People v. Eastmon

• Decision Date: 31 August 1976
• Docket Number: No. 2356,2356
• Citation: 132 Cal.Rptr. 510,61 Cal.App.3d 646
• Parties: The PEOPLE, Plaintiff and Respondent, v. Raymond James EASTMON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 510

132 Cal.Rptr. 510

61 Cal.App.3d 646

The PEOPLE, Plaintiff and Respondent, v. Raymond James EASTMON, Defendant and Appellant.

No. 2356.

Court of Appeal, Fifth District, California.

Aug. 31, 1976.

Hearing Denied Oct. 28, 1976.

Granger & Montgomery, and J. Robert Montgomery, Jr., Delano, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winker, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Edmund D. McMurray, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

OPINION

GARGANO, Associate Justice.

By information, appellant was accused of selling, furnishing or giving away heroin in violation of section 11352 of the Health and Safety Code; he entered a plea of not guilty to the charge and then moved to suppress the evidence pursuant to section 1538.5 of the Penal Code; his suppression motion was denied, and the cause proceeded to jury trial. Appellant was convicted as charged in the information, and he was sentenced to state prison for the term prescribed by law. His appeal raises a fundamental issue: Should appellant's motion to suppress the evidence have been granted, since the charge against appellant was predicated upon a transaction which was consummated by a heroin addict who was induced by the police to act as an undercover agent as the result of an unlawful search and seizure of the addicts' residence?

Prior to his conviction, appellant was the owner and operator of a barbershop and taxi cab company in the City of Ridgecrest. He employed Sharon Nicol as his taxi cab dispatcher, and she worked out of an office located in the barbershop; Ms. Nicol lived in Ridgecrest with Dennis Summers; Summers was on probation because of a conviction for possession of marijuana.

On June 28, 1974, Sharon Nicol was arrested for and charged with possession of heroin for sale; the police had searched appellant's barbershop while Ms. Nicol was working there and had found 120 bindles of heroin in a bowl on top of a television set, and 10 bindles of heroin in Ms. Nicol's purse. Later, appellant posted bond and obtained the girl's release; she resumed working for appellant as his dispatcher.

On July 14, 1974, Phillip Muse, a police informant, made a controlled purchase of heroin from Dennis Summers at Summers' residence in Ridgecrest; he turned the heroin over to Detective Michael Bradley of the Ridgecrest Police Department. Approximately 45 minutes later, Bradley and Officer Charles Stull went to Summers' residence without a search warrant and knocked on the front door; they identified themselves as police officers. Bradley mistakenly believed that as a condition of his probation Summers had agreed to submit his person and his place of residence to a search and seizure, with or without a search warrant, upon request of any law enforcement officer; when the detective heard shuffling noises and a toilet flushing inside, he drew his pistol and kicked a hole in the front door. At about the same time, Summers opened the door and let Bradley and Stull in; Sharon Nicol was sitting on a bed just inside the front door.

After entering the house, Stull searched Summers' person, and both officers quickly searched the premises; no contraband was found. Bradley then told Summers and Ms. Nicol that if they had any heroin in the house it would be better for them if they would turn it over voluntarily; Ms. Nicol removed three bindles of heroin from a drawer and handed them to Bradley. Thereupon, Bradley asked the couple to work for the police as undercover agents; he intimated that if they cooperated they would not be arrested for the possession of the three bindles of heroin Ms. Nicol had given to him or for the sale of the heroin to Muse; also, he promised the couple that he would not tell Summers' probation officer about these latest transgressions and that Ms. Nicol might receive lenient treatment with regard to the criminal action pending against her for possession of heroin for sale. With these assurances, the couple agreed to purchase drugs from appellant. The group then went to the police station.

At the police station, both Summers and Ms. Nicol were strip-searched for narcotics; none was found. In addition, Officer Stull searched the couple's automobile; no contraband was found in the vehicle. Afterward, Bradley gave Summers $300 in currency; the serial numbers on the bills had been recorded. From the police station, Summers telephoned appellant and said, 'I'm ready when you are ready.' Appellant replied, 'Okay, come on over.'

A few minutes later, Summers and Ms. Nicol got into their automobile and drove to the barbershop; Detectivce Bradley and Officer Stull followed in an unmarked car. Summers got out of the automobile, went inside the barbershop, handed appellant $300, picked up 20 bindles of heroin that were lying on top of a table and returned to his vehicle; he drove the car to a nearby market where he handed over the 20 bindles of heroin to Bradley. Bradley gave Summers a patdown search and he searched Ms. Nicol's purse; no money or contraband was found. In the meanwhile, Stull searched the couple's automobile and found no money or contraband inside.

That evening, Detectivce Bradley obtained a search warrant and searched appellant's barbershop; the marked bills were found in appellant's right front pants pocket. Appellant was placed under arrest and transported to jail.

At trial, Dennis Summers testified that the $300 in marked bills he gave to appellant on July 14, 1974, were not in payment for the 20 bindles of heroin he received from appellant at that time; he said that the money was in payment for 20 bindles he had previously acquired from appellant; Summers explained that he regularly received heroin from appellant on consignment and was given one bindle of heroin for his own use for every 5 bindles he sold.

Sharon Nicol testified that she was a heroin addict and that she supported her own habit by working for appellant. She too said that for every five bindles of heroin she sold, appellant would give her one bindle for her own use. Ms. Nicol also said that she received from appellant one bindle of heroin for each day she worked for him as a taxi cab dispatcher.

Appellant argues that the heroin evidence upon which his conviction was grounded should have been suppressed by the trial court because it was the 'fruit of the poisonous tree' under the Wong Sun doctrine. (Wong Sun v. United States (1963) 371 U.S. 471, 487--488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441.) He asserts that the transaction which was consummated on the afternoon of July 14, 1974, between himself and Dennis Summers was the direct consequence of Detective Bradley's exploitation of the unlawful search and seizure that occurred at Summers' home. Appellant relies upon the California 'vicarious exclusionary rule' to assert that the court erred in holding that appellant had no 'standing' to object to the illegality of that search and seizure; under the 'vicarious exclusionary rule' a criminal defendant has standing to object to the introduction of evidence illegally seized from a third person and its 'fruits' or products. (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 154, fn. 1, 155, 161, 98 Cal.Rptr. 649, 491 P.2d 1; People v. Johnson (1969) 70 Cal.2d 541, 553, 75 Cal.Rptr. 401, 450 P.2d 865; People v. Martin (1955) 45 Cal.2d 755, 760--761, 290 P.2d 855; People v. McKunes (1975) 51 Cal.App.3d 487, 490, 492, fn. 2, 124 Cal.Rptr. 126; Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 542--543, 106 Cal.Rptr. 452.)

We commence with two cogent observations. First, this is not a situation where the police willfully and intentionally, or without probable cause, invaded a third person's constitutional rights in an effort to coerce him into becoming a police informant. Had this been the case, we would have been faced with a basic policy issue similar to the one which gave birth to the exclusionary rule in the first instance. (See United States v. Edmons (2d Cir. 1970) 432 F.2d 577, 584; cf. United States ex rel. Pella v. Reid (2d Cir. 1975) 527 F.2d 380, 382--383.) Here, Detective Bradley had good cause to believe that Dennis Summers was in possession of heroin at his residence. In addition, the detective, in good faith, believed that as a condition of his probation Summers had consented to the search of his home and his person without a warrant. In fact, even Summers thought that he had given such consent when he was granted probation. As a consequence, when the detective offered Summers and his girlfriend, Sharon Nicol, leniency if they cooperated in the apprehension of appellant, he was under the good faith, though mistaken, impression that the evidence adduced from the search was admissible against the couple.

Second, we note that while the trial judge correctly determined that the search of Summers' residence was illegal (see People v. Jasso (1969) 2 Cal.App.3d 955, 964, 82 Cal.Rptr. 229), though made in good faith, he also stated that appellant had no standing to object to that search and its 'fruits.' Standing alone, this observation is susceptible to the interpretation that the court was unaware of the California 'vicarious exclusionary rule' and that he denied appellant's motion to suppress solely for that reason. Nevertheless, before making the statement that appellant had no standing to object, the judge also stated that he had read sections 76 and 76A in the 1974 Supplement to Witkin's California Evidence, Second Edition; these sections thoroughly discuss the applicable 'standing' rules in Fourth Amendment cases. Accordingly, it is reasonably clear that the trial judge was aware of the California 'vicarious exclusionary rule' and that when he said that appellant had no standing to object to the illegal search, he merely meant to say that the heroin transaction which occurred later in the day was not 'tainted' by the illegal search and seizure at Summers' residence. ...