People v. Reyes

968 P.2d 445, 80 Cal. Rptr. 2d 734, 19 Cal. 4th 743

• Court: California Supreme Court
• Decided: December 2, 1998
• Docket: S058825
• Status: Published

Opinions

Opinion

BROWN, J.

In People v. Burgener (1986) 41 Cal.3d 505 [224 Cal.Rptr. 112, 714 P.2d 1251] (hereafter Burgener), this court held a parolee subject to a search condition still retains a reasonable, though somewhat diminished, expectation of privacy under the Fourth Amendment. Thus, a warrantless search of his person or property must be justified by at least a reasonable suspicion “that the parolee has violated the law or another condition of his parole, or is planning to do so.” (41 Cal.3d at p. 533, fn. omitted.) Subsequently, in In re Tyrell J. (1994) 8 Cal.4th 68 [32 Cal.Rptr.2d 33, 876 P.2d 519] (hereafter Tyrell J.), we upheld the warrantless search of a juvenile probationer, subject to a search condition, because he did not have “a reasonable expectation of privacy over his . . . person or property” (id. at p. 86) that society is “willing to recognize as legitimate.” (Id. at p. 89.) The Attorney General contends there is no constitutionally significant difference between an adult parolee and a juvenile probationer in these circumstances. Thus, in light of Tyrell J., reasonable suspicion is no longer a prerequisite to a lawful search of a parolee. The Court of Appeal concluded Burgener remains good law and the standard articulated in Tyrell J. does not apply to adult parolees. We granted review to resolve the tension apparent in our precedents and to decide whether the logic of Tyrell J. has significance in the context of adult parole searches.

I. Procedural and Factual Background

Defendant was released on parole and signed a parole agreement including a standard search condition: “[Y]ou and your residence and any property under your control may be searched without a warrant by an agent of the Department of Corrections or any law enforcement officer.” Defendant’s parole agent, Gordon McClaskey, contacted the Woodlake Police Department after receiving an anonymous telephone tip, and asked the officers to evaluate defendant to see if he was under the influence of drugs. Later that evening, the police officers saw defendant coming out of a shed in his backyard. They searched the shed and found a small amount of methamphetamine.

The trial court denied defendant’s motion to suppress the evidence. The court found the evidence available to the parole agent more than satisfied the reasonable suspicion standard. Defendant pled guilty and admitted one prior felony conviction. The Court of Appeal reversed his conviction because, in its view, the search was not supported by reasonable suspicion,¹ which is a prerequisite to a lawful parole search. We granted the Attorney General’s petition for review to consider whether reasonable suspicion is still required for a lawful parole search based on a search condition.²

II. Discussion

A. Introduction

In Griffin v. Wisconsin (1987) 483 U.S. 868 [107 S.Ct. 3164, 97 L.Ed.2d 709] (hereafter Griffin), the United States Supreme Court considered the constitutional limits applicable to probation searches. The court reviewed a state regulation permitting a probation officer to search a probationer’s home without a warrant if the officer reasonably suspected the presence of contraband and the officer’s supervisor approved the search. Conceding at the outset that “[a] probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable,’ ” the court stopped short of equating reasonableness with particularized suspicion. (Id. at p. 873 [107 S.Ct. at p. 3168].) In fact, the court declined the opportunity to “embrace a new principle of law” and articulate a federal reasonable grounds standard. (Id. at pp. 872, 880 [107 S.Ct. at pp. 3168, 3172].) The court noted neither probationers nor parolees enjoy “ ‘the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions.’ ” (Id. at p. 874 [107 S.Ct. at p. 3169], quoting Morrissey v. Brewer (1972) 408 U.S. 471, 480 [92 S.Ct. 2593, 2600, 33 L.Ed.2d 484].)

The court acknowledged that a “[s]tate’s operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry, likewise presents ‘special needs’ beyond normal law enforcement” that justify departure from the usual warrant and probable cause requirements. (Griffin, supra, 483 U.S. at pp. 873-874 [107 S.Ct. at p. 3168] .) The court also recognized supervision as a “ ‘special need’ ” of the state “permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.” (Id. at p. 875 [107 S.Ct. at p. 3169] .)

B. The State Standards Applicable to Parole and Probation Searches

Among our own cases, Burgener, People v. Bravo (1987) 43 Cal.3d 600 [238 Cal.Rptr. 282, 738 P.2d 336], and Tyrell J. illustrate what a moveable feast the Fourth Amendment can be. In Burgener, an adult parolee, subject to a warrantless search condition, became the prime suspect in the police investigation of a robbery and murder at a convenience store. The search was authorized by the defendant’s parole agent after the police related the circumstances leading them to believe the defendant was involved. We relied on a balancing test to find imposition of a warrantless search condition was not “per se unreasonable if conducted for a purpose properly related to parole supervision.” (Burgener, supra, 41 Cal.3d at p. 532.) However, in assessing the validity of the parole search, we returned to a consideration of the warrant requirement and the probable cause standard before concluding a lesser standard of reasonable suspicion would suffice. “The balance thus falls heavily on the side of the governmental interest in public safety, and leads to a conclusion that the appropriate standard of reasonableness to justify a parole search is a reasonable suspicion on the part of the parole officer that the parolee is again involved in criminal activity, or has otherwise violated his parole, and that the search may turn up evidence of that activity, or that evidence of a proposed future violation by the parolee will be uncovered. That suspicion must of course be based on articulable facts which together with rational inferences from those facts warrant objectively reasonable suspicion.” (Id. at p. 535.)

In People v. Bravo, supra, 43 Cal.3d 600 (hereafter Bravo), an anonymous informant, told police the volume of traffic in and around the defendant’s home indicated he was involved in the sale of narcotics. The defendant was an adult probationer subject to a warrantless search condition. Although police surveillance failed to confirm any suspicious activity, the officers learned the defendant was on probation and searched his residence. The search led to the seizure of cocaine, firearms and cash. The defendant challenged the search, claiming the officers’ actions were unlawful because they lacked reasonable suspicion. We disagreed. An adult probationer Consents to a waiver of his Fourth Amendment rights in exchange for the opportunity to avoid serving a state prison sentence. (43 Cal.3d at p. 608.) “ ‘[W]hen [a] defendant in order to obtain probation specifically [agrees] to permit at any time a warrantless search of his person, car and house, he voluntarily [waives] whatever claim of privacy he might otherwise have had.’ ” (Id. at p. 607, quoting People v. Mason (1971) 5 Cal.3d 759, 766 [97 Cal.Rptr. 302, 488 P.2d 630].) “We read the consent in Mason as a complete waiver of that probationer’s Fourth Amendment rights, save only his right to object to harassment or searches conducted in an unreasonable manner.” (Bravo, supra, 43 Cal.3d at p. 607.) “Bravo . . . establishes that an adult probationer subject to a search condition may be searched by law enforcement officers having neither a search warrant nor even reasonable cause to believe their search will disclose any evidence.” (Tyrell J., supra, 8 Cal.4th at p. 80, fn. omitted.)

The consent exception to the warrant requirement may not be invoked to validate the search of an adult parolee because, under the Determinate Sentencing Act of 1976, parole is not a matter of choice. The Board of Prison Terms must provide a period of parole; the prisoner must accept it. (Pen. Code, § 3000 et seq.) Without choice, there can be no voluntary consent to inclusion of the search condition. (See Burgener, supra, 41 Cal.3d at p. 529.)

In Tyrell J., an officer on patrol during a high school football game saw Tyrell J. and two other minors, all identified as members of the U-Boys gang—a group involved in a shooting incident a week earlier. Because one of the boys was wearing a heavy quilted coat in 80-degree heat, the officer stopped the trio. The officer retrieved a large hunting knife from the youngster wearing the coat. Because Tyrell J. made several furtive adjustments to his clothing, the officer conducted a patdown search and retrieved a bag of marijuana the juvenile had partially concealed in his pants. Tyrell J. was on juvenile probation and subject to a warrantless search condition of which the officer was unaware.

Because a juvenile has no right to refuse probation, we declined to apply Bravo’s advance consent rationale. The juvenile court’s broad discretion is distinguishable from that exercised by adult courts and juvenile probation is not an act of leniency but a final order made in the juvenile’s best interest. Since the minor has no choice, the search does not. fall within the consent exception outlined in Bravo. (Tyrell J., supra, 8 Cal.4th at pp. 81-83.)

Nevertheless, this court upheld the search. We found “the circumstances sufrounding the challenged search reveal[ed] [the minor’s] expectation of privacy is not one society is prepared to recognize as reasonable and legitimate. We conclude[d] a juvenile probationer subject to a valid search condition does not have a reasonable expectation of privacy over his or her person or property.” (Tyrell J., supra, 8 Cal.4th at p. 86.)

Unlike Burgener, which sought to calibrate precisely what level of suspicion could reasonably substitute for probable cause, Tyrell J. considered what expectation of privacy could reasonably trigger a requirement for individualized suspicion. Although Tyrell J. does not precisely answer the question presented here, in these limited circumstances, its contextual approach seems preferable to the more rigid formulations of earlier cases. “The purpose of the Fourth Amendment prohibition is to ‘safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’ ” (People v. Banks (1993) 6 Cal.4th 926, 934 [25 Cal.Rptr.2d 524, 863 P.2d 769], italics added, quoting Camara v. Municipal Court (1967) 387 U.S. 523, 528 [87 S.Ct. 1727, 1730, 18 L.Ed.2d 930].) What is reasonable depends upon all the circumstances surrounding the search and seizure. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 337-342 [105 S.Ct. 733, 740-743, 83 L.Ed.2d 720] (hereafter T.L.O.).)

C. Resolving the Tension

Our varying approaches to similar Fourth Amendment scenarios give rise to the question presented here: Should the rationale of Tyrell J., i.e., the status of a juvenile probationer subject to close supervision, coupled with the special needs exception to the warrant requirement, be extended to validate suspicionless searches of adult parolees? Or, should the “reasonableness” of a parole search still depend on a showing of reasonable suspicion as required under Burgenefl

In the wake of Tyrell J., the Attorney General argues the standard “should be the same.” Because “there are no significant differences, for Fourth Amendment purposes,” between search conditions imposed involuntarily on adult parolees and those imposed involuntarily on juvenile probationers, the Attorney General suggests “society should not be required to recognize a reasonable expectation of privacy beyond the basic guarantee against unreasonable searches.” Defendant disagrees. He would limit the holding in Tyrell J. to juvenile probationers; however, if “there is no constitutionally significant distinction,” he argues all parole and probation searches should be governed “not by the Bravo ‘arbitrary and capricious’ standard, but by the Burgener (and Griffin) ‘reasonable suspicion’ standard.”

The Court of Appeal adopted defendant’s view, distinguishing Tyrell J. and holding that “reasonable suspicion remains a requirement for conducting a search of a parolee’s home.”

We think the Attorney General offers the better argument. The “logic of Tyrell J. applies equally, if not more so, to parolees.” Because of society’s interest both in assuring the parolee corrects his behavior and in protecting its citizens against dangerous criminals, a search pursuant to a parole condition, without reasonable suspicion, does not “intrude on a reasonable expectation of privacy, that is, an expectation that society is willing to recognize as legitimate.” (Tyrell J., supra, 8 Cal.4th at p. 89.) We agree.

The United States Supreme Court has conceded that “although ‘some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure[,] ... the Fourth Amendment imposes no irreducible requirement of such suspicion.’ ” (T.L.O., supra, 469 U.S. at p. 342, fn. 8 [105 S.Ct. at p. 743], quoting United States v. Martinez-Fuerte (1976) 428 U.S. 543, 560-561 [96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116]; see Treasury Employees v. Von Raab (1989) 489 U.S. 656, 665 [109 S.Ct. 1384, 1390, 103 L.Ed.2d 685] [rejecting claim that “any measure of individualized suspicion . . . is an indispensable component of reasonableness in every circumstance”]; Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 624 [109 S.Ct. 1402, 1417, 103 L.Ed.2d 639] [“[A] showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable.”].)

In determining whether a suspicionless intrusion is justified, the court has looked at several factors: (1) the individual’s interest, (2) the government’s interest, (3) the necessity for the intrusion, and (4) the procedure used in conducting the search. To assess the first factor, the court looks to a hierarchy of privacy interests. Reasonable expectations of privacy that society is prepared to recognize as legitimate receive the greatest level of protection; diminished expectations of privacy are more easily invaded; and subjective expectations of privacy that society is not prepared to recognize as legitimate have no protection. (T.L.O., supra, 469 U.S. at pp. 337-338 [105 S.Ct. at pp. 740-741]; see Hudson v. Palmer (1984) 468 U.S. 517, 526 [104 S.Ct. 3194, 3200, 82 L.Ed.2d 393]; Rakas v. Illinois (1978) 439 U.S. 128, 148-149 [99 S.Ct. 421, 433, 58 L.Ed.2d 387].)

When parole or probation searches are involved, the balance struck between individual interest and government necessity is implicit in the determination that a “warrantless search condition is a reasonable term” in a parole or probation agreement. (Burgener, supra, 41 Cal.3d at p. 532; see Tyrell J., supra, 8 Cal.4th at p. 87 [“To better effectuate the rehabilitation of the juvenile, the condition of probation permitting police (and others) to conduct warrantless searches is imposed by the juvenile court to serve the important goal of deterring future misconduct.”].)

The rationale of Tyrell J. can be stated succinctly. When involuntary search conditions are properly imposed, reasonable suspicion is no longer a prerequisite to conducting a search of the subject’s person or property. Such a search is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing. Tyrell J.’s reasoning applies with equal force to adults. In both cases the expectation of privacy is already reduced by the absence of the warrant requirement. As a convicted felon still subject to the Department of Corrections, a parolee has conditional freedom—granted for the specific purpose of monitoring his transition from inmate to free citizen. The state has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public, and the importance of the latter interest justifies the imposition of a warrantless search condition.

The threat of a suspicionless search is fully consistent with the deterrent purposes of the search condition. “ ‘The purpose of an unexpected, unprovoked search of defendant is to ascertain whether [the parolee] is complying with the terms of [parole]; to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant . . . .’” (People v. Mason, supra, 5 Cal.3d at p. 763, quoting People v. Kern (1968) 264 Cal.App.2d 962, 965 [71 Cal.Rptr. 105].)

More importantly, the government’s action is triggered by defendant’s own conduct. The existence of this triggering event—the crime which results in conviction or juvenile adjudication—creates the compelling need for government intervention and diminishes any reasonable expectation of privacy.

Other courts reached similar conclusions both before and after the Griffin decision. In Owens v. Kelley (11th Cir. 1982) 681 F.2d 1362, 1368, the court declined to impose a reasonable suspicion standard on warrantless probationary searches because such a requirement “could completely undermine the purpose of the search condition.” (Fn. omitted.) In State v. Zeta Chi Fraternity (1997) 142 N.H. 16 [696 A.2d 530, 540-541], the New Hampshire Supreme Court held warrantless random searches of probationers not based on particularized suspicion are constitutionally permissible if the search is authorized as a condition of probation, related to the rehabilitation and supervision of the probationer, and conducted in a manner that is reasonable in time, scope, and frequency. “Unannounced searches, even when the probation officer does not suspect that the probationer is violating his probation conditions, may be essential to adequately monitor the probationer’s rehabilitation and protect the public.” (Id. at p. 539.)

In Burgener, we analyzed parole searches along with “other administrative searches” and concluded “ ‘The determination of the standard of reasonableness governing any specific class of searches requires “balancing the need to search against the invasion which the search entails.” ’ ” (Burgener, supra, 41 Cal.3d at p. 534, quoting Camara v. Municipal Court, supra, 387 U.S. at pp. 536, 537 [87 S.Ct. at pp. 1734-1735].) While acknowledging that the balance fell heavily on the side of the government interest in public safety, we nevertheless concluded reasonable suspicion was the appropriate standard to justify a parole search. (Burgener, supra, 41 Cal.3d at p. 535.)

In more recent administrative search cases, however, the United States Supreme Court has upheld suspicionless searches “where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion.” (Skinner v. Railway Labor Executives’ Assn., supra, 489 U.S. at pp. 624, 631 [109 S.Ct. at pp. 1417, 1420-1421]; Treasury Employees v. Von Raab, supra, 489 U.S. at p. 674 [109 S.Ct. at p. 1395].)

A similar balance applies to parolees who are subject to limitations not applicable to ordinary citizens. The level of intrusion is de minimis and the expectation of privacy greatly reduced when the subject of the search is on notice that his activities are being routinely and closely monitored. Moreover, the purpose of the search condition is to deter the commission of crimes and to protect the public, and the effectiveness of the deterrent is enhanced by the potential for random searches. We thus conclude a parole search may be reasonable despite the absence of particularized suspicion.

However, our holding that particularized suspicion is not required in order to conduct a search based on a properly imposed search condition does not mean parolees have no protection. As explained in People v. Clower (1993) 16 Cal.App.4th 1737 [21 Cal.Rptr.2d 38], “a parole search could become constitutionally ‘unreasonable’ if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer.” (Id. at p. 1741; United States v. Follette (S.D.N.Y. 1968) 282 F.Supp. 10, 13; see In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004 [6 Cal.Rptr.2d 214] [a search is arbitrary and capricious when the motivation for the search is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee]; People v. Bremmer (1973) 30 Cal.App.3d 1058, 1062 [106 Cal.Rptr. 797] [unrestricted search of a probationer or parolee by law enforcement officers at their whim or caprice is a form of harassment].)

Where the search is for a proper purpose, we hold that, even in the absence of particularized suspicion, a search conducted under the auspices of a properly imposed parole search condition does not intrude on any expectation of privacy “society is ‘prepared to recognize as legitimate.’ ” (T.L.O., supra, 469 U.S. at p. 338 [105 S.Ct. at p. 741]; Hudson v. Palmer, supra, 468 U.S. at p. 526 [104 S.Ct. at p. 3200].)

D. Retroactive Application

On rehearing, defendant urges that our decision to overrule the “reasonable suspicion” requirement of Burgener cannot affect paroles, such as his, that stem from crimes committed before the new rule was announced. The premise is that by applying such a case law reversal to paroles already in effect, we would violate principles of due process analogous to the ex post facto clause by making more burdensome the punishment for crimes already committed (i.e., the crimes for which parole is being served). (See Collins v. Youngblood (1990) 497 U.S. 37, 42 [110 S.Ct. 2715, 2719, 111 L.Ed.2d 30] (Collins); Bouie v. City of Columbia (1964) 378 U.S. 347, 353-354 [84 S.Ct. 1697, 1702-1703, 12 L.Ed.2d 894]; People v. King (1993) 5 Cal.4th 59, 79-80 [19 Cal.Rptr.2d 233, 851 P.2d 27].)

The People suggest that defendant waived the point by failing to raise it in timely fashion.³ However, we need not linger on that question, for the People have now fully briefed the merits of the retroactivity issue, and they themselves urge that we resolve it. It seems prudent to do so. We would not wish to risk committing a due process violation by our own unexamined decision to apply our new rule to this defendant’s case. Moreover, such a disposition might complicate future efforts to decide the retroactivity issue properly in another proceeding involving a similarly situated parolee. We therefore proceed to the merits.

In doing so, we need not determine whether the substantive right to be free of suspicionless parole searches can be withdrawn from those serving paroles that predate today’s decision. It is sufficient to conclude, as we do, that even if suspicionless searches in such prior-parole cases remain illegal in the abstract, the evidence they produce need not be excluded from subsequent criminal proceedings. Our reasons for reaching this result are several.

In the first place, we consider it significant that decisions narrowing Fourth Amendment rights have consistently been given full retroactive effect. (E.g., United States v. Estrada (9th Cir. 1984) 733 F.2d 683, 684-685 [holding that Illinois v. Gates (1983) 462 U.S. 213 [103 S.Ct. 2317, 76 L.Ed.2d 527], relaxing prior test for validity of informant’s tip to establish probable cause, is retroactive]; United States v. Burns (2d Cir. 1982) 684 F.2d 1066, 1074 [holding that United States v. Ross (1982) 456 U.S. 798 [102 S.Ct. 2157, 72 L.Ed.2d 572] and New York v. Belton (1981) 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768], narrowing restrictions on warrantless searches of closed containers in automobiles, are retroactive].)⁴ Indeed, in Griffith v. Kentucky (1987) 479 U.S. 314 [107 S.Ct. 708, 93 L.Ed.2d 649] (Griffith), the high court held that all new constitutional rules of criminal procedure are fully retroactive to cases not yet final, even when they represent a “clear break” with the past. (Id. at p. 328 [107 S.Ct. at p. 716].) While Griffith was concerned with a new rule expanding the rights of criminal defendants, at least two Ninth Circuit decisions have held that Griffith equally compels retroactivity when Fourth Amendment rights are narrowed. (U.S. v. Santamaria-Hemandez (9th Cir. 1992) 968 F.2d 980, 983 [holding that California v. Hodari D. (1991) 499 U.S. 621 [111 S.Ct. 1547, 113 L.Ed.2d 690], inconsistent with Ninth Circuit precedent that “seizure” occurs prior to capture following police chase, is retroactive]; U.S. v. Sanchez (9th Cir. 1991) 944 F.2d 497, 499 [holding that California v. Acevedo (1991) 500 U.S. 565 [111 S.Ct. 1982, 114 L.Ed.2d 619], overruling “closed container” exception to “automobile exception,” is retroactive].)

Moreover, the exclusionary rule, a nonconstitutional “prudential” measure designed to deter illegal police conduct, has been held not to apply to a number of situations regardless of whether the underlying search itself was unconstitutional. (E.g., Pennsylvania Bd. of Probation and Parole v. Scott, supra, 523 U.S. __ [118 S.Ct. 2014, 141 L.Ed.2d 344] [parole revocation hearing]; United States v. Leon (1984) 468 U.S. 897 [104 S.Ct. 3405, 82 L.Ed.2d 677] (Leon) [good faith reliance on invalid warrant].) As the high court has explained, exclusion of evidence cannot cure an already complete invasion of constitutional rights, and the sanction is thus intended to discourage future misconduct. It therefore “applies only in contexts ‘where its remedial objectives are thought most efficaciously served,’ [citations]” and where “its deterrence benefits outweigh its ‘substantial social costs.’ [Citation.]” (Pennsylvania Bd. of Probation and Parole v. Scott, supra, 523 U.S. at p. _ [118 S.Ct. at p. 2019].)

In light of these principles, both federal and California cases have held that when judicial decisions narrow the exclusionary rule itself, the new ruling is fully retroactive. (E.g., People v. MacAvoy (1984) 162 Cal.App.3d 746, 759-760 [209 Cal.Rptr. 34] [Leon rule is retroactive]; People v. Helmquist (1984) 161 Cal.App.3d 609, 615-616 [207 Cal.Rptr. 718] [same]; United States v. Cassity (6th Cir. 1986) 807 F.2d 509, 511 [same].) The rationale is that insofar as the exclusionary rule will not apply to future cases in any event, no substantial deterrent benefit is gained by applying it to conduct already completed. (See 5 LaFave, Search and Seizure (3d ed. 1996) § 11.5(d), p. 358.)

That rationale is applicable here. No deterrent effect is achieved by excluding evidence from past searches, on grounds they were illegal, when such searches will be legal, and thus not an appropriate subject of deterrence, in future cases. Moreover, a refusal to apply the exclusionary rule in a subsequent criminal proceeding does not violate due process or ex post facto principles, because a rule permitting the introduction of competent and relevant evidence does not criminalize conduct that was innocent when committed, exacerbate the punishment for a prior crime, or eliminate a defense thereto. (See Collins, supra, 497 U.S. 37, 42-52 [110 S.Ct. 2715, 2719-2724].)

We therefore hold that evidence gleaned from the search of this defendant’s residence, and from other searches conducted under the auspices of standard search conditions in paroles which predate today’s decision, need not be excluded from evidence in subsequent criminal proceedings on grounds that the searches were undertaken without reasonable suspicion. Insofar as it concluded that defendant’s motion to suppress evidence should have been granted on that basis, the Court of Appeal therefore erred.

Conclusion

The judgment of the Court of Appeal is reversed. To the extent it is inconsistent with this opinion, Burgener is disapproved.

George, C. J., Baxter, J., and Chin, J., concurred.

1 We note that although the trial judge found the evidence more than sufficient to support a rinding of reasonable suspicion, the Attorney General does not challenge the Court of Appeal’s holding that reasonable suspicion was lacking in the present case. We express no opinion on that aspect of the case.

2 Following oral argument in this case, the United States Supreme Court granted certiorari in Pennsylvania Bd. of Probation and Parole v. Scott (1997) 523 U.S __ [118 S.Ct. 554, 139 L.Ed.2d 397], In addition to the question presented by the petitioner, the court invited the parties to brief and argue the following: “Must a search of a parolee’s residence be based on reasonable suspicion to be valid under the Fourth Amendment where the parolee has consented to searches as a condition of his parole?” {Ibid.) In light of the possible implications for the issue before us, we vacated submission pending the decision in Scott. In rendering its opinion, however, the high court found it unnecessary to reach this additional question in light of its conclusion that the exclusionary rule does not apply to parole revocation proceedings. (Pennsylvania Bd. of Probation and Parole v. Scott (1998) 523 U.S. __, __, fn. 3 [118 S.Ct. 2014, 2019, 141 L.Ed.2d 344].)

3 Defendant did not address the issue of retroactive application in his brief on the merits in this court, though it was included in an amicus curiae brief.

4 As the high court noted in United States v. Ross, supra, 456 U.S. 798, no legitimate reliance interest is thereby frustrated (id. at p. 824 [102 S.Ct. at p. 2172]), because “[a]ny interest in maintaining the status quo that might be asserted by persons who may have [structured their illegal activities] on the basis of judicial precedents clearly would not be legitimate” (id. at fn. 33).