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

PEOPLE of the State of California, Plaintiff and Respondent, v. Grant Milton ANDERSON, Defendant and Appellant.


Decided: September 07, 1984

John Van de Kamp, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Clifford K. Thompson, Jr., Ronald E. Niver, John W. Runde, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Thomas S. Worthington, Hovde, Worthington & Miller, Salinas, for defendant and appellant.

Defendant Anderson was charged in the superior court in 1981 with (1) seven counts of robbery in the perpetration of which he personally used a firearm, (2) escape from a county jail, (3) possession of a concealable firearm by one previously convicted of a felony, and (4) possession of a controlled substance in violation of Health and Safety Code section 11350.   It was further alleged in the information that he had previously been convicted of the crime of robbery.

Pursuant to negotiated pleas of guilty to two counts of robbery by use of a firearm, the remaining charges and allegations were dismissed.   He appeals from the judgment which was entered upon his guilty pleas.

The appeal's only contention is that the superior court erred in denying his Penal Code section 1538.5 motion to suppress a photograph (and its “poisonous fruits”) taken in 1977 during the execution of a judicially established invalid search warrant.

The relevant factual context follows.

A pharmacist victim of one of the robberies charged against Anderson reported to police officers that one of the robbers, among other things, “was wearing a full-face motorcycle helmet that was white in color.”  (Our emphasis.)   The victim of another such drugstore robbery, 11 days later, reported that it was committed by two persons, one of whom wore a helmet which was blue in color.   Within a few hours after the latter robbery, police officers dispatched to a church, discovered therein clothing appearing to have been worn by the robbers, together with a motorcycle helmet “spray-painted blue.”  (Our emphasis.)   Soon thereafter a third pharmacy was burglarized and, as in the case of the earlier robberies, narcotics and controlled substances were stolen.   However, during its course, a citizen had observed a nearby strange pick-up truck and had made a note of its license number.

Police investigation traced the registered ownership of the observed vehicle to defendant Anderson.   Anderson, who had a substantial local police record, thus became a suspect in relation to the burglary, and his police files were examined.   In the files was a photograph taken during execution of a search warrant of his residence four years before, in 1977.   It depicted the upper shelf of a closet upon which appeared a white motorcycle helmet.   Since the offense relating to the earlier search warrant was much the same as those of the recent robberies where a white and then a blue motorcycle helmet had been involved, the photograph seemed significant to an investigating police officer.

Further investigation and tests of the blue motorcycle helmet worn by one of the robbers disclosed that it had originally been white in color, and that dents and serrations upon it precisely matched similar markings appearing on the photograph.   Anderson thus became a prime suspect in the above-related robberies and burglary.   The motorcycle helmet, the photograph, and other evidence led to his arrest, prosecution and guilty pleas.

We advert now to a consideration of the 1977 search warrant of Anderson's premises and the photograph taken during its execution.   Other evidence, unrelated to the motorcycle helmet, found during the search tended to inculpate one Soza in a crime's commission.   Charged with the crime, Soza and Anderson had moved under Penal Code section 1538.5 to suppress the incriminating evidence against them.   The superior court denied the motion.   Thereafter, upon his conviction of the charged crime, Soza alone appealed to this court.   He contended that the warrant for the search of Anderson's apartment had been issued without probable cause therefor, requiring suppression of the evidence which brought about his conviction.

We reversed, and on the basis of Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, held, by an unpublished opinion, that the affidavit upon which a magistrate had issued the search warrant did not establish probable cause, and that the seized evidence against Soza should have been suppressed.

(The “two-pronged test” of Aguilar v. Texas, supra, 378 U.S. 108, 84 S.Ct. 1509, has since been disapproved by Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, and the “totality of the circumstances” approach, under which we probably would have ruled differently, has been substituted for it.)

In the case now before us Anderson had, as previously indicated, moved, under Penal Code section 1538.5 to suppress evidence of the 1977 photograph and its “fruits” which had led to his arrest and prosecution, and, in the absence of such essential evidence, for dismissal of the charges against him.

The superior court denied the motion to suppress, thus triggering the instant appeal.

In denying the motion the superior court stated:

“The—the 1977 search, as I indicated at the beginning, I still don't understand the theory under which that search was—which the evidence was suppressed.   If the officers do everything that they're supposed to do—they collect the evidence, they submit it in a declaration, the declaration is accurate, is not misleading, they haven't withheld any information that's—or put in any false information, and the appellate court decides that the magistrate made a mistake in issuing the warrant—the theory behind excluding the evidence is to punish the officer for doing something wrong.   The officers did nothing wrong in that 1977 search.

“I have never seen a case that explains why, under those circumstances, the evidence is suppressed.   Perhaps it's to punish the magistrate because the magistrate made a mistake;  I don't know.   I don't think the magistrate is punished;  the magistrate is not a law enforcement officer, and if he has an axe to grind, shouldn't be issuing a warrant in the first place, should be disqualifying himself if he has some personal interest in the matter.

“But nonetheless, it's a 1977 search, and I'm satisfied that suppressing the photograph in 1981 when it's viewed by an officer who does not know that it's been suppressed in 1977 certainly is not necessary to obtain the [objective] of the exclusionary rule, basically would be taking it to absurd technical lengths.”

(Parenthetically, we here observe that the only point upon which the parties appear to agree on this appeal, is that in relation to the 1977 search warrant the police officers, acting in good faith and believing such evidence as they had to constitute probable cause for a search warrant, took that evidence to a magistrate for a judicial determination of that fact.)

Anderson contends error, as a matter of law, in the superior court's rejection of our holding that the search warrant was constitutionally invalid, and in not suppressing its “fruits,” the photograph and the evidence to which it led.

Responding, the People point to the following high authority.

“The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right.   By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused.   Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.”  (United States v. Peltier (1975) 422 U.S. 531, 539, 95 S.Ct. 2313, 2318, 45 L.Ed.2d 374;  Michigan v. Tucker (1974) 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182.)

“From the inception of the exclusionary rule, we have made it clear that the rule has a two-fold purpose:  To deter the police from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in illegal conduct.”  (People v. Blair (1979) 25 Cal.3d 640, 655, 159 Cal.Rptr. 818, 602 P.2d 738.)

“The penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve.”  (United States v. Ceccolini (1978) 435 U.S. 268, 279, 98 S.Ct. 1054, 1061, 55 L.Ed.2d 268.)

“[W]e simply decline to extend the court-made exclusionary rule to cases in which its deterrent purpose would not be served.”  (United States v. Peltier, supra, 422 U.S. 531, 538, 95 S.Ct. 2313;  Desist v. United States (1969) 394 U.S. 244, 254, fn. 24, 89 S.Ct. 1030, 1036, fn. 24, 22 L.Ed.2d 248.)

Summarizing, the People say that where, as here, police officers have acted in good faith and without “lawlessness,” by submitting the question of probable cause for issuance of a search warrant to a judicial officer, the sanction of suppression of evidence obtained thereby is neither reasonable nor required by law.   They insist that we should, as said in United States v. Peltier, supra, 422 U.S. 531, 538, 95 S.Ct. 2313, 2318, “simply decline to extend the court-made rule to cases in which its deterrent purpose would not be served.”

But Anderson argues that we are confronted with the procedural fact of a final judicial determination of this court, that the 1977 search warrant was constitutionally invalid requiring suppression of evidence seized thereunder.   He insists that under the well-known rules of “collateral estoppel,” an off-shoot of “res judicata,” that determination is now binding upon us.  (See People v. Uhlemann (1973) 9 Cal.3d 662, 668, fn. 4, 108 Cal.Rptr. 657, 511 P.2d 609;  Witkin, Cal.Crimes (1963) § 221, p. 211, et seq., and the authority there collected.)

And he points to Penal Code section 1538.5's subdivision (d), which as applicable here states:

“If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movant at any trial or other hearing unless further proceedings authorized by this section, ․ are utilized by the people.”  (Our emphasis.)

Although section 1538.5 is sometimes referred to as a statutory suppression rule, it gives effect to the Fourth Amendment and its California equivalent, and no more.   In its preamble it states:  “A defendant may move ․ to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:  (1) The search or seizure without a warrant was unreasonable.  (2) The search or seizure with a warrant was unreasonable because (i) the warrant is insufficient on its face;  (ii) the property or evidence obtained is not that described in the warrant;  (iii) there was not probable cause for the issuance of the warrant;  (iv) the method of execution of the warrant violated federal or state constitutional standards;  (v) there was [a] violation of federal or state constitutional standards.”  (Emphasis added.)

And subdivision (n) of the statute, among other things, provides:  “Nothing in this section shall be construed as altering (i) the law of standing to raise the issue of an unreasonable search or seizure;  (ii) the law relating to the status of the person conducting the search or seizure;  (iii) the law relating to the burden of proof regarding the search or seizure;  (iv) the law relating to the reasonableness of a search or seizure regardless of any warrant which may have been utilized;  ․”  (Emphasis added.)

 And such res judicata or collateral estoppel effect as a suppression order under section 1538.5 may have, will apply only to the existing criminal proceeding as to which the order is made.   It was said in People v. Williams (1979) 89 Cal.App.3d 1026, 1032, 152 Cal.Rptr. 892,

“We construe section 1538.5, subdivision (d), which states that suppressed ‘evidence shall not be admissible against the movant at any trial or hearing,’ as referring to a trial or hearing in the particular cause of action in which the suppression ruling is made.”  (Emphasis added.)   And we held in People v. Superior Court (Brotherton) (1983) 147 Cal.App.3d 281, 287, 195 Cal.Rptr. 96, that an “order granting a motion to suppress evidence, section 1538.5, subdivision (d) will preclude relitigation of the suppression issues upon a subsequent filing in the same county of the identical charges․”  (Emphasis added.)   And it is held that:  “Penal Code section 1538.5 does not require its application to subsequent prosecutions on different charges.”  (Buttimer v. Alexis (1983) 146 Cal.App.3d 754, 762, 194 Cal.Rptr. 603.)   Here the instant criminal proceeding is patently a prosecution “on different charges ” than those of 1977.

(Even at a trial of the action in which the suppression order was granted, the People may “seek to reopen the matter at trial upon a showing of good cause.”  (People v. Brooks (1980) 26 Cal.3d 471, 476, 162 Cal.Rptr. 177, 605 P.2d 1306), and see Pen.Code, § 1538.5, subd. (j).)

Indeed, the state's high court has found it “absurd” to suppose that “the Legislature intended [section 1538.5's above-noted] subdivision (d) to serve as a general exclusionary rule making all illegally obtained evidence inadmissible;  ․ its purpose is considerably more modest.”  (People v. Belleci (1979) 24 Cal.3d 879, 888, 157 Cal.Rptr. 503, 598 P.2d 473.)

We are brought to the People's alternative argument of the appeal, that:  “The magistrate's error was attenuated by the good faith discovery of the photograph as evidence in this case, by the passage of time, and by appellant's own intervening acts.   The suppression ruling should be upheld on this ground.”   (Emphasis added.)

The concept of such “attenuation” may be said to have its origin in Wong Sun v. United States (1963) 371 U.S. 471, 487–488, 83 S.Ct. 407, 417–418, 9 L.Ed.2d 441, where the 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.’ ”

And the state's high court has said:  “That degree of ‘attenuation’ which suffices to remove the taint from evidence obtained directly as a result of unlawful police conduct requires at least an intervening independent act by the defendant or a third party which 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 (1968) 68 Cal.2d 418, 428, 67 Cal.Rptr. 409, 439 P.2d 321;  emphasis added.)

 It is of the essence of the “attenuation rule” that although the evidence at issue may have initially been subject to suppression, nevertheless a change of circumstances and passage of time may justify its admission.   “Evidence unlawfully obtained does not forever ‘become sacred and unaccessible’ ” (Nardone v. United States (1939) 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307), and the “connection” between the manner in which such evidence is obtained, and its later desired use, “may have become so attenuated as to dissipate the taint.”  (Idem., p. 341, 60 S.Ct. p. 268.)  “Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.”  (United States v. Calandra (1974) 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561.)   The existence of attenuation will be based upon the “totality of circumstances” of the case (United States v. Wellins (9th Cir.1981) 654 F.2d 550, 553), and it depends upon both “reason and precedent” (People v. Thomas (1980) 112 Cal.App.3d 980, 986, 169 Cal.Rptr. 570).

 And the attenuation rule will reasonably be most apposite where, as in the case before us, the constitutional illegality rests, not upon “unlawful police conduct” but instead, upon judicial error.

Following Wong Sun and Sesslin, it has been consistently held that:

“If the defendant commits an intervening independent act which breaks the causal chain between the illegality and the evidence, the evidence is sufficiently attenuated and there is no exploitation of the illegality․  The voluntary commission of an offense subsequent to illegal police conduct is sufficient to dissipate the taint caused by the original police misconduct.”   (People v. Caratti (1980) 103 Cal.App.3d 847, 852, 163 Cal.Rptr. 265, emphasis added;  see also authority there collected.)

 Patently the unlawfulness of the search here at issue had been attenuated by Anderson's subsequent crimes.

Moreover, it is observed that the doctrine may reasonably be applied also, where the defendant has committed no subsequent offense.   It is held on high authority that in determining its applicability, courts will consider (1) the “temporal proximity of the [claimed unlawful police activity] and [its exploitation]” (here about four years had elapsed), (2) “the presence of intervening circumstances” (here there had been many, including Anderson's other crimes), and (3) “particularly [our emphasis] the purpose and flagrancy of the official misconduct” (here there was none at all).  (Brown v. Illinois (1975) 422 U.S. 590, 603–604, 95 S.Ct. 2254, 2261–2262, 45 L.Ed.2d 416.)   Under these criteria also, the trial court's denial of Anderson's motion to suppress was neither error, nor an abuse of discretion.

And it is expressly held by the state's high court in People v. Superior Court (Sosa) (1982) 31 Cal.3d 883, 894–896, 185 Cal.Rptr. 113, 649 P.2d 696, that in an otherwise proper case, an earlier suppression order may be invalidated under the doctrine of attenuation.

The judgment will accordingly be affirmed.   We need not consider other of the People's reasons for application of the doctrine of attenuation.


ELKINGTON, Acting Presiding Justice.

NEWSOM and HOLMDAHL, JJ., concur. Rehearing denied;  NEWSOM, J., dissenting.

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