PEOPLE v. CARDENAS

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

The PEOPLE, Plaintiff and Respondent, v. Arthur Joseph CARDENAS, Defendant and Appellant.

Cr. 13147.

Decided: March 23, 1982

Quin A. Denvir, State Public Defender, and Kenyon C. Keller, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Michael D. Wellington and Thomas F. Mcardle, Deputy Attys. Gen., for plaintiff and respondent.

After an unsuccessful motion to suppress evidence (Pen.Code, § 1538.5), Arthur Joseph Cardenas pled guilty to possession of marijuana for sale (Health & Saf. Code, § 11359).   He was placed on probation for three years and one month conditioned upon serving six months in custody of the sheriff.   He appeals, contending his search motion was improperly denied.

FACTS

About 9:30 p. m. on October 22, 1980, a confidential informant (Lee Dawson) working with the Oceanside Police Department went to the home of Cardenas.   Detective Brown equipped the informant with a body transmitter and gave him $40 for the purpose of buying marijuana.   Under Brown's direction, Dawson went to Cardenas' house, knocked and asked for “Sleepy.”   Cardenas answered the door, said he was Sleepy.   Dawson said he had been told he could “score,” i.e., he could buy a $10 bag of marijuana.   Cardenas said he was out of marijuana but he was getting a pound bag.   He would have to go elsewhere to obtain it.   Dawson agreed to come back in 20 minutes.

Officer Hanson, a member of the police surveillance team, watched the Cardenas residence, saw Dawson approach then leave the Cardenas residence.   Detective Brown told Hanson Dawson had made the “contact” and related Cardenas' statement to Dawson.   A few minutes after the informant had departed Cardenas' door, Officer Hanson saw Cardenas leave in a vehicle with other persons.   Shortly thereafter he saw the vehicle return and leave again with Cardenas still in it.   About 15 minutes later Hanson and four surveilling officers left the area to return to the Oceanside police headquarters.   Enroute, the officers observed the Cardenas car parked at a corner liquor store.

The officers stopped, approached the vehicle, intending to arrest Cardenas for the crime of offering to sell marijuana to Dawson.   The officers also had a second ground for arrest.   They had previously learned there were outstanding warrants of arrest for Cardenas.   Hanson approached the vehicle, saw Cardenas in the front seat on the passenger side with the door opened.   Officer Hanson observed a large brown paper sack under Cardenas' legs on the floorboard in the front seat.   The bag was closed with top folded or rolled down about one-third from the top of the bag.   The inside of the bag could not be seen.   Cardenas was then arrested, taken out of the vehicle and the paper bag seized.   Hanson opened the bag and removed a clear plastic ziploc bag containing marijuana.   The police had no search warrant.   It was Officer Hanson's belief, based on the facts known to him, that the bag contained marijuana.

I

Cardenas concedes that under the United States Supreme Court decisions of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744, and New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, the seizure and opening of the bag taken from the front seat of the car was not violative of the Fourth Amendment to the federal Constitution.   The Cardenas concession is well considered.   In New York v. Belton, supra, a police officer stopped a speeding automobile containing four men.   He learned that none of them owned the vehicle or was related to the owner.   He smelled burnt marijuana and saw an envelope on the floor of the car which he associated with marijuana.   He ordered the men out of the car and placed them under arrest for possession of marijuana, patted them down, placed them in four separate areas.   He then found marijuana in the envelope.   He then searched the passenger compartment of the car and found on the backseat a leather jacket belonging to Belton.   The officer unzipped one of the pockets and found cocaine.   The Belton court sought to define the limits of a warrantless search incident to a contemporaneous lawful custodial arrest of the occupants of the automobile—the precise factual situation we face here.   The majority held that even after the occupants had been arrested, removed from the car and were safely in custody, the officers could lawfully search the entire passenger compartment and all containers of any type found therein.  (Id. 101 S.Ct. at pp. 2864–2865.)   Its rule was based upon a reasoned extension and application of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.   (New York v. Belton, supra, 101 S.Ct. at pp. 2862–2863.)   In Belton, the Supreme Court did not find it necessary to consider the “automobile exception” as a basis for the search and seizure.  (Id., 101 S.Ct. at p. 2865, fn. 6.)   In contrast Robbins v. California, supra (decided the same day as Belton, supra ) held a closed article of luggage seized in a covered recessed tire well of a car was constitutionally protected from search.   (Id., 101 S.Ct. at p. 2847.)

II

 Cardenas, however, rests his case on the California Constitution;  it is and always has been a document of independent force.  (People v. Brisendine, 13 Cal.3d 528, 549–550, 119 Cal.Rptr. 315, 531 P.2d 1099.)   It is provided in article I, section 24:

“Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”

Therefore, argues Cardenas, California citizens may be entitled to greater protection under the California Constitution against unreasonable searches and seizures.   These are sound and accepted propositions of constitutional law.   Upon such basis the California Supreme Court has on occasion declined to follow the United States Supreme Court.  (See United States v. Robinson, supra, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.)   Corresponsively, the United States Supreme Court (see Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730) concedes that states possess the power to impose higher standards on searches and seizures than required by the federal Constitution.  (Cf. People v. Longwill, 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753;  People v. Norman, 14 Cal.3d 929, 123 Cal.Rptr. 109, 538 P.2d 237.)   From these general premises Cardenas argues this specific conclusion:  citizens of California are entitled to greater protection against intrusion than is afforded by New York v. Belton, supra.   We examine this question with care for it is decisive of this appeal.

 The seizure and examination of the closed paper bag was a warrantless search.   This fact requires cognizance of these threshold rules.   Warrantless searches are presumed illegal under the Fourth Amendment, subject to only a few carefully guarded exceptions.  (Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290;  Wimberly v. Superior Court, 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417;  People v. Dalton, 24 Cal.3d 850, 855, 157 Cal.Rptr. 497, 598 P.2d 467.)   The prosecution has the burden of showing a warrantless search falls within one of those exceptions.   (McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153;  Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.)   Under the “automobile” exception, a car which is stopped on the highway may be searched without a warrant where there is probable cause to believe it contains weapons or contraband or evidence of crime.  (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543;  Chambers v. Maroney, 399 U.S. 42, 48–49, 90 S.Ct. 1975, 26 L.Ed.2d 419;  Wimberly v. Superior Court, supra, 16 Cal.3d at p. 568–569, 128 Cal.Rptr. 641, 547 P.2d 417.)   Probable cause to search exists when an officer is aware of facts which would lead a person of ordinary caution to entertain a strong suspicion that seizable evidence is located in the place to be searched.  (Wimberly v. Superior Court, supra, at p. 571, 128 Cal.Rptr. 641, 547 P.2d 417.)

 Finally, a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation.”  (Mincey, supra, 437 U.S. at p. 393, 98 S.Ct. at 2413;  Wimberly, supra, 16 Cal.3d at p. 568, 128 Cal.Rptr. 641, 547 P.2d 417.)

III

 These general principles are circumscribed by more precise rules applicable in specific factual contexts.   One such rule must be noted preliminarily:  “A warrantless search of closed containers found within an automobile involves considerations separate from those involved in a warrantless search of the interior of the automobile․”  (People v. Dalton, supra, 24 Cal.3d 850, 855–856, 157 Cal.Rptr. 497, 598 P.2d 467;  italics added;  People v. Minjares, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 414;  see also Robbins v. California, supra, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744.)

According to dicta 1 in Dalton and Minjares, “closed personal effects,” whether boxes, or luggage, or a jacket, found in an automobile, require the People to show not only probable cause to search the closed container “but also that exigent circumstances dictated an immediate search without a warrant.”  (Dalton, supra, 24 Cal.3d at p. 857, 157 Cal.Rptr. 497, 598 P.2d 467.)

In Minjares, the Supreme Court declared invalid the search of luggage found in the trunk of an automobile.   Minjares was arrested in the getaway car.   The car was then towed to a storage yard where the police sans warrant opened the trunk in search of a second suspect thought by the police to be hiding in the trunk.   In the trunk was a closed tote bag which the police promptly opened and found evidence relating to the robbery.   The court relied upon the United States Supreme Court decision in United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538, interpreted by the Fifth Circuit Court of Appeals, as follows:

“ ‘Chadwick stands for the proposition that a warrantless search of personal property should be the exception and not the rule.   Where, as here, the authorities are in control of the situation, they must obtain a warrant prior to searching luggage or similar personal property either on the scene or back at the stationhouse.  (United States v. Johnson (5th Cir. 1979) 588 F.2d 147, 151 ․)’ ”  (People v. Minjares, supra, 24 Cal.3d at p. 418, 157 Cal.Rptr. 497, 598 P.2d 467.).

The crux of the Chadwick holding, however, is not the differing expectations of privacy accorded to luggage or automobiles, rather it is the absence of exigent circumstances.   The Chadwick court emphasized that the search was not justified as incident to an arrest or as part of an automobile search.

People v. Dalton, supra, 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467, involved a contemporaneous custodial arrest of a car's occupants.   The Supreme Court suppressed evidence found in closed boxes seized in the vehicle's trunk, stating (at p. 855, 157 Cal.Rptr. 497, 598 P.2d 467):

“If the warrantless search of the boxes found in the trunk of the car is to be upheld, it is the state's burden to show that the search falls within one of those exceptions.”

and said:

“Paralleling this court's reasoning in Minjares, the Supreme Court in Sanders [Arkansas v. Sanders, 442 U.S. 753 [99 S.Ct. 2586] 61 L.Ed.2d 235] reiterated the distinctions drawn in Chadwick—that individuals have a greater privacy interest in closed luggage and that luggage, by its nature, may be more easily reduced to the control of the police.”  (Id., at p. 856, 157 Cal.Rptr. 497, 598 P.2d 467.)

Several appellate court decisions have attempted to explore and define the parameters of the Minjares-Dalton rulings.   A growing body of recent California cases refuses to grant protected status to all closed containers in plain view seized in the passenger compartment of an automobile.   The analysis centers upon when constitutional protection is to be accorded those “deserving” closed containers in which an objectively reasonable expectation of privacy might be claimed.

In People v. Yuna, 112 Cal.App.3d 634, 640, 169 Cal.Rptr. 424, the court raised this relevant inquiry:

“Must the police secure a warrant in every ‘closed container case’ regardless of whether it is a suitcase or a paper bag?   The emerging case law indicates the test is whether there exists a reasonable expectation of privacy in the container deserving of constitutional protection.  (See People v. Fick (1980) 107 Cal.App.3d 892 [, 166 Cal.Rptr. 106] ․;  People v. Diaz (1980) 101 Cal.App.3d 440, 446–448 [, 161 Cal.Rptr. 645] ․)  The Sanders case [Arkansas v. Sanders, supra, 442 U.S. 753, 762 [99 S.Ct. 2586, 2592, 61 L.Ed.2d 235]] extended the Fourth Amendment protection to a suitcase because it is the type of container that is ‘a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy.’  [Citation.]”

And in People v. Diaz, 101 Cal.App.3d 440, 447, 161 Cal.Rptr. 645, it was said:

“[I]mplicit in the Supreme Court decisions concerning warrantless searches of closed personal effects once within the exclusive possession of the officer, is the critical determination that the very nature of the object seized supported a rational belief or expectation that its contents were to be free from uninvited inspection and that such expectation was manifestly reasonable.   Clearly, while personal luggage and a variety of closed containers may meet the requisite test of reasonableness, not every object serving the function of a closed receptacle will automatically fall within the ambit of constitutional protection simply because its physical form forecloses an open or public examination.  (Cf. Arkansas v. Sanders, 442 U.S. 753, 764, fn. 13 [99 S.Ct. 2586, 2593, fn. 13, 61 L.Ed.2d 235] ․)”

Constitutional scholar Anthony Amsterdam sagely concludes:  “[W]hether in a given factual instance a reasonable privacy expectation may be said to exist under the Katz standard of justifiable reliance, is largely a matter of value judgment.”  (Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev. 349, 402.)

Such a judicial value judgment was exercised by the court in People v. Suennen, 114 Cal.App.3d 192, 170 Cal.Rptr. 677, where the seizure and examination of the contents of a pillowcase from the front floorboard of the automobile was upheld.   Although only a detention for investigation was involved, the court found a factual basis for probable cause to search the vehicle.   Said the court at page 205, 170 Cal.Rptr. 677:

“Reverting, then, to the facts of the instant case, an unsecured pillowcase partially filled with hard objects, does not in our view command the expectation of privacy which courts have granted to such sundry items as luggage (People v. Minjares, supra, 24 Cal.3d 410, 423 [, 153 Cal.Rptr. 224, 591 P.2d 414] ), and an athletic bag (Bell v. Superior Court (1980) 101 Cal.App.3d 238, 244 [161 Cal.Rptr. 455] ․).  While the pillowcase, like those items, was ‘closed’ in the sense that its contents were not in plain view, unlike them it was not secured and bore no other objective indication of a desire for privacy, but was merely loosely folded over at the top.

“More significantly, a pillowcase—save for occasional use as a laundry bag—is not commonly used as a receptacle for items in which a strong privacy interest is manifest․”

Our attempt to bring order, light and reason to these conflicting appeal court decisions and their varied rationales is doomed by the very nature of the impossible quest for a suspect's subjective expectation of privacy as evaluated by the judicial mind encumbered also by unspecified value judgments.   These unseen, unmeasurable standards, produce a rule so wonderful to the ear yet impossible of application by trial court or police officer.   We need look elsewhere for more stable premises upon which to resolve this case.

We have distinguished the factual bases of the Minjares-Dalton holdings and find them compatible with the United States Supreme Court decision in Robbins v. California, supra;  and Minjares-Dalton do not treat with the same factual base as found in New York v. Belton, supra, or the case at bench.   Rather, the facts here are congruent with those of Wimberly v. Superior Court, supra, 16 Cal.3d 557, 128 Cal.Rptr. 641, 547 P.2d 417, which involved (as one of the Fourth Amendment issues) contraband discovered in a jacket found in the passenger compartment in a search incident to a lawful contemporaneous custodial arrest.

Wimberly carefully analyzes and distinguishes between “expectation[s] of privacy in concealed areas [a trunk] as opposed to those portions of the vehicle subject to plain view observations” (p. 567, 128 Cal.Rptr. 641, 547 P.2d 417) and cites a plethora of California and federal authority for this distinction (pp. 567–570, 128 Cal.Rptr. 641, 547 P.2d 417).   The Wimberly court said:

“ ‘In People v. Dumas (1973) 9 Cal.3d 871 [, 109 Cal.Rptr. 304, 512 P.2d 1208] ․, we stated that officers are empowered under the Carroll [Carroll v. United States (1925) 267 U.S. 132 [, 45 S.Ct. 280, 69 L.Ed.2d 543] ․] doctrine to search an automobile as “long as it can be demonstrated that (1) exigent circumstances rendered the obtaining of a warrant an impossible or impractical alternative, and (2) probable cause existed for the search.”   (Id., at p. 884 [109 Cal.Rptr. 304, 512 P.2d 1208], see also concurring opn. by Sullivan, J., at p. 886, fn. 1 [109 Cal.Rptr. 304, 512 P.2d 1208];  see also Chambers v. Maroney (1970) 399 U.S. 42, 52 [90 S.Ct. 1975, 1980, 26 L.Ed.2d 419] ․;  People v. Laursen (1972) 8 Cal.3d 192, 201 [, 104 Cal.Rptr. 425, 501 P.2d 1145] ․’  (People v. Cook (1975) 13 Cal.3d 663, 669 [119 Cal.Rptr. 500, 532 P.2d 148] ․)  It is therefore manifest that ‘when there is probable cause to believe that an automobile stopped on a highway contains contraband, evidence of a crime, or was itself an instrumentality of the commission of one, law enforcement officers need not obtain a warrant before conducting a search ․’  (People v. Laursen, supra, 8 Cal.3d 192, 201 [104 Cal.Rptr. 425, 501 P.2d 1145];  see also People v. Superior Court (Kiefer), supra, 3 Cal.3d 807, 815 [91 Cal.Rptr. 729, 478 P.2d 449] )”  (Id., at p. 563, 128 Cal.Rptr. 641, 547 P.2d 417.)

The Wimberly court without further references to “exigent circumstances” 2 approved the search of the passenger section of the car including the pockets of a jacket observed on the floor on the passenger side.  (Pp. 562, 566, 128 Cal.Rptr. 641, 547 P.2d 417.)

The Wimberly court's approval of the jacket search rests upon a further premise separate and distinct from the Carroll rationale where the right to search and the validity of the seizure were not dependent upon the right to arrest.  (Carroll, supra, 267 U.S. at pp. 158–159, 45 S.Ct. at p. 287.)   The Wimberly search was an incident to a lawful contemporaneous custodial arrest.   The predicates of these two species of search are not the same;  nor is the scope of permissible search the same.

 The question has been raised:  “Has Wimberly then been overruled sub silentio insofar as it upheld the search of the jacket?”  (Bell v. Superior Court, 101 Cal.App.3d 238, 244, 16 Cal.Rptr. 455.)   Search to date has revealed no such decision.   Pending such overruling, we are bound by Wimberly's precise holding.  (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

IV

As hinted above, the warrantless search of the passenger compartment may be justified as an incident to a lawful contemporaneous custodial arrest.3  This exception to the requirement of a search warrant is explained in Chimel v. California, supra, 395 U.S. 752, 762–763, 89 S.Ct. 2034, 2039–2040, 23 L.Ed.2d 685, as follows:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.   Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated.   In addition, it is entirely reasonable for the arresting officers to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.   And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.”

 The Chimel rule when applied in California has these characteristics:  First, the arrest alone does not justify the search.   Generally there must be probable cause to believe a weapon or evidence is present.   When a person is arrested in a vehicle for an offense which may involve physical evidence, the person and the vehicle (at least the passenger portion thereof) may be searched for weapons or destructible evidence.   (People v. Superior Court (Kiefer), 3 Cal.3d 807, 813, fn. 2, 91 Cal.Rptr. 729, 478 P.2d 449;  People v. Superior Court (Simon), 7 Cal.3d 186, 202, fn. 12.)   The Wimberly court in validating a search of the passenger compartment but at the same time voiding a warrantless search of the trunk, reasoned:

“Petitioners also argue that the warrantless search [of the trunk] cannot be justified as incident to their arrest.   We agree.  ‘A search incident to an arrest is limited to the arrestee's person and “the area from within which he might gain possession of a weapon or destructible evidence.”  (Chimel v. California (1969) 395 U.S. 752, 763 [, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685] ․)’  (Mestas v. Superior Court (1972) 7 Cal.3d 537, 541 [102 Cal.Rptr. 729, 498 P.2d 977] ․;  see also People v. Brisendine, supra, 13 Cal.3d 528, 539 [119 Cal.Rptr. 315, 531 P.2d 1099];  People v. Dumas, supra, 9 Cal.3d 871, 881, fn. 6 [109 Cal.Rptr. 304, 512 P.2d 1208].)   It is evident that the trunk of the car was not an area into which petitioners could reach in order to grab weapons or evidence. (See People v. Gale, supra, 9 Cal.3d 788, 794 [108 Cal.Rptr. 852, 511 P.2d 1204];  People v. Superior Court (Courie) (1974) 44 Cal.App.3d 207, 211, fn. 5 [118 Cal.Rptr. 586].”  (Id., 16 Cal.3d at p. 566, fn. 5, 128 Cal.Rptr. 641, 547 P.2d 417;  italics added.)

 If we apply the foregoing rules to the case at bench, we note Cardenas was arrested in the vehicle for a felonious offer to sell marijuana.   The officers knew Cardenas had just gone elsewhere in order to obtain a pound of marijuana.   Thus not only did the officers have probable cause to arrest Cardenas but also to believe he had the marijuana then in his possession.   Moreover, the officers here, as in Chadwick, supra, and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235, had probable cause to believe that contraband was within the very article (sack) seized.   The search did not exceed the legitimate purpose for which a search was authorized.   (People v. Brisendine, supra, 13 Cal.3d at pp. 538–539, 119 Cal.Rptr. 315, 531 P.2d 1099.)  (People v. Superior Court (Kiefer), supra, 3 Cal.3d 807, 813, fn. 2, 91 Cal.Rptr. 729, 478 P.2d 449.)

The Chimel rule requires the search be limited as to time and place, i.e., it must occur at the place of arrest and occur shortly before, during or after the arrest.  (People v. Cockrell, 63 Cal.2d 659, 666, 47 Cal.Rptr. 788.)   The search here meets the federal Chimel standards as well as the independent state standards of California Constitution, article I, section 13.  (People v. Flores, 100 Cal.App.3d 221, 229, 160 Cal.Rptr. 839 and cases cited.)

Cardenas' reliance upon People v. Sims, 109 Cal.App.3d 900, 167 Cal.Rptr. 506, is misplaced.   Sims was not under arrest, therefore the search was not an incident to arrest;  second, Sims involved the search of personal luggage where the reasonable expectations of privacy are substantially greater.  (See People v. Minjares, supra, 24 Cal.3d at p. 423, 153 Cal.Rptr. 224, 591 P.2d 414;  People v. Dalton, supra, at pp. 855–856, 157 Cal.Rptr. 497, 598 P.2d 467.)   Finally Sims relied upon an interpretation of United States v. Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, not conformable to the rule and reasons lately announced in New York v. Belton, supra.   Belton points out Chadwick does not involve a search incident to a lawful custodial arrest and makes clear that Chadwick does not prohibit a prompt search and seizure of a container within the Chimel defined parameters.   The precise holdings of the Supreme Court of this state (to wit, Wimberly v. Superior Court, supra, People v. Superior Court (Kiefer), supra, and People v. Superior Court (Simon), supra ) treating specifically with the limited in time, area and purpose right to search an arrestee as incident to a lawful contemporaneous custodial arrest appear to anticipate, are in total conformity with the rule of New York v. Belton, supra.   We are bound by these decisions.  (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

Judgment affirmed.

FOOTNOTES

1.   Both Dalton and Minjares involve a search of an automobile trunk.   Neither case involves a search of the immediate surrounding area, or the area within the reach of the arrestee from which the arrestee might gain possession of a weapon.

2.   A line-by-line examination of Carroll discloses no explicit articulation of a requirement of “exigent circumstances.”   Rather, this principle derives from Carroll's recognition of the inherent mobility of the automobile.  “It is impossible to get a warrant to stop an automobile.   Before a warrant could be secured the automobile would be beyond the reach of the officer with its load of ․ liquor ․”  (45 S.Ct. at p. 283.)In Chambers v. Maroney, supra, 399 U.S. at p. 51, 90 S.Ct. at p. 1981, the Supreme Court confirmed this essential nature of the “exigent circumstances” requirement, saying:  “In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.   As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made.   Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search.  Carroll, supra, holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway;  the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained.”   The Chambers court also recognized:  “Following the car until a warrant can be obtained seems an impractical alternative since, among other things, the car may be taken out of the jurisdiction.   Tracing the car and searching it hours or days later would of course permit instruments or fruits of crime to be removed from the car before the search.”  (399 U.S. at p. 51, fn. 9, 90 S.Ct. at p. 1981, fn. 9.)And Chimel v. California, supra, confirms this view:  “Our holding today is of course entirely consistent with 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.  [Citations.]”  (399 U.S. at p. 50, fn. 8, 90 S.Ct. at p. 1980, fn. 8.)

3.   A search under Chimel principles is more narrow in scope than the search under Carroll principles and rests upon different considerations for justification.  “[T]he scope of a permissible search where there is probable cause to believe that a vehicle contains contraband is not limited by the rules circumscribing the scope of a search incident to a contemporaneous arrest.”  (People v. Cook, 13 Cal.3d 663, 670, 119 Cal.Rptr. 500, 532 P.2d 148;  see also People v. Superior Court (Courie), 44 Cal.App.3d 207, 211, fn. 5, 118 Cal.Rptr. 586 [disapproved in part in Wimberly, supra, 16 Cal.3d at pp. 572–573, fn. 9, 128 Cal.Rptr. 641, 547 P.2d 417].)

STANIFORTH, Acting Presiding Justice.

WIENER and LEVITT,* JJ., concur.

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