THE PEOPLE, Plаintiff and Respondent, v. ELEAZAR BARAJAS, Defendant and Appellant.
Crim. No. 9046
Third Dist.
June 21, 1978
81 Cal. App. 3d 999
Kevin P. Regan, under appointment by the Court of Appeal, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Marjorie Winston Parker and Paul H. Dobson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PARAS, Acting P. J.—Defendant appeals from the judgment following conviction by a jury of possession of heroin for sale in violation of
On April 28, 1976, Tony Zuniga, an auxiliary police officer with the Lodi Police Department, assisted another officer in arresting defendant for a traffic violation and for possession of a knife. After being advised of his Miranda rights defendant falsely identified himself as Francisco
The next day Zuniga informed a fellow officer, Detective John Martin, of what had transpired. Suspecting that defendant was an illegal alien, Martin made a telephone inquiry of United States Immigration and Naturalization Service Agent James Kerr in Stockton. Kerr ran a record check by giving defendant‘s vital statistics to his main office in Livermore and receiving word in return that defendant had been apprehended on two prior occasions, one of them on September 25, 1975. He also was informed that defendant had been “formally deported” at that time. Such information was taken from an “apprehension report” which was introduced into evidence as People‘s exhibit No. 1.
Kerr telephoned Martin with this information; he said he could not then leave his office and asked that Martin (or any other Lodi police officer) arrest defendant, telling Martin that it was a felony to reenter the United States after deportation. Kerr knew that even though a person was deported, he could nonetheless reenter the country legally by obtaining special permission from the Attorney General, something rarely given; where such permission was obtained, sector offices such as that in which Kerr worked were not notified.
After Martin received this information, he and Zuniga drove separate vehicles to the 100 block of North Sacramento Street in Lodi in order to arrest defendant. As Zuniga parked his vehicle, he noticed defendant standing outside the Royal Cafe. When defendant saw Zuniga, he entered the cafe. Zuniga radioed Martin, then himself entered the cafe where he saw defendant by the bar and arrested him. Martin then took defendant a short distance down the street to a hotel in which defendant indicated that he had a room. However, once inside, defendant denied having a room there. While Zuniga further investigated the asserted residence at the hotel, Martin searched defendant for weapons and contraband before transportation. While patting down defendant, he felt something in the left front pocket. A search of the pocket revealed 5.5 grams of 34 percent pure heroin in a wax paper wrapping.
Martin, through Zuniga (who spoke Spanish) advised defendant of his Miranda rights. Defendant then asserted that he had found the heroin on the street, and not knowing what it was, put it into his pocket.
Later, after being booked into jail, defendant was visited by Mary Silva. Their conversation, which was entirely in Spanish, was monitored and tape-recorded by Martin and Zuniga. On the tape, which was translated, transcribed and played to the jury, dеfendant stated that he had been caught with “Chiva” and that he had passed two grams to a person named “Chivo” because “he was going to be holding....” He indicated that he could not “throw it away” when he was sitting at the bar and that they found it in his pocket. He claimed it was about one gram. The translator of the tape testified that the term “Chiva” in the context of the conversation was street language for heroin.
There was expert testimony that the normal dosage for a user of heroin was one-half to three-quarters of a gram of 3 percent to 4 percent pure heroin. The 5.5 grams of 34 percent pure heroin in defendant‘s pocket was of high quality and, if broken into street dosages, would be worth about $2,750. The expert testified that the amount of heroin was more than a street dosage and of sufficient quantity to be possessed for sale.
Defendant makes the following contentions on appeal:
- Local police cannot make arrests for violations of
8 United States Code sections 1325 or1326 . - His arrest was unlawful under the provisions of the federal Immigration and Nationality Act.
- There was no probable cause to believe he had committed a felony.
- There was no misdemeanor being committed in the arresting officer‘s presence.
- The fruits of the unlawful arrest should have been suppressed.
- The search of his person incident to the arrest was excessive in scope and therefore unlawful.
- The tape recording of his conversation while in custody was erroneously admitted into evidence.
- His right to represent himself was improperly denied.
I
Defendant claims that local police cannot make arrests for violations of
That article points out that in
Defendant‘s reliance upon the supremacy clause of the federal Constitution is misplaced. It is true that under the supremacy clause, Congress has preempted the field of immigration. (See De Canas v. Bica (1976) 424 U.S. 351 [47 L.Ed.2d 43, 96 S.Ct. 933]; Hines v. Davidowitz (1941) 312 U.S. 52 [85 L.Ed. 581, 61 S.Ct. 399].) And as the law review article points out, there are reasons why Congress might choose to limit local enforcement (e.g., enforcement of immigration laws sometimes has international overtones). But Congress has not done so. The supremacy clause is a two-edged sword, and in the absence of a limitation, the states are bound by it to enforce violations of the federal immigration laws. The statutory law of the United States is part of the law of each state just as if it were written into state statutory law. (Hauenstein v. Lynham (1880) 100 U.S. 483, 490 [25 L.Ed. 628, 630-631]; People ex rel. Happell v. Sischo (1943) 23 Cal.2d 478, 491 [144 P.2d 785, 150 A.L.R. 1431].) Since there is no limitation relative to sections 1325 and 1326, the Lodi police officers had the power to arrest for their violations.
II
Defendant‘s second contention is that his arrest was unlawful because the police officers did not comply with the warrant requirements of
Defendant argues that permitting local police officers to make warrantless arrests (under
III
Defendant argues that there was no “reasonable cause” (as required by
In support of his argument that Kerr did not have reasonable cause, defendant cites the testimony of Glen Smith, the border patrol agent in charge of the Stockton office. Smith stated that defendant‘s immigration file, upon which Kerr based his information, revealed that defendant had received a deportation hearing and was required to leave the United States on September 27, 1975. However, he was not deported, but left as a result of an order requiring him to leave in lieu of deportation. Also in the file was a warrant for defendant‘s arrest and an order for another hearing set for October 2, 1975. However, Smith could not tell whether that hearing was held or whether defendant was deported because of it. Smith stated that the documents (labeled as People‘s exh. No. 1) indicated “very possibly the man was previously deported back in August of 1968, at which time he had been charged with a felony and at that time prosecution was declined. But no doubt deportation was set up.” (Italics added.) Smith admitted, however, that the records were not conclusive.
Based upon such testimony, defеndant asserts that the records were insufficient for Kerr to reasonably conclude that he had been deported or was in the country illegally. We disagree. The reasonableness of inferences to be drawn from these records was a question of fact, and we will not disturb the trial court‘s implied finding, on disputed evidence, that Kerr‘s interpretation was reasonable.
Moreover, the arresting officers had information in addition to that supplied by Kerr. Their knowledge of defendant‘s evasive conduct (use of
IV and V
Our above conclusion makes it unnecessary to consider defendant‘s argument that there was no misdemeanor being committed in the officer‘s presence and that the fruits of the arrest should have been suppressed.
VI
Defendant argues that the search incident to the arrest was excessive in scope. Relying upon People v. Brisendine (1975) 13 Cal.3d 528, 539 [119 Cal.Rptr. 315, 531 P.2d 1099], People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 201-202 [101 Cal.Rptr. 837, 496 P.2d 1205], and People v. Millard (1971) 15 Cal.App.3d 759, 762 [93 Cal.Rptr. 402], he argues that since the immigration crime for which he was arrested did not involve contraband and there were no fruits or instrumentalities of the crime, the officers were only entitled to search for weapons; yet Martin testified that the heroin did not feel like a weapon.
Of course, as part of being booked into jail (which later took place), defendant was subject to a full body search in order to “provide for the safety of police personnel and other prisoners, to prevent the introduction of weapons and contraband into the jail, and to inventory the entering prisoner‘s property.” (People v. Maher (1976) 17 Cal.3d 196, 201 [130 Cal.Rptr. 508, 550 P.2d 1044].) Therefore the heroin would have been discovered later, unless somehow disposed of by defendant en route to the jail. Can the search therefore be justified as an “accelerated” booking search? We so hold.
Brisendine, supra, 13 Cal.3d at page 536, notes that People v. Superior Court (Simon), supra, 7 Cal.3d at pages 199-201 (which invalidated a contraband search incident to a traffic violation detention), divided traffic offenders into three discernible groups for purposes of searches incident to arrest: “(1) those who are merely cited and immediately released (
In a subsequent series of cases involving misdemeanor offenses similar to the first category identified in Simon but subject to the citation procedures of
Indeed, where booking is anticipated as is generally the case in felony arrests (see Witkin, Cal. Criminal Procedure (1963) Proceedings Before Trial, §§ 113, 114, pp. 110-113), it takes place at the jail facility (cf. People v. Maher, supra, 17 Cal.3d at pp. 199-201), with the attendant possibility that an unsearched arrestee may, before or during the booking process, pass contraband to others or secrete it for later retrieval. Under such circumstances, it is permissible for the officers to conduct a contraband search prior to arrival at the jail facility.
A collective reading of
Defendant argues that an early search cannot be justified because “There always exists the possibility that between arrest and booking, facts will become known which will cause the arresting officers to release an accused from custody.” This contention is too speculative for serious consideration.
VII
Defendant contends on three separate grounds that the tape recording of his conversation with Mary Silva was erroneously admitted. First, he argues that the tape was not properly authenticated as required by
The conversation was monitored by Martin and Zuniga. Martin recorded while Zuniga contemporaneously translated for Martin‘s benefit. Martin testified that he then marked the cassette tape and placed it in the evidence locker “until the next day in which it was translated by Officer Zuniga tо a stenographer and then typed in English.” At trial, Martin identified the cassette as the one he took of the conversation. Over defendant‘s objection on “chain of custody” grounds, the tape was admitted into evidence.
One day after the tape was admitted into evidence, it was played for the jury, following which an investigator for the district attorney‘s office, Tony Martinez, testified that he had translated it into English. His translation was then also introduced into evidence and read to the jury. Prior to the playing of the tape, defendant‘s counsel made objections based upon the “best evidence” rule and upon the ground that parts of the tape were unintelligible. He did not however at that time object on the ground that no chain of custody was shown before the tape came into Martinez’ hands.
On appeal, defendant now for the first time argues that in the absence of such a showing “there is no way of ascertaining whether the recording Mr. Martinez translated was in fact the one made by Martin at the Lodi Police Station, or, even assuming it was the same one, whether any changes in the contents of the tape took place in the interim.”
By failing to object in the trial court, defendant has waived this objection and may not raise it on appeal. (People v. Fujita (1974) 43 Cal.App.3d 454, 472 [117 Cal.Rptr. 757].) In any event, the contention lacks merit. Martin‘s identification of the tape cassette as the one he had used and Martinez’ identification of the same cassette as the one from which he had prepared his transcript provided sufficient authentication. Any significant alteration of the tape could have been discovered by comparison of the Zuniga and Martinez translations, both of which were available to defendant. No claim of alteration was made until the appeal, making it mere speculation.
Second, defendant argues that the “best evidence rule” (
Third, defendant argues that the tape recording was required to be fully audible and intelligible before any of it could be admitted, relying upon People v. Stephens (1953) 117 Cal.App.2d 653 [256 P.2d 1033]. In Stephens, several tapes, portions of which were inaudible or unintelligible, were played for the jurors with obvious confusion on their part as to what was actually said. The district attorney had made a transcript after “... hours and hours of checking and very careful electronic work...” (117 Cal.App.2d at p. 662), but refused to show it to defense сounsel and did not offer it in evidence. The appellate court stated “how many different and varied interpretations were placed upon what the recordings conveyed by the various jurors is a matter of pure conjecture.” (At p. 662.) Moreover, the witnesses who participated in the taped conversations were available to testify. (At p. 662.) On such facts, the court reversed the judgment, stating that the usual justification for admitting recordings—that they are more reliable and satisfactory evidence than testimony of conversations given from memory by those who overheard them—was inapplicable. (At p. 660.)
Stephens is thus highly distinguishable. The unintelligible or inaudible portions of the tape in the present case were clearly so (even for those jurors who may have understood Spanish), and the carefully prepared translation left no doubt as to the evidence in the record. There was no
We hold that the tape recording and the transcript were properly admitted into evidence.
VIII
Finally, defendant argues that his right to represent himself was improperly denied.
On November 15, 1976, the day before trial, his attorney informed the court that defendant had written a letter to Judge Woodward indicating that he wanted new counsel who could speak Spanish; he also wanted a 60-day continuance because he was not ready for trial. Defendant himself then told the court that he wanted to be rid of his attorney because there was no evidence to justify his arrest. The court inquired as to whether motions pursuant to
On November 16, the day of trial, defendant made another request, this time to represent himself. When the court asked him whether he understood the charge against him, he said, “I don‘t understand, but I don‘t want the attorney.” The court then asked whether he understood the nature and the elements of the offense and was aware of the penalties. Defendant did not answer these questions; instead he asserted that his attorney had helped him with nothing and was not needed. Defendant then asked the court, “What right do you have to take me to a jury trial when you don‘t have the —.” At this point, the court interrupted and found that defendant was not competent to represent himself.
Later in the day, just prior to commencement of trial, defendant renewed his motion to relieve counsel or in the alternative to represent himself. He also indicated that he wanted a 60-day continuance to get another attorney and that he had explained to Judge Woodward why he wanted another attorney.
On such record, the trial court properly found that defendant could not intelligently waive his right to counsel and invoke his right to self-representation. (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525].) Defendant‘s only defense was a technical one involving the search and the admissibility of the tape recording. He was clearly incapable of adequately representing himself. His request was obviously nothing more than an attempt to delay the proceedings.
The judgment is affirmed.
Evans, J., concurred.
REYNOSO, J.—I dissent. The majority faces, and incorrectly decides, the issue of local police authority to arrest an alien for violation of the immigration statutes of
I
Local police officers do not have the authority to arrest individuals suspected of being aliens present in the United States without permission from the United States Government, that is, aliens who are in violation of sections 1325 and 1326. I cite two separate but dependent rеasons. First, in dealing with a delicate issue of foreign affairs the supremacy clause dictates that federal power be left “entirely free from local interference.” (Hines v. Davidowitz (1941) 312 U.S. 52 [85 L.Ed. 581, 61 S.Ct. 399].) In implementing immigration and naturalization laws, which affect foreign nations, national uniformity is required. The Constitution mandates that Congress, not the states, shall have authority. (
1. Need for Uniformity in Dealing With Immigration and Naturalization
Because of the necessity of uniformity in the area of international relations, Congress had been granted exclusive authority to regulate and establish a uniform policy of immigration and naturalization. (
Unlike the majority, I conclude that the arrest and detention of aliens for violation of federal law is so clearly a matter of international relations and exclusive federal governmental activity as to effectively preclude the states from acting. “[T]he constitutional separation of the federal and state powers makes it essential that no state be permitted to exercise, without authority from Congress, those functions which it has delegated exclusively to Congress.” (Hines v. Davidowitz, supra, 312 U.S. 52, quoting from Spector Motor Service v. O‘Connor (1951) 340 U.S. 602, 608 [95 L.Ed. 573, 578, 71 S.Ct. 508].) In fact, Congress has exercised its authority by enacting the Immigration and Nationality Act of 1952. In turn, the act created the Immigration and Naturalization Service (INS) and entrusted to it and its agents the sole authority of enforcing the Immigration and Nationality Act.
INS regulations and internal procedure spell out the function and duty of its agents. Such agents receive intensive instruction in immigration and naturalization law; are trained in the service‘s operational tactics, and receive extensive field training. Those agents who will be operating near the United States-Mexican border are required to be fluent in Spanish and are trained to be sensitive to the Mexican culture. (See, statement of Leonard F. Chapman, Jr., commissioner, Immigration and Naturalization Service in Hearings on Law Enforcement on the Southwest Border, before the Subcom. on Legislation and Military Operations of the House Com. on Gov. Operations, 93d Cong., 2d Sess. (July 10, 11, 16; Aug. 14, 1974.) p. 39.) In my view, Congress has enacted such a comprehensive scheme that states may neither cоntradict nor complement without specific congressional mandate.
Independent local enforcement of federal immigration and naturalization laws, outside the control of the Immigration and Naturalization Service, undermines the concept of a comprehensive and uniform enforcement scheme. Local police officers have no training or expertise in immigration and naturalization laws and regulations. These statutes and regulations are as ever changing as are those of the Department of Internal Revenue. Much of the enforcement is done by internal operating procedures. Delicate legal and factual determinations must be made distinguishing between “legal” and “illegal aliens;” among those who are “illegal” there are categories of persons who are nondeportable and
Effectuation of federal immigration policy is not a matter that can be left to the vagaries of state arrest and detention law nor to the discretion of the local police officer. Even within a state, local police departments may and do operate under separate and distinct standards for arrest and detention. Thus, the San Diego County Sheriff‘s Department has policies respecting aliens which differ from those of the San Diego City Police Department. (See, Illegal Aliens and Enforcement: Present Practices and Proposed Legislation (1975) 8 U.C. Davis L.Rev. 127, 128.) Such erratic enforcement policies, when dealing with a federal matter, cannot be.
The relation of the power to arrest on the part of local officials to foreign affairs is underscored when heads of foreign states lodge official protests with the United States government regarding the treatment of their nationals. Such protests have been filed from time to time by the Mexican government. Local law enforcement can but exacerbate that situation. (See 8 U.C. Davis L.Rev., supra, at p. 148.)
I turn to the one statute which forms the basis for the majority‘s analysis.
It is on this very narrow ground that Congress has authorized agents, other than INS, to arrest. In fact, the statute merely authorizes those officers to act respecting a criminal act as they would act respecting any other criminal act. I again note that the arrest is not on the basis of alienage. Such arrests can affect the relationship of this country to others and it is found within the immigration and naturalization statutory scheme. Accordingly, it is an “exception” wherein Congress has specifically and expressly authorized the non-INS officers to act.
The Immigration and Nationality Act nowhere authorizes arrest by local police on the basis of alienage. The majority would have us beliеve that this overwhelming silence in the entire act is corrected by section 1324 and that we must infer that Congress intended local officers to be able to enforce all federal immigration violations. In view of the supremacy argument and the need for uniformity, the majority‘s conclusion is untenable. Rules of statutory construction dictate a result exactly opposite that reached by the majority. Where in one part of the statute Congress specifies an exception to a general rule and in another omits such express provision, it means to exclude the exception. (See Passenger Corp. v. Passengers Assn. (1974) 414 U.S. 453, 458 [38 L.Ed.2d 646, 652, 94 S.Ct. 690].) Further, “[t]here is no reason to assume that Congress intended to invoke by omission in [one section] the same [power] which it explicitly provided by inclusion in [another]; the reasonable inference is quite the contrary.” (Federal Trade Comm‘n v. Sun Oil Co. (1963) 371 U.S. 505, 515 [9 L.Ed.2d 466, 476, 83 S.Ct. 358]; Accord, United States v. Culbert (1978) 435 U.S. 371, 378-379, fn. 9 [55 L.Ed.2d 349, 355, 98 S.Ct. 1112].)
For the above reasons the conclusion is compelled that the federal government has exclusive control over the question of when and who can arrest aliens on the basis of their alienage and that it has chosen to exclude local officers.
2. Danger to the United States Citizens and Resident Aliens
As has been discussed, local police officers have no training or expertise in the complexities in enforcing immigration and naturalization laws. Their awkward attempts to enforce such laws has resulted in numerous complaints of harassment from citizens and resident aliens mistaken for illegal entrants. (See, Illegal Aliens and Enforcement: Present Practices and Proposed Legislation, supra, 8 U.C. Davis L.Rev. 127, 144.) Such incidents, oftimes outrageous in character, are reported by the media with unfortunate regularity. One such practice came to the attention of the federal courts in United States v. Mallides (9th Cir. 1973) 473 F.2d 859, 860. There the local police apparently made it a рractice to “stop ‘all cars with Mexicans in them that appear to be sitting [erect] and packed in [three in the front and three in the back]....‘” (Id., at p. 860.) The Ninth Circuit Court was not amused. INS agents, themselves far more expert, have recognized the difficulty of distinguishing among citizens, resident aliens and illegal entrants. (See testimony of Raymond Farrell, commissioner, Immigration and Naturalization Service, in Hearings on Illegal Aliens before Subcom. No. 1 of the House Com. on the Judiciary, 92d Cong., 2d Sess., ser. 13, pt. 5 at p. 1308 (1972).)
The concern is, of course, that once we establish the rule for detention and arrest, the affected individuals will include many citizens and resident aliens who will be subjected to the same investigative procedures for identification purposes. California has millions of citizens of Mexican descent. Some are descendants of early day Californios who preceded the United States conquests. Others are descendants of 19th and 20th century immigrants. Yet others are recent arrivals. In a state like California, therefore, the authority to arrest in the hands of the unskilled is a danger. Even the tactics of the skilled, the INS agents, have captured the unflattering attention of Congress. One congressman reported that “I not only received written complaints but I went down into the area [where INS searches had occurred] and I tell you, there is no greater bone of contention in Los Angeles and in San Ysidro and in National City and in Chula Vista among Americans who are of Mexican descent ... they are being stopped all the time.” (8 U.C. Davis L.Rev., supra, 135, fn. 61; Hearing before the Subcom. on Immigration, Citizenship and International Law of the House Com. on the Judiciary, 93d Cong., 1st Sess., ser. 22, at p. 45 (1973).) Illegal entrants, naturally, normally live and work in areas populated by people of similar characteristics. The need for care and caution in setting down the proper rules for detention and arrest bear close scrutiny. Congress, after such scrutiny, has decided not to give such power to local officers.
II
The majority holds that the police officer had probable cause to believe that defendant had committed a felony. The record, in my view, does not support that conclusion. Absent such probable cause, the arrest was unreasonable.
The issue of whether there was probable cause for the arrest was submitted to the superior court (pursuant to a
The majority holds that probable cause existed on the basis that the agent who initiated the arrest, INS Agent Kerr, had probable cause to believe thаt a felony had been committed. Further, the arresting officer had independent information, which coupled with that given by INS Agent Kerr, provided ample probable cause for the arrest. Such independent information was defendant‘s evasive conduct during the April 28 incident.
My analysis begins with
We appear to be agreed that the officer who initiates the arrest must have probable cause to believe that a felony had been committed. I acceрt the majority‘s premise that the initiating officer was INS Agent Kerr. I conclude that Kerr did not have probable cause to believe that a felony had been committed.
At the preliminary hearing, Agent Kerr testified that he had a file (marked People‘s exh. No. 1) which he identified as “our apprehensions report.” The exhibit is not part of the record on appeal. That report, he indicated, showed that defendant had been apprehended by “us” (presumably the Immigration and Naturalization Service) on two occasions and that on the second occasion, which was on September 25, 1975, “we formally deported him to El Centro.” Accordingly, Agent Kerr testified that he told Officer Martin (the arresting officer) that “we had
The events in El Centro are picked up by the testimony of INS Agent Glen Smith at the
Finally, the allegedly buttressing information was gathered during an incident (defendant was given a citation) which took place prior to the arrest which is the subject of this appeal. That “information” is the evasive response of defendant to questions pertaining to his name and residence. The information, the majority holds, provided probable cause to arrest defendant. However, this reasoning is premised on the propriety of the arrest based on defendant‘s alienage. Since, in my view, no such power lies, I cannot agree that “evasive conduct” can provide reasonable cause.
Defendant‘s motion to suppress evidence should have been granted. First, the local arresting officer had no authority to arrest on the basis of
Appellant‘s petition for a hearing by the Supreme Court was denied September 7, 1978. Bird, C. J., Tobriner, J., and Mosk, J., were of the opinion that the petition should be granted.