PEOPLE v. CLEMMONS

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Court of Appeal, Second District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mannette S. CLEMMONS and Mark William Clemmons, Defendants and Appellants.

Cr. 37278.

Decided: September 01, 1981

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Steffan Imhoff, Deputy State Public Defender, for defendant and appellant Mannette S. Clemmons. Balash & Sanger, by S. R. Balash, Jr., Santa Barbara, for defendant and appellant Mark William Clemmons. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Michael Nash, Deputy Attys. Gen., for plaintiff and respondent.

Mark William Clemmons and Mannette S. Clemmons, husband and wife, were each found guilty of one count of burglary and one count of uttering a forged prescription for a controlled substance.  (Health & Saf. Code, § 11368.)   Additionally, Mark was found to have suffered a prior felony conviction.

On Mannette's appeal from the judgment of conviction, she presents contentions relating solely to the denial of her pretrial motions to suppress evidence under Penal Code section 1538.5.   Mark joins in those contentions and also asserts error at trial in an instruction to the jury and in the admission of evidence in support of the allegation of a prior conviction.

There was no conflict in the testimony at trial on the issue of defendants' guilt or innocence of the charged offenses.   Defendants did not testify and called no witnesses.1

A short time before 2 p. m. on August 12, 1978, a woman identified as Mannette, wearing large dark glasses and a white smock over her other clothing, entered Clark's Drugs in Westlake Village and approached Albert C. Askew, the pharmacist.   She spoke the name “Bushee” and handed him a triplicate narcotics prescription for a person named Bushee, purportedly signed by Dr. John Lee, for 100 tablets of Delaudid.2  When asked for identification she presented a library card in the name of Bushee and an automobile club membership card.

Finding the identification insufficient, Askew attempted to telephone Dr. Lee but could not reach him.   He returned the prescription to her.   When she left the store another employee followed her outside and saw her enter a dark green 1971 or 1972 Torino station wagon.   He wrote down the license number and gave it to the store manager.

Askew then telephoned Joseph Renda, a pharmacist at Guild Drugs in Westlake Village.   While Askew was on the telephone, a man on crutches identified as Mark entered the store and asked for some heartburn pills but, when told where they were located, immediately left the store.   The manager followed him outside and observed a dark green station wagon with a wheel chair strapped to the top driving away.   He contacted the Ventura County Sheriff's Department and reported the incident.

Later in the same afternoon, Mark entered Guild Drugs and asked Renda, a pharmacist, to fill a narcotics prescription purportedly signed by Dr. Sherman Arie Hershfield.   It did not appear to be genuine and Renda refused to fill it, returning it to Mark.

Dr. Lee testified that he had not issued the prescription purportedly signed by him, that the signature was not his, and that neither Mark nor Mannette had been his patient.   Dr. Hershfield denied that the prescription attributed to him bore his signature and that neither Mark nor Mannette had been treated by him.

Between 3:30 and 4:00 p. m., defendants' automobile was stopped and defendants were placed under arrest.   They were both identified at the scene of the arrest by the manager of Clark's Drugs as the persons who previously had entered the store.   Highly incriminating articles, disclosed in a search of the automobile at the time of the arrest, were received in evidence at trial.   They included the two forged prescriptions, a library card issued to one Elizabeth Bushee, two National Automobile Club cards bearing the same name, several additional prescriptions and pads of blank prescription forms, a pamphlet bearing the signatures of various doctors and a writing pad upon which appear to be practice efforts to copy the signatures.

Pretrial motions 3 pursuant to Penal Code section 1538.5 were made to suppress the evidence seized in the search of the automobile.   Evidence at the hearing of the motion consisted of a transcript of the testimony given at the preliminary hearing, supplemented by the testimony of Deputy Sheriff LeClair and defendant Mark Clemmons.

At about 3:30 p. m. defendants' automobile was observed to return to the parking lot behind Clark's Drugs.   The manager called the Sheriff's Department.   Deputy Sheriff Bill Boyd, while on traffic patrol, received a radio dispatch giving a description and the license number of defendants' automobile, followed immediately by another dispatch stating the occupants were suspected of burglary.   When he arrived at the parking lot, the station wagon was just leaving.   He followed and saw it go through a red traffic light.   Activating the red spotlight of his vehicle, he pulled the station wagon to a stop on the overpass over Highway 101.

When Boyd approached the vehicle, he observed Mark behind the steering wheel.   He told Mark he was being stopped for failing to stop for a traffic signal and also as a possible forgery suspect.   He then put in a radio call for a backup unit.

After the backup unit arrived, Boyd went to the passenger's side and asked Mannette to step from the vehicle.   She refused.   When Boyd repeated the request, she locked the doors and took off all of her clothing.   She then began moving rapidly from place to place inside the car.   Ultimately, five police units responded to the scene.   Mannette was forcibly removed from the vehicle, transferred immediately to a police vehicle and taken to be booked.   Mark was placed in a wheel chair and remained at the scene until an ambulance could be summoned to transport him to the station.

After Mannette had been removed but while Mark was in his wheel chair at the scene, Officer LeClair conducted a search of the interior of the station wagon.   It is undisputed that the search was without consent of Mark or Mannette and that LeClair did not have a search warrant.

On the floorboard of the rear seat, protruding half way out the door through which Mannette had been removed, he found a white nursing smock rolled into a ball.   He removed it and found in a pocket the library card (Exh. 6) and the two automobile club cards.  (Exhs. 7, 8.)

On the front seat he observed Mannette's purse, which was open.   From it he removed a brochure advertising a charity and containing printed signatures of several doctors (Exh. 14) and a pad bearing apparent practice signatures of doctors' names.   He recalled that he could observe some of the contents without searching the purse but could not recall which ones.

There was a storage compartment in the rear of the station wagon.   It was equipped with a lock, but the lock previously had been broken.   Although it could not be opened completely from the inside, the lid could be raised sufficiently to permit a paper to be placed inside.   LeClair, believing the forged prescriptions for which he was searching might have been slipped into the storage compartment, opened it and found inside an elbow band, such as is worn by people who engage in athletics, inside which he found a pad of blank prescription forms.  (Exh. 11.)

Still searching for the Clark's and Guild Drugs Stores forged prescriptions, LeClair tried the glove box.   It was locked, but a key in the ignition opened it.   Inside on a brown paper bag he found the two forged prescriptions for which he had been searching.  (Exhs. 4, 5.)   In the bag he found many additional forged prescriptions and blank prescription pads.  (Exhs. 9 and 10.)

 It is frequently stated that “ ‘searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well delineated exceptions.’ ”  (Coolidge v. New Hampshire (1971) 403 U.S. 443, 481, 91 S.Ct. 2022, 2046, 29 L.Ed.2d 564;  see also People v. Minjares (1979) 24 Cal.3d 410, 416, 153 Cal.Rptr. 224, 591 P.2d 514.)   It is the prosecution's burden to show that a warrantless search falls within an exception.  (McDonald v. United States (1948) 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153;  People v. Minjares, supra, 24 Cal.3d at p. 416, 153 Cal.Rptr. 224, 591 P.2d 514.)

One specifically established exception is the “automobile exception” first formulated in Carroll v. United States (1924) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.  (See also Chambers v. Maroney (1970) 399 U.S. 42, 49–51, 90 S.Ct. 1975, 1980–81, 26 L.Ed.2d 419.)   Under this exception, searches of automobiles have been upheld as incident to a valid arrest (see Chambers v. Maroney, supra, 399 U.S. at pp. 47–49, 90 S.Ct. at pp. 1979–80) or where probable cause exists to believe that the vehicle contains contraband.   (Brinegar v. United States (1949) 338 U.S. 160, 164, 69 S.Ct. 1302, 1305, 93 L.Ed. 1879;  People v. Laursen (1972) 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145.)

 Although the exception which permits search of an automobile as an incident to a valid arrest is clearly established, the delineation of the exception has been anything but clear.   Where there has been a valid arrest, searches of the passenger compartment have been upheld upon probable cause to believe it might contain evidence of the crime.  (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564, 128 Cal.Rptr. 641, 547 P.2d 417.)   Where a search is made of certain closed compartments integral to the automobile, generally additional probable cause to believe it contains evidence of the crime is required.  (South Dakota v. Opperman (1976) 428 U.S. 364, 366, 96 S.Ct. 3092, 3095, 49 L.Ed.2d 1000 (glove compartment);  Cady v. Dombrowski (1973) 413 U.S. 433, 437, 93 S.Ct. 2523, 2526, 37 L.Ed.2d 706 (trunk);  Wimberly v. Superior Court, supra, 16 Cal.3d at pp. 566–571, 128 Cal.Rptr. 641, 547 P.2d 417.)   When justification is sought for a warrantless search of a container found within an automobile, a bewildering array of decisions has arisen, often reaching seemingly conflicting results on similar or only narrowly different facts.  (See cases collected in People v. Yuna (1980) 112 Cal.App.3d 634, at pp. 640–641, 169 Cal.Rptr. 424.)

Perhaps a contributing factor has been the variance in the policy reasons assigned for the rule.   Since its inception, one major reason has been a concern for the exigent circumstances leading to the search.   This has been described as “․ the recognized principle that, assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants ‘where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ ”  (Chimel v. California (1969) 395 U.S. 752, 764, fn. 9, 89 S.Ct. 2034, 2040, fn. 9, 23 L.Ed.2d 685.)   When that consideration is emphasized, the validity of a search of an automobile or its compartments has been held to turn on the issue of whether the circumstances permit the arresting officers first to obtain a search warrant without suffering the danger of injury to themselves or loss or destruction of evidence.  (See, e. g., People v. Gott, supra, 100 Cal.App.3d 1, 3–4, 160 Cal.Rptr. 307;  but see People v. Vodak (1980) 105 Cal.3d 1014, 1018, 164 Cal.Rptr. 785.)

Another reason given prominence in recent cases is in the nature of an automobile itself as something which justifies a lesser expectation of privacy than other incidents of person and possessions.

“Our treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable.   Nevertheless, we have also sustained ‘warrantless searches of vehicles ․ in cases in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not nonexistent.’  Cady v. Dombrowski, 413 U.S. 433, 441–442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973);  accord, South Dakota v. Opperman, supra, 428 U.S. at 367, 96 S.Ct. at 3096;  see Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975);  Chambers v. Maroney, supra;  Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

“The answer lies in the diminished expectation of privacy which surrounds the automobile:

“ ‘One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects․  It travels public thoroughfares where both its occupants and its contents are in plain view.’  Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion).

“Other factors reduce automobile privacy.  ‘All States require vehicles to be registered and operators to be licensed.   States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways.’  Cady v. Dombrowski, supra, 413 U.S. at 441, 93 S.Ct. at 2528.   Automobiles periodically undergo official inspection, and they are often taken into police custody in the interests of public safety.  South Dakota v. Opperman, supra, at 368, 96 S.Ct. at 3096.”  (United States v. Chadwick (1977) 433 U.S. 1, 12–13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538.)

Decisions which focus upon this policy reason tend to review the problem of the validity of a particular search by examination of the nature of the particular area of the automobile or object within it to be searched.

That great uncertainty exists has been remarked by members both of the United States Supreme Court (e. g., Coolidge v. New Hampshire, supra, 403 U.S. 443, 490, 91 S.Ct. 2022, 2050, 29 L.Ed.2d 564 (concurring opinion of Mr. Justice Harlan) and California Appellate Courts (see Bell v. Superior Court (1980) 101 Cal.App.3d 238, 245, 161 Cal.Rptr. 455.)

In explicit recognition of the uncertainties arising under the Fourth Amendment in the area of automobile searches, the United States Supreme Court has undertaken to clarify the rules in New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 and Robbins v. California (1981) 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744.   In Belton, a New York state trooper stopped an automobile for a speeding violation.   When he approached the vehicle, he observed four men in it.   It also smelled of burnt marijuana and he observed an envelope indicating marijuana on the floor.   He ordered the men from the car and separated them.   Returning to the car, he searched the envelope, finding that it contained marijuana.   The state trooper then searched the passenger compartment of the automobile.   On the back seat, he found a leather jacket, and unzipping one of the pockets, he found cocaine.

The New York Court of Appeals, with two judges dissenting, held the search invalid, because it occurred at a time when there was no longer a danger that an arrestee or a confederate could gain access to the area searched.   The dissenting opinions urged that the fact of a lone officer with four suspects itself established exigent circumstances for the search.

In reversing the New York Court of Appeals, the Supreme Court remarked:

“Although the principle that limits a search incident to a lawful custodial arrest may be stated clearly enough, courts have discovered the principle difficult to apply in specific cases.   Yet, as one commentator has pointed out, the protection of the Fourth and Fourteenth Amendments ‘can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.’  LaFave, ‘Case-by-Case Adjudication’ versus ‘Standardized Procedures':  The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 142.   This is because

‘Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged.   A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be “literally impossible of application by the officer in the field.” ’  Id., at 141.

“In short, ‘A single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’  Dunaway v. New York, 442 U.S. 200, 213–214, 99 S.Ct. 2248, 2257, 60 L.Ed.2d 824.)”  (––– U.S. ––––, ––––, 101 S.Ct. 2860, 2863, 69 L.Ed.2d 768.)

Pointing out that “no straightforward rule has emerged from the litigated cases respecting the questions involved here—the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants,” it observed:

“When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.   While the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant.   Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary item.’  Chimel, supra, 395 U.S. at 763, 89 S.Ct. at 2040.   In order to establish the workable rule this category of cases requires, we read Chimel's definition of the limits of the area that may be searched in light of that generalization.   Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartments of that automobile.

“It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.'  United States v. Robinson [414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427], supra;  Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.   Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.   Thus, while the Court in Chimel held that the police could not search all the drawers in an arrestee's house simply because the police had arrested him at home, the Court noted that drawers within an arrestee's reach could be searched because of the danger their contents might pose to the police.  Chimel v. California, supra, 395 U.S. at 763, 89 S.Ct. at 2040.

“It is true, of course, that these containers will sometimes be such that they could hold neither a weapon nor evidence of the criminal conduct for which the suspect was arrested.   However, in United States v. Robinson, supra, the Court rejected the argument that such a container—there a ‘crumpled up cigarette package’—located during a search of Robinson incident to his arrest could not be searched:  ‘The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.   A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment;  that intrusion being lawful, a search incident to the arrest requires no additional justification.’  Id., 414 U.S. at 235 [94 S.Ct. at 476–77]) (Footnotes omitted.)”  (––– U.S. –––– at ––––, 101 S.Ct. 2860 at 2863–2864, 69 L.Ed.2d 768.)

In Robbins defendant's station wagon was stopped by California Highway Patrol officers for his erratic driving.   When defendant opened the door to obtain his registration, an officer smelled marijuana smoke.   The officer then searched the passenger compartment, discovering marijuana and equipment for its use.   Upon opening the tail gate and the luggage compartment immediately within, they observed a tote bag containing wrapped packages.   The packages were opened, disclosing substantive quantities of marijuana.   The California Court of Appeal upheld the search, based upon a finding of reasonable cause to believe the compartment contained contraband and that the appearance of the packages identified them as containing marijuana.

Reversing, the Supreme Court noted that precedent in United States v. Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 and Arkansas v. Sanders (1979) 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235, gave constitutional protection to containers 4 taken from automobiles and that no distinction should be drawn among the types of containers except those that by their very nature reveal their contents (e. g., a kit of burglary tools or a gun case) or whose contents are in plain view (e. g., because the package is open).   It found the packages containing the marijuana not to reveal their contents.  (453 U.S. at p. ––––, 101 S.Ct. at 2846.)

 As described by the several concurring and dissenting opinions, the purpose of the court in Belton and Robbins was to lay down “bright line” rules for the guidance of persons involved in such arrests, in knowing the scope of their constitutional protection, and of police officers in knowing the scope of their authority.   We glean from these decisions the following rules, which the United States Supreme Court has established to provide such guidance in determining the application of the Fourth Amendment to searches of automobiles incident to a custodial arrest:

l. The officers may search the passenger compartment of the vehicle for weapons or evidence of the crime;

2.  They may search containers within the passenger compartment wherein such items might be concealed by an occupant;

3.  They may search closed compartments only upon a showing of probable cause to believe such compartments contain evidence or contraband;

4.  They may not search containers of any kind within those compartments, except when the container identifies its contents, or permits a plain view of its contents.

Applied to the facts of the present case we believe that these rules compel upholding the search of the Clemmons' station wagon, with one possible exception.

 No question is raised concerning the validity of the defendants' arrest.   From the information given to the officers, they had probable cause to believe that defendants each had attempted to pass forged prescriptions, a felony.   Furthermore, in view of the close proximity in time between their attempts to pass the prescriptions and their arrest, there was probable cause to believe that the forged prescriptions were still in their possession.

 The officers were therefore justified in searching the passenger compartment of the station wagon for such evidence.   In the course of that search, they were further justified in searching containers immediately accessible to defendants within the passenger compartment.   Accordingly, we find no Fourth Amendment violation in the search of the pocket of Mannette's smock or her purse.  (Belton v. New York, supra, 453 U.S. at p. ––––, 101 S.Ct. at 2865.)   With reasonable cause to believe the forged prescriptions to be in defendants' possession, but not having found them in the passenger compartment coupled with Mannette's bizarre behavior inside the vehicle before her arrest, the officers had reasonable cause to search both the luggage compartment and the glove box.   The items found in the luggage compartment were in plain view, wrapped only in an athletic elbow band.  (Cf. Robbins v. California, supra, 453 U.S. at p. ––––, 101 S.Ct. at 2847.)   Similarly, the two forged prescriptions found in the glove box were in plain view immediately upon the box being opened.

 The paper bag found within the glove box was a type of container enjoying constitutional protection.  (Robbins v. California, supra, 453 U.S. at p. ––––, 101 S.Ct. at 2845.)   However, it is unclear from the record whether its contents were visible without it being opened.   We find it unnecessary to decide whether the trial judge should have suppressed the items found in the bag, because their admission into evidence was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   The blank prescription pads were merely cumulative of similar evidence found in the storage compartment, and although additional forged prescriptions were found, they did not pertain to the specific acts of which defendants were charged.

 We find no merit in Mark's additional contentions, that the trial judge failed to instruct the jury as to the specific intent required for the offense of burglary or that he erred in receiving in evidence at the time of the alleged prior conviction a certified copy of Mark's “Summary of Sentence Data” maintained by the Department of Corrections.   The jury was instructed in accordance with standardized instructions which fully covered the subject of the requisite intent (CALJIC 12.05, 1.21, and 3.31.5), and it is well established that a certified copy of a prison record may serve as prima facie proof of a prior conviction.  (People v. Lizarraga (1974) 43 Cal.App.3d 815, 820, 118 Cal.Rptr. 208.)

The judgments are affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Trial of the issue of guilt was bifurcated from trial of the issue of the alleged prior conviction.   Mark testified at trial on the prior conviction.   In addition, he testified at the hearing of defendants' pretrial motion under Penal Code section 1538.5.

2.   Delaudid is a trade name for hydromorphine, a Schedule II controlled substance.

3.   Three motions, in all, were made.   The first was at the preliminary hearing;  the second was made four and one-half months before trial;  and the third was made when the case was called for trial and was allowed by the trial judge to be made because of the intervening decision of this court in People v. Gott (1979) 100 Cal.App.3d 1, 160 Cal.Rptr. 307.   All motions were denied.

4.   Although the opinion uses the general phrase, “a closed container carried in a vehicle” without differentiating the area from which it is removed, we note that Mr. Justice Stewart is the author of both Belton and Robbins.   We construe the phrase to mean containers in compartments of an automobile not readily accessible from the passenger compartment.   The concurring opinion of Mr. Justice Powell makes this clear.

FOSTER, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

FILES, P. J., and KINGSLEY, J., concur. Hearing denied; MOSK, J., dissenting.