People v. Superior Court

• Decision Date: 14 January 1970
• Docket Number: Cr. 8278
• Citation: 83 Cal.Rptr. 771,3 Cal.App.3d 476
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF SANTA CLARA, Respondent; Clarence Paul MAHLE, Jr., Real Party in Interest. In re Clarence Paul Mahle, Jr. on Habeas Corpus. Civ. 27414, 27418.

Page 771

83 Cal.Rptr. 771

3 Cal.App.3d 476

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF SANTA CLARA, Respondent Clarence Paul MAHLE, Jr., Real Party in Interest In re Clarence Paul Mahle, Jr. on Habeas Corpus.

Civ. 27414, 27418.

Cr. 8278.

Court of Appeal, First District, Division 1, California.

Jan. 14, 1970.

Sheldon Portman, Public Defender, Rose E. Bird, Deputy Public Defender, Santa Clara County, San Jose, for Clarence Paul Mahle, Jr.

Thomas C. Lynch, Atty. Gen. of State of California, Derald E. Grandberg, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for People of State of California.

MOLINARI, Presiding Justice.

Clarence Paul Mahle, Jr., hereinafter referred to as 'defendant,' is presently confined in the Santa Clara County Jail awaiting retrial of a case in which a second degree murder conviction was previously reversed on the ground of erroneous jury instructions. (People v. Mahle (1969) 273 A.C.A. 340, 78 Cal.Rptr. 360.) Petitioner has not furnished bail fixed at $4,500.

Pending retrial, defendant moved, pursuant to Penal Code, section 1538.5, ¹ to suppress certain evidence. The trial court granted the motion. Pursuant to the same code section the prosecution filed a notice of intention to seek review by writ of mandate under subdivision (o) of the section, whereupon defendant moved to be released from custody on the basis that he was entitled to such release under section 1538.5, subdivision (k). Said motion was denied and defendant filed a petition for writ of habeas corpus in this court and we issued an order to the sheriff to show cause why defendant should not be released from custody.

Subsequently, and within the time provided for in section 1538.5, subdivision (o), the People filed a petition for writ of mandate seeking appellate review of the order suppressing evidence. The People also filed a petition for writ of prohibition seeking to stay the trial pending adjudication of the merits of the petition for writ of mandate. We issued an alternative writ of mandate and an alternative writ of prohibition.

Since all of these proceedings are related we proceed to consider all of them in this opinion.

The Factual Background ²

On September 20, 1967, San Jose Police Officers Hazen and Esparza responded to a police radio broadcast indicating that a stabbing had occurred at 750 North Twenty-third Street, apartment 22. When they arrived on the scene a man waved down the officers and said, 'Apartment 2o upstairs.' En route to apartment 23, Hazen passed apartment 21, noting that its door was wide open. A voice within apartment 21 said, 'In here, Officers.' Hazen entered and observed defendant seated in a chair in the living room. Hazen asked him 'What happened?' Defendant replied, 'I did it and I'm sorry.'

Officer Hazen informed defendant that he was under arrest for assault with a deadly weapon. As defendant was being handcuffed Hazen asked defendant, 'Where is the knife?' Pointing, defendant responded, 'Over on the kitchen sink.' From his location in the living room, Hazen could see the knife on the kitchen counter. Officer Esparza then went into the kitchen area and obtained the knife which was on the kitchen counter.

Hazen then asked defendant if he had any weapons on his person. Defendant indicated that he had a pocket knife which Hazen removed. No further questions were asked of Mahle. Hazen instructed another officer to take defendant to the detective bureau and to advise him of his constitutional rights.

Mrs. Mahle was found in apartment 23 bleeding profusely from a chest wound. She died approximately an hour and a half later. ³

The trial court suppressed the knife and photographs of the knife and the kitchen sink area on the theory that it was the 'poisoned fruit' of an illegally obtained statement because defendant's statement concerning the whereabouts of the knife was received in violation of the rule declared in Miranda v. Arizona (1966) 384 U.S. 436, 444, 477, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694, which requires that an accused be advised prior to his being questioned that he has a right to remain silent, that any of his statements may be used against him, and that he has the right to the presence of an attorney, either retained or appointed.

Applicability of Section 1538.5

Subdivision (a) of section 1538.5 provides, in pertinent part, that a defendant 'may move * * * to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure of the ground that: (1) The search or seizure without a warrant was unreasonable; * * *.' In the instant case defendant contends that the knife and photographs were obtained by the police as a result of a statement obtained from him in violation of the rule of Miranda and that, therefore, it was properly excluded under section 1538.5 as the 'poisonous fruit' of the illegal statement. The People, on the other hand, urge that even if it be conceded that these items were the fruits of an illegally conducted interrogation, section 1538.5 is not applicable because it deals solely with motions to suppress evidence on Fourth Amendment grounds only, that is, fruits of an unlawful search and seizure and not the fruits of a statement obtained in violation of Miranda.

In considering these contentions we observe, initially, that the physical byproducts of illegally obtained statements are inadmissible during the trial of the declarant as the 'poisonous fruit' of the illegal statements. (People v. Schader, 71 A.C. 797, 814, 80 Cal.Rptr. 1, 457 P.2d 841; People v. Buchanan, 63 Cal.2d 880, 887, 48 Cal.Rptr. 733, 409 P.2d 957; Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441.) We also observe that in People v. Superior Court, 275 A.C.A. 46, 49, 79 Cal.Rptr. 704, 706, it was held that section 1538.5 'is limited solely to questions involving searches and seizures and is inapplicable to the resolution of issues arising from challenged confessions or admissions, except those that constitute the fruit of a search and seizure.' In that case, the motion to suppress was directed only to the Statements made by the defendants and not to any items of evidence obtained as a result of the statements.

In People v. Superior Court, 70 A.C. 129, 134, 74 Cal.Rptr. 294, 298, 449 P.2d 230, 234, the applicability of section 1538.5 was stated thusly: 'Section 1538.5 * * * provides that a defendant may move to suppress as evidence any tangible or intangible thing Obtained as a result of search or seizure either with or without a warrant on the ground that the Search or seizure was Unreasonable. Unquestionably the section by providing for the motion only where there has been a search or seizure, is directed only toward those searches and seizures which are conducted by government agents and which can be considered unreasonable under constitutional or other enumerated standards.' With respect to the standard for reasonableness of a search or seizure, the Supreme Court observed further, that the standard or test of reasonableness is that required by the Fourth Amendment of the United States Constitution. (P. 135, 74 Cal.Rptr. 294, 449 P.2d 230.)

In the light of the foregoing it is clear that section 1538.5 is directed to searches and seizures which can be considered unreasonable under constitutional standards. In the present case it is obvious that the police indulged in a search and a seizure. If that search and seizure was brought about as a result of a statement obtained in violation of the rule of Miranda it was thereby rendered unreasonable if it was the fruit of official illegality. (People v. Schader, supra, 71 A.C. 797, 80 Cal.Rptr. 1, 457 P.2d 841; People v. Buchanan, supra, 63 Cal.2d 880, 48 Cal.Rptr. 733, 409 P.2d 957.) As pointed out in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, 'The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.' Accordingly, if, as held in Wong Sun, verbal statements which are the fruit of an illegal search and seizure are protected by the Fourth Amendment (see also People v. Superior Court, supra, 275 A.C.A. 46, 49, 79 Cal.Rptr. 704) on the basis that the policies underlying the exclusionary rule do not 'invite any logical distinction between physical and verbal evidence' (371 U.S. at p. 486, 83 S.Ct. at p. 416), we apprehend, conversely, that physical evidence which is the fruit of an illegal statement is also protected by the Fourth Amendment.

We conclude, therefore, that section 1538.5 is a proper vehicle for bringing a motion to suppress evidence on the ground that it was obtained as the fruit of an illegal statement. Accordingly, when the motion to suppress was granted in the instant case, the People were entitled to petition for a writ of mandate as provided by section 1538.5, subdivision (o) to review the validity of the order. Our inquiry, therefore is directed intially to whether the statement obtained from defendant which resulted in the search and seizure was obtained in violation of Miranda. Before doing so, however, we proceed to discuss whether defendant was entitled to be released from custody pending such determination and whether the People were entitled to an order staying the trial of the case pending such determination.

The Habeas Corpus Petition

Section 1538.5, subdivision (k) provides, in pertinent part, as follows: 'If the defendant's motion to return property or suppress evidence is granted * * * or the people file a petition for writ of mandate or prohibition pursuant to subdivision (o) or a notice of intention to file such petition, the defendant shall be released if he is in custody and not returned to custody unless the proceedings are resumed in the trial court and he is lawfully...