People v. Wells

California Court of Appeal · D001317 · 1985-12-17 · Published · 175 Cal. App. 3d 876 · 221 Cal. Rptr. 273 · 1985 Cal. App. LEXIS 2884

The PEOPLE, Plaintiff and Respondent, v. DAVID MASON WELLS, Defendant and Appellant

Proceeding: appeal
Trial court: Superior Court of San Diego County
Trial judge: Gilbert Nares
Outcome: other — D001317. Fourth Dist., Div. One.
Area: criminal
Panel: Gerald J. Lewis (author), Howard B. Wiener, Janet I. Kintner

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:44Z · confidence high

The trial court denied the defendant's motion to suppress evidence, finding no violation of the Posse Comitatus Act in the joint operation between Naval Investigative Service agents and Oceanside Police officers. The Court of Appeal affirmed the judgment, holding that even if a violation had occurred, federal law does not require the exclusion of evidence obtained in violation of the Posse Comitatus Act.

Ruling reviewed	Standard	The court	The model
Denial of motion to suppress evidence based on Posse Comitatus Act violation “we find no violation of the act in the facts of this case. Considering the N.I.S. initiation of the program and the participation of N.I.S. agents as undercover informants only, not as officers arresting civilians, it is clear neither the Posse Comitatus Act nor its dual purposes were violated here.”	de novo	not reached	agree with court The appellate court explicitly stated that a detailed analysis of whether the Act was violated was unnecessary because the remedy sought (suppression) was unavailable under federal law. The court affirmed the trial court's result on alternative grounds.
Application of the exclusionary rule to Posse Comitatus Act violations “Federal law does not require exclusion of evidence obtained as a result of a violation of the Posse Comitatus Act. (See United States v. Walden, supra, 490 F.2d 372, 377; see also People v. Blend, supra, 121 Cal.App.3d 215, 223, 228, fn. 6, and cases cited.)”	de novo	correct	agree with court The court correctly identified that the Posse Comitatus Act is a federal criminal statute prohibiting the use of the military to execute laws, but it does not create a private right of action or a remedy of exclusion of evidence in state criminal proceedings. The exclusionary rule is a judicially created remedy for Fourth Amendment violations, not for statutory violations of the Posse Comitatus Act.

Authorities

relied: United States v. Walden (1974) 490 F.2d 372 — The Posse Comitatus Act applies to all branches of the federal military, including the Navy, and federal law does not require exclusion of evidence obtained in violation of the Act.
relied: People v. Blend (1981) 121 Cal.App.3d 215 — Few cases have found violations of the Posse Comitatus Act, and no case has been found in which a court actually excluded evidence on the violation ground.
relied: Chandler v. United States (1948) 171 F.2d 921 — The Posse Comitatus Act was intended to stop state use of the federal militia, particularly in policing state elections.
relied: United States v. Casper (1976) 541 F.2d 1275 — The Posse Comitatus Act was intended to prevent the subjugation of citizens to the exercise of military power of a regulatory, proscriptive or compulsory nature.

The appellate opinion: sound — The opinion is sound because it correctly applies the legal principle that the Posse Comitatus Act does not provide a basis for the exclusionary rule in state criminal proceedings. It relies on established federal precedent (Walden) and California precedent (Blend) to support this conclusion.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

The trial court denied David Wells's Penal Code section 1538.5 motion to suppress evidence of a cocaine sale to an undercover Naval Investigative Service agent working in a joint operation with the Oceanside Police Department, after which Wells pled guilty to selling cocaine (Health & Saf. Code, § 11352) and was granted probation. The Court of Appeal affirmed, holding that the use of N.I.S. agents as undercover informants under police supervision did not violate the Posse Comitatus Act (18 U.S.C. § 1385) and that, in any event, a violation of the Act would not require exclusion of evidence.

Ruling reviewed	Standard	The court	The model
Denial of the section 1538.5 suppression motion insofar as it rested on the finding that the joint N.I.S./O.P.D. undercover operation did not violate the Posse Comitatus Act or article I, section 8 of the United States Constitution. “Considering the N.I.S. initiation of the program and the participation of N.I.S. agents as undercover informants only, not as officers arresting civilians, it is clear neither the Posse Comitatus Act nor its dual purposes were violated here.”	unclear	correct	unsure The court applies the McArthur/Casper test (military power of a regulatory, proscriptive or compulsory nature) and the Act's historical purposes (Chandler), and the undisputed facts show N.I.S. agents only solicited purchases while O.P.D. officers made all detentions and arrests, which fits within those authorities. However, the court expressly declines detailed analysis, does not state the standard of review, and does not grapple with the fact that the program was N.I.S.-initiated, regular, and systematic over ten months, which is the feature Wells stressed; the result is defensible but the reasoning is conclusory.
Denial of the suppression motion on the alternative ground that even a violation of the Posse Comitatus Act would not warrant application of the exclusionary rule. “Federal law does not require exclusion of evidence obtained as a result of a violation of the Posse Comitatus Act.”	de novo	correct	agree with court This is a pure question of law and the court's answer is supported by Walden and Blend, which found no case excluding evidence for a Posse Comitatus violation, and by the Act's status as a criminal statute with its own penalty rather than a constitutional guarantee. The conclusion is also compelled by California Constitution article I, section 28(d) (Proposition 8), effective June 1982 and applicable to this June 1983 offense, as construed in In re Lance W. (1985) 37 Cal.3d 873, which bars exclusion of evidence except as required by the federal Constitution; the court reached the right result without citing that controlling authority.

Authorities

relied: United States v. Walden (1974) 490 F.2d 372 — Cited for the propositions that the Posse Comitatus restriction reaches the Navy and that violation of the Act does not require exclusion of evidence; Walden actually held the Act by its terms covers only the Army and Air Force but that Navy regulations adopt the same restriction, and declined to apply an exclusionary rule to the violation of those regulations. The court's statement that the Act itself 'applies to all branches' overstates Walden, though the overstatement favors appellant and does not affect the result.
relied: People v. Blend (1981) 121 Cal.App.3d 215 — Surveys Posse Comitatus Act case law, notes that no court has excluded evidence on the ground of a violation, and that courts disagree on the degree of military involvement that constitutes a violation.
relied: Chandler v. United States (1948) 171 F.2d 921 — Describes the historical purpose of the Posse Comitatus Act to stop use of federal troops to execute state laws, particularly policing state elections.
relied: United States v. Casper (1976) 541 F.2d 1275 — Affirms the district court standard that the Act is violated only when military involvement subjects citizens to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.
relied: United States v. McArthur (1975) 419 F.Supp. 186 — Announces the regulatory/proscriptive/compulsory standard for determining whether military assistance to civilian law enforcement violates the Posse Comitatus Act.
relied: People v. Burden (1981) 411 Mich. 56 — Recounts the Reconstruction-era history of the Posse Comitatus Act, cited for background.
missed: In re Lance W. (1985) 37 Cal.3d 873 — Under California Constitution article I, section 28(d) (Proposition 8), evidence obtained in violation of state or federal statute may be excluded only if exclusion is required by the United States Constitution; this binding authority directly supports the court's no-exclusion holding and should have been addressed given the June 1983 offense date.
missed: People v. Lawler (1973) 9 Cal.3d 156 — On review of a section 1538.5 ruling, the trial court's factual findings are upheld if supported by substantial evidence, while the court independently determines whether those facts establish a legal violation; the opinion does not articulate any standard of review.

The appellate opinion: sound with gaps — The result is clearly correct because, under Walden, Blend and (uncited) Proposition 8 as construed in In re Lance W., a statutory Posse Comitatus violation cannot support suppression, which independently disposes of the appeal. The opinion nevertheless has gaps: it declines detailed analysis of the violation question despite N.I.S. having initiated a systematic ten-month program, states no standard of review, omits the controlling California authority on exclusion, and slightly overstates Walden as holding the Act itself applies to the Navy.

How this analysis was made · dispute it

inconsistent with cited authority

Opinion — Lewis

Opinion

LEWIS, J.

—David Mason Wells appeals after the trial court denied his motion to suppress evidence (Pen. Code, § 1538.5), he pled guilty to selling cocaine (Health & Saf. Code, § 11352) and the trial court granted him *878 probation. Wells seeks reversal contending the Posse Comitatus Act 1 (18 U.S.C.A., § 1385), proscribing wilful use of the military to execute the laws, was violated and thus his suppression motion should have been granted.

In September 1982, with the goal of taking illegal drug dealers off the streets of the City of Oceanside and thus minimizing the flow of drugs into nearby Camp Pendleton, the Naval Investigative Service (N.I.S.) initiated what N.I.S. calls an Initiative Criminal Investigative Operation by soliciting the assistance of the Oceanside Police Department (O.P.D.). Bud Aldridge, special agent in charge of Camp Pendleton N.I.S., contacted O.P.D.’s Lieutenant Dunne, and together they worked out an operational plan they believed was feasible. O.P.D. never solicited the assistance .of N.I.S. with regard to the operation.

The operational plan called for the N.I.S. agents, all military policemen, to be used as confidential informants immediately under the supervision and surveillance of a particular O.P.D. officer. Solicitation for drugs was to be done by N.I.S. agents. Any detention or arrest of a suspect was to be handled by an O.P.D. officer. The N.I.S. agent always was accompanied within a matter of feet or yards by an O.P.D. officer. On most occasions, the N.I.S. agent was equipped with a concealed transmitter. O.P.D. furnished prerecorded money to N.I.S. agents to make drug purchases and, once a purchase was completed by an N.I.S. agent, the suspected drugs were turned over to an O.P.D. officer to be impounded and analyzed. O.P.D. paid nothing to N.I.S. for its assistance. Several operations were carried out according to the plan between September 1982 and July 1983.

On June 14, 1983, N.I.S. Agent Derrel Murkerson was working undercover in the Buccaneer Beach area of Oceanside. O.P.D. Officer William L. Ziegler was observing within hearing distance of Murkerson. Murkerson met Wells and asked him if “Nick” was in the area. On Wells’ inquiry, Murkerson explained he wanted to see if he could buy some cocaine from “Nick” as he had before. Wells said he could help out Murkerson, who told Wells he wanted a half gram of cocaine. Wells said no problem, and proceeded to consummate a sale of cocaine for $50, delivering to Murkerson a bindle of cocaine wrapped in two $5 bills representing change for the $60 Murkerson had given Wells. Murkerson delivered the bindle and money to O.P.D. Officer Ziegler. Analysis showed the bindle contained .4 gram of *879 cocaine. At Buccaneer Park on July 5, 1983, Ziegler arrested Wells along with two other cocaine sales suspects. 2

Wells contends the regular and systematic assistance by military policemen to civilian law enforcement, in the execution of civilian narcotics laws, is a violation of the Posse Comitatus Act, and article I, section 8 of the United States Constitution. This violation, he asserts, requires application of the exclusionary rule to his cocaine sale transaction with the result the evidence against him should be suppressed.

Article I, section 8, of the United States Constitution invests in Congress the power “[t]o provide for calling forth the militia to execute the laws of the Union.” In response to apparent abuses in the use of the military during the reconstruction era, 3 in 1878 Congress adopted the Posse Comitatus Act which, as since amended, reads: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.” (18 U.S.C.A., § 1385.)

Though referring only to the Army and Air Force branches of military service, the Posse Comitatus Act applies to all branches of the federal military, of course including the Navy. (United States v. Walden (4th Cir. 1974) 490 F.2d 372, 375, cert. den. 416 U.S. 983.)

*880 On the matter of application of the Posse Comitatus Act in the decade before the 1981 Blend decision, that court tells us: “Few cases have found violations; of these, one is a civil matter (Wrynn v. United States (E.D.N.Y. 1961) 200 F.Supp. 457). No case has been found in which the court actually excluded evidence on the violation ground. No authority has been found indicating that a prosecution was pursued under 18 United States Code section 1385 for a violation of the act.

“The cases from other jurisdictions, federal and state, interpreting the act do not agree on the type of involvement of military personnel in civilian law enforcement required to constitute a violation of the statute.” (People v. Blend, supra, 121 Cal.App.3d 215, 223; italics added.)

In light of the language, background and apparent purposes of the Posse Comitatus Act to stop state use of the federal militia, particularly in policing state elections (see Chandler v. United States (1st Cir. 1948) 171 F.2d 921, 936) and to prevent the subjugation of citizens to the exercise of military power of a regulatory, proscriptive or compulsory nature (see United States v. Casper (8th Cir. 1976) 541 F.2d 1275, 1278, affirming Dist. Ct. standard announced in United States v. McArthur (D.N.D. 1975) 419 F.Supp. 186, 194), we find no violation of the act in the facts of this case. Considering the N.I.S. initiation of the program and the participation of N.I.S. agents as undercover informants only, not as officers arresting civilians, it is clear neither the Posse Comitatus Act nor its dual purposes were violated here.

Detailed analysis leading to this conclusion is unnecessary because, even if we were to find a violation of the Posse Comitatus Act, suppression of the evidence would not be permissible under the current state of the law. Federal law does not require exclusion of evidence obtained as a result of a violation of the Posse Comitatus Act. (See United States v. Walden, supra, 490 F.2d 372, 377; see also People v. Blend, supra, 121 Cal.App.3d 215, 223, 228, fn. 6, and cases cited.) There is no policy reason to make the statutory violation an exclusionary rule.

Judgment affirmed.

Wiener, Acting P. J., and Kintner, J., * concurred.

Appellant’s petition for review by the Supreme Court was denied March 27, 1986. Bird, C. J., was of the opinion that the petition should be granted.

Posse comitatus is “[t]he power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases, as to aid him in keeping the peace, in pursuing and arresting felons, ...” (Black’s Law Diet. (5th ed. 1979) p. 1046.)

As a result of the joint operation by N.I.S. and O.P.D., O.P.D. Officer Ziegler also arrested Nick Raymond Galvan and Frank Pena at Buccaneer Park on July 5, 1983, for cocaine sales. Carlos Martinez Castillo similarly was arrested there a few days later. All were charged along with Wells in the same accusatory pleading alleging violations of Health and Safety Code section 11352.

historical background of the Posse Comitatus Act is contained in People v. Burden (1981) 411 Mich. 56 [303 N.W.2d 444, 446-447], which begins: ‘“With the end of armed hostility between the North and South came a period of political domination by Northerners of their fellow citizens in the South. Large numbers of Federal troops were extensively used in the South to enforce the law and to support the new carpetbag government. The reconstruction act of 1867 implemented Congressional belief that military rule was necessary in the southern states. It was the “outrageous meddling” of Federal troops in the 1876 presidential elections in the South which precipitated the proposal and passage of the act.’ [Citation.]” (303 N.W.2d at p. 446.)

People v. Blend (1981) 121 Cal.App.3d 215, quotes at greater length from Burden, and further informs us: “The origins of the act are dramatic and extend historically to the Boston Massacre in 1770, and the Boston Tea Party in 1773. The Judiciary Act of 1789 contained the first posse comitatus legislation in the United States. [Meeks, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act (1975) 70 Mil.L.Rev. 83.] The Posse Comitatus Act followed abuses in the use of federal troops to enforce the laws in the southern states after the Civil War; ‘[t]he policy that military involvement in civilian law enforcement should be carefully restricted has deep roots in American history,’ and arguably has constitutional underpinnings. [Fn. omitted.] (United States v. Walden, supra, 490 F.2d 372, 375-376; . . .)” (121 Cal.App.3d at p. 223.)

Cites, in this corpus

People v. Blend Crim. 4707 · 1981-06-30