Sanders

*322 Opinion

In In re Martinez (1970) 1 Cal.3d 641 [ 83 Cal.Rptr. 382 , 463 P.2d 734 ], we held that the warrantless search of a residence could not be justified as a parole search if the police did not know of the suspect’s parole status when they conducted the search. In In re Tyrell J. (1994) 8 Cal.4th 68 [ 32 Cal.Rptr.2d 33 , 876 P.2d 519 ], we declined to follow the reasoning of Martinez and instead upheld the warrantless search of the person of a juvenile who was on juvenile probation and subject to a search condition of which the police were unaware at the time of the search. In People v. Robles (2000) 23 Cal.4th 789, 800 [ 97 Cal.Rptr.2d 914 , 3 P.3d 311 ], we held that the search of a residence could not be justified by the circumstance that the defendant’s brother, who lived in the residence, was on probation and subject to a search condition of which the police were unaware at the time of the search. In the present case, police searched the residence of two persons, one of whom was on parole and subject to a search condition of which the police were unaware at the time of the search. For the reasons that follow, we conclude that evidence seized during the search must…

I fully concur in the majority’s determination that as to both defendants the search of their residence cannot be justified by a parole search condition of which the officers were ignorant at the time. I write separately because I question the majority’s references to—and ostensible reliance on—the deterrent purpose of the exclusionary rule to support its analysis of the scope of Fourth Amendment protections. (See maj. opn., ante, at pp. 324, 334.)

“The Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands . . . .” (United States v. Leon (1984) 468 U.S. 897, 906 [ 82 L.Ed.2d 677 , 104 S.Ct. 3405 ].) The *339 exclusionary rule “thus operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ [Citation.]” (Ibid.) Accordingly, “[w]hether the exclusionary sanction is appropriately imposed in a particular case”—and hence the relevance of its deterrence purpose—“is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated…

In United States v. Knights (2001) 534 U.S. 112 [ 151 L.Ed.2d 497 , 122 S.Ct. 587 ] (Knights), the United States Supreme Court recently reminded courts to “ ‘examin[e] the totality of the circumstances’ ” when determining whether a warrantless search violates a defendant’s right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution. (Knights, supra, 534 U.S. at p. 118 .) Disregarding that admonishment, the majority holds here that if police officers do not know a defendant is a parolee when searching the defendant’s home without a warrant, the circumstance that the defendant is in fact subject to a parole term that provides legal authority for the search is absolutely irrelevant to the search’s validity. But a parole search term significantly diminishes a defendant’s reasonable expectation of privacy, whether or not the searching officers know the defendant is on parole. Accordingly, I find that, whether or not the officers are aware of it, a defendant’s status as a parolee with a validly imposed parole search term warrants full consideration in assessing a search’s reasonableness under the “totality of the circumstances”…

In In re Martinez (1970) 1 Cal.3d 641 , 83 Cal.Rptr. 382 , 463 P.2d 734 we held that the warrantless search of a residence could not be justified as a parole search if the police did not know of the suspect's parole status when they conducted the search. In In re Tyrell J. (1994) 8 Cal.4th 68 , 32 Cal.Rptr.2d 33 , 876 P.2d 519 we declined to follow the reasoning of Martinez and instead upheld the warrantless search of the person of a juvenile who was on juvenile probation and subject to a search condition of which the police were unaware at the time of the search. In People v. Robles (2000) 23 Cal.4th 789, 800 , 97 Cal. Rptr.2d 914 , 3 P.3d 311 , we held that the search of a residence could not be justified by the circumstance that the defendant's brother, who lived in the residence, was on probation and subject to a search condition of which the police were unaware at the time of the search.

In the present case, police searched the residence of two persons, one of whom was on parole and subject to a search condition of which the police were unaware at the time of the search. For the reasons that follow, we conclude that evidence seized during the search must be…