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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; Michael GUHEEN, Real Party in Interest.

Civ. 41552.

Decided: December 13, 1977

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Thomas A. Brady, John B. Moy, Deputy Attys. Gen., San Francisco, for petitioner. Sheldon Portman, Public Defender, Allen Fleishman, Nancy Hoffman, Deputy Public Defenders, San Jose, for real party in interest.

On the petition of the People we ordered an alternative writ of mandate to test the validity of an order of the Superior Court of Santa Clara County suppressing evidence under Penal Code section 1538.5. The evidence at issue was vital to the prosecution and conviction of Michael Guheen for burglary (Pen. Code, s 459) and receiving stolen property (Pen. Code, s 496).

We find no conflict in the relevant evidence.

Around 9:30 o'clock one morning in downtown San Jose a police officer observed Guheen “unloading a stereo from the rear of (the) trunk of a vehicle,” in a parking lot adjacent to a pawnshop. The officer stopped his marked police vehicle “in such a position that (he) blocked (Guheen's) ability to drive the car away, . . .” His intention was to talk to Guheen before he went into the pawnshop, and if Guheen had walked away he “would have prevented him, . . .” The officer testified: “At the time this conversation was going on I was seated in the police car and he was in front of his car. He had set the stereo on the hood of his car and I was just talking with him, conversing with him.” Guheen was then asked “if it was his stereo.” He said that it was, and that he was going to try to get $20 for it in the pawnshop. It appeared to the officer that “it's worth a lot more than that” so, the officer testified, “I asked him if I could check it out by running the serial number through the computer.” Guheen agreed, saying “Yes; I'm in a hurry, go ahead,” and the officer “got out of the car to write the serial number down on (sic ) the stereo receiver.” But nevertheless it was the officer's “opinion that (Guheen) was reluctant to let (the officer) see those serial numbers, . . .” Guheen then took the stereo into the pawnshop. The police radio soon advised that the stereo was stolen property, and upon Guheen's return to his vehicle he was arrested. Guheen had pawned the stereo. He had left with the pawnbroker his correct name, signature, address, driver's license number, and birthdate, together with a description of his sex, hair, eyes, height and weight. On his person were the pawn tickets which were seized by the officer.

Another police officer, assigned to a unit which “covers pawnshops,” testified at the hearing on Guheen's motion to suppress. She related the following. In accordance with Financial Code section 21208, the city's pawnbrokers each day furnish the police department with descriptions of all pawned property, and the name and address of the person pawning it. The reports contain: “The full name, last name, first name, middle name. A place where they put their loan number. Sex, description of party. Sex, hair, eyes, weight, height, date of birth. Whether they are white, Negro, Oriental, Mexican. Their residence, driver's license or other ID. Date and the store code, which is a code which store the item is pawned at. Our city-county code. A serial number of the item. Any other numbers, model numbers that might be on it, and then the type of loan whether it's a pawn or a buy or it's on consignment. The amount of money, and then a description of the article.” The serial numbers of such pawned property are then checked against the police computer, and when stolen property is thus discovered, appropriate police action is taken in relation to the person who pawned it. The witness' testimony was uncontroverted.

We recognize of course that there “is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.” (Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889 (conc. opn. of Mr. Justice White); People v. Manis, 268 Cal.App.2d 653, 662-663, 74 Cal.Rptr. 423; and see People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57; People v. Chapman, 34 Cal.App.3d 44, 47, 109 Cal.Rptr. 840.) But a detention of a person under a show of police authority will be constitutionally justified only where there is a “good faith suspicion” of criminal activity on the part of the person detained. (People v. Harris, 15 Cal.3d 384, 388-389, 124 Cal.Rptr. 536, 540 P.2d 632 (cert. den., 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175); People v. Flores, 12 Cal.3d 85, 91, 115 Cal.Rptr. 225, 524 P.2d 353.) We are of the opinion that the superior court reasonably concluded that here there was a detention under show of police authority, and without a good faith suspicion.

But there is nevertheless a remaining consideration. It appears from the uncontroverted evidence of the policewoman that the fact of Guheen's pawning of the stolen stereo would have promptly become known to the police, even if such a violation had not occurred.

The apposite rule is tersely stated by People v. Aylwin, 31 Cal.App.3d 826, 838, 107 Cal.Rptr. 824, 833, in this manner: “The (rule is described as) the inevitable discovery rule. If illegally obtained evidence would have been discovered in any event, then what was obtained unlawfully may be admitted.” Other authorities elaborating upon the rule are: Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441; Krauss v. Superior Court, 5 Cal.3d 418, 422-423, 96 Cal.Rptr. 455, 487 P.2d 1023; Lockridge v. Superior Court, 3 Cal.3d 166, 170, 89 Cal.Rptr. 731, 474 P.2d 683 (cert. den., 402 U.S. 910, 91 S.Ct. 1387, 28 L.Ed.2d 652); People v. Teale, 70 Cal.2d 497, 506-507, 75 Cal.Rptr. 172, 450 P.2d 564; People v. Kanos, 70 Cal.2d 381, 386, 74 Cal.Rptr. 902, 450 P.2d 278; People v. Stoner, 65 Cal.2d 595, 602-603, fn. 3, 55 Cal.Rptr. 897, 422 P.2d 585; People v. Chapman, 261 Cal.App.2d 149, 169, 67 Cal.Rptr. 601; People v. Thomsen, 239 Cal.App.2d 84, 91, 48 Cal.Rptr. 455; Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205, 209, cert. den., 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86; Somer v. United States, 2 Cir., 138 F.2d 790, 792.

“The purpose of the exclusionary rule is to deter unlawful police conduct.” (Lockridge v. Superior Court, supra, 3 Cal.3d 166, 171, 89 Cal.Rptr. 731, 734, 474 P.2d 683, 686; see Mapp v. Ohio, 367 U.S. 643, 651-653, 81 S.Ct. 1684, 6 L.Ed.2d 1081.) That purpose will adequately be served by suppressing evidence of the pawn tickets acquired from Guheen as a result of his improper detention. But it would not be served by suppressing evidence such as the pawnshop's reports, or its records, or the stolen stereo, or the policeman's observations before the invalid detention. The record establishes that such evidence would inevitably have been acquired by the People had the unlawful detention not occurred. The inevitable discovery rule is applicable as to such evidence.

We are unpersuaded by the argument that but for the policeman's detention of Guheen, the latter might have changed his mind about disposing of the stereo at the pawnshop, or might have given the shopkeeper a spurious name, or address, or driver's license. Such speculation was not properly before the superior court, nor is it properly to be considered by us.

The superior court will modify its order suppressing evidence to conform to our expressed views. Let the peremptory writ of mandate issue accordingly.

The record does not support the conclusion advanced that the remaining evidence sought to be suppressed (the stereo equipment) would inevitably have been acquired in the absence of the unlawful detention: The so-called “inevitable discovery rule” (People v. Aylwin, 31 Cal.App.3d 826, 839, 107 Cal.Rptr. 824), in reality an extension of the doctrine of attenuation (Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441; People v. Sesslin, 68 Cal.2d 418, 428, 67 Cal.Rptr. 409, 439 P.2d 321), applies to purge the taint of the primary illegality only where it is shown that “an intervening independent act by the defendant or a third party . . . breaks the causal chain linking the illegality and evidence in such a way that the evidence is not in fact obtained ‘by exploitation of that illegality.’ ” (People v. Sesslin, supra, at p. 428, 67 Cal.Rptr. at p. 416, 439 P.2d at p. 328; see People v. Teale, 70 Cal.2d 497, 507, 75 Cal.Rptr. 172, 450 P.2d 564.) Once the primary illegality is shown, as here, the burden rests upon the prosecution to show the existence of an intervening act (People v. Sesslin, supra, 68 Cal.2d at p. 428, 67 Cal.Rptr. 409, 439 P.2d 321) severing the necessary connection. (People v. Aylwin, supra, 31 Cal.App.3d at p. 839, 107 Cal.Rptr. 824.) That burden was not fulfilled and the trial court implicitly so found.

Moreover, aside from the tainted evidence itself, there is nothing in the record that would have inevitably linked the defendant to the contraband. The testimony of the officer (assigned to the property unit) describing the pawnbroker's statutory1 duty to transmit daily reports of pawn transactions and the processing of reported information constitutes but “pure speculation” as to whether identifying information would have been provided at the time of the transaction, and the trial court so found. Stated differently, no evidence was ever inevitably discovered, either by “happenstance” (Lockridge v. Superior Court, 3 Cal.3d 166, 171, 89 Cal.Rptr. 731, 474 P.2d 683) or otherwise, and none was presented during the hearing.

Since the only evidence was obtained by exploitation of an illegal detention, it may not be used to convict. (People v. Sesslin, supra, 68 Cal.2d 418, 426-427, 67 Cal.Rptr. 409, 439 P.2d 321; People v. Moore (1968) 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800.)

Accordingly, I would deny the writ.


1.  Financial Code, section 21208.

ELKINGTON, Associate Justice.

SIMS, J., concurs.