Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, Super. Ct. No. 06CM3467, Louis F. Bissig and James T. LaPorte, Judges.
Judge Bissig ruled on the motion to suppress; Judge LaPorte pronounced sentence.
Kathryn G. Streem, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
After the trial court denied his motion to suppress evidence, a jury convicted Raymond Ramirez of felony possession of heroin for sale, felony possession of heroin, and misdemeanor resisting arrest, and found true allegations that he had suffered two prior prison terms and one prior strike. The trial court dismissed the conviction for resisting arrest at the prosecutor’s request and sentenced Ramirez to an aggregate eight-year prison term.
On appeal, Ramirez claims the trial court erred by denying his motion to suppress evidence seized after officers conducted a warrantless search of his residence and of his person, both of which were conducted based on erroneous information that Ramirez was on probation. Ramirez contends the good faith exception to the exclusionary rule does not apply to the search of his residence and the “body cavity search” the police conducted at his residence violated his right to be free from unreasonable searches and seizures. As we shall explain, we agree the court erred in determining the good faith exception to the exclusionary rule applied to the warrantless search of Ramirez’s residence and will reverse the judgment.
BACKGROUND
At the outset of the hearing on the suppression motion, the parties stipulated that on July 27, 2006, Corcoran police officers, including a probation officer who was part of the Kings County Narcotics Task Force (NTF), went to Ramirez’s residence. Officers checked a computer system, which showed that Ramirez was on probation. Court records, however, reflected that he was not on probation.
Testimony presented at the hearing revealed the following facts. In late July 2006, Officer Steven Chee, an investigations sergeant for the Corcoran Police Department, received information from a confidential informant that Ramirez was selling heroin from his residence. Officer Chee went to Ramirez’s residence and observed known heroin addicts going in and out of the residence. On July 26, 2006, the informant told Officer Chee that Ramirez would be in possession of a large quantity of heroin.
On July 27, 2006, Investigator Stephen Stryd, a Kings County probation officer assigned to the NTF, went to Corcoran to assist on a probation search of an unidentified individual. Once he arrived at the Corcoran Police Department, he learned Ramirez was the individual to be searched. Generally, Investigator Stryd determines someone is subject to a probation search by looking up the individual on the probation department’s JALAN computer system. Once he sees the person is on active probation, he opens the “CORT’s screen” to look at the latest minute order. Investigator Stryd, however, did not have access to the CORT system at the Corcoran Police Department, so he checked only the probation department’s computer system to determine Ramirez’s status, which showed “he was on active probation with search and seizure.” The chronological log in the computer system showed that on June 1, someone had inquired about Ramirez’s probation status and confirmed he was on probation.
As a result of this information, Investigator Stryd and Corcoran police went to Ramirez’s residence to conduct a probation search for narcotics. During the search, both Ramirez and his girlfriend told the officers he was not on probation. In Officer Chee’s experience, while it was not common for individuals to claim they were not on probation when they actually were, it had happened to him three or four times. In Investigator Stryd’s nine years of experience as a probation officer and seven years of experience on the NTF, “quite a few times” individuals who were actually on probation have denied to him they were on probation.
During the search, Investigator Stryd had contact with another individual with the last name of Campos. Other officers told Investigator Stryd they believed Campos to be on probation. After Campos denied being on probation, Investigator Stryd went to his vehicle and ran Campos’s probation status, which confirmed he was not on probation. Although Officer Chee assumed Investigator Stryd had also re-checked Ramirez’s status at that time, Investigator Stryd testified he did not check Ramirez’s status while at Ramirez’s residence because he had already checked it that morning. The only way Investigator Stryd could have checked the court’s records at the scene was to call and have someone in the probation department try to find a minute order. Instead of doing that, he relied solely on the probation records to determine Ramirez’s probation status.
Testimony at trial revealed that when officers did not find any contraband or paraphernalia in the residence, they had Ramirez disrobe in a bathroom and conducted a search of his person. Officers saw a piece of white latex partially protruding from his anus, which one of the officers removed by pulling on the latex. The item removed was the finger of a white latex glove which had been tied shut; inside were seven individually wrapped bindles of black tar heroin weighing .47 grams.
Kings County Deputy Probation Officer Margaret Wilhelm supervises the probation department’s court unit and is familiar with the probation department’s computer system called “Probation JALAN”. Officer Wilhelm described how the JALAN system is updated. The superior court clerks generate hard copies of minute orders from the Kings County CORT system, collect them, and send them to the probation department through interoffice mail. The probation department’s front desk clerk receives the minute orders, which can number hundreds each day. The minute orders are sorted. The minute orders that have nothing to do with probation are discarded, while the ones that pertain to probation are given to the department’s clerks, who update the information on JALAN as appropriate. In Officer Wilhelm’s experience, there have been instances where the probation department has not received from the court minute orders updating an individual’s probation status. While it is not a common occurrence given the number of minute orders sent over, she believed it happened several times each week.
In September 2006, the prosecutor called Officer Wilhelm to ask about Ramirez’s probation status. To check his status, Officer Wilhelm pulled Ramirez’s name up on the Probation JALAN system, which showed he was on active probation. After the prosecutor explained the situation, Officer Wilhelm went into the CORT system and was able to confirm Ramirez was terminated from probation at an earlier date, which the parties stipulated was September 15, 2005. Thus, the CORT system showed his probation had been terminated, but the information never had been updated in the probation department’s computer system. According to Officer Wilhelm, if a probation officer wanted to verify a person’s probation status on the CORT system while in the field, the officer would need to call someone and ask them to check the CORT system.
DISCUSSION
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.) Where the facts are basically undisputed, as they are here, we independently review the court’s decision. (People v. Ferguson (2003) 109 Cal.App.4th 367, 371 (Ferguson); People v. Downing (1995) 33 Cal.App.4th 1641, 1650 (Downing).)
“Federal constitutional standards generally govern our review of claims that evidence is inadmissible because it was obtained during an unlawful search. (Cal. Const., art. I, § 28, subd. (d); People v. Woods (1999) 21 Cal.4th 668, 674.)” (People v. Willis (2002)28 Cal.4th22, 29 (Willis).) The People concede that under those standards, the initial entry into Ramirez’s residence “was unconstitutional” because there was no search warrant, no valid probation condition in effect, and they point to no other applicable exception to the warrant requirement to justify the warrantless search.
The Good Faith Exception to the Exclusionary Rule
The People argue, however, the evidence is admissible under the so-called “good faith” exception to the exclusionary rule, which the United States Supreme Court recognized in a trilogy of cases: United States v. Leon (1984) 468 U.S. 897 (Leon); Illinois v. Krull (1987) 480 U.S. 340 (Krull); and Arizona v. Evans (1995) 514 U.S. 1 (Evans). (Willis, supra, 28 Cal.4th at p. 29.) The exclusionary rule is “a judicially created remedy designed to safeguard against future violations of Fourth Amendment rights through the rule’s general deterrent effect.” (Evans, supra, 514 U.S. at p. 10; Willis, supra, 28 Cal.4th at p. 30.) Since its primary purpose is to deter future unlawful police conduct and thereby effectuate the Fourth Amendment’s guarantee against unreasonable searches and seizures, its application is “restricted to those situations in which its remedial purpose is effectively advanced.” (Krull, supra, 480 U.S. at p. 347; Willis, supra, 28 Cal.4th at p. 30.) Thus, application of the exclusionary rule is not warranted where it would “‘“not result in appreciable deterrence.”’” (Evans, supra, 514 U.S. at p. 11; Willis, supra, 28 Cal.4th at p. 30.)
In Leon, the high court recognized a good faith exception to the exclusionary rule when it held that where an officer acts in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate that is later found to be unsupported by probable cause, the exclusion’s deterrent effect is insufficient to warrant the exclusionary rule’s application. (Leon, supra, 468 U.S. at pp. 920-921.) The court concluded the potential behavioral effect on judicial officers is insufficient to justify exclusion, for the following three reasons: “First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. [¶] Third, and most important, we discern no basis, . . . for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.” (Id. at p. 916, fn. omitted.)
The United States Supreme Court subsequently extended the principles stated in Leon to situations where (1) an officer acts in objectively reasonable reliance on a statute authorizing a warrantless search, even though the statute is later found to violate the Fourth Amendment (Krull, supra, 480 U.S. at p. 342); and (2) where police acted in objectively reasonable reliance on erroneous computer records indicating the existence of an arrest warrant, when the source of the error may have been a court clerk rather than law enforcement (Evans, supra, 514 U.S. at pp. 4-5).
In Evans, a police officer arrested the defendant following a traffic stop when the defendant’s name appeared on the police computer as having an outstanding arrest warrant. During the ensuing search, marijuana was found in the defendant’s car. The police later learned the arrest warrant had been quashed 17 days before the arrest. The defendant moved to suppress the evidence, arguing the good faith exception did not apply because police error, not judicial error, caused the invalid arrest. (Evans, supra, 514 U.S. at p. 4.) Testimony at the suppression hearing indicated a court clerk, rather than a records clerk in the sheriff’s office, may have been responsible for the error in the police computer by failing to inform the sheriff’s office the warrant had been quashed. (Id. at p. 5.)
Applying the Leon framework, the court held that if a court employee was responsible for the erroneous information, exclusion of the evidence would not be warranted, explaining: “First . . . the exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees. [Citations.] Second, respondent offers no evidence that court employees are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. [Citations.] . . . [¶] Finally, and most important, there is no basis for believing that application of the exclusionary rule in these circumstances will have a significant effect on court employees responsible for informing the police that a warrant has been quashed. Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, [citation] they have no stake in the outcome of particular criminal prosecutions. [Citations.] The threat of exclusion of evidence could not be expected to deter such individuals from failing to inform police officials that a warrant had been quashed.” (Evans, supra, 514 U.S. at pp. 14-15.)
The Fourth District Court of Appeal, Division One, in Downing, supra,33 Cal.App.4th 1641, applied the principles discussed in Leon and Evans. In Downing, the defendant moved to suppress evidence police found while conducting a warrantless search of his apartment after confirming on a computer generated log that he was subject to a Fourth Amendment search waiver. The search waiver, however, actually had expired, but the computer system and log showed the waiver as active because a superior court clerk had input the waiver’s expiration date incorrectly. (Id. at pp. 1646-1647.)
The appellate court recognized that Leon requires the court to determine who is responsible for the error before applying the exclusionary rule, and noted the evidence showed the judicial branch employees, specifically the court clerks and key punch operators, were responsible for entering discretionary sentencing dispositions into the computer. (Downing, supra, 33 Cal.App.4th at p. 1655.) The court concluded the employees were adjuncts of the court, not law enforcement, and therefore were not subject to the deterrent force the exclusionary rule is designed to visit upon the police. (Ibid.) The court further concluded that because the specific court clerk who made the error was acting as part of the judicial department, her error could not be imputed to the collective law enforcement department. (Ibid.) Since the officer acted in objectively reasonable good faith in relying on the computer log and application of the exclusionary rule would not serve to promote its purpose of deterring unlawful police conduct, the court concluded the motion to suppress should have been denied. (Id. at p. 1657.)
In Willis, supra, 28 Cal.4th 22, the California Supreme Court considered whether federal constitutional principles required the suppression of evidence discovered by a state parole officer and police during a warrantless search conducted under the erroneous belief, derived from the “‘parole book’ or ‘parole listing’” the police department was provided with every month, that the defendant was on parole. (Id. at pp. 25-26.) The court recognized that under Leon, Krull and Evans, “application of the exclusionary rule depends on the source of the error or misconduct that led to the unconstitutional search and whether, in light of that source, the deterrent effect of exclusion is sufficient to warrant that sanction.” (Willis, supra, 28 Cal.4th at p. 35.) Although the Attorney General acknowledged the record left “‘the precise duties and responsibilities of the person or persons responsible’ for the error ‘unknown,’” the Attorney General nevertheless asserted at different times in the case the error’s source was either an anonymous employee of the California Department of Corrections (CDC) such as a data entry clerk, or the state parole officer. (Ibid.) The court agreed the record was inconclusive regarding the error’s source, and held that since “‘the government has the burden of establishing “objectively reasonable” reliance’ under Leon,” the prosecutor, not the defendant, bore the burden of producing evidence to identify the error’s source and his or her duties, a burden the prosecution failed to sustain. (Id. at pp. 36-38.)
The court went on to conclude, however, that the exclusionary rule applied regardless of whether the source of the error was the state parole officer or a CDC data entry clerk. (Willis, supra, 28 Cal.4th at p. 38.) The court held the parole officer was an adjunct to the law enforcement team because under applicable statutes and case law, parole officers serve a law enforcement function and are classified as peace officers, and the parole officer at issue took an active role in the search, as the parole officer authorized the search, directed the police to carry it out, and conducted the search with the police. (Id. at pp. 39-40.) The court further concluded application of the exclusionary rule was more likely to alter police behavior than in Leon, Krull, and Evans, because neither the parole agent nor the police officer, who were not in the field dealing with an unfolding situation when the police officer first received information about the defendant and consulted the parole officer, made any further attempt to verify the information on the parole list before going to the defendant’s motel and entering his room without a warrant. (Willis, supra, 28 Cal.4th at pp. 42-43.)
The court also concluded that if the error was attributable to a CDC data entry clerk, the exclusionary rule would still apply because clerks responsible for preparing and updating parole lists intended for distribution to police and other law information officers are adjuncts to the law enforcement team. (Willis, supra, 28 Cal.4th at pp. 43-45.) In reaching this conclusion, the court upheld the collective knowledge principle announced in People v. Ramirez (1983) 34 Cal.3d 541, which provides that since law enforcement officers collectively are responsible for keeping official channels free of outdated, incomplete and inaccurate warrant information, if a law enforcement agency is the source of erroneous information, the police cannot invoke the good faith exception to the exclusionary rule for evidence obtained in searches that are based on that bad information. (Willis, supra, 28 Cal.4th at pp. 45-46.) The court reasoned that if a CDC employee other than the parole officer was responsible for the error, (1) under Ramirez,the defendant’s parole discharge was within the CDC’s collective knowledge, therefore the parole officer did not act in objective good faith in authorizing and conducting the warrantless search, and (2) because the relevant CDC employees were adjuncts to the law enforcement team, the police officers did not act in objective good faith in assisting the parole officer during the search. (Id. at p. 46.)
In Ferguson, the Third District Court of Appeal, relying on Willis, held the exclusionary rule applied to deter misconduct by probation staff who were acting as an adjunct to law enforcement. (Ferguson, supra, 109 Cal.App.4th at p. 370.) In that case, a police officer conducted a probation search in reliance on erroneous information, obtained from a dispatcher, that the defendant was on probation for a drug offense. The dispatcher obtained the information from a database maintained by the California Department of Justice, which the probation department was responsible for updating when the defendant’s probation ended early. The probation department’s failure to update the database was due to either a clerical error or an unawareness of the requirement to input early terminations into the database. (Id. at pp. 370-372.)
The issue before the court was whether the exclusionary rule applied when the probation department was responsible for the error. (Ferguson, supra, 109 Cal.App.4th at p. 372.) The court concluded there was “little meaningful distinction” between probation officers and parole officers based on factors the California Supreme Court found significant in Willis. (Ferguson, supra, 109 Cal.App.4th at p. 374.) The court noted that like parole officers, probation officers are peace officers under Penal Code section 830.5, and may enforce probation conditions, which sometimes include search conditions. (Ferguson, supra, 109 Cal.App.4th at p. 374.) The court further noted the United States Supreme Court, in Cabell v. Chavez-Salido (1982) 454 U.S. 432, 433, 443, 446-447, had referred to both probation and parole officers in parts of its discussion of peace officers, as well as to the broad authority, discretion and significant police powers of probation officers. (Ferguson, supra, 109 Cal.App.4th at p. 374.)
The Ferguson court acknowledged that exercise of a probation officer’s authority is sometimes more consistent with a judicial or educational role than a police one, and adult probation officers have significant ties to the court. (Ferguson, supra, 109 Cal.App.4th at p. 375.) The court explained that notwithstanding those ties, “the probation officers and employees’ significant responsibilities to enforce the law and assist law enforcement distinguish them from ordinary court employees, such as those at issue in Evans, supra, 514 U.S. 1.” (Ibid.) The court noted that although both probation and parole officers share an interest in rehabilitating their charges, this does not diminish their law enforcement roles since probation officers, like parole officers, “sometimes ‘“act like police officers and seek to uncover evidence of illegal activity”’ and ‘“are undoubtedly aware that any unconstitutionally seized evidence that could lead to an indictment could be suppressed in a criminal trial.”’ (Willis, supra, 28 Cal.4th at p. 41....) Under these circumstances, failure to apply the exclusionary rule “‘would greatly increase the temptation to use the parole officer’s [or, in this case, the probation officer’s] broad authority to circumvent the Fourth Amendment.”’ (Willis, supra, 28 Cal.4th at p. 42 ...).” (Ferguson, supra, 109 Cal.App.4th at p. 375.)
The Ferguson court also concluded that due to the particular role of the probation department’s clerical staff in entering and maintaining the type of records the police relied upon, the staff was also an adjunct to the law enforcement team. (Ferguson, supra, 109 Cal.App.4th at p. 376.) The court stated “the probation department’s employees have significant responsibilities with respect to record keeping and the dissemination of information. Their activities support and benefit not only the probation officers, but other law enforcement agencies.” (Ibid.) The court noted probation officers supervising an individual on probation are required by statute to keep written records of information about those individuals which must be open to police inspection, and because the probation department’s clerical staff was responsible for entering and maintaining records in the database, which was used to assist law enforcement and operated by the Department of Justice, the probation department had an established relationship with other law enforcement agencies that was designed to support their activities. (Ibid.)
In reaching its conclusion, the Ferguson court distinguished In re Arron C. (1997) 59 Cal.App.4th 1365 (Arron C.), a pre-Willis case in which Division Five of the First Appellate District held the exclusionary rule was inapplicable where police had searched the defendant in reasonable reliance on erroneous information obtained from a juvenile probation officer that the defendant was still on probation. (Arron C., supra, at pp. 1367-1368.) In that case, the original source of the information was faulty computer records in the juvenile probation office, but no explanation was given for why the records were erroneous. (Id. at p. 1370.)
The appellate court concluded the exclusionary rule should not be applied to juvenile probation officers for the following reasons: (1) since in general law counties the juvenile probation office is, in effect, an arm of the juvenile court, as the juvenile court judge appoints probation officers who serve at the court’s pleasure, there is no reason to subject probation officers to a rule designed to deter illegal police conduct; (2) it was not aware of any evidence suggesting “juvenile probation officers are ‘inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion’”; and (3) applying the exclusionary rule would not have a significant effect on juvenile probation officers responsible for informing police about the status of juvenile probationers because probation officers are more like the court employees identified in Evans who have no stake in the outcome of particular criminal prosecutions than adjuncts of law enforcement, and the remedies of discipline or dismissal would be more likely to encourage juvenile probation officers to provide police with accurate information. (Arron C., supra, 59 Cal.App.4th at p. 1371.)
The Arron C. court pointed out it was not holding that a probation officer never may be deemed an adjunct to law enforcement, explaining that “if a probation officer becomes enmeshed in law enforcement activities, such as if he actively participates in a search, it would be appropriate to conclude he is an ‘“adjunct to the law enforcement team”’ [citation] and, thus, apply the exclusionary rule.” (Arron C., supra, 59 Cal.App.4th at p. 1372.) The court noted there was no evidence the probation officer involved in that case initiated, encouraged or actively participated in the search. (Id. at pp. 1372-1373.)
In refusing to follow Arron C.,the Ferguson court explained that “[a] significant part of the rationale underlying [] Arron C. ... appears to have been undermined by Willis, supra, 28 Cal.4th 22. Juvenile probation officers, like adult probation and parole officers, have significant law enforcement responsibilities, as explained in [Penal Code] section 830.5. Nevertheless, the appellate court apparently accorded this factor little weight and devoted little discussion to it. On the other hand, the dissenting justice in that case emphasized the ‘dual role’ of a juvenile probation officer as ‘a peace officer as well as an aid to the juvenile court.’ ([] Arron C., supra, at p. 1378 (conc. & dis. opn. of Jones, J.)” (Ferguson, supra, 109 Cal.App.4th at pp. 378-379, fn. omitted.)
The Ferguson court also noted two potential distinctions between Arron C. and its case: (1) Arron C. involved a juvenile probation office where the probation officers were appointed by and served at the juvenile court’s pleasure, while the adult probation office of Placer County, where the Ferguson case originated, was less an arm of the court because the court, although having the power to appoint the chief probation officer, did not have the power to appoint and remove individual department employees; and (2) in Ferguson, the source of the erroneous computer information was shown to be a database operated by the Department of Justice to assist law enforcement, and by participating in the database, the probation department plainly was acting to further law enforcement objectives and act as an adjunct of the law enforcement team. (Ferguson, supra, 109 Cal.App.4th at p. 379.)
Analysis
From these cases, it is clear that application of the exclusionary rule here depends on the source of the error that led to the unconstitutional search of Ramirez’s residence and whether, in light of that source, the deterrent effect of exclusion is sufficient to warrant that sanction. (Willis, supra, 28 Cal.4th at p. 35.) If the source is attributable to court employees, under Evans the exclusionary rule would not apply, but if the source is attributable to an adjunct of the law enforcement team, as explained in Willis,the evidence should have been excluded.
Here, the Corcoran police and the probation officer jointly conducted a probation search in reliance on erroneous information from the probation department’s computer system that Ramirez was on probation. At the suppression hearing, evidence was presented from which three possible sources of the error could be inferred: (1) the superior court clerk failed to send the probation department a hard copy of the minute order showing Ramirez’s probation had been terminated; (2) the probation department received the minute order, but incorrectly sorted it as not pertaining to probation and discarded it; or (3) the probation department received the minute order and correctly identified it as pertaining to probation, but failed to enter the information into the JALAN system.
The People, pointing to the trial court’s ruling, contend the trial court found the error was committed by a court clerk in failing to send the minute order to the probation department. When denying the suppression motion, the trial court explained there was “an abundance of evidence of reliance upon good faith in the conduct of this search by the officers in question, and this case does appear to fall squarely within People versus Downing [supra, 33 Cal.App.4th 1641], which is relied upon by the People in their response to the motion. It is distinguishable in the Court’s view from the facts involved in the Ferguson case, 109 Cal.App.4th 367.”
To the extent the trial court found a court clerk was responsible for the error, the finding is not supported by substantial evidence. At best, the evidence establishes that the probation department does not receive every minute order that pertains to probation. No evidence was presented that this is in fact what happened with Ramirez’s minute order. While the People contend it would be virtually impossible to prove the error was caused by a court clerk’s failure to send the minute order to the probation department rather than a probation employee’s failure to enter the data, the prosecutor here made absolutely no attempt to eliminate the probation department as the source of the error. For example, no evidence was presented regarding whether the minute orders the probation department retains and enters into the computer system could have been reviewed to try to ascertain whether it received Ramirez’s minute order, or that any such review was conducted. Without evidence from which it can be inferred that the probation department was not responsible for the error, we cannot say the source of the error was a court clerk.
As the People recognize, Willis teaches that the prosecutor bears the burden of establishing that the actions of the source of the error were objectively reasonable. (Willis, supra, 28 Cal.4th at pp. 37-38.) Although the proof of the error’s source need not be definitive, there at least must be some evidence from which a reasonable inference may be made as to the source. Here, the evidence was inconclusive on that point. Since the prosecutor failed to meet the burden of proving the source of the error, the People failed to prove the good faith exception to the exclusionary rule should be applied and the trial court erred in denying the suppression motion.
The People assert that even if the prosecutor failed to satisfy this burden of proof, the good faith exception to the exclusionary rule still should apply because even if a probation department employee was responsible for the error, that employee was not acting as an adjunct of law enforcement. The People urge us to reject Ferguson’s holding that the probation department is an adjunct of law enforcement and instead follow the contrary conclusion reached in Arron C. The People contend there is no reason to apply the exclusionary rule in this case because (1) adult probation officers are not adjuncts to law enforcement since under Penal Code section 1203.6, the county superior court appoints and removes the adult probation officer and the court has broad discretion in imposing the probation conditions that probation officers enforce; (2) there is no evidence suggesting probation officers are inclined to ignore or subvert the Fourth Amendment; and (3) there is no basis for believing the exclusion of evidence would have a significant deterrent effect here.
The People’s position, however, ignores our Supreme Court’s decision in Willis. As we have explained, the court in Willis concluded the parole officer involved in that case was an adjunct of law enforcement because parole officers are considered peace officers under California law (Pen. Code, § 830.5) and often work hand in hand with police, and the parole officer had taken an active role in the search by authorizing the search, directing the police officer to carry it out, and conducting the search of the defendant’s motel room with the police. (Willis, supra, 28 Cal.4th at pp. 38-40.) We agree with the Ferguson court’s observation that there is little distinction between probation officers and parole officers, as both serve a law enforcement role. (Ferguson, supra, 109 Cal.App.4th at pp. 374-375.)
Significantly in this case, as in Willis,the probation officer took an active role in the search by attempting to determine Ramirez’s probation status before going to Ramirez’s residence, accompanying the police officers to the residence, and participating in the search along with the police officers. The probation officer’s role certainly made him an adjunct to the law enforcement team. Even the court in Arron C. recognized that a probation officer who actively participates in a search could be considered an adjunct to the law enforcement team. (Arron C., supra, 59 Cal.App.4th at p. 1372.) For this reason, the decision in Arron C. is readily distinguishable and inapplicable to this case.
As our Supreme Court recognized with respect to parole officers, where a parole officer acts as an adjunct of law enforcement, the threat of exclusion can be expected to alter the behavior of both the parole officer and the police officer. (Willis, supra, 28 Cal.4th at pp. 40-43.) We agree with the Ferguson court’s conclusion that this deterrent effect applies equally to probation officers, since failure to apply the exclusionary rule would increase greatly the temptation to use a probation officer’s broad authority to circumvent the Fourth Amendment. (Ferguson, supra, 109 Cal.App.4th at p. 375.)
The exclusionary rule applies here even if the error was attributable to a probation department clerk, because the clerks enter information into the probation department’s computer system that probation officers and police rely upon in carrying out a law enforcement function, i.e. conducting warrantless searches of probationers. (See Willis, supra, 28 Cal.4th at pp. 44; Ferguson, supra, 109 Cal.App.4th at p. 375.) Because the probation department clerks are adjuncts to the law enforcement team, we are prevented from concluding the police officers acted in objective good faith in participating in the warrantless search. (Willis, supra, 28 Cal.4th at p. 46.) We also cannot conclude the probation officer acted in objective good faith in authorizing and conducting the warrantless search, because Ramirez’s termination from probation was within the probation department’s collective knowledge. (Ibid.)
In sum, the good faith exception to the exclusionary rule does not apply in this case because (1) the prosecution failed to satisfy its burden of justifying the warrantless search, as it failed to prove a judicial employee was the source of the error that led to the search, and (2) if the probation department was responsible for the error, the probation officer and police did not act in objective good faith in relying on the erroneous information. Accordingly, the trial court erred when it denied the motion to suppress.
Since we conclude the trial court should have granted the suppression motion on the ground the prosecution failed to prove the good faith exception to the exclusionary rule should be applied, we do not decide Ramirez’s additional argument on appeal that the body cavity search was unconstitutional.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to suppress the evidence uncovered in the search discussed above.
WE CONCUR: Harris, Acting P.J., Wiseman, J.