Summary
Rehearing granted July 1, 1988, opinion on rehearing not for publication Nov. 22, 1988.
Summary of this case from State v. DeWittOpinion
Rehearing Granted July 1, 1988.
Previously published at 201 Cal.App.3d 954
Michael D. Bradbury, Dist. Atty., Michael D. Schwartz, Deputy Dist. Atty., for petitioner.
No appearance for Respondent.
Bruce A. Robertson and Lauri K. Brown, Ventura, Ephraim Margolin, San Francisco, for real party in interest.
Keith, Higgins & Oldziewski and Randy W. Keith, Northridge, as amici curiae on behalf of real party in interest.
OPINION AND ORDER
GILBERT, Associate Justice.
Defendant George William Shuman was charged with various drug offenses, including possession for sale of cocaine and marijuana. The People filed this writ petition pursuant to Penal Code section 1538.5, subdivision (o), because the superior court suppressed certain evidence. We deny the petition because the evidence was properly suppressed.
FACTS
On May 24, 1987, at approximately 11:39 a.m., police officers Radwan and Wilson received an anonymous call that a child was locked out of his apartment. The caller stated that the child's father was in the apartment and had possibly taken an overdose of drugs. The officers went to the second floor apartment and knocked on the door. At that time they saw a seven-year- After a few minutes, defendant Shuman opened the door and let the boy in. Shuman was wearing a T-shirt and had a towel around his waist. He did not appear to be under the influence of narcotics. The officers asked for permission to enter the apartment because they did not want to talk in the hallway and wanted to determine that the boy would be safe. Shuman told the officers that they could enter the apartment but asked that they sit on the couch while he put on some clothes.
The officers asked Shuman for identification. Then, they "ran a radio check" on Shuman with their portable radio, and learned that he had an outstanding traffic warrant. The officers allowed Shuman to get a pair of shoes in his bedroom before being taken to county jail.
One of the officers followed Shuman to the bedroom, but Shuman tried to close the door on the officer. The officer pushed open the door and observed narcotics and narcotic paraphernalia.
Shuman was arrested and handcuffed. The officers telephoned their supervisor for further instructions. The supervisor attempted to call narcotics investigators, but could not find any. He then told the officers to search for more narcotics. Radwan opened a dresser drawer and found narcotics, a loaded .22 caliber pistol, and a large amount of cash. He placed some of these items on the bed. The officers then put them back into the drawer and sought a search warrant.
These facts were included in the affidavit in support of the search warrant. A magistrate issued the search warrant. At approximately 8:30 p.m., that evening, Officer Wilson accompanied three other officers in executing the warrant. The officers seized the contents of the dresser drawer.
Shuman moved the superior court to suppress the property seized. The court granted the motion only as to the items seized from the dresser drawer. It denied the motion as to the other evidence.
DISCUSSION
I.
In People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961, our Supreme Court explained the two-step process of review of a motion to suppress under Penal Code section 1538.5. First, the trial court's finding of facts, express or implied, relating to the challenged search or seizure, must be upheld if supported by substantial evidence. Second, the appellate court must then exercise its independent judgment to measure the facts as found by the trier against the constitutional standard of reasonableness.
In applying the two-step process to the instant case, we conclude that substantial evidence supports the trial court's findings and conclusions.
II.
We need not dwell on the issue of probable cause to search the dresser drawer. There was none. Shuman had first been arrested and handcuffed. He was then moved to the living room, after which officers made the telephone call to police headquarters. It was not until after the call that Officer Radwan went to Shuman's room and opened the drawer. This does not constitute a contemporaneous search of an area within Shuman's reach at the time of his arrest. (Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; U.S. v. Vasey (9th Cir.1987) 834 F.2d 782, 786.) At the time of the search of the dresser drawer, Shuman was in manacles in another room. He did not pose a threat. He was in no position to grab a weapon or some item of evidence from the drawer.
III.
The People argue that, even if the search of the dresser drawer was improper, we ought to look to whether the affidavit was " 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable ...' " citing United States v. Leon (1984) 468 U.S. 897, 923, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677. Therefore,
When an officer conducts a search under the authority of a warrant issued by a neutral and detached magistrate, it is normally established that the law enforcement officer has acted in good faith in conducting the search. ( United States v. Leon, supra, 468 U.S. at p. 922, 104 S.Ct. at p. 3420; People v. MacAvoy (1984) 162 Cal.App.3d 746, 763, 209 Cal.Rptr. 34.) There is a presumption that officers are conducting a search with a good faith belief in its validity when the search is conducted pursuant to a warrant. ( People v. MacAvoy, supra, at p. 763, 209 Cal.Rptr. 34.) The officer's reliance upon the magistrate's probable cause determination must be objectively reasonable. A warrant may not issue when the officer has no reasonable grounds for believing that it should be issued. (United States v. Leon, supra, 468 U.S. at pp. 922-923, 104 S.Ct. at pp. 3420-3421.) The exclusionary rule only serves to deter police misconduct if applied to objectively unreasonable law enforcement activity. (See Leon, supra, at pp. 919-920, 104 S.Ct. at pp. 3418-3419.)
An inquiry into objective reasonableness is confined to the question as to whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization. (United States v. Leon, supra, 468 U.S. at pp. 922-923, fn. 23, 104 S.Ct. at pp. 3420-3421, fn. 23.) A good faith belief is not objectively reasonable, and suppression, therefore, is appropriate, if (1) the magistrate was misled by information in the affidavit that the affiant knew, or ought to have known, to be false, (2) the magistrate wholly abandoned his judicial role in the manner condemned by Lo-Ji Sales, Inc. v. New York (1979) 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920, (3) the warrant was facially deficient in failing to particularize the place to be searched or things to be seized, or (4) the affidavit was so lacking in indicia of probable cause as to render belief by officials in its existence to be unreasonable. ( United States v. Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3421.) The relevant category here is number 4.
The superior court judge correctly found there was no probable cause to search the dresser drawer. He made the cogent observation that to vindicate the officers' improper search by permitting those same officers to obtain a search warrant in order to search again would make no sense. Such a practice would allow, and thus encourage, officers to conduct improper searches. If, for example, officers were to find evidence while conducting an improper search, they could then merely leave the evidence at the premises and obtain a search warrant for the purpose of "discovering" the same evidence which they had already found by means of conducting an improper search.
If we were to analyze this case under Leon, as the People urge, the portion of the affidavit concerning the items in the dresser drawer would so lack probable cause indicia as to render reliance upon it unreasonable under category number 4. Leon requires that the application of the good faith exception be measured against a standard of objective reasonableness. The search of the dresser drawer in one room while Shuman was handcuffed in another room is patently lacking in probable cause. Good faith and probable cause are inextricably related. As probable cause recedes into insignificance as it does here, so does the objective reasonableness of good But we need not concern ourselves with Leon. As the court in U.S. v. Vasey, supra, 834 F.2d 782, 789, points out, an analysis based on the good faith exception in Leon is not applicable in those instances where the officers attempt to secure a search warrant in reliance upon their own illegal, warrantless search. In Leon, the error was the magistrate's in finding that the evidence had established probable cause. Here, as in Vasey, "[t]he constitutional error was made by the officer in this case, not by the magistrate as in Leon. The Leon Court made it very clear that the exclusionary rule should apply (i.e. the good faith exception should not apply) if the exclusion of evidence would alter the behavior of individual law enforcement officers or the policies of their department. [Citations.]" (Ibid.) We hope to achieve that goal here.
Vasey also points out "that the magistrate's consideration of the evidence does not sanitize the taint of the illegal warrantless search. A magistrate's role when presented with evidence to support a search warrant is to weigh the evidence to determine whether it gives rise to probable cause. A magistrate evaluating a warrant application based in part on evidence seized in a warrantless search is simply not in a position to evaluate the legality of that search. Typically, warrant applications are requested and authorized under severe time constraints. Moreover, warrant applications are considered without the benefit of an adversarial hearing in which the evidentiary basis of the application might be challenged. [Fn. omitted.] Although we encourage magistrates to make all possible attempts to ensure that a warrantless search was legal before relying on the fruits of that search, we are mindful of the limitations on a magistrate's fact-finding ability in this context. We therefore conclude that a magistrate's consideration does not protect from exclusion evidence seized during a search under a warrant if that warrant was based on evidence seized in an unconstitutional search." (U.S. v. Vasey, supra, 834 F.2d at pp. 789-790; see also People v. Baker (1986) 187 Cal.App.3d 562, 568, 231 Cal.Rptr. 877.)
Improper searches cannot be upheld merely because the police officer who conducts an improper search chances to find a magistrate willing to issue a search warrant. Such a rule would leave an important part of law enforcement to well-intentioned tyros, or to those with the least amount of competence. Justice Brandeis observed that "[t]he greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding. [Fn. omitted.]" (Olmstead v. United States (1928) 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944 (dis. opn. of Brandeis, J.).)
IV.
The People also contend that, even though the evidence was unlawfully seized, there was a reasonable probability that it would have been discovered through lawful means. (Nix v. Williams (1984) 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377; United States v. Satterfield (11th Cir.1984) 743 F.2d 827, 845-46, cert. den. 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262.) They point out that an unlawful search before a search warrant is executed can be justified if "the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct." ( United States v. Satterfield, supra, 743 F.2d at p. 846.) The People reason that the search warrant was justified by the drugs that were lawfully seen before the officer searched the dresser drawer. They assert that officers executing the warrant would have searched the dresser drawer and uncovered the drugs hidden there.
The doctrine of inevitable discovery is an exception to the exclusionary rule. (United States v. Andrade (9th Cir.1986) 784 F.2d 1431, 1433; People v. Jaquez (1985) 163 Cal.App.3d 918, 930-931, 209 Cal.Rptr. 852; People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 673, 145 Cal.Rptr. 795.) It may come into play only In Nix, police officers discovered the location of the victim's body through unlawful interrogation of the defendant. The Supreme Court, nonetheless, held this information to be admissible. It reasoned that, at the time the illegal confession was obtained, an independent search was in progress which inevitably would have led to discovery of the body. (Nix v. Williams, supra, 467 U.S. at pp. 449-450, 104 S.Ct. at pp. 2511-2512.)
In Merriweather, a bank robbery suspect was arrested by the FBI outside of his hotel room. The agents entered the defendant's room in order to ascertain if other suspects were present. One of the agents decided to use the occasion to search the toilet tank. His search yielded a large sum of money. A search warrant for the room was subsequently obtained. Although the affidavit for the search warrant mentioned the illegally-seized funds, the affidavit contained sufficient information independent of the previous search which was unrelated to the illegal search of the toilet tank. The agents conducting the second search of the hotel room were ignorant of the existence and location of the money. The court of appeals, relying upon Nix, affirmed the district court's decision to admit the money. ( United States v. Merriweather, supra, 777 F.2d at p. 506.)
In U.S. v. Boatwright, supra, 822 F.2d at pages 864-865, the authorities, conducting an illegal search of the defendant's residence, discovered some illegal weapons. The prosecution argued that, because of evidence lawfully obtained elsewhere, they would have secured a search warrant. The court of appeals, finding that no independent search had occurred, or was likely to have occurred, rejected the application of inevitable discovery. "Applying the inevitable discovery doctrine here would, therefore, permit the government to ignore search requirements at any convenient point in the investigation, and would go well beyond the present scope of the doctrine." (Id., at p. 865.)
"[W]here a warrant is only sought after an illegal search reveals evidence of criminal activity, we begin to worry whether the later warrant is truly inevitable and independent of the police misconduct." (United States v. Silvestri (1st Cir.1986) 787 F.2d 736, 745.) The existence of two independent investigations at the time of discovery is not a necessary predicate to the application of the rule of inevitable discovery. ( U.S. v. Boatwright, supra, 822 F.2d at p. 864.) But, in order for the prosecution to invoke the rule of inevitable discovery, it is necessary that, at some relatively close point in time, there be (or would have been under normal police practices) a second, independent investigation. To allow otherwise would be to allow the inevitable discovery exception to swallow the rule. (United States v. Cherry (5th Cir.1985) 759 F.2d 1196, 1204-1205; United States v. Satterfield, supra, 743 F.2d 827, 846.)
Here, the officers conducting the initial search of Shuman's dresser did not possess any legal means of discovering the drugs found hidden there. Such means did not exist until several hours later when they did secure a warrant. By contrast, in Nix and Merriweather, at the time of the illegal search by one set of officers, another set of officers was independently searching for evidence. The second set of officers was unaware of the evidence seized through the improper conduct of the first set of officers. Here, there was only one set of officers. They executed the affidavit to the search warrant and they were aware of the contraband. (Cf. United States v. Merriweather, supra, 777 F.2d at p. 506.)
As the Boatwright court pointed out, the doctrine of inevitable discovery "requires V.
Closely related to independent discovery, and often confused with it, is the independent source rule. "The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." ( Nix v. Williams, supra, 467 U.S. at p. 443, 104 S.Ct. at p. 2508.) Under the independent source exception, evidence will not be excluded if the prosecution can show that the relationship between illegal police conduct and the discovery of evidence is " ' "... sufficiently distinguishable to be purged of the primary taint." ' " (Segura v. United States (1984) 468 U.S. 796, 804-805, 104 S.Ct. 3380, 3385-3386, 82 L.Ed.2d 599, emphasis in original; see also Wong Sun v. United States (1963) 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441; People v. Angulo (1988) 199 Cal.App.3d 370, 374, 244 Cal.Rptr. 819.)
In Segura, the prosecution sought to introduce drugs that had not been seen by the police during an illegal entry, but were later discovered in the course of a search pursuant to the execution of a valid search warrant. ( Segura v. United States, supra, 468 U.S. at p. 804, 104 S.Ct. at p. 3385.) That evidence was held to be admissible. There was no attempt by the prosecution to admit the evidence observed by police during the illegal search.
Similarly, in Angulo, officers illegally entered a residence and discovered narcotics and weapons. Prior to this illegal entry, however, "the police had sufficient information from independent sources to obtain a search warrant." ( People v. Angulo, supra, 199 Cal.App.3d at p. 374, 244 Cal.Rptr. 819.) Evidence obtained as a result of a search pursuant to the warrant was admissible.
The Angulo court held that, because the lawfully obtained information in the search warrant affidavit supported probable cause for issuance of the warrant, the warrant would be upheld even if additional, illegally obtained information were also contained in the affidavit. ( People v. Angulo, supra, 199 Cal.App.3d at p. 375, 244 Cal.Rptr. 819.) The prosecutors in Angulo and Segura, unlike the prosecutor here, made no attempt to admit evidence officers saw during the initial illegal entry.
Evidence obtained pursuant to a search warrant will be excluded where police had previously conducted an illegal "confirmatory" search. ( People v. Baker, supra, 187 Cal.App.3d at p. 567, 231 Cal.Rptr. 877.) In short, the issuance of the search warrant did not remove the taint of illegality which the initial search cast upon the contents of the drawer.
The order to show cause is discharged and the petition for a writ of mandate is denied. The stay of proceedings previously issued by this court is vacated.
STEVEN J. STONE, P.J., and ABBE, J., concur.