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People v. Mayfield1/2/1997
754, 778 [276 Cal. Rptr. 827, 802 P.2d 330].) Because Roy Mayfield was not a police agent, his conduct in speaking to defendant could not render defendant's responses involuntary under the due process clauses of the federal or the state Constitution.
Defendant argues, fourth, that it was improper to impeach Roy Mayfield with a statement that was obtained in violation of defendant's rights under Miranda v. Arizona, (supra) , 384 U.S. 436. Because we have rejected its premise--that the statement was obtained in violation of Miranda --this argument necessarily fails.
3. Tainted Fruit of Illegal Tape Recording
Defendant contends that the police conduct in electronically monitoring and tape recording his conversation with his father, Roy Mayfield, violated the Fourth Amendment to the federal Constitution; the right to privacy under article I, section 1, of the California Constitution; the federal wiretap statute (18 U.S.C.S. § 2511); and Penal Code section 2600. He further contends that the trial court should have excluded evidence of Roy Mayfield's subsequent statement to Detective Amicone apparently describing what defendant had told him about the shooting of Sergeant Wolfley because that statement was the "tainted fruit" of this illegal police conduct.
For purposes of considering this contention, we may assume without deciding that the police conduct at issue was illegal. Nevertheless, defendant's contention fails because Roy Mayfield's statement to Detective Amicone was not the product of this police conduct. The relevant principles are well established and have been summarized by this court as follows:
"If the challenged police conduct is shown to be violative of the Fourth Amendment, the exclusionary rule requires that all evidence obtained as a result of such conduct be suppressed. [Citations.] Such evidence includes not only what was seized in the course of the unlawful conduct itself--the so-called 'primary' evidence [citations]--but also what was subsequently obtained through the information gained by the police in the course of such conduct--the so-called 'derivative' or 'secondary' evidence [citations]. Thus, the 'fruit of the poisonous tree,' as well as the tree itself, must be excluded." ( People v. Williams (1988) 45 Cal. 3d 1268, 1299 [248 Cal. Rptr. 834, 756 P.2d 221].)
"As for secondary evidence, the defendant bears the burden of making a prima facie case that such evidence was 'tainted' by--i.e., causally linked to--the primary illegality." ( People v. Williams, (supra) , 45 Cal. 3d 1268, 1300.) To do this, the defendant "must show more than that the challenged evidence 'would not have come to light but for the illegal actions of the police'; rather, [the defendant] must establish that it ' "has been come at by exploitation of that illegality . . . ." ' " (Ibid., original italics.)
Here, defendant has not made a prima facie case that Roy Mayfield's statement to Detective Amicone was causally linked to the claimed illegal police conduct (that is, the monitoring and tape recording of defendant's conversation with Roy Mayfield). Defendant argues that the police permitted him to speak to Roy Mayfield only because they hoped to obtain evidence by secretly recording the conversation, and therefore the conversation would not have occurred, and Roy Mayfield would have had nothing to tell Amicone, but for the illegal taping. But the claimed illegality occurred not in permitting defendant to converse with Roy Mayfield, but in the secret monitoring and recording of that conversation. Defendant must show that but for this illegal conduct, Roy Mayfield's statement to Amicone would not have occurred. Defendant has not done so.
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