Cal. AG argues exclusionary rule shouldn’t apply in a death case penalty phase; held, not preserved below

Defendant’s car was not on the premises when a warrant was served there, so it was not subject to the search warrant. Defendant denied ownership of the car, but nobody inquired into whether he had a legitimate possessory interest in the car, and, by all accounts, he did. The search of the car finding a gun was, therefore, a violation of the Fourth Amendment. On this record, however, it is harmless beyond a reasonable doubt because of all the other evidence in the case. Judgment and death sentence affirmed. The state’s argument that the exclusionary rule should not apply to the penalty phase of a death penalty case is rejected as unpreserved for failure to litigate it in the trial court. [We can expect to see this again. The AG’s argument, to me, falls on its face as a fallacy, but I’m never going to be an appellate judge, either.] People v. Casares, 2016 Cal. LEXIS 626 (Feb. 4, 2016):

Preliminarily, while acknowledging we have not squarely ruled on the question, the Attorney General contends the exclusionary rule should not apply to the penalty phase of a capital trial when the prosecutor seeks to introduce section 190.3, factor (b) evidence. (See People v. McKinnon (2011) 52 Cal.4th 610, 684, fn. 45 [assuming availability of exclusionary remedy]; People v. Huggins (2006) 38 Cal.4th 175, 241 [same].) She argues the exclusionary rule has little deterrent value at the penalty phase, the purpose of which is “to enable the jury to make an individualized determination of the appropriate penalty based on the character of the defendant and the circumstances of the crime.” (People v. Cowan (2010) 50 Cal.4th 401, 499.) That is, she asserts law enforcement would not likely be deterred from conducting unreasonable searches and seizures because of the remote possibility the evidence could not be used during the penalty phase in an unrelated prosecution occurring potentially years later, and any limited deterrent value is outweighed by the societal costs of exclusion of the evidence and the resultant incomplete picture of the defendant’s criminal activities.

Given the prosecution’s failure to litigate these issues below, we decline to resolve the question whether the exclusionary remedy should remain available for Fourth Amendment violations in connection with factor (b) evidence presented in the penalty phase of a capital trial; we assume its availability for purposes of this appeal and proceed to address the parties’ substantive arguments.