44 Cal.2d 434 (1955) 282 P.2d 905

THE PEOPLE, Respondent,
v.
CHARLES H. CAHAN, Appellant.

Docket No. Crim. 5670.

Supreme Court of California. In Bank.

April 27, 1955.

*435 Russell E. Parsons for Appellant.

John G. Buresh, Richard V. Bettini, Morris Lavine, Horace Appel, Albert C. Garber, A.L. Wirin, Nathan L. Schoichet and Morris M. Grupp as Amici Curiae on behalf of Appellant.

Edmund G. Brown, Attorney General, Clarence A. Linn, Chief Assistant Attorney General, Elizabeth Miller and Arlo E. Smith, Deputy Attorneys General, for Respondent.

Roger Arnebergh, City Attorney (Los Angeles), William H. Parker, Chief of Police (Los Angeles), Bourke Jones, James A. Doherty and Alan G. Campbell, Assistant City Attorneys, Ralph Eubank, Deputy City Attorney, S. Ernest Roll, District Attorney (Los Angeles), Jere J. Sullivan and *436 Arthur L. Alarcon, Deputy District Attorneys, J.F. Coakley, District Attorney (Alameda), R. Robert Hunter, Chief Assistant District Attorney, Maury Engel, Bernard M. King and John C. Baldwin, Deputy District Attorneys, and Bruce A. Werlhof, District Attorney (Tehama), as Amici Curiae on behalf of Respondent.

TRAYNOR, J.

Defendant and 15 other persons were charged with conspiring to engage in horse-race bookmaking and related offenses in violation of section 337a of the Penal Code. Six of the defendants pleaded guilty. After a trial without a jury, the court found one defendant not guilty and each of the other defendants guilty as charged. Charles H. Cahan, one of the defendants found guilty, was granted probation for a period of five years on the condition that he spend the first 90 days of his probationary period in the county jail and pay a $2,000 fine. He appeals from the order granting him probation and the order denying his motion for a new trial.

Most of the incriminatory evidence introduced at the trial was obtained by officers of the Los Angeles Police Department in flagrant violation of the United States Constitution (4th and 14th Amendments), the California Constitution (art. I, § 19), and state and federal statutes. (Pen. Code, §§ 146, 602; 18 U.S.C.A. §§ 241, 242; 42 U.S.C.A. § 1983.) Gerald Wooters, an officer attached to the intelligence unit of that department testified that after securing the permission of the chief of police to make microphone installations^[*] at two places occupied by defendants, he, Sergeant Keeler, and Officer Phillips one night at about 8:45 entered one "house through the side window of the first floor," and that he "directed the officers to place a listening device under a chest of drawers." Another officer made recordings and transcriptions of the conversations that came over wires from the listening device to receiving equipment installed in a nearby garage. About a month later, at Officer Wooters' direction, *437 a similar device was surreptitiously installed in another house and receiving equipment was also set up in a nearby garage. Such methods of getting evidence have been caustically censured by the United States Supreme Court: "That officers of the law would break and enter a home, secrete such a device, even in a bedroom, and listen to the conversations of the occupants for over a month would be almost incredible if it were not admitted. Few police measures have come to our attention that more flagrantly, deliberately and persistently violate the fundamental principle declared by the Fourth Amendment...." (Irvine v. California, 347 U.S. 128, 132 [74 S.Ct. 381, 98 L.Ed. 561].) [1] Section 653h of the Penal Code does not and could not authorize violations of the Constitution, and the proviso under which the officers purported to act at most prevents their conduct from constituting a violation of that section itself.

The evidence obtained from the microphones was not the only unconstitutionally obtained evidence introduced at the trial over defendants' objection. In addition there was a mass of evidence obtained by numerous forcible entries and seizures without search warrants.

The forcible entries and seizures were candidly admitted by the various officers. For example, Officer Fosnocht identified the evidence that he seized, and testified as to his means of entry: "... and how did you gain entrance to the particular place? I forced entry through the front door and Officer Farquarson through the rear door. You say you forced the front door? ... Yes. And how? I kicked it open with my foot...." Officer Schlocker testified that he entered the place where he seized evidence "through a window located I believe it was west of the front door.... [W]hen you tried to force entry in other words, you tried to knock it [the door] down is that right? We tried to knock it down, yes, sir. What with? A shoe, foot. Kick it? Tried to kick it in, yes. And then you moved over and broke the window to gain entrance, is that right? We did." Officer Scherrer testified that he gained entry into one of the places where he seized evidence by kicking the front door in. He also entered another place, accompanied by Officers Hilton and Horral, by breaking through a window. Officer Harris "just walked up and kicked the door in" to gain entry to the place assigned to him.

Thus, without fear of criminal punishment or other discipline, law enforcement officers, sworn to support the *438 Constitution of the United States and the Constitution of California, frankly admit their deliberate, flagrant acts in violation of both Constitutions and the laws enacted thereunder. It is clearly apparent from their testimony that they casually regard such acts as nothing more than the performance of their ordinary duties for which the city employs and pays them.

[2] The Fourth Amendment to the Constitution of the United States provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." Although this amendment, like each of the other provisions of the original Bill of Rights, applies only to the federal government (Barron v. Baltimore, 7 Pet. (U.S.) 243 [8 L.Ed. 672]; Adamson v. California, 332 U.S. 46, 51 [67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223]), `[t]he security of one's privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — is basic to a free society. It is therefore implicit in `the concept of ordered liberty' [Palko v. Connecticut, 302 U.S. 319, 324-325 (58 S.Ct. 149, 82 L.Ed. 288)] and as such enforceable against the States through the Due Process Clause [of the Fourteenth Amendment.]" (Wolf v. Colorado, 338 U.S. 25, 27-28 [69 S.Ct. 1359, 93 L.Ed. 1782].) An essentially identical guarantee of personal privacy is set forth in article I, section 19 of the California Constitution.

[3] Thus both the United States Constitution and the California Constitution make it emphatically clear that important as efficient law enforcement may be, it is more important that the right of privacy guaranteed by these constitutional provisions be respected. [4] Since in no case shall the right of the people to be secure against unreasonable searches and seizures be violated, the contention that unreasonable searches and seizures are justified by the necessity of bringing criminals to justice cannot be accepted. It was rejected when the constitutional provisions were adopted and the choice was made that all the people, guilty and innocent alike, should be secure from unreasonable police intrusions, even though some criminals should escape.^[**]*439 [5] Moreover, the constitutional provisions make no distinction between the guilty and the innocent, and it would be manifestly impossible to protect the rights of the innocent if the police were permitted to justify unreasonable searches and seizures on the ground that they assumed their victims were criminals. Thus, when consideration is directed to the question of the admissibility of evidence obtained in violation of the constitutional provisions, it bears emphasis that the court is not concerned solely with the rights of the defendant before it, however guilty he may appear, but with the constitutional right of all of the people to be secure in their homes, persons, and effects.

The constitutional provisions themselves do not expressly answer the question whether evidence obtained in violation thereof is admissible in criminal actions. Neither Congress nor the Legislature has given an answer, and the courts of the country are divided on the question. The federal courts and those of some of the states^[***] exclude such evidence. (Weeks v. United States, 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B 834]; McDonald v. United States, 335 U.S. 451 [69 S.Ct. 191, 93 L.Ed. 153]; see state cases collected in Appendix to Wolf v. Colorado, supra, 338 U.S. 25, 33-39.) In accord with the traditional common-law rule (see McCormick on Evidence, p, 296), the courts of a majority of the states admit it (see cases collected in Appendix to Wolf v. Colorado, supra, 338 U.S. 25, 33-39), and heretofore the courts of this state have admitted it. (People v. Le Doux, 155 Cal. 535, 547 [102 P. 517]; People v. Mayen, 188 Cal. 237, 242-253 [205 P. 435, 24 A.L.R. 1383]; People v. Gonzales, 20 Cal.2d 165, 169 [124 P.2d 44]; People v. Kelley, 22 Cal.2d 169, 172 [137 P.2d 1].)

[6] The decision of the United States Supreme Court in Wolf v. Colorado that the guarantee of the Fourth Amendment *440 applies to the states through the Fourteenth does not require states like California that have heretofore admitted illegally seized evidence to exclude it now. The exclusionary rule is not "an essential ingredient" of the right of privacy guaranteed by the Fourth Amendment, but simply a means of enforcing that right, which the states can accept or reject: "Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which if consistently enforced would be equally effective." (Italics added. Wolf v. Colorado, supra, 338 U.S. 25 at p. 31.) The court did not state that the other methods of deterring unreasonable searches and seizures must be "consistently enforced" and be "equally effective." Except in extreme cases (see Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183, 25 A.L.R.2d 1396]), it is apparently willing to leave the matter of deterring unreasonable searches and seizures by state officers entirely to the states and is not yet ready to condemn methods other than the exclusion of the evidence as falling below "minimal standards" even though the state makes no effort whatever to enforce them and in practical effect, therefore, has no method of making this basic constitutional guarantee effective. It would appear, therefore, that despite earlier statements of the United States Supreme Court that the Fourth or the Fifth Amendment barred the use of evidence obtained through an illegal search and seizure (Gouled v. United States, 255 U.S. 298, 311-313 [41 S.Ct. 261, 65 L.Ed. 647]; Amos v. United States, 255 U.S. 313, 315-316 [41 S.Ct. 266, 65 L.Ed. 654]; Weeks v. United States, 232 U.S. 383, 391-392 [34 S.Ct. 341, 58 L.Ed. 652]), "the federal exclusionary rule," in the words of Mr. Justice Black, "is not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate." (Concurring opinion in Wolf v. Colorado, supra, 338 U.S. 25, at 39-40; see also Irvine v. California, 347 U.S. 128, 135 [74 S.Ct. 381, 98 L.Ed. 561].) It would seem that it is also a rule that Congress could make binding on the states to deter state invasions of the Fourth Amendment's guarantee, which is now recognized as limiting state as well as federal action. (Cf., Civil Rights Act, Rev. Stats. § 1979, 42 U.S.C.A. § 1983; 18 U.S.C.A. §§ 241, 242; Williams v. United States, 341 U.S. 97 [71 S.Ct. 576, 95 L.Ed. 774]; Screws v. United States, 325 U.S. 91 *441 [65 S.Ct. 1031, 89 L.Ed. 1495]; see also Stefanelli v. Minard, 342 U.S. 117, 120-121 [72 S.Ct. 118, 96 L.Ed. 138].)

The rule of the Wolf case that the Fourteenth Amendment does not require the exclusion of evidence obtained by an unreasonable search and seizure was reaffirmed recently in Irvine v. California, 347 U.S. 128 [74 S.Ct. 381, 98 L.Ed. 561]. The decision, as in the Wolf case, was by a divided court. Justice Douglas dissented as he did in the Wolf case, and Justice Clark declared: "Had I been here in 1949 when Wolf was decided I would have applied the doctrine of Weeks v. United States (1914), 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B 834], to the states. But the court refused to do so then, and it still refuses today. Thus Wolf remains the law and, as such, is entitled to the respect of this Court's membership.... Perhaps strict adherence to the tenor of that decision may produce needed converts for its extinction." Justices Frankfurter and Burton, who were among the majority in the Wolf case, would hold that the methods employed in the Irvine case are so repulsive that evidence so obtained must be excluded as a matter of due process of law. Not only was the court closely divided, but Justice Jackson felt it appropriate to declare for the majority: "Now that the Wolf doctrine [the guarantee of the Fourth Amendment is enforceable against the states through the Due Process Clause of the Fourteenth] is known to them, state courts may wish further to reconsider their evidentiary rules. But to upset state convictions even before the states have had adequate opportunity to adopt or reject the [exclusionary] rule would be an unwarranted use of federal power." (347 U.S. at p. 134.) Thus, after states that rely on methods other than the exclusionary rule to deter unreasonable searches and seizures have had an opportunity to reconsider their rules in the light of the Wolf doctrine, the way is left open for the United States Supreme Court to conclude that if these other methods are not "consistently enforced" and are therefore not "equally effective" (see Wolf v. Colorado, supra, 338 U.S. 25, 31), the "minimal standards" of due process have not been met.^[****]

*442 Meanwhile, pursuant to the suggestion of the United States Supreme Court, we have reconsidered the rule we have heretofore followed that the unconstitutional methods by which evidence is obtained does not affect its admissibility and have carefully weighed the various arguments that have been advanced for and against that rule. It bears emphasis 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. (See MacNabb v. United States, 318 U.S. 332, 341 [63 S.Ct. 608, 87 L.Ed. 819]; On Lee v. United States, 343 U.S. 747, 756 [72 S.Ct. 967, 96 L.Ed. 1270].)

The rule admitting the evidence has been strongly supported by both scholars and judges.^[*****] Their arguments may be briefly summarized as follows:

The rules of evidence are designed to enable courts to reach the truth and, in criminal cases, to secure a fair trial *443 to those accused of crime. Evidence obtained by an illegal search and seizure is ordinarily just as true and reliable as evidence lawfully obtained. The court needs all reliable evidence material to the issue before it, the guilt or innocence of the accused, and how such evidence is obtained is immaterial to that issue. It should not be excluded unless strong considerations of public policy demand it. There are no such considerations.

Exclusion of the evidence cannot be justified as affording protection or recompense to the defendant or punishment to the officers for the illegal search and seizure. It does not protect the defendant from the search and seizure, since that illegal act has already occurred. If he is innocent or if there is ample evidence to convict him without the illegally obtained evidence, exclusion of the evidence gives him no remedy at all. Thus the only defendants who benefit by the exclusionary rule are those criminals who could not be convicted without the illegally obtained evidence. Allowing such criminals to escape punishment is not appropriate recompense for the invasion of their constitutional rights; it does not punish the officers who violated the constitutional provisions; and it fails to protect society from known criminals who should not be left at large. For his crime the defendant should be punished. For his violation of the constitutional provisions the offending officer should be punished. As the exclusionary rule operates, however, the defendant's crime and the officer's flouting of constitutional guarantees both go unpunished. "The criminal is to go free because the constable has blundered" (Cardozo, J., in People v. Defore, supra, 242 N.Y. 13, 21), and "Society is deprived of its remedy against one lawbreaker, because he has been pursued by another." (Jackson, J., in Irvine v. California, supra, 347 U.S. 128, at 136; see also 8 Wigmore on Evidence [3d ed.] § 2184, p. 40.)

Opponents of the exclusionary rule also point out that it is inconsistent with the rule allowing private litigants to use illegally obtained evidence (see Munson v. Munson, 27 Cal.2d 659, 664 [166 P.2d 268]; Oil Workers Intl. Union v. Superior Court, 103 Cal. App.2d 512, 579-580 [230 P.2d 71]; cf., Herrscher v. State Bar, 4 Cal.2d 399, 412 [49 P.2d 832]), and that as applied in the federal courts, it is capricious in its operation, either going too far or not far enough. "[S]o many exceptions to [the exclusionary] rule have been granted the judicial blessing as largely to destroy any value it might otherwise have had. Instead of adding to the security of *444 legitimate individual rights, its principal contribution has been to add further technicalities to the law of criminal procedure. A district attorney who is willing to pay the price may easily circumvent its limitations. And the price to be paid is by no means high." (Grant, Circumventing the Fourth Amendment, 14 So.Cal.L.Rev. 359.) Thus, the rule as applied in the federal courts has been held to protect only defendants whose own rights have been invaded by federal officers. If the illegal search and seizure have been conducted by a state officer or a private person not acting in cooperation with federal officers, or if the property seized is not defendant's the rule does not apply. (Burdeau v. McDowell, 256 U.S. 465 [41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159]; Lustig v. United States, 338 U.S. 74, 78-79 [69 S.Ct. 1372, 93 L.Ed. 1819]; Connolly v. Medalie, 58 F.2d 629; Kelley v. United States, 61 F.2d 843; Parker v. United States, 183 F.2d 268; Steeber v. United States, 198 F.2d 615; United States v. Stirsman, 212 F.2d 900; cf. Gambino v. United States, 274 U.S. 310 [48 S.Ct. 137, 72 L.Ed. 293, 52 A.L.R. 1381].)^[******]

Finally it has been pointed out that there is no convincing evidence that the exclusionary rule actually tends to prevent unreasonable searches and seizures (see Comment, 47 Nw. L.Rev. 493, 497; cf. Allen, The Wolf Case, 45 Ill.L.Rev. 1, 20; 42 Cal.L.Rev. 120) and that 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 *445 at best." (Jackson, J., in Irvine v. California, 347 U.S. 128, at pp. 136-137 [78 S.Ct. 381, 98 L.Ed. 561].)

[7] Despite the persuasive force of the foregoing arguments, we have concluded, as Justice Carter and Justice Schauer have consistently maintained,^[*******] that evidence obtained in violation of the constitutional guarantees is inadmissible 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.^[†] We have been compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers.

When, as in the present case, the very purpose of an illegal search and seizure is to get evidence to introduce at a trial, the success of the lawless venture depends entirely on the court's lending its aid by allowing the evidence to be introduced. It is no answer to say that a distinction should be drawn between the government acting as law enforcer and the gatherer of evidence and the government acting as judge. "[N]o distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed." (Holmes, J., dissenting in Olmstead v. United States, 277 U.S. 438, 470 [48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376].) Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such "dirty business." (See MacNabb v. United States, 318 U.S. 332, 345 [63 S.Ct. 608, 87 L.Ed. 819].) Courts refuse their aid in civil cases to *446 prevent the consummation of illegal schemes of private litigants (Lee On v. Long, 37 Cal.2d 499, 502-503 [234 P.2d 9], and cases cited); a fortiori, they should not extend that aid and thereby permit the consummation of illegal schemes of the state itself. (See Roberts, J., concurring in Sorells v. United States, 287 U.S. 435, 453 [53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249].) It is morally incongruous for the state to flout constitutional rights and at the same time demand that its citizens observe the law. The end that the state seeks may be a laudable one, but it no more justifies unlawful acts than a laudable end justifies unlawful action by any member of the public. Moreover, any process of law that sanctions the imposition of penalties upon an individual through the use of the fruits of official lawlessness tends to the destruction of the whole system of restraints on the exercise of the public force that are inherent in the "concept of ordered liberty." (See Allen, The Wolf Case, 45 Ill.L.Rev. 1, 20.) "Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt for law, it invites everyman to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." (Brandeis, J., dissenting in Olmstead v. United States, 277 U.S. 438, 485 [48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376]; see also State v. Owens, 302 Mo. 348, 377 [259 S.W. 100, 32 A.L.R. 383]; Atz v. Andrews, 84 Fla. 43 [94 So. 329, 332]; Youman v. Commonwealth, 189 Ky. 152 [224 S.W. 860, 866, 13 A.L.R. 1303]; State v. Arregui, 44 Idaho 43 [254 P. 788, 792]; State v. Gooder, 57 S.D. 619 [234 N.W. 610, 613].)

If the unconstitutional conduct of the law enforcement officers were more flagrant or more closely connected with the conduct of the trial, it is clear that the foregoing principles would compel the reversal of any conviction based thereon. Thus, no matter how guilty a defendant might be or how *447 outrageous his crime, he must not be deprived of a fair trial, and any action, official or otherwise, that would have that effect would not be tolerated. Similarly, he may not be convicted on the basis of evidence obtained by the use of the rack or the screw or other brutal means no matter how reliable the evidence obtained may be. (Rochin v. California, supra, 342 U.S. 165.) Today one of the foremost public concerns is the police state, and recent history has demonstrated all too clearly how short the step is from lawless although efficient enforcement of the law to the stamping out of human rights. This peril has been recognized and dealt with when its challenge has been obvious; it cannot be forgotten when it strikes further from the courtroom by invading the privacy of homes.

If the unconstitutional guarantees against unreasonable searches and seizures are to have significance they must be enforced, and if courts are to discharge their duty to support the state and federal Constitutions they must be willing to aid in their enforcement. If those guarantees were being effectively enforced by other means than excluding evidence obtained by their violation, a different problem would be presented. If such were the case there would be more force to the argument that a particular criminal should not be redressed for a past violation of his rights by excluding the evidence against him. Experience has demonstrated, however, that neither administrative, criminal nor civil remedies are effective in suppressing lawless searches and seizures. The innocent suffer with the guilty, and we cannot close our eyes to the effect the rule we adopt will have on the rights of those not before the court. "Alternatives [to the exclusionary rule] are deceptive. Their very statement conveys the impression that one possibility is as effective as the next. For there is but one alternative to the rule of exclusion. That is no sanction at all." (Murphy, J., diss