PEOPLE v. RUGGLES

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

The PEOPLE, Plaintiff and Respondent, v. David Wendell RUGGLES, Defendant and Appellant.

Cr. 35011.

Decided: January 06, 1983

Paul W. Grace and Stephen Yagman, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders, John R. Gorey, and Shunji Asari, Deputy Attys. Gen., for plaintiff and respondent.

INTRODUCTION

This case is unusual from a Procedural Law aspect since this is the third opinion filed by this court on this case which has wended its way to the United States Supreme Court on two different occasions.   On the first occasion, the high court granted a petition for a writ of certiorari filed on behalf of the defendant and, on the second occasion, granted a petition for a writ of certiorari filed on behalf of the People of the State of California by the State Attorney General.

This case is also important from the Substantive Law aspect in the criminal law field in that it involves construction of the United States Supreme Court decision in United States v. Ross, (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572.

Defendant David Wendell Ruggles (hereinafter defendant and/or Ruggles) appeals from a judgment of conviction after pleading guilty to one count of Robbery in violation of Penal Code, Section 211 1 and admitting using a firearm in the course of the robbery (Section 12022.5) and having been convicted of three of six alleged prior felony convictions, following denial of his motion to suppress evidence pursuant to Section 1538.5.   The defendant seeks a reversal on the grounds that his motion to suppress was improperly denied in that his Fourth Amendment rights against unreasonable search and seizure were violated.

PROCEDURAL HISTORY

On February 2, 1979, by way of a two-count information defendant Ruggles was charged with the robbery of John Carragher on July 24, 1978, using a 9 millimeter automatic pistol (count I) and with possession of a firearm by an ex-felon on January 3, 1979, in violation of Penal Code section 12021.

An amendment to the information alleged that defendant Ruggles suffered six prior felony convictions for which he served time in state prison, namely:  (1) and (2) convicted of conspiracy and robbery in the first degree, felonies, in the County of Los Angeles, State of California, on May 16, 1962;  (3) convicted of robbery in the first degree, a felony, in the County of Los Angeles, State of California, on April 3, 1969;  (4) convicted of robbery in the first degree, a felony, in the County of Santa Clara, State of California on April 3, 1969;  (5) convicted of the crime of escape from custody, a felony, in the County of Santa Clara, State of California, in violation of section 453, subdivision (b) on October 3, 1969;  and (6) convicted of assault with a deadly weapon, a felony, in violation of section 245.   Each of the foregoing priors alleged that in each of the above listed felonies he committed an offense resulting in a felony conviction during a five-year period subsequent to the conclusion of said term within the meaning of section 667.5, subdivision (b).

On February 5, 1979, the defendant represented by court appointed counsel pleaded not guilty as charged.

On February 27, 1979, the defendant denied the alleged six prior felony convictions and made a motion to suppress evidence pursuant to section 1538.5.   The People moved to have the instant case (No. A347889) consolidated with case number A348227.2

On March 29, 1979, the defendant's motion to suppress pursuant to section 1538.5 was heard and denied.   The evidence consisted of pages 4 through 32 of the preliminary hearing transcript (to be considered by the court pursuant to stipulation of the parties) and the additional testimony of prosecution witnesses Robert G. McSweeney and Jerry Lee Brooks and the testimony of defendant Ruggles limited to the motion to suppress.

On the same date, following denial of defendant's motion to suppress evidence and pursuant to a negotiated plea, defendant withdrew his not guilty plea and pleaded guilty to count I (robbery), admitted the use allegation pursuant to section 12022.5 and admitted three of the six prior convictions.

Thereafter defendant Ruggles waived a probation report and requested immediate sentencing.   He was sentenced to state prison for a total of nine years which could be served in any federal or state penal institution and said sentence to be served concurrently with any term the defendant may currently be serving.

On the People's motion, apparently in accordance with the plea bargain, the court, “in the interest of justice,” dismissed count II of the instant case (No. A347889);  dismissed three of the alleged priors which were not admitted;  and dismissed the single robbery count in case No. A348227.  (See fn. 2, ante.)

On April 11, 1979, defendant Ruggles filed his notice of appeal and appellate counsel was appointed at public expense.

On June 16, 1980, a panel of this court filed its unanimous unpublished opinion People v. David Wendell Ruggles, 2 Crim 35011, (per Hanson (Thaxton) J., Lillie, Acting P.J., and Radin, J.* , concurring) holding that defendant's section 1538.5 motion was properly denied and affirming the judgment of conviction.

On August 13, 1980, the California Supreme Court, “In Bank,” denied defendant Ruggles' petition for a hearing.  (Bird, C.J. [was] of the opinion the petition should be granted.)

On November 6, 1980, defendant Ruggles filed a petition with the United States Supreme Court seeking to proceed in forma pauperis and for a writ of certiorari.   The sole question presented to the United States Supreme Court in his petition for a writ of certiorari before that Court was as follows:  “Was the warrantless search of petitioner's briefcase, while it was under the exclusive control of the police, invalid thereby necessitating the granting of petitioner's motion to suppress?”

On July 2, 1981, the United States Supreme Court granted defendant Ruggles' petition for leave to proceed in forma pauperis and his petition for writ of certiorari.   The clerk of the Court advised this court that “[T]he judgment is vacated and the case is remanded to the Court of Appeal of California, Second Appellate District, for further consideration in light of Robbins v. California (1981) 453 U.S. 420, 438 [101 S.Ct. 2841, 2852, 69 L.Ed.2d 744].”  453 U.S. 919, 101 S.Ct. 3154, 69 L.Ed.2d 1001.

The Robbins case was decided on July 1, 1981.

On November 10, 1981, following supplementary briefing and oral arguments in respect to the United States Supreme Court Robbins opinion, a different panel of this court in a split decision filed its published opinion reversing the Judgment of Conviction (People v. Ruggles (1981) 125 Cal.App.3d 473, 178 Cal.Rptr. 231;  Hanson (Thaxton) J. filed a separate dissenting opinion)

On January 27, 1982, the California Supreme Court “In Bank,” denied the Peoples petition for a hearing.  (Richardson, J. [was] of the opinion that the petition should be granted).

On March 24, 1982, the Attorney General of the State of California filed with the United States Supreme Court on behalf of the State of California a “Petition for a writ of certiorari to the Court of Appeal of the State of California.” 3

On October 4, 1982, the United States Supreme Court entered the following order 459 U.S. 809, 103 S.Ct. 34, 74 L.Ed.2d 47:

“ON CONSIDERATION WHEREOF, it was ordered and adjudged on October 4, 1982, by this Court that the judgment of the Court of Appeal in this cause be vacated, and that this cause be remanded to the Court of Appeal of California, Second Appellate District, for further consideration in light of United States v. Ross, 456 U.S. 798 [102 S.Ct. 2157, 72 L.Ed.2d 572] (1982).”

The Ross case was decided on June 1, 1982.

On November 15, 1982, the previous opinion of this court filed on November 10, 1981, having been ordered “vacated” and the cause “remanded” to this court, oral arguments were conducted, supplemental briefs having been furnished this court by the parties hereto.

The decision to reset the matter for oral argument and to request supplemental briefs was predicated on the fact that the November 10, 1981 opinion in the case at bench had been “vacated” by the United States Supreme Court and the matter was “remanded” for further consideration in light of United States v. Ross, (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572.

 Further, it is clear that when our November 10, 1981 opinion in the instant case was “vacated” by the United States Supreme Court and the matter “remanded” to us that upon such a “remand” we are authorized to decide the issue anew so that “a new judgment may be entered.”  (See Dixon v. Duffy (1952) 344 U.S. 143, 146, 73 S.Ct. 193, 194, 97 L.Ed. 153.)   The California Supreme Court acknowledged its authority to “alter” an original opinion if it so desired after its original opinion is vacated and the matter remanded by the United States Supreme Court in the case of People v. Braeseke (1980) 28 Cal.3d 86, at page 87, 168 Cal.Rptr. 603, 618 P.2d 149.   A fortiori, this reviewing court is clothed with the same authority by reason of the procedural posture of the case at bench as hereinbefore described.

Accordingly, supplemental briefs and reargument having been considered, our new opinion follows:

FACTS

THE PRELIMINARY HEARING:

The testimony of John Carragher contained in the reporter's transcript of the preliminary hearing conducted on January 18, 1979, and considered by the superior court at the 1538.5 hearing on the motion to suppress pursuant to stipulation was substantially as follows:

Witness John Carragher testified that on July 24, 1978, while a manager of the Nutel Motel in Los Angeles he was robbed;  that about two weeks prior to the robbery defendant Ruggles came to the motel and represented that he was a police officer with the Treasury Department and presented a badge;  that the defendant said he was on “a narcotic bust” involving room 122 and wanted some information;  that it was not unusual for police to come seeking information with problems involving the motel and he (Carragher) cooperated with defendant;  and that this first contact with the defendant lasted about ten minutes.

Victim Carragher further testified that on July 24, 1978, defendant Ruggles reappeared at the motel.   Debbie Doan, the PBX operator, called to Carragher who was in his office and said “this police officer is out here to see you.”   Mr. Carragher said to “come right in” whereupon two men entered his office, the taller of the two being defendant Ruggles whom he had talked to several weeks before when he represented himself as a police officer;  that after the two men were in his office the defendant said he had brought some photographs which he (defendant Ruggles) had referred to during his previous visit;  that Ruggles introduced him to his partner and as Carragher reached out to shake his hand defendant Ruggles pulled an automatic pistol out of his coat and said:  “If you don't keep quiet, I will blow your f head off;”  that since it was after the holidays there was about four days' receipts amounting to approximately $5,000 in cash and checks on his desk;  that defendant Ruggles ordered him to open the safe and defendant took a bank, some bills and an envelope containing Japanese yen and money orders;  that Carragher was handcuffed with his hands behind his back and told to get on the floor on his knees where his legs were tied and Ruggles' partner stuffed cotton in his mouth and sealed it with tape;  and that the robbers were in his office a total of about 10 minutes and when they left they put his coat over his head and told him not to make any noise for at least 10 minutes.

Witness Carragher made a tentative identification of Ruggles from a series of mug shots as the person who posed as a police officer and robbed him on July 24, 1978.   The witness also identified defendant Ruggles in a subsequent lineup and from the defendant's passport photograph.   The person who was with defendant Ruggles was a Latin of stocky build and much shorter than Ruggles with a pock-marked face.

THE MOTION TO SUPPRESS HEARING:

Police officers Robert G. McSeveney and Jerry Lee Brooks and defendant Ruggles were the only witnesses to testify at defendant's motion to suppress evidence pursuant to section 1538.5 held on March 29, 1979.   Their testimony is substantially as follows:

Witness Robert G. McSeveney, assigned to the robbery-homicide division of the Los Angeles Police Department with 24 years experience, testified that in the latter part of November 1978 he received information from Sergeant Morosky of the intelligence division that Sergeant Morosky had received information from an informant that defendant Ruggles, a parolee who had been in prison for armed robbery, was living in the San Pedro area of Los Angeles at 566 West 7th Street, was driving a black over red Mercury Montego and was pulling robberies in the Los Angeles area, and that Ruggles had been involved in a motel robbery in Los Angeles accompanied by a male Latin and had used a blue steel automatic and handcuffs in the commission of the robbery.

Officer McSeveney testified that based upon the information from Sergeant Morosky he checked with the records division and came up with a “David Wendell Ruggles who had been arrested and had been in prison for robbery, had been paroled to the County of Los Angeles.”   The records disclosed a description of Ruggles as “a male, Caucasian, approximately 38 or 39 years old, he was over six feet tall, weighed over 200 pounds, and had reddish hair.”   Officer McSeveney then pulled what is called “a police package” which showed “a series of arrests and the nature of the crimes which Ruggles had been processed for in the past.”   Having been advised by Sergeant Morosky that the informant had said Ruggles had been involved in a motel robbery, Officer McSeveney checked police records for current outstanding robberies in the Los Angeles area including all hotel-motel robberies with Caucasian suspects and came up with the Nutel Motel on West 3rd Street.

Officer McSeveney also talked to other local law enforcement officers concerning incidents defendant Ruggles had been involved in in Los Angeles and talked to investigators in other jurisdictions.   He was advised that defendant Ruggles two or three times prior to the Nutel Motel robbery had posed as a state narcotics officer and showed a badge;  that in the City of Orange during an aborted robbery attempt in a restaurant in which defendant was shot, he [Ruggles] posed as a law enforcement officer from the treasury department checking out possible counterfeit money.

Thereafter Officer McSeveney obtained a booking photograph of Ruggles from prior arrests and convictions and driver's license photograph and prepared a photo lineup card including Ruggles' photograph which he took to the Nutel Motel.   There Carragher identified Ruggles and at that time the officer believed he had probable cause to arrest Ruggles for the robbery of the motel.

The officers did not arrest defendant Ruggles immediately because they were still attempting to identify the second suspect in the robbery.   The information collected on Ruggles was given to the surveillance unit which had a helicopter surveillance on his San Pedro residence in an effort “to identify the second suspect or the person that he was running with at the time.”

On January 2, 1979, Officer McSeveney and his partner Sergeant Stein were informed by Sergeant Morosky of intelligence that the same informant said Ruggles “was going to pull a major robbery, probably the following day” (Jan. 3, 1979).   The informant indicated there were to be two people on the robbery and he was to pick up the second suspect near Reseda Boulevard and the Ventura Freeway and to rob a jewelry store in Santa Barbara.   Officer McSeveney stated that the information from the informant was “that there would be two handguns used, one being a blue steel automatic.   He also indicated that Mr. Ruggles normally would carry one of the weapons in the small of his back, and that he would probably have the second weapon in a briefcase or satchel with him.”   The information also was to the effect that Ruggles was armed and dangerous and was involved in two shoot-outs—one in Orange County and one in Beverly Hills.

The foregoing information was communicated to the surveillance team who were to conduct surveillance the following morning (Jan. 3, 1979) with instructions that if Ruggles was leaving the County of Los Angeles he was to be stopped and arrested.   Officer McSeveney was not present when defendant Ruggles was arrested.

Witness Jerry Lee Brooks, who had 18 years' experience with the special investigation section of the detective investigative support division of the Los Angeles Police Department, was with the team surveilling defendant Ruggles on the morning of January 3, 1979.

Officer Brooks testified that before starting the surveillance other officers gave him a description of the defendant and the vehicle he would be driving with the license number.   They also told him that defendant Ruggles had a prior criminal record and had probably been involved in numerous robberies in the Los Angeles County area and previously was involved in a specific motel or hotel robbery.   Officer Brooks stated that he was told “That he [Ruggles] usually carried two handguns, one being carried in the small of his back area, and the other, usually carried in a brown attache case.  [¶] And when the second gun that he carried in the small of his back, when it was not there, was always carried in a brown attache case.  [¶] That he and another individual or other individuals had been involved in these robberies, or several robberies.   [¶] That he may be or was in the process or may be preparing to commit another robbery.  [¶] And that he would be in the area of Reseda Boulevard and Ventura Freeway on that particular date, or thereabouts.  [¶] I was also informed that if he should leave, or during this surveillance, if it appeared that he was attempting to leave the County of Los Angeles, that he should be taken into custody on robbery charges.”

Officer Brooks further testified that at about 7 a.m. on January 3, 1979, in an unmarked police vehicle along with other police vehicles, surveillance of defendant was set up in the vicinity of Reseda Boulevard and the Ventura Freeway in the San Fernando Valley;  that he observed defendant Ruggles in the red Cougar with license number described drive northbound onto Reseda Boulevard from the Ventura Freeway off ramp;  and that he [Officer Brooks] followed the defendant and saw him make several turns on surface streets and then park at the curb.

Officer Brooks stated that he observed defendant Ruggles, who was the driver, exit the vehicle and as he did so he continuously looked up and down the street, back and forth, from one side of the street to the other, in all directions;  that Ruggles then walked to the trunk area of the vehicle, still looking around, and opened the trunk and removed a brown attache case and then closed the trunk;  and that Ruggles continued looking in different directions, walked southbound and entered an apartment building complex where he remained for 10 to 15 minutes.   Officer Brooks further testified that “He [Ruggles] exited the apartment building complex and walked towards the car, once again looking up and down the streets, or in different directions, went to the trunk of the vehicle, opened the trunk, placed the briefcase in—the same briefcase in the trunk of the vehicle, closed it, got into the vehicle, drove it off, westbound on Reseda to, I mean, westwound [sic ] towards Reseda and then southbound on Reseda towards the freeway.”

Officer Brooks further testified that he earlier had received information specifically in respect to the attache or briefcase to the effect “That at least one of the guns that the defendant had was kept in that particular briefcase, and when he was not carrying the other gun that he usually carried in the small of his back, it was also in the briefcase.”

Officer Brooks followed defendant who first stopped in a gas station for a few minutes and then continued south on Reseda Boulevard to the Ventura Freeway and made a right-hand turn onto the on ramp of the Ventura Freeway westbound.   When it appeared defendant Ruggles was going to leave Los Angeles County area, defendant's vehicle was stopped and he was placed under arrest.

Officer Brooks stated the defendant's vehicle was traveling in the number one (fast) lane of the freeway and a marked black and white police car with red lights on pulled up behind defendant's vehicle and it pulled into the center divider;  that the marked police vehicle following pulled up behind defendant's vehicle followed by several other police vehicles which pulled in behind the black and white while Officer Brooks pulled up in front of defendant's vehicle.

As soon as the defendant stopped, he immediately exited his vehicle.   The officers ordered him to raise his hands and he complied.   The defendant was then ordered to lay prone on the center divider area and he was patted down, handcuffed and informed he was under arrest.   The defendant was then stood up against a chainlink fence in the middle of the freeway center divider.   Officer Brooks peered into defendant's vehicle from the outside and stated that “In the backseat I could see, in plain view, what is commonly referred to as a hype kit or syringe and needle.   And I believe there was [sic ] two of them.   But I could definitely see one complete syringe and needle.  [¶] And there was two vials or little vials of some type, or the type that I have seen in the doctor's office, that contain various types of narcotics.   Had a label on the outside.   Small label.   There was also a large liquid container with tinfoil around it laying on the backseat․  First thing I observed, or, back up a bit, when I peered into the vehicle, I observed a small hand-held scanner, commonly known as a scanner, which picks up police calls, in the front seat of the vehicle.”

The officer testified he had four or five years experience in narcotics and formed the opinion “That the needle and syringe was—a needle and syringe, commonly known as hype kit, and the vials were vials that contained some type of liquid narcotics or tranquilizer.   But it is the particular type of bottle not normally dispensed over the counter, like if you would buy it from a pharmacy.   When asked if he [Officer Brooks] believed the items were controlled substances he answered “Yes.”

Officer Brooks asked Ruggles if he could search the trunk.   The defendant said:  “S, I don't care.   Go ahead.”   Officer Brooks went to defendant's car and looked in the ignition but the key wasn't there.   Ruggles then either took it out of his pocket or was still holding it in his hands and opened the trunk.

When Officer Brooks opened the trunk, he observed “a large, approximately 18 inches by 11 inches by 3 or 4 inches, what is called a Bearcat scanner, which picks up police calls.   It has a wide-range of different frequencies․ sitting right next to the brown briefcase.”   In addition, there was “The brown briefcase.   There was another brown bag.   I believe there was an overcoat.   There was a change of clothes of some type.  [¶] There were other items in the trunk of the vehicle.   I can't recall which particular item was in the briefcase and which item was laying scattered about the trunk.   But there were also masks, halloween-type masks with tape over the eyeholes, four or five of those.   Handcuffs, a sap, a brown or stocking knit-type cap.   Numerous other—on, there was a manual that is produced or put out by, I believe, one of the scanner companies that said, ‘Police Frequencies,’ which gave all the police frequencies that could be picked up on these particular scanners throughout the Southern California or local area.”

Officer Brooks, who opened the unlocked tan briefcase by releasing “a couple of catches” and assisted in preparing an itemized property report, stated that the briefcase contained “Both guns, [one being in an unzipped shaving-type case] the ammunition, the holster, sap, handcuffs, some of the gloves.   There were quite a few gloves.   Flashlight, [and] a bandanna․”

Officer Brooks also opened two duffel-type bags found in the trunk in addition to the briefcase.   In one bag was “about a three-foot sledge-type hammer and miscellaneous clothes.”   There were also two hats and a knit cap.

Defendant Ruggles testified only as to the events surrounding his arrest.   He stated that around 8 o'clock on January 3 he was driving westbound in the number one (fast) lane of the Ventura Freeway when a police car came up behind him with its red lights on;  that he pulled into the center divider and stopped and got out and an officer with a shotgun said:  “Put your hands in the air and lay on the ground;”  that he [Ruggles] hesitated not more than two seconds and the officer said:  “Or I'll blow your f head off;”  that the officers rushed in and put his arms behind him;  that an officer said:  “It is lucky that you didn't make a move towards your coat”;  that one officer said:  “Can I look in your car?” and he [Ruggles] said:  “S, you are going to do what you want to do anyway” and an officer yanked the keys from his hand.   Defendant Ruggles denied that he gave the officers consent to go into the trunk of his car.

The trial court, after parties rested, argued and submitted the matter, denied defendant's motion to suppress finding that the officers had probable cause to arrest defendant Ruggles and therefore the right to stop his vehicle;  that the narcotics paraphernalia inside the vehicle observed through the window was in plain view and subject to seizure;  and that although defendant did not voluntarily consent to the search of the trunk since any such consent constituted a submission to the assertion of authority, the officers were nevertheless justified in searching the trunk and the briefcase and bags therein since there was a definite nexus between the information known to the police officers and the contents thereof consisting of weapons and other possible instrumentalities of crime.

ISSUES

On appeal defendant Ruggles contends (1) that the officers did not have probable cause to arrest him;  (2) that Officer Brooks did not have sufficient probable cause to conduct a warrantless search of the trunk of his car;  and (3) that the search of the briefcase without a warrant was illegal.

DISCUSSION

We summarily dispose of the defendant's first two contentions on appeal, i.e., that there was insufficient probable cause to arrest and to conduct a warrantless search of the trunk of his car.   These two contentions were unanimously rejected and held to be without merit by two separate panels of this court, in their opinions previously filed on June 16, 1980 (People v. Ruggles (1980) 2 Crim. No. 35011, unpublished) and November 10, 1981 (People v. Ruggles, supra, 125 Cal.App.3d 473, 178 Cal.Rptr. 231.)   Moreover, the California Supreme Court denied defendant's petition for a hearing as to both of the foregoing opinions and the United States Supreme Court in vacating and remanding both of the foregoing opinions only addressed the third contention which is the determinative issue on this appeal.

 We hold that the evidence introduced at the 1538.5 hearing amply supported the trial court's determination that probable cause existed for his arrest without a warrant.   In a 1538.5 hearing, the trial court sits as the trier of fact.   It is the role of the reviewing court only to measure the facts, as found by the trier, against the constitutional standard of reasonableness.  (People v. Lawler (1973) 9 Cal.3d 156, 160, 507 P.2d 621.)   Probable cause to arrest without a warrant is based upon the facts known to the officers at the time of the arrest.  (People v. Lara (1967) 67 Cal.2d 365, 373–374, 62 Cal.Rptr. 586, 432 P.2d 202, cert. den., 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407.)   The standard is whether “․ a man of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty.   [Citations.]”  (People v. Cockrell (1965) 63 Cal.2d 659, 665, 47 Cal.Rptr. 788, 408 P.2d 116, cert. den., 389 U.S. 1006, 88 S.Ct. 568, 19 L.Ed.2d 604.)

Officer McSeveney's belief that Ruggles may have been connected with the Nutel Motel robbery was substantiated by information he obtained from the employees of the Nutel Motel.   As a result of information obtained by Officer McSeveney's investigation and Carragher's identification of defendant, the police had reasonable cause to believe that Ruggles had participated in the Nutel Motel robbery and probable cause to arrest him.4

 The automobile exception is applied where the seizing officer has probable cause to believe that the contents of the automobile offend against the law.  (Carroll v. United States (1925) 267 U.S. 132, 155–156, 158–159, 45 S.Ct. 280, 286, 287, 69 L.Ed. 543.)   This requirement is satisfied in the case at bench because the evidence disclosed that immediately prior to defendant's arrest the officers received a second tip from the original informant saying that defendant was planning another crime and had two handguns in his possession.   Police are entitled to rely on such information when it is shown that both the informant and his information are reliable as in the instant case.  (Aguilar v. Texas (1964) 378 U.S. 108, 114–115, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723.) 5

We turn now to the third and determinative issue of this appeal, i.e., as to whether or not the warrantless search [opening] of defendant Ruggles' [unlatched] briefcase which was found in the trunk of his car at the scene of the lawful arrest violated his Fourth Amendment Rights against unreasonable search and seizure.

The United States Supreme Court has remanded this case to this court for further consideration in light of United States v. Ross (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572.

By way of background, on July 1, 1981 the United States Supreme Court handed down the companion cases of 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 the high court held 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 compartment of that vehicle,” including any containers found in it.

In Robbins the high court addressed the search of the trunk of a vehicle, as distinguished from the passenger compartment of a vehicle as in Belton, and in a plurality decision authored by Mr. Justice Stewart rejected the contention that the “automobile exception” (Carroll v. United States (1924) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543) warranted the search of a green plastic bag found in the trunk.

In Belton and Robbins the high court sought to establish a new “bright line” rule in vehicular searches.   However, it did not succeed in Robbins since Mr. Justice Stewart's opinion was signed only by a plurality and therefore is without force as precedent.  (Eaton v. Price (1960) 364 U.S. 263, 264, 80 S.Ct. 1463, 1464, 4 L.Ed.2d 1708;  North v. Superior Court (1972) 8 Cal.3d 301, 308, 104 Cal.Rptr. 833, 502 P.2d 1305;  People v. McKinnon (1972) 7 Cal.3d 899, 911, 103 Cal.Rptr. 897, 500 P.2d 1097.)

In Ross it was acknowledged that the court's decision is “inconsistent with the disposition in Robbins v. California and with the portion of the opinion in Arkansas v. Sanders in which the plurality in Robbins relied.”   Mr. Justice Blackman concurred in the opinion and judgment in Ross pointing out that it is important “for the Court as an institution, but also for law enforcement officials and defendants, that the applicable legal rules be clearly established in order to clarify a good bit of the confusion that has existed.”

In Ross, acting on information from an informant that a described individual was selling narcotics kept in the trunk of a certain car parked at a specified location, District of Columbia police officers immediately drove to the location, found the car there, and a short while later stopped the car and arrested the driver (Ross) who matched the informant's description.   One of the officers opened the car's trunk, found a closed brown paper bag, and after opening the bag, discovered glassine bags containing white powder (later determined to be heroin).   The officer then drove the car to headquarters, where another warrantless search of the trunk revealed a zippered leather pouch containing cash.

Defendant Ross was convicted of possession of heroin with intent to distribute—the heroin and currency found in the searches having been introduced in evidence after the defendant's pretrial motion to suppress the evidence had been denied.

The Court of Appeals reversed the conviction, holding that while the officers had probable cause to stop and search defendant Ross's car—including its trunk—without a warrant, they should not have opened either the paper bag or the leather pouch found in the trunk without first obtaining a warrant.

 The United States Supreme Court in Ross reversed the judgment of the Court of Appeals, holding that police officers who have legitimately stopped an automobile and who have probable cause to believe the contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant, and that the “automobile exception” to the Fourth Amendment's warrant requirement established in Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, applies to searches of vehicles that are supported by probable cause to believe that the vehicle contains contraband.   In this class of cases, a search is not unreasonable if based on objective facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.

The “bright line” rule established in Ross is not unlimited.   It only applies when there is probable cause to justify the search.   In the high court's examples, probable cause to believe a stolen lawnmower is in a garage, does not justify search of an upstairs bedroom;  nor does cause to believe that a van holds undocumented aliens justify search of a suitcase.

The facts in Ross, set forth above, are somewhat analogous to the instant case.   On those facts the Ross court held the warrantless search of the closed brown paper bag and zippered leather pouch to be proper since the police officers had probable cause to believe that contraband was concealed somewhere within the car.   The Ross court concluded that since the police officers had probable cause to search the entire vehicle that they could lawfully conduct the warrantless search of every part of the vehicle and its contents, including all containers and packages, that may contain the object of the search.  (See United States v. Ross, supra, 102 S.Ct. at pp. 2162–2172.)

 Applying the holding in Ross to the case at bench, it is clear that the warrantless search of the briefcase found in the trunk of defendant Ruggles' car was justified on federal constitutional grounds.   Here, the police officers opened an unlocked briefcase found in the trunk of the defendant's car following his lawful arrest for robbery.   At the time of the arrest, the police officers had information from a reliable informant that defendant was keeping a firearm in the briefcase for imminent use in a jewelry store robbery.   The police officers were also aware that defendant had been convicted of armed robbery and had been involved in additional robberies in which he used firearms.   Under the rationale of Ross, the officers had probable cause to believe that the briefcase found in the trunk of defendant Ruggles' car following his arrest contained a weapon which was about to be used in a robbery.

In short, we hold the search of defendant Ruggles' briefcase found in the trunk of his car at the scene of his lawful arrest was not unreasonable in that the warrantless search was based on objective facts that would justify the issuance of a warrant.

It is clear that the holding in United States v. Ross, supra, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 has retroactive application to the instant case expressly and by implication in view of the language in the United States Supreme Court's order of October 4, 1982.  (See “Procedural History,” supra.)

DISPOSITION

The judgment (order denying the defendant's motion to suppress) is affirmed.

It should be noted that Proposition 8 (The Victims' Bill of Rights) which was passed by the California electorate on June 8, 1982 (effective June 9, 1982) and held facially constitutional by the State Supreme Court in Brosnahan v. Brown (1982) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274 also supports the holding of the unanimous lead opinion in the case at bench.

I conclude that Article I of the State Constitution, section 28, subdivision (d), the Truth-in-Evidence provision of Proposition 8, repealed by implication Penal Code section 1538.5, subdivision (d) and article I, sections 13 and 24, of the California Constitution and abrogates California decisional law imposing higher standards for searches and seizures than under federal decisional law.

Accordingly, in further support of the lead opinion in the instant case I conclude that the warrantless search of the briefcase found in the trunk of defendant Ruggles' car is also lawful based on state constitutional grounds in the wake of Proposition 8 and the “Truth-in-Evidence” provision of that constitutional amendment.

There is presently pending before the State Supreme Court the case of Wilson v. Superior Court (Civil No. 64102, Second Dist., Div. One, filed and certified for publication on July 23, 1982 as modified Aug. 20, 1982) in which a hearing was granted on Nov. 19, 1982.   The Wilson case raises issues concerning the application of section 28, subdivision (d), the Truth-in-Evidence provision of Proposition 8, and whether or not that provision has retroactive effect and if applied retroactively whether or not it would constitute a denial of equal protection and due process of laws and violate the proscription against ex post facto laws.

The United States Supreme Court in United States v. Ross (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) established a new and less restrictive “bright line” rule for law enforcement officers in vehicular searches.   Surely the United States Supreme Court would not have vacated this court's previous judgment in Ruggles and remanded the matter to this court for further consideration in light of Ross if equal protection, due process, or ex post facto law impediments rendered application of the holding in Ross prospective only.

A fortiori, by a parity of reasoning, in the Wilson case referred to above the Truth-in-Evidence provision of California's Proposition 8 constitutional amendment should be given retroactive effect and should not run afoul of equal protection, due process or ex post facto laws.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to the Penal Code.

2.   Pursuant to California Rules of Court, rule 12(a), we augmented the record by ordering up the superior court file on case No. A348227 for review.In this case defendant Ruggles was charged with robbery in violation of section 211 on November 30, 1978, and use of a handgun within the meaning of sections 12022.5 and 1203.06, subdivision (a)(1).The reporter's transcript of the preliminary hearing conducted on February 9, 1979, contains the testimony of the victim, Teresa Romero, who stated that on November 30, 1978, she was the manager of a 71-unit apartment complex in Glendale, California;  that at about 12 o'clock noon two men came inquiring about renting an apartment;  that one of the two men was defendant Ruggles;  that defendant Ruggles who was the bigger of the two and wearing gloves pulled out a gun from his waistband;  that the smaller man told her in Spanish he wanted money and told her to lie down on the floor;  that when she refused, she was told to sit in a chair;  defendant Ruggles took $150 deposit money kept in a box on the shelf behind the desk and then searched the premises;  that they taped her into a chair;  and that after the two men departed she freed herself and called the police.Victim Romero stated that defendant Ruggles had long reddish brown hair and wore a moustache;  that she identified defendant Ruggles from a series of photographs shown to her by the police at a later date and also at the time of the preliminary hearing made an in-court identification of defendant Ruggles as being the taller of the two men who robbed her on November 30, 1978.

FOOTNOTE.   Assigned by the Chairperson of the Judicial Council.

3.   The Petition by the Attorney General presented the following three questions to the United States Supreme Court: I“Whether, notwithstanding this Court's plurality opinion in Robbins v. California (1981) 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744), a suspect's arrest in his car based on (1) probable cause to believe he had committed a robbery in which he used a firearm and, (2) information from a reliable informant that the suspect had a firearm in a briefcase for use in an imminent robbery, justified the warrantless seizure of firearms from an unlocked briefcase found in the suspect's car trunk. II“Whether exigent circumstances existed under Arkansas v. Sanders (1979) 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235, to justify the warrantless search of an unlocked briefcase found in suspect's car trunk where the suspect was arrested in his car at the center divider of a freeway and the arresting officers had probable cause to believe that a firearm to be used in a robbery was secreted in the briefcase. III“Whether the warrantless search of an unlocked briefcase found in the trunk of a car following a suspect's arrest, is justified as a ‘accelerated booking search’ under this Court's holding in Bullwinkle v. California (1980) 449 U.S. 988 [101 S.Ct. 522, 66 L.Ed.2d 285].”

4.   We further hold that the warrantless search of the trunk of defendant Ruggles' car in the case at bench was justified under the “automobile exception” to the warrant requirement.   Searches such as the one of the trunk of the defendant's car at the time of his arrest conducted outside the judicial process are per se unreasonable, subject to a few specific exceptions.  (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.) and it is the burden of the People to show that the search falls within one of those exceptions.  (People v. Minjares (1979) 24 Cal.3d 410, 416, 153 Cal.Rptr. 224, 591 P.2d 514, cert. den., 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 117.)   The “automobile exception” allows the police to conduct a warrantless search of an automobile where there is probable cause, and exigent circumstances make it impracticable for the police to obtain a warrant.  (Chambers v. Maroney (1970) 399 U.S. 42, 48–51, 90 S.Ct. 1975, 1979–1981, 26 L.Ed.2d 419.)Although defendant argues that there was a delay of over a month from the time the officers had probable cause to the time of defendant's arrest, he has presented no facts from which it can be concluded that the probable cause to seize him had become stale.   The arrest without a warrant was not offensive to defendant's constitutional rights.  (United States v. Watson (1976) 423 U.S. 411, 423–424, 96 S.Ct. 820, 827–828, 46 L.Ed.2d 598.)

5.   In the instant case the police officers were entitled to conclude that the informant was reliable because Officer McSeveney had by independent investigation established that his first tip to the police was true.   Furthermore, the informant's information was shown to be reliable because it was corroborated by other facts, sources, or circumstances.   (People v. Lara, supra, 67 Cal.2d 365, 374–375, 62 Cal.Rptr. 586, 432 P.2d 202.)   The presence of the defendant at the rendezvous location at the correct time, the fact that he was seen taking the brown briefcase out of the trunk and later returning it to the trunk, and the fact that it appeared defendant planned to commit a crime in Santa Barbara because he was apprehended driving out of Los Angeles County westbound, all corroborated the tip in its essential facts.Independent corroboration occurred through the officers' observation of defendant Ruggles' suspicious behavior—continuous surveying of the street while he was removing and carrying the briefcase and again when he returned it to the trunk of his car.   Such corroboration provided the officers with reasonable grounds to believe that the informant was telling the truth and probable cause for the police to believe that the attache case in the trunk contained a gun.Defendant Ruggles' argument that there were no exigent circumstances in this case (Chambers v. Maroney, supra, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419) because his car was within the exclusive control of the police at the time of the search is without merit.   Due to the inherent mobility of motor vehicles, various automobile searches have been upheld where no immediate danger was presented.  (South Dakota v. Opperman (1976) 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000.)   If the police have to take the time to get a warrant to search every car on the highway, they run the risk that the vehicle may be moved out of the locality or the evidence destroyed.  (Carroll v. United States, supra, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543.)   Nor does the fact that the occupants of an automobile have already been arrested negate the exigent circumstance.  (See Chambers v. Maroney, supra, 399 U.S. 42, 44, 52, 90 S.Ct. 1975, 1977, 1981, 26 L.Ed.2d 419.)   Despite Ruggles' arrest, his car was still a fleeting target, it was on an open highway, and there was a possible confederate waiting to remove the evidence.  (See Coolidge v. New Hampshire (1971) 403 U.S. 443, 460, 91 S.Ct. 2022, 2034, 29 L.Ed.2d 564.)   There had been no earlier opportunity to gain a warrant because the car had been under constant police surveillance;  and now that it was seized, there was no constitutional difference between searching it or holding it until a warrant could be obtained.  (Chambers v. Maroney, supra, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419.)   Accordingly, the search of the trunk of the car without a warrant was valid under the automobile exception.

L. THAXTON HANSON, Associate Justice.

SPENCER, P.J., and DALSIMER, J., concur.