People v. Cahan

• Decision Date: 27 April 1955
• Docket Number: Cr. 5670
• Court: California Supreme Court
• Parties: , 50 A.L.R.2d 513 The PEOPLE of the State of California, Plaintiff and Respondent, v. Jeseph C. CAHAN et al., Defendants. Charies H. Cahan, Defendant and Appellant.

Page 905

282 P.2d 905

44 Cal.2d 434, 50 A.L.R.2d 513

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jeseph C. CAHAN et al., Defendants Charies H. Cahan, Defendant and Appellant.

Cr. 5670.

Supreme Court of California, In Bank.

April 27, 1955.

Rehearing Denied May 25, 1955.

Russell E. Parsons, Beverly Hills, for appellant.

Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Defendant and fifteen other persons were charged with conspiring to engage in horse-race bookmaking and related offenses in violation of section 337a of the Penal Code. Six of the defendants pleaded guilty. After a trial without a jury, the court found one defendant not guilty and each of the other defendants guilty as charged. Charles H. Cahan, one of the defendants found guilty, was granted probation for a period of five years on the condition that he spend the first ninety days of his probationary period in the County Jail and pay a $2,000 fine. He appeals from the order granting him probation and the order denying his motion for a new trial.

Most of the incriminatory evidence introduced at the trial was obtained by officers of the Los Angeles Police Department in flagrant violation of the United State Constitution, 4th and 14th Amendments, the California Constitution, Art. I, § 19, and state and federal statutes. Penal Code §§ 146, 602; 18 U.S.C.A. §§ 241, 242; 42 U.S.C.A. § 1983. Gerald Wooters, an officer attached to the Intelligence Unit of that department testified that after securing the permission of the Chief of Police to make microphone installations ¹ at two places occupied by defendants, he, Sergeant Keeler, and Officer Phillips one night at about 8:45 entered one 'house through the side window of the first floor,' and that he 'directed the officers to place a listening device under a chest of drawers.' Another officer made recordings and transcriptions of the conversations that came over wires from the listening device to receiving equipment installed in a nearby garage. About a month later, at Officer Wooters' direction, a similar device was surreptitiously installed in another house and receiving equipment was also set up in a nearby garage. Such methods of getting evidence have been caustically censured by the United States Supreme Court: 'That officers of the law would break and enter a home, secrete such a device, even in a bedroom, and listen to the conversations of the occupants for over a month would be almost incredible if it were not admitted. Few police measures have come to our attention that more flagrantly, deliberately and persistently violated the fundamental principle declared by the Fourth Amendment * * *.' Irvine v. People of State of California, 347 U.S. 128, 132, 74 S.Ct. 381, 383, 98 L.Ed. 561. Section 653h of the Penal Code does not and could not authorize violations of the Constitution, and the proviso under which the officers purported to act at most prevents their conduct from constituting a violation of that section itself.

The evidence obtained from the microphones was not the only unconstitutionally obtained evidence introduced at the trial over defendants' objection. In addition there was a mass of evidence obtained by numerous forcible entries and seizures without search warrants.

The forcible entries and seizures were candidly admitted by the various officers. For example, Officer Fosnocht identified the evidence that he seized, and testified as to his means of entry: '* * * and how did you gain entrance to the particular place? I forced entry through the front door and Officer Farquarson through the rear door. You say you forced the front door? * * * Yes. And how? I kicked it open with my foot * * *.' Officer Schlocker testified that he entered the place where he seized evidence 'through a window located I believe it was west of the front door. * * * (W)hen you tried to force entry in other words, you tried to knock it (the door) down is that right? We tried to knock it down, yes, sir. What with? A shoe, foot. Kick it? Tried to kick it in, yes. And then you moved over and broke the window to gain entrance, is that right? We did.' Officer Scherrer testified that he gained entry into one of the places where he seized evidence by kicking the front door in. He also entered another place, accompanied by Officers Hilton and Horral, by breaking through a window. Officer Harris 'just walked up and kicked the door in' to gain entry to the place assigned to him.

Thus, without fear of criminal punishment or other discipline, law enforcement officers, sworn to support the Constitution of the United States and the Constitution of California, frankly admit their deliberate, flagrant acts in violation of both Constitutions and the laws enacted thereunder. It is clearly apparent from their testimony that they casually regard such acts as nothing more than the performance of their ordinary duties for which the City employs and pays them.

The Fourth Amendment to the Constitution of the United States provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' Although this amendment, like each of the other provisions of the original Bill of Rights, applies only to the federal government, Barron, for Use of Tiernan v. Mayor and Council of City of Baltimore, 7 Pet. 243, 8 L.Ed. 672; Adamson v. People of State of California, 332 U.S. 46, 51, 67 S.Ct. 1672, 91 L.Ed. 1903, '(t)he security of one's privacy against arbitrary intrusion by the police which is at the core of the Fourth Amendment is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' (Palko v. State of Connecticut, 302 U.S. 319, 324-325, 58 S.Ct. 149, 82 L.Ed. 288) and as such enforceable against the States through the Due Process Clause (of the Fourteenth Amendment).' Wolf v. People of State of Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782. An essentially identical guarantee of personal privacy is set forth in Article I, section 19 of the California Constitution.

Thus both the United States Constitution and the California Constitution make it emphatically clear that important as efficient law enforcement may be, it is more important that the right of privacy guaranteed by these constitutional provisions be respected. Since in no case shall the right of the people to be secure against unreasonable searches and seizures be violated, the contention that unreasonable searches and seizures are justified by the necessity of bringing criminals to justice cannot be accepted. It was rejected when the constitutional provisions were adopted and the choice was made that all the people, guilty and innocent alike, should be secure from unreasonable police intrusions, even though some criminals should escape. ² Moreover, the constitutional provisions make no distinction between the guilty and the innocent, and it would be manifestly impossible to protect the rights of the innocent if the police were permitted to justify unreasonable searches and seizures on the ground that they assumed their victims were criminals. Thus, when consideration is directed to the question of the admissibility of evidence obtained in violation of the constitutional provisions, it bears emphasis that the court is not concerned solely with the rights of the defendant before it, however guilty he may appear but with the constitutional right of all of the people to be secure in their homes, persons, and effects.

The constitutional provisions themselves do not expressly answer the question whether evidence obtained in violation thereof is admissible in criminal actions. Neither Congress nor the Legislature has given an answer, and the courts of the country are divided on the question. The federal courts and those of some of the states ³ exclude such evidence. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341 58 L.Ed. 652; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; see state cases collected in Appendix to Wolf v. People of State of Colorado, supra, 338 U.S. 25, 33-39, 69 S.Ct. 1359. In accord with the traditional common-law rule, see, McCormick on Evidence, p. 296, the courts of a majority of the states admit it, see cases collected in Appendix to Wolf v. People of State of Colorado, supra, 338 U.S. 25, 33-39, 69 S.Ct. 1359, and heretofore the courts of this state have admitted it. People v. Le Doux, 155 Cal. 535, 547, 102 P. 517; People v. Mayen, 188 Cal. 237, 242-253, 205 P. 435, 24 A.L.R. 1383; People v. Gonzales, 20 Cal.2d 165, 169, 124 P.2d 44; People v. Kelley, 22 Cal.2d 169, 172, 137 P.2d 1.

The decision of the United States Supreme Court in Wolf v. People of State of Colorado that the guarantee of the Fourth Amendment applies to the states through the Fourteenth does not require states like California that have heretofore admitted illegally seized evidence to exclude it now. The exclusionary rule is not 'an essential ingredient' of the right of privacy guaranteed by the Fourth Amendment, but simply a means of enforcing that right, which the states can accept or reject: 'Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective.' Italics added. Wolf v. People of State of Colorado, supra, 338 U.S. 25, at page 31, 69 S.Ct. at page 1362. The court did not state that the other methods of deterring unreasonable searches and seizures must be 'consistently enforced' and be 'equally...