Robles

Prior to trial, defendant moved to suppress evidence obtained in the garage of his residence as a result of a warrantless search and seizure by police. The trial court denied the motion because defendant’s brother, with whom defendant lived, had agreed to submit his person and property to warrantless police searches and seizures as a condition of probation. It is *793 undisputed that the officers involved were unaware of the brother’s probation condition when they obtained the challenged evidence. We conclude that defendant’s Fourth Amendment rights were violated and that his suppression motion should have been granted.

Factual and Procedural Background

Rolando Sanchez’s car was stolen on or about October 13, 1995. Ten days later, Sanchez saw defendant drive it into a store parking lot. Defendant put gasoline in the car and drove it away.

Sanchez called his sister and asked her to notify the police. Meanwhile, he drove around the area and saw his car parked in an alley. He also saw defendant with two other people. When Sanchez subsequently returned with the police to the scene, defendant was present but the car was no longer in view. Sanchez identified defendant to…

In this criminal case, the prosecution seeks to justify the warrantless police search of defendant’s garage and the warrant-less seizure of evidence in the garage on the ground that defendant’s brother, who resided with defendant, had agreed as a condition of probation to submit to warrantless searches. The majority rejects this argument, concluding that the warrantless search of defendant’s garage violated the protection of the federal Constitution’s Fourth Amendment against unreasonable searches and seizures and that the evidence seized in that search should have been excluded at trial.

The majority reaches this conclusion by distinguishing, not without some effort, two decisions by this court from which I dissented. One of them—In re Tyrell J. (1994) 8 Cal.4th 68 [ 32 Cal.Rptr.2d 33 , 876 P.2d 519 ]—held that police may rely on a probation search condition of which they are unaware to justify an otherwise illegal warrantless search of the probationer. The other—People v. Woods (1999) 21 Cal.4th 668 [ 88 Cal.Rptr.2d 88 , 981 P.2d 1019 ]—held that a search condition may be used to justify a search whose purpose is to gather evidence against a person not subject to the search…

I concur in the judgment.

In this cause, as in People v. Woods (1999) 21 Cal.4th 668 [ 88 Cal.Rptr.2d 88 , 981 P.2d 1019 ], less than a year ago, we address an issue involving the Fourth Amendment to the United States Constitution with its prohibition against unreasonable searches and seizures, on the one side, and the consent to searches and seizures that is demanded of a probationer as a condition of his probation under the law of the State of California, on the other.

Here, as in Woods , a majority of the court has attempted to resolve the interplay between the Fourth Amendment and state law on a probationer’s consent to searches and seizures by making adjustments to the former. In spite of their efforts, they have failed to arrive at an altogether satisfying result.

For my part, I would leave the Fourth Amendment alone, and simply declare what I believe to be implied under state law, namely, that a probationer’s consent to searches and seizures is limited to such as may be conducted for the purpose of ensuring his compliance with his probation and its terms.