The PEOPLE, Plaintiff and Respondent, v. Louis Denver HOLZWORTH, Defendant and Appellant.
Defendant's multifaceted attack upon the judgment includes the question of whether the Fourth Amendment permits the police to search an automobile for a gun in the absence of “probable cause” when the possessor of the vehicle is arrested, the vehicle is to be left on a public street at the place of arrest, the vehicle is incapable of being locked, and the police have information which reasonably leads them to suspect the vehicle contains a firearm. We affirm.
After a complaint was filed in the Sierra Justice Court charging defendant, Louis Denver Holzworth, with a violation of Penal Code section 12021 1 (ex-felon in possession of a concealable firearm), defendant moved under section 1538.5 to suppress certain evidence, i.e., a gun, on the ground it was the product of a warrantless search of a vehicle conducted without defendant's consent and without probable cause. The hearing on the motion was held concurrently with the preliminary hearing. The motion was denied and defendant was held to answer in superior court.
An information charging defendant with violation of section 12021 was subsequently filed. The one-day jury trial resulted in a verdict of guilty.
Notice of appeal was timely filed.
Sometime in May of 1987, defendant's sister died. During the course of the inquiry into her death, Madera County Deputy Sheriff Vern Lidfors spoke with defendant several times. On one such occasion, defendant, by telephone, told Lidfors that he had found his sister's gun. Defendant gave Lidfors a verbal description of the weapon and a serial number. Lidfors ran a registration check on it. When the check came back negative, Lidfors told defendant to keep the gun. Lidfors never actually saw the gun.
Lidfors from time to time saw defendant driving a black and green Jeep to the Bass Lake sheriff's substation and around the community of Oakhurst. In June 1987, from prior confidential reports of unnamed informants on other, unrelated cases, Lidfors obtained information that defendant normally carried a gun either on his person or in his vehicle. Lidfors never actually saw defendant in possession of a gun.
On the morning of November 30, 1987, Lidfors received a call from Deputy Phil Ellis, who told him of a report by Rex Kelly Cook that defendant was threatening to kill Lillian Nester, defendant's girlfriend who was staying with Cook at the time, when she came to work at her cleaning business that morning. Lidfors and another deputy, Darren McMechan, drove to Nester's shop, where they found defendant waiting inside. The two officers conducted a pat-down search of defendant but did not locate a weapon. McMechan requested a warrants check from the dispatcher in Madera and was informed defendant had anoutstanding traffic warrant. Defendant was then arrested on the warrant.
The officers escorted defendant to the patrol car. As the three walked by a black and green Jeep which was parked in front of the cleaners, Lidfors asked defendant what he wanted done with the vehicle. Defendant said it would not lock and that it would be fine to leave it parked where it was. Lidfors asked if he could search the Jeep. Defendant responded “yes, if you have a search warrant.” Lidfors then reached into the Jeep, opened the console between the two front seats, and took out a loaded gun which fit the general description and caliber of the gun on which Lidfors had run a registration check in May. Lidfors entered the Jeep and seized the firearm because he “suspected” the gun might be there, based upon his early 1987 conversations with defendant and the June 1987 information derived from the informants. Lidfors thought that since no weapon was found on defendant's person, it might be in the vehicle Lidfors had seen defendant driving in the past.
The record does not describe the physical configuration or characteristics of the Jeep, other than its inability to be locked. From the absence in Lidfors' testimony of any indication he was required to open a door before he “reached into the Jeep,” it could be inferred the vehicle was not completely enclosed.
Defendant did not testify, but relied on the testimony of two witnesses—Lillian Nester and Terry Walter, a friend. The Jeep was owned by Nester. She had loaned it to Walter on November 28 or 29. Defendant did not own the Jeep on November 30 since he sold it to Nester at the beginning of November. The gun did not belong to defendant and instead was owned by Walter, to whom it had been given by defendant in July 1987. Walter had put the gun in the Jeep console after he borrowed the vehicle from Nester and forgot to take it out when he returned the Jeep to her. When Walter left the Jeep, there was no ammunition in it and the pistol was not loaded.
I. Competence of counsel
Defendant contends eight alleged failures on the part of his trial lawyer deprived him of competent representation.
The state and federal right of a criminal defendant to assistance of counsel includes the right to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215, 233 Cal.Rptr. 404, 729 P.2d 839.) Denial of effective counsel is grounds for reversal. (People v. Fosselman (1983) 33 Cal.3d 572, 581, 189 Cal.Rptr. 855, 659 P.2d 1144.)
“To establish constitutionally inadequate representation, the defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable. (People v. Ledesma (1987) 43 Cal.3d 171, 216–218 [233 Cal.Rptr. 404, 729 P.2d 839]; People v. Fosselman, supra, 33 Cal.3d at p. 584 [189 Cal.Rptr. 855, 659 P.2d 1144]; People v. Pope [ (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859]; see Strickland v. Washington (1984) 466 U.S. 668, 687–696 [104 S.Ct. 2052, 2064–2069, 80 L.Ed.2d 674].)” (People v. Babbitt (1988) 45 Cal.3d 660, 707, 248 Cal.Rptr. 69, 755 P.2d 253.) The burden of proving ineffective assistance of counsel is on the defendant. (People v. Bunyard (1988) 45 Cal.3d 1189, 1215, 249 Cal.Rptr. 71, 756 P.2d 795; People v. Fosselman, supra, 33 Cal.3d at p. 581, 189 Cal.Rptr. 855, 659 P.2d 1144.)
On review, “[w]here the record shows that the omission or error resulted from an informed tactical choice within the range of reasonable competence, ․ the conviction should be affirmed.” (People v. Bunyard, supra, 45 Cal.3d at p. 1215, 249 Cal.Rptr. 71, 756 P.2d 795; see also People v. Fosselman, supra, 33 Cal.3d at p. 582, 189 Cal.Rptr. 855, 659 P.2d 1144.) “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citations.]” (People v. Bunyard, supra, 45 Cal.3d at p. 1215, 249 Cal.Rptr. 71, 756 P.2d 795; emphasis in original.) “In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny.” (People v. Ledesma, supra, 43 Cal.3d at p. 216, 233 Cal.Rptr. 404, 729 P.2d 839.) “Generally, failure to make objections is a matter of trial tactics as to which [a reviewing court] will not exercise judicial hindsight.” (People v. Lanphear (1980) 26 Cal.3d 814, 828, 163 Cal.Rptr. 601, 608 P.2d 689, judgment vacated and cause remanded (1980) 449 U.S. 810, 101 S.Ct. 57, 66 L.Ed.2d 13; reiterated (1980) 28 Cal.3d 463, 464, 171 Cal.Rptr. 505, 622 P.2d 950.)
A. Reliability of informants/Failure to renew the section 1538.5 motion to suppress the gun.
We treat these two grounds of alleged error together because they each raise the same basic issue—the propriety of Lidfors' removal of the gun from the Jeep. Defendant maintains the seizure of the weapon was a warrantless search conducted without probable cause in that the action was based upon (i) information obtained from unknown, undisclosed informants that defendant always carried a gun, either on his person or in his vehicle, and (ii) information communicated to Ellis by Cook that defendant had threatened to kill Nester. Defendant claims that had his trial counsel challenged Lidfors' entry into the Jeep by way of a section 1538.5 motion in superior court, the court would have been required to suppress evidence of the gun because no showing was made by the People that the undisclosed informants or Cook were reliable.2
Unreasonable searches and seizures of people, houses and personal property are prohibited by both the United States Constitution and the California Constitution. (4th Amend., U.S. Const.; Cal. Const., art. I, § 13.) Federal rules govern the determination of the admissibility of seized evidence. (In re Lance W. (1985) 37 Cal.3d 873, 886–887, 210 Cal.Rptr. 631, 694 P.2d 744, interpreting Proposition 8.)
Warrantless searches of automobiles have been upheld in situations where a similar intrusion into a home or office would not be. Two reasons for the difference have been articulated: (i) the inherent mobility of vehicles creates circumstances which make it impossible to secure a warrant, and (ii) the “expectation of privacy” with respect to an auto is significantly less than that relating to a home or office, because of the frequency of the contacts between the police and vehicles, the pervasive governmental regulation of autos, and the public nature of automobile travel. (Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney (1970) 399 U.S. 42, 48–52, 90 S.Ct. 1975, 1979–1982, 26 L.Ed.2d 419; 4 Witkin and Epstein, Cal. Criminal Law (2d ed. 1989) Exclusion of Illegally Obtained Evidence, § 2347, pp. 2757–2758.) In those instances where valid independent reasons for a vehicle inspection or search exist, such as the need to investigate hazardous autos or to inventory legitimately impounded vehicles, “probable cause,” as that term is understood in the jurisprudence of the Fourth Amendment, is not required. In other instances, where the search has to do with a crime or the fruits of a crime, as a general proposition the Carroll–Chambers principles do not eliminate the need for probable cause; they only excuse the need to resort to the procedure of applying to the magistrate for the issuance of a warrant. (3 LaFave, Search and Seizure (2d ed. 1986) § 7.2(c), p. 41.) The applicable standard in any case depends upon the particular facts and circumstances. (Cady v. Dombrowski (1972) 413 U.S. 433, 440, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706.)
In assessing the record before us, we first set aside what is not involved. There is no issue here about a search incident to an arrest. By the time the officers turned their attention to the Jeep, defendant had been arrested on the unrelated warrant and secured in custody. The officers by then had no reason to believe defendant was in a position to “gain immediate control of” any weapon which might be in the Jeep. (Michigan v. Long (1982) 463 U.S. 1032, 1049–1050, 103 S.Ct. 3469, 3480–3481, 77 L.Ed.2d 1201.) There is also no issue here involving a vehicle which is evidence of a crime (Cardwell v. Lewis (1974) 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325), subject to forfeiture or levy (G.M. Leasing Corp. v. United States (1977) 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530), abandoned (People v. Grubb (1965) 63 Cal.2d 614, 47 Cal.Rptr. 772, 408 P.2d 100), mechanically unsafe (United States v. Portillo (9th Cir.1980) 633 F.2d 1313), or illegally parked (South Dakota v. Opperman (1976) 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000). Instead, this case arises out of Lidfors' discharge of the “community caretaking function” of the police, a concept first authoritatively articulated by Cady v. Dombrowski, supra, 413 U.S. at page 441, 93 S.Ct. at page 2528.
In Cady, at approximately 11 p.m. the defendant was involved in a one-car accident near a small town in Wisconsin. After obtaining a ride to the town from a passing motorist, the defendant reported the incident to the local police. Two officers picked him up in the town and drove to the site of the accident. Because of his actions while in their company, the officers suspected the defendant was intoxicated. Before he was taken from the site, the defendant identified himself to the officers as a Chicago policeman. Believing that “Chicago police officers were required by regulation to carry their service revolvers at all times” (Cady, at p. 436, 93 S.Ct. at p. 2525), the defendant's person was searched and one of the officers looked into the front seat and glove compartment of the car, in an attempt to locate a gun. No weapon was found. The local officers had the car, which had been rented by the defendant, towed to a garage seven miles from the police station, where it was left unguarded. The defendant was taken to the stationhouse and formally arrested for drunken driving.
Early the next day, an officer went to the garage for the purpose of again searching the auto for the defendant's service revolver. The officer testified at the suppression hearing that the defendant “did not have a revolver when he was arrested, and that the ․ authorities were under the impression that Chicago police officers were required to carry their service revolvers at all times.” (Cady, supra, 413 U.S. at p. 437, 93 S.Ct. at p. 2526.) He further testified the attempt to locate the revolver was “ ‘standard procedure in our department.’ ” (Ibid.) During the officer's warrantless examination of the interior of the car, although no revolver was found, certain other items were discovered which ultimately led to the filing of murder charges against the defendant. He was subsequently convicted and sentenced to prison. He brought a petition for writ of habeas corpus, which in part challenged his imprisonment on the basis of the warrantless search of the auto at the garage.
The U.S. Supreme Court approved the towing of the defendant's car:
“The police did not have actual, physical custody of the vehicle ․ but the vehicle had been towed there at the officers' directions. These officers in a rural area were simply reacting to the effect of an accident—one of the recurring practical situations that results from the operation of motor vehicles and with which local police officers must deal every day. The [auto] was not parked adjacent to the dwelling place of the owner ․ nor simply momentarily unoccupied on a street. Rather, like an obviously abandoned vehicle, it represented a nuisance, and there is no suggestion in the record that the officers' action in exercising control over it by having it towed away was unwarranted either in terms of state law or sound police procedure.” (Cady, supra, 413 U.S. at pp. 446–447, 93 S.Ct. at pp. 2530–2531.)
The court also approved the search and articulated its holding:
“The court's previous recognition of the distinction between motor vehicles and dwelling places leads us to conclude that the type of caretaking ‘search’ conducted here of a vehicle that was neither in the custody nor on the premises of its owner, and that had been placed where it was by virtue of lawful police action, was not unreasonable solely because a warrant had not been obtained. The Framers of the Fourth Amendment have given us only the general standard of ‘unreasonableness' as a guide in determining whether searches and seizures meet the standard of that Amendment in those cases where a warrant is not required․ Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not ‘unreasonable’ within the meaning of the Fourth and Fourteenth Amendments.” (Cady, supra, at pp. 447–448, 93 S.Ct. at p. 2531.)
The presence of other alternatives for securing the vehicle without the necessity for a search were seen to be immaterial:
“In Harris [v. United States (1968) 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067] the justification for the initial intrusion into the vehicle was to safeguard the owner's property, and in Cooper [v. California (1967) 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730] it was to guarantee the safety of the custodians. Here the justification, while different, was as immediate and constitutionally reasonable as those in Harris and Cooper: concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle․ While perhaps in a metropolitan area the responsibility to the general public might have been discharged by the posting of a police guard during the night, what might be normal police procedure in such an area may be neither normal nor possible in Kewaskum, Wisconsin. The fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable.” (Cady, supra, at p. 447, 93 S.Ct. at p. 2531.)
The “caretaking” function of police officers has been relied upon by the Supreme Court to uphold inventory searches of automobiles and their contents (South Dakota v. Opperman, supra, 428 U.S. at pp. 375–376, 96 S.Ct. at p. 3100; Colorado v. Bertine (1986) 479 U.S. 367, 375, 107 S.Ct. 738, 743, 93 L.Ed.2d 739, citing, 428 U.S. at p. 374, 96 S.Ct. at p. 3099, Cady v. Dombrowski ). The underlying principle of such cases is that standard “inventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.” (Colorado v. Bertine, supra, 479 U.S. at p. 372, 107 S.Ct. at p. 741.) In reaching such conclusions, the Supreme Court has “accorded deference to police caretaking procedures designed to secure and protect vehicles and their contents within police custody.” (Ibid.) The availability of alternate but less intrusive means of securing a vehicle is not determinative. (Id. at p. 374, 107 S.Ct. at p. 742.)
We agree with LaFave's assessment that Cady v. Dombrowski is not an “inventory-type” case. (3 LaFave, supra, § 7.4(c), at p. 118.) Although there was testimony before the trial court in Cady that the search for the suspected gun was performed according to “standard” police procedures, the Supreme Court's opinion does not detail the nature or source of the “procedures.”
Lidfors' actions likewise did not constitute an “inventory-type” search. There was no evidence, either at trial or on the section 1538.5 motion in the justice court, of any “standard” criteria or other procedures in effect at the time under which Lidfors entered the Jeep.3 Thus, the seizure of the gun may not be upheld under the authority of cases such as Colorado v. Bertine, which speak to “routine” inventories of the contents of a vehicle lawfully in the possession or control of the police, conducted according to standard criteria and for the neutral purpose of protecting the property for the owner and the police from subsequent claims. (Colorado v. Bertine, supra, at p. 375, 107 S.Ct. at p. 743.)
We therefore turn to Cady v. Dombrowski, which permits a “caretaking” entry in circumstances not involving a neutral, “standard” inventory. One commentator does not view Cady as a departure from the Carroll–Chambers principles. In his noted treatise, LaFave takes the position that Cady “is a case of a warrantless search on probable cause for the purpose of ensuring that a weapon did not fall into the wrong hands.” (3 LaFave, Search and Seizure, supra, § 7.4(c), at p. 118, emphasis added.) Relying on Cady, LaFave is also of the opinion that when the possessor of a vehicle is arrested, “if the vehicle is to be left on the street at the place of arrest rather than impounded, ․ the alternative of guarding the car need not be elected and that instead the vehicle may be immediately searched if there is probable cause to believe it contains a weapon.” (3 LaFave, supra, at p. 119, emphasis added.)
We do not agree with LaFave's assessment of Cady as invoking a probable cause standard. At no point in Cady does the majority use the phrase “probable cause” when discussing the issue. One would expect to find the term, a word of art of great significance to the application and interpretation of the Fourth Amendment, somewhere in the opinion if it played any role in the court's reasoning. Moreover, “probable cause” consists of information which “make[s] it sufficiently probable not merely that something incriminating will be found in the described place, but rather that certain fruits, instrumentalities or evidence of crime which can be and are particularly described are to be found there.” (3 LaFave, supra, § 7.2(c), p. 41; see also Brinegar v. United States (1949) 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879.) None of the information possessed by the officer in Cady at the time of his entry into the auto pointed to any crime.
Two federal circuit courts have addressed similar facts. In United States v. Prescott (5th Cir.1979) 599 F.2d 103, the search which turned up the weapon followed upon the officer's discovery in the auto of certain ammunition in plain sight which did not match a pistol also in plain sight. The defendant claimed the search was unreasonable because the police officer's inspection was based on “suspicion” and not probable cause. The defendant further claimed it was not a valid inventory search because there was no direct evidence inventory searches were “standard practice” with the police department involved. (Id. at p. 105.) The Fifth Circuit upheld the search. In doing so, it decided a “standard” procedure was not a precondition to a valid inspection:
“Although evidence that inventory searches are standard practice at a given police department is a strong indicator that a particular search was conducted for legitimate purposes, it is not an absolute prerequisite to such a finding. Such evidence is ‘a factor tending to ensure that the intrusion will be limited in scope to the extent necessary to carry out the caretaking function,’ South Dakota v. Opperman, supra, 428 U.S. at 375, 96 S.Ct. at 3100; ․ but the reasonableness of a particular inventory procedure may be obvious even in the absence of direct evidence concerning a police department's standard procedures. Officer Ellidge's action was ‘standard police practice’ in the sense that it was of the type that has been repeatedly recognized by the courts as efficacious and constitutionally reasonable. More importantly, however, it was action necessitated by special concerns for public safety.” (Id. at p. 106.)
The court concluded its analysis by reference to the “caretaking” function of the police:
“Local police officers come into frequent contact with motor vehicles and often engage in what the Supreme Court has called ‘community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ Cady v. Dombrowski, 413 U.S. at 441, 93 S.Ct. at 2528. In Cady the Supreme Court approved an inventory search initiated on the assumption of local police that the incapacitated driver removed from his vehicle, who claimed to be a Chicago police officer, may have left behind a service revolver. The court recognized the legitimate police concern ‘for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of a vehicle.’ 413 U.S. at 447, 93 S.Ct. at 2531.
“․ Whether or not an inventory search would routinely be conducted by a Portland police officer after apprehending a drunken driver, the probable presence of a firearm within the vehicle made Officer Ellidge's efforts to secure the gun imperative. [Citations.] Far from violating the fourth amendment, Officer Ellidge's cursory search was sound, common sense police work that reason commends rather than condemns.” (United States v. Prescott, supra, 599 F.2d at p. 106.)
The Ninth Circuit is of the same mind. In United States v. Feldman (1986) 788 F.2d 544, the officer's search was initially prompted by his observation of an empty gun holster on the front seat of defendant's stolen rental car. Although the evidence of the police department's standard procedures indicated a rather loose and ad hoc “inventory” requirement, the court followed Cady and Prescott and upheld the search:
“The question is close, but we conclude that, in the particular circumstances confronting Detective Manavian, the search was a lawful inventory of the car's contents. Opperman [428 U.S. 364, 96 S.Ct. 3092] and subsequent cases such as [United States v.] Scott [ (9th Cir.) 665 F.2d 874] require the existence of a standard police inventory procedure to justify a warrantless inventory search. [The City of] Orange has a standard procedure that all stolen vehicles are to be inventoried. However, Orange's procedure is limited in timing and location only by the scope of the officer's discretion. As the Supreme Court indicated in Cady, 413 U.S. at 448, 93 S.Ct. at 2531, and as the Fifth Circuit concluded in Prescott, 599 F.2d at 106, to conduct an on-the-spot inventory search of a car which an officer reasonably suspects may contain a gun is reasonable because it ensures the immediate protection of the public's safety. Manavian's decision to conduct an on-the-spot inventory of the rental car was reasonable given Feldman's statement about a toy gun, Feldman's conviction record and parole violation, the presence of the holster in the car and the absence of any reason for Manavian to link Feldman to another crime. In these circumstances, and we rule upon no other, the inventory search of the briefcase was valid.” (United States v. Feldman, supra, 788 F.2d at p. 553, emphasis added.)
Because Prescott and Feldman include considerable discussion of issues relevant to “inventory-type” searches, a category which does not include our case, it might be said they are not apposite here. Be that as it may, we cite them because nowhere in those opinions, which purport to apply Cady, are the words “probable cause” included in any statement that expresses any part of the holding of either court.
We view Cady to be another aspect of the doctrine of Terry v. Ohio (1967) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. There, the Supreme Court approved of a police “pat-down” search of an individual for weapons where the person was detained as a part of a police investigation of a possible crime but before the officers had probable cause to arrest. In upholding the “pat-down,” the Terry court used language resembling that used by the Cady court:
“Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Terry v. Ohio, supra, 392 U.S. at p. 27, 88 S.Ct. at p. 1883.)
The reasonableness of the officer's conduct in Terry was evaluated against the need to protect himself and others in the vicinity; the reasonableness of the officer's conduct in Cady was evaluated against the need to protect the public in general. Cady and Terry sit in the same church, though perhaps in different pews.
For all these reasons, we conclude the Fourth Amendment does not require suppression of the gun if Lidfors “reasonably believed” it was in the Jeep at the time of entry. In determining whether he acted reasonably in the circumstances, “due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Terry v. Ohio, supra, 392 U.S. at p. 27, 88 S.Ct. at p. 1883.) 4 We now assess Lidfors' actions against that standard.
Lidfors testified he had three pieces of information which pointed to the existence of a gun in the Jeep: (i) the information secured from undisclosed informants that defendant always carried a gun on his person or in his vehicle; (ii) Lidfors' personal observations of defendant driving the green and black Jeep around the area in the past; and (iii) Lidfors' personal knowledge of defendant's earlier acquisition of a gun from among his deceased sister's effects. There is no doubt the officer's personal knowledge may be considered in determining whether his actions were reasonable. Thus, the question is whether the information provided by the undisclosed informants was properly relied upon by Lidfors.
Because we deal with a quantum of knowledge on the part of the officer that does not rise to the level of “probable cause,” the cases relied upon by defendant, which treat the issue of the reliability of informants in connection with the assessment of the validity of a warrant, are not dispositive.5 (See discussion at 4 Witkin and Epstein (2d ed. 1989) Exclusion of Illegally Obtained Evidence, § 2434 et seq., pp. 2889–2892.) They are, however, obviously of relevance.
The seminal case in the area is Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. There, the U.S. Supreme Court abandoned the former law governing the determination of the sufficiency of an affidavit in support of a request for issuance of a warrant to the extent the affidavit relied upon an informant's “tip.” The court adopted the “totality of the circumstances” test which had been the traditional yardstick for probable cause evaluations. (Id. at p. 238, 103 S.Ct. at p. 2332.) Under Illinois v. Gates, an informant's veracity and reliability, while relevant considerations in assessing the totality of the circumstances, are “not independent requirements that must be met in each case.” (4 Witkin and Epstein, supra, § 2434, p. 2890.) After passage of Proposition 8, the “totality of the circumstances” is the test in this state. (People v. Medina (1985) 165 Cal.App.3d 11, 17, 211 Cal.Rptr. 216.)
It is useful for purposes of discussion and analysis to assume Lidfors' testimony was not given orally in the justice court in February 1988, but instead was presented in June 1987, immediately after Lidfors' received the informant's news,6 as a written affidavit in support of a request for a search warrant. Viewed in that postulated context, had Lidfors' testimony included a certification that he had been given correct information by the undisclosed informants about criminal activity on one or more prior, unrelated occasions, probable cause to issue a search warrant would likely exist.
In Jones v. United States (1960) 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (overruled on other grounds by United States v. Salvucci (1980) 448 U.S. 83, 95, 100 S.Ct. 2547, 2555, 65 L.Ed.2d 619; cited with approval in Gates, 462 U.S. at p. 232, fn. 7, 103 S.Ct. at p. 2329 fn. 7), probable cause to search an apartment was based upon an unnamed informant's claim he had purchased narcotics at the location. The officer's affidavit did not identify the informant and stated only that the officer had been given correct information by the informant on another occasion. The Supreme Court held a sufficient ground for issuance of the warrant had been presented to the magistrate because the officer's assertion of the prior reliability of the informant was corroborated by the officer's receipt of the same information from other unspecified “sources” and by the defendant's previous admission to police of his narcotics use.
We believe the information given Lidfors via the informants, when coupled with the officer's corroborating personal knowledge of the prior acquisition of a gun by defendant, was sufficient to support the existence of a reasonable belief on Lidfors' part that a gun might be in the Jeep. Although it must be acknowledged that Lidfors was not “certain” or “sure” a gun was in the vehicle, the facts known to him gave him more to go on than a mere hunch or wild guess. Returning to our “search warrant” analogy, if Lidfors' testimony had included an affirmation of the informants' prior reliability, Jones would sanction the issuance of a search warrant on the basis of the informants' statements and the officer's corroborative personal knowledge. It seems to us the omission of such a certification of reliability should not operate to invalidate the intrusion into the auto where the law does not require the existence of probable cause to enter in the first instance. Otherwise, the “reasonable belief” standard set by Cady would be for all practical purposes measured by a probable cause yardstick. The Cady rule stops far short of probable cause.
For essentially the same reason, the lapse of time between Lidfors' receipt of the informants' tip and the intrusion into the Jeep is not material. The Jeep was to be left open and unlocked on a public street for an unknown length of time. As far as Lidfors knew, more than one person, i.e., the informants, believed that defendant's vehicle sometimes contained a gun. Lidfors had personal knowledge that defendant, albeit some time ago, had come into possession of a weapon. Although both bits of data were somewhat old, Lidfors should not be compelled to decide, on the spot, whether the information was legally so stale as to require him to forego checking on the presence of the suspected gun. (Cf., New York v. Quarles (1983) 467 U.S. 649, 657–658, 104 S.Ct. 2626, 2632–2633, 81 L.Ed.2d 550.)
As the Supreme Court emphasized in Gates, this area of police-citizen interaction can not be dominated by “a neat set of legal rules.” (Illinois v. Gates, supra, 462 U.S. at p. 232, 103 S.Ct. at p. 2329.) Instead, “ ‘․ we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” (Id. at p. 231, 103 S.Ct. at p. 2328.) The basis of the inspection in Cady was the defendant's identification of himself as a police officer and the Wisconsin officer's mental “impression” (the source of which was wholly undisclosed) that Chicago police officers were required to always carry their service revolver. Moreover, the auto in Cady was not parked on a public street at the time the weapon was seized but instead was in a “garage,” although not under guard. It seems to us the factual foundation for Lidfors' action is considerably stronger than the factual foundation relied upon in Cady.
The officer properly asked defendant what he wished done with the Jeep.7 (See discussion at 3 LaFave, supra, § 7.3(c), pp. 85–92.) When he was told it could be left where it was parked, but it did not lock, Lidfors was justified in acting upon the information he had which suggested the possible existence of a weapon in the Jeep, in order to secure it before departing the area. (Cady v. Dombrowski, supra, 413 U.S. 433, 93 S.Ct. 2523; United States v. Prescott, supra, 599 F.2d 103; United States v. Feldman, supra, 788 F.2d 544; see also United States v. Johnson (10th Cir.1984) 734 F.2d 503, 505, and United States v. Isham (6th Cir.1974) 501 F.2d 989, 991.)
Because the officer went right to the Jeep's console, it may be argued he knew exactly where the gun was, which suggests he was not innocently and neutrally attempting to see to the public welfare but instead was purposefully in pursuit of evidence to support the possession charges ultimately filed against defendant. This view of events is supported by Lidfors' statement to defendant, made at the time of the seizure, that they would “discuss the charges on the weapon” after defendant “made bail” on the charge for which he was arrested. Although he had no actual knowledge, Lidfors at the time “believed” defendant was an ex-felon.
The Cady court did note that at the time the search involved there was conducted, “[the officer] was ignorant of the fact that a murder, or any other crime, had been committed.” (Cady, supra, 413 U.S. at p. 447, 93 S.Ct. at p. 2531.) In addition, the “standard inventory” cases emphasize that the exercise of discretion on the part of the police in selecting and implementing a uniform method by which to discharge caretaking functions is not subject to second-guessing by the courts “so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” (Colorado v. Bertine, supra, 479 U.S. at p. 375, 107 S.Ct. at p. 743.) Must we therefore compel suppression of the gun because the officer not only suspected its presence, but also believed if found it might subject defendant to prosecution? If we respond in the affirmative with respect to non-inventory, roadside searches such as the one involved here and the one involved in Cady, cases such as Colorado v. Bertine would seem to demand application of the same rule to custodial, “inventory” type seizures as well.
In our view, the weapon need not be suppressed. The fact the officer knows or suspects the object of his attention may in some manner be involved in or relevant to a crime should not bar him from acting to secure it. To suppress the evidence in those circumstances would be to deny the police the ability to act for the protection of the public, or, in the case of a custodial “standard” inventory, to act to protect themselves or the property in their hands. (Cf., New York v. Quarles, supra, 467 U.S. at p. 657, 104 S.Ct. at p. 2632.) So long as the officer has a factually based reasonable belief in the presence of the item, the defendant is protected from a “reckless or prevaricating tale” (Jones v. United States, supra, 362 U.S. at p. 271, 80 S.Ct. at p. 736) and the public's interest is satisfied.
When the electorate passed Proposition 8 we became constrained to apply Cady. Accordingly, defense counsel was not remiss in failing to challenge the reliability of the informers or to renew the section 1538.5 motion in superior court, because the federal Constitution did not require the courts below to suppress the gun as evidence. (People v. May (1988) 44 Cal.3d 309, 316, 243 Cal.Rptr. 369, 748 P.2d 307.) Failure to press an unmeritorious motion is not incompetence. (People v. Shelburne (1980) 104 Cal.App.3d 737, 744, 163 Cal.Rptr. 767.) 8
B. III **
The judgment is affirmed.
1. All statutory references are to the Penal Code unless otherwise indicated.
2. The facts set out above under the heading “Prosecution Case” were put before the magistrate by the People's witnesses at the combined preliminary hearing and hearing on the defendant's section 1538.5 motion in the justice court. They were not disputed by defendant there and are not disputed by him here. Defendant did not offer any evidence on his behalf at the preliminary hearing and does not on this appeal claim the existence of any evidence pertinent to the issues beyond that adduced at the preliminary hearing and essentially repeated, with some omissions, at trial. We will, as a part of our analysis, measure those unchallenged facts “against the constitutional standard of reasonableness.” (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)
3. Lidfors' actions were not reflective of a comprehensive neutral inventory; he reached into the vehicle and went directly to the console which held the gun.
4. We call attention to section 833.5, which reads in pertinent part:“(a) In addition to any other detention permitted by law, if a peace officer has reasonable cause to believe that a person has a firearm or other deadly weapon with him or her in violation of any provision of law relating to firearms or deadly weapons the peace officer may detain that person to determine whether a crime relating to firearms or deadly weapons has been committed.“For purposes of this section ‘reasonable cause to detain’ requires that the circumstances known or apparent to the officer must include specific and articulable facts causing him or her to suspect that some offense relating to firearms or deadly weapons has taken place or is occurring or is about to occur and that the person he or she intends to detain is involved in that offense. The circumstances must be such as would cause any reasonable peace officer in like position, drawing when appropriate on his or her training and experience, to suspect the same offense and the same involvement by the person in question.”Although the statute was not raised here and is not included in our analysis, we note the obvious use of Terry language in its text.
5. The contrary would be true if we were to adopt LaFave's characterization of Cady as just another variant of the Carroll–Chambers principle.
6. No doubt the passage of time between the officer's acquisition of information and the date when a warrant request is presented to the magistrate is highly relevant to the validity of the warrant. (People v. Nadell (1972) 23 Cal.App.3d 746, 755, 100 Cal.Rptr. 444.) We eliminate the time factor here for sake of discussion and consider its actual role in Lidfors' actions later in this opinion.
7. In a subsequent, unpublished portion of this opinion, we will hold this inquiry by Lidfors was not violative of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
8. We need not extensively treat defendant's other related contention that Cook was an unreliable informant. There was no evidence to the effect that Cook, an ordinary citizen, was unreliable or untruthful. (See People v. Hill (1974) 12 Cal.3d 731, 761, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on other grounds by People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786.) Lidfors knew the relationships among defendant, Cook, and Nester. Cook's prediction about defendant's expected presence at the cleaning establishment that morning was corroborated when the officers arrived. Although the information which originated with Cook is not material to the seizure of the gun from the Jeep (because it furnished Lidfors with no data concerning the gun), even if Cook's warnings were relevant he must on this record be viewed as a reliable citizen informant.
FOOTNOTE. See footnote *, ante.
DIBIASO, Associate Justice.
BEST, Acting P.J., and BAXTER, J., concur.