People v. Bilderbach

acting judge, fact, trial as the Since the trier improper finding use” in utilized the “habitual test defendant “ ’’ narcotics, to be addicted to the use we must reverse the judgment and remand the cause for a factual determination of an “addict” we whether the defendant is as defined opportunity pre Defendant is entitled to the for a full term. light of his defense of that sentation definition. judgment proceed is reversed with directions ac- opinion. expressed in cordance the views this with J., Peters, J., Peek, J., Schauer, J.,* and Traynor, C. Dooling, J.,* concurred. judgment McCOMB, I dissent. I would affirm the for J. expressed by Presiding

the reasons Mr. Justice in the Griffin Appeal opinion prepared him for the District Court of Cal.Rptr. (Cal.App.) O’Neil 734. May 21, No. In Bank. 8680. [Crim. 1965.] PEOPLE, Respondent, THE Plaintiff v. ALAN BILDERBACH, Appellant. THOMAS Defendant sitting assign *Retired Associate Justice under byment the Chairmanof the Judicial Council. Salyer and Appellant. C. Defendant John for Stanley Lynch, Attorneys General, Mosk and C. Thomas Attorney James, General, E. Assistant and William William General, Zessar, Deputy Attorney Plaintiff L. for and Re- spondent. We adjudicate TOBRINER, appeal defendant’s J. from judgment finding guilty violating a a Mm on verdict Health Safety possession 11530, prohibiting

and section Code of mari juana. We the conviction reverse on the basis of the erroneous admission of defendant’s confession the record fails to since that, prior confession, indicate defendant had been rights attorney silent, advised of his to an and to remain rights. point that he had also out otherwise waived those We if, upon admissibility trial, a new only arises, judge the confession should not deter rights properly mine to whether defendant waived his counsel and to confessing, remain silent before but should also decide whether the confession induced an search and seizure. August 22, police defendant’s

On officers arrested brother, Jay the home of Bilderbach, Bruce Becker at marijuana. parents illegally possessing While Becker’s for investigation premises, police conducting on the were in an auto- defendant and arrived at the home Sue Jenkins obtaining mobile owned Miss After Miss Jenkins’ Jenkins. glove consent, car and found in the officers searched her compartment containing appeared, and a vial debris that was and marijuana. Although analyzed, later to be defendant having before, vial Miss Jenkins denied ever seen the officersarrested both of them. home, The officersthen the defendant to his which was drove during police, a search about 16 miles distant. There the marijuana cigarette, a a warrant,

without uncovered ownership of wMch defendant admitted. following day defendant, being questioned by the marijuana about the found in Miss automobile, Jenkins’ belonged admitted that the narcotic stated, “Yeah, him. He guess man, got I it is. You’ve anyway. me on the other It’s At the mine.” time of this confession defendant was in

custody. Nothing in the prior record indicates that to such confession defendant had rights been advised of his to counsel and to remain silent or that he had knowingly otherwise intelligently rights. waived those trial, At the which was conducted without jury, suppress defendant moved to the evidence obtained as a result searches of the car and ground of Ms home illegally it had been Apparently seized. trial the rul- court’s ing guilt primarily upon on rested presented the evidence on suppress because, immediately the motion to almost the disposition parties motion, court’s of the that rested.1 Upholding the of lawfulness the search of the automobile, judge the trial condemned as the search defendant’s excluding marijuana cigarette After the house. house,2 found the judge adjudged the guilty. nevertheless defendant In ruling stated, question so that he court “there seems to be no but admitted to at least of the two officers [defendant] joint ownership he did have at a vial, that least of the and it ’’ stipulated marijuana. that it was was Defendant’s confession should not have ad been into evidence in mitted view of Dorado ante, p. Cal.Rptr. 169, Following 398 P.2d [42 361]. Illinois (1964) Escobedo 378 U.S. 478 S.Ct. 977], in L.Ed.2d which the right established that an accused has a pre to counsel at the arraignment accusatory stage and incriminating that state right obtained in violation of ments that excluded, must be given we held Dorado that the admission of a confession during stage requires that reversal if the defendant rights advised of his to been counsel and to remain silent rights prior if he has otherwise waived giving those to the confession. stage accusatory right stage,

The or that which the accrues, when two conditions to counsel matures eventuate: suspect “when have arrested the the officers the officers process interrogations undertaken lends itself eliciting incriminating (People ...” statements. ante, pp. 571, Cal.Rptr. Stewart day Defendant confessed after he had already questioned had been been arrested. He marijuana about the automobile, previously found in the he had marijuana possession of the found in his confessed to the home. Attorney argues that since the record indicates General objected 1Early trial, when defendant to the admission of one ground corpus extrajudicial of his statements on delicti ruling proved, judge been stated he would reserve had not in, assumed that until and that he the evidence was the entire ease being probable of admission cause for the arrest and search. offered Testimony ownership of the vial came in as to defendant’s shortly Subsequently, when almost all the evidence had thereafter. judge phase presented, reiterated that “we are on the been ease of the solely.” admissibility of the evidence judge upon 2Nothing that the trial relied in the record indicates defend marijuana cigarette he found in ant’s admission that owned house. 762 being only

that defendant confessed after asked one process interrogation exposed he lent itself was to a that eliciting incriminating pointed to we statements. As process Stewart, however, “in of interro out in gations most cases the (Id. following an arrest lend itself. ...” at will so length interrogation p. 578.) Furthermore, the of the (Id. p. 579.) one factor in the determination. is but Attorney unsuccessfully upon United General relies Konigsberg 844, (1964) F.2d which is cited States v. Stewart, 336 accusatory authority proposition that the as for the Konigsberg shortly stage defendant had not been reached. In incriminating response to statements in after his arrest made opportunity questions him the police that offered immediate garage containing presence in contraband. explain his to ease, questioning that however, the instant the In had occurred after defendant been the confession elicited long police evening had custody and after the for the entire marijuana found in the automobile. him about the questioned confessed, circumstances, at defendant the time these Under he was interrogation arrest, process of lent itself and the under incriminating accusatory Thus the eliciting statements. to (People Stewart, supra, ante, v. stage had been reached. 97].) Cal.Rptr. 201, 400 P.2d p. 571 [43 nothing prior record shows that to his the Since rights advised of his to counsel had been defendant confession rights, waived those silent, or that he remain otherwise and to (People compels v. reversal. of his confession admission the People Stewart, ante, p. 338; supra, ante, Dorado, supra, 571.) p. propositions: the two further advances Defendant Miss unlawful because Jenkins automobile was the search it, and that his confession that voluntarily to consent did not belonged to him should in the car marijuana found the a “fruit” ground that it constituted the on been admitted why explain we find the house. We search of the n the second because we proposition discuss in the first merit no may arise on retrial. point of the of the search urges unlawfulness Defendant not incident to a law it ground that was upon automobile consent that since Miss Jenkins’ asserts He ful arrest. involuntary. (See it was after her arrest place took the search Cal.Rptr. 47, (1963) 59 Cal.2d People Haven however, evidence, contains The record 927].) P.2d search Miss Jenkins arrested evidence Since to the search. voluntarily consented she of Miss Jenkins’ and.the time voluntary nature of the the issue supports the evidence conflicted, since substantial consent arrest and preceded finding that the search court’s trial accept that must voluntary, we otherwise that the consent Cal.App.2d Washington People v. (See decision. 833, Cal.App.2d People Guy (1956) 67]; P.2d 842 [330 141 Cal. v. Smith 657]; 481, 490 reason For the same App.2d 402 [296 holding inadmissi as upset court’s we do not home on in defendant's found bility evidence during an search. ground procurement of its impropriety argues of the introduction Defendant marijuana in the vial found in his that the confession belonged to him. He contends that he confessed automobile cigarette that the only confronted with the because he was illegally obtained, and that there- trial court held to have been illegal “fruit" of that search. fore the confession constituted a ground on the of the erroneous we reverse the conviction Since confession, contention admission of the we discuss defendant’s that, trial, at a the evidence discloses that the event new right prior to counsel to the con- defendant had waived his occurs, must determine whether fession. If that the trial court “fruit" of the nevertheless inadmissible as a confession is illegal search of defendant’s home.3 prosecutor may profit directly indirectly That or illegal keystone an been the of the rule from search has illegally excluding As the obtained evidence. United Supreme said, cannot “The States Court Government only way Amendment—in the in which the violate the Fourth namely through agents—and anything, can do its Government of such unlawful conduct to secure a conviction use the fruits [citation], Nor can the make indirect use Government support for its case a conviction such evidence [citation] through unlawfully obtained leads from the ob on evidence evidence, tained All these methods are outlawed [citation]. invalidated, them obtained means of are convictions Attorney grounds, on other we need not discuss the 3Sinee we reverse specifically object that defendant did not General’s contention precluded arguing on admission of confession and is therefore from appeal Moreover, it “fruit” of an search. that must be excluded as the object to the admission of the confes defendant’s failure to preclude application Dorado on the of Escobedo and cannot sion of those decisions at basis they appeal had not been on this since handed down p. (People Hillery (1965) ante, v. 692 Cal. [44 of trial. time 30, 382].) Rptr. 401 P.2d 764 they encourage society

because the kind of is obnoxious (Walder v. (1954) 62, to free men.” 347 U.S. 354, ; 64-65 98 L.Ed. see also Nardone v. S.Ct. [74 503] (1939) United 266, States 308 U.S. 338 84 S.Ct. L.Ed. [60 307]; Silverthorne Lumber (1920) Co. v. United States 251 182, 319, People 385 64 1426]; U.S. L.Ed. 24 A.L.R. S.Ct. [40 (1963) 713, Cal.Rptr. v. Haven 59 47, Cal.2d P.2d 718 381 [31 People v. ; 755, Martin (1955) 45 Cal.2d 760-761 927] [290 People Berger 855]; P.2d v. (1955) 44 459 P.2d Cal.2d [282 509].) resulting indicated that We have statements from an may being search be inadmissible as a “fruit” of that search. People Dixon Thus, 456, (1956) 46 Cal.2d 458 P.2d [296 557], testimony impelled by held we “was illegally erroneous admission of the obtained evidence and segregated judg cannot be from that evidence to sustain (See People (1963) 448, v. Mickelson ment.” 59 Cal.2d 449- Cal.Rptr. 18, Superior Court ; 450 P.2d Badillo v. [30 658] People (1956) 269, v. Macias 23]; 46 Cal.2d P.2d [294 (1960) Cal.App.2d Cal.Rptr. ; 193, 197-199 [4 256] Superior Cal.App.2d 20, (1956) Hernandez v. (1957) but v. Ambrose 155 Cal. 678]; see [299 App.2d 513, 181].) 524-525 [318 applying illegally exclusionary In rule obtained evi- recently dence, the United Court has said States distinguish physical it could not between verbal and (Wong 471, evidence. Sun United States 371 U.S. Fahy 441]; 485-486 Connecticut S.Ct. 9 L.Ed.2d see 229, 11 L.Ed.2d 375 U.S. 90-91 S.Ct. pur- told that he had In Sun an informant Toy,” proprietor chased an ounce of heroin from a “Blackie laundry While of a on Leavenworth in San Francisco. Street agent Wong, agents sight, Alton the other remained out of sought calling laundry, pretext that for to enter. on the he was agent Toy door, the the identified When started to close Toy officer, but the door and himself as a narcotics slammed sleeping. bedroom, his wife and child were fled to a rear where Breaking agent Wong open door, the and the other officers Toy agents apprehended There the followed bedroom. Although premises uncov- and him. a search of the searched questioning, implicated narcotics, Toy, upon one ered no Johnny Tee, as a “Johnny,” later identified as who was vendor of narcotics. agents Tee, quantity a contacted surrendered When the he by Toy brought him and had been to of heroin he said which only Dog.” Toy him as later to another Chinese known “Sea Dog” Wong agents The then as Sun. identified “Sea house, narcotics, but discovered no searched Sun’s days arraignment their re- after and him. Several arrested Toy Wong during interrogations, bail, Sun, Tee, lease on incriminating unsigned, furnished statements. Supreme held the that The United States Toy his statement his search of rendered bed- arrest and room inadmissible as agents’ illegal the of the action. “fruit” said, had broken the door The court “Six seven officers where Toy’s into the bedroom his wife and followed heels immediately sleeping. He had been almost and child were such it is handcuffed and arrested. Under circumstances response Toy’s sufficiently that to infer unreasonable primary purge act of free will to taint of unlawful p. 486.) invasion.” at (Id. Court also held that the trial court should

have excluded the narcotics taken from Tee. The court pointed out that this was not a case exclusionary “where the application rule no because the Government learned independent the evidence ‘from an source’ . .. nor is a [it] in which case the connection between the lawless conduct discovery challenged of the evidence has ” dissipate ‘become so attenuated as to taint.’ at (Id. p. added, 487.) The court need “We not hold that all evi- poisonous simply dence is ‘fruit of the tree’ because it would light not Rather, come but to for police. actions of the apt question the more in such a ‘whether, case is granting primary illegality, establishment of the the evidence objection to which instant is made has been come at exploitation illegality or instead sufficiently means ” purged distinguishable primary to be taint.’ at (Id. pp. 487-488.) finally “Wong unsigned The court held that Sun’s confes- [Wong sion was the fruit of that arrest, and was Sun’s] properly admitted at trial. On the therefore Wong evidence that had recognizance been released on his own Sun arraignment, voluntarily lawful and had returned several days later to make the statement . . . the connection between the dissipate and the statement had arrest ‘become so attenuated as ” (Id. 491.)4 p. the taint.’ conviction, holding Toy’s 4In could stand on Ms uncorrobo admission, open question "whether, light left rated court Toy recognizance was free on fact Ms own when he made the 766 apply regarding We must federal standards the during illegal (Ker exclusion of evidence an search. obtained (1963) 1623, 374 U.S. 23 S.Ct. L.Ed.2d 10 [83 California 726].) Clearly, Supreme the United States Court test Wong relating

in product Sun excludable as evidence the illegal applies (See of an search and seizure to the states. Traub (1963) 1899, v. Connecticut 374 U.S. 493 S.Ct. [83 1048]; Fahy 85, 10 (1963) L.Ed.2d v. Connecticut 375 U.S. 229, Rogers 90-91 S.Ct. 11 L.Ed.2d United States 171]; [84 330 (1964) 535, 541; Rhay (1965) F.2d McNear v. -Wn. - 732, 739]; (1964) 2d - v. Kitashiro P.2d State [398 Wong 558]; Broeder, P.2d Sun v. United Hawaii- [397 Study Hope in (1963) A Faith and 42 Neb.L.Rev. States: 851, 854; L.Rev. 483, (1963) Note 31 Wash. 557-564: Geo. 824, Md. A.2d (1964) cf. v. State 235 497 but [201 Mefford Wong 831].) must therefore use the Sun test for deter We (See mining Comment, reach of the “fruits” doctrine. Supreme Court, (1963) 62, Term 1962 77 Harv.L.Rev. 118.) Wong Sun test evidence Under should not excluded be

merely because it not have would been obtained but for the illegal if the connection search between such evidence and the “ illegal ‘become so attenuated dissipate search as to ” If, however, the connection taint.’ is so attenuated and “ by exploitation ‘come at evidence ” (371 pp. illegality,’ 487, then it is excludable. at 488.) U.S. Wong application do not read Sun’s We the “fruits” pertinent only presence to verbal statements as doctrine “oppressive (371 p. 486, circumstances” 12); U.S. fn. opinion Wong rationale of the Court’s Sun **5 interpretation.* The court forecloses such reasoned that [unsigned] statement, illegal a fruit that statement was arrest.” 488.) (371 p. The court also U.S. at said court must decide Wong corroborated whether sufficient evidence Sun’s admission. Broeder, Wong Study Hope A Sun v. United States: Faith and 5See (1963) 483, 524-532; Maguire, Unpoison 42 Neb.L.Rev. How to Exclusionary (1964) Fourth Amendment and the Fruit—The Rule 55 307, J.Crim.L., holding &C. 317-318. P.S. Cases Sun ‘ ‘ voluntary accompanied oppres if if are admissible statements sive circumstances” generally problem given involve the statements (E.g., (1963) Cal.App.2d arrest. v. Freeland 218 after an 132]; (1963) Cal.Rptr. Traub State v. Burke 151 Conn. 246 199 A.2d [32 [196 755]; (1963) F.Supp. 508, 511, 215 affd. 328 (1964) (1964); v. Jackson 43 148 State N.J. A.2d [203 F.2d ; ; Prescoe v. State Md. A.2d State [191 231] 12-13] ——- --- 558, 562]; Hawaii State v. v. Kitashiro Keating (1963) 61 In Wn.2d two of the states from police action induced admission of statements (371 exclusionary rule policies of the undercut would statements, admit such p. 486). If court were to at TJ.S. engaging in from sufficiently not be deterred the illegal would they in lacked especially in which searches, situations The prior to the search. for a conviction sufficient evidence illegal in the encouraged to make searches police would be though the actual evidence obtaining hope confessions even of (Broeder, inadmissible. might be found to be later seized op. supra, at p. 531.) cit. might refer statements which By of the admission of means illegally materials, evidence should to the seized indirectly placed before the court. would be been excluded 365, P.2d (See Evans 45 Hawaii 622 (1962) State v. [372 Wong pointing Sun, after out in 375].) Moreover, the court exclusionary as rule” extends to indirect well that the “broad illegal no invasions, states that distinc products of as to direct regard physical in and verbal may made this between tion be If pp. 485-486.) no such dis (371 at U.S. evidence. evidence which stand, that verbal tinction can it follows just illegal be excluded as of search must resulted from the physical irrespective of the absence is excluded evidence “oppressive circumstances.” “oppressive cir though are free of statements Even they voluntarily rendered, are not and otherwise cumstances” exempt grounds they if are the constitutional from attack on States, illegal (See v. United

product search. Sun of an p. 486, 12; Takahashi v. United supra, 471, at fn. 371 U.S. 118, 122.) F.2d The United States (1944) 143 States holding came, inadmissible state decisions the courts which the above ments induced by illegal and seizure did not mention the an search presence “oppressive discuss voluntariness of circumstances” 565-568; supra, 558, pp. (State Kitashiro, v. 397 at the statements. -- 732, 739]; Rhay (1965) but see -Wn.2d [398 McNear v. - —— 632, 639].) (1965) A.2d Even Md. [207 McChan v. State some illegal excluding arrest do not men decisions statements after (Gatlin (1963) 666, v. United States 326 F.2d tion these elements. - 574]; 671-673; (1963) see Mercurio -R.I. A.2d [194 State v. 873, (1963) 880- Jacobs 300 N.E.2d [191 Commonwealth v. 881].) Mass. admissibility any involving pass on We do by illegally given he has been arrested. an accused after statements Although language induced that statements some cases indicates “involuntary” (see, e.g., illegal v. search are “involuntary” 387, F.Supp. 389), the use of the word Smalls necessarily statement was mean such in this connection does may only coerced; make motivated to it indicate that the defendant was during the obtained confronted with the evidence the statement when illegal search. voluntary held in other situations statements grounds. (Escobedo are excludable constitutional Illinois, supra, 478; Massiah United States U.S. 1199, 12 246].) 377 U.S. 201 L.Ed.2d S.Ct. presence or “oppressive The absence of circum Bather, stances” is not determinative. each case should turn on the whether the evidence so closely issue related search that the admission such evidence “would policies underlying exclusionary thwart the laudable (Broeder, op. supra, p. 548.) rule.” cit. at principle mind, With this court should examine the facts in order to determine if the statement induced (Fahy search. Connecticut (1963) 375 U.S. 11 L.Ed.2d S.Ct. If state purge “an was so induced it was not act of free will to ment ’ ‘11 ’ primary invasion, taint of the unlawful but was come ” by exploitation illegality’ (371 pp. 486, U.S. at [the] 488) and is therefore excludable.6 judgment is reversed. J., Peters, J., Peek, Burke, Traynor, J., J., White, C. J.,* concurred. McCOMB, judgment. J. I dissent. I would affirm the Wong Toy simultaneously 6"In the Sun ease statements made unsigned with arrest and confession of made Sun days opposite pole considering several the thereafter are at the ends of the these poisonous fruit of the tree. there is Between two extremes line, illegal arrest, fruit one side which the is contaminated dissipated. on the other side of which taint has been Where this ’ ’ line shall be is a to be drawn fact determined each case. (United 317, 319; v. (1964) States McGavic see also Smith 275; 335 F.2d State v. Kitashiro 558, 565-568].) -Hawaii- sitting assign *Retired Associate Justice under ment Chairman the Judicial Council.

Case Details

Case Name: People v. Bilderbach

Court Name: California Supreme Court

Date Published: May 21, 1965

Citation: 401 P.2d 921

Docket Number: Crim. 8680

Court Abbreviation: Cal.