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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Bennett WILLIAMS, Defendant and Appellant.

No. AO38596.

Decided: June 23, 1988

Jon McDougall, Albany, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Gerald A. Engler, Robert R. Granucci, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Defendant Bennett Williams (appellant) appeals from a judgment entered upon a conviction by jury of possession of heroin and cocaine in violation of Health and Safety Code section 11350.

The relevant facts which appear in the suppression hearing transcript reveal that the incident leading to appellant's conviction took place in West Oakland on September 3, 1986.   At approximately 11 p.m. that night police Officers Barney Rivera and Paul Berlin were on patrol duty in the Adams Point area west of MacArthur Boulevard.   They both wore uniforms and drove an unmarked car.   As the vehicle passed the parking lot of the Palms Motel, Officer Rivera saw a young Black male crouched down behind a yellow Toyota in the parking lot.   Since he suspected that auto burglary or some other illegal activity was in progress, he made a U-turn and proceeded to the parking lot.

As the officers reached the parking lot, the suspect darted out from behind the car and entered the alcove of the motel.   The officers got out of the car and pursued the suspect.   As Officer Rivera rounded the corner of the building, he almost bumped into appellant and a woman who was in the hallway of the motel.   Appellant was “standing there with a Ziploc bag that was clear and contained a white power.”   The bag was clearly visible to Rivera because appellant held it between his two fingers and because the officer was very close (within an arm's length) to appellant.   Apparently startled, appellant immediately threw the “Ziploc” bag into an open door of room 102 which was later determined to be registered to him.

Based upon his education and experience in narcotics enforcement, Officer Rivera formed the opinion that the bag contained narcotics.   As a consequence, appellant was arrested and Officer Rivera entered room 102 in order to recover the contraband.   The “Ziploc” bag was on the floor, about four feet from the door.   Once inside the room, the officer observed and seized additional narcotics (a number of toy balloons and small white rocks) all in plain sight.

Since the evidence seized proved to be controlled substances, appellant was charged with possession of heroin and cocaine.   In addition, the information alleged two prior convictions for sale and possession of controlled substances.   Appellant filed a motion to suppress evidence pursuant to Penal Code section 1538.5, which was denied by the trial court.   Thereafter a jury trial was held at the conclusion of which appellant was found guilty of both counts of the information.   Following a hearing, the trial court denied probation and sentenced appellant to state prison for the term of two years and eight months.

Appellant does not challenge the legality of his arrest.   His only contention on appeal is that the search of his motel room was unlawful and the evidence seized therein should have been suppressed because the police did not obtain a search warrant and the search was not justified by either exigent circumstances or as incident to a lawful arrest.  (Vale v. Louisiana (1970) 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409;  Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685;  People v. Larry A. (1984) 154 Cal.App.3d 929, 201 Cal.Rptr. 696.)   Appellant's contention must fail for the simple reason that the seizure of the contraband in dispute was authorized under the plain view doctrine which constitutes yet another exception to the warrant requirement.

 It is well settled that objects falling in plain view of an officer, who has a right to be in the position to have that view, are subject to seizure and may be introduced in evidence.  (People v. Mack (1980) 27 Cal.3d 145, 150, 165 Cal.Rptr. 113, 611 P.2d 454;  People v. Block (1971) 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961.)   Consistent therewith, it has been said that a search warrant is not necessary where the object in plain view constitutes contraband or the shape, design or manner in which a package or container is carried affords reasonable grounds for believing it contains contraband.  (People v. Nickles (1970) 9 Cal.App.3d 986, 993, 88 Cal.Rptr. 763.)   The doctrinal rationale of this rule is that plain sight observations are not searches.  (Skelton v. Superior Court (1969) 1 Cal.3d 144, 157, 81 Cal.Rptr. 613, 460 P.2d 485;  People v. Ferguson (1981) 126 Cal.App.3d Supp. 22, 27, fn. 1, 179 Cal.Rptr. 437.)

 In the case at bench there is substantial, credible evidence that the contraband carried by appellant was in plain view when Officer Rivera ran into appellant in the motel lobby.   As Rivera described at the suppression hearing, appellant held the “Ziploc” baggie in his fingers when the chance encounter occurred.   Observing the visible white powder in the bag Officer Rivera, an expert in packaging and sale of narcotics, properly concluded that the bag contained a controlled substance.   The probable cause for appellant's arrest was indeed predicated upon the plain view observation of the contraband.   Under these circumstances, the contraband in question clearly fell within the plain sight doctrine and was subject to seizure without a warrant.

 The fact that appellant attempted to discard the contraband sighted in plain view and that the contraband was retrieved by the police officer from the room only following appellant's arrest, does not render the plain sight doctrine inapplicable.   First of all, the record establishes that despite appellant's attempt to hide the plastic bag by throwing it into an open room, it remained visible to Officer Rivera upon its landing on the floor.1  Secondly, the case law holds that where, as here, the officer lawfully observes the contraband in plain sight and also the specific location where the suspect attempts to hide it, the contraband remains subject to warrantless seizure.   The case especially on point is People v. Wheeler (1974) 43 Cal.App.3d 898, 118 Cal.Rptr. 205.   In Wheeler, the police observed the defendant carrying stolen property and placing it in the trunk of his car.   Defendant was later detained and the stolen property was recovered from the trunk.   Defendant claimed, inter alia, that the evidence found in the trunk was obtained as a result of unreasonable search and seizure inasmuch as the police did not have a search warrant.   In rejecting this contention, the reviewing court stated as follows:  “Where there is probable cause to believe that an item observed in plain and open view is evidence of the crime, that evidence may be seized where no search is required.   When an officer sees an item which he has probable cause to believe is contraband deposited out of sight but at a specific location which he also observes, his act to effect seizure of the suspected contraband is not a search.  [Citation.]  The observed ‘hiding’ or ‘depositing’ of suspected contraband makes the place of deposit tantamount to a place which is in ‘plain and open view.’  [Citation.]  Like an Easter egg hunt, the game is over when the participants see where the eggs have been placed.”  (Id., at pp. 903–904, 118 Cal.Rptr. 205, original emphasis.)

Wheeler is in full harmony with the federal authorities.   In Coolidge v. New Hampshire (1971) 403 U.S. 443, 465–468, 91 S.Ct. 2022, 2037–2039, 29 L.Ed.2d 564, the Supreme Court held that warrantless seizure of property observed in plain view is proper where, as here, the officer makes the observation from a lawful vantage point, the item is discovered by chance and the property observed constitutes contraband or other incriminating evidence.   The same view has been recently reiterated and further evolved in Arizona v. Hicks (1987) 480 U.S. 321, ––––, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 and Texas v. Brown (1983) 460 U.S. 730, 737, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502.   In the latter case the Supreme Court explained that “requiring police to obtain a warrant once they have obtained a first-hand perception of contraband, stolen property, or incriminating evidence generally would be a ‘needless inconvenience’ [citation] that might involve danger to the police and public.”  (Id., at p. 739, 103 S.Ct. at p. 1541.)

We briefly note that Vale v. Louisiana, supra, 399 U.S. 30, 90 S.Ct. 1969 and People v. Larry A., supra, 154 Cal.App.3d 929, 201 Cal.Rptr. 696, the primary cases relied upon by appellant, are clearly distinguishable because in both of those cases the warrantless search of the dwellings was sought to be justified under different exceptions to the warrant requirement, i.e., search incident to an arrest and/or exigent circumstances, rather than the plain view observation of the contraband.   Thus, in Vale the defendant was arrested outside his home upon a warrant for his arrest for drug violations, not upon a direct sighting of any incriminating evidence.   Accordingly, the ensuing search of his house was sought to be justified not by the plain view doctrine, but rather by the theories that the search was incident to his lawful arrest and/or that exigent circumstances existed posing a potential threat that the evidence might be destroyed.   The Supreme Court rejected both theories by holding that in order to justify the search as incident to a lawful arrest, the area to be searched must be within the arrestee's reach (Chimel v. California, supra, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040) and that a potential destruction of incriminating evidence alone does not amount to exigent circumstance.  (Vale v. Louisiana, supra, 399 U.S. at pp. 31–33, 90 S.Ct. at pp. 1970–1971.)   Similarly in Larry A., the police arrested the defendant outside his home based upon probable cause provided by eyewitnesses rather than upon a plain view observation of the contraband by the police itself.   Moreover, the only issue raised and decided was whether the warrantless search of the defendant's apartment was justified by exigent circumstances.   In brief, since neither Vale nor Larry A. involve a warrantless seizure of contraband sighted in plain view—a separate and independent exception to the warrant requirement—they are not controlling in the present case.

Finally, we observe that while there is some indication that Officer Rivera proceeded to recover the contraband from the room for fear that it might be destroyed if immediate step was not taken, the record is clear that the plain sight doctrine as a basis for warrantless seizure of the contraband was raised at the suppression hearing; 2  and that the trial court was keenly aware of this aspect of the case.   As a consequence, the trial court's ruling denying the motion to suppress without stating specific reasons therefor was predicated upon accepting the prosecution argument regarding plain view seizure of the evidence.

The judgment is affirmed.


1.   Officer Rivera's testimony reads in relevant part as follows:  “The Court:  Wait.   You went to the room and what?  [¶] The Witness:  And recovered the drugs that were on the floor.  [¶] By Ms. Quist [deputy district attorney]:  [¶] Q. When you first approached the defendant was the room to the motel open or closed?  [¶] A. It was slightly open.  [¶] Q. When you went to recover the bag with the powder in it.   Was the door open or closed?  [¶] A. It was open.  [¶] Q. Had you seen where the plastic bag with the powder in it landed when the defendant threw it?  [¶] A. Yes.”   (Emphasis added.)

2.   The illustrative part of the record reads as follows:  “Ms. Quist [deputy district attorney]:  Basically, I think that Officer Rivera's training and experience would give him sufficient reason to believe that the coin baggie did in fact contain cocaine and I think the cases indicate that when a person tries to destroy the evidence, as when the defendant tried to throw it into a room, that that adds to his probable cause to believe that there is contraband contained in the item.  [¶] Once the items are thrown and in plain view, the officer would have a right to pick up and seize those items․  [¶] So I do believe that the evidence supports the seizure of that contraband.”  (Emphasis added.)

ANDERSON, Presiding Justice.

POCHÉ and CHANNELL, JJ., concur.