The Supreme Court of California : Criminal Procedure

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1 California Law Review Volume 60 Issue 3 Article 12 May 1972 The Supreme Court of California : Criminal Procedure Carol G. Hammett Follow this and additional works at: Recommended Citation Carol G. Hammett, The Supreme Court of California : Criminal Procedure, 60 Calif. L. Rev. 870 (1972). Link to publisher version (DOI) This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu.

2 CALIFORNIA LAW REVIEW [Vol. 60:759 the innocent collector and the hardened criminal, could be -used to posit malice aforethought in a prosecution for murder. The court felt that such as application of the felony-murder doctrine would essentially eliminate the connection between criminal liability and moral guilt and would extend the doctrine well beyond any function it was designed to serve.3 9 The court noted, however, that if such possession was of an extremely reckless nature indicating a "conscious disregard for human life," 4 malice could be imputed via ordinary murder principles. And if the passive possession developed into a felonious act inherently dangerous to human life, 4 application of the felony-murder rule would be proper to deter such acts by felons. Even though the court concluded that a violation of these sections does not support a felony-murder instruction, the prosecution is still free to prove the elements of murder by means of basic murder principles. This decision only requires that the prosecution prove malice as an element of the offense charged, rather than imply it as a matter of law, although if the legislature desired a contrary result it could constitutionally so provide. Thus, the court reaffirmed the Williams-Phillips test. For purposes of imputing malice aforethought by means of the second-degree felony-murder doctrine, the underlying felony must be viewed in the abstract. If when so viewed it is not inherently dangerous to human life, malice must be proved to the trier of fact. VII CRIMINAL PROCEDURE A. Fruit-of-the-Poisonous-Tree Doctrine Robert L. Harris Lockridge v. Superior Court.' Under the exclusionary rule, evidence obtained by government officials in violation of law is inadmissible in a criminal proceeding. 2 As a logical corollary of this rule, Cal. 3d at 42, 489 P.2d at 1371, 98 Cal. Rptr. at 43, citing People v. Washington, 62 Cal. 2d 777, 783, 402 P.2d 130, 134, 44 Cal. Rptr. 442, 446 (1965) Cal. 3d at 42, 489 P.2d at 1371, 98 Cal. Rptr. at Discharging a firearm at an inhabited building would constitute such an act. CAL. PENAL CODE 246 (West 1970); see also People v. Nichols, 3 Cal. 3d 150, 163, 474 P.2d 673, 681, 89 Cal. Rptr. 721, 729 (1970) Cal. 3d 166, 474 P.2d 683, 89 Cal. Rptr. 731 (1970) (Wright, CJ..) (4-3 decision). 2. The exclusionary rule was originally adopted in the federal courts for application to evidence obtained in violation of the fourth amendment. Weeks v. United States, 232 U.S. 383 (1914). Today, the policy is applicable in both state

3 1972] CALIFORNIA SUPREME COURT the fruit-of-the-poisonous-tree doctrine 3 extends the prohibition against admissibility to derivative evidence obtained directly from the use of the original tainted evidence. 4 But all evidence is not poisonous fruit simply because it would not have been discovered but for the illegal police actions. 5 Limiting the scope of the poisonous-tree doctrine continues to remain a sensitive task for the courts; it was this issue that the court faced in Lockridge. Police officers, suspecting petitioners of involvement in two jewelry store burglaries, searched their apartment for contraband on the basis of a warrant later ruled invalid. 6 The officers confiscated a revolver during the investigation, and a trace of its serial number connected the weapon to a completely unrelated, unsolved robbery, which had been in the inactive files for over 2 years. Officers interviewed the victims of that crime, who identified photographs of the petitioners as the robbers, and charges were filed. Reviewing denial of a preliminary motion to suppress evidence at a special hearing before the trial court, 7 the court of appeal found the search warrant invalid and suppressed the evidence seized during the search. The testimony of the witnesses, however, was not proscribed.' Petitioners sought a writ of mandate from the supreme court to compel the superior court to grant the motion to suppress the testimony as fruit of the poisonous tree. The court denied the writ, finding that the purpose of the exclusionary rule, to deter illegal police conduct, was adequately served by the suppression of the gun and would not be further advanced by suppressing the testimony of known victims of the crimey and federal proceedings against evidence obtained in violation of the fourth amendment search and seizure provisions [Mapp v. Ohio, 367 U.S. 643 (1961)], confessions obtained in violation of the fifth and sixth amendments [Miranda v. Arizona, 384 U.S. 436 (1966)], identification testimony obtained by violation of those amendments [United States v. Wade, 388 U.S. 218 (1967)], and evidence obtained by procedures that violate the due process clause [Rochin v. California, 342 U.S. 165 (1952)]. The exclusionary rule may also be invoked against evidence obtained in violation of a statute or court rule. See, e.g., Lee v. Florida, 392 U.S. 378 (1968) (wiretap evidence obtained in violation of federal statute excluded); Mallory v. United States, 354 U.S. 449 (1957) (confession obtained during period of detention prescribed by rule 5(a) [FED. R. CRiM. P. 5(a)] excluded). 3. The phrase was apparently coined by Justice Frankfurter in Nardone v. United States, 308 U.S. 338, 341 (1939). 4. Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). 5. Wong Sun v. United States, 371 U.S. 471, (1963). 6. Lockridge v. Superior Court, 275 Cal. App. 2d 612, 80 Cal. Rptr. 223 (2d Dist. 1969). 7. CAL. PENAL CODE (West 1970). 8. Lockridge v. Superior Court, 275 Cal. App. 2d 612, 627, 80 Cal. Rptr. 223, 234 (2nd Dist. 1969) Cal. 3d at 171, 474 P.2d at 686, 89 Cal. Rptr. at 734.

4 CALIFORNIA LAW REVIEW [Vol. 60:759 The court acknowledged that there was no evidence that the police would have connected petitioners with the robbery had they not found the gun." 0 It felt, however, that the connection did not result from any "exploitation" of the police illegality."' The court suggests three factors underlying this conclusion. First, the court intimated that the police conduct involved was not particularly blameworthy. The search was conducted pursuant to a search warrant that was held to be insufficient only after a subsequent court action. A second factor mentioned by the court was that the police had an independent source of knowledge of the witnesses' identity. Therefore it could not be said that the discovery of the gun was the sole cause of the subsequent testimony. Finally, and most importantly, the court argued that since the police could not have foreseen the purely fortuitous happenstance that ultimately connected the petitioners with the unsolved robbery, the conduct of the police would not have been deterred by the threat of the exclusionary rule. 12 I. DEVELOPMENT OF THE POISONOUS TREE DOCTEINE The exclusionary rule, originally binding only on the federal courts as a judicially imposed rule of evidence," was adopted in order to enforce the constitutional right to be free from government-sanctioned invasions of privacy.' 4 Its justification is two-fold. Normatively, the rule is designed to avoid the evil of judicial complicity in official lawlessness. 1 5 Factually, the exclusionary policy is directed toward the reduction of police misconduct: to deter violations of constitutional guarantees by removing the incentives to do so. 1 6 This purpose is not served by compensating the defendant for a wrong done him, although exclusion may incidentally have that effect.y1 Rather, deterrence is to be achieved by depriving the government of any benefit gained by the illegal conduct of its officers: "The rule is calculated to prevent, not to repair.) Id. at 170, 474 P.2d at 686, 89 Cal. Rptr. at Id., citing Wong Sun v. United States, 371 U.S. 471, 488 (1963). 12. Id. at , 474 P.2d at 686, 89 Cal. Rptr. at Weeks v. United States, 232 U.S. 383 (1914); accord, Wolf v. Colorado, 338 U.S. 25 (1949). California had adopted the exclusionary rule as a judicially declared rule of evidence in People v. Cahan, 44 Cal. 2d 434, 282 P.2d 905 (1955) (Traynor, J.), on the ground that other remedies had failed to obtain compliance by police officers with the constitutional provisions. Id. at 445, 282 P.2d at Mapp v. Ohio, 367 U.S. 643, 660 (1961). 15. Weeks v. United States, 232 U.S. 383, 394 (1914). See also People v. Cahan, 44 Cal. 2d 434, 445, 282 P.2d 905, 912 (1955). 16. Elkins v. United States, 364 U.S. 206, 217 (1960). 17. Traynor, Mapp v. Ohio At Large In The Fifty States, 1962 DuKE LJ. 319, Elkins v. United States, 364 U.S. 206, 217 (1960).

5 19721 CALIFORNIA SUPREME COURT It was recognized more than 50 years ago that the policy underlying the exclusion of illegally obtained evidence would be circumvented by permitting other substantial uses of such evidence by the government. In the leading case of Silverthorne Lumber Co. v. United States,' 9 for example, government agents unlawfully seized records of the corporate defendant, photographed them, and then attempted to use the photographs as the basis for a subpoena for the originals, which they had been forced by court order to return. Mr. Justice Holmes, in the first application of what was later to be dubbed the poisonoustree doctrine, 20 pointed out: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. 21 But the scope of the poisonous-tree doctrine has never been unlimited, and not all derivative evidence is found to be so tainted by the initial illegality as to require exclusion. The limitations on the doctrine function to balance the interests of privacy protected by the fourth amendment against society's often conflicting need to convict the guilty by admitting otherwise relevant and trustworthy evidence in order to ascertain the truth. 22 In essence, the boundaries delineated by the courts appear to be marked by a tort-like causation analysis, restricting the application of the doctrine to cases where the disputed evidence may be characterized as the natural and foreseeable consequence of the initial illegality. 2 " Silverthorne itself limited the applicability of the exclusionary rule to derivative evidence in a manner comparable to the cause-in-fact or "sine qua non" test of the law of torts 4 : if knowledge of the facts disclosed by a wrongful government act is gained from an independent source, they may be proved at trial 2 " Twenty years after Silverthorne, by way of dictum in Nardone v. United States, 8 the Court noted for the first time that in some cases even evidence that would not have become available "but for" lawless police conduct might nevertheless U.S. 385 (1920). 20. See note 3 supra U.S. at See, e.g., Amsterdam, Search, Seizure, and Section 2255, 112 U. PA. L. llv. 378, (1964); Pitler, "The Fruit of the Poisonous Tree" Revisited and Shepardized, 56 CAL. L. REv. 579, (1968). 23. See, e.g., Bernstein, The Fruit of the Poisonous Tree: A Fresh Appraisal of the Civil Liberties Involved in Wire Tapping and Its Derivative Use, 37 ILL. L. REv. 99, 106 (1942). 24. W. PROssER, THE LAw of TORTS 238 (4th ed. 1971). See also RBSTATE- MENT (SEcoND) OF ToRTs 432(1), comment a at 430 (1965) U.S. at 392 (dictum) U.S. 338 (1939).

6 CALIFORNIA LAW REVIEW [Vol. 60:759 be admissible at trial: the connection between the evidence and the illegal act of the police may be so attenuated as to dissipate the taint 21 This concept of attenuation is analogous to the tort concept of proximate cause; the chain of events linking the unlawful act and the ultimate discovery of the disputed evidence may be so interrupted by independent variables that the original wrong is deemed too remote from the consequences for liability to attach to the wrongful actor. Finally, Wong Sun v. United States, 28 the Court's most extensive analysis of the poisonous-tree doctrine, reformulated the relevant tests. In that case, federal narcotics agents unlawfully entered T's apartment and illegally arrested him. After being informed by T that Y possessed narcotics, police went to Y's home and, again without a warrant, placed him under arrest. Y then surrendered a small vial of heroin, which he said was supplied by W. W was subsequently arrested. After being properly arraigned, advised of their constitutional rights, and released on their own recognizance, T and W returned several days later and voluntarily made incriminating statements to federal officers. The Court, in considering the admissibility of the narcotics against T, reiterated the Silverthorne and Nardone exceptions to the poisonous tree doctrine. 29 Then, borrowing a phrase from Professor Maguire, 0 the Court indicated that the test should be: whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. 3 1 Applying this "exploitation" analysis, the Court excluded the narcotics as evidence against Y. 32 Following the "primary taint," T's illegal arrest, federal agents, acting on the information gained from T as a result of the arrest, seized Y, and ultimately the heroin. This continuing involvement by the Government in the chain of events leading from the initial unlawful conduct to the discovery of the drugs was sufficient to characterize its behavior as evploitation of the illegality Id. at U.S. 471 (1963). 29. Id. at J. MAGUIrE, EVMENCE OF GUILT 221 (1959) U.S. at Id. 33. However, W was not permitted to object to using the seized heroin at his trial, since the seizure invaded neither his person nor premises. Id. at 492. This reflects the view that the fourth amendment of its own force does not support the exclusionary rule; rather, the rule is required by the combination of that amendment and the fifth amendment personal right not to be compelled to incriminate oneself. See Mapp v. Ohio, 367 U.S. 643, (1961) (Black, J., concurring); see generally Broeder, Wong Sun v. United States: A Study in Faith and Hope, 42 NEB. L. Rv. 483, (1963). But see People v. Martin, 45 Cal. 2d 755, 760,

7 19721 CALIFORNIA SUPREME COURT II. a. Offensiveness of Police Conduct THE LOCK IDGE DECISION One possible basis for the Lockridge court's decision was that the police conduct was not particularly blameworthy because the officers in good faith obtained a search warrant that was determined insufficient only after a court hearing. 3 4 How much this circumstance influenced the result is not clear from the opinion; the court's language only hints that this was a factor to be weighed in determining the scope of the taint. This approach arguably has some validity where the police misconduct is merely a technical violation of a statute or court rule. Where a good faith attempt was made at compliance, it may be reasonable to suppose that the offender will exercise greater diligence in the future without the invocation of the exclusionary rule. 35 Such a determination should properly be left to the discretion of the trial court, which can observe and evaluate the erring officer's demeanor on the stand to determine whether official sanctions are necessary to prevent future violations. On the other hand, if most such violations are the product of overzealous or undertrained officers, a finding of good faith may become a matter of course, a problem compounded by the difficulty of appellate review of such factual findings by the trial court. 36 In any event, such an approach loses its validity where constitutional violations are involved, because it is impossible to separate technical from more fundamental constitutional rights. 37 The result of this approach is exemplified by the California case of People v. Gorg, 3s in which the finding that a police violation was in good faith was held to justify a waiver of defendant's constitutional rights. Defendant's landlord allowed police to search the room defendant rented. Although the landlord had no right to consent to such entry and search, the court 290 P.2d 855, 857 (1955) (the deterrent effect of the exclusionary rule is partially nullified unless it applies to violations of the rights of third parties). Nor was W's voluntary statement found to be the fruit of the poisonous tree, because he returned of his own accord following release on his own recognizance. 371 U.S. at 491. In contrast, the Court left open the question of whether T's voluntary statement was fruit of the poisonous tree, choosing to dispose of his declaration on other grounds. Id. at The difference between the two is that T had made incriminating remarks at the time of his illegal arrest, whereas W had remained silent. Apparently, 7"s subsequent statement might have been compelled by his earlier admissions on the cat-is-out-of-the-bag rationale. See United States v. Bayer, 331 U.S. 532, (1947). See generally Broeder, supra, at See note 13 supra and accompanying text. 35. See, e.g., Pitler, supra note 22, at Id. 37. Id. at 584 [footnote omitted] Cal. 2d 776, 291 P.2d 469 (1955).

8 CALIFORNIA LAW REVIEW [V/ol. 60:759 held the evidence acquired admissible, because the police acted in good faith upon the homeowner's permission. 8 " As well intentioned as the officers might have been, the effect of that decision was to permit a third party to waive the defendant's constitutional right of privacy. 40 In Lockridge, the issuance of the invalid warrant may be blamed either on the negligence of the magistrate 4 or of the police, on the theory that the magistrate serves as a rubberstamp for official requests for warrants. It may be true that the officers had no actual knowledge that they were illegally searching the defendant's apartment, but a clear policy of excluding evidence derivatively obtained by searches pursuant to an insufficient warrant, not withstanding the apparent good faith of the police or magistrate, would compel more circumspect behavior by those officials in the future and avoid the necessity of ad hoc judicial determinations of the often-obscure line between good faith and negligence. b. Independent Source of Identity of Witnesses Exclusion of tainted derivative evidence sacrifices the community's interest in ascertaining the truth in a criminal proceeding in favor of the values of privacy protected by the fourth amendment. The tension between these conflicting social goals often makes judges reluctant to apply the rule, but they become even more reluctant when the evidence sought to be excluded is not tangible evidence but the testimony of a witness. 42 Although the court has often held that the testimony of a tainted witness is not admissible, 4 3 thus avoiding probably needless distinctions between tangible and oral evidence, 44 two exceptions have been noted. Testimony need not be excluded where the witness is known to police by means independent of their unlawful conduct or where the witness would inevitably have been discovered during the normal course of a lawful police investigation. 4 r The court implicitly 39. Id. at 783, 291 P.2d at Such a result now seems incompatible with the later case of Chapman v. United States, 365 U.S. 610 (1961) (landlord's consent to search of house rented by defendant invalid to justify warrantless search). 41. The court of appeal could find no probable cause after numerous false or inaccurate statements in the affidavit were deleted. Lockridge v. Superior Court, 80 Cal. Rptr. 223, 230 (Ct. App., 2d Dist. 1969). 42. Pitler, supra note 22, at 621. See generally Ruffin, Out On A Limb of the Poisonous Tree: The Tainted Witness, 15 U.C.L.A.L. REv. 32 (1967). 43. Lockridge v. Superior Court, 3 Cal. 3d 166, 170, 474 P.2d 683, 685, 89 Cal. Rptr. 731, 733 (1970), and cases cited therein. 44. "Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence." Wong Sun v. United States, 371 U.S. 471, 486 (1963). See also Ruffin, supra note 42, at Lockridge v. Superior Court, 3 Cal. 3d 166, 170, 474 P.2d 683, 686, 89 Cal. Rptr. 731, 734 (1970), and cases cited therein.

9 1972] CALIFORNIA SUPREME COURT placed Lockridge in the first category, noting that the identity of the witnesses was already known to the police. 46 However, an examination of the two cases cited in support discloses distinguishable factual situations. People v. Stoner 47 involved a witness who had, during a lawful police investigation, tentatively identified the defendant as a robber and then made a positive identification of the defendant at an illegal line-up. Rejecting defendant's argument that as a matter of law any subsequent in-court identification must be excluded as fruit of the tainted line-up, the court observed that if the in-court identification was made sufficiently independently of any impressions gained from the improper line-up, it would be adequately purged of the taint and therefore admissible. 48 That the police knew of the connection between the witness and the defendant prior to and independently of the misconduct was crucial. Similarly, the police in State v. O'Bremski 40 knew the identity of the witness against the defendant before their Megal search and in fact were looking for her. The consequences of their misconduct was merely the discovery of the present whereabouts of the witness. On the other hand, that the police knew the identity of the witnesses in Lockridge was in effect meaningless until the discovery of the gun connected them with petitioners; 50 that is, the prospective witnesses became witnesses against petitioners only as a result of the illegal seizure of the weapon. Thus, police had no independent knowledge of the identity of witnesses against petitioners prior to their misconduct. Because there was a direct connection between the unlawful police actions and the testimony obtained, 5 ' Lockridge, in practical effect, is much closer to the situation in which official illegality leads to the discovery of hitherto unknown witnesses. c. Foreseeability Tests delimiting the scope of the taint in poisonous-tree cases are analogous in many respects to tort law concepts of causation. 2 The Lockridge court similarly utilized a foreseeability requirement in its application of the Wong Sun exploitation test, placing much reliance on 46. Id. at , 474 P.2d at 686, 89 Cal. Rptr. at Cal. 2d 595, 422 P.2d 585, 55 Cal. Rptr. 897 (1967). 48. Id. at , 422 P.2d at 589, 55 Cal. Rptr. at Wash. 2d 425, 423 P.2d 530 (1967). 50. In fact, the robbery report had been placed in the inactive files 2 years before the discovery of the gun; no active investigation of that crime had been conducted during that period. 3 Cal. 3d at , 474 P.2d at 685, 89 Cal. Rptr. at See id. at 171, 474 P.2d at 687, 89 Cal. Rptr. at 735 (Peters, J., dissenting). 52. See note 23 supra and accompanying text.

10 CALIFORNIA LAW REVIEW [Vol. 60:759 the fact that it was "pure happenstance" that police found the robbery gun that connected petitioners with the crime." Since police could not foresee this wholly fortuitous result of their misconduct, it is implied, they could not have been deterred by the threat of the exclusionary rule. Hence, no purpose would be served by applying the doctrine to the challenged testimony. The court thus interpreted "exploitation of the illegality" to require that government agents seek or expect certain results when they engage in the illegal conduct. Although superficially this interpretation reflects the underlying deterrent rationale of the exclusionary policy, in practical effect it lends itself to anomolous results, as the Lockridge case itself illustrates. If the illegal search in Lockridge had disclosed evidence of the burglaries being investigated or had led police to the discovery of witnesses against petitioners for those crimes, such evidence presumably would have been suppressed. If the warrant had been valid in part, but overbroad in part, evidence seized pursuant to the valid portion would be lawfully admissible, but the other evidence taken would be suppressed. 54 Here the entire warrant was insufficient; but the police, not finding what they were looking for, proceeded to conduct a general search, beyond the scope of even the invalid warrant. As Justice Peters pointed out in his dissent, the court in effect holds that where the search is in all respects invalid the fruits of the search as to matters sought will be suppressed but the fruits of matters not specifically sought will be admissible. In other words the wrongful act of the officer of unlawfully searching when coupled with the further wrongful search for matters for which there is no reason whatsoever to search somehow permits use of the fruits of the wrongful conduct.... Common sense dictates that the prosecution should not be in better position because the officer unlawfully entered and then engaged in a general search and seizure than it would be if the officer had unlawfully entered and engaged in a specific search. 55 Indeed, it would appear that the former situation poses the greater need for an effective deterrent policy. Where police already possess probable cause for a search or seizure, or are close to attaining it, they will not readily risk the use of the sought after evidence by rash or careless behavior. On the other hand, lacking probable cause and acting on mere suspicion, there is nothing to lose by searching, and, at least in some cases, Lockridge implies there is much to gain Cal. 3d at 171, 474 P.2d at 686, 89 Cal. Rptr. at Aday v. Superior Court, 55 Cal. 2d 789, , 362 P.2d 47, 51-52, 13 Cal. Rptr. 415, (1961) Cal. 3d at 174, 474 P.2d at , 89 Cal. Rptr. at

11 1972] CALIFORNIA SUPREME COURT This is not to say, of course, that Lockridge explicitly condones general searches. On the contrary, it may be argued from its language that the court neither approves nor gives incentive to such conduct: if the facts indicate that the police thought there might be something to gain as they engaged in their illegal search, the product of the search would not be "wholly fortuitous" and would therefore be inadmissible as exploitation of the illegality. However, such an argument loses validity in the context of the Lockridge fact situation. Certainly the police there had some expectations when they confiscated the gun, not even specified in the warrant, and later traced the weapon through its serial number. Indeed, it is difficult to imagine a plausible argument contending that any police search was not conducted without some expectations, unless it were supposed that police customarily engage in searches on mere whim or caprice. What was "wholly fortuitous," then, in Lockridge, was not that the gun led to some evidence against the petitioners, but that the evidence was not related to the burglary investigation that precipitated the search. Since the connection between the gun and the unsolved robbery was unforeseeable, the court found the evidence admissible at trial, notwithstanding the illegal means by which it became available. Thus, the tort notion of foreseeability, implicitly adopted in earlier cases, 56 and here read into the Wong Sun exploitation test, can lead to results incompatible with the purposes of the exclusionary doctrine. This is because the concept of foreeseeability, although useful in furthering the compensatory policy underlying the law of negligence, is inappropriate to the deterrent policy advanced by the exclusionary rule. Persons harmed by conduct falling below a standard of reasonable care are compensated in tort for their injury; foreseeability of risk is a tool used to measure the dimensions of that standard of care. An unconstitutional search or seizure, on the other hand, is by definition unreasonable. Whether or not other causes, unforeseeable or otherwise, share responsibility for revealing the challenged evidence is therefore not the central issue in exclusionary cases. The inquiry instead should focus, once the primary taint has been established, on the continuing involvement of police in, or their repudiation of, the illegality. This is the concern underlying the Wong Sun exploitation test See note 23 supra and accompanying text. 57. Recall that in Wong Sun, W was illegally arrested. But for that arrest, he presumably would not have made the incriminating statements several days later. During the interval, however, the government lawfully arraigned him, advised him of his constitutional rights, and released him on his own recognizance. The government, in short, repudiated its prior misconduct and participated no further in it. Therefore, the subsequent confession was not obtained by the exploitation of the illegal arrest. In contrast, the federal agents immediately pursued the leads supplied

12 CALIFORNIA LAW REVIEW [Vol. 60:759 CONCLUSION In reviewing In re Martinez, 58 in which the court last year declined to apply the exclusionary policy in parole revocation hearings, a student commentator noted what he termed "a prejudice against the exclusionary rule," ' 9 and he foresaw a trend toward its limitation in the future. Lockridge confirms that writer's prediction. That a few more criminals may now be convicted under Lockridge is of minor significance in gauging the implications of the decision. What is of major importance is its effect on future police conduct. Indeed, it is this concern, not adequately confronted by the majority, that should be at the heart of every exclusionary rule case. It may well be true that the police in Lockridge would not have been deterred by the threat of the poisonous-tree doctrine since they could not foresee the result of their conduct. But the thrust of the exclusionary policy is prospective, not retrospective. It is not especially important that a contrary decision in Lockridge would have no appreciable incremental deterrent effect on illegal police behavior. The primary question is not whether a particular decision will encourage police to be more careful in the future but whether the decision will in any way encourage police to be less careful. It is difficult to imagine that law enforcement officers could learn any lesson from Lockridge but that some unlawful searches and seizures may, under certain circumstances, be profitable. Where there is some profit, there is incentive, and it may be expected that the government will "exploit" Lockridge to its limits. 6 Of course, Lockridge may be limited to specific, narrowly defined fact situations, and therefore not all, or even most, of the evidence gained as fruit of illegal searches and seizures will be admissible in court. The case may simply hold that the two unusual circumstances present in Lockridge-the fortuitous discovery of evidence and the unforeseeable connection of a defendant with a previously known witness-must concur before evidence is admissible. But even if most of illegally gained evidence is subsequently excluded, the harm will nonetheless have already been done to the values of the "sanctity of the by T as a result of his illegal arrest, ultimately obtaining the challenged narcotics. Because of that continuing involvement in the initial misconduct, the evidence was fruit of the poisonous tree Cal. 2d 641, 643 P.2d 734, 83 Cal. Rptr. 382 (1970). 59. The Supreme Court of California, , 59 CALiF. L. REv. 30, 223 (1970). 60. Cf. Brinegar v. United States, 338 U.S. 160, 182 (1949) (Jackson, J., dissenting) : [The Court] must remember that the extent of any privilege of search and seizure without warrant which we sustain, the officers interpret and apply themselves and will push to the limit.

13 19721 CALIFORNIA SUPREME COURT home and inviolability of the person" 61 cherished by the fourth amendment. Mark Harold Shenfield B. The Furtive Gestdre Rule People v. Superior Court (Kiefer);1 Gallik v. Superior Court. 2 The California supreme court recently decided two cases involving warrantless searches of vehicles stopped initially for minor traffic violations. In these cases the court dealt with the question of the so-called "furtive gesture," which, when coupled with a suspicious circumstance, is generally considered probable cause to search a vehicle for contraband. The first of these cases, People v. Superior Court (Kiefer), held that a passenger's turning from the front to the back seat of a car, putting her arm over the back of the seat, and then turning around and bending foreward, coupled with the driver's leaving the car to speak with the officer who stopped the car, did not contitute probable cause to search the car. The next case, Gallik v. Superior Court, held that a driver's bending forward, coupled with his denial that he had done anything wrong when asked what he had hidden, did not constitute probable cause to search. In Kiefer the supreme court analyzed for the first time the rationale underlying the furtive gesture rule, which allows a finding of probable cause to search based on the arresting officer's observation of a furtive gesture occurring in suspicious circumstances. The court approved the rule but concluded that it has been frequently misapplied by the California courts of appeal. 3 The Kiefer opinion examined the gestures alleged to be furtive in prior cases and concluded that most were more likely to be associated with innocent conduct rather than guilty conduct; therefore, they were not furtive for purposes of the rule. By its holding in Kiefer the court implicitly overruled several court of appeal cases that had found probable cause from facts similar to those in Kiefer Wong Sun v. United States, 371 U.S. 471, 484 (1963) Cal. 3d 807, 478 P.2d 449, 91 Cal. Rptr. 729 (1970) (Mosk, J.) (6-1 decision) Cal. 3d 855, 489 P.2d 573, 97 Cal. Rptr. 693 (1971) (Mosk, J.) (6-1 decision) Cal. 3d at 818, 478 P.2d at 455, 91 Cal. Rptr. at See note 52 infra and accompanying text.

14 CALIFORNIA LAW REVIEW [Vol. 60:759 Gallik, decided shortly after Kiefer, overruled a court of appeal decision that relied on cases criticized but not specifically disapproved in Kiefer and that found probable cause to search. The supreme court, without indicating whether the search would have been lawful under the pre-kiefer decisions, held that it did not satisfy the standards in Kiefer and was therefore unreasonable. 5 Gallik thus serves notice that future reliance on those cases criticized in Kiefer will be misplaced. After discussing the development of the furtive gesture rule in California, this Note critically analyzes the Kiefer and Gallik decisions and concludes by suggesting an alternate approach to the problem of warrantless vehicle searches. I. THE FURTIVE GESTURE RULE The furtive gesture rule was developed as a means for determining whether there is probable cause to search for contraband in a vehicle stopped for a minor traffic violation. As the Kiefer court pointed out, the normal rule allowing a limited search incident to arrest does not justify searching a vehicle under such circumstances; nor is probable cause to arrest a traffic offender grounds for a warrantless search of the vehicle for contraband. To justify such a search there must be independent probable cause to believe the vehicle contains contraband. 7 In Carroll v. United States8 and Chambers v. Monroney 9 the United 5. 5 Cal. 3d at 863, 489 P.2d at 578, 97 Cal. Rptr. at Cal. 3d 807, 815, 478 P.2d at 453, 91 Cal. Rptr. at 733. A warrantless search may be made for (a) instrumentalities, fruits, or evidence of the crime, (b) contraband, or (c) weapons. Id. at 812, 478 P.2d at 451, 91 Cal. Rptr. at 731. But since the instrumentality of the traffic violation is the car itself, and since there are no fruits of a traffic violation, a search is not justified as a search for instrumentalities or fruits of the crime. Id. at 813, 478 P.2d at 451, 91 Cal. Rptr. at 731. Nor may a search of the vehicle be made to secure evidence of the crime in traffic violation cases except in cases involving driving while intoxicated. Id. at 813 n.2, 478 P.2d at 451 n.2, 91 Cal. Rptr. at 731 n.2. See People v. Robinson, 62 Cal. 2d 889, 402 P.2d 834, 44 Cal. Rptr. 762 (1965). In those cases, searches of the vehicle are permissible either as a search for evidence (for example, empty liquor containers or narcotics) or as a search incident to the arrest. See People v. Gil, 248 Cal. App. 2d 189, 56 Cal. Rptr. 88 (2d Dist. 1967). The police are also prohibited from making a warrantless search of a vehicle, incident to a traffic violation, for contraband or weapons. In all searches, presumably including a search of an automobile, "the scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible." Terry v. Ohio, 392 U.S. 1, 19 (1968). Accord, People v. Collins, 1 Cal. 3d 658, 661, 463 P.2d 403, 405, 83 Cal. Rptr. 179, 181 (1970) Cal. 3d at 815, 478 P.2d at 453, 91 Cal. Rptr. at U.S. 132 (1925). In Carroll the officers knew from past experience that the defendants were in the bootlegging business at Grand Rapids; the defendants were observed returning to that city from the direction of Detroit, known to be a major source of illegally imported liquor; and the defendants were traveling in the same automobile they had used on an earlier occasion when they tried to furnish the

15 19721 CALIFORNIA SUPREME COURT States Supreme Court upheld warrantless vehicle searches based on reasonably trustworthy information that the vehicle contained contraband. However, such information is usually absent in the typical traffic violation case. Observations of the officer at the scene of the arrest are also a basis for probable cause to search a vehicle for contraband. 1 " To justify a search on these grounds the officer must observe some occurrence, other than the traffic offense, that reasonably leads him to believe that the vehicle contains contraband. The nature of the observation determines the reasonableness of the officer's conclusions and hence the reasonableness of the search. One type of observation that has been held to justify a search is the sight of contraband or other suspicious objects in plain view in the car. 1 The observation itself is not a search," 2 but it may justify a belief that more contraband is present elsewhere in the vehicle. Similarly, the officer's observation of an occupant in the act of concealing some object may justify a search. Whether or not the observed object is readily identifiable as contraband, there may be reasonable grounds to believe that contraband was being secreted. The difficulty here, of course, is determining what conduct constitutes an "act of concealing." The appropriate act is usually phrased as "furtive" conduct by an occupant of the vehicle. The theory is that even though no contraband is actually observed from outside the vehicle, the officer may sometimes reasonably infer from certain of the occupant's movements that he is trying to hide something.1 3 The problem with basing probable cause to search on furtive conduct is that the gesture must be correctly perceived and interpreted in accordance with the actor's intent.' 4 Therefore more than the bare movement or gesture is required for probable cause; the furtive gesture whiskey to police officers, so the car was identified as part of the operation's equipment. Id. at U.S. 42 (1970). In Chambers the police received a report of an armed robbery of a service station; eyewitnesses furnished detailed descriptions of the articles stolen, the garb and weapons of the robber, and the appearance of the getaway car; shortly thereafter the defendants were arrested in a vehicle matching that description. Chambers is difficult to interpret because the case involved a delayed search while the car was impounded at the police station after the arrest, indicating that there was no danger the car would disappear while the police obtained a warrant. The Court, however, indicated that a search at the scene of the arrest would have been reasonable. Id. at Cal. 3d at 816, 478 P.2d at 454, 91 Cal. Rptr. at Id. at 817, 478 P.2d at 454, 91 Cal. Rptr. at Harris v. United States, 390 U.S. 234 (1968) Cal. 3d at 817, 478 P.2d at 454, 91 Cal. Rptr. at Id. at 818, 478 P.2d at 455, 91 Cal. Rptr. at 735.

16 CALIFORNIA LAW REVIEW [-Vol. 60:759 must occur in suspicious circumstances. The California rule was stated in People v. Tyler.' 5 As it is the information known to the police officers or the suspicious circumstances which turn an ordinary gesture into a furtive one, it is equally clear in this state that in the absence of information or other suspicious circumstances, a furtive gesture alone is not sufficient... Problems of defining both furtive conduct and suspicious circumstances necessarily arise in each case in which this justification for a warrantless search is asserted. No case, not even Kiefer or Gallik, has attempted to state a definition of either of these terms that would be applicable generally. Kiefer did, however, enumerate various gestures that are more likely innocent than guilty and that are therefore not furtive. It also examined various circumstances considered suspicious in prior cases and concluded that many were not actually suspicious. In cases involving a furtive gesture coupled with prior reliable information, the observation of contraband, or the observation of an act of deliberate concealment, California courts have normally found probable cause to search. 16 For example, in People v. Jiminez, 17 probable cause was based on the observation of a downward motion by a juvenile sitting with others in a parked car in an area where officers had been told to expect a gang fight. While this was furtive conduct with prior reliable information, the presence of the movement arguably was not critical to the finding of probable cause. With reliable information that juveniles were in the area, armed with weapons for a gang fight, the officers had the right to question the youths and to search them for weapons. The observation of the gesture is not controlling when prior reliable information exists that supports a reasonable belief that contraband is being secreted. This is clear from Supreme Court cases upholding searches based on reliable information, without the observation of any furtive conduct.' 8 In People v. Mosco' 9 probable cause to search was based on a furtive gesture coupled with an observation of contraband in the vehicle. The gesture in Mosco was a downward motion by an occupant of a parked car, followed by the officer's observation of a marijuana cigarette under a seat. Here also the search would have been lawful Cal. App. 2d 728, 732, 14 Cal. Rptr. 610, 612 (1st Dist. 1961). 16. The Kiefer court cited several such cases with approval. 3 Cal. 3d at 819, 478 P.2d at , 91 Cal. Rptr. at Cal. App. 2d 671, 300 P.2d 68 (1st Dist. 1956). 18. See Chambers v. Monroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925) Cal. App. 581, 29 Cal. Rptr. 644 (2d Dist. 1963).

17 1972] CALIFORNIA SUPREME COURT without the furtive gesture, since the observation of the contraband was in itself probable cause to search. People v. Doherty 2 upheld a search when the officer did not see recognizable contraband but did observe the suspect deliberately hiding a package, which under the circumstances the officer reasonably believed contained contraband. In Doherty the defendant and others refused to leave a service station at 3 a.m. When the officers arrived and asked for identification, they saw the defendant take a small white package from his pocket and drop it into the motor of the car. Such conduct was characterized as a deliberate act of concealment; and, in such a confrontation situation, the case holds that the officer was justified in concluding that the object sought to be hidden was contraband. The rationale for allowing warrantless vehicle searches based on furtive conduct in suspicious circumstances is similar to the rationale for allowing a search when an officer sees a deliberate act of concealment. The observation of the conduct of a vehicle's occupant, such as bending forward or to one side, when the vehicle is stopped by police has been found sufficient to justify a search on the ground that the officer can reasonably conclude that he is observing an act of concealment. However, prior to Kiefer the courts of appeal were not consistant in their holdings as to what kinds of conduct constitute a furtive gesture in suspicious circumstances. Several cases, all involving similar conduct, had found probable cause to search; only two cases had failed to sustain the claim of probable cause. The first case to find probable cause solely on the basis of a furtive gesture in suspicious circumstances was People v. Sanson. 21 In Sanson an officer saw a car with no license plate illumination and with a blue rather than a red taillight being driven very slowly at 3:00 a.m. When the officer turned on his red light to stop the vehicle, he noticed that its two passengers appeared to be hiding something under the front seat. As the officer approached the car the driver got out. The officer then ordered the passengers out of the car, searched under the seat, and found a bag containing marijuana. According to the court, the movements of the occupants coupled with the slow driving at a time when people should be driving at a normal or fast speed to get home constituted probable cause to search." The Sanson court relied on hindsight, circular reasoning, and general language from Jimenez, which stated that it is a natural ir Cal. 2d 9, 429 P.2d 177, 59 Cal. Rptr. 857 (1967) Cal. App. 2d 250, 319 P.2d 422 (2d Dist. 1957). 22. Id. at 253, 319 P.2d at 424.

18 CALIFORNIA LAW REVIEW [Vol. 60:759 pulse on being confronted by police to hide contraband. 2 The Sanson opinion assumed that the movement of a vehicle's occupants upon being confronted by police is a purposeful response to the presence of the officer and reasoned that an officer seeing such a movement may assume that it is motivated by a natural impulse to hide contraband in one's possession. Then, when a search actually uncovers contraband the officer's probable cause to search is confirmed. 2 ' The cases that followed Sanson likewise assumed that similar conduct by a vehicle's occupant was furtive. To establish probable cause to search, once a furtive gesture is found, it need only be shown that a suspicious circumstance accompanied the gesture. Factors such as the driver's leaving his car and walking back to the police car, 2 " a night arrest, 6 and erratic driving 27 have been held sufficiently suspicious in conjunction with bending or leaning movements to justify a finding of probable cause. The Sanson case has been followed by other California courts of appeal with two notable exceptions: People v. Moray, 2 8 and People v. Cruz. 9 In Moray, an officer stopped a car that had failed to halt at a posted stop sign, and had then made an illegal turn. As the car was coming to a halt, the officer saw the driver "raise his right shoulder as if he were reaching in his pocket, and then lean toward the right hand seat." 8 When questioned, the driver denied hiding anything, but the officer nevertheless searched the car and found marijuana. The court held that since all the officer saw was a gesture for which there may have been an innocent explanation, probable cause to search was lacking. 31 In Cruz, an officer saw the defendant driving an automobile with an -unlawfully lowered frame. As the officer turned on his red light, he saw the driver suddenly lower his left shoulder and look to the left, and he appeared to be reaching toward the floor or seat of the car. 2 The defendant did not reply when asked what he had hidden Cal. App. 2d 671, 674, 300 P.2d 68, 70 (1st Dist. 1956) Cal. App. 2d at 253, 319 P.2d at See People v. Brown, 272 Cal. App. 2d 448, 77 Cal. Rptr. 438 (4th Dist. 1969); People v. Williams, 220 Cal. App. 2d 108, 33 Cal. Rptr. 765 (2d Dist. 1963). 26. See People v. Brown, 272 Cal. App. 2d 448, 77 Cal. Rptr. 438 (4th Dist. 1969); Bergeron v. Superior Court, 2 Cal. App. 3d 433, 82 Cal. Rptr. 711 (4th Dist. 1969). 27. See People v. Goodrick, 11 Cal. App. 3d 216, 89 Cal. Rptr. 866 (2d Dist. 1970) Cal. App. 2d 743, 35 Cal. Rptr. 432 (2d Dist. 1963) Cal. App. 2d 437, 70 Cal. Rptr. 249 (2d Dist. 1968) Cal. App. 2d at 744, 35 Cal. Rptr. at Id. at 746, 35 Cal. Rptr. at Cal. App. 2d at 439, 70 Cal. Rptr. at 250.

19 19721 CALIFORNIA SUPREME COURT The officer ordered the defendant out of the car, searched the vehicle, and found contraband narcotics. The court of appeal held that these actions were insufficeint to constitute probable cause. Moray and Cruz, however are not in direct conflict with Sanson or its progeny. In Moray, the court pointed out that no suspicious circumstance was claimed to accompany the gesture. 33 The cases following Sanson all involved some suspicious circumstance. Cruz not only lacked any suspicious circumstances, but the officer there did not even claim that he suspected that the defendant was hiding contraband narcotics, an element present in many of the cases that found probable cause. 34 Since the law has always been that a furtive gesture absent suspicious circumstances is an insufficient ground for probable cause, Moray and Cruz are not exceptions. All pre-kiefer cases involving a furtive gesture and some circumstance deemed suspicious followed the reasoning and holding of Sanson. Kiefer, however, reached the opposite result on facts that closely resembled the facts of prior cases in which probable cause had been found. Part II examines Kiefer in detail. U1. THE KI[EFER CASE At 8 p.m. a highway patrol officer saw a car being driven at high speed and gave chase, switching on his red light to bring the car to a stop. As the driver was pulling to the side of the road, the officer saw a woman's head rise from the passenger side of the front seat; she turned and put her arm over the back of the seat, faced forward again, bent down toward the floor, and finally reassumed a normal sitting position. The driver of the car got out and walked toward the officer, who told the driver why he had been stopped. The driver readily acknowledged that he had been speeding and produced his driver's license. 35 The officer then approached the passenger side of the car, where the occupant remained sitting in the front seat with the window rolled -up. Making no attempt to communicate with the passenger, the officer immediately opened the car door and looked inside. 36 On the floor mat between the seat and the door the officer saw "some green looking stems" and "several round seeds in the crack of the seat cushion. '37 A thorough search of the car produced small amounts of marijuana. The defendants were charged with unlawful possession and trans Cal. App. 2d at , 35 Cal. Rptr. at Cal. App. 2d at 441, 70 Cal. Rptr. at Cal. 3d at 811, 478 P.2d at 451, 91 Cal. Rptr. at Id. 37. Id. at 812, 478 P.2d at 451, 91 Cal. Rptr. at 731.

20 CALIFORNIA LAW REVIEW [Vol. 60:759 portation of marijuana. 3 s Their motion to suppress the evidence on grounds of illegal search and seizure was granted, and the state sought review by statutory writ of mandate. 3 9 The issue before the supreme court was whether, under the circumstances, the officer's act of opening the car door was a reasonable search within the meaning of the fourth amendment to the United States Constitution. The state contended that the passenger's gestures were furtive and that the driver's getting out of his car and walking back to the police car was a suspicious circumstance, and that together they constituted probable cause to search the defendant's vehicle for contraband. 4 0 The supreme court held, however, that the passenger's gesture alone did not constitute probable cause to search and the driver's approach toward the police car could not reasonably be deemed to give the gesture sufficient guilty significance. 41 Therefore the officer lacked probable cause to believe the car contained contraband, and the search was unlawful. 42 In analyzing the cases that have found probable cause based on furtive gestures and suspicious circumstances, the court found that many, like Sanson, found the gestures furtive by relying on inferences based on supposed natural impulses of suspects. The court indicated that it is erroneous to assume that various forms of conduct by a suspect can only be interpreted as impulsive acts directed at concealing contraband. It stated that since the officer in many instances cannot be sure that the act is a purposeful response to his presence, he may be completely unjustified in inferring that it is impulsive. 48 Furthermore, even if the gesture is impulsive, there may be many more innocent interpretations of it than quilty ones; 44 such movements therefore can not properly be considered furtive within the rule for probable cause. 38. Id. at 811, 478 P.2d at 451, 91 Cal. Rptr. at 731. The defendants were charged under CAL. HEALTH & SA=nrv CODE ANN (West Supp. 1971). 39. Id. 40. The prosecution also contended that the search was justified as a search for weapons. This contention was, however, not a central issue in the case and was dismissed as being without merit. 3 Cal. 3d at 829, 478 P.2d at 464, 91 Cal. Rptr. at Id. at 828, 478 P.2d at 463, 91 Cal. Rptr. at Id. at 812, 478 P.2d at 451, 91 Cal. Rptr. at Cal. 3d at , 478 P.2d , 91 Cal. Rptr. at The observed movement may be nothing more than the driver's act of reaching for his wallet to have his license ready for inspection. The driver may also be removing his registration card from the steering post or glove compartment. It may be necessary for the driver to roll down his window, tura off the radio, or put out a cigarette. Since many motorists expect to get out of the car, they must unfasten seat belts, remove objects from their laps, or put their shoes on. The driver may be leaning forward or downward to apply his parking brake. Id. at , 478 P.2d , 91 Cal. Rptr

21 1972] CALIFORNIA SUPREME COURT The court also dismissed many of the circumstances that have been found to be suspicious in prior cases. 45 In virtually all the cited cases the confrontation took place at night. This circumstance, according to the court, must be evaluated cautiously; in itself it does not convert a possibly innocent gesture into one sufficient to furnish probable cause to search. 46 A motorist's becoming nervous on being confronted by police is also of little significance. Such nervousness is a normal response in such situations; even together with supposedly furtive movements, it does not distinguish criminals from any ordinary citizen. 47 The court also considered erratic driving an insufficiently suspicious circumstance to justify a finding of probable cause. While such conduct may be evidence of alcoholic or narcotic intoxication, it is just as likely to be a nervous response to the presence of the police. 48 Finally, the court indicated that the oft-cited conduct of the driver in getting out of his vehicle and walking back to the police car is not suspicious. This conduct has been interpreted as designed to decoy the officer's attention away from the vehicle, which some courts have held to be evidence of guilt. The supreme court pointed out, however, that such conduct could just as easily be looked upon as an attempt to be cooperative; it should not, therefore, be considered suspicious. 49 The court's analysis of the gesture in Kiefer to determine whether it was furtive and its examination of various circumstances to determine whether they were suspicious indicate that the court intends to continue applying the rule allowing probable cause to be predicated on a furtive gesture plus a suspicious circumstance. There are, however, unclear aspects of the case, making application of the rule uncertain at best. These include the confusion created by the court's continued reference to the act of bending over or to one side as a furtive gesture after it had found such a gesture to be innocent in the context of a traffic violation search 50 and its repeated reference to the "near insufficiency of evidence' in cases whose results are inconsistent with the reasoning in Kiefer. 1 According to the language of Tyler, cited with favor in Kiefer, suspicious circumstances or facts known to the police are required be- 45. Id. at , 478 P.2d at , 91 Cal. Rptr. at Id. at 825, 478 P.2d at 461, 91 Cal. Rptr. at Id. at 826, 478 P.2d at 461, 91 Cal. Rptr. at 741 n Id. at 826, 478 P.2d at 461, 91 Cal. Rptr. at Id. at , 478 P.2d at 462, 91 Cal. Rptr. at ld. at 824, 828, 478 P.2d at 460, 463, 91 Cal. Rptr. at 740, Id. at 820, 827, 478 P.2d at 457, 462, 91 Cal. Rptr. at 737, 742.

22 CALIFORNIA LAW REVIEW [Vol. 60:759 fore an innocent gesture becomes furtive. The supreme court's criticism of Sanson and its analysis of conduct described as bending forward or leaning to one side led it to conclude that such acts are in themselves innocent. The court in Kiefer, however, continued to refer to such acts as furtive. Having determined that the gesture involved in Kiefer was innocent, the court could not have considered it furtive for the purposes of the rule. Its continued reference to the gesture as furtive is confusing and inconsistent with the court's reasoning. The court's reference to the "near insufficiency of the evidence" in certain of the previous cases also creates a problem because it permits an inference that those cases were correctly decided. A reexamination of Sanson and the cases that followed it, in light of the court's reasoning in Kiefer, indicates that many must be considered overruled. The gesture involved in all of these cases is bending forward or leaning to one side, 52 which the Kiefer court found not to be a furtive gesture. The cited cases involved various circumstances 8 that the Kiefer court analyzed and found not suspicious on their face. Those cases, therefore, that found probable cause from bending or leaning conduct coupled with any of the circumstances discussed in Kiefer should be considered overruled. I. THE GALLIK CASE A case decided two months after Kiefer by the first district court of appeal indicates that the supreme court failed to resolve the problems to which it addressed itself in Kiefer. The court of appeal in Gallik 4 ignored the reasoning of the supreme court in Kiefer and upheld a 52. The Sanson court did not actually describe the gesture observed by the officers. But it was observed while the vehicle was still moving. The officers at that time were still in their patrol car. There is no mentoin that the officers saw the defendant's hands or that they saw a definite act of concealment. The court merely states that the officers believed contraband was being hidden. 156 Cal. App. 2d 250, 253, 319 P.2d 422, These circumstances include a delay in stopping [Bergeron v. Superior Court, 2 Cal. App. 3d 433, 82 Cal. Rptr. 711 (4th Dist. 1969); People v. Gil, 248 Cal. App. 2d 189, 56 Cal. Rptr. 88 (2d Dist. 1967); People v. Shapiro, 213 Cal. App. 2d 618, 28 Cal. Rptr. 907 (2d Dist. 1963)], the defendant's nervousness [People v. Gil, 248 Cal. App. 2d 189, 56 Cal. Rptr. 88 (2d Dist. 1967)], a late hour [People v. Goodrick, 11 Cal. App. 3d 216, 89 Cal. Rptr. 866 (2d Dist. 1970); Bergeron v. Superior Court, 2 Cal. App. 3d 433, 82 Cal. Rptr. 711 (4th Dist. 1969); People v. Brown, 272 Cal. App. 2d 448, 77 Cal. Rptr. 438 (9th Dist. 1969); People v. Wiggington, 254 Cal. App. 2d 321, 62 Cal. Rptr. 104 (2d Dist. 1969); People v. Shapiro, 213 Cal. App. 2d 618, 28 Cal. Rptr. 907 (2d Dist. 1963); People v. Larson, 156 Cal. App. 2d 250, 319 P.2d 422 (2d Dist. 1957)], and a stop in a rural area [People v. Brown, 272 Cal. App. 2d 448, 77 Cal. Rptr. 438 (4th Dist. 1969)]. Though the Kiefer court did not discuss the circumstances of stopping in a rural area, this is like the lateness of the hour in that it is not deliberate conduct by the defendant and so should not be considered suspicious Cal. App. 3d 548, 93 Cal. Rptr. 332 (1st Dist. 1971).

23 19721 CALIFORNIA SUPREME COURT search based solely on the fact that the driver leaned forward and then denied having hidden anything. The supreme court's opinion overruling the court of appeal decision in Gallik was based primarily on Kiefer.i 5 In Gallik, an officer saw the driver of an illegally parked car talking to a boy and girl on bicycles. The officer advised the driver that he was illegally parked. As the officer got out of his car, he saw the driver lean forward and to the right, and his head almost disappeared from view. The driver produced identification and then was pat-searched for weapons. The officer found no contraband or weapons as a result of this search. When he asked the driver what he had hidden, the driver denied having hidden anything. Nevertheless, the officer searched the area under the front seat and found marijuana. The court of appeal held that the driver's furtive gesture, coupled with his denial of having hidden anything, constituted probable cause to search and that the officer was justified in believing that something had been hidden. 56 The driver's denial was thus a suspicious circumstance which raised the gesture to the level of constitutionally adequate probable cause. The court of appeal indicated that it felt free to follow the cases criticized in Kiefer, since they had not been overruled. The court stressed the fact that the supreme court had characterized the evidence in the criticized cases as being "nearly insufficient. '5 7 It construed this reference as showing that, although those cases might have been close, the evidence in them was still a sufficient basis for probable cause to search. 58 Even a superficial reading of Kiefer shows that the lower court's decision in Gallik was erroneous. It should be apparent from an analysis of the gestures in the two cases that the gesture in Gallik was innocent in itself. But even if it had been characterized as furtive, there was still no probable cause to search on the evidence presented. Kiefer should have made it clear that probable cause requires more than a furtive gesture: the officer must also possess information about the defendant or observe additional suspicious conduct or circumstances. That the driver denies having hidden anything is without significance until a search discloses contraband and the denial is disproved. But to find the denial significant due to the discovery of contraband is to reason from hindsight, which the court condemned in Kiefer Cal. 3d 855, 489 P.2d 573, 97 Cal. Rptr. 693 (1971) Cal. App. 3d at , 93 Cal. Rptr. at Id. at 553, n.2, 93 Cal. Rptr. at 335 n Id. at 553, 93 Cal. Rptr. at Cal. 3d at 821, 478 P.2d at 457, 91 Cal. Rptr. at 737.

24 CALIFORNIA LAW REVIEW [Vol. 60:759 This was, in fact, the supreme court's reasoning in determining that Gallik was controlled by Kiefer. It held that the conduct in Gallik was innocent and that the suspect's denial of having hidden anything did not give the officer probable cause to believe to the contrary. 60 Therefore, the denial was not a sufficiently suspicious circumstance to elevate the movement to the level of a furtive gesture. The court in Gallik did not directly address the contention of the court of appeal that the cases criticized but not specifically overruled in Kiefer could still be relied on. However, the court did answer this contention indirectly by indicating that in the future any fact situation alleged to justify a warrantless search in traffic violation cases will have to satisfy Kiefer. Therefore, by its holding in Gallik, the supreme court has indicated that it will not allow the lower courts to find probable cause by relying on the prior cases criticized by Kiefer, when to do so violates the reasoning of Kiefer. CONCLUSION Kiefer and Gallik should be considered as having removed for all practical purposes the underlying rationale for allowing probable cause to be predicated upon bending or leaning movements by vehicle occupants, thereby correcting some of the abuses that prevailed under prior decisions. In this way Kiefer and Gallik serve to clarify the law of search and seizure in vehicle searches in California. However, Kiefer's failure to define clearly the term "furtive gesture," while adherring to the rule allowing a search based on furtive gestures and suspicious circumstances, still contains potential for abuse. The court's continued reference to the act in Kiefer as "furtive" even after finding it to be "innocent" is the weakest part of the decision. Future courts may, as did the court of appeal in Gallik, term the bending motion furtive and then search for a circumstance that is suspicious. Since the furtive gesture rule perpetuated by Kiefer is vague and difficult to apply, the court should have deemphasized reliance on the rule and placed more emphasis on the ultimate issue-the reasonableness of the search. Preferably, the rule should be abandoned because it is an unnecessary substitute for proper analysis. The rule is a substitute for analysis because it allows a court to characterize an act as furtive without closely examining the act, or even after closely examining it and finding it more probably innocent than guilty, as the supreme court did in Kiefer. Once a furtive gesture is found, the presence of a suspicious circumstance is enough to constitute probable cause. Kiefer does make this procedure more diffi Cal. 3d at 861, 489 P.2d at 576, 97 Cal. Rptr. at 696.

25 1972] CALIFORNIA SUPREME COURT cult because it found that certain circumstances are not normally suspicious, but it still allows a court to pass quickly from the first to the second requirement of the furtive gesture rule by continuing to refer to such motions as bending or leaning as furtive. If the furtive gesture rule is to be retained, the proper analyical approach is to first examine the gesture; if it is more likely innocent than guilty, it should not be termed furtive. In that case there would be no need to examine the circumstances, because the furtive gesture rule would not apply. But the vagueness of the term furtive and the consequent vagueness that pervades the furtive gesture rule are good reasons for doing away with the rule altogether. If the rule were abandoned, a court in resolving the issue of probable cause would be asked to examine all the circumstances of the search, having in mind that it is a reasonableness standard that must be satisfied. The presence of a gesture by the suspect would be relevant, but the court would have to examine the gesture closely to determine its significance for the issue of probable cause. In this regard Kiefer's analysis of certain gestures will provide invaluable analogies. But the court should not be allowed merely to say that a gesture is furtive and uphold a search after finding a suspicious circumstance. Another reason for abandoning the rule is that it is unnecessary to the resolution of all but a few marginal cases, and in those cases it would be best simply to consider all the facts and decide whether it was reasonably probable that the suspect possessed contraband. In cases where the officer sees contraband or objects readily identifiable as contraband, that observation alone supplies the justification to search. If he sees the suspect in an act that he can identify as a deliberate act of concealment, even though he cannot readily identify the object concealed as contraband, he still possesses enough information to permit him to search. But if the officer sees only a movement by the occupant of a vehicle being stopped for a traffic violation, he cannot properly deduce from his observation that it is reasonably probable that the suspect possesses contraband. As the court in Kiefer pointed out, there are usually several reasonable explanations for such movement, only one of which is that the suspect is actually committing an offense. The court in Kiefer and later in Gallik should have moved away from application of the furtive gesture rule and emphasized the need to satisfy the reasonableness standard of the fourth amendment. Thomas M. Murray

26 CALIFORNIA LAW REVIEW [Vol. 60:759 C. Plea Bargaining People v. Rizer. 1 The court held that the defendant's guilty plea was invalid since the record did not affirmatively indicate that the plea was voluntarily and intelligently entered and that the defendant waived the constitutional rights surrendered by a guilty plea. 2 The court thus decided that the circumstances attending the entry of the defendant's guilty plea did not conform to the standards enunciated in Boykin v. Alabama 3 and In re Tahl and thereby reaffirmed the specifications of those cases to ensure fairness to the individual who pleads guilty. Three justices dissented from this holding on the ground that opinions of the United States Supreme Court since Boykin indicate that the Tahl standards are not required by Boykin and should therefore not apply to guilty pleas entered after Boykin but before Tahl. This Note discusses the reasoning of the majority and the dissent and evaluates the probable effect of recent United States Supreme Court decisions on plea bargaining in California. Defendant Rizer was charged with issuing a check without sufficient funds' and with assault with a caustic chemical; 6 he originally pleaded not guilty to both charges. After hearing medical testimony, the trial court found that Rizer was insane and ordered him confined in a hospital. He was subsequently returned from the hospital for further proceedings, and counsel was appointed to represent him. Rizer then withdrew his pleas of not guilty and pleaded not guilty by reason of insanity to both charges. 7 After hearing testimony on the sanity issue a second time, the trial court, sitting without a jury, found Rizer sane at the time the offenses were committed and convicted him on both counts on the basis of section 1016 of the Penal Code,' which provides that "[a] defendant who pleads not guilty by reason of insanity, without also pleading not guilty, thereby admits the commission of the offense charged." Rizer moved for a new trial in both actions, and his motions were denied. 9 I. THE MAJORITY'S REASONING The defendant's main contention in his appeal to the California 1. 5 Cal. 3d 35, 484 P.2d 1367, 95 Cal. Rptr. 23 (1971) (Mosk, J.) (4-3 decision). 2. Id. at 37, 484 P.2d at 1369, 95 Cal. Rptr. at U.S. 238 (1969), noted in 83 H-APv. L. REv. 181 (1969) Cal. 3d 122, 460 P.2d 449, 81 Cal. Rptr. 577 (1969). 5. CAL. PENAL CODE 476a (West 1970). 6. Id. 244 (West 1970) Cal. 3d at 36-37, 484 P.2d at , 95 Cal. Rptr. at CAL. PENAL CODE 1016 (West 1970) Cal. 3d at 36-37, 484 P.2d at , 95 Cal. Rptr. at

27 1972] CALIFORNIA SUPREME COURT supreme court was that his guilty pleas were constitutionally deficient under standards in effect at the time they were entered.' 0 In order to decide the issue, the court looked to standards set down by the United States Supreme Court in Boykin v. Alabama" and explicated by the California supreme court in In re Tahl.' 2 Boykin, which was decided June 2, 1969, held that it was error for the trial judge to accept the petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary.' 3 Justice Douglas, writing for the Court, stated: Several federal constitutional fights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one's accusers. We cannot presume a waiver of these three important federal rights from a silent record.' 4 The Court added that utmost solicitude is demanded in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences. 5 Five months later, in Tahi, the California supreme court sought to clarify the holding of Boykin for state trial courts. The Tahl court reasoned that prior to Boykin no specific language was prescribed to establish the waiver of rights and understanding of consequences attendant upon a guilty plea; the court would merely look to the overall record and surrounding circumstances, especially the presence of counsel, to determine whether the plea was voluntary.' 6 The Tahi court concluded that Boykin effected a change in the law. Boykin established the rule that a guilty plea cannot stand unless the record indicates both a free and intelligent waiver of the three enumerated rights necessarily abandoned by a guilty plea and an understanding of the nature and consequences of the plea. 17 Tahi stated that while the Boykin opinion contained no such requirement in express terms, it was both a fair deduction from Boykin and the only realistic means of assuring that the judge leaves a record adequate for review.'" Tahl finally held that Boykin was to be applied prospectively, that is, only to cases involving pleas entered after the effective date of Boykin Id. at 36, 484 P.2d at 1368, 95 Cal. Rptr. at U.S. 238 (1969) Cal. 3d 122, 460 P.2d 449, 81 Cal. Rptr. 577 (1969) U.S. at Id. at 243 (citations omitted). 15. Id. at Cal. 3d at , 460 P.2d at , 81 Cal. Rptr. at Id. at 130, 460 P.2d at 455, 81 Cal. Rptr. at Id. at 132, 460 P.2d at 456, 81 Cal. Rptr. at Id. at 135, 460 P.2d at 458, 81 Cal. Rptr. at 586.

28 CALIFORNIA LAW REVIEW [Vol. 60:759 The problem of prospective application was an issue in Rizer. In this case, the defendant's change of plea to not guilty by reason of insanity, which has the effect of a guilty plea under Penal Code section 1016,20 was made after Boykin was decided but prior to the opinion in TahL The defense and prosecution agreed that the defendant made no express waiver of his right to confront witnesses against him, but the prosecution insisted that no direct waiver of the right of confrontation was required since the defendant's pleas were entered before the Tahl decision. Arguing that Boykin merely required an affirmative showing in the record that a guilty plea was intelligent and voluntary, the prosecution asserted that such a record was made in Rizer. The prosecution further contended that Tahi set forth more stringent requirements for acceptance of a guilty plea than Boykin and that the additional requisites should be applicable only to cases in which pleas were entered after Tahl.21 Rejecting these arguments, the Rizer court held that Tahl did not impose requirements in addition to those set forth in Boykin but merely explicated the specific procedures dictated by Boykin. Prospectivity, therefore, related to Boykin, not to Tahl. 22 The Rizer court concluded that since the entry of the defendant's guilty pleas occurred after Boykin and did not meet the specifications of that case, as reflected in Tahl, the convictions must be reversed. 2 3 II. THE DISSENT: TAL GOES BEYOND BOYKIN Justice Burke's dissent, in which Justices Wright and McComb concurred, argued that because the defendant's plea was entered prior to Tahl, the principles of Tahl should not be controlling and that a review of Boykin in light of subsequent decisions by the United States Supreme Court indicates that Tahi went substantially further than necessary under the principles announced in Boykin. The dissent contended that Boykin does not expressly require an affirmative showing in the record that the defendant was advised of and expressly waived each of the three constitutional rights affected by a guilty plea. In 20. See text accompanying note 8 supra Cal. 3d at 37-40, 484 P.2d at , 95 Cal. Rptr. at Id. at 40-41, 484 P.2d at , 95 Cal. Rptr. at The court observed: "Decisions of the Courts of Appeal subsequent to Tahl have correctly interpreted the holding of that case to apply to all guilty pleas entered after the date of Boykin," citing People v. Vick, 11 Cal. App. 3d 1058, 1071, 90 Cal. Rptr. 236, 245 (4th Dist. 1970); In re Michael M., 11 Cal. App. 3d 741, 744, 89 Cal. Rptr. 718, 720 (1st Dist. 1970); People v. Jordan, 11 Cal. App. 3d 597, 600, 90 Cal. Rptr. 40, 42 (2d Dist. 1970); People v. Gayton, 10 Cal. App. 3d 178, 181, 88 Cal. Rptr. 891, 893 (lst Dist. 1970) Cal. 3d at 37, 484 P.2d at 1369, 95 Cal. Rptr. at 25.

29 1972] CALIFORNIA SUPREME COURT Justice Burke's view, Boykin simply held that it was error for the trial court to accept a guilty plea without ascertaining that the plea was intelligently and voluntarily given. His dissent further argued that Tahl in fact misinterpreted Boykin, in light of subsequent cases decided by the United States Supreme Court; in his view the record must contain facts and statements from which the trial court could reasonably assume that the defendant was apprised of and voluntarily waived his constitutional rights and intelligently pleaded guilty. 24 The dissent reasoned that Brady v. United States, 25 which upheld the constitutionality of plea bargaining per se, impliedly rejected the notion that a defendant must expressly waive the three constitutional rights mentioned in Boykin in order to enter a guilty plea. 26 In support of this contention, Justice Burke quoted Brady: "The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. '27 The dissent argued that North Carolina v. Alford 8 had the same effect and also quoted from that case to support its reasoning: "The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." 2 Justice Burke found no indication that the privilege against self-incrimination, the right of confrontation, and the right to jury trial had been specifically enumerated for and waived by the defendant in Alford prior to his plea of guilty. Therefore, Brady and Alford indicate that Tahi established a stricter standard than Boykin and that Tahl's specifications should be held inapplicable to guilty pleas entered before it was decided. 0 1I. THE BOYKIN STANDARD AND SUBSEQUENT CASES In order to evaluate the Rizer opinion as it bears on plea bargaining in California, further consideration must be given Boykin and subsequent decisions of the United States Supreme Court. 31 In Boykin 24. Id. at 43-44, 484 P.2d at , 95 Cal. Rptr. at U.S. 742 (1970) Cal. 3d at 44, 484 P.2d at 1374, 95 Cal. Rptr. at U.S. at 747 n.4, quoted in id U.S. 25 (1970). 29. Id. at 31, quoted in 5 Cal. 3d at 44, 484 P.2d at 1374, 95 Cal. Rptr. at 30. Both the majority and the dissent agreed that prior to Boykin the standard for the waiver of constitutional rights attendant upon a guilty plea was their knowing and intelligent nature. The question is to what extent Boykin effected a change in the law. See Brady v. United States, 397 U.S. 742, 749 (1970); McCarthy v. United States, 394 U.S. 459, 466 (1969). See text accompanying notes supra Cal. 3d at 45, 484 P.2d at , 95 Cal. Rptr. at See generally Comment, Judicial Supervision Over California Plea Bargaining: Regulating the Trade, 59 CALIF. L. Rv. 962, (1971).

30 CALIFORNIA LAW REVIEW [Vol. 60:759 the Court enunciated the constitutional standard for the entry of a guilty plea: the record must disclose that the defendant voluntarily and understandingly entered his plea of guilty. 82 As far as the record showed, the trial judge asked no questions of Boykin, and Boykin did not address the court. 8 The Court held that this record was inadequate to show that the petitioner's guilty plea was "intelligent and voluntary. 3 4 While Boykin requires the trial court to play an active role in guilty plea entry proceedings, Brady v. United States,"' decided a year later, removed the constitutional fears about the process of plea bargaining itself, ruling that a guilty plea is not invalid under the fifth amendment solely because it is motivated by assurances of leniency." 0 The petitioner in Brady pleaded guilty to a charge of kidnapping upon learning that his codefendant, who had confessed to the authorities, would plead guilty and be available to testify against him. After the trial judge twice questioned the petitioner as to the voluntariness of his plea, the plea was accepted.1 7 The Court held that the petitioner's plea was constitutionally valid since it was both "voluntary" and "intelligent" as defined by Boykin, 38 even though it was entered to avoid the possibility of the death penalty. 30 Six months after Brady, the Court affirmed the validity of plea bargaining even more strongly in North Carolina v. Alford, 40 upholding a guilty plea by one who protested his innocence. Alford was charged with first-degree murder. 41 At trial, after the presentation of the prosecution's case, which tended to show the defendant's intention to kill, Alford testified that he had not committed the murder but that he was pleading guilty because he faced the threat of the death penalty. 42 The Court decided that, even though the defendant pleaded guilty in order to limit the possible penalty, his plea did not necessarily demonstrate that it was not a voluntary and intelligent choice among the alternative courses of action open to him, as required by Boykin U.S. at Id. at Id. at U.S. 742 (1970), noted in 84 HAIv. L. REv. 148 (1970). 36. Id. at Id. at Id. at Id. at U.S. 25 (1970). 41. id. at Id. at Id. at 31.

31 19721 CALIFORNIA SUPREME COURT The effect of Alford and Brady is to affirm plea bargaining as the primary method for dispensing justice in the nation's criminal courts and to promote the state's effort to produce criminal convictions by offering apparent rewards that defendants may actively seek. Alford and Brady thus represent a shift in emphasis by the Court away from Boykin, which focused on protecting the rights of a defendant who pleads guilty. IV. SURVIVAL OF THE TAHL STANDARD In view of the apparent sentiment of the United States Supreme Court, the question arises whether the California supreme court's interpretation of the Boykin standard, as defined in Tahl and reaffirmed in Rizer, can survive. In Tahl five justices 44 agreed that in order for a defendant's guilty plea to be intelligent and voluntary as required by Boykin the defendant must expressly waive his privilege against self-incrimination, his right to confront witnesses against him, and his right to a jury trial. 4 5 In addition, Justice Peters concurred in the result in Tahl, though he would have extended Boykin even further than the majority did. 46 In Rizer, decided 2 years later, however, only four justices 47 agreed that Tahl's interpretation of Boykin should apply to cases in which pleas were entered after Boykin but prior to Tahl. Rizer thus suggests that an increasing minority of the California supreme court is unwilling to extend protection of a defendant who pleads guilty when presented with an opportunity to do so, and may indicate that the court is less comfortable with its interpretation of Boykin in Tahl than it was at the time Tahl was decided Chief Justice Traynor and Justices Tobriner, Burke, and Sullivan concurred in Justice Mosk's opinion in TahL Cal. 3d at , 460 P.2d at , 81 Cal. Rptr. at See note 48 infra. 47. Justices Peters, Tobriner, and Sullivan concurred in Justice Mosk's opinion in Rizer. 48. At the same time, there is some support for a further extension of the principles enunciated in Boykin, as indicated by Justice Peters' separate opinion in Tahl. While concurring with the majority's interpretation of Boykin as requiring a trial judge expressly to explain and a defendant expressly to waive constitutional rights to a jury trial, to confrontation, and against self-incrimination before a guilty plea is entered, Justice Peters would have held that Boykin's formal requirement of record proof of explanations and waivers applies to all cases not yet final, and that Boykin's substantive requirement that valid waivers in fact accompany a plea-regardless of the state of the record-is entitled to full retroactive effect. In addition, Justice Peters would have required that all plea bargains be set forth in the record. 1 Cal. 3d at , 460 P.2d at , 81 Cal. Rptr. at A year after Tahl, in People v. West, 3 Cal. 3d 595, 477 P.2d 509, 91 Cal. Rptr. 385 (1970), the California supreme court finally did hold unanimously that the terms of all plea bargains must appear in the record, though the court gave this requirement prospective application only. Defendant West was charged with possession

32 900 CALIFORNIA LAW REVIEW [Vol. 60:759 Therefore, the question remains whether the Tahl standards will continue viable despite hostile United States Supreme Court decisions. In Boykin the United States Supreme Court set down standards in an attempt to ensure that a person will not forego trial because ignorant of his rights, 49 and in Tahl the California supreme court interpreted those standards liberally. 50 In Rizer the court reaffirmed its interpretation of Boykin in Tahl, 51 although the dissent in Rizer felt the majority had gone too far, particularly in light of the subsequent United States Supreme Court cases. 52 But divided as the court was, Rizer indicates that Tahl is still the law in California's and that the court, while allowing a defendant to bargain his guilt and thus waive his rights to trial, will ensure that the defendant is fully aware of the terms of the bargain and the rights he is foregoing by entering a plea of guilty. Wendell H. Goddard D. Speedy Trial Jones v. Superior Court.' The California supreme court determined that an unjustified delay of 19 months between the filing of a complaint and an arrest violated the defendant's right to a speedy trial of marijuana. In order to obtain a sentence more flexible and fair than that provided by Health and Safety Code section (1-10 years, now alternatively punishable as a misdemeanor, Ch. 274, 7, [1971) Cal. Stat. 1305), the prosecution and defense agreed to plead defendant to a charge of maintaining a place for use of a narcotic, which was punishable alternatively as a misdemeanor. CAL. HEALTH & SAFETY CoD (West Supp. 1971). The West rule is apparently designed to force disclosure of the nature and extent of bargaining and its results so that the judge can check the soundness and fairness of the result reached between counsel. In West the court thus took an important step toward alleviating the fear that the rules of Tahl and Boykin will be treated lightly. 49. See text accompanying notes supra. 50. See text accompanying notes supra. 51. See text accompanying notes supra. 52. See text accompanying notes supra. 53. See In re Sutherland, 6 Cal. 3d 666, 493 P.2d 857, 100 Cal. Rptr. 129 (1972), in which the court affirmed the standards set forth in Tahl and Rizer and held that the petitioner's guilty plea to a charge of possessing heroin was invalid since he was not informed of his right to confront his accusers or of his privilege against self-incrimination, and he did not personally waive either of these rights or his right to trial by jury. The court decided that the plea was invalid even though it resulted from plea bargaining and even though the petitioner stated at the time of the plea that his attorney had explained his rights to him, that he was voluntarily pleading guilty because he was guilty, and that he understood the nature of the charge and the sentence to which he could be subjected Cal. 3d 734, 478 P.2d 10, 91 Cal. Rptr. 578 (1970) (Wright, C.J.) (5-2 decision).

33 19721 CALIFORNIA SUPREME COURT as guaranteed by the sixth amendment to the United States Constitution 2 and article I, section 13, of the California constitution. 3 This holding is consistent with earlier California cases involving undue delay between complaint and arrest; 4 the opinion's special significance arises from its clear suggestion that the court will in the future take the same approach to preprosecution delays that it has heretofore applied only to delays occurring after prosecution is formally initiated. 5 The opinion also departs from precedent by inferring prejudice to the defendant from the length of time elapsed 6 rather than requiring the defendant to prove specific instances of prejudice. t The defendant, Guy Jones, allegedly sold heroin to an undercover police agent in May The buy program in which the agent was participating ended in July 1968, and the police attempted at that time to contact Jones by visiting the apartment where the sale allegedly occurred and a community center where Jones attended classes. In the course of these inquiries, the police learned Jones' full name and address; but after the complaint was filed and a warrant for his arrest issued in July 1968, no attempt was made to contact him until February 1970, when he was arrested. During this entire interval Jones lived at an address known to the police and made no attempt to avoid arrest.' After a preliminary hearing, an information was filed against Jones in March His motion to dismiss for lack of prosecution was denied about two weeks later on the ground that he had not shown prejudice or that the delay was unreasonable. 9 The supreme court, in a 5-to-2 decision, reversed and ordered the trial court to dismiss the action.' 0 I. THE COURT'S REASONING The majority opinion raised and rejected three arguments against applying the right to speedy trial in cases involving prearrest delay. n.*. 2. U.S. CONST. amend. Vl: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial CAL. CONST. art. I, 13: "In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial Harris v. Municipal Court, 209 Cal. 55, 285 P. 699 (1930); Rost v. Municipal Court, 184 Cal. App. 2d 507, 7 Cal. Rptr. 869 (Ist Dist. 1960) Cal. 3d at 739, 741 n.1, 478 P.2d at 13, 15 n.*, 91 Cal. Rptr. at 581, Id. at , 478 P.2d at 14, 91 Cal.' Rptr. at 582. Justices Burke and McComb dissented from the majority's opinion because they believed the evidence showed that the defendant was not prejudiced by the delay. 7. See, e.g., People v. Wright, 2 Cal. App. 3d 732, , 82 Cal. Rptr. 859, (2d Dist. 1969); People v. Campa, I Cal. App. 3d 467, 470, 81 Cal. Rptr. 710, 712 (2d Dist. 1969); People v. Alvarado, 258 Cal. App. 2d 756, , 66 Cal. Rptr. 41, 44 (2d Dist. 1968) Cal. 3d at , 478 P.2d at 11-12, 91 Cal. Rptr. at Id. at 737, 478 P.2d at 12, 91 Cal. Rptr. at 580. See id. at , 478 P.2d at 15-16, 91 Cal. Rptr. at Id. at 741, 478 P.2d at 15, 91 Cal. Rptr. at 583.

34 CALIFORNIA LAW REVIEW [Vol. 60:759 The first was that a defendant does not become an "accused" to whom the right can attach until he is arrested and formally charged. In dealing with this point, the court suggested that a suspect might become an accused before the filing of formal charges but stated that this question was not actually raised in Jones because a formal complaint had been filed, thereby making the defendant an accused even under the conventional interpretation of this term." This part of the court's holding is discussed in the next part. The second argument raised was that the statute of limitations is the sole guarantee against undue delay in the prearrest period. The court stated that the statute imposes a maximum limit on prosecutorial delay, but that the extent of the constitutional guarantee of speedy trial is for the judiciary to determine rather than the legislature. 12 This has long been the view adopted by California courts in dealing with statutory limitations on time periods for filing criminal charges and bringing the accused to trial. 13 While some courts have cited with approval the United States Supreme Court's view that the statute of limitations is the primary guarantee against the bringing of overly stale charges,' 4 there is general agreement that specific statutory provisions are merely interpretive and not determinative of the accused's right to a speedy trial.' 5 Since the court's holding on this point does not deviate from precedent, it is not discussed further. The third argument against applying the right to speedy trial to prearrest delay is that this would interfere with police investigation. The court stated that while such considerations are relevant in determining the reasonableness of the delay in any particular instance, they cannot justify delay that is not actually necessary for adequate police work.' 0 This is consistent with the usual practice of California courts to weigh the interest of law enforcement bodies in having sufficient time to perform thorough investigations against the defendant's interest in being apprised of charges against him before his memory fades or witnesses and other evidence become inaccessible.' 7 The Jones court proceeded 11. Id. at 739, 478 P.2d at 13, 91 Cal. Rptr. at Id. at , 478 P.2d at 13, 91 Cal. Rptr. at Statutes of limitations for various offenses are set forth in CAL. PENAL CODE (West 1970). Time limits for bringing a defendant to trial are contained in CAL. PENAL CODE (West 1970). 14. United States v. Ewell, 383 U.S. 116, 122 (1966). See People v. Archerd, 3 Cal. 3d 615, 639, 477 P.2d 421, , 91 Cal. Rptr. 397, (1970); People v. Dontanville, 10 Cal. App. 3d 783, 789, 89 Cal. Rptr. 172, 175 (2d Dist. 1970). 15. See, e.g., People v. Wilson, 60 Cal. 2d 139, 145, 383 P.2d 452, 456, 32 Cal. Rptr. 44, 48 (1963); In re Begerow, 133 Cal. 349, , 65 P. 828, 830 (1901); Rost v. Municipal Court, 184 Cal. App. 2d 507, 513, 7 Cal. Rptr. 869, 873 (1st Dist. 1960) Cal. 3d at 740, 478 P.2d at 14, 91 Cal. Rptr. at E.g., People v. Bethea, 18 Cal. App. 3d 930, 939, 96 Cal. Rptr. 229,

35 1972] CALIFORNIA SUPREME COURT to apply this balancing test to determine that the delay was unreasonable: no proper police purpose had been shown, and the delay had prejudiced the defendant's ability to prepare his case."' The two sides of this balance are considered in part IH below. 11. SPEEDY TRIAL AND PREPROSECUTION DELAY The right to a speedy trial is generally thought of as a guarantee against undue delay between the defendant's arrest and his trial. 19 The main rationale for this guarantee is that unfairness would result if a person were incarcerated for a long period of time on a charge of which he was eventually acquitted. 20 The right has been held equally applicable to postarrest delay when the defendant is out on bail, on the theory that the prolonged pendency of a criminal charge would cause the defendant mental distress and social embarassment and might prejudice his ability to prepare a defense. 21 To implement the constitutional guarantee against such delay, California has enacted statutes prescribing maximum periods within which an arrested person must be taken before a magistrate, 22 an information must be filed, 23 and a defendant must be brought to trial. 24 Undue delay at any stage can be grounds for dismissal. 28 The courts are in disagreement as to whether the right to speedy trial protects against delay prior to arrest. 26 California courts have held that the right does apply to prearrest delay after a complaint has been filed or a warrant issued. 2 7 In such cases, the courts reason, the defendant suffers the same adverse effects from the pendency of the criminal charge as would a defendant who had been released on bail. (2d Dist. 1971); People v. Wright, 2 Cal. App. 3d 732, , 82 Cal. Rptr. 859, (2d Dist. 1969). See Ross v. United States, 349 F.2d 210, 213 (D.C. Cir. 1965) Cal. 3d at , 478 P.2d at 14-15, 91 Cal. Rptr. at See United States v. Ewell, 383 U.S. 116, 120 (1966). See generally Note, The Right to a Speedy Criminal Trial, 57 COLUM. L. REv. 846 (1957). 20. Note, The Right to a Speedy Trial, 20 STAN. L. REv. 476, 476 (1968). See Petition of Provoo, 17 F.R.D. 183, 195 (D. Md.), a!f'd mem., 350 U.S. 857 (1955). 21. See, e.g., United States v. Parrott, 248 F. Supp. 196, (D.D.C. 1965); United States v. Chase, 135 F. Supp. 230, (N.D. Ill. 1955) (defendant incarcerated on other charges). 22. CAL. PENAL CODE 825 (West 1970). 23. Id. 739 (West 1970). 24. Id (West 1970). See also id. 1381, (West 1970). 25. Id (West 1970). Such delay is not grounds for reversing a conviction unless the defendant made timely objection to the delay and was prejudiced by it. People v. Wilson, 60 Cal. 2d 139, 383 P.2d 452, 32 Cal. Rptr. 44 (1963). 26. See Note, supra note 20, at Barker v. Municipal Court, 64 Cal. 2d 806, 415 P.2d 809, 51 Cal. Rptr. 921 (1966); Harris v. Municipal Court, 209 Cal. 55, 285 P. 699 (1930); Rost v. Municipal Court, 184 Cal. App. 2d 507, 7 Cal. Rptr. 869 (1st Dist. 1960). 28. See Harris v. Municipal Court, 209 Cal. 55, 64-65, 285 P. 699, (1930).

36 CALIFORNIA LAW REVIEW [Vol. 60:759 The delay in Jones was of this type, since the complaint had been filed and the warrant issued 19 months before the defendant was arrested. Though California has no statute limiting delay between commencement of prosecution and arrest, the court found, as it had in earlier cases, that such delay is limited by the speedy trial guarantees of the United States and California constitutions. 29 In cases of preprosecution delay-where no formal action has been taken prior to the defendant's arrest-courts generally hold that the right to speedy trial is inapplicable. 3 0 The reason usually given for this distinction is that the constitutional language-"the accused shall enjoy the right to a speedy and public trial" 3 '-makes the right applicable only to one who has formally become an "accused" by initiation of legal proceedings against him. 32 Reliance on such a formal distinction creates considerable difficulty. It is inconsistent to hold that one who is formally accused but is out on bail must have a speedy trial in order to protect his ability to prepare a defense, while at the same time denying the right to one who has not been formally accused but who suffers at least the same prejudice in the interval before he is accused and tried. Recognizing this, the D.C. Circuit has circumvented the position that the sixth amendment right to speedy trial only applies to one who is formally an accused by holding that the fifth amendment right to due process protects against unreasonable preprosecution delay. 3 The Eighth Circuit has also indicated a willingness to adopt the same position: "We do not intend any implication that an inordinate or prejudicial delay between an offense and prosecution could not constitute a denial of due process. '3 4 Before Jones, California courts followed the older rule and held that the right to speedy trial does not attach until after the defendant has formally become an accused. 35 The Jones court stated: It may be contended, however, that a person becomes an "accused" at an earlier time, when, for example, law enforcement agencies either decide to charge him with an offense or have a reasonable basis for doing so. Under this view a defendant could assert that an unrea- 29. See text accompanying notes supra. 30. Note, supra note 20, at U.S. CONsT. amend. VI. The corresponding section of California's constitution is quoted in note 3 supra. 32. E.g., Parker v. United States, 252 F.2d 680, 681 (6th Cir.), cert. denied, 356 U.S. 964 (1958); People v. Jordan, 45 Cal. 2d 697, 708, 290 P.2d 484, 491 (1955). 33. Ross v. United States, 349 F.2d 210 (D.C. Cir. 1965). See Powell v. United States, 352 F.2d 705 (D.C. Cir. 1965). 34. Terlikowski v. United States, 379 F.2d 501, 505 (8th Cir.) (dictum), cert. denied, 389 U.S (1967). 35. E.g., People v. Jordan, 45 Cal. 2d 697, 708, 290 P.2d 484, 491 (1955); People v. Aguirre, 181 Cal. App. 2d 577, 580, 5 Cal. Rptr. 477, 479 (1st Dist. 1960).

37 19721 CALIFORNIA SUPREME COURT sonable delay prior to as well as such a delay after the filing of a formal charge violated his right to a speedy trial....6 Since preprosecution delay was not at issue in Jones, the court did not indicate whether it would accept this argument; but it is significant that it saw fit to raise the argument, since United States and California authority is unanimously to the contrary. 3 7 However, such an interpretation is reasonable, especially in view of United States Supreme Court cases holding that a defendant becomes an accused for purposes of the right to counsel and the privilege against self-incrimination as soon as the police investigation has focused on him. 3 While the reasons for applying these latter rights at an early point in time may be more compelling, it is inconsistent to hold that the right of one not formally accused to be brought to trial promptly should not also attach when he becomes the primary object of the police investigation. The need for adequate investigation is a factor in determining the reasonableness of the delay, but the police should not be allowed absolute discretion to determine when to inform the accused that charges are being brought against him, any more than they have to inform him of his right to keep silent and to have the aid of counsel. 39 The reasons for defining "accused" differently for purposes of different constitutional rights appear to be purely historical. 4 " Since Jones was decided on the speedy trial issue, the court did not reach the defendant's due process argument, but a footnote suggests that the California court may alternatively choose to adopt the D.C. Circuit's approach to preprosecution delay: [A] claimed denial of due process would be decided by the same approach, namely, balancing the effect of the delay on the defendant against any justification for the delay. Thus the impact of this decision cannot be avoided by merely delaying the filing of formal charges so that a particular defendant does not technically become an Cal. 3d at 739, 478 P.2d at 13, 91 Cal. Rptr. at See Note, supra note 20, at Though the author cites cases in which combined preprosecution and postprosecution delays were found to violate the defendant's right to speedy trial and dicta of two circuit courts stating that the right to speedy trial applies to preprosecution delay, he cites no cases in which preprosecution delay was actually found to violate the defendant's right to speedy trial. 38. Escobedo v. Illinois, 378 U.S. 478 (1964). See Miranda v. Arizona, 384 U.S. 436 (1966). 39. See notes infra and accompanying text. 40. The Sixth Circuit's decision in Parker v. United States, 252 F.2d 680, cert. denied, 356 U.S. 964 (1958), which was subsequently approved by the United States Supreme Court in United States v. Ewell, 383 U.S. 116 (1966), appears to have settled the definition of "accused" for purposes of the right to speedy trial. A dictum in the case of Pollard v. United States, 352 U.S. 354, 361 (1957), stating that a "purposeful or oppressive" prearrest delay might amount to "an unconstitutional deprivation of rights," opened the door to the D.C. Circuit's due process approach.

38 CALIFORNIA LAW REVIEW [Vol. 60:759 "accused" within the meaning of the constitutional guarantee of the right to a speedy trial. 41 While this was the first case in which the court has explicitly stated that preprosecution delay may violate due process, its expressed willingness in other cases 42 to inquire into the reasonableness of a preprosecution delay that prejudices the defendant is equivalent to a due process approach. Such cases provide the basis for a court of appeal's statement in People v. Alvarado that an accused may under some circumstances be deprived of due process of law if the lapse of time between the commission of the offense and the filing of the accusation makes it difficult or impossible for him to adequately prepare his defense Despite this recognition that some preprosecution delays may violate due process, California courts have rarely overturned convictions on this basis, since they usually find sufficient justification for the delay or insufficient prejudice to the defendant. 44 It is possible that the supreme court's specific endorsement of this approach may make the lower courts evaluate due process claims in this area more carefully. In the post-jones decision of People v. Bethea, 415' the second district court of appeal expressly weighed the prejudice to the defendant against the prosecution's justification to determine whether a delay of over two years between offense and indictment violated due process. However, since this is no more than the same court did before Jones, 4 it cannot be taken as an indication of the Jones opinion's effect. A better test of its effect will be cases from courts that have previously regarded the statute of limitations as the only guarantee against preprosecution delay. 47 Though Jones did not involve preprosecution delay, the court went out of its way to suggest that either the right to speedy trial or the right to due process may be applied to limit such delay in the future. 4 8 Since the due process approach has been adopted by other courts and Cal. 3d at 741 n.1, 478 P.2d at 15 n.*, 91 Cal. Rptr. at 583 n.*. 42. E.g., People v. Archerd, 3 Cal. 3d 615, 477 P.2d 421, 91 Cal. Rptr. 397 (1970); People v. Kiihoa, 53 Cal. 2d 748, 349 P.2d 673, 3 Cal. Rptr. 1 (1960); In re Begerow, 133 Cal. 349, 65 P. 828 (1901) Cal. App. 2d 756, 759, 66 Cal. Rptr. 41, 43 (2d Dist. 1968). 44. E.g., People v. Dontanville, 10 Cal. App. 3d 783, 89 Cal. Rptr. 172 (2d Dist. 1970); People v. Wright, 2 Cal. App. 3d 732, 82 Cal. Rptr. 859 (2d Dist. 1969); People v. Gilmore, 239 Cal. App. 2d 125, 48 Cal. Rptr. 449 (2d Dist. 1965). See text accompanying notes infra Cal. App. 3d 930, 96 Cal. Rptr. 229 (2d Dist. 1971). 46. See cases cited note 44 supra. 47. E.g., People v. Aguirre, 181 Cal. App. 2d 577, 5 Cal. Rptr. 477 (lst Dist. 1960). 48. See notes 36, 41 supra and accompanying text.

39 1972] CALIFORNIA SUPREME COURT implicitly followed by some California courts, 49 it might be the easier test to apply. As discussed in the following part, there should be no difference in the standard to be applied under either approach. Jones makes clear that lower courts must now apply some balancing test in all cases involving preprosecution delay. IMI. THE SIDES OF THE BALANCE To determine whether the defendant's right to speedy trial had been violated, the Jones court stated that it must "balance the competing interests involved.... The prejudicial effect of the delay on petitioner must be weighed against any justification for the delay." 50 This balancing test has long been applied by California courts to delays occurring after formal charges are filed and before prosecution is initiated, 5 ' and federal courts similarly consider the elements of prejudice and justification to determine the reasonableness of a delay. 52 The courts are in disagreement, however, as to the factors that belong on each side of the balance and their relative weight. Some courts presume prejudice from a sufficiently long delay; 53 others suggest that prejudice is not necessary if the delay is purposeful or oppressive. 54 Some courts have held that the defendant must prove specific elements of prejudice and must also prove that no good cause existed for the delay, 55 while other courts put the burden on the prosecution to show that the defendant was not prejudiced and that the delay was necessary to the needs of law enforcement. 56 Since California law in this area is not settled, the Jones treatment of each side of the balance is of considerable importance. 49. See cases cited notes 33-34, supra Cal. 3d at 740, 478 P.2d at 14, 91 Cal. Rptr. at E.g., People v. Wright, 2 Cal. App. 3d 732, , 82 Cal. Rptr. 859, (2d Dist. 1969); People v. Alvarado, 258 Cal. App. 2d 756, 759, 66 Cal. Rptr. 41, 43 (2d Dist. 1968); People v. Castedy, 194 Cal. App. 2d 763, 769, 15 Cal. Rptr. 413, 417 (lst Dist. 1961). 52. E.g., United States v. Jackson, 369 F.2d 936, 939 (4th Cir. 1966); United States v. Simmons, 338 F.2d 804, 807 (2d Cir. 1964), cert. denied, 380 U.S. 983 (1965); United States v. McIntyre, 271 F. Supp. 991, 997 (S.D.N.Y. 1967), afrd, 396 F.2d 859 (2d Cir. 1968), cert. denied, 393 U.S (1969). 53. Jackson v. United States, 351 F.2d 821, 822 (D.C. Cir. 1965); United States v. Simmons, 338 F.2d 804, 808 (2d Cir. 1964), cert. denied, 380 U.S. 983 (1965); Barker v. Municipal Court, 64 Cal. 2d 806, 812, 415 P.2d 809, 813, 51 Cal. Rptr. 921, 925 (1966); Harris v. Municipal Court, 209 Cal. 55, 64, 285 P. 699, 702 (1930) (only unreasonable delay need be shown). 54. See Pollard v. United States, 352 U.S. 354, 361 (1957); Terlikowski v. United States, 379 F.2d 501, 505 (8th Cir.), cert. denied, 389 U.S (1967). 55. United States v. McIntyre, 271 F. Supp. 991, 999 (S.D.N.Y. 1967), affid, 396 F.2d 859 (2d Cir. 1968), cert. denied, 393 U.S (1969); People v. Dontanvile, 10 Cal. App. 3d 783, 789, 89 Cal. Rptr. 172, 175 (2d Dist. 1970); People v. Gilmore, 239 Cal. App. 2d 125, 129, 48 Cal. Rptr. 449, (2d Dist. 1965). 56. See Note, supra note 20, at 496, 502.

40 CALIFORNIA LAW REVIEW [Vol. 60:759 The Jones court found that the defendant had been prejudiced by impairment of his memory; but Justice Burke pointed out in his dissent that the trial court had made no such finding, and the majority therefore "apparently assume such impairment as a matter of law... In fact, Justice Burke felt that the evidence showed just the contrarythat certain events had fixed the offense clearly in the defendant's mind. However, if the majority did in effect create a presumption of prejudice, this would not be inconsistent with California precedent. In the case of Harris v. Municipal Court, 58 wherein 18 months elapsed between the filing of a usury complaint and the service of the warrant, the supreme court stated: [I]t is not necessary that the party accused affirmatively show prejudice. Prejudice will be presumed from the violation of this constitutional right. It is enough for the defendant to show that the prosecution has been unreasonably delayed. 5 9 Due to the great similarity in the factual situations of Harris and Jones, the Jones court could have cited this language to presume prejudice without adducing, as it did, facts justifying an inference of prejudice. Its failure to adopt the Harris approach could indicate its rejection of Harris, but it could also be an attempt to establish precedent that can be used in due process cases as well as in speedy trial cases such as Harris and Jones. Since by "this constitutional right" the Harris court meant the right to speedy trial, the presumption of prejudice from the violation of this right would be of no help in cases involving preprosecution delay, wherein the right to speedy trial is inapplicable. 0 However, the Harris approach is not the only one under which prejudice can be presumed. The California supreme court in Barker v. Municipal Court 6 held that a delay of 18 years between complaint and trial justified a presumption of prejudice because it was "caused either by willful oppression, or the neglect of the state or its officers." Cal. 3d at 742, 478 P.2d at 15, 91 Cal. Rptr. at Cal. 55, 285 P. 699 (1930). 59. Id. at 64, 285 P. at 702. Contra, People v. Wilson, 60 Cal. 2d 139, 383 P.2d 452, 32 Cal. Rptr. 44 (1963) (where undue postindictment delay was shown, court affirmed conviction, holding defendant not prejudiced by delay unless statute of limitations had run when motion to dismiss for failure to prosecute was made). 60. See notes supra and accompanying text. In People v. Archerd, 3 Cal. 3d 615, 477 P.2d 421, 91 Cal. Rptr. 397 (1970), the supreme court stated, "Postindictment delay does not require the showing of prejudice: it is presumed. Such a rule would be unworkable if prejudice were presumed in pre-indictment delay."" Id. at 640, 477 P.2d at 437, 91 Cal. Rptr. at 413. While Harris actually involved delay before indictment, this statement by the Archerd court was probably intended to reject the Harris approach in cases of preprosecution delay generally Cal. 2d 806, 415 P.2d 809, 51 Cal. Rptr. 921 (1966). 62. Id. at 816, 415 P.2d at 815, 51 Cal. Rptr. at 927, quoting In re Begerow, 133 Cal. 349, 355, 65 P. 828, 830 (1901).

41 1972] CALIFORNIA SUPREME COURT Federal courts have also held that prejudice will be presumed if the prosecution deliberately uses delay to strengthen its position" or if the delay is in any respect purposeful or oppressive. 64 The D.C. Circuit in Jackson v. United States stated, "In some cases, the length of that delay may be so great that prejudice can be presumed unless the Government can show otherwise." '65 Though such a presumption of prejudice from the length of the delay has been specifically rejected by some California courts, 66 most courts recognize the length of the delay as an important factor in determining prejudice; 7 it is possible that a sufficiently long delay would be decisive. Where the court refuses to apply any of these rationales for presuming prejudice, it is usually very difficult for a defendant to prove that he was prejudiced by the delay. 68 Factors often considered are the unavailability of witnesses and other forms of evidence and the defendant's loss of memory. However, the defendant may not be able to show that the testimony of a witness who has become unavailable would have been favorable; he may also be hard pressed to prove how a better memory would have aided his defense. As the D.C. Circuit stated in Ross v. United States, "In a very real sense, the extent to which [the defendant] was prejudiced by the Government's delay is evidenced by the difficulty he encountered in establishing with particularity the elements of that prejudice." 69 Some courts have even held that the unavailability of witnesses and loss of memory are not in themselves sufficient to show prejudice. 70 This places an almost impossible burden on the defendant, in sharp contrast to the rule of other courts requiring the prosecution to prove that the defendant was not prejudiced. 7 ' The position adopted in Jones was something of a compromise: 63. Terlikowski v. United States, 379 F.2d 501, 505 (8th Cir.), cert. denied, 389 U.S (1967); Petition of Provoo, 17 F.R.D. 183, (D. Md.), aff'd mem., 350 U.S. 857 (1955). 64. Pollard v. United States, 352 U.S. 354, 361 (1957) F.2d 821, 822 (D.C. Cir. 1965). 66. People v. Wright, 2 Cal. App. 3d 732, 736, 82 Cal. Rptr. 859, 861 (2d Dist. 1969); People v. Alvarado, 258 Cal. App. 2d 756, 759, 66 Cal. Rptr. 41, 43 (2d Dist. 1968). 67. E.g., People v. Archerd, 3 Cal. 3d 615, 640, 477 P.2d 421, 437, 91 Cal. Rptr. 397, 413 (1970). 68. Note, supra note 20, at F.2d 210, 215 (D.C. Cir. 1965). 70. People v. Campa, 1 Cal. App. 3d 467, 470, 81 Cal. Rptr. 710, 712 (2d Dist. 1969). See People v. Alvarado, 258 Cal. App. 2d 756, 761, 66 Cal. Rptr. 41, 44 (2d Dist. 1968) (stating that the defendant was not prejudiced by the disappearance of the principal witness against him because this was "a risk to which the defendant was legitimately subjected" as long as the police did not engineer his disappearance). 71. See Note, supra note 20, at 493 n.125, 496.

42 CALIFORNIA LAW REVIEW [Vol. 60:759 Petitioner was clearly prejudiced. The most obvious prejudicial effect of the long pre-arrest delay was to seriously impair his ability to recall and to secure evidence of his activities at the time of the events in question. 72 It thus did not require the defendant to show how an improved memory would have helped him or what further evidence would have proved. Justice Burke's charge that the court was in effect presuming prejudice may be justified; it is certainly not clear what the majority would require to establish prejudice beyond an allegation of memory loss. In Jones, the prosecution even introduced evidence to refute the defendant's claimed loss of memory-evidence that the trial court and Justice Burke found quite convincing. At the very least, Jones says that a defendants claim of memory loss must be given great weight in establishing prejudice. Jones may mean, however, that prejudice will be presumed when the delay is sufficiently long to make a loss of memory seem plausible. In view of the great difficulties in proving prejudice from prosecutorial delay, the establishment of such a presumption is quite reasonable. The Jones opinion does not significantly alter the other side of the balance, which is the reasonableness of the delay. The usual test for reasonableness, which was applied in Jones, is whether the delay advanced a proper police purpose. 3 In the case of People v. Archerd, 74 decided by the supreme court earlier this term, the defendant was indicted in 1967 for murders occurring as early as The court held that this delay was justified because it had taken that long for researchers to develop methods for detecting insulin poisoning, which was the defendant's modus operandi. The court stated, "A prosecutor is entitled to reasonable time in which to investigate an offense for the purpose of determining whether a prosecution is warranted and also in preparation of a case for submission to the grand jury. ' 75 Another accepted factor establishing reasonableness is that the police must be given adequate time to find defendants who have fled the state or otherwise concealed their whereabouts. 76 A third justification, which has been approved in several cases involving a police undercover agent in a narcotics "buy program" extending over several months, is that all indictments may be postponed until the end of the program in order to preserve the undercover agent's effectiveness. 77 The offense in Jones was in fact part of such a buy program, but the delay complained of Cal. 3d at 740, 478 P.2d at 14, 91 Cal. Rptr. at Id. at 741, 478 P.2d at 14, 91 Cal. Rptr. at Cal. 3d 615, 477 P.2d 421, 91 Cal. Rptr. 397 (1970). 75. Id. at 640, 477 P.2d at 437, 91 Cal. Rptr. at Cal. 3d at 740, 478 P.2d at 14, 91 Cal. Rptr. at E.g., Powell v. United States, 352 F.2d 705, 708 (D.C. Cir. 1965).