People v. Johnson

• Decision Date: 03 March 1969
• Docket Number: Cr. 12804
• Citation: 75 Cal.Rptr. 401,70 Cal.2d 541,450 P.2d 865
• Court: California Supreme Court
• Parties: , 450 P.2d 865, 43 A.L.R.3d 366 The PEOPLE, Plaintiff and Respondent, v. Harold Edward JOHNSON, Defendant and Appellant.

Page 401

75 Cal.Rptr. 401

70 Cal.2d 541, 450 P.2d 865, 43 A.L.R.3d 366

The PEOPLE, Plaintiff and Respondent, v. Harold Edward JOHNSON, Defendant and Appellant.

Cr. 12804.

Supreme Court of California.

March 3, 1969.

Rehearing Denied April 2, 1969.

Richard H. Levin, Los Angeles, under appointment by Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci and Charles R. B. Kirk, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

Defendant Harold Edward Johnson had a codefendant Howard, who has not appealed, were convicted of four counts of burglary after waiving jury trial and submitting the cause upon the transcript of the preliminary hearing. Johnson appeals from an order suspending proceedings and placing him on probation for five years.

Johnson claims on appeal that there is no evidence connecting him with the third count of burglary ¹ and that his extrajudicial confession is inadmissible as a fruit of an unlawful search and arrest.

The Attorney General has conceded that there is no evidence connecting Johnson with count III. The sole issue to be decided in connection with the other counts is the admissibility of Johnson's confession.

Four residences were burglarized between June 1965 and October 1966. On October 21, 1966, Deputy Sheriff Ellson and Sergeant Anderson, without an arrest or search warrant, went to the apartment of Johnson's codefendant Bobby Roy Howard. They knocked on the door and asked for Howard. One Ciabattari answered the door; the officers asked him for identification, and if they could enter. Ciabattari refused permission and tried to shut the door while he went upstairs to get identification. He was unable to close the door because one of the officers put his foot inside. The officers entered, Ciabattari was arrested, and a television set taken in one of the burglaries was seized by the police officer.

Codefendant Howard was arrested about two hours later and taken to the sheriff's station. On the way into the sheriff's station, Howard and the police officers saw the television set taken from Howard's apartment. The set was pointed out to Howard and he was asked about it. Howard was warned of his rights under Miranda v. Arizona, 384 U.S. 436, ² 86 S.Ct. 1602, 16 L.Ed.2d 694.

After being warned of his rights, after being shown the TV set, and after being asked about it, Howard confessed implicating Johnson. Johnson was arrested the next day at his home and warned of his rights. Questioned about the burglaries, he at first denied any involvement. After his denial he was taken in a police car to Howard's residence. Howard, who was out on bail, was 'invited' to join Deputy Sheriff Ellson, Sergeant Anderson and Johnson in the car 'for a talk.' Howard and Johnson were again warned of their rights. Howard repeated his confession, implicating Johnson, and Johnson then confessed.

In both the municipal and superior courts, defendant objected to the admission of is confession on the ground that it was induced by Howard's confession, which, was inadmissible because the search of Howard's residence and his arrest were unlawful.

The Attorney General concedes that 'in view of the present condition of the record' the search was unlawful. The rule is settled that where a confession is induced by illegally seized evidence, the confession is subject to exclusion as fruit of the poisonous tree. (See, e.g., Fahy v. Connecticut (1963) 375 U.S. 85, 90--91, 84 S.Ct. 229, 11 L.Ed.2d 171; Wong Sun v. United States (1963) 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Stoner, 65 Cal.2d 595, 600, 55 Cal.Rptr. 897, 422 P.2d 585; People v. Bilderbach, 62 Cal.2d 757, 767, 44 Cal.Rptr. 313, 401 P.2d 921; People v. Faris, 63 Cal.2d 541, 546, 47 Cal.Rptr. 370, 407 P.2d 282; People v. Dixon, 46 Cal.2d 456, 458, 296 P.2d 557; People v. Govea, 235 Cal.App.2d 285, 304, 45 Cal.Rptr. 253.)

The application of the fruit-of-the-poisonous-tree doctrine was restated in Wong Sun v. United States, Supra, 371 U.S. 471, 485, 487--488, 83 S.Ct. 407, 416, 9 L.Ed.2d 441:

'The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlwful invasion. * * * (V)erbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest * * * is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion. * * *

'(T)his is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence 'from an independent source' (citations); nor is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint' (citations). We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.''

The rule of Wong Sun was applied by this court in People v. Bilderbach, Supra, 62 Cal.2d 757, 44 Cal.Rptr. 313, 401 P.2d 921, in a situation analogous to that presented by the instant case: the defendant argued that his confession should be excluded since he confessed only because he was confronted with illegally obtained evidence. Although reversing on other grounds, we discussed defendant's contention should the issue arise on retrial:

'That the prosecutor may not profit directly or indirectly from an illegal search has been the keystone of the rule excluding illegally obtained evidence. * * *

'Even though statements are free of 'oppressive circumstances' and otherwise voluntarily rendered, they are not exempt from attack on constitutional grounds if they are the product of an illegal search (citations).

'The presence or absence of 'oppressive circumstances' is not determinative. Rather, each case should turn on the issue whether the evidence related so closely to the illegal search that the admission of such evidence 'would thwart the laudable policies underlying the exclusionary rule.' (Citations.)

'With this principle in mind, the trial court should examine the facts in order to determine if the statement was induced by the illegal search. (Citations.) If the statement was so induced it was not 'an act of free will to purge the primary taint of the unlawful invasion,' but was "come at by exploitation of (the) illegality" (citations) and is therefore excludable.' (People v. Bilderbach, Supra, 62 Cal.2d 757, 763, 767--768, 44 Cal.Rptr. 313, 316, 401 P.2d 921, 924.)

After Bilderbach, supra, we held in People v. Faris, Supra, 63 Cal.2d 541, 47 Cal.Rptr. 370, 407 P.2d 282, and People v. Stoner, Super, 65 Cal.2d 595, 55 Cal.Rptr. 897, 422 P.2d 585, that statements of the defendant made when confronted with or told of illegally obtained evidence were inadmissible as the fruit of the poisonous three. In Faris, the defendant returned to her apartment to find police officers conducting a search; they confronted her with the stolen property and secured the admissions which were held inadmissible as fruit of the poisonous tree. (People v. Faris, Supra, 63 Cal.2d 541, 546, 47 Cal.Rptr. 370, 407 P.2d 282.) In Stoner, the unlawful search and defendant's arrest occurred 72 hours before the confession which was held to be fruit of the poisonous tree. He had been held incommunicado and did not confess until after he was confronted with or told of the evidence unlawfully obtained. We held that under 'these circumstances there was no break in the chain between the illegal search and seizure and defendant's confession. It was not 'sufficiently an act of free will to purge the primary taint. '' (People v. Stoner, Supra, 65 Cal.2d 595, 599--600, 55 Cal.Rptr. 897, 900, 422 P.2d 585, 588.)

Earlier, in People v. Dixon, Supra, 46 Cal.2d 456, 458, 296 P.2d 557, 559, where the defendant in testifying admitted possession of illegally seized evidence, we held that the testimony 'was impelled by the erroneous admission of the illegally obtained evidence,' and could not be segregated from the admission of the evidence to sustain the judgment.

Where an accused makes one confession and then testifies or upon subsequent questioning again confesses, it is presumed that the testimony or second confession is the product of the first. (People v. Arnold, 66 Cal.2d 438, 450, 58 Cal.Rptr. 115, 426 P.2d 515 (testimony); People v Spencer, 66 Cal.2d 158, 169, 57 Cal.Rptr. 163, 424 P.2d 715 (same); People v. Brommel, 56 Cal.2d 629, 634, 15 Cal.Rptr. 909, 364 P.2d 845 (subsequent confession).) In Spencer it was stated: "We recognize that no court has ever 'gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.' (Citation.) Nonetheless, the courts have not been blind to the fact that 'after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good.' (Citation.) In this sense, a later confession may always be viewed in part as fruit of the first. (Citation.) * * * (H)uman nature being what it is, we must recognize a presumption that one is the fruit of the other.' (Citations.)' (66 Cal.2d at pp. 167--168, 57 Cal.Rptr. at p. 170, 424 P.2d at p. 722). Based on this reasoning, Spencer concluded that the prosecution has the burden of showing a break in the causative chain, and, in the...