People v. Johnson

MOSK, J.

I dissent.

In the style of Jacula Prudentum 1 the majority in this ease extend almost ad infinitum the “fruit of the poisonous tree” doctrine: the law enforcement officers unlawfully broke into the premises occupied by one Ciabattari; because they broke in unlawfully the arrest of Ciabattari was unlawful; because the arrest of Ciabattari was unlawful, the seizure of the stolen television set was unlawful; because the seizure of the set was unlawful, the arrest of Howard was unlawful; because the arrest of Howard was unlawful, the confession of Howard was unlawful; because Howard’s confession was unlawful, the arrest of Johnson was unlawful; because the arrest of Johnson was unlawful, the confession of Johnson was unlawful. The majority reap a prolific harvest of fruit from a tainted tree.

This beguiling rationale is superficially appealing because of its facile approach to an intricate problem; it reduces to a computer formula the dull, methodical, undramatic efforts of law enforcement officers to solve a series of major burglaries and to apprehend and convict the burglars. But, as Judge Edgerton observed long ago, causation for legal purposes is too elusive and complex for explicit formulation. (Edgerton, *559 Legal Canse (1924) 72 U.Pa.L.Rev. 211.) Here the fallacy in the majority thesis lies in its consideration of a multiplicity of episodes as if it were a unitary event.

I would treat the facts as comprising at least six severable incidents. In so doing, I find only one unlawful act committed by peace officers out of the series of relatively independent acts.

The officers went to Howard’s premises, seeking Howard. This was a lawful act.

Ciabattari answered the door and the officers without benefit of process or probable cause forcefully entered the premises he was then occupying, arrested him and seized a television set, which was in plain sight and which they identified as having been taken in one of the burglaries. This was unlawful.

Howard was arrested two hours later at an entirely different site. This was a lawful act.

At the sheriff’s station, the television set was pointed out to Howard, he was given adequate Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]) warnings, and he voluntarily confessed. As will be discussed, the confession after admonitions required by Miranda were given was lawful.

Howard, in his valid confession, implicated Johnson. A day later officers arrested Johnson. This was lawful. 2

Howard and Johnson were brought together by the officers. Both were given Miranda warnings, Howard for the second time. Johnson then confessed. This was lawful.

The expression “fruit of the poisonous tree” first appeared in Justice Frankfurter’s opinion in Nardone v. United States (1939) 308 U.S. 338, 341 [ 84 L.Ed. 307, 311 . 60 S.Ct. 266]. In enunciating that doctrine he pointed out, “Sophisticated argument may prove a causal connection between information obtained through illicit [activity] and the Government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.”

Some years later the Supreme Court again made it abundantly clear in Wong Sun v. United States (1963) 371 U.S. 471, 488 [ 9 L.Ed.2d 441, 455 , 83 S.Ct. 407 ], that “not . . . *560 all evidence is 1 fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Eather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” In other words, while Wong Sun provided a confession is presumptively tainted if generated by illegal activity, the presumption may be overcome and in that sense the taint is defeasible.

The majority of this court in People v. Sesslin (1968) 68 Cal.2d 418, 428 [ 67 Cal.Rptr. 409 , 439 P.2d 321 ], described what is necessary to constitute the attenuation mentioned in Nardone and in People v. Bilderbach (1965) 62 Cal.2d 757, 766 [ 44 Cal.Rptr. 313 , 401 P.2d 921 ], in this manner: “That degree of ‘attenuation’ which suffices to remove the taint from evidence obtained directly as a result of unlawful police conduct requires at least an intervening independent act by the defendant or a third party which breaks the causal chain linking the illegality and evidence in such a way that the evidence is not in fact obtained ‘by exploitation of that illegality.’ Consent by the defendant, if ‘sufficiently an act of free will to purge the primary taint of the unlawful [arrest] ’ (Wong Sun v. United States, supra, 371 U.S. at p. 486 [19 L.Ed.2d at p. 454]), may produce the requisite degree of ‘attenuation.’ ”

It is significant that the majority here misread and further constrict Sesslin by limiting the required attenuation to an intervening act of defendant (ante, pp. 551, 554), whereas Sesslin ( 68 Cal.2d at p. 428 ) requires merely an independent act by defendant or a third party. By the simple expedient of eliminating the italicized clause, the majority are able to unreasonably expand the fruit of the poisonous tree doctrine, and to exclude from consideration as an intervening act the admonitions given by the police officers. 3

*561 As a result, the majority treat Miranda altogether too cavalierly, as if the required admonitions are a mere trivial incident in the process of law enforcement. Yet Miranda has been generally interpreted as being of such paramount significance that it is alone “calculated to raise the standard of law enforcement in this country.” 4 When the specified warnings are given by police authorities, the “third party” referred to in Sesslin , there is a clear, distinguishable break in the proceedings. (Pe ople v. Stoner (1967) 65 Cal.2d 595, 600 [ 55 Cal.Rptr. 897 , 422 P.2d 585 ]; People v. Martin (1966) 240 Cal.App.2d 653, 656-657 [ 49 Cal.Rptr. 888 ].) A reviewing court can—and should—analyze what happened before the admonition, and what happened after. When the majority blithely dismiss the advice on constitutional rights as constituting no intervening change in circumstances, they denigrate the value and importance of Miranda in our emerging law of criminal practice and procedure.

I can conceive of few more “independent act[s] by the defendant or a third party which breaks the causal chain linking the illegality and [the] evidence” than advice by the captors to the suspect that he has a right to have counsel then and there, and that he may remain silent. Here we have Miranda warnings serving as the attenuation required by Nardone, Wong Sun, Bilderbach and Sesslin not once, but twice. There was not merely a single break in the causal chain, but a double fracture.

First, the suspect Howard was given proper warnings at the stationhouse. He waived his constitutional rights and confessed. It is unreasonably tenuous to attempt to relate this voluntary confession back to the earlier invasion of the premises occupied by an entirely different individual. As the court said in Jacobs v. Warden, Maryland Penitentiary (4th Cir. 1966) 367 F.2d 321 , 323 ,‘1 The fruit-of-the-poisonous-tree doctrine need not be extended to its seedlings. ’ ’

If that break in the causal chain is not adequate, though I deem it to be, still another Miranda admonition was given to Howard and to this defendant, Johnson, when they were together. Only thereafter did Johnson voluntarily confess.

After an initial error in breaking in on Ciabattari, the law enforcement officers here scrupulously adhered to the letter of Miranda in dealing with Howard and Johnson. They do not *562 need the therapeutic device of excluding confessions to deter future impropriety.

I would affirm the judgment.

McComb, J., and Burke, J., concurred.

Respondent’s petition for a rehearing was denied April 2, 1969. McComb, J., Mosk, J., and Burke, J., were of the opinion that the petition should be granted.

George Herbert, Jacula Prudentum: "For want oí a nail the shoe is lost, for want of a shoe the horse is lost, for want of a horse the rider is lost.” Benjamin Franklin in his Poor Pichará (1758) extended the roots of that poisonous tree: ". . . for the want of a rider the battle was lost, for the want of a battle the kingdom was lost. ...”

See Smith and Bowden v. United States (D.C.Cir. 1963) 324 F.2d 879 [ 117 App.D.C. 1 ], in which the court said: “Courts have gone a long way in suppressing evidence hut no case as yet has held that a jury should be denied the testimony of any eyewitness to a crime because of the circumstances in which his existence and identity was learned.” (Id. at p. 881.)

I find a marked similarity between the theory of the majority and the novel "tainted witness" doetz-ine. (See Ruffin, Out on a Limb of the Poisonous Tree: the Tainted Witness (1967) 15 U.C.L.A. L.Rev. 32.) Here the Johnson evidence was clearly not taizitcd; the majozdty appear to hold the witness, Howard, to have become tainted. Thus a human witness is treated analogously to inanimate evidence. While Ruffin proposed this unique theory, he himself conceded that the "argument that leads from improper interrogation may taint the discovered witness or his testimony has not been so favorably received." (Id. at p. 44.)

Goldstein, Miranda v. Arizona: a Reply to a Senator (1967) 5 Am.Crim.L.Q. 173.