People v. Camarella

MOSK, J.

I dissent. The Fourth Amendment to the United States Constitution declares that “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.”

Separately and independently, section 13 of article I of the California Constitution (hereafter article I, section 13) makes a similar declaration: “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”

Under a rule of exclusion, evidence obtained in violation of the Fourth Amendment is inadmissible. (E.g., Weeks v. United States (1914) 232 U.S. *608 383, 389-398 [ 58 L.Ed. 652, 654-658 , 34 S.Ct. 341 ] [federal prosecutions]; Mapp v. Ohio (1961) 367 U.S. 643, 646-660 [ 6 L.Ed.2d 1081, 1084-1093 , 81 S.Ct. 1684 , 84 A.L.R.2d 933 ] [state prosecutions].)

Under a similar rule, evidence obtained in violation of article I, section 13, is similarly inadmissible. (E.g., People v. Cahan (1955) 44 Cal.2d 434, 445 [ 282 P.2d 905 , 50 A.L.R.2d 513 ] [decided under the substantially identical former § 19 of art. I of Cal. Const.].)

In United States v. Leon (1984) 468 U.S. 897 [ 82 L.Ed.2d 677 , 104 S.Ct. 3405 ] (hereafter sometimes Leon), the United States Supreme Court fabricated an exception to the exclusionary rule of the Fourth Amendment that allows “the use in the prosecution’s case in chief of evidence obtained by officers acting in [objectively] reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” (Id. at p. 900 [82 L.Ed.2d at p.684].) The court declared the exception inapplicable when (1) the magistrate “was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth”; (2) the magistrate “wholly abandoned his judicial role”; (3) the affidavit is “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable[ ]’ ”; or (4) the warrant is “so facially deficient. . . that the executing officers cannot reasonably presume it to be valid.” (Id. at p. 923 [ 82 L.Ed.2d at p. 699 ].)

In In re Lance W. (1985) 37 Cal.3d 873, 884-893 [ 210 Cal.Rptr. 631 , 694 P.2d 744 ], by a vote of four to three, a majority of this court effectively abrogated the exclusionary rule of article I, section 13. What remains is the exclusionary rule of the Fourth Amendment—and with it, the Leon exception.

It has been manifest from the very day on which it was handed down that Leon was wrongly decided.

The dissenting opinions in Leon authored by Justice Brennan and Justice Stevens are each irrefutable. (468 U.S. at pp. 928-960 [82 L.Ed.2d at pp. 722-736] (dis. opn. of Brennan, J.); id. at pp. 960-980 [82 L.Ed.2d at pp. 702-723] (dis. opn. of Stevens, J.).)

Also, commentators have time and again demonstrated Leon's fatal flaws. (E.g., 1 LaFave, Search & Seizure (2d ed. 1987) § 1.3, pp. 46-80, and the commentary cited therein; Duke, Making Leon Worse (1986) 95 Yale L.J. 1405 , 1405 [“. . . Leon is one of the weakest of the Court’s criminal procedure opinions.”].)

*609 Even more significant, the courts of several of our sister states—including high courts of the first rank—have criticized Leon's rationale on its own terms and have refused to adopt its holding under their own constitutions. (E.g., State v. Marsala (1990) 216 Conn. 150, 151, 159-171 [ 579 A.2d 58 ]; State v. Novembrino (1987) 105 N.J. 95, 99-102, 129-159 [ 519 A.2d 820 ]; People v. Bigelow (1985) 66 N.Y.2d 417, 426-427 [ 497 N.Y.S.2d 630 , 488 N.E.2d. 451]; State v. Carter (1988) 322 N.C. 709, 710, 712-724 [ 370 S.E.2d. 553 ]; Commonwealth v. Edmunds (1991) 526 Pa. 374, 376, 382-412 [ 586 A.2d 887, 888, 891-906 ].)

Today, the Leon exception survives under the exclusionary rule of the Fourth Amendment only because its source is authoritative: its reasoning has been shown to be empty. It remains vital in California only by dint of the plainly erroneous decision of a bare majority of this court in In re Lance W, supra, 37 Cal.3d 873 .

I am confident that some day soon, the United States Supreme Court will reconsider and overrule Leon . Recently, in Payne v. Tennessee (1991) 501 U.S. _ , [ 115 L.Ed.2d 720, 730-379 , 111 S.Ct. 2597, 2604-2611 ], it did just that (in large part) to Booth v. Maryland (1987) 482 U.S. 496 [ 96 L.Ed.2d 440 , 107 S.Ct. 2529 ], and South Carolina v. Gathers (1989) 490 U.S. 805 [ 104 L.Ed.2d 876 , 109 S.Ct. 2207 ]—decisions that had drawn attacks that were far fewer, far weaker, and far less justified. If the court did not hesitate to dispatch Booth and Gathers , surely it should give Leon its quietus as well.

But until Leon is overruled, it continues to govern. Accordingly, the question before the court must be addressed under its shadow.

The first issue, of course, is whether the search of defendant’s home and the seizure of items therefrom were violative of his rights under the Fourth Amendment and/or article I, section 13. Both the superior court and the Court of Appeal resolved the matter in the affirmative, expressly as to the federal guaranty and impliedly as to the state. I agree.

Detective John F. Addoms of the Placer County Sheriff’s office and other law enforcement agents conducted the search and seizure. They did indeed have a search warrant. But probable cause was lacking. The warrant was supported solely by an affidavit executed by Addoms. The affidavit was insufficient. In a telephone conversation with Addoms, an anonymous and untested female tipster made an accusation that defendant was currently engaged in the sale of cocaine in Tahoe City both at his home and at an establishment where he tended bar. The facts she stated revealed she was personally acquainted with defendant. (The record suggests she was a former *610 lover.) But they did not show much more. Certainly, there was no claim she herself had recently bought cocaine from defendant or had even witnessed a sale. All that appears in this regard is the hearsay assertion that a relative had lately told her that he had made such a purchase. Addoms’s corroboration of the tip was devoted in large part to an investigation of defendant’s identity and address. His purported corroboration of the accusation proper was limited to a 15-month-old statement from a confidential and untested tipster and a 3 ^-year-old crime report.

The majority claim that the presence of probable cause is a close question. I disagree. There was a bare accusation by an anonymous and untested tipster that defendant was then selling cocaine. There was no effective corroboration. The 15-month-old statement from the confidential and untested tipster and the Sl/z-year-old crime report were stale. They may each have had some tendency to substantiate an allegation made contemporaneously therewith. But whether considered separately or together, they were insufficient to support the charge here. Certainly, this was not a case in which investigation into the tip was precluded by time or circumstances. There was no emergency. The suspected criminal activity did not demand immediate action. Neither did defendant’s status—he was a longtime resident and homeowner. Further, there was no bar to the gathering of evidence. Law enforcement officers from outside the environs of Tahoe City could readily have conducted surveillance. Such officers would have attracted little attention to themselves: strangers are common in this popular resort area at all times of the year.

The second issue to be considered here is whether the evidence comprising the items unconstitutionally seized from defendant’s home came within the exclusionary rule of the Fourth Amendment or outside its ambit in the Leon exception. The superior court allowed the exception, refused suppression, and subsequently entered a judgment against defendant on his plea of guilty. The Court of Appeal applied the rule and proceeded to reverse. I agree with the Court of Appeal.

As explained, the items seized from defendant’s home were obtained in violation of his rights under the Fourth Amendment and article I, section 13. It cannot be said that Detective Addoms and his companions acted “in [objectively] reasonable reliance” on the search warrant. (United States v. Leon, supra, 468 U.S. at p. 900 [ 82 L.Ed.2d at p. 684 ].) It must have been manifest even—and perhaps, especially—to a “reasonably well trained officer” (id. at p. 922, fn. 23 [ 82 L.Ed.2d at p. 922 ]) that probable cause was lacking. The affidavit revealed little more than a bare, and uncorroborated, accusation by an anonymous and untested tipster that defendant was then selling cocaine. That a deputy district attorney subsequently “reviewed” and *611 “approved” the document did not, and could not, make up for what was absent. Accordingly, the Leon exception was inapplicable. The affidavit was “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” (Id. at p. 923 [ 82 L.Ed.2d at p. 922 ].)

The majority conclude to the contrary. Their reasoning rests at bottom on their claim that the presence of probable cause is a close question. As I have shown, that assertion is unsupported.

In short, “When constitutional rights are implicated, the end cannot justify the means.” (In re Lance W., supra, 37 Cal.3d at p. 910 (dis. opn. of Mosk, J.).)

For the reasons stated above, I would affirm the judgment of the Court of Appeal.

Appellant’s petition for a rehearing was denied December 19, 1991, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the petition should be granted.