People v. Cahan

SPENCE, J.

I dissent.

The guilt of the appellant is clearly demonstrated by the record before us. (See People v. Cahan, (Cal.App.) 274 P.2d 724.) He and his numerous codefendants unquestionably engaged in a far-reaching conspiracy to commit innumerable violations of the laws of the State of California. Six of his codefendants pleaded guilty and seven others, in addition to appellant, were convicted upon the trial. We have before us solely the appeal of defendant Charles H. Cahan.

Upon the trial, certain evidence was admitted over the objection that it had been illegally obtained. The learned trial judge, following precisely the nonexclusionary rule which, until the filing of the majority opinion in this case, had been firmly established as the law of this state, admitted the evidence over the objection. The nonexclusionary rule had been enunciated by this court in the relatively early case of People v. Le Doux, 155 Cal. 535 [102 P. 517], and was reiterated in People v. Mayen, 188 Cal. 237 [205 P. 435, 24 A.L.R. 1383], after the United States Supreme Court had adopted the so-called Weeks doctrine. (Weeks v. United States, 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B 834].) More recently, this court, in a well-reasoned opinion written by Mr. Justice Traynor in People v. Gonzales, 20 Cal.2d 165 [124 P.2d 44], again followed the nonexclusionary rule; and it similarly followed that rule in the later decisions of People v. Kelley, 22 Cal.2d 169 [137 P.2d 1], and People v. Haeussler, 41 Cal.2d 252 [260 P.2d 8], Consistent adherence to the non-exclusionary rule has been further demonstrated by the denial of petitions for hearing by this court in numerous cases, only a few of which need be cited. (People v. Peak, 66 Cal.App.2d 894 [153 P.2d 464]; People v. One 1941 Mercury Sedan, 74 *452Cal.App.2d 199 [168 P.2d 443]; People v. Oreck, 74 Cal.App.2d 215 [168 P.2d 186]; People v. Tucker, 88 Cal.App.2d 333 [198 P.2d 941]; People v. Sica, 112 Cal.App.2d 574 [247 P.2d 72]; People v. Allen, 115 Cal.App.2d 745 [252 P.2d 968].)

A reading of the above-mentioned authorities shows that this court has previously considered practically every argument now advanced for the adoption of the so-called exclusionary rule and has consistently determined that such arguments were outweighed by those advanced in favor of the nonexclusionary rule. In adopting and adhering to the non-exclusionary rule, the law of the State of California has thereby been kept in harmony with the law of the great majority of the other states and of all the British commonwealths ; as well as in line with the considered views of the majority of the most eminent legal scholars. Only the federal courts and the courts of a relatively few states have adopted the judicially created exclusionary rule. (See appendix to Wolf v. Colorado, 338 U.S. 25 [69 S.Ct. 1359, 93 L.Ed. 1782].) It therefore appears that the great majority of the legal minds which have dealt with this problem have been in accord with the views expressed by our predecessors on this court and with the views expressed by the majority of the present members of this court as declared in People v. Gonzales, supra, 20 Cal.2d 165, and our other recent decisions. But despite this great wealth of legal precedent pointing to the desirability of the continuance of the nonexclusionary rule, the majority of this court now does a judicial turnabout and declares that “People v. Le Doux, 155 Cal. 535 [102 P. 517], People v. Mayen, 188 Cal. 237 [205 P. 435, 24 A.L.R. 1383], and the cases based thereon are therefore overruled.” This is a forthright declaration but, with all due deference to the views of the majority, I cannot join in it.

I agree with the majority that “. . . in the absence of a holding by the United States Supreme Court that the due process clause requires exclusion of unconstitutionally obtained evidence, whatever rule we adopt, whether it excludes or admits the evidence, will be a judicially declared rule of evidence.” The United States Supreme Court has never held that the due process clause■ requires such exclusion but, on the contrary, has indicated that the federal exclusionary rule “is a judicially created rule of evidence which Congress might negate.” (Concurring opinion of Black, J., in Wolf v. Colorado, supra, 338 U.S. 25, 40.) California, in line with the great weight of authority, has always applied the nonexclu*453sionary rule, and if there is any virtue in the doctrine of stare decisis, this court should not overturn this firmly established rule in the absence of compelling reasons for such change. The difference in point of view stems from the fact that the majority apparently have found compelling reasons for such change while I have not.

If the question were an open one in this state, I would still be of the opinion that the nonexelusionary rule should be judicially declared to be the rule in California. The expression of this view does not signify that I condone any illegal search or seizure by any enforcement officer—federal, state or local—or by any other person. On the contrary, the constitutional and statutory rights of every citizen should be respected and protected. The law of this state provides both criminal sanctions (Pen. Code, § 146) and civil remedies for the violations of such rights; and it has been declared that the federal statutes cover violations by any person of the federal constitutional provisions. (Irvine v. California, 347 U.S. 128, 138 [74 S.Ct. 381, 98 L.Ed. 561].) Hence, the main question presented in criminal proceedings of this nature is whether the exclusionary rule, in the light of such relative advantages and disadvantages which may result from its adoption, should be preferred to the nonexelusionary rule. In determining this question we may well consider the experience under the federal rule.

The experience of the federal courts in attempting to apply the exclusionary rule does not appear to commend its adoption elsewhere. The spectacle of an obviously guilty defendant obtaining a favorable ruling by a court upon a motion to suppress evidence or upon an objection to evidence, and thereby, in effect, obtaining immunity from any successful prosecution of the charge against him, is a picture which has been too often seen in the federal practice. In speaking of an obviously guilty defendant, I refer by way of example to one from whose home has been taken large quantities of contraband, consisting of narcotics or other commodities, the very possession of which constitutes a serious violation of the law. The above-mentioned result, however, is the inevitable consequence of the application of the federal exclusionary rule in those cases in which it may be ultimately determined that a search or seizure has been made illegally, either because of the absence of a search warrant or because of some technical defect in the affidavit upon which the warrant was based. Furthermore, under the present federal practice, the trial *454of the accused is interrupted to try the question of whether the evidence was in fact illegally obtained. This question is often a delicate one, and the main trial is at least delayed while the question of whether some other person has committed a wrong in obtaining the evidence has been judicially determined; and if the claim of the accused is sustained, the prosecution of the case against the accused, regardless of the fact that his guilt may appear clear, is often frustrated. The delicacy of the question results from the fact that there is still great uncertainty in the law as to the precise circumstances which will render a search or seizure “unreasonable,” and as to the precise nature of the defects in the affidavit which will render invalid a search warrant.

It would serve no useful purpose to reiterate all the arguments which have been advanced against the adoption of the exclusionary rule. They have been set forth in numerous authorities cited in the majority opinion in the present case and in the appendix to Wolf v. Colorado, supra, 338 U.S. 25. With commendable frankness, many of these arguments are summarized in the majority opinion here. They were discussed extensively in a learned opinion by Justice Cardozo in People v. Defore, 242 N.Y. 13 [150 N.E. 585, 44 A.L.R. 510], where the court unanimously decided against its adoption. And while it may be an overstatement to say, as does Dean Wig-more, that the exclusion of such evidence is based upon “misguided sentimentality” (Wigmore on Evidence, 3d ed., vol. VIII, §2184, p. 36), it is significant that this learned writer should have felt impelled to make such statement. The fact is that the courts have been put to a difficult choice, but there is no doubt that the great majority of courts have determined that the cost of the adoption of the exclusionary rule is too great when compared to the relatively little good that it can accomplish.

The only new argument for the adoption of the exclusionary rule is based upon the fact that the United States Supreme Court has again spoken on the subject in Irvine v. California, supra, 347 U.S. 128. There the court was again divided, with the dissenting justices, under the particular facts of that case, advocating a reversal but with no unanimity as to the reasons for such reversal. The majority nevertheless affirmed the judgment of conviction and sustained the rule of Wolf v. Colorado, supra, 338 U.S. 25. While arguments in favor of any approach to the problem there presented may be found in the opinions of the several justices, I find nothing in the main *455opinion which would indicate the compulsion for, or desirability of, a change in the established rule in the state. On the contrary, I find statements in the main opinion which give cogent reasons for adhering to the nonexclusionary rule.

In the Irvine case, the main opinion states at page 134: “The chief burden of administering criminal justice rests upon state courts. To impose upon them the hazard of federal reversal for non-compliance with standards as to which this Court and its members have been so inconstant and inconsistent would not be justified. We adhere to Wolf as stating the law of search-and-seizure cases and decline to introduce vague and subjective distinctions.”

Again on pages 136 and 137, it is said in the main Irvine opinion: “It must be remembered that petitioner is not invoking the Constitution to prevent or punish a violation of his federal right recognized in Wolf or to recover reparations for the violation. He is invoking it only to set aside his own conviction of crime. That the rule of exclusion and reversal results in the escape of guilty persons is more capable of demonstration than that it deters invasions of right by the police. The case is made, so far as the police are concerned, when they announce that they have arrested their man. Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches. The disciplinary or educational effect of the court’s releasing the defendant for police misbehavior is so indirect as to be no more than a mild deterrent at best. Some discretion is still left to the states in criminal cases, for which they are largely responsible, and we think it is for them to determine which rule best serves them.”

The above-quoted language from the main opinion in the Irvine case shows that there is relatively little to be said in favor of the exclusionary rule. If that rule is “no more than a mild deterrent at best” and if “It deprives society of its remedy against one lawbreaker because he has been pursued by another,” it seems clear that little good and much harm can come from its adoption. The above-quoted language also shows that this court is under no compulsion to reverse its former holdings and to adopt the federal exclusionary rule.

Furthermore, I cannot ascertain from the majority opinion *456in the present case the nature of the rule which is being adopted to supplant the well established nonexclusionary rule in California. Is it the exclusionary rule as interpreted in the federal courts with all its technical distinctions, exceptions, and qualifications and embracing “standards to which [the United States Supreme] Court and its members have been so inconstant and inconsistent.” (Irvine v. California, supra, 347 U.S. 128, 134.) Apparently not, for the majority opinion here assumes the validity of the contention that “the federal exclusionary rule has been arbitrary in its application and has introduced needless confusion into the law of criminal procedure.” But after making passing reference to possible “needless refinements and distinctions” and “needless limitations” found in the federal cases, the majority declares that this court is free to reject the rules established by such cases, and it concludes as follows: “Under these circumstances, the adoption of the exclusionary rule need not introduce confusion into the law of criminal procedure. Instead it opens the door to the development of workable rules governing searches and seizures and the issuance of warrants that will protect both the rights guaranteed by the constitutional provisions and the interest of society in the suppression of crime.”

The majority does not suggest what these “workable rules” may be nor how “confusion” may be avoided. Neither the federal courts nor the courts of any of the few states which adopted the exclusionary rule have apparently found a satisfactory solution to this problem of developing “workable rules,” and it seems impossible to contemplate the possibility that this court can develop a satisfactory solution. At best, this court would have to work out such rules in piecemeal fashion as each case might come before it. In the meantime, what rules are to guide our trial courts in the handling of their problems? If the nonexclusionary rule can be said to have one unquestioned advantage, it is the advantage of certainty. On the other hand, it appears that the exclusionary rule, in the many ramifications of its application to innumerable factual situations, is fraught with such difficulty as to make the formation of satisfactory, certain and workable rules a practical impossibility.

Much of the above discussion has been directed to the undesirability of adopting the exclusionary rule if the question were a novel one in this state. Of course, the question is not a novel one, for the numerous decisions show that this state had heretofore adopted a fixed and consistent policy on the subject. *457I find nothing that has occurred since the recent decisions of this court in People v. Gonzales, supra, 20 Cal.2d 165, People v. Kelley, supra, 22 Cal.2d 169, and People v. Haeussler, supra, 41 Cal.2d. 252, to furnish compelling reasons for this court to enunciate a change of that policy.

If, however, reasons may be said to exist for a change in the established policy of this state, I believe that the Legislature, rather than the courts, should make such change. This is particularly true in a situation such as the present one, when the change of policy should be accompanied by “workable rules” to implement such change. Otherwise, this court, by the sweeping repudiation of its past decisions, launches the administration of justice upon an uncharted course which the trial courts will find great difficulty in following. In this connection, it is worthy of note that bills have frequently been introduced in the Legislature to accomplish precisely that which is accomplished by the majority opinion, to wit: the supplanting of the nonexclusionary rule by the so-called exclusionary rule, without prescribing any “workable rules” for the latter’s application. In the recent legislative sessions of 1951 (see Senate Bill No. 1689 and Assembly Bill No. 3120) and of 1953 (see Assembly Bills Nos. 2896 and 3126), such bills have been introduced but none has ever been brought to a vote in either house. Under the circumstances, it would be far better for this court to allow the Legislature to deal with this question of policy, for the Legislature could accompany any desired change with needed legislation establishing the rules to guide our courts in the application of the new policy.

Returning to the precise situation presented by the record before us, it may be conceded that the illegality in obtaining-the evidence was both clear and flagrant. It may be further-conceded that the crimes which defendants conspired to commit were not in the class of the more serious public offenses. The fact remains, however, that the exclusionary rule, as adopted by the majority, is a rule for all cases and that it deprives society of its remedy against the most desperate gangster charged with the most heinous crime merely because of some degree of illegality in obtaining the evidence against him. Thus, it appears that the main beneficiaries of the adoption of the exclusionary rule will be those members of the underworld who prey upon law-abiding citizens through their criminal activities. It further appears that the adoption of the exclusionary rule will inevitably lead to unnecessary eon-*458fusion, delay and inefficiency in the administration of justice. Such is the price that society must pay for the adoption of the exclusionary rule, a rule of uncertain nature and doubtful value which is “no more than a mild deterrent at best.”

In my opinion, the cost of the adoption of the exclusionary rule is manifestly too great. It would be far better for this state to adhere to the nonexelusionary rule, and to reexamine its laws concerning ,the sanctions to .be placed upon illegal searches and seizures. If the present laws are deemed inadequate to discourage illegal practices by enforcement officers, the Legislature might well consider the imposition of civil liability for such conduct upon the governmental unit employing the offending officer, in addition to the liability now imposed upon the officer himself. It might also consider fixing a minimum amount to be recovered as damages in the same manner that a minimum has been fixed for the invasion of other civil rights. (Civ. Code, §52.) These methods would be far more effective in discouraging illegal activities on the part of enforcement officers and such methods would not be subject to the objection, inherent in the adoption of the exclusionary rule, that “It deprives society of its remedy against one lawbreaker because he has been pursued by another.’’ (Irvine v. California, supra, 347 U.S. 128, 136.)

In my opinion, we should adhere to our prior decisions and affirm the judgment.

Shenk, J., and Edmonds, J., concurred.

Respondent’s petition for a rehearing was denied May 25, 1955. Shenk, J., and Spence, J., were of the opinion that the petition should be granted.