{"id":489,"date":"2006-11-23T17:11:11","date_gmt":"2006-10-12T19:32:42","guid":{"rendered":""},"modified":"2017-09-17T13:43:10","modified_gmt":"2017-09-17T18:43:10","slug":"en-us-193","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=489","title":{"rendered":"CA holds Hudson’s “discussion of alternatives to the exclusionary rule as dictum” and finds possible police misconduct reason enough to suppress"},"content":{"rendered":"

CA refuses to bite on the state’s argument that Hudson v. Michigan<\/em> should water down the exclusionary rule in a case where the court believed that there was strong indication that the officers invented grounds for the stop in the first place. People v. Rodriguez, 143 Cal. App. 4th 1137, 49 Cal. Rptr. 3d 811 (2d Dist. October 10, 2006):<\/p>\n

The issue in this case is whether evidence seized in a lawful search incident to a lawful arrest based upon an outstanding warrant should be suppressed if the police invented the ground for the traffic stop which led to the discovery of the warrant. The trial court ruled it did not need to decide whether the police made up their claim the defendant’s car had a “burnt out” right brake light because any taint arising from the alleged unlawful stop was dissipated by the discovery of the arrest warrant prior to the search.<\/p>\n

If it indeed happened, fabricating the grounds for a traffic stop and repeating this fabrication under oath at a suppression hearing “strikes at the very core of our system of law.” The subsequent discovery of lawful grounds to arrest and search the defendant does not dissipate the taint of such a flagrant violation of the defendant’s constitutional rights and society’s necessary trust in its law enforcement officials. Nor is this violation, if it occurred, one for which the suppression of evidence is too drastic a remedy. Quite the opposite is true. Failing to invoke the most drastic remedy available to a court would have the effect of legitimizing deceitful conduct on the part of the police and permitting them to conduct a traffic stop for any reason or no reason at all in contravention of leading United States and California Supreme Court opinions. Accordingly, we will reverse the judgment and remand the cause to the trial court to rehear defendant’s suppression motion and make a factual determination as to whether at the time of the traffic stop defendant’s car had a burnt out brake light as the officers claim, or if they could reasonably believe it was burnt out. <\/p>\n

. . .<\/p>\n

In discussing the three factors relevant to an inquiry under Wong Sun<\/em> the United States Supreme Court singled out as “particularly” important “the purpose and flagrancy of the official misconduct[.]” It is difficult to imagine a more flagrant example of official misconduct than perjury by a police officer. As our Supreme Court has stated: “Perjury is qualitatively different from ordinary search and seizure or Miranda violations. It ‘involve[s] a corruption of the truth-seeking function of the trial process.'” The court spelled out its reasons for holding “[p]erjury by law enforcement officials is particularly pernicious.” “Our entire criminal justice system,” the court stated, “is built around the belief, and necessity, that law enforcement officers will testify truthfully. Courts generally believe the testimony of such persons rather than that of the accused[.] Deliberate, cynical perjury by law enforcement officials strikes at the very core of our system of law. It manipulates and thereby perverts the entire judicial process.” <\/p>\n

. . .<\/p>\n

For the reasons discussed above, we conclude the evidence seized in the case before us is subject to exclusion under the test set out in Wong Sun.<\/em><\/p>\n

Nevertheless, even if the officers had no lawful reason to stop defendant, the People maintain we should follow the United States Supreme Court’s lead in Hudson v. Michigan <\/em>and not apply the exclusionary rule in this case. As we shall explain, Hudson <\/em>is distinguishable from the present case for several reasons. <\/p>\n

In Hudson<\/em> the court stated: “Attenuation also occurs when, even given a direct causal connection, the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” In the case of the knock-and-announce rule, the court held, the interest in protection against “unreasonable searches and seizures,” which is the basis for the rule, would not be served by suppressing evidence obtained under a valid search warrant. The rule is too uncertain to provide the police clear advance notice of what is required of them in a given situation; the police have no incentive to violate the rule; and there are other ways of preventing violations of the rule which do not involve the substantial social costs of suppression of relevant and validly obtained evidence.<\/p>\n

The prime purpose of the exclusionary rule is not to punish the officers who violated the defendant’s Fourth Amendment rights but to provide a means of deterring police misconduct in the future. But deterrence of future violations of the knock-and-announce rule presupposes police officers can learn something from past challenges–successful and unsuccessful–to their observance of the rule. The Hudson court concluded the educational value of trial and appellate courts’ ex post evaluations of knock-and-announce compliance is of little value in instructing future police conduct because the court’s “‘reasonable wait time’ standard” is “not easily applied,” and “necessarily uncertain.” “How many seconds’ wait are too few?” the court asked rhetorically. Came the response, the answer “is necessarily vague.” In other words, officers wanting to know how long they need to wait before forcing entry can as well consult The Eight Ball as past court decisions. <\/p>\n

. . .<\/p>\n

We view Hudson<\/em>‘s discussion of alternatives to the exclusionary rule as dictum. It is by no means the first time the court has pondered the continuing value of suppressing evidence as a deterrent to police misconduct. In any event, Hudson<\/em> does not signal a majority of the court is ready to scrap the exclusionary rule. As Justice Kennedy states in his concurring opinion, which provided the fifth vote to affirm Hudson’s conviction: “[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today’s decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression.” (footnotes omitted)<\/p><\/blockquote>\n

The defendant’s college dorm room was entered by a university security officer without a warrant for an inspection. Despite the housing contract that the student signed that permitted the university to enter and make reasonable inspection, it did not permit the security officer to consent to a police entry because he lacked apparent authority to consent. People v. Superior Court (Walker), 143 Cal. App. 4th 1183, 49 Cal. Rptr. 3d 831 (6th Dist. October 11, 2006) (excellent discussion of all the law to date on this issue):<\/p>\n

Our conclusion is not altered by the fact that defendant signed a Housing Contract that authorized the University (1) to conduct routine room inspections on reasonable notice to the resident student, and (2) to enter rooms without notice “where there is a reasonable suspicion that a violation of the law or University policies is occurring or has occurred inside a particular room.” These terms of occupancy, while constituting consent to the University’s entry into defendant’s dorm room under certain circumstances, cannot be reasonably construed as defendant having given such consent to others. (See Piazzola v. Watkins, supra,<\/em> 442 F.2d at pp. 289-290; Com. v. Neilson, supra,<\/em> 666 N.E.2d at p. 987.) In particular, these contract terms do not constitute defendant’s agreement to nonconsensual warrantless searches and seizures of his private residence by the police. (Contra, Moore, supra,<\/em> 284 F. Supp. at pp. 730-731.) Nor could the Housing Contract be so construed, since such purported advance consent to warrantless police searches would be an illegal waiver of defendant’s constitutional rights under the Fourth Amendment. (See Piazzola v. Watkins, supra,<\/em> at p. 289 [regulation authorizing college to inspect dorm rooms could not be interpreted as student’s “consent to a search for evidence for the primary purpose of a criminal prosecution” (fn. omitted)]; Devers v. Southern University, supra,<\/em> 712 So. 2d at pp. 204-207 [lease provision reserving college’s right to inspect dorm room with police unconstitutionally abridged student’s Fourth Amendment rights]; cf. \u00a7 626.11, subd. (b) [purported waiver of student-occupant’s protection from unreasonable search and seizure in college housing agreement void].) <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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