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People v. Seminoff (Cal. Ct. App. - Jan. 29, 2008)

By Shaun Martin

There are various parts of this opinion about which I might disagree. For example, it seems to me that the prosecutor was deliberately asking tangential questions to the witness purely in order to get her to invoke her Fifth Amendment rights (rather than risk prosecution) and hence get her testimony on the suppression motion stricken. Sure, the credibility of the witness was a central issue, but that does not open up every possible inquiry on the ground that it might provide fertile grounds for impeachment. And, unlike Justice Bedsworth, I thought that the queries posed by the prosecutor were darn tangential to the issue at hand, and that this was the case even though the queries admittedly related to the marijuana in the room.

Who cares if the witness "intended to sell" the marijuana, for example? The only reason the prosecutor asked that query, in my view, was because the prosecutor knew that she would whack herself if she answered it, and figured that -- even after some point -- the witness would invoke. Since that was the core purpose of the question, I think that the severe sanction of striking the entire testimony of the witness was pretty harsh. And the fact that the questions concerned some items relevant to the charge doesn't seem enough for me. The pot was wrapped in wet towels, for example. Does that mean you get to ask the witness: "Did you use these towels to abuse your child earlier in the evening? For a sex act? Did you use the marijuana as a suppository? To beat a man to death?"

At some point, the purpose of the questions seems purely to get the witness to invoke. And I had a keen sense that was the case here. Especially after the witness had already copped to possessing and transporting the marijuana.

Admittedly, my reaction to the case was somewhat colored by the fact that the police officer's testimony at the suppression hearing was less than unambiguously credible. To put it mildly. "I announced myself at the door. I waited 30 full seconds. Then I opened the door a crack and announced myself again. And waited another full 30 seconds. Only then did I enter. I smelled the overwhelming smell of marijuana, even though the pot was all wrapped up and none of the paramedics recalled any such smell. I saw some methamphetamine in plain view. The witness gave me permission to look in her briefcase. None of what the witness says is true." Well, yeah, I guess maybe that's what really happened. But I have a spidey-sense -- potentially inaccurate, I admit -- that this testimony sounds a bit too good to be true.

I do, however, agree with Part II of Justice Bedsworth's opinion, which concerns the validity of the entry into the hotel room after the four-year old son of the witness came down to the hotel lobby and accounced that he could not wake his mother. Justice Bedsworth concludes that this justified a warrantless search, and this seems right to me. Especially given the first sentence of the fourth paragraph of Part II, in which Justice Bedsworth states:

"If there is one thing four-year-old boys are usually good at, it is waking their parents."

As the parent of a four-year old boy, I couldn't agree more.

Full post as published by California Appellate Report on January 30, 2008 (boomark / email).