SEARCH FOR JUSTICE?

A troubling California Supreme Court ruling on Monday could encroach on
Americans' protection from unreasonable searches and seizures under the
U.S. Constitution's Fourth Amendment.

The case under review involves the rights of parolees from prison and
people they associate with.

When people commit crimes, they give up some rights upon conviction and
imprisonment. Prisoners commonly are searched and their movement limited.

But once a convict is paroled and leaves prison to live on his or her own,
monitored by a parole officer, does the abridgment of rights continue?

In recent years, the answer has been "no" regarding the Fourth Amendment.
The California Supreme Court unanimously ruled in 1986 that parolees have
the same Fourth Amendment rights as other citizens. Monday's decision
overturns that earlier ruling by a narrow 4-3 margin.

"The case involved Rudolfo Ryes of Woodlake in Tulare County, who was in
the last year of a three-year parole term in February 1995 when his parole
officer got an anonymous telephone tip about possible drug use and other
misconduct," according to The Associated Press account.

"Police saw Reyes in his yard that evening, found no sign that he was under
the influence of drugs, but searched his shed and found a small amount of
methamphetamine.

"After unsuccessfully challenging the search, he pleaded guilty to
possession and was sentenced to seven years in prison."

The court ruling means police can search a parolee's person or dwelling at
any time, without notice or a warrant, which requires approval by a judge.
If a parolee lives with others, Deputy Attorney General Joel Carey
announced after the ruling, the parolee's room and common areas can be
searched.

The government itself will determine what is a "common" area and what is a
private area for non-parolees.

The ruling enlarges police powers at the expense of private citizens'
rights and, once again, that expansion of power is tied to waging the war
on drugs.

"There's a famous saying in criminal justice that 'drug cases make bad
laws'," Gilbert Geis, professor emeritus of criminology at the University
of California, Irvine, told us. "It's the old problem. They [the
government] wage this extensive campaign against drugs, and they keep
losing. They make the court make rulings that apply only to drug laws, but
then apply the laws to everybody else. They can't say this [court ruling]
applies only to drug parolees, because that's not equal protection. So it
applies to everybody else, including white collar crime or tax evasion.
They can go in and look at the books."

The California Department of Corrections told us that the state currently
has 109,367 parolees, of whom about 36 percent are drug offenders. The next
highest category is property offenses at 27 percent.

Are parolees criminals who need close watching? Mr. Geis pointed out that
parole is a French word meaning "on your word." These people are let out of
prison because it's assumed they can be trusted to resume normal lives. If
they can't be trusted, then perhaps the parole system needs reform, not the
search laws.

The new court ruling is especially egregious in those instances where the
parolee lives with others. The ruling would allow "searches of private
homes in neighborhoods throughout the state, by day or by night, for any
reason or no reason, if one of the home's residents is a parolee," wrote
Justice Joyce Kennard in her dissent from the majority.

That means anyone living with a parolee - parents, children, a spouse -
also has his or her Fourth Amendment rights severely proscribed.

Consequently, instead of encouraging people to welcome back a wayward
family member, such as a child who experimented with drugs, this ruling
well could encourage families and friends to shun the parolee, perhaps
forcing the parolee back with those who might have enabled a life of crime.

Finally, the Fourth Amendment always has allowed searches with a search
warrant. "It's nasty for the state to be knocking down doors for the
arguable gains they get" from warrantless searches of parolees, Mr. Geis
said. "The police can go to court for a search warrant. It won't kill them.
They can show a judge reasons why a search is needed."

There are two ways Monday's ruling could change. Given the close margin of
decision, should a separate but similar case reach the state Supreme Court
and one new justice hear it, the outcome could go another way. And, Mr.
Reyes's attorney, William Arzbaecher, announced an appeal to the U.S.
Supreme Court.

Checked-by: Joel W. Johnson