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Court of Appeal, Second District, Division 5, California.

Arturo Ortiz FERNANDEZ, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; PEOPLE of the State of California, Real Party in Interest.

Civ. 38577.

Decided: November 30, 1971

Barry Tarlow, Los Angeles, for petitioner. No appearance for respondent. Joseph P. Busch, Jr., Dist. Atty., Harry Wood, Head, Appellate Division, Eugene D. Tavris, Deputy Dist. Atty., for real party in interest.

By this petition for a writ of mandate petitioner (‘defendant’) seeks to obtain an order suppressing the contraband which forms the basis of a pending superior court prosecution for a violation of section 11500.5 of the Health and Safety Code (possession of narcotics for sale).


On February 21, 1970, Officers Harvey and Jones of the Los Angeles Police Department observed a car in a market parking lot. The time was 2:45 p. m. and the market wa open for business. The car cruised around the parking lot. It went around about twice. Both occupants appeared to be looking at other vehicles in the lot. It then pulled into a parking stall. Both officers knew or had been advised that in market parking lots in that area ‘there are numerous burglaries from motor vehicles and thefts of motor vehicles, and also grand theft auto * * * and things of that nature.’ The officers also observed that the frame of the car was so close to the ground as to be in apparent violation of section 24008 of the Vehicle Code. There ensued a conversation between the officers, the driver of the vehicle and defendant who was the passenger. The driver had neither a license, a vehicle registration or any other identification. He gave his name as Villa. He said the car belonged to his sister. Defendant had no license, draft card or any other identification except a birth certificate showing him to have been born in Tijuana, Mexico. Officer Harvey requested Officer Jones to ascertain whether the car had been reported as stolen. He continued his conversation with the driver and defendant. The driver now said that his name was Joe Fernandez and that he had known defendant for three months. Defendant on the other hand said that the driver was his brother and that the car belonged to his—presumably their—sister. Harvey then pointed to a closed ‘Pan Am’ bag in the back of the car and asked defendant what was in it. Defendant answered, truthfully as later appeared: ‘Swimming trunks.’ The driver agreed. Defendant had, however, not furnished the officer a complete inventory, for when Jones, at Harvey's request, opened the bag, he pulled out a ‘plastic, small pillow-type of white powdery substance resembling cocaine.’ Both the driver and defendant were then arrested.


The first point made by defendant is that no misdemeanor was committed in the officers' presence since they only saw the car on a private parking lot and no arrest was justified. The record, however, indicates that the car was not stopped by the officers but was parked by the driver without any request that he do so and that the officers started the confrontation for two separate reasons: first the suspected violation of section 24008 of the Vehicle Code and, second, the feeling, based upon experience, that driver and defendant were ‘casing’ the parking lot.

Defendant reasons, in effect, that since at the moment the bag was opened by the police he had not been arrested, the search cannot be validated as being incident to a legal arrest. From that premise he argues quite correctly that the police had no right to search the bag in order to determine whether an arrest should be made. We do not agree with the People that the opening of the bag was a legitimate means of investigating whether the car was stolen, even if no probable cause to arrest for auto-theft existed at the time. It appears, however, that, whether they thought so or not, the officers had adequate probable cause to arrest at least the driver on suspicion that he had stolen the car. In People v. Myles, 189 Cal.App.2d 42, 46, 10 Cal.Rptr. 733, 736, it was said: ‘When defendant was unable to produce a driver's license or satisfactory proof of ownership of the Cadillac, the officer had reasonable cause to believe that it was a stolen vehicle and defendant guilty of grand theft (auto). Veh.Code, § 503, now § 10851. * * *’ Myles has been consistently followed on this point. (See e. g., People v. Williams, 17 Cal.App.3d 275, 278, 94 Cal.Rptr. 735; People v. Mermuys, 2 Cal.App.3d 1083, 1087, 82 Cal.Rptr. 902; People v. James, 1 Cal.App.3d 645, 648–649, 81 Cal.Rptr. 845; People v. Odegard, 203 Cal.App.2d 427, 431, 21 Cal.Rptr. 515. See however Mozzetti v. Superior Court, 4 Cal.3d 699, 703, 94 Cal.Rptr. 412, 484 P.2d 84 for disapproval on another point.)

It is immaterial that the search preceded the actual arrest (People v. Cockrell, 63 Cal.2d 659, 666–667, 47 Cal.Rptr. 788, 408 P.2d 116) and that the officers perhaps thought that an arrest would have been premature.1 (People v. Richardson, 6 Cal.App.3d 70, 76, 85 Cal.Rptr. 607; People v. Wright, 273 Cal.App.2d 325, 335–336, 78 Cal.Rptr. 75;2 Klingler v. United States, 8 Cir., 409 F.2d 299, 304.) The search of the bag was therefore justified on the basis that the police may search the interior of a vehicle at the time of an arrest in order to discover evidence of the crime for which the arrest had been made. (People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; cf. People v. Superior Court (Kiefer) 3 Cal.3d 807, 813, fn. 2, 91 Cal.Rptr. 729, 478 P.2d 449.)

We do not believe that our views conflict with People v. Millard, 15 Cal.App.3d 759, 93 Cal.Rptr. 402. There the defendant had been arrested for being under the influence of liquor in a public place. (Pen.Code, § 647, subd. (f).) The record contained no evidence that the arresting officer actually intended to take the defendant to the police station to be booked, or whether he intended to release him as permitted by section 849, subdivision (b)(2) of the Penal Code. A search of his pockets revealed a paper bag which contained a number of marijuana cigarettes. The People sought to sustain the search on the theory that a far more thorough search would have been permissible at the time of booking. The conviction was, however, reversed because the record did not show that the defendant would ever have been booked.

We think Millard rests on the peculiar inchoate nature of an arrest for intoxication. Until the arresting officer determines to have the arrestee booked, matters remain in suspense, so to speak, and the only permissible purpose of any search is to protect the personal safety of the officer. Here, had the officers done what they had every right to do, there would have been no question that the scope of the permissible search was not exceeded by looking into the flight bag. To hold that the search was illegal would only serve to put pressure on officers to make early arrests and discourage postponing the arrest to give the suspect a chance to allay their suspicions.

The alternative writ heretofore issued is discharged. The peremptory writ is denied.

I dissent.

It must be remembered that while some special situations may excuse the absence of a search warrant, there is no situation, special or otherwise, that can ever excuse the necessity that there be probable cause to search a particular place for a particular thing. The Fourth Amendment does not allow ‘fishing expeditions,’ whether they are conducted with or without a search warrant.

In particular, the automobile, because of its mobility, sometimes creates circumstances which excuse its warrantless search. For example, whenever a policeman had probable cause to believe that a particular car contains either contraband1 or evidence of a crime2 he may search the car without a warrant. Because of this, the threshold question in regard to auto searches is whether there exists probable cause for the police officer to believe that the car contains contraband or evidence of a crime. However, probable cause to search autos is subject to the same restrictions as probable cause to conduct all other searches: there must be probable cause to search for a particular thing in a particular place. Therefore, when the occupants of a car are arrested in their auto shortly after their suspected commission of an armed robbery, there may be probable cause to search the auto for the fruits of the crime or for the weapons used in its commission. (Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.) Likewise, when a driver is arrested in his auto for drunk driving, there may be probable cause to search for evidence of his crime (an empty bottle). (People v. Robinson, 62 Cal.2d 889, 44 Cal.Rptr. 762, 402 P.2d 834.) This does not mean, however, that every arrest establishes probable cause to search the auto in possession of the arrestee. While we recognize that there are certain crimes which by their nature tend to have certain real evidence (the fruits of the crime or weapons used) so intimately related to them that, as a matter of law, there may be probable cause to search for that evidence, we also recognize that there are others which do not. There are probably no inherent fruits of the crime of vagrancy that could establish, as a matter of law, probable cause to search the vagrant's car for evidence of that crime,3 though such evidence may well exist.4 There are no inherent fruits or evidence of the crime of speeding that could establish, as a matter of law, probable cause to search the speeder's car for such evidence of that crime.5

In the case before us, I believe that there existed probable cause for the police to arrest petitioner for car theft. The crime of car theft, by its nature, tends to have certain real evidence associated with its commission such that, as a matter of law, there would exist probable cause to search for that evidence.6 While the nature of armed robbery tends to establish probable cause to believe that the car may contain the weapon used or the thing stolen, the nature of car theft tends to establish probable cause to believe that the car may contain some evidence that the car was stolen i, e., evidence of its registration. However, unlike armed robbery, where there would be probable cause to believe that the weapon and thing taken might be concealed anyplace within the auto, in the crime of car theft, there would be no probable cause to believe that a closed flight bag on the rear seat of the auto would provide evidence of registration unless the police had first exhausted the more reasonable alternatives of determining the car's ownership: a check of the license plate and a search for the car's registration certificate in the usual places (the steering column, the sun visor, or the car's glove compartment). In People v. Superior Court (Fishback), 2 Cal.App.3d 304, 309–310, 82 Cal.Rptr. 766, 770, the court held that in a case where a policeman had found contraband as a result of a search for registration in a car which he believed had been burglarized, ‘the police had available other reasonable alternatives to accomplish their laudable goals. There was no necessity to enter the locked car and search the closed glove compartment when the police could have promptly obtained the registration information they desired by other means. * * * ‘We think this is a realistic balancing of the requirements of effective law enforcement and the necessity to protect the privacy of the citizen from unwarranted governmental intrusion.’ (Skelton v. Superior Court, 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485.)' Therefore, absent an effort by the police to first employ the more usual methods to determine the car's ownership, no probable cause would arise for the police to believe that there was proof of ownership within the closed flight bag, and absent probable cause to search, the search of the flight bag was unlawful.7 (See People v. Teale, 70 Cal.2d 497, 511, Fn. 10, 75 Cal.Rptr. 172, 450 P.2d 564.)

In addition to what I have stated above, I believe that this particular search suffered from another fundamental defect. Even if it were to be assumed that the circumstances of petitioner's arrest were such as to ‘warrant a man of reasonable caution [to believe]'8 that proof of ownership of the car might be contained within the flight bag, the record is void of any evidence that the search was based upon that ground. In People v. Gallegos, 62 Cal.2d 176, 178, 41 Cal.Rptr. 590, 591, 397 P.2d 174, 175, the California Supreme Court held that notwithstanding the fact that the police could have searched a defendant's premises had they known that defendant was a parolee, since ‘the record [did] not disclose and no claim [was] made that he was detained as a possible parole violator or that his premises were searched for that reason,’ the search was unlawful. (Emphasis added.) Therefore, when a policeman rests a search upon what must be determined to be an unlawful ground, the search does not become valid simply because a lawful one in fact did exist, though unknown or unconceived by the policeman. (Agar v. Superior Court, 20 Cal.App.3d 624, 98 Cal.Rptr. 148.) The reason for this is that the ‘principal evil sought to be forestalled * * * is the invasion of individual privacy by wholesale exploratory searches conducted under color of governmental authority.’ (People v. Superior Court, 3 Cal.3d 807, 813, 814, 91 Cal.Rptr. 729, 732, 478 P.2d 449, 452.) Since the policeman was not searching the flight bag for evidence of the car's ownership, but, concededly, only to test credibility upon a peripheral issue (trustworthiness), he was ‘fishing,’ and this is impermissible within the context of the Fourth Amendment.

According, the peremptory writ should be granted.


1.  Officer Harvey at one point alluded to the fact that the driver's lack of identification would have authorized an arrest under section 40302(a) of the Vehicle Code. It is, however, questionable whether such an arrest would have authorized the search of the bag.

2.  The rule that it is not the subjective belief of the officer but the objective facts which determine probable cause, cuts both ways. In People v. Wright, supra, the court ruled that an interrogation was custodial and required Miranda warnings, even though the officer subjectively did not believe that he had probable cause to arrest.

1.  Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

2.  Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.

3.  Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.

4.  Though unlikely, it is possible that the car might contain a full written confession of the crime.

5.  People v. Superior Court (Kiefer), 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449.

6.  Concededly, one may be in lawful possession of a car which is not registered in his name; however, the car's registration would provide the police with a starting point from which they could begin to trace the rightful possessor. While the car's registration is not the kind of dramatic evidence provided by guns and money in armed robberies, it is some evidence, and a distinction may not be fairly drawn on this point. However, there is either probable cause to search for a particular thing in a particular place, or there is not.

7.  This reasoning differs from that set forth in People v. Farley (98 Cal.Rptr. 89, filed Nov. 4, 1971, Ct. of Appeal, 2d App.Dist.)

8.  Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543.

KAUS, Presiding Justice.

AISO, J., concurs.

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