PEOPLE v. BROOKS

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Court of Appeal, First District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph Glenroy BROOKS, Defendant and Appellant.

No. A039328.

Decided: April 14, 1989

John K. Van de Kamp, Atty. Gen., Elena L. Almanzo, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Paula Rudman, First District Appellate Project, San Francisco, for defendant and appellant.

Appellant Joseph Brooks was convicted, following a trial by jury, of possession for sale of a controlled substance (psilocybin) (Health & Saf.Code, § 11378), simple possession of a controlled substance (Health & Saf.Code, § 11377, subd. (a)), possession of a concealable firearm by an ex-felon (Pen.Code, § 12021, subd. (a)), and possession of a concealed firearm by a person previously convicted of a crime against property.  (Pen.Code, § 12025, subd. (b).)  He was sentenced to four years in state prison.   He contends that the court erred in denying his suppression motion, and that sentencing him for both possession of a concealable firearm by an ex-felon and possession of a concealed firearm constitutes multiple punishment in violation of Penal Code section 654.

There is no factual dispute.   On January 26, 1987, at 10:30 a.m., appellant, 23–year–old Joseph Brooks, and his companion, Michael Lawson, were hitchhiking on a Santa Rosa freeway on-ramp.   Their luggage stood on the ground in front of them, a gray suitcase at Brooks' feet and a yellow gym bag nearer to Lawson.   Sonoma County Deputy Sheriff Matt McCaffrey approached the two and noted they were standing slightly to the roadway side of the white “fog line” separating the shoulder from the traveled portion of the road, in violation of Vehicle Code section 21957.   McCaffrey left his patrol car and requested identification from the two.   Lawson produced identification, but Brooks said he did not have any.   Brooks turned around to show McCaffrey that his back pocket was empty and that he did not have a wallet.   McCaffrey asked, “What about your jacket?” and Brooks patted it, as if to say there was no wallet.   As Brooks patted his jacket, McCaffrey noticed a bulge.   He reached down and patted the pocket to see if it contained a weapon.   McCaffrey removed a .22 caliber revolver from Brooks' pocket.   McCaffrey called for a backup officer.   He placed Brooks against the patrol car, where he conducted a more thorough search of his person.   He found a plastic baggie containing seven grams of dried mushrooms, later determined to be psilocybin mushrooms.   McCaffrey handcuffed Brooks.   At this point, McCaffrey's backup officer, Deputy O'Bryan arrived.   McCaffrey placed Brooks in the back of his patrol car.

McCaffrey directed O'Bryan to search Lawson and to search the two men's luggage.   O'Bryan found an ammunition clip from a semi-automatic handgun on Lawson's person.   In the gym bag he found a .25 caliber semi-automatic handgun.   O'Bryan then opened Brooks' latched, but unlocked, suitcase and found baggies containing 335 grams of dried mushrooms, later determined to contain psilocybin.   Lawson was handcuffed after O'Bryan searched the suitcase and was placed with Brooks in the back of the patrol car.   Both were informed they were under arrest for possession of psilocybin mushrooms and loaded handguns.

I.

 We consider first appellant's contention that the trial court erred in denying his motion to suppress the baggies containing dried mushrooms found in his suitcase on the ground that the police may not lawfully search, incident to arrest, the suitcase of an individual who is handcuffed in the rear seat of a patrol car.

Standards governing review of search and seizure questions are well-established.   The trial court's findings of fact, express or implied, relating to the challenged search or seizure must be upheld if supported by substantial evidence.  (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585;  People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)   However, “it is equally well established that where the facts bearing upon the validity of the challenged search and seizure are undisputed—as here—the question becomes one of law for the reviewing court.  [Citations.]”  (People v. Flores (1979) 100 Cal.App.3d 221, 228, 160 Cal.Rptr. 839.)   Since the search here occurred in connection with an offense committed after the passage of Proposition 8 in 1982, its validity is governed by federal standards.  (In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744;  Cal. Const., art. I, § 28, added by initiative, Primary Elec. (June 8, 1982) commonly known as the “Victim's Bill of Rights.”)

Under the Fourth Amendment, police may lawfully search an individual's belongings only if they do so under the authority of a duly issued search warrant or under one of several judicially crafted exceptions to the warrant requirement.  (See generally, Mincey v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290;  Arkansas v. Sanders (1979) 442 U.S. 753, 757–760, 99 S.Ct. 2586, 2589–2591, 61 L.Ed.2d 235;  2 LaFave, Search and Seizure (2d ed. 1987) § 4.1(a), pp. 118–123.)   The exception on which the People rely to justify the search of appellant's suitcase here is the recognized exception for a search made as an incident to the lawful arrest of the person searched.   (See Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685;  United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427;  New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768.) 1

Under the incident-to-arrest exception, an arrestee's person may be searched both for weapons and for evidence.  (Chimel v. California, supra, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040;  United States v. Robinson, supra, 414 U.S. 218, 235, 94 S.Ct. 467, 477.)   Such a search may extend to the clothes the arrestee is wearing at the time of the arrest (id., at p. 223, 94 S.Ct., at 471 [search of pocket of coat arrestee was wearing] ) and to the contents of items and containers “immediately associated with the person,” such as a purse or wallet, in the possession or within the immediate control of the person arrested.  (United States v. Passaro (9th Cir.1980) 624 F.2d 938, cert. den. (1981) 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 842 [wallet];  United States v. Ziller (9th Cir.1980) 623 F.2d 562, cert. den. (1980) 449 U.S. 877, 101 S.Ct. 221, 66 L.Ed.2d 99 [same];  Hinkel v. Anchorage (Alaska 1980) 618 P.2d 1069, cert. den. (1981) 450 U.S. 1032, 101 S.Ct. 1744, 68 L.Ed.2d 228 [purse];  Dawson v. State (1978) 40 Md.App. 640, 395 A.2d 160 [same];  see generally, 2 LaFave, Search and Seizure, supra, § 5.5(a), pp. 528, 533, 534, fns. 24, 25.)   Prior to the Supreme Court's decision in United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 discussed infra, many cases also upheld the search of a container such as a suitcase or attache case carried by the defendant at the time of his arrest “as if the carried container was an extension of the person and thus subject to search under United States v. Robinson without any showing of justification based upon the facts of the individual case.”  (2 LaFave, Search and Seizure, supra, § 5.5(a), pp. 530–531, fns. omitted.)

Despite the relative ease of applying search-incident-to-arrest principles in many cases, questions persist as to both the spatial and temporal limits of the incident-to-arrest exception.   How far may the belongings be from the individual to be considered still within his or her control?   How soon after the individual is placed in custody must the search occur if it is to be considered an incident of the arrest?   Is the search still incident to the arrest if the arrestee has already been removed from the scene?   In struggling with these questions, the courts have sought answers which are responsive to the underlying privacy interest protected by the Fourth Amendment, to the rationale for the warrant exception, and to the need for rules capable of ready application under the stress of the field conditions in which law enforcement officers daily must apply them.

In this case, appellant does not question the lawfulness of his arrest, nor does he dispute the lawfulness of the search that first yielded the .22 caliber revolver and then the seven grams of dried mushrooms on his person.   He contends, however, that because the officers did not search his suitcase until after he had been handcuffed and placed securely in the back of the patrol car, the search of his luggage could not be regarded as incident to his arrest.

Appellant bases his contention on the seminal decision of the United States Supreme Court in Chimel v. California, supra, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.   In Chimel the court held that police officers could not conduct a warrantless search of the entire house of an arrestee on the theory that the search was incident to his arrest.   After noting that an arrestee's person may be searched for weapons or evidence,2 the court continued:  “And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.   A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.   There is ample justification, therefore, for a search of the arrestee's person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”  (Id., at p. 763, 89 S.Ct. at p. 2040.)

In United States v. Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, the court elaborated on the limits of searches made incident to an arrest.   There, the defendants were arrested while standing next to their automobile, into the trunk of which they had just loaded a locked footlocker which federal agents had probable cause to believe contained contraband.   The agents removed the footlocker from the open trunk and took it to their headquarters, where it was opened and searched without a warrant an hour and a half later.3  The court struck down the search as remote in time and place to the arrest, stating:  “The potential dangers lurking in all custodial arrests make warrantless searches of items within the ‘immediate control’ area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved.  [Citations.]  However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ [citation], or no exigency exists.   Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.”  (Id., at pp. 14–15, 97 S.Ct., at p. 2485, fn. omitted.) 4

Chimel and Chadwick thus require that a search incident to arrest be reasonably contemporaneous with the arrest and not remote in place from the scene of the arrest.   They confirm that the incident-to-arrest exception is grounded on the concern that the arrestee might gain access to an area or container to seize a weapon or destroy evidence.   Although not contesting that the search occurred virtually contemporaneously with his arrest, appellant here contends that the search of his suitcase was invalid because there was no danger of his gaining access to the suitcase once he was manacled and placed in the back of the patrol car and the suitcase had been reduced to police control.

The People, however, contend that the search in this case was authorized by principles set forth in the post-Chimel and post-Chadwick decision in New York v. Belton, supra, 453 U.S. 454, 101 S.Ct. 2860.   In Belton, a policeman lawfully made a custodial arrest of the four occupants of an automobile.   He separated the four men “so they would not be in physical touching area of each other,” searched them and then searched the passenger compartment of the car, including a zippered pocket in Belton's jacket which he found on the back seat of the car.   The pocket contained cocaine.   The Supreme Court upheld the search.   After quoting the Chimel rule that police may search the area from within which an arrestee might gain possession of a weapon or destructible evidence, the court stated:  “Although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases․  In short, ‘[a] single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’  [Citation.]”  (Belton, supra, 453 U.S. at p. 458, 101 S.Ct. at p. 2863.)

Decrying the lack of a “straightforward rule” on “the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants,” the Belton court proceeded to fashion what it perceived as a “workable rule” in this context, holding that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”  (Id., at pp. 459–460, 101 S.Ct., at p. 2864, fns. omitted.)   The fact that the jacket was inaccessible to Belton at the time of the search did not invalidate the search.5  The court, however, did not make a wholesale revision of the Chimel rule, stating in a footnote:  “Our holding today does no more than determine the meaning of Chimel 's principles in this particular and problematic context.   It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.”  (Belton, supra, 453 U.S. at p. 460, fn. 3, 101 S.Ct. at p. 2864, fn. 3.)

Relying heavily on that footnote, appellant contends that any principles derived from that decision are applicable solely in the context of the search of an automobile.   We do not agree.  Belton was not decided under any “automobile exception” to the warrant requirement.   The court expressly stated:  “Because of [our] disposition of the case, there is no need here to consider whether the search and seizure were permissible under the so-called ‘automobile exception.’  Chambers v. Maroney, 399 U.S. 42 [90 S.Ct. 1975] [parallel citations];  Carroll v. United States, 267 U.S. 132 [45 S.Ct. 280] [parallel citations].”  (New York v. Belton, supra 453 U.S. at p. 462, fn. 6, 101 S.Ct. at p. 2865, fn. 6.)   In People v. Gutierrez (1984) 163 Cal.App.3d 332, 209 Cal.Rptr. 376, another division of this court rejected the contention that Belton was limited to automobile searches:  “The Supreme Court based its decision squarely on the legality of searches incident to arrest, and not on the law relating to vehicular searches.”   (Id., at p. 335, 209 Cal.Rptr. 376.)

With respect to the Belton footnote, Professor LaFave has said:  “This does not mean, however, that Belton has adopted a search-incident[-to]-arrest rule for containers in vehicles which is not applicable with equal force to containers not in vehicles but possessed by an arrestee.   Such a distinction would be inconsistent with the Court's earlier declaration that the Fourth Amendment protection of a container is the same whether it is within or without a vehicle.[6 ]  And it would ignore the fact that the problem giving rise to Belton, the asserted need for a ‘bright line’ on what constitutes ‘immediate control’ under Chimel, is essentially the same as to containers in cars and other containers.”  (2 LaFave, Search and Seizure, supra, § 5.5(a), pp. 534–535, fn. omitted.)

Thus, Belton establishes that the incident-to-arrest exception, although grounded on the concern that the arrestee not gain access to an area or container from which he or she might grab a weapon or destroy evidence, nonetheless may apply in some circumstances despite the fact that the arrestee has been physically restrained from reaching the searched articles.   But if Belton is not limited to searches within the passenger compartment of a vehicle, the limits of the decision must be defined in some other manner.   To remain responsive to the concerns addressed in Belton—the need for an easily understandable rule which remains faithful to the underlying principles of Chimel—the decision must be understood to extend only the temporal dimensions of the incident-to-arrest exception, while retaining the spatial limitations which Chimel articulated.7

Belton rests on the factual premise that “articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m].’ ”  (New York v. Belton, supra, at p. 460, 101 S.Ct. at 2864, citing Chimel v. California, supra, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040.)   Nothing in the Supreme Court's opinion, or in any of the cases that subsequently have applied Belton, expands the incident-to-arrest exception to authorize the search of any article or area that was not on the person or in the clothing of the person arrested or within immediate “grabbing” or “lunging” distance of the arrestee at the initiation of the arrest.8  It remains as true today as when Chimel was decided that the areas and objects subject to search as incident to an individual's arrest cannot be expanded by moving the arrestee from one location to another;  whether made in the street or inside a dwelling, an arrest does not in itself justify a search beyond the limited area which the arrestee might reach at the moment of arrest.

However, if a container is so close that the person arrested might have reached it at that moment, so that its immediate search would be authorized, a search of the article does not become unlawful because the police first separate the arrestee from reach of the article,9 or handcuff or otherwise restrain the arrestee, so long as the search is made immediately thereafter, while the arrestee is still nearby at the scene of the arrest and before the arresting officers have turned their attention to tasks unrelated to securing the safety of persons and property involved in the arrest.   It was precisely such a short delay, prompted by the precaution of removing the four occupants from the vehicle, that the Supreme Court sanctioned in Belton.   Absent this slight expansion of the temporal dimension of the incident-to-arrest exception, police officers making an arrest might be tempted to delay such precautionary measures lest their authority to conduct the search be lost.   There are many reasons for rejecting a standard that would create such a disincentive to prudent police behavior.   Those reasons are equally applicable when, as in the present case, the individual is taken into custody outside of a vehicle.

The decision in United States v. Fleming (7th Cir.1982) 677 F.2d 602, provides strong support for reconciling the dictates of Chimel, Chadwick and Belton in this manner.   In Fleming, the Seventh Circuit discussed language in Belton stating that “ ‘[t]he scope of [a] search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissible․’ ”  (Id., at p. 607;  see also Belton, supra, 453 U.S. at p. 457, 101 S.Ct. at p. 2862, emphasis in Fleming.)   The Fleming court observed that “it does not make sense to prescribe a constitutional test that is entirely at odds with safe and sensible police procedures.   Thus handcuffing [one defendant] and having reinforcements enter [another defendant's] house should not be determinative, unless we intend to use the Fourth Amendment to impose on police a requirement that the search be absolutely contemporaneous with the arrest, no matter what the peril to themselves or to bystanders.   It is surely possible for a Chimel search to be undertaken too long after the arrest and too far from the arrestee's person.   That is the lesson of Chadwick.   But we do not consider that the presence of more officers than suspects invalidated the immediate search of [one defendant's] bag.   Nor do we think that a five-minute delay between seizing [the other defendant's] bag and opening it, occasioned by [an officer's] handcuffing [him] and moving with him to the street, defeated [the officer's] right to search under Chimel principles.”  (Id., at pp. 607–608.) 10

Although critical of the decision in Belton,11 Professor LaFave concluded that it will have “likely application” to the upholding of searches of containers which had been in the actual possession of the arrestee when the search is contemporaneous with the arrest, without the necessity of “[a] realistic chance that the arrestee could actually get inside the container, based on specified facts of the particular case.”  (2 LaFave, Search and Seizure, supra, § 5.5(a), p. 535.)   The prediction of Professor LaFave has been borne out in recent decisions applying Belton principles to situations not involving automobiles in which the defendant has been handcuffed before the search.12  (See, e.g., United States v. Fleming, supra, [search of paper bag taken from defendant valid although he was handcuffed at time of search];  Savoie v. State (Fla.1982) 422 So.2d 308 [search of attache case carried by defendant at time of arrest valid although defendant handcuffed and attache case in control of officer];  Sims v. State (Tex.App.1982) 643 S.W.2d 465 [search of trash bag in possession of defendant at time of arrest valid although defendant handcuffed].)

At least one California court has applied Belton to uphold the search of a closed container (a small cardboard box) found in the possession of an arrestee.  (People v. Gutierrez, supra, 163 Cal.App.3d 332, 209 Cal.Rptr. 376.)   In the pre-Proposition 8 case of Miller v. Superior Court (1981) 127 Cal.App.3d 494, 179 Cal.Rptr. 783, the court found the search of a paper bag carried by the defendant at the time of his arrest invalid under the California Constitution but opined that the search was valid under the federal standard of Belton.  (Id., at p. 503, 179 Cal.Rptr. 783.)   Similarly, in People v. Gokey (1983) 60 N.Y.2d 309, 469 N.Y.S.2d 618, 619, 457 N.E.2d 723, 724, the court found the search of a handcuffed defendant's duffel bag invalid under New York state standards but expressed the view that the search was valid under the Belton standard.

In the present case, the search of appellant's luggage occurred only minutes after his arrest, while he was still in the immediate vicinity.   After having placed appellant in the rear of the patrol car, the officers turned immediately to searching appellant's companion and the luggage in question.   It was hardly unreasonable for the officers to handcuff appellant after finding him in possession of a concealed weapon; 13 to the contrary, under the circumstances, this was entirely prudent police practice.   Under Belton, despite the absence of a vehicle, the fact that the officers first placed appellant in the patrol car should not invalidate the search of his suitcase which he had in his immediate control moments before at the time of his arrest.   Thus, the trial court properly applied the governing federal standard when it denied appellant's motion to suppress.

II.

 Appellant contends that imposition of concurrent sentences for both possession of a firearm by an ex-felon (Pen.Code, § 12021, subd. (a)) 14 and carrying a concealed firearm by a person previously convicted of a crime against property (Pen.Code, § 12025, subd.(b)) 15 constitutes double punishment in violation of Penal Code section 654.16  We agree.

We review the general principles guiding the application of section 654.   Section 654 provides in pertinent part:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one․”  “[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.  [Citation.]  Whether a course of conduct is indivisible depends upon the intent and objective of the actor.   [Citation.]  If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.   [Citation.]”  (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63;  e.g., People v. Superior Court (Himmelsbach) (1986) 186 Cal.App.3d 524, 537, 230 Cal.Rptr. 890;  In re Jesse F. (1982) 137 Cal.App.3d 164, 170–171, 186 Cal.Rptr. 841.)  “The initial inquiry in determining whether there is a section 654 violation is to ascertain the defendant's objective and intent.  [Citation.]  Whether the defendant held ‘multiple criminal objectives is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it.’  (Reliable Enterprises, Inc. v. Superior Court (1984) 158 Cal.App.3d 604, 625 [204 Cal.Rptr. 786] ․;  People v. Panky (1978) 82 Cal.App.3d 772, 782 [147 Cal.Rptr. 341]․)”  (People v. Galvan (1986) 187 Cal.App.3d 1205, 1218, 232 Cal.Rptr. 410;  see also, In re Chapman (1954) 43 Cal.2d 385, 390, 273 P.2d 817.)

The court below recognized the possible section 654 problem, but nevertheless proceeded to impose concurrent sentences, observing:  “All right, then.   I could also see how it could be concealed.   There would be a difference there.”

The record is bereft of any evidence that appellant entertained multiple objectives in possessing the firearm.   Neither can we conclude that there were separate acts involved.   The Attorney General argues that sections 12021 and 12025(b) proscribe different acts—owning or possessing a firearm versus carrying a concealed weapon without a license.   This argument does no more than recognize that different statutes usually proscribe different crimes.   Certainly, a single act may constitute separate offenses, as here possession of the concealed weapon by an ex-felon violated both sections.   To allow separate punishment whenever different code sections were violated by a single act would render section 654 meaningless.  “It is the singleness of the act and not of the offense that is determinative.”   (People v. Knowles (1950) 35 Cal.2d 175, 187.)

People v. Perry (1974) 42 Cal.App.3d 451, 116 Cal.Rptr. 853, is analagous.   There the defendant was convicted of possessing a sawed-off rifle (§ 12020) and of being in possession of a concealable firearm after he had previously been convicted of a felony. (§ 12021.)   The appellate court held section 654 prohibited punishment of the single possession under two different penal statutes.   The court reasoned:  “Here the single act made punishable by two different statutes was the illegal possession of a firearm capable of concealment upon the person.   The firearm happened to be a sawed-off rifle, possession of which is penalized regardless of who may be the possessor.   The possessor here happened to be one previously convicted of a felony, whose possession of a concealable firearm was punishable regardless of its being a sawed-off rifle.  [¶ ] His possession qua possession of the single weapon regarded as a sawed-off rifle did not change its quality and character when the same weapon was considered simply as a firearm capable of concealment on the person, merely because the possessor was an ex-felon.  Penal Code section 654 applies.”  (Id., at pp. 456–457, 116 Cal.Rptr. 853.)

Similarly, we cannot conclude that an ex-felon's possession of a concealable firearm was a separate act from his carrying of the same concealed firearm.   Absent some indication of multiple intents or objectives, imposition of concurrent sentences on both counts violates section 654.

III.

Execution of the sentence imposed on count four is stayed.   The stay shall become permanent upon completion of service of the term imposed on count three.   The judgment is affirmed in all other respects.

This court is bound to follow, not to rewrite, opinions of the United States Supreme Court.   The majority's expansive application of New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, which cannot be squared with the holding in that case, subverts Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, and thereby seriously weakens the warrant requirement, the very cornerstone of the Fourth Amendment.

This case presents much more than a dispute about technicalities.  “ ‘The presence of a search warrant serves a high function.   Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police․  We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.’ ”  (Chimel, supra, 395 U.S. at p. 761, 89 S.Ct. at p. 2039.)   No such showing can be made in this case;  at the time of the search there was no conceivable possibility that appellant, who was then sitting manacled in the back of a patrol car, could have reached his suitcase to retrieve a weapon or destroy evidence.

The chief idea for which Chimel stands is that a warrantless search incident to a lawful arrest is unreasonable within the meaning of the Fourth Amendment if it extends “beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.”  (Id., at p. 768, 89 S.Ct., at 2043.)  Chimel holds, in other words, that absent a search warrant the police may not search an area outside the immediate physical control of the arrestee.

The Belton exception to the warrant requirement is based on the conclusion that the Chimel rule was not workable in “the narrow class of cases” involving “a search incident to the lawful custodial arrest of the occupants of an automobile.”  (Belton, 453 U.S. at p. 459, 101 S.Ct. at p. 2863.)   Accepting “the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within [the immediate area of control that Chimel permits to be searched],” the Belton court held “that when a policemen has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”  (Id., at p. 460, 101 S.Ct., at p. 2864, italics added, fns. omitted.)

Clearly, Belton has no application to cases such as that before us, in which the arrested person was never at any material time the “occupant of an automobile” and the area searched was not “the passenger compartment of that automobile.”   As Professor LaFave repeatedly emphasizes, “Belton applies only in the case of ‘a lawful custodial arrest of the occupant’ of the vehicle.   Though some of the post-Belton cases fail to give sufficient attention to this limitation, it appears to mean that Chimel rather than Belton applies whenever the person arrested was not the driver of or a passenger in the vehicle just before the arrest.”  (3 LaFave, Search & Seizure (2d ed. 1987) § 7.1(b) at pp. 5–6, fns. omitted.) 1

Purporting to “retain[ ] the spatial limitations which Chimel articulated,” (maj. opn., p. 509) my colleagues conclude that the search of an article that is admittedly not within the immediate physical control of the arrestee at the time of the search is still lawful if it was within his immediate control “at the moment of arrest.”  (Id., at p. 510.)   This sleight-of-hand, which the majority euphemistically describes as a “slight expansion of the temporal dimension of the incident-to-arrest exception” (maj. opn., at p. 510), significantly refashions the immediate control rule in cases not within “the narrow class” referred to in Belton.   This result is achieved by artfully sidestepping the central issue in this case:  whether the search was genuinely necessary to prevent appellant from gaining access to his luggage to seize a weapon or destroy evidence.

In Preston v. United States (1964) 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 and again in United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, the Supreme Court pointed out that “warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest.’ ”  (Chadwick, supra, at p. 15, 97 S.Ct. at p. 2485, italics added.)   The temporal and spatial factors are relevant because they are the variables that ordinarily determine whether an arrestee exercises immediate physical control of the article searched;  that is, whether an exigency exists.   The essential temporal propinquity is established if the warrantless search follows so quickly upon the perception of danger that it may fairly be deemed a justifiable effort to avert that danger.   It is, of course, true that the exigent circumstances justifying a warrantless search usually occur at the time of arrest.   But if the search is not contemporaneous with the arrest, or if the exigency clearly disappeared before the search commenced, as when the police manacle the arrestee and reduce the searched article to their exclusive control, the fact that an exigency existed at the time of the arrest is irrelevant for purposes of applying the Chimel rule.   The majority's claim that it is making only a “slight expansion of the temporal dimension of the incident-to-arrest exception” is disingenuous.   Because the considerations of time and space with which we are dealing are so inextricably intertwined, it is difficult if not impossible to adjust one without affecting the other.   Thus, for example, by shifting the focus to the time of arrest and ignoring the situation at the time of the search the majority moves from one spatial relationship between appellant and his luggage to another that is completely different.   It is this temporal manipulation of the spatial relationships which produces the “exigency” that is relied upon to authorize the otherwise impermissible warrantless search.

The exigency the majority has manufactured is too obviously artificial.   Any danger that genuinely would have justified the warrantless search of appellant's luggage disappeared well before the search commenced, during the time he was moved away from the luggage, a back-up officer was called to the scene, and appellant was searched, handcuffed and placed in the rear of the patrol car.   At that point the officers at the scene could not have believed the search they made was necessary either for their own protection or to preserve evidence that might otherwise be lost.

The majority's approach to the search and seizure issue in this case results primarily from its acceptance of the view that the rationale supporting the Belton exception cannot justifiably be confined to lawful custodial arrests of the occupant of an automobile.   But confinement of the exception to that situation must be precisely what the Belton court had in mind when it stated that its holding “does no more than determine the meaning of Chimel 's principles in th[e] particular and problematic context [of the lawful custodial arrest of the occupant of an automobile]” and does not alter “the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.”  (Belton, supra, 453 U.S. at p. 460, fn. 3, 101 S.Ct. at p. 2864, fn. 3.)

The Belton court limited its holding to searches upon the lawful custodial arrest of the occupant of an automobile because it was only in connection with such automobile searches that lower courts and the police appeared to be in need of a straightforward rule easy to apply in the field.   (Belton, at pp. 458–459, 101 S.Ct., at p. 2863.)   No comparable need for such a bright line is claimed with respect to non-automobile searches of a container where, as in this case, exigent circumstances unquestionably ceased to exist before the search commenced.   Indeed, because the most authoritative federal court in California has refused to use Belton to undermine the immediate physical control rule established in Chimel (see United States v. Vasey (9th Cir.1987) 834 F.2d 782, 786), the majority opinion in this case is more likely to create confusion than allay it.2

Nor can the majority's extension of Belton otherwise be justified by the legitimate needs of law enforcement.   Once defendant's luggage had been brought within the exclusive control of the police there was no danger it could have been removed before a valid search warrant might have been obtained.   The seizure and detention of the luggage, the validity of which is conceded, was sufficient to insure that the evidence it contained would not be lost.3  The idea, advanced by the majority, that unless Belton is extended “police officers making an arrest might be tempted to delay ․ precautionary measures [i.e., separating an arrestee from his belongings and handcuffing him] lest their authority to conduct the search be lost” (maj. opn., at p. 510) is therefore completely unfounded.

The fact that Belton was not based on the law relating to vehicular searches does not provide a very solid analytic basis for extending it beyond the context to which it is limited.   The Belton court simply felt “no need” to consider whether the search and seizure in that case was permissible under the so-called “automobile exception” of Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.  (Belton, at p. 462, fn. 6, 101 S.Ct., at p. 2865, fn.)   The failure to rely on that exception therefore does not signify any lessening of Supreme Court sensitivity to the “significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts.  [Citations.]”  (United States v. Chadwick, supra, 433 U.S. 1, at p. 12, 97 S.Ct. 2476, at p. 2484.)   The chief reason for the special treatment of automobiles, the Supreme Court has explained, “lies in the diminished expectation of privacy which surrounds the automobile:  ‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects․  It travels public thoroughfares where both its occupants and its contents are in plain view.’ ”  (Ibid.)  However, “[t]he factors which diminish the privacy aspects of an automobile do not apply to [a] footlocker.   Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel;  nor is luggage subject to regular inspections and official scrutiny on a continuing basis.   Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of effects.   In sum, a person's expectations of privacy in personal luggage are substantially greater than in an automobile.”  (Id., at p. 13, 97 S.Ct. at p. 2484.)

The assertedly “slight” adjustment to the incident-to-arrest exception my colleagues have fashioned will undermine the warrant requirement in an array of situations in which the arrestee has a much higher expectation of privacy than the occupant of an automobile has in the passenger compartment of his vehicle.   If, as the majority maintains, Belton permits a non-automobile search of a container to be made without a warrant when the safety of the officer is not even arguably threatened and there is no risk that evidence might be lost—on the theory that such exigencies may have existed earlier—then Belton has swallowed the rule to which it has heretofore been thought an exception.   The majority's statement that “[i]t is surely possible for a Chimel search to be undertaken too long after the arrest” (maj. opn., at p. 510), is not reassuring.   Once it becomes unnecessary to rigorously inquire whether the arrestee actually exercised control over the article searched, further inroads will be easy to justify.   As Justice Stewart stated in Chimel:  “No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items.”   (Chimel, supra, 395 U.S. at p. 766, 89 S.Ct. at p. 2041, fn. omitted.)

My resistance to the majority's extension of the Belton exception does not blind me to the fact that the rationale of the Supreme Court's opinion in that case may reasonably be seen as prefiguring the reconsideration of Chimel.   My point is simply that such reconsideration has not occurred.  Chimel is still controlling in cases such as this and it is inappropriate for us to anticipate its demise.   Unless and until the United States or California Supreme Court extends the Belton rationale beyond “the relatively narrow compass of the passenger compartment of an automobile” we should not do so.   As an intermediate state appellate court our proper function is to adhere to the elementary principle that exceptions to the warrant requirement must be narrowly construed.  (Arkansas v. Sanders (1979) 442 U.S. 753, 759–760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235;  Mincey v. Arizona (1978) 437 U.S. 385, 393–394, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290;  Coolidge v. New Hampshire (1971) 403 U.S. 443, 454–455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564;  People v. Hamilton (1988) 46 Cal.3d 123, 137, 249 Cal.Rptr. 320, 756 P.2d 1348 cert. den. (1989) ––– U.S. ––––, 109 S.Ct. 1176, 103 L.Ed.2d 238;  People v. Dalton (1979) 24 Cal.3d 850, 855, 157 Cal.Rptr. 497, 598 P.2d 467, cert. den. (1980) 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781.)

Accordingly, I would reverse the judgment.

FOOTNOTES

FOOTNOTE.  

1.   Other recognized exceptions include the so-called emergency or exigent circumstances doctrine (e.g., Carroll v. United States (1925) 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 [search of vehicle reasonably believed to contain contraband upheld since it was “not practicable to secure a warrant because [a] vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought”];  People v. Hill (1974) 12 Cal.3d 731, 755, 117 Cal.Rptr. 393, 528 P.2d 1, disapproved on another point in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872 [search for additional wounded persons];  Tamborino v. Superior Court (1986) 41 Cal.3d 919, 226 Cal.Rptr. 868, 719 P.2d 242 [same] );  the automobile exception (Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 [search of vehicle on probable cause even though true exigent circumstances lacking];  consent (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854);  search of items which police see and believe are subject to seizure while executing a search warrant but which are not named in the warrant (Coolidge v. New Hampshire (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564);  and inventory searches (South Dakota v. Opperman (1976) 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 [search of automobile];  People v. Scigliano (1987) 196 Cal.App.3d 26, 241 Cal.Rptr. 546 [same];  Illinois v. Lafayette (1983) 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 [search of personal effects of arrestee at police station];  Colorado v. Bertine (1987) 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 [search of closed backpack found in van driven by defendant, who had already been taken into custody].)

2.   This holding was reaffirmed in United States v. Robinson, supra, 414 U.S. 218, 94 S.Ct. 467, which upheld the search of a crumpled up cigarette package found on the arrestee's person.

3.   The Supreme Court described this search as occurring “long after [the defendants] were securely in custody․”  (433 U.S. at p. 15, 97 S.Ct. at p. 2485.)

4.   In Arkansas v. Sanders, supra, 442 U.S. 753, 99 S.Ct. 2586, the court also upheld suppression of evidence found in the search of the defendant's suitcase.   The defendant there, however, was not under arrest at the time of the search, and the court noted that the suitcase was not within his “immediate control” when the vehicle in which he was riding was stopped.  (Id., at p. 763, fn. 11, 99 S.Ct., at p. 2593, fn. 11.)   The defendant's suitcase, which police had probable cause to believe contained marijuana, was taken from the trunk of a taxi in which he was a passenger and thereupon searched.   The court rejected the state's contention that the search was justified under the “automobile exception” to the warrant requirement.  (See Chambers v. Maroney, supra, 399 U.S. 42, 90 S.Ct. 1975;  Carroll v. United States, supra, 267 U.S. 132, 45 S.Ct. 280.)   The Sanders court noted that the state had not argued that the search was incident to arrest and it therefore had no occasion to “consider the constitutionality of searches of luggage incident to the arrest of its possessor.”  (Arkansas v. Sanders, supra, 442 U.S. 753, 763, fn. 11, 99 S.Ct. 2586, 2592, fn. 11.)

5.   With respect to the search of containers, the court held:  “It follows from [our] conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.  [Citations.]”  (Id. 453 U.S., at pp. 460–461, 101 S.Ct., at p. 2864, fn. omitted.)

6.   In Arkansas v. Sanders, supra, 442 U.S. 753, 99 S.Ct. 2586, the Supreme Court stated:  “[A]s a general rule there is no greater need for warrantless searches of luggage taken from automobiles than of luggage taken from other places.”  (Id., at pp. 763–764, 99 S.Ct., at p. 2593, fn. omitted.)

7.   The dissenters in Belton feared that the decision would apply to locked containers.  (Belton, supra, 453 U.S. 454, 469, 101 S.Ct. 2860, 2869 [dis. opn. of Brennan, J.], at 472, 101 S.Ct., at 2870 [dis. opn. of White, J.].)   Since the case before us does not involve a locked container, we express no opinion as to Belton 's application to such a container.

8.   In the pre-Belton decision in People v. Flores, supra, 100 Cal.App.3d 221, 233, 160 Cal.Rptr. 839, the Court of Appeal upheld the search incident to arrest of an arrestee's shoulder bag which was within “lunging” distance.

9.   As explained by Professor LaFave:  “A search of a container incident to arrest is not barred on the notion that the police by first seizing it have ‘exclusive control’ of it, for (as the Belton majority put it), ‘under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid;  by seizing an article even on the arrestee's person, an officer may be said to have reduced that article to his “exclusive control.” ’ ”  (2 LaFave, Search and Seizure, supra, § 5.5(a), at pp. 535–536, fn. omitted;  see Belton, supra, 453 U.S. 454, 461, fn. 5, 101 S.Ct. 2860, 2864, fn. 5.)

10.   The decision in United States v. Vasey (9th Cir.1987) 834 F.2d 782 also supports the same conclusion, and helps define the outer limits of the temporal extension of Chimel.   In Vasey, the defendant, initially stopped for a traffic offense, was removed from his vehicle and arrested on an outstanding warrant for a drug offense, handcuffed, and placed in the rear of a police patrol car.   Suspecting the presence of drugs, the officers questioned the defendant, impounded his vehicle and, some 30 to 45 minutes after the arrest, partially searched the vehicle without a warrant, purportedly to inventory its contents.   The Court of Appeals refused to countenance the partial inventory search as incident to the defendant's arrest, stating that the search fell “outside the Belton prophylactic rule because it was not conducted contemporaneously with the arrest.”  (834 F.2d at p. 787.)   Nonetheless, the court was “mindful of the fact that officers should not be forced to make difficult legal decisions during the often-volatile circumstances of an arrest” and acknowledged that “[i]f the Chimel/ Belton doctrine is read too strictly, officers will be wary of conducting searches incident to an arrest at the risk of endangering themselves and others.”  (Ibid.)  “It was upon this consideration,” the opinion noted, “that several courts have held that a search of an automobile may be conducted as a search incident to arrest even when the arrestee has been taken from a vehicle and handcuffed.  [Citations.]”  (Ibid.)   The court found such cases distinguishable “because the searches in these cases followed closely on the heels of the arrest.”  (Ibid.)  “Simply because the officers had the right to enter the vehicle during or immediately after the arrest,” the court stated, “a continuing right was not established to enter the vehicle without a warrant.”  (Ibid., emphasis added.)  Vasey thus recognizes both the permissibility of conducting a search incident to arrest immediately after the arrestee has been placed securely in custody, and the impermissibility of delaying the search longer than necessary to defuse the volatility of the arrest.

11.   See 2 LaFave, Search and Seizure, supra, section 6.1, page 562.

12.   Many decisions have upheld searches of automobile passenger compartments under Belton although the defendant was placed in a police car, handcuffed or both, explicitly or implicitly rejecting any suggestion that the fact that the defendants in Belton were not so restrained was crucial to the decision in that case.  (See 3 LaFave, Search and Seizure, supra, § 7.1(c), pp. 15–16, fn. 73, and cases there cited.)

13.   Indeed, when the suitcase was opened, appellant's companion was still unrestrained and standing nearby.

14.   “Any person who has been convicted of a felony ․ who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, and shall be punishable by imprisonment in the state prison, or in a county jail not exceeding one year or by a fine not exceeding one thousand dollars ($1,000), or by both.”  (Pen.Code, § 12021, subd. (a).)

15.   “[A]ny person, having been convicted of a crime against the person, property or a narcotics or dangerous drug violation, who carries concealed upon his or her person any pistol, revolver, or other firearm capable of being concealed upon the person without having a license to carry such firearm ․ is guilty of a public offense and is punishable by imprisonment in a state prison, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or by both such fine and imprisonment.”  (Pen.Code, § 12025, subd. (b).)

16.   All further statutory references are to the Penal Code.

1.   Among the post-Belton cases which, in dicta or otherwise, ignore this limitation are People v. Gutierrez (1984) 163 Cal.App.3d 332, 209 Cal.Rptr. 376, Miller v. Superior Court (1981) 127 Cal.App.3d 494, 179 Cal.Rptr. 783, and United States v. Fleming (7th Cir.1982) 677 F.2d 602, which are relied upon by the majority.

2.   The majority's elaborate attempt to establish that its expansive view of Belton is consistent with the much more measured view expressed by the Ninth Circuit in Vasey simply does not succeed.   For one thing, unlike the present case, Vasey involved an automobile search to which Belton unquestionably applied.   Moreover, the Vasey court emphasized that even in that context “[Belton ] was careful not to alter the fundamental grabbing area principle established in Chimel.”  (Vasey, supra, 834 F.2d at p. 786.)   Although the Vasey court relied on the fact that the search in that case took place 30 to 45 minutes after the arrest, the chief reason it declared the search invalid was because it was “evident that the search was not properly limited to the area within Vasey's immediate control.”  (Id., at p. 787.)   In reaching this conclusion the court emphasized that, like appellant in the present case, “Vasey was handcuffed and located in the rear of a police vehicle when the search occurred.”  (Ibid.)

3.   The People do not claim that, because appellant's luggage would have been subject to search in connection with the booking process, the search at the scene should be upheld under the accelerated booking search rule, which is a variation of the doctrine of inevitable discovery.   This argument is not advanced, presumably, because it was rejected by the California Supreme Court in People v. Laiwa (1983) 34 Cal.3d 711, 195 Cal.Rptr. 503, 669 P.2d 1278, a case which appears factually indistinguishable from the one before us.

POLLAK, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

SMITH, J., concurs.

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