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Court of Appeal, Second District, Division 5, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Alfred Rudyard MOORE, Defendant and Appellant.

Cr. 13172.

Decided: April 23, 1968

Julius L. Rubinstein, Los Angeles, under appointment by Court of Appeal, for appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., James H. Kline, Deputy Atty. Gen., for respondent.

At 10:00 a.m. on October 10, 1966, Officer Robinson of the Los Angeles Police Department ‘invited’ defendant into his car. Defendant had been in a telephone booth at an intersection frequented by narcotic addicts and when he saw the officer he turned his back toward him and appeared to be talking into the telephone. To the officer he appeared ‘nervous.’ He said he had used narcotics in the past.

In the car the officer asked defendant whether he could look at his arms. Defendant said he did not mind and removed his coat. The officer then saw twenty scabs on defendant's left arm which indicated to him that defendant was a narcotic user. He placed him under arrest for possession of heroin.

Apparently no heroin was found on defeńdant because he was never prosecuted on a criminal charge. Instead the police proceeded under section 3100.6 of the Welfare and Institutions Code. Eventually defendant was committed to the California Rehabilitation Center at Corona. In the superior court both parties and the court assumed that in a ‘civil’ commitment proceeding under section 3100 et seq. of the Welfare and Institutions Code illegally obtained evidence is inadmissible. Both Officer Robinson and defendant testified at length concerning the circumstances preceding his arrest. On the question whether or not defendant freely and voluntarily consented to the inspection of his arm, the court ruled that defendant's own evidence concerning his state of mind was inadmissible.1

If illegally obtained evidence is not admissible in proceedings designed to commit a person as a narcotic addict, this ruling was error.2

‘Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.’ (People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852.)

In Castaneda v. Superior Court, 59 Cal.2d 439, 442–443, 30 Cal.Rptr. 1, 3, 380 P.2d 641, 643, it was held that attempts to mislead officers away from his home made it ‘abundantly clear that petitioner did not freely and voluntarily consent to the search of his home.’ In People v. Shelton, 60 Cal.2d 740, 745, 36 Cal.Rptr. 433, 388 P.2d 665, Shelton had said: ‘All right, go ahead,’ when it was suggested to him that he accompany officers to his apartment for a search. At the apartment door he refused to assist the officers in effecting the entry. This was held to establish ‘that his apparent consent was not voluntarily given.'3

On the question of whether or not consent is free and voluntary the defendant's state of mind is the ultimate fact. His words and acts are merely evidentiary. Who knows better than the defendant whether he consented to a search because he thought it was his civic duty to do so or because he felt that if he did not, the police would search anyway? To be sure, the defendant has every motive to lie, but what we are discussing is admissibility, not credibility.

If illegally obtained evidence was inadmissible below, the question of consent was vital, since it is obvious that without the evidence of the scabs on defendant's arms the officers did not have probable cause to arrest the defendant and to search his person.

The question whether the exclusionary rule is applicable in narcotic commitment proceedings has been discussed in three fairly recent cases (People v. Hill, 249 Cal.App.2d 453, 457–159, 57 Cal.Rptr. 551; People v. Chacon, 253 Cal.App.2d 1056, ——*, 61 Cal.Rptr. 807; and People v. Gonzales, 256 Cal.App.2d 50, ——**, 63 Cal.Rptr. 581), decided by another division of this court. Each case implied that the rule was inapplicable. Hill and Chacon are obviously dicta, because (a) the court only talks about the legality of the arrests, not their fruits; and (b) the court found no illegality. Gonzales is harder to categorize. There the officers made an entry, which the court may or may not have thought to be illegal. They saw Gonzales covered with scabs and appearing to be suffering withdrawal symptoms. He was placed under arrest. Although, on appeal, he complained about an illegal search and seizure, that claim was dismissed by a statement that ‘there can be no such question here for the officers made neither search nor seizure. * * *’ (Italics ours.) Thus the court never considered the question whether what the officers saw after a possibly illegal entry was inadmissible because it constituted an illegal search. (Britt v. Superior Court, 58 Cal.2d 469, 473, 24 Cal.Rptr. 849, 374 P.2d 817; Bielicki v. Superior Court, 57 Cal.2d 602, 606, 21 Cal.Rptr. 552, 371 P.2d 288; cf. People v. Reeves, 61 Cal.2d 268, 272–273, 38 Cal.Rptr. 1, 391 P.2d 393; People v. Miller, 248 Cal.App.2d 731, 739, 56 Cal.Rptr. 865.)

If Gonzales were a clear holding we would feel bound to follow it, since it would be intolerable for the trial courts in the four counties comprising our district to be confronted with irreconcilable decisions. However, under the circumstances, we are free to differ. We do so for several reasons:

1. Reasonable persons may certainly differ on the wisdom of the exclusionary rule. (Cf. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, with People v. Gonzales, 20 Cal.2d 165, 124 P.2d 44.) It sacrifices much in the search for truth. Its only justification is the failure of other means to make law enforcement respect the Constitution. (Linkletter v. Walker, 381 U.S. 618, 633–635, 85 S.Ct. 1731, 14 L.Ed.2d 601; Mapp v. Ohio, 367 U.S. 643, 651–653, 81 S.Ct. 1684, 6 L.Ed.2d 1081.) Yet these considerations have been weighed and reweighed (Mapp v. Ohio, supra; People v. Cahan, supra) and even if we read the scales differently we could not translate our observations into judicial action.

2. If In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 stands for anything, it is the proposition that a person cannot be deprived of his constitutional rights simply by labeling an adversary proceeding as ‘civil’ rather than criminal. Gault commits us to a ‘right by right’ and ‘proceeding by proceeding’ analysis.4 We must, therefore, examine the reason for each right accorded to defendants in criminal cases and determine whether the reason applies with equal force in other types of proceedings. Gault was decided after People v. Hill, supra.

3. It is noted that in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d. 943, also decided after People v. Hill, supra, the Supreme Court outlawed warrantless searches for possible violations of municipal housing and fire codes. In Camara it said: ‘it is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior. * * *’ (Ibid., p. 530, 87 S.Ct. p. 1732.)

4. Although Camara and See concern themselves with criminal proceedings against persons who had refused to permit the inspections, can it be doubted that the results of illegal inspections would be inadmissible in civil proceedings seeking to abate whatever violations illegal inspections turn up? The ‘civil-criminal’ dichotomy is no more—if it ever was. Why then, if to put life into the Fourth Amendment, we put up not only with reversing the convictions of robbers (Stoner v. State of California 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856), burglars (People v. Burke, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67), abortionists (People v. Schaumloffel, 53 Cal.2d 96, 346 P.2d 393), moonshiners (Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514) and housewives who like dirty books (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081), but are also willing to stand nonconforming structures and substandard fire escapes, should we sacrifice the Constitution when it comes to drug addiction?

5. Moreover, we believe that admissibility of illegally obtained evidence in narcotic commitment proceedings positively detracts from the ‘deterrent effect of the exclusionary rule.’ (People v. Parham, 60 Cal.2d 378, 386, 33 Cal.Rptr. 497, 501, 384 P.2d 1001, 1005.) What incentive5 to obey the Fourth Amendment is there if the very day a defendant is acquitted on a charge of possession, the police officer, with the judge's tongue-lashing still ringing in his ear, can serenely file an application under section 3100.6 of the Welfare and Institutions Code and appear before the very same judge a few days later to watch defendant being shipped off to Corona? The main objective of the police is to get the addict off the street. Whether he does his time at Los Padres being punished or at Corona being cured is of secondary importance.6

6. If, in truth, the narcotic commitment procedure is selected by the police as a welcome alternative to a criminal prosecution, stillborn because of illegal police conduct, we seriously doubt whether the resulting confinement can withstand the impact of Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.

7. Hill, Chacon and Gonzales were at least cases where the police were investigating suspected criminal activities on the part of particular persons. Yet the sweep of the nonexclusionary rule announced in those cases makes such bespoke law enforcement methods an unnecessary luxury. What is there to stop the police from cordoning off a ‘high frequency narcotic area’ to search, with or without consent, for evidence of addiction in the pockets and eyes and on the arms of all persons caught in the dragnet, users and innocent bystanders alike? Nothing, but the very remedies found to be so bootless that we must abide with the exclusionary rule!

8. The Gonzales court supports its views by People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001, a case in which the Supreme Court refused to reverse, although some of the evidence admitted had been illegally obtained. In the course of its discussion the court states that the exclusionary rule is not a penalty but is ‘derived from the principle that the state must not profit from its own wrong.’ (Ibid., p. 386, 33 Cal.Rptr. p. 501, 384 P.2d p. 1005.) Using that statement as a springboard, Gonzales points out that the benefit of the commitment proceedings ‘primarily flows to the individual narcotic addict * * *’

With all respect we think that the Gonzales court mistook the Supreme Court's reference to ‘profit’ in Parham. The question there was whether the admission of illegally obtained evidence led to automatic reversal or was subject to what was then thought to be the appropriate test for determining whether error, even of constitutional scope, was prejudicial. All that the court said was that the ‘state does not so profit when erroneously admitted evidence does not affect the result of the trial.’ (Ibid., p. 386, 33 Cal.Rptr. p. 501, 384 P.2d p. 1005.) The court was not considering the problem whether the People, as litigants, ‘profit’ in criminal actions as distinguished from narcotic commitment proceedings where the People's gain is presumably offset by the good which a cure will do for the defendant. We do not believe that such bookkeeping procedures can be squared with In re Gault, supra, nor, for that matter, are they in tune with modern penology as accepted by our own Supreme Court. (People v. Morse, 60 Cal.2d 631, 642, 36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810; People v. Friend, 47 Cal.2d 749, 763, fn. 7, 306 P.2d 463.)

9. There are several ‘straws in the wind’ in decisions of our own Supreme Court implying that narcotic commitments should not be based on illegally obtained evidence. In In re Butler, 59 Cal.2d 157, 28 Cal.Rptr. 508, 378 P.2d 812, the very first case which discusses commitments of persons who have not been convicted of any crime, the Supreme Court goes out of its way to hold that Butler's original arrest which resulted in a court ordered examination by a physician and led to the commitment proceedings, had been legal. (See also In re Rodriguez, 60 Cal.2d 822, 36 Cal.Rptr. 609, 388 P.2d 881, and In re Raner, 59 Cal.2d 635, 30 Cal.Rptr. 814, 381 P.2d 638.)

10. We recognize that the reasoning of the United States and California Supreme Courts which, in One 1958 Plymouth Sedan v. Com. of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170, and People v. One 1960 Cadillac Coupe, 62 Cal.2d 92, 96, 41 Cal.Rptr. 290, 293, 396 P.2d 706, 709, made the exclusionary rule applicable in automobile forfeiture proceedings, lends some support to the People's position. In the California case the court said: ‘Whatever the label which may be attached to the proceeding, it is apparent that the purpose of the forfeiture is deterrent in nature and that there is a close identity to the aims and objectives of criminal law enforcement. On policy the same exclusionary rules should apply to improper state conduct whether the proceeding contemplates the deprivation of one's liberty or property.’ Different interpretations can be put on that language, but construing it most favorably to the People, it still only means that where the purpose of criminal proceedings and the purpose of different proceedings are similar, the exclusionary rule applies. It cannot mean—because the question was not involved—that the exclusionary rule does not apply in other proceedings, the purpose of which may be somewhat different.

Needless to say, our holding in the case at bar is no broader than the issue presented. Whether the exclusionary rule is applicable in other types of proceedings which may result in loss of liberty can be decided when those questions come up.

Defendant makes other points which may arise at a retrial. He argues that the entire commitment procedure is unconstitutional in the light of Robinson v. State of California, supra. This contention was rejected in In re De La O, 59 Cal.2d 128, 134–153, 28 Cal.Rptr. 489, 378 P.2d 793, 98 A.L.R.2d 705.

Finally it is pointed out that the jury in the case at bar was not unanimous on the question of addiction. One juror voted ‘no.’ The propriety of not requiring a unanimous verdict in narcotic commitment cases was upheld in People v. Donel, 255 Cal.App.2d 394, ——, 63 Cal.Rptr. 168***

The order of commitment is reversed.


1.  ‘Now I am aware of the rules that a coerced consent is not a consent that would justify a search, but it seems to be that this depends not on what is going on inside of a person's mind who is being stopped, but what he says and does. Otherwise, you have a situation where a person is asked, ‘Can I look inside your car?’ or ‘Could I come into your house?’ or, as in the defendant's situation, ‘Well, can I look in your clothes?’ or, ‘Could you take off your coat for me?’ or something like this. And then if the person says, ‘Yes,’ then by getting testimony as to what was going on in a defendant's mind and going into all that ramification, it might be determined that a person who apparently freely gave his consent which would justify the officers in stopping him and asking him questions and making further investigations and ultimately arresting him. Then, they would be in the wrong because of something that went on inside the man's head and something he said or something he didn't say or do.‘I don't think this factor, therefore, can be the determining factor or even evidence as to whether or not there was a free consent. You can of course get in testimony about, as you have done, him being in the car and about the officers being in uniform, and in some cases they bring in the fact the person is an armed officer so he appears to have the ability to use force. This is entirely a different thing than inquiring of a person who is being questioned or arrested as to what went on inside his mind.‘So, I will sustain the objection.’

2.  Such proceedings may be started under the provisions of section 3050 et seq. of the Welfare and Institutions Code if the person proceeded against has been convicted of a crime, or under section 3100 et seq. of the Welfare and Institutions Code if he has not been convicted of a crime. As far as the question of admissibility of evidence is concerned, we do not see how it can make any difference whether or not there have been earlier criminal proceedings.

3.  Both Castaneda and Shelton were in custody at the time they allegedly consented to a search. That factor caused the court, in each case, to hold that the consent was involuntary as a matter of law. In the case at bar the only question is admissibility of evidence, therefore it is unnecessary to decide whether or not defendant was in custody. The record before us strongly suggests that he was in custody, as that term was defined in People v. Arnold, 66 Cal.2d 438, 445, 58 Cal.Rptr. 115, 426 P.2d 515,

FOOTNOTE.  FN* 253 A.C.A. 1153, 1156.

FOOTNOTE.  FN** 256 A.C.A. 66, 69–72.

4.  Thus Gault decided that the following rights were available in juvenile proceedings: notice of charges, right to counsel, right to confrontation and privilege against self-incrimination. It expressly did not rule on failure to make findings, the right to appeal, the right to a transcript and the nature of the burden of proof.

5.  ‘The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.’ (Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669.)

6.  The minimum time of prison confinement for a violation of section 11500 of the Health and Safety Code is two years. Section 3151 of the Welfare and Institutions Code prescribes a minimum stay at Corona of six months before release to outpatient status is permissible. The maximum is seven years, with an additional three years if ordered by the court on application of the Director of Corrections. (Welf. & Inst.Code § 3201.)

FOOTNOTE.  255 A.C.A. 434, 441.

KAUS, Presiding Justice.