Illegal Police Ruse California

In People v. Reeves (1964) 61 Cal. 2d 268 38 Cal. Rptr. 1, 391 P.2d 393, officers had a hotel manager falsely tell a guest there was a registered letter for him at the front desk. This induced the guest to leave his room, allowing the officers to observe marijuana inside when he opened the door. The Supreme Court ruled that the subterfuge rendered the ensuing search and seizure invalid. (Id. at p. 273; see also People v. Mesaris (1970) 14 Cal. App. 3d 71 91 Cal. Rptr. 837; People v. Miller (1967) 248 Cal. App. 2d 731 56 Cal. Rptr. 865.) By contrast, in People v. Rand (1972) 23 Cal. App. 3d 579 100 Cal. Rptr. 473, police were tipped that narcotics activity was afoot at the defendant's home. Officers surrounded the residence and telephoned the defendant with a "warning" that " 'the police are coming; get rid of the stuff.' " (Id. at p. 582.) The defendant fled from the premises, only to be stopped by a police officer. Questioned about narcotics, the defendant discarded a container of drugs and was placed under arrest. Citing Reeves, the defense argued the evidence should be suppressed as the product of an illegal police ruse. The appellate court disagreed: "Were we to accept the defense argument . . . all under-cover activity would likewise be proscribed. Where the ruse does no more than to cause a defendant, activated by his own decision, to do an incriminating act--whether that act be a sale to an undercover agent or a jettisoning of incriminating material--no illegality exists." (Id. at p. 583; see also State v. Hendrix (Tenn. 1989) 782 S.W.2d 833, 836 reaching similar result on similar facts.) Seven years later a different appellate court, faced with "an almost identical fact situation," felt "compelled to follow Rand." (People v. Porras (1979) 99 Cal. App. 3d 874, 878 160 Cal. Rptr. 627.) But the court noted its ruling was not without certain "reservations" and "invited the California Supreme Court to consider the validity of such a ruse in light of the right of privacy and People v. Ramey (1976) 16 Cal. 3d 263 127 Cal. Rptr. 629, 545 P.2d 1333." (Id. at pp. 878-879.) Acknowledging the "right to privacy is the right to be left alone,"the court observed, "It might be argued that the defendant's right to be left alone in his home was violated when the police telephoned him." (Id. at p. 879.) The court continued, "Since the police did not have an arrest warrant (or a search warrant), the ruse could be viewed as a device to avoid the holding in Ramey (and the requirement for a search warrant)." (Id. at p. 880.) A divided panel of this court dealt with a different sort of ruse issue in People v. Avalos (1996) 47 Cal. App. 4th 1569 55 Cal. Rptr. 2d 450. In Avalos officers armed with information obtained from a confidential informant launched a narcotics investigation and followed the defendant to a commercial storage unit. He emerged carrying a box smaller than the one he brought into the facility. Officers stopped the defendant's truck and requested permission to search the vehicle for property stolen in a burglary and " 'other contraband.' " (Id. at p. 1575.) Avalos signed a consent-to-search form. Five pounds of methamphetamine were found in a box inside the truck. Avalos filed a motion to suppress, claiming the police ruse negated his consent to the search. By a two-to-one margin, this court disagreed: "While police deception as to the purpose of the search is relevant in assessing a suspect's consent, it cannot be analyzed in a vacuum without reference to the surrounding circumstances." (People v. Avalos, supra, 47 Cal. App. 4th at p. 1578.) Because the officers identified themselves and "merely made a partial misrepresentation concerning the object of the search," the majority concluded the defendant was not materially misled "as to the privacy rights he was surrendering. Nor can it be said the consent was involuntary." (Id. at p. 1579.)