stating the “general rule” that habeas corpus relief “will not 3 lie where the claimed errors could have been, but were not, raised upon a timely appeal 4 from a judgment of conviction”
How later courts described this case
- stating the “general rule” that habeas corpus relief “will not 3 lie where the claimed errors could have been, but were not, raised upon a timely appeal 4 from a judgment of conviction”
- explaining that a habeas 8 petition is procedurally barred when “the claimed errors could have been, but were 9 not, raised upon a timely appeal from a judgment of conviction”
- holding that habeas relief is unavailable if “the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction”
- “[t]he general 13 rule [is] that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of 14 special circumstances constituting an excuse for failure to employ that remedy, the writ will not 15 lie where the claimed errors could have been, but were not, raised upon a timely appeal from a 16 judgment of conviction.”
Written by the judges who cited it.
The opinion
CARTER, J.
I dissent.
There can be no question but that the record discloses a flagrant violation of petitioner’s constitutional rights. The majority opinion conveys the false impression that the officers went to petitioner’s home looking for a Mr. Levitt and accidentally saw the counterfeiting material and equipment. It is there stated that petitioner invited the officers in and that the entry of the police officers was peaceful. This is refuted by the statement in respondent’s brief that “In the instant case the officers had reason to believe that one Levitt had committed a felony and was in the premises. They had a right to break and enter in an endeavor to apprehend Levitt.” (Emphasis added.)
The majority opinion fails to give the complete factual background of this case. It fails to mention that at the instigation of the federal officers who made the search, petitioner was charged by a federal grand jury with the same crime as is here involved. Upon the trial, in the federal dis *765 trict court, be moved to suppress the evidence which had been seized in violation of his constitutional rights; that motion was granted by Judge Dal M. Lemmon and it was ordered that “The evidence other than the written statement, the photographs taken by the officers and the written consent” be delivered to the defendant. The evidence so ordered to be delivered to petitioner was not delivered to him but to police officers of the city and county of San Francisco who used it to institute the criminal action in which he was convicted. This petition for a writ of habeas corpus stems from the judgment of conviction entered in the Superior Court of the City and County of San Francisco. The charge against petitioner in the federal court was dismissed.
As Judge Lemmon pointed out in his opinion, that any invitation by defendant to the officers was in submission to authority rather than an intelligent and voluntary waiver of his right of protection from illegal arrest or unreasonable search and seizure. (Johnson v. United States, 333 U.S. 10 [ 68 S.Ct. 367 , 96 L.Ed. 436 ].) It is admitted by the prosecution that there was a scuffle when petitioner was handcuffed after asking if the officers had a search warrant. Petitioner’s so-called voluntary oral consent to a search was given while he was handcuffed; his written consent to such a search was also given while he was handcuffed. For all practical purposes, aside from any force used by the officers, the entry by the officers and their search of petitioner’s home was illegal and in violation of his constitutional rights. As Judge Lemmon stated, there was present coercion, both physical and psychological. Petitioner knew that incriminating evidence had been found; he was handcuffed when his consent to a thorough search was refused and later gave his consent. A consent given under such circumstances is not the consent which the law requires before a lawful search may be made. A forced consent is no consent at all. (United States v. Baldocci, 42 F.2d 567 .)
In California, due to an unfortunate line of decisions, evidence illegally obtained is admissible in the courts. With these holding I have always been in disagreement. (See dissenting opinion in People v. Rochin, 101 Cal.App.2d 140, 143 [ 225 P.2d 1, 913 ] ; reversed by United States Supreme Court, Rochin v. California, 342 U.S. 165 [ 72 S.Ct. 205 , 96 L.Ed. 183 , 25 A.L.R.2d 1396 ].) I have always taken the position that the decisions of this court have given aid and comfort to so-called officers of the law who are so lacking *766 in respect for the constitutional provisions here involved that they ruthlessly violate them with impunity. To them the constitutional right of privacy does not exist, and they make an empty, hollow mockery out of the oath which they took to support the Constitution.
The Fourth Amendment to the Constitution of the United States provides that ‘ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not he violated. ...” (Emphasis added.) The same provision is found in the California Constitution, article I, section 19. The federal courts have refused to allow this right to be violated. I wish I could say the same thing for the courts of California. We are told by a majority of this court that the action of the federal agents in taking possession of additional evidence discovered after their arrival was proper in view of the showing that such evidence was willingly disclosed to them by 'petitioner. This is in conflict with the decision of Judge Lemmon who held that the evidence was illegally obtained and ordered it returned to defendant. His decision on this issue is final and should be res adjudicata. It is ignored by the majority. The evidence is uncontradicted — in fact it is admitted — that at the time the search was made petitioner was handcuffed. It would appear to me that one who is handcuffed is not in a position to do anything willingly. We are also told that evidence was voluntarily disclosed by petitioner. This so-called voluntary disclosure was also made after he was handcuffed. In view of the foregoing it is perfectly obvious that the search and seizure were unlawful.
As Mr. Justice Douglas said in McDonald v. United States, 335 U.S. 451 [ 69 S.Ct. 191 , 93 L.Ed. 153 ] : “We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the *767 borne. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.” (Emphasis added.)
In this record I find no evidence that such an emergency existed as to excuse the procurement of a search warrant and Judge Lemmon so held. It is also my opinion that, under the fact presented here, to hold that petitioner “willingly” and “voluntarily” permitted the officers to search and seize evidence found in his home is a travesty upon the accepted meaning of those words.
The majority here disregards the mandate of both the federal and state Constitutions that the right of the people to be secure in their persons, houses, papers and effects shall not be violated, and sanctions the violation of these mandates on the ground of expediency.
It is indeed regrettable that the majority of this court has again seen fit to perpetuate a rule which permits peace officers to flout these constitutional mandates. This rule was first pronounced by this court in People v. Mayen, 188 Cal. 237 [ 205 P. 435 , 24 A.L.R. 1383 ], which was followed by the cases of People v. Gonzales, 20 Cal.2d 165 [ 124 P.2d 44 ], and People v. Kelley, 22 Cal.2d 169 [ 137 P.2d 1 ], Abuses which have been practiced under this rule have been declared by the Supreme Court of the United States to be of such gravity and so inhuman as to shock the conscience of mankind and that “this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities.” (See Rochin v. California, 342 U.S. 165 [ 72 S.Ct. 205 , 96 L.Ed. 183 , 25 A.L.R.2d 1396 ].) While the reversal of this court by the Supreme Court of the United States in the Rochin case was not based upon the Fourth Amendment to the Constitution of the United States but upon the due process clauses of the Fifth and Fourteenth Amendments to that Constitution, it cannot be denied that had the courts of California followed the federal rule with respect to excluding evidence obtained as the result of an unlawful search and seizure, the Rochin case would never have occurred and this court would have escaped the censure implicit in the following statement in the Rochin case at page 174; “In deciding this case we do not heedlessly bring into question decisions in many States dealing with essentially different, even if related, problems. We therefore put to one *768 side cases which have arisen in the State courts through use of modern methods and devices for discovering wrongdoers and bringing them to book. It does not fairly represent these decisions to suggest that they legalize force so brutal and so offensive to human dignity in securing evidence from a suspect as is revealed by this record. Indeed the California Supreme Court has not sanctioned this mode of securing a conviction. It merely exercised its discretion to decline a review of the conviction. All the California judges who have expressed themselves in this case have condemned the conduct in the strongest language.” It should be noted that the statement in the above excerpt that “the California Supreme Court has not sanctioned this mode of securing a conviction,” is not a correct statement, as the Rochin case was before this court on a petition for hearing after decision by the District Court of Appeal, Second Appellate District, and that petition was denied by the vote of every member of this court except Justice Schauer and myself who wrote dissenting opinions to the order of denial. (See People v. Rochin, 101 Cal.App.2d 140, 143, 149 [ 225 P.2d 1, 913 ].)
It cannot be denied that it lies within the power of a majority of this court to change the rule which permitted and encouraged the shocking and inhuman conduct of peace officers depicted in the Rochin case and in the case at bar. The courts of last resort of many other states have seen fit to adopt and follow the federal rule relating to the admissibility of evidence obtained as the result of an unlawful search and seizure.
On December 6, 1950, the Supreme Court of Delaware, in the case of Rickards v. State, overruled two prior decisions of that court and adopted the federal rule with respect to the inadmissibility of evidence obtained as a result of an unlawful search and seizure; that is, search without a search warrant. The decision of the Supreme Court of Delaware is reported in 6 Terr. (Del.) 573 [ 77 A.2d 199 ], In the course of its opinion in this case, the Supreme Court of Delaware stated:
‘ ‘ It would serve little purpose to catalog numerous decisions of State and Federal Courts discussing the rule. There is a direct conflict between the respective points of view; they are irreconcilable.
“Courts admitting such evidence, while recognizing the existence of the constitutional guarantees against unreasonable search and seizure and compulsory self-incrimination, nevertheless, hold that the protection of those guarantees does not *769 require evidence obtained in violation of them to be excluded. In answer to the argument that the guarantees have been violated by state officials, it is said that the state, itself, has committed no violation because it adopts as its acts only the legal acts of its officials, and that officials who illegally violate constitutional guarantees do so on their own initiative and not under the sponsorship of or for the benefit of the state. The remedy of the individual whose rights have been violated is stated to be a civil action against the official who has invaded his constitutional rights.
“Courts following the Federal rule adopt the view that the efficient prosecution of criminals cannot justify a deliberate invasion of the right of the citizen to be made secure against the violation of specific constitutional guarantees, and that the suggested remedy of a civil action is as a practical matter no remedy at all. The Federal rule is a practical attempt to help preserve the constitutional guarantees.
“We prefer the ride followed in the Federal courts. We conceive it the duty of the courts to protect constitutional guarantees. The most effective way to protect the guarantees against unreasonable search and seizure and compulsory self-incrimination is to exclude from evidence any matter obtained by a violation of them.
“We believe that as long as the Constitution of this state contains the guarantees to the citizen referred to, we have no choice but to use every means at our disposal to preserve those guarantees. Since it is obvious that the exclusion of such matters from evidence is the most practical protection, we adopt that means. It is no answer to say that the rule hampers the task of the prosecuting officer. If forced to choose between convenience to the prosecutor and a deprivation of constitutional guarantees to the citizens, we in fact have no choice. Moreover, within constitutional limits, the Legislature may change the rules defining the limits of legal police action. It may well be that the Legislature will desire to reconsider Section 5173 and Section 5683 in the light of modern needs.
“We, accordingly, are of the opinion that State v. Chuchola, supra [ 2 W.W.Harr. 133 ( 120 A. 212 )], and State v. Episcopo, supra [ 7 W.W.Harr. 439 ( 184 A. 872 )], were erroneously decided and overrule them. The proper rule to be applied in the criminal courts of this state is that evidence obtained by a violation of constitutional guarantees is inadmissible at the trial of the person whose guarantees have been *770 violated, if timely objection is made thereto. We suggest the adoption of an appropriate rule by the Court of General Sessions to cover the subject. Cf. Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.
“The conviction of the plaintiff in error is reversed.” (Emphasis added.)
In view of the foregoing I would grant the writ here prayed for and discharge the petitioner from custody.
Schauer, J., concurred in the reasoning and in the conclusion stated by Justice Carter.