Woods

Recently, dissenting from this court’s decision in People v. Reyes (1998) 19 Cal.4th 743 [ 80 Cal.Rptr.2d 734 , 968 P.2d 445 ] to permit warrantless, suspicionless searches of homes occupied by parolees with a parole search condition, I wrote: “As a consequence of today’s decision by the majority, government officials may now search private homes in neighborhoods throughout the state, by day or by night, for any reason or for no reason, if one of the home’s residents is a parolee subject to a search condition. As the United States Supreme Court has stressed, ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ (United States v. United States District Court (1972) 407 U.S. 297, 313 [ 92 S.Ct. 2125, 2134 , 32 L.Ed.2d 752 ].) By requiring reasonable suspicion for parole searches, the court in [People v.] Burgener [(1986)] 41 Cal.3d 505 [ 224 Cal.Rptr. 112 , 714 P.2d 1251 ], protected the privacy of the home while at the same time recognizing the government’s substantial interest in supervising parolees. I decline to join the majority in adopting a rule that recognizes no distinction between a private home occupied by a parolee…

Gayla Loza agreed, as a condition of felony probation, to submit her residence to warrantless searches. During a warrantless search of Loza’s residence, police officers uncovered evidence of criminal activity (drugs and firearms) against Cheryl Jeanene Woods and William B. Benson, who shared the residence with Loza. Woods and Benson successfully moved to suppress the evidence on the ground it had been obtained as the result of a pretextual probation search.

We granted review to consider whether a warrantless search of a probationer’s house is constitutionally invalid when it is undertaken to discover *672 incriminating evidence against a third party residing in the house. We conclude that, in this case, the officer’s subjective intent did not invalidate the challenged search since the circumstances, viewed objectively, justified the officer’s actions.

Facts

On the night of September 9, 1995, Police Officer Norm Wielsch was on routine patrol in Antioch when he saw Jason Mofield walking in front of a house at 615 West 9th Street. Mofield was carrying a long object covered with a cloth, which Wielsch suspected was a weapon. Wielsch followed Mofield for several blocks and…

From its consent rationale to its reliance on Whren v. United States (1996) 517 U.S. 806 [ 116 S.Ct. 1769 , 135 L.Ed.2d 89 ], the majority opinion is fatally flawed at every turn: on the law, on the facts, on principle.

In appending the Bill of Rights to the Constitution, the framers sought to protect individuals against government excess. High in that pantheon was the Fourth Amendment guarantee against unreasonable searches and seizures, which generally forbids such actions except pursuant to warrant issued upon probable cause by a neutral magistrate. By their decision today, a majority of this court set the history of personal liberties back more than 200 years and resurrect a specter of the general warrants and writs of assistance so abhorred in England and the American Colonies—the very impetus of the Fourth Amendment. I dissent.

A.

The majority’s discussion implies all consents are created equal—a highly questionable proposition in circumstances that effectively transform a search condition into a general warrant.

In United States v. Matlock (1974) 415 U.S. 164, 170 [ 94 S.Ct. 988, 993 , 39 L.Ed.2d 242 ], the United States Supreme Court allowed “that the consent of one…