*1 H000583. Sixth Dec. [No. Dist. 1985.] PEOPLE,
THE Plaintiff Appellant, BAILEY,
RUSSELL Defendant and Respondent.
Counsel John K. Van de General, Martin S. and Blair Kamp, Attorney W. Kaye Hoffman, General, Deputy Himmelsbach, Attorneys Leo District Attorney, and Thibodeaux, V. Joseph District for Plaintiff and Deputy Attorney, Appellant. Portman,
Sheldon Defender, Public and Barbara B. Public Fargo, Deputy Dеfender, for Defendant and Respondent.
Opinion LEACH, Defendant Russell not of Bailey pleaded charges J.* guilty of possession cocaine and denied convictions. His mo allegations prior tion to evidence suppress under Penal Code section 1538.5 was and granted the case dismissed. The People appeal.
At issue is the validity a consent to search of an given presence officer who has directed a red toward vehicle. appellant’s
An officer in an unmarked car saw a vehicle police a occupied by single in the person lot parking of a Sears store which was closed. The area was one in which persons establishment would come to their cars nearby to ingest The drugs. officer in behind the car pulled and turned on his emеrgency red and lights, blue in front and amber to the rear. The officer approached car to see what the was As he person doing. few feet from the car he smelled He to the and marijuana. asked for spoke occupant consent to sеarch. Consent was The given by officer searched occupant. and found contraband material. officer testified that as he approached car, was not free to leave. occupant search,
Consent can be
ato
but the
given
consent must be unequi
vocal,
and
specific,
freely
(Parrish
and
v.
intelligently given.
Civil Service
Commission
consent must be and voluntary of an is given if the consent Conversely, assertion authority. (Florida is unlawful. voluntary unlawful assertion of it is authority, Wilson Royer 491 [75 Cal.3d 777 Superior categories three Court has identified The United States Supreme en “consensual to as a The first is referred contact with persons. There need liberty. restraint on the person’s counter” which there is no called type, encounter. The second be no for such an objective justification a limited duration “detention,” the individual for involves a seizure of “if can occur detention for limited A constitutionally acceptable рurposes. *4 or is about to committed that a has there is an articulable suspicion person arrest, nature of an involves seizures in the commit a crime.” The third type to arrest the person cause occur if the have may only probable 491; v. Superiоr crime. Wilson (Florida for a Royer, supra, Court, 777.) supra, Wilson, Wilson had
In the California Court held that Supreme detention, the the basis for been detained without an articulable objective, and his rights detention was a Fourth Amendment violation of Wilson’s to a consent search was not voluntary. when reason to detain
The officer did have an articulable here not respondent’s on to approach he turned his He intended emergency lights. was not The officer vehicle to was doing. see what the simply occupant any was committing articulable that possessed any suspicion person crimes committed crime or about to do He knew some persons so. so. area, was doing but there for that respondent was no basis stating encounter, a consent If the consensual officer’s contact was simply Fourth Amendment could be solicited without violation person’s in Royer, of a as defined If the contact was in the nature detention rights. therefor, voluntary not be would but without the basis the consent necessary and would be inadmissible. surely сircumstances occurs when the
Such an unauthorized seizure would person that “a reasonable to a show of official such authority amount v. Mendenhall States (United he leave.” have believed that was not free to 1870]; Wilson 497, 509, (1980) 446 U.S. Court, 789.) supra, v. Superior di vehiclе is the red light
A reasonable to whom person be or otherwise stop to would be to recognize signal rected expected available to the officer. Any reasonable in a similar situation would person off, that if he expect drove with red offiсer would respond by following on and siren in order control the individual. sounding accomplish conclusion, The trial court so held. ex- This court also comes to the same its ercising independent judgment Leyba so. doing (People Cal.3d 596-597
The circumstances thus show an еxercise of official such that authority under respondent, the standard of a believed reasonable person, he seized, was not free to leave. He was under category the detention contact, therefor, without the necessary basis and his сonsent was therefore The evidence involuntary. from the consent was therefore produced prop- erly suppressed.
The officer’s statement as to his state of mind at the time he turned on his leave, emergency equipment, the driver was not free to is not relevant. His communication of that state of or mind by energizing signal stop is stay relevant.
Appellant’s of inevitable The issue was argument discovery is helpful. not raised trial and it during would be to raise it for the first inappropriate *5 time on appeal. оf the doctrine of inevitable application discovery would involve factual matters which are not in record and which re- has not had spondent an of authority began show opportunity present. record, when the red went on. We have no from the wаy knowing has had no respondent to offer opportunity respondent would or would not have moved had it before the officer away approached, 219, been for the (1972) to remain. Miller 7 Cal.3d signal v. (People 860, 227 1228]; (Simon) P.2d Cal.Rptr. 496 v. People Superior [101 (1972) 198 496 [101 The motion to was is affirmed. suppress granted. Judgment properly Panelli, J.,P. concurred.
AGLIANO, was dissent. The evidence in this case I respectfully simply J. detention, not the of a product either lawful or unlawful. The magistrate correctly decided found that this issue at the when he hearing preliminary the contraband and were detention. gun any discovered independently
The undisputed evidence Police Officer Saito discloses that San Jose vehicle left of defendant’s parked behind and to the slightly vehicle. He parked switched on red and blue affixed to the vehicle’s lights and a amber rearward. Officer New- grill flashing light facing His partner, and, at the on arriving vehicle man, of defendant’s walked to the side right through coming odor of marijuana rear detected a strong quarter panel, he smelled windоw, he told defendant through front passenger open me show “[hjere, you let Defendant marijuana. spontaneously replied, re- it and reentered vehicle but then where it’s at.” Defendant exited the handed this seat. He in the front trieved a bag marijuana pouch to the officer and arrested. was then bag vehicle. search the Saito then defendant for
Officer asked permission Newman, aid of his flash- with the ahead.” Officer Defendant replied, “[g]o on the straw, drug paraphernalia, a short which he as recognizеd saw light, of cocaine door, entered, a bag and retrieved dash. He the vehicle opened in the pocket was found from an A ashtray. larger bag marijuana open for permission of a in the back Saito then asked defendant coat seat. Officer else, nothing go there’s to search the trunk. Defendant said “[yjeah, .357 Smith a loaded ahead.” The trunk and found to contain was opened and Wesson revolver. issue, raises no defendant
While evidence of consent to search is ample, none, lаwfully of marijuana and there should be that once the odor without a warrant detected the the entire vehicle officer could search contained contraband. at that he could believe the vehicle point reasonably S.Ct. (Chambers L.Ed.2d v. Maronеy [26 572, 102 1975]; United States Ross S.Ct. Divito 152 Cal.App.3d had the However, right officers that while the trial court determined him defendant, asking contacting “investigate” presumably *6 him; of emergency the display to detain that had no questions, they right brief, there- which, the evidence tainted effected a detention lights although after secured. was a of lights that the display for the sake of argument,
Assuming, leave freedom to which restrained defendant’s demonstration of authority 573]), 124, 130 (see (1979) v. Rico 97 People Cal.App.3d [158 the in no manner were narcotics and gun evidence establishes that the the entirely indepen- and seized restraint but were discovered of such product or assist not enable did lights Put the way, display thereof. another dently to obtain the evidence. the officers exclusionary of the after shortly adoption clear Court made
Our Supreme 905, 434 P.2d (1955) 44 v. Cahan Cal.2d [282 California (People rule in unrelated entirely conduct that was 513]) that “illegal 50 A.L.R.2d 408
collateral to the evidence does not render that securing objected 301, evidence (1956) inadmissible.” 305 (People v. Maddox 46 Cal.2d [294 P.2d (1st 1981) 85.) see also United States 645 F.2d v. Pimental Cir. “The answer to this must be in the basic reasons for the question sought rule. . . . The exclusionary evidence is excluded ‘on the ground must not government be allowed to its own and thus en- wrong profit by in the couraged (Maddox, lawless enforcеment of at supra, the law.’” 305, 755, p. citing People Martin [290 199, As stated by court v. Freeland Cal.App.2d 203-204 132], factor is the causal relationship pivotal [32 “[t]he hand, between the on the one evidence on the illegality, and the questioned other. This causal been the of diverse has relationship subject descriptive result,’ connection,’ such as ‘direct phrases ‘essential ‘necessary product,’ ’ and ‘immediate In the of Mr. Justice product. oft-quoted phrase [Citations.] Frankfurter, has been likened to ‘a fruit of the relationshiр poisonous States, (Nardone tree.’ v. United S.Ct. [60 307].)” L.Ed.
This was reaffirmed the United principle States recently Supreme v. United Segura States There, officers and secured the illegally entered a dwelling 3380]. for premises 19 hours while others in faith and information good utilizing from a sоurce obtained a warrant. The Su- independent illegal entry Court held preme that contraband there discovered in the course of a search conducted under the warrant had from and wholly a source independent unconnected to the initial аnd was therefore admissible at trial. illegal entry (Id., 801-802 pp. L.Ed.2d at
Defendant
he would have
without aid of
argues, though
driven off but for the
the mar-
inferably,
red and blue
display
lights
odor which
The Su-
ijuana
cause to arrest would have
triggered
dissipated.
Court in
preme
confronted with
similar
Segura
argument, adopted
a
view that such
on “wholly
unsound” and rested
theory
“prudentially
speculative
The court stated: “We
with the Court
assumptions.”
fully
agree
her
that the District Court’s
that Colon and
cohorts
Appeals
suggestion
or
Even
removed
the evidence was
destroyed
speculation.
pure
rule,
however,
more
we decline to
important,
exclusiqnary
extend the
*7
already exacts an enormous
from
and our
society
system justice,
price
further
have us do.
It
criminal
as the dissent would
‘protect’
activity,
[f]
thаt,
be
if the
had not entered the
may
agents
might
apartment, petitioners
evidence,
have
for the removal or
and that in
arranged
destruction of the
this sense the
actions could
‘but for’ cause for
agents’
be considered the
of the evidence. But at this
wе are reminded of Justice
discovery
juncture,
Frankfurter’s
warning
argument may prove
‘[sophisticated
[causal]
and
through [illegal
connection between information obtained
conduct]
should consider
that the courts
Government’s
and his admonition
proof,’
have become
may
connection
whether
a matter of
sense . . . such
good
‘[a]s
Nardone,
US,
L Ed
at
so attenuated as to
the taint.’
dissipate
‘consti-
there is some
In view of the evidence the my undisputed contraband, been turned on detected the odor of the red had light whether or not. off and motor stopped. Defendant’s vehicle was with its lights parked defendant, frоm the scene To as he have driven suggest, does that might the red within the few a few feet after seconds it took the officer to walk turned on is sophistry. offer discovery” justify of “inevitable theory alternative when it is shown into admissibility theory play evidence. That comes ultimately obtained the first unlawfully place, (Nix been means. inevitably discovered lawful Williams unnecessary is theory when, here, seized found and lawfully as the evidence is inapplicable in the first instance.
I the evidence. would reverse the court’s order suppressing superior