People v. Freeland

The testimony concerning promises of leniency was in direct conflict. The second ground of objection to the confession is not available on appeal, since there was substantial evidentiary support for the finding of voluntariness. (People v. Montano, 184 Cal.App.2d 199 , 210 [ 7 Cal.Rptr. 307 ].) Our sole concern is the unlawful arrest contention and its relationship to admissibility of an otherwise voluntary confession.

The argument stems from the exclusionary rule which bars physical evidence and oral testimony which is the “direct result” or the “immediate product” of an unconstitutional search or seizure. (People v. Mickelson, 59 Cal.2d 448 , 449-450 [ 30 Cal.Rptr. 18 , 380 P.2d 658 ]; People v. Allen, 214 Cal.App.2d 136 [ 29 Cal.Rptr. 445 ]; People v. Macias, 180 Cal.App.2d 193 , 198 [ 4 Cal.Rptr. 256 ].) Defendant was arrested without a warrant; there was no evidence of reasonable cause for the arrest; ergo, the arrest was an illegal seizure of defendant’s person, in violation of Fourth Amendment principles applicable to state prosecutions under the Fourteenth Amendment to the federal Constitution, and in violation of article I, section 19, of the California Constitution and Penal Code section 836; the confession, even if not coerced in fact, was produced by defendant’s illegal arrest, hence inadmissible—so runs the thesis which opens the confession to constitutional attack. The argument includes the notion that a confession must pass not only the test of coercion, but also the barrier against evidence obtained as the result of unconstitutional search or seizure; that a confession is no different than other evidence which falls into the prosecution’s lap as the fruit of unconstitutional police methods. (See People v. Rodriguez, 11 N.Y.2d 279 , 229 N.Y.S.2d 353 [ 183 N.E.2d 651 ].)

Initially we recognize that defendant was not present at the police interrogation by invitation. Nor was this a case of temporary detention and questioning on the street.- (Cf. People v. Mickelson, supra, 59 Cal.2d at pp. 467-468; see People v. Ellsworth, 190 Cal.App.2d 844 [ 12 Cal.Rptr. 433 ]; People v. Amos, 190 Cal.App.2d 384 [ 11 Cal.Rptr. 834 ]; People v. Bruno, 211 Cal.App.2d Supp. 855 [ 27 Cal.Rptr. 458 ].) Two detectives had accosted the defendant at night and said: “Mr. Freeland, come with us.” His ear was

In 1943 the federal Supreme Court established the “McNabb rule” which, in federal prosecutions, bars confessions produced by police interrogation during the defendant’s illegal detention. (McNabb v. United States, 318 U.S. 332 [ 63 S.Ct. 608 , 87 L.Ed. 819 ]; see also Upshaw v. United States, 335 U.S. 410 [ 69 S.Ct. 170 , 93 L.Ed. 100 ]; Mallory v. United States, 354 U.S. 449 [ 77 S.Ct. 1356 , 1 L.Ed.2d 1479 ]; Hogan and Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Georgetown L.J. 1.) In 1961 Mapp v. Ohio, 367 U.S. 643 [ 81 S.Ct. 1684 , 6 L.Ed.2d 1081 ], established the doctrine that the federal rule excluding evidence obtained as a result of unconstitutional searches and seizures was applicable to state criminal prosecutions as an expression of due process of law guaranteed by the Fourteenth Amendment. In another decision, filed on the same day as Mapp, several members of the court declared:

“The McNabb case was an innovation which derived from our concern and responsibility for fair modes of criminal •proceeding in the federal courts. The States, in the large, have not adopted a similar exclusionary principle. And although we adhere unreservedly to McNabb for federal criminal cases, we have not extended its rule to state prosecutions as a requirement of the Fourteenth Amendment. . . . ” (Culombe v. Connecticut, 367 U.S. 568 , 600-601 [ 81 S.Ct.

1060 , 6 L.Ed.2d 1037 ]; see also Gallegos v. Nebraska, 342 U.S. 55 , 63, 64 [ 72 S.Ct. 141 , 96 L.Ed. 86 ].)

In Rogers v. Superior Court, 46 Cal.2d 3 [ 291 P.2d 929 ], the California Supreme Court accepted the last stated position, holding that the McNabb rule is not a due process requirement, does not govern admissibility of confessions in state criminal prosecutions and that an otherwise voluntary confession is admissible, although made during a period of illegal detention. Within recent weeks, a dictum in Ker v. California, 374 U.S. 23 [ 83 S.Ct. 1623 , 10 L.Ed.2d 726 ], has fortified the idea that the Mapp case does not inject the McNabb rule into state criminal prosecutions. Ker v. California has to all appearances insulated the Rogers rule from further scrutiny at the hands of the federal courts. As we view the Rogers rule, absence of coercion and inducement continues to be the sole criterion of confession admissibility in California criminal prosecutions; illegal detention is only one of the factors which determine whether the statement was voluntary. (Rogers v. Superior Court, supra, 46 Cal.2d at p. 10; People v. Garner, 57 Cal.2d 135 , 141-142 [ 18 Cal.Rptr. 40 , 367 P.2d 680 ] ; People v. Gauthier, 205 Cal.App.2d 419 , 430 [ 22 Cal.Rptr. 888 ].)

The Rogers rule controls the present case, but not because both involve confessions made during periods of illegal detention. Of course there are different sorts of illegal detention. In Rogers, as in McNabb and allied cases, the illegal detention consisted of delay in taking the prisoner before a magistrate, in violation of either state law or federal procedural rules. (See also Cleary v. Bolger, 371 U.S. 392 [ 83 S.Ct. 18 , 9 L.Ed.2d 390 ].) Here the illegal detention has a different coloration. Here the illegality consists of an unconstitutional seizure of defendant's person.

As noted in Rogers, 46 Cal.2d at p. 10: “There is a basic distinction between evidence seized in violation of the search and seizure provisions of the Constitution of the United States and the Constitution of California and the laws enacted thereunder, and voluntary statements made during a period of illegal detention.” The distinction does not turn on the source of illegality, whether constitutional or statutory; nor on the kind of evidence, physical or testimonial, confession or otherwise. The pivotal factor is the causal relationship between the illegality, on the one hand, and the questioned evidence on the other. This causal relationship has been the subject of diverse descriptive phrases such as “di

As to the particular kind of evidence at issue, a confession, the ultimate test of admissibility remains that of volition in fact. If the individual’s “will was overborne,” if his confessiqn was not “the product of a rational intellect and his free will,” it is inadmissible because coerced. (Townsend v. Sain, 372 U.S. 293 [ 83 S.Ct. 475 , 9 L.Ed.2d 770 , 782]; see People v. Garner, supra, 57 Cal.2d at pp. 162-163, concurring opinion.) If the individual confesses his offense because he wills to confess, his statement is the product of his own choice, not that of the illegal restraint. ,To borrow a phrase from another area of the law, the choice of the accused becomes an independent, intervening cause of his confession, and his illegal restraint becomes only a collateral circumstance, not a cause.

Thus the Washington Supreme Court recently sustained admission in evidence of a confession made after arrest without probable cause where, under the facts, the arrest and accompanying circumstances were not coercive elements in producing the confession. (State v. Keating, 61 Wn.2d 452 [ 378 P.2d 703 ].)

We have been impelled to examine this matter closely. Illegally secured prosecution evidence is excluded because government must not be allowed to profit by its own wrong and because the courts refuse to condone lawless activities of law enforcement officers. (People v. Cahan, 44 Cal.2d 434 , 445 [ 282 P.2d 905 , 50 A.L.R.2d 513 ]; People v. Martin, 45 Cal.2d 755 , 761 [ 290 P.2d 855 ].) In eases sustaining admissibility in the face of illegal conduct, the court was able to satisfy itself that the conduct was entirely unrelated and collateral to procurement of the questioned evidence. (People v. Maddox, 46 Cal.2d 301 , 305 [ 294 P.2d 6 ]; Rogers v. Superior Court, supra, 46 Cal.2d at p. 11.) In all realism there is a more palpable connection here. We give iittie consequence to the second confession the morning after.

Judgment affirmed.

Pierce, P. J., and Sehottky, J., concurred.