The PEOPLE, Plaintiff and Respondent, v. Paul Junior RODRIGUEZ, Defendant and Appellant.
Appellant Rodriguez was convicted on the basis of a guilty plea of the crimes of conspiracy to sell phencyclidine (PCP) (Pen.Code, s 182) and transportation of PCP (former Health & Saf. Code, s 11379(a)). The basis of his appeal is that the trial court erred in denying his motion under Penal Code section 1538.5 to suppress evidence which police officers obtained when they searched the trunk of his automobile.
The facts as they appear from the transcript of the suppression hearing, through testimony of police officers, are as follows. In early January 1977 San Francisco Undercover Narcotics Officer Zenaido Avila had various dealings with a man named David Gallego involving the purchase of PCP. Avila purchased small amounts of PCP from Gallego on January 6 and 8. On January 12, about 5:15 p. m., he met with Gallego to arrange what Gallego represented would be the purchase of three and one-half ounces of PCP at $1,700 an ounce from Gallego's connection. Avila, equipped with a transmitter and backed up by a surveillance team headed by Officer Kingsley, drove with Gallego to Ricco's Boutique in San Jose. Gallego said he planned to contact a cousin of his, a certain “Paul,” who owned the boutique, who would have to put the deal together. Gallego told Avila that Paul ran four stores but made his money dealing PCP, that he dealt in large quantities, and that Gallego had seen up to 20 ounces at Paul's house at one time.
“Paul” (subsequently identified as appellant) arrived about 7 p. m. driving a 1972 Porsche automobile. Gallego told Avila that Paul was leery of meeting with anyone but cousins and relatives, and Avila waited around the corner while Gallego went to talk with him. When Gallego returned after a short while, he told Avila that Paul had 10 ounces of PCP , and that a deal could be arranged (though only for 20 grams) but that Avila would have to put up the money first. Avila told Gallego that he wanted the PCP first, and that he also wanted to deal directly with Paul. Gallego went to talk with Paul a second time. This time Avila noticed that a third person was also present. Gallego came back and told Avila that Paul would do business only through Gallego. Avila suggested this be done in Avila's view, and that he see some PCP first. Gallego then went to Paul a third time. Avila saw Paul's Porsche pull by him and stop near a Grand Auto store. Gallego got out of the car and ran over to Avila. The unidentified third person whom Avila had seen with Gallego and Paul got out of the car and walked away. Paul moved the car further up the street, parked it, and went inside the Grand Auto store. Gallego, coming up to Avila, showed him two “Baggied” grams of white powder which resembled PCP. He told Avila that Paul had more PCP in the trunk of his car, but that Avila would have to put up the money first if he wanted to get it. When Avila declined to do so, Gallego told him there were other people standing near the boutique who would buy if Avila did not. Since Gallego said defendant was parked near the Grand Auto store to consummate the transaction, they walked in that direction but found neither Porsche nor Paul.
At this point Avila decided that the transaction would not occur unless he yielded the money first, and he had no authority to do so. Using his transmitter he notified the other officers of the situation, indicating that he believed appellant had PCP in his car. Officer Kingsley immediately ordered appellant to be detained, had the boutique “secured,” and directed the arrest of Gallego and Avila. Pursuant to Kingsley's directive, appellant was placed in a police car and detained. At this point Kingsley had about seven or eight officers assisting him, though some of them were in plain clothes.
Kingsley obtained the keys to appellant's car from a fellow officer, entered the car to unhook the trunk latch and opened the front trunk. There he saw two brown paper bags, and plastic Baggies inside one of them. Opening that bag, he found six individually wrapped packages of what appeared to be PCP. Appellant was then placed under arrest and taken to the police station for booking. Kingsley took the contraband from the trunk, closed and sealed the car, and had it impounded. He then obtained a search warrant and again searched the trunk, this time finding and seizing a variety of implements associated with the packaging of drugs.
Kingsley testified that while he believed at the time of the initial search that he had probable cause to obtain a search warrant, he decided against doing so for a number of reasons. One was that the car was in a “very high crime rate area,” heavily involved in prostitution, narcotics, burglaries, and robberies. The particular location at which the car was parked he considered to be a “rough area” where a lot of parolees congregated. Another reason was that the unidentified third person, whom Kingsley believed was “some kind of an associate,” was on foot in the area and not in custody. A third factor was the proximity of Ricco's Boutique, which Kingsley understood was operated by relatives of appellant. Finally, Kingsley had heard Gallego on the transmitter referring to persons standing about who were ready to make the deal if Avila did not, and assumed those people were aware of the existence of the PCP in the car.
Kingsley testified that “logistically” there was no reason an officer could not have been assigned to watch the vehicle while arrangements were made for it to be towed, and that a duty judge would have been available for the issuance of a warrant if the car had been towed to the police station immediately. He said he felt, however, that he had “ample probable cause under existing law to go into the car.” Moreover, he had not yet made a final determination as to “what to do with” appellant (i. e., whether to arrest him, and if so on what charge), and obtaining a search warrant is a “cumbersome process” which usually involves three or more hours in the daytime and even more at night.
The principal issue raised by the appeal is the validity of the warrantless search of appellant's car trunk.1 Appellant contends that both probable cause to search and exigent circumstances justifying a search without warrant were required in this case, and that neither requirement was met. As to the first, there is no doubt that the search of an automobile must be based on probable cause; and, due to the greater expectation of privacy which exists with respect to the trunk of a car, search of that area is valid only if based on “further probable cause” (People v. Minjares supra, 24 Cal.3d at p. 423, 153 Cal.Rptr. 224, 591 P.2d 514), i. e., specific articulable facts which give reasonable cause to believe that seizable items are, in fact, concealed in the trunk. (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 568, 128 Cal.Rptr. 641, 547 P.2d 417; see also People v. Superior Court (Karpel) (1976) 63 Cal.App.3d 990, 993, 134 Cal.Rptr. 174.) That requirement is certainly satisfied in this case if Avila was entitled to rely upon the information he received from Gallego, for Gallego specifically told him there was PCP in the trunk of appellant's car. As evidence that Gallego was unreliable, appellant points to the fact that on several prior occasions he misled police officers as to his ability to produce large amounts of PCP and made conflicting statements as to the amount of PCP available for purchase on the day of the arrest. On the other hand, Gallego had in fact produced narcotics on two prior occasions, and his information on the day of the arrest was corroborated by events, including the production of a sample. Moreover, his statement that there was more PCP in the trunk of appellant's car constituted under the circumstances a declaration against penal interest; he represented himself to be an intermediary in a criminal transaction, and to be acting as courier for appellant. (See Ming v. Superior Court (1970) 13 Cal.App.3d 206, 214, 91 Cal.Rptr. 477; see also People v. Label (1974) 43 Cal.App.3d 766, 772-773, 119 Cal.Rptr. 522.) We conclude that there was an adequate showing of probable cause to believe that PCP would be found in appellant's car trunk.
Appellant's second contention, with respect to exigent circumstances, poses more difficult questions. Indeed, for sheer doctrinal obscurity few areas of the law can compete with the “rules” governing warrantless searches of automobiles.2 It is a “cardinal principle” of Fourth Amendment analysis, we are told, that “ ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.’ ” (Mincey v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290, quoting Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576. See People v. Minjares, supra, 24 Cal.3d at p. 416, 153 Cal.Rptr. 224, 591 P.2d 514.) Whether the exceptions are “few” is open to debate3 but at least as regards the so-called “automobile exception” invoked here by the respondent, well-delineated it is not. Ever since Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, it seems to have been accepted that “for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars” (Chambers v. Moroney (1970) 399 U.S. 42, 52, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419), but precisely what that difference is and how it affects the validity of warrantless searches has never been entirely clear. Carroll, which is the seminal case in this area, stressed the mobility of the automobile,4 and Chambers echoed that theme. (399 U.S. at p. 52, 90 S.Ct. at p. 1981.) In Chambers, however, the car was searched at the police station, and some commentators have found it difficult to understand why a car's theoretical mobility should justify a warrantless search in that situation.5 More recently, in United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, the court, while asserting that “(o)ur treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable,” acknowledged that “we have also sustained ‘warrantless searches of vehicles . . . in cases in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not nonexistent,’ ” and explained “(t)he answer lies in the diminished expectation of privacy which surrounds the automobile.” (433 U.S. at p. 12, 97 S.Ct. at p. 2484.)6 A similar development of rationale is reflected in decisions of the California Supreme Court.7
Related to these developments in rationale is a certain ambiguity in the substantive rules applicable to automobile searches. The phrase “automobile exception” implies that automobiles constitute a categorical exception to the normal Fourth Amendment principles requiring both probable cause And exigent circumstances to justify a warrantless search; but neither the United States Supreme Court nor our state Supreme Court has gone that far. Justice Stewart in his plurality opinion in Coolidge v. New Hampshire (1971) 403 U.S. 443, 461-462, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564, cautioned that “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears,” and the court in that case made clear that at least where police plan in advance to go to a particular place to search a vehicle and they have time to obtain a warrant the Fourth Amendment requires that they do so. More recently, in Arkansas v. Sanders, supra, the court acknowledged that “the exception does not invariably apply whenever automobiles are searched.” (—- U.S. at p. ——, 99 S.Ct. at p. 2591 n.7, 61 L.Ed.2d at p. 243, fn. 7.)
1 The California Supreme Court, in People v. Dumas, supra, 9 Cal.3d 871, 884, 109 Cal.Rptr. 304, 314, 512 P.2d 1208, 1218, and again in People v. Cook (1975) 13 Cal.3d 663, 669, 119 Cal.Rptr. 500, 532 P.2d 148, has characterized the Carroll doctrine as permitting search of an automobile “so long as it can be demonstrated that (1) exigent circumstances rendered the obtaining of a warrant an impossible or impractical alternative, and (2) probable cause existed for the search.” While this formulation has never been expressly modified or disapproved by the Supreme Court, it has been followed in various decisions by the Court of Appeal,8 and respondent does not quarrel with it as an accurate statement of the law. Rather, respondent suggests, that in light of the lesser privacy interest associated with automobiles, the threshold of “exigency” is correspondingly lower, and that the reasons asserted by the police officer in this case for not obtaining a warrant, while somewhat speculative, were nevertheless sufficient. The state Supreme Court's decision in People v. Dumas, supra, does indeed provide some support for respondent's suggestion. In that case, police officers armed with a warrant for a search of defendant's apartment found, in addition to the defendant and a friend (whom they arrested) an automobile registration certificate in the name of defendant and a set of automobile keys. An automobile meeting the description on the certificate was found parked in the street about 100 feet away from the apartment. The officer in charge of the operation, having reason to believe that some of the items specified in the warrant might be found in the car, ordered it searched; and several items were, indeed, found in the trunk. In rejecting defendant's contention that the search was invalid, the court reasoned that the Fourth Amendment afforded a “hierarchy of protection” which varies with the degree of privacy interest associated with particular areas (9 Cal.3d at pp. 882-883, 109 Cal.Rptr. 304, 512 P.2d 1208); and that while places such as homes and offices fell within the category of maximum protection, subject to warrantless search only in “emergencies of overriding magnitude” (id., at p. 882, 109 Cal.Rptr. 304, 312, 512 P.2d 1208, 1216), other places such as automobiles carried with them an expectation of privacy which, “although considerable, is less intense and insistent,” and these “may be searched upon probable cause alone under circumstances of less demanding urgency.” (Ibid.) Then, after restating the twin requirements of probable cause and exigent circumstances, the court stated: “Here the officers were apparently unaware that defendant possessed an automobile at the time they obtained the warrant. They unexpectedly discovered the existence of the vehicle only after they had entered defendant's apartment. There was at least one other person in the apartment at the time of defendant's arrest who would have been in a position to move the car or destroy the evidence if the police did not conduct an immediate search or seizure. Under these circumstances, we hold it was not practicable for the police to secure a warrant under the standards set forth in Carroll and Chambers.” (Id., at p. 885, 109 Cal.Rptr., at p. 314, 512 P.2d, at p. 1218.)
The court in Dumas did not consider the alternative which the police might have had in that case to have the car towed and impounded pending application for a warrant. The reason, quite probably, is that the state of the law at that time did not require consideration of such an alternative. In Chambers, the United States Supreme Court had reasoned as follows: “Arguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” (399 U.S. at pp. 51-52, 90 S.Ct. at p. 1981.)
Thus, if Dumas and Chambers are still “good law,” respondent is probably correct in its contention that the search was proper. Officer Kingsley would on that basis be correct in his assessment that he was not required to tow and impound the car pending a warrant, and the circumstances justifying an immediate search rather than holding the car on the street for three or four hours would seem to be at least as “exigent” as the basis for exigency which the court found in Dumas.
Recent developments, however, cast considerable doubt on these propositions. In United States v. Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, the Supreme Court rebuffed the government's suggestion that the warrant requirement be limited to the protection of “homes, offices, and private communications (which) implicate interests which lie at the core of the Fourth Amendment,” and that warrantless searches be permitted on the basis of probable cause alone where “less significant privacy values are at stake.” (Id., at p. 7, 97 S.Ct., at p. 2481.) Reaffirming its commitment to the warrant clause, the court found “important Fourth Amendment privacy interests were at stake” in the search of a double-locked footlocker. (Id., at p. 11, 97 S.Ct., at p. 2483.) In Arkansas v. Sanders, supra, the court applied the Chadwick principle to an unlocked suitcase which had been Taken from a car trunk; and in Minjares and Dalton, involving a closed tote bag and closed boxes, respectively, our state Supreme Court arrived at that same result. Moreover, the California Supreme Court, relying upon the California Constitution, has characterized the trunk of a vehicle as “a distinct part of the car in which there is a reasonably greater expectation of privacy than in the passenger compartment.” (Wimberly v. Superior Court, supra, 16 Cal.3d at p. 567, 128 Cal.Rptr. at p. 647, 547 P.2d at p. 423.) It seems questionable whether the degree of privacy interest which attaches for constitutional purposes to the contents of a locked automobile trunk is any less than the degree of privacy interest which attaches to closed but unlocked personal containers.9
More significantly, these cases have called into question the continued vitality of the Chambers principle that the seizure and impoundment of a vehicle is constitutionally no better than immediate warrantless search. Minjares makes the observation, referring to Justice Harlan's Dissenting opinion in Chambers, that “(a)n individual who prefers immediate search rather than the inconvenience of immobilization may always consent to an immediate search.” (24 Cal.3d at p. 423, 153 Cal.Rptr. at p. 231, 591 P.2d at p. 421.) Obviously this observation applies equally to an automobile. And in Arkansas v. Sanders, supra, the United States Supreme Court explained that Chambers principle, not on the basis of mobility or lesser privacy expectations, but on the ground that if the court in Chambers had required seizure and holding of the vehicle, the result would have imposed a burden upon police departments to provide the people and equipment necessary for transportation of the vehicle as well as secure facilities for its impoundment. (—- U.S. at p. ——, 99 S.Ct. at p. 2594, 61 L.Ed.2d at p. 246, fn. 14.) In this case, people, equipment, and secure facilities were readily available, as evidenced by the fact that the vehicle was immediately impounded after the initial search. The only factor relevant to the rationale of the Sanders explanation is that by searching the vehicle immediately the police officers stood a chance (if nothing incriminating had been discovered in the trunk) of saving the public the cost of the resources involved. Whether such a potential saving is sufficient basis for determining the existence of a constitutional right seems doubtful.10
Finally, we note that several recent Court of Appeal decisions appear to require a significant degree of urgency as justification for the warrantless search of a car trunk and to consider the availability of impoundment as an alternating negating exigency. In People v. Jochen, supra, 46 Cal.App.3d 243, 119 Cal.Rptr. 914, for example, police officers acting on information about a burglary stopped a vehicle, and arrested its occupants and handcuffed them. Upon reaching into the vehicle to turn off the ignition, one officer saw the handle of a firearm protruding from under a seat, removed it and discovered it was loaded. The police, purportedly looking for the registration certificate, opened the glove compartment and discovered in plain sight items of jewelry later identified as the fruits of the burglary. They then opened the trunk of the vehicle and discovered other fruits of the burglary and a wrench. Finding “neither probable cause or urgency to support the search of the glove compartment and no urgency to support the search of the trunk,” the court noted “the record indicates not only that both occupants were under arrest and handcuffed outside of the vehicle, but that a substantial number of officers were present, so that, as in People v. Koehn (1972) 25 Cal.App.3d 799, 102 Cal.Rptr. 102 . . . , There was no reason to suspect that the car would not remain safely in police custody until it was impounded and removed to the police garage, and a warrant was obtained.” (Id., at pp. 247-248, 119 Cal.Rptr., at p. 916, emphasis added.) While in Jochen there was no evidence of persons other than those arrested who might have an interest in the automobile, and the case is therefore arguably distinguishable on that ground, the court, in People v. Wright (1977) 72 Cal.App.3d 328, 345, 140 Cal.Rptr. 98, 107 relied upon Jochen and its reasoning to invalidate the warrantless search of a glove compartment where one occupant “had disappeared and the search for him was under way.” Quite recently, the same court decided People v. Gott (1979) 100 Cal.App.3d 1, 160 Cal.Rptr. 307, in which police officers searched an automobile trunk for marijuana. While finding that probable cause existed within the meaning of Wimberly, supra, the court stated: “However, in the many cases in this state involving searches of automobile trunks that we have discovered, including Wimberly, there were only one or two officers involved. Here there were six officers surrounding the car, the occupants were under arrest, and the officer testified that there existed no ‘particular’ emergency for the search that took place. It is emphasized in all of the cases that automobile searches are justified, as an exception to the usual requirement of a warrant, only if there is an emergent reason for the search. Where the car would otherwise be left unattended, or there is other legitimate reason to believe that it would be moved or tampered with while a warrant was obtained, the courts have permitted automobile searches, and as in the cases discussed and distinguished in Wimberly, searches of a trunk. But where, as here, there are a substantial number of officers, amply sufficient to permit a car safely to be impounded and held inviolate while a warrant is obtained, the reason for the exception does not exist. The proper, and only legitimate, procedure, in such a situation is to impound and secure a warrant. (P) Although involving containers and not automobile trunks, we regard the recent decisions of the Supreme Court in People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514 . . . , and in People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467 . . . , as dictating the result here. The same considerations of privacy, and the same lack of emergent necessity, exist here as existed in those cases.” (Id., at pp. 3-4, 160 Cal.Rptr., at p. 308, emphasis added.)11
The question presented is certainly not free from doubt. Dumas has never been expressly modified or overruled. The Supreme Court in Wimberly and Minjares made no mention of exigent circumstances for the search of an automobile trunk; and in Minjares the court viewed Chadwick as reaffirming the Chambers rule that “once an Automobile has been seized, a warrantless search is not significantly greater intrusion than immobilization.” (People v. Minjares, supra, 24 Cal.3d at p. 419, 153 Cal.Rptr. at p. 228, 591 P.2d at p. 518, emphasis added.) It is not surprising, under the circumstances, that Officer Kingsley should be uncertain as to what the law required him to do. (Cf. People v. Teresinski (1980) —-Cal.3d —-, 161 Cal.Rptr. 44, 605 P.2d 874.) We ourselves are hardly in a position to act with absolute certainty. Based upon the recent developments detailed above, however, we conclude that because the car could readily have been towed and impounded while a warrant was obtained, and because there was no substantial basis for believing that the car could not be safely held for the relatively brief period of time required to arrange for towing, there were no exigent circumstances to justify a warrantless search. Accordingly, we reverse.12
I respectfully dissent.
Based upon Gallego's information, Officer Avila's belief that Rodriguez' trunk contained PCP was objectively an eminently reasonable one, so that probable cause to search the trunk is amply demonstrated.
As to the requirement of exigent circumstances, I find the record replete with reasons why guarding the car while sending an officer to seek a warrant would have been a dangerously impractical course. (People v. Dumas (1973) 9 Cal.3d 871, 884, 109 Cal.Rptr. 304, 512 P.2d 1208.)
I also find myself persuaded that no greater intrusion results from the search of the trunk under these circumstances than would be the case if the car had been impounded, towed and later searched. (Chambers v. Maroney (1970) 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981-1982, 26 L.Ed.2d 419.)
1. While appellant also challenges the validity of the police officer's subsequent perusal into the contents of the paper bag, that challenge does not appear to have been made at the suppression hearing, and in any event we find it to be without merit. We need not determine for this purpose whether the paper bags, if “closed,” would qualify as “closed personal effects” within the meaning of the rule requiring warrants prior to the search of such containers. (People v. Minjares (1979) 24 Cal.3d 410, 423, 153 Cal.Rptr. 224, 591 P.2d 514; People v. Dalton (1979) 24 Cal.3d 850, 855, 157 Cal.Rptr. 497, 598 P.2d 467; cf. People v. Diaz (1980) —-Cal.App.3d —-, 161 Cal.Rptr. 645.) The evidence at the suppression hearing justified the implied finding of the trial court that the contents of the paper bag were in “plain view” when Officer Kingsley opened the trunk. (Cf. Arkansas v. Sanders (1979) 442 U.S. 753, 99 S.Ct. 2586, 2593, 61 L.Ed.2d 235, 245, fn. 13.)
2. Among the numerous articles which attempt to cast light in this murky area are: Moylan, The Automobile Exception: What It Is and What It Is Not A Rationale in Search of a Clearer Label (1976) 27 Mercer L.Rev. 981; Note, Warrantless Searches and Seizures of Automobiles (1974) 87 Harv.L.Rev. 835; Note, United States v. Chadwick and the Lesser Intrusion Concept: The Unreasonableness of Being Reasonable (1978) 58 Boston U.L.Rev. 436; Williamson, The Supreme Court, Warrantless Searches, and Exigent Circumstances (1978) 31 Okla.L.Rev. 110; Comment, Warrantless Automobile Searches and Seizures: The Chambers Immobilization Doctrine and its Abandonment in Colorado (1978) 50 Colo.L.Rev. 75.
3. See Haddad, Well-Deliniated Exceptions, Claims of Sham, and Fourfold Probable Cause (1977) 68 J.Crim.L. & C. 198, listing over 15 exceptions in current use.
4. The court in Carroll spoke of the background to the Fourth Amendment as “recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” (267 U.S. at p. 153, 45 S.Ct. at p. 285.)
5. See LaFave, Search and Seizure (1978) section 3.3 at pages 512-520; Note, Warrantless Searches and Seizures of Automobiles, supra, 87 Harv.L.Rev. 835, 844; Comment, Warrantless Automobile Searches and Seizures: The Chambers Immobilization Doctrine and Its Abandonment in Colorado, supra, 50 Colo.L.Rev. 75. It has been suggested that one explanation for Chambers was that it viewed the validity of the search as of the time of the initial arrest. (Note, Warrantless Searches and Seizures of Automobiles, supra; see also People v. Laursen (1972) 8 Cal.3d 192, 104 Cal.Rptr. 425, 501 P.2d 1145.) This approach has however, been repudiated in Arkansas v. Sanders, supra, 442 U.S. at pages ————-, 99 S.Ct. at pages 2592-2593, 61 L.Ed.2d at pages 244-245, requiring that the presence of exigent circumstances be determined at the time the search is made.
6. As indicia of this lesser expectation, the court referred to various observations made in prior cases: “ ‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view.’ Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 . . . (plurality opinion). Other factors reduce automobile privacy. ‘All States require vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways.’ Cady v. Dombrowski, supra, 413 U.S. (433), at 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706. . . . Automobiles periodically undergo official inspection, and they are often taken into police custody in the interests of public safety. South Dakota v. Opperman, supra, 428 U.S. (364), at 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000. . . .” (433 U.S. at pp. 12-13, 97 S.Ct. at p. 2484.)
7. Our state Supreme Court relied on the Chambers mobility rationale in People v. Laursen, supra, 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145, but in People v. Dumas (1973) 9 Cal.3d 871, 882-883, 109 Cal.Rptr. 304, 512 P.2d 1208, it emphasized the “less intense and insistent” expectation of privacy in automobiles as justifying more relaxed rules for warrantless searches. (See also People v. Minjares, supra, 24 Cal.3d at p. 418, 153 Cal.Rptr. 224, 591 P.2d 514.)Another line of California decisions has upheld warrantless searches of a utomobiles in certain situations on the ground that the automobile is “itse lf” evidence or an instrumentality of the crime. (E. g., People v. Teale ( 1969) 70 Cal.2d 497, 507-509, 75 Cal.Rptr. 172, 450 P.2d 564; North v. Supe rior Court (1972) 8 Cal.3d 301, 306, 104 Cal.Rptr. 833, 502 P.2d 1305; Peop le v. Rogers (1978) 21 Cal.3d 542, 549-550, 146 Cal.Rptr. 732, 579 P.2d 104 8.) As explained in People v. Minjares, supra, 24 Cal.3d at pages 421-422, 153 Cal.Rptr. 224, 591 P.2d 514, those cases have no application to the sea rch for objects contained within a vehicle.
8. E. g., People v. Jochen (1975) 46 Cal.App.3d 243, 247, 119 Cal.Rptr. 914; People v. Huff (1978) 83 Cal.App.3d 549, 559, 147 Cal.Rptr. 316; Jackson v. Superior Court (1977) 74 Cal.App.3d 361, 368, 142 Cal.Rptr. 299; People v. Superior Court (McCaney) (1978) 86 Cal.App.3d 366, 373, 150 Cal.Rptr. 227. But cf. People v. Remiro (1979) 89 Cal.App.3d 809, 827-828, 153 Cal.Rptr. 89; People v. Galosco (1978) 85 Cal.App.3d 456, 462, 149 Cal.Rptr. 407.
9. This court's decision in People v. Paul (1978) 78 Cal.App.3d 32, 46-48, 144 Cal.Rptr. 431, involved the search and seizure of items found in a car's interior, and is therefore distinguishable on its facts. We note also that it was decided prior to the recent developments described here.
10. It is arguable, of course, that it is desirable to have a clear-cut rule for the guidance of the police and the courts, either requiring a warrant in all cases or in none; but per se rules also have their problems. (See Williamson, The Supreme Court, Warrantless Searches, and Exigent Circumstances, supra, 31 Okla.L.Rev. 110.) In Arkansas v. Sanders, the court made clear that “the reach of each exception (to the warrant clause must be limited) to that which is necessary to accommodate the identified needs of society.” (—- U.S. at p. ——, 99 S.Ct. at p. 2591, 61 L.Ed.2d at p. 242.)
11. We note that the Supreme Court has denied hearing in Gott. We note also that in Dalton the Supreme Court cited with apparent approval People v. Koehn (1972) 25 Cal.App.3d 799, 102 Cal.Rptr. 102, a pre-Dumas case invalidating a trunk search for lack of exigent circumstances. (People v. Dalton, supra, 24 Cal.3d at p. 857, 157 Cal.Rptr. 497, 598 P.2d 467.)
12. In a petition for rehearing, respondent contends that our decision is contrary to controlling precedent. With that contention, for reasons set forth in our opinion, we do not agree. Respondent also contends our decision is inconsistent with sound policy and is counterproductive of its purpose. In that connection respondent argues (a) that sound policy requires a categorical rule authorizing warrantless searches of automobile trunks regardless of exigent circumstances, so as to enhance predictability of result and minimize the uncertainty which inevitably results from focusing upon the facts of a particular case; and (b) that in any event the exclusionary rule should not be applied to suppress evidence in a case such as this where the police officer acted in good faith in the context of uncertain legal principles. With respect to the second argument, respondent suggests that as an alternative to suppression the San Jose Police Department should be directed to examine this case and other cases in which evidence is suppressed due to an illegal search, in order to determine whether any officer involved has violated its rules governing police searches, and, if so, to report to the court concerning what disciplinary sanction has been imposed. (Cf. Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev.349, 416-429).The exclusionary principle is a much-troubled area of the law, and the subject of ongoing debate. It is generally recognized, we think, that the social costs entailed in the suppression of evidence pursuant to that principle are considerable; the question is whether there are other ways of implementing the plolicies of the Fourth Amendment which are less costly but still effective. Respondent is to be commended in that regard for the thoughtful and provocative suggestions contained in the petition for rehearing. They call, however, for changes in the law which, were we to consider them appropriate, are beyond our authority to adopt.
GRODIN, Associate Justice.
RACANELLI, P. J., concurs.