People v. Taylor

• Decision Date: 20 October 1972
• Docket Number: Cr. 15600
• Citation: 104 Cal.Rptr. 350,8 Cal.3d 174
• Court: California Supreme Court
• Parties: , 501 P.2d 918 The PEOPLE, Plaintiff and Respondent, v. Earl TAYLOR, Defendant and Appellant. In Bank

Page 350

104 Cal.Rptr. 350

8 Cal.3d 174, 501 P.2d 918

The PEOPLE, Plaintiff and Respondent, v. Earl TAYLOR, Defendant and Appellant.

Cr. 15600.

Supreme Court of California,

In Bank.

Oct. 20, 1972.

William P. Quigley, Merced, under appointment by the Supreme Court, and William J. Adams, Merced, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger and Thomas C. Lynch, Attys. Gen., Edsel W. Haws and A. Wells Petersen, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment of conviction entered upon jury verdicts finding him guilty of possession of heroin (Health & Saf.Code, § 11500) and possession of a restricted dangerous drug (Health & Saf.Code, § 11910).

He contends principally that the court committed prejudicial error in permitting the prosecutor to impeach his testimony by means of illegally obtained evidence. On the facts of this case, the contention must be sustained and the judgment reversed.

About 9 p.m. on April 16, 1969, defendant was driving on a state highway near Los Gatos with Ethel Riggiola as a passenger in the front seat. A police officer stopped defendant for failing to dim his headlights, and after a radio check disclosed that the car he was driving was stolen, arrested him and his companion on that charge. A series of police searches, the legality of which is not here questioned, revealed various articles of contraband in and about the vehicle. Thus a narcotics injection kit was found on the floor under the seat in which Riggiola was sitting; a small coin purse containing several balloons of heroin was found lying on the front seat midway between the passenger's and driver's side; and 21 amphetamine tablets were found in a Pall Mall cigarette package hidden behind the dashboard. In addition, an attache case belonging to defendant was lying on the back seat; according to police testimony the case was found to contain, among other items, two unopened packets of balloons.

In a statement to the police after her arrest Riggiola said the narcotics found in the car were not hers but defendant's, that she was an addict, and that defendant supplied all the narcotics she used. As the principal witness for the prosecution at defendant's trial, Riggiola subsequently testified that she and defendant had lived together during the week before the arrest. They met in Los Angeles, traveled to Oakland and San Francisco, and were returning to Los Angeles when they were stopped. During this trip she gave defendant money which she earned from prostitution, and he supplied her with heroin. She first saw the coin purse containing the heroin in defendant's hotel room in Los Angeles, and thereafter saw it in his possession several times on the trip. She described how defendant prepared the heroin and put it into balloons and how he helped administer the narcotic to her.

Defendant took the stand in his own behalf. His counsel limited his entire direct examination to the following few questions and answers:

'BY MR. VIERRA: Q. Would you state your name, please, sir? A. Earl Taylor.

'Q. Mr. Taylor, you are the defendant in this action, are you not? A. Yes, I am.

'Q. Mr. Taylor, I will show you a little coin purse marked People's Exhibit No. '1'. Is that your purse? A. No, that's not my purse.

'Q. Mr. Taylor, this purse contains heroin. Does the heroin in that purse belong to you? A. No, sir.

'Q. Mr. Taylor, have you ever possessed this purse, People's Exhibit No. '1'? A. No, sir.

'Q. Mr. Taylor, I will show you a Marlboro, excuse me, Pall Mall package, People's Exhibit No. '3'. Does that belong to you? A. No, sir.

'Q. Do any of the contents of that package that (sic) belong to you? A. No.

'Q. Have you ever seen that before today? A. No.

'Q. Have you ever seen that? A. Yes, wait. I did see it. I seen it at the preliminary wrapped in that manner, and I also seen it during the mistrial. I seen it twice prior before then. Each time in the courtroom.

'Q. You also saw the little purse? A. I also saw the little purse, also.

'Q. Do any of the other contents in the purse belong to you? A. No, sir.

'MR. VIERRA: No further questions.'

Over repeated but unsuccessful objections that the questioning exceeded the scope of the direct examination, the prosecutor was permitted to conduct an elaborate cross-examination. Thus he asked whether defendant had previously seen the two packets of unused balloons which the police testified they found in the attache case. Defendant replied in the negative. The prosecutor then asked whether defendant had ever seen 'any' balloons before. Not surprisingly, defendant said he had. Broadening the inquiry, the prosecutor asked, 'Have you ever seen narcotics before?' Explaining that he had been raised 'in the lower-class section of the town,' defendant said he had seen marijuana cigarettes and pills called 'red devils.' The prosecutor then asked defendant if he had ever seen heroin before. Defendant replied he had seen the rubber bags in which it is packaged, but had not seen their contents. Pressing still further, the prosecutor inquired, 'did you ever have in your possession a balloon containing heroin in your life?' Defendant answered, 'No, not to my knowing.' Finally the prosecutor asked, 'Were you ever arrested with a balloon of heroin in your possession?'

At this point defense counsel invoked the decisions of the United States Supreme Court in Agnello v. United States (1925) 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, and Walder v. United States (1954) 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503, which we discuss in detail below. After a lengthy hearing in chambers, the court ruled that the prosecutor's inquiry was not barred by Agnello and Walder. In response to the pending question, defendant then conceded that in Los Angeles sometime earlier a police officer 'stopped me on a corner and searched me and my pockets and he went in my pocket and he jerked his hand out of the pocket and came up with a little piece of balloon in his hand and he asked me did I ever see that before.' Defendant testified he had not put the balloon into his pocket, thus permitting the inference that it was the officer who had done so.

To rebut this inference the prosecutor called Police Sergeant Luther McCormick, who had witnessed the prior search of defendant. He testified that the police first observed the defendant at 5:45 a.m. traversing an intersection in the crosswalk. His Gait was slow and deliberate, with a slight stagger, and he appeared to be 'under the influence of something.' Defendant was stopped and patted down 'solely for weapons.' In the course of that patdown, the investigating officer reached into defendant's shirt pocket and removed the balloon of heroin. Defense counsel objected on the ground the search was illegal under Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Sibron v. New York (1968) 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917. The prosecutor conceded the illegality of the search, but asked that the evidence nevertheless be admitted for the purpose of impeachment. The trial court so ruled, and the witness was permitted to testify that he had seen nothing in the officer's hand as it was thrust into defendant's pocket and that the balloon taken therefrom contained heroin.

The court subsequently instructed the jury that Sergeant McCormick's testimony was not admitted to prove the truth of the matters asserted therein, but to impeach defendant's credibility as a witness.

To begin with, it is not disputed that on the showing here made by the People the prior search of defendant in Los Angeles must be deemed to have violated both the state and federal constitutional prohibitions against unreasonable searches and seizures. (Cal.Const., art. I, § 19; U.S. Const., 4th and 14th Amends.) The search was illegal in its inception: the mere fact that defendant was observed apparently 'under the influence of something' while lawfully crossing a street at an early hour did not give the police reasonable grounds to believe he was 'armed and dangerous' within the meaning of Terry v. Ohio (1968) supra, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Sibron v. New York (1968) supra, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917. The search was also illegal in its scope: it is settled that feeling a soft object in a suspect's shirt pocket during the course of a pat-down search for weapons does not justify further police intrusion into that pocket for any purpose of self-protection. (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 154, 98 Cal.Rptr. 649, 491 P.2d 1; People v. Collins (1970) 1 Cal.3d 658, 662--663, 83 Cal.Rptr. 179, 463 P.2d 403; People v. Mosher (1969) 1 Cal.3d 379, 394, 82 Cal.Rptr. 379, 461 P.2d 659.) We have seen that at trial the prosecution conceded the illegality of the prior search of defendant, and the People do not contend otherwise on appeal.

Thus the controlling question is what use, if any, the prosecution could lawfully make of the evidence obtained by means of that unconstitutional search. By virtue of the exclusionary rule, of course, the People could not introduce the evidence as part of their case in chief in any criminal prosecution of defendant. (People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905; Mapp v. Ohio (1961) 367 U.S. 643.) We recently reiterated that the twofold purpose of this rule is 'to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in such illegal conduct.' (Fns. omitted.) (Kaplan v. Superior Court (1971) supra, 6 Cal.3d 150, 155--156, 98 Cal.Rptr. 649, 651, 491 P.2d 1, 4.) Those goals would be ill served indeed if the People were permitted to do indirectly that which they are forbidden to do directly, and the courts have therefore been vigilant to prevent such circumventions. One device which has...