Can the exclusionary rule apply retroactively to a grand jury indictment based on evidence obtained from an illegal search?

The People argue that illegally seized evidence, subject to suppression under the exclusionary rule, is not evidence that is inadmissible at trial. They claim such evidence, because it is relevant and probative, is not incompetent and inadmissible, but merely excluded as a court-ordered sanction for violation of Fourth Amendment rights. The People appear to claim that an indictment may be based on illegally seized evidence. They are wrong. It has long been the law of California "that evidence obtained by such unconstitutional means [illegal arrests, searches, and seizures] is inadmissible at the trial [citations] and incompetent to support an accusatory pleading [citation]." (People v. Valenti (1957) 49 Cal.2d 199, 203.)

The People contend the exclusionary rule cannot be applied retroactively to redact evidence received by the grand jury. Since a defendant cannot move to suppress evidence prior to the grand jury proceeding (People v. Prewitt (1959) 52 Cal.2d 330, 335), the People's position would allow an indictment to stand although based on illegally obtained evidence. "If the illegally obtained evidence is the sole basis of an indictment or information, defendant is held without reasonable or probable cause; his motion to set aside the accusatory pleading should be granted by the court . . . ." (People v. Valenti, supra, 49 Cal.2d at p. 203.)

In People v. Govea (1965) 235 Cal.App.2d 285, three indictments were returned for violations of narcotics laws. Defendants moved to set aside the indictments on the basis that all of the evidence used to support probable cause was obtained by illegal searches. The trial court granted the motions. On appeal, the reviewing court reversed the dismissal of the first two indictments, finding the searches were legal. (Id. at pp. 299-302.) The court found, however, that the third search was illegal and all of the evidence obtained against defendants in the third indictment was the product of the illegal search. Since there was no competent evidence to support the indictment, it must be set aside under section 995. (Id. at p. 305.) The order to that effect was affirmed. (Ibid.) Thus, the court applied the exclusionary rule retroactively to grand jury proceedings to determine if there was probable cause to indict defendants.

In their reply brief, the People refine their argument to indicate that the exclusionary rule can be applied in a section 995 sufficiency review only where the transcript of the grand jury proceedings alone shows the evidence that is the sole basis of the indictment was obtained illegally. The People rely on a series of cases that held where the determination of the legality of the contested search cannot be made based on the transcript of the grand jury proceedings, legality should be presumed and the ultimate decision on admissibility of evidence will be resolved at trial. In People v. Prewitt, supra, 52 Cal.2d at pages 335-336, the court stated: "When the prosecution is by indictment, however, the defendant has no opportunity to object to the introduction of evidence before the grand jury, and accordingly, there can be no waiver of the right to challenge the legality of the evidence to support the indictment based on a failure to object to its introduction. Although he has no opportunity to develop facts that may show that essential evidence was illegally obtained, if the record is silent on this question, it must be presumed that the officers acted lawfully. [Citation.] In such a case, just as in the case when the evidence before the magistrate is conflicting on the question of legality or no objection is made to the evidence seized, 'the ultimate decision on admissibility can be made at the trial on the basis of all of the evidence bearing on the issue.' [Citation.]"