Kaplan v. Superior Court

• Decision Date: 01 December 1971
• Citation: 98 Cal.Rptr. 649,491 P.2d 1,6 Cal.3d 150
• Court: California Supreme Court
• Parties: , 491 P.2d 1 Clifford Ellis KAPLAN, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29878. In Bank

Page 649

98 Cal.Rptr. 649

6 Cal.3d 150, 491 P.2d 1

Clifford Ellis KAPLAN, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 29878.

Supreme Court of California,

In Bank.

Dec. 1, 1971.

Rehearing Denied Dec. 29, 1971.

Paul N. Halvonik, Charles C. Marson, San Francisco, A. L. Wirin, Fred Okrand, Lawrence R. Sperber, Los Angeles, Karlton & Blease, Coleman A. Blease, Sacramento, Sheldon Portman, Public Defender (Santa Clara), and Rose Elizabeth Bird, Deputy Public Defender, as amici curiae on behalf of petitioner.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., and Oretta D. Sears, Deputy Dist. Atty., for respondent and for real party in interest.

MOSK, Justice.

The dispositive question in this proceeding for writ of prohibition is whether the enactment of section 351 of the Evidence Code, declaring generally that 'Except as otherwise provided by statute, all relevant evidence is admissible,' operated as a legislative repeal of the 'vicarious exclusionary rule' adopted by this court in People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855, which permits a criminal defendant to object to the introduction of evidence illegally seized from a third person. We conclude the Legislature did not intend to repeal the Martin rule, and defendant is therefore entitled to the relief for which he prays.

The facts of the case are essentially undisputed. On June 20, 1970, during daylight hours, Police Officer Briscoe observed a small sports car traveling at 45 miles per hour in a 25-mile-per-hour zone. The vehicle contained three persons: defendant occupied the passenger seat on the extreme right, and seated between defendant and the driver was a 16-year-old juvenile named Patterson. According to Officer Briscoe's testimony at the preliminary examination, when he turned on his red light to signal the driver to stop he saw Patterson look back, reach under the front seat, and put his hand inside his coat.

Officer Briscoe observed on other suspicious circumstances or unusual conduct by the occupants of the car. Nevertheless, on the theory that Patterson's 'furtive movements' suggested he might be hiding a weapon, Officer Briscoe immediately ordered him to get out of the car and submit to a pat-down search. In the course of that search the officer felt a lump in Patterson's shirt pocket; although he was 'pretty sure * * * it was not a weapon,' he 'had an idea it was pills.' He thereupon placed Patterson under arrest for 'suspicion of dangerous drugs,' and reached into the pocket. It was found to contain a quantity of LSD tablets in a plastic bag. On cross-examination Officer Briscoe acknowledged that he had no warrant for Patterson's arrest or search; that he neither questioned the youth about possession of a weapon nor asked his consent to conduct the search; and that Patterson himself said nothing either before or after that search.

Patterson was called as a witness for the People, and declared that 10 minutes before the arrest he had purchased the LSD tablets in question from defendant. On cross-examination he testified it was the first time defendant had sold him narcotics, and conceded he gave the police a deliberately false description of defendant because he 'didn't want him to get involved at first.' Patterson then admitted he had agreed to be a witness for the prosecution in exchange for a promise of immunity by the district attorney; he reiterated, moreover, that but for the promise of immunity he would not have testified against defendant.

On this showing defendant was held to answer to a felony charge of selling a restricted dangerous drug. (Health & Saf.Code, § 11912). His motion to suppress the evidence on the ground of unlawful search and seizure (Pen.Code, § 1538.5) was denied. His motion to set aside the information for lack of probable cause (Pen.Code, § 995) was likewise denied, and he seeks review of that ruling by statutory writ of prohibition (Pen.Code, § 999a).

To begin with, it is not disputed that the warrantless arrest and search of Patterson and the seizure of the contraband on his person were illegal. The trial court assumed this to be so, and the People do not contend otherwise. ¹ Thus the 'furtive gesture' observed by Officer Briscoe did not, without more, give him reasonable grounds to believe Patterson was in possession of a weapon. (Gallik v. Superior Court (1971) 5 Cal.3d 855, 861--862, 97 Cal.Rptr. 693, 489 P.2d 573; People v. Superior Court (1970) 3 Cal.3d 807, 828--831, 91 Cal.Rptr. 729, 478 P.2d 449.) The discovery of the unidentified lump in Patterson's shirt pocket during the pat-down search did not justify further intrusion into that pocket for the purpose of self-protection, as Officer Briscoe knew the soft object was not in fact a weapon. (People v. Collins (1970) 1 Cal.3d 658, 662--663, 83 S.Ct. 179, 463 P.2d 403; People v. Mosher (1969) 1 Cal.3d 379, 394, 82 Cal.Rptr. 379, 461 P.2d 659.) Nor could that rule be evaded by the device of arresting Patterson because the officer 'had an idea' the object was contraband, and then searching the pocket as an incident to that arrest. The record is devoid of reasonable grounds to believe in the factual accuracy of the officer's 'idea' or hunch, and it is settled that 'An arrest may not be used as a pretext to search for evidence.' (United States v. Lefkowitz (1932)285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877; People v. Haven (1963)59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 381 P.2d 927.) Finally, we cannot uphold the search on the novel theory adopted by the magistrate herein, i.e., that by testifying at the preliminary examination on behalf of the People, Patterson impliedly gave 'retroactive consent' to the search or 'retroactively waived' his objection thereto. His agreement to testify was admittedly the product of his arrest and search and of the district attorney's promise of immunity from the ensuing criminal charges, and it is established that 'consent' induced by an illegal arrest or search is not voluntary. (People v. Johnson (1968) 68 Cal.2d 629, 632, 68 Cal.Rptr. 441, 440 P.2d 921; People v. Haven (1963) 59 Cal.2d 713, 718, 31 Cal.Rptr. 47, 381 P.2d 927.)

Conceding therefore that the discovery and seizure of the contraband on Patterson's person were illegal, the People contend instead that only Patterson can complain thereof--i.e., that defendant Kaplan has no 'standing' to assert the illegality and prevent the evidence from being used against him at a trial. The People recognize, as they must, that we decided directly to the contrary in People v. Martin (1955) supra, 45 Cal.2d 755, 759--761, 290 P.2d 855, in which we adopted for California the rule that a criminal defendant is entitled to object to the introduction of evidence illegally seized from a third person. It is urged, however, that the Martin decision is no longer viable. First, we are told, the 'vicarious exclusionary rule' is not required as a matter of federal constitutional law under the prevailing interpretation of the Fourth Amendment. (Alderman v. United States (1969) 394 U.S. 165, 171--176, 89 S.Ct. 961, 22 L.Ed.2d 176.) Secondly, although the states remain free to adopt higher standards for searches and seizures than compelled by the federal Constitution (Cooper v. California (1967) 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730) and specifically to provide that 'illegally seized evidence is inadmissible against anyone for any purpose' (Alderman v. United States, supra, 394 U.S. at p. 175, 89 S.Ct. at p. 967), the People contend that the courts of California have been prohibited from doing so since 1967 when section 351 of the Evidence Code went into effect.

The controlling issue, accordingly, is whether section 351 was intended by the Legislature to repeal the Martin rule. We shall consider the origin and history first of that rule, then of section 351.

In 1955 this court decided the landmark case of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, adopting for California the rule that evidence obtained in violation of federal or state constitutional guarantees against unreasonable search and seizure is inadmissible in a criminal trial. The two-fold purpose of that rule, we explained, was to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so, ² and to relieve the courts from being compelled to participate in such illegal conduct. ³

Among the numerous decisions which thereafter implemented various aspects of the Cahan rule, one of the most important was People v. Martin (1955) supra, 45 Cal.2d 755, 290 P.2d 855. In that case the police searched certain offices on two occasions and found the defendant among bookmaking paraphernalia. The defendant's story was that he was a stranger who had merely been hired to watch the premises. He moved to set aside charges of bookmaking on the ground of unlawful search and seizure; relying on the federal rule on the question, the People contended that as the defendant disclaimed any interest in the premises or property he had no 'standing' to challenge the legality of the searches and seizures. In a unanimous opinion (at pp. 759--760, 290 P.2d at p. 857) we squarely rejected this reasoning: 'the rule of the lower federal courts is based on the theory that the evidence is excluded to provide a remedy for a wrong done to the defendant, and that accordingly, if the defendant has not been wronged he is entitled to no remedy. (Citation.) In adopting the exclusionary rule, however, this court recognized that it could not be justified on that theory, People v. Cahan, 44 Cal.2d 434, 443, 282 P.2d 905, and based its decision on the ground that 'other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule have been constantly required to participate in, and in...