538.5 motion to suppress.   On December 1, 1987, on the People's motion the case was dismissed.

Ibbotson appeals the judgment in CR81579.

III

 Ibbotson contends the superior court abused its discretion in denying his motion to continue the probation revocation hearing until after the hearing on his section 1538.5 motion to suppress.   Ibbotson claims prejudice, asserting a favorable determination on his suppression motion before the revocation hearing would have rendered illegally obtained evidence inadmissible at the revocation hearing.   Ibbotson relies on section 1538.5, subdivision (d).   He also relies on People v. Howard (1984) 162 Cal.App.3d 8, 208 Cal.Rptr. 353 and People v. Fuller (1983) 148 Cal.App.3d 257, 210 Cal.Rptr. 1.   We find no reversible error.   Denial of the motion for continuance did not prejudice Ibbotson because after Proposition 8 evidence suppressed under section 1538.5 may nonetheless be admissible at a probation revocation hearing if permitted under the federal constitution.

Section 1538.5, subdivision (d), provides:  “If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movant at any trial or other hearing unless further proceedings authorized by this section, Section 871.5, Section 1238, or Section 1466 are utilized by the people.”   Citing section 1538.5, subdivision (d), the court stated in People v. Fuller, supra, 148 Cal.App.3d at pages 262–263, 210 Cal.Rptr. 1:

“Assuming that the search did suffer from such a constitutional defect, then, had his trial on the criminal charges been held prior to his probation revocation hearing, defendant might have successfully moved to suppress the evidence obtained in the illegal search, thereby rendering it inadmissible both at the trial and the probation revocation hearing.   Thus, in this instance, the denial of defendant's motion to continue the probation revocation hearing may well have been highly prejudicial to him, since the granting of his motion to suppress would have furnished him with an impregnable defense against both the criminal charges and the motion to revoke his probation.”

In People v. Howard, supra, 162 Cal.App.3d at page 23, 208 Cal.Rptr. 353, the court stated:  “We glean from [People v. Coleman (1975) 13 Cal.3d 867, 120 Cal.Rptr. 384, 533 P.2d 1024;  People v. Jasper (1983) 33 Cal.3d 931, 191 Cal.Rptr. 648, 663 P.2d 206;  People v. Samuels (1983) 147 Cal.App.3d 1108, 195 Cal.Rptr. 598;  and People v. Fuller, supra ] this standard:  the trial court abuses its discretion if it denies defendant's motion to continue the hearing on revocation of probation when defendant's simultaneous challenge to the admissibility of evidence supporting the revocation of probation is more likely than not to support a successful section 1538.5 motion in the concurrent criminal proceeding.”   The holdings in Fuller and Howard are based on the theory denial of a motion to continue the revocation hearing prejudices the defendant because section 1538.5, subdivision (d), prohibits admission at a later revocation hearing of evidence successfully suppressed under section 1538.5.  (People v. Belleci (1979) 24 Cal.3d 879, 883–888, 157 Cal.Rptr. 503, 598 P.2d 473;  People v. Zimmerman (1979) 100 Cal.App.3d 673, 161 Cal.Rptr. 188.)

Article 1, section 28, subdivision (d), of the California Constitution, adopted as part of Proposition 8 in 1982, provides in pertinent part:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding․”  The provision's effect “is to permit admission of unlawfully seized evidence unless exclusion is mandated by the Fourth Amendment exclusionary rule of the federal Constitution.”  (People v. Moore (1988) 201 Cal.App.3d 877, 885, 247 Cal.Rptr. 353, citing In re Lance W. (1985) 37 Cal.3d 873, 884–890, 896, 210 Cal.Rptr. 631, 694 P.2d 744.3)  Neither Fuller nor Howard was decided under Proposition 8.⁴  We find for purposes of admissibility of evidence at a probation revocation hearing Proposition 8 abrogates section 1538.5, subdivision (d), to the extent the statute may be contrary to federal constitutional law regarding the exclusion of relevant evidence.

While conceding the general application of Proposition 8, Ibbotson contends the Legislature's post-Proposition 8 unanimous reenactment of section 1538.5, including its subdivision (d), constitutes acquiescence in the holdings of People v. Belleci, supra, 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473, and People v. Zimmerman, supra, 100 Cal.App.3d 673, 161 Cal.Rptr. 188.   Ibbotson relies on People v. Willis (1983) 149 Cal.App.3d Supp. 56, 197 Cal.Rptr. 281.   However, we find Willis to be unpersuasive in light of In re Lance W., supra, 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.

In In re Lance W., supra, 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, the Supreme Court discussed at length the effect of section 1538.5's reenactment:  After passage of Proposition 8, the Legislature amended section 1538.5 twice.   The first amendment specifically declared it did “ ‘not create any new grounds for exclusion of evidence that did not exist prior to this act.   The Legislature intended that the changes made by this act are procedural only.’ ”  (Id. at p. 894, 210 Cal.Rptr. 631, 694 P.2d 744.)   Although not including the indicia of legislative intent contained in the first amendment, the second amendment merely served to reenact the law as it was at the date of the first reenactment and did not reenact the law as it was before adoption of Proposition 8.   Proposition 8 therefore remained applicable to section 1538.5 even after the statute's post-Proposition 8 amendments.   (Id. 37 Cal.3d at pp. 895–896, 210 Cal.Rptr. 631, 694 P.2d 744.)  “[T]he amendments to section 1538.5 adopted by the Legislature in 1982 had neither the intent nor effect of reviving exclusionary rules abrogated by Proposition 8.”  (Id. p. at 896, 210 Cal.Rptr. 631, 694 P.2d 744.)   While we note the court in In re Lance W., supra, 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744, was concerned primarily with the effect of the legislative reenactment on section 1538.5's subdivision (a), not subdivision (d), we find the court's analysis of the effect of reenactment equally applicable to subdivision (d).   (Accord, In re Douglas (1988) 206 Cal.App.3d 866, 872–874, mod. 207 Cal.App.3d 759d, 254 Cal.Rptr. 546.

Accordingly, after Proposition 8, the holdings of People v. Howard, supra, 162 Cal.App.3d 8, 208 Cal.Rptr. 353, and People v. Fuller, supra, 148 Cal.App.3d 257, 210 Cal.Rptr. 1, no longer compel a finding that denial of Ibbotson's motion to continue his probation revocation hearing constituted prejudicial abuse of discretion.⁵

IV

 Ibbotson contends even under federal constitutional standards the evidence suppressed under his 1538.5 motion was inadmissible at his probation revocation hearing.   Ibbotson asserts the suppressed evidence was inadmissible under federal law because the police violated his Fourth Amendment rights in not complying with the “knock and notice” requirements of federal as well as state law.  (Sabbath v. United States (1968) 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828;  Miller v. United States (1958) 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332;  People v. Neer (1986) 177 Cal.App.3d 991, 223 Cal.Rptr. 555.)   However, even assuming the suppressed evidence was seized in violation of federal “knock and notice” requirements, the inquiry does not end there.   We must look to whether the federal constitution compels exclusion of such illegally obtained evidence at a probation revocation hearing.

 Generally Fourth Amendment exclusionary rules are not applicable to probation revocation hearings.  (People v. Hayko (1970) 7 Cal.App.3d 604, 610, 86 Cal.Rptr. 726, citing In re Martinez (1970) 1 Cal.3d 641, 650, 83 Cal.Rptr. 382, 463 P.2d 734.)   California law is substantially in accord with federal law that illegally obtained evidence may be admitted at a probation revocation hearing if the police misconduct is not so egregious as to shock the conscience.  (In re Martinez, supra, at pp. 649–652, 83 Cal.Rptr. 382, 463 P.2d 734;  In re Douglas, supra, 206 Cal.App.3d at p. 874, 254 Cal.Rptr. 546;  People v. Harrison (1988) 199 Cal.App.3d 803, 808, 245 Cal.Rptr. 204;  People v. Nixon (1982) 131 Cal.App.3d 687, 183 Cal.Rptr. 878;  People v. Petersen (1972) 23 Cal.App.3d 883, 100 Cal.Rptr. 590;  People v. Hayko, supra, 7 Cal.App.3d at pp. 609–610, 86 Cal.Rptr. 726.)   In determining the admissibility at a probation hearing of evidence suppressed for violation of “knock and notice” requirements, the court in Hayko stated:  “In the present case the illegality of the arrest resulted from a failure on the part of the police officers to identify themselves (even though they were in uniform) and to explain their purpose before entering.   Though they did not comply with the statute, their conduct does not ‘shock the conscience’ as that term is used in [In re Martinez, supra, 1 Cal.3d at p. 650, 83 Cal.Rptr. 382, 463 P.2d 734, and Rochin v. People of California (1952) 342 U.S. 165, 172–174, 72 S.Ct. 205, 209–211, 96 L.Ed. 183].”  (People v. Hayko, supra, 7 Cal.App.3d at p. 610, 86 Cal.Rptr. 726.)   As Ibbotson concedes, police conduct here similarly did not shock the conscience.

V

Although conceding police misconduct here did not shock the conscience, Ibbotson in his reply brief contends federal law nonetheless required exclusion of the illegally seized evidence at the probation revocation hearing because the police officers conducting the illegal search knew he was on probation.   In support of his contention, Ibbotson cites United States v. Vandemark (9th Cir.1975) 522 F.2d 1019.

It would ordinarily be unnecessary to address Ibbotson's claim since here the officer conducted the search pursuant to a waiver authorizing search without reasonable cause and without a warrant.   Manifestly, officers searching under probation search waivers know of the probationers' status.   The issue addressed in United States v. Vandemark, supra, 522 F.2d 1019, does not arise in situations involving probation searches entirely in accord with the terms of such waivers because in those probation searches there is no illegality.   At the time of the search challenged here, Ibbotson was subject to a probation search waiver.   If the challenged search was wholly within the terms of Ibbotson's waiver, the search would be authorized, not illegal and not exploitative of Ibbotson's probation status.   However, we cannot resolve the question so easily.   In view of the wording of the waiver provision Ibbotson accepted and the nature of the Fourth Amendment violation asserted, it is necessary to reach Ibbotson's claim federal law bars admission of the evidence even at a probation revocation hearing.

 The case before us involves asserted police noncompliance with “knock and notice” requirements.   We agree with the analysis in People v. Tacy (1987) 195 Cal.App.3d 1402, 1409–1414, 241 Cal.Rptr. 400, that pertinent California and federal authority indicates violation of “knock and notice” requirements is an unreasonable search within the meaning of the Fourth Amendment.  (See People v. Jacobs (1987) 43 Cal.3d 472, 484, 233 Cal.Rptr. 323, 729 P.2d 757;  Parsley v. Superior Court (1973) 9 Cal.3d 934, 939, 109 Cal.Rptr. 563, 513 P.2d 611, citing Ker v. California (1963) 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726;  Duke v. Superior Court (1969) 1 Cal.3d 314, 324–325, 82 Cal.Rptr. 348, 461 P.2d 628;  Greven v. Superior Court (1969) 71 Cal.2d 287, 290, 78 Cal.Rptr. 504, 455 P.2d 432;  People v. Rosales (1968) 68 Cal.2d 299, 304–305, 66 Cal.Rptr. 1, 437 P.2d 489;  People v. Gastelo (1967) 67 Cal.2d 586, 588–589, 63 Cal.Rptr. 10, 432 P.2d 706;  People v. Franco (1986) 183 Cal.App.3d 1089, 1095, 228 Cal.Rptr. 527;  People v. Neer, supra, 177 Cal.App.3d at pp. 997–1001, 223 Cal.Rptr. 555;  Jeter v. Superior Court (1983) 138 Cal.App.3d 934, 938, 188 Cal.Rptr. 351.)   On its face Ibbotson's probation order does not purport to waive “knock and notice” rights.   After our inquiry, both parties have agreed the terms of Ibbotson's probation search waiver may not be interpreted as including waiver of compliance with “knock and notice” requirements.  (People v. Lilienthal (1978) 22 Cal.3d 891, 900, 150 Cal.Rptr. 910, 587 P.2d 706.)   Further, a court may not properly impose a probation condition requiring a defendant to waive “knock and notice” rights.  (People v. Freund (1975) 48 Cal.App.3d 49, 56–58, 119 Cal.Rptr. 762.)   We conclude Ibbotson's probation order did not authorize police noncompliance with “knock and notice” requirements.   Thus, the mere fact Ibbotson was subject to a probation search waiver is not enough to resolve this case.

 Returning to Ibbotson's argument—that federal law mandates exclusion of the illegally seized evidence at his probation revocation hearing simply because the searching officer knew of his probation status—we believe it misapprehends the holding of United States v. Vandemark, supra, 522 F.2d 1019.   In Vandemark the court stated:  “[E]vidence obtained in violation of the Fourth Amendment is admissible in probation revocation proceedings if, at the time of the search, the law enforcement officers did not know or have reason to believe that the suspect was on probation.  United States v. Winsett, 518 F.2d 51 (9th Cir.1975).”  (Id. at p. 1020.)   However, Vandemark does not stand for the proposition asserted by Ibbotson that exclusion of evidence in probation revocation hearings is required whenever the searching officer knows the defendant is on probation.

In United States v. Winsett (9th Cir.1975) 518 F.2d 51, 53–54, citing United States v. Calandra (1974) 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561, the court noted the exclusionary rule does not proscribe use of illegally seized evidence in all proceedings and “․ any extension of the rule beyond its traditional applicability in criminal proceedings makes sense only if use of the remedy would deter or would likely deter police misconduct.”   (Id. at p. 54, fn. omitted.)   The court discussed the two-pronged test to be applied as set forth in Calandra:

“[W]e must first determine whether extension of the exclusionary rule to probation revocation hearings would produce any deterrent benefits.   If none can be expected from extension of the rule, or if the benefits are insignificant, then exclusion of the seized evidence is unwarranted.   However, even if extension of the rule may in fact achieve some deterrence of police misconduct, we must still balance the potential benefits against potential injury to the function of the proceedings in which the illegally obtained evidence is to be admitted or used.   If the potential harm substantially outweighs potential benefits, then the rule should not be extended.   [Citation.]”  (Ibid.)

In Winsett the court found application of the exclusionary rule to probation revocation proceedings would have a deterrent effect speculative or marginal at best:  “Such an extension would deter only police searches and arrests consciously directed toward probationers.   In this case, however, the border patrol agents were unaware at the time of the search and arrest that appellant was a probationer.”  (Id. at p. 54, fn. omitted.)   The court stated in dictum in a footnote:

“[W]hen the police at the moment of search know that a suspect is a probationer, they may have a significant incentive to carry out an illegal search even though knowing that evidence would be inadmissible in any criminal proceeding.   The police have nothing to risk:  If the motion to suppress in the criminal proceedings were denied, defendant would stand convicted of a new crime;  and if the motion were granted, the defendant would still find himself behind bars due to revocation of probation.   Thus, in such circumstances, extension of the exclusionary rule to the probation revocation proceeding may be necessary to effectuate Fourth Amendment safeguards.”   (Id. at p. 54, fn. 5.) 6

In United States v. Calandra, supra, 414 U.S. 338, 94 S.Ct. 613, the Supreme Court declined to extend the exclusionary rule to grand jury proceedings.   The court stated:  “Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal.   Such an extension would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation.”  (Id. at p. 351, 94 S.Ct. at 621, italics added.)

In United States v. Rea (2d Cir.1982) 678 F.2d 382, 388, applying the balancing test of United States v. Calandra, supra, 414 U.S. 338, 94 S.Ct. 613, the appellate court held inadmissible in a probation revocation hearing evidence seized by a probation officer in an illegal warrantless search of the probationer's home.   The court in Rea concluded “․ a probation officer who seeks to discover and seize evidence for use in a probation revocation hearing is very likely to be deterred from proceeding without a warrant if the officer knows that evidence so seized is apt to be excluded from the very proceeding with which he is concerned.”  (Id. at p. 390, italics added.)

We are not aware of any federal authority addressing the precise issue whether the exclusionary rule applies in a probation revocation hearing for evidence seized in violation of “knock and notice” requirements where the searching officers know the subject's probationary status and the probationer has agreed to submit to searches without warrants or probable cause.   As discussed above, United States v. Winsett, supra, 518 F.2d at page 54, footnote 5, suggests under certain circumstances police misconduct may require exclusion of illegally seized evidence at probation revocation hearings.   However, this case does not present such circumstances.

Van Wey was a police officer with the narcotics street team.   Van Wey went to Ibbotson's house after talking with a confidential informant about the residence.   Van Wey knew Ibbotson was on probation with a “Fourth Amendment waiver” condition.   Van Wey declined to identify himself as a police officer upon arriving at Ibbotson's front door because Van Wey did not know if Ibbotson was there, did not want Ibbotson to have a chance to destroy any evidence, and noticed a surveillance camera above the front door.   Ibbotson points to nothing in this record justifying extension of the exclusionary rule to the probation revocation hearing here.

Nothing in this record suggests in violating “knock and notice” requirements police consciously sought to discover and seize evidence solely for use in a probation revocation hearing (United States v. Calandra, supra, 414 U.S. at p. 351, 94 S.Ct. at p. 621;  United States v. Rea, supra, 678 F.2d at p. 390), had a specific objective to cause revocation of Ibbotson's probation (Verdugo v. United States, supra, 402 F.2d at p. 612), or otherwise in bad faith took advantage of Ibbotson's probationary status.   On this record the evidence ultimately suppressed under section 1538.5 was admissible at Ibbotson's probation revocation hearing.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   The probation order provided in relevant part that Ibbotson would “[s]ubmit his person, property, place of residence, vehicle, personal effects to search at any time, with or without a warrant and with or without reasonable cause, when required to do so by the Probation Officer or any law enforcement officer․”

FN3. In People v. Moore, supra, 201 Cal.App.3d 877, 247 Cal.Rptr. 353, the court faced the issue of section 28, subdivision (d)'s effect on the admissibility for impeachment at trial of evidence earlier suppressed under section 1538.5.  People v. Belleci, supra, 24 Cal.3d at pages 887–888, 157 Cal.Rptr. 503, 598 P.2d 473, had held evidence suppressed under section 1538.5 to be inadmissible at any trial or hearing.   However, in Moore the court concluded “․ Belleci, a pre-Proposition 8 case, must be construed in light of section 28(d).   In so doing it is manifestly clear that Belleci's unqualified holding that evidence suppressed pursuant to section 1538.5 is inadmissible at any trial or hearing must be modified to include the qualification:  if exclusion is mandated by the Fourth Amendment exclusionary rule of the federal Constitution.”  (People v. Moore, supra, 201 Cal.App.3d at p. 885, 247 Cal.Rptr. 353.).  FN3. In People v. Moore, supra, 201 Cal.App.3d 877, 247 Cal.Rptr. 353, the court faced the issue of section 28, subdivision (d)'s effect on the admissibility for impeachment at trial of evidence earlier suppressed under section 1538.5.  People v. Belleci, supra, 24 Cal.3d at pages 887–888, 157 Cal.Rptr. 503, 598 P.2d 473, had held evidence suppressed under section 1538.5 to be inadmissible at any trial or hearing.   However, in Moore the court concluded “․ Belleci, a pre-Proposition 8 case, must be construed in light of section 28(d).   In so doing it is manifestly clear that Belleci's unqualified holding that evidence suppressed pursuant to section 1538.5 is inadmissible at any trial or hearing must be modified to include the qualification:  if exclusion is mandated by the Fourth Amendment exclusionary rule of the federal Constitution.”  (People v. Moore, supra, 201 Cal.App.3d at p. 885, 247 Cal.Rptr. 353.)

4.   In People v. Howard, supra, 162 Cal.App.3d at page 24, 208 Cal.Rptr. 353, the court held Proposition 8 did not apply because probation had been granted before the initiative's passage.

5.   We deal here, of course, only with the issue presented below whether the superior court abused its discretion simply by scheduling Ibbotson's probation revocation hearing before the hearing on his section 1538.5 motion to suppress.   Nothing in our opinion should be read to limit the trial court's discretion to consider other pertinent factors in making such scheduling determinations.

6.   The court in United States v. Winsett, supra, 518 F.2d at page 54, footnote 5, also stated:  “Compare Verdugo v. United States, 402 F.2d 599, 612 (9th Cir.1968), ․ in which this court applied the exclusionary rule to sentencing proceedings where the police were familiar with past narcotic violators and current suspects and had a personal stake in seeing not only that a violator was convicted, but also that he receive a lengthy sentence.   The court reasoned that in the absence of the exclusionary rule an officer would have an incentive, given the proper circumstances, to lawfully obtain only so much evidence as is necessary to assure conviction of the defendant of a single offense, and then proceed to unlawfully obtain evidence of additional offenses which would ensure a long sentence.”   The court in Verdugo stated the police may have had a specific objective of lengthy incarceration.  (Verdugo v. United States (9th Cir.1968) 402 F.2d 599, 612.)   We note Verdugo did not involve search of a probationer.

KREMER, Presiding Justice.

WIENER and TODD, JJ., concur.