KAPLAN v. PEOPLE

Reset A A Font size: Print

Court of Appeal, Fourth District, Division 2, California.

Clifford Ellis KAPLAN, Petitioner, v. SUPERIOR COURT OF ORANGE COUNTY, Respondent; The PEOPLE of the State of California, by their Attorney Cecil Hicks, District Attorney For the County of Orange, Real Party in Interest.

Civ. 10728.

Decided: March 03, 1971

Frank L. Williams, Jr., Public Defender, and John J. Resnick, Deputy Public Defender, for petitioner. Cecil Hicks, Dist. Atty., Michael R. Capizzi, Deputy Dist. Atty., and Oretta D. Sears, Deputy Dist. Atty., for real party in interest. No appearance for respondent.

OPINION

Contending that substantially all of the evidence against him resulted from an unlawful search and seizure, petitioner (hereinafter defendant) pursuant to Penal Code, section 995, moved to set aside the information charging him with sale of a restricted dangerous drug—LSD (Health & Saf. Code, § 11912). The motion was denied, and defendant seeks a writ of prohibition pursuant to Penal Code, section 999a.

The Facts

On June 20, 1970 at about noontime, Officer Briscoe observed a small red foreignmade automobile containing three persons traveling 45 miles per hour in a 25-mile-perhour zone. A man later identified as Gallivan was driving. Seated immediately to his right was Patterson, a 16-year-old male. Seated to the far right next to the door on the passenger side was defendant. The officer turned on his red light to stop the speeding vehicle. After the red light was turned on, Officer Briscoe observed Patterson engage in the following conduct. ‘He turned around and looked at my vehicle twice, and he reached under the right front seat and looked up, looked back at my vehicle again. He reached down behind the right front seat. He looked up and looked at my vehicle again, then he reached in his left or right front pocket, shoved his hand in his coat as the vehicle pulled over to the side of the road.’

The officer observed no other unusual activity on the part of the occupants of the vehicle. He had no warrant for search or arrest. On stopping the vehicle, he ordered Patterson out because he felt he was hiding a weapon. This belief was based solely on the officer's observation of Patterson's movements described above. The officer did not see a weapon, had no information that Patterson might have a weapon, and had never seen Patterson before.

The officer conducted a pat-down search for weapons. During the pat-down, Patterson was extremely excited. Twice he made quick gestures backward with his arms. The officer felt no weapon, but did feel something in Patterson's left front shirt pocket. He was certain the object he felt was not a weapon. He ‘had an idea it was pills.’ He placed Patterson under arrest for possession of restricted dangerous drugs. The officer then reached into Patterson's shirt pocket and removed therefrom a plastic bag containing 106 small, brown tablets, which for purposes of the preliminary hearing, were stipulated to contain a usable quantity of LSD. The officer had no warrant for either arrest or search. Neither did he ask for or receive consent to search.

The juvenile Patterson, testified for the People at the preliminary hearing. The substance of his testimony was that he had purchased the LSD tablets found on his person from defendant Kaplan a short time prior to the vehicle stop. Although he admitted having purchased drugs on previous occasions, he was not qualified as an expert, and the People did not purport to establish the contraband nature of the tablets by his testimony. He referred to the tablets as ‘dope.’

On cross-examination, it was established that Patterson agreed to testify on behalf of the prosecution as the result of a promise of immunity made by the district attorney. He stated that, were it not for the promise of immunity, he would not have testified. He further stated that, if it were his own choice, he would have preferred not to testify, because he would rather not testify against anybody if he could help it.

Contentions and Issues

It is at once apparent that if the arrest of Patterson and the seizure of contraband from his pocket were unlawful, the testimony of Patterson was a ‘fruit of the poisonous tree’ (People v. Johnson, 70 Cal.2d 541, 545–550, 75 Cal.Rptr. 401, 450 P.2d 865; see also People v. Superior Court, 71 Cal.2d 265, 78 Cal.Rptr. 210, 455 P.2d 146), and that if defendant may assert the illegality of the arrest and search to exclude this testimony and the contraband itself, the 995 motion should have been granted.

The magistrate at the preliminary hearing theorized that when Patterson appeared at the People, he gave retroactive consent to the search or at least retroactively waived any objection thereto. In this proceeding the People do not attempt to uphold the arrest and search on that basis. It is quite clear from the record that Patterson's agreement to testify resulted from the fact that he had been arrested and searched and that charges were pending against him for which he was promised immunity. It is well established that when consent is induced by an unlawful arrest or search, such consent is not considered voluntary. (People v. Superior Court, supra, 71 Cal.2d 265, 270–271, 78 Cal.Rptr. 210, 455 P.2d 146; People v. Johnson, 68 Cal.2d 629, 632, 68 Cal.Rptr. 441, 440 P.2d 921; People v. Franklin, 261 Cal.App.2d 703, 707, 68 Cal.Rptr. 231.) Neither do the People contend that there was probable cause for the arrest and search of Patterson. (Cf. People v. Superior Court, 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449; People v. Collins, 1 Cal.3d 658, 662–663, 83 Cal.Rptr. 179, 463 P.2d 403; People v. Moray, 222 Cal.App.2d 743, 35 Cal.Rptr. 432.)

It is the People's contention that, even if the arrest and search of Patterson were unlawful, defendant may not assert that fact for the purpose of excluding the challenged evidence. They concede that the California Supreme Court expressly held that a defendant may object to the introduction of evidence illgally seized from another person in People v. Martin, 45 Cal.2d 755 759–761, 290 P.2d 855, and that the continuing validity of Martin was recognized in People v. Varnum, 66 Cal.2d 808, 812, 59 Cal.Rptr. 108, 472 P.2d 772 and People v. Johnson, supra, 70 Cal.2d 541, 553, 75 Cal.Rptr. 401, 450 P.2d 865 and implied in People v. Superior Court, supra, 71 Cal.2d 265, 271, 78 , cal.Rptr. 210, 455 P.2d 146. They contend, however, that the rule of People v. Martin, supra, and its progeny that a defendant may object to the introduction of evidence unlawfully seized from another person (hereinafter referred to as the vicarious exclusionary rule) is no longer the law in California. Their argument is as follows. First, the vicarious exclusionary rule is not constitutionally required. (Alderman v. United States, 394 U.S. 165, 171–175, 89 S.Ct. 961, 965–968, 22 L.Ed.2d 176, 185–188.) Second, although generally the states are at liberty to adopt a more restrictive rule than that required by the federal constitution (Alderman v. United States, supra, 394 U.S. at pp. 175–176, 89 S.C.t at pp. 967–968, 22 L.Ed.2d at p. 188; Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730, 734; Curry v. Superior Court, 2 Cal.3d 707, 716, 87 Cal.Rptr. 361, 470 P.2d 345; People v. McKinnon, 13 Cal.App.3d 555, 559–560, 91 Cal.Rptr. 696), California courts are not at liberty to apply a more restrictive judicially declared exclusionary rule because of the legislative enactment in 1965 of the California Evidence Code and, particularly, section 351 thereof.

The position advanced is that the enactment of the Evidence Code and section 351 thereof had the purpose and effect of abolishing all judicially created exclusionary rules of evidence except those expressly set forth in the Evidence Code or other statute and except for those constitutionally required. Startling though it may be, the legislative history of the Evidence Code and section 351 is persuasive that their enactment was meant to have precisely the effect claimed by the district attorney.

The California Evidence Code was enacted by the Legislature in 1965 (Stats, 1965, ch. 299) and took effect January 1, 1967 (Evid.Code, § 12). The enactment of the code was preceded by several years of work and study by the California Law Revision Commission and was based upon its reports and recommendations. (See Reports, Recommendations and Studies, California Law Revision Commission (1965, vol. 7, pp. IX–394 and especially pp. 3–4.)1

In its Recommendation proposing the code, the commission stated:

‘* * * the most important consideration underlying the recommendation that a new code be enacted is the desirability of having the rules of evidence available in a separate volume that will be, in effect, an official handbook of the law of evidence—a kind of evidence bible for busy trial judges and lawyers.

‘The Evidence Code recommended by the Commission contains provisions relating to every area of the law of evidence. In this respect, it is more comprehensive than either the Uniform Rules of Evidence or Part IV of the Code of Civil Procedure. The code will not, however, stifle all court development of the law of evidence. In some instances—the Privileges division, for example—the code to a considerable extent precludes further development of the law except by legislation. But in other instances, the Evidence Code is deliberately framed to permit the courts to work out particular problems or to extend declared principles into new areas of the law. As a general rule, the code permits the courts to work toward greater admissibility of evidence but does not permit the courts to develop additional exclusionary rules. Of course, the code neither limits nor defines the extent of the exclusionary evidence rules contained in the California and United States Constitutions. The meaning and scope of the rules of evidence that are based on constitutional principles will continue to be developed by the courts.’ (Reports, CLRC, supra, vol. 7, p. 34.)

Section 351 of the Evidence Code provides: ‘Except as otherwise provided by statute, all relevant evidence is admissible.’ (Emphasis added.) Section 230 of the Evidence Code defines the word ‘statute’ to include a treaty or constitutional provision. In enacting the Evidence Code, the Legislature studied and officially approved various comments of the Law Revision Commission (Reports, CLRC, supra, vol. 7, pp. 1007–1008.) The approved comment following section 351 reads as follows: ‘Section 351 abolishes all limitations on the admissibility of relevant evidence except those that are based on a statute, including a constitutional provision. [Citation.] The Evidence Code contains a number of provisions that exclude relevant evidence either for reasons of public policy or because the evidence is too unreliable to be presented to the trier of fact. [Citations.] Other codes also contain provisions that may in some cases result in the exclusion of relevant evidence. [Citations.]’

Section 351 of the Evidence Code found its genesis in Rule 7 of the Uniform Rules of Evidence approved by the National Conference of Commissioners on Uniform State Laws in 1953. The Commissioners' note to Rule 7 read in pertinent part:

‘This rule is essential to the general policy and plan of this work. It wipes the slate clean of all disqualifications of witnesses, privileges and limitations on the admissibility of relevant evidence. * * * This is not a new approach. It follows the pattern of the A.L.I. Model Code of Evidence, which in turn was based on the concept of Professor Thayer and other that all things relevant or logically probative are prima facie admissible unless limitations are imposed by another rule. * * *

‘Illegally acquired evidence may be inadmissible on constitutional grounds—not because it is irrelevant. Any constitutional questions which may arise are inherent and may, of course, be raised independently of this rule.’ (Uniform Laws Annotated, vol. 9A, p. 598.)

The history of the adaptation of Rule 7 into Evidence Code, section 351 documented in the Tentative Recommendation of the California Law Revision Commission relating to The Uniform Rules of Evidence, article I, General Provisions, and the study supporting the same made by Professor James H. Chadbourn. (Reports, CLRC, vol. 6, pp. 3–74.) Referring to Rule 7(f) of the Uniform Rules of Evidence which provided ‘Except as otherwise provided in these Rules, * * * (f) all relevant evidence is admissible,’ the Study stated:

‘It is the purpose of this subdivision—as it is of this entire rule—to eliminate prior rules governing the admission or exclusion of evidence. The Uniform Rules of Evidence, as originally drafted, are intended to be the exclusive source of law excluding relevant evidence. If nothing in the URE permits or requires the exclusion of an item of relevant evidence, it is to be admitted, notwithstanding any pre-existing law which requires its exclusion (except, of course, for constitutional provisions).

‘However, some of the present exclusionary rules in California deserve to survive [citing as an example California Insurance Code, section 10381.5]; they probably would not do so if Rule 7 were to be enacted in its present form.’

It was therefore suggested by the Study that the introductory phrase of Rule 7 be amended to read ‘Except as otherwise provided by statute.’ (Reports, CLRC, supra, vol. 6, pp. 69–70.)

The Tentative Recommendation adopted the suggestion of the Study. (Reports, CLRC, supra, vol. 6, p. 16.) The official Comment of the Law Revision Commission in its Tentative Recommendation reads in pertinent part as follows:

‘Rule 7 is the keystone of the Uniform Rules of Evidence. It abolishes all pre-existing rules relating to the competency of evidence and witnesses. Under the URE scheme, all rules disqualifying persons to be witnesses or limiting the admissibility of evidence must be found, if at all, among the Uniform Rules of Evidence.

‘The approval of Rule 7 modified as indicated, is recommended in order that the purpose of the URE—to codify the law relating to the admissibility of evidence—may be fully realized. Revised Rule 7 precludes the possibility that valid restrictions on the admissibility of evidence in addition to those declared by statute will remain. * * *

‘The phrase ‘by statute’ is used in the revised rule in place of the URE phrase ‘in these rules' in order to avoid any implication that the validity of statutory restrictions on the admissibility of evidence (such as the restrictions on ‘speed trap’ evidence provided in Vehicle Code Sections 40803–40804) will be impaired * * *.' (Emphasis added.) (Reports, CLRC, supra, vol. 6, p. 17.)

It is suggested that Penal Code, section 1538.5, subdivision (n) might have some bearing on the question whether the rule of People v. Martin, supra, survived the enactment of the Evidence Code in 1965. Section 1538.5 provides in pertinent part: ‘Nothing in this section shall be construed as altering * * * the law of standing to raise the issue of unreasonable search or seizure. * * *’ This provision, however, does not affect the matter. Penal Code, section 1538.5 was enacted in 1967 (Stats.1967, ch. 1537) and became effective November 8, 1967, while the Evidence Code was enacted in 1965 (Stats. 1965, ch. 299) and took effect January 1, 1967 (Evid. Code § 12). The particular provision of Penal Code, section 1538.5 referred to provides that it does not change the law. If, therefore, Evidence Code, section 351 effective January 1, 1967 abolished all existing judicially created exclusionary rules of evidence except those permitted by statute or required by constitutional provision, Penal Code, section 1538.5, subdivision (n), by its own language, effected no change in the law as established by Evidence Code, section 351.

Having concluded that the enactment of the Evidence Code and section 351 thereof had the purpose and effect contended for by the district attorney, we are confronted by three further questions. First, are we, as an intermediate appellate court, precluded from full consideration of the effect of Evidence Code, section 351 by California Supreme Court cases decided after the effective date of the Evidence Code, which necessarily rested upon the continued viability of the vicarious exclusionary rule? (E. g., People v. Superior Court, supra, 71 Cal.2d 265, 271, 78 Cal.Rptr. 210, 455 P.2d 146; People v. Johnson, supra, 70 Cal.2d 541, 553, 75 Cal.Rptr. 401, 450 P.2d 865.) Second, if we are free to determine the matter, is the vicarious exclusionary rule adopted in People v. Martin, supra, 450 Cal.2d 755, 759–761, 290 P.2d 855 and further recognized in People v. Varnum, supra, 66 Cal.2d 808, 812, 59 Cal.Rptr. 108, 427 P.2d 772 and People v. Johnson, supra, and implicitly recognized in People v. Superior Court, supra, a constitutionally required exclusionary rule? Third, if the rule is not constitutionally required and if, therefore, Evidence Code, section 351 would abolish the rule, is section 315 unconstitutional as an abridgment by the Legislature of the separate power of the judiciary which is an independent branch of government?

Stare Decisis

As previously noted, the new Evidence Code took effect January 1, 1967 and is applicable to trials commenced after that date. In People v. Johnson, supra, 70 Cal.2d 541, 553, 75 Cal.Rptr. 401, 450 P.2d 865, it was held that the defendant had standing to raise the legality of the search of and seizure from another person and the admissibility of the fruits thereof. Reliance was placed upon People v. Martin, supra, 45 Cal.2d 755, 760–761, 290 P.2d 855. The date of the search and seizure was October 21, 1966, but the date of trial is not disclosed in the opinion, so it cannot be said whether or not the Evidence Code was applicable to the trial. In any event, no contention was made that Evidence Code, section 351 countermanded the rule of People v. Martin, and there was no consideration or discussion of any such problem in the opinion.

In June 1969 the California Supreme Court decided People v. Superior Court, supra, 71 Cal.2d 265, 78 Cal.Rptr. 210, 455 P.2d 146. There the unlawful search and seizure occurred on November 22, 1967, and the new Evidence Code was obviously applicable to the trial of the case. The court held that the defendant's motion for suppression of the evidence was properly granted inasmuch as it was the product of the unlawful search and seizure of another person. (71 Cal.2d at p. 271, 78 Cal.Rptr. 210, 455 P.2d 146.) Although the court cited People v. Johnson, supra, there was no discussion of the defendant's standing to raise the issue of the legality of the arrest and search of a third person.2 Although the new Evidence Code was obviously applicable to the case, there was no contention made and, therefore, no discussion or consideration of the problem whether Evidence Code, section 351 countermanded the vicarious exclusionary rule.3

We of course, as an intermediate appellate court, are bound to follow the decisions of the California Supreme Court. (Orange County Water District v. City of Riverside, 173 Cal.App.2d 137, 165, 343 P.2d 450; see also Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) The doctrine of stare decisis, however, applies, only to matters actually considered and determined by a precedent case. (Hart v. Burnett, 15 Cal. 530, 598–599; Grant v. Murphy, 116 Cal. 427, 432, 48 P. 481; see 3 Witkin Cal. Procedure (1954), § 225, pp. 2440, 2442.)

Although People v. Johnson, supra, 70 Cal.2d 541, 75 Cal.Rptr. 401, 450 P.2d 865, and People v. Superior Court, supra, 71 Cal.2d 265, 78 Cal.Rptr. 210, 455 P.2d 146, necessarily implied the contiuued viability of the Martin rule, they cannot be considered binding precedent on the question whether the Martin, rule was countermanded by the enactment of the new Evidence Code because that problem was not presented, considered or ruled upon in those cases. (Hart v. Burnett, supra; Grant v. Murphy, suprai.)

Is the Vicarious Exclusionary Rule Constitutionally Required?4

Attempting to avoid the effect of Evidence Code, section 351, defendant contends that the rule of People v. Martin was an interpretation by the California Supreme Court of the provision of the California Constitution prohibiting unlawful searches and seizures (Cal.Const., art. 1, § 19). This analysis is incorrect.

In April 1955 the California Supreme Court handed down its decision in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, the landmark case in which California adopted the exclusionary rule. In Cahan, the court took pains to make it clear that the rule announced was not, at that time, a constitutionally required rule. While it adverted to the Fourth Amendment's guarantee against unreasonable searches and seizures and the essentially identical guarantee in Article 1, section 19 of the California Constitution (44 Cal.2d at p. 438, 282 P.2d at p. 907), it recognized that ‘[t]he constitutional provisions themselves do not expressly answer the question whether evidence obtained in violation thereof is admissible in criminal actions.’ (44 Cal.2d at p. 439, 282 P.2d at p. 907.) The court further noted: ‘In bears emphasis that in the absence of a holding by the United States Supreme Court that the Due Process Clause requires exclusion of unconstitutionally obtained evidence, whatever rule we adopt, * * * will be a judicially declared rule of ovidence.’ (44 Cal.2d at p. 442, 282 P.2d at p. 910; emphasis added.)

Eight months later in December, 1955, Martin was decided. Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312 was minimized and the rule of the lower federal courts admitting evidence unlawfully seized from a third person was criticized. (45 Cal.2d at pp. 759–760, 290 P.2d 855.) Instead, the rationale of Cahan was adhered to (45 Cal.2d at pp. 760–761, 290 P.2d 855), and the court concluded: ‘Since all of the reasons that compelled us to adopt the exclusionary rule are applicable whenever evidence is obtained in violation of constitutional guarantees, such evidence is inadmissible whether or not it was obtained in violation of the particular defendant's constitutional rights.’ (45 Cal.2d at p. 761, 290 P.2d at p. 857.)

There can be no question but that the rules of Cahan and Martin were adopted in furtherance of the objectives of both state and federal constitutional guarantees against unreasonable searches and seizures, but neither Cahan or Martin can be interpreted as holding that the rules there announced were constitutionally required. They were, as the court pointed out in Cahan, judicially declared rules of evidence. (People v. Cahan, supra, 44 Cal.2d at p. 442, 282 P.2d 905.)

In Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1091 it was held that the basic exclusionary rule was constitutionally required in aid of the Fourth Amendment. It follows that the rule of Cahan is now constitutionally required. But that is not the question we are called upon to decide. The question confronting us is whether the vicarious exclusionary rule of Martin is constitutionally required.

This question is answered in the negative by the United States Supreme Court in Alderman v. United States, supra. Said the court:

‘This expansive reading of the Fourth Amendment and of the exclusionary rule fashioned to enforce it is admittedly inconsistent with prior cases, and we reject it. The established principle is that suppression of the product of Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence * * *.

‘* * *

‘What petitioners appear to assert is an independent constitutional right of their own to exclude relevant and probative evidence because it was seized from another in violation of the Fourth Amendment. But we think there is a substantial difference for constitutional purposes between preventing the incrimination of a defendant through the very evidence illegally seized from him and suppressing evidence on the motion of a party who cannot claim this predicate for exclusion.

‘The necessity for that predicate was not eliminated by recognizing and acknowledging the deterrent aim of the rule. [Citations.] Neither those cases nor any others hold that anything which deters illegal searches is thereby commanded by the Fourth Amendment. The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.’ (Alderman v. United States, supra, U.S. at pp. 171–172, 174–175, 89 S.Ct. at pp. 965, 967, 22 L.Ed.2d at pp. 185–187.)

Notwithstanding that the prohibition against unreasonable searches and seizures in Article 1, section 19 of the California Constitution is substantially identical in language to the prohibition found in the Fourth Amendment, neither we nor the California Supreme Court are precluded by Alderman from holding that the California constitutional provision requires the vicarious exclusionary rule, for the state courts are at liberty to adopt a stricter standard than that required by the federal constitution. (Alderman v. United States, supra, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; Cooper v. California, supra, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730; Curry v. Superior Court, supra, 2 Cal.3d 707, 716, 87 Cal.Rptr. 361, 470 P.2d 345; People v. McKinnon, supra, 13 Cal.App.3d 555, 559–560, 91 Cal.Rptr. 696.)

We need nor here repeat the various arguments supporting the desirability of the vicarious exclusionary rule. The reasons for adoption of the basic exclusionary rule were fully articulated in People v. Cahan, supra, 44 Cal.2d at pp. 445–450, 282 P.2d 905, and were, in effect, incorporated by reference in People v. Martin, supra, 45 Cal.2d at p. 761, 290 P.2d 855. The question is not, however, whether we, or indeed the California Supreme Court, deem the rule desirable but whether it is constitutionally mandated. We cannot hold that it is.

The language of the Fourth Amendment to the United States Constitution and Article 1, section 19 of the California Constitution are substantially identical. The highest court in the land, after expressly weighing the competing interests of efficient law enforcement on the one hand and the need for adherence to a constitutional guarantee against unlawful searches and seizures on the other, has concluded that the vicarious exclusionary rule is not constitutionally required. (Alderman v. United States, supra, 394 U.S. at pp. 174–175, 89 S.Ct. at p. 967, 22 L.Ed.2d at p. 187.) Moreover, it may be safely stated without authentication that many states of the United States have in their constitutions similar prohibitions against unlawful searches and seizures. It is significant that, as of the date of Alderman (March 10, 1969), California was the only jurisdiction in the United States adhering to the vicarious exclusionary rule. (See separate concurring and dissenting opinion of Mr. Justice Fortas in Alderman v. United States, supra, 394 U.S. at p. 204, 89 S.Ct. at p. 983, 22 L.Ed.2d at p. 205.)

The situation confronting us is somewhat like that confronting our Supreme Court at the time of its decision in Cahan. The federal courts were then bound by the exclusionary rule announced in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, which was interpreted as being a judicially declared rule of evidence. (See McNabb v. United States, 318 U.S. 332, 339–341, 63 S.Ct. 608, 87 L.Ed. 819; On Lee v. United States, 343 U.S. 747, 755, 72 S.Ct. 967 L.Ed. 1270; People v. Cahan, supra, 44 Cal.2d at p. 442, 282 P.2d 905.) The United States Supreme Court had declined to impose the exclusionary rule upon the states. (Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.) Although, arguably, the California Supreme Court could have found the exclusionary rule of Cahan to be required by Article 1, section 19 of the California Constitution (cf. Weeks v. United States, supra, 232 U.S. at pp. 391–392, 398, 34 S.Ct. at pp. 344, 346, 58 L.Ed. at pp. 655, 657–658 [see discussion of Weeks in Mapp v. Ohio, supra, 376 U.S. at p. 649, 81 S.Ct. at p. 1688, 6 L.Ed.2d at p. 1086]), it declined to do so and, instead, as previously noted, announced a judicially declared rule of evidence. (People v. Cahan, supra, 44 Cal.2d at p. 442, 282 P.2d 905.) The situation confronting us even less suggests the propriety of a holding that the vicarious exclusionary rule is constitutionally required. Neither the federal courts nor the courts of any other state employ the vicarious exclusionary rule either as a rule of evidence or as constitutionally required. (Separate concurring and dissenting opinion of Mr. Justice Fortas in Alderman v. United States, supra, 394 U.S. at p. 204, 89 S.Ct. at p. 983, 22 L.Ed.2d at p. 205.) While we are not bound to act in conformity with our sister jurisdictions, their unanimity of exclusionary rule is not constitutionally practice is persuasive that the vicarious mandated.

We hold, therefore, that the vicarious exclusionary rule of People v. Martin, supra, 45 Cal.2d 755, 759–761, 290 P.2d 855 and its progeny was and is a judicially declared rule of evidence and, as such, was countermanded by the legislative enactment of § 351 of the California Evidence Code.

Separation of Powers

The question next arises whether, as so interpreted, section 351 of the Evidence Code constitutes an unconstitutional abridgment of the separate power of the judiciary.

Article 3, section 1 of the California Constitution provides: ‘The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.’ Article 6, section 1 provides: ‘The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, municipal courts, and justice courts.’ ‘[T]he courts have and should maintain vigorously all the inherent and implied powers necessary to properly and effectively function as a separate department in the scheme of our state government.’ (Brydonjack v. State Bar of California, 208 Cal. 439, 442, 281 P. 1018, 1020.)

The precise question is to be determined is whether, in carrying out the legislative mandate to admit evidence unlawfully seized from another person, the integrity of the courts of this state would be so seriously undermined as to jeopardize the power of the judiciary as a separate branch of government. (See Brydonjack v. State Bar of California, supra, 208 Cal. at p.444, 281 P. 1018.) We do not foresee such dire consequences.

Of course, the Legislature has no power to compel the courts to enforce unconstitutional rules of evidence. (People v. Johnson, 68 Cal.2d 646, 657–658, 68 Cal.Rptr. 599, 441 P.2d 111; People v. Murguia, 6 Cal.2d 190, 193, 57 P.2d 115.) Short of compelling unconstitutional action, however, “[t]he power of the Legislature to determine what is or what is not competent evidence in civil or criminal cases is unquestionable.” (People v. Johnson, spra, 68 Cal.2d at p. 657, 68 Cal.Rptr. at p. 607, 441 P.2d at p. 119; People v. Buckley, 143 Cal. 375, 393, 77 P. 169.) We would be required to deny reality and ignore the experience of all of our sister jurisdictions to conclude that carrying out the legislative command to admit evidence, which is not constitutionally required to be excluded, would so impair the integrity of the courts of this state that the well-recognized power of the Legislature to determine what is or is not competent evidence must now be denied. For all the years prior to Martin, such evidence was admissible in California (see People v. Mayen, 188 Cal. 237, 251–253, 205 P. 435), and the integrity of our courts was not destroyed. Except in California, every court in every jurisdiction, including the United States Supreme Court and the lower federal courts, admits such evidence and their integrity remains intact. It is true that in People v. Cahan, supra, 44 Cal.2d at p. 445, 282 P.2d 905 and People v. Martin, supra, 45 Cal.2d at p. 760, 290 P.2d 855 there was some reliance upon the premise that the adoption of the exclusionary rule was required to preserve judicial integrity.5 On the other hand, the court in Cahan apparently recognized that the Legislature might have enacted a rule contrary to the rule there announced when it stated: ‘The constitutional provisions themselves do not expressly answer the question whether evidence obtained in violation thereof is admissible in criminal actions. Neither Congress nor the Legislature has given an answer, and the courts of the country are divided on the question.’ (44 Cal.2d at p. 439, 282 P.2d at p. 907; see also Wolf v. Colorado, supra, 338 U.S. 25, 33, 69 S.Ct. 1359, 1364, 93 L.Ed. 1782, 1788; People v. Mayen, supra, 188 Cal. 237, 205 P. 435.) In the situation at hand the Legislature has given an answer: ‘Except as otherwise provided by statute [or constitutional provision], all relevant evidence is admissible.’ (Evid.Code, § 351.)

We conclude that the legislative enactment of section 351 of the Evidence Code abolishing the judicially declared vicarious exclusionary rule of evidence does not “substantially impair the constitutional powers of the Courts, or practically defeat their exercise.” (Brydonjack v. State Bar of California, supra, 208 Cal. at p. 444, 281 P. at p. 1020.)

The alternative writ heretofore issued is discharged. The peremptory writ is denied.

I dissent.

I cannot agree with my colleagues' position that section 351 of the Evidence Code abolished a rule of evidence designed to preserve and protect one of the most fundamental rights essential to the existence of a free society. ‘[T]he security of one's privacy against arbitrary intrusion by the police—which is the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in ‘the concept of ordered liberty.’' (Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782.)

The Legislature unquestionably has the power to prescribe rules of evidence in civil or criminal actions. (People v. Buckley, 143 Cal. 375, 393, 77 P. 169.) But that power is not unlimited; it remains subject to federal and state constitutional limitations. (People v. Johnson, 68 Cal.2d 646, 657–658, 68 Cal.Rptr. 599, 441 P.2d 111.) Although the rule of People v. Martin, 45 Cal.2d 755, 290 P.2d 855, making the exclusionary rule applicable to evidence illegally seized from one other than a defendant is not compelled by the Fourteenth Amendment (Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176), it has a clear constitutional nexus. It evolved from the court's concern, not just with rights of a defendant, ‘but with the constitutional right of all of the people to be secure in their homes, persons, and effects.’ (People v. Cahan, 44 Cal.2d 434, 439, 282 P.2d 905, 907.)

The same policy considerations which lead to the adoption of the exclusionary rule in People v. Cahan—deterrence of Fourth Amendment violations by the government and preservation of the integrity of the judicial process—underlie the evidentiary rule of Martin. The court in Martin declared that all of the reasons expressed in Cahan for the adoption of the exclusionary rule were applicable ‘whenever evidence is obtained in violation of constitutional guarantees' and that ‘such evidence is inadmissible whether or not obtained in violation of the particular defendant's constitutional rights.’ (People v. Martin, supra, 45 Cal.2d p. 761, 290 P.2d p. 857.) The Cahan rationale is expressed in the following passage from that historic decision: ‘When, as in the present case, the very purpose of an illegal search and seizure is to get evidence to introduce at a trial, the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced. It is answer to say that a distinction should be drawn between the government acting as law enforcer and the gatherer of evidence and the government acting as judge. ‘[N]o distinction can be taken between the government as prosecutor and the government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed.’ (Citation.) Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such ‘dirty business.’ (Citation.) Courts refuse their aid in civil cases to prevent the consummation of illegal schemes of private litigants (citations); a fortiori, they should not extend that aid and thereby permit the consummation of illegal schemes of the state itself.' (People v. Cahan, supra, 44 Cal.2d 434, 445–446, 282 P.2d 905, 912.)

In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the United States Supreme Court made the exclusionary rule a federal constitutional requirement. It is significant that the court based its decision on the same postulates relied upon by our Supreme Court in Cahan and Martin. Quoting from Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669, (the decision discarding the ‘silver platter’ doctrine) the court in Mapp declared that ‘the purpose of the exclusionary rule ‘is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it’' (367 U.S. at p. 656, 81 S.Ct. at p. 1692) and that ‘as was said in Elkins, ‘there is another consideration—the imperative of judicial integrity’' (367 U.S. at 659, 81 S.Ct. at 1694). The court concluded with the observation that its decision ‘gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.’ (Mapp v. Ohio, supra, 367 U.S. 643, 660, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081.)

I find it difficult to reconcile Alderman v. United States, supra, 394 U.S. 165, 89 S. Ct. 961, 22 L.Ed.2d 176, where the high court declined the opportunity to make the exclusionary rule a federal constitutional requirement where Fourth Amendment violations of rights of third persons are concerned, with the rationale of Mapp v. Ohio, supra, and Elkins v. United States, supra, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. But be that as it may, in California our Supreme Court has determined that deterrence of official lawlessness and ‘the imperative of judicial integrity’ (Elkins v. United States, supra; Mapp v. Ohio, supra) require exclusion whenever evidence is illegally obtained whether or not it be from the defendant.

Deterrence and judicial integrity are not separate and independent policy considerations; they are inextricably interrelated. ‘Judicial integrity’ does not mean mere adherence to some general moral or ethical standard. The concept, as I view it, relates to the proper discharge of the constitutional responsibilities entrusted to the judiciary by the people. Government acts through its courts as well as through its legislative and executive branches. As the court observed in Cahan, supra, 44 Cal.2d 434, 445, 282 P.2d 905, 912: ‘It is no answer to say that a distinction should be drawn between the government acting as a law enforcer and the gatherer of evidence and the government acting as judge.’ Government participates in illegal conduct when its courts permit the judicial process to be used to gain the fruits of a private bargain which government could not constitutionally sanction directly. (Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161.) The concern here is not simply with illegal conduct by private individuals but unconstitutional conduct by the government. (People v. Cahan, supra, 44 Cal.2d 434, 446, 282 P.2d 905.) Through Martin our Supreme Court has determined that the judicial department of this state should not participate in, encourage, or condone Fourth Amendment violations by the government by permitting the fruits of such violations to be used as evidence ‘whether or not it was obtained in violation of the particular defendant's constitutional rights.’ (People v. Martin, supra, 45 Cal.2d 755, 761, 290 P.2d 855, 857.) In my view, a legislative attempt to compel the courts to do otherwise would be an encroachment upon the inherent power of the court and constitute a violation of the concept of separation of powers.

The doctrine of separation of powers as a basic constitutional concept has long been recognized in this state, its most recent application being in People v. Tenorio, 3 Cal.3d 89, 89 Cal.Rptr. 249, 473 P.2d 993, and People v. Clark, 3 Cal.3d 97, 89 Cal.Rptr. 253, 473 P.2d 997. Article VI, section 1, and article III of the Constitution ‘vest the judicial power in the judiciary and proclaim the separation of powers.’ (People v. Tenorio, supra, 3 Cal.3d 89, 91, 89 Cal.Rptr. 249, 250, 473 P.2d 993, 994.) ‘Our courts are set up by the Constitution without any special limitations; hence the courts have and should maintain vigorously all of the inherent and implied powers necessary to properly and effectively function as a separate department in the scheme of our state government.’ (Brydonjack v. State Bar of California, 208 Cal. 439, 442, 281 P. 1018, 1020.) ‘The triune powers of the state, as shown by the three departments, are thoroughly independent in certain of their essential functions, and at the same time mutually dependent in others (Brydonjack v. State Bar, 208 Cal. 439, 281 P. 1018, 66 A.L.R. 1507, and cases there cited). This truth often gives rise to occasions where the line of separation is not clear and distinct. Accordingly, repeated instances are to be found where the judicial department has submitted to the regulatory power of the legislative department. This is particularly true in matters of procedure. But there must come a point beyond which the judicial department must be allowed to operate unhampered by legislative restriction.’ (Lorraine v. McComb, 220 Cal. 753, 756, 32 P.2d 960, 961.) In my opinion, the effect given by the majority to the enactment of section 351 of the Evidence Code would constitute and infringement upon the inherent power of the judicial department. Legislative intention to encroach upon the judicial power should not be inferred from the general provisions of section 351 of the Evidence Code.

Furthermore, I think there is merit to petitioner's argument that the provisions of section 1538.5 of the Penal Code, added in 1967, indicate a legislative awareness of the long-settled rule of People v. Martin, supra, 45 Cal.2d 755, 290 P.2d 855, and its intention not to disturb it. Subdivision (n) of that section provides: ‘[N]othing in this section shall be construed as altering (1) the law of standing to raise the issue of an unlawful search or seizure; * * *’ In May 1967 in People v. Varnum, 66 Cal.2d 808, 812, 59 Cal.Rptr. 108, 427 P.2d 772, the Supreme Court had implicitly reaffirmed the Martin rule and its rationale.

I am not disturbed by the fact, if it be a fact, that California may be the only jurisdiction in which the Martin rule prevails. It should be noted, however, that it is not altogether certain that even under the more restrictive federal ‘standing’ rule defendant in the instant case would not be entitled to object to the admissibility of the evidence in question. The contours of the federal ‘standing’ requirement are unclear. Over the years the concept has been gradually extended beyond the requirement of some specific property interest in the premises. It has been extended to one who is merely lawfully present and to one whose expectation of privacy has been invaded. (See Alderman v. United States, supra, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176; Mancusi v. De Forte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.) In Jones v. United States, supra, Justice Frankfurter, writing for the court, stated: ‘In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the scarch was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.' (362 U.S. at p. 261, 80 S.Ct. at p. 731.) (Emphasis supplied.) In Alderman v. United States, supra, Justice Fortas, concurring in part and dissenting in part, took the position that under Jones, supra, it should be enough to give ‘standing’ that ‘the government agents conducted their unlawful search and seizure in order to obtain evidence to use against him.’ (394 U.S. 208, 209, 89 S.Ct. 984, 22 L.Ed.2d 206, 207.) The Martin rule avoids the uncertainties of the federal ‘standing’ rule; it provides law enforcement agents with a direct and precise guideline.

The rule of People v. Martin, supra, 45 Cal.2d 755, 290 P.2d 855, has been in force in this state for fifteen years and its continued vitality has never been questioned. (People v. Gale (1956) 46 Cal.2d 253, 257, 294 P.2d 13; People v. Ibarra (1963) 60 Cal.2d 460, 465, 34 Cal.Rptr. 863, 386 P.2d 487; In re Sterling (1965) 63 Cal.2d 486, 489, 47 Cal.Rptr. 205, 407 P.2d 5; People v. Varnum (1967) supra, 66 Cal.2d 808, 812, 59 Cal.Rptr. 108, 427 P.2d 772; People v. Johnson (1969) 70 Cal.2d 541, 553, 75 Cal.Rptr. 401, 450 P.2d 865; People v. Superior Court (1969) 71 Cal.2d 265, 274, 78 Cal.Rptr. 210, 455 P.2d 146; People v. Colonna (1956) 140 Cal.App.2d 705, 707, 295 P.2d 490; People v. Norman (1967) 252 Cal.App.2d 381, 391, 60 Cal.Rptr. 609; People v. Jackson (1967) 254 Cal.App.2d 655, 659, 62 Cal.Rptr. 208; People v. Warner (1969) 270 Cal.App.2d 900, 908 (fn. 1), 76 Cal.Rptr. 160; People v. Superior Court (1969) 274 Cal.App.2d 228, 231, 78 Cal.Rptr. 830.) I am not aware of any evidence that the rule has impaired or undermined honest law enforcement in this state.

I would issue a peremptory writ of prohibition.

FOOTNOTES

1.  Hereinafter references to the Reports, Recommendations and Studies of the California Law, Revision Commission will be cited as ‘Reports, CLRC’ together with the appropriate volume and page number.

2.  People v. Superior Court, supra, 71 Cal.2d 265, 78 Cal.Rptr. 210, 455 P.2d 146, jumped over the problem whether the defendant had standing to object to the police conduct which was illegal as to a third person and went right to the problem of whether the evidence was ‘fruit of the poisonous tree.’ Relying upon Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, the court held that it was. It is noteworthy, however, that in Wong Sun itself, the court refused to apply the vicarious exclusionary rule. As pointed out in Alderman, although the challenged evidence in Wong Sun was held inadmissible as to the defendant, it was found to be admissible against his codefendant ‘because ‘[t]he seizure of this heroin invaded no right of privacy of person or premises which would entitle [him] to object to its use at his trial. * * * (Wong, Sun v. United States, supra, at 492, 83 S.Ct. at 419.’' (Alderman v. United States, supra, 394 U.S. at pp. 172–173, 89 S.Ct. at p. 966, 22 L.Ed.2d at p. 186.)

3.  There are several 1969 Court of Appeal decisions recognizing the Martin rule. (E. g., People v. Wilcox, 276 Cal.App.2d 414, 416–417, 81 Cal.Rptr. 60; People v. Rodriquez, 274 Cal.App.2d 770, 774, 79 Cal.Rptr. 240; People v. Superior Court, 274 Cal.App.2d 228, 231, 78 Cal.Rptr. 830.) The opinions do not disclose the date of trial. In any event, in none of these cases was there apparently any contention made that the new Evidence Code countermanded the rule of Martin nor was there any consideration or discussion of any such contention in any of the opinions.

4.  We think it important to note that the case at bench does not present the problem of a search of the property or person of a third party which nevertheless, was, in fact, ‘directed at’ the defendant (see Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, 702). Here, it is clear that the arrest and search were ‘directed at’ Patterson alone.

5.  Said the court in Cahan:‘* * * the court under the old rule have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers.‘When, * * * the very purpose of an illegal search and seizure is to get evidence to introduce at a trial, the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced. * * *. Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such ‘dirty business'. [Citation.]’ (People v. Cahan, supra, 44 Cal.2d at p. 445, 282 P.2d at p. 912.)The first portion of the foregoing quotation was repeated in People v. Martin, supra, 45 Cal.2d at p. 760, 290 P.2d 855. Similar expressions appear in Mapp v. Ohio, supra, 367 U.S. at p. 659, 81 S.Ct. at pp. 1693–1694, 6 L.Ed.2d at p. 1092.

KAUFMAN, Associate Justice.

GARDNER, P. J., concurs.