People v. Varnum

PETERS, J.

I concur with the majority in the reversal as to penalty, but I dissent insofar as the majority affirm the balance of the judgment challenged by defendant. That too should be reversed.

At the trial there was introduced the murder weapon, a most important piece of evidence for the prosecution. This gun had been discovered by the police as a direct result of the improper interrogation of Edward Jackson and his wife, also *816 charged with the murder here involved. The majority opinion frankly admits that the interrogation of the Jacksons was at the accusatory stage—they were both in jail charged with the murder, suspicion had focused on them, and the questions were asked to elicit incriminating information against Varnum as well as the Jacksons. Admittedly, the interrogation of the Jacksons violated the rules laid down in Escobedo v. Illinois, 378 U.S. 478 [ 12 L.Ed.2d 977 , 84 S.Ct. 1758 ], and People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], There can be no doubt that had this evidence been offered against the Jacksons they could properly have objected to its admission into evidence. But, say the majority, Varnum, also charged with the murder, has no “standing” to challenge the invasion of the Jacksons’ constitutional rights. If this holding is correct then a big hole has been blown in the barriers erected by Escobedo , and its progeny. The beneficent purposes intended by Escobedo and the more recent case of Miranda v. Arizona, 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ], have been to a great extent defeated. I am convinced that the United States Supreme Court will not and should not permit such a contraction of its purposes.

This result is reached by the majority although they admit that in the ease of an unlawful search and seizure third persons have standing to urge an illegal search although their rights are not directly violated. (People v. Martin, 45 Cal.2d 755 [ 290 P.2d 855 ].) The majority assert, correctly, that the basis of this rule is that otherwise “the deterrent effect of the exclusionary rule would be seriously weakened.” Certainly one can say, with even greater emphasis, that the rule here adopted by the majority will seriously impair the deterrent effect on improper police activities intended by Escobedo . A reading of Escobedo, Dorado, and Miranda demonstrates that the rules there adopted were adopted largely to deter improper police activities, just as the unlawful search and seizure rules were adopted for the same purpose. The same rule should be applied to both situations.

The majority also imply that if the confession had been coerced from the Jacksons, Varnum would have standing to attack it. But what the majority overlook is that the rules adopted in Escobedo, Dorado and Miranda were adopted because of the fear that a confession without the required warnings is suspect as coercive. Certainly, the United States Supreme Court in Escobedo and Miranda applied the coercive confession rules. They should also be applied here.

*817 The majority seem to think that the problem here involved differs from the unlawful search and seizure situation because the search and seizure was ab initio illegal, while here the original interrogation of the Jacksons was “lawful,” and would become unlawful only when and if the confession or its fruits were introduced into evidence against the Jacksons. Since the confession was never introduced against the Jack-sons no error was committed. Thus it is said: “Noncoercive questioning is not in itself unlawful” and again, “there is nothing unlawful in questioning unwarned suspects so long as the police refrain from physically and psychologically coercive tactics.” Such “reasoning” discloses a misconception of the rules under discussion. Improper interrogation, without the requisite warnings, violated the Fifth and Sixth Amendment rights of the witness. It is “unlawful” to interrogate a suspect without giving him the required warnings from the very moment of the first question. The right of privacy recognized in Escobedo and Miranda has been violated the moment interrogation starts. The fact that the most important sanction imposed for violating that right of privacy is inadmissibility of the confession into evidence, and that the defendant cannot complain in his criminal trial unless the confession is introduced, does not make the interrogation lawful. The same can be said about an unlawful search and seizure; yet there is no doubt that the unlawful search is unlawful when committed, and not when the fruits of such search are introduced into evidence. The one thing made crystal clear by Escobedo and certainly by the explanation of that ease in Miranda is that it is unlawful to interrogate without giving the required warnings.

What the sanction may be if the confession is not introduced we need not now determine. All that we have to determine is that the interrogation was unlawful. Violation of the Fourth Amendment occurs at the time of the unlawful search. Violation of the Fifth Amendment occurs the moment defendant is induced to give incriminating information. Violation of the Sixth Amendment occurs the moment the accused is interrogated without being informed of the right to counsel. What the majority fail to realize is that Escobedo, Dorado and Miranda pushed back the impact of the Fifth and Sixth Amendments from the courtroom to the police station.

Carried to its logical conclusion the rule that interrogation is not unlawful until the results of that interrogation are *818 introduced in evidence in a criminal trial, suggested by the majority, would mean that the privilege against self-incrimination does not exist when a witness is interrogated by a legislative committee because legislative committees are not engaged in criminal trials. I am sure the majority intended no such ridiculous result, but that would seem to be the result of their reasoning.

In support of its contention that the violation of the privilege against self-incrimination does not occur until the evidence is used against the accused the majority rely on Murphy v. Waterfront Com. of New York Harbor, 378 U.S. 52, 78-79 [ 12 L.Ed.2d 678, 694-695 , 84 S.Ct. 1594 ], That is the case that repudiated the old rule that one jurisdiction could compel a witness to testify where his testimony, although not incriminatory in that jurisdiction might incriminate him under the laws of another jurisdiction. The state had granted the witness immunity under state law, but he claimed the privilege on the ground that his testimony would incriminate him under federal law.

It was held that under its grant of immunity the state could compel the witness to testify and that the witness’ privilege would be protected by precluding the federal authorities from using the testimony in a criminal prosecution against him. But this holding does not support the thesis of the majority. The court adopted the rule announced to “accommodate the interests of the State and Federal Governments in investigating” crime. Unless the state under its immunity statute could take the testimony the whole purpose of the immunity statutes would be defeated in many, if not most, situations for which they were designed. No such competing state and federal interests are here involved.

Massiah v. United States, 377 U.S. 201, 206 [ 12 L.Ed.2d 246, 250-251 , 84 S.Ct. 1199 ], is also relied upon by the majority to support their conclusion that the right of the accused to counsel is not violated until the prosecuting authorities attempt to use the words elicited while the accused was without a lawyer. It is true that that case states that the accused was denied his right to counsel when the confession was introduced. But there is nothing in that opinion to indicate that there was no violation of the accused’s rights if the confession is not used at trial. In Escobedo where the accused demanded the right to counsel the rights of the accused were violated immediately upon that request being denied.

*819 Implicit in the holding that noncoereive questioning is lawful until the confession is introduced in a criminal trial is the concept that such noncoereive interrogation is desirable and to be encouraged. To the contrary Escobedo, Dorado and Miranda tell us in no uncertain terms that all such interrogations are to be discouraged. Insofar as we permit the fruits of an interrogation in violation of those cases to be introduced into evidence we are encouraging not deterring unlawful police activity.

The practical effects of such a holding cannot be minimized. What the majority have done is to attempt to turn a doctrine protective of constitutional rights into a rule of evidence. It must be remembered that the rule of the majority holding that interrogation without warnings is lawful not only encourages such interrogations but also encourages officers to ignore express requests for counsel and to ignore assertions of reliance on the privilege against self-incrimination. Under Dorado and Miranda the same rules are applicable to both situations. In Miranda the court unequivocally covered the situation under discussion in the following language. (Miranda v. Arizona, 384 U.S. 436, at pp. 473-474 [ 16 L.Ed.2d 694 at p. 723 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ].) "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [Footnote omitted.] At this point he has shown that he intends to exercise his Fifth Amendment privilege ; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. ’ ’

I interpret those words as limitations on police activity— the majority do not. A conscientious police officer must, of course, try to obtain evidence by every lawful means. Now he is impliedly told by the majority that, where there are multiple suspects, he may, without giving the required warnings and despite the suspect’s request for counsel or desire to remain silent, interrogate one suspect in violation of these rights in the hope of getting admissible evidence against the other suspects. The majority opinion can be interpreted as not only condoning but in effect encouraging such violation of fundamental constitutional rights.

I would hold the admission of the gun was error, and under *820 the facts clearly prejudicial. I would reverse the entire judgment appealed from.