*1 Dist., Second No. 32245. Div. One. Sept. 1978.] [Crim. PEOPLE,
THE Plaintiff and Respondent, SWEARINGEN, MICHAEL CHRISTOPHER Defendant and Appellant.
Counsel Bledsoe, Jr.,
James for Defendant and Appellant. General, Winkler, Evelle J. Jack R. Chief Assistant Younger, Attorney General, General, Moore, S. Clark Assistant Norman Attorney Attorney General, H. Sokolow and C. Attorneys Roy Preminger, Deputy and Plaintiff Respondent.
Opinion
THOMIPSON, J.
After hismotion to
to
pursuant
denied, defendant,
Penal.Code section 1538.5 was
Michael
Christopher
to
of hashish for sale. In this
Swearingen, pled guilty
possession
appeal,
he
the trial court order
his motion
challenges
denying
suppress.
motion,
that at the
on the
the trial court
contends
Swearingen
hearing
had
denied his claim that because the police
prosecution
erroneously
material evidence
failed to
with the
obligation
preserve
comply
them
v. Hitch
Cal.3d
by People
imposed upon
cause to
We conclude: (1) destroyed by police physical a conflict between arrest bears testimony directly upon Swearingen’s the crucial cause on point going probable Swearingen police of demonstrat- search; failed to sustain its burden prosecution enforced, established, had attempted agency ing faith to designed preserve adhere systematic procedures good erred in consider- court we conclude that the trial evidence. Accordingly, relevant detail of missing testimony describing ing evidence and reverse judgment. physical 23, 1977, Police Officers Los the afternoon of March
On Angeles front license in a van without a Boissier and Metz saw Swearingen driving a citation for lack the van in order to issue its driver They plate. stopped walked and to determine if the van was stolen. Swearingen plate form and the officers. He from the van toward produced registration as he in his wallet before turned his back toward the officers searched a driver’s license. producing *4 on van. There he saw side of the
Boissier walked to the lying passenger in which he vial van what he testified to be the floor of the transparent observation, Boissier Based on his could see purported marijuana. a substantial the van where he discovered marijuana entered quantity coat, in a seat, the substance more of under the driver’s pea in a felt bag vehicle. The the rear of the in a closed box in and still more marijuana arrest, to his confession led to Swearingen’s discovery marijuana after a Miranda possession warning, Swearingen’s search disclosed That to search his consent subsequent apartment. with was convicted hashish which together possessing Swearingen other contraband. testified that of Boissier. refuted Swearingen
Swearingen’s testimony that its that the vial in the van was rather than so transparent opaque content could not be unless the vial were held to seen light up with a “Hitch” motion. motion to was combined Swearingen’s booked, when was arrested and Boissier acknowledged Swearingen intended Boissier realized the of the vial. Boissier evidentiary significance the vial was removed for chemical it. The content of analysis preserve evidence in the case which and the vial was in a box other placed was then in the station’s was not contraband. The box placed room, time came for area. When the caged property apparently the felt in which other the vial and bag Swearingen’s hearing, preliminary the other van not be located was found in the could although in it. The vial was in the box was still evidence that had been placed no evidence never found. The concerning proce- produced prosecution room or what in fact evidence in the dures property employed preserve the vial. had been done to preserve Hitch,
In
v.
12 Cal.3d
our
Court
People
supra,
Supreme
adopted
rule of
of evidence
enunciated
the Court of
preservation
previously
for the
v.
District of Columbia in United States
Appeals
Bryant
F.2d 642. It held that where discoverable
be
evidence “cannot
disclosed
because of its intentional but nonmalicious destruction
investiga-
officials,
tive
sanctions shall ...
be
for such
imposed
nonpreservation
and nondisclosure unless the
can show that the
prosecution
governmental
established,
involved have
enforced and
faith
agencies
attempted
good
to adhere to
rigorous
systematic procedures designed
preserve [the
shall bear the burden of demonstrat-
missing
prosecution
evidence].
that such
has been fulfilled. ...
If the
ing
duty
preserve
[evidence]
fails to meet its burden then the court shall
sanctions
prosecution
apply
Hitch,
for nondisclosure.”
Here the failed showing established, enforced, faith to had good attempted police agency adhere to designed preserve systematic procedures rigorous the trial court Hitch thus evidence. impose required physical *5 vial which the to the nature of the sanction testimony relating barring The trial court erred vial in court could have rebutted. presence to that end. not “Hitch” motion granting Swearingen’s The error is Boissier’s observation of prejudicial. purported within the vial is the crucial element in the of the search of the validity van and confession and consent to search his Swearingen’s consequent If Boissier in fact could see the within the vial from apartment. van, outside the search of the vehicle and all point subsequent If, however, which followed valid. the vial was police activity opaque van, so that its content could not be viewed from outside the the search of was invalid and the vehicle confession and consent to subsequent search the were the tainted of an arrest. apartment product illegal
The General that Hitch is when Attorney argues applicable only there has been an intentional destruction evidence not loss of evidence. The fails for two reasons. On the negligent argument law, the Hitch rule exists to a defendant a fair trial guarantee through A of evidence not to conduct. fair trial is preservation punish police no less denied loss of evidence than it is nonmalicious by negligent facts, destruction. On the which had the burden of prosecution,
575 evidence, what to the did not show it had not establishing happened been rather than lost. destroyed merely
The
General also
that a
of evidence other
Attorney
argues
plethora
than
content of the vial
supports Swearingen’s guilt.
argument
that this
is from a conviction based
ignores
proposition
appeal
upon
denied,
after a 1538.5 motion was
and the fact that all
plea
guilty
other evidence is the tainted
of an
if
arrest
the motion
product
illegal
should have been
(See
731,
v. Hill
12 Cal.3d
granted.
People
393,
767-768
remanded to the trial court for further on defendant’s motion proceedings motion, and Hitch and for retrial if the motion to is denied.
Lillie, J.,P. concurred. Acting HANSON, J. dissent. I would affirm the I respectfully judgment conviction.
The case of v. Hitch (1974) Cal.3d 641 People Cal.Rptr. P.2d 361], and does not It is limited to material distinguishable apply. innocence, to the or a trial on the going charged, during Moreover, merits. view it would not be in the best interest my *6 criminal to extend the of the Hitch justice scope principle encompass the issue of the of a law enforcement witness credibility during hearing evidence to Penal Code section 1538.5. suppress pursuant at Case Bench
In the instant case defendant in a three-count information Swearingen was with for of sale of (count I), hashish charged possession purposes cocaine (count II) (count III), all in violation of Health marijuana 11359, Code section subdivision (a).1 Safety 1CONTRABAND SEIZED: amounts of were found in the van after Large defendant was under A arrest. of placed was found in a of large baggie marijuana pocket $450 defendant’s which was in the van peacoat in cash. The 7 along Seagram’s Crown found under bag driver’s seat contained a A of baggie marijuana. storage
576 Defendant of of sale hashish pleaded guilty possession purposes 2 the trial denial of (count I) court’s his motion to all following suppress to Penal Code section 1538.5 and what defense counsel pursuant described as to a Hitch (Italics added.) motion.” “something analagous Suppress The Motion
“A
under section 1538.5 to
proceeding
evidence is a full
on the issues before the
court
hearing
as finder of fact.
superior
sitting
witnesses,
power
resolve conflicts
judge
[Citations.]
credibility
evidence and
inferences,
draw factual
testimony, weigh
vested in the
trial court. On
all
favor
exercise of
appeal
presumptions
proper
and the trial court’s
or
power,
findings—whether express
implied—must
be
if
substantial evidence.
upheld
supported by
(People
[Citations.]”
406,
Court
617,
Cal.3d
Superior
(Keithley)
Cal.Rptr.
[118
Here at defendant’s motion to the evidence of the Officer testified that he looked in Boissier defendant’s van window to check the since the front license was ignition plate missing indicating that the van have been stolen. He observed a possibility may pill-type “clear, vial brown in color” three to four plastic light approximately inches tall and about an inch in diameter on the floorboard in front of the driver’s seat. He also saw “a substance” and “stems and seeds that leafy resembled inside vial. Officer Richard Zalkowski testified marijuana” vial, removed, from which the had been missing vial, an “off-white colored a clear vial.” Defendant testified Swearingen that the vial was in reference to translucent and “opaque transparent” and to see the vial it would have to be held in the through light. in the rear of the van contained compartment and another large baggie marijuana substance known as Thai baggie sticks. marijuana-type Fifty-four hashish were also found in defendant’s grams apartment. 2DEFENDANT GUILTY: The I as to count was guilty plea to a pursuant plea bargain. At the time of his from not he admitted in change plea guilty guilty court that open he the hashish for possessed of sale. purposes Here but for v. Hill (which Cal.3d 731 People 528 P.2d Cal.Rptr. 1] *7 holds that the harmless error doctrine is on from a inapplicable appeal entered guilty plea Code, 1538.5, (Pen. erroneous denial following of a motion to § subd. (m)), the should be affirmed under the harmless judgment clearly error doctrine. At the time of were sentencing, proceedings defendant was suspended on placed one condition probation that he serve 180 years, in local with being days custody credit for the 1 he had The day served. local already condition was custody stayed this The defendant is (cid:127)pending appeal. free on his own presently recognizance. Other at disclosed that time of the of the contra- testimony booking at band station the was removed from the vial and in a coin for chemical The vial was placed envelope analysis. empty in a box with other noncontraband items which included the placed strainer, 7 Crown mortar and a cocaine empty Seagram’s bag, pestle, snorter, work, some and house The box which contained the paper keys. vial and the other noncontraband items withdrawn from the empty room at the time of defendant’s and later booking preliminary hearing vial, 7 Crown and a scale were empty Seagram’s bag missing. The court below refused to the Hitch to the vial apply principle empty and resolved the conflict of as to whether or not the testimony could be seen inside the vial defendant. The of Officers against testimony Boissier and Zalkowski constitutes substantial evidence that the leafy substance, stems and seeds were visible the sides of the vial through under the conditions at the time Officer Boissier first present observed it. Distinguished Hitch Hitch,
The case of 12 Cal.3d People supra, clearly distinguish- able and does not simply apply.
In Hitch the defendant was under the influence of charged driving alcohol. The extent of alcohol in the defendant’s had been tested system a in which a of the by breath breathalyzer, sample person’s passes test through of the glass ampoule containing reagent. accuracy test the exact of the in the depends upon quantity reagent ampoule. officer the test noted the result and threw then administering away The trial court made a of the ampoule. finding preservation would have information of value to the defense to ampoule provided court, determine the of the test. The Hitch as noted in the accuracy said at 652-653 Cal.3d: “We think that the majority opinion, pages rule declared the federal court in a solution for the Bryant provides now before us the chemical test of a driver’s breath problem involving Code, (Veh. As we have 13353). § the test explained, its ampoule, contents and the reference used in the test ampoule customarily constitute material evidence on the issue of the driver’s or innocence . a vehicle under the influence of charge intoxicating driving We conclude that the
liquor. involved in the test has investigative agency that, disclose such evidence. we duty hold preserve Accordingly where, here, such evidence cannot be disclosed because of its intentional but officials, nonmalicious destruction investigative
sanctions shall in the future be for such imposed nonpreservation nondisclosure unless the can show the that prosecution governmental established, involved have enforced and faith agencies attempted good to adhere to rigorous systematic procedures designed preserve test and its contents and the reference used in such ampoule ampoule chemical test. The shall bear the burden of prosecution demonstrating that such and their contents has been duty preserve ampoules fulfilled. If the meets its burden and makes the required prosecution then the results of the test shall be admissible showing, breathalyzer evidence, and their have been lost. If even contents ampoules though the court shall fails to meet its burden then apply we latter event due sanctions for nondisclosure. hold that in such Finally shall not a dismissal of the action but shall merely process require require the results of the test be excluded from evidence.” breathalyzer italics, omitted.) fns. (Original
The facts of the case differ from Hitch in several present materially major respects.
In Hitch the container and its are an unit contents ampoule inseparable reason the nature of the test. The and their breathalyzer ampoules contents were (as unit) “material evidence on the issue of the driver’s or innocence of the a vehicle under the influence guilt charge driving 652.) at (Id., intoxicating liquor.” p. Here the vial and are its contents The plastic separable. vial,
found in the which be introduced at the trial on the might expected innocence, issue of or in a and sent out coin guilt preserved envelope with other chemical vial was in a box analysis. placed empty noncontraband which did not have to a chemist. items be analyzed by The vial sans the was of no value as to the or innocence trial on the merits. the crimes with which defendant was at a charged Expanded Scope Exclusionary Rule Should Not Be Principle Hitch
In it was never the intent legislative by codifying my opinion rule3 into Penal Code section 1538.5 that its court-created exclusionary of the Hitch should embrace principle operation application rule can be defined as a rule which 3THE RULE: exclusionary EXCLUSIONARY of that which to have been the admission into evidence at trial was determined prohibits
579 on a of a officer at a to the testifying hearing respect credibility motion evidence under section 1538.5. brought
Moreover, view it to extend the of the Hitch in is unwise my scope case law to a at a on issue principal by encompass credibility hearing defendant’s net motion here. The effect of present such a to construct or at onto is a least a holding steeple, cupola, cathedral rule the deleterious effects of exclusionary thereby expanding that rule on the criminal further and justice by increasing system delay cost to the in criminal cases an even taxpayers processing affording broader means for the their criminal guilty escape responsibility conduct ain further loss of confidence courts. in the resulting public
In view we should be creative alternatives to the exclusion- my seeking rule which is “an has shown unworkable irrational ary experience of law”4 in order to or erase alleviate concept problems legendary inherent in its rather than those application exacerbating problems by on the Hitch Here we march 180 grafting principle. again lock-step in the direction. degrees wrong Court was denied for a
Respondent’s Supreme petition hearing 1, November 1978.
obtained
aby
as a
government
agent
result of
“unreasonable
search
seizure” in
violation of the Fourth Amendment
to the United States Constitution.
rule was not
exclusionary
known to the common law. Its
as a
foundation
rule of
evidence was laid in 1886 in the
(1886)
case of
v. United States
116
Boyd
U.S. 616 [29
746,
L.Ed.
524],
6 S.Ct.
(Weeks
rule was first
in 1914 in federal courts
applied
v.
652,
(1914)
United States
Amendment an guaranty against unreasonable search and seizure. The is question whether of the truth with the suppression of the is a consequent acquittal fair and guilty an effective to that measure end. The ostensible reason for the rule is to assure the Fourth compliance That See Amendment the use the fruits by barring of of a violation. is effective in infractions of suppression the Amendment is curtailing doubtful. quite Oaks, Seizure,’ the Rule in ‘Studying Search and 37 Exclusionary U.Chi.L.Rev. 665 were, (1970). But if it justice suppression doctrine would remain questionable down, as it was when was handed and even Mapp more so because of of a decade that under decision. The are experience reasons evident. “The first of the individual be is to from right protected attack. That is we have why as the to the Federal government, preamble Constitution In the says. words plainly 313, 322, 92, 93, 222 (1911): U.S. 32 S.Ct. Chicago L.Ed. Sturges, ‘Primarily, for the maintenance of social governments exist order. Hence it is that the obligation life, indifferent, government protect property conduct liberty, against careless, evil-minded, and the be at the foundation of the may regarded lying very social compact.’ (cid:127) “The Bill of was not intended to mission. Rights This is not deny primary consecrated, that those not belittle the inestimable be read to defeat the thus but rather say rights may rights reason for itself. very government “We must be mindful that the contest is not between the State and the individual. is of the individual—the to be right contest between wholly competing rights protected the truth is from criminal attack and the several in the Amendments. When rights felt, free, and the not criminal is set suppressed pain suppression by inanimate State or but the offender’s next victims for some penitent policeman, whose we hold office. In that direct denies the innocent the protection way, Mapp due them. protection “But of the individual to from crime in still Mapp impairs primary right protection other The release of the ways. must blunt and breed for the deterrent guilty contempt thrust of the criminal law. Moreover the in the case-by-case process law-making *11 of has left State officers at sea as to what is of them. The application Mapp quite expected time-distance between the Court and the line is too and the Supreme firing just great cumbersome, too and too case-by-case process that Court to exercise lumbering permit result, effective and of the criminal business of the States. As a responsible management (and well) the State courts the federal bench are drained of needed for energy sorely cases, motions, the trial of criminal and civil as motions to are suppress piled upon and appeals upon appeals, post-conviction proceedings upon post-conviction proceed- (279 676-677.) A.2d at ings.” pp. Justice Macklin the of California Court of in Fleming his book Of Crimes and Appeal (1978) in the of our Rights theory criminal law to of discussing susceptibility fragmentation legal cites as a illustration our two prime views toward obtained evidence. “illegally” view, older articulated Bentham and Professor John H. by Jeremy Wigmore, “[T]he theorized that violation of law should not because a second go unpunished merely first, or, violation of law had been in committed the course of the as Justice investigating it, N. Cardozo the murderer should free because the Benjamin blundered. Under this view all put not constable go obtained evidence was admissible. The illegally opposite view use of evidence obtained in prevailing Exclusionary flatly prohibits any [the Rule] law, theorizes, violation of even when the violation is technical. The latter view purely effect, it is better for a murderer to free than for take of the state to go advantage any (P. 23.) conduct on the its . .” illegal of officers. . part He observes that our total adherence to the latter view by preoccupation “[o]ur restrictions on has become so that an circulates that the police activity great impression chief end of criminal law is to invasions rather than invasions prevent by police criminals. criminals and this has led to the release of Unquestionably, preoccupation patently guilty 23.) (P. weakened the deterrent effect of criminal . .” thereby law. . “[W]e have set fire to the house criminal of law our to roast the . . .” police pig. attempt 156.) (P. In for more effective factual arguing Justice out that inquiry, Fleming points “[o]ur reaction to abuse of convoluted and criminal has taken a authority by investigators curiously turn. In evidence and byzantine to immunize suppressing undertaking abuse, we have judicial process to turn back the clock and reconstruct against sought Thus, letter, events as the evidence never existed. we though incriminating identification, of the eyewitness murder even discovery weapon, discovery corpse, obtained, if those items of evidence are found to have been and we illegally solemnly conduct our factual so-called fruit of the under the fiction that those events never hearing As legal happened. tree, we erase entire chains of poisonous events by pretending they 155-156.) never took place.” (Pp. rule(s) shuffle(s) He “wild cards” into the deck suggests exclusionary which effectiveness of factual destroys demonstrably facts that are inquiry credibility by excluding true and that such restrictions on factual hearing[s] may bring “[artificial about the criminal examination and following consequences: escapes public conduct; of his the victim and victim see criminal law as self-scrutiny potential helpless them; criminal comes to look protect potential on the restraint of criminal law as ineffectual. The lesson is and the inevitable wrong taught, sequel encouragement intent, intent, rational criminal emotional criminal of crime. apparent profitability By of factual we erode criminal law’s reducing reliability hearing, ability protect through deterrence, and we foster the that criminal law is aimed more impression at the process italics, omitted.) (P. criminal than at crime itself.” fn. original Justice for abusive official conduct is not Fleming suggests primary remedy “[t]he officer, of evidence but of the abusive suppression that obtained discipline illegally be in criminal used when its is so that may prosecutions except flagrant illegality 23.) (P. its use one would condone crime than the under . . .” He greater prosecution. in the interest of sound administration we should our proposes judicial change “[t]hat rules for obtained evidence from suppression to'the illegally compulsory suppression 156.) (P. limited carefully discretionary suppression prevails England.” based on centuries of English, have coined a that “Not experience, only saying done, done,” must be but it must which justice have been close attention to appear pays concerns and attitudes. The public’s rule violates both exclusionary requirements of Chief Justice English proposals and Justice described saying. Burger Fleming above honor Their are reasonable validity English saying. proposals alternatives to the rule and warrant serious consideration exclusionary legal and the California community and common sense dictate that such Legislature. Logic constructive alternatives will to reduce court restore go way long congestion, public confidence in our criminal and save California millions of dollars justice system taxpayers which are wasted on motions annually evidence. presently being