THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SHASTA COUNTY, Respondent; GARY WYNN CASEBEER et al., Real Parties in Interest.
Sac. No. 7840
In Bank
June 18, 1969
265
No appearance for Respondent.
SULLIVAN, J.—Defendants Gary Wynn Casebeer and Joy Marguerite Marsdin are charged by separate informations in the respondent court with transportation of marijuana (
On November 22, 1967, defendants Casebeer and Mrs. Marsdin, together with two companions, Darrell Leonard and Peter Michaud, were travelling through Shasta County in a Pontiac automobile owned by Leonard. The four were members of a musical group en route from Alaska to Texas. They were towing a rental trailer which contained their musical instruments, luggage and other personal belongings. Casebeer was driving the car, Michaud was in the right front seat and Leonard and Mrs. Marsdin were in the back seat, the latter apparently asleep.
About 3:30 p.m. Officer Tyrell of the California Highway Patrol observed the automobile going up a hill in the middle lane of a three-lane highway. He noticed that the right-hand rear-view mirror on the automobile was tilted downwards. Because the car was towing a trailer in the wrong lane (
Officer Tyrell walked back to the Pontiac and asked Casebeer for his driver‘s license. Casebeer answered that he did not have a driver‘s license or any identification because his wallet had been stolen a short time before. The officer directed Casebeer to get out of the automobile and to proceed to the front of the patrol car. According to Casebeer, Officer Tyrell thereupon frisked him; according to the officer, he only questioned Casebeer. Casebeer produced a wallet he had been using as a substitute for the stolen one, and some bits of paper, but nothing which adequately identified him.
After ordering Casebeer to remain at the patrol car, Officer Tyrell returned to the Pontiac to question its other occupants. He asked them for identification and was apparently satisfied with the identification produced by Leonard and Michaud. Mrs. Marsdin, who had been asleep and was awakened when the vehicle stopped, produced a Canadian passport. She explained that her visa had been stolen but that she had a letter in her suitcase which would show that she was lawfully in the United States. The officer noticed that her speech “was a little bit erratic” and thought that “she was under the influence of something,” although he “couldn‘t smell any alcohol.” He had her step out of the vehicle and proceed to the front of the patrol car. At the same time, he ordered
At this point Mrs. Marsdin searched through her purse for further identification. As she did so the officer saw a gold cigarette case which he thought looked like a wallet. He asked her whether it was a wallet and according to the officer she replied, “No, this is my tobacco case.” He asked her “if she cared if I looked at it” and she replied in the negative and handed the case to him. According to Mrs. Marsdin, the officer took the cigarette case out of her purse, handed it to her and ordered her to open it, then took it from her and looked inside. In it, he found marijuana. He then placed her under arrest.
After arresting Mrs. Marsdin, Officer Tyrell directed her to sit in the back seat of the patrol car. He radioed for assistance and then questioned her.4 Mrs. Marsdin stated that she had no knowledge of the marijuana in the cigarette case. She did not suggest that there was marijuana in the automobile. She may have stated that someone was “out to get” her.
About 30 minutes later, three more highway patrol vehicles arrived at the scene. Officer Tyrell went back to the Pontiac and advised its three occupants that Mrs. Marsdin had been arrested and that he “was going to check them.” One officer examined the license on the vehicle and radioed for information about it. Officer Tyrell and another officer ordered the men to get out of the car so they could be frisked. As he prepared to frisk Leonard, whom he had previously learned to be the owner of the car, Officer Tyrell asked him “if he cared if I checked the vehicle and he stated no. . . .”
The officer then proceeded to check the Pontiac. Under the left-front-bucket seat, he found a package of cigarette papers and a small pasteboard matchbox containing “a green-leafy substance” appearing to him to be, and later identified as, marijuana. Under the left portion of the dashboard and to the left of the steering wheel, he found a blue canvas bag containing numerous shoe shine articles. Among its contents were
As already stated, defendants Casebeer and Mrs. Marsdin were charged by information with transportation and possession of marijuana. After a hearing on defendants’ motion to suppress evidence, made pursuant to
The positions of the parties may be summarized as follows: The People concede that there is substantial evidence to support the trial court‘s finding that Mrs. Marsdin did not consent to the search of her cigarette case but contend that all of the evidence arising out of the search of the automobile was lawfully obtained. They argue that Leonard‘s consent to search his car authorized the opening of the matchbox under the front seat, that the discovery of marijuana therein constituted probable cause for the arrest of the occupants of the vehicle, and that the remainder of the search was properly incidental to such arrest. Defendants on the other hand contend that Leonard‘s consent to the search of his car was coerced and invalid as a matter of law, and that, even if the consent had been freely given, the seizure of the contraband in the car resulted from the admittedly unlawful search and arrest of Mrs. Marsdin and the evidence thus secured should be excluded as “the fruit of the poisonous tree.” (See Wong Sun v. United States (1963) 371 U.S. 471 [9 L.Ed.2d 441, 83 S.Ct. 407].) In reply the People argue that Leonard‘s consent to the search of the car was an intervening independent act which severed or at least sufficiently attenuated the connection between the illegal search of Mrs. Marsdin and the search of the automobile to purge the primary taint of the unlawful action. (Wong Sun v. United States, supra, 371 U.S. 471, 487, 488 [9 L.Ed.2d 441, 455, 83 S.Ct. 407].) The crucial question emerging from this interchange is whether the contraband seized in the car was properly suppressed as evidence. (
Taking up first the claim that Leonard‘s consent to the search of his car was involuntary as a matter of law, we observe that the circumstances under which it was given appear from the uncontradicted evidence to be highly coercive. The Pontiac which he owned and in which he had been riding, had been stopped by a highway patrol officer who ordered first Casebeer and then Mrs. Marsdin to get out of the vehicle and go with him to the patrol car. Casebeer was then sent back to the Pontiac and ordered to remain in the driver‘s seat. Mrs. Marsdin was detained in the patrol car. For approximately 30 minutes nothing further happened. Leonard and his companions were given no explanation for the delay. Upon the arrival of three more officers, Officer Tyrell finally informed Leonard that Mrs. Marsdin had been arrested and that the other three occupants of the Pontiac were going to be “checked out.” Officer Tyrell then ordered Leonard to get out of the automobile so that he could be searched and asked whether Leonard cared if the officers checked the car. At no time was Leonard informed by any of the officers that he could effectively refuse consent.6 The trial court did not make a finding as to whether or not Leonard‘s consent was volun-
The “fruit of the poisonous tree” doctrine—distilled from a number of decisions of the high court and articulated in Wong Sun—rests upon the fundamental thesis that the “exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion.” (Wong Sun v. United States, supra, 371 U.S. at p. 485 [9 L.Ed.2d at p. 454].) In its explication of the doctrine, the Supreme Court went on to say “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” (371 U.S. at pp. 487-488 [9 L.Ed.2d at p. 455].) Following Wong Sun we held in People v. Sesslin, supra, 68 Cal.2d 418, that the “state may not use evidence to convict an accused which it obtained by exploiting an illegal arrest or detention. [Citations.]” (68 Cal.2d at pp. 426-427.) We then explained: “That degree of ‘attenuation’ which suffices to remove the taint from evidence obtained directly as
More recently in People v. Johnson, supra, 70 Cal.2d 541, we dealt with this problem of determining whether the causal chain linking the initial illegality and the evidence secured had been severed. In that case officers obtained from a codefendant a confession to certain burglaries after confronting him with the stolen property which they had seized after an illegal search of his apartment. In the confession, the codefendant implicated Johnson who was arrested but denied involvement. The officers then had the codefendant repeat his confession implicating Johnson in the latter‘s presence. Johnson, himself, then confessed.
Facing the “apt question” of exploitation posed in Wong Sun, we observed that “[i]n considering whether acts occurring between the unlawful activity and the securing of the evidence objected to are sufficient to purge the taint, courts have held that the decisive issue is not that the road from the unlawful search to the testimony is ‘long,’ but that it is ‘straight.’ [Citations.]” We reasoned that “where the acts intervening between the defendant‘s confession and the unlawful search have in fact been induced by the authorities’ exploitation of the unlawful search, and where the confession was in fact induced by the authorities’ exploitation of those intervening acts, the road from the unlawful search to the confession, even if long, is straight, and adherence to the laudable policies underlying the exclusionary rule requires a conclusion that the confession is the fruit of the unlawful search. To hold otherwise would permit the authorities to profit from their unlawful activity and furnish an incentive for unlawful searches in violation of the Fourth and Fourteenth Amendments in the hope that the direct fruits of the search might be manipulated in such a way as to produce admissible evidence. [Citations.]” (People v. Johnson, supra, 70 Cal.2d 541, at pp. 548-549.) We held that Johnson‘s confession was induced by the officer‘s exploitation of the codefendant‘s second confession since it followed the latter ” ‘almost immediately in time’ ” and since the Miranda warning given both accused while it “may be a factor in determining whether there is an intervening act of free will, it does not in isolation demonstrate the requisite attenuation.” (People v. Johnson, supra, 70 Cal.2d 541, at p. 551.)
It is clear that the unlawful search of Mrs. Marsdin and the finding of marijuana in her purse led Officer Tyrell to the marijuana in the Pontiac. If this were not a valid inference, indeed probably the only reasonable inference, we would remain perplexed as to why a highway patrol officer who had stopped the group for a traffic violation, would want to make a search of the vehicle. Mrs. Marsdin was arrested and placed in the patrol car; Casebeer, the driver, was ordered to the patrol car where he was frisked and then ordered back to the Pontiac and told to stay there; the three members of the group thus remained in the car for a half-hour without being given any explanation. To say that each of the three, including Leonard, was not “deprived of his freedom of action in any significant way” (Miranda v. Arizona, supra, 384 U.S. 436, 444 [16 L.Ed.2d 694, 706, 86 S.Ct. 1602, 10 A.L.R.3d 974]), would be to shut one‘s eyes to realities. Finally, upon the arrival of the other officers, Officer Tyrell informed Leonard that Mrs. Marsdin had been arrested because she “was found to have narcotics on her,” ordered him out of the car to be searched, and asked “if he cared” if the officer “checked the vehicle.”
We do not know whether Leonard would have consented to the search had he not been told that Mrs. Marsdin had been
The alternative writ of prohibition and mandate is discharged; the petition for a peremptory writ of prohibition and mandate is denied.
Traynor, C. J., Peters, J., and Tobriner, J., concurred.
MOSK, J.—I concur in the order.
I feel obliged to point out, however, that this case differs
As in Sesslin and Johnson, in this case the evidence was conflicting. The trial court could have found an independent intervening act sufficient to remove the taint of original illegality in the consent given by the owner of the vehicle. The consent, plus the suspicious circumstances of an occupant apparently under the influence of a drug, the recent entry of the group from across the international border, and the absence of identifying papers in the possession of any of the party, could have justified the search of the vehicle resulting in discovery of contraband.
Nevertheless the trial court found as a fact that the original illegality permeated the subsequent events and that the causal chain remained unbroken from the first to the later actions of the authorities. Thus the majority need not rely on Sesslin and Johnson, in which this court—erroneously, in my opinion—undertook to reverse factual determinations of trial courts. I would merely hold that we are bound by the factual finding made by the trial court here and would affirm solely on that ground.
McComb, J., and Burke, J., concurred.