PEOPLE v. CARNEY

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Charles Richard CARNEY, Defendant and Appellant.

Cr. 11637.

Decided: March 18, 1981

George Haverstick and Thomas F. Homann, San Diego, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., and Beatrice W. Kemp and Bruce Daniel Rosen, Deputy Attys. Gen., for plaintiff and respondent.

After unsuccessful motions to suppress evidence (Pen.Code, s 1538.5)1 and to dismiss (s 995), defendant Charles Richard Carney pleaded nolo contendere to the charge of possession of marijuana for sale (Health & Saf.Code, s 11359). On this appeal he contends the evidence seized in his motor home was obtained by an illegal search and seizure (s 1538.5, subd. (m)). We conclude his contention is without merit and affirm the judgment.

In our review of the facts supporting the propriety of the court's action at the suppression hearing pursuant to a Penal Code section 1538.5 motion, we are guided by standards set down in People v. Superior Court (Keithley), 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.

“A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. (Citations.) The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings whether express or implied must be upheld if supported by substantial evidence. (Citations.)”

The record discloses the following events: Agents Robert Williams and Peralta of the Drug Enforcement Administration were following a suspected drug dealer near the Horton Plaza area of downtown San Diego when Williams first observed Carney. Williams' attention was drawn to Carney because “(h)e did not look like he fit in the area and he was approaching a Mexican boy and talking to him.” A few minutes later, Williams saw Carney and the youth who appeared to be under 18 walk to a nearby parking lot open to the public at Fourth and G Streets where they entered a Dodge mini-motor home parked in that lot. Williams wrote down the license number on the vehicle, then recalled receiving anonymous information by letter and by telephone from an organization known as WeTIP2 concerning this particular mini-motor home. WeTIP reported drugs were being disbursed from this mini-motor home and linked Carney as its driver with a Lee Bowman and a Louis A. Gonzalez. The letter stated all three men operated out of the Horton Plaza area and were involved in soliciting sex with young boys in exchange for narcotics.

This letter charged “They offer joints to young boys invited them over to the above address (the motor home) to watch porno films then attempts to have sex with them.” Williams was also informed from the same source that the curtains of the Dodge camper were closed during the activities for anywhere from 10 minutes to 2 hours.

Williams and Peralta, from their vantage point, could see Carney closing the curtains in the mini-motor home; a curtain was drawn across the front windshield, shielding all view from the outside. Williams called for additional units and began surveillance of the vehicle.

Approximately one hour and fifteen minutes later, the boy left the vehicle and began walking north on Third Avenue. Agents Williams and Peralta followed the boy and soon were joined by Agent James Clem, a narcotics agent with the San Diego Police Department. The three agents stopped the boy, identified themselves as narcotics agents, told him they were conducting a narcotics investigation, and asked him what he had been doing in the motor home. The boy identified himself as a juvenile and told the officers: “The older man had asked him to have sex with him and had given him a small bag of marijuana.” He had allowed “this older man to perform oral sex on him.” The boy took a small quantity of marijuana “out of his crotch and gave it to Clem later.”

The boy returned with the agents to the vehicle where he knocked on the door and asked Carney to step outside. Carney stepped out after the agents identified themselves.

Williams related, “Clem stepped one step up and looked inside to see if anyone else was in there.” He stepped “back out” and said “there is marijuana inside.” Clem testified for “safety reasons” he stepped in the motor home to check to see if there were any other occupants of the vehicle. Clem saw in plain view inside the camper a scale, a large bag of marijuana, a small bag of marijuana, and some ziploc bags on a table. The quantity of bulk marijuana, plus the packaging materials, led to the expert opinion that the marijuana was for resale.

Carney was placed under arrest. The mini-motor home was driven to the National City office of the Narcotics Task Force where it was subjected to a warrantless “inventory” search. This search disclosed additional marijuana in the refrigerator and in a cupboard of the vehicle.

DISCUSSION

I

Carney contends the warrantless entry and “search” of this vehicle and the seizures of the contraband (both the Clem entry and the later “inventory” search) violated the Fourth Amendment of the federal Constitution. The People justify Clem's entry into the vehicle for “safety reasons” and “to check for other occupants,” other suspects, and claim his observations, once entry was made for the lawful purpose, fall under the “plain view” doctrine. (See People v. Mack, 27 Cal.3d 145, 150, 165 Cal.Rptr. 113, 611 P.2d 454.)3

The controlling precedent is People v. Block, 6 Cal.3d 239, at page 243, 103 Cal.Rptr. 281, 499 P.2d 961, which enunciates the “plain sight rule” that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence. No “search” in the constitutional sense occurs under such circumstances.

The admissibility of the evidence so observed turns on the reasonableness of the officer's belief and acts in placing himself in a position where he could plainly see the contraband.

“(T)he reasonableness of an officer's conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. (Citation.) And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or ‘hunches,’ but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary. (Citations.)” (People v. Black, supra, 6 Cal.3d 239, 244, 103 Cal.Rptr. 281, 499 P.2d 961.)

Thus directed, our search here is for “specific and articulable facts” to support the officer's belief that additional suspects might be found inside the motor home.

Agent Clem was present at the questioning of the boy. The boy admitted possession of marijuana, an act of prostitution, engaging in a sex act for marijuana, and reported felony activities by Carney. Significantly, the boy told the officers “the older man” offered him the dope in return for sex acts. Thus we conclude Clem could reasonably infer there was more than one man inside the motor home. Clem had reason to check the vehicle to be sure no one else was present who might be a threat to their immediate safety, destroy the evidence, or drive away the motor home.

Additionally, Williams, the head of this team effort present and directing the entire operation resulting in Carney's arrest, had sufficient information to warrant the conclusion a second or third participant in this pot-for-sex operation might be present inside the camper. The anonymous source, just confirmed by the officer's observations of the activities of Carney, and also confirmed by the boy who was involved in the crimes inside the mini-motor home, named two other adult males, Bowman and Gonzalez, as users of this camper for their criminal activities. Whether one or both of these younger men were inside the camper could not be determined in view of the closing of the camper curtains. We do not know whether Officer Williams briefed Clem before his entry relative to Williams' information as to two other younger males using this camper as a site for trading marijuana for sex with young boys. If, however, we make the highly unwarranted assumption Agent Williams did not share his knowledge with Agent Clem, we still must examine the totality of this encounter and entry to determine the “reasonableness” of the entry made. The Fourth Amendment does not forbid all, but only unreasonable searches. (Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.) If we consider the knowledge of facts possessed by Officer Williams at the moment Clem looked into the camper, we could reasonably conclude a reasonable officer, situated as was Williams, would be warranted in believing his safety and that of his partners might be in jeopardy. Such conclusion would authorize Williams' entry into the camper at that time to ascertain whether one or both of the other reported users of the camper were inside. The fact that Clem moved too fast before being briefed by Williams, if that be the fact should not detract from the reasonableness of the entry made.

This was a team effort at surveillance, questioning and arrest directed by Williams. Clem came to the scene to assist and aid Williams. It would be most hypertechnical to insist each of the officers present and acting as a team had to be actually advised of all details in such a fast-moving investigation of this nature. The officers were not required to stop everything and convene a meeting. The law does not require such an unreal, unworkable rule for police team investigations.

The Federal Court of Appeals in United States v. Ragsdale (5th cir.) 470 F.2d 24 confronted a similar question. The seizure of a gun in an automobile was upheld as reasonable where the searching officer (Mullens) did not know all the facts authorizing entry possessed by the officer in charge of the team effort (Jones). The appeals court said:

“Had the exclusionary rule been effective to deter Mullens from making the search it would have almost instantaneously gone forward under Jones' (supervising officer) lawful direction.” (Pp. 30-31.)

(See also United States v. Romero (2d cir.) 249 F.2d 371, 374; State v. Sardo (1975) 112 Ariz. 509, 543 P.2d 1138, 1143; State v. Richards (1974) 110 Ariz. 290, 518 P.2d 113, 115.)

Agents Williams and Clem had probable cause to believe the camper contained contraband. It was the site of just committed felonies, the vehicle possibly contained other suspects and, unless the fact of their absence was immediately established, the safety of the officers could be endangered, the vehicle driven away and the evidence lost or destroyed. Thus, there was both probable cause and exigent circumstances present authorizing the warrantless entry into the camper for the limited view to determine the presence or absence of other persons (Wimberly v. Superior Court, 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417; People v. Odom, 108 Cal.App.3d 100, 106, 107, 166 Cal.Rptr. 283). The evidence in plain sight on such entry was properly admissible (People v. Mack, supra, 27 Cal.3d 145, 165 Cal.Rptr. 113, 611 P.2d 454; People v. Block, supra, 6 Cal.3d 239, 103 Cal.Rptr. 281, 499 P.2d 961).

II

Carney next argues the “automobile exception” (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, has no application here for the Dodge mini-motor home is in fact his “home” entitled to the full protection of the Fourth Amendment and therefore the Clem “entry” was unlawful.

In United States v. Williams (9th cir.) 630 F.2d 1322, at page 1326, the United States Court of Appeals examined the “automobile exception” to determine its applicability where the vehicle search was, as here, of a motor home. The federal court recognized that a motor home often has tinted windows, curtains, and other features which serve to differentiate it from an ordinary automobile where the contents and occupants are more exposed, generally to the public view and the expectation of privacy is substantially different. It nevertheless upheld the search as resting on a factual question whether exigent circumstances existed before the search. It held substantial evidence supported the trial court's resolution of that issue in favor of exigency.

The Supreme Court of Arizona has approved the search of a mobile home upon the “automobile exception” rationale. (State v. Sardo, supra, 543 P.2d 1138, 1143; see also State v. Million (1976) 27 Ariz.App. 490, 556 P.2d 338, 341, discussing cases and holding similarly before Court of Appeals, on rehearing, dismissed case as moot.) The Tenth Circuit in United States v. Miller (10th cir.) 460 F.2d 582, also upheld the search of a motor home without addressing the issue of the greater expectation of privacy factor finding the factual setting involved and the mobility of the vehicle provided ample support for a finding of exigent circumstances.

In Miller six large bags of marijuana (512 lbs.) were seized in the motor home. (See also United States v. Minton (4th cir.) 488 F.2d 37, search of back of van truck (cert. den. Minton v. United States, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287); and United States v. Gonzalez-Rodriguez (9th cir.) 513 F.2d 928, evidence seized in camper on back of truck.)

The “automobile exception” to Fourth Amendment rights is not limited to that type of vehicle (Coolidge v. New Hampshire, 403 U.S. 443, 461, 462, 91 S.Ct. 2022, 2035-2036, 29 L.Ed.2d 564). Nor does the word “mobile home” make unoperative those profound considerations which led to the more flexible meaning to be given the term “reasonable” when applied to “automobile” searches. (Carroll v. United States, supra, 267 U.S. 132, 45 S.Ct. 280, 285, 69 L.Ed. 543; Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235.) The fact that the mobile vehicle is also a motor home is but an additional factor possibly indicating a greater expectation of privacy, requiring additional facts beyond those authorizing search of a passenger vehicle under the “automobile exception” if the Fourth Amendment test of reasonableness is to be met. We conclude the mobility of the motor home, parked as it was on a public parking lot within three blocks of what might easily be described as the center of San Diego's downtown commercial center, coupled with the trial court's finding of exigent circumstances, authorized Clem's original entry and plain view observation. His act was reasonable in light of all of the circumstances. The reasonableness does not rest upon any technicality but on “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” (Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879.) The findings are supported by substantial evidence and we are bound to uphold them. (People v. Lawler, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621; United States v. Williams, supra (9th cir.) 630 F.2d 1322, 1327; People v. Diaz, 101 Cal.App.3d 440, 445, 161 Cal.Rptr. 645.)

III

The Search of Cupboard and Refrigerator

The vehicle here was also subjected to the later warrantless “inventory” search revealing the storage of additional marijuana. Vehicles vary in size and use. For example, a double-wide mobile home located in a mobile home park attached to water and sewer service obviously bears no resemblance to a mini-motor home or van located on the public street or in a public parking lot. The type of vehicle is significant. The cupboards and refrigerator searched are places where personal effects are placed for safekeeping and are obviously entitled to a greater expectation of privacy than the vehicle's general interior. They are, however, no different from the glove compartment or trunk of the automobile as built-in compartments in the vehicle for storing personal effects (see South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000). The compartments are thus quite different from more portable personal effects containers such as luggage. The courts of this state and of the federal government impose no higher level of exigency to permit a warrantless search of a trunk than is required to search other areas of the automobile (People v. Cook, 13 Cal.3d 663, 670, 119 Cal.Rptr. 500, 532 P.2d 148; People v. Dumas, 9 Cal.3d 871, 883-885, 109 Cal.Rptr. 304, 512 P.2d 1208; People v. Laursen, 8 Cal.3d 192, 201-202, 104 Cal.Rptr. 425, 501 P.2d 1145). Although a greater expectation of privacy normally is associated with the glove compartment or trunk than the more visible passenger compartment, no distinction is drawn in terms of exigency; the greater intrusion is justified rather upon a showing of probable cause relating to the specific compartment itself (see Wimberly v. Superior Court, supra, 16 Cal.3d 557, 567-568, 128 Cal.Rptr. 641, 547 P.2d 417).

The scope of an automobile search, like any other search, must be strictly tied to and justified by the circumstances occasioning it (see Terry v. Ohio, supra, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889). If a substantial quantity of marijuana is found inside the automobile or on the person of an occupant, it reasonably may be inferred additional contraband may be concealed in other compartments (Wimberly v. Superior Court, supra, 16 Cal.3d 557, 571-572, 128 Cal.Rptr. 641, 547 P.2d 417, citing People v. Gregg, 43 Cal.App.3d 137, 142, 117 Cal.Rptr. 496).

Here, the passenger compartment contained a table upon which there was a large bag and a small bag of marijuana and a scale, together with ziploc bags for packaging. The extensive operation from this camper would establish it as the central point of operations for at least three men involved in the pot-for-sex operation. There was every reason to believe more marijuana was involved than just that located on the table. A reasonable person would believe more was likely stored in the compartments of this vehicle the cupboards and refrigerator. Probable cause to conduct this further search of the vehicle clearly existed and the existence of exigent circumstances have already been established. The search was proper.

The fact the vehicle had been impounded and moved to a garage does not impose any greater necessity to obtain a search warrant where, as here, the probable cause to search and exigent circumstances are found to exist when the vehicle was first found (People v. Laursen, supra, 8 Cal.3d 192, 202, 104 Cal.Rptr. 425, 501 P.2d 1145; see also Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209; Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419). The intrusion is no greater than if the police had conducted the search immediately upon entering the vehicle (People v. Hill, 12 Cal.3d 731, 751-752, 117 Cal.Rptr. 393, 528 P.2d 1).

Judgment affirmed.

I concur with and endorse the succinct statement of facts and sound reasoning and conclusions expressed in the majority opinion sections I and II. I respectfully dissent, however, from the analysis made and disposition reached in section III. I would substitute the following:

A

The Search of Cupboard and Refrigerator

The motor home was also subject to the later warrantless search as distinguished from an entry to look for suspects. The motor home was without question designed for, intended to be used as living quarters. The cupboards and refrigerator searched are places where personal effects are placed for safekeeping. The living area of the motor home was equipped with bed, table, two chairs, refrigerator, cabinets, cupboards, draperies, curtains on side, rear and even the front windshield was covered, closed to public view. The furniture is upholstered. Albeit a mobile home with that critical quality of mobility, yet it is nonetheless a living quarters. Mobility plus the characteristics of a home are overwhelming, conceded facts of this case. We are not dealing with an automobile trunk or closed containers within a car but as a matter of fact with a “sanctuary in which his (Man's) freedom to escape from the intrusions of society is all but absolute.” (People v. Dumas, 9 Cal.3d 871, 882, 109 Cal.Rptr. 304, 512 P.2d 1208, fn. omitted.) Thus the reasonable expectation of privacy as to the cupboards and refrigerator within such a motor home is not to be measured by the degree of protection present in the search of an ordinary passenger compartment of a car or its trunk. Rather a cupboard or refrigerator in such a mobile home possesses all the indicia of a depository of personal effects to which a reasonable expectation of privacy has traditionally attached, and a warrant is required before any delving into such hidden places. (See People v. Diaz, 101 Cal.App.3d 440, 161 Cal.Rptr. 645; People v. Gott, 100 Cal.App.3d 1, 4, 160 Cal.Rptr. 307; People v. Minjares, 24 Cal.3d 410, 423, 153 Cal.Rptr. 224, 591 P.2d 514; People v. Dalton, 24 Cal.3d 850, 855, 858, 157 Cal.Rptr. 497, 598 P.2d 467.)

Here, despite its mobile character by whatever name it is called, this structure is still a species of home, albeit small, albeit on wheels. This is a place that in fact meets the requirements as a sanctuary in which the individual may seek freedom to escape from the intrusion of society. People v. Dumas, supra, 9 Cal.3d 871, 880, 109 Cal.Rptr. 304, 512 P.2d 1208; Interstate Commerce Commission v. Brimson (1894) 154 U.S. 447, 479, 14 S.Ct. 1125, 1134, 38 L.Ed. 1047.)

By whatever name called, such sanctuaries are held inviolate from warrantless search except in emergencies of overriding magnitude. People v. Dumas, supra, 9 Cal.3d at p. 882, 109 Cal.Rptr. 304, 512 P.2d 1208; People v. Sirhan, 7 Cal.3d 710, 738, 739, 102 Cal.Rptr. 385, 497 P.2d 1121; United States v. Williams (9th Cir.) 630 F.2d 1322.)

A single court has considered and distinguished the expectation of privacy of person traveling in an ordinary car and those traveling in a true motor home as distinguished from a van or car and held the expectation of privacy in the motor home to be “significantly greater” (p. 1326 of United States v. Williams, supra, 630 F.2d 1322) and observed: “(M)any, like the one in this case, have beds and fully equipped baths, making them in some sense more akin to a house than a car.” People actually can live in the motor home whereas people usually do not remain in an automobile unless it is going somewhere. (Ibid.)

The federal court refused to uphold the search on the basis of the “automobile exception,” but justified the search because of “the danger that, left unattended, chemicals used in the manufacture of PCP (known to be in the motor home) can ignite, explode, or emit hydrogen cyanide.” (Ibid.; italics added.) Thus the exigency justifying the search of a motor home was that which will authorize a warrantless entry into a home danger to life, fire, explosives, or the like.

Furthermore, to uphold the warrantless search here of the cupboards, refrigerator is to defy the rule against warrantless search of closed containers of “personal affects” when found within an ordinary vehicle. (People v. Dalton, supra, 24 Cal.3d 850, 856, 157 Cal.Rptr. 497, 598 P.2d 467; Arkansas v. Sanders, 442 U.S. 753, 763-764, 99 S.Ct. 2586, 2592-2593, 61 L.Ed.2d 235, 244-245.) People v. Minjares, supra, 24 Cal.3d 410, 423, 153 Cal.Rptr. 224, 591 P.2d 514. The cupboard and refrigerator are not only “closed containers” but they are located within a structure that patently and without doubt appears like, has the uses of a home.

Finally, there is no facts in this record to hint at any emergency even resembling and akin to that in United States v. Williams, supra, justifying the entry into the closed places refrigerator/cupboard each having all of the indicia of a repository for personal effects to which a reasonable expectation of privacy attaches.

Moreover, the exigency authorizing the limited-in-scope entry by Clem evaporated when Clem looked inside and found his fear unwarranted. The motor home was empty; the emergency circumstances vanished. These events took place within a few hundred yards of the courthouse; the courts were open, many magistrates available, on duty, able to issue the requisite search warrant. (See People v. Piper, 103 Cal.App.3d 102, 107-108, 162 Cal.Rptr. 833.)

In light of all the circumstances, I would conclude the warrantless search conducted into the cupboard and refrigerator was unreasonable and the fruits thereof should have been suppressed.

B

Such reasoning, however, does not automatically require reversal for there remains here admissible evidence a commercial quantity of bulk marijuana, scales and ziploc bags that justify the plea here. This question must first be answered: Does the harmless error rule authorize affirmance despite an erroneous failure to suppress a portion of the evidence seized?

The Supreme Court in People v. Hill, 12 Cal.3d 731, 767-770, 117 Cal.Rptr. 393, 528 P.2d 1, held an erroneous ruling on a motion to suppress, followed by a guilty plea,1 precluded the appellate court from attempting to assess the prejudicial effect of the error. The Supreme Court stated (at p. 769, 117 Cal.Rptr. 393, 528 P.2d 1):

“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.” (Fn. omitted.)

In People v. Rios, 16 Cal.3d 351, 128 Cal.Rptr. 5, 546 P.2d 293, the police first made a lawful seizure of some 5,000 amphetamine pills but then illegally seized an additional 13,500 similar pills. The trial court erroneously denied the motion to suppress the 13,500 pills. Rios pleaded guilty to one count of possession of amphetamines. The Supreme Court reversed, holding:

“The evil of an attempt to measure the prejudice which an accused may suffer in the posture of this case derives from the speculation in which the appellate court is compelled to engage in an effort to determine prejudice. (Fn. omitted.) In the circumstances here, for instance, had the motion been properly treated, defendant would have been confronted with a charge that he possessed amphetamines grounded on a single seizure of 5,000 pills, rather than on multiple seizures totaling 18,500 pills. Although the evidence now (italics in orig.) before us supports a conviction of possession of the 5,000 pills for sale, we cannot assess the possibilities of defendant's defenses to that single alleged unlawful possession. The suppression hearing afforded an opportunity to challenge only the propriety of the seizure; defendant has had no opportunity to present unrelated evidence, such as that he lacked knowledge or dominion and control of the 5,000 pills if there are facts which support such a defense. Because we cannot measure the prejudice suffered by defendant without engaging in impermissible speculation, he is entitled to be restored to the position he would have enjoyed had the court properly ruled on the motion in the first instance.” (Id., at pp. 358-359, 128 Cal.Rptr. 5, 546 P.2d 293, italics added.)

Justice Clark concurred in the judgment, saying: “(I)n the circumstances of this case, as in Hill, prejudice cannot be assessed.” (Id., at p. 359, 128 Cal.Rptr. 5, 546 P.2d 293.)

The Hill rule requiring reversal in “all cases” (People v. Rios, supra, p. 358, 128 Cal.Rptr. 5, 546 P.2d 293) has been uniformly followed. However, the rule was criticized in People v. Salazar, 93 Cal.App.3d 912, 156 Cal.Rptr. 125, where the facts were remarkably similar to those in Rios, supra. In Salazar some 50 capsules were properly admitted. They were spilled on a public sidewalk when Salazar threw a bag containing 300-plus capsules into his apartment. The 300 remaining capsules were seized after an entry into the apartment. In Salazar the court questioned whether “there (was) some limit to the (Hill ) rule that any erroneous ruling on a motion to suppress, followed by a guilty plea, precludes the appellate court from attempting to assess the prejudicial effect of the error.” (Id., at p. 914, 156 Cal.Rptr. 125.)

The Salazar court then observed:

“As far as this case is concerned, try as we might, we cannot conceive of a reason, strategic, tactical or hunch-based, why defendant might have thought he had a defense to these charges which was in any way affected by the 300 pills recovered from the balcony. As noted the uncontradicted evidence is that those 300 pills came out of the same bag as the 50 which were recovered from the sidewalk.”

“Hill and Rios teach us that the application of the harmless error concept in the context of an erroneous refusal to suppress part of the prosecution's case, followed by a guilty plea, involves ‘an unacceptable degree of appellate speculation.’ (Citation.) This very rationale presupposes that there is something to speculate about. (Fn. omitted.) Where, as here, the appellate court cannot conceive of a rational basis for concluding that the guilty plea was triggered by the erroneous refusal to suppress some of the prosecution's evidence, the reason for the rule disappears. In this connection it is worth pointing out that even had the physical evidence recovered from the balcony been suppressed, its substance would still have been admissible. Nothing could have stopped Deputy Martinez from testifying, as he did at the motion to suppress, that the bag from which defendant was dealing was ‘filled out’ and that he estimated that there were somewhere between 400 and 500 pink capsules inside it.” (Id., at p. 915, 156 Cal.Rptr. 125.)

The Salazar appraisal of the Hill-Rios rule is at best dicta for the appeal court “reached no conclusions concerning the legality of the seizure of the 300 pills.” (Id., at p. 914, 156 Cal.Rptr. 125.)

While Rios states flatly that the judgment “must in all cases be reversed” (16 Cal.3d p. 358, 128 Cal.Rptr. 5, 546 P.2d 293), yet just the uttering of words of such sweep causes an involuntary shortening of the judicial breath.2 However, I am unable factually to distinguish Rios, from the case at bench. Under compulsion of the rule as applied in Rios supra, I conclude that Carney is entitled to have the judgment of conviction set aside. (Auto Equity v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.) In such event, the People could, if they choose, effect a reinstatement of all the charges originally contained in the information. In view of the fact that the bags of marijuana, scales and ziploc bags would be admissible if defendant were to be retried, he should not be foreclosed from the election to be bound by the judgment and thus not subject himself to trial on all of the original counts changed in the information.

I would reverse the judgment and remand the cause to the trial court with the following direction: Upon the defendant's motion therefor within 30 days of the finality of the decision herein, the trial court shall vacate the guilty plea, reinstate all charges contained in the information and proceed to trial or to make other appropriate disposition. If defendant should not so move within the 30-day period and duly waive his right to so move, the trial court should be directed to reinstate the judgment.

FOOTNOTES

1.  All references are to the Penal Code unless otherwise specified.

2.  WeTIP stands for “We Turn In Pushers.” The organization has set up telephone services to enable individuals to call and anonymously provide information about drug dealers. WeTIP then relays this information to the nearest law enforcement agency. The organization is known to the drug enforcement agency; its informants are not.

3.  Agent Clem and ultimately Agent Williams describe an actual entry as distinguished from a mere looking in from the outside into the camper before the crucial observations were made by Clem of the contraband.

1.  A nolo contendere plea was entered by Carney. There is no legal significance here in the different form of plea.

2.  In certain factual situations, the blind acceptance of the Hill-Rios rule leads to an absurd, unnecessary time wasting result on an issue having nothing to do with the fact of the defendant's guilt or innocence. For example, assume a lawful plain view seizure of 100 kilos of marijuana and an illegal seizure of 1/2 ounce of the contraband in the refrigerator followed by a plea to possession for sale. Is there an unacceptable degree of appellate speculation involved as to the basis for the guilty plea? In such factual matrix, clearly there is nothing to speculate about. (See also People v. Punchard, 103 Cal.App.3d 995, 998, 999, 163 Cal.Rptr. 366, for a further factual exception).

COLOGNE, Acting Presiding Justice.

KILGARIF, J. (Assigned by the Chairperson of the Judicial Council), concurs.

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