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People v. Swearingen9/5/1978
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION ONE
Crim. No. 32245
1978.CA.40384 ; 148 Cal. Rptr. 755; 84 Cal. App. 3d 570
September 5, 1978
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHRISTOPHER MICHAEL SWEARINGEN, DEFENDANT AND APPELLANT
Superior Court of Los Angeles County, No. A076240, William L. Ritzi and Charles H. Woodmansee, Judges.
James Bledsoe, Jr., for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Norman H. Sokolow and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by Thompson, J., with Lillie, Acting P. J., concurring. Separate dissenting opinion by Hanson, J.
Thompson
After his motion to suppress evidence pursuant to Penal Code section 1538.5 was denied, defendant, Christopher Michael Swearingen, pled guilty to possession of hashish for sale. In this appeal, he challenges the trial court order denying his motion to suppress. Swearingen contends that at the hearing on the motion, the trial court erroneously denied his claim that because the police and prosecution had failed to comply with the obligation to preserve material evidence imposed upon them by People v. Hitch (1974) 12 Cal. 3d 641 [117 Cal. Rptr. 9, 527 P.2d 361], testimony establishing probable cause to search was inadmissible.
We conclude: (1) physical evidence lost or destroyed by the police after Swearingen's arrest bears directly upon a conflict between testimony of the police and Swearingen on the crucial point going to probable cause to search; and (2) the prosecution failed to sustain its burden of demonstrating that the police agency had established, enforced, and attempted in good faith to adhere to systematic procedures designed to preserve the
evidence. Accordingly, we conclude that the trial court erred in considering the prosecution testimony describing the relevant detail of the missing physical evidence and reverse the judgment.
On the afternoon of March 23, 1977, Los Angeles Police Officers Boissier and Metz saw Swearingen driving in a van without a front license plate. They stopped the van in order to issue its driver a citation for lack of the plate and to determine if the van was stolen. Swearingen walked from the van toward the officers. He produced a registration form and turned his back toward the officers as he searched in his wallet before producing a driver's license.
Boissier walked to the passenger side of the van. There he saw lying on the floor of the van what he testified to be a transparent vial in which he could see marijuana. Based on his purported observation, Boissier entered the van where he discovered a substantial quantity of marijuana in a felt bag under the driver's seat, more of the substance in a pea coat, and still more marijuana in a closed box in the rear of the vehicle. The discovery of the marijuana led to Swearingen's arrest, his confession to possession of the marijuana after a Miranda warning, and Swearingen's consent to search his apartment. That subsequent search disclosed the hashish which Swearingen was convicted of possessing together with other contraband.
Swearingen's testimony refuted that of Bois
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