Diaz

In a trial by the court, after waiving a jury, defendant was found guilty of violation of section 11530 of the Health and Safety Code (possession of marijuana). Defendant's motion for a new trial was denied. Proceedings were adjourned, and the sheriff was ordered to file a petition pursuant to section 6451 of the Penal Code for the purpose of determining whether defendant was addicted to narcotics or was in danger of being so addicted. Pursuant to Penal Code section 1237, subdivision 2, defendant appeals from the order denying his motion for a new trial. [fn. 1]

Two issues are raised by defendant, (1) whether the evidence which convicted him was secured through an illegal search and seizure and, (2) whether statements made by him after his arrest were elicited from him by the police in violation of the rule concerning warning of constitutional rights.

On the issue of probable cause, Officer Madama testified that, on June 10, 1964, he received a phone call from a man who identified himself and stated that he was the manager of a certain gas station located on Huntington Drive in Los Angeles. The man told the officer that four male Mexicans had entered his filling…

In a trial by the court, after waiving a jury, defendant was found guilty of violation of section 11530 of the Health and Safety Code (possession of marijuana). Defendant’s motion for a new trial was denied. Proceedings were adjourned, and the sheriff was ordered to file a petition pursuant to section 6451 of the Penal Code for the purpose of determining whether defendant was addicted to narcotics or was in danger of being so addicted. Pursuant to Penal Code section 1237, subdivision 2, defendant appeals from the order denying his motion for a new trial. 1

Two issues are raised by defendant, (1) whether the evidence which convicted him was secured through an illegal search and seizure and, (2) whether statements made by him after his arrest were elicited from him by the police in violation of the rule concerning warning of constitutional rights.

On the issue of probable cause, Officer Madama testified that, on June 10, 1964, he received a phone call from a man who identified himself and stated that he was the manager of a certain gas station located on Huntington Drive in Los Angeles. The man told the officer that four male Mexicans had entered his filling station at…

I concur: The rules developed in Escobedo v. Illinois (1964) 378 U.S. 478 [ 84 S.Ct. 1758 , 12 L.Ed.2d 977 ], in People v. Dorado (1965) 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], and in the cases applying those decisions, are designed to effect that compromise between conflicting social ends which the application of constitutional principles always involves.

On the one side, as the Supreme Court has pointed out most recently in People v. Cotter (1965) 63 Cal.2d 386 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ], is the need to permit full police investigation and to encourage the frequent desire of a guilty man to confess. On the other side is the realization that the processes of police investigation and interrogation may result *642 in statements which fall short of complete truth and which may involve an innocent man in such a tangle of lies and equivocations as to make it impossible for him later to escape, with the result that an unjust conviction follows. It is a traditional function of counsel to see that this kind of error does not occur and that an arrestee is not tricked—intentionally or innocently—into making statements which he should not make.

The dilemma has been…

I would affirm the order. As I read the record it shows, without conflict, that defendant’s confession was subsequent to police interrogation but was not elicited by it. This is not a case like People v. Luker, 63 *643 Cal.2d 464, 473 [ 47 Cal.Rptr. 209 , 407 P.2d 9 ], and People v. North, 233 Cal.App.2d 884, 887 [ 44 Cal.Rptr. 123 ], where the evidence was ambiguous or incomplete. The testimony of the officer and of the defendant himself establish that he confessed because he wanted to clear his friends and not because the police had asked him to.

“Neither [the California Supreme Court] nor the United States Supreme Court, has ever taken the position that the desire of a guilty man to confess his crime should be stifled, impeded, discouraged, or hindered in any way. The contrary is true.” (People v. Cotter, 63 Cal.2d 386, 396 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ].)

The substance of defendant’s testimony was that he tried to save his friends by telling the police a lie, but it was quite reasonable for the trial court to believe, after seeing and hearing the witnesses, that defendant had saved his friends by telling the truth.

The fountainhead of the exclusionary rule is the…