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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel Chavez RIOS, Defendant and Appellant.

Cr. 24972.

Decided: March 28, 1975

Kate Whyner, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div.; S. Clarke Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and David R. Chaffee, Deputy Attys. Gen., for plaintiff and respondent.

Appellant was charged in count I with possession for sale of amphetamine sulfate in violation of former Health and Safety Code section 11911, in count II with possession for sale of barbituric acid derivative, also in violation of section 11911, and in count III with possession for sale of marijuana in violation of former Health and Safety Code section 11530.5. After denial of his motion under Penal Code section 1538.5, appellant withdrew his plea of not guilty to count I and pleaded guilty thereto, and was sentenced to state prison, the remaining counts being dismissed. This appeal is limited pursuant to Penal Code section 1538.5, subdivision (m), to the validity of the trial court's ruling on the motion to suppress evidence.

Los Angeles County Deputy Sheriff Russ Holmes and his partner were on patrol at approximately midnight, November 30, 1971, driving northbound on Atlantic Boulevard when they were flagged down by a number of citizens near the alley at the rear of the 700 block of South Atlantic Boulevard. There the deputies observed a fight in progess in the alley at the rear of a psychedelic paraphernalia shop. The officers observed appellant and one or two others holding a person down on the ground. Appellant, who was familiar to Deputy Holmes as the apparent owner of the psychedelic shop, related that he had entered his shop, had seen three or four people at the rear of the shop, and, assuming that they were burglars, had chased one of them out the back door and caught him in the alley. Appellant also stated that the burglars had stacked several piles of articles to be taken from the store. The officers arrested the person on the ground and went inside the store with appellant to investigate the burglary and to determine if any of the additional suspects were still hiding inside.

The shop was divided by partitions into a front showroom and a rear room with a bed apparently where appellant slept. An additional partition in the rear room created a small ‘junk’ room which had a small ‘roof’ where additional junk was piled. As appellant and Deputy Holmes moved from the front showroom to the rear room, Deputy Holmes saw a clear plastic baggie in plain view on the ‘roof’ of the junk room, which was about 8 feet high. The clear plastic baggie contained numerous red capsules resembling sodium secobarbital. Believing the capsules to be dangerous drugs Deputy Holmes decided to seize them. A stepladder led to the ‘roof’ of the junk room and Deputy Holmes climbed it to retrieve the plastic baggie. The baggie contained 1,000 red capsules of sodium secobarbital and Deputy Holmes instructed his partner to arrest appellant. After climbing to the ‘roof’ to retrieve the plastic bag, Deputy Holmes also observed next to the baggie an open cardboard box which contained an open paper bag. Without touching either, Deputy Holmes could observe in plain view inside the paper bag additional dangerous drugs and marijuana. Inside the paper bag were 5,000 white amphetamine sulfate tablets in five plastic bags, and three ounces of marijuana in three plastic bags.

At this point four additional deputies arrived, two uniformed officers and two detectives. Deputy Holmes announced to the other officers and appellant that he had found a large amount of dangerous drugs and that ‘we were probably going to have to search the whole location.'1 Appellant then stated that he would point out where more pills were located.

The officers retrieved additional contraband from places pointed out by appellant, which included, 1,000 red sodium secobarbital capsules under appellant's mattress, 1,000 red sodium secobarbital capsules in a metal cabinet, and 10,000 white amphetamine sulfate capsules plus 1,000 red sodium secobarbital capsules behind some boards leaning against the will in the rear room. In addition, a paper bag containing other contraband was found behind a counter in the front showroom, a place not pointed out by appellant. This included three baggies, each containing 1,000 white amphetamine sulfate tablets; one baggie containing 500 white amphetamine sulfate tablets; two baggies, each containing 20 red sodium secobarbital capsules; one baggie containing 44 red sodium secobarbital capsules in 4-capsule tinfoil packages; and two baggies, each containing one-half ounce of marijuana.


Appellant contends that all of the contraband found in the store was illegally seized and that the trial court erred in denying his motion to suppress the evidence under Penal Code section 1538.5. We find that the contraband observed in plain view by Deputy Holmes on the ‘roof’ of the junk room was properly seized, but that the seizure of the subsequently discovered contraband cannot be justified on the present record. We have concluded, however, that the ruling on the subsequent seizure was unconnected to the count to which appellant pleaded guilty, and therefore the judgment should be affirmed.


Certain of appellant's contentions are clearly without merit because they are based solely on appellant's own testimony at the section 1538.5 hearing, which conflicted with Deputy Holmes' testimony and which was disbelieved by the trial court. Appellant testified that after briefly investigating the burglary, the officers left the store, but returned 10 minutes later demanding to search the premises. Appellant told them that they needed a search warrant, but they said that they did not, so he let them inside. At first they said they had a suspect in custody who had no identification, and they wanted to search the store to see if he had dropped his wallet. Then, however, Deputy Holmes said that a female suspect in the burglary was ‘snitching’ on appellant, saying that she burglarized the store to get back at appellant who had ‘burned’ her when he sold her some ‘reds.’ Appellant testified that he demanded the officers get a search warrant, and he denied that any contraband was in plain sight or that he took the officers around the shop pointing out where contraband was located.

Appellant may not rely upon this testimony to support his contention that the officers illegally entered the store and illegally seized the contraband. Appellant's testimony was in conflict with Deputy Holmes', and the trial court resolved this conflict in evidence by believing the officer and disbelieving appellant. The officers did not leave the store and re-enter at a later time. “‘A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact.’ (People v. Heard (1968) 266 Cal.App.2d 747, 749, 72 Cal.Rptr. 374, 375.)' (People v. West (1970) 3 Cal.3d 595, 602, 91 Cal.Rptr. 385, 388, 477 P.2d 409, 412.) (Italics added.) In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.' (People v. Lawler, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 15, 507 P.2d 621, 623.)

Based upon Deputy Holmes' testimony, there is substantial evidence that the officers lawfully entered the premises at the implied invitation of appellant for the sole purpose of investigating the burglary. (People v. Shepherd, 33 Cal.App.3d 866, 869, 109 Cal.Rptr. 388; People v. Taylor, 266 Cal.App.2d 14, 18, 71 Cal.Rptr. 886.)

Substantial evidence also supports the conclusion that during the lawful course of this investigation Deputy Holmes observed contraband in plain sight. While walking from the front showroom to the rear room, Deputy Holmes could observe numerous red capsules resembling sodium secobarbital in a clear plastic baggie on the ‘roof’ of the junk room. The ‘rooms' in the store were merely areas that were separated by partitions. The junk room ‘roof’ was only 8 feet high and was reached by a stepladder. It was not a true attic. Deputy Holmes testified that he could observe the clear plastic baggie containing the capsules as he entered the rear area, and we find no merit in appellant's assertion that this could not have been possible. The officer's explanation of the circumstances constitutes substantial evidence that he inadvertently observed the capsules in plain view. Observation and seizure of evidence in plain sight from a place where a police officer has a right to be is not an unconstitutional search or seizure. (People v. Block, 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961; Lorenzana v. Superior Court, 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33.) Recognizing the red capsules as contraband, the officer acted properly in climbing the stepladder to retrieve them. From that vantage point he properly attained the view of additional contraband in the open paper sack in the open cardboard box next to the clear plastic baggie. These drugs were also in plain view from a place the officer had a right to be and were properly subject to seizure.

However, the remaining contraband (i. e., the drugs found under appellant's mattress, in a metal cabinet, behind the boards in the rear room, and behind a counter in the front showroom) was discovered by means of a search which was separate and apart from the original investigation of the burglary. According to Deputy Holmes' testimony, after he discovered the plastic baggie and paper bag in plain view, four additional police officers arrived, and Holmes announced that he had found a large amount of dangerous drugs and that ‘we were probably going to have to search the whole location.’ Appellant then stated that he would point out where more pills were located, and directed the officers to the additional contraband. It is clear therefore that the officers were conducting as search for additional evidence of possession of dangerous drugs and narcotics. The subsequent search had nothing to do with the original investigation of the store burglary. The officers had no search warrant and therefore the burden is on the People to show that the search falls within one of the limited exceptions to the requirement for a search warrant. (Katz v. United States, 389 U.S. 347, 357–358, 88 S.Ct. 507, 19 L.Ed.2d 576; Vale v. Louisiana, 399 U.S. 30, 34–35, 90 S.Ct.1969, 26 L.Ed.2d 409; People v. Edwards, 71 Cal.2d 1096, 1105, 80 Cal.Rptr. 633, 458 P.2d 713; Horack v. Superior Court, 3 Cal.3d 720, 729, 91 Cal.Rptr. 569, 478 P.2d 1.)2

The subsequent search cannot be justified as incidental to appellant's arrest for possession of the initially observed drugs. In Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685, the Supreme Court laid down the rule that a search incidental to a suspect's arrest may extend only to the suspect's person and the area within his immediate control, meaning the area from which he might gain possession of a weapon or destructible evidence. In that case police officers arrested a defendant in his home for burglary of a coin shop, and then thoroughly searched the home for items which might have been taken in the burglary. The court held there was no justification ‘for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.’ (P. 763, 89 S.Ct. p. 2040; fn. omitted.)3 The subsequent search of the premises in the instant case is precisely the type of evidentiary search condemned in Chimel. (See People v. Block, supra, 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961.) It was not a mere continuation of the original burglary investigation or of the initial seizure of contraband in plain view.

Respondent suggests that the subsequent search may be justified on the ground that appellant consented to it, based upon Deputy Holmes' testimony that appellant assisted the officers by pointing out various locations where the contraband was kept. We do not reach this question because the record shows that the trial court declined to make a finding with respect to consent. Deputy Holmes' testimony, even though believed by the trial court, would support either of two legal conclusions on the issue of consent. On the one hand it is arguable that the police officer's statement that ‘we were probably going to have to search the whole location’ did not imply to appellant that the officers would do so without appellant's consent or without obtaining a warrant, and that appellant voluntarily consented to a search without a warrant. (E. g., People v. McClure, 39 Cal.App.3d 64, 69, 113 Cal.Rptr. 815; People v. Ward, 27 Cal.App.3d 218, 224–225, 103 Cal.Rptr. 671; People v. Rupar, 244 Cal.App.2d 292, 298, 53 Cal.Rptr. 70.) On the other hand, it might be inferred that the officer's statement implied an intention to conduct an immediate search without regard to appellant's consent, and that appellant's pointing out the location of the contraband merely constituted submission to assertion of authority. (E. g., People v. Shelton, 60 Cal.2d 740, 746, 36 Cal.Rptr. 433, 388 P.2d 665.)

The record affirmatively demonstrates, however, that the trial court refused to draw either inference, and declined to make a finding regarding consent, basing its decision exclusively on other grounds.4 Under the circumstances the trial court's judgment does not imply a finding of consent and we cannot uphold the search on that ground. (People v. Kanos, 70 Cal.2d 381, 385, 74 Cal.Rptr. 904, 450 P.2d 278; In re Walker, 10 Cal.3d 764, 780, 112 Cal.Rptr. 177, 518 P.2d 1129.)

Respondent suggests no other circumstances or emergency which would justify the subsequent search of the store without a search warrant. In the absence of a finding of consent to the search, the trial court's denial of appellant's motion to suppress the subsequently discovered evidence is without support in the record.


We must now determine whether the trial court's erroneous ruling as to the evidence found during the subsequent search of the premises requires reversal of the judgment. The evidence which was in plain view and which was admissible included 5,000 amphetamine sulfate tablets, 1,000 sodium secobarbital capsules, and 3 ounces of marijuana. The evidence found in the subsequent search included 13,500 amphetamine sulfate tablets, 3,064 sodium secobarbital capsules, and 1 ounce of marijuana. Appellant pleaded guilty to count I, which charged him with possession for sale of amphetamine sulfate. The admissible evidence that appellant possessed 5,000 amphetamine sulfate tablets was ample proof that he possessed them for purposes of sale. It is inconceivable to us that such a quantity could have been possessed for any other purpose. The inadmissible evidence that appellant possessed an additional 13,500 amphetamine sulfate tablets was entirely and purely cumulative. It added nothing to the prosecution case on count I which was not shown by admissible evidence. The remaining evidence concerning the sodium secobarbital and marijuana was unconnected to count I. It is apparent, therefore, that the court's erroneous denial of the motion with respect to the subsequently discovered evidence had nothing to do with appellant's plea of guilty to count I. This is borne out by the comments of appellant's trial counsel.5 (See People v. Parra, 30 Cal.App.3d 729, 736, 106 Cal.Rptr. 531, cert. den. 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743.) Since the evidence found in the subsequent search was either cumulative to admissible evidence or unconndected to the count to which appellant pleaded guilty, there is no reason the trial court's error should infect the validity of appellant's plea.

This result is consistent with the recent decision in People v. Hill, 12 Cal.3d 731, 767–770, 528 P.2d 1. In that case defendants Hill and Schnabel were charged with murder, robbery and possession of marijuana. Also involved in the murder and convicted in separate trials were ‘Sparky’ and ‘Tudy’ Hernandez. The victims, Smith and McElhinney, went to the residence of one Amelia Hernandez to purchase some marijuana. Smith was carrying $1,700. There they were attacked by several assailants. Smith was shot and killed, and his wallet was taken. McElhinney was robbed of his wallet. McElhinney identified Hill as one of the assailants, and also saw Tudy Hernandez in the room. Shortly after the murder Hill and Schnabel were stopped in a vehicle after a high speed chase. Wallets, victims' identification, and guns were later found along the chase route. When stopped, Schnabel was carrying $1,800, for which he gave an evasive explanation. He had bloodstained hands and carried a matchbook containing bullets. Hill gave a false name. Their vehicle contained marijuana. It also contained wallets and adhesive tape and green plastic bags similar to tape and bags found at the scene of the murder. Schnabel carried an address book listing Sparky and Tudy Hernandez. Sparky Hernandez' residence was searched without a warrant, and a notebook listing Schnabel and Smith was found. A subsequent search of this residence with a warrant led to seizure of various items linking Sparky Hernandez with Smith and the murder scene. This search also led to certain items outside the scope of the warrant, namely, tape recordings, paper bags with a drugstore receipt, and a motel receipt.

Following denial of their motions to suppress the evidence, Hill and Schnabel pleaded guilty to second degree murder, the the robbery and marijuana possession counts were dismissed. On appeal pursuant to Penal Code section 1538.5, subdivision (m), the Supreme Court held that the trial court correctly denied the motion as to all evidence except the tapes and receipts in Sparky Hernandez' residence which were outside the scope of the warrant. Although the record did not disclose the contents of the tape recordings or the relevance of the receipts, the Supreme Court presumed they were connected to the murder. It was possible, for instance, that the tape recordings contained highly damaging admissions. The court then held that the erroneous denial of the suppression motion as to these items of evidence required reversal of the judgment, stating: ‘In view of the magnitude of the consequences of a guilty plea and the lack of an adequate basis upon which an appellate court can evaluate the impact of a trial court's error, we conclude that the doctrine of harmless error is inapplicable in the context of an appeal under section 1538.5, subdivision (m). The accused must be afforded an opportunity to personally elect whether, contrary to the trial court's ruling, the suppression of certain items of evidence would alter the situation in a sufficiently favorable manner so as to render a plea of not guilty strategically preferable.’

Thus the erroneous denial of the motion to suppress certain evidence which presumably added to the prosecution's murder case required reversal of the murder conviction. The court held that it could not weigh the importance of that evidence in motivating the defendants' pleas of guilty to murder.

Suppose, however, that the Supreme Court had held the marijuana in defendants' vehicle was unlawfully seized. There is nothing whatsoever in the Hill opinion which would suggest that the inadmissibility of that evidence on the possession of marijuana count would require reversal of the murder count, the one to which the defendants actually pleaded guilty. Footnote 34a at page 767, 528 P.2d 1 of the opinion makes clear that an erroneous ruling as to evidence unconnected with the count to which the defendants actually pleaded guilty would not require reversal of the judgment.

This result is also consistent with People v. Fry, 271 Cal.App.2d 350, 76 Cal.Rptr. 718, and People v. Landry, 276 Cal.App.2d 370, 80 Cal.Rptr. 880, both cited in footnote 35 of Hill as the only other reported cases on point. In Fry the defendant was charged with burglary and receiving stolen property in seven counts. He pleaded guilty to one count of burglary and one count of receiving stolen property. The trial court had correctly upheld the seizure of stolen rings and a watch from the defendant's person, but had erroneously upheld the seizure of additional loot and burglar's tools (bolt cutters and a citizen's band radio and transceiver from which it might be inferred defendant was a professional burglar) from defendant's house. The appellate court pointed out that the unlawfully seized evidence was relevant to the counts to which defendant pleaded guilty. (Id., 271 Cal.App.2d at p. 358, 76 Cal.Rptr. 718.) Clearly the professional burglar's tools would have added to the prosecution case had it gone to trial, and therefore reversal was required. In Landry the defendant was charged with two counts, possession of marijuana, and possession for sale of marijuana. He pleaded guilty to simple possession, and the possession for sale count was dismissed. The trial court had correctly upheld the seizure of two marijuana cigarettes from defendant's person and had erroneously upheld the seizure of 20 bags of marijuana in defendant's house and nearby shed. The appellate court applied its previous holding in Fry, stating that it would not speculate defendant would have entered the same plea had the trial court properly suppressed the marijuana found in the later search. (Id., 276 Cal.App.2d at pp. 376–377, 80 Cal.Rptr. 880.) We think it readily apparent that the decision whether to plea bargain or face trial on a charge of possession of two marijuana cigarettes could be drastically affected by the determination whether the prosecution can also charge possession for sale of 20 bags of marijuana.

Here, on the other hand, unlike Fry and Hill, the additional amphetamine sulfate tablets found in the subsequent search could not have added anything to the prosecution case on the count to which appellant pleaded guilty, because there was admissible evidence that he possessed a commercial quantity, 5,000 tablets. Appellant's guilt of possession for sale was established by the admissible evidence, and the size of his additional inventory made no difference. Here, unlike Landry, the prosecution also had admissible evidence relating to the other counts if the case had gone to trial.

Thus we can say without speculation that appellant's plea of guilty to count I, possession for sale of amphetamine sulfate, was unconnected to the court's ruling with respect to the marijuana and sodium secobarbital and the purely cumulative amounts of amphetamine sulfate discovered in the subsequent search. The trial court's erroneous ruling does not require reversal of the conviction based on appellant's admission of guilt.

The judgment is affirmed.


1.  On prior occasions Deputy Holmes had received tips from anonymous informants that narcotics and dangerous drugs were sold at the psychedelic shop.

2.  Homes and offices as entitled to the maximum protection of the Fourth Amendment's warrant requirement. (People v. Dumas, 9 Cal.3d 871, 881–882 & fn. 8, 109 Cal.Rptr. 304, 512 P.2d 1208.) The premises in the instant case apparently embodied aspects of both a home and business.

3.  Belief, however well-founded, that an article ought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. (Chimel v. California, supra at p. 762, 89 S.Ct. 2034.)

4.  In making his ruling the trial judge stated: ‘. . . And I don't think it makes any difference whether [appellant pointed out the locations] or not. If you disregard that testimony entirely, I still think that this search of the premises is part of this arrest, and that everything that happened, whether it happened by Holmes or an officer that he pointed to and said, ‘you look in that room, and you look in that room,’ and they are all in this same building, and they are all operating in the course of this arrest, I don't think it makes a particle of difference whether the fact is that Holmes was directed to these things by Rios or whether he wasn't. If we disregard that entirely, I think the same result follows, because we are not talking about a consent situation and all that, in my view.‘* * * *‘THE COURT: Certainly, I believe the Officer's testimony. But I am disregarding, in the ruling, his testimony about being directed to these locations by the defendant.’

5.  Appellant's trial counsel, Mr. Walton, had strenuously argued that both the initial and subsequent searches were illegal. After the court's ruling, he requested a continuance to seek a pretrial writ in the Court of Appeal, and stated: ‘. . . Put the matter over for about thirty days, keep it on this calendar, because if we don't succeed there, I intend to dispose of the matter without witnesses.’ The following exchange between court and counsel then occurred:‘MR. WALTON: We will either win or lose it on the search issues.‘Defendant will waive time.‘I would suggest, perhaps, that we put the matter over until, say, August 31st. I will have either done what I have suggested I probably will do, or I will not have done it, in which event I will dispose of the case.‘THE COURT: I am not sure I can keep it on this calendar. I can continue it, but I think it has to go back to E for trial assignment, because I am not supposed to be trying these cases.‘MR. WALTON: That is what I am saying. We are not going to give you a case to try.‘THE COURT: Well, supposing they say the first thousand reds and five thousand whites and three bags of marijuana are clearly, properly in evidence?‘MR. WALTON: If so, I anticipate that will dispose of it.‘In other words, as far as I am concerned, Homes need never have to appear again.’

ASHBY, Associate Justice.

KAUS, P. J., and STEPHENS, J., concur.