The Criminal Docket

A  PUBLICATION  OF  THE  CRIMINAL  JUSTICE  SECTION OF  THE  LOS  ANGELES  COUNTY  BAR  ASSOCIATION

November 2007      

Volume II, Number 4 

OneMinuetBrief.GIF

COPYRIGHT © 2007 LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE. ALL RIGHTS RESERVED. MAY BE REPRODUCED FOR NON-COMMERCIAL PROSECUTORIAL, LAW ENFORCEMENT AND EDUCATIONAL PURPOSES ONLY. drutledge@da.lacounty.gov

NUMBER: 2007-13 DATE: 11-26-07 BY: Devallis Rutledge TOPIC: Search & Seizure


ISSUE: Can evidence be suppressed on the basis of the violation of a state statute that does not itself require exclusion?

In 1982, voters approved Proposition 8, which included a "Truth-in-Evidence" amendment to the state constitution (Art. I, § 28(d)). Under this provision, state courts may exclude relevant evidence seized in violation of some provision of state law "only if exclusion is also mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment." In re Lance W. (1985) 37 Cal.3d 873, 896. Non-compliance with statutory restrictions does not per se justify exclusion (unless the statute expressly provides for exclusion and was passed by at least a two-thirds vote of the Legislature after June, 1982).
Examples:
• Michigan v. Hudson (2006) 126 S.Ct. 2159, 2168 (no exclusion of evidence for failure to comply with knock-notice when serving arrest or search warrants, in violation of PC §§ 844, 1531).
• People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 (DU I blood sample taken by an unapproved phlebotomist, in violation of VC § 23158(a)).
• People v. McKay (2002) 27 Cal.4th 601, 622-24 (evidence seized incident to a custodial arrest for a traffic infraction without release on citation, as mandated by VC § 40500).
• People v. Maldonado (1999) 72 Cal.App.4th 588, 596 (testimony of an unlawfully-compensated witness, in violation of PC § 132.5).
• People v. Hines (1997) 15 Cal.4th 997, 1043 (recorded jailhouse conversations, allegedly in violation of prior PC § 2601).
• People v. Head (1994) 30 Cal.App.4th 954, 960 (late return of an executed search warrant, in violation of PC § 1534(a)).
• People v. Ford (1992) 4 Cal.App.4th 32, 37 (DUI blood sample drawn by a technologist not authorized by B&P § 1242).
• People v. Lepeilbet (1992) 4 Cal.App.4th 1208, 1212 (premature service of an inspection warrant, in violation of Code of Civ. Proc. § 1822.50).
 People v. Pifer (1989) 216 Cal.App.3d 956, 963-62 (evidence from a body cavity search of an inmate, allegedly not in compliance with administrative DOC regulations.)
• People v. Ratekin (1989) 212 Cal.App.3d 1165, 1169 (conversations overheard in violation of wiretap statute, PC § 631, despite exclusionary language, because the statute was not reenacted by two-thirds vote after Proposition 8).
• People v. Huston (1989) 210 Cal.App.3d 192, 222 (bank disclosures to police in violation of the Right to Privacy Act).
• Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 1470 (service of search warrant after 10:00 p.m. without night service endorsement, required by PC § 1533).
• People v. Ryan (1981) 116 Cal.App.3d 168, 182 (DUI sample without implied consent advisement on choice of tests, as required by VC § 13353).

BOTTOM LINE: "In general, relevant evidence that is illegally obtained under California law is nonetheless admissible, so long as federal law does not bar its admission." People v. Hines, supra, 15 Cal.4th at 1043.

This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to insure currency after publication. Local policies and procedures regarding application should be observed.

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