People v. Rochin

• Decision Date: 11 January 1951
• Docket Number: Cr. 4452
• Citation: 225 P.2d 913
• Court: California Supreme Court
• Parties: PEOPLE v. Antonio Richard ROCHIN.

Page 913

225 P.2d 913

PEOPLE v. Antonio Richard ROCHIN.

Cr. 4452.

Supreme Court of California.

Jan. 11, 1951.

CARTER and SCHAUER, JJ., dissenting.

Prior opinion 225 P.2d 1.

CARTER, Justice (dissenting).

I dissent from the order denying a hearing in this case, and because of the flagrant violation of the fundamental constitutional right of privacy depicted in the opinion of the District Court of Appeal, I cannot refrain from giving expression to the strong feeling which I have against the holding of this court, People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383; People v. Gonzales, 20 Cal.2d 165, 124 P.2d 44; People v. Kelley, 22 Cal.2d 169, 137 P.2d 1, which gives aid and comfort to so-called officers of the law who are so lacking in respect for the constitutional provisions here involved that they ruthlessly violate them with impunity. I commend the justices of the District Court of Appeal for their forthright declarations in this case against the abuses which are permitted and sanctioned by the holding of this court in the cases cited above, and I have little doubt that if the justices of the District Court of Appeal who participated in the decision of this case were members of this court, such holding would be promptly and unmistakably changed, and the above cited decisions of this court supporting such holding would be squarely overruled.

In view of the disinclination of the members of this court to change this obviously erroneous rule--established by its own decisions, and in direct conflict with the decisions of the Supreme Court of the United States and the highest court of many of the other states in the union--see dissenting opinion in People v. Gonzales, supra, 20 Cal.2d 165, 176, 124 P.2d 44. I am asking the Legislature of California to enact legislation which will force the courts of this state to uphold the constitutional provisions, 4th Amendment to the Constitution of the United States, Section 19 of Article I of the Constitution of California, guaranteeing the right of privacy to residents of this state.

We are told by our national leaders that a state of emergency now exists throughout the world--that our liberties are in jeopardy--that to preserve those liberties we must unite with other free nations of the world in establishing the most potent military force of all time to resist totalitarian aggression. What are these liberties which are threatened? Is not the right of privacy, guaranteed by the above mentioned constitutional provisions, one of those liberties? There can be no question that the right of privacy is one of these fundamental rights, guaranteed by the Bill of Rights--the charter of our civil liberties. Could anyone imagine such right being any more ruthlessly violated under a totalitarian regime than it was in the case at bar? It makes little difference whether the minion of the law who perpetrates such outrages has the official title of commissar, gestapo, sheriff, policeman, constable, game warden, or what-not, the violation of ones right of privacy is just as deplorable. Merely to say that what the officers did in this case, was wrong, is not enough--they will do it again and again if the courts continue to hold that the evidence they obtain by such unlawful means may be used in criminal prosecutions. The Legislature must therefore declare by statute that evidence obtained in violation of the constitutional provisions here involved shall be inadmissible in any judicial proceeding in order to protect the right of privacy guaranteed by our Constitution so long as this court persists in perpetuating the error it committed in its decision in the Mayen case.

The forefathers of this country and the framers of the Constitution of the United States were of the firm conviction that the maxim of Lord Coke was not only true, but that it would be true in the years to come, and that a provision to insure its protection should be placed in the Bill of Rights. Lord Coke said that "The house of everyone is to him as his castle and fortress, as well for his defense against injury and violence as for his repose."

This great right is expressed in the Fourth Amendment to the Constitution of the United States, and it reads as follows: "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." This exact provision is found in the Constitution of our State in Section 19, Article I.

The United States Supreme Court, speaking through many great judges and in a great number of cases, has staunchly refused to allow this right to be violated. In the highest court of our country, the protection extends even farther than the literal words of the Amendment. No evidence obtained in violation thereof may be used against a defendant in the federal courts. This is the result I desire to achieve by the proposed legislation. Such a statute should provide: "No evidence obtained in violation of Section 19, Article I of the Constitution or any law of the State of California shall ever be introduced or admitted or used for any purpose whatsoever in any Court of this State."

Mr. Justice Holmes, in his great dissent in Olmstead v. United States, 277 U.S. 438, 469, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 had this to say: "But I think, as Mr. Justice Brandeis says, that apart from the Constitution the government ought not to use evidence obtained and only obtainable by a criminal act. *** we must consider the two objects of desire both of which we cannot have and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. It also is desirable that the government should not itself foster and pay for other crimes, when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that in future it will pay for the fruits. We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part."

The problem to be solved is a serious one. Under the law of this state any police officer may break into any home, seize anything he may desire and this may be used against a defendant despite the fact that no warrant had been issued, and that the breaking and entering may have been done on mere suspicion or conjecture. The constitutional provision was adopted to prevent this very evil. Mr. Justice Douglas, in a recent decision handed down by the Supreme Court of the United States, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 193, 93 L.Ed. 153, stated the proposition well when he said: "We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative." The same statement is no less true when it is said of...