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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Juan Carlos ROBLES, Defendant and Appellant.

Cr. 22405.

Decided: November 23, 1981

John Ashford Thompson, Thompson & Thompson, San Jose, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., John W. Runde, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

His motions to suppress evidence (Pen.Code, § 1538.5) and to dismiss the complaint (Pen.Code, § 995) having been denied, appellant, Juan Carlos Robles, negotiated a plea of nolo contendere to the charge of possession of phencyclidine (PCP) in violation of Health and Safety Code section 11377, subdivision (a), and guilty to the charge of driving under the influence of liquor in violation of Vehicle Code section 23102, subdivision (a).   He appeals (Pen.Code, § 1538.5, subd. (m)) contending that the search and seizure of a tinfoil container detected in his automobile was unreasonable;  that the evidence contained therein should have been ordered suppressed;  and further that pursuant to Penal Code section 995, the count charging him with possession of PCP should have been dismissed.

The evidence adduced at the preliminary hearing indisputably established that on April 26, 1980, at approximately 11 p.m., Sergeant Alfred Code of the Santa Clara Police Department was in uniform, driving a marked police vehicle, in the vicinity of Bowers and El Camino, where police barricades had been set up “to block heavy cruiser traffic.”   He testified that he observed a vehicle crash through the barricade and pass him, at which time he gave pursuit.

The vehicle, with only one person inside, proceeded in a “somewhat reckless manner,” passing two vehicles on the shoulder of the road, and weaving in and out of traffic at 60 miles per hour in a 40-mile per hour zone.   The vehicle continued through an area posted at 25 miles per hour, at a speed of approximately 50 miles per hour, pursued by Officer Code, who had all his emergency equipment activated.   The vehicle then passed two cars on the road shoulder, running through a stop sign.   After the vehicle again passed two cars on the right while running through another stop sign, the officer lost sight of it momentarily.

Shortly afterward, Officer Code found the vehicle had collided with another car, and the appellant was still in the vehicle.   As Officer Code approached the vehicle, he “observed the [appellant] laying over towards the passenger's side of the vehicle․  [¶] [L]aying down across and partially on the floorboard of the car.”

Officer Code then had appellant exit the vehicle, and noting him to be dazed, with red and bloodshot eyes and an odor of alcohol on his breath, placed Robles under arrest for driving under the influence of alcohol, reckless driving, and failure to yield to an emergency vehicle.   No sobriety tests were given to appellant at the scene because appellant had earlier fled from the officer.   Sobriety tests were subsequently performed at the station.

After placing Robles under arrest, Officer Code went into the car to search for alcohol.   He “searched underneath the right front passenger's side of the vehicle where [he] had observed the [appellant] laying.”   There he found a piece of tinfoil formed so as to serve as a container.   When he opened the tinfoil he noted two hand-rolled cigarettes which “contained a greenish vegetable matter and sprinkled on the matter was a crystal like substance which [he] believed to be P.C.P.”

Sergeant Code had been employed as a police officer for 11 years;  however, he had never served as a narcotics officer.   He had made approximately five arrests for possession of phencyclidine, and he did not recall making any arrests for driving under the influence of PCP.

Code stated that the tinfoil completely encased the two cigarettes;  he could not see inside the tinfoil;  the tinfoil was “[p]retty close packed”;  and he did not think there was any alcohol inside that tinfoil.   However, “[i]t was [his] feeling ․ through experience of seeing narcotics and things of that nature wrapped up in tinfoil that this might very well contain narcotics.”   Finally, Code testified that he was a patrol sergeant and he had “reviewed many reports, assisted officers in dealings with evidence and [he had] seen numerous cases where evidence of contraband and narcotics have been wrapped in tinfoil.”

It was stipulated that the items admitted in evidence contained phencyclidine and that the blood alcohol test administered to appellant showed a .18 blood alcohol.

 The Superior Court of Santa Clara County, Honorable Marilyn P. Zecher, Judge, presiding, did not err in finding the warrantless search of the tinfoil container permissible under the Fourth and Fourteenth Amendments of the United States Constitution.   It is presently settled that the scope of the traditional exception to the warrant requirement, i. e., search incident to lawful custodial arrest encompasses the search at issue under our federal Constitution.  New York v. Belton (1981) ––– U.S. ––––, ––––, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775, established a workable rule required for this category of cases:  “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 compartment 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.  [Citations.]  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.”

The remaining question, i. e., whether article I, section 13 of the California Constitution proscribed the warrantless search at issue, is not so easily determined involving as it does “extremely intricate case law.”  (See Poché, J.'s, conc. opn. in People v. Piper (1980) 103 Cal.App.3d 102, 114, 162 Cal.Rptr. 833.)

The California Supreme Court has on numerous occasions construed the California Constitution as providing greater protection than that afforded by parallel provisions of the United States Constitution.  (See Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 261, fn. 4, 172 Cal.Rptr. 866, 625 P.2d 779, and cases cited therein.)   The United States Supreme Court has clearly recognized “that state courts are the ultimate arbiters of state law” (People v. Brisendine (1975) 13 Cal.3d 528, 548, 119 Cal.Rptr. 315, 531 P.2d 1099), and that the state has the power to impose higher standards on searches and seizures than required by the federal Constitution if it chooses to do so.  (Ibid., People v. Norman (1975) 14 Cal.3d 929, 939, 123 Cal.Rptr. 109.)  Brisendine further notes while in the search and seizure area the California Supreme Court decisions “have often comported with federal law, yet there has never been any question that this similarity was a matter of choice and not compulsion.”  (Ibid., see also People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4, 123 Cal.Rptr. 297, 538 P.2d 753.)  “The construction of a provision of the California Constitution remains a matter of California law regardless of the narrower manner in which decisions of the United States Supreme Court may interpret provisions of the federal Constitution.”  (People v. Pettingill (1978) 21 Cal.3d 231, 247, 145 Cal.Rptr. 861, 578 P.2d 108.)

We conclude that the warrantless search violated appellant's right of privacy guaranteed by article I, section 13 of the California Constitution and reverse the judgment and order count one of the information dismissed.

 We reason that Officer Code properly arrested appellant, among other obvious traffic violations, for driving under the influence of an intoxicating liquor.  (Veh.Code, § 23102.)   The record (transcript of the preliminary examination, dated July 22, 1980, Honorable Louis C. Doll, J.) will not fairly admit of a finding that Officer Code arrested appellant for “the combined influence of intoxicating liquor and any drug, ․” (Veh.Code, § 23102.)   True, on cross-examination Officer Code responded to the question “And it was your opinion he was under the influence of alcohol?” by answering “Yes, or a combination.”   A review of the entire record convinces this court that Sergeant Code's afterthought (“combination”) resulted from the otherwise adept cross-examiner's violation of a cardinal rule of the “trade,” i. e., avoid asking the needless one too many questions.   Even if it be said that the answer is in and constitutes substantial evidence, it appears that defense counsel pursued the witness and succeeded in placing the client's rights on firm ground.   Defense counsel countered, “Well, you didn't see any symptoms that indicated any under the influence of drugs, did you?”   Sergeant Code answered “No.”   On direct examination Code's testimony did not articulate a belief that appellant's driving was under the influence of a “combination” of liquor and drugs.   When asked by the prosecuting attorney:  “All right.   And what was he placed under arrest for,” he answered, “For reckless driving, driving under the influence of alcohol, failure to yield to an emergency vehicle.”   We find that at the time of arrest Sergeant Code did not entertain a subjective belief that appellant had been driving under the combination of intoxicating liquor and drugs.   If it is arguable that we are compelled to find otherwise, in light of Code's testimony that he did not detect in appellant symptoms of drug use, we would be compelled to find that his asserted subjective belief was unreasonable.   In our view, then, we analyze the problem presented herein within the context of a lawful custodial arrest for driving under the influence of intoxicating liquor.

 Sergeant Code, having obtained the PCP cigarettes by means of a search without a prior determination of probable cause to search by a neutral and detached magistrate, under article I, section 13 of the California Constitution, the People have the burden of showing the per se unreasonable search was justified.  (See People v. Norman, supra, 14 Cal.3d 929, 933, 123 Cal.Rptr. 109.)   The People in assuming their burden initially seek to justify the warrantless search herein as falling within the scope of the recognized exception “search incident to lawful custodial arrest.”   The People rely upon People v. Robinson (1965) 62 Cal.2d 889, 44 Cal.Rptr. 762, 402 P.2d 834;  “Robinson clearly authorizes the search which disclosed the tinfoil package;  appellant does not contend otherwise.”   We agree that People v. Robinson, supra, at page 894, establishes that Sergeant Code could lawfully examine the interior of appellant's automobile for the presence of the evidence for which he was placed under arrest, i. e., the liquor containers.   Further Robinson establishes that as long as Code's search remained reasonable in scope he could, upon observation, seize evidence of other crimes.   However, we sense from respondent's brief that it is appreciated that in California, Robinson, is not dispositive of the ultimate issue presented herein, i. e., the need, if any for an immediate warrantless search.   In Robinson, a closed container evidencing a legitimate expectation of privacy was not involved.   The officers in Robinson, after placing Robinson and his companion under arrest for drunkenness in public, thoroughly searched the interior of the automobile they were occupying.   None of the items of evidence they seized were found by opening closed containers.   The seizures of a union book, hospital and blood donor cards and a personal check all bearing the name McCullum, together with a concealed check protector, were held to be reasonable seizures of evidence of another crime (forgery) to which the police were not required to close their eyes.

 The People's alternative argument recognizes that the warrant requirement requires that this court weigh in the balance the needs of law enforcement and appellant's right of privacy.   The People argue that the expectation of privacy in a tinfoil packet of the size and shape here involved is so reduced as to dispense with the warrant requirement.  (It is only fair to state that briefing was completed before July 1, 1981.   On that date the United States Supreme Court filed New York v. Belton, supra, 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.)   The plurality opinion in Robbins refused to discriminate between containers noting that “[w]hat one person may put in a suitcase, another may put into a paper bag.”  (At p. ––––, 101 S.Ct. at 2846, 69 L.Ed.2d at p. 751.)   Significantly, only Justice Powell, among all the justices, expressed in Robbins any support for the “unworthy container” doctrine urged by the People herein.   Consequently, the analysis in People v. Fick (1980) 107 Cal.App.3d 892, 166 Cal.Rptr. 106 (paper bag);  People v. Diaz (1980) 101 Cal.App.3d 440, 161 Cal.Rptr. 645 (soft drink cup with opaque plastic top);  and People v. Suennen (1980) 114 Cal.App.3d 192, 170 Cal.Rptr. 677 (pillow case) as regards “reasonable expectation of privacy” is open to question in light of the Robbins decision.   In People v. Pace (1979) 92 Cal.App.3d 199, 206, 154 Cal.Rptr. 811, this court reasoned that the justification for the “search incident to arrest” exception to the warrant requirement is the twofold need to protect, i. e., the officer's well being and the security of evidence.   And once the container is reduced to the exclusive control of law enforcement, generally no exigency exists justifying the warrantless search.   Rather than beg the question, we hold that appellant had a justifiable expectation of privacy in his tinfoil container and will determine whether the policy justifications for permitting warrantless searches incident to arrest existed at the time of the intrusion in this case.   The Attorney General decries this approach and urges that because Sergeant Code had probable cause to search the tinfoil container, “a determination of whether the search may be justified” is “unnecessary.”   If our understanding of the rationale of People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, cert. den. 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 117, is correct, we are compelled to disagree even when we assume, without deciding, that probable cause to search the tinfoil container existed.

People v. Minjares, supra, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, is, of course, easily distinguishable from the case at bench.   The majority, four members of whom presently serve on the court, held invalid under the Fourth Amendment the warrantless search of a tote bag found in the trunk of an automobile.   The People had argued primarily the “automobile” exception in justification for the warrantless search.   The People have not argued that exception herein.   True, Minjares' right of privacy was not adjudicated under the state Constitution.   However, in the aftermath of United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, there was no reason in California to define what can be searched incident to arrests in California differently than defined under the Fourth Amendment.   Consequently, we find the narrow holding in Minjares highly significant in reaching our decision herein.

“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. at p. 15, fn. 9, 97 S.Ct. at p. 2485, fn. 9 ․;  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.   [Citations.]”  (Minjares, supra, 24 Cal.3d at p. 423, 153 Cal.Rptr. 224, 591 P.2d 514.)

Clearly if Minjares' tote bag had been found by the police in the passenger compartment, Belton's “workable rule” would wipe out the Minjares court's distinction between seizing and searching closed containers upon probable cause.   It would only needlessly prolong this opinion to demonstrate the obvious.   In a series of opinions, the California Supreme Court has developed criteria more exacting than minimum federal standards for determining the permissible scope of a search of an arrestee being transported by police officers.  (See People v. Maher (1976) 17 Cal.3d 196, 199, 130 Cal.Rptr. 508, 550 P.2d 1044;  People v. Norman, supra, 14 Cal.3d 929, 123 Cal.Rptr. 109;  People v. Brisendine, supra, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099;  People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205.)   The above cited cases demonstrate that our California Supreme Court in reviewing warrantless searches incident to lawful custodial arrests shuns application of hard and fast rules.   The state's high court on a case by case basis has balanced the ever present tension between the needs of law enforcement and the individual's right of privacy by adhering to the warrant requirement until and unless an exception is compelled by exigent circumstances.   One need only read People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467 cert. den. 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781, to grasp the present commitment of the California Supreme Court to the distinction it has developed under the rubric of right of privacy.  “Accordingly, this court holds that in the absence of exigent circumstances which require an immediate search, probable cause furnishes sufficient grounds only for a warrantless seizure and immobilization of the closed containers pending the issuance of a search warrant.  [Citations.]”  (Dalton, supra, 24 Cal.3d at p. 860, 157 Cal.Rptr. 497, 598 P.2d 467.)

 Accordingly, assuming arguendo that Sergeant Code, with probable cause, believed appellant's tinfoil container might contain narcotics, we hold that a warrant was required before the seized container could be searched.   The warrantless search was invalid under article I, section 13 of the California Constitution.   The judgment entered in the count alleging a violation of Health and Safety Code section 11377, subdivision (a) is reversed.   Further the charge (possession of PCP) is dismissed since the PCP cigarettes constituting the People's case were erroneously admitted in evidence.   (Chapman v. California (1967) 386 U.S. 18, 23–24, 87 S.Ct. 824, 827–828, 17 L.Ed.2d 705.)

WHITE, Presiding Justice.

FEINBERG and STERN,* JJ., concur.