PEOPLE v. TISDALE

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Steven Lee TISDALE, Defendant and Appellant.

Cr. 3535.

Decided: June 26, 1979

Paul Halvonik and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Gary S. Goodpaster, Chief Asst. State Public Defender, Mark L. Christiansen and Gayle Guynup, Deputy State Public Defenders, Sacramento, for defendant and appellant. Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Gregory W. Baugher, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Appellant was convicted upon his plea of guilty of conspiracy to commit burglary (Pen.Code, §§ 182, 459). On appeal, he contends that the trial court erred in denying his motion to suppress evidence (Pen.Code, § 1538.5). The matter is properly before us pursuant to the provisions of Penal Code section 1538.5, subdivision (m).

Evidence adduced at the preliminary hearing and the de novo suppression hearing reveals that at about 5 p. m. on May 10, 1977, Regina Bever saw a white Chevrolet approach the home of John and Winifred Whitman, her next-door neighbors in Sonora. The car stopped between the Bever and Whitman driveways, and the two men alighted and walked toward the Whitman home. Mrs. Bever saw one of the men, subsequently identified as appellant, return to the car and drive slowly away. However, the car reappeared, parked in the same location as before, and the driver got out and urinated. Mrs. Bever called Mrs. Whitman at work and, after using binoculars to obtain the Chevrolet's license number, called the police and related her observations.

Sonora Police Officer Duane Ellis received a radio dispatch concerning a burglary and arrived at the scene within two and one-half minutes. En route, he received a description of the Chevrolet and its license number. While driving up the hill to the Whitman residence, Ellis saw and stopped the Chevrolet, which was proceeding down the hill. Appellant, the driver and sole occupant, was ordered from the car and Ellis requested a warrant check.

Officer Ralph Hamilton also heard the initial dispatch and arrived at the scene about five minutes later. Hamilton saw Ellis and appellant and obtained appellant's identification. He then walked to the Whitman house, where he observed signs of forced entry, ransacking, and stockpiling of property near the front door. At the Bever home he learned that Mrs. Bever had seen two suspects, the second of whom remained at large. Hamilton heard a dispatch to the effect that the Chevrolet's registered owner was one “Chavez” from Oakdale.

Hamilton again proceeded to the Chevrolet, “in search of registration and identification of Mr. Chavez or another suspect.” There, Hamilton “inventoried” the car's interior in vain for evidence of the at-large suspect's identity. Continuing the search for identity evidence, Officer Nicolini opened the car's trunk, where he found property subsequently identified as the fruits of another May 10, 1977, burglary. No warrant had been obtained for the search of the car's interior and/or trunk. Hamilton's experience had led him to believe that, in the absence of such items in the passenger compartment, identification evidence might be present in the trunk.

Appellant asserts that the officers lacked probable cause to search the car's trunk and that no exigent circumstances existed such as would excuse the warrant requirement. As to probable cause, appellant argues that the record contains no evidence which permits an inference that a trunk search would yield the identity of the at-large suspect. Appellant suggests that, despite the overheard dispatch describing the registered owner as one “Chavez,” “No attempt was made to locate Chavez and ascertain if someone else was in possession of his car, nor did a check on the vehicle reveal it to be stolen.”1 According to appellant, Hamilton “had no reason to believe he [Chavez] was not [[[[appellant's] crime partner,” and had no specific articulable basis to believe identification evidence would be found in the trunk.

As to exigency, appellant argues that there existed no danger of destruction or removal of evidence since appellant, the driver, “was in custody presumably with the keys in his possession” and the car was impounded. While appellant concedes that a suspect was at large, he observes that the officers “already had leads, albeit untested, to the identity of the missing party,” a suspect description (rather thin, very dark hair, same length as appellant's), and no information that the missing man was armed.

Respondent relies heavily (as did the trial court) on People v. Laursen (1972) 8 Cal.3d 192, 104 Cal.Rptr. 425, 501 P.2d 1145. There, eyewitnesses to a market robbery saw two suspects drive up to the market and later unsuccessfully attempt to leave in the same Mercury automobile. This information was relayed to the police, who impounded the car and later searched the interior and trunk at a police garage. In upholding the validity of the warrantless search, the court relied on Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, and People v. McKinnon (1972) 7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097 as establishing the rule that:

“[W]hen 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.8” (People v. Laursen, supra, 8 Cal.3d at p. 201, 104 Cal.Rptr. at p. 431, 501 P.2d at p. 1151.)

Footnote 8 of the quoted passage provides:

“In the instant case there was clearly probable cause to search the Mercury at the site of the robbery. A number of eyewitnesses to the crime saw the two suspects drive up to the market and later unsuccessfully attempt to leave in the same automobile and this information was reported to the investigating officers. Having connected the robbery with the Mercury on the basis of these reports the officers had reason to suspect that some evidence helpful in the apprehension of the culprits and investigation of the crime would be contained within.” (Id., at p. 201, fn. 8, 104 Cal.Rptr. at p. 431, 501 P.2d at p. 1151.)

At oral argument, appellant contended that in its recent decision in People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514 the Supreme Court overruled Laursen, supra, and “abolished” the “instrumentality exception” to the warrant requirement. In Minjares, the Supreme Court stated:

“The holding of this case is a narrow one. It will entail no diminution of the ability of law enforcement officers to apprehend those suspected of breaking the criminal law. Where probable cause is believed to exist to search a container found within an automobile, the container may be seized and held until a magistrate determines whether a warrant may be issued for its search. Where exigent circumstances dictate an immediate search, a closed container found in an automobile may be searched without a warrant. (See, e. g., United States v. Chadwick, supra, 433 U.S. [1] at p. 15, fn. 9, [97 S.Ct. 2476, 53 L.Ed.2d [538] at p. 551]; United States v. Gaultney (5th Cir. 1978) 581 F.2d 1137.) By requiring as a rule only the lesser intrusion of seizure and immobilization of personal effects rather than immediate search, maximum respect for individual privacy can be maintained at relatively little cost to law enforcement. An individual who prefers immediate search rather than the inconvenience of immobilization may always consent to an immediate search.” (People v. Minjares, supra, 24 Cal.3d at p. 423, 153 Cal.Rptr. at p. 231, 591 P.2d at p. 521.)

In reaching its decision, the court addressed the applicability of the instrumentality doctrine to the facts therein:

“Respondent alternatively argues that the automobile was itself an ‘instrumentality’ of the crime, since it was used in appellant's escape. Therefore, it is argued the car and its entire contents, including the tote bag, were subject to a thorough search under what is termed the ‘instrumentality’ exception. Chambers v. Maroney, supra, 399 U.S. 42, [90 S.Ct. 1975] and this court's opinions in People v. Teale (1969) 70 Cal.2d 497 [75 Cal.Rptr. 172, 450 P.2d 564], People v. Laursen (1972) 8 Cal.3d 192 [[[[104 Cal.Rptr. 425, 501 P.2d 1145] and People v. Hill (1974) 12 Cal.3d 731 [[[117 Cal.Rptr. 393, 528 P.2d 1] are cited in support of this position.

Respondent reads more into these cases than is there. In general, the belief that an automobile was used in the perpetration of a crime merely supplies the requisite probable cause to search the car. (See Almeida-Sanchez v. United States (1973) 413 U.S. 266, 269 [93 S.Ct. 2535, 37 L.Ed.2d 596, 600].) It does not justify its warrantless search. To the extent that there is a separate ‘instrumentality’ exception under either Constitution which in any way adds to the ‘automobile’ exception, it is inapplicable to the facts of this case.” (People v. Minjares, supra, 24 Cal.3d at p. 421, 153 Cal.Rptr. at p. 230, 591 P.2d at p. 520.)

The Supreme Court did not decide the validity of the opening of the trunk by the police for the purpose of searching for the second robbery suspect. The court explained, “Even if the possible presence of a second suspect in the car's trunk justified opening the trunk, that possibility would not necessarily validate the subsequent warrantless search of the tote bag.” (Id., at p. 417, 153 Cal.Rptr. at p. 417, 591 P.2d at p. 517.)

We do not believe that the Minjares decision invalidates the instant opening of the trunk. Rather, Minjares states that the belief that an automobile was used in the perpetration of a crime merely supplies the requisite probable cause to search the car. We construe this statement to refer, in context, to the entire car, not just the passenger compartment.

Appellant does not dispute the obvious fact that the officers had probable cause to believe that the Chevrolet, like the Laursen Mercury abandoned at the crime scene, was “itself an instrumentality of the commission” of the crime. This being the case, the officers had the right to search the entire vehicle if and only if exigent circumstances were present.

Here, a first degree burglar was at large in a rural area, presumably on foot, and therefore within a small radius of the crime scene. These facts placed a priority on obtaining prompt identification and other leads by all reasonable, available means to effect a possible quick capture. Appellant's recurrent suggestion that the officers should have blithely proceeded on the assumption that “Chavez” was the at-large suspect does not impress us. By the time this lead was explored and possibly proved incorrect, the officers would have lost valuable time in tracking the once-nearby suspect. Even if “Chavez” were in fact the second man, a trunk search might have revealed leads assisting in a more immediate apprehension. For example, the officers might have been directed to an address in the Sonora area.

We reject appellant's argument that Wimberly v. Superior Court (1976) 16 Cal.3d 557, 128 Cal.Rptr. 641, 547 P.2d 417, has eroded Laursen's authority. Wimberly held that a trunk search for contraband or evidence requires probable cause independent of that which supports a search of the passenger compartment. However, far from disapproving Laursen, expressly or sub silentio, Wimberly distinguishes it on the basis that “… even though there was no specific information that the trunk contained any evidence relating to the crime … the probable cause upon which we upheld that search pertained to the vehicle as a whole.” (16 Cal.3d at p. 569, 128 Cal.Rptr. at p. 649, 547 P.2d at p. 425.)

We can find no meaningful distinction between Laursen and the instant case. (See People v. Hill (1974) 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1.) Appellant relies on United States v. Chadwick (1977) 431 U.S. 1, 97 S.Ct. 2476 as invalidating the search of the car's trunk. Chadwick is distinguishable, however, on the same basis as Minjares. Minjares involved search of a closed tote bag, Chadwick the search of a locked footlocker.2

We hold that probable cause existed to believe the car was a crime instrumentality, that exigent circumstances existed (see People v. Escudero (1979) 23 Cal.3d 800, 153 Cal.Rptr. 825, 592 P.2d 312), and that the suppression motion was properly denied.

The judgment is affirmed.

FOOTNOTES

1.  This statement takes a certain liberty with the record, since there was no evidence one way or another on either point.

2.  In the instant case, once inside the trunk the officers found a box, two lamps and a lamp-shade, and a pillowcase containing a tape deck and a portable radio. Appellant did not argue below and does not argue here that, even assuming a right to enter the trunk, the officers had no right to search the pillowcase found therein. Since the case proceeded below on the assumption that the critical issue was whether the officers had a right to enter the trunk, no evidence was presented on the more narrow issue of the search of the pillowcase. Thus, the record does not disclose whether the pillowcase was closed or open, whether the items inside the pillowcase were in plain view or not, whether the identity of the items could be discerned from the contour of the pillowcase, etc. Because of the assumption under which the case was argued and submitted below, we do not consider whether Chadwick, supra, and Minjares, supra, required suppression of the items in the pillowcase, since we have determined that the officers did indeed have the right to enter the trunk.

GEO. A. BROWN, Presiding Justice.

FRANSON and HOPPER, JJ., concur.