State High Court Eases Illegal Evidence Rules : Justices Bitterly Split 4-3 on Landmark Prop. 8 Decision Reversing 30 Years of California Law

SAN FRANCISCO —  In a landmark reversal of 30 years of state law, a bitterly split state Supreme Court, citing the “victims’ bill of rights” initiative, Friday loosened the rules for using illegally obtained evidence in criminal trials.

Led by Justice Joseph Grodin in the 4-3 decision, the court majority weakened the so-called exclusionary rule, which is aimed at prohibiting prosecutors from using evidence obtained illegally by police. The 1982 initiative required that a less strict version of the exclusionary rule adopted by federal courts be used in California.

“The people have apparently decided that the exclusion of evidence is not an acceptable means of implementing those rights (against unlawful searches), except as required by the Constitution of the United States,” Grodin wrote.

“Whether they are wise in that decision is not for our determination; it is enough that they have made their intent clear.”

Deeply Split on Issue

Grodin acknowledged that the court was deeply split on the issue and that even those in the majority may have preferred a different result.

“Faced with a constitutional amendment adopted by initiative, however, we are obliged to set aside our personal philosophies and to give effect to the expression of the popular will,” Grodin wrote in a 41-page opinion.

It was the third substantive ruling on Proposition 8 in five days, and it prompted Atty. Gen. John Van de Kamp and other prosecutors, frequent critics of the court’s liberal majority, to laud the justices.

Van de Kamp declared that Friday’s ruling “is and will be the most important of the Proposition 8 cases.”

“It will have a big impact throughout the state,” he said.

At issue Friday was Proposition 8’s most far-reaching section: the “truth-in-evidence” provision, which says all “relevant evidence” shall be admitted in a trial.

Joined in the majority by Justices Malcolm Lucas, Otto Kaus and Allen Broussard, Grodin called the section a “clearly stated command” and “unambiguous.”

The majority concluded that the section requires that strict rules of evidence developed by the state courts be abandoned in favor of less restrictive federal law.

For example, federal law permits searches of garbage cans, seizure of unlisted telephone numbers and spying in public restrooms, all without previous court approval. Such activities have been banned by California courts, but now those bans would appear to be in question.

The ruling comes at a time when the U.S. Supreme Court is weakening the exclusionary rule further. It recently relaxed the standard for searches of students on campuses and has held that evidence seized because of a faulty search warrant could be admitted in court, so long as police had a good-faith belief that their information was correct.

Over the last three decades, the state Supreme Court has led a national movement, in which state courts consistently have found that state constitutions afforded individuals broader rights than did the federal Constitution.

The majority said, however, that because of Proposition 8, state law no longer allows broader rights in the area of search and seizure of evidence. Federal law now applies, both to Friday’s case and probably to other search-and-seizure questions.

“What would have been an unlawful search or seizure in this state before the passage of that initiative would be unlawful today, and this is so even if it would pass muster under the federal Constitution,” Grodin wrote.

“What Proposition 8 does is to eliminate a judicial-created remedy for violations of the search-and-seizure provisions of the federal or state constitutions through the exclusion of evidence so obtained, except to the extent that exclusion remains federal compelled.”

The specific issue involved the “vicarious standing rule,” which is one aspect of the exclusionary rule. State law dating from 1955 was that if police illegally searched one person’s property and found evidence incriminating a second person, the evidence had to be excluded from the second person’s trial.

The reverse is true under federal law. A defendant cannot assert that his Fourth Amendment right to be free from illegal searches is violated if he does not own the property that was searched.

The case involved a then-16-year-old youth identified only as Lance W., who was arrested in El Dorado Park in Long Beach in 1982, after police saw him drop something in a pickup truck belonging to other youths.

Police retrieved the object, which turned out to be a plastic bag of marijuana. All sides agreed that police lacked probable cause to search the truck, thus making it an illegal search.

However, in a ruling upheld by the high court, the trial judge, citing Proposition 8’s command that he follow federal law on the matter, ruled that the evidence could be used against Lance.

Dissenting Justice Stanley Mosk, joined by Chief Justice Rose Elizabeth Bird and Justice Cruz Reynoso, wrote: “When constitutional rights are implicated, the end cannot justify the means.”

To dramatize the need for a “vicarious exclusionary rule,” Mosk cited a 1980 Internal Revenue Service investigation into secret bank accounts in the Bahamas.

One IRS informant asked a bank official to dinner, while a second informant broke into the official’s office and photocopied his records. As a result, a third person was arrested. Under federal law, that evidence could be used.

“It is morally incongruous,” Mosk said, “for the state to flout constitutional rights and at the same time demand that its citizens observe the law.”

Theory Explained

Mosk quoted from the high court’s original--and now overruled--1955 opinion that adopted California’s exclusionary rule: “Without fear of punishment or other discipline, law enforcement officers, sworn to support the Constitution of the United States and the Constitution of California, frankly admit their deliberate, flagrant acts in violation of both constitutions.”

Grodin also spent much of his opinion explaining the theory behind the exclusionary rule--that it was adopted first in this state in 1955 to deter police from acting irresponsibly.

However, he mentioned too the flip side. Citing a 1978 U.S. Supreme Court case, Grodin wrote: “Each time the exclusionary rule is applied, it exacts a substantial social cost for the vindication of Fourth Amendment rights.

“Relevant and reliable evidence is kept from the trier of fact (generally, jurors) and the search for truth at trial is deflected.”

Van de Kamp said the result surprised him, as it did other prosecutors.

“It is such a departure from state practice over the years,” he said. “But that was the intent of authors of Proposition 8.”

Los Angeles County Dist. Atty. Ira Reiner said: “We will now be able to prosecute criminals in many cases where formerly we could not because relevant evidence was ruled inadmissible by our state courts. The accused will still get a fair trial, but the people of this state will receive greater justice from the courts.”

A spokesman for Gov. George Deukmejian, a frequent critic of the court, said the governor had not yet read the court’s opinion and would not comment on it until he had.

But state Deputy Public Defender George L. Schraer called the ruling Kafkaesque, pointing out that the state Constitution still has an article that specifically calls for exclusion of illegally obtained evidence.

The court specifically said that while that search-and-seizure article remains, the constitutional amendment created by Proposition 8 takes precedence.

“Now there is a rule (against illegal searches), but no remedy,” Schraer said.

Joan Howarth, an attorney with the American Civil Liberties Union of Southern California, said ACLU lawyers and officials were “disappointed” by the decision and will work to convince the Legislature and the public to reinstate the exclusionary rule through a new statute or initiative.

Friday’s ruling was the third this week on the sweeping and controversial anti-crime initiative of 1982 authored by Paul Gann, which sought to increase penalties for crimes, limit the use of the insanity defense, reimburse victims of crime, limit plea bargaining and overrule past state court rulings on search-and-seizure questions.

Rulings on the initiative also were thought to have political implications for the court. Conservative court critics, who aim to unseat at least three justices--Grodin, Reynoso and Bird--were awaiting the rulings for indications that the court was pro-defendant.

So far, however, prosecutors have lauded the decisions, thus providing little material for the campaign against the liberal justices.