Opinion
Review Granted Oct. 28, 1993.
Previously published at 17 Cal.App.4th 758, 22 Cal.App.4th 662, 27 Cal.App.4th 1274
Mat Zwerling, David B. Harrison, San Francisco, for appellant Susan Tedesco.
Richard H. Magnuson, Deputy County Counsel, Lakeport, for respondent Public Guardian.
KLINE, Presiding Justice.
Susan Tedesco appeals from the order of the trial court finding her "gravely disabled" within the meaning of Welfare and Institutions Code section 5350 and appointing the Lake County Public Guardian as her conservator.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
See Welfare and Institutions Code section 5150, which specifies which officials are authorized to take mentally disordered persons into custody under the provisions of the LPS Act.
The case presents two constitutional questions pertaining to involuntary commitment proceedings under the Lanterman-Petris-Short Act (the LPS Act) (§§ 5000 et seq.): (1) whether the exclusionary rule should be applied to suppress evidence obtained in violation of the Fourth Amendment, and (2) whether an instruction that the jury could not consider evidence that relatives or friends were willing and able to help meet the basic needs of the proposed conservatee unless the offer of such assistance is in writing prevents the jury from addressing all issues relevant to the determination whether the proposed conservatee is gravely disabled, and therefore constitutes a deprivation of due process of law.
FACTS
After family members expressed concern that appellant was not eating or taking care of herself properly, her physician, a Dr. Bradley, advised local mental health officials that appellant "is a schizophrenic and a danger to herself and to anyone around her" and needed to be institutionalized. Thereafter a mental health investigator met with the family and visited appellant's apartment. The investigator found plastic trash bags filled with human waste, Three or four hours later, Bonnie Taylor, a "continuing care supervisor" for the Lake County Mental Health Department and a licensed "psych tech," was informed by a superior "that [appellant] had been taken from her house and that I was to go out and take some pictures as evidence." The landlady provided Ms. Taylor access to appellant's cottage when she identified herself and told the landlady she was responsible for taking care of appellant's belongings during her hospitalization. After she entered the house, Ms. Taylor took nine Polaroid photographs depicting the filth and disarray she discovered throughout the premises. Over objection, the photographs were received in evidence and examined during trial by the jury. In the course of authenticating the photographs, Ms. Taylor described the disorder she observed. Tifeni Whittington, appellant's landlady, provided similar testimony.
Appellant said she stopped paying rent when she discovered the sewer and fresh water lines were interconnected. She believed mucous was coming out of her kitchen faucet and shower. For this reason, appellant bathed in bottled water and rubbing alcohol. She did not use the toilet, but packed her waste in plastic bags for disposal by her brother, who took the bags to the dump. Appellant testified she was able to care for herself; she planned to live with her mother and brother for a short time after she was released and then look for an apartment.
Dr. David Nelson, a staff psychiatrist at the Lake County Mental Health Center, testified that appellant had a long history of mental illness, including numerous hospitalizations, and that she suffered from chronic paranoid schizophrenia. In his opinion, appellant's mental illness is so severe she is unable to secure the necessities of life without assistance. Dr. Nelson believed appellant had improved since her hospitalization, but said she "still maintains total denial of her illness." According to Dr. Nelson, appellant's denial of her condition results in failure to obtain treatment, which in turn results in bouts of acute psychosis. He said appellant becomes delusional and paranoid during these periods, does not pay her rent, obtain nutritious food or otherwise adequately care for herself. Appellant's plan to live with her mother before finding an apartment "appeared" reasonable, but did not affect his diagnosis that she was gravely disabled. Dr. Nelson did not think appellant's mother was capable of providing for her; moreover, he knew from medical records that members of appellant's family were not "in a position or willing to extend the type of care" she required.
After hearing the testimony and argument, the jury deliberated for slightly under one hour before finding appellant gravely disabled. On that finding, the trial court issued the order appealed from here.
DISCUSSION
I.
Appellant contends the trial court erred by denying her motion to suppress testimony and photographs derived from the mental health worker's entry of her house after appellant was taken to a psychiatric facility. Her claim that the exclusionary rule applies in involuntary commitment proceedings presents a question of first impression.
Preliminarily, there can be little doubt that the Fourth Amendment applies and was violated. The mental health worker who entered appellant's house, examined her belongings and photographed the premises was an agent of the state and her acts, which so far as the record reveals consisted entirely of the gathering of evidence, amounted to a search for purposes of the Fourth Amendment.
"[A] 'search' is a governmental intrusion upon, or invasion of, a citizen's personal security in an area in which he [or she] has a reasonable expectation of privacy." If a fire marshal's entry into a burned home in an arson investigation constitutes a search, (Michigan v. Tyler, supra, 436 U.S. at p. 505, 98 S.Ct. at p. 1947), then so must entry of a house by a county mental health worker seeking evidence for use against the occupant in a commitment proceeding. Appellant's mental status certainly does not impair her entitlement to the protections of the Fourth Amendment. Among other things, the LPS Act itself provides that, absent specific statutory limitations not here relevant, "[p]ersons with mental illness have the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws and the Constitution and laws of the State of California." (§ 5325.1) The right of mentally ill persons to "privacy" is among those specifically enumerated in the Act. (§ 5325.1, subd (b); see also, Conservatorship of Roulet (1979) 23 Cal.3d 219, 224, 152 Cal.Rptr. 425, 590 P.2d 1.)
"Entries onto private property by administrative functionaries of the government, like searches pursuant to a criminal investigation, are governed by the warrant requirement of the Fourth Amendment. [Citations.] Thus, where there is a legitimate privacy interest in the property entered, a warrantless and consensual entry is permissible only where exigent circumstances justify the intrusion. [Citation.]" (Gleaves v. Waters, supra, 175 Cal.App.3d 413, 418, 220 Cal.Rptr. 621.) The requisite exigency being neither claimed nor apparent, and this not being a case where "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search" (Camara v. Municipal Court, supra, 387 U.S. 523, 533, 87 S.Ct. 1727, 1733), the search in this case clearly violated the Fourth Amendment.
Respondent does not contend that Bonnie Taylor, the mental health worker, entered appellant's premises for the purpose of protecting her property, which would not require a warrant. (People v. Parra (1973) 30 Cal.App.3d 729, 106 Cal.Rptr. 531.) Though this was the reason given appellant's landlady in order to effectuate the entry, there is no evidence property in the apartment needed to be secured or was secured. Moreover, securing appellant's property did not require the use of a camera and was not the purpose for the entry given at trial by the person who conducted the search.
I will not join the majority implication that LPS Act proceedings amount to an " 'invasion' " of the liberty of citizens by " 'evil-minded rulers,' " or that such proceedings present a danger to liberty from " 'insidious encroachment by men of zeal, well-meaning but without understanding.' " (Majority opn. at p. 769, quoting Olmstead v. United States (1928) 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944.) LPS Act proceedings are a mechanism to provide treatment for persons who need it but will not seek it. There is no evidence in this record that the proceedings are being used as tool of oppression, nor does the majority suggest any evidence of such use exists.
The chief question, therefore, is whether the trial court erred in declining to apply the exclusionary rule to suppress the testimony and photographs resulting from the unconstitutional search. Respondent claims the exclusionary rule does not apply because this is not an adversarial criminal proceeding, but a civil proceeding designed to protect the interests of the proposed conservatee. Suppression is unwarranted, respondent claims, because "it is in the proposed conservatee's beneficial interest to do nothing which would frustrate the A.
While it is most commonly applied in the context of a criminal proceeding, courts have indicated that the exclusionary rule applies in a wide variety of civil and administrative proceedings, "including FTC hearings to uncover discriminatory pricing practices, SEC proceedings, OSHA proceedings, proceedings before the public utilities commission to terminate phone service because of illegal use, NLRB hearings concerning labor controversies, immigration hearings, hearings to terminate a public employee's government service, hearings to suspend or revoke a license to practice a profession or to sell liquor, and hearings to suspend or expel a student from a public high school or a state university." (1 LaFave, Search & Seizure (2d ed. 1987) § 1.7(e), pp. 158-159, citations omitted; see, as examples, Goldin v. Public Utilities Commission (1979) 23 Cal.3d 638, 669, 153 Cal.Rptr. 802, 592 P.2d 289; People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 96-97, 41 Cal.Rptr. 290, 396 P.2d 706; Elder v. Bd. of Medical Examiners (1966) 241 Cal.App.2d 246, 260, 50 Cal.Rptr. 304.)
In determining whether to apply the exclusionary rule in a civil or administrative proceeding, one of the chief considerations is the magnitude of the consequences for the individual involved. Thus, in situations such as those just described, courts "have stressed the seriousness of taking away a person's license to practice a profession or to operate an establishment selling liquor, a person's public employment, or a person's opportunity for an education. In each of these instances the government is attempting to use its coercive power to force the individual to refrain from activity of considerable importance to that individual." (1 LaFave, Search & Seizure, supra, at pp. 160-161, fns. omitted.)
A civil commitment proceeding under the LPS Act may result in far graver consequences than the potential deprivations that commonly suffice to warrant use of the exclusionary rule. Indeed, though it is not a criminal proceeding, a commitment proceeding may result in a loss of liberty even more severe than that which might be imposed in a criminal proceeding. For the ordinary citizen, commitment to a mental hospital involves "a massive curtailment of liberty." (Humphrey v. Cady (1972) 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394.) "Persons incarcerated in mental hospitals are not only deprived of their physical liberty, they are also deprived of friends, family, and community. Institutionalized mental patients must live in unnatural surroundings under the continuous and detailed control of strangers. They are subject to intrusive treatment which, especially if unwarranted, may violate their right to bodily integrity.... Furthermore, ... persons confined in mental institutions are stigmatized as sick and abnormal during confinement and, in some cases, even after release." (Parham v. J.R. (1979) 442 U.S. 584, 626-627, 99 S.Ct. 2493, 2516, 61 L.Ed.2d 101, conc. & dis. opn. of Brennan, J., fn. omitted.) It is for these reasons that proposed conservatees are entitled to many of the same protections as criminal defendants. (See, e.g., Conservatorship of Roulet, supra, 23 Cal.3d 219, 224-225, 152 Cal.Rptr. 425, 590 P.2d 1; Conservatorship of Davis (1981) 124 Cal.App.3d 313, 324, 177 Cal.Rptr. 369; § 5350.) If the exclusionary rule applies in non-criminal contexts in which the penalty consists merely in the loss of property, it should apply a fortiori in a judicial proceeding that may result in the loss of personal liberty and affect "fundamental rights." (Baxstrom v. Herold (1966) 383 U.S. 107, 113, 86 S.Ct. 760, 762, 15 L.Ed.2d 620.)
The fact that commitment proceedings are designed to protect the proposed conservatee does not, as respondent contends, rule out the suppression of illegally obtained evidence. As our Supreme Court has pointed out in connection with conservatorship proceedings under the LPS Act, a court cannot "be swayed by the fact that appellant had her liberty taken away[ ] allegedly for her own good. ' "Regardless of the purposes for which the incarceration is The record provides us no reason to doubt that officials of the Lake County Mental Health Department believed appellant would benefit from civil commitment and the imposition of conservatorship under the LPS Act. Benevolent intentions are, however, no basis upon which to dispense with constitutional requirements. As Justice Brandeis once noted, "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty be evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." (Olmstead v. United States (1928) 277 U.S. 438, 479, 48 S.Ct. 564-572, 72 L.Ed. 944 fn. omitted, overruled on other grounds, Katz v. United States (1967) 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576; Conservatorship of Roulet, supra, 23 Cal.3d at p. 225, 152 Cal.Rptr. 425, 590 P.2d 1.)
B.
The magnitude of the adverse consequences to the person against whom the state seeks to use illegally obtained evidence, and "the principle that the state should not profit by its own wrong" (Emslie v. State Bar (1974) 11 Cal.3d 210, 226, 113 Cal.Rptr. 175, 520 P.2d 991), are not the only significant considerations in determining whether the exclusionary rule applies. The cases, and in particular the opinion of the United States Supreme Court in United States v. Calandra (1974) 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561, and the seminal opinion of our own Supreme Court in People v. Cahan (1955) 44 Cal.2d 434, 445, 449, 282 P.2d 905, indicate that another important consideration is the extent to which exclusion would deter, or non-exclusion would encourage, illegal searches and seizures. As has authoritatively been pointed out, the deterrence argument for exclusion is most compelling "when, the administrative agency in question has an investigative function and investigative personnel of that agency participated in the illegal activity for the purpose of providing information to support administrative proceedings against the suspect." (1 LaFave, supra, at p. 161, fn. omitted.)
The mental health officials who ordered and conducted the illegal search in this Emslie v. State Bar, supra, 11 Cal.3d 210, 113 Cal.Rptr. 175, 520 P.2d 991, relied upon by respondent, is not inconsistent with our analysis. In that case, security officers of a Nevada Hotel at which Emslie, a California lawyer, was not registered, saw him pick up a key in the swimming pool area; they apprehended him, found eight hotel room keys in his pockets and called the sheriff's office. A deputy sheriff arrested Emslie and, in a search of his room, found stolen items. In a subsequent search of Emslie's automobile, 52 hotel room keys were found. Although burglary charges in Nevada were dismissed, bar disciplinary proceedings were instituted in California. The State Bar recommended disbarment, denying Emslie's motion to suppress the evidence obtained as a result of the assertedly unconstitutional Nevada searches. Upholding denial of the suppression motion and finding the exclusionary rule inapplicable, our Supreme Court relied most heavily on the fact that application of the exclusionary rule would have "practically no deterrent effect upon any law enforcement officer who might be tempted to use unconstitutional methods to obtain evidence for use in a criminal trial. Here, as in the situation in [In re Martinez (1970) 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734] the officer might not even know that the suspect was an attorney and might not even contemplate the consequences of an arrest or conviction upon professional disciplinary proceedings." (Emslie, supra, 11 Cal.3d at p. 229, 113 Cal.Rptr. 175, 520 P.2d 991.) This reasoning has no application to the present case, where the mental health worker consciously conducted the search for the purpose of using it against appellant in the commitment proceeding in which it was used. Unlike Emslie and the analogous situations in Governing Board v. Metcalf (1974) 36 Cal.App.3d 546, 549-550, 111 Cal.Rptr. 724 and United States v. Janis (1976) 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046, application of the exclusionary rule in this case would have a deterrent effect because the evidence obtained through the illegal search was sought and used for a purpose that does fall within the offending officer's "primary zone of interest." (United States v. Janis, supra, at p. 458, 96 S.Ct. at p. 3034.) Nothing in Emslie suggests that the exclusionary rule would not have been applied if the evidence in question had been obtained as a result of an unconstitutional search by State Bar officials looking for evidence for use in a disbarment proceeding.
Indeed, Emslie explicitly leaves open the possibility that circumstances could be presented "under which the constitutional demands of due process could not countenance use of evidence obtained by unlawful means in a [State Bar disciplinary] proceeding." (11 Cal.3d at pp. 229-230, 113 Cal.Rptr. 175, 520 P.2d 991.)
The majority responds to these concerns with an attempt to distinguish Baber on the ground it did not consider the need to curb governmental misconduct. (Majority opn. at p. 772 and fn. 6.) Even assuming the dubious proposition that a weakening of Fifth Amendment rights does not raise a potential for the abuse of official power, the distinction is irrelevant. The problem I discuss is the effect of denying the trier of fact access to relevant evidence in conservatorship proceedings, not the means by which that denial is accomplished. Accordingly, I do not agree that Baber 's discussion of the need for complete consideration of the evidence in conservatorship proceedings is "clearly distinguishable" from the issue we face here. (Majority opn. at p. 772.)
Warrantless entries of homes by relatively unaccountable agents of the state searching for evidence of the mental incompetence of the occupant cannot be countenanced in any society that values human dignity and personal privacy. The subjective nature of the criteria pertinent to the decision to commence a commitment procedure --which, as noted in Addington v.
Federal courts have long been concerned about the high risk of error in involuntary commitment procedures. "The risk of error in all mental health decisions is substantial. Even when a standard requires a specific finding of dangerousness, there is great risk of error. There are no formulas, no 'elements of the offense.' Determinations necessarily require subjective judgments. As Chief Justice Burger wrote in his concurring opinion in O'Connor v. Donaldson [ (1975) 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396] ... '[t]here can be little responsible debate regarding "the uncertainty of diagnosis in this field and the tentativeness of professional judgment" ' 442 U.S. at 584 [99 S.Ct. at 2493]...." (Doe v. Gallinot (C.D.Cal.1979) 486 F.Supp. 983, 992, affd. 657 F.2d 1017 (9th Cir.1981).) California courts have been no less concerned. Thus, for example, Conservatorship of Roulet, supra, 23 Cal.3d 219, 230, 152 Cal.Rptr. 425, 590 P.2d 1 and People v. Burnick (1975) 14 Cal.3d 306, 327, 121 Cal.Rptr. 488, 535 P.2d 352, also stress the inherent unreliability of psychiatric diagnoses of whether a person genuinely needs to be committed and the risk of error in these administrative decisions. See also, Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1324, 271 Cal.Rptr. 199, where we pointed out that " '[b]ecause of the imprecision of the criteria and difficulty inherent in any attempt to compass the human mind' ... determinations of mental competence simply cannot achieve scientific certainty." (See also, Ennis & Litwack, Psychiatry and The Presumption of Expertise: Flipping Coins in the Courtroom (1974) 62 Calif.L.Rev. 693; Morse, Crazy Behavior, Morals, and Science: An Analysis of Mental Health Law (1978) 51 S.Cal.L.Rev. 527; Simon & Cockerham, Civil Commitment, Burden of Proof, and Dangerous Acts: A Comparison of the Perspectives of Judges and Psychiatrists (1977) 5 J.Psych. & L. 571; Rosenhan, On Being Sane in Insane Places (1973) 13 Santa Clara L.Rev. 379, 382-384.)
In addition to the clear social costs of application of the exclusionary rule in LPS Act civil commitment proceedings, there are practical difficulties that the majority does not address. For example, there is no statutory equivalent in the Welfare and Institutions Code to the procedures for suppression established by Penal Code section 1538.5 and related statutes. After the majority's ruling, courts will be forced to fashion new procedures appropriate to the LPS Act, and counsel will be faced with the difficult task of determining when and how suppression motions should be brought. To what extent should the entire panoply of Fourth Amendment jurisprudence be imported? For example, it would be difficult to countenance the suppression of all evidence that a proposed conservatee was gravely disabled where the evidence was the fruit of some constable's initial blunder, and it is hard to imagine the trial court in an involuntary commitment proceeding holding a hearing under Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667. In addition, it is not clear how suppression rulings will be reviewed. For example, if the majority here had determined the failure to suppress was prejudicial, what further proceedings could we order? Moreover, there are difficulties that will face police and social service agencies; for example, if a social service agency has determined it must obtain a warrant, to what court must it apply, and what showing will be required to justify issuance? To me, these unaddressed difficulties are additional reasons against applying the exclusionary rule in these proceedings.
The reasons the good faith exception to the exclusionary rule carved out in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 has no application in this case are worthy of discussion. The exception created in Leon applies in situations in which law enforcement officers "acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment." (Id., at p. 918, 104 S.Ct. at 3418.) The present case is different from Leon not only because the error in authorizing the search in this case was not that of a magistrate, but as well because, as a general proposition, the search of a private residence for the purpose of obtaining evidence of the occupant's mental illness is not on its face "objectively reasonable."
Judicial inquiry into the reasonableness of administrative searches of private residences in non-criminal contexts most frequently involves code-enforcement searches. The leading Supreme Court case regarding such searches is Camara v. Municipal Court, supra, 387 U.S. 523, 87 S.Ct. 1727, which overruled Frank v. Maryland (1959) 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877. Camara identified three "persuasive factors [which] combine to support the reasonableness of area code-enforcement inspections. First, such programs have a long history of judicial and public acceptance. [Citation.] Second, the public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results. Many such conditions--faulty wiring is an obvious example--are not observable from outside the building and indeed may not be apparent to the inexpert occupant himself. Finally, because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime, they involve a relatively limited invasion of the urban citizen's None of the three factors that support the reasonableness of a code-enforcement inspection are present in connection with the sort of mental health search we are concerned with here. First, the inspection of a private home by government agents seeking evidence that the occupant is mentally unstable certainly does not (to say the least) have a long history of judicial and public acceptance. Second, even if the public interest demands that mentally incompetent persons be committed and placed under conservatorship, inspection of the homes of persons suspected of being incompetent is hardly the only or most reliable technique ordinarily available to identify such persons. Finally, unlike code-enforcement inspections--which focus impersonally on the physical condition of the premises--inspections for the purpose of obtaining evidence of mental disability intrude into the most intimate aspects of personal privacy.
In sum, official entry upon private premises to obtain evidence of the occupant's mental incompetence is not as facially reasonable as other administrative searches subjected to the warrant requirement. Indeed, such searches are ordinarily so facially unreasonable that the court cannot impute to the official who conducts the search the good faith essential to the rationale for suspending the exclusionary rule set forth in Leon.
In his thoughtful dissent, Justice Benson suggests that the "social consequences are too severe to warrant whatever benefit might flow from the application of the exclusionary rule" in commitment proceedings. (Conc. & dis. opn., p. 778.) Relying heavily on Conservatorship of Baber (1984) 153 Cal.App.3d 542, 200 Cal.Rptr. 262, which addressed a clearly distinguishable situation, Justice Benson maintains that "[t]he exclusion of relevant evidence, even if gathered in violation of the proposed conservatee's privacy rights, could seriously inhibit the ability of the trier of fact to come to any rational conclusion about the conservatee's actual mental condition, with potentially severe consequences." (Id., at p. 777.) We do not share this fear for several reasons. First, there is no reason to think mental health authorities will often have any need to invade an individual's privacy in order to obtain adequate evidence that he or she needs to be committed. Ordinarily, as in the present case, a residential search is completely unnecessary. Moreover, if in an unusual situation such a search is appropriate, a warrant should not be difficult to obtain. The "severe" social consequences Justice Benson postulates are therefore exceedingly conjectural and improbable. Even in the unusual conservatorship case in which illegally obtained evidence must be excluded, the consequences will not likely be any more perilous than those that flow from the exclusion of such evidence in a criminal case, which may result in the release of a genuinely violent felon. The exclusion of relevant evidence is by definition inimical to the central judicial enterprise in every case: the search for truth. Justice Benson's argument is therefore not so much against application of the exclusionary rule in conservatorship cases as an argument against the rule itself. This view cannot be squared with the settled jurisprudence of the Fourth Amendment.
Baber held that despite similarities between conservatorship proceedings and criminal trials, a prospective conservatee does not have a Fifth Amendment privilege to refuse to testify. The court reasoned that "the best interests of the potential conservatee would not be served by allowing him to engage in obfuscatory tactics." ( Baber, supra, 153 Cal.App.3d at p. 549, 200 Cal.Rptr. 262, citing Conservatorship of Roulet, supra, 23 Cal.3d 219, 152 Cal.Rptr. 425, 590 P.2d 1.) In the present case the dubious tactics are not those of the conservatee, but a government agency. The need to deter invasions of personal privacy by investigative agencies of the state was therefore not presented in Baber.
For the foregoing reasons, we conclude that, in circumstances such as those presented by this case, the exclusionary rule applies in involuntary commitment proceedings and that, accordingly, the testimony and photographs that resulted from the warrantless entry of appellant's house should have been suppressed. This conclusion does not, however, require reversal. As earlier suggested, respondent properly obtained and produced a wealth of other evidence that amply supports the judgment. The jury could and doubtless would have found appellant gravely disabled if it had received only the testimony of Dr. Nelson, Tifeni Whittington, the manager of appellant's housing complex, and, equally persuasive, the testimony of appellant herself.
II.
The remaining question is whether the trial court erred in instructing the jury that the willingness and ability of friends and relatives to assist the proposed conservatee could not be considered unless the offer of such assistance was in writing.
At the close of evidence, the court instructed the jury that it could not find appellant was "gravely disabled" as defined by section 5008, subdivision (h)(2)(iii), "if [she] can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for [her] basic personal needs...." The court then gave the challenged instruction: that "unless they specifically indicate, in writing, their willingness and ability to help, family, friends, and others shall not be considered willing or able to provide this help." Appellant contends this last instruction unconstitutionally deprived her of jury consideration of a crucial issue in her case. We disagree.
It is established that the state " 'cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.' " (Conservatorship of Early (1983) 35 Cal.3d 244, 251-252, 197 Cal.Rptr. 539, 673 P.2d 209, quoting O'Connor v. Donaldson (1975) 422 U.S. 563, 576, 95 S.Ct. 2486, 45 L.Ed.2d 396.) Accordingly, in an involuntary conservatorship proceeding under the LPS Act, a proposed conservatee has a right to present evidence that such assistance is available, and to an instruction that the individual in question is not gravely disabled if his or her basic personal needs can be met with such assistance. (Conservatorship of Early, supra, 35 Cal.3d at p. 255, 197 Cal.Rptr. 539, 673 P.2d 209.) In 1989, the Legislature codified this rule in section 5350. (§ 5350, subd. (e); see Stats.1989, ch. 999, § 2.) At the same time, the Legislature added the proviso that "unless they specifically indicate in writing their willingness and ability to help, family, friends and others shall not be considered willing or able to provide this help." (§ 5350, subd. (e)(2).) The express purpose of this restriction was to prevent the "harmful effects of requiring family, friends, and others to publicly state, and requiring the court to publicly find, that no one is willing or able to assist the mentally disordered person in providing for the person's basic needs for food, clothing, or shelter." (§ 5350, subd. (e)(3); and see Cal.Health & Welf.Agency, Dept. of Mental Health, Enrolled Bill Report on S.B. 1491 (1988), p. 3 [legislation of "great benefit to families" by relieving them of need to disavow mentally ill relatives to obtain needed treatment for them].) Under the statute as amended, the trial court's instruction was correct.
Recognizing that the instruction was mandated by statute, appellant argues the statute is an impermissible infringement on her constitutional rights because it prevents the jury from determining all issues relevant to the determination whether a proposed conservatee is gravely disabled.
It is true, as earlier noted, that a commitment proceeding under the LPS Act has many of the characteristics of a criminal trial. The proposed conservatee is subject to a severe deprivation of liberty, has a right to a unanimous jury determination of the issue of grave disability, and to proof of that disability beyond a reasonable doubt. (§ 5350, see, e.g., Conservatorship of Roulet, supra, 23 Cal.3d 219, 230, 152 Cal.Rptr. 425, 590 P.2d 1 [unanimous jury]; Conservatorship of Johnson (1991) 235 Cal.App.3d 693, 696, 1 Cal.Rptr.2d 46.) Relevant here, the proposed conservatee is We reject appellant's argument a different result is required by the reasoning of Conservatorship of Johnson, supra, 235 Cal.App.3d 693, 699, 1 Cal.Rptr.2d 46. Appellant argues Johnson stands for the proposition that the statutory restriction is invalid so far as the restriction on evidence of third party assistance to the written statements of such persons is read to bar consideration of testimony at the hearing. (Id., at p. 699, 1 Cal.Rptr.2d 46.) We agree with the Johnson court that the purpose of the statute is not served by rigid application; thus, where a third party directly testifies to his or her willingness to assist the proposed conservatee, it would be absurd to require the testimony to be reduced to writing before the trier of fact could consider it. (Id., at p. 699, fn. 5, 1 Cal.Rptr.2d 46.) Nothing in that holding undercuts our conclusion here. There was no such direct evidence in this case. To the contrary, the only evidence tending to establish whether appellant's relatives were willing to help her was the testimony of Dr. Nelson to the effect they were not, and the weak inference to be drawn from appellant's testimony she planned to stay with her mother after her release.
Our conclusion is supported by practical considerations. A proposed conservatee has a right to appointed counsel, and to compulsory process. (§ 5365 [appointed counsel]; see, e.g., Conservatorship of Gordon (1989) 209 Cal.App.3d 364, 367-368, 257 Cal.Rptr. 365 [LPS Act proceedings governed by law and procedure relating to trial of civil actions].) Where We note, finally, that in this case the instruction was virtually irrelevant. There was no testimony or other evidence supporting the existence of any third party assistance. Aside from the extremely weak inference the jury could have drawn from appellant's testimony she planned to stay with her mother, there was nothing from which the jury could have concluded any third parties were willing to assist appellant. In such a case, it is appropriate to instruct the jury it may only consider direct evidence of the existence of third party assistance.
Because there was no direct testimony from any person willing to assist appellant, we need not decide whether the instruction as given by the court would be appropriate where such testimony is presented. We note, however, that in such a case, the instruction would run afoul of the holding of Conservatorship of Johnson, supra, 235 Cal.App.3d at page 699, footnote 5, 1 Cal.Rptr.2d 46. If direct testimony by willing third parties cannot be excluded from evidence at the hearing, then the jury should not be instructed to disregard such testimony simply because it has not been reduced to writing.
For the foregoing reasons, the judgment is affirmed.
SMITH, J., concurs.
BENSON, Associate Justice, concurring and dissenting.
I concur in the result and with the opinions expressed in Part II of the majority opinion. I also concur in the conclusion that a person retains Fourth Amendment rights even though they have become "gravely disabled" within the meaning of the Lanterman-Petris-Short Act, Welfare and Institutions Code section 5000 et seq. ("LPS Act".) However, I cannot agree with the majority holding that the exclusionary rule should be applied in LPS Act cases. Though judicial exclusion of proferred evidence may occasionally be an appropriate remedy for outrageous government conduct, I believe the wholesale importation of Fourth Amendment jurisprudence into civil commitment proceedings is legally incorrect and is bad public policy. I therefore respectfully dissent from the conclusion that suppression should result whenever an LPS Act conservatee can show a technical violation of his or her Fourth Amendment rights, and from the conclusion the exclusionary rule should have been applied in this case.
Despite the majority's intimations to the contrary, an LPS Act proceeding is not a criminal prosecution aimed at deterring criminal conduct. It is a civil action intended to provide a means of protecting the rights of the mentally ill while preventing them from harming themselves or others. (Welf. & Inst.Code, § 5001; see, e.g., Conservatorship of Warrack (1992) 11 Cal.App.4th 641, 646, 14 Cal.Rptr.2d 99.) I believe the application of well-established principles governing the extension of the exclusionary rule to nominally civil proceedings forces the conclusion the exclusionary rule should not apply in LPS Act proceedings.
Beginning with People v. Moore (1968) 69 Cal.2d 674, 72 Cal.Rptr. 800, 446 P.2d 800, our Supreme Court has made it clear that in considering whether to apply the exclusionary rule in civil cases, courts are to use a balancing test. As stated in Moore, "[w]hether any particular rule of criminal practice should be applied [in a [nominally civil proceeding] depends upon the relationship of the policy underlying the rule to the proceeding." (Id. at p. 681, 72 Cal.Rptr. 800, 446 P.2d 800.) In later cases, the court has explained that there are three factors which should weigh in the balance. (Emslie v. State Bar (1974) 11 The first factor, the extent to which the policy underlying the exclusionary rule will be served by its application in LPS Act cases, is discussed at length by the majority. The purpose of the exclusionary rule is clear; it is to "deter unconstitutional methods of law enforcement" by "denying any profit" from those methods to "law enforcement officials," (People v. Moore, supra, 69 Cal.2d at p. 682, 72 Cal.Rptr. 800, 446 P.2d 800), and secondarily, to preserve the integrity of the judicial system by preventing the perception that courts condone illegal conduct (Governing Board v. Metcalf (1974) 36 Cal.App.3d 546, 548, 111 Cal.Rptr. 724). As the majority points out, the application of the rule would tend to deter police and the investigatory staff 1 of social service agencies from violating the privacy rights of LPS Act conservatees. (Majority opn. at p. 770.) To that extent, I agree that this factor militates in favor of applying the exclusionary rule, though it is important to point out that there would be little controversy in applying the exclusionary rule in any proceeding were it the only factor for consideration. In any case involving evidence-gathering by government officials, exclusion would serve the policy underlying the rule, and compel the conclusion the rule should apply. However, the extent to which that policy will be served is only a starting point.
The second factor for consideration is derived from the general principle that the exclusionary rule should apply when "[w]hatever the label which may be attached to the proceeding, it is apparent that the purpose of the [proceeding] is deterrent in nature and that there is a close identity to the aims and objectives of criminal law enforcement ... whether the proceeding contemplates the deprivation of one's liberty or property." (People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 96-97, 41 Cal.Rptr. 290, 396 P.2d 706.) Under that principle, the rule was held applicable to nominally civil forfeiture proceedings which in fact were an adjunct to criminal enforcement (ibid.), and to a civil commitment proceedings aimed at narcotics offenders (People v. Moore, supra, 69 Cal.2d at p. 682, 72 Cal.Rptr. 800, 446 P.2d 800). The majority's treatment of this factor is restricted to a discussion of the severe curtailment of liberty that results from a finding a proposed conservatee should be committed. (Maj. opn. at pp. 768-769.) However, an LPS Act proceeding is neither deterrent in nature, nor does it share a close identity with the aims or objectives of criminal law enforcement. 2 I agree that There is a fundamental difference between the aims and objectives of criminal law enforcement and those of civil commitment based on mental illness. The principal purposes of criminal law enforcement are to protect society, to prevent crime by deterring potential offenders, to punish those who have not been deterred by the threat of punishment, and to the extent possible, to prevent recidivism by providing opportunities for rehabilitation to those being punished. Though civil commitment proceedings based on mental illness bear a superficial resemblance to criminal proceedings in that they are in part intended to protect society from the dangerously disturbed, and to provide treatment to those committed in the hope they may be helped to function in society, any identity between the two ends there.
The subject of civil commitment has committed no crime and cannot be deterred by the prospect of commitment. The commitment is not punishment; it is not intended in the least part to satisfy society's need for a sense of just retribution for intentional wrongdoing. The purpose of the proceeding is not the enforcement of criminal penalties, but the protection and welfare of the proposed conservatee. (Conservatorship of Early (1983) 35 Cal.3d 244, 253, 197 Cal.Rptr. 539, 673 P.2d 209; Conservatorship of Davis (1981) 124 Cal.App.3d 313, 330, 177 Cal.Rptr. 369 [purposes of penal statutes and LPS Act are entirely different].) In LPS Act proceedings, there is a compelling need to establish truth, which is not served by a rigid application of the rules of criminal procedure. (See Conservatorship of Baber (1984) 153 Cal.App.3d 542, 550, 200 Cal.Rptr. 262.) For that reason, a prospective conservatee cannot invoke a Fifth Amendment right not to testify in the proceeding; the importance of the need to "reveal to the trier of fact ... [the conservatee's] relevant physical and mental characteristics" outweighs even that most fundamental of the rights guaranteed to a criminal defendant. (Ibid.) I conclude there is little identity between the aims and objectives of a civil commitment proceeding under the LPS Act and those of the criminal law, and would find this factor weighs heavily against applying the exclusionary rule in LPS Act cases. However, the application of that factor is not the end of the inquiry, nor is it the principal reason for my dissent.
In my view, the most important test for application of the exclusionary rule outside the criminal context is the weighing of potential benefit against social cost. That weighing is clearly required. (See In re Martinez, supra, 1 Cal.3d at p. 649, 83 Cal.Rptr. 382, 463 P.2d 734.) I believe the cost of extending the exclusionary rule to LPS Act cases far outweighs any benefit that might result. That conclusion, in conjunction with the recognition that a LPS Act proceeding has little in common with criminal prosecution, compels my dissent.
As I have discussed, the purpose of a LPS Act civil commitment proceeding is primarily the protection of the welfare of the proposed conservatee, and secondarily to protect society from those among the mentally disabled who are a danger to others as well as themselves. As the court pointed out in In re Conservatorship of Baber, supra, 153 Cal.App.3d 542, 200 Cal.Rptr. 262, "a prospective conservatee is not a criminal defendant, but, in many cases, a person in dire need of the state's assistance. A conservatorship proceeding is not a prosecution for a particular act, but an attempt to determine a condition which is subject to change." (Id. at p. 550, 200 Cal.Rptr. 262.) The exclusion of relevant evidence, even if gathered in violation of the proposed conservatee's privacy rights, could seriously inhibit the ability of the trier of fact to come to any rational conclusion about the conservatee's actual mental condition, with potentially severe consequences. For example, proper application
3 4In other contexts, courts have agreed that the social consequences of applying the exclusionary rule outweigh any benefit that might result. In In re Martinez, supra, the court concluded that "the social consequences of imposing the exclusionary rule upon the [Adult] authority [in parole revocation proceedings] can be disastrous." (Id. 1 Cal.3d at p. 650, 83 Cal.Rptr. 382, 463 P.2d 734.) Noting that exclusion might result in the release of "the paroled murderer whom the police improperly discovered had cached a minor armory for future use or the paroled narcotics peddler who had collected a quantity of heroin for future sale," the court concluded that "[t]o blind the authority to relevant facts in this special context is to incur a risk of danger to the public which, at least as of this date, outweighs the competing considerations of a problematical gain in deterrence." (Ibid.) It is clear that application of the exclusionary rule in parole proceedings would have imposed at least as effective a deterrent on parole officials and police as it would on social workers in the context of the case at bench. Despite that, the court in Martinez found deterrence not enough to warrant the high social cost of extending the exclusionary rule. For similar reasons, courts have held that in view of the overriding policy in favor of protecting children, the exclusionary rule should not apply in child dependency proceedings. (In re Robert P. (1976) 61 Cal.App.3d 310, 321, 132 Cal.Rptr. 5; In re Christopher B. (1978) 82 Cal.App.3d 608, 612-615, 147 Cal.Rptr. 390; and see In re Mary S. (1986) 186 Cal.App.3d 414, 418-419, 230 Cal.Rptr. 726.) Though a professional license is a valuable property, the exclusionary rule does not necessarily apply in administrative proceedings to revoke membership in the State Bar, presumably in view of the importance of protecting the public from incompetent In reaching that conclusion, I do not overlook the concern of the majority that there is a potential for abuse which application of the exclusionary rule would forestall. However, nothing in the cases requires a court to admit any evidence under any circumstance, no matter how egregious the misconduct of the investigator or abusive the purpose of the proceedings. Where evidence is gathered by coercion, or by official conduct "so egregious as to offend 'the traditions and [collective] conscience of our people, [citations], or to 'shock the conscience,' " exclusion may be proper in any proceeding, no matter how denominated. (In re Martinez, supra, 1 Cal.3d at pp. 650-651, 83 Cal.Rptr. 382, 463 P.2d 734.) Though this is not such a case, there is nothing in my view of the question which would preclude judicial rejection of evidence gathered under outrageous circumstances.
In conclusion, I remind the majority of our Supreme Court's specific warning that the "desire to preserve legalistic symmetry cannot obscure the necessity of examining the practical merits of the underlying competing societal interests actually at stake." (In re Martinez, supra, 1 Cal.3d at p. 649, 83 Cal.Rptr. 382, 463 P.2d 734.) As that court pointed out, we should avoid "becoming 'so overly concerned with "the internal perfecting of [the law's] own categories" as to forget the goals of the [judicial] enterprise.' " (Ibid.) I believe the majority's failure to heed these warnings has led it to an incorrect result. I therefore dissent from the conclusion that the exclusionary rule should be extended to proceedings under the LPS Act.