People v. Swearingen

84 Cal. App. 3d 570, 148 Cal. Rptr. 755, 1978 Cal. App. LEXIS 1898

• Court: California Court of Appeal
• Decided: September 5, 1978
• Docket: Crim. 32245
• Status: Published

Opinions

Opinion

THOMIPSON, J.

After his motion to suppress evidence pursuant to Penal.Code section 1538.5 was denied, defendant, Christopher Michael Swearingen, pled guilty to possession of hashish for sale. In this appeal, he challenges the trial court order denying his motion to suppress. Swearingen contends that at the hearing on the motion, the trial court erroneously denied his claim that because the police and prosecution had failed to comply with the obligation to preserve material evidence imposed upon them by People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361], testimony establishing probable cause to search was inadmissible.

We conclude: (1) physical evidence lost or destroyed by the police after Swearingen’s arrest bears directly upon a conflict between testimony of the police and Swearingen on the crucial point going to probable cause to search; and (2) the prosecution failed to sustain its burden of demonstrating that the police agency had established, enforced, and attempted in good faith to adhere to systematic procedures designed to preserve the evidence. Accordingly, we conclude that the trial court erred in considering the prosecution testimony describing the relevant detail of the missing physical evidence and reverse the judgment.

On the afternoon of March 23, 1977, Los Angeles Police Officers Boissier and Metz saw Swearingen driving in a van without a front license plate. They stopped the van in order to issue its driver a citation for lack of the plate and to determine if the van was stolen. Swearingen walked from the van toward the officers. He produced a registration form and turned his back toward the officers as he searched in his wallet before producing a driver’s license.

Boissier walked to the passenger side of the van. There he saw lying on the floor of the van what he testified to be a transparent vial in which he could see marijuana. Based on his purported observation, Boissier entered the van where he discovered a substantial quantity of marijuana in a felt bag under the driver’s seat, more of the substance in a pea coat, and still more marijuana in a closed box in the rear of the vehicle. The discovery of the marijuana led to Swearingen’s arrest, his confession to possession of the marijuana after a Miranda warning, and Swearingen’s consent to search his apartment. That subsequent search disclosed the hashish which Swearingen was convicted of possessing together with other contraband.

Swearingen’s testimony refuted that of Boissier. Swearingen testified that the vial in the van was opaque rather than transparent so that its content could not be seen unless the vial were held up to the light

Swearingen’s motion to suppress was combined with a “Hitch” motion. Boissier acknowledged that when Swearingen was arrested and booked, Boissier realized the evidentiary significance of the vial. Boissier intended to preserve it. The content of the vial was removed for chemical analysis and the vial was placed in a box with other evidence in the case which was not contraband. The box was then placed in the police station’s property room, apparently a caged area. When the time came for Swearingen’s preliminary hearing, the vial and the felt bag in which other marijuana was found in the van could not be located although the other evidence that had been placed in the box was still in it. The vial was never found. The prosecution produced no evidence concerning procedures employed to preserve evidence in the property room or what in fact had been done to preserve the vial.

In People v. Hitch, supra, 12 Cal.3d 641, our Supreme Court adopted a rule of preservation of evidence previously enunciated by the Court of Appeals for the District of Columbia in United States v. Bryant (1971) 439 F.2d 642. It held that where discoverable evidence “cannot be disclosed because of its intentional but nonmalicious destruction by the investigative officials, sanctions shall ... be imposed for such nonpreservation and nondisclosure unless the prosecution can show that the governmental agencies involved have established, enforced and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve [the missing evidence]. The prosecution shall bear the burden of demonstrating that such duty to preserve the [evidence] has been fulfilled. ... If the prosecution fails to meet its burden then the court shall apply sanctions for nondisclosure.” (People v. Hitch, supra, 12 Cal.3d at pp. 652-653.) The court concludes that the sanction shall not be dismissal of the criminal charge but rather exclusion of evidence.

Here the prosecution failed in its burden of showing that the police agency had established, enforced, and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve physical evidence. Hitch thus required the trial court to impose the sanction of barring testimony relating to the nature of the vial which the presence of the vial in court could have rebutted. The trial court erred in not granting Swearingen’s “Hitch” motion to that end.

The error is prejudicial. Boissier’s purported observation of marijuana within the vial is the crucial element in the validity of the search of the van and Swearingen’s consequent confession and consent to search his apartment. If Boissier in fact could see the marijuana within the vial from a point outside the van, the subsequent search of the vehicle and all police activity which followed was valid. If, however, the vial was opaque so that its content could not be viewed from outside the van, the search of the vehicle was invalid and the subsequent confession and consent to search the apartment were the tainted product of an illegal arrest.

The Attorney General argues that Hitch is applicable only when there has been an intentional destruction of evidence by the police and not negligent loss of evidence. The argument fails for two reasons. On the law, the Hitch rule exists to guarantee a defendant a fair trial through the preservation of evidence and not to punish police conduct. A fair trial is no less denied by negligent loss of evidence than it is by nonmalicious destruction. On the facts, the prosecution, which had the burden of establishing what happened to the evidence, did not show that it had not been destroyed rather than merely lost.

The Attorney General also argues that a plethora of evidence other than the content of the vial supports Swearingen’s guilt. The argument ignores the proposition that this appeal is from a conviction based upon a plea of guilty after a 1538.5 motion was denied, and the fact that all the other evidence is the tainted product of an illegal arrest if the motion should have been granted. (See People v. Hill (1974) 12 Cal.3d 731, 767-768 [117 Cal.Rptr. 393, 528 P.2d 1], disapproved on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5 [135 Cal.Rptr. 786, 558 P.2d 872].)

The judgment (order granting probation) is reversed. The matter is remanded to the trial court for further proceedings on defendant’s motion to suppress and Hitch motion, and for retrial if the motion to suppress is denied.

Lillie, Acting P. J., concurred.