Lockridge v. Superior Court

474 P.2d 683, 3 Cal. 3d 166, 89 Cal. Rptr. 731, 1970 Cal. LEXIS 198

• Court: California Supreme Court
• Decided: September 29, 1970
• Docket: L.A. 29729
• Status: Published

Opinions

Opinion

WRIGHT, C. J.

Petitioners seek a writ of mandate to compel the Superior Court of Los Angeles County to grant their motion pursuant to section 1538.5 of the Penal Code to suppress testimony as “fruit” of an illegal search.

At the hearing on petitioners’ motion, the People and petitioners stipulated to the following facts: “That a gun was recovered pursuant to a search warrant in October 1967, that the serial number of the gun led the police to the sheriff’s arrest report at the Lennox sheriff’s station which contained the signed statements of the victims of a robbery which had taken place in March of 1965; that as a result of finding that sheriff’s report the police interviewed the said robbery victims [Mr. and Mrs. Pesce] and showed the victims photographs including the photograph of each defendant and at that time the robbery victims identified the photographs of the defendants as being photographs of the perpetrators of the robbery and that robbery charges were thereafter filed against the defendants and that a preliminary hearing regarding those robbery charges was had after the robbery victims made a courtroom identification of the defendants. Further, the People stipulate that the search warrant was held by the court [in a prior proceeding (see Lockridge v. Superior Court (1969) 275 Cal. App.2d 612 [80 Cal.Rptr. 223])] to be legally insufficient and therefore the gun in question had been seized pursuant to an illegal search and seizure.”

Deputy Sheriff Pia testified that the Pesce robbery had been investigated in March 1965. In August 1965 the case had been removed from the current or active files, designated “inactive”¹ and placed in the inactive files, where it would remain unless new facts were found which reactivated the case. There had been no active investigation in this case for over two years until the Los Angeles Police Department contacted Deputy Sheriff Pia and informed him that the department had two suspects in custody who might have committed the crime.

Petitioners contend that but for the illegal search and seizure the police would not have connected them with the Pesce robbery and that the testimony of the victims is, therefore, the product of the illegal search and seizure.

At the outset this court is faced with a procedural question. Although the People originally raised the question at the hearing before the superior court, apparently both the People and petitioners now assume that Penal Code section 1538.5 affords the proper procedure by which to determine the admissibility of the Pesces’ testimony. Section 1538.5, subdivision (a) provides in part: “A defendant may move ... to suppress as evidence any tangible or intangible thing obtained as a result of” an illegal search or seizure. When testimonial evidence is obtained as a result of an illegal search it is “intangible” evidence within the meaning of this provision. (See People v. Superior Court (1969) 70 Cal.2d 123, 128 [74 Cal.Rptr. 294, 449 P.2d 230]; People v. Coyle (1969) 2 Cal.App.3d 60, 64 [83 Cal.Rptr. 924] (tape recording); People v. Superior Court (1970) 3 Cal.App.3d 476, 483 [83 Cal.Rptr. 771] (confession).) Accordingly, petitioners may properly seek to suppress the Pesces’ testimony in this proceeding.

In the present case the illegally seized tangible evidence has been suppressed, but “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 in the way proposed.” (Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385, 392 [64 L.Ed. 319, 321, 40 S.Ct. 182, 24 A.L.R. 1426]; Wong Sun v. United States (1963) 371 U.S. 471, 485 [9 L.Ed.2d 441, 453, 83 S.Ct. 407].)

In determining when knowledge is deemed to be gained by the government’s own wrong, the court in Wong Sun stated: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the 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. at pp. 487-488 [9 L.Ed.2d at p. 455].)

In accord with the foregoing principles, this court has consistently held that the testimony of a witness who was discovered by the exploitation of illegal police conduct is not admissible. (People v. Quicke (1969) 71 Cal.2d 502, 521-522 [78 Cal.Rptr. 683, 455 P.2d 787]; People v. Mickelson (1963) 59 Cal.2d 448, 449-450 [30 Cal.Rptr. 18, 380 P.2d 658]; People v. Schaumloffel (1959) 53 Cal.2d 96, 100-103 [346 P.2d 393]; Accord, Williams v. United States (5th Cir. 1967) 382 F.2d 48; United States v. Tane (2d Cir. 1964) 329 F.2d 848, 853; People v. Martin (1942) 382 Ill. 192, 200 [46 N.E.2d 997, 1002]; People v. Albea (1954) 2 Ill.2d 317, 322 [118 N.E.2d 277, 41 A.L.R.2d 895]; McLindon v. United States (1964) 329 F.2d 238, 241 [117 App.D.C. 283]; Contra, Smith v. United States (1963) 324 F.2d 879, 881 [117 App.D.C. 1]; see also, Note (1955) 30 N.Y.U.L.Rev. 1121.) If, however, a witness becomes known to the police by means independent of the illegal conduct his testimony is admissible. (See People v. Stoner (1967) 65 Cal.2d 595, 602 [55 Cal.Rptr. 897, 422 P.2d 585]; State v. O’Bremski (1968) 70 Wn.2d 425, 428-430 [423 P.2d 530] (police knew existence and identity of witness and were in fact searching for her when they illegally entered the defendant’s apartment and found her).) Moreover, even if the witness was discovered as a result of illegal police conduct, his testimony is admissible if he would have been discovered in the normal course of a lawfully conducted investigation. (People v. Ditson (1962) 57 Cal.2d 415, 443-444 [20 Cal.Rptr. 165, 369 P.2d 714]; Wayne v. United States (1963) 318 F.2d 205, 209 [115 App.D.C. 234]; Somer v. United States (2d Cir. 1943) 138 F.2d 790, 792; cf. People v. Stoner, supra, 65 Cal.2d 595, 602-603, fn. 3, see also R. Maguire, How to Unpoison the Fruit, the Fourth Amendment and the Exclusionary Rule (1964) 55 J. Crim. L., C. & P.S. 307, 314-317.)

In the present case, the Pesces became available as witnesses against petitioners as a result of the Pesces’ and petitioners’ connection with the illegally seized gun. Moreover, there is no evidence that without the lead supplied by the gun, the police investigation of petitioners would have led them to the robbery report or suggested to them that petitioners might be guilty of the Pesce robbery. Nevertheless, we do not believe that the police connection of petitioners to the Pesce robbery through the illegal discovery of the gun is sufficient to characterize the Pesces’ testimony as “come at by exploitation of that illegality.” (Wong Sun v. United States, supra, 371 U.S. 471, 488 [9 L.Ed.2d 441, 455].)

The Pesces were already known to the police as the victims of an unsolved robbery. Their gun was found as the result of a search conducted pursuant to a search warrant which was subsequently determined to be legally insufficient and was made during the course of a police investigation of totally unrelated crimes. That search was not directed toward the discovery of witnesses such as the Pesces. (Cf. People v. Schaumloffel, supra, 53 Cal.2d 96, 100-103.) It did not result in the discovery of witnesses at its scene who would otherwise never have been known to the police. (Cf. People v. Mickelson, supra, 59 Cal.2d 448, 449-450.) It did not lead to the Pesces as the source of further evidence of the crimes the police were investigating. (Cf. People v. Quicke, supra, 71 Cal.2d 502, 521-522.) Instead, it was pure happenstance that during an investigation of other crimes, the police came across the gun taken in the Pesce robbery. The purpose of the exclusionary rule is to deter unlawful police conduct. (Mapp v. Ohio (1961) 367 U.S. 643, 651-653 [6 L.Ed.2d 1081, 1087-1088, 81 S.Ct. 1684]; Linkletter v. Walker (1965) 381 U.S. 618, 636 [14 L.Ed.2d 601, 612 [85 S.Ct. 1731]; People v. Cahan (1955) 44 Cal.2d 434, 447-450 [282 P.2d 905, 50 A.L.R.2d 513].) In the present case, that purpose was adequately served by suppressing the gun and the evidence of the other crimes that the police were seeking. That purpose would not be further advanced by suppressing the testimony of the known victims of the Pesce robbery; testimony that unquestionably would have been admissible to establish petitioners’ guilt of that crime, but for the chance disclosure of their connection therewith during a wholly unrelated police investigation.

The alternative writ heretofore issued is discharged. The petition for a peremptory writ of mandate is denied.

McComb, J., Mosk, J., and Burke, J., concurred.

1 A case is designated “inactive” when all pertinent points have been thoroughly investigated.