Evidence Decision Reverses 30-Year State Court Trend

Los Angeles police detectives, realizing it was garbage pick-up day in Eagle Rock, seized on the opportunity to find evidence against some drug suspects.

The garbage truck crew was told to separate the contents of the suspects’ garbage can from others picked up that day. The tactic worked. Police found marijuana seeds among the debris and, based on that, they entered the home, found more marijuana and made arrests.

The search was perfectly legal under U.S. Supreme Court interpretations of the U.S. Constitution. But when the case reached the California Supreme Court, the justices, citing the state Constitution, declared that the police had invaded the defendants’ right of privacy by rummaging through their garbage without a warrant. The search was deemed illegal, the evidence was excluded from court and the charges were dropped.

Sudden Halt

That 1971 case was one of the earliest in a trend that swept state courts across the nation during the 1970s and early 1980s. Judges increasingly cited their state constitutions as grounds for providing wider civil liberties than those afforded by the U.S. Constitution. It was especially true in the areas of privacy and search and seizure.

But for California, a judicial trailblazer in this new era of “states rights,” the movement came to a sudden halt this month, at least in the broad area of search and seizure.

The state Supreme Court, by a 4-3 margin, upheld a provision of Proposition 8, the 1982 anti-crime initiative, that commands that “all relevant evidence” be allowed into criminal trials. The provision substitutes less restrictive federal rules of evidence for the tougher rules previously demanded by the courts under the state Constitution.

The ruling reversed nearly a third of a century of state law. Thirty state high court rulings stand to be rolled back, along with scores of Court of Appeal rulings. Moreover, the decision raises the possibility that others may go the initiative route in an effort to push aside the California court’s tendency to rely on the state Constitution to broaden individual rights.

“To see that movement stopped in its tracks in the state that in large part gave birth to it, that’s sad,” said Loyola Law School professor Gerald Uelman.

Most Restrictive

Until the Feb. 1 decision--in the case of a Long Beach youth identified as Lance W., whose arrest on marijuana charges was upheld, despite an illegal search--California had perhaps the most restrictive doctrine of search and seizure in the nation, lawyers say.

But writing for the state Supreme Court majority, Justice Joseph Grodin observed that regardless of judicial history “the people have apparently decided” that the only limits on admission of evidence in criminal trials should be those “required by the Constitution of the United States.”

Many prosecutors--supported by some legal scholars--believe the California high court in recent years had gone too far, spawning the perception that courts free criminals “on technicalities” and inviting the political reaction of Proposition 8, the so-called “victims’ bill of rights” constitutional amendment.

“It is possible to push a good thing too far,” Prof. Phillip E. Johnson, of the University of California, Berkeley, Law School, said of the court’s willingness to use the state Constitution to exclude illegally obtained evidence. “After a while, it begins to look silly. The principle of excluding evidence should not be pursued to its absolute logical limit.”

Similar Reaction

A similar reaction may be brewing on death penalty law. Citing reversals of 29 capital cases since 1980, Los Angeles County Dist. Atty. Ira Reiner last week called for a state constitutional amendment to preclude state courts from using state law when deciding death penalty cases. Instead, federal law would be used.

“It is really the pendulum effect,” Reiner said in an interview, adding that there is a widely held perception that members of the court vote to reverse death cases because of their philosophical opposition to capital punishment.

“You pull it back too far, when you let it go it goes a long way in the opposite direction. They have brought upon themselves a public reaction, and very unfortunately.”

Professor Uelman has compiled a list of 29 California Supreme Court cases that could be reversed by the Feb. 1 ruling. All went beyond federal law. Among them are instances in which the state high court:

- Prevented full body- and strip-searches of people involved in minor violations, like illegal camping or drunk driving, and who were not going to be held overnight in jail. Police were limited to looking for weapons.

- Barred searches of cars after motorists were stopped for traffic violations, unless there was cause to suspect more serious wrongdoing.

- Prohibited warrantless searches of enclosed areas of cars that had been impounded after the motorists were in accidents and taken to hospitals.

- Prevented law enforcement agencies from obtaining unlisted phone numbers, or bank and credit records without warrants.

- Required private security guards to comply with the same rules regarding searches as government law enforcement officers.

The exclusionary rule on the state and federal levels was adopted to stop police from conducting unconstitutional searches by denying them use of evidence resulting from such abuse. It also ensured that courts, charged with upholding the law, would not become a party to government abuse of the law.

Federal rules excluding illegal evidence still stand, but they have been weakened in recent years by a more conservative U.S. Supreme Court. For example, the U.S. court recently allowed warrantless searches of public school students, and said that if a police officer makes a good-faith mistake when applying to a judge for a search warrant, the evidence obtained in the search does not have to be excluded from trial.

Deputy Atty. Gen. William Weisman, who argued the Lance W. case before the state high court, scoffed at any implication that the ruling will turn California into a police state.

“Nobody in Michigan (where federal rules prevail) would say they’re living in a lawless state,” he said.

“What is the price we pay for excluding evidence? In many cases, it is crucial evidence, the evidence that is key for a determination. Many cases cannot even be tried. That is a terrible price to pay,” Weisman added.

The state court’s reliance on the California Constitution has become more pointed as it charted a liberal course while the U.S. Supreme Court, under Chief Justice Warren Burger, moved to the right.

The legal doctrine has roots dating from the beginning of the republic. The 10th Amendment of the Bill of Rights gives to the states those rights not delegated to the federal government. And many state constitutions spell out broader rights than the U.S. Constitution.

For example, California has a specific constitutional amendment declaring that personal privacy is an inalienable right, an amendment that, like the victims’ bill of rights, was passed by initiative. The U.S. Constitution has no counterpart.

The state Constitution also has been invoked in non-criminal cases. Poor women in California are permitted to have state-funded abortions under a state Supreme Court ruling at variance with federal decisions. California allowed the circulation of petitions at shopping malls based on state constitutional rights to expression before most other states and before the U.S. Supreme Court approved it. Other states give broader press and religious freedom based on their own constitutions.

Mosk a Major Champion

The practice of citing the state Constitution in individual rights cases has no greater champion than California Justice Stanley Mosk. Mosk wrote 12 of the 29 search-and-seizure cases listed by Uelman--and half a dozen of the 29 cases were written before Mosk took his Supreme Court seat.

“Justice Mosk more than any other is witnessing the interment of his life work,” Uelman said, referring to the effect of the Lance W. ruling.

In a recent symposium, Mosk explained: “The federal Constitution was designed to guard states . . . against potential abuses of centralized government; state charters, however, were conceived as the first, and at one time, the only, line of protection of the individual against the excess of local officials.

“Thus, we embarked on no revolutionary course when we determined that state citizens are entitled to greater protection against unreasonable searches and seizures under our state Constitution. . . .

“We simply reaffirmed a basic principle of federalism--that the nation as a whole is composed of distinct geographical and political entities . . . independently responsible for safeguarding the rights of state citizens.”

Wrote Dissent

Mosk wrote the dissent to the Lance W. case, focusing in large part on what he saw as unclear wording in Proposition 8. Voters, he said, could not have known that they were doing away with state law in the search-and-seizure area. At least, they did not know the implications.

The justice would not talk in detail this week about the further impact of the ruling, except to say: “I think the people of California will be interested to know their Constitution, adopted in 1849, has now become useless.

“If that’s what they want, fine. But they ought to realize it.”