People v. Daan
| Decision Date | 22 October 1984 |
| Docket Number | Cr. 15868 |
| Citation | 161 Cal.App.3d 22,207 Cal.Rptr. 228 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Chez DAAN, Defendant and Appellant. D000479. |
| Court | California Court of Appeals Court of Appeals |
John K. Van de Kamp, Atty. Gen., John W. Carney and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.
Defenders, Inc. and Frederic L. Gordon, San Diego, under appointment by the Court of Appeal, for defendant and appellant.
Chez Daan appeals the denial of his Penal Code section 1538.5 motion to suppress the use in evidence of marijuana cigarettes seized from Richard Edward Bryan, believed by the police to have purchased the cigarettes from Daan. We shall hold Proposition 8 abolishes the vicarious exclusionary rule and affirm Daan's conviction.
On October 20, 1983, San Diego police officer John Minto saw Bryan give Daan money and receive in exchange an unidentified object. The two men parted and went their separate ways. Minto saw Bryan place the object then identified as cigarettes into a cigarette package. Minto radioed his partner, Officer Borden, to contact Bryan and recover the marijuana cigarettes from the cigarette package. Borden stopped Bryan, asked for and received the package of cigarettes. Borden removed seven marijuana joints and returned the cigarette package to Bryan, who then left the scene after Minto told him he was free to go. We hear no more of him.
An hour or so later, Minto located and arrested Daan, who was bound over on a charge of sale of marijuana in violation of Health and Safety Code section 11360, subdivision (a). The court denied Daan's section 1538.5 motion to suppress the marijuana joints on the ground Proposition 8 abolished California's vicarious exclusionary rule. Daan then pleaded nolo contendere to a misdemeanor violation of sale of a controlled substance. Imposition of sentence was suspended and Daan was placed on probation for three years on condition he serve 60 days in jail with credit of 60 days for time served.
The People claim the sole issue on appeal is Daan's vicarious right to assert the illegality of Bryan's detention and the seizure of the marijuana. The legality of Bryan's detention and the seizure by Officer Borden from him of the seven marijuana joints is not addressed by the People. Daan vigorously asserts the illegality of both.
Article I, section 28, subdivision (d) (section 28(d)) of the California Constitution became effective June 9, 1982, following the enactment by the people of the initiative measure known as Proposition 8. It provides as follows:
The People contend section 28(d) mandates all relevant evidence is now admissible in any criminal proceeding except evidence violative of federal constitutional directions. This result is said to be compelled by the legislative analysis of section 28(d) contained in the California Ballot Pamphlet for the June 8, 1982 primary election:
Commentators have concluded the purpose of section 28(d) was to eliminate independent state grounds for exclusion of illegally obtained evidence, leaving the federal Constitution as interpreted by controlling federal decisions as the sole basis for exclusion (. The syllogism has not been explicated. We proceed to do so.
" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid.Code, § 210.) Relevancy is concerned with the probative quality of the evidence offered; the tendency of the evidence to establish a material proposition (Witkin, Cal.Evidence (2d ed. 1966) Relevancy, § 302, p. 266). Turning to the case at hand, the marijuana cigarettes found in Bryan's cigarette package were seen by Officer Minto to have been passed by Daan to Bryan in exchange for money. Bryan's possession of the cigarettes thus has a tendency in reason to prove Daan sold them to Bryan, a disputed fact and an essential element of the charged offense. The fact of Bryan's marijuana cigarette possession is, accordingly, "relevant evidence."
Prior to the passage of Proposition 8, evidence obtained in violation of federal or California constitutional guarantees against unreasonable search or seizure was inadmissible in a criminal trial. (People v. Cahan (1955) 44 Cal.2d 434, 442, 282 P.2d 905.) Such evidence is, obviously, relevant as otherwise it would be excludable as irrelevant. People v. Martin (1955) 45 Cal.2d 755, 759-761, 290 P.2d 855, established the "vicarious exclusionary rule" entitling a defendant to object to the introduction of evidence illegally seized from a third person. The later enactment in 1965 of Evidence Code section 351 stating in its entirety "Except as otherwise provided by statute, all relevant evidence is admissible" did not abolish the Martin rule. Defendants continued to be able to assert the vicarious exclusionary rule barring the admission of relevant evidence illegally seized from a third person. (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 161, 98 Cal.Rptr. 649, 491 P.2d 1.)
The federal rule is different. A defendant can only challenge a violation of his own reasonable expectation of privacy. He cannot assert the illegality of the search of a third person makes inadmissible as to him the evidence seized in the course of the illegal search. (United States v. Salvucci (1980) 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619; Rawlings v. Kentucky (1980) 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633; Rakas v. Illinois (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387.)
While earlier cases assumed an identity between the Fourth Amendment of the federal Constitution and its counterpart, article I, section 13 of the California Constitution, 1 later California cases on search and seizure were bottomed on independent state grounds asserting the power to impose higher standards on searches and seizures than required by the federal Constitution. The California exclusionary and vicarious exclusionary rules thus are different from and impose more stringent standards than those explicated by federal authority.
We now state the syllogism. Prior to Proposition 8, relevant evidence illegally seized was excludable. A defendant could assert the illegality of a search of a third person and the exclusion of evidence illegally seized from such person. Section 28(d) provides relevant evidence shall not be excluded. Therefore, California rules which are contrary to federal rules excluding relevant evidence seized in the course of illegal searches are abrogated by section 28(d). As Proposition 8 cannot reach the federal Constitution, only the federal Fourth Amendment constraints on searches and seizures as explicated by the United States Supreme Court 2 are valid in California. The United States Supreme Court does not recognize the vicarious exclusionary rule; ergo, Daan cannot assert the illegality of Bryan's detention and the seizure of the marijuana cigarettes.
Having stated the proposition, we examine its validity. As we have seen, the phrase "relevant evidence shall not be excluded," does not ring the bell of clarity. To ascertain its meaning as defined by the people requires our analysis of state and federal constitutional and case law. To establish its validity requires our further examination of its consequences.
Article 1, section 13 of the California Constitution paralleling the federal Fourth Amendment does not expressly require the exclusion of evidence as a remedy to compel compliance with its mandate by law enforcement officials. People v. Cahan, supra, 44 Cal.2d at p. 442, 282 P.2d 905, held as a "judicially declared rule of evidence" that evidence obtained in violation of section 13 is excludable. Section 28(d) does not repeal or amend section 13 rights; section 28(d) simply abrogates the remedies fashioned by our courts for section 13 violations. While Kaplan, supra, 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1, concluded the Martin rule was based on principles compelled by Cahan and Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and thus was an exception provided by our ...
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