People v. Fields

Opinion

This is an appeal by the People from an order of the superior court dismissing charges against respondents on the basis that

Here, no claim is made that the search condition attached to Fields’ probation terms was unreasonable or independently invalid; rather, it is argued that the invalidity of the conviction renders Fields’ probationary status retroactively invalid, and with it the search condition as well. We do not agree. If Fields’ conviction had been overturned prior to the search, Fields would no longer be on probationary status, and the search condition could not be relied upon to support a warrantless search. (Freytes v. Superior Court (1976) 60 Cal.App.3d 958 [ 132 Cal.Rptr. 26 ]; cf. People v. Spratt (1980) 104 Cal.App.3d 562 , 567-568 [ 164 Cal.Rptr. 78 ].) But the Legislature has made clear that an appeal from a judgment of conviction “does not stay the execution of the judgment or order granting probation in any. .. case unless the trial or appellate court shall so order” (Pen. Code, § 1243), and of course there was no such order here. Thus, Fields’ probationary status continued in effect.

Perhaps the closest authority is People v. Dubose (1971) 17 Cal.App.3d 43 [ 94 Cal.Rptr. 376 ], in which a police officer, without a warrant, entered the home of a parolee for the purpose of arresting him for a violation of parole, and while there observed evidence of contraband which led to new criminal charges against him. Subsequently, the conviction underlying defendant’s parole status was ruled invalid. The trial court suppressed evidence on that ground, but this court in an opinion by Justice Molinari held that was error. In so doing we referred to “[t]he basic proposition that an individual is subject to all the disabilities of a judgment, commitment or sentence which, though voidable, has not been judicially voided . ...” (17 Cal.App.3d at p. 49.)

Somewhat analogous and supportive of that proposition are cases which hold that a defendant charged with assault by a life prisoner (Pen. Code, § 4500) may be convicted of that offense despite the invalidity of the prior conviction upon which the life sentence was based (Graham v. Superior Court (1979) 98 Cal.App.3d 880 , 890 [ 160 Cal.

Determining the admissibility of evidence obtained in a probation search by the legal status of the probationer at the time of the search is consistent with the functions of the exclusionary rule. Insofar as that rule exists to deter intrusion by the police upon constitutionally protected rights of privacy (People v. Blair (1979) 25 Cal.3d 640 , 655 [ 159 Cal.Rptr. 818 , 602 P.2d 738 ]), it obviously would serve no useful purpose to apply it in a situation where the police are acting on the basis of a then valid and subsisting condition of probation which permits them to search without a warrant. On the contrary, to apply, the exclusionary rule in such a context would mean that whenever the police conduct a probationary search they would be acting at their, and the public’s peril. And, in light of these considerations, we cannot accept respondents’ contention that application of the exclusionary rule is required in order to maintain the integrity of the judicial process. (People v. Blair, supra, 25 Cal.3d at p. 656.) Rather, we consider that the integrity of the process is best served, at least under the circumstances present here, by a rule which determines the validity of the search on the basis of the legal situation which exists at the time the search is made.

For these reasons, also, we cannot accept respondents’ and the trial court’s theory that Fields’ “consent” to warrantless searches was vitiated by the subsequent reversal of his conviction. Insofar as probation searches rest on a theory of consent (People v. Mason (1971) 5 Cal.3d 759 , 764-765 [ 97 Cal.Rptr. 302 , 488 P.2d 630 ], disapproved on other grounds, People v. Lent (1975) 15 Cal.3d 481 , 486, fn. 1 [ 124 Cal.Rptr. 905 , 541 P.2d 545 ]; cf. People v. Keller, supra, 76 Cal.App.3d 827 , 832, fn. 2), the defendant’s consent must be deemed to be for the dura

The trial court in this case erred in its determination that the probationary search was unlawful. Respondent Banks’ motion to suppress, however, was based in part on other grounds. Specifically, Banks challenged a search of his person conducted after the officers had entered Fields’ residence; and it appears from the record that the trial court expressly declined to rule on the validity of that search. Because the testimony was conflicting, the issue does not lend itself to resolution as a matter of law. We therefore remand to the trial court for disposition of respondent Banks’ alternate grounds for suppression. (People v. Brooks (1980) 26 Cal.3d 471 , 483 [ 162 Cal.Rptr. 177 , 605 P.2d 1306 ].)

The order dismissing the action is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Elkington, Acting P. J., and Newsom, J., concurred.