People v. Botts

• Decision Date: 26 April 1967
• Docket Number: Cr. 11310
• Citation: 58 Cal.Rptr. 412,250 Cal.App.2d 478
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Leroy BOTTS, Defendant and Appellant.

Page 412

58 Cal.Rptr. 412

250 Cal.App.2d 478

The PEOPLE, Plaintiff and Respondent, v. Robert Leroy BOTTS, Defendant and Appellant.

Cr. 11310.

Court of Appeal, Second District, Division 4, California.

April 26, 1967.

Ferdinand F. Fernandez, Claremont, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Bechefsky, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Defendant was charged with possession of heroin, in violation of section 11500 of the Health and Safety Code. One prior felony conviction was alleged. He pled not guilty and denied the prior. After a trial by the court (trial by jury having been duly waived) he was found guilty and the prior conviction was found to be true. Proceedings were suspended and proceedings were commenced under the Narcotic Rehabilitation Act, resulting in defendant's commitment to that program. Thereafter, defendant was discharged from the Rehabilitation Center pursuant to habeas corpus proceedings instituted on his behalf. The criminal proceedings were resumed, probation was denied and he was sentenced to state prison. He has appealed.

Witness Carr, a service station attendant, observed some men park a car on the service station lot. Defendant left the car and entered the restroom of the station. Carr went to a back room of the station to a point from which he was able to see into the restroom through two three-quarter inch holes in the wall. Carr testified that the holes had resulted when, previously, a towel rack had been removed from the restroom side of the wall. Carr observed defendant with a hypodermic syringe on the top of the toilet, and with a white paper which he removed from his wallet. Carr reported his observation to his father and then returned to look into the restroom again. In the meantime another man had left the parked car and gone into the restroom. Carr was unable to see more because the holes had been plugged up from the inside with toilet tissue. Shortly thereafter, defendant and his companion left the restroom and the car drove off.

Carr reported his observations to nearby police officers. Officer O'Rourke, on the basis of this information, followed the Ford and stopped it on San Antonio between Gaviota and Rose. Three men got out. Defendant had a belt around his neck. Defendant was arrested and, during the search, the officer found a piece of tissue and a rolled matchbook cover, a piece of thin wire and a bobbypin. It is stipulated that Gerald Eaton testified that he found a hypodermic syringe on the corner of San Antonio and Gaviota on September 13, 1961. On the ground two or three inches from defendant's shifting right foot an officer found a spoon depressed into the earth with a bent handle. Defendant had a handkerchief with blood on it in his pocket. An officer found, under the driver's seat, a half-spoon, some thread, a needle in a plastic case, and an eyedropper, all wrapped in a dirty cloth. The bowl of the spoon was blackened and it contained heroin residue. On the rear floor of the car another officer found the top to a condom, and then he found a condom containing 85 capsules of white substance which later proved to be heroin. It was stipulated that defendant was under the influence of heroin shortly before the car was stopped.

The testimony for the defense was that witness Bennett and defendant had been employed at the same place some time before. Bennett had been laid off and, on the day in question, had gone with witness Sweeton to visit defendant in the hope that defendant could assist Bennett to become reemployed. Unknown to Bennett, defendant had also been laid off. The three men decided to go for a drive. Defendant had had a 'fix' of heroin shortly before the visit. While driving, he felt the need to go to a restroom and they had stopped at Carr's station for that purpose. Because defendant was in the restroom a long time, Sweeton went in to 'hurry him up.' The chase and arrests followed. Sweeton testified that the narcotics found were his, and that he had given them to Bennett to dispose of when he saw the police following them. He testified that defendant was unaware of the narcotics. Defendant denied using heroin in the restroom. He testified that he had cut his finger earlier and wiped it on his handkerchief and that, while in the restroom, he realized that his 'kit' was in his pocket and had tried to unclog it there.

Defendant contends: (1) the testimony of Carr should have been excluded because it was based on an unreasonable search and seizure; (2) the admission made by defendant violated his constitutional rights (People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361); (3) the defendant as convicted because the trial court erroneously believed possession could be based on prior use of narcotics that day; (4) the evidence is insufficient to support the verdict; and (5) it is unconstitutional to conduct proceedings under Penal Code section 6451 and later under Health and Safety Code section 11500. ¹

I

Defendant argues that Carr's testimony should have been excluded as it was based on observations amounting to an unreasonable search and seizure. ² Defendant is correct in his assertion that, if the acts committed by Carr had been committed by a police officer, the evidence obtained would have been inadmissible. (Bielicki v. Superior Court (1962) 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288.) Defendant also correctly asserts that, if Carr was acting as an agent of the state, his testimony would have been excluded. (People v. Tarantino (1955) 45 Cal.2d 590, 290 P.2d 505.) In the case at Bench, Carr was neither a policeman nor was he an agent of the police; in the Tarantino case the agent worked under police supervision; no such suggestion is made here. ³

However, where the challenged evidence was obtained by a private citizen, acting on his own, the cases have refused to apply any exclusionary rule. (Burdeau v. McDowell (1921) 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048; People v. Randazzo (1963) 220 Cal.App.2d 768, 34 Cal.Rptr. 65, cert. den., 377 U.S. 1000, 84 S.Ct. 1933, 12 L.Ed.2d 1050; People v. Trimarco (1963) 41 Misc.2d 775, 245 N.Y.S.2d 795.) While it is true that Burdeau is now somewhat questionable as an authority, since it can be regarded as being an application of the 'silver platter' doctrine later repudiated in Elkins v. United States (1930) 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, ⁴ the two state cases are not subject to that caveat.

On principle, we think that the application of an exclusionary rule to evidence obtained by a provate citizen, not acting as a police agent, is unwarranted.

'In applying the exclusionary rule to evidence acquired through improper searches by government officials the Supreme Court has emphasized that 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, 4 L.Ed.2d 1669.) Because police will alter their investigatory practices to secure future convictions, the rule clearly is an appropriate means to deter improper police conduct. A rule of exclusion would serve no function, however, in situations where its application would not deter improper searches in the future.' (Note, Seizures by Private Parties: Exclusion in Criminal Cases (1967) 19 Stan.L.Rev. 608, 610--611.)

Where an exclusionary rule is directed to the police, we may assume that they will have knowledge of it, that there will result directives from the higher echelons designed to secure compliance and to institute acceptable alternative practices, and that both the discipline of an organized police force and the desire to secure convictions will produce compliance with those directives. But, except in unsual cases, we connot assume that private citizens will be aware of an exclusionary rule, that they will be under any disciplinary compulsion to obey such a rule, nor that they will not be motivated in their conduct by reasons apart from, or in addition to, a desire to assist in securing a criminal conviction. The result of applying an exclusionary rule to cases such as the one at Bench would be to free a guilty man without any assurance that there would result any counterblancing restraint of similar conduct in the future.

Relying on Shelley v. Kraemer (1948) 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, defendant argues that the use of privately obtained evidence at the criminal trial is governmental action, and that an exclusionary rule would operate to deter such governmental action. But the analogy is not apt. In Shelley v. Kraemer, the antisocial conduct--the racial discrimination--would have followed, and would have become operative only because of and after, the state action in entering a judgment in a law suit. But in the case at Bench, the objectionable conduct had occurred prior to, and was not dependent for its antisocial effect on, any later governmental action; the citizens' right of privacy had been violated, whether or not anyone in a courtroom talked about his actions.

It may well be that the bathroom is becoming the last sanctuary of privacy in...