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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Elbert Sidney ROGERS, Defendant and Appellant.

Cr. 29635.

Decided: October 20, 1977

R. J. Williamson, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Lawrence P. Scherb, II and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

By an amended information, defendant was charged in three counts with three separate offenses of oral copulation, in violation of Penal Code section 288a. It was further alleged that the victims were under the age of 14 years, and that defendant was more than 10 years older than the victims. In three additional counts, it was alleged that defendant committed three offenses of committing a lewd and lascivious act upon the body of a child under the age of 14 years, in violation of Penal Code section 288. The two victims of the oral copulation charges were alleged to be Dana S. and Jon S. The victims of the child molestation charges were alleged to be Dana S., Jon S., and their sister, Melonie S.

Defendant entered a plea of not guilty. His motions pursuant to Penal Code sections 995 and 1538.5 were heard and denied. Trial was by jury. Defendant's motion for judgment of acquittal was denied. The jury found the defendant guilty on all counts, and further found the allegations concerning the age of the victims and defendant to be true.

Criminal proceedings were adjourned and the court instituted mentally disordered sex offender proceedings. Physicians were appointed to examine defendant. The issue of whether defendant was a mentally disordered sex offender was submitted to the court upon the medical reports and additional testimony.

The court found defendant to be a mentally disordered sex offender, applying the beyond-a-reasonable-doubt burden-of-proof standard, and determined that defendant would benefit from care and treatment in a state hospital. Criminal proceedings remained suspended and defendant was ordered confined to Patton State Hospital pursuant to Welfare and Institutions Code section 6316. Defendant's motion for a new trial was denied.

Defendant has appealed from the judgment of conviction (the order of commitment as a mentally disordered sex offender) and from the denial of his motion made pursuant to Penal Code section 1538.5.[FN1]

As we have concluded that defendant's motion to suppress evidence should have been granted in the trial court, we summarize in some detail the evidence presented at the special suppression-of-evidence hearing. At issue therein was the legality of the arrest of the defendant in Lakewood Township, New Jersey, on November 14, 1975, and the subsequent police searches of defendant's van.

The prosecution offered the testimony of Adelbert Szatmary, a police officer in Lakewood Township. Around 5 p. m. on November 14, 1975, Szatmary was on patrol duty in a police vehicle when he received, by police broadcast, the information that a Caucasian male, between 35 and 40 years old, driving a light brown van with Georgia license plates, had attempted to molest some young males at the Lakewood Shopping Plaza.

Szatmary first went to the Plaza and attempted to locate the victims or the source of the information, but was unsuccessful. He then searched for the van, but did not find it. However, about 11:30 p. m. that evening, Szatmary saw a 1972 Dodge van, brown in color, with Georgia license plates, parked in the municipal parking lot near the police station, which is located about a mile from the Lakewood Shopping Plaza.

Szatmary radioed for assistance, and patrolman Holmes arrived at the scene. The two officers approached the van, and knocked on the side door. Defendant opened the door. The officers turned their flashlights on him, as the van was dark. Szatmary testified that, as a result of light shed in the van by their flashlights, he immediately saw on the floor of the van, three photographs of nude young males and also a bag of photographs, in which the top photograph was visible and depicted the same subject matter. The young males all appeared to be between 10 and 12 years of age, and were pictured in erotic poses. Szatmary formed the opinion that the pictures had been taken in the van, due to certain distinctive furnishings visible in the van and in the pictures. He also observed that defendant matched the description given earlier that day on the police radio broadcast of the purported molester.

Szatmary asked defendant what he was doing in the area. Defendant stated he had been sleeping and that he had parked the van near police headquarters because it looked like a quiet spot where he would not be bothered. Szatmary asked defendant if he had been at the Lakewood Shopping Plaza earlier that day. Defendant replied that he did not know where that was. Defendant said he remembered being at a Grants store; Szatmary knew that the only Grants store in town was at the Plaza.

Szatmary continued to question defendant. He asked defendant where he was from, and defendant stated he was from Georgia. Defendant was asked if he had had contact with any young boys at Grants store; he replied that he might have talked to some boys there. Szatmary decided to arrest defendant on suspicion of contributing to the delinquency of a minor, debauchery and possibly exposing obscene material to juveniles, all of which are crimes in New Jersey punishable by a state prison sentence.

Szatmary removed defendant from the van and also took the three photographs and the bag of photographs he had observed in the van from the use of the police flashlights. Defendant was placed against the police car and searched. He was then asked by Szatmary if he would consent to a search of the van. According to Szatmary, defendant said Szatmary could enter and look around. Szatmary did so, but seized nothing further at this time.

Szatmary testified that defendant was then taken to the police station, and his van to the police garage. When defendant had been booked (for investigation), he was searched and his wallet revealed four written lists. These lists were comprised of names, ages and dates they appeared to be of young boys and sometimes a location and/or an amount of money was entered next to the name. None of the names listed had Lakewood Township locations.

Defendant was then advised of his constitutional rights of custodial interrogation, but waived those rights.

Szatmary again entered the van, now parked in the police garage, and searched it. He found pornographic material and a loaded .22 caliber revolver, which he seized. Defendant was confronted with this weapon, and was subsequently charged with carrying a concealed weapon.

The next morning defendant signed a written consent for search of the van, after being told that he need not consent. Szatmary and Holmes returned to the van. Inside, Szatmary discovered and opened a suitcase, which contained letters and many photographs of naked young males, movie film (same subject) and color slides (same subject) as well as pornographic magazines. These items were seized.

Szatmary also testified that subsequent police investigation revealed nothing further about the alleged incident at the Lakewood Shopping Plaza. Defendant was discovered to be a civilian employee at the United States Naval Air Station in nearby Lakehurst, New Jersey. United States Naval Intelligence Service was notified about defendant, who was released from custody three or four days after his arrest.

Szatmary also testified that he had listened to the tape of the initial police broadcast concerning the purported molestation at the Lakewood Shopping Plaza, but the tape was not available at trial because it had been destroyed.

Investigator Tate (of naval intelligence) also testified. He investigates crimes of interest to the United States Navy, and maintained an office for that purpose at Lakehurst Naval Air Station, New Jersey, on November 15, 1975. On that date, Tate was advised by the Lakewood police that search of defendant's suitcase in his van had disclosed a letter and some photographs which indicated that a male child in a Navy family, the S. family, had been molested by defendant. The S. family were located in California.

Defendant testified at the special suppression-of-evidence hearing. His version of the events of November 14, 1975, and after, differed from Officer Szatmary's account. Defendant said he was awakened at 11:30 p. m. by two police officers who asked him to dress and step outside his van; while he was being questioned by Szatmary outside the van, the other officer, Holmes, conducted a search inside it. Holmes exited the van with a bag of photographs which the defendant had carefully put away, as he valued his collection which was the result of years of study. Defendant testified that the officers took him to the police station, where he was interrogated at great length.

Defendant testified that the police conduct involving constant interrogation and threats was such that he could not sleep. After many hours, defendant was advised that he would be released and his van and personal property returned to him if he signed what he thought was a release form. Defendant testified that he was unaware of his constitutional rights throughout this experience.

On November 17, 1975, in the Municipal Court in Lakewood, New Jersey, defendant was charged with carrying a concealed weapon. He was released, as was his van, although some of his property, including his gun, was not returned.

In rebuttal, at the suppression-of-evidence hearing, the prosecution offered the testimony of Patrolman Holmes, who denied the version of events testified to by defendant. Szatmary also again took the stand to deny the truth of defendant's testimony.

We deal only briefly with the additional testimony offered at the subsequent trial in this matter, as it is not relevant to our determination here. In sum, Mr. S. and his three children, Jon, Dana and Melonie, testified of the family friendship with defendant from 1970 to 1975. This testimony established that defendant often sought out the company of Jon and Dana and repeatedly molested them and encouraged them to engage in various sexual activities. All of this activity was accomplished without the knowledge of the S. parents. The S. children were often given small amounts of money to perform, and pictures were taken of them.

On this appeal, defendant contends that his motion to suppress evidence should have been granted on the basis of the unlawfulness of the New Jersey arrest, which, he asserts, led ultimately to the California prosecution.

Defendant specifically claims that there was no probable cause for his arrest pursuant to either New Jersey or California law.

When a California prosecution is based, at least in part, on evidence which has been gathered in another jurisdiction, it has been held that, even assuming that the other jurisdiction's law differs from that of California, California may apply its own law to the case, because of California's “interest in proceeding effectively to prosecute for a major crime committed within its boundaries. . . .” (People v. Orlosky (1974) 40 Cal.App.3d 935, 939, 115 Cal.Rptr. 598, 601.) Thus, in Orlosky, following a conclusion that California's interest was entitled to superior recognition, it was concluded that even though evidence was gathered in Indiana, which would not have been admissible in an Indiana prosecution, such evidence would not be excluded in the California prosecution because it was admissible here.

In the case at bench, we know not whether New Jersey courts would accept our view of reasonable cause for a warrantless search and arrest under the circumstances of this case. This is immaterial, however, because California principles must govern since California's interest in the prosecution of a felony committed within its borders is entitled to the superior recognition.

California Penal Code section 836 provides that a peace officer may, without a warrant, arrest a person whenever he has reasonable cause to believe that the person has committed a felony, whether or not a felony has in fact been committed.

“Reasonable cause” for arrest “exists when the facts known to the arresting officer ‘would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.’ (Citations.)” (People v. Harris (1975) 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 539, 540 P.2d 632, 635.)

Under California law, when the facts known to the arresting officer are based upon information received by him from another police officer, the inquiry is then extended to determine the existence of reasonable cause in the mind of the police officer-informant. The decisional law, and the underlying rationale for it, were discussed in some detail in People v. Madden (1970) 2 Cal.3d 1017, 1021, 88 Cal.Rptr. 171, 471 P.2d 971. The Madden court referred to People v. Lara (1967) 67 Cal.2d 365, 374, 62 Cal.Rptr. 586, 432 P.2d 202, which held that, while an officer may make an arrest without a warrant based on information received from other police officers or through “official channels,” the prosecution is required to establish, as part of its burden of proof in a warrantless arrest case, that the officer, who originally furnished the information to the arresting officer, had reasonable cause himself to believe that the suspect had committed a felony.

The Madden court also approved the discussion in Remers v. Superior Court (1970) 2 Cal.3d 659, 666-667, 87 Cal.Rptr. 202, 206, 470 P.2d 11, 15, where it was stated that “(i)t is well settled that while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, ‘when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness.’ (Citations.) To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer.” (Emphasis added.)

Lara, Remers and Madden thus require that the prosecution, in establishing the validity of the warrantless field arrest of defendant, must prove in court at the suppression-of-evidence hearing at which the validity of the warrantless arrest is to be determined, the underlying “honest and conscientious” belief of the police officer who provided the initial information that led to the field arrest. This was not done by the prosecution in the case at bench. Testimony from the arresting officer and his partner was offered, but not from the officer who provided the information contained in the police broadcast.

Szatmary's testimony that he listened to the tape of that broadcast at a later time in no way cures the deficiency in the proof offered at the special hearing below on defendant's motion to suppress the seized items of evidence. Nor does the fact that the defendant testified at the suppression-of-evidence hearing that he had indeed been at the Lakewood Shopping Plaza on November 14, 1975, attempting to recruit young boys, provide the missing proof, because this testimonial admission was not made to the arresting officer, Szatmary, at a crucial time, i. e., prior to the arrest. Had it been so made, the additional issue of constitutional rights relating to custodial interrogation would be injected herein.

Since the prosecution failed to prove the lawfulness of the New Jersey warrantless arrest, we are compelled to review the consequences of that arrest in the context of an initial instance of illegal police activity. The rule of law that requires exclusion of evidence acquired as the result of such illegal activity is aimed at deterrence of such police conduct. (Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.) Not all such evidence is excludable per se, however, but “(o)nce a defendant establishes a relationship between evidence and unlawful police activity, the People must prove the taint (of illegality) was purged.” (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 411, 118 Cal.Rptr. 617, 620, 530 P.2d 585, 588.)

Proof that the information at issue was already in the possession of the police, or was acquired by them from an independent source, has supported the determination that the taint of illegality was removed from the evidence. (Lockridge v. Superior Court (1970) 3 Cal.3d 166, 170, 89 Cal.Rptr. 731, 474 P.2d 683.)

The record before us demonstrates that the investigative path, commenced in New Jersey with the warrantless search of defendant's van, was made after his warrantless arrest. From the suitcase so discovered and opened by the police, the identity of the S. children was established and, thereafter, they became witnesses against defendant. As stated by the court in Lockridge, “this court has consistently held that the testimony of a witness who was discovered by the exploitation of illegal police conduct is not admissible.” (Lockridge, supra, 3 Cal.3d 166, 170, 89 Cal.Rptr. 731, 733, 474 P.2d 683, 685.)

Nothing offered by the prosecution leads to the conclusion that an “independent source” furnished evidence in this case; nor does the fact that defendant consented to the warrantless searches of his van a consent given after an initial illegal search and arrest provide sufficient basis for admission of the evidence obtained thereby. “The rule is clearly established that consent induced by an illegal search or arrest is not voluntary, and that if the accused consents immediately following an illegal entry or search, his assent is not voluntary because it is inseparable from the unlawful conduct of the officers. (Citations.)” (Burrows v. Superior Court (1974) 13 Cal.3d 238, 251, 118 Cal.Rptr. 166, 174, 529 P.2d 590, 598.) (Emphasis added.)

The failure of the prosecution to produce, at the suppression-of-evidence hearing, the police officer who furnished information to the testifying officer about defendant's alleged activity at the New Jersey Lakewood Shopping Plaza, is fatal to the prosecution's burden of proving the validity of defendant's warrantless arrest and subsequent warrantless search of his van. Had the information-supplying officer been produced and given testimony at the suppression-of-evidence hearing, a different result might well have been mandated. But we are compelled to follow the principles enunciated in Lara, Madden and Remers. Nor can we reject the plain and explicit language of Penal Code section 1538.5, subdivision (i), which governs a suppression-of-evidence hearing conducted in the superior court on a defendant's motion. That subdivision provides that “(t)he defendant shall have the right to litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing.” (Emphasis added.)

Defendant has made certain other contentions concerning the New Jersey investigation that we need not review here, in view of our conclusion that the failure to suppress evidence blow necessitates reversal of defendant's conviction. The evidence introduced against defendant at his trial was obtained as a result of a warrantless arrest and a warrantless search, and was not proved to have been legally obtained. The error in admitting such evidence is obviously of prejudicial and reversible proportions.

The judgment is reversed.


1.  Although an appeal may not be taken from an order denying defendant's motion to suppress evidence (Pen.Code, s 1237), made pursuant to Penal Code section 1538.5, the order is reviewable on an appeal from the judgment of conviction. (Pen.Code, s 1259.)

JEFFERSON, Associate Justice.

KINGSLEY, Acting P. J., and DUNN, J., concur.

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