PEOPLE v. BELLECI (1978)

This is an appeal from a judgment entered following appellant's plea of guilty to a violation of section 11378 of the Health and Safety Code, possession for sale of a controlled substance phencyclidine (P.C.P.).^[FN1]

Appellant raises one issue: Is it proper for a sentencing judge to rely upon evidence which had been excluded from trial because of its having been seized in violation of defendant's rights under the Fourth Amendment. The issue is one of first impression in California state courts.

In an amended information filed on March 8, 1977, in the Superior Court of Santa Clara County defendant and appellant John Phillip Belleci was charged with possession for sale of phencyclidine on June 11, 1976 (count one) and on January 22, 1977 (count two) in violation of Health and Safety Code section 11378. Appellant pleaded not guilty and moved to suppress the evidence seized on January 22, 1977, pursuant to Penal Code section 1538.5. On March 28, 1977, the trial court granted the motion to suppress. Thereafter count two of the information was dismissed on the motion of the district attorney. On April 25, 1977, appellant withdrew his plea of not guilty to count one and pleaded guilty.

The matter was referred to the Adult Probation officer who subsequently filed a report which contained information concerning the facts surrounding the seizure of the count two material which the court had ordered suppressed. Appellant moved to strike this information and to resubmit the matter to the Probation Department for reconsideration without reference to the suppressed evidence.

The trial court denied the motion to strike and resubmit the probation report in its memorandum of decision filed May 31, 1977. The trial judge reasoned: “It is the view of this court that the probation report should draw on all information concerning every aspect of a defendant's life. The exclusionary rule serves its purpose when evidence is suppressed for trial. It seems illogical to believe that police officers will wantonly seize evidence in disregard of the constitutional rights of a defendant in the hope that the same defendant on some other occasion will be arrested by some other police department who will so respect his rights that a valid conviction will be obtained on this second offense and that the illegally seized evidence will be used at time of sentencing on this second offense. If a defendant's arrest record may be considered; if the constitutional taint is so attenuated that suppressed evidence can be considered at probation revocation and parole hearings, then why not at sentencing hearings itself (sic )?”

On June 16, 1977, the court denied probation and committed appellant to the California Youth Authority, explaining: “The Court is willing to state for the record as follows: That the Court would strongly consider allowing the defendant to remain in the local community and be sentenced to County Jail for an extended period of time but for the additional factor of the defendant's later involvement with controlled substances, as demonstrated by Count 2, indicating to the Court that the defendant is developing a history of criminality and that the more appropriate confinement, in view of that total history, both Count 1 and Count 2, the defendant's background and age, the Court would feel that the California Youth Authority would be a more appropriate sentence rather than a County Jail sentence.”

Appellant was committed to the California Youth Authority. The trial court stayed the order of commitment and released appellant on his own recognizance pending the determination of an appeal taken to this court. On June 16, 1977, a timely notice of appeal was filed.

Suppression of Evidence

The Attorney General asserts that the evidence in question was not illegally seized. The People have no standing to raise the issue in this court on appellant's appeal. Where a motion to suppress is granted by the trial court, the prosecution may seek appellate review by petitioning for an extraordinary writ under Penal Code section 1538.5, subdivision (o ). (People v. Carrington (1974) 40 Cal.App.3d 647, 649, 115 Cal.Rptr. 294.) If the suppression order is followed by a dismissal, the prosecution may take an appeal from the order of dismissal. (Pen.Code, s 1238(a)(7); People v. Carrington, supra, at p. 649, 115 Cal.Rptr. 294.) “(B)ut, once the case is dismissed, appeal from the dismissal is the sole remedy.” (People v. Smith (1971) 17 Cal.App.3d 604, 605, fn. 1, 95 Cal.Rptr. 229, 230.) Here the People exercised none of the appellate rights available to them and therefore they cannot now, on a defendant's appeal from his conviction and sentence, seek review of the trial court's suppression order.^[FN2]

As will appear, the facts giving rise to the suppression of the evidence seized on January 22, 1977 are relevant to the issue before us, and we therefore set them forth in some length. Testimony regarding the seizure of evidence on January 22, 1977, was given at the preliminary hearing:^[FN3] Between 9 and 10 p. m. on January 22, 1977, Officer Humberto Caro responded to 1481/2 Heller Drive in San Jose to investigate a “possible overdose.” En route, he received a radio report that shots were being fired at fire engine and ambulance crews at that address. Approaching 1481/2 Heller, Caro observed a black sedan departing. At the scene Caro found a man shot and was told by several bystanders that a black Dodge Coronet occupied by two males had just driven away. Officer Caro radioed an all-points bulletin, indicating that “a possible black Dodge Coronet” was traveling from the crime scene.

About 10:40 p. m., Patrol Officer Gerald Wilson heard a call regarding gunshots at 1481/2 Heller Drive and the black Dodge Coronet. Fifteen minutes later he observed what appeared to be a black Dodge Coronet on Alum Rock Drive, one-half mile from Heller Drive. Wilson stopped the vehicle, but before he approached the driver of the vehicle he was able to tell that it was not a Dodge Coronet. Nonetheless, Wilson ordered appellant, the driver, and the passenger out of the car. Wilson directed the two men to the rear of the car and asked for their identification. Wilson could tell at this point that the two men were under the influence of something because they were unable to focus their eyes, obey the simplest of commands or to speak without slurring their words.^[FN4]

After detaining the two men about one minute, Wilson radioed for a description of the occupants of the Dodge. Two minutes later he received a physical and clothing description which fit the two men he had stopped. Wilson placed the two men under arrest for attempted murder. A search of appellant's left breast pocket disclosed an envelope containing approximately one gram of phencyclidine.

The lower court determined that since Wilson discovered as soon as he stopped the vehicle that it was not a Dodge Coronet, he had no right to further detain the occupants and should have approached the car to explain his mistake to the occupants and send them on their way. “The description of the suspects which matched the defendant's appearance came only after the illegal detainment.”^[FN5] If the suppression order were properly reviewable by this court on appeal, which it is not, it cannot be said that it is not supported by substantial evidence.^[FN6]

The Exclusionary Rule

The exclusionary rule which forbids the admission of illegally seized evidence in criminal trials is usually traced to Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 or to Boyd v. United States (1886) 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. (See United States v. Peltier (1975) 422 U.S. 531, 551, fn. 9, 95 S.Ct. 2313, 45 L.Ed.2d 374 (Brennan, J., dissenting).) Although the rule was not made applicable to state court proceedings until 1961 in Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, California adopted the rule in 1955 in the landmark case of People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905. The exclusionary rule is the sole technique enforcing the constitutional right to be free of unreasonable searches and seizures.^[FN7] (Oaks, Studying the Exclusionary Rule in Search and Seizure (1970) 37 U.Chi.L.Rev. 665, 665-666.)

The purpose of the exclusionary rule is twofold: (1) to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so and (2) to preserve judicial integrity by relieving the courts of being compelled to participate in such conduct. (Dyas v. Superior Court (1974) 11 Cal.3d 628, 632, 114 Cal.Rptr. 114, 522 P.2d 674; Kaplan v. Superior Court (1971) 6 Cal.3d 150, 155-156, 98 Cal.Rptr. 649, 491 P.2d 1; In re Jorge S. (1977) 74 Cal.App.3d 852, 858, 141 Cal.Rptr. 722; Governing Board v. Metcalf (1974) 36 Cal.App.3d 546, 549, 111 Cal.Rptr. 724.)

Judicial Integrity

The preservation of judicial integrity is termed the secondary policy underlying the exclusionary rule. (In re Martinez (1970) 1 Cal.3d 641, 654, 83 Cal.Rptr. 382, 463 P.2d 734. (Peters, J., dissenting), cert. den. 400 U.S. 851, 91 S.Ct. 71, 27 L.Ed.2d 88; Governing Board v. Metcalf, supra, 36 Cal.App.3d 546, 111 Cal.Rptr. 724.) The doctrine of judicial integrity has its origin in Justice Brandeis' dissent in Olmstead v. United States (1928) 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944, where he stated: “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Justice Brandeis' dissent was quoted with approval in Miranda v. Arizona (1966) 384 U.S. 436, 479-480, 86 S.Ct. 1602, 16 L.Ed.2d 694, Mapp v. Ohio, supra, 367 U.S. 643, 659, 81 S.Ct. 1684, 6 L.Ed.2d 1081 and People v. Cahan, supra, 44 Cal.2d 434, 446, 282 P.2d 905. Recently, the California Supreme Court quoted the following language from People v. Cahan, supra, at page 445, 282 P.2d at page 912, for the proposition that the exclusionary rule has a twofold purpose: “ ‘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.“ ‘ ” (People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 367, 545 P.2d 272, 279.)

Appellant and the People correctly point out that in the area of the Fourth Amendment the United States Supreme Court no longer regards the “imperative of judicial integrity” as a justification for the exclusion of illegally seized evidence. “While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence.” (Stone v. Powell (1976) 428 U.S. 465, 485, 96 S.Ct. 3037, 3047, 49 L.Ed.2d 1067.) Discussing the exclusionary rule, the court stated in United States v. Janis (1976) 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046: “The Court . . . has established that the ‘prime purpose’ of the rule, if not the sole one, ‘is to deter future unlawful police conduct.’ United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). See United States v. Peltier, 422 U.S. 531, 536-539, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). Thus ‘(i)n sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.’ United States v. Calandra, 414 U.S., at 348, 94 S.Ct. 613, 38 L.Ed.2d 561. And ‘(a)s with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.’ Ibid.” (Id., at pp. 446-447, 96 S.Ct. at 3028-3029.) Explaining its omission of the doctrine of judicial integrity the court rationalized: “The primary meaning of ‘judicial integrity’ in the context of evidentiary rules is that the courts must not commit or encourage violations of the Constitution. In the Fourth Amendment area, however, the evidence is unquestionably accurate, and the violation is complete by the time the evidence is presented to the court. See United States v. Calandra, 414 U.S., at 347, 354, 94 S.Ct. 613, 38 L.Ed.2d 561. The focus therefore must be on the question whether the admission of the evidence encourages violations of Fourth Amendment rights. As the Court has noted in recent cases, this inquiry is essentially the same as the inquiry into whether exclusion would serve a deterrent purpose. See United States v. Peltier, 422 U.S., at 538, 95 S.Ct. 2313; Michigan v. Tucker, 417 U.S. (433), at 450, n. 25, 94 S.Ct. 2357.” (United States v. Janis, supra, 428 U.S. 433, 458-459, fn. 35, 96 S.Ct. 3021, 3034, fn. 35.)^[FN8]

However, appellant asserts that California has remained faithful to the doctrine of judicial integrity as a justification for the exclusion of illegally seized evidence. Appellant points to the fact that California has declined to adopt several limits of the exclusionary rule fashioned by the federal courts. California, contrary to Alderman v. United States (1969) 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, has adopted and affirmed its so-called vicarious exclusionary rule. (Kaplan v. Superior Court, supra, 6 Cal.3d 150, 155, 98 Cal.Rptr. 649, 491 P.2d 1; People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855.) California has rejected the rule of Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, permitting a defendant to be impeached on the basis of statements obtained from him in violation of his Miranda rights. (People v. Disbrow, supra, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272.) The California Supreme Court has reasoned that the California Constitution is a document of independent force and in interpreting the state Constitution, the California Supreme Court retains the power to impose higher standards on searches and seizures than are required by the federal Constitution. (People v. Brisendine (1975) 13 Cal.3d 528, 549-551, 119 Cal.Rptr. 315, 531 P.2d 1099.)

The mere fact that California has not adopted some of the limits on the exclusionary rule that the federal courts have, does not answer the question of whether California has remained faithful to the policy of judicial integrity. This question is answered by a review of recent California decisions. In In re Martinez, supra, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, the California Supreme Court held that the Adult Authority could consider illegally seized evidence in determining whether to revoke an individual's parole. The court adopted a balancing test to resolve the issue. “In resolving these questions we look initially to the test articulated by our court in People v. Moore (1968) 69 Cal.2d 674, 72 Cal.Rptr. 800, 446 P.2d 800; there we examined the applicability of the Fourth Amendment exclusionary rule to a civil narcotics commitment proceeding. We declared in Moore : ‘Whether any particular rule of criminal procedure should be applied in a narcotic addict commitment proceeding depends upon consideration of the relationship of the policy underlying the rule to the proceeding. (Cf. In re Gault, 387 U.S. 1, 13-14, 87 S.Ct. 1428, 18 L.Ed.2d 527, 538.)’ (69 Cal.2d at pp. 681-682, 72 Cal.Rptr. 800, 446 P.2d 800.) In determining the applicability of the Fourth Amendment and the Dorado-Miranda exclusionary rules to Adult Authority proceedings we examine both the policies underlying the rules and the purposes and nature of the proceeding.” (Id., 1 Cal.3d at p. 648, 83 Cal.Rptr. at p. 387, 463 P.2d at p. 739.) Applying the balance test the court concluded that the incremental deterrent effect that will realistically be achieved by shielding the Adult Authority from illegally procured evidence is slight. (Id., at p. 649, 83 Cal.Rptr. 382, 463 P.2d 734.) However, the court found that the Adult Authority's need to be aware of such evidence was greater in light of its duty to determine “when a convicted offender can be safely allowed to return to and remain in society . . . .” (Id., at p. 650, 83 Cal.Rptr. at p. 388, 463 P.2d at p. 740.) The court reached its conclusion with no discussion of judicial integrity. Dissenting from the majority Justice Peters stated: “(The majority) fail even to mention a second purpose served by the exclusionary rule to uphold the integrity of our system of government.” (Id., at p. 652, 83 Cal.Rptr. at p. 390, 463 P.2d at p. 742.)

In People v. Hayko (1970) 7 Cal.App.3d 604, 86 Cal.Rptr. 726, this court (Division Three), using the balancing test enunciated in Martinez held that a court could rely on evidence obtained as a result of an illegal search and seizure for the purpose of determining whether a convicted defendant's probation should be revoked. Although in Hayko the court was concerned with judicial action whereas Martinez was concerned with nonjudicial action (Adult Authority), the Hayko court did not consider this distinction significant. “Appellant contends that the court in Martinez indicated that illegal evidence could not be considered in a probation violation hearing because that matter comes before the court and is not an administrative proceeding. However, the role of a judge in considering the question of whether a convicted offender's probation should be revoked is analogous to the role of the Adult Authority in determining whether a parolee's parole should be revoked. The judge is not determining whether the defendant is guilty or innocent of a crime. Rather, he must determine whether the convicted offender ‘can be safely allowed to return to and remain in society.’ ” (Id., at p. 610, 86 Cal.Rptr. at p. 730, quoting from In re Martinez, supra, 1 Cal.3d 641, 650, 83 Cal.Rptr. 382, 463 P.2d 734.) The Hayko decision makes no mention of judicial integrity. The foregoing language in Hayko was quoted with approval by the Supreme Court of California in In re Coughlin (1976) 16 Cal.3d 52, 57, 127 Cal.Rptr. 337, 545 P.2d 249.

In Governing Board v. Metcalf, supra, 36 Cal.App.3d 546, 111 Cal.Rptr. 724, the court, while recognizing that “like the criminal law generally a proceeding to dismiss a member of his profession from his position (herein a teacher) is punitive in character” (id., at p. 551, 111 Cal.Rptr. at p. 727), and that “(d)eprivation of one's opportunity to follow one's profession in this state may be a much more severe punishment for a criminal offense than anything the criminal law imposes” (id., at pp. 551-552, 111 Cal.Rptr. at p. 728), nevertheless held that the exclusionary rule did not apply to a dismissal proceeding. In discussing the rule the court stated: “Generally speaking, the policy underlying the exclusionary rule has two aspects. The first and primary one in California is to deter government officials from lawless conduct by denying them a reward for such conduct. (See People v. Cahan, supra, 44 Cal.2d 434, 445, 449, 282 P.2d 905.) The secondary one is to preserve the integrity of the judicial process by keeping it free of the taint of the use therein of improperly obtained evidence.

“There can be no doubt but that the second aspect of the policy underlying the exclusionary rule obtains in both civil and criminal cases. (See Note, Constitutional Exclusion of Evidence in Civil Litigation (1969) 55 Va.L.Rev. 1484, 1488.) There is doubt, though, whether the first and primary reason for the rule exists to any appreciable degree in civil cases. The police in making investigations of suspected criminal activity are, we surmise, generally completely unaware of any consequences of success in their investigative efforts other than the subsequent criminal prosecution of the suspected offender. It was for this reason and also in recognition of the Adult Authority's great responsibility in protecting society from known highly dangerous persons that our Supreme Court did not extend the exclusionary rule to administrative proceedings to revoke parole. (Martinez, supra, pp. 649-650, 83 Cal.Rptr. 382, 463 P.2d 734.)” (Id., at pp. 549-550, 111 Cal.Rptr. at p. 726.) The court applying the Martinez balancing test thereupon finds that evidence of the defendant's misconduct that was inadmissible in his criminal prosecution was admissible in his dismissal proceeding (id., at p. 551, 111 Cal.Rptr. 724.) There is no further reference by the court to the “integrity of the judicial process.”

In Emslie v. State Bar (1974) 11 Cal.3d 210, 113 Cal.Rptr. 175, 520 P.2d 991, the California Supreme Court without mention of the doctrine of judicial integrity held that the exclusionary rule does not apply to attorney disciplinary proceedings because the court could find practically no deterrent effect upon any law enforcement officer. (Id., at p. 229, 113 Cal.Rptr. 175, 520 P.2d 991.) The court reasoned that the officer might not even know the suspect was an attorney and might not contemplate the consequences of an illegal search and seizure upon professional disciplinary proceedings. (Id., at p. 229, 113 Cal.Rptr. 175, 520 P.2d 991.)

It is apparent from these cases that California is in accord with the United States Supreme Court insofar as rejecting the “imperative of judicial integrity” as a viable justification for imposition of the Fourth Amendment exclusionary rule in a non-criminal trial proceeding.^[FN9] The United States and California Supreme Courts are in agreement that the application of the Fourth Amendment exclusionary rule must be determined in each context by balancing the function and purposes of the particular proceeding against the policy underlying the exclusionary rule, to wit: the deterrence of police misconduct. (United States v. Calandra (1974) 414 U.S. 338, 351, 94 S.Ct. 613, 38 L.Ed.2d 561; Stone v. Powell, supra, 428 U.S. 465, 488, 96 S.Ct. 3037, 49 L.Ed.2d 1067; In re Martinez, supra, 1 Cal.3d 641, 648, 83 Cal.Rptr. 382, 463 P.2d 734; Emslie v. State Bar, supra, 11 Cal.3d 210, 227, 113 Cal.Rptr. 175, 520 P.2d 991.)

The Federal Circuit Courts of Appeals

Several federal circuit courts of appeals have considered the issue of whether illegally seized evidence may be used to enhance a defendant's sentence. The Ninth Circuit in Verdugo v. United States (9th Cir. 1968) 402 F.2d 599, certiorari denied 402 U.S. 961, 91 S.Ct. 1623, 29 L.Ed.2d 124, held that evidence seized in violation of Verdugo's Fourth Amendment rights could not be considered in sentencing. While conceding that the exclusionary rule should not be applied “when its enforcement would have no deterrent effect or the deterrent effect would be insubstantial” (id., at p. 611), the court held that the exclusion was required in view of the circumstances of the case. In Verdugo the government, already possessing sufficient evidence to convict the defendant of selling heroin, perpetrated a blatantly illegal search of his home with the avowed purpose of locating a larger supply of heroin. The court felt that “(t)he incentive for the search was strong. The range of possible penalty was wide five to twenty years. The length of Verdugo's sentence would be quite different if it could be shown that Verdugo was involved in the narcotics traffic on a large scale rather than merely as the seller in a single small transaction.

“If the fruits of the search could be used to enhance the sentence, the possibility that the evidence might be excluded at trial would be of little importance in view of the untainted evidence available to establish the July 28 offense. Unless the evidence were unavailable for sentence as well as conviction, the agents had nothing to lose by risking an unlawful search: if the motion to suppress were denied, Verdugo could be convicted of an additional offense; if it were granted, the sentence on the original charge could still be enhanced.” (Id., at p. 612.) Of significance is the fact the court distinguished the more common situation: “Quite different considerations would apply if the object of the search were to obtain evidence to support a single charge on which the defendant was later convicted. If the additional evidence was necessary to obtain any conviction at all, the danger of exclusion at trial would afford a substantial deterrent to an illegal search. If the additional evidence was not required for conviction, both the deterrent effect of the exclusion of illegality seized evidence of the same offense at sentencing and the incentive to conduct legal searches to obtain such evidence would appear to be minimal.” (Id., at p. 612, fn. 21.)

Subsequent to Verdugo, the Ninth Circuit has commented on the issue only in dicta. In United States v. Weston (9th Cir. 1971) 448 F.2d 626, 631-632, certiorari denied 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749, and United States v. Atkins (9th Cir. 1973) 480 F.2d 1223, 1224, the court referred to Verdugo as preventing any consideration of illegality seized evidence at sentencing. Neither case held the evidence therein involved to be illegally seized. Recently, however, in United States v. Winsett (9th Cir. 1975) 518 F.2d 51 and United States v. Vandemark (9th Cir. 1975) 522 F.2d 1019, the court in dicta narrowed its interpretation of Verdugo. In Winsett, it was held that the Fourth Amendment “does not require suppression of evidence in a probation revocation proceeding where, at the time of arrest and search, the police had neither knowledge nor reason to believe that the suspect was a probationer.” (United States v. Winsett, supra, at p. 55.) Rationalizing its decision in light of Verdugo, the court stated: “Compare Verdugo v. United States, 402 F.2d 599, 612 (9th Cir. 1968), cert. denied, 397 U.S. 925, 90 S.Ct. 931, 25 L.Ed.2d 105 (1970), in which this court applied the exclusionary rule to sentencing proceedings where the police were familiar with past narcotic violators and current suspects and had a personal stake in seeing not only that a violator was convicted, but also that he receive a lengthy sentence. The court reasoned that in the absence of the exclusionary rule an officer would have an incentive, given the proper circumstances, to lawfully obtain only so much evidence as is necessary to assure conviction of the defendant of a single offense, and then proceed to unlawfully obtain evidence of additional offenses which would ensure a long sentence.

“Similarly, when the police at the moment of search know that a suspect is a probationer, they may have a significant incentive to carry out an illegal search even though knowing that evidence would be inadmissible in any criminal proceeding. The police have nothing to risk: If the motion to suppress in the criminal proceedings were denied, defendant would stand convicted of a new crime; and if the motion were granted, the defendant would still find himself behind bars due to revocation of probation. Thus, in such circumstances, extension of the exclusionary rule to the probation revocation proceeding may be necessary to effectuate Fourth Amendment safeguards.” (Id., at p. 54, fn. 5.)

Vandemark extended Winsett's holding to imposition of sentence subsequent to revocation of probation. In an extensive discussion of Verdugo the court concluded: “Although Verdugo places some restrictions upon information which the sentencing judge may consider, it does not hold that evidence seized in violation of the Fourth Amendment may never be considered in sentencing. No language in the opinion requires such a broad interpretation of the decision. On the contrary, Verdugo is most easily read to require exclusion only where the contrary result would provide a substantial incentive for illegal searches: . . . (P) (W)e have concluded that, where the arresting officers did not know of the probationer's status, ‘the use of illegally seized evidence at sentencing (subsequent to probation revocation) would (not) provide a substantial incentive for unconstitutional searches and seizures.’ ” (United States v. Vandemark, supra, 522 F.2d 1019, 1022-1023, paraphrasing Verdugo v. United States, supra, 402 F.2d 599, 613.)

Finally, in Tisnado v. United States (9th Cir. 1976) 547 F.2d 452, the Ninth Circuit denied a federal prisoner the right to appeal a sentence based on a prior state conviction allegedly tainted by Fourth Amendment violations. Alluding to the issue of sentencing based on invalid priors, the court stated: “it now appears that it may be an unwarranted extension of Tucker's (U. S. v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)) holding which concerned a prior conviction that had been declared invalid due to a denial of the sixth amendment right to counsel to suggest that prior convictions which are invalidated on fourth amendment grounds are also to be excluded from the consideration of the sentencing court. On the contrary, it is highly probable that a sentencing judge would continue to place great weight on a prior conviction even after discovering that it is infirm on fourth amendment grounds. Such a constitutionally invalid conviction is nonetheless probative evidence that the defendant has engaged in prior criminal conduct, and it has been held to be constitutionally permissible for similar information to be considered by the court in some sentencing contexts. See United States v. Vandemark, 522 F.2d 1019, 1021-25 (9th Cir. 1975). But compare United States v. Schipani, 435 F.2d 26 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971) with Verdugo v. United States, 402 F.2d 599 (9th Cir. 1968), cert. denied, 402 U.S. 961, 91 S.Ct. 1623, 29 L.Ed.2d 124 (1971).” (Id., at p. 458).

It now appears that the Ninth Circuit does not consider Verdugo persuasive authority for the proposition that the sentencing judge may never rely upon evidence obtained in violation of Fourth Amendment rights.

The Second Circuit has held that the exclusionary rule need not be a bar to the receipt of evidence by a sentencing judge. In United States v. Schipani (2d Cir. 1970) 435 F.2d 26, certiorari denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334, the court reasoned: “We believe that applying the exclusionary rule for a second time at sentencing after having already applied it once at the trial itself would not add in any significant way to the deterrent effect of the rule. It is quite unlikely that law enforcement officials conduct illegal electronic auditing to build up an inventory of information for sentencing purposes, although the evidence would be inadmissible on the issue of guilt.

“ . . .law

“Where illegally seized evidence is reliable and it is clear, as here, that it was not gathered for the express purpose of improperly influencing the sentencing judge, there is no error in using it in connection with fixing sentence.” (Id., at p. 28.)

Distinguishing Verdugo, the court noted: “In the case of Verdugo v. United States, 402 F.2d 599 (9th Cir. 1968), a divided panel decided that the exclusionary rule was applied where evidence was illegally seized to enhance the possibility of a heavier sentence after the basic investigation had been completed. . . . (T)he Verdugo case presents quite a different situation from that now before us. We need not now pass upon the question of whether evidence ought to be excluded where it has been seized under the conditions presented in Verdugo.” (Id., at p. 28, fn. 1; also see United States v. Seijo (2d Cir. 1976) 537 F.2d 694, 700, fn. 7, cert. den. 429 U.S. 1043, 97 S.Ct. 745, 50 L.Ed.2d 756.)

The Fourth Circuit is in accord. The tainted evidence, considered by the sentencing judge in United States v. Lee (4th Cir. 1976) 540 F.2d 1205, certiorari denied 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 was the basis for a prior conviction which had been subsequently reversed on Fourth Amendment grounds. In deciding to allow the use of the evidence the court stated: “We think that if the exclusionary rule were extended to sentencing in the ordinary case, its additional deterrent effect would be so minimal as to be insignificant.” (Id., at p. 1211; emphasis added.) The court also stated, however, “ . . . that we would be inclined to agree also with the result in Verdugo, were we presented with a case where it appeared that the government had illegally seized additional evidence with a view toward enhancing the defendant's sentence; for there, as long as the exclusionary rule persists, its rationale can be served only by excluding illegally-seized evidence from consideration at sentencing.” (Id., at p. 1212.)

California Decisions

People v. Moore (1968) 69 Cal.2d 674, 72 Cal.Rptr. 800, 446 P.2d 800, provides the basis in California for the determination of the applicability of the Fourth Amendment exclusionary rule in any particular context. As the California Supreme Court declared in Moore, “Whether any particular rule of criminal practice should be applied in a . . . proceeding depends upon consideration of the relationship of the policy underlying the rule to the proceeding.” (69 Cal.2d at p. 681, 72 Cal.Rptr. at p. 805, 446 P.2d at p. 805.) This balancing test has been applied to determine the applicability of the exclusionary rule and its underlying purpose of deterrent of unconstitutional methods of law enforcement to such proceedings as Adult Authority (In re Martinez, supra, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734) and probation revocation hearings (People v. Hayko, supra, 7 Cal.App.3d 604, 86 Cal.Rptr. 726) and to proceedings to dismiss a teacher (Governing Board v. Metcalf, supra, 36 Cal.App.3d 546, 111 Cal.Rptr. 724) and to discipline an attorney (Emslie v. State Bar, supra, 11 Cal.3d 210, 113 Cal.Rptr. 175, 520 P.2d 991). In each proceeding the courts allowed the use of illegally seized evidence after determination that the deterrent effect was slight and the purpose of the particular proceeding would be greatly served by allowing the use of the evidence. In accordance with Moore, we must examine the policies underlying the exclusionary rule and the nature and purposes of the sentencing procedure.^[FN10]

Sentencing

Few limitations have been placed on the court's discretion to receive evidence on which it may rely in sentencing. There is the initial limiting factor of materiality and relevance. Secondly, probation reports must be founded on accurate and reliable information. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 719, 135 Cal.Rptr. 392, 557 P.2d 976.)

The United States Supreme Court in Williams v. New York (1949) 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, in discussing the basis for different evidentiary rules governing trial and sentencing procedures stated: “A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant if not essential to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.”

The primary function served by the probation report required by Penal Code section 1203 is to assist the court in determining an appropriate disposition after conviction.^[FN11] (People v. Edwards, supra, at p. 801, 135 Cal.Rptr. 411, 557 P.2d 995.)

The California Supreme Court in People v. Warner (1978) 20 Cal.3d 679, 143 Cal.Rptr. 885, 574 P.2d 1237, stated: “The paramount concern in sentencing must be the protection of society. The interests of the defendant are of legitimate but secondary concern. Granting a convicted criminal the qualified liberty of probation subjects society to the risk that it will continue to be victimized during the period when he would otherwise be confined. In determining whether to grant probation the judge must therefore satisfy himself that the risks inherent in that disposition are outweighed by the potential benefits.” (Id., at p. 689, 143 Cal.Rptr. at p. 891, 574 P.2d at p. 1243.) The judge imposing sentence like the Adult Authority revoking parole or the judge revoking probation must determine whether the convicted offender “can be safely allowed to return to and remain in society.” (In re Martinez, supra, 1 Cal.3d 641, 650, 83 Cal.Rptr. 382, 388, 463 P.2d 734, 740; see also In re Coughlin, supra, 16 Cal.3d 52, 57, 127 Cal.Rptr. 337, 545 P.2d 249; People v. Hayko, supra, 7 Cal.App.3d 604, 610, 86 Cal.Rptr. 726.)

The strong public policy in favor of the selection of an appropriate sentence can be seen from the fact that prior arrests that did not lead to conviction may be considered by the court in determining whether to grant probation. (Loder v. Municipal Court (1976) 17 Cal.3d 859, 867-868, 132 Cal.Rptr. 464, 553 P.2d 624, cert. den. 429 U.S. 1109, 97 S.Ct. 1143, 51 L.Ed.2d 562.) However, “evidence of police contacts not leading to arrest or conviction may not be included in the (probation) report without supporting information.” (People v. Chi Ko Wong, supra, 18 Cal.3d 698, 719, 135 Cal.Rptr. 392, 406, 557 P.2d 976, 990; People v. Molina (1977) 74 Cal.App.3d 554, 551, 141 Cal.Rptr. 533.)

Deterrence of Illegal Police Conduct

“As we recognized in Moore, ‘(t)he basic purpose of the (Fourth Amendment) exclusionary rule is to deter unconstitutional methods of law enforcement. (Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669, 1677; Mapp v. Ohio (1961) supra, 367 U.S. 643, 656, 81 S.Ct. 1684, 6 L.Ed.2d 1081; People v. Parham, 60 Cal.2d 378, 385, 33 Cal.Rptr. 497, 384 P.2d 1001; People v. Cahan, supra, 44 Cal.2d 434, 445 et seq. 282 P.2d 905, (50 A.L.R.2d 513).)’ (69 Cal. at p. 682, 72 Cal.Rptr. 800, 446 P.2d 800.) The rule attempts ‘to compel respect for the constitutional guarantee (to be free from unreasonable search and seizure) in the only effectively available way by removing the incentive to disregard it.’ (Elkins v. United States (1960) 364 U.S. 206, 217, 80 S.Ct. 1437, 1453, 4 L.Ed.2d 1669, 1677.) ‘By denying any profit from the unconstitutional methods of law enforcement, it is to be anticipated that law enforcement officials will have no incentive to engage in such methods.’ (People v. Moore, supra, 69 Cal.2d 674, 682, 72 Cal.Rptr. 800, 446 P.2d 800.)” (In re Martinez, supra, 1 Cal.3d 641, 648, 83 Cal.Rptr. 382, 387, 463 P.2d 734, 739.)

The People argue that the application of the exclusionary rule at a sentence proceeding would have little or no deterrent effect. Appellant takes the opposite view.

In In re Martinez, supra, 1 Cal.3d 641, 83 Cal.Rptr. 382, 463 P.2d 734, the California Supreme Court found that excluding illegally seized evidence from parole revocation hearings would have little deterrent effect stating: “We believe, at this time, that the incremental deterrent effect that will realistically be achieved by shielding the Adult Authority from illegally procured evidence is slight; the bungling police officer is not likely to be halted by the thought that his unlawful conduct will prevent the termination of parole because the authority cannot consider the evidence that he unlawfully procures. When, as in the instant case, the police are not even aware that a suspect is a parolee, the supplemental deterrent factor is, of course, completely absent.” (Id., at pp. 649-650, 83 Cal.Rptr. at p. 388, 463 P.2d at p. 740.) The California Supreme Court used the same type reasoning when it concluded that excluding illegally seized evidence from attorney disciplinary proceedings has little or no deterrent effect. “In applying the exclusionary rules to attorney disciplinary proceedings we find practically no deterrent effect upon any law enforcement officer who might be tempted to use unconstitutional methods to obtain evidence for use in a criminal trial. Here, as in the situation in Martinez the officer might not even know that the suspect was an attorney and might not even contemplate the consequences of an arrest or conviction upon professional disciplinary proceedings.” (Emslie v. State Bar, supra, 11 Cal.3d 210, 229, 113 Cal.Rptr. 175, 186, 520 P.2d 991, 1002.)

Balancing

Utilizing the balancing test enunciated in Moore and Martinez in the instant case we conclude that application of the exclusionary rule to the sentencing of this defendant would cause substantial impairment of that proceeding far out of proportion to any possible deterrent effect on police misconduct.

The disruptive effect of a blanket rule applying the exclusionary rule at sentencing is readily apparent. It would deprive trial court judges of unimpeachable and highly probative evidence which evidence is necessary to enable them to reach rational and appropriate dispositions. A sentence, to be appropriate, should be tailored to the individual defendant. Accomplishment of this goal requires the judge to be aware of all relevant facts concerning the defendant's background, character and conduct. In this case, keeping from the sentencing judge the relevant fact of the commission of the subsequent crime would result, in the opinion of the judge, in an inappropriate sentence.

By contrast, in the ordinary case, extension of the exclusionary rule to sentencing would in our opinion have a minimal, if any, deterrent effect on police misconduct. Ordinarily the police search and seize evidence for use at trial not with an eye towards increasing a sentence in a possible pending prosecution. Effective deterrence lies in the fact that illegally seized evidence will be excluded from trial. To hypothecate that the police with knowledge that the evidence will be excluded from trial will nevertheless perpetrate an illegal search for evidence to enhance a sentence arising from a pending proceeding of which they are unaware is incredulous. Where, as here, there is no evidence that an officer is aware of a defendant's pending case, he would be unaware that evidence he might seize could be used on sentencing in that case. The threat of exclusion of the evidence at trial arising from the incident before him should deter him. The additional deterrent effect of the threat that the defendant might receive a less severe sentence in another pending matter should be of no consequence. Thus after applying the balance test mandated in Moore, we find that the extension of the exclusionary rule to sentencing proceedings in this case would not be proper. At best, a minimum of deterrence would be gained at a cost of substantial impairment to the sentencing process.

In concluding that herein the sentencing judge properly relied on evidence obtained in violation of the defendant's rights under the Fourth Amendment we emphasize that this was not a situation where “the police conduct in effectuating the search was so egregious as to offend ‘the ”traditions and (collective) conscience of our people.“ ‘ (Griswold v. Connecticut (1965) 381 U.S. 479, 493, 85 S.Ct. 1678, 14 L.Ed.2d 510, 520 (Goldberg, J., concurring) (quoting Snyder v. Massachusetts (1934) 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674, 677, 90 A.L.R. 575) or to ‘shock the conscience.’ (See Rochin v. California (1952) 342 U.S. 165, 172-174, 72 S.Ct. 205, 96 L.Ed. 183, 190-191, 25 A.L.R.2d 1396.) If we were presented with an instance in which the (sentencing judge) considered evidence obtained under those circumstances we might well conclude that the constitutional demands of due process could not countenance any governmental use of such evidence, . . .” (In re Martinez, supra, 1 Cal.3d 641, 650-651, 83 Cal.Rptr. 382, 388-389, 463 P.2d 734, 740-741.)

Additionally we are mindful of the warning enunciated by the court in United States v. Verdugo, supra, 402 F.2d 599, 612, “And even if it were true that there is now no general consciousness of the potential utility of illegally seized evidence to enhance sentence, we could not ignore the fact that announcement of an exception to the exclusionary rule would inevitably product it.” In light of this fact we feel compelled to point out that although we have determined that generally the exclusionary rule should not apply in sentencing proceedings, we are cognizant of the fact that the rule should be applied where the circumstances indicate that an improper search was perpetrated to influence sentencing. It is only necessary to give one example.

In Wimberly v. Superior Court (1976) 16 Cal.3d 557, 128 Cal.Rptr. 641, 547 P.2d 417, the California Highway Patrol stopped a vehicle occupied by petitioners because of the erratic manner in which the car was being driven. (Id., at p. 561, 128 Cal.Rptr. 641, 547 P.2d 417.) One of the officers, peering into the car with the aid of his flashlight, observed what he believed to be marijuana seeds on the floor of the car adjacent to a smoking pipe. On the officer's request, he was handed the pipe, and observed a burnt residue in the bowl and detected an odor resembling burnt marijuana. After ordering the petitioners out of the car, the officers searched its interior and found a small amount of marijuana in a jacket pocket in a plastic bag. They then used the car keys to open the trunk compartment of the car where they found several pounds of marijuana, in both vegetable and hashish form, in a suitcase. (Id., at p. 562, 128 Cal.Rptr. 641, 547 P.2d 417.) The court held that the erratic driving, the plain view observation of the marijuana seeds adjacent to the pipe, the odor of burnt marijuana, the burnt residue in the pipe, and the small quantity of marijuana secreted in the jacket indicated only that petitioners were casual users of marijuana, and gave the officers probable cause to search the interior of the car, but it was not reasonable to infer that the petitioners had additional contraband in the trunk. (Id., at p. 568, 128 Cal.Rptr. 641, 547 P.2d 417.)

If we announced that illegally seized evidence could always be used to enhance a sentence, an officer faced with a Wimberly type fact situation might conduct a search of “intolerable intensity.” The officer, having already legally procured evidence necessary to convict the defendant, might be motivated to expand his search without probable cause in hopes of finding additional contraband, evidence of which although inadmissible at trial would nevertheless be made available at time of sentencing. In this situation the deterrent effect of applying the exclusionary rule at sentencing would not be insignificant.

The nature of the problem is such that clear guidelines cannot be enunciated to provide the trial judge direction as to whether or not to rely on tainted evidence in sentencing. In each case a determination must be made based on the degree of the police misconduct and the motivation of the officer.

Herein, where the illegally seized evidence was relevant and reliable, where the search was not so offensive so as to “shock the conscience,” and where there is no implication that it was gathered to influence the sentencing judge, there was no error in using it in connection with fixing sentence.

Affirmed.

FOOTNOTES

FOOTNOTE.  

1.  California Rules of Court, rule 31(d) provides in part: “If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere is based solely upon grounds (1) occurring after entry of such plea, which do not challenge the validity of the plea or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code, the provisions of section 1237.5 of the Penal Code requiring a statement by the defendant and a certificate of probable cause by the trial court are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds.” Appellant's notice of appeal specifies that the appeal is based solely upon grounds occurring after his plea of guilty.

2.  In fact the district attorney indicated he did not intend to seek review of the trial court's decision: “Just to protect the record, I notice that a 1538.5 has been granted. It's not my intent to appeal. If that has not been taken care of, I would ask the court to dismiss Count II at this point.”

3.  Appellant's motion to suppress evidence was submitted upon the testimony adduced at the preliminary examination.

4.  Officer Wilson testified that there was nothing about the manner in which the vehicle had been driven to indicate the driver was under the influence of anything.

5.  California courts have consistently held that an investigative detention, reasonable at its inception, exceeds constitutional bounds if extended beyond what is reasonably necessary under the circumstances which made its initiation permissible. (People v. Grace (1973) 32 Cal.App.3d 447, 452, 108 Cal.Rptr. 66; Willett v. Superior Court (1969) 2 Cal.App.3d 555, 559, 83 Cal.Rptr. 22.) Thus numerous searches have become illegal when, after the detaining officer realized that his initial suspicion was unfounded, he nonetheless continued to investigate or interrogate the defendant. (See e. g., People v. Bello (1975) 45 Cal.App.3d 970, 973, 119 Cal.Rptr. 838; People v. Grace, supra; Pendergraft v. Superior Court (1971) 15 Cal.App.3d 237, 93 Cal.Rptr. 155; People v. Lingo (1970) 3 Cal.App.3d 661, 83 Cal.Rptr. 755; Willett v. Superior Court, supra.)In this case the arresting officer had realized, prior to the time he approached appellant's car and ordered him out of it, that the car did not match the description received over the police radio the sole ground upon which he had stopped appellant's car. But rather than permitting appellant and his companion to go about their business or approaching the car to explain his mistake, the officer instead ordered the two men out of the vehicle and directed them to walk to the rear of the car. It was only at this point, after the officer had exceeded his authority, that there was any reason to suspect appellant of any wrongdoing.

6.  “A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. (Citations.) The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings whether express or implied must be upheld if supported by substantial evidence.” (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 619, 530 P.2d 585, 587.)

7.  The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Article 1, section 13 of the California Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except of probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”

8.  The continued vitality of the exclusionary rule itself in the federal courts is questionable at best. The seven separate opinions in Janis and Stone make it abundantly clear that a majority of the United States Supreme Court intend to substantially limit the reach of the rule.

9.  It is not to be inferred that California will blindly follow the United States Supreme Court in emasculating the exclusionary rule in the criminal trial setting. The California Supreme Court has made it abundantly clear that the exclusionary rule in that context is not only alive but well in California. (See People v. Brisendine, supra, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099; Kaplan v. Superior Court, supra, 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1 and People v. Disbrow, supra, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272.)

10.  We cannot accept respondent's contention that the issue has been decided in People v. Petersen (1972) 23 Cal.App.3d 883, 100 Cal.Rptr. 590, 598 wherein “In denying probation and sentencing appellant, the trial court considered certain admissions which he (appellant) had made to Inspector Bergfeld, in another interview, which may have violated his (appellant's) Miranda rights. It has been held, however, that such evidence may be considered as a basis for revoking parole (In re Martinez (1970) 1 Cal.3d 641, 644-651 (83 Cal.Rptr. 382, 463 P.2d 734)) and probation (People v. Hayko (1970) 7 Cal.App.3d 604, 609-610 (86 Cal.Rptr. 726)) unless the police conduct has been such as to ‘shock the conscience.’ As the latter circumstance does not appear in the present case, the same reasoning applies and no prejudicial error has been shown.” (Id., at p. 896.) The court's holding is made without any discussion of authority or policy consideration. As the issue before us has obvious far reaching consequences we do not consider Petersen as dispositive of the instant case.

11.  “ ‘The pre-sentence report and its influence on the sentencing process epitomize the fact that the humanitarian's plea let the punishment fit the criminal and not merely the crime has come to be an accepted postulate of correctional policy.’ ” (People v. Edwards (1976) 18 Cal.3d 796, 801, fn. 7, 135 Cal.Rptr. 411, 415, 557 P.2d 995, 999.)

EATON,[FN*] Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

TAYLOR, P. J., and KANE, J., concur.