PEOPLE v. BUENO

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

The PEOPLE, Plaintiff and Respondent, v. Francisco Torres BUENO, Defendant and Appellant.

Cr. 31920.

Decided: December 11, 1978

Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, and Aurelio Munoz, Deputy State Public Defender, 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., James H. Kline, Donald J. Oeser and Kathleen M. Crain, Deputy Attys. Gen., for plaintiff and respondent.

By information filed on June 13, 1977, defendant was charged with having committed on May 3, 1976, the felony offense of burglary in violation of Penal Code section 459. It was alleged that the burglarized premises consisted of a house occupied by Thelma M. Pratt. Defendant entered a plea of not guilty on June 22, 1977. On July 29, 1977, the court conducted a hearing on defendant's motion to suppress evidence made pursuant to Penal Code section 1538.5. The evidence which defendant sought to have suppressed was a prosecution exhibit—a fingerprint exemplar obtained from the defendant as a result of his arrest on June 4, 1976, for an unrelated attempted burglary. Defendant's motion was granted by Judge Juster on the ground that there was a lack of probable cause for defendant's arrest on June 4, 1976. The fingerprint exemplar was suppressed, and the matter set over for trial.

On September 8, 1977, the date set for trial, the prosecutor moved the court for an order requiring that defendant submit to fingerprinting. Judge Cunningham granted the prosecution's motion and a new fingerprint exemplar was taken from defendant. Defendant waived his right to trial by jury and was tried by the court and found guilty as charged. Probation was denied and defendant was sentenced to serve one year in the county jail, with credit allowed for 151 days spent in custody awaiting trial. Defendant has appealed from this judgment.

The Motion to Suppress Evidence

At the hearing on the motion to suppress evidence, the following testimony was presented. Gordon E. Kasper testified that on June 4, 1976, at approximately 2:00 p.m., he returned to his home. As he approached his home, he saw defendant Bueno and another man walking away from his home; they were approximately 50 to 100 feet from his house at the time he first saw them. The witness parked his car in an alley behind his home and observed that a window screen had been removed from his daughter's bedroom window. He went into his home, observed that nothing appeared to be missing, and went outside through the front of his house to talk to a neighbor. He asked his neighbor if he had seen anyone around his house and the neighbor informed him that defendant and his companion had been on the witness' front porch looking at his bicycle. The witness then reentered his home, verified that nothing appeared to be missing, got into his car and drove around the block and began to follow defendant and his companion. As the witness followed in his car, he observed the two men, on three different occasions, approach a home, walk into the side yard, look into the side yard, and then return to the front of the house, go to the door and ring the doorbell. On the third occasion, the two men disappeared from the witness' view. He was afraid they had entered the premises and he therefore drove his car very quickly and hit his brakes making the tires squeal, to let them know that he was present and watching. The two men appeared to look in the witness' direction on hearing the noise of the car, left the porch of the last residence and went onto a school ground.

The witness approached a neighbor who was mowing his lawn, asked the neighbor to call the police, and began to observe the two young men while waiting for the police. Defendant and his companion sat in the center of the school yard, apparently observing the witness. Some time thereafter, they left the school yard and began to walk down the street away from the school. At that time the police arrived; the witness provided the police with a description of the two men and informed the police of everything that had happened up to that point. While the witness was talking to the police the two suspects disappeared into a yard further down the street.

Officer William McCarter testified that he responded to the call placed on behalf of Mr. Kasper. After talking to Mr. Kasper, the officers drove in the direction that the defendant and his companion had last been seen. Mr. Kasper followed in his vehicle and honked at the officers when the two suspects emerged from the back yard area of a house. The officer noticed that the two suspects fit the description given by the witness. He approached the suspects, asked what they were doing in the area and whether they had any identification. Neither man had identification. Defendant answered that they were on their way to catch a bus. The officer testified that there had been numerous burglaries in that neighborhood which had been committed by persons who routinely went up onto porches, knocked on doors, and went around to inspect back yards. Matching this “M.O.” with the conduct of the suspects, and observing that the suspects had no identification, provided no home address, and had no valid explanation for their presence, the officer placed them under arrest for attempted burglary.

The record contains no explanation for the People's failure to appeal the trial court's ruling on the suppression motion, nor is any reason therefor apparent from a review of the foregoing evidence. In any event, the ruling was not challenged. The result of the ruling was that an exemplar of defendant's fingerprints, taken following his arrest, was ordered suppressed. Although no charges were brought against defendant in connection with the conduct observed by the witness Kasper, defendant's fingerprints were matched with latent prints taken from the home of a Mrs. Thelma Pratt, which had been burglarized some time prior to defendant's arrest.

Defendant's Contention on Appeal

Defendant contends that the second set of fingerprints, taken at the time of trial, were “come at by exploitation of” the illegality of his arrest; that they are therefore tainted by that original illegality and should not have been used in evidence against him. No other evidence connecting defendant with the Pratt burglary was introduced at trial; therefore, if the fingerprint evidence was improperly introduced, defendant's conviction must be reversed. Appellant's and respondent's briefs direct themselves to the question of whether the initial taint of defendant's arrest and fingerprinting had been dissipated so that the causal connection between the illegal arrest and subsequent fingerprinting was broken. Both parties appear to assume that this case is controlled by the holding of Davis v. Mississippi (1969) 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676. However, for the reasons set out hereinafter, we believe that Davis is distinguishable. Therefore, we need not address nor analyze the cases cited by the parties with respect to exploitation or attenuation of the initial taint.

In Davis v. Mississippi, supra, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, police officers, without warrants, and over a period of about 10 days, took at least 24 Negro youths to police headquarters, questioned them, fingerprinted them, and then released them without charge. Defendant Davis was arrested and fingerprinted a second time, again without a warrant. The state conceded on oral argument before the Supreme Court that there was no probable cause for either arrest. The Davis court held that the fingerprint exemplars obtained from the defendant during these illegal arrests were taken in violation of the defendant's Fourth Amendment rights and should have been suppressed.

However, the Davis court implies, in the majority opinion and in the concurring opinion of Justice Harlan that this rule may be limited to cases wherein the conduct of the police is factually similar to that in Davis. The court said at pages 727-728, 89 S.Ct. at pages 1397-1398: “It is arguable … that, because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense… We have no occasion in this case, however, to determine whether the requirements of the Fourth Amendment could be met by narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause to arrest. For it is clear that no attempt was made here to employ procedures which might comply with the requirements of the Fourth Amendment: the detention at police headquarters of petitioner and the other young Negroes was not authorized by a judicial officer; petitioner was unnecessarily required to undergo two fingerprinting sessions; and the petitioner was not merely fingerprinted during the December 3 detention but also subjected to interrogation.”

The existence of a possible exception to the Davis rule is also alluded to by Justice Harlan in his concurring opinion at pages 728 and 729, 89 S.Ct. at page 1398: “I join in the opinion of the Court with one reservation․ There may be circumstances, falling short of the ‘dragnet’ procedures employed in this case, where compelled submission to fingerprinting would not amount to a violation of the Fourth Amendment even in the absence of a warrant, and I would leave that question open.”

The conduct of the police in this matter is easily distinguishable from the activity condemned in Davis. The police here did not engage in a dragnet procedure by arresting and fingerprinting persons in an effort to connect them with crime. As recognized by the California Supreme Court in People v. McInnis (1972) 6 Cal.3d 821, 825-826, 100 Cal.Rptr. 618, 620, 494 P.2d 690, 692: “The taking of a photograph during the booking process is standard police procedure [Pen. Code, § 7, subd. 21], bearing no relationship to the purpose or validity of the arrest or detention. Commonly known as ‘mug shots,’ the photos are kept in permanent files regardless of the eventual disposition of the case; indeed, thousands of persons ultimately found to be entirely innocent undoubtedly have their photographs, as well as fingerprints, on record with law enforcement agencies. [Citations.]”

The language employed by the Davis majority and by the California cases interpreting and distinguishing that opinion lead to the conclusion that the motivation of the officers is a significant factor in determining whether fingerprint evidence is admissible. For example, in People v. Clark (1973) 30 Cal.App.3d 549, 559, 106 Cal.Rptr. 147, 152 (cert. den. 414 U.S. 852, 194 S.Ct. 146, 38 L.Ed.2d 101), defendant contended that fingerprint evidence should have been suppressed since it was acquired during the booking process following an allegedly illegal arrest. The Clark court ultimately concluded that the defendant's arrest was based on probable cause but observed: “The police conduct in the Davis case cannot fairly be compared with that in the case at bench. The defendant here was not taken into custody in a purse seine operation, nor was he arrested with [a] motive to obtain his fingerprints.” (Emphasis added.)

The existence of an exception to the Davis rule was recognized by the California Supreme Court in People v. Flores (1974) 12 Cal.3d 85, 115 Cal.Rptr. 225, 524 P.2d 353. In Flores, defendant contended that because the only evidence connecting him with the crime (fingerprints) resulted from an unlawful detention and arrest, his conviction should be reversed. The Flores court found the arrest lawful but noted at page 91, 115 Cal.Rptr. at page 228, 524 P.2d at page 356, footnote 3: “We likewise need not consider whether the procedures employed here are sufficiently distinguishable from the “‘dragnet” procedures' employed in Davis [citation] to warrant the exception to the rule as suggested in that case.”

The case of Fogg v. Superior Court (1971) 21 Cal.App.3d 1, 98 Cal.Rptr. 273, is based on facts similar to those in the instant case. Defendant was arrested and fingerprinted in 1966. His fingerprints were later used to connect him to a burglary committed in 1969 and on appeal from the 1969 conviction defendant contended that because the 1966 detention was illegal, the fingerprints obtained then and the fingerprints obtained during a preliminary hearing on the 1969 charge were the product of that initial illegal detention and were thus inadmissible. Because of the similarity to the case at bench, we quote rather extensively from the Fogg opinion at pages 7-8, 98 Cal.Rptr. at pages 276-277:

“To this there are several answers. First, the record does not really show that prints obtained after the 1966 arrest were used to connect defendant with the two burglaries. His prior record may have been such that his prints were not collectors' items in law enforcement circles. The arrest took place more than a month after the burglary charged in count I and defendant could have been identified as the burglar even before his arrest on an unrelated charge.

Further and foremost, it does not seem to be the law that the prosecution cannot proceed with legally obtained prints, simply because an illegally obtained set first revealed the defendant as a suspect.

At the time of the preliminary hearing this prosecution was in the same procedural posture as was the case in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, after the reversal of the conviction by the United States Supreme Court. In Davis the police seeking to identify the perpetrator of a rape whom the victim could only describe as a Negro youth, indiscriminately took twenty-four such youths to headquarters to have them fingerprinted. Davis' prints matched latent prints obtained at the victim's house. He was then tried and convicted with the use of the prints which, according to the Supreme Court, had been illegally obtained. If the position of defendant in the case at bar has merit, the court in Davis should have prohibited any further prosecution. Instead, it simply reversed the judgment of affirmance by the Mississippi Supreme Court. Lest there be any question that the decision contemplated a retrial with fingerprint evidence, we refer to the dissenting opinion by Justice Stewart in which he points out that the reversal was a ‘useless … gesture,’ since at the first trial the victim had identified Davis and there now existed ample probable cause to detain him and obtain a new set of prints. That, of course, was done in the present case on the day of the preliminary hearing when defendant was legitimately in custody because of the 1969 conviction.” (Emphasis added.)

The conclusion we reach in the instant case is in accord with People v. Solomon (1969) 1 Cal.App.3d 907, 82 Cal.Rptr. 215. The court there stated at page 910, 82 Cal.Rptr. at page 216: “On appeal, Solomon contends the court should not have allowed fingerprint evidence matching his prints to those the police found on the left front window of Miss Knox's car. He argues the police took his prints following an arrest judicially declared to be illegal, thus during an illegal detention and in violation of his Fourth Amendment rights. However, the prints of Solomon's fingers which were matched with the prints on the victim's car at trial were taken from Solomon at the jail after he had been bound over for trial at a preliminary hearing and arraigned. Solomon's Fourth Amendment rights were not violated when the police took samples of his fingerprints during a judicially authorized detention. (See Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1398, 22 L.Ed.2d 676, 681.)”

The Solomon holding, approving the in-court fingerprinting of a defendant irrespective of the legality of his arrest, is consistent with observations about the unique nature of fingerprint evidence which has been made by many courts, including the Davis majority. The Davis court, at page 727, 89 S.Ct. 1394, cited numerous arguments in support of the fact that the fingerprinting of a subject constitutes a very limited intrusion on his freedom. There is no probing into his private life, only one set of prints is needed, the evidence is inherently reliable and not subject to abuse, as a lineup might be, there is no danger of destruction, and the fingerprinting can be conducted at defendant's convenience.

To the same effect, see Bynum v. United States (1959) 104 U.S.App.D.C. 368, 262 F.2d 465. There, the court reversed defendant's conviction because it was based on fingerprint evidence acquired following an illegal arrest. The court noted, however, that on retrial it could well be easy for the government to prove defendant's guilt without using the product of his illegal detention—defendant could be refingerprinted during trial or older fingerprints, taken on a proper occasion, could be compared to connect defendant to the crime. On appeal following retrial Bynum v. United States (1960) 107 U.S.App.D.C. 109, 274 F.2d 767, the court affirmed defendant's conviction based on the comparison with fingerprints which had been on file prior to defendant's arrest.

In the instant case, the record supports the inference that defendant's fingerprints were “not collectors' items in law enforcement circles.” (Fogg v. Superior Court, supra, 21 Cal.App.3d 7, 98 Cal.Rptr. 276.)

The trial court noted that the defendant's “adult history” started in 1974 when he was arrested; that he had been arrested numerous times for crimes involving automobile theft; that he had been often deported to Mexico. It is extremely likely that were this matter reversed for retrial, defendant's conviction could be obtained by a comparison of the latent prints taken from the Pratt burglary with fingerprints of defendant which were on file prior to his 1976 arrest.

We conclude that the judicially authorized fingerprinting conducted in this case comes within the exception contemplated in Davis. The fingerprint exemplar used at trial was obtained in a manner consistent with constitutional requirements.

The judgment is affirmed.

I dissent.

The majority finds no merit in defendant's contention that the fingerprint evidence was admitted against him in violation of the constitutionally mandated exclusionary rule. I disagree.

I

The Procedural History

By information filed on December 14, 1977, defendant was charged with having committed on May 3, 1976, the felony offense of burglary in violation of Penal Code section 459. It was alleged that the burglarized premises consisted of a house occupied by Thelma M. Pratt. Defendant entered a plea of not guilty. On July 29, 1977, the date set for defendant's trial, the court first conducted a hearing on defendant's motion to suppress evidence made pursuant to Penal Code section 1538.5.

The evidence which defendant sought to have suppressed was a prosecution exhibit—a fingerprint exemplar obtained from the defendant as a result of his arrest on June 4, 1976, for an unrelated attempted burglary. Defendant's suppression-of-evidence motion was granted on the ground that there was a lack of probable cause for defendant's arrest on June 4, 1976, with the consequence that the fingerprint exemplar had been illegally obtained. Defendant's trial was then continued from July 29, 1977, to August 30, 1977, and thence to September 8, 1977.

On September 8, 1977, the prosecutor made a motion for an order requiring defendant to have his fingerprints taken. The trial court granted the prosecution's motion. Defendant then waived trial by jury and was tried by the court. Defendant was found guilty as charged. Probation was denied and defendant was sentenced to one year in the county jail, with credit allowed for 151 days in custody. Defendant has appealed from this judgment.

II

The Factual Setting

At defendant's trial Thelma Pratt testified that on December 3, 1976, she was residing at 5525 Coldwater Canyon in the Van Nuys area. She said that she left home about 8 a. m. and that she returned home about 2 p. m. At that time the full bottom section of her louvered window to the rear bedroom had been removed. She said that her bedroom was in complete disarray and that a .38 caliber revolver was missing. Thelma also testified that the glass louvers that were taken out of the window were stacked very neatly just below the window.

Forrest B. Holmes, a latent fingerprint expert employed by the Los Angeles Police Department, testified that on May 3, 1976, about 3 p. m., he went to the Pratt home on Coldwater Canyon and made four lifts of fingerprints from the louvers on the ground under the bedroom window. These lifts were placed on a photograph labeled a prosecution exhibit. The court then took a recess, over defendant's objection, to permit Officer Holmes to roll the defendant's prints and then compare them with the latent prints taken from the louvers of the Pratt window. Following the recess, Officer Holmes identified a fingerprint exemplar as one he had just taken from defendant, and testified that a comparison of this fingerprint exemplar with the latent fingerprints from the Pratt residence indicated that the same person made all the fingerprints, namely, the defendant. Over defendant's objection, the court received in evidence the exemplar of defendant's fingerprints.

Defendant introduced no evidence in his defense. The court then found defendant guilty, as previously indicated.

III

The Inadmissibility of the Exemplar of Defendant's Fingerprints Ordered Taken During the Midst of the Trial After a Prior Exemplar of his Fingerprints Is Suppressed as Having Been Taken as the Result of an Illegal Arrest Made Prior to the Arrest for the Charged Offense

It is defendant's contention that the fingerprint exemplar card, secured as a result of the trial court's order compelling defendant to submit to such fingerprinting, was inadmissible as constituting an exploitation of the illegally obtained fingerprints of defendant following his June 4 arrest and booking. The defendant relies principally upon the “fruit of the poisonous tree” doctrine.

The statement of the doctrine most frequently seen in the cases is that found in Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. There the United States Supreme Court stated: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ [Citation.]” (Id. at pp. 487-488, 83 S.Ct. at p. 417.)

The People take the position that defendant's fingerprints—secured upon the trial court's order—were properly admissible as not a fruit of the poisonous tree because of the rule of law that where “the connection between the lawless conduct of the police and the discovery of the challenged evidence” (Wong Sun supra, 371 U.S. 471, 487, 83 S.Ct. 407, 417, 9 L.Ed.2d 441) “is so attenuated as to dissipate the taint, such evidence is admissible.” (People v. McInnis (1972) 6 Cal.3d 821, 825, 100 Cal.Rptr. 618, 620, 494 P.2d 690, 692.)

The majority states that both parties in the instant case appear to assume that the case is controlled by Davis v. Mississippi (1969) 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676. But since the majority believes that the case before us falls within a possible exception to the Davis holding, it determines that it need not analyze or consider the question of whether the second set of fingerprints obtained in the instant case was come at by exploitation or attenuation of the initial taint. This represents faulty analysis by the majority. I do not read the record or the briefs as does the majority. I find no basis for the majority's assumption that the People and defendant agree that the case at bench is governed by Davis v. Mississippi to permit a simplistic solution.

The crux of the majority's position is that there was nothing illegal about the defendant's fingerprints which were taken as a result of an illegal arrest on an unrelated charge. The second set of defendant's fingerprints, ordered by the trial court, could not possibly, therefore, be the result of any exploitation of illegality, and no attenuation of a prior taint was needed to justify admissibility. It is my view that we cannot so easily escape a discussion of the cases relied upon by the People and the defendant unless we are prepared to ignore defendant's legal rights. I am not prepared to do this. I will therefore discuss some of the pertinent cases which the majority chooses to ignore and point out how these cases lead to the logical conclusion that defendant's conviction should be reversed and not affirmed.

It is the People's position that McInnis, supra, 6 Cal.3d 821, 100 Cal.Rptr. 618, 494 P.2d 690, is dispositive of the issue before us and requires a holding that the trial court correctly ruled that no constitutional rights of defendant were violated by the admission into evidence of the fingerprint exemplar card secured by the prosecution pursuant to the trial court's order in the instant case. The People assert that the factual situation in McInnis is substantially similar to that involved in the instant case, with the only difference being that McInnis dealt with photographic evidence, while the case before us deals with fingerprint evidence.

In McInnis, the defendant was prosecuted for a robbery offense. The victim and other witnesses were shown a photograph taken of defendant during his being booked after his earlier illegal arrest on a weapons charge. At the defendant's trial in McInnis, one of the witnesses testified that his identification of defendant as the robber was based on his observations on the night of the robbery and on the photograph. The trial court in McInnis, based upon the prosecution's stipulation, found that the photograph was the result of an illegal arrest but was not “incriminating in itself” and, hence, was admissible. The trial court denied the McInnis defendant's motion to suppress the photograph and to preclude the in-court identification of defendant made by the witnesses to the robbery.

The McInnis court held that there was no illegality involved in the use by the police of defendant's photograph obtained upon an earlier illegal arrest for a different offense to secure identification of defendant as the perpetrator of the robbery charged against defendant.

It was conceded in McInnis that the photograph of the defendant there, originally taken as a result of an illegal arrest, led to his connection with the current robbery. But the McInnis court relied upon a principle stated in Lockridge v. Superior Court (1970) 3 Cal.3d 166, 89 Cal.Rptr. 731, 474 P.2d 683, that if illegally obtained evidence connects a defendant with another crime by “pure happenstance,” the evidence becomes admissible against the defendant. In Lockridge, witnesses against the defendants, charged with robbery, became available as a result of police tracing of serial numbers of a gun seized illegally in an unrelated arrest. There was no evidence that, without the lead supplied by the gun, the police would have been able to connect the defendants with the robbery. Nevertheless, the Lockridge court held that that testimony of the witnesses to the robbery had not been “come at by exploitation of” the illegality involved in seizing the gun.

In Lockridge, the court took the view that, since the witnesses were already known to the police as the victims of an unsolved robbery, it was “pure happenstance” that the defendants were connected with the robbery by the serial numbers on the gun seized as a result of the defendants' arrests on totally unrelated crimes. In relying upon Lockridge, the McInnis court observed: “As in Lockridge, however, the illegal arrest was in no way related to the crime with which defendant was ultimately charged. Indeed, two independent agencies were involved: the robbery was being investigated by Pasadena policemen, while Los Angeles authorities made the previous illegal arrest. The fact that a tenuous link was forged between the illegal arrest and the robbery is more clearly ‘pure happenstance’ in the case at bar than in Lockridge.” (McInnis, supra, 6 Cal.3d 821, 825, 100 Cal.Rptr. 618, 620, 494 P.2d 690, 692.)

The McInnis court emphasized that the taking of a photograph during the booking process after an arrest is standard police procedure that bears no relationship to the purpose or validity of the arrest or detention. In similar fashion the People assert that, in the case at bench, the fingerprinting of an arrested person is standard police procedure as a part of the booking process after an arrest, which bears no relationship to the purpose or validity of a defendant's arrest. Thus, in the case at bench, the People assert that defendant's June 4, 1976, arrest and booking with the consequent fingerprinting bore no relationship to the purpose or validity of his arrest, and the fact that the police were able to identify defendant as the perpetrator of the Pratt robbery on May 3, 1976, by comparing the defendant's fingerprint exemplar card, obtained upon his June 4, 1976, arrest, with the prints lifted from the louvers of the Pratt window was “pure happenstance.”

The People point out that the principles set forth in Lockridge and McInnis were approved by the California Supreme Court in Loder v. Municipal Court (1976) 17 Cal.3d 859, 132 Cal.Rptr. 464, 553 P.2d 624. In Loder, the court rejected an effort by a plaintiff who sought a writ of mandate to compel erasure or return of the record of his arrest which did not result in a conviction. In approving of the McInnis and Lockridge principles, the Loder court observed that “the information derived from the arrest may be used by the police in several ways for the important purpose of investigating and solving similar crimes in the future. We have held, for example, that a photograph taken pursuant to even an illegal arrest may be included among those shown to a witness who is asked to identify the perpetrator of a subsequent crime․ and the same identification function is served, of course, by the arrestee's fingerprints and other recorded physical description.” (Loder, supra, 17 Cal.3d 859, 865, 132 Cal.Rptr. 464, 468, 553 P.2d 624, 628.) (Emphasis added.)

It is significant that the McInnis court points out that a result different from McInnis is obtained if the evidence which is illegally obtained is sought to be introduced in the very case that involves the illegal police conduct. (See McInnis, supra, 6 Cal.3d 821, 825, fn. 1, 100 Cal.Rptr. 618, 494 P.2d 690.) In People v. Sesslin (1968) 68 Cal.2d 418, 67 Cal.Rptr. 409, 439 P.2d 321, for example, a defendant was charged with forgery but his arrest was illegal. The police obtained handwriting exemplars from the defendant incidental to his arrest. The only proof of the forgery was testimony by an expert witness that the handwriting exemplars which were taken incidental to the arrest established that the handwriting on the check which was the subject of the forgery charge was that of the defendant. The court held in Sesslin that the handwriting exemplars were obtained by exploitation of the illegal arrest and were not admissible against the defendant.

In Davis v. Mississippi, supra, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, the defendant's fingerprints were obtained following an illegal arrest as a part of a rape investigation. In a prosecution for rape, an expert testified that a comparison of defendant's fingerprints with those found on the windowsill of the rape victim's home established that the defendant made the fingerprints that were found at the victim's home. The United States Supreme Court held that the fingerprint exemplars obtained from the defendant were inadmissible under both the Fourth and Fourteenth Amendments to the United States Constitution as a result of the illegal arrest.

In Sesslin and Davis, as contrasted with McInnis, the defendant's illegal arrest occurred during the police investigation of the crime charged against the defendant. Hence, “the illegal action of the police was part of the investigation of the very crime in which the evidence was discovered; clearly, the connection between the illegal conduct and the crime for which the defendant was prosecuted was not ‘pure happenstance.”’ (McInnis, supra, 6 Cal.3d 821, 825, fn. 1, 100 Cal.Rptr. 618, 620, 494 P.2d 690, 692.)

Similar to Sesslin and Davis is Bynum v. United States (1958) 104 U.S.App.D.C. 368, 262 F.2d 465. In Bynum (Bynum I) defendant was illegally arrested in connection with an investigation of a robbery since no probable cause was shown for the arrest. The defendant's fingerprints, obtained as a result of the illegal arrest, were admitted in evidence to connect defendant with the robbery for which he was being prosecuted. The United States Court of Appeals for the District of Columbia reversed the defendant's conviction on the ground that it was error for the trial judge to admit such evidence because the fingerprints were obtained in violation of defendant's Fourth Amendment rights. After the judgment was reversed defendant was retried for the robbery and convicted. In Bynum v. United States (1960) 107 U.S.App.D.C. 109, 274 F.2d 767 (Bynum II), on appeal from the second conviction, the court sustained the conviction. But at the second trial, the prosecution introduced a different and valid exemplar of the defendant's fingerprints. The second Bynum opinion points out that the prior reversal rested upon the use by the prosecution of a fingerprint exemplar of the defendant obtained as a product of his unlawful arrest, and then commented: “On the trial now under review the fingerprint so obtained was not used; instead, an older fingerprint in the files of the Federal Bureau of Investigation, in no way connected with the unlawful arrest, was used for purposes of comparison.” Bynum II, supra, 107 U.S.App.D.C. 109, 274 F.2d 767.

It is apparent that the situation presented in the case at bench is unlike that encountered in Davis v. Mississippi, People v. Sesslin, or Bynum I, since the fingerprint exemplars obtained from defendant and suppressed by the trial court were the result of an illegal arrest on an unrelated charge and not as a result of an illegal arrest involving the very offense which is the subject of the charge set forth in the information.

But the majority in the case at bench stresses the element in Davis v. Mississippi that, even though the arrest and finger-printing of defendant concerned the police investigation of the very crime for which defendant was ultimately charged, the fingerprinting of defendant was part of a dragnet procedure. The majority concludes that Davis v. Mississippi sanctions the use, in an unrelated case, of fingerprints obtained as the result of an illegal arrest, as long as that illegal arrest was not of the dragnet variety and the arresting police officer's motives were pure in not arresting the suspect for the express purpose of securing his fingerprints. This so-called exception doctrine from Davis v. Mississippi is pure dicta which is not even articulated by the Davis court with any degree of conviction since the court simply says that: “It is arguable … that, because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause ․” (Davis v. Mississippi, supra, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676.) (Emphasis added.)

The majority's interpretation of People v. Flores (1974) 12 Cal.3d 85, 115 Cal.Rptr. 225, 524 P.2d 353, as constituting a recognition by the California Supreme Court of the existence of an exception to the Davis v. Mississippi rule, I consider as a misreading of Flores. The Flores court first stated: “Fingerprint exemplars taken during an unlawful detention have been held to constitute tainted evidence subject to exclusion under Fourth Amendment constraints.” (Flores, supra, 12 Cal.3d 85, 90, 115 Cal.Rptr. 225, 228, 524 P.2d 353, 356.) The Flores court cites for this principle Davis v. Mississippi, supra, and People v. Hernandez (1970) 11 Cal.App.3d 481, 89 Cal.Rptr. 766. Then follows the footnote in which the Flores court states: “We likewise need not consider whether the procedures employed here are sufficiently distinguishable from the “‘dragnet” procedures' employed in Davis [citation], to warrant the exception to the rule as suggested in that case.” (Flores, supra, 12 Cal.3d 85, 91, fn. 3, 115 Cal.Rptr. 225, 228, 524 P.2d 353, 356.) (Emphasis added.) This footnote statement is a far cry from any approval by the Flores court of the suggested exception.

The majority states that the case of Fogg v. Superior Court (1971) 21 Cal.App.3d 1, 98 Cal.Rptr. 273, is based on facts similar to the case at bench. I perceive of no such similarity. Thus, the Fogg court observes: “Further and foremost, it does not seem to be the law that the prosecution cannot proceed with legally obtained prints, simply because an illegally obtained set first revealed the defendant as a suspect.” (Fogg, supra, 21 Cal.App.3d 1, 7, 98 Cal.Rptr. 273, 276.) (Emphasis added.) In the case at bench, contrary to the Fogg situation, we do not have the prosecution proceeding with “legally obtained prints.” The crucial issue in this case before us is whether, under the circumstances presented, the defendant's fingerprints, obtained pursuant to the trial judge's order, were illegally obtained rather than legally obtained.

Nor is the majority's conclusion in the instant case sanctioned by the case cited by the majority—People v. Solomon (1969) 1 Cal.App.3d 907, 82 Cal.Rptr. 215. At no point in the Solomon trial were Solomon's fingerprints suppressed as having been illegally obtained as was done in the case at bench. The trial court in Solomon did not provide the prosecution with a set of Solomon's fingerprints in order to enable the prosecution to circumvent another trial judge's suppression-of-evidence order, made in the same case, as was done in the case at bench.

Under the circumstances presented in the case before us, the “arguable” exception contemplated in Davis v. Mississippi does not avoid the conclusion that the fingerprint evidence used against defendant was inadmissible under the “fruit of the poisonous tree” doctrine because it was the result of an exploitation of the police illegality committed in obtaining defendant's fingerprints as a result of an illegal arrest.

Even a cursory analysis reveals that there is an essential and significant difference between the case at bench and People v. McInnis, supra, also relied upon by the majority in reaching its result that the procedures used against defendant were consistent with constitutional requirements. In the McInnis case, the illegally seized photograph was admitted into evidence by the trial court and the McInnis court sustained the ruling on the ground that even though the photograph had been illegally seized, it was seized in an unrelated case and, therefore, was properly admissible against the McInnis defendant because the taint of illegality was not being exploited. But in the instant case, the illegally seized fingerprints of defendant, obtained in an unrelated case, were suppressed pursuant to an evidence-suppression motion made in the instant case. The illegally seized evidence, therefore, was not admitted against defendant here as was the case in McInnis.

The question before us, therefore, is posed in the context of whether, under the circumstances presented in the case at bench of the only evidence to convict defendant with the charged burglary having been suppressed as illegally obtained evidence, the trial court could properly, in the midst of trial, aid the prosecution in the presentation of its case by requiring defendant to provide a fingerprint exemplar which the trial court knew was necessary for the prosecution to secure a conviction.

It is no answer to argue that the trial court's order did not violate defendant's right against self-incrimination. The rule is well established that it is not a violation of the self-incrimination privilege to require a defendant to produce nontestimonial physical evidence which may then be used against him. Requiring a defendant to make exemplars of his handwriting falls into this category. (For other examples, see People v. Sims (1976) 64 Cal.App.3d 544, 134 Cal.Rptr. 566 (defendant required to read various statements in presence of jury for identification purposes); People v. Allen (1974) 41 Cal.App.3d 196, 115 Cal.Rptr. 839 (defendant required to furnish hair samples for comparison purposes); People v. Breckenridge (1975) 52 Cal.App.3d 913, 125 Cal.Rptr. 425 (defendant required to stand the same distance from a witness that witness says she was from the robber).)

As a matter of policy and principle, the case at bench may be compared with People v. Berger (1955) 44 Cal.2d 459, 282 P.2d 509. In Berger, a defendant was indicted for conspiracy to commit grand theft and petty theft and conspiracy to solicit for charitable purposes without a permit. Documents were illegally seized from defendant's premises and then ordered returned to defendant. The prosecution, however, surreptitiously made photostatic copies of the documents before they were returned to the defendant. At the defendant's trial, the court admitted the photostatic copies in evidence in spite of the defendant's objection that these copies were a product of the illegal search and seizure and were as inadmissible as the original documents. In reversing the trial court's ruling, the Berger court remarked that “[s]ince the photostats are as much a product of the illegal search and seizure and are as tainted by it as the original papers themselves [citation], the deception practiced by the prosecution in this case cannot circumvent the rule adopted in People v. Cahan [44 Cal.2d 434, 282 P.2d 905], …” (Id. at 462, 282 P.2d at 511; see People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905.)

In the case before us, after a full evidentiary hearing on defendant's motion made pursuant to Penal Code section 1538.5, the trial court, on July 29, 1977, suppressed as being illegally obtained the fingerprint card of defendant made during the booking process after his arrest without probable cause on June 4, 1976. Defendant's case was then set for trial on August 30, 1977, which is more than 30 days after the granting of the suppression-of-evidence motion. The prosecution made no effort to seek a review of the correctness of the trial court's ruling. Penal Code section 1538.5, subdivision (o), specifically authorizes such a review by providing that “[w]ithin 30 days after a defendant's motion is granted at a special hearing in the superior court, the people may file a petition for writ of mandate or prohibition, seeking appellate review of the ruling regarding the search or seizure motion.” (See People v. Carrington (1974) 40 Cal.App.3d 647, 648, 115 Cal.Rptr. 294.)

Had the prosecution sought a review of the trial court's ruling, it might have been successful because of the principles set forth in the McInnis case. But we do not know this. Instead of doing so, however, the prosecution abided by the ruling and, at the beginning of defendant's trial, which did not actually start until September 8, 1977, a date more than 30 days after the court's order of suppression of July 29, 1977, made a motion for the trial court to order defendant to provide the prosecution with an exemplar of his fingerprints. Although this is not a case of deception practiced by the prosecution such as occurred in Berger, it does represent a conscious effort by the prosecution to avoid the legislative requirement that the prosecution must seek appellate review of a trial court's order suppressing evidence—as provided by Penal Code section 1538.5, subdivision (o)—in order to avoid the normal result of a dismissal of the action because of the deficiency in proof without the suppressed evidence.

At the beginning of defendant's trial below, the prosecution was in the position, because of its own neglect and culpability, of not having any evidence to connect defendant with the burglary of the Pratt residence because of the prosecution's failure to seek appellate review of the trial court's suppression-of-evidence order. By granting the prosecution's motion for an order compelling defendant to provide an exemplar of his fingerprints, the trial court was aiding and abetting the prosecution in avoiding the latter's duty under Penal Code section 1538.5, subdivision (o), of obtaining an appellate review of the trial court's own order holding that defendant's fingerprints had been illegally obtained as a result of the illegal arrest on June 4, 1976, and, therefore, were inadmissible against defendant.

In making the order compelling defendant to provide an exemplar of his fingerprints and thus furnish the prosecution with the evidence which it needed for defendant's conviction, the trial court must be deemed to have violated the principle of the preservation of judicial integrity. The trial court's order, under the circumstances presented, amounted to lending the court's aid to the illegal police conduct of obtaining evidence of defendant's fingerprints on June 4, 1976, by means of an illegal arrest, and to the prosecution's circumvention of Penal Code section 1538.5, subdivision (o).

This principle of the preservation of judicial integrity—one of the two reasons that support the exclusionary rule for evidence seized or obtained in violation of a defendant's constitutional rights—is set forth in People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 367, 545 P.2d 272, 279. In holding that a statement, taken from defendant in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, could not be used for impeachment purposes any more than it could not be used in the prosecution's case in chief, the court employed the following language to state the “preservation-of-judicial-integrity” ground for the exclusionary rule: “In addition to the likelihood that police misconduct may be encouraged by Harris [Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1], we are further convinced of the impropriety of receipt of this evidence by a significant rationale of the exclusionary rule itself. In People v. Cahan (1955) 44 Cal.2d 434, 445, 282 P.2d 905, 912, 50 A.L.R.2d 513, the landmark case in which this court adopted the rule for California two decades ago, we said, ‘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.”’ In the case at bar, accordingly, exclusion of the statements illegally extracted from defendant by Detective Yost would ‘relieve the courts from being compelled to participate in such illegal conduct.’ (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 156, 98 Cal.Rptr. 649, 652, 491 P.2d 1, 4].)” (Fn. omitted.)1

The majority opinion also seeks to justify its holding on the ground that, if defendant's conviction is reversed, it is extremely likely that defendant's conviction could be obtained by the use of fingerprints on file with the police prior to the 1976 arrest. I cannot subscribe to this kind of clairvoyance. The majority doesn't tell us why the prosecution failed to obtain, for use at defendant's trial, an existing valid set of fingerprints within the more than 30 days that elapsed between the suppression of the illegally obtained prints and defendant's trial. At any rate, if we follow the majority's logic, a defendant's constitutional rights need not be enforced if we are able to speculate that he will be convicted properly upon a retrial. Such treatment of an individual's constitutional rights should not be condoned.

I would reverse the judgment of conviction.

FOOTNOTES

1.  In People v. Nudd (1974) 12 Cal.3d 204, 115 Cal.Rptr. 372, 524 P.2d 844, the California Supreme Court held that, although a defendant's confession was secured in violation of Miranda and was thus inadmissible in the prosecution's case in chief, it became admissible as a prior inconsistent statement for the limited purpose of impeaching defendant after he had testified as a witness, under the holding of Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. In People v. Disbrow (1976) 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272, the California Supreme Court reversed Nudd and held that the California courts would no longer follow Harris.

ALARCON, Associate Justice.

FILES, P. J., concurs. JEFFERSON, Associate Justice, dissenting.