Lance W., Matter of, Cr. 44508

• Decision Date: 13 December 1983
• Docket Number: Cr. 44508
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of LANCE W., A Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. LANCE W., a Minor, Appellant.

Page 331

197 Cal.Rptr. 331

149 Cal.App.3d 838

In the Matter of LANCE W., A Person Coming Under the Juvenile Court Law.

The PEOPLE of the State of California, Plaintiff and Respondent, v. LANCE W., a Minor, Appellant.

Cr. 44508.

Court of Appeal, Second District, Division 2, California.

Dec. 13, 1983.

Rehearing Denied Jan. 6, 1984.

For Opinion on Hearing, see 210 Cal.Rptr. 631, 694 P.2d 744.

Wilbur F. Littlefield, Public Defender, Alan H. Simon, Norman Tanaka, Gary M. Mandinach, Susan L. Burrell, Deputy Public Defenders, for appellant.

John K. Van de Kamp, Atty. Gen., Norman H. Sokolow, Cynthia Sonns Waldman, Deputy Attys. Gen., for plaintiff and respondent.

COMPTON, Acting Presiding Justice.

In this case we determine whether the passage of Proposition 8 by the electorate in June 1982, and the consequent amendment to the California Constitution (Art. I, § 28, subd. (d)) declaring that "relevant evidence shall not be excluded in any criminal proceeding," abrogated the "vicarious" exclusionary rule in this state. As will appear, we have concluded that by the enactment of article I, section 28(d), the people have withdrawn from the California courts the authority to suppress criminal evidence on independent state grounds. California therefore must reject, as have the vast majority of jurisdictions, the judicially declared rule of vicarious standing as an exclusionary remedy.

The case at bench is here on an appeal from an order continuing Lance W., a minor, as a ward of the juvenile court after he was found to have possessed marijuana for purposes of sale in violation of Health and Safety Code section 11359. His motion to suppress evidence pursuant to Penal Code section 1538.5 was denied on the ground that, in the wake of Proposition 8, he lacked standing to challenge the legality of a search that produced the contraband.

The facts adduced at the hearing on the motion to suppress are not in dispute. At approximately 7:00 p.m. on November 2, 1982, plainclothes Officers Scholtz and Smith drove an unmarked vehicle to El Dorado Park in Long Beach to investigate numerous citizen complaints of drug sales. Scholtz, a twelve year veteran of the Narcotics Division of the Long Beach Police Department, had previously witnessed, on at least fifty different occasions, minors trafficing in marijuana and other controlled substances in the park area.

From his vantage point, Scholtz observed Lance approach five different vehicles. Twice he saw what appeared to be a transfer of an unidentifiable object between the minor and the drivers, and on one occasion he noticed the minor remove an item from his waistband and hand it to the occupant of the vehicle. That same occupant then appeared to give Lance something in return. Based upon his knowledge of the park and how narcotics transactions usually occur, Scholtz believed that the minor was engaged in the sale of drugs or marijuana.

Shortly thereafter, the fifth vehicle, a pickup truck, arrived and Lance once again began conversing with its occupants. When the officers moved their car closer to the truck, the minor approached and commenced talking with Scholtz' partner, Officer Smith. During their short discussion, Smith asked Lance if he knew where he could "get some smoke" (referring to marijuana). The minor looked at both men, appeared nervous, and said "No". He immediately returned to the pickup truck, placed his hand through one of the open windows, and dropped a plastic baggie inside the vehicle.

Although Scholtz was able to observe two people seated in the passenger section of the truck, from his position he could not see the contents of the plastic bag. The officers exited their vehicle and proceeded to the truck where Scholtz opened the driver's door and recovered the bag. Based upon his training and experience, Scholtz identified the contents as marijuana. Lance was subsequently arrested and searched. A second plastic bag also containing marijuana was found in his waistband along with $35 in currency in one of his pockets.

Following the search, the minor volunteered that the occupants of the truck were also in possession of marijuana. He further told the officers that he had been "kicked" out of his house and was simply "trying to make a living." Lance neither owned nor controlled the vehicle in which he deposited the subsequently seized contraband.

During the suppression hearing, Officer Scholtz opined, based upon his past observations of narcotics activity at the park, the packaging of the marijuana, the minor's statement, the minor's possession of $35, and the minor's behavior prior to arrest, that the marijuana found was possessed for sale.

In ruling on the motion, the trial court declared that in its view that if prior California law controlled, it would be compelled to suppress the evidence seized from the vehicle and from that would flow suppression of evidence seized from the minor's person, as well as his statements to the officers. Nonetheless, it denied the motion, reasoning that Proposition 8 removed the minor's standing under California's vicarious exclusionary rule to complain of the search of a vehicle neither owned nor controlled by him. ¹ We affirm.

The Attorney General does not question the trial court's reasoning that the seizure of the contraband after defendant had jettisoned it into the truck was an unreasonable one. Hence we withhold further comment on those issues and address the impact of Proposition 8 on the facts of this case.

Since 1955, the primary source of state judicial decisions requiring exclusion of evidence in criminal proceedings has been the state constitutional provision against unlawful searches and seizures. Article I, section 13 of the California Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized." This provision is, of course, the state parallel to the Fourth Amendment of the federal Constitution. Nothing in its wording, however, expressly requires the exclusion of evidence as a remedy for violation of its mandate. Indeed, for over a century, from the date of its initial adoption in 1849, the provision was interpreted as not requiring the exclusion of evidence.

In the seminal case in California of People v. Cahan (1955) 44 Cal.2d 434, 442, 282 P.2d 905, our Supreme Court held, as a "judicially declared rule of evidence," that evidence obtained in contravention of section 13 would henceforth be excluded in criminal proceedings. Although the United States Supreme Court later applied a similar rule to the states for the purpose of enforcing the Fourth Amendment (Mapp v. Ohio (1961) 367 U.S. 643), 81 S.Ct. 1684, 6 L.Ed.2d 1081, California courts continued to rely on the state Constitution under the doctrine of "independent state grounds" when they sought to expand on the more narrow applications of the exclusionary rule under federal law. (See, e.g., People v. Norman (1975) 14 Cal.3d 929, 123 Cal.Rptr. 109, 538 P.2d 237; People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099.)

In 1967, the California Legislature gave procedural shape to the rule by the enactment of Penal Code section 1538.5. ² Slightly more than a decade later in People v. Belleci (1979) 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473, our Supreme Court overruled decisions permitting limited use of suppressed evidence for purposes other than determination of guilt theorizing that language in subdivision (d), stating that evidence suppressed pursuant to section 1538.5 "shall not be admissible against the movant at any trial or other hearing," constituted a limited "statutory exclusionary rule." Belleci thereby banned use of previously suppressed evidence for purposes of parole and probation, revocation, and sentencing.

Although recent years have witnessed a continual expansion of the exclusionary rule in this state, as attested to by decisions such as Belleci among numerous others, we think it necessary to emphasize that the rule itself was not devised for the express purpose of benefiting the defendant. Rather, it was premised upon the assertion that exclusion was the only available sanction which would effectively discourage and deter improper police methods and which would thereby protect the citizen's right to freedom from unreasonable searches and seizures guaranteed by the Fourth Amendment. "The rule is calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it." (Elkins v. United States (1960) 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669.)

Placed in this context, it is manifest that the exclusionary rule was devised as a remedy to safeguard Fourth Amendment rights through its deterrent effect on future unlawful police conduct, rather than a vindication of personal constitutional rights of the party aggrieved. (See United States v. Calandra (1973) 414 U.S. 338, 347-348, 94 S.Ct. 613, 619-620, 38 L.Ed.2d 561.) It was this rationale that led to the adoption of the "vicarious" rule in California.

For purposes of resolving the issues at hand, we need not trace in any detail the history of the decades long debate that has focused on the efficacy of the exclusionary rule and this state's use of the doctrine of independent state grounds to avoid the impact of federal high court decisions in the Fourth Amendment area. Suffice it to say that the debate in California has increased to a fever pitch in recent years, leading one jurist prophetically as it developed to warn: "A sudden switch to a California ground to avoid the impact of federal high court decision invites the successful use of the...