Shuey v. Superior Court

COLE, J.,^* Dissenting.

The effect of the majority decision is to extend the exclusionary rule to a situation where neither the reason for the rule nor the facts of the case call for its application.

Some basic propositions should be kept in mind: As the majority recognizes, the purpose given for the rule requiring exclusion of illegally obtained evidence is that such a rule will act to deter unlawful police conduct. (Mapp v. Ohio, 367 U.S. 643, 651-653 [6 L.Ed.2d 1081, 1087-1089, 81 S.Ct. 1684]; Lockridge v. Superior Court, 3 Cal.3d 166, 171 [89 Cal.Rptr. 731, 474 P.2d 683].) Peace officers are to be encouraged to comply with the Fourth Amendment and to secure warrants rather than to proceed without the interposition of a detached and neutral magistrate. In this case the officers involved attempted to, and in fact did, secure a warrant whose validity is unchallenged here. They were trying to comply in a manner they thought to be constitutionally permissible. They were doing so in a factual context never before adjudicated. (Barajas v. Superior Court, 10 Cal.App.3d 185, 189-190 [88 Cal.Rptr. 730].) When the officers in this case acted as they did they had no reason to assume that their acts would subsequently be found to be improper.

Conceding the impropriety of the officers’ presence in petitioners’ house while the search warrant was being secured—a concession made necessary because the risk that petitioners would refuse to consent to a search is inherent in asking for that consent and because no emergency or other circumstance justified an arrest at the time of entry—does not mean that the evidence recovered in the search which followed the procurement of the warrant should be suppressed.

It is my view that there simply is no causal relation as a matter of law. between the illegal entry and the legal search. I would hold that as a matter of law there is no “taint” to the evidence.

I am unable to distinguish the facts of this case from the principle enunciated in Krauss v. Superior Court, 5 Cal.3d 418 [96 Cal.Rptr. 455, 487 P.2d 1023]. In Krauss a motel employee, while lawfully performing her duties in cleaning Krauss’ motel room, discovered what she believed to be marijuana. She advised her manager who inspected the items and a police officer was then called. He entered the room to see for himself and then left. This entry was held to be illegal. Paralleling the facts of this case, the officer in Krauss went to a magistrate, and without telling him of his own illegal entry, recited the facts of the motel personnel’s discovery. A search warrant was issued and the officer reentered the room, seized the evidence and arrested Krauss, who by that time had returned to his room. The Supreme Court refused to suppress the evidence. It said: "Before that entry Sergeant Guevara had lawfully acquired information from the motel employees that was sufficient to support the issuance of a search warrant. It was unlawful for him to use that information to obtain the warrant. The magistrate’s independent decision to issue the warrant was in no way tainted by the officer’s illegal personal observations, for the magistrate was wholly unaware of such observations. Although those observations may have contributed to Officer Guevara's decision to secure the warrant, he did not thereby exploit them within the meaning of Wong Sun [371 U.S. 471 (9 L.Ed.2d 441, 83 S.Ct. 407)]. Thus in Mann v. Superior Court (1970) 3 Cal.3d 1, 7 [88 Cal.Rptr. 380, 472 P.2d 468], we held that an occupant’s subsequent consent to an entry motivated by an asserted prior illegal observation dispelled any taint flowing from that observation. Similarly the magistrate’s independent evaluation of Officer Guevara’s affidavit dispelled any taint flowing from his original entry. To hold otherwise would go beyond excluding evidence unlawfully obtained and in effect grant petitioner immunity from prosecution because of the officer’s collateral wrong.” (Krauss v. Superior Court, supra, 5 Cal.3d 418, 422-423.)

It is suggested that the distinction between Krauss and the case at bench is that in the former there was no danger that the contraband would be destroyed because Krauss did not know it had been discovered, while here petitioner Paul Shuey, at the least, was in a position where, if the officers left, he would be able to destroy the contraband and thwart the later search. That is a likely possibility. It is not a fact of such ponderable legal significance as to warrant suppression of the evidence.

A simple illustration establishes this: if the officers who were detaining Shuey tired of their task and departed before the other officer returned with the warrant and successfully executed it, it could not be argued that the detention played a role in the seizure of the contraband. The detention would have been just as illegal as the one which actually occurred. But the validity of the search, pursuant to a valid warrant, would not be tainted or in any way affected by the detention. This would be so whether the contraband was not destroyed because petitioners lacked the time to do so, because they thought it to be securely hidden or so valuable that they preferred to run the risk of discovery, or because of some other reason.¹

No purpose of the exclusionary rule is served in these circumstances. In sending for a warrant the officers involved in this case were already trying to comply with constitutional commands, not to- thwart them.

In his dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411 [29 L.Ed.2d 619, 635, 91 S.Ct. 1999], Chief Justice Burger points out that the suppression doctrine should not be enforced inflexibly, rigidly, and mechanically, that inadvertent errors of judgment which do not work any grave injustice should not be treated in the same way as deliberate flagrant violations of the Fourth Amendment, and that society has a “right to expect rationally graded responses” in the application of the exclusionary rule. (403 U.S. 388, at pp. 418-420 [29 L.Ed.2d 619, at pp. 639-641].)

This would appear to me to be particularly true where, as here, “the magistrate’s independent evaluation of [the search warrant] affidavit dispelled any taint flowing from [the] original entry.” (Krauss v. Superior Court, supra, 5 Cal.3d 418, 423.)

If it is suggested that admission of the evidence in this case will lead to future illegal peace officer conduct in securing other premises while a warrant is being secured, it seems to me the answer is two-fold:

First, while the ineffectiveness of the exclusionary rule as a tool to prevent Fourth Amendment violations has been the subject of much comment (see e.g., Burger, C. J., dissenting, Bivens v. Six Unknown Fed. Narcotics Agents, supra, 403 U.S. 388, 411 [29 L.Ed.2d 619, 635]; People v. Cahan, 44 Cal.2d 434, 444-445 [282 P.2d 905, 50 A.L.R.2d 513]; (majority opn. of Traynor, J.)), it should not be assumed that, being advised that certain conduct is impermissible, peace officers will continue nonetheless to ignore the commands of the Fourth Amendment. Given a clear understanding of just what the law is I assume, rather, that peace officers will abide by it because they recognize the dictates of the law.

Thus, in this case, the officers—who obviously had enough time to do so—might well have chosen to procure the warrant first rather than trying to obtain Shuey’s consent to a search had they known they could not lawfully secure his house when, consent was refused.

Second, if the problem must be approached in terms of deterrence of improper conduct, Congress has created a federal cause of action against state officials who act improperly under color of state law (42 U.S.C. § 1983), and the Legislature could easily create its own remedy.

I would deny the writ.²

A petition for a rehearing was denied March 2, 1973. Cole, J.,^* was of the opinion that the petition should be granted. The petition of the real party in interest for a hearing by the Supreme Court was denied April 12, 1973. McComb, J., Burke, J., and Clark, J., were of the opinion that the petition should be granted.

* Assigned by the Chairman of the Judicial Council.

1 It is stultifying to suggest that a causal link between illegal detention and seizure under the warrant exists because petitioner Paul Shuey was deprived of the opportunity to destroy the marijuana and amphetamines.

2 Of course I completely agree that if a writ has to be granted the trial court should be free, as the majority indicates, to determine whether there was any connection between the officers’ unlawful presence in petitioners’ home and the later search.

* Assigned by the Chairman of the Judicial Council.