People v. Massey

In People v. Superior Court (Keithley) (1975) 13 Cal.3d 406 [ 118 Cal.Rptr. 617 , 530 P.2d 585 ], physical evidence had been seized after, and as the result of, a violation of Miranda; a 1538.5 motion was held to be an appropriate way of attacking the use of that evidence. In People v. Superior Court (Mahle) (1970) 3 Cal.App.3d 476 [ 83 Cal.Rptr. 771 ], a similar factual situation existed with the same result. In People v. Superior Court (Redd) (1969) 275 Cal.App.2d 49 [ 79 Cal.Rptr. 704 ], there was no arrest, but ,a confession was a result of a violation of Miranda; the court held that the confession could not be suppressed by a 1538.5 motion, saying (at p. 52): “It is sufficient for present purposes to hold, as we do, that Penal Code section 1538.5 as enacted is limited solely to questions involving searches and seizures and is inapplicable to the resolution of issues arising from challenged confessions or admissions, except those that constitute the fruit of a search and seizure. There being no contention, nor basis for a contention, that any search and seizure, legal or illegal, was involved in the instant action, the defendants’ motion under section 1538.5 should have been denied in its entirety.” (Italics in original.)

In Kirby v. Superior Court (1970) 8 Cal.App.3d 591 [ 87 Cal.Rptr. 577 ], this division of this court permitted the use of a 1538.5 motion to suppress evidence of physical things seen after an unlawful arrest. The case, however, involved a “search” and the opinion deals only with whether things seen, but not actually seized, were the kinds of “intangibles” referred to in section 1538.5. That case advances us one step toward our answer. We conclude that, under the reasoning of Kirby, a confession is, also, an “intangible thing” within the meaning of section 1538.5. But Kirby does not tell us whether a confession, obtained only after the kind of seizure involved in an arrest may be suppressed.

In Burrows v. Superior Court (1974) 13 Cal.3d 238 , 251 [ 118 Cal.Rptr. 166 , 529 P.2d 590 ], police officers had made an unlawful search of defendant’s office. Faced with incriminating evidence so found, defendant consented to a search of his car, where other evidence was found. The Supreme Court held that the consent, being a fruit of the original unlawful search, was ineffective to validate the search of the car.

In People v. Clark (1969) 2 Cal.App.3d 510 [ 82 Cal.Rptr. 682 ], a confession had followed an illegal arrest and a violation of Miranda. The appeal was on a certificate issued under section 1237.5, but the court assumed that the matter had properly been raised in the trial court by a 1538.5 motion. That case, apart from the assumption, is not helpful.

In People v. Coyle (1969) 2 Cal.App.3d 60 [ 83 Cal.Rptr. 924 ], the court held that a 1538.5 motion was a proper way to attack the use by the People of a tape recording of a telephone conversation allegedly unlawfully obtained.

While no case squarely answers the question here before us, we conclude that the use of a 1538.5 motion was proper in the case at bench. Where the evidence sought to be suppressed is physical evidence, seized or seen, the exclusionary rules serve to protect rights granted by the Fourth Amendment and its state counterpart. In order to protect those rights, Keithley, supra, 13 Cal.3d, and Mahle, Supra, 3 Cal.App.3d, invoked the Miranda rule, a rule designed to protect rights granted by the Fifth Amendment and its California counterpart.

An illegal arrest is a violation of the same Fourth Amendment rights as is a search or seizure of physical property. The rules excluding confessions exist for the same purpose as does Miranda—namely, to protect Fifth Amendment rights. We can see no reason why, if a violation of a Fifth Amendment right may be used to show a violation of Fourth Amendment rights, the converse should not be true. Since there was here a “seizure” and an “intangible” thing, we conclude that a Fourth Amendment violation of defendant’s rights should permit him to contest the admissibility of a confession obtained as a result of that violation, in a proceeding falling within the literal language of section 1538.5.

We turn, then, to consider the merits of defendant’s appeal.

(a) Defendant argues that his arrest, made without a warrant, in his own home, was unlawful because no exigent circumstances justified the failure to obtain a warrant. The decision in Ramey, supra, 16 Cal.3d, establishing that rule for California, was rendered on February 25, 1976; the arrest here took place on December 21, 1974. By its own terms, Ramey is not retroactive.

(b) Defendant’s principal argument is that the officers did not have probable cause to arrest him. We cannot say that the trial court erred in finding that probable cause existed. The victim had told a neighbor, Allen, that he was leaving on a fishing trip at 6 p.m.; Allen exhibited unusual interest in the exact time of that departure, even

returning to the victim’s apartment to verify the time. The victim did not go on the fishing trip, but did leave his apartment at about that time to go shopping. While he was gone, a burglary of his apartment occurred. The victim testified that, as he returned, he saw defendant and Douglas Edwards leaving the vicinity of his apartment and enter their apartment two doors away. A woman, who refused to give her name, told the officers that she had seen defendant and Edwards commit the burglary. A check of police records disclosed a history of burglary arrests for both defendant and Edwards. Allen, defendant and Edwards were known to be friends. We think that the totality of that information could reasonably have been held to give probable cause for the arrest of defendant and Edwards. It follows that defendant’s confession was properly admitted in the case at bench.

The judgment is affirmed.

Dunn, J., and Jefferson (Bernard), J., concurred.

A petition for a rehearing was denied July 15, 1976, and the petitions of the appellant and the respondent for a hearing by the Supreme Court were denied October 13, 1976.