People v. Moore
| Citation | 68 Cal.Rptr. 98 |
| Decision Date | 23 April 1968 |
| Docket Number | Cr. 13172 |
| Court | California Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred Rudyard MOORE, Defendant and Appellant. |
Julius L. Rubinstein, Los Angeles, under appointment by Court of Appeal, for appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., James H. Kline, Deputy Atty. Gen., for respondent.
At 10:00 a.m. on October 10, 1966, Officer Robinson of the Los Angeles Police Department 'invited' defendant into his car. Defendant had been in a telephone booth at an intersection frequented by narcotic addicts and when he saw the officer he turned his back toward him and appeared to be talking into the telephone. To the officer he appeared 'nervous.' He said he had used narcotics in the past.
In the car the officer asked defendant whether he could look at his arms. Defendant said he did not mind and removed his coat. The officer then saw twenty scabs on defendant's left arm which indicated to him that defendant was a narcotic user. He placed him under arrest for possession of heroin.
Apparently no heroin was found on defendant because he was never prosecuted on a criminal charge. Instead the police proceeded under section 3100.6 of the Welfare and Institutions Code. Eventually defendant was committed to the California Rehabilitation Center at Corona. In the superior court both parties and the court assumed that in a 'civil' commitment proceeding under section 3100 et seq. of the Welfare and Institutions Code illegally obtained evidence is inadmissible. Both Officer Robinson and defendant testified at length concerning the circumstances preceding his arrest. On the question whether or not defendant freely and voluntarily consented to the inspection of his arm, the court ruled that defendant's own evidence concerning his state of mind was inadmissible. 1
If illegally obtained evidence is not admissible in proceedings designed to commit a person as a narcotic addict, this ruling was error. 2
'Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.' (People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852.)
In Castaneda v. Superior Court, 59 Cal.2d 439, 442-443, 30 Cal.Rptr. 1, 3, 380 P.2d 641, 643, it was held that attempts to mislead officers away from his home made it 'abundantly clear that petitioner did not freely and voluntarily consent to the search of his home.' In People v. Shelton, 60 Cal.2d 740, 745, 36 Cal.Rptr. 433, 388 P.2d 665, Shelton had said: 'All right, go ahead,' when it was suggested to him that he accompany officers to his apartment for a search. At the apartment door he refused to assist the officers in effecting the entry. This was held to establish 'that his apparent consent was not voluntarily given.' 3
On the question of whether or not consent is free and voluntary the defendant's state of mind is the ultimate fact. His words and acts are merely evidentiary. Who knows better than the defendant whether he consented to a search because he thought it was his civic duty to do so or because he felt that if he did not, the police would search anyway? To be sure, the defendant has every motive to lie, but what we are discussing is admissibility, not credibility.
If illegally obtained evidence was inadmissible below, the question of consent was vital, since it is obvious that without the evidence of the scabs on defendant's arms the officers did not have probable cause to arrest the defendant and to search his person.
The question whether the exclusionary rule is applicable in narcotic commitment proceedings has been discussed in three fairly recent cases (People v. Hill, 249 Cal.App.2d 453, 457-159, 57 Cal.Rptr. 551; PEOPLE V. CHACON, 253 CAL.APP.2D ----, ---- , 61 CAL.RPTR. 807*; and People v. Gonzales, 256 Cal.App.2d ----, ---- **, 63 Cal.Rptr. 581), decided by another division of this court. Each case implied that the rule was inapplicable. Hill and Chacon are obviously dicta, because (a) the court only talks about the legality of the arrests, not their fruits; and (b) the court found no illegality. Gonzales is harder to categorize. There the officers made an entry, which the court may or may not have thought to be illegal. They saw Gonzales covered with scabs and appearing to be suffering withdrawal symptoms. He was placed under arrest. Although, on appeal, he complained about an illegal search and seizure, that claim was dismissed by a statement that 'there can be no such question here for the officers made neither search nor seizure. * * *' (Italics ours.) Thus the court never considered the question whether what the officers saw after a possibly illegal entry was inadmissible because it constituted an illegal search. (Britt v. Superior Court, 58 Cal.2d 469, 473, 24 Cal.Rptr. 849, 374 P.2d 817; Bielicki v. Superior Court, 57 Cal.2d 602, 606, 21 Cal.Rptr. 552, 371 P.2d 288; cf. People v. Reeves, 61 Cal.2d 268, 272-273, 38 Cal.Rptr. 1, 391 P.2d 393; People v. Miller, 248 Cal.App.2d 731, 739, 56 Cal.Rptr. 865.)
If Gonzales were a clear holding we would feel bound to follow it, since it would be intolerable for the trial courts in the four counties comprising our district to be confronted with irreconcilable decisions. However, under the circumstances, we are free to differ. We do so for several reasons:
1. Reasonable persons may certainly differ on the wisdom of the exclusionary rule. (Cf. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, with People v. Gonzales, 20 Cal.2d 165, 124 P.2d 44.) It sacrifices much in the search for truth. Its only justification is the failure of other means to make law enforcement respect the Constitution. (Linkletter v. Walker, 381 U.S. 618, 633-635, 85 S.Ct. 1731, 14 L.Ed.2d 601; Mapp v. Ohio, 367 U.S. 643, 651-653, 81 S.Ct. 1684, 6 L.Ed.2d 1081.) Yet these considerations have been weighed and reweighed (Mapp v. Ohio, supra; People v. Cahan, supra) and even if we read the scales differently we could not translate our observations into judicial action.
2. If In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 stands for anything, it is the proposition that a person cannot be deprived of his constitutional rights simply by labeling an adversary proceeding as 'civil' rather than criminal. Gault commits us to a 'right by right' and 'proceeding by proceeding' analysis. 4 We must, therefore, examine the reason for each right accorded to defendants in criminal cases and determine whether the reason applies with equal force in other types of proceedings. Gault was decided after People v. Hill, supra.
3. It is noted that in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d. 943, also decided after People v. Hill, supra, the Supreme Court outlawed warrantless searches for possible violations of municipal housing and fire codes. In Camara it said: 'it is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. * * *' (Ibid., p. 530, 87 S.Ct. p. 1732.)
4. Although Camara and See concern themselves with criminal proceedings against persons who had refused to permit the inspections, can it be doubted that the results of illegal inspections would be inadmissible in civil proceedings seeking to abate whatever violations illegal inspections turn up? The 'civil-criminal' dichotomy is no more--if it ever was. Why then, if to put life into the Fourth Amendment we put up not only with reversing the convictions of robbers (Stoner v. State of California 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856), burglars (People v. Burke, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67), abortionists (People v. Schaumloffel, 53 Cal.2d 96, 346 P.2d 393), moonshiners (Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514) and housewives who like dirty books (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081), but are also willing to stand nonconforming structures and substandard fire escapes, should we sacrifice the Constitution when it comes to drug addiction?
5. Moreover, we believe that admissibility of illegally obtained evidence in narcotic commitment proceedings positively detracts from the 'deterrent effect of the exclusionary rule.' (People v. Parham, 60 Cal.2d 378, 386, 33 Cal.Rptr. 497, 501, 384 P.2d 1001, 1005.) What incentive 5 to obey the Fourth Amendment is there if the very day a defendant is acquitted on a charge of possession, the police officer, with the judge's tongue-lashing still ringing in his ear, can serenely file an application under section 3100.6 of the Welfare and Institutions Code and appear before the very same judge a few days later to watch defendant being shipped off to Corona? The main objective of the police is to get the addict off the street. Whether he does his time at Los Padres being punished or at Corona being cured is of secondary importance. 6
6. If, in truth, the narcotic commitment procedure is selected by the police as a welcome alternative to a criminal prosecution, stillborn because of illegal police conduct, we seriously doubt whether the resulting confinement can withstand the impact of Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.
7. Hill, Chacon and Gonzales were at least cases where the police were investigating suspected criminal activities on the part of particular persons. Yet the sweep of the nonexclusionary rule announced in those cases makes such bespoke law enforcement methods an unnecessary luxury. What is there to stop the police from cordoning off a 'high frequency...
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