Petition — California v. Wilson

Supreme Court brief1984

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JAN B@ 1904

83-1222 ALEXANOER L. STEVAS.

a Ae ce

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1983

THE PEOPLE OF THE STATE OF

CALIFORNIA,

Petitioner,

Vv.

CLEROW WILSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

ROBERT H. PHILIBOSIAN

District Attorney of

Los Angeles County

HARRY B. SONDHEIM

Head, Appellate Division

RODERICK W. LEONARD

Deputy District Attorney

849 South Broadway

llth Ploor

Los Angeles, California

90014-3570

Telephone: (213) 974-5922

Attorney for Petitioner

No.

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1983

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Vv.

CLEROW WILSON,

Respondent.

QUESTION PRESENTED FOR REVIEW

Is there a “seizure” within

the meaning of the Fourth Amendment

when a police officer approaches a

traveler at an airport, identifies

himself as a police officer, requests

a minute of time to talk to that

person to which the person agrees,

and then explains that he is

conducting a narcotics investigation

and has information that the person

is carrying a lot of drugs.

LIST OF PARTIES TO THE PROCEEDING

IN THE CALIFORNIA SUPREME COURT

1. Clerow Wilson,

represented by Paul Moore, II, was

the defendant in the trial court and

petitioner before the California

Court of Appeal and Supreme Court of

the State of California.

2. The Superior Court of

Los Angeles represented by the Office

of County Counsel, Los Angeles

County, was the respondent in the

appellate courts below. No

appearance was made in the appellate

a“

courts below on behalf of respondent

Superior Court of Los Angeles County.

3. The People of the State

of California, represented by the

Office of the Los Angeles County

District Attorney, was plaintiff in

the trial court and the ceal party in

interest in the appellate courts

below.

TABLE OF CONTENTS

QUESTION PRESENTED FOR

REVIEW

LIST OF PARTIES TO THE

PROCEEDING IN THE

CALIFORNIA SUPREME COURT

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT OF THE CASE

Introduction

Facts

Procedural History

REASON FOR GRANTING THE

PETITION FOR WRIT OF

CERTIORARI

WHERE A POLICE OFFICER,

ENGAGED IN NARCOTICS

SUPPRESSION, APPROACHES

AN INDIVIDUAL,

IDENTIFIES HIMSELF, ASKS

FOR A MINUTE OF THE

PERSON'S TIME AND UPON

RECEIVING AN AFFIRMATIVE

RESPONSE ADVISES THE

INDIVIDUAL HE IS

CONDUCTING A NARCOTICS

INVESTIGATION AND HAS

INFORMATION THE PERSON

IS CARRYING A LOT OF

ORUGS, THERE IS NO

SEIZURE OF THE

INDIVIDUAL UNDER THE

FOURTH AMENDMENT OF THE

UNITED STATES

CONSTITUTION

CONCLUSION

16-26

26-27

Pay

TABLE OF AUTHORITIES

Cases Pages

California v. Steward (1966) 6

364 U.8. 436, 66 S.Ct.

1602, 16 L.Ed.2d 694

Cox Broadcasting Corp. v. 6

Cohn (1975) 420 U.S. 469,

95 S.Ct. 1029, 43

L.Ed.2d 328

Dunaway v. New York (1979) ste Ge

442 U.S. 200, 99 S.Ct.

2245, 60 L.Ed.2d 824 |

Florida v. Royer (1983) 15, 17,

eo eee ee 28, 2,

229, 103 S.Ct. 1319 22

Michigan v. Clifford (Filed 6

January ll, 1984, __ U.S.

, 84 Los Angeles

Daily Journal, D.A.R.

185

Mills v. Alabama (1966) 384 6

US. 214, 86 8.Ct. 1434,

16 L.Ed.2d 484

Miranda v. Arizona (1966) 6

384 U.S. 436, 16 L.Ed.2d

694, 10 A.L.R. 974

People v. Lilienthal (1978) 5

(1978) 22 Cal.3d 891

iii

People v. Shuey (1975)

13 Cal.3d 835

@ People v. Triggs (1973)

8 Cal.3d 884

Reid v. Georgia (1980) 4432 15, 18,

U.S. 438, 65 L.Ed.2d 890, 19

100 S.Ct. 2752

Schneckloth v. Bustamante 23

(1973) 412 U.S. 218, 93

S.Ct. 2041, 36 L.Ed.2d

854

Terry v. Ohio (1968) 392 eo ee 3

0.8. i 22, 25

United States v. Mendenhall LSo Ube

(1980) 446 U.S. 544, 64 20, 22

L.Ed.2d 497, 100 s.Cce,.

1870

Wilson v. Superior Court 4, 5,

(1983) 34 Cal.3d 777, 22

195 Cal.Rptr. 671, 670

P.2d 325

Constitutions

United States Conscitution

3 Fourth Amendment vi

Fourteenth Amendment vi, vii

Statutes

28 U.S.C. §1257(3) 5

California Health and

Safety Code

§11350(a) 13

§11357(a) 13

Rule of the Supreme

Court of the United

States

Rule 20.4 6

Rule 29.1 6

—

OPINIONS BELOW

The opinion of the Supreme

Court of California is reported at 34

Cal.3d 777, 195 Cal.Rptr. 671, 670

P.2d 325. (See Appendix A.) The

Opinion of the California Court of

Appeal, Second Appellate District,

Division 2 was reported in 134

Cal.App.3d 1062. (See Appendix B.)

JURISDICTION

The opinion of the Supreme

Court of California was filed on

October 20, 1983. A timely Petition

for Rehearing was filed in the

Supreme Court of California. The

order denying the Petition for

Rehearing was filed by the Clerk of

the Supreme Court of California on

November 23, 1983. (Appendix C.)

This Court's jurisdiction is invoked

under 28 U.S.C. Section 1257(3).1

1 The decision of the California

Supreme Court suppressing all the

narcotics in the case at bar which

gave rise to all the charges against

Mr. Wilson was based exclusively upon

an interpretation of the United

States Constitution. (Wilson v.

Superior Court, supra, 34 Cal.3d at

791.) That decision by California's

highest state court precludes further

litigation on the federal claim, the

finality of which now becomes

conclusive. All that remains is

dismissal of the case by the trial

court since the Petitioner no longer

has any relevant evidence to proceed

with the prosecution. Once the

evidence is suppressed dismissal

follows and Petitioner is precluded

from further appellate review based

on both (1) law of the case (People

v. Shuey (1975) 13 Cal.3d 835, 841)

and (2) stare decisis. (People v.

Triggs (1973) & Cal.3d 884, 890-891

overuled on other grounds in People

v. Lilienthal (1978) 22 Cal.3d 891, ©

896].) This Court recognizes that

effective finality of judgment by a

eas

—

The instant Petition for Writ of

Certiorari is filed within 60 days of

the order of the Supreme Court of

California denying rehearing. (Rules

of the Supreme Court of the United

States, Rule 20.4; Rule 29.1.)

state high court bestows jurisdiction

upon this Court. (Cox Broadcasting

Corp. v. Cohn (1975) 420 U.S. 469,

479-481; 95 S.Ct 1029, 1038-1039; 43

L.Ed.2d 328 on remand 214 S.E.2d 530,

234 Ga. 67; Miranda v. Arizona (1966)

384 U.S. 436, 498, n. 71; 86 S.Ct.

1602, 1640, n. 71; 16 L.Ed.2d 694, 10

A.L.R. 974, rehearing denied 385 U.S.

890, 87 S.Ct. 11, 17 L.Bd.2d 121;

California v. Steward (1966) (decided

with Miranda v. Arizona, supra) 384

U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694; Mills v. Alabama(1966) 384 U.S.

214, 86 S.Ct. 1434, 16 L.Ed.2d 484.)

It appears that this Court has

recently granted jurisdiction in a

case procedurally comparable to the

case at bar. (Michigan v. Clifford,

et al. (Filed January 11, 1984, ___

U.S. _. 84 Los Angeles Daily

Journal D.A.R. 183.) Thus, this

Court can properly accept

jurisdiction in the case at bar.

CONSTITUTIONAL PROVISIONS

bs INVOLVED

United States Constitution @

Amendment IV provides 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."

United States Constitution

Amendment .XIV, Section 1 provides

that:

"All persons born or

naturalized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United States

and of the state wherein they

reside. No State shall make or

enforce any law which shall

abridge the privileges or ,

immunities of citizens of the @

United States; nor shall any

State deprive any person of

life, liberty or property,

without due process of law; nor

deny to any person within its

jurisdiction equal protection of

the laws."

Vii

STATEMENT OF THE CASE

Introduction

This case concerns an )

airport search whereby a police

officer, acting upon information

which did not provide probable cause

for detention, approached Clerow

Wilson at the Los Angeles

International Airport and asked if he

“might have a minute of his time."

Upon receiving an affirmative

response, the officer advised Mr.

Wilson that he had received

information that Mr. Wilson would be

arriving from Florida carrying a lot

of drugs, and asked consent to search

Mr. Wilson's luggage. Consent was

given and narcotics were recovered

from Mr. Wilson's attache case. ©

Facts

On March 10, 1981 Officer

Roy Kaiser of the Los Angeles Police

Department was assigned to an

undercover narcotics operation at the

Los Angeles International Airport.

(Reporter's Transcript [hereinafter

"RT"} 115.) Officer Kaiser had

worked exclusively narcotics

Suppression at the Los Angeles

International Airport for the past

four and a half years. (RT 167.) He

testified to extensive training and

experience. (RT 115.) Officer

Kaiser was on that date generally

monitoring the inbound flights from

Florida which, based upon his

experience, he recognized served as a

conduit to channel illegal drugs into

‘Z

California. (RT 119-120.) Officer

Kaiser had prior information that Mr.

Wilson might be arriving from Florida

on that date (RT 120) but he had not

expected to observe Mr. Wilson

deplane from the particular Pan

American Miami-Los Angeles flight

which arrived at approximately 11:30

Or 11:45 a.m. (RT 116-117, 119-120,

127-128.) When Mr. Wilson deplaned

he was recognized by Officer Kaiser.

(RT 128.) Wilson was carrying an

attache case and was accompanied by

an associate who was carrying a box

which contained the name "Flip

Wilson". (RT 119, 130.) Officer

Kaiser observed Mr. Wilson and the

associate look around inside the

arrival area. The associate made eye

fe)

contact with the officer. (RT

120-121.) Officer Kaiser testified

that this eye contact of looking

around after deplaning from the

Flight was consistent with that of

persons he had arrested in the past

for transporting narcotics. (RT

121.) Officer Kaiser followed the two

as they walked normally through the

concourse (RT 138-139) and observed

Mr. Wilson's associate look back over

his shoulder in the direction of the

officer and then immediately turn

back and appear to speak to Wilson

who turned his head to look back in

the direction of the officer. (RT

122.) Mr. Wilson and the associate

were met at the end of the concourse

by a woman who was subsequently

determined to be Mr. Wilson's wife.

(RT 122, 140.) The associate handed

Mr. Wilson the box which was placed

in a car parked by the curb and while

the associate walked to the baggage

Claim area the other two remained by

the car. (RT 122-123.) Officer

Kaiser then approached Mr. Wilson who

was then standing by the rear of the

open trunk, displayed his police

identification, told him he was a

police officer, and asked if he might

have a minute of his time. Mr.

Wilson's response was "Sure", “What

seems to be the problem?" (RT 124,

150.) Officer Kaiser told Wilson

that he was conducting a narcotics

investigation and that he had

information that Wilson would be

—

arriving on that date from Florida

and would be carrying a lot of drugs.

(RT 124, 150.) The trial court

excluded information received by

Officer Kaiser from his partner,

Detective Frederick, that Mr. Wilson

was coming from Florida transporting

a large amount of drugs. (RT

146-147, 176-177.) Officer Kaiser

did testify, however, that he had not

received other information that

Mr. Wilson was engaged in illegal

activity. (RT 1238.) Officer Kaiser

asked Mr. Wilson if he could search

his luggage. Wilson responded

"Sure". "I don't have any drugs that

I know of. Go ahead and search.” (RT

124-125.) Mr. Wilson placed the

attache case on the rear seat of the

vehicle and opened it for the officer

(RT 125, 153) who searched the case

and retrieved small amounts of

hashish (RT 126) and cocaine. (RT

L277.)

Procedural History

Clerow Wilson was arrested

and charged with possession of

illegal narcotics in violation of

California Health and Safety Code

sections 11350(a) and 11357(a). The

defense made a motion in the trial

court to suppress the evidence. The

motion was denied based upen the

trial court's opinion that no illegal

detention had occurred. (RT 251.)

The defense then filed a

Petition for Writ of Mandate in the

Court of Appeal of the State of @

SS ee

Tos.

California, Second Appellate

District, Division One. On August

20, 1982 that Court in a split

two-one decision, certified for

publication (Appendix B; 134

Cal.App.3d 1062), held that the

police conduct was lawful under

authority of both the United States

Constitution and the Constitution of

California.

The defense then petitioned

for a hearing in the Supreme Court of

California which, on October 30,

1983, in a unanimous opinion

(Appendix A; 34 Cal.3d 777),

overruled the decision of the courts

below, and held that the narcotics

were seized in violation of the

Fourth Amendment of the United States

Constitution. The Supreme Court of

California's opinion, which was based |

entirely upon its interpretation of ©

the Fourth Amendment of the United

States Constitution, as applied to

the states (34 Cal.3d at 791), held

that Police Officer Kaiser had

illegally detained Mr. Wilson and

therefore ordered the narcotics which

had been recovered to be suppressed.

(Id.) The Supreme Court of

California based its decision upon

its interpretation of this Court's

opinions in Reid v. Georgia (1980)

448 U.S. 438, 65 L.Ed.2d 890, 100

S.Ct. 2752; United States v.

Mendenhall (1980) 446 U.S. 544, 64

L.Ed.2d 497, 100 S.Ct. 1870; and

Florida v. Royer (1983) ___ U.S. __, eo

75 L.Ed.2d 229, 103 S.Ct. 1319. (See

@ Wilson v. Superior Court, supra at 34

REASON FOR GRANTING THE

PETITION FOR WRIT OF

CERTIORARI

WHERE A POLICE OFFICER,

ENGAGED IN NARCOTICS SUPPRESSION,

APPROACHES AN INDIVIDUAL, IDENTIFIES

HIMSELF, ASKS FOR A MINUTE OF THE

PERSON'S TIME AND UPON RECEIVING AN

AFFIRMATIVE RESPONSE ADVISES THE

INDIVIDUAL HE IS CONDUCTING A

NARCOTICS INVESTIGATION AND HAS

INFORMATION THE PERSON IS CARRYING A

LOT OF DRUGS, THERE IS NO SEIZURE OF

THE INDIVIDUAL UNDER THE FOURTH

AMENDMENT OF THE UNITED STATES

CONSTITUTION.

This Court has consistently

upheld the right of police to

approach and address questions to

individuals in a public place.

(Dunaway v. New York (1979) 442 U.S.

200, 210, note 12; Terry v. Ohio

(1968) 392 U.S. 1, 31, 32-33, 34;

United States v. Mendenhall, supra at

555.)

The lead opinion by this

Court in United States v. Mendenhall

recognized that no illegal “seizure”

occurs even where an individual at an

airport is asked by a law enforcement

officer for an airline ticket and

identification.

In Florida v. Royer, supra,

where police approached the defendant

at an airport, identified tnemselves,

asked for a moment of time to speak

with him, took his ticket end

identification, and asked him to

accompany them to a police room

without returning the ticket and

driver's license, it was recognized

that “had Royer consented to a search

on the spot, the search could have

been conducted with Royer present in

the area where the bags were

retrieved by Officer Johnson and any

evidence recovered would have been

admissible against him.” (Id., 75

L.Ed.2d at 241.)

Reid v. Georgia, supra,

did not reach the issue of whether

the contact and questioning of a

citizen at an airport was a seizure

within the meaning of the Fourth

Amendment. In Reid the petitioner

had deplaned and a DEA agent

approached, identified himself as a

federal narcotics agent, and asked to

see airline ticket stubs and

identification. The agent appeared

to obtain consent for the search of

the petitioner and his bags. However,

on the way to the DEA office

petitioner dropped his bags and ran

from the officers. This Court held

that the introduction of the evidence

of the cocaine seized from the bag

violated petitioner's Fourth

Amendment rights. The California

Supreme Court recognized in its

Opinion in the instant case, Wilson

v. Superior Court, Supra, that “Reid

does not provide an answer to the

detention issue. Although the

holding that the circumstances known

to the officer before he approached

the two suspects did not rise to the

level of a ‘articulable suspicion',

the Reid court did not directly

address the issue of whether the

officers’ conduct amounted to a

‘detention’ of the suspect or, if it

did, at what point did the detention

begin ...." (Id., 34 Cal.3d at 787.)

In the encounter in the

case at bar, Officer Kaiser did not

ask for nor obtain tickets nor

identification. Officer Kaiser asked

for a minute of Mr. Wilson's time.

He identified himself. This was

permissible. (Florida v. Royer,

supra, 75 L.Ed.2d at 236; United

States v. Mendenhall, supra, 446

U.S. 544, 555, 64 L.Ed.2d 497, 100

S.Ct 1870.) Mr. Wilson was not

detained, not even momentarily. He

was advised of the narcotics

investigation and information

respecting his carrying a lot of

drugs. Mr. Wilson consented to

search for narcotics. It is

submitted that there was no

detention.

"If there is no detention

- no seizure within the meaning of

the Fourth Amendment - then no

constitutional rights have been

infringed." (Florida v. Royer,

Supra, 75 L.Ed.2d at 236.)

No detention occurred in

the case at bar. It was stated by

the California Supreme Court that

"... Detective Kaiser did not detain

Wilson, for federal constitutional

“>

ee ee ee

purposes, merely by approaching him,

ident fying himself as a police

a minute of his time". (Wilson v.

Superior Court, supra at 790; see

also Dunaway v. New York, supra, 442

U.S. 200, 210, note 12; Terry v.

Ohio, supra, 392 U.S. 1, 31, 32-33,

34; United States v. Mendenhall,

Supra at 555.) Royer v. Florida,

supra, suggests that something more

than merely approaching an

individual, asking for a minute of

his time and identifying oneself as a

police officer converts an encounter,

which is without constitutional

constraint, into a seizure requiring

some level of objective justification

. ] (Florida v. Royer, supra, 103 S.Ct.

& te

“ig

es" >

at 1324, 1326). This Court has held

that a police officer can properly

seek consent to search and need not

inform the individual of a right to

refuse that consent (Schneckloth v.

Bustamonte (1973) 412 U.S. 218, 231;

93 S.Ct. 2041, 2049-2050, 36 L.Ed.2d

854). In light of these authorities,

it is submitted that a police

officer can identify himself as a

narcotics officer and ask for consent

to search an individual who has

agreed to a temporary encounter with

the police officer, even though the

Clear implication of the request for

consent is that the officer is

searching for narcotics. The

California Supreme Court, however,

concluded that where the police

officer expressly stated that he

sought consent to search because he

had information that the person whose

consent he sought had narcotics, the

encounter became a seizure within the

meaning of the Fourth Amendment.2 We

submit this is a distinction without

a difference and that the

Constitution does not prohibit a

police officer from expressly stating

that which is implied by the fact

2 ". . . Once the officer advised

Wilson that he had informacion that

Wilson was carrying a lot of drugs,

the entire complexion of the

encounter changed and Wilson could

not help but understand that at that

point he was the focus of the

officer's particularized suspicion.

Under these circumstances - and

particularly in the absence of any

clarifying advice from the officer

explaining to Wilson that he was, in

fact, free to drive away if he

desired - no reasonable person would

have believed that he was free to

leave." (34 Cad.3d at 791.)

oe. ;

PRS tens? YD

Ah. oes © ee oP ees

that he is a narcotics officer

seeking consent to search.

A distinction must be drawn

between an encounter and a seizure.

This Court has consisten.ily stated

that “only when the officer, by means

of physical force or show of

authority, has in some way restrained

the liberty of a citizen may we

conclude that a seizure has occurred”

(Terry v. Ohio, supra, 392 U.S. at

19, note 16; see also id. at 34

(White J. concurring); id., at 3l,

32-33 (Harlan J. concurring). It is

submitted that when a narcotics

officer identifies himself as such

and requests consent to search no

“show of authority” occurs which

restrains an individual so as to

conclude that a seizure, rather than

an encounter, has occurred. No

physical force or show of authority

occurred in the case at bar so as to

restrain petitioner when Officer

Kaiser identified himself as a police

officer and informed petitioner of

the reason for the encounter. It is

submitted that the encounter in the

case at bar is not a seizure and

therefore the evidence obtained

incident thereto is admissible.

CONCLUSION

For the reasons set forth

in this Petition Petitioner

respectfully requests that a Writ of

<. :

Certiorari issue to the Supreme Court

of California to review that Court's

decision to suppress narcotics seized ©

from respondent at the Los Angeles

International Airport.

Respectfully submitted,

ROBERT H. PHILIBOSIAN

District Attorney of

Los Angeles County

HARRY B. SONDHEIM

Head, Appellate Division

RODERICK W. LEONARD

Deputy District Attorney

Attorney for Petitioner

2°?

DECLARATION OF SERVICE ON THE COURT

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES per

The undersigned, Roderick

W. Leonard, Deputy District Attorney,

is a member of the bar of this Court.

On January 21, 1984, I placed in the

United States mail, via U. S. Postal

Service Express mail, with postage

prepaid, a box containing forty

copies of the instant brief and

appendices thereto accompanied by an

entry of appearance addressed as

follows:

Office of the Clerk

United States Supreme Court

Number 1 First Street, N. E.

Washington DC 20543

The instant Petition for Writ

of Certiorari and appendices were

thus mailed on January 21, 1984 which @

is within the permitted time.

ee re ee ee ee ee ee ee ee ee ee

DECLARATION OF SERVICE BY MAIL

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES me

I, the undersigned, hereby

declare under penalty of perjury,

that the following is true and

correct:

I am a citizen of the

United States, over eighteen years of

age, not a party to the within cause

and employed in the Officer of the

District Attorney of Los Angeles

County, and a member of the bar of

this Court, with principal offices

located at 849 South Broadway, Los

Angeles, California 90014-3570; that

the District Attorney is the

Petitioner in the above-entitled

Matter. On January 21, 1984, I

served three copies of the forecoing

on the following persons and Court by

depositing true copies thereof,

enclosed in a sealed envelope with

first class postage thereon fully

prepaid in the United States mail in

the City of Los Angeles in compliance

with Supreme Court Rule 28, paragraph

three, addressed as follows:

CALIFORNIA SUPREME COURT

3580 WILSHIRE BLVD.

ROOM 213

LOS ANGELES CA 90010

ATTORNEY GENERAL'S OFFICE

3580 WILSHIRE BLVD.

LOS ANGELES CA 90010

PAUL F. MOORE II, ESQ.

2049 CENTURY PARK EAST

SUITE 3430

LOS ANGELES CA 90067

COURT OF APPEAL

SECOND APPELLATE DISTRICT

3580 WILSHIRE BLVD.

LOS ANGELES CA 90010

HON. EDWARD A. HINZ

SUPERIOR COURT JUDGE

825 MAPLE AVENUE

TORRANCE CA 90503

COUNTY COUNSEL

648 HALL OF ADMINISTRATION

500 W. TEMPLE ST.

¢ LOS ANGELES CA 90012

RODERICK W. LEONARD

No.

_-—<——— =

OF THE UNITED STATES

October Term, 1983

THE PEOPLE OF THE STATE OF

CALIFORNIA,

Petitioner,

Vv.

CLEROW WILSON,

Respondent.

APPENDICES TO

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF CALIFORNIA

ROBERT H. PHILIBOSIAN

District Attorney of

Los Angeles County

HARRY B. SONDHEIM

Head, Appellate Division

RODERICK W. LEONARD

Deputy District Attorney

849 South Broadway

llth Floor

Los Angeles, California

90014-3570

Telephone: (213) 974-5922

Attorney for Petitioner

EXHIBIT A

{L.A. NO. 31668, Oct. 20, 1983.]

CLEROW WILSON, Petitioner, v. THE

SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent; THE PEOPLE, Real Party in

Interest.

OPINION

KAUS, J. - In this writ proceeding,

Clerow (Flip) Wilson seeks review of

a trial court ruling which denied his

motion to suppress evidence obtained

as a result of police activity at the

Los Angeles International Airport.

(Penal Code, § 1538.5, subd. (i).)

Wilson contends that the police

conduct in question violated the

search and seizure provisions of both

the federal and state Constitutions

and that the evidence should

therefore be excluded from his

1A he

[34 Cal.3d 780)

impending trial. In response, the

People maintain (1) that the police

actions was proper under both federal

and state standards and (2) that even

if the conduct violated state search

and seizure principles, the evidence

may not be excluded on that basis in

light of article I, section 28,

subdivision (d) of the California

Constitution, the so-called

"Truth-in-Evidence” provision enacted

as part of an initiative measure -

Proposition 8 - adopted at the June

1982 election.

As explained, we conclude

that the evidence at issue was

obtained in violation of the federal

Constitution and must be suppressed

on that basis. Accordingly, we need

not reach the other issues raised by

the parties.

At the hearing on the

motion to suppress, the arresting

officer, Detective Roi Kaiser and

Wilson each testified to the events

leading up to the discovery of the

challenged evidence. Although the

two agreed on a number of general

facts surrounding the discovery,

their testimony conflicted sharply

with respect to many important

details. Since the trial court

resolved this matter in favor of the

prosecution, for purposes of this

proceeding we view the record in the

light most favorable to the People's

position. In the interest of

completeness, however, we note the

main points of conflict shown by the

record.

At the time of the events

in guestion - March 10, 1981 -

Detective Kaiser, a Los Angeles

police officer, had been working as

ar undercover narcotics agent at the

Los Angeles International Airport for

four and a half years, monitoring

inbound flights from Florida in an

attempt to discover persons

transporting narcotics into

California. Kaiser testified that

about 11:30 a.m. on that day, he and

his partner, Deputy Gary Frederick -

who was also in plain clothes - went

to the Pan American Airlines arrival

area to monitor the arrival of a

flight from Miami. As the passengers

left the plane and entered the

terminal, Kaiser saw Wilson with

another man, later .dentified as

Wilson's nephew, Rashon. Kaiser

testified that he was not expecting

to see Wilson arrive on that flight,

but that he recognized him from his

television appearances. Wilson was

carrying an attache case and Rashon

was carrying a box bearing the name

"Flip Wilson.” Kaiser testified that

he noticed nothing unnsual about

these items.

As Kaiser watched, both

Wilson and Rashon looked around the

waiting area. Kaiser stated that at

this time he obrerved nothing unusual

about Wilson, but that Rashon made

"eye contact” with him on two

occasions, an occurrence which was

consistent with the behavior of

persons he had arrested in the past

for transporting narcotics. Although

acknowledging that

{34 Cal.3d 781]

Rashon could have simply been looking

for someone who was meeting the

plane, Kaiser testified that it did

not appear that way to him. He

conceded, however, that he could not

articulate any objective basis for

differentiating the “eye contact” of

drug couriers from that of other

persons.

As Wilson and Rashon walked

at a normal pace from the arrival

area down a concourse to the street,

Kaiser followed about 10 feet behind.

Midway down the 200-foot concourse,

Rashon turned his head back in

Kaiser's general direction and

immediately turned back to speak to

Wilson, who then also turned his head

back in the general direction of

Kaiser. Neither man made eye contact

with Kaiser at this time.

At the end of the

concourse, Wilson and Rashon were met

by Wilson's wife and all three walked

outside to Wilson's car which was

parked at the curb. Rashon handed

the box he was carrying to Wilson,

who put it and the attache case in

the rear seat of the passenger

compartment. Rashon then went to the

baggage claim area to retrieve their

luggage.

A few minutes later, as

Rashon left the baggage claim area

with two pieces of luggage, Kaiser

and Frederick approached him.

Frederick identified himself as a

police officer and had a brief

conversation with Rashon which Kaiser

apparently did not overhear.

Kaiser then approached

Wilson, who - according to Kaiser -

was then standing at the open trunk

of the car.! Kaiser testified that

at that point he “had a slight

suspicion” that Wilson “possibly” was

involved in criminal activity, and

that his purpose in speaking to

Wilson was to request permission to

search his luggage. Kaiser stated

that as he reached Wilson, he 3

displayed his police identification,

told him that he was a police officer

1 Wilson testified that when

Kaiser first approached him, he was

seated in the driver's seat of the

car and Kaiser leaned in through an

open rear door. ,

BA .

kaahe

and asked if he “might have a minute \

of his time.” When Wilson responded,

"Sure," Kaiser testified that "I

advised Mr. Wiison that I was

conducting a narcotics investigation,

and that we had received information

that he would be arriving today from

Florida carrying a lot of drugs."

(Italics added.)2

On cross-examination,

Kaiser disclosed that he had obtained

the information to which he referred

from his partner, Frederick, who, in

turn, had learned of it from another

person. On defense counsel's motion,

the court ruled that if the People

poy e

According to Wilson, Kaiser

“stated that he had received a call

from a young black man saying that I

would be arriving, and that I would

be carrying a large quantity of

narcotics.

1 ae il

intended to rely on such information

to justify the

{34 Cal.3d 782)

officer's actions, Frederick would be

required to testify as to the nature

and source of the information. (See,

e.g., People v. Madden (197U) 2

Cal.3d 1017, 1021 [88 Cal.Rptr. 171,

471 P.2d 971); Remers v. Superior

Court (1970) 2 Cal.3d 659, 666-667

{87 Cal.Rptr. 202, 470 P.2d 11);

People v. Harvey (1958) 156

Cal.App.2d 516, 523-524 (319 P.2d

689] (conc. opn. of Dooling, J. and

Draper, J.).) When the People

indicated that they did not intend to

cali Frederick as a witness, the

court held that the prosecution could

not rely on such information to

support the validity of the police

10A

conduct. The People have not )

challenged that ruling in this

proceeding. 3

After having told Wilson

that he had information that Wilson

was carrying "a lot of drugs,” Kaiser

asked if he could search the two

pieces of luggage that Rashon had

just set on the curb and the box

3 A question was raised at oral

argument as to whether the trial

court's ruling on the so-called

Pavey Magen issue was consistent

wit eral, as well as state, law.

The parties have not provided any

relevant authorities on the question,

and inasmuch as the People did not

raise any objection to the ruling

either at the suppression hearing or

in any of their papers filed in this

proceeding, we have no occasion to

address this academically intriguing

question in this case. (Cf.

v. (1978) 21 Cal.3a °

547- 146 Cal.Rptr. 732 579 P.2d

1048) (defendant may not raise

SERPS ortygteesttess J

ly preserved) .)

lla

: P . : ait ‘ «

_ -_ ee 8 i i, Rh ee i, i le ee. Py

which had been placed inside the car.

Wilson allegedly responded, “Sure, I

don't have any drugs that I know of.

Go ahead and search."4 When Kaiser

went to the rear passenger seat, he

Saw the attache case and asked Wilson

for permission to search it. Kaiser

testified that Wilson then said:

"There should only be some papers in

there, but you can go ahead and look,

if you'd like."5

4 Wilson testified that when he

was first approached by Kaiser, the

officer informed him that he had a

search warrant for his luggage.

Wilson stated that because he had an

important engagement and was very

pressed for time, he told his nephew

to cooperate with the search of the

luggage.

5 Wilson testified that when

Kaiser requested permission to search

the attache case, the following

colloquy occurred: “I said,'I would

prefer that you didn't.’ [4] And he

said, ‘Are you telling me that I

cannot search the attache case?’ [4]

12a

‘

Wilson then placed the case

on the rear seat and opened it.

Kaiser searched through the case and

retrieved a glass vial from a pocket

on the inside of the lid of the

case. At that point, Wilson

allegedly stated: “That's just a

little bit of has oil in there."

After examining the bottle

and concluding that it did contain

1 said, ‘I would prefer that you

didn't.’ [4] He said, ‘Are you

refusing to allow me to search the

attache case?’ [4] And I said, ‘Sir,

I am telling you that I would prefer

that you didn't.' [4%] And he said, 'I

am not concerned if you're carrying

just a small stash for your personal

use. I'm only concerned with a large

quantity.’ [4] And he said, ‘I've

been to Hollywood parties where they

had cocaine on the tables by bowls,

and I did not make arrests.’ ... SO

then I - ... I said, ‘Since you put

it on those terms, okay.’ [4%] So I

turned around in the seat, and I

leaned over the back of the driver's

seat, and I opened the attache case

and I raised the lid."

13A

has oil, Kaiser asked Wilson “if he

would mind accompany me back to the

nar-

(34 Cal.3d 782]

cotics office situated at the

airport ...." Kaiser testified that

at that point Wilson was actually

under arrest, although Kaiser had not

so informed him. Wilson asked if

they could drive to the office in his

car so he could remove it from the

Street, and Kaiser agreed. At the

office, Kaiser continued his search

of the luggage and found another

small glass vial, containing a

substance resembling cocaine, inside

an eyeglass case in another pocket of

the attache case. Wilson was then

formally placed under arrest and

taken into custody.

144

i CNP ht ae Ce VORB ee ee

RA he Nats oe ee Reagent eT et

At the conclusion of the »

suppression hearing, defense counsel

argued that Wilson's testimony

indicated that he had not voluntarily

consented to the search as Kaiser

Claimed, but that even if Kaiser's

version of the events was accepted in

full, the evidence should still be

Suppressed because Kaiser's testimony

itself established that Wilson had

been detained without adequate

justification when the claimed

consent was given. Defense counsel

relied on both federal and state

authorities to support his illegal

detention claim, though he emphasized

the more recent state precedents. In ©

denying the motion, the trial court

stated: "The court is of the view,

that, one, this was not a detention; :

ISA

6 that the information - conduct of the

officer was sufficient to justify the

approach of a citizen on the street

in asking to talk to him with the

subsequent items that developed. [4]

Now, it may be that the court has

the wrong view of the law in espect

to that; but my reading of Tony C.

{In re Tony C. (1978) 21 Cal.3d 888)

and the cases that follow it are such |

that the court has made the ruling

that it has."

In this proceeding, Wilson

challenges the trial court ruling on

two alternative grounds, maintaining

that the court's conclusion is

e inconsistent with (1) the line of

California decisions emanating from

this courc's opinion in Tony C.,

een

and (2) recent decisions of the

1l6A

, . ; : , ; t - _ Ae

1x4 ee 3 ome eS . ae Mee a ERT On he ORY AO eI

ap. nc A ET Ee REE IN E TY e enry | were eee

United States Supreme Court applying

federal Fourth Amendment principles

in similar airport-search settings.

Since we conclude that Wilson's

federal constitutional claim is

dispositive, we address only that

issue.

Wilson concedes that the

trial court could find on the basis

of Kaiser's testimony that he

consented to the search of his

attache case, a search which

Gisclosed the vial of hash oil and

resulted in his arrest. (la) He

contends, however, that even if

Kaiser's testimony is accepted at

face value, the evidence presented at

the hearing demonstrates, as a matter

17A

¢ of law, that at the time he consented

to the search he was under an illegal

detention in violation of the Fourth

Amendment. Accordingly, he maintains

that the evidence

{34 Cal.3d 764]

obtained as a result of that consent

must be suppressed as a fruit of an

illegal detention. In support of his

claim, Wilson relies on two recent

decisions of the United States

Supreme Court involving similar

airport searches and seizures, Reid

v. Georgia (1980) 448 U.S. 438 [65

L.Ed.2d 890, 100 S.Ct. 2752] and the

court's very recent decision in

@ Florida v. Royer (1983) --- U.S. ---

; [75 L.Ed.24 229, 103 S.Ct. 1319]. As

we explain, we conclude that Reid and | < %

Royer do support Wilson's claim.

> 184

Co nah Pav J ey a a en Ps RN NN dt a

BA Las ie we lta be byt | he ore pa owe alt a ta ae Sync ame Naka ee A a OL CM a ie AAS

In analyzing the federal

constitutional issue, Justice White's

lead opinion in Royer provides a

logical starting point.® In that

opinion, Justice White reviewed the

6 In Royer, four judges -Justices

White, Marshall, Powell and Stevens -

joined in Justice White's lead

Opinion, which reversed Royer's

conviction on the ground that his

consent to search his luggage had

been obtained as the result of an

illegal seizure which exceeded the

bounds of a permissible detention.

Justice Brennan filed a separate

opinion, concurring in the result but

disagreeing with some of the

reasoning of the lead opinion. The

four other judges dissented, with

Justice Rehnquist writing a

dissenting opinion joined by Chief

Justice Burger and Justice O'Connor,

and Justice Blackjmun writing his own

separate dissent.

Although the judges were

widely split on the of

federal constituti y pies to

the facts of » & close readi

of the ver nions suggests

the court is in general agreement as

to the overall Pourth Amendment

framework ised in Justice

White's opinion,

general Fourth Amendment framework

that governs the kind of warrantless,

investigatory activities that are

frequently undertaken by law

enforcement officers in an airport

setting. ( --- U.S. at p. --- [75

L.Ed.2d at pp. 233-239, 103 S.Ct. at

pp. 1323-1326].) (2) For purposes

of Fourth Amendment analysis, there

are basically three different

categories or levels of police

"contacts" or “interactions” with

individuals, ranging from the least

to the most intrusive. First, there

are what Justice White termed

"consensual encounters” (id. --- U.S.

at p. --- (75 L.Bd.2d at p. 243, 103

&.Ct. at p. 1329)), which are those

police-individual interactions which

result in no restraint of an

204

individual's liberty whatsoever

- i.e., no “seizure,” however minimal

- and which may properly be initiated

by police officers even if they lack

any “objective justification.” (Id.

--- U.S. at p. --- (75 L.Ed.2d at p.

236, 103 S.Ct. at p. 1324]).) Second,

there are what are commonly termed

“detention,” seizures of an

individual which are strictly limited

in duration, scope and purpose, and

which may be undertaken by the police

"if there is an articulable suspicion

that a person has committed or is

about to commit a crime." (Ibid.)

Third, and finally, there are those

seizures of an individual which

exceed the permissible limits of a

detention, seizures which include

formal arrests and restraints on an

21A

individual's liberty which are

comparable to an arrest, and which

are constitutionally permissible only

if the police have probable cause to

arrest the individual for a crime.

(Id. = U.S. at Pp. —— {75 L.Ed.2d

at p. 237, 103 S.Ct. at p. 1325).)

In this case, Wilson makes

no claim that at the time he

consented to the search of his

attache case he was subjected to

restraints which exceeded the

{34 Cal.3d 785]

permissible bounds of a detention.

(1b) Thus, the principal question

before us is simply whether the

police conduct which preceded

Wilson's consent involved only a

“consensual encounter” which the

police could undertake without

objective justification, or whether

it amounted to a "detention" which

would be permissible only if the

police had an objective, articulable

basis for suspecting Wilson of

criminal conduct. In this regard,

Wilson contend that the record

establishes, as a matter of law, that

(1) the prosecution failed to prove

the requisite “objective articulable

suspicion” to justify a detention,

and (2) he was, in fact, “detained.”

We turn first to the “articulable

suspicion" issue.

As we have seen, at the

suppression hearing Detective Kaiser

described in considerable detail his

observations of Wilson and Rashon

which preceded his direct contact

23 A

ba, A

with Wilson. Of the facts related by

Kaiser, the only two circumstances

that might even plausibly be

proffered as a basis of an

"articulable suspicion” are (1)

Rashon's “eye contact” with Kaiser

upon first entering the arrival area

of the terminal, and (2) the act that

both Rashon and Wilson looked back in

Kaiser's general direction as they

walked down the concourse toward the

airport terminal exit. Wilson

contends that these circumstances,

singly or in combination, do not rise

to the level of an “objective,

articulable suspicion” so as to

justify even a limited detention

under Fourth Amendment principles.

The United States Supreme

Court's decision in Reid v. Georgia,

24A

Supra, while arising out of different

facts, directly supports Wilson's

claim. In Reid, an undercover

narcotics agent at the Atlanta

airport observed the defendant as he

acrived on an early morning flight

form Fort Lauderdale. As the

passengers left the plane and walked

down the airport concourse single

file, the agent saw the defendant

occasionally look back at a second

passenger who was separated from him

by several other passengers. When

the passengers reached the main lobby

of the terminal, the second man

caught up with the defendant, the two

talked briefly, and they then left

the terminal together.

The agent approached the

two men outside the building,

254A

| wt all

a ae a ye | Peet ek Ye Bee 2 hae

€ identified himself as a narcotics

agent and asked to see their airline

stubs and identification. The men

complied with the request. The

tickets revealed that they had both

been bought with defendant's credit

card and that the two men had been in

Fort Lauderdale for only one day. At

this point, the men appeared nervous

and the agent asked if they would

agree to return to the terminal and

consent to a search of their persons

and their bags. The agent testified

that the two agreed, but as they ‘

| returned inside the building, the

defendant ran, dis- |

¥ (34 Cal.3d 786) ;

’ carding his bag. He was quickly 4

: ih

apprehended and the bag turned out to _ ¥

contain cocaine.

264.

On these facts, the Georgia ©

Court of Appeal, relying on the

agent's testimony that the defendant

appeared to fit the airport's “drug

courier profile” in a number of

respects, held that the officer had

"reasonable suspicion" to approach

and detain the two men outside the

terminal building. Specifically, the

Georgia court found it relevant that

"(1) the (defendant) had arrived from

Fort Lauderdale, which the agent

testified is the principal place of

Origin of cocaine sold elsewhere in

the country, (2) the [defendant]

arcived in the early morning, when

law enforcement activity is r

diminished, (3) he and his companion ‘

appeared to the agent to be trying to

conceal the fact that they were *

274A

traveling together, and (4) they

apparently had no luggage other than

their shoulder bags." (448 U.S. at

p. 441 [65 L.Ed.2d at p. 894].)

In Reid, the United States

Supreme Court reversed the Georgia

decision, concluding “that the agent

could not, as matter of law, have

reasonably suspected the [defendant]

of criminal activity on the basis of

these observed circumstances.”

(Ibid.) The court reasoned: “Of the

evidence relied on, only the fact

that the [defendant] preceded another

person and occasionally looked

backward at him as they proceeded ie

through the concourse relates to ,

theic particular conduct. The other

circumstances described a very large is

category or presumably innocent :

travelers, who would be subject to

virtually random seizures were the

Court to conclude that as little

foundation as there was in this case

could justify a seizure. Nor can we

agree, on this record, that the

manner in which the [defendant] and

his companion walked through the

airport reasonably could have led the

agent to suspect them of wrongdoing.

Although there could, of course, be

circumstances in which wholly lawful

conduct might justify the suspicion

that criminal activity was afoot

[citation], this is not such a case.

The agent's belief that the

(defendant) and his companion were

attempting to conceal the fact that

they were traveling together, a

belief that was more an ‘inchoate and ,

unparticularized suspicion or

"“hunch"' [citation], than a fair

inference in the light of his

experience, is simply too slender a

reed to support the seizure in this

case.” (Ibid.)

This reasoning applies

equally to the present case. Indeed,

the facts before us appear, if

anything, even less supicious than

those in Reid. Aside from the brief

"eye contact” with Rashon - a reed at

least as “slender” as the agent's

suspicion in Reid - the officer did

not identify any circumstance which

would provide a reasonable basis for

Gistinguishing Wilson from the great

bulk of pessengurs arriving at the

Les Angeles International Airport.

a matter of law that the police did

not have an objective, articulable

basis to justify a detention of

Wilson. Ac-

{34 Cal.3d 787)

cordingly, the determinative issue is

whether at the time of his consent

Wilson was “detained” for Fourth

Amendment purpose or whether he was

simply engaged in a consensual

encounter,”

Cc.

Reid does not provide an

answer to the detention issue.

Although holding that the

circumstances known to the officer

before he approached the two suspects

did not rise to the level of

"articulable suspicion,” the Reid

court did not directly address the

issue of whether the officer's

conduct amounted to a "detention" of

the suspects or, if it did, at what

point the detention had begun:

because the lower courts had

concluded that there was reasonable

suspicion to justify a detention,

they had not found it necessary to

decide whether or not the defendant

had been detained; the Supreme Court

~- while reversing on the reasonable

suspicion point - did not reach the

detention question, leaving the

initial resolution of that matter to

the state courts on remand. (See

Reid, supra, 448 U.S. at p. 443 [65

L.Ed.2d at p. 895] (conc. opn. of

Powell, J.).)7

Similarly, in Un

(1980) 4

, 100 S.Ct. 1870) -

While Reid thus does not

assist us in distinguishing

"consensual encounters” from

"detentions," the Supreme Court's

recent decision in Royer does afford

airport search case decided just two

weeks before Reid - the detention

issue had not been litigated in the

lower courts, apparently because the

prosecution had never contended that

the officer's conduct fell short of a

detention. Therefore, seven judges

of the Supreme Court resolved the

case on the assumption that a

detention had occurred. Of the

seven, three - Justices Powell,

Blackmun and the Chief Justice -found

that there was sufficient articulable

suspicion to justify a detention, and

four - Justices White, Brennan,

Marshall and Stevens - found that

there was not. The two remaining

judges - Justice Stewart and

Rehnquist - concluded that the

detention issue was not foreclosed

despite the prosecution's failure to

pursue it, and ~ without deciding the

reasonable suspicion question -

resolved the case in favor of the

prosecution on the ground that no

Getention had occurred. As a ronht;

the conviction in Mendenhall was

affirmed by a five-to-four margin.

33 A

a try Pt 8 a

Loo lap hater: ol OOS uit :

par a Ye Oe

considerable guidance on this point.

In Royer, two undercover narcotic

agents working at the Miami airport

testified that they first took note

of Royer because they believed that

his “appearance, mannerisms, luggage

and actions fit the so-called ‘drug

courier profile.'" (--- U.S. at p.

--- (75 L.Ed.2d at p. 233, 103 S.Ct.

at p. 1322).) As they observed him,

Royer purchased a one-way ticket to

New York and checked his two

suitcases, placing on each an

identification tag with the name

"Holt." As he walked along the

concourse toward the airline boarding

area, the two officers approached

him, identified themselves as

policemen working out of the

sheriff's office, and asked him if he

34a |

had a “moment” to speak with them.

He said, "Yes."

At the officers’ request,

Royer produced his airline ticket and

driver's license: the ticket - like

the baggage identification tags - was

made out in

[34 Cal.3d 788)

the name "Holt," while the driver's

license carried his correct name,

"Royer." When the officer asked

about discrepancy, Royer stated that

friend had made the reservation in

the name “Holt.” During this

conversation, Royer became noticeably

more nervous, and the officers then

informed him “that they were in fact

narcotics investigators and they had ‘a

reason to suspect him of transporting é

narcotics.” (Ibid.) At that point 4g

ty a

4 a

x > . «

~~ - , , R

re “Oy; oe ee ? =~.

the officers, who still had Royer's

aicline ticket and identification,

asked him to accompany them to a room

adjacent to the concourse, about 40

feet away.

Without saying anything,

Royer walked with the officer to the

small room - described as a “large

storage closet” - which contained a

desk and two chairs. Without seeking

Royer's consent, one of the officers

retrieved the luggage which Royer had

checked and brought it to the room.

Royer then was asked if he would

consent to a search of the suitcases.

In response, Royer produced a key

and unlocked one suitcase; an officer

opened it and found a substantial

quantity of marijuana. Royer then

consented to the search of the second

bag, in which, too, marijuana was 7

found. The entire episode - from the

time the officers first approached

Royer to their discovery of the

contraband - took about 15 minutes.

Before trial, Royer moved

to suppress the evidence on Fourth

Amendment grounds, the motion was

denied and he was convicted of felony

marijuana possession. On appeal, the

Florida Court of Appeal reversed the

conviction, holding (1) that the

police did not even have sufficient

information to constitute the

articulable suspicion required to

justify a limited detention and (2)

that, in any event, the police e

conduct which preceded the consent 4

exceeded the limited restraint

permitted in a detention contest.

37A

—_——<=—

—

The state then appealed that decision

to the United States Supreme Court.

In its decision in Royer,

the high court disagreed with the

Florida court on the “articulable

suspicion" issue® but upheld the

reversal of the convction on the

ground that the police had indeed

exceeded the boundg of a limited

8 In holding that there were

articulable grounds for suspicion,

the lead opinion in Royer stated:

"We agree with the State that when

the officers discovered that Royer

was traveling under an assumed name,

this fact, and the facts already

known to the officers - paying cash

for a one-way ticket, the mode of

checking the two bags, and Royer's

appearance and conduct in general -

were adequate grounds for suspecting

Royer of carrying drugs and for

temporarily detaining him and his

Luggese while they attempted to

verify oc dispel their suspicions in

@ manner that did not exceed the

limits of an investigative

detention." (--- u.8. at P- eee {75

er ee Se vow woes GOO 4

detention - that, before he had

consented to the search of his

luggage, “[a)s a practical matter,

Royer was under arrest." (--- U.S.

at p. --- [75 L.Ed.2d at p. 240, 103

S.Ct. at p. 1327].) Although the

ultimate holding in Royer thus turned

on an issue - the line between a

“detention” and an “arrest” - which

is not involved in this case, the

lead opinion in Royer

(34 Cal.3d 789)

contains several passages which shed

considerable light on the question

which is at issue here - namely, the

distinction between a “consensual

encounter" and a “detention."9

9 Although only four justices

signed Justice White's lead opinion

in Royer, Justice Blackmun though

dissenting on another issue,

expressly signaled his general

39A

COCs Gane. < : r

First, in summarizing

general Fourth Amendment principles,

the lead opinion describes some of ie

the more typical police actions that

| fall into the “consensual encounter"

) category. The opinion observes:

"|L) aw enforcement officers do not

violate the Fourth Amendment by merly

approaching an individual on the

street or in another public place, by

agreement with the lead opinion's

analysis of the “consensual

encounter"/"“detention" issue. (---

U.S. at Pp. ae. sare {75 L.Ed.2d at

$ P- 246-247, 103 S.Ct. at pp.

» 1332-1333].) Moreover, in his

rs concurring opinion, Justice Brennan

indicated that he would take a

narrower view of those police

activities that constituted

Fa, consensual encounters than that

bey expressed in the lead opinion. (Id.

a ee U.S. at Pp. = {75 L. 2d

ae at PP. 244-245, 103 §.Ct. at Pep.

a 1330-1331].) ‘Thus, it is evident

ha >. —_” -

a that the lead opinion's views as to :

b> the on consensual encounters .

aN a clearly enjoy majority support within ‘

e A

* ¢

+ oh

* a

~~ 4 -

A 40A ..

- .

ve i she - 3 ; 1 aa “he

=k + : , : : - *

=) n “— : o —. aS vas re a

asking him if he is willing to answer @

some questions, by putting questions

to him if the person is willing to

listen, or by offering in evidence in

a criminal prosecution his voluntary

answer to such questions.

[Citations.}] Nor would the fact that

the officer identifies himself as a

police officer, without more, convert

the encounter into a seizure

requiring some level of objective

" justification. {[Citation.] The

\, person approached, however, need not

a answer any question put to him;

indeed, he may decline to listen to :

the questions at all and may go on

-* his way. ([Citations.) He may not be )

fF detained even momentarily without

reasonable, objective grounds for Bs

as doing so; and his refusal to listen e

Sane

Or answer does not, without more,

furnish those grounds. [Citation.]

if there is no detention - no seizure

within the meaning of the Fourth

Amendment - then no constitutional

rights have been infringed." (---

U.S. at p. --- (75 L.Ed.2d at p. 236,

103 S.Ct. at p. 1324].)

Though this passage gives

some indication of the attributes of

a consensual encounter, it does not

in itself set forth a clear

constitutional standard for

distinguishing such an encounter from

a detention. That additional

guidance is provided in a subsequent

passage, where the ‘lead opinion, in

rejecting the state's contention that

the “entire encounter was

consensual,” states: “Asking for and

42 A

‘y rm

examining Royer's ticket were no

doubt permissible in themselves, but

when the officers identified

themselves as narcotics agents, told

Royer that he was suspected of

transporting narcotics, and asked him

to accompany them to the police room,

while retaining his ticket and

driver's license and without

indicating in any way that he was

free to depart, Royer was effectively

seized for the purpose of the Fourth

Amendment. These circumstances

surely amount to a show of official

authority such that ‘a reasonable

person would have believed that he

fr ° ave.’

[34 Cal.3d 790)

United States v. Mendenhall, 446

U.S. 544, 554 (Opinion of Stewart,

J.)." (Italics added.) (--- U.S. at

p. --- [75 L.Ed.2d at p. 239, 103

S.Ct. at p. 1326].)

(3) In light of the

emphasized language and the citation

of Mendenhall, it is now clear that

a substantial majority - and perhaps

all - of the Supreme Court justices

agree with the standard set forth by

Justice Stewart in his separate a

opinion in that case: "“[A] person a

has been ‘seized’ within the meaning 4

of the Fourth Amendment only if, in :

view of all the circumstances

surrounding the incident, a

sesechabhe person would have believed

he *

that he was not free to leave.*10

10 ~ Six menbers of the present court a

es either pespeces or youn? = a

nions expl t endorsing #

ogo fe Fl Justices white, Fs

. and Stevens signed “4

(United States v. Mendenhall, supra, >

446 U.S. at p. 554 [64 L.Ed.2d at p.

509].) (lc) Thus, the question

before us is whether, at the time

Wilson consented to the search of his

attache case, a reasonable person in

Wilson's position would have believed

the lead opinion in Royer; Justice

Blackmun expressly approved that

standard in his dissent in Royer (---

U.S. at p. --- (75 L.Ed.2d at p. 246,

103 S.Ct. at p. 1332]); and Justice

Rehnquist joined in the relevant

portion of Justice Stewart's opinion

in Mendenhall itself. Of the three

remaining justices, Chief Justice

Burger joined Justice Powell's

concurring opinion in Reid, which -

at the least - strongly hinted at its

approval of the Mendenhall test (448

U.S. at p. 443 (65 L.Edi2d at p.

895])), and Justice Brennan appears to

have applied the mepdenna standard

in his discussion o etention

issue in his concurring opinion in

ee (--- U.S. at p. --- [75

24 at p. 245, 103 &.Ct. at _

1331).) ly Justice O*Connor, who

was not on court when

and were decided, has

her views on the issue.

45a =

‘ toh Tee ee ’ . \ a . pa tll te pie lll ga) e : om ‘ i ae eae

that he was not free to leave.

Reviewing the facts of this

case in light of this standard and

the relevant portions of Royer, it is

evident that Detective Kaiser did not

detain Wilson, for federal

constitutional purposes, merely by

approaching him, identifying himself

as a police officer, and asking if he

might have a minute of his time. At

that point, however, the officer did

not simply ask Wilson if he would

permit a search of his luggage.

Instead, he advised Wilson that he

was conducting a narcotics

investigation and that he “had

received information that he [Wilson]

would be arriving today from Florida

carrying a lot of drugs.” (Italics

added.)

Common sense suggest to us

that in such a situation, an ordinary

citizen, confronted by a narcotics

agent who has just told him that he

has information that the citizen is

carrying a lot of drugs, would not

feel at liberty simply to walk away

fron the officer. Before Kaiser made

that statement, Wilson might well

have thought that the officer was

simply pursuing routine, general

investigatory activities, and might

reasonably have felt free to explain

the officer that he had an

important appointment to keep and did

not have the time - or, perhaps, the

inclination - to answer the officer's

ques-

{34 Cal.3d 791)

tions or to comply with his request

47A

a Le Bin Oe J Pm 4 1 Se

‘Yate Sallis ns ees We! ee ey i ae ee ate ¢

‘ot

for permission to search. Once the

officer advised Wilson that he had

information that Wilson was carrying

a lot of drugs, the entire complexion

of the encounter changed and Wilson

could not help but understand that at

that point he was the focus of the

officer's particularized suspicion.

Under these circumstances - and

particularly in the absence of any

clarifying advice from the officer

explaining to Wilson that he was, in

fact, free to drive away if he

desired - no reasonable person would

have believed that he was free to

leave. (See United States v. Berry

(Sth Cir. 1982) 670 F.2d 583, 597;

United States v. Robinson (Sth Cir.

48 A

LL an LT TS CPR ee MS te Comma ae

1980) 625 F.2d 1211, 1216-1217.) 11

1l One commentator - in a

thoughtful article on the general

"seizure" question - has made this

same point: “The nature of the

questions asked by the officer during

an encounter also may be relevant to

the seizure issue. As questioning

moves from general questioning

concerning facts unrelated to a

particular crime or class of crimes

to questions indicating the officer's

interest in a specific crime or class

of crimes, the perception of the

citizen reasonably may change from

one of a voluntary encounter, from

which he is free to disengage, to one

of a formal police investigation of

specific criminal activity, which he

is not free to ignore. ... In the

absence of actual physical restraints

or unequivocal verbal commands, a

reasonable person examining the

conduct of the officer is more likely

to view the circumstances as a

seizure when the conduct or verbal

activities of the police become more

intrusive, that is, when they clearly

are related to the investigation of

specific criminal acts. It is the

threat of arrest and prosecution that

produced the ee ion of cestricted

liberty in a itizen

encounter, Nast perception is

more likely to arise when conduct

the police is linked to the

"wR Arh +.

Accordingly, we conclude

that Wilson was detained, within the

meaning of the Fourth Amendment, when

he consented to the search of his

attache case. Of course, if - as

Detective Kaiser represented - the

police did in fact have additional

information indicating that Wilson

would be transporting narcotics, that

information might well have provided

a reasonable basis for the detention,

in which case Wilson's consent would

have been validly obtained. As we

have explained, however, the

prosecution - despite fair warning -

failed to present the relevant

testimony to substantiate the alleged

information. On this record, we can

only conclude that the police

detained W'lson in violation of the

Fourth Amendment, and that the trial

court erred in failing to suppress

the evidence obtained as a result of

that illegal detention,}2

12 Although the People have not

expressly conceded the point, they

have not argued that the evidence

should not be suppressed even if

Wilson was illegally detained, on the

theory that the evidence was not the

"product" of the illegal detention.

Since Wilson's consent followed

within minutes of the detention, and

since there were no intervening

circumstances whatsoever, — a

claim would, in any event,

untenable. (See 8

aia or wed ts’ in at p.

9, 1 §.Ct. - p. 1326); n

ve f (i999) 462 0.8. SOO

216- L.Bd.24 624, 838-839, 99

s.Ct. 2248); v. .

(i975) 422, Ube eB0, 6OTSeOS Tas )

L.84.24 416, 425-426, 95 8.Ct. of

S1A —

0 iain : : a ~~ a

| :

aah 7

“

“7

[34 Cal.3d 792)

Let a peremptory writ of

mandate issue, directing the trial

court to vacate its order denying the

motion to suppress and to enter a new

order granting the motion.

Bird, C. J., Mosk, J.,

Richardson, J., Broussard, J.,

Reynoso, J., and Grodin, J.,

concurred.

EXHIBIT B

a ak) ee

[Civ. No. 64102. Second Dist., Div. One.

July 23, 1982.

CLEROW fog Petitioner, v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

THE PEOPLE, Real Party in Interest.

OPINION

HANSON (Taxton), J.--

Tntroduction

Petitioner/defendant Clerow Wilson

aka Flip Wilson (hereinafter defendant

and/or Wilson) seeks a peremptory writ

mandating respondent court to vacite its

ruling denying his motion pursuant to

Penal Code section 1538.5 (hereinafter

section 1538.5) to exclude as evidence

contraband (hashish oil and cocaine)

found in his attache case at the Los —

Angeles International Airport after he

deplaned from a flight from Miami,

Florida.

The deterainative issue of this case

is whether or not defendant Wilson was

improperly initially subjected to a

"detention" at the airport in violation of

his "Fourth Amendment" rights as referred

to in the federal Constitution and the

parallel provision in California's :

Constitution guaranteeing against unreason- :

able "seizures." .

Superimposed on the determinative

issue, and of no little significance, is a.

our duty to determine the effect on this

-case, if any, of the passage on June 8, ° :

1982, of Proposition 8 entitled "Criminal ;

Justice--Initiative Statutes and Consti- 3

tutional Amendment" now enacted in article 4

I, section 28, of the California Constitu-

tion commonly referred to as the "Victims'

Bill of Rights," (hereinafter Proposition

8) and specifically section 28, subdivi-

sion (d), of the initiative entitled

white

Vie

o: Te

phd

het

+é

o™]

Truth-in-Evidence provision). Proposition

8 became effective on June 9, 1982, while

the instant case was pending before this

court. |

Procedural History

Qn April 30,_1981, defendant Wilson

was charged in a two-count information

with possession of cocaine in violation of

Health and Safety Code section 11350, a

felony (count I) and possession of hashish

011 (concentrated cannabis) in violation

of Health and Safety Code section 11357,

subdivision (a), a felony (count II).

On May 13, 1981, the defendant pled

not guilty and made a motion pursuant to

section 1538.5 to exclude as evidence the

narcotics found in his possession.

Qn October 16, 29 and 30, 1961,

defendant's motion to suppress the

evidence was heard and denied.

Qn November 30, 1961, defendant

«$9 hoe

a ee

filed with this court a "Petition For Writ

of Prohibition (Stay) and Writ of Mandate"

seeking to have the superior court's rul-

ing on this motion annulled and vacated.

Qn January 22, 1962, this court

summarily denied the petition (per Lillie,

Acting P. J., and Hanson, J.; with

Dalsimer, J., voting to grant the petition).

Qn February 1, 1982, defendant Wilson

filed a "Petition in the Alternative for

- Writ of Mandate and/or Writ of Prohibition"

with the California State Supreme Court

essentially containing the same supporting

documentation previously supplied this

Court of Appeal.

Qn February 18, 1962, the state

Supreme Court made the following order:

"Petition for hearing GRANTED. The

matter is transferred to this court and

retransferred to the Court of Appeal,

Second District, Division One, with.

directions to issue an alternative writ to

be heard. before that court when the pro-

ceeding is ordered on calendar. (See People

v. Bower, 24 Cal.3d 638, 643, and In re

Tony C., 21 Cal.3d 888, 895-896. )"

Qn March 26, 1962, this court in

compliance with the above order issued an

"Alternative Writ of Mandate," and the

matter was heard on May 25, 1962, and

submitted. ,

On June 8, 1982, before our decision

was rendered, the California electorate

passed Proposition 8 containing the "Right

to Truth-in-Evidence" provision (§ 28(d))

which became effective on June 9, 1982.

Qm July 1, 1962, after first vacating

the May 25, 1962, submission order and

receiving and considering supplementary

written briefs from counsel limited to

the issue of the effect, if any, of the

passage of Proposition 8 upon issues

‘relevant to this case, this court heard —

additional oral argument’ and resubmitted

the matter. Amicus curiae briefs were

invited, received and considered from the

offices of both the state Attorney General s

and the State Public Defender, and

representatives from those offices were

granted permission, and did, orally argue

their respective positions at the hearing.

Facts

(1) We view the evidence in the light

most favorable to the order denying

suppression as required by the familiar

rule governing appellate review. (People

v. Leyba (1981) 29 Cal.3d 591 [174 Cal.

Rptr. 867, 629 P.2d 961).)

Defendant Wilson's motion to suppress

evidence was ‘hotly contested during a

three-day hearing in the superior court. . _ 2

(Hon. Edward A. Hinz, judge presiding. )

At the hearing, Officer Roy (Roi)

Kaiser of the Police Department of the

| «.) ee ~ et eee

~ . y er

City of Los Angeles assigned to the

narcotics division testified that he had

been a narcotics officer for about ten

years engaged exclusively in major drug

peddling suppression within the City of

Los Angeles, and that for approximately

four and one-half years he had been

specifically assigned to the Los Angeles

International Airport Narcotics Bureau.

Officer Kaiser stated that he had partici-

pated in excess of a thousand narcotics |

investigations and made hundreds: of

arrests of persons involved in violation

of the state and federal narcotics laws;

that he had lectured extensively across

the United States at various drug

enforcement agency seminars; and that he

had testified as an expert in both state

and federal courts across the United

States.

Officer Kaiser testified that on

March 10, 1961, at approximately 11:30 or

11:45 a.m., while at the Satellite area of

Pan American Airlines at the Los Angeles

International Airport and dressed in cas-

ual street attire, he observed defendant

Wilson deplaning carrying an attache case.

The defendant was accompanied by another

black male person (established as defend-

ant's nephew Rashon Wilson) who was carry-

ing a box that had the name "Flip Wilson"

written on it. Officer Kaiser, whose

duty was to monitor in a general fashion

in-bound Florida flights on a daily basis,

did not expect defendant Wilson to get 3

off on that particular airplane but had

prior information that he (Wilson) might

be arriving on a flight from Florida on

that date.

///

Officer Kaiser monitored the movement

of the defendant and Rashon Wilson and

"observed the two of them to be looking

e about inside the arrival area," and that

on at least two specific occasions Rashon

Wilson made eye contact with him (Officer

Kaiser) in the arrival area. Officer

Kaiser testified that in the past such

behavior, eye contact and looking about

after deplaning these flights, was

engaged in by other persons he had arrest-

ed for transporting narcotics. (On cross-

examination the officer testified that the

specific type of eye contact he had with

4 Rashon Wilson was similar to the eye

contact he had with others who were drug

carriers.)

Officer Kaiser walked behind the

defendant and his companion down the : ‘

escalator into the concourse to the :

terminal building. About midway in the \

concourse, the officer observed Rashon

Wilson look to his rear in the officer's

general direction, then immediately turn

and appear to speak to defendant Wilson

who also looked back in the officer's

general direction.

Officer Kaiser followed the two to

the end of the conclurse where they met

defendant's wife, Mrs. Wilson. The three

then walked out onto the sidewalk in front ~—

of the terminal building where Rashon Wilson

handed the defendant the box Rashon Wilson

was carrying. Defendant then went to the

curb and placed the attache case he was

carrying and the box handed to him in the

rear passenger section of a vehicle parked

at the curb. He and Mrs. Wilson entered

the vehicle.

_ Officer Kaiser observed Rashon Wilson

converse with the occupants inside the

vehicle and then go to the baggage room

of Pan American es “Officer Kaiser

followed Rashon Wilson to the baggage

room and saw him get two pieces of luggage

off the rack, exit the baggage room and

walk in the direction of the vehicle at

the curb. At the same time Officer

Kaiser saw his partner, Officer Gary

Frederick of the Los Angeles Sheriff's

Department, approach Rashon Wilson and

have a conversation with him. Officer

Kaiser did not enter into this conversa-

tion. The three then walked back to the

vehicle parked at the curb.

‘When Officer Kaiser arrived back at

the vehicle, he observed defendant Wilson

standing at the rear of the vehicle by

the open trunk. Officer Kaiser told the

defendant he was a police officer and

produced police identification. The

officer then asked defendant Wilson if he

"might have e minute of his time” to which

the defendant replied, "Sure." The

officer then advised the defendant that

he was conducting a narcotics investigation

and that information had been received

that he (defendant Wilson) would be

arriving from Florida carrying a lot of

drugs and asked if he (Officer Kaiser)

could search the luggage at the curb and

the box inside the vehicle. Defendant

Wilson said "Sure. I don't have any drugs

that I know of. Go ahead and search."

As Officer Kaiser was about to

remove the box from inside the rear

passenger section of thé vehicle, he again

noticed the attache case and asked

defendant Wilson if he could also search

the attache case. Defendant Wilson

replied: "There should only be some

papers in there. But you can go ahead

and look if you like." oo

Defendant Wilson placed the attache :

case on the rear seat of the vehicle and

opened it himself in the officer's view.

Officer Kaiser searched the attache case

and found a glass vial of oi] in a pocket

in the lid of the case containing a "dark

tarry-type substance" which appeared to

be hashish oil. Upon observing this,

defendant Wilson said "That's just a

little bit of hash oil in there."

Officer Kaiser then asked the

defendant if "he would mind accompanying

{him} back to [his] narcotics office

situated there at the airport" and defend-

ant stated "he would." The defendant |

asked if they could all go in his car and

the officer agreed. The defendant drove

his car to the airport narcotics office

accompanied by his two companions and the

two narcotics officers. At the office a

continued search of the attaché case

disclosed an eyeglass case containing a

glass vial resembling cocaine.*

(Footnote continued on next page. ) 5

(Footnote continued from previous page.)

1. The reporter's transcript of the

hear on defendant's motion to suppress

as evidence the hashish oil and cocaine

found in the defendant's attaché case

contained the following colloquy on direct

examination of Officer Kaiser by the »

prosecut attorney, Mr. Jenkins:

"Q. (Mr. Jenkins) What happened

next?

"A. Upon arriving at the vehicle,

the defendant Mr. Wilson was standing at

the rear of the vehicle by an open trunk

of the vehicle.

"Q. What happened next?

"A. I approached Mr. Wilson, and I

displayed police identification to hin.

I told him I was a police officer; and I

ran him if I might have a minute of his

"Q. What did he say?

"A. He stated ‘Sure.’

"Q. What happened next?

"A. At this e, I advised Mr.

Wilson that I was conduct a narcotics

red evens eames and that we had received

today Aten Pistide Garryiie 8 100 of true

rom Flor carry a lot o Ss.

And : asked Mr. Wilson if he--

"MR. MOORE: Objection to the use of

the term 'we.' Move to strike.

"THE COURT: Well, that part may be

stricken. .. .

"Q. BY MR. JENKINS: What hapyened

after you advised Mr. Wilson that you had

information he was carrying a large |

quantity of drugs? r

"A. I asked Mr. Wilson if I could

search his 1 that was there at the

curb, and also the box that I had obs

him place inside the vehicle. (Continued

(Continued from previous page. )

"Q.. What did he answer?

"A. He stated, 'Sure.' And he said,

'I don't have any drugs that I know of.

. Go ahead and search'.

e "Q. What happened next?

% "A. At this time, I walked with Mr.

. Wilson to the--around the vehicle. Mr.

Wilson went to the one side of the vehicle;

and I went to the other. And, as he was

about to remove the box from inside the

rear passenger section of the vehicle, I

noted — the attache case and at this

point, sked Mr. Wilson if I could also

search the attache case.

"Q. And did he answer that question?

"A. Yes,. he did.

"Q. What did he say?

"A. He stated, 'There should only

be rs ers in there. But you can go

ahead and et if you'd like.'

"Q. ened next?

"A ee thie e, he placed the

attache case on the rear seat of the :

vehicle. He opened the attachd case,

Yt ioe what was in there, in my view.

conducted a search of the attaché case.

"Q. Tell us what you did.

"A. I withdraw [sic] from the lid

portion, a pocket area of the attaché

case, a glass vial; and upon holding it

nyo. Did Me. Wile

° ° on say at

that time? ngchy ge

"A. Yes, he did.

"Q. What did he say?

"A. He stated, ‘That's just a little

bit of hash oil in there.'

"Q. Did you investigate that

oo = further?

To be con

i j

. < ) d a <i , bios ef > ay .

‘ ee eR ae ee ey AT

tut

(Continued)

"A. I did.

"Q. What did you do?

oving the Tid cap.” £ looked at

rem e cap. a .

substance inside, which appeared to be a

dark -type substance. I also smelled

at the substance, and in inion it

appeared to be that of hash oil.

"Q. What happened at that point?

"A. At this point, I asked Mr.

Wilson if he would mind soocnpesy ane me

back to my narcotics office situated there

at the airport; and he stated he would.

"Q. t happened at that point?

"A. At this point, I asked Mr.

Wilson if he would mind oro s me

back to my narcotics office situa there

at the airport; and he stated he would.

"Q. : t ened next?

"A. At this Mr. Wilson asked

me if it would be all right if we would

take his car and ride over there together

in his car, so he could get it off the

street.

"Q. Did you agree to that?

"A. I did.

"Q. And wh t in the car?

"A. I got into the rear portion of

the vehicle; my er also got into the

rear portion of the vehicle. Mr. Wilson

was driving. The woman was also in the

front passenger section of the vehicle.

And the other individual, the other male

person, was in the back seat, as I recall,

with partner.

"a, And did you go over to the nar-

cotics office?

9a; ase hoes t there, did

Me! en you

(To be continued. ) ne: : —_

On cross-examination by defense

counsel, Officer Kaiser stated that the

first time he spoke to the defendant he

had a slight suspicion that the defendant

was possibly involved in criminal conduct;

that his purp»%se in speaking to the

defendant was to request permission to

search his luggage; that he did not advise

the defendant that he did not have to .

consent to the search; and that at the

time he first approached the defendant he

and Rashon Wilson were in close proximity.

(Footnote continued from previous page.)

continue york snarel of the attache case?

A. .

"Q. Did you find anything else?

i "A. Yes, I did.

» “"Q. What else did you find?

"A. I discovered inside an eyeglass

case that was inside the attache case.

The eyeglass case contained a glass vial.

Inside the glass vial appeared to be a

white powdery substance, which, in my

opinion, resembled that of cocaine.

"Q. Did retain both of those

items, the hash oil and the apparent co-

caine?

"A. I did."

17B

Mrs. Wilson was in the right front seat

and Rashon Wilson was on the sidewalk.

Officer Kaiser denied that before looking

in the attache case he told the defendant

that he was not interested in a small

amount of contraband for personal use as

he was only looking for a larger quantity.

Following the direct and cross-

examination of Officer Kaiser and argument

in respect to a detention, the issue was

submitted to the court for a ruling and

the trial court denied the motion.

2. Ofticer kaiser testified that

after he found the vial with hashish oil

the defendant was not free to go and was

technically under arrest; al » that

was not commmicated to him. Defendant

was told he was under arrest when the

other contraband (cocaine) was found while

in big airport office. sett ot te

‘ reporter's transcr °

hearing on the motion to suppress the

evidence shows that at this point of the

roceedings the court, after Officer

ser testified but before defendant

Wilson took the stand, stated:

"The motion to dismiss--and to

suppress the evidence is denied at this

(Continued)

185 .

pe . 4 .

aa ie = }

Sy eee So Onee | ~ .

Subsequent to the above ruling by the

court, defendant Wilson took the witness

stand and testified in his own behalf.”

(Footnote continued. )

point.

"The court is of the view that there

is sufficient evidence before the court

at this time that indicates that the

officer approached the defendant and

asked if he could speak--was not physically

detaining him; and, based on the testimony

I have heard, the defendant was more than

will to discuss the matter with hin.

« a consent search was obtained.

"So, the motion by defense counsel

at this point is denied.

"MR. MOORE [Defense Counsel]: Your

Honor, with respect--may I t inquire

conce the standard that I argued to

the court? The ose-— |

"THE COURT: e court finds that the ¢

conduct of the officer is consistent with |

the r ements of the law as laid down

probably most recently by the California

Supreme Court in the Tony C. case, which F

I'm thoroughly familiar with.

"MR. M : Thank you." “fi

4. Defendant Wilson on direct P

examination by his counsel testified

substantially as follows: That on March

10, 1981, he arrived on a flight from

Miami; that he walked down the concourse

with his nephew, Rashon Wilson, and

encountered his wife who met them at the

front of the airport; that Rashon Wilson

was carry a large box which contained

(Continued

19B

(Footnote continued. )

a Milifiori lamp which defendant had

purchased in an antique shop in Florida;

that Rashon Wilson was also carrying a

Virginia ham and defendant's attache

case; that he gave the claim checks to

Rashon Wilson, went to the car, placed the

box in the car, put the ham in the trunk,

and put the attaché case into the car; that

he then saw Officer Kaiser at the right

front door of the car and heard Rashon

Wilson say that the officer had a search

warrant to search his bags; that Officer

Kaiser then said he had a search warrant

to search the bags and told him that he

(Officer Kaiser) had received a call from

@ young black man saying that defendant

Wilson would be arri and would be

carrying a large tity of narcotics;

that he (def Wilson) replied that

that was absurd, he was a professional

entertainer and not a narcotics dealer and

told Officer Kaiser that he was pressed

for time and had to rush home because he

had an gages to meet Mayor Bradley;

that he then instructed Rashon Wilson to

cooperate with the police; that the police

then proceeded to search his black piece

of 1 e which was on the at the

rear right door of the car; t then

Officer Kaiser leaned back in and asked if

he could search the attache case and he

(defendant Wilson) said that he would .

ug @e

Neither Mrs. Wilson nor Rashon Wilson,

who were present and apparently had

knowledge as to what transpired, were

(Footnote continued from previous pag -)

arrests; that defendant responded t

since the officer put it in those terms,

he could search. .

Defendant Wilson further stated that

he personally leaned over the back seat,

opened the attache case and raised the

lid, picked up the bottle of hashish and

showed. the officer the cocaine; that

Officer Kaiser then said he had to place

him under arrest; and that. they all went

over to the police station where the

officer’ searched the box. Defendant

further testified that he gave the officers

ermission to search the attache case

ecause they had stated they were not

concerned whether he was carrying something

that was only for his own personal use but

— neon about a aoe anon gga

eard he was carry a e quantity.

Defendant testified t a never asked

to see the search warrant nor did the

officer represent that he had a search

warrant for the attache case.

On cross-examination by the eae tl

Called as witnesses by the defense.

Following additional argument by counsel,

the court again ruled that Officer Kaiser's

conduct did not constitute a detention and T

denied defendant's motion to suppress

under section 1538.5.°

. 5. whe reporter's transcript con-

tains the following statement by the trial

court; "THE COURT: All right. [] Thank

you. fe) The court being advised in the

matter, having heard the testimony of the

witnesses, having had the benefit of the

moving papers, and having heard the argu-

ment of counsel, of course, the testimony

which extended over two days--a week ago

last Friday and yesterday-~the court

being advised in our matter, orders that

the motion er Penal Code section 1538.5

be denied. |%) The court is of the view

that, one, s was not a detention; that it

the information--conduct of the officer

was sufficient to omece ed the approach of

a citizen on the street and a to

talk to him with the subs ti that

Geveneped. {@] Now, it may that the

Arges view of the law in

)

es 8 ot) AAP i el ae we iin. BD ee 9

(2) (See fn. 6.) me determinative

issue is not whether Officer Kaiser

suspected defendant Wilson of criminal

activity, but whether defendant Wilson j

subjected to a detention in the first ;

instance at his vehicle in front of the

Los Angeles International Airport which j

vidlated his constitutional guarantees __ |

against unreasonable "seizures" within the

meaning of the Fourth Amendment to the :

United States Constitution and its parallel

provisions in article I, section 13, of

the California Constitution as construed

by federal and state decisional law.© 5

6. The issue as to whether or not

defendant Wilson voluntarily consented to

the search of his attache case where the

cocaine and hashish oil were found as

encompassed in the issues raised at the

defendant's motion to ss before the

trial court. The record cates that

Tosteonl trial epatr favored the credibility of

238

- ‘. a

eee

(Footnote continued from ae page.)

the testimony of Officer ser over that

of defendant Wilson even though the de-

fendant testified that he personally

opened his own attache case with reserva-

tions. (See fn. 4, oJ

The law is well settled on the role

of a reviewing court in respect to ruling

on a voluntariness of consent issue.

"The question of the voluntariness of the

consent is to be determined in the first

instance the trier of fact; and in that

stage of the process, determined in the

first instance by the trier of fact; and

_in that stage of the process, i

'The power to judge credibility of wit-

nesses, resolve conflicts in testimony,

weigh evidence and draw factual inferences,

is vested in the trial court. On appeal

all presumptions favor proper exercise of

that gag and the trial court's findings

~-whether express or implied--must be _

upheld if rted by substantial

a Pe .

eit) COB CPR SEY a

: - 617, 530 P.2d 585}; accord

1976) 1 690, 701

1:Rp 3 one Pe2d 353] )" (Peo-

. . 5 19 . 98 "07

also ; (1980) 112 -App.

3d 106s 1815 (Teg tei Rper. 742).

There is ample evidence in the

instant case to support the trial court's |

finding as to the voluntariness of ee

defendant Wilson's consent to s his 4

attache case. In event the voluntari- P

ness of defendant Wilson's consent to

search his attache case has not been

raised or pressed in proceedings before

this court.

248

However, the passage of Proposition

8 by the California electorate on June 8,

| 1982, which became effective on Jume 9,

* 1982, while the case at bench was still

| pending decision, has presented the

important issue of the impact and effect,

’

if any, of Proposition 8 upon the resolu-

tion of the detention issue.

Defendant's counsel in his supple- :

mentary brief, augmented by the State

Public Defender in his amici brief and at

oral argument, contends (1) that ‘Broposi~

tion 8 is unconstitutional in its entirety

because it (a) was voted on within less

than 131 days of its qualification for the R.

ballot and was not passed at a "general

election" as required by the California

Constitution, (b) violates "the Single- om

subject Rule," and (c) is a constitutional E

revision and not merely an amendment to

- the California State Constitution thereby

ae —, © eee &- tn ‘em

requiring a constitutional convention; (2)

that in the event Proposition 8 is held to

be constitutional, section 28, subdivision

(a), the Truth-in-Evidence provision can

only be applied prospectively in this case,

and that if the Truth-in-Evidence provision

were to be applied retroactively there

would be a denial of equal protection and

due process of laws and a violation of the

proscription against ex post facto laws.

The district attorney's office and

the state Attorney General's office in

briefs and at oral argument assert that

Proposition 8 is constitutional; that the

Truth-in-Evidence provision applies

retroactively; that defendant Wilson is

not denied equal protection or due process

of law; and that the proscription against

ex post facto laws is inapplicable..

Be ab

///

26B

Background

The state Supreme Court in retrans-

ferring the instant case back to this

court to issue an alternative writ, to

conduct a hearing and write an opinion,

directed our attention to the California

Supreme Court cases of People v. Bower

(1979) 24 Cal.34 638 [156 Cal.Rptr: 856,

597 P.2d 115] and In re Tony C. (1978)

21 Cal.34 888 [148 Cal.Rptr. 366, 562 P.

2d 957], which involve the exclusion of

relevant evidence.

The Truth-in-Evidence provision of

Proposition 8 provides, with certain

exceptions, that "Relevant Evidence Shall

Not Be Excluded in eny Criminal Proceed-

ing." We are.compelled to address the

cemstitutional issues of Proposition 8

and the retroactivity issue of the Truth-

in-Evidence provisions raised by the

defendant before considering whether

Bower and In re Tony C. are controlling.

This is so because those cases, as well as

section 1538.5! pursuant to which

defendant Wilson made his motion to sup-

press in the superior court, contain

California case and code law which sanc-

tions the exclusion of relevant evidence

in criminal proceedings thereby colliding

with the plein language of the Truth-in-

Evidence provision of Proposition 8.

7. Section 1538.5, subdivision ta

(1), and subdivision ( (a} rovides: "(a

A defendant may move for the return of

property or to suppress as evidence any

tangible or intangible thing ody ge oat

a result of a search. or sated}

of the following wens:

search or seizure

It ;

A. Wi ° on 8c tu

eligible for the June primary ballot? Yes.

(3) The defendant first asserts that

Proposition 8 was not constitutionally

eligible to be placed on the June primary

ballot because it violated article II,

section 8, subdivision (c) of the Califor-

nia Constitution® in that the election was

“8. ornia Cons on, cle

II, section 8, subdivision (c) provides:

"The Secre of State shall submit the

[initiative] measure at the next general

election held at least 131 days rit

qualified at any special statewide

election heid prior to a general election.

The governor may call a special statewide

oth for the measure." (Italics

a °

tion: "I, Bdmund G. Brown, Jr.,

of the State of California,

to Section 2553 of the Elections

» hereby proclain t the Statewide

day of June, 1962, at ¥

;

(Footnote continued from previous e.)

such election. Also, the following ©

measures proposed by the Legislature,

bose igh rant with four initiative measures

pores cil progr © measures will be

e ied voters of th

State on that ae .

“PRrorosiTion | THE NEW PRISON BOND ACT OF 198!

- CHAPTER 273, STATUTES OF 1981.

- “Prorasirian 2 PRESIDENT OF SENATE. LEGISLATIVE

CONSTITUTIONAL AMENDMENT.

“Proranirion 3 TAXATION. REAL PROPERTY VALUATION..

CHANGE IN OWNERSHIP. LEGISLATIVE

CONSTITUTIONAL AMENDMENT.

“PROPOSITION 4 BAIL. LEGISLATIVE CONSTITUTIONAL

AMENDMENT. ;

**Prorasrrion $ GIFT AND INHERITANCE TAXES (PROPONENT

' MILLER). INITIATIVE STATUTE.

PROPOSITION 6 GIFT AND INHERITANCE TAXES (PROPONENT

; ROGERS). INITIATIVE STATUTE.

' “ProraniTion 7 INCOME TAX. INDEXING. INITIATIVE STATUTE.

“PROPOSITION & Cananal JusTice . initiative STATUTES

° AND CONSTITUTIONAL AMENDMENT, (Italics

; adueu.) : > a

“PROPOSITION 9 WATER PACILITIES INCLUDING A PERIPHERAL

CANAL. REFERENOUM STATUTE.

“ProrosiTion 10 R&APPORTIONMENT. CONGRESSIONAL

. DISTRICTS. REFERENDUM

STATUTE.

“ProrosiTiOn 11 REAPPORTIONMENT. SENATE DISTRICTS.

REFERENDUM STATUTE .

“PROPOSITION 12 RBAPPORTIONMENT. ASSEMBLY DISTRICTS.

REFERENDUM STATUTE. Es.

"IN WITNESS WHEREOF, I have hereunto set

State ba Onditoeida tte cee

a ix

day of March, 1982. tts

"/s/ EDMUND G. =

"/s/ G. BROWN, JR

"ATTEST:

"/s/ MARCH FONG EU

"Secretary of State

“by /s/ MARJORIE R. HERSEERGER”

30B

not held "at least 131 days after it

qualifies," denying the opponents the

required time in which to campaign against

the initiative which was not voted on at a

"general election." The contention is

without merit.

On January 22, 1982, in a writ

proceeding, Paul Gann et al. v. March

Fong Eu, case No. 301007, in the Superior

Court in and for the County of Sacramento

(Honorable Horace Cecceltini, judge,

presiding) Proposition 8 was ordered

qualified for the June 8 ballot as of

January 22, 1982, 135 days prior to the

election.

However, the defendant argues that

Proposition 8 was not "cleared"? for the

9. The State Public Defender's

Office in its amici brief used the word

ied" rather than "cleared." The

word "cleared" does not in Califor-

nia Constitution, article rr, on a ard

subdivision (c). (See fn. 8, ante.)

318

ballot until the state Supreme Court decided

Brosnahan v. Bu (1982) 31 Cal.3d 1 [181 Cal.

Rptr. 100, 641 P.2d 200], on March 11, 1962,

citing the dissenting opinion of Chief

Justice Bird [at p. 15, fn. 1] which stated

that "the constitutionality of submitting

an initiative to the voters at a June pri-

mary election would appear to be an open

question."

We cannot ignore the history of the

efforts of the proponents of Proposition

8 to place the initiative on the June 8

primary ballot as summarized by "THE

COURT” opinion in Brosnahan (set out haec

verba in fn. 10 below).2° ‘the Brosnahan

~~ dO. Following 18 the majority

opinion in 1

Cal.3d 1: TRE COURT ey re 2 -

ce petitioners seek to prevent

re = Bh aca of tusse ten from insti-

a ig 9 to placing on

the balkot at at the June primary

er an initiative measure relating

to 'Criminal Justice’ and entitled (in 7

1 thereof) 'The Victims' Bill of

Petitioners assert that re

failed to comply ee sta

sions number of

signatures to

measure for the ballot, and t the

(Footnote continued from previous page.)

eb measure is unconstitutional

ecause it contains more than one subject

(Cal.Const., art. II, § 8, subd. (d)) and

amounts to a ‘revision’ of the Constitu-

‘tion rather than an 'amendment' thereto

(see id. art. XVIII, §§ 1-3). .

e proponents of the initiative

measure duly presented to the appropriate

blic officials petitions containing

3,409 signatures. The number of valid

signatures neces to qualify the

measure for the ot under article II, at

section 8, subdivision (b), of the ie

Constitution is 555,790. Upon examination Ee.

of the certificates submitted by County at

officials on the basis of the random

sampling provided for in the Elections

. Code, respondent determined that the

petitions contained 108.76 percent of the

number of signatures required for a place

on the ballot. Respondent refused to take

steps to submit the measure to the voters

on the ground that the number of valid

signatures disclosed by the sample fell

short of the 110 percent then red by

section 3520, subdivision (g). tead,

she ordered local election officials to

verify each signature.

"The ag pment an of the measure, real

parties in interest in the present pro-

* ceeding, sought a writ of mandate before :

the Superior Court of Sacramento County ;

to compel respondent to certify the i

initiative as having qualified for the

ballot, and to take the steps required by

+ aac gree tae positied anae, although

en position ’

she was prohibited by law from certifying

the petitions because random sampling

(Continued)

338

™ Se i &ah™ Silty en ng

(Footnote continued from previous page.)

indicated fewer than 110 percent valid

signatures, she was nevertheless of the

opinion that the 108.76 percent valid

signatures found on the petitions

constituted substantial compliance with og

the requirement of the Elections Code to

qualify the measure for the ballot without

the need for verification of each signa-

ture. Following entry of a judgment,

stipulated by the ies, to the effect

that real parties had substantially

complied with the requirements of the

Elections Code so as to qualify the

initiative for the ballot, a writ of man- .

date was issued by the trial court direct-

ing respondent to certify the initiative

for the June 8, 1982, Primary Election,

and to take other steps required by law

to place the eaauare peters the voters in

that election.

"Thereafter, petitioners, who are

electors in various counties of the Famats

filed with us an original petition for writ

of mandate and prohibition to prevent

respondent from certifying the initiative

and to restrain her from performing any

act in aid of submission of the measure to

the voters. Because of the importance /

of the questions presented and the time

constraints involved, we issued an alterna-

tive writ of mandate and expedited briefing

V. California State ALF Re Seas

577, 523 P. 2d. 7} and cases cited. We

also issued a stay prohibiting joo 0 et

of the trial court's writ of mandate

proceeding disposition of the present

Vecektan

ae : 5 ees

se er i i; ~ : Vv ie Cs ee es

(Footnote continued from previous page.)

"While this case aad was pending,

the Legislature pass and the Governor

signed, an argenay measure (Stats. 1982,

one 102) providing that if, on or before

January 28, 1982, the Secretary of State

received from the several county clerks

certificates, based on a random sampling

technique, establishing that the number

of valid signatures affixed to an initia-

tive petition is more than 105 percent of

the number of qualified voters needed, the

petition shall be deemed to have qualified

for the ballot. The Secretary of State

received such certificates on or before

January 28, 1982.

"We conclude that the initiative

measure shall be placed on the ballot of

the June 1982 pr election.

"We do not reach the other issues

raised by petitioners. As we have fre-

quently observed, it is usually more

appropriate to review constitutional and

other challenges to ballot propositions

or initiative measures after an election

rather than to disrupt the electoral

process by prevent the exercise of the

people's franchise, the absence of

some clear showing of invalidity. (E.g.,

BSS to cabvipee. oa, ee 64 Cal.2d i.

13 P.2da 825

cai ai Foe. ese) 3 P24 6h 643]; gay

¥5 ofan E87 972) 25 cal res 3d 2 $357

"The gh ny 9 mae of the

judgment in Sacramento Superior Court, No.

301007, is vacated, and the peremptory

writs of mandate and prohibition are

denied. The judgment is final forthwith."

_- —

BS a eres A

35B

ides es ET om: me wits 2

oy fae ORS OPE Ae ET Pe eee

court concluded "[tJhat the initiative |

measure shall be placed on the ballot of | |

June 1982 primary election." The Brosnahan |

court also vacated its earlier stay of the ® :

judgment in superior court case No. 301007

which was followed by the certification of

the initiative proposition for election by

the Secretary of State.

We hold that Proposition 8 was con-

stitutionally eligible tees placed on -

the June 8 primary ballot. The initiative

was "qualified" when so ordered by the

superior court on January 22, 1982, well

in excess of the 13l-day requirement.

The fact that the state Supreme Court first

granted a stay of enforcement of case

No. 31007 and then vacated it on less

than the 13l-day period does not negate

qualification. To hold otherwise would

permit the opponents of any initiative to

| literally throw a monkey wrench into an

36B

initiative's qualification machinery by

merely filing a lawsuit and making only a

colorable showing for a stay order. Such

a result would be not only unreasonable

but ridiculous.

Even if the June 8, 1982, election

is not construed to be a "general election,"

it was a "statewide special election" for

purposes of all 12 initiatives then on the

statewide ballot. (See fn. 8, ante.) |

Any other reading of article II, section |

8, subdivision (c), would invalidate not

only Proposition 8 but also all the other

initiatives passed by the voters in this

and other earlier June statewide primary

elections. It also would require re-

submission of all 12 propositions on the

June 1982 ballot plus resubmission of

. countless propositions on the primary ba

ballot in previous years. Such an absurd |

result would be unconscionable and

unacceptable. "The right of initiative

is precious to the people and is one which

the courts are zealous to preserve to the

fullest tenable measure of spirit as well

as letter." (McFadden v. Jordan (1948)

32 CAl.2d 330, 332 [196 P.2d 787]; Perry

v. Jordan (1949) 34 Cal.2d 87, 90, 91

(207 P.2d 47].)

Finally, the state Legislature passed

an urgency measure (see fn. 8, ante) that

Proposition 8 be deemed to be "qualified"

for the June ballot provided on or before

January 28, 1982, the Secretary of State

received county clerk certificates, based

on random samplings, establishing that the

number of valid signatures affixed to the

initiative petition was more than 105

percent of the number of qualified voters

needed. Such certificates were received

by the Secretary of State on or before

January 28, 1982.

38B

B. Is - idat th

(4) Defendant next argues that

Proposition 8 in its entirety is uncon-

stitutional on its face because it vio-

lates the "single-subject" rule in

California Constitution, article II, sec-

tion 8, subdivision (a).22 Defendant's

reliance on Amador Valley Joint Union

High Sch. Dist. v. State Bd. of Boualiza-

tion (1978) 22 Cal.3d 208 [149 Cal.Rptr.

239, 583 P.2d 1281], and Brosnahan v. Bu,

supra, 31 Cal.3d 1, in support of this

argument is misplaced.

We construe the language and holding

in Amador Valley to be supportive of the

constitutionality of Proposition 8 in that

the court there applied the "reasonably

11. California Constitution,

article II, section 8, subdivision (4d)

(added Nov.8, 1966) provides: "An inia-

tive measure embrac more than one sub- )

ject may not be submitted to the electors .

or have any effect."

39B

germane" test in rejecting a challenge to

the constitutionality of Proposition 13

(the Jarvis-Gann tax initiative) on the

grounds that Proposition 13 violated the

single-subject rule. The Brasnahan case

is inapplicable since the majority of the

court declined to address the single-

subject issue prior to Proposition 8

being placed on the ballot. The dissent-

ing opinion of Chief Justice Bird and the

concurring and dissenting opinion of

Justice Mosk, which concluded that Proposi-

tion 8 did violate the single-subject rule

by employing the "functionally related"

test, is not a binding precedent. (31 Cal.

3d at pp. 1l, 17.) (See discussion, infra.)

~We hold that the single-subject rule

does not render Proposition 8 unconstitu-

tional as a whole because it satisfies

the requirements favoring the constitution-

ality of both legislation and initiatives

under the "reasonably germane" test as

discussed by the state Supreme Court in

landmark cases dating back 50 years.

The case of Evans v. Superior Court

(1932) 215 Cal. 58 [8 P.2d 467], interpret-

ed the single-subject rule in relation to

the legislative act establishing the

Probate Code. The code was upheld as

not embracing nore than one subject.

The act contained approximately 1,700

- sections which dealt with such matters

as the custody, disposal by will, success-

ion, administration, and distribution of

adecedents' estates and the custody and

administratiun of estates of persons

under guardianship.

The single-subject requirement for

initiative measures was added to the

California Constitution as article II,

section 8, subdivision (d), in November

1966. (See fn. 11, ante.)

boy:

at),

Ro,

visions, having one general object, if

In Perry v. Jorden, supra, 34 Cal.2d

87, the issue before the court was an

initiative constitutional amendment which

sought to repeal an article of the

California Constitution relating generally

to "aid to needy, aged and blind." The

opponents of the initiative argued that

the measure had four different purposes and

Claimed it had in all 18 incidental pur-

poses. (34 Cal.2d at p. 93.)

The Perry court construed the single-

subject provision adopted in 1948 (see fn.

11, ante) as upholding the validity of the

proposed constitutional amendment. The

court utilized the principles set forth

in the case law interpreting the single-

subject rule for legislation and quoted at

length from Evans v. Superior Court, supra,

215 Cal. 58, pages 62-63, as follows

(34 Cal.2d at pp. 92-93): "Numerous pro-

fairly indicated in the title, may be

- united in one act. Provisions governing

projects so related and interdependerit as

to constitute a single scheme may be

properly included within a single act.

(Barber v. Galloway, 195 Cal. 1, 3 [231 P.

34].) The Legislature may insert in a

; single act all legislation germane to the

general subject as expressed in its title

and within the.field of legislation

suggested thereby, (Treat v. Los Angeles

Gas Corp., 82 Cal.App. 610 [256 P. 447].)

Provisions which are logically germane to

the title of the act and are included

within its scope may be united. The

general purpose “of a statute being declar-

ed, the details provided for its accom-

plishment will be regarded as necessary

incidents. (Estate of Wellings, 192 Cal.

- 506, 519 [221 P. 628];. Buelke v.

Levenstadt, 190 Cal. 684, 687 [214 P. 42];

435

$ . »

et Ae ee - tne e j Vay

F =, _ r ws a ee ar eee TS Bers ee, ¥4

ee ees ae , Pe ge Whi Pon, te eet 3 te 7

os SEA ae eee Bete ee

Ee Rae eer ee, See Bee eS

and cases cited.) The language of this

court in Robinson v. Kerrigan, 151 Cal.

40, 51... ., is especially applicable to ;

this case at this point. A provision

which conduces to the act, or which is

auxiliary to and promotive of its main

purpose, or has a necessary and natural

connection with such purpose is germane

within the rule. ...'"

The Perry court further noted (again

quoting from Evans) at page 92 that; "'

. « « the [single-subject] provision is

not to receive a narrow or technical

construction in all cases, but is to be

construed liberally to uphold proper

legislation, all parts of which are

reasonably germane. (Heron v. Riley,

209 Cal. 507, 510 [289 P. 160].) ‘The :

provision was not enacted to provide -

means for the overthrow of legitimate |

legislation. (McClure v. Riley, 198 Cal.

44B

23, 26 [234 P. 429].). . .'" (Italics

added.) _

In Amador Valley Joint Union High

School Dist. v. State Board of Equalize-

tion, supra, 22 Cal.3d 208 (Bird, C. J.

concurring and dissenting by reason of

violation of the equal protection clause)

the state Supreme Court, applying the

reasonably germane test, held that

Proposition 13, (the Jarvis-Gann tax

initiative which added article XIII A

to the state Constitution imposing real

property assessment and tax rate limita-

tions and restrictions on state and local

taxes) satisfied the single-subject rule.

The Amador Valley court quoting from

Evans stated at pages 229, 230: "'[TJhe

[single-subject] provision is not to

receive a narrow or technical construction

in all cases, but is to be construed

liberally to uphold proper legislation,

45B

oc aS eee

all_parts of which are reasonably germane.

(Citation. ][%] Numerous provisions, having

one general object, if fairly indicated in

the title may be united in one act.

Provisions governing projects so related

and interdependent as to constitute a

Single scheme may be properly included

within a single act. [Citation.]'" (22

Cal.3d 208, 229-230.) (Italics in

original.)

In Amador Valley the court referring

to Perry stated at page 230: "We thus

draw from Perry its primary lesson that

an initiative measure will not violate

the single-subject requirement if, despite

its varied collateral effects, all of its

parts are ‘reasonably germane’ to each

other. We note also the existence of a

more restrictive test recently proposed *

in the dissenting opinion of Justice

Manuel in Schmitz v. Younger (1978) 21

46B

Cal.3d 90, 100 [145 Cal.Rptr. 517, 577 P.

2d 652], wherein he suggested that 'an

initiative's provisions must be function- 4

ally related in furtherance of a common

underlying purpose.' Our analysis of

article XIII A convinces us that the

several elements of that article satisfy

either standard in that they are both

reasonably germane to, and functionally

related in furtherance of, a common

underlying purpose, namely, effective real

property tax relief." (22 Cal.3d at pp.

229-230.) (Italics added.)

The Amador Valley court noted that

two purposes of this single-subject rule

were 1) to minimize the risk of voter

confusion and deception? and 2) to avoid

° e ° c concluded

the risk of voter c on was "diluted" 2

by taking judicial notice of the fact that is

the measure received a great deal of

Veents 5 ama prior to the election and

Continued )

exploiting the initiative process by

combining in a single measure several

provisions which might not have commanded

majority support if considered separate-

ly.?? The court found that neither such

(Footnote continued from previous page.)

the fact that the Voter's Pamphiet

so contained an elaborate and detailed

explanation of the various elements of

the measure. (Id., at p. 231.)

13. The Valiey court. found

. there was no "exploitation" of the voters

simply because the proposition could

have been presented as separate proposi-

tions as contended by itg opponents and

that the various elements\of Proposition

13 were designed to "intezlock with the

others to assure an effective tax relief

pro -" (Id., at p. 232.) The court

sta "Aside from the obvious difficulty

of ever establishing satisfactorily such

‘independent voter Stag this

standard would defeat man many ie egitimate

enactments containing iso » arguably

‘unpopular,' provisions Ae soe arpa deemed

necessary to the integrated funct

of the ce tage a as a whole.

FORE ie

purpose was frustrated by the passage of

Proposition 12.

In Fair Political Practices Com. v.

Superior Court (1979) 25 Cal.3d 33, 40-41

(157 Cal.Rptr. 855, 599 P.2d 46], the

California Supreme Court considered whether

the initiative concerning The Political

Reform Act of 1974 violated the single-

subject rule. That initiative had four

major subjects: 1) regulation of election

to public office, 2) regulation of ballot

measures, petitions and elections, 3)

regulation of public official conflicts

of interest, and 4) the regulation of

lobbyists.

After tracing the history of the

TFootnote continued from previous page.)

fag?) Wetauould' daft or Euunt, tts force

y for reasons that are constitutionall

only for and acc y we conclude tha

article XIII A does violate the single-

subject requirement of article II." (22

Cal.3d at p. 232.) (Italics added.)

49B

single-subject requirement for initiative

measures from its inception and the

application of the reasonably germane test

the Fair Political Practices court

concluded "Consistent with our duty to

uphold the people's right to initiative

process, we adhere to the reasonably

germane test and, in doing so, find that

the measure before us complies with the

one subject requirement." (25 Cal.3d 33,

41./ (Italics addea.)**

14. We quote at length from the

majority opinion by pet ro ph in rl

pais Political Be ecision exp -

@ reasons for adhering to the

"reasonably germane" test as distinguished

from a more restrictive test as urged by

the real in interest. "'The amend-

ment of the California Constitution in

1911 to provide for the initiative and

referendum signifies one of the outstand-

ing achievements of the ssive

movement of the early 1900's. Drafted in

light of the theory t all power of

government ultimately resides in the

people, the amendment speaks of the

initiative and referendum, not as a right

granted the people, but as a power

reserved to them. Declaring it "the duty

(Continued)

(Footnote continued from previous pase)

of the courts to ott guard thi

(a G85)°176 ¢ “App, 24 ee Rptr.

sot recaree

most 9 of our

; . Acker

a TBS “cal .App 24 55 ; : 1 Ca a

7 > " ur

judicial poi to apply « diberal Beral

to ower enever it is

rier er may be

oubts can

reasonably be er in favor of the use

of this reserve power, courts will preserve

it." ( ; 189 Cal.

Pe ot App . 34 So eahche e.

é2a]).!

591 1155 » 557 4 2d tibet ta 33 =

A.L.R.3da 10 (fns. omitted);

(1967) 67 Cal.2d mi 28 al.

. 26, 431 P.2d 650]). (a] In ke

with that policy favoring the initia ine.

the voters may not be limited to brief

general statements but mav deal compre-

wa and in detail within an area of

"Although the initiative measure be-

fore us is wordy and complex, there is

little reason to ect t claimed

voter confusion could be eliminated or

substantially reduced by dividing the f

measure into four or ten separate pro- :

Pia nll Se

. foo

(Footnote commiaars a pity: page.)

P “2

cont a must Be borne.

or does the possibility that some

voters might vote for the measure--while

objecting to some parts--warrant rejection

of the reasonably germane test. Such risk

is inherent in any initiative conta

more than one sentence or even and ‘and

in a single sentence unless the provisions

are redundant.

“The enactment of laws whether by the

Legislature or by the voters in the last

' analysis always presents the issue whether

on balance the proposed act's benefits

exceed its shortcomings. If so, the

remedy for short comings is repeal,. which

will be difficult whether the law is

adopted by the Legislature or the peopie.

The difficulty of repeal is merely one

factor to be considered by legislators and

voters when cas their votes.

"Given the widespread public debate

of initiatives, the explanations in the

ballot pamphlets and in the media, and

the huge volume of legislative business--

over 1,000 bills enacted each year--it

is unreasonable to assume that the initia-

tive measures receive less scrutiny than

proposed pe re pai er

"The oll soy ae reserved the legis-

lative themselves as well as

having Eranted it to the slature,

there is no reason to hold t the —

people's power is more limited than that

of the Legislature, and the single sub-

ect r rements applicable to both

Continued)

52B

TT tere tel, a ee 8 Oe

“ G :

7 aa

Turning to the case at bench and our

analysis of the text of Proposition 8

contained in the "California Ballot Pan-

phlet, Primary Election, June 8, 1982"

compiled by Secretary of State March Fong

Eu, (hereinafter referred to as "Voters

Pamphlet" and attached as Appen. A, post,

p. 1155) considered in light of Evans,

Perry, Amador Valley and Fair Political

Practices, and Crawford v. Board of Bduce-

tion (1980) 113 Cal.App.3d 633, 652, fn. 5

(170 Cal.Rptr. 495]), we hold applying the

reasonably germane test, that Proposition

8 does not violate the single-subject rule.

(Footnote continued from ote page.)

ers a Cope es art. II, § 8, subd.

1a); ext Fagg not be used to

setabiish ah

bee a ¥: $A Ba soe,

y, we adhere to the reasonably

germane test for both.

"The provisions of the initiative

are reasonably germane to the subject of

political practices, and there is no

violation of the one subject requirement."

(Italics added.) (25 Cal.3d at pp. 41-43.)

53B

by deleting section 12 of article I deal-

ing with bail and by adding section 28 to

article I. Section 28 sets forth six .

provisions all dealing with the criminal

justice system in the areas of law

enforcement and criminal procedure. The

areas are restitution in criminal cases,

the right of students and staff to be

safe at school, evidence at criminal pro-

ceedings, bail, and use of prior convic-

tions in criminal proceedings. It is

made quite clear from the preamble to this

section (subdivision (a)) that the "Right

to Safe Schools" is a right to be free

from criminal conduct. The other pro-

"visions on their face concern criminal

procedural changes all designed to place

emphasis on the rights of the "other

party” to a crime--the victim. The

initiative also enacts statues which add

54B

certain sections to the Penal Code and the

Welfare and Institutions Code. Again

each one of these provisions relates to a

criminal law and procedure. Each is

designed to ensure that those who commit

crimes receive proper punishment and that

the victims and potential victims of crime

receive protection. (See Appen. A, post,

p. 1155.)

The "official" title and summary

prepared by the Attorney General fairly

described in concise terms the scope of

Proposition 8. Included in the Voters

Pamphlet was the complete text of

Proposition 8 for the voters to read.

(See Appen. A, post, p. 1155.)

An "Analysis by the Legislative

Analyst" William G. Hamm, appearing in

the Voters Pamphlet also pointed out that

Proposition 8 proposes many changes in

the State Constitution and statutory law

~~ 7 a rr —- - —™

that would alter criminal justice pro-

cedures and punishments and constitutional

rights." Mr. Hamm's analysis went on to

summarize the major changes. Both the

Attorney General and the Legislative

Analyst stressed that approval of the

measure would result in major state and

local fiscal costs. (See Appen. A., post,

p. 1155.) °

Each of the several provisions in

Proposition 8 are reasonably germane to

the one common purpose and general object

as expressed in the title of the initia-

tive which is to reform the criminal

justice system so that the system will

more effectively protect all California

citizens--victims and potential victims

of crime. Each of the provisions is

logically germane to the title. The

words “criminal justice" which appear as

the first two words of the official title

of the initiative constitute an acceptable

abreviation when taken in context and

reasonably refer to the entire system of

criminal justice. Each of the provisions

are auxiliary to and promote this main

purpose. |

The pro and rebuttal argunents by

prominent and knowledgeable governmental

officials and citizens involved in

Proposition 8 from its inception which

are incorporated in the Voters Pamphlet

make it absolutely clear that the single

general purpose and object of Proposition

8 is directed at reforming California's

system of criminal justice to make it

more responsive to the needs of all

California victims and potential victims

of criminal activity. (See the arguments

in favor of Prop. 8 by Lieutenant General a

Mike Curd, Attorney General George

Deukmejian, and the pro and rebuttal

arguments of Paul Gann in Appen. A, post,

p. 1155.)

Any risk of "voter confusion" in

respect to Proposition 8 was dispelled by oT

wide general dissemination of the Voters

Pamphlet and heavy media coverage. The

Voters Pamphlet (Appen. A, post, p. 1155)

was mailed to every household in Califor-

nia where more than one voter with the

same surname resided and additional copies

were available free by either calling or

writing the county clerk or registrar of

voters. Each voter could personally read

the summary by the Attorney General, the

analysis by the Legislative Analyst, the

arguments pro and con and the complete

text of Proposition 8. We take judicial

notice of the massive statewide media

coverage prior to the June 8 primary

election which included editorial positions

taken by leading newspapers discussing the

58B

initiative and its predicted effects.

(Evid. Code, § 452, subd. (g).) Interest

in and, therefore, understanding of the

objective of the initiative and the role

each of the provisions played in achieving

that goal was heightened by the positions

taken on Proposition 8 by candidates

during the primary for statewide office

as well as media coverage of the pro and

con arguments in the Brosnahan case.

Nor has there been an "exploitation" F

of the voters by not presenting each

provision in Proposition 8 to them as a

separate initiative. The voters favored

the Cvheoathton by a vote of 2,770,225 ;

(56.4 percent) to 2,144,284 (43.6 percent). a

There is no showing, and it would be sheer |

speculation to assume that the result

would have been any different if any

provision contained in Proposition 8 had

been submitted to the voters as a

separate initiative. To the contrary, the

fact that Proposition 4 concerning bail

on the same ballot passed by a larger

margin of votes than did Proposition 8

which also has a bail provision would tend

to indicate that the voters selectively

considered each provision in Proposition

8, and there was some aspect of Proposi-

tion 8, other than the bail provision,

that contributed to the drop off of votes

as between the two propositions.?

I5. We note, without deciding, that

Proposition 4 concerning bail which paneed :

by a larger number of votes than did :

Proposition 8 may prevail only over those

provisions in Proposition 8 rela to

bail to the extent there is ac ct in

the provisions of the two propositions.

California Constitution, article XVIII,

section 4, provides: "A p sed amend-

sink ot eweleien. sas ot by a waserity of

electors approved a

votes thereon takes effect the day

the election unless the measure provides

otherwise. If of 2 or more

measures approved a same election

conflict, those of the measure a tl

se nie} adtarnaiee yo

60B

Furthermore, it would have been impractical

and illogical to require the thousands of

concerned citizens who carried the peti-

tion and the 663, 409 citizens who signed

the petition to shuffle such a mass of

separate petitions directed at the one

objective previously discussed. Moreover,

if there was a separate initiative process

for each provision of Proposition 8, it

would have unnecessarily lengthened the

ballot and created confusion for all con-

cerned.

We are not unaware of the concurring

and dissenting opinion of Justice Mosk and

the dissenting opinion of Chief Justice

Bird in Brosnahan v. Eu, supra, 31 Cal.3d

1. These justices express the view that

the more restrictive functionally related

test proposed by Justice Manuel in his

dissenting opinion in Schmitz v. Younger,

(1978) 21 Cal.3d 90 [145 Cal.Rptr. 517,

61B

Veleet @,

SOA) eae wir

577 P.2d 652] should be used to resolve the

single subject issue rather than the

reasonably germane test. (31 Cal.3d 1, 9,

17.)

The separate opinion of Justice Mosk

in Brosnahan states that the more restric-

tive functionally related test proposed

by Justice Manuel in his dissenting

opinion in Schmitz v. Younger, supra, 21

Cal.3d 90 was "introduced" in Amador Valley

and Fair Political Practices and "in

substantial effect it has been adopted by

this court. I fully accept it." (31 Cal.

34.1, 9.)

With due respect, our reading of

Amador Valley and Fair Political Practices

indicates that those cases did not

"introduce" the functionally related test

but merely acknowledged its "existence."

The majority opinion in Amador Valley

(per Richardson, J., with Tobriner, Mosk,

. >

ose - SS oe 7% se Re eee

Clark, Manuel and Newman, JJ. conc.),

states: "We note also the existence

(italics added) of a more restrictive test

recently proposed in the dissenting opinion

of Justice Manuel in Schmitz v. Younger

(1978) 21 Cal.3d 90, 100 [145 Cal.Rptr.

517, 577 P.2d 652], wherein he suggested

that ‘an initiative's provisions must be

functionally related in furtherance of a

common underlying purpose.' Our analysis

of article XIII A convinces us that the

several elements of that article satisfy

either standard in that they are both

reasonably germane to, and (italics

original) functionally related in further-

ance of a common underlying purpose,

namely, effective. real property tax

relief." (22 Cal.3d 208, 230.) Since

Proposition 13 (the Jarvis-Gann tax

initiative) met both the reasonably

germane and functionally related tests,

638

a n °

> " ’ 4 " . ‘ .* « . a.

~ Y : : , P ress . Dy an i %

SF ie eg. tt RS Pi Py ace” Bet) te Ola ee ae ay eNO ae

we construe the notation of the "existence"

of the latter as merely the driving of

another nail into the lid of the empty

coffin into which the opponents of

Proposition 13 wished to place it.

Our reading of Fair Political

Practices discloses that the majority did

not there "introduce" the functionally

related test. To the contrary the Fair

Political Practices majority opinion (per

Clark, J., with Mosk and Richardson, JJ.,

cone. )2® in over five pages discussing the

single-subject rule only briefly

mentioned the existence of the dissent of

Justice Manuel in Schmitz v. Younger,

Supra, 21 Cal.3d 90. Justice Clark

° ce Newman ac

and dissenting opinion stated "I e

with the majority conclusion that

e subject rule has not been violat-

ed. (25 Cal.3d 33; 50.)

Justice Tobriner concurred on the

basis of the functionally related test.

paged dissented by applying the

same ‘

stated emphatically that "Consistent with

our duty to uphold the people's right to

initiative process, we adhere to the

reasonably germane test and, in doing so,

find that the measure before us complies

with the one subject requirement." (25

Cal.3d 33, 41.) .

Accordingly, in our opinion, the

functionally related test was not "in

substantial effect" adopted (whatever that

Political Practices decisions. We are

bound by the reasonably germane test which

remains the law today. That test has

served Californians well during the past

50 years and was applied as recently as

1978 in the Amador Valley case and 1979

in Fair Political Practices. Nor do we

perceive any logical or persuasive reason

to suddenly jettison the reasonably

germane test in favor of the more restric-

tive functionally related test. The fact

that California's criminal justice system

ox is being gored by Proposition 8 is not

a legally cognizable reason for such a ®

sudden flip-flop in the test used for

resolving the single-subject issue presented

in this case.

In sum, we do not view Proposition 8

as the result of a so-called "log rolling"

exercise. (See, Schmitz v. Younger (1978)

21 Cal.3a 90, 93, 97 et seq. (dis. opn.)

(145 Cal.Rptr. 517, 577 P.2d 652]; Feir

Political Practices Com. v. Superior Court,

gupra, 25 Cal.3d 33, 40.) ‘The Proposition

8 "log" was used by the 2,770,225 concern-

ed citizens who voted for it as an

"[initiative] battering ram" (see, Amador

Valley Joint Union High Sch._Dist. v.

State Bd. of Zgualization, gupra, 22 Cal.

3a 208, 232 and fn. 12, ante)for the

legitimate purpose of protecting all

California citizens--victims or potential

victims of crime by bringing about

reasonable and meaningful reform in

California's criminal justice system.

(5) (See fn. 17.) We noid that

Proposition 8 does not violate the single-

subject requirement of article II, section

8, subdivision (d) of the California

Constitution.>’”

17. Ass ‘ , that the

functionally* relat ‘test is applied,

¥WFinction" is defined in Black's

Law gent gad tS ugh ed. 1979) West Publish-

st.

ing Co., Minn., as: "Derived

from Latin ‘functus, ' the past participle

of the verb ' r’' which means to per-

form, execute, a eter. « «6% e

nature and er action of 3

activi ate to any or

profession. . Office; duty; i11-

ment ore a_definite end oF act sc na By

the Cc e adjus tment > -

Tes added.) pa

~—~—#¥¥iRelated" is defined in Webster's

Third New International Dicti (1976),

Merriam-Webster, G. & C. Merriam

ingfield, Mass., as "having a relation-

: connected reason of an establised

or discoverable tion," and "Relation"

~ defined as "a logical bond; the state

being mutually or reciprocally interested."

(Continied)

Cc. ogit 8 onstitut

amendment or revision? An amendment.

(6a) Defendant Wilson next contends

that Proposition 8 is a constitutional

"revision" as distinguished from an

"amendment" and therefore unconstitutional.

Defendant and the State Public Defender as

amici, relying on McFadden v. Jordan,

(Footnote continued from preva ous page.)

we would still hold that sition 8

complies with the requirements of the .

s e-subject rule. The only uirement

of the functionally related test is that

the various provisions of an initiative

measure be "functionally related in further-

— of 5 common ee ae a poy ‘

rr. a

Pp. 33) The functionally related —

standard only precludes "the amalgamation 4

of unrelated provisions" under some " :

"broad umbrella" of a topic; it permits

lete but focused initiatives.

( 2 21 Cal.3d at

pp. 01 Cee eee ee astion 8

focuses on the rights of crime victims.

Each of its provisions is related in

furtherance of its to reform the

responsive to the needs and rights of

victims and potential victims of crime.

Proposition 8 does not constitute a

comprehensive revision of the entire

(Continued) |

(Footnote continued from previous page.)

criminal justice system, although its

provisions cover different areas within

the subject of criminal justice. It is

readily apparent that many of the various

a eg of Proposition 8 could have

een the subjects for separate ballot pro-

positions. However, none of the cases

construing the single-subject requirement

to date suggests that the above facts

alone demonstrate Proposition 8 violates

the single-subject e.

The provisions of an initiative mea-

sure’ under the functionally related test

only need be functionally » not

functionally ° provis-

ion need not be @ a precisely

ear of a fine watch which must mesh with

e others in the operation of a sole

function. Neither the provisions of

Proposition 13 nor the provisions of the

Political Reform Act of 1974 could meet

such a stringent standard. Yet the

Supreme C found that both measures

satisfied the single-subject rule. Such

precision is not in the drafting

eh a "|initiative} battering ran."

5 Valley, supra, 22 Cal.3d 208, 228,

The relationship between the various

provisions of an initiative need only be

"in furtherance of the common purpose."

They all ly must be directed to the

same end whether it be real property tax

relief litical reform, or, as in

Proposd on 8 reform of the criminal

ce system as it relates to the actual ,

and poten victims of crime. Proposi-

tion 8's provisions are both reasona $

Peo ae functionally related to the mCi

e of its overall se-- i,

es pike meggal aired pr for the ss of haem

victims potential victims crimes. ¥

* i

eae

698 )

Supra, 32 Cal.2d 330, argue that Proposi-

tion 8 is a revision of the California

Constitution because the various provisions

of the initiative effect changes in three

codes and alter protections provided by at

least seven sections of the California

Constitution.

We hold that Proposition 8 is a

constitutional amendment and not a

constitutional revision and that it was

therefore properly adopted by the initia-

tive process. Our reasoning follows:

(7) It is clear that while the voters

may amend the state Constitution through

the initiative process set forth in

article II, section 8, the Constitution

may be revised only by two methods set

forth in article XVIII. Under the first

methoc, the Legislature must postpone the

revision to be submitted to the voters and

under the second, the Legislature must

‘

submit to the voter's at a general election

the question of whether to call a consti-

tutional convention. (Amador Valley,

Supra, 22 Cal.3d 208, 221.) Thus an

initiative measure may not "revise" the

Constitution. (Id.)

The defendant's reliance on McFadden

v. Jordan, supra, 32 Cal.2d 330 is

misplaced. In McFadden the Supreme Court

in August 1948 struck down an initiative

measure which would have added 21,000 words

to the existing Constitution as being an

‘attempt to revise rather than amend the

Constitution. That initiative measure

dealt with varied and diverse subjects

including pensions, gambling, taxes,

oleomargarine, healing arts, civic centers,

senate reapportionment, fish and game, and

surface mining. Its enactment would have

repealed or substantially altered at

least 15 of the then 25 articles in the

Constitution.

Of significance here is the fact that

the Supreme Court in McFadden could not

apply the single-subject rule to the

challenged initiative measure since that

constitutional requirement was enacted at

the same election at which the challenged

initiative measure was scheduled to be

submitted to the voters.

The amendment/revision rationale

became much less important after enactment

of article II, section 8, subdivision (d),

of the California Constitution and was not

of necessity considered in the Fair

Political Practices case where the

Political Reform Act initiative was held

not to be violative of the single-subject

- rule.

In Amador Valley, supra, the state

Supreme Court considered the contention

that Proposition 13 was a revision rather

than an amendment to the Constitution. The

court reexamined its holdings in McFadden

: and in Livermore v. Waite (1894) 102 Cal.

z 113 [36 P. 425], an earlier decision upon

PD ~ watch the MeFadden court relied, end

; stated: "Taken together our Livermore and

‘ McFadden decisions mandate that our

: analysis in determining whether a particular

ig constitutional enactment is a revision or

¥ an amendment must be both guantitative and

: | Qualitative in nature. For example, an

" enactment which is so extensive in its

3 provisions as to change directly the

F ‘substantial entirety’ of the Constitution

by the deletion or alteration of numerous

4 existing provisions may well constitute a

» revision thereof. However, even a

relatively simple enactment may accomplish

such far reaching changes in the nature

of our basic governmental plan as to

amount to a revision also. In illustra-

Poctnte Gonttillied pa ce previous page.)

we would still hold that sition 8

re pe with the requirements of the

le-subject rule. The only ulrement

of the functionally related test is that

the various provisions of an initiative

measure be "functionally related in

teen wat of a common underl purpose."

Sets STE ,22 Cal.3d » at

(i ep ) eet tally related standard

only precludes "the amalgamation of un-

related provisions" under some "broad

umbrella" of a topic; it permits parse

but focused meni ae tut an ane

eae -3da at pp.

P ssent) RR. cosition 8 focuses on the

' rights of crime victims. Each of its

provisions is related in furtherance of

its to reform the criminal justice

system make it more responsive to the

needs and rights of victims and potential

_ victims of crime.

Proposition 8 does not constitute a

comprehensive revision to the entire

criminal justice system, although its

ig oo cover different areas within

pcan gs of criminal justice. It is

apparent that many of the various

provis ons of Proposition 8 could have been

subjects for separate ballot proposi-

rig B However, res ig the oars nage ae

e single-subject requiremen e

suggests that the above facts alone

demonstrate Proposition 8 violates the

single-subject rule.

The provisions of an initiative mea-

sure under the functionally related test

% only need be functionally » not

B. functionally provi-

Be sion need not a precisely machined

of a fine watch which must mesh wih

Continued)

wy ’ 7 i. 4

x 74B ae

tion, ‘the parties herein appear to agree

that an enactment which purported to vest

. all judicial power in the Legislature

@ would amount to a revision without regard

either to the length or complexity of the

measure or the number of existing articles

or sections affected by such change."

(Amador Valley, supra, 22 Cal.3d at p.

223.)75 (1talics added.).

;

Is. e reme court in a |

Valley found that Proposition 1 enact- a

ing article XIII A, was not a revision of my!

the Constitution. In re to article - ae

XIII A's titative effect on the

Constitution, the court noted that it

only contained 400 words and significantly

affected only one other article of the

Constitution--article XIII. é

With respect to its qualitative effect

on the basic plan of government, the

i o2 SE: court rejected cally argument A

(6b) Under the quantitative and

qualitative test of Amador Valley,

Proposition 8 is an amendment and not a

revision of the state Constitution. In

quantitative effect the constitutional

amendment portion of Proposition 6 is not

extensive. It adds less than 700 words,

approximately one-fourth of which consti-

“ate a preamble. It expressly repeals

only one section of the Constitution and

adds only one. The repealed section dealt

with bail and pretrial release. There is

no comparison between the quantitative

aspects of this amendment and the "amend-

ment" ruled invalid in Mc Fadden.

With respect to the qualitative nature

of Proposition 8, it obviously does not

restructure the basic plan of government.

The fact the amendment may have a signifi-

cant fiscal impact on local and state

government does not make it a "revision."

(Cf. Amador Valley, supra.)

From both a qualitative and quanti-

tative viewpoint, Proposition 8 is

considerably less expansive than the

Political Reform Act Initiative of 1974,

upheld as valid, which contained more than

20,000 words and which covered such diverse

subjects as elections, public officers, and

lobbyists.

(8) In summary, we hold that Proposi-

tion 8 was constitutionally eligible for

the Jume 1962 primary ballot, does not

violate the single-subject requirement of

' article II and is a constitutional

amendment as distinguished from a consti-

tutional revision. We hold that Proposi-

tion 8 on its face is a valid constitu-

tional amendment which became effective

on June 9, 1982.

D. Does Proposition 8 comply with funda-

mental constitutional purposes and

principles? Yes.

Proposition 8 is in complete harmony

with the basic purpose of our American

form of constitutional government. Broad

constitutional principles reinforce,

buttress and underpin our holdings on the

narrower constitutional issues raised in

the instant case, as hereinbefore discussed.

’ Indeed, to hold other than we have in

respect to the narrower constitutional

issues would not merely strike a discordant

note with, but would also violate, those

basic overriding constitutional purposes

and principles. We deem it necessary and

appropriate to again review historically

and reaffirm, those basic constitutional

purposes and principles and assess their

relationship to the case at bench.

The founding fathers of this democra-

tic republic deliberated on the most

persistent and perplexing of all political

problems, the tensions between the claims

of order and the claims of freedom. They

tipped the balance in favor of social

order. (See Kirk, The Roots of American

Order, sponsored by Pepperdine University,

Open Court, La Salle, I11., 1974.)7?9

The three major historic documents

the United States had produced ((1) the

Declaration of Independence, (2) the

Constitution, and (3) the Federalist) all

confirm that the fundamental purpose of

our American form of government is to

provide security for its citizens from

19. The frontispiece states: "The

tion of this book has been red

| epperdine University as a contribution

toward the celebrating of the Bicentennial

the United States; it is meant to assist

in renewing an apprehension of America's

threats both outside and within its

borders, so they may enjoy their individual

freedoms.

The Declaration of Independence was

written by the 33-year-old Thomas Jefferson

in the parlor of his second floor walkup

in Philadelphia in a half-day's time.

This document with only a few corrections

was reported to Congress.

On July 4, 1776, the Declaration was

signed by 56 of our founding fathers, 24

of whom were lawyers and jurists. The

second paragraph of the Declaration states:

"We hold these truths to be self-evident

that all men are created equal, that they

are endowed by their Creator with certain

inalienable rights, that among these are

life, liberty, and the pursuit of happiness.

That to secure these rights, governments

are instituted among men, deriving their

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governed."

The revolution and the Declaration of

Independence made America an independent

nation. The Constitution made us a united

nation. On May 14, 1787, the historic

constitutional convention convened in

Constitution Hall in Philadelphia. Follow-

ing four months of stormy debate in secret

_ session the delegates hammered out the

Constitution, which was ratified on

September 17, 1787. The Constitution

became our blueprint for order and

liberty under law. The preamble to the

Constitution states the purpose of the

Constitution: "We the people of the

United States, in Order to form a more

perfect Union, establish Justice, insure

domestic Tranquility, provide for the

common defense, promote the general Welfare,

and secure the Blessings of Liberty to

Ourselvés\and our Posterity, do ordain and

establish this Constitution for the

United States of America."

On December 15, 1791, in fulfillment

of a promise to the anti-Federalists, the

first 10 amendments (the Bill of Rights)

were adopted to serve as a legal canopy

for protection of personal freedoms from

governmental encroachment. However,

"(P]rimarily, governments exist for the

maintenance of social order." (Chicago v. |

Sturges (1911) 222 U.S. 313, 322 [56 L.Ed.

215, 220, 32 S.Ct. 92).) "The Bill of

Rights was not intended to deny that

primary mission. This is not to belittle

the inestimable rights thus consecrated,

but rather to say that those rights may

not be read to defeat the very reason for

government itself." (State v. Biseccia

(1971) 58 N.J. 586 [279 A.2d 675).)

"The Federalist" is a series of 85

essays written by Alexander Hamilton,

James Madison and John Jay between October

1787 and May 1788. The essays were print-

ed, under the pseudonym of "Publius" in

New York newspapers to persuade the people

of New York to ratify the new federal

Constitution. Thomas Jefferson acclaimed

"The Federalist" as "The best commentary

on the principles of government ever

written."

"The Federalist" is accepted as an

authoritative treatise on the principles

of the American constitutional form of

government and has often been quoted in

Supreme Court decisions. An analysis of

"The Federalist" compels the conclusion

that the founding fathers designed the

federal Constitution to insure that the

people are sovereign and to provide for

an orderly society as clearly stated in

the Preamble. (See "The Federalist,"

Franklin Library, Franklin Center, Pa.,

1977.)

The California State Constitution

has, in substance, adopted the primary

purpose and basic principles of the

federal Constitution. Article I, section

1 of the Constitution of the State of C

California proclaims: “All people are

by nature free and independent, and have

certain inalienable rights, among which are

those of enjoying and defending life and

liberty; acquiring, possessing, and pro-

tecting property; and pursuing and obtain-

ing safety, happiness, and privacy."

Of particular significance to the case

at bench and Proposition 8 is article II,

section 1 of the California Constitution,

which declares: "All political

power is inherent in the people. Govern-

ment is instituted for their protection,

security, and benefit, and they have the

right to alter or reform it when the public

good may require."

The passage of Proposition 8 should

come as no surprise in view of the Pre-

amble to the federal Constitution, and

article I, section 1 and article II,

section 1 of California's Constitution,

85B

and the escalating crime problem. After

the cabooses of the Proposition 13 (the

Jarvis-Gann tax initiative) and the

Proposition 1 (the antiforced busing

initiative) trains cleared the polling

station, Proposition 8 (the victims' Bill

of Rights initiative) could be heard

coming down the track without putting an

ear to the rail.

The Proposition 8 initiative was

passed because of the public's perception

that the stewards of the criminal justice

system had failed. to come to grips ina

realistic and common sense manner with the

mounting crime wave. (See fn. 20 below“?

and the FBI Crime Index statistics on

California, infra.)

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expectation for a large segment of the

American

It is the duty of every governmental

agency and official in all three branches

of government affected by Proposition 8

(Footnote continued from pervious page.)

by the American Bar Association, (Spring

1982, vol. 21, No. 2). The article

discusses "The National 1978 Yankelovich

Poll" which reflected public expectations

and concerns with the courts.

The Yankelovich Poll Report stated:

"The following iy expectations of

the public emerge: (1) courts should

protect society; (2) courts should insure

equality and fairness; (3) quality

performance by courts and court personnel

is measured responsiveness, competence,

and accessibility. These expectations are

simultaneously held. Perceived failure

to meet these expectations underlies the

desire for reform"

The Yankelovich Poll concluded that:

"Street crime was viewed by 88 percent as

the most serious public problem. While

the public by no means expects courts

alone to solve the crime problem, it does

Clearly expect them wget goed a role.

Courts are currently

public. The perceived bility

of courts to reduce the crime rate is the .

to implement the various provisions of

the initiative in accordance with the

will and command of the sovereign people.

Disputes which may arise over the imple-

mentation of any particular provision

in the initiative will of necessity have

to be resolved by the third branch in

accordance with controlling law.

"Truth in Evidence" Provision

A. General:

Proposition 8 adds to article I of

the state Constitution section 28, : ¥

subdivision (d), which provides: "Right :

te Truth in Evidence. BExcept as provided 3

by statute hereafter enacted by a two-

thirds vote of membership in each house of

the Legislature, relevant evidence shall

ak en

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dng, including pretrial and post conviction

motions and hearings or in any trial or

hearing of a juvenile for a criminal

offense, whether heard in juvenile or

adult court. Nothing in this section

shall affect any existing statutory rule

of evidence relating to privilege or hear-

say, or Evidence Code Sections 352, 782

or 1103. Nothing in this section shall

5 affect any existing statutory or

: ; constitutional rights of the press."

4 (Italics added.)

(9) We conclude that the above

Truth-in-Evidence provision of Proposi-

tion 8 (§ 28, subd. (d)) which became |

effective on June 9, 1962, repealed by <

implication section 1538.5, subdivision

(a)*> and modified article I, sections

13°" and 24°° of the California Constitu-

tion to the extend that they may conflict.

It is common knowledge that since

the adoption by the people in 1974 of

article I, sections 13 and 24, of the

California Constitution, California

1 eye tyctne: previous @ continued.)

$92 in relevant part p des that:

ijf Re search or seizure motion is

granted pursuant. to the proceedings

authorized by this section, the property

or evidence shall not be admissible a t

the movant at + trial or other hear

unless further e authorized by

this section or section 1238 or Section

ge eee by the people." (See

. , °

22. cle I a 13, of the

California Constitution med yh sah om

"The right of people to

be secure in their persons, Sodeek.

rs, and effects against unreasonable

seizures and searches may not be

violated. .. ."

| 23. Section 24 of the California

courts have used those California consti tu-

tional provisions to develop the doctrine

of "independent state grounds." The effect

of this doctrine, purportedly to secure

for the people of this state greater

rights than guaranteed by the federal

Constitution, has been the suppression of

evidence which would have been admissible

under federal law. (See People v.

Brisendine (1975) 13 Cal.3d 528, 553 [119

Cal.Rptr. 315, 531 P.2d 1099].) |

The Truth-in-Evidence. provision, as

correctly stated by the Legislative

Analysis in the Voters Pamphlet "(c]Jould

not affect federal restrictions on the use

of evidence" (see Appen. A, post, p. 1155).

This is so by reason of the supremacy of

' the United States Constitution over state

constitutions as recognized in article III,

“ we eG Por

s in i

section 1, of the California Constitution

that "The State of California is an insepar-

able part of the United States of America, /

and the United States Constitution is the T OF

supreme law of the land."

In the arguments presented in the

Voters Pamphlet made in favor of Proposi- ‘

tion 8, Lieutenant Governor Mike Curb

urged voters to ", . »« restore balance to

the rules governing the use of evidence :

against criminals... ." Attorney

4 General George Deukmejian observed that .

id ", . . higher courts of this state have 4

F created additional rights for the crimin- >

i ally accused and placed more restrictions .

4 on law enforcement officers. This propo- 3 4

x sition will overcome some of the adverse F

& decisions by our higher courts." The

yr analysis by the Legislative Analyst

ty »

informed the voters that "The California

criminal justice system is governed by the

State Constitution, by statutes enacted by

the Legislature and the people and by

court rulings." Furthermore, article I,

section 28, subdivision (d), "could not

affect federal restrictions on the use of

evidence." (See Appen. A, post, p. 1155.)

Generally speaking, the Truth-in-

Evidence provision by its plain language

effectively abolishes the application of

the Exclusionary Rule in any criminal

proceeding vind California constitutional,

statutory, and decisional law to the extent

that such laws may conflict with the federal

law.

The voters on June 8, 1982, were

given a choice between adopting the

California or federal standards on the

admission of relevant evidence. The

rebuttal argument to Proposition 8

informed the voters that the proposition

would make radical changes in the state

Constitution. The passage of Proposition

8 was a clear repudiation, by the people,

of state law embellishments on federal

decisions which operate to exclude rele-

vant evidence from criminal proceedings.

The repeal by implication of section

1538.5 subdivision (d) and article I,

sections 13 and 24, of the California

Constitution by the people in the Truth-

in-Evidence provision of Proposition 8

(§ 28, subd. (d)) is supported by well

recognized rules of construction.

(10) In QOtguke v. Hite (1966) 64 Cal.

24 596 [51 Cal.Rptr. 264, 414 P.2d 412],

the court stated at page 606: "It has

long been a cardinal rule, of course, that

if a provision of the California Constitu-

tion is ‘capable of two constructions,

one of which could cause a conflict with

the federal constitution, the other must

be adopted.' [Citation omitted. ]"

Likewise, when a later statute supercedes

or substantially modifies an earlier law

that law is by implication repealed or

partially repealed. (Sacramento Newspaper

Guild v. Sacramento County Bd. of Suprs.

(1968) 263 Cal.App.24 42, 54 [69 Cal.Rptr.

480].) Repeals by implication occur only

where the two acts are so inconsistent

that there is no possibility of concurrent

operation or where the later provision

gives undebatable evidence of an intent to

supersede the earlier. (Jbid.)

The classic rule of construction

which is applicable to a resolution of the

impact of section 28, subdivision (d), is

set forth in Estate of Pardue (1937) 22

Cal.App.2d 178, 180-181 [70 P.2d 678]: »

"If a statute enumerates the persons or

things to be affected by its provisions,

there is an implied exclusion of others,

and if a statute specifies one exception

to a general rule, other exceptions or

effects are excluded; in other words, as

has been frequently held, a general

provision of a statute is controlled by a

specific and express exception. It is an

elementary rule of construction that the

expression of one excludes the other. And

it is equally well settled that the court

is without power to supply an omission." |

(accord, In re De Neef (1941) 42 Cal.App.

24 691, 694 [109 P.2a 741].) Aa

Defendant Wilson contends that the

Truth-in-Evidence provision of Proposition

8 (§ 28, subd. (d)) should not be applied |

retroactively to this case and to do so

would violate the proscription against ex

post facto laws and deny him equal protec-

— atti. in De

tion and due process of law. The resolu-

tion of these contentions necessarily

includes consideration of the source,

declared purpose, and the effect of the

- Exclusionary Rule in criminal proceedings.

The Exclusionary Rule can be defined

as a rule of evidence which prohibits the

admission into evidence at trial of that

which was later determined by a court to

have been obtained by a government agent

‘ as a result of “unreasonable search and

seizure" in violation of the Fourth

Amendment to the United States Constitution

and the comparable provision in the

California Constitution.

The Exclusionary Rule was not known

to the common law. Its foundation as a

rule of evidence was laid in 1886 in the

case of Boyd v. United States (1886) 116

U.S. 616 [29 L.Bd. 746, 6 S.Ct. 524]. The

rule was first applied in 1914 in federal

courts (Weeks v. United States (1914) 232

U.S. 383 [56 L.Bd. 652, 34 S.Ct. 341]) and

adopted by the California Supreme Court in

1955 (People v. Cahan (1955) 44 Cal.2d

434 [282 P.2d 905, 50-A.L.R.2d 513]). ‘The

United States Supreme Court extended the

rule in 1961 to all state courts (Mapp v.

Qhio (1961) 367 U.S. 643 [6 L.Ed.2d 1061,

81 S.Ct. 1684, 84 A.L.R.24 933)).

In 1967 the California Legislature

embalmed the rule in section 1538.5. The

California Supreme Court in People v-

hs Mae ba ce Se

Belleci (1979) 24 Cal.3a 879 [157 Cal.Rptr.

503, 98 P.2d 473] overruled decisions

permitting limited use of suppressed

evidence for purposes other than determina-

tion of guilt theorizing that language in

subdivision (d) stating that evidence

suppressed pursuant to section 1538.5

"shall not be admissible against the

movant at any trial or other hearing,"

constituted a limited "statutory exclusion-

ary rule." Belleci thereby banned use of

previously suppressed evidence for purposes

of parole and probation revocation, sentenc-

ing, and impeachment at trial.

The Exclusionary Rule was premised

upon the assertion that exclusion was the

only available sanction which would

effectively discourage and deter improper ¥

police methods and which would thereby = :

_ protect the citizen's right to freedom ys

from unreasonable searches and seizures

guaranteed by the Fourth Amendment to the

Constitution of the United States. "The

rule is calculated to prevent, not to

repair. Its purpose is to deter-—-to compel

respect for the constitutional guaranty

in the only effectively available way-—by

removing the incentive to disregard it."

(Elkins v. United States (1960) 364 U.S.

206, 217 [4 L.Bd.2d 11669, 1677, 80 S.Ct.

1437]; italics added.)

In- United States v. Calandra (1973) |

414 U.S. 338, 348 [38 L.Bd.2d 561, 571, 7

94 S.Ct. 613], Justice Powell, writing for

the court, concluded: "In sum, the

Exclusionary Rule is a judicially apeated

remedy designed to safeguard Fourth Amend- g

ment rights generally through its deterrent

effect, . . . ." (Italics added.)

Unquestionably the sovereign people

of California have the right and power

through the initiative process to amend

remedies, previously put into effect

to enforce individual state and federal

constitutional rights, in order to make

a state remedies coincide with those

g supplied under federal law.

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Instructive in resolving the issues

present here in respect to the Truth-in-

Evidence provision is the teaching of the

recent United States Supreme Court opinion @

in Crawford v. Board of Education (1982)*--

U.S. -- [ -- L.Ed.2d --, -- S.Ct. --]

decided on June 30, 1982 (No. 81-38) per-

taining to California's Proposition I (the

antiforced busing initiative).°*

While the subject matter of Proposition

I (the antiforced busing initiative) in

the Crawford case differs from Proposition

Week 9 eg Be Vg

° e Proposition I initiative

amended the due process and equal protec-

tion clauses of the California state

Constitution to provide that state courts

shall not order mandatory pupil assignment

or transportation unless a federal court

Brun! protectich etatae of°tte fouctecn

clause th

ee to the United States Constitu-

8 (the "Victims' Bill of Rights" initiative)

both initiatives arose out of widespread

public dissatisfaction with remedies

3 @ applied by California governmental agencies,

: especially the state courts, to enforce

individual constitutional rights. In ;

Crawford the equal

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