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

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF ALAMEDA, Respondent;

Eldridge CLEAVER, Real Party in Interest. Leroy Eldridge CLEAVER, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF ALAMEDA, Respondent; PEOPLE of the State of California, Real Party in Interest.

Civ. 41199 and Civ. 41132.

Decided: October 31, 1977

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for petitioner/real party in interest, State of California. Marcus S. Topel, John W. Keker, Kipperman, Shawn, Keker & Brockett, San Francisco, for real party in interest/petitioner, Eldridge Cleaver.

These consolidated matters are before the court on cross-petitions for writ of mandate that each seek review of rulings adverse to the respective petitioner in connection with the accused's motion to suppress evidence. (See Pen.Code, s 1538.5, subds. (i) and (o ).) They involve the constitutional validity of three searches conducted by the Oakland Police Department on April 7, 1968. At a hearing in the respondent court, a search of the basement of a residence, which occurred at approximately 8 a. m., and a contemporaneous search of an automobile were held invalid, and evidence obtained during those searches was ordered suppressed as evidence at the trial of defendant. The People seek mandamus compelling the respondent court to reverse its ruling as to the admissibility of the evidence seized during these two searches. At the same hearing, the respondent court ruled that an earlier search of the same basement at about 2 a. m. was without constitutional fault, and that certain evidence seized during that search was admissible at the defendant's trial. He seeks mandamus to compel the respondent court to reverse its ruling as to the admissibility of evidence seized during that search.

The People, in support of the favorable ruling on the early morning search and in attacking the adverse ruling on the later search of the basement, contend that the defendant has no standing to challenge those searches; and that, in any event, neither Cleaver nor the owner of the premises had a reasonable expectation of privacy in the basement, and that therefore the searches were reasonable and lawful under the circumstances of the case. The defendant below insists that he had standing to question the validity of both searches of the basement, and that the trial court erred in sanctioning the warrantless search in the early morning hours. With respect to the search of the automobile, the People claim that defendant's attack on the validity of the search is foreclosed by a decision in another case, and that in any event there was probable cause to impound and search the vehicle without a warrant.

Except as noted below (see part I-A), the facts are not disputed. The People refer to “The Undisputed Facts” in their petition, and the defendant in his petition states, “The significant facts are not in dispute.” The scope of our review has been defined as follows: “In such a proceeding (under section 1538.5 to suppress evidence) 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. The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution. Although that issue is a question of law, the trial court's conclusion on the point should not lightly be challenged by appeal or by petition for extraordinary writ. Of course, if such review is nevertheless sought, it becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.” (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 15, 507 P.2d 621, 623. See also Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 636, 108 Cal.Rptr. 585, 511 P.2d 33; People v. Manning (1973) 33 Cal.App.3d 586, 598-599, 109 Cal.Rptr. 531.) In view of the record in this case we test the uncontradicted facts and the inferences therefrom in favor of defendants against the constitutional standards of reasonableness.

We conclude for reasons set forth below, that the question of standing to sue is not fairly presented by the record, and that in any event both searches of the residence were reasonable under the circumstances. The articles found in the automobile have been found to have been properly seized by the police by a decision of this court with respect to the rights of others who respectively owned and had dominion over the vehicle. Although the extent to which this defendant may vicariously attack that finding has been questioned, we have reexamined the circumstances surrounding the seizure and search of that vehicle as revealed by this record. We conclude that, in any event, the search of that vehicle was, as has been adjudicated, proper.


We first address the searches of the residence. The facts are set forth as they appear in the defendant's motion to suppress, as stipulated to by the district attorney, and as revealed by the testimony and stipulations adduced at the evidentiary hearing on the motion to suppress. The People's contention that all matters reflected in the testimony before the grand jury should have been considered by the trial court is discussed below.

The defendant is charged with three counts of attempted murder, and three counts of assault with a deadly weapon upon police officers. The charges stem from an alleged assault on two officers, Darnell and Jensen, at approximately 9 p. m. on April 6, 1968, on the street near 2905 Union Street in Oakland, and from a second incident about a block away when the defendant and a companion were besieged in the basement of 1218 28th Street.

At approximately 9 p. m. on April 6, 1968, officers Darnell and Jensen of the Oakland Police Department were on patrol in the vicinity of 2095 Union Street, Oakland, California. The officers reportedly had been given an assignment on Union Street, but when they drove up gunfire erupted before they even got out of the car. Both officers were wounded, and a gun battle ensued as other Oakland officers were summoned to the scene and effectively sealed off the area.

Six unnamed persons (who subsequently became co-defendants) were arrested, and the defendant and his companion were trapped in the basement of the residence at 1218 28th Street. The residence belonged to Nellie Pierre, who was carried from the house by police officers during the 90 minute period during which police laid siege to the basement where the two were cornered. The defendant was subsequently arrested, at about 11 p. m., after tear gas cannisters had set the residence afire and driven him and his companion from the basement. The companion was killed in the course of making the arrest.

Police technicians McCurdy and Hussey arrived at the scene after the arrest, at about 11:30 p. m.; the area had already been cordoned off and sealed. At the time of arrival, firemen were in the process of completing their duties of putting out the fire. Officer McCurdy and Officer Hussey put on gas masks while the firemen were in the mopping up process and entered the basement. It was very difficult to see anything through the gas mask and there was a large amount of tear gas in the building, so they left the basement and waited for the tear gas to subside and for the smoke to subside.

After the first entry, the officers were aware that there were no additional persons or hostages within the basement.

The officers reentered the premises at about 2 a. m. when the gas had partially cleared; the purpose of the reentry was primarily to look for physical evidence. When they reentered the premises, they saw a burnt AR-15 rifle in the rubble, and photographed and recovered it.

At the time they were in, the tear gas was still quite strong and they were crying. In fact, their eyes were watering and burning. They looked around briefly while they were in there. They also removed a tear gas cannister that was still alive, and put it in the bomb disposal box. Later it was disposed of by the bomb squad at the airport.

Since they had not been able to conduct a thorough search because of the conditions, they secured the area, sealed it off with an officer on guard. Then they went about other duties at that time.

In addition to the partially burned AR-15 rifle, the officers recovered five spent cartridge casings and three unfired .223 caliber shells during the 2 a. m. search.

Later, at about 7 a. m., Sergeant Reed arrived and was assigned to search the basement for evidence. At about 8 a. m. he entered the basement. There was about three inches of water on the floor and the basement was all charred, dirty, just a rubble of stuff. There was still smoke and a residue of tear gas in the air.

Moore observed a sleeve or collar of a jacket protruding above the murky (opaque) water and then began digging about in the water. Two jackets, ammunition and other miscellaneous items in the jacket pockets were recovered, as well as pocket cartridge belts.

The People stipulated that there was no search warrant for any of the entries and searches of the basement; neither was there evidence of express consent by the residence for the searches.


In his notice of motion defendant, after stating the grounds for the motion, recited: “This motion will be based on this Notice of Motion and the Memorandum of Points and Authorities in Support hereof served and filed herewith, the transcript of the Grand Jury proceedings, all pleadings, records, and files in this case, and upon the evidence to be presented at the hearing of this motion.” (Emphasis added.)

The points and authorities submitted by defendant in support of the motion were preceded by the recitation, “Unless otherwise noted, all facts are from the Grand Jury Transcript.”

On March 21, 1977, an evidentiary hearing was conducted and witnesses appeared and testified. The matter was then put over until March 29 to allow the parties time to prepare and file argument.

On March 24, 1977, district attorney filed points and authorities in opposition to defendant's motion, relying upon “the transcript of the Grand Jury proceedings.” Defendant filed a reply on March 28, 1977, stating for the first time that facts outside the hearing record of March 21 were not to be relied upon.

On March 29 the parties appeared for oral argument. The district attorney made it clear that it was the understanding of the prosecution that the record consisted of “the transcript of the Grand Jury proceedings, all pleadings, records, and files from the case (and) upon evidence to be presented at the hearing of this motion.” Defendant's attorney insisted, without contradiction, that the validity of the search of the automobile had been submitted on stipulated facts. (See part II below.)

At that juncture in the proceedings the issue of whether the defendant was a trespasser in Ms. Pierre's residence was raised. His attorney took the position that the burden lay on the prosecution to justify a warrantless search, and that there was no evidence to show that the defendant was a trespasser, or that he was not in the basement legitimately either with the consent of the owner, or as one seeking shelter in self-defense of his person, so that he was entitled to California's vicarious standing rule to object to introduction of evidence seized from those premises. The following colloquy ensued. In response to the court's inquiry, the district attorney stated, “Perhaps I miss, perhaps I miss something in this whole hearing. Is counsel saying that the Grand Jury proceedings, which he says in his motion are part of the record here are not part of the records here?” The attorney for the defendant answered: “They were the bases upon which we sought this motion. The record though, is the record sought at the evidentiary hearing, the record is what was presented in evidence here. That's precisely correct.” The court observed, “I think that's right . . . That was my understanding.” The district attorney stated, “Well, it is my understanding,” and the defense attorney interjected, “And that was my understanding from our discussion off the record.”

The district attorney then said, “Well, that wasn't my understanding. My understanding was that I took the motion at face value and I called witnesses to show certain circumstances of the search, which I thought needed supplementation from the Grand Jury transcript. If there is a problem on what his status there was, perhaps we would put on evidence of that, if the Court thinks it is necessary.”

The court never responded to the suggestion of the district attorney, and no motion for a continuance of the hearing was ever made. The Attorney General states in his petition that he contacted the respondent superior court judge who stated that he did not consider the grand jury transcript to be before him in connection with the motion to suppress.

In their petition the People urge that we either consider the evidence from the grand jury hearing because it was in fact stipulated to by the district attorney's acceptance of the statement in defendant's motion, or that we remand the proceedings for further hearing.[FN1] Subdivision (c) of section 1538.5 of the Penal Code provides: “Whenever a search or seizure motion is made in the municipal, justice or superior court as provided in this section, the judge or magistrate shall receive evidence on any issue of fact necessary to determine the motion.” In Thompson v. Superior Court (1968) 262 Cal.App.2d 98, 68 Cal.Rptr. 530, the court discharged an alternative writ and denied a petition under subdivision (i), for lack of a proper record. The court stated: “It also seems clear that the judge who hears the motion ‘shall receive evidence on any issue of fact necessary to determine the motion’ (subd. (c)), including, of course, the transcript of the preliminary hearing.” (262 Cal.App.2d at p. 103, 68 Cal.Rptr. at p. 533.) The foregoing language it later qualified as follows: “The petition alleges that pursuant to the stipulation of the parties the motion was ‘heard and determined upon the basis of the preliminary examination transcript.’ To have any validity, such an oral stipulation must be entered in the minutes of the court or must at least be reflected in the transcript of the proceeding. (Citation.) No such stipulation is entered in the minutes of the court.” (Id., p. 105, 68 Cal.Rptr. at p. 534.)

It is now established that absent a stipulation, neither the People nor the defendant can present the testimony taken at the preliminary examination at the superior court hearing to exclude evidence unless the provisions of Evidence Code section 1291 governing the use of former testimony are met. (People v. Baldwin (1976) 62 Cal.App.3d 727, 732, fn. 3, 133 Cal.Rptr. 427; People v. Cagle (1971) 21 Cal.App.3d 57, 60, 98 Cal.Rptr. 348 (setting forth the record to be made in detail); Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927-928, 85 Cal.Rptr. 493.) We therefore reject the invitation to consider the testimony in the grand jury transcript.

We note, however, that in People v. Cagle, supra, the court commented, “(E) very motion should state the grounds upon which it is made (citation), as well as the records relied upon to support it, . . .” (21 Cal.App.3d at p. 61, 98 Cal.Rptr. at p. 350.) Here the district attorney was entitled to rely upon the defendant's statement in his notice of motion filed February 22, 1977, that his motion would be based on, among other records, “the transcript of the Grand Jury proceedings.” No mention was made of the grand jury transcript in connection with the evidentiary hearing March 21 on the 1538.5 motion, but the use of the same language in the district attorney's response filed March 24 could be deemed in effect a stipulation that the court should consider that record. It is true that the defendant denied any such understanding in argument on March 29, and the court left the matter up in the air. On that record, if we were not otherwise upholding the validity of the searches, we would be constrained to follow Hewitt v. Superior Court, where the court noted, “In the present case the motion (to suppress) is to be granted on a procedural ground (the erroneous admission over objection of the transcript of the preliminary hearing) and not on the merits; the People will therefore not be precluded from presenting competent evidence at trial bearing on the lawfulness of the search.” (5 Cal.App.3d at p. 929, 85 Cal.Rptr. at p. 496; and see s 1538.5, subd. (j). Note also Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 544-545, 106 Cal.Rptr. 452.) It is true the People will not be relieved if they fail to present all known relevant evidence on a motion to suppress because of haste and inadvertence, since there is no good cause under subdivision (j). (Madril v. Superior Court (1975) 15 Cal.3d 73, 75, 123 Cal.Rptr. 465, 539 P.2d 33. See also Lorenzana v. Superior Court, supra, 9 Cal.3d 626, 640, 108 Cal.Rptr. 585, 511 P.2d 33.) Here on the other hand, where misunderstanding was engendered by proceedings taken by the defendant, there is such good cause. The search for the nature of the true facts upon which the validity of the searches will depend, should not be shackled by the procedural shifts reflected in this record.


Defendant acknowledges that a shoot-out occurred on the evening of April 6, 1968, between the hours of 9 and 11 p. m. between the Oakland police and certain members of the Black Panther Party, and that during the shoot-out he and his companion took refuge and were trapped by a police siege in the basement of a residence, from which the owner had been evacuated by the police during the siege and apparently before a resulting fire. The People claim that since the defendant broke into the basement he has no standing to challenge the search based on the residence owner's right of privacy. The defendant insists he is entitled to assert the Fourth Amendment rights of the property owner whether he was on the property legally or not. He also claims that even if there were an exception that applies to one charged with a crime against the property owner, here the owner was not victimized by the defendant's having taken refuge in her basement, but by the overreaction of the police in seeking to arrest him.[FN2] He points out that the record (see part I-A above) does not establish that he failed to lack consent to be on the premises; and that in any event, if there was no consent, his trespass on the premises was justified by the necessity of protecting his life and limb from the use of unjustifiable force by the police who were seeking to apprehend him. (See 1 Rest.Torts 2d (1965) s 197, and comments a, b, c, and d, pp. 355-357.) We summarily reject the concept that the defendant was on the premises with the consent of the owner, because the facts established solely by the record in these proceedings fail to permit the inference that such was the case. Moreover, those facts show that on the basis of police reports, the authenticity of which was not questioned, there was probable cause to arrest defendant and his companion for the felonious assault which allegedly preceded and precipitated the further action. At best the defendant can be considered as one taking refuge from execution of the lawful processes of the law.

It is clear that the Fourth and Fourteenth Amendments of the United States Constitution do not require suppression of the evidence seized in the property owner's basement. In Brown v. United States (1973) 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208, a unanimous court reviewed prior decisions and concluded, “In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.” (411 U.S. at p. 229, 93 S.Ct. at 1569. See also Alderman v. United States (1969) 394 U.S. 165, 171-176, 89 S.Ct. 961, 22 L.Ed.2d 176 (evidence secured by unlawful wiretapping or eavesdropping may only be suppressed on application of person aggrieved). Cf. Mancusi v. DeForte (1968) 392 U.S. 364, 367-370, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (defendant may object to unlawful seizure of employer's papers at the office furnished him by his employer); Jones v. United States (1960) 362 U.S. 257, 259-267, 80 S.Ct. 725, 4 L.Ed.2d 697 (invitee or guest may object to unlawful search of host's apartment); and United States v. Jeffers (1951) 342 U.S. 48, 52, 72 S.Ct. 93, 96 L.Ed. 59 (to same effect). Note Simmons v. United States (1968) 390 U.S. 377, 389-394, 88 S.Ct. 967, 19 L.Ed.2d 1247.) In Alderman v. United States, supra, the court stated: “The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” (394 U.S. at pp. 171-172, 89 S.Ct. at 965.) Since the defendant seeks sanctions for the warrantless searches of the basement of the homeowner, and claims no ownership or right to possession of those premises[FN3] he must look to state law to establish his right to relief. (See People v. Norman (1975) 14 Cal.3d 929, 938-989, 123 Cal.Rptr. 109, 538 P.2d 237; and People v. Brisendine (1975) 13 Cal.3d 528, 548-552, 119 Cal.Rptr. 315, 531 P.2d 1099.)

In People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855, the court rejected the prosecution's contention that since the defendant disclaimed any interest in the premises searched and the property seized, his constitutional rights could not have been violated, and he therefore had no standing to challenge the legality of the search and seizure of the premises where he was arrested. The court concluded, “Since all of the reasons that compelled us to adopt the exclusionary rule are applicable whenever evidence is obtained in violation of constitutional guarantees, such evidence is inadmissible whether or not it was obtained in violation of the particular defendant's constitutional rights.” (45 Cal.2d at p. 761, 290 P.2d at p. 857. See also People v. Gale (1973) 9 Cal.3d 788, 793, 108 Cal.Rptr. 852, 511 P.2d 1204 (bystander's objections to search of cars in parking lot); Kaplan v. Superior Court (1971) 6 Cal.3d 150, 155-157 and 160-161, 98 Cal.Rptr. 649, 491 P.2d 1 (LSD vendor's objection to illegal arrest of purchaser who, when granted immunity, testified against vendor); People v. Eastmon (1976) 61 Cal.App.3d 646, 651, 132 Cal.Rptr. 510 (objection to search of informant's home, found irrelevant to informant's subsequent purchase and testimony); People v. McKunes (1975) 51 Cal.App.3d 487, 492, fn. 2, 124 Cal.Rptr. 126 (vendor of stolen property to unlawful seizure of telephone company records of purchaser); Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 542-543, 106 Cal.Rptr. 452 (rule analyzed in connection with suppression of evidence obtained under warrant after three hours uninvited occupancy of apartment pending obtaining of warrant); People v. Jackson (1967) 254 Cal.App.2d 655, 659, 62 Cal.Rptr. 208 (objection to search of codefendant's truck); and People v. Gonzales (1960) 186 Cal.App.2d 370, 375, 9 Cal.Rptr. 21 (objection found unwarranted to search of alleged vendor's companion).)

Decisions under the provisions of section 844 of the Penal Code, which require a peace officer to demand admittance and explain the purpose for which admittance is desired before breaking open a door or window of a house to make an arrest, support the People's position that a trespasser is not entitled to assert the householder's right to be free from unreasonable searches and seizures. In People v. Solario (1977) 19 Cal.3d 760, 139 Cal.Rptr. 725, 566 P.2d 627, the court concluded, “We hold that a police officer, having probable cause to believe a residence is being burglarized, need not comply with the ‘knock and notice’ requirements of Penal Code section 844 before entering to arrest the burglar. As we demonstrate below, consideration of the purposes for section 844 must lead to his conclusion, as the Court of Appeal recognized nearly a decade ago. (See People v. Ortiz (1969) 276 Cal.App.2d 1, 5, 80 Cal.Rptr. 469; People v. Sanchez (1969) 2 Cal.App.3d 467, 473, 82 Cal.Rptr. 582)” (19 Cal.3d at p. 762, 139 Cal.Rptr. at p. 726, 566 P.2d at p. 628. See also People v. Cook (1977) 69 Cal.App.3d 686, 690, 138 Cal.Rptr. 263 (hg. den. Aug. 6, 1977).) Here it is not contended that the defendant and his companion were burglarizing the basement of the residence in which they took refuge, but it is asserted that they were trespassers. In that connection People v. Ortiz, which was cited with approval by the Supreme Court, contains language that is controlling. There the court stated: “Since the officers had no reason to believe that there would be any lawful occupant in the house it was also entirely reasonable for them to conclude that any person living inside the house was a trespasser. Penal Code section 844 is not to be used to protect a trespasser's right to privacy in someone else's home. A trespasser or a burglar cannot make another man's home his castle.” (276 Cal.App.2d at p. 5, 80 Cal.Rptr. at p. 472.) In People v. Sanchez, supra, the same rule was applied to “prowler.” (2 Cal.App.3d 467, 472-473, 82 Cal.Rptr. 582. See also People v. Medina (1968) 265 Cal.App.2d 703, 707-708, 71 Cal.Rptr. 586 (car thieves); and note People v. Maltz (1971) 14 Cal.App.3d 381, 395, 92 Cal.Rptr. 216 (trespasser).)

With respect to the right of a burglar to claim the benefit of the so-called “vicarious exclusion rule” (see Kaplan v. Superior Court, supra, 6 Cal.3d at p. 160, fn. 8, 98 Cal.Rptr. 649, 491 P.2d 1) the court in People v. Solario, supra, observed: “Finally, defendant's reliance on the vicarious exclusionary rule is misplaced. Under that rule a criminal defendant is entitled to object to the introduction of evidence illegally seized from a third person. (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 155, 98 Cal.Rptr. 649, 491 P.2d 1; People v. Martin (1955) 45 Cal.2d 755, 759-761, 290 P.2d 855) But the evidence introduced against defendant was not illegally seized from a third person. The ‘third person’ would be defendant's victim, the householder. Officer Freet did not violate the householder's right to privacy by entering his residence to arrest defendant, he protected it. Therefore, there is no illegal seizure of which defendant may vicariously complain.” (19 Cal.3d at p. 764, 139 Cal.Rptr. at p. 727, 566 P.2d at p. 629.) We recognize that in this case the defendants were not burglars, and that the property which was seized was not the householders', but, if it is relevant, property left in the basement by those seeking refuge there. In this connection we note that the property left in the premises on defendant's surrender is no different than the contraband found in People v. Ortiz, supra, People v. Sanchez, supra, and People v. Medina, supra. Insofar as the defendant was a trespasser, he had no standing to assert any violation of the householder's privacy. Since, however, there is a dispute as to what record is available to determine the status of the defendant, and also in connection with his right to take refuge in the basement, we take our lesson from the scripture contained in Solario, Kaplan and Maltz, and examine the circumstances in the light of the purposes of the exclusionary rule. (See 19 Cal.3d at p. 763, 139 Cal.Rptr. 725, 566 P.2d 627; 6 Cal.3d at pp. 155-157, 98 Cal.Rptr. 649, 491 P.2d 1; and 14 Cal.App.3d at pp. 394-395, 92 Cal.Rptr. 216.)


In Kaplan v. Superior Court, supra, the opinion analyzes the exclusionary rule as follows: “In 1955 this court decided the landmark case of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, adopting for California the rule that evidence obtained in violation of federal or state constitutional guarantees against unreasonable search and seizure is inadmissible in a criminal trial. The twofold purpose of that rule, we explained, was to deter law enforcement officers from engaging in unconstitutional searches and seizures by removing their incentive to do so, and to relieve the courts from being compelled to participate in such illegal conduct.” (6 Cal.3d at pp. 155-156, 98 Cal.Rptr. at p. 651, 491 P.2d at p. 3, fns. omitted. See also Terry v. Ohio (1968) 392 U.S. 1, 12-13, 88 S.Ct. 1868, 20 L.Ed.2d 889.) Conversely if there is no violation of federal or state constitutional guarantees against unreasonable search or seizure, there is no need to deter the conduct of the officers, nor is the court compelled to participate in any illegal conduct by admitting the evidence.

Defendant, in seeking to overturn the ruling validating the 2 a. m. search and in support of the rule suppressing the fruits of the 8 a. m. search, is armed with the People's admissions that there was no search warrant for any of the entries and searches of the basement, and that there is no evidence in this record of any express consent of the resident for the searches. “When . . . the question of the legality . . . of a search and seizure is raised either at the preliminary hearing or at the trial, the defendant makes a prima facie case when he establishes that an arrest was made without a warrant or that private premises were entered or a search made without a search warrant, and the burden then rests on the prosecution to show proper justification.” (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23, 25. See also Katz v. United States (1967) 389 U.S. 347, 356-357, 88 S.Ct. 507, 19 L.Ed.2d 576; Mancusi v. DeForte, supra, 392 U.S. 364, 370, 88 S.Ct. 2120, 20 L.Ed.2d 1154; United States v. Jeffers, supra, 342 U.S. 48, 51-52, 72 S.Ct. 93, 96 L.Ed. 59; Agnello v. United States (1925) 269 U.S. 20, 32, 46 S.Ct. 4, 70 L.Ed. 145; People v. Hill (1974) 12 Cal.3d 731, 733, 117 Cal.Rptr. 393; Lorenzana v. Superior Court, supra, 9 Cal.3d 626, 639, 108 Cal.Rptr. 585, 511 P.2d 33; People v. Henry (1967) 65 Cal.2d 842, 845, 56 Cal.Rptr. 485, 423 P.2d 557; and People v. Cruz (1964) 61 Cal.2d 861, 865, 40 Cal.Rptr. 841, 395 P.2d 889.)

The People seek to meet this burden by showing exigent circumstances. The searches of the basement were conducted on the night of April 6 and 7, 1968. The search, insofar as it was attendant to the arrest of the defendant, was not subject to the limitations subsequently imposed by Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. (People v. Sommerhalder (1973) 9 Cal.3d 290, 305, 107 Cal.Rptr. 289, 508 P.2d 289; People v. Medina (1972) 7 Cal.3d 30, 33, fn. 1, 101 Cal.Rptr. 521, 496 P.2d 433.) We turn to United States v. Rabinowitz (1950) 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. There the majority opinion stated: “What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are ‘unreasonable’ searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.” (339 U.S. at p. 63, 70 S.Ct. at p. 434. See also, People v. Sommerhalder, supra, 9 Cal.3d 290, 305-306, 107 Cal.Rptr. 289, 508 P.2d 289; and People v. Medina, supra, 7 Cal.3d 30, 36-37, 101 Cal.Rptr. 521, 496 P.2d 433.) In Sommerhalder, as in this case, the occupants of the house came out and surrendered after an exchange of gunfire. The court upheld the subsequent search of the premises as incident to and contemporaneous with the lawful arrest of the occupants who had surrendered. The following factors were noted by the court: “The officers had justifiable grounds to enter the house to make an arrest or, in the interest of their own safety, to require the occupants to come out with their hands up. There were articulable reasons for the officers to conclude that specific evidence relating to the crime would be found inside the house, that the house contained an arsenal of weapons, including loaded guns, and that there might be other persons inside who could pose a threat to the safety of the officers outside or to the safekeeping of the evidence.” (9 Cal.3d at p. 306, 107 Cal.Rptr. at p. 299, 508 P.2d at p. 299.) Unlike this case there were exigent circumstances which made it impractical to secure the place and secure a search warrant.

The defendant does not question the right of an investigating officer wearing a gas mask to enter the fire gutted premises at 11:30 p. m. to ascertain, as he did, that there were no other suspects or hostages present. (See Warden v. Hayden (1967) 387 U.S. 294, 298-299, 87 S.Ct. 1642, 18 L.Ed.2d 782; People v. Hill (1974) 12 Cal.3d 731, 754-757 and 757-759, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Block (1971) 6 Cal.3d 239, 243-245, 103 Cal.Rptr. 281, 499 P.2d 961; People v. Smith (1966) 63 Cal.2d 779, 797-798, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Gilbert (1966) 63 Cal.2d 690, 706-707, 47 Cal.Rptr. 909, 408 P.2d 365 (revd. on other grounds Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178); People v. Eckstrom (1974) 43 Cal.App.3d 996, 1003-1004, 118 Cal.Rptr. 391; People v. Bradford (1972) 28 Cal.App.3d 695, 702-705, 104 Cal.Rptr. 852; and People v. Kampmann (1968) 258 Cal.App.2d 529, 532-533, 65 Cal.Rptr. 798.) He contends that any subsequent search of the premises was barred by principles expressed, before Chimel, in People v. Cruz, supra, 61 Cal.2d 861, 40 Cal.Rptr. 841, 395 P.2d 889, as follows: “(A) search is not ‘incidental to an arrest’ unless it is limited to the premises where the arrest is made; is contemporaneous therewith; has a definite object; and is reasonable in scope.” (61 Cal.2d at p. 866, 40 Cal.Rptr. at p. 844, 395 P.2d at at p. 892. See also Shipley v. California (1969) 395 U.S. 818, 820, 89 S.Ct. 2053, 23 L.Ed.2d 732; People v. Hill, supra, 12 Cal.3d 731, 753-754, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Henry, supra, 65 Cal.2d 842, 845-846, 56 Cal.Rptr. 485, 423 P.2d 557; People v. Gorg, supra, 45 Cal.2d 776, 781, 291 P.2d 469; People v. Landry (1969) 276 Cal.App.2d 370, 376, 80 Cal.Rptr. 880; and People v. Kampmann, supra, 258 Cal.App.2d 529, 534, 65 Cal.Rptr. 798.) The foregoing cases and others are application of the general principles stated in Agnello v. United States, supra, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, as follows: “Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause. (Citations.)” (269 U.S. at p. 33, 46 S.Ct. at p. 6. See also Vale v. Louisiana (1970) 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409; People v. Hill, supra, 12 Cal.3d 731, 733, 117 Cal.Rptr. 393, 528 P.2d 1; Lorenzana v. Superior Court, supra, 9 Cal.3d 626, 639, 108 Cal.Rptr. 585, 511 P.2d 33; People v. Henry, supra, 65 Cal.2d 842, 845, 56 Cal.Rptr. 485, 423 P.2d 557; and People v. Landry, supra, 276 Cal.App.2d 370, 375-376, 80 Cal.Rptr. 880.)

Agnello, however, did note, “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. (Citations.) The legality of the arrests or of the searches and seizures made at the home of Alba is not questioned. Such searches and seizures naturally and usually appertain to and attend such arrests.” (269 U.S. at p. 30, 46 S.Ct. at p. 5, emphasis added.) The People stress that the basement was not merely the premises from which the defendant surrendered, but was the scene of the crime, assuming reasonable cause to arrest, of his resistance to arrest, and the source of the assault on the third officer with which he is charged. The right to search the crime scene without a warrant as part of an ongoing investigation has been recognized in cases of homicide. (See People v. Eckstrom, supra, 43 Cal.App.3d 996, 1004, 118 Cal.Rptr. 391; People v. Superior Court (Henry) (1974) 41 Cal.App.3d 636, 640, 116 Cal.Rptr. 24; and People v. Wallace (1973) 31 Cal.App.3d 865, 868-871, 107 Cal.Rptr. 659.)

We conclude that there was a right to search the basement vacated by the defendant as was done after he left the premises, by reason of the fact it was the site in which he took refuge and carried on the shoot-out with the police, and by reason of exigent circumstances. There were no spatial considerations which negated the right to search. (See People v. Sommerhalder, supra, 9 Cal.3d 290, 306, 107 Cal.Rptr. 289, 508 P.2d 289; People v. Medina, supra, 7 Cal.3d 30, 36-41, 101 Cal.Rptr. 521, 496 P.2d 433; and People v. Rodriguez (1965) 238 Cal.App.2d 682, 688-690, 48 Cal.Rptr. 117.) We also note, but deem it unnecessary to consider, the People's contentions that after 11:30 p. m. there was a need for further search to find and dispose of possible explosives (see People v. Superior Court (Peebles) (1970) 6 Cal.App.3d 379, 381-383, 85 Cal.Rptr. 803), and because there was a riot or possible conspiracy occurring (see People v. Baird (1971) 18 Cal.App.3d 450, 454-455, 95 Cal.Rptr. 700; and note People v. Sirhan (1972)7 Cal.3d 710, 735-741, 102 Cal.Rptr. 385, 497 P.2d 1121).

The record clearly discloses that at 11:30 p. m. the firemen were completing their efforts to put out a fire which had apparently started from the explosion of a tear gas canister. The officers who entered the premises were handicapped in their investigation because the tear gas necessitated that they wear masks, and because the area was still full of smoke. In reliance upon Swan v. Superior Court (1970) 8 Cal.App.3d 392, 87 Cal.Rptr. 280, the defendant asserts that having ascertained that no one was in the basement, the officers should have secured the premises and obtained a search warrant if further investigation was necessary. In Swan, as in this case, there was a fire on the premises. There all resemblance ends. The crime in question was arson; the right of privacy involved was that of the householder who was suspected of the crime, not one who had taken refuge on the premises; the evidence seized and obtained was that of the householder; the search was conducted not within hours of the fire but ten days later; and the premises at that time were not in the original gutted condition but had been boarded up by the householder. The court stated: “The test to be used in determining whether a place is a constitutionally protected area within the meaning of the Fourth Amendment is set forth in People v. Edwards (1969) 71 Cal.2d 1096, at page 1100, 80 Cal.Rptr. 633, 458 P.2d 713: ‘we believe that an appropriate test is whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion.’ In the instant matter the owner of the dwelling house clearly demonstrated her expectation of privacy as to the interior of the house and its contents by boarding up the doorways, which were damaged by the fire. That expectation was violated by the intrusion of the police on April 24, 1968.” (8 Cal.App.3d at p. 396, 87 Cal.Rptr. at p. 282.) It is noteworthy that not only was one fireman permitted to testify to his observations when he entered the residence in the course of extinguishing the fire and after it was extinguished, but another fireman entered the premises and reported on his observations the following morning.

Here if we accept the challenge of Swan we can but conclude that the searches at 2 a. m. and 8 a. m. were reasonable under all the circumstances. Johnson v. United States (1948) 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 tells us, “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” (333 U.S. at pp. 13-14, 68 S.Ct. at pp. 368-369.) It recognized however, “There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate's warrant for search may be dispensed with.” (Id., pp. 14-15, 68 S.Ct. at p. 369.) In People v. Medina, supra, our high court recognized the necessity of examining the right to privacy involved. It stated: “The guiding principle is that enunciated by the United States Supreme Court in Terry v. Ohio (1968) 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889: ‘We have recently held that ”the Fourth Amendment protects people, not places “ (Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and wherever an individual may harbor a reasonable ”expectation of privacy“, id., at 361, 88 S.Ct. 507 (Mr. Justice Harlan, concurring), he is entitled to be freed from unreasonable governmental intrusion. Of course, the specific content and incidents of this right must be shaped by the context in which it is asserted. For ”what the Constitution forbids is not all searches and seizures but unreasonable searches and seizures.“ Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). . . .’ (Italics added.) In Katz v. United States (supra, 389 U.S. 347, 350-353, 88 S.Ct. 507, 19 L.Ed.2d 576), the court emphasized that the doctrine of ‘constitutionally protected areas' cannot serve as a talismanic solution to every Fourth Amendment problem.” (7 Cal.3d 30, at p. 41, 101 Cal.Rptr. 521, at p. 528, 496 P.2d 433, at p. 440.)

Here we find no invasion of any right of the defendant, in fact, he only claims a vicarious right to assert that the householder's privacy was violated by the search. He himself or his companion in effect abandoned the articles he now seeks to suppress. (See People v. Superior Court (Barrett) (1972) 23 Cal.App.3d 1004, 1010-1011, 100 Cal.Rptr. 604; People v. Maltz, supra, 14 Cal.App.3d 381, 396, 92 Cal.Rptr. 216; and People v. Long (1970) 6 Cal.App.3d 741, 748-749, 86 Cal.Rptr. 227.)

When we consider the householder's right of privacy we begin with the situation as it was when the searches were conducted. Law enforcement officers cannot arbitrarily blow up a building or set it on fire so that they may freely enter and search the premises, but where, as here, there was reasonable cause to arrest those seeking refuge in the basement, and as a result of efforts to effect that arrest (even though they be over zealous, insofar as the householder is concerned (see fn. 2 above)), the premises are left in the condition that the basement was, there can be little expectation of privacy on the part of the householder. The situation is analogous to that in People v. Superior Court (Barrett), supra, where the court stated, “Mrs. Dorman did not authorize defendants to conceal or store contraband in her trash can. Mrs. Dorman was and is entitled to the presumption of innocence of crime. There is absolutely nothing in the instant record that would justify even a suspicion that Mrs. Dorman had placed herself in the position of a particeps criminis by authorizing the defendants to store or conceal contraband in her trash can. Every presumption of law is to the contrary. Sinclair's action in placing the contraband in her neighbor's trash can must be presumed to have been, not only an unauthorized and criminal act, but also a flagrant abuse of the privacy which the neighbor had extended. In short, defendants had no reasonable expectation of privacy with respect to such an unauthorized deposit of contraband. Their only reasonable expectation would have been that if Mrs. Dorman had discovered the contraband, she would have reported it to the police.” (23 Cal.App.3d at p. 1010, 100 Cal.Rptr. at p. 608.) So here, although the householder had a right of privacy extending to protection from unwarranted rummaging around in the ruins of her basement, it reasonably did not extend to freedom of police investigation of the events giving rise to that catastrophe or the articles abandoned therein by those who had sought refuge.

The circumstances adduced at the hearing reflect that it was necessary and reasonable to postpone further investigation from 11:30 to 2 a. m. The trial court properly so held, and defendant's petition should be denied. It was equally reasonable under all of the circumstances to postpone further investigation until daylight. The trial court apparently believed that the passage of time within which a warrant might have been secured rendered the 8 a. m. search invalid. (See Trupiano v. United States (1948) 334 U.S. 699, 705-707, 68 S.Ct. 1229, 92 L.Ed. 1663.) In the cited case the officers knew of the illegal activity on the premises for three weeks preceding the search. In United States v. Rabinowitz, supra, the court qualified Trupiano, and stated: “The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances the total atmosphere of the case. It is a sufficient precaution that law officers must justify their conduct before courts which have always been, and must be, jealous of the individual's right of privacy within the broad sweep of the Fourth Amendment.” (339 U.S. at p. 66, 70 S.Ct. at p. 435. See also People v. Webb (1967) 66 Cal.2d 107, 118-126, 56 Cal.Rptr. 902, 424 P.2d 342.) Here the officers were conducting a continuing investigation on premises where they had a right to be. There was no need to secure a warrant so long as their entry on the premises was terminated as expeditiously as circumstances permitted. Having a right to be on the premises they were of course entitled to seize such evidence as bore upon the activities of the accused, as were found there in plain sight.

Although a vehicle is not involved in this phase of the case we see little difference in securing the premises and continuing what is a legitimate investigation until daylight hours so that other investigators may examine the scene, than in examining a legitimately seized car sometime later. (See People v. Teale (1969) 70 Cal.2d 497, 507-513, 75 Cal.Rptr. 172, 450 P.2d 564.) In that case the court also noted, “Finally, we observe that, even if the scientific examination undertaken on November 12, 1962, is considered a ‘search’ within the meaning of the Fourth Amendment, that search was clearly reasonable in light of the totality of circumstances as a ‘continuation of the search lawfully begun at the time and place of arrest.’ (People v. Webb, supra, 66 Cal.2d 107, 126, 56 Cal.Rptr. 902, 424 P.2d 342; see also People v. Williams, supra, 67 Cal.2d 226, 229-231, 60 Cal.Rptr. 472, 430 P.2d 30.)” (Id., p. 512, 75 Cal.Rptr. at p. 181, 450 P.2d at p. 573.)

In short, the police action was at all times reasonable and violated no substantial right of privacy of the defendant or the host he apparently selected at random. We, therefore, must grant the People's petition with respect to the articles seized in the 8 a. m. entry into the basement.


The facts concerning the seizure of the articles found in the automobile of codefendant Wendell Wade were set forth in the defendant's motion to suppress. Some were gleaned from the record of the trial of defendant's codefendant David Hilliard. The People stipulated that those facts would form the basis of the motion in the proceedings involving defendant Cleaver.

Those facts are as follows: “Defendant Eldridge Cleaver is charged with three counts of assault with a deadly weapon upon police officers (Penal Code s 245(b)) and three counts of attempted murder of the same officers. The alleged offenses concerning two officers, Darnell and Jensen, occurred at approximately 9:00 p. m. on April 6, 1968, on the street near 2905 Union Street, Oakland, California, about a block from the second incident. At the time of the Schlim incident, defendant Cleaver was trapped by a police seige in the basement of 1218 28th Street. . . . (P) The first incident supposedly involved a number of Black Panthers. Before Cleaver was arrested, however, the police had apprehended all seven of Cleaver's co-defendants. . . . (P) Co-defendant David Hilliard was arrested in the residence of a Bertha Allen at 1226 28th Street, Oakland, California. Ms. Allen found two car keys on a black leather strap on the dresser in the bedroom where Hilliard had been hiding. She gave these keys to Inspector Donald Heaton . . . . Heaton recognized the keys as being to a Toyota automobile. (P) After the defendants, arrest, the Department of Motor Vehicles was asked to identify all cars registered to any of the eight arrestees. The Oakland Police Department learned in response that co-defendant Wendell Wade was registered as the co-owner of a Toyota with license plate number VKW 028. The Oakland police requested other local police departments to aid in locating this car. . . . During that night (April 6-7, 1968), Berkeley police officers noticed the Toyota parked in front of 665 Aileen Street, Oakland, California, a distance of some 37 blocks, or about a mile-and-a-half from the scene of the alleged assaults . . . . The Berkeley police, on order from the Oakland police, towed the car to the Oakland police parking lot. There, at about 8:00 a. m. on April 7, 1968, Oakland Police Department Technician Harry Charles Strelo and Inspector Keaton used the keys that Ms. Allen had found to open the trunk of the Toyota. . . . No warrant was ever obtained for this search and seizure. Nevertheless, Strelo and Heaton made a thorough search of the car during which they found four weapons and some ammunition . . . ; Strelo also took photographs of the weapons in the trunk.”


Although the point was not raised in the trial court, the Attorney General asks us to take judicial notice that the search of Ward's car was upheld as valid on Hilliard's appeal from his conviction. (See People v. Hilliard, 1 Crim. No. 10184 (Div. 2) unreported decision Mar. 21, 1973.) He contends that the matter is res judicata and that in any event this defendant is barred by collateral estoppel, or the doctrine of the law of the case. It is true that a prior decision on appeal in the same case may bind the parties as the law of the case. (See People v. Shuey (1975) 13 Cal.3d 835, 845, 120 Cal.Rptr. 83, 533 P.2d 211; and People v. Durbin (1966) 64 Cal.2d 474, 477, 50 Cal.Rptr. 657, 413 P.2d 578.)

The defendant asserts that the People cannot make their claim because they failed to raise it in the court below. (Lorenzana v. Superior Court, supra, 9 Cal.3d 626, 640-641, 108 Cal.Rptr. 585, 511 P.2d 33; and People v. Manning, supra, 33 Cal.App.3d 586, 600-601, 109 Cal.Rptr. 531.) A more serious defect is that the parties, although named in the same indictment, have been separately tried. The doctrine of the law of the case can only apply to the same parties in any subsequent retrial or appeal in the same case. (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, s 633, p. 4552.) Res judicata and collateral estoppel ordinarily apply only to the same parties or persons in privity. (See 4 Witkin, op.cit., Judgment, ss 147-148, pp. 3292-3293; and s 197, pp. 1335-1336.)

The right to move to suppress evidence granted by section 1538.5 runs to each defendant, and a ruling for or against one in a separate proceeding will not bind the other. (People v. Caserta (1971) 14 Cal.App.3d 484, 485-486, 92 Cal.Rptr. 382; and see In re Garcia (1977) 67 Cal.App.3d 60, 65, 136 Cal.Rptr. 461.)

We do find some difficulty in being asked to rule that evidence be suppressed because it was taken in violation of the rights of co-defendant Wade, the co-owner of the car, and co-defendant Hilliard, who had apparently received the keys indicating a right to possession of the vehicle, in order to deter unconstitutional searches and prevent the courts from participating in such illegal conduct. It is arguable that the defendant here, who must establish a violation of the rights of Hilliard or Wade, is privy to them. If the search is valid as to Hilliard, who had the indices of dominion over the car, it must be so as to this defendant who claims under him. On the other hand if the conduct was truly in violation of the Fourth Amendment, the failure of one protagonist to bring out the facts showing such illegality should not bar another from establishing that such was the case, in order the dire consequences proscribed in Cahan and Kaplan will not ensue. We therefore address the merits.


Two questions are presented here. Was there a right to seize the vehicle of anyone of the eight who were arrested without a warrant? If so, was there a right to open the trunk of such a vehicle without a warrant?

Here, as in the trial court, the defendant relies upon People v. Deam (1970) 10 Cal.App.3d 162, 89 Cal.Rptr. 29, and Coolidge v. New Hampshire (1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, in support of his contention that the seizure and search were illegal. In the former case the search of the automobile in which the suspected abortionist came to the scene of his arrest, was held to be illegal, first, because there was no probable cause to arrest him which would justify the search as an incident to that arrest, and, secondly, for reasons expressed as follows: “In any event the search of defendant's automobile was illegal because it lacked a legitimate objective. A search as an incident to an arrest to discover and preserve evidence is limited to the discovery of evidence respecting the specific offense for which the arrest was made, and may not be exploratory, for the sole purpose of discovering incriminating evidence of other offenses. (Citations.)” (10 Cal.App.3d at p. 166, 89 Cal.Rptr. at p. 31.)

In Coolidge (403 U.S. at pp. 455-457, 91 S.Ct. 2022) the plurality opinion followed Dyke v. Taylor Implement Co. (1968) 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538, wherein the court voided a search of a parked automobile of one arrested and jailed for reckless driving because the search was too remote in time or place to be incidental to the arrest, and because the evidence on the record was insufficient to justify a conclusion that the car was searched with reasonable or probable cause that the search would be fruitful in producing evidence of a crime disrelated to that for which the owner was arrested (391 U.S. at pp. 220 and 222, 88 S.Ct. 1472). The plurality also distinguished Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, and Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (403 U.S. at pp. 458-464, 91 S.Ct. 2022). It acknowledged that the former case stood for the proposition that where there were probable cause and exigent circumstances which would justify stopping and searching a car, the car could be taken to the police station and searched there, but it nevertheless concluded: “Here there was probable cause, but no exigent circumstances justified the police in proceeding without a warrant (to seize and search a car parked in the suspect's driveway).” (Id., p. 464, 91 S.Ct., p. 2037.)

The rules concerning warrantless search of an automobile have generally been applied in this state in connection with probable cause to search for contraband which has become apparent after a routine roadside traffic stop. (See Wimberly v. Superior Court, supra, 16 Cal.3d 557, 561, 128 Cal.Rptr. 641, 547 P.2d 417; People v. Cook (1975) 13 Cal.3d 663, 667, 119 Cal.Rptr. 500, 532 P.2d 148; People v. Hill (1974) 12 Cal.3d 731, 741, 117 Cal.Rptr. 393, 528 P.2d 1; and People v. Webb (1967) 66 Cal.2d 107, 111-112, 56 Cal.Rptr. 902, 424 P.2d 342.) They are also applicable to parked automobiles. (See People v. Dumas (1973) 9 Cal.3d 871, 881-886, 109 Cal.Rptr. 304, 512 P.2d 1208; People v. Gale (1973) 9 Cal.3d 788, 794-797, 108 Cal.Rptr. 852, 511 P.2d 1204; North v. Superior Court (1972) 8 Cal.3d 301, 305-308, 104 Cal.Rptr. 833, 502 P.2d 1305; and People v. Laursen (1972) 8 Cal.3d 192, 201-202, 104 Cal.Rptr. 425, 501 P.2d 1145.) In People v. Dumas, supra, the court tersely stated, “In the case at bar . . . the police officers were empowered under the Carroll doctrine to search defendant's 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.” (9 Cal.3d at p. 884, 109 Cal.Rptr. at pp. 313-314, 512 P.2d at pp. 1217-1218. See also Wimberly v. Superior Court, supra, 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417; and People v. Cook (1975) 13 Cal.3d 663, 669, 119 Cal.Rptr. 500, 532 P.2d 148.) Dumas also observes, “The decisions upholding warrantless searches of automobiles evidence no distinction between the treatment of vehicles the police stop on the highway and vehicles they find parked at the curb. . . . (P) . . . it is clear that an automobile does not become immune from the Carroll rule permitting warrantless search simply because it is parked on or near a defendant's premises. (Citation.)” (9 Cal.3d at pp. 883 and 884, 109 Cal.Rptr. at p. 313, 512 P.2d at p. 1217.)

In Wimberly v. Superior Court, supra, the court concluded: “It is therefore manifest that ‘when there is probable cause to believe that an automobile stopped on a highway contains contraband, evidence of a crime, or was itself an instrumentality of the commission of one, law enforcement officers need not obtain a warrant before conducting a search . . . ’ (People v. Laursen, supra, 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145.)” (16 Cal.3d at p. 563, 128 Cal.Rptr. at p. 645, 547 P.2d at p. 421.) “Probable cause for a search exists where an officer is aware of facts that would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search is in the particular place to be searched.” (People v. Dumas, supra, 9 Cal.3d 871, 885, 109 Cal.Rptr. 304, 314, 512 P.2d 1208, 1218. See also Wimberly v. Superior Court, supra, 16 Cal.3d 557, 564, 128 Cal.Rptr. 641, 547 P.2d 417.)

Turning to the instant case it appears that there was reasonable cause to believe that an organized group was responsible for the attack on the officers. It was also reasonable to believe that they were mobile and that the vehicles used by them would contain evidence relevant to the offense for which they were arrested, and as well, of what was then reasonably considered to be a group conspiracy against law enforcement officers. Although the fact that Hilliard left what appeared to be car keys behind in his flight is of ambiguous purport, it does, despite defendant's protestation to the contrary, support the inference that he wanted to disassociate himself from the vehicle and its contents, regardless of who might be the owner or where it might be located.

Since it was unknown to what extent others were involved, it was also reasonable to believe that any vehicle belonging to those arrested might be removed or purged of any incriminating evidence by friends or co-conspirators. It was therefore reasonable for the police to seek to locate and examine the vehicles belonging to those who had been arrested in order to determine whether there were further arms outstanding and other persons involved. The means taken to determine the identity of such vehicles and the seizure of the vehicle so identified were reasonable steps to neutralize the situation. Having in mind the possibility that the vehicle might be moved and the early morning hour involved, it was not practicable or necessary for the police to secure a search warrant.

Since there was probable cause to seize and search the vehicle at the time it was located, the fact it was impounded and searched later did not render the search unreasonable. In People v. Laursen, supra, the fleeing robbers left their vehicle which failed to start and it was subsequently impounded and searched without a warrant. The court stated, “Chambers (Chambers v. Maroney, supra, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419) and McKinnon (People v. McKinnon (1972) 7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097) establish the rule that when there is probable cause to believe that an automobile stopped on a highway contains contraband, evidence of a crime, or was itself an instrumentality of the commission of one, law enforcement officers need not obtain a warrant before conducting a search since there is no distinction of constitutional proportion between an immediate search on probable cause without a warrant and the automobile's immobilization until one is secured. Having concluded that the mere immobilization of an automobile is as substantial an intrusion on the constitutional rights of the owner or possessor as in an immediate search, we must further consider whether the fact the vehicle is impounded at a police garage before it is searched is also of no greater constitutional significance. (P) It was not unreasonable to transport the vehicle to the garage for safekeeping and further examination. Although defendant had apparently abandoned the automobile in effecting his escape, he or others acting in his behalf could have returned to retrieve it or to remove evidence. The officers did not possess the proper tools to open the trunk and complete their search at the time and place where the vehicle was discovered and each moment of delay significantly improved defendant's chances of avoiding apprehension. We discern no inconvenience or invasion of defendant's rights which further infringed any constitutional prohibition by the fact that the vehicle was removed from the scene of the crime to an impound garage beyond that which would have resulted had a warrant authorizing the impound and search first been obtained. (See Chambers v. Maroney, supra, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 26 L.Ed.2d 419, where the vehicle was removed from the place of apprehension to a police station before being searched.) We conclude, accordingly, that the vehicle was properly impounded and searched in accordance with Chambers and McKinnon.” (8 Cal.3d at pp. 201-202, 104 Cal.Rptr. at p. 431, 501 P.2d at p. 1151. See also People v. Hill, supra, 12 Cal.3d 731, 751-753, 117 Cal.Rptr. 393, 528 P.2d 1. Note: North v. Superior Court, supra, 8 Cal.3d 301, 305-308, 104 Cal.Rptr. 833, 502 P.2d 1305; People v. Teale, supra, 70 Cal.2d 497, 507-513, 75 Cal.Rptr. 172, 450 P.2d 564; People v. Williams, supra, 67 Cal.2d 226, 229-231, 60 Cal.Rptr. 472, 430 P.2d 30; and People v. Webb, supra, 66 Cal.2d 107, 112-126, 56 Cal.Rptr. 902, 424 P.2d 342.)

Wimberly v. Superior Court, supra, suggests that under certain circumstances it may be necessary to secure a warrant to search the trunk of a car. (See 16 Cal.3d at pp. 566-573, 128 Cal.Rptr. 641, 547 P.2d 417.) The rule distilled from the cases reviewed by the court in that opinion is: “(T)he existence of probable cause to search the interior of a car is not necessarily sufficient to justify the search of the car's trunk. A search based on probable cause which reasonably only tends to support the inference that contraband or evidence will be found in the passenger compartment will be of intolerable intensity and scope if expanded to include a closed trunk. In such a situation there must be some specific articulable facts which give reasonable cause to believe that seizable items are, in fact, concealed in the trunk.” (16 Cal.3d at p. 568, 128 Cal.Rptr. at p. 648, 547 P.2d at p. 424.)

The court recognized that where the probable cause to search went to the vehicle as a whole, it was proper to search the trunk. (Id., at pp. 569-571 and 573, 128 Cal.Rptr. 641, 547 P.2d 417. See also People v. Cook, supra, 13 Cal.3d 663, 670, 119 Cal.Rptr. 500, 532 P.2d 148; People v. Hill, supra, 12 Cal.3d 731, 749-753, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Dumas, supra, 9 Cal.3d 871, 881-886, 109 Cal.Rptr. 304, 512 P.2d 1208; People v. Laursen, supra, 8 Cal.3d 192, 201-202, 104 Cal.Rptr. 425, 501 P.2d 1145; and Cady v. Dombrowski (1973) 413 U.S. 433, 441-448, 93 S.Ct. 2523, 37 L.Ed.2d 706.) Here the vehicle itself was linked to one defendant as co-owner, and to another by his possession of the keys. As in Laursen, the weapons or other evidence of the nature of the conspiracy might be found in any place in the car including the trunk.

We conclude the seizure and search of Ward's vehicle was valid, and that the trial court erroneously suppressed the evidence so secured.

In 1 Civil 41199 the petition is granted. Let a peremptory writ of mandate issue as prayed for by the People. In 1 Civil 41132, the petition is denied, and the alternative writ heretofore issued is discharged.


1.  In relying on the transcript of the grand jury proceedings in his memorandum of points and authorities in opposition to defendant's motion in the trial court, the district attorney referred to the defendant's entrance into the Pierre residence as “without permission,” and stated that he and his companion “broke into the basement of an uninvolved citizen.”

2.  In his return to the People's petition we are asked to take judicial notice (Evid.Code, s 452) that the property owner was awarded $9,872.85 for personal and property damages sustained as a result of the police siege of her premises on April 6, 1968, and the statements of the judge with respect to the degree of care used by the police in executing the law. Since the judgment does not absolve the defendant of any responsibility, and since we do not know whether or not the judge's remarks were necessary to the decision, we refrain from considering the substance of defendant's request.

3.  It may be assumed that for the purposes of the motion to suppress the defendant claims some interest in the property seized in the searches of the basement. Nevertheless as we point out below (part I-C), under the circumstances of this case, he had no expectation of privacy such as the employee in Mancusi, the guest in Jones, or the nephew in Jeffers.

SIMS, Acting Presiding Justice.

ELKINGTON and LAZARUS (Retired superior court judge sitting under assignment of the chairman of the Judicial Council.), JJ., concur.

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