People v. Bilderbach

• Decision Date: 21 May 1965
• Docket Number: Cr. 8680
• Court: California Supreme Court
• Parties: , 401 P.2d 921 The PEOPLE, Plaintiff and Respondent, v. Alan Thomas BILDERBACH, Defendant and Appellant.

Page 313

44 Cal.Rptr. 313

62 Cal.2d 757, 401 P.2d 921

The PEOPLE, Plaintiff and Respondent, v. Alan Thomas BILDERBACH, Defendant and Appellant.

Cr. 8680.

Supreme Court of California, In Bank.

May 21, 1965.

John C. Salyer, Costa Mesa, for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and William L. Zessar, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

We adjudicate defendant's appeal from a judgment on a verdict finding him guilty of violating Health and Safety Code section 11530, prohibiting possession of marijuana. We reverse the conviction on the basis of the erroneous admission of defendant's confession since the record fails to indicate that, prior to the confession, defendant had been advised of his rights to an attorney and to remain silent, or that he had otherwise waived those rights. We also point out that if, upon a new trial, the question of the admissibility of the confession arises, the trial judge should not only determine whether defendant properly waived his rights to counsel and to remain silent before confessing, but should also decide whether the confession was induced by an illegal search and seizure.

On August 22, 1963, police officers arrested defendant's brother, Bruce Bilderbach, and Jay Becker at the home of Becker's parents for illegally possessing marijuana. While the police were conducting an investigation on the premises, defendant and Sue Jenkins arrived at the home in an automobile owned by Miss Jenkins. After obtaining Miss Jenkins' consent, the officers searched her car and found in the glove compartment a vial containing debris that appeared, and was later analyzed, to be marijuana. Although defendant and Miss Jenkins denied having ever seen the vial before, the officers arrested both of them.

The officers then drove the defendant to his home, which was about 16 miles distant. There the police, during a search without a warrant, uncovered a marijuana cigarette, the ownership of which defendant admitted.

The following day defendant, after being questioned by the police about the marijuana found in Miss Jenkins' automobile, admitted that the narcotic belonged to him. He stated 'Yeah, man, I guess it is. You've got me on the other anyway. It's mine.' At the time of this confession defendant was in custody. Nothing in the record indicates that prior to such confession defendant had been advised of his rights to counsel and to remain silent or that he had otherwise knowingly and intelligently waived those rights.

At the trial, which was conducted without a jury, the defendant moved to suppress the evidence obtained as a result of the searches of the car and of his home on the ground that it had been illegally seized. Apparently the trial court's ruling on guilt rested primarily upon the evidence presented on the motion to suppress because, almost immediately after the court's disposition of that motion, the parties rested. ¹

Upholding the lawfulness of the search of the automobile, the trial judge condemned as illegal the search of defendant's house. After excluding the marijuana cigarette found in the house, ² the judge nevertheless adjudged defendant guilty. In so ruling the court stated, 'there seems to be no question but that he (defendant) admitted to at least two of the officers that he did have at least a joint ownership of the vial, and it was stipulated that it was marijuana.'

Defendant's confession should not have been admitted into evidence in view of People v. Dorado (1965) 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361. Following Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, in which the United States Supreme Court established that an accused has a right to counsel at the prearraignment accusatory stage and that incriminating statements obtained in violation of that right must be excluded, we held in Dorado that the admission of a confession given during that stage requires reversal if the defendant has not been advised of his rights to counsel and to remain silent or if he has not otherwise waived those rights prior to giving the confession.

The accusatory stage, or that stage at which the right to counsel accrues, matures when two conditions eventuate: 'when the officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements * * *.' (People v. Stewart (1965) 62 A.C. 597, 603, 43 Cal.Rptr. 201, 204, 400 P.2d 97, 100.) Defendant confessed the day after he had been arrested. He had already been questioned about the marijuana found in the automobile, and he had previously confessed to the possession of the marijuana found in his home. The Attorney General argues that since that record indicates that defendant confessed after being asked only one question he was not exposed to a process of interrogation that lent itself to eliciting incriminating statements. As we pointed out in Stewart, however, 'in most cases the process of interrogations following an arrest will so lend itself * * *.' (Id. at p. 604, 43 Cal.Rptr. at p. 205, 400 P.2d at p. 101.) Furthermore, the length of the interrogation is but one factor in the determination. (Id. at p. 605, 43 Cal.Rptr. 201, 400 P.2d 97.)

The Attorney General unsuccessfully relies upon United States v. Konigsberg (1964), 3 Cir., 336 F.2d 844, which is cited in Stewart, as authority for the proposition that the accusatory stage had not been reached. In Konigsberg defendant shortly after his arrest made incriminating statements in response to immediate police questions that offered him the opportunity to explain his presence in a garage containing contraband. In the instant case, however, the questioning that elicited the confession occurred after defendant had been in custody for the entire evening and long after the police had questioned him about the marijuana found in the automobile. Under these circumstances, at the time defendant confessed, he was under arrest, and the process of interrogation lent itself to eliciting incriminating statements. Thus the accusatory stage had been reached. (People v. Stewart, supra, 62 A.C. 597, 43 Cal.Rptr. 201, 400 P.2d 97.)

Since nothing in the record shows that prior to his confession defendant had been advised of his rights to counsel and to remain silent, or that he otherwise waived those rights, the admission of his confession compels reversal. (People v. Dorado, supra, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Stewart, supra, 62 A.C. 597, 43 Cal.Rptr. 201, 400 P.2d 97.)

Defendant advances two further propositions: that the search of the automobile was unlawful because Miss Jenkins did not voluntarily consent to it, and that his confession that the marijuana found in the car belonged to him should not have been admitted on the ground that it constituted a 'fruit' of the illegal search of the house. We explain why we find no merit in the first proposition; we discuss the second because the point may arise on retrial.

Defendant urges the unlawfulness of the search of the automobile upon the ground that it was not incident to a lawful arrest. He asserts that since Miss Jenkins' consent to the search took place after her arrest it was involuntary. (See People v. Haven (1963) 59 Cal.2d 713, 719, 31 Cal.rptr. 47, 381 P.2d 927.) The record contains evidence, however, that the police arrested Miss Jenkins after the search and that she voluntarily consented to the search. Since evidence on the issue of the voluntary nature and the time of Miss Jenkins' consent conflicted, and since substantial evidence supports the trial court's finding that the search preceded the arrest and that the consent was otherwise voluntary, we must accept that decision. (See People v. Washington (1958) 163 Cal.App.2d 833, 842, 330 P.2d 67; People v. Guy (1956) 145 Cal.App.2d 481, 490, 302 P.2d 657; People v. Smith (1956) 141 Cal.App.2d 399, 402, 296 P.2d 913.) For the same reason we do not upset the trial court's holding as to the inadmissibility of the evidence found in defendant's home on the ground of its procurement during an illegal search.

Defendant argues the impropriety of the introduction of his confession that the marijuana in the vial found in the automobile belonged to him. He contends that he confessed only because he was confronted with the cigarette that the trial court held to have been illegally obtained, and that therefore the confession constituted a 'fruit' of that illegal search. Since we reverse the conviction on the ground of the erroneous admission of the confession, we discuss defendant's contention in the event that, at a new trial, the evidence discloses that defendant had waived his right to counsel prior to the confession. If that occurs, the trial court must determine whether the confession is nevertheless inadmissible as a 'fruit' of the illegal search of defendant's home. ³

That the prosecutor may not profit directly or indirectly from an illegal search has been the keystone of the rule excluding illegally obtained evidence. As the United States Supreme Court has said, 'The Government cannot violate the Fourth Amendment in the only way in which the Government can do anything, namely through its agents and use the fruits of such unlawful conduct to secure a conviction (citation). Nor can the Government make indirect use of such evidence for its case (citation) or support a conviction on evidence obtained through leads from the unlawfully obtained evidence. (Citation.) All these methods are outlawed, and convictions obtained by means of them are invalidated, because they encourage the kind of society that is obnoxious to free men.' (Walder v. United States (1954) 347 U.S. 62, 64-65, 74 S.Ct. 354, 356, 98 L.Ed. 503; see also Nardone v. United States (1939) 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 3107; Silverthorne Lumber Co. v. United States (1920) ...