People v. Superior Court (Tunch)

• Decision Date: 08 May 1978
• Citation: 80 Cal.App.3d 665,145 Cal.Rptr. 795
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; Kenneth Wayne TUNCH, Real Party in Interest. Civ. 42202.

Page 795

145 Cal.Rptr. 795

80 Cal.App.3d 665

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent Kenneth Wayne TUNCH, Real Party in Interest.

Civ. 42202.

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

May 8, 1978.

Hearing Denied July 5, 1978.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Michael D. Whelan, Deputy Attys. Gen., San Francisco, for petitioner.

James C. Hooley, Public Defender, Jay B. Gaskill, Asst. Public Defender, Oakland, for real party in interest.

ELKINGTON, Associate Justice.

We issued an alternative writ of mandate on application of the People in order to review an order of the superior court suppressing evidence of (1) a statement made by Kenneth Wayne Tunch and (2) certain physical evidence, an automobile owned by him. The order was based on the superior court's determination that Tunch's Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) rights were violated by failure of a police officer to admonish him according to that authority prior to a custodial interrogation.

A fatal "felony hit-run" (see Veh. Code, § 20001) occurred late one rainy evening in the City of Oakland. The victim "appeared to have a gunshot wound in his leg and had been hit by the vehicles." One of the police officers assigned to the case learned from an eyewitness that one of the offending vehicles was a Chrysler with license plates numbered 051 ATZ. Further investigation disclosed that the automobile had been sold to Kenneth Tunch, with two Oakland addresses given, one being 2958 Fruitvale Avenue, and whose name was familiar to the officer. Later that night a police search for the car in the general areas of Tunch's addresses was unsuccessful. Several police officers had become involved in the ongoing investigation.

[80 Cal.App.3d 669] At 9:20 o'clock the next morning as one of the officers "was leaving the police building," he observed Tunch walking toward the building's court entrance. The officer "told him I would like to talk to him a few minutes," and the two walked back into the building to a police interview room. We continue with testimony of the officer as given by him at the hearing on Tunch's motion to suppress:

"Q. What happened when you got into the police administration building?

"A. Mr. Tunch was inquiring about why we wanted to talk to him. I explained to him that there had been a hit and run the night before, an accident in which someone was struck with a vehicle. From the information we had, it may have been a vehicle which was registered to him.

"Q. What did Mr. Tunch say, if anything?

"A. He told me at that time that his vehicle was not drivable. He explained that, I believe, on the date of 12th of March (four days earlier), that he had been to a party, that it had been damaged, the windshield was broken. He went back the next day to get it. The driveshaft broke. He had to leave it downtown. Now, it wasn't even drivable.

"Q. Did he mention what did you do at that time?

"A. Got the details from him about when this incident had occurred, in which he had made a report of his windshield having been broken. I went to our records division and obtained a copy of that report.

"Q. Did that report confirm the damage to Mr. Tunch's car?

"A. It did.

"Q. What did you do then, after obtaining that report?

"A. I told Mr. Tunch that we'd like to check the vehicle, check the damage that had been on that report, verify the damage, verify his story. He told us that the vehicle was at his mother's at 2958 Fruitvale Avenue, and told us to check it out."

The officer, with another, thereupon went to the already known 2958 Fruitvale Avenue address and "checked out" the vehicle in a rear garage. He found "small dents or indentations on the hood and what appeared to be a fabric burn or mark of some kind that was not immediately identifiable." He also "observed the vehicle to be wet (with) water drops on it." His companion "started the vehicle with a key and backed the vehicle out of the driveway and drove it forward." The car's condition thus constituted evidence tending to establish that it had been involved in the hit-run occurrence. And also, contrary to Tunch's earlier statement to the officer, it appeared not only that the automobile was "drivable," but also that it had probably been driven in the rainstorm of the night before.

It will be seen that the superior court's suppression order denying the use in evidence of the vehicle, and testimony of its appearance to the police officers, forever extended to Tunch a near, if not complete, immunity from prosecution and conviction for the hit-run and possibly aggravated assault and other offenses.

Two issues are presented.

The People first contend that the Miranda admonition was not required for the reason that the police questioning of Tunch was not in the course of a custodial interrogation. ¹

It is the clear rule of this state that " 'custody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.' " (People v. White (1968) 69 Cal.2d 751, 760, 72 Cal.Rptr. 873, 877, 446 P.2d 993, 997; People v. Arnold, supra, 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515; In re James M. (1977) 72 Cal.App.3d 133, 136, 139 Cal.Rptr. 902; Witkin, Cal.Criminal Procedure (1978 Supp.) § 361F-1 (New), pp. 544-546.)

Equally clear is the rule that the trial court's ruling on a Miranda issue may not be set aside by us unless it is "palpably erroneous." A ruling palpably erroneous is one lacking support of substantial evidence. (People v. Duren (1973) 9 Cal.3d 218, 238, 107 Cal.Rptr. 157, 507 P.2d 1365.) And of course "(w)hen two or more inferences can reasonably be deduced from the facts," either deduction will be supported by substantial evidence, and "a reviewing court is without power to substitute its deductions for those of the trial court." (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784-785, 59 Cal.Rptr. 141, 143, 427 P.2d 805, 807.)

Although we are of the opinion that a contrary and reasonable inference might also have been drawn from the foregoing evidence, we cannot say that the superior court's inference of a custodial interrogation was unreasonable. That determination was thus supported by substantial evidence, and was not palpably erroneous. It will accordingly be respected by us.

We advert now to the People's remaining contention. They argue that the superior court, in ruling upon Tunch's motion to suppress, failed to apply "the clearly applicable rule of inevitable discovery and thus erred in suppressing the car."

As has been pointed out, following the hit-run occurrence police officers instituted an investigation designed to locate the offending vehicle, and its operator. They had already obtained credible information of the automobile's license number, and the name and address of its owner. And the evidence reasonably indicated that had the circumstances of the Miranda violation not occurred, the police would have continued their investigation by examining the car with the consent of its owner, or without such consent upon issuance of a search warrant. ²

Responding to such an argument of the People at the suppression hearing the superior court agreed, saying: "I am sure they would have, but they didn't. They didn't, and that's all I can go on." (The emphasis, of course, is ours.)

The superior court thus made a factual determination that the police "would have," in the course of a lawful investigation, discovered the here questioned evidence of the automobile. That determination is well supported by substantial evidence. Our inquiry narrows to the question whether, as a matter of law and as contended by the People, the doctrine of inevitable discovery became applicable.

The lineage of the doctrine will reasonably be traced to Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, 320, where Mr. Justice Holmes, speaking for the court, stated:

"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. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed." (The emphasis is ours.)

That pronouncement has frequently been reiterated by high authority. See Wong Sun v. United States (1963) 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441; Lockridge v. Superior Court (1970) 3 Cal.3d 166, 169, 89 Cal.Rptr. 731, 474 P.2d 683 (cert. den., 402 U.S. 910, 91 S.Ct. 1387, 28 L.Ed.2d 652). Elaborating, the Wong Sun court stated: "(T)he 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.' " (371 U.S., p. 488, 83 S.Ct. p. 417.) And more recently the court has declared: " 'Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.' " (Brown v. Illinois (1975) 422 U.S. 590, 600, 95 S.Ct 2254, 2260, 45 L.Ed.2d 416; United States v. Calandra (1974) 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561.)

Commenting on the rule and explaining its rationale, the high court said in Nardone v. United States (1939) 308 U.S. 338, 340, 60 S.Ct. 266, 267, 84 L.Ed. 307:

"Any claim for the exclusion of evidence...