Wilson v. Superior Court

Decision Date20 October 1983
Citation670 P.2d 325,195 Cal.Rptr. 671,34 Cal.3d 777
CourtCalifornia Supreme Court
Parties, 670 P.2d 325 Clerow WILSON, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 31668.

Paul F. Moore, II, Los Angeles, and Thomas P. Allen, III, Redondo Beach, for petitioner.

Quin Denver, State Public Defender, Charles M. Sevilla, Chief Deputy State Public Defender, Kenneth M. Wells, Public Defender, Everett J. Avila, Asst. Public Defender, Sacramento, James J. Brosnahan, Christine Hall, San Francisco, Karen Snell, Oakland, Doron Weinberg, Timothy Brosnan, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, San Francisco, and Fred Okrand, Los Angeles, amici curiae for petitioner.

No appearance for respondent.

Robert H. Philibosian and John K. Van de Kamp, Dist. Attys., Harry B. Sondheim, Donald J. Kaplan, Richard W. Gerry, Suzanne Person and Roderick W. Leonard, Deputy Dist. Attys., for real party in interest.

John K. Van de Kamp and George Deukmejian, Attys. Gen., Daniel J. Kremer and Robert H. Philibosian, Chief Asst. Attys. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., Shunji Asari, Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen. and Christopher N. Heard, San Jose, amici curiae for real party in interest.

KAUS, Justice.

In this writ proceeding, Clerow (Flip) Wilson seeks review of a trial court ruling which denied his motion to suppress evidence obtained as a result of police activity at the Los Angeles International Airport. (Pen.Code, § 1538.5, subd. (i).) Wilson contends that the police conduct in question violated the search and seizure provisions of both the federal and state Constitutions and that the evidence should therefore be excluded from his impending trial. In response, the People maintain (1) that the police action was proper under both federal and state standards and (2) that even if the conduct violated state search and seizure principles, the evidence may not be excluded on that basis in light of article 1, section 28, subdivision (d) of the California Constitution, the so-called "Truth-in-Evidence" provision enacted as part of an initiative measure--Proposition 8--adopted at the June 1982 election.

As explained, we conclude that the evidence at issue was obtained in violation of the federal Constitution and must be suppressed on that basis. Accordingly, we need not reach the other issues raised by the parties.

I

At the hearing on the motion to suppress, the arresting officer, Detective Roi Kaiser, and Wilson each testified to the events leading up to the discovery of the challenged evidence. Although the two agreed on a number of general facts surrounding the discovery, their testimony conflicted sharply with respect to many important details. Since the trial court resolved this matter in favor of the prosecution, for purposes of this proceeding we view the record in the light most favorable to the People's position. In the interest of completeness, however, we note the main points of conflict shown by the record.

At the time of the events in question--March 10, 1981--Detective Kaiser, a Los Angeles police officer, had been working as an undercover narcotics agent at the Los Angeles International Airport for four and a half years, monitoring inbound flights from Florida in an attempt to discover persons transporting narcotics into California. Kaiser testified that about 11:30 a.m. on that day, he and his partner, Deputy Gary Frederick--who was also in plain clothes--went to the Pan American Airlines arrival area to monitor the arrival of a flight from Miami. As the passengers left the plane and entered the terminal, Kaiser saw Wilson with another man, later identified as Wilson's nephew, Rashon. Kaiser testified that he was not expecting to see Wilson arrive on that flight, but that he recognized him from his television appearances. Wilson was carrying an attache case and Rashon was carrying a box bearing the name "Flip Wilson." Kaiser testified that he noticed nothing unusual about these items.

As Kaiser watched, both Wilson and Rashon looked around the waiting area. Kaiser stated that at this time he observed nothing unusual about Wilson, but that Rashon made "eye contact" with him on two occasions, an occurrence which was consistent with the behavior of persons he had arrested in the past for transporting narcotics. Although acknowledging that Rashon could have simply been looking for someone who was meeting the plane, Kaiser testified that it did not appear that way to him. He conceded, however, that he could not articulate any objective basis for differentiating the "eye contact" of drug couriers from that of other persons.

As Wilson and Rashon walked at a normal pace from the arrival area down a concourse to the street, Kaiser followed about 10 feet behind. Midway down the 200-foot concourse, Rashon turned his head back in Kaiser's general direction and immediately turned back to speak to Wilson, who then also turned his head back in the general direction of Kaiser. Neither man made eye contact with Kaiser at this time.

At the end of the concourse, Wilson and Rashon were met by Wilson's wife and all three walked outside to Wilson's car which was parked at the curb. Rashon handed the box he was carrying to Wilson, who put it and the attache case in the rear seat of the passenger compartment. Rashon then went to the baggage claim area to retrieve their luggage.

A few minutes later, as Rashon left the baggage claim area with two pieces of luggage, Kaiser and Frederick approached him. Frederick identified himself as a police officer and had a brief conversation with Rashon which Kaiser apparently did not overhear.

Kaiser then approached Wilson, who--according to Kaiser--was then standing at the open trunk of the car. 1 Kaiser testified that at that point he "had a slight suspicion" that Wilson "possibly" was involved in criminal activity, and that his purpose in speaking to Wilson was to request permission to search his luggage. Kaiser stated that as he reached Wilson, he displayed his police identification, told him that he was a police officer and asked if he "might have a minute of his time." When Wilson responded, "Sure," Kaiser testified that "I advised Mr. Wilson that I was conducting a narcotics investigation, and that we had received information that he would be arriving today from Florida carrying a lot of drugs." (Emphasis added.) 2

On cross-examination, Kaiser disclosed that he had obtained the information to which he referred from his partner, Frederick, who, in turn, had learned of it from another person. On defense counsel's motion, the court ruled that if the People intended to rely on such information to justify the officer's actions, Frederick would be required to testify as to the nature and source of the information. (See, e.g., People v. Madden (1970) 2 Cal.3d 1017, 1021, 88 Cal.Rptr. 171, 471 P.2d 971; Remers v. Superior Court (1970) 2 Cal.3d 659, 666-667, 87 Cal.Rptr. 202, 470 P.2d 11; People v. Harvey (1958) 156 Cal.App.2d 516, 523-524, 319 P.2d 689 (conc. opn. of Dooling, J. and Draper, J.).) When the People indicated that they did not intend to call Frederick as a witness, the court held that the prosecution could not rely on such information to support the validity of the police conduct. The People have not challenged that ruling in this proceeding. 3

After having told Wilson that he had information that Wilson was carrying "a lot of drugs," Kaiser asked if he could search the two pieces of luggage that Rashon had just set on the curb and the box which had been placed inside the car. Wilson allegedly responded, "Sure, I don't have any drugs that I know of. Go ahead and search." 4 When Kaiser went to the rear passenger seat, he saw the attache case and asked Wilson for permission to search it. Kaiser testified that Wilson then said: "There should only be some papers in there, but you can go ahead and look, if you'd like." 5

Wilson then placed the case on the rear seat and opened it. Kaiser searched through the case and retrieved a glass vial from a pocket on the inside of the lid of the case. At that point, Wilson allegedly stated: "That's just a little bit of hash oil in there."

After examining the bottle and concluding that it did contain hash oil, Kaiser asked Wilson "if he would mind accompanying me back to the narcotics office situated at the airport ...." Kaiser testified that at that point Wilson was actually under arrest, although Kaiser had not so informed him. Wilson asked if they could drive to the office in his car so he could remove it from the street, and Kaiser agreed. At the office, Kaiser continued his search of the luggage and found another small glass vial, containing a substance resembling cocaine, inside an eyeglass case in another pocket of the attache case. Wilson was then formally placed under arrest and taken into custody.

At the conclusion of the suppression hearing, defense counsel argued that Wilson's testimony indicated that he had not voluntarily consented to the search as Kaiser claimed, but that even if Kaiser's version of the events was accepted in full, the evidence should still be suppressed because Kaiser's testimony itself established that Wilson had been detained without adequate justification when the claimed consent was given. Defense counsel relied on both federal and state authorities to support his illegal detention claim, though he emphasized the more recent state precedents. In denying the motion, the trial court stated: "The court is of the view, that, one, this was not a detention; that the information--conduct of the officer was sufficient to justify the approach of a citizen on the street in asking to talk to him with the subsequent items that developed. [p] Now, it may be that the court has the wrong view of the law in respect to that; but my reading of Tony C. [...

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