The PEOPLE, Plaintiff and Respondent, v. Michael Earl FRANK, Defendant and Appellant.
Michael Frank pleaded guilty to possessing a sawed-off shotgun (Pen.Code, § 12020, subd. (a)) and was granted probation without time in custody. He appeals claiming his motion to suppress evidence (Pen.Code, § 1538.5) was erroneously denied.
At 1:45 a. m. on June 29, 1980, Cotati Police Officer Stewart saw a pickup truck speeding down the road. He pulled the truck over and asked Frank, the driver, for identification. Stewart detected the odor of alcohol on Frank's breath so he conducted a field sobriety test. Meanwhile Officer Kassebaum arrived at the scene and observed the testing. Stewart radioed for a warrant check on Frank and while waiting for a response, commenced writing Frank a citation for speeding. Before completing the citation, Officer Stewart received a radio dispatch reporting a “possible” outstanding felony warrant on Frank. Frank started to reach into his jacket pocket, so Stewart patted him down for weapons. He discovered a .44 magnum bullet and .12 gauge shotgun shell.
After observing the field sobriety test and discovering the ammunition, Officer Kassebaum walked to Frank's truck to look for open containers of alcohol. He saw a number of opened beer cans strewn about the passenger side of the truck's interior. Kassebaum seated himself in the front seat in order to inspect the containers to see if any contained beer. While picking up the cans he saw part of the barrel and the handle of a loaded pistol protruding from an open compartment of a brown vinyl bag. The bag was on the truck floor near the center hump. He removed the gun and in so doing noticed several shotgun shells in another open compartment. He picked the bag up and felt a heavy object inside a center compartment which was zipped closed. He opened the center compartment and removed a loaded sawed-off shotgun. He returned to Officer Stewart and the defendant and showed Stewart the bag and guns. At that point Frank was arrested and placed in the patrol car. Confirmation of the outstanding felony warrant was received immediately thereafter.
Frank contends Kassebaum's inspection and seizure of the beer cans, which led to the discovery of the guns, was illegal. The officer observed the cans in plain sight from his position outside the truck, therefore there was no search. (Mardis v. Superior Court, 218 Cal.App.2d 70, 74, 32 Cal.Rptr. 263; People v. Superior Court (Aslan), 2 Cal.App.3d 131, 134, 135, 82 Cal.Rptr. 507.) The Supreme Court in People v. Superior Court (Kiefer), 3 Cal.3d 807, 816–817, 91 Cal.Rptr. 729, 478 P.2d 449, specifically authorized the seizure of evidence after
“an observation, from outside the vehicle or other lawful vantage point, of contraband ․ in plain view inside the vehicle. That observation is not itself a ‘search’ in the constitutional sense ․ but it may furnish probable cause to believe that additional contraband is secreted in the vehicle and to justify a search therefor.”
Certain basic principles also bear on the case at bench.
“It is now settled that as an incident to a lawful arrest, a warrantless search limited both as to time [citation] and place (citation] may be made (1) for instrumentalities used to commit the crime, the fruits of that crime, and other evidence thereof which will aid in the apprehension or conviction of the criminal; (2) for articles the possession of which is itself unlawful, such as contraband or goods known to be stolen; and (3) for weapons which can be used to assault the arresting officer or to effect an escape.” (People v. Superior Court (Kiefer), supra, 3 Cal.3d 807, 812–813, 91 Cal.Rptr. 729, 478 P.2d 449.)
(See also People v. Superior Court (Simon), 7 Cal.3d 186, 201, 101 Cal.Rptr. 837, 496 P.2d 1205.) A search may be incident to a lawful arrest, and yet be unlawful because it was “unreasonable in scope”: that scope must be “strictly tied to and justified by” the particular circumstances which initially permitted the search. (Simon, supra, at p. 201, 101 Cal.Rptr. 837, 496 P.2d 1205; Kiefer, supra, 3 Cal.3d at pp. 813–14, 91 Cal.Rptr. 729, 478 P.2d 449.)
As an incident to a lawful arrest for driving under the influence of alcohol (as distinguished from a speeding citation), a warrantless search may be made of the interior of the vehicle for evidence such as beer cans, or other alcoholic beverage containers. (People v. Superior Court (Kiefer), supra, at p. 813, fn. 2, 91 Cal.Rptr. 729, 478 P.2d 449; People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. McNeal, 90 Cal.App.3d 830, 841, fn. 3, 153 Cal.Rptr. 706; People v. Suennen, 114 Cal.App.3d 192, 201, 170 Cal.Rptr. 677.) The officer was of the opinion that Frank was a “borderline” suspect for driving under the influence of alcohol. Furthermore, Vehicle Code section 23122 prohibits the possession of open containers of alcohol in an automobile.
We conclude the facts then apparent to Officer Kassebaum offered a rational basis to suspect one or more of the cans observed inside the truck contained beer. Thus, his entry into the truck to pick up, to examine the readily visible, readily accessible beer cans was lawful.
Frank next contends Kassebaum's search of the closed center compartment of the vinyl bag and discovery of the shotgun therein was illegal.
Two recent U.S. Supreme Court decisions, Robbins v. California (1981) 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 and Belton v. New York (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (decided the same day as Robbins) throw some light on the status of closed containers found within an automobile. Although it requires keen discrimination to discern some of the subtle differences in automobile search law as presented by the two cases, we find that the search in Belton was a search incident to a lawful arrest, whereas the search in Robbins was not. We also note that the search in Belton involved contraband found in the passenger compartment of the automobile.
In Robbins in contrast the officer found marijuana in the passenger compartment of a station wagon then opened the tailgate, “located a handle set flush in the deck and lifted it up to uncover a recessed luggage compartment.” (Robbins, supra, 101 S.Ct. at p. 2844.) In that compartment were a tote bag and two packages wrapped in green opaque plastic. Upon these facts, the Supreme Court held the plastic wrapped package (containing marijuana) did not “clearly announce its contents” (Robbins, supra, at p. 2847) and therefore a warrant was required to look inside the closed opaque container.
Robbins refers to an exception to the warrant rule where a container obviously discloses its contents to an observer “by distinctive configuration, its transparency, or otherwise.” (Id., at p. 2847). The Robbins statement derives from famous footnote 13 1 of Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 2593, 61 L.Ed.2d 235, where it is stated:
“Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of [burglar's tools] or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to ‘plain view,’ thereby obviating the need for a warrant. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993 [19 L.Ed.2d 1067] ․”
Robbins further points out this significant fact: “[I]t is not argued that the opening of the packages was incident to a lawful custodial arrest. (Cf. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, [23 L.Ed.2d 685] ․” (Robbins, supra, 101 S.Ct. at p. 2847, fn. 3.)
In contrast, the search in Belton (supra, 453 U.S. 454, 101 S.Ct. 2860) was incident to a lawful custodial arrest of the occupant of an automobile. The officer made a contemporaneous search of the passenger compartment and of defendant's jacket found inside the passenger compartment. The officer unzipped a pocket and found cocaine. The United States Supreme Court applied the principles of Chimel v. California, supra, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, stating:
“[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger 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. Thus, while the Court in Chimel held that the police could not search all the drawers in an arrestee's house simply because the police had arrested him at home, the Court noted that drawers within an arrestee's reach could be searched because of the danger their contents might pose to the police. [Citation.]” (Belton, supra, 101 S.Ct. at p. 2864; fns. omitted.)
And the court was most specific in footnote 4, page 2864:
“ ‘Container’ here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like. Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.”
We conclude, under federal constitutional principles, it was lawful to search the zippered vinyl bag found in the passenger compartment of the defendant's automobile as a search incident to an arrest.
Our analysis cannot end with an unqualified acceptance of Belton for citizens of California may be entitled to greater protection against intrusion than is afforded by New York v. Belton, supra. The California Constitution 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.” Upon this sound premise, the California Supreme Court has on occasion declined to follow the United States Supreme Court. (See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.) Corresponsively, the United States Supreme Court in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730, recognized that the 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.)
In the case at bench, the seizure of and examination into the closed bag was a warrantless search. This fact requires cognizance of several threshold rules. The fundamental requirement is that search and seizure be reasonable under all the circumstances. (United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730.) Warrantless searches are presumed unreasonable, therefore 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, 2412, 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, 193, 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 contraband or evidence of crime. (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; see also Chambers v. Maroney, 399 U.S. 42, 48–49, 90 S.Ct. 1975, 1979–80, 26 L.Ed.2d 419; Wimberly v. Superior Court, supra, 16 Cal.3d at p. 563, 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 the object of the search is located in the place to be searched. (Wimberly, 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, at p. 568, 128 Cal.Rptr. 641, 547 P.2d 417.)
These general principles are on factual occasion limited by more precise, more specific rules. One such rule must be reviewed here: “A warrantless search of closed containers found within an automobile involves consideration 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 514; see also United States v. Robbins, supra, 101 S.Ct. 2841.)
According to dicta 2 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, supra, 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 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, 153 Cal.Rptr. 224, 591 P.2d 514.).
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. The reason Chadwick distinguishes between the degree of privacy expected in luggage and in automobiles is to evaluate the reasonableness of the warrantless search absent exigent circumstances.
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.”
“Paralleling this court's reasoning in Minjares, the Supreme Court in Sanders [Arkansas v. Sanders,  U.S. , [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 and 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. Analysis often centers upon when constitutional protection is 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, Perspective 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 514]), 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․”
A contrary value judgment was made in the recent case of People v. Robles, 125 Cal.App.3d 887, 178 Cal.Rptr. 439, where a search of a tinfoil packet found in the passenger side of the vehicle was held invalid under the California Constitution, article I, section 13. The arrest was for drunken driving, thus the search and seizure of the tinfoil packet was not warranted under Robinson-Kiefer as incident to lawful arrest.
Any attempt to bring order, light and reason to these conflicting decisions and their rationale is reminiscent of Alice's pursuit of the white rabbit into a nether world where premises change momentarily dependent upon the court's subjective evaluation of the rabbit's intent or reasonable expectations or the tote bag's configuration. We leave the issue of whether the search and seizure of the shotgun was from a bag unworthy of an objectively reasonable expectation of privacy to final determination by our Supreme Courts. Our decision in this cause need not rest upon such gossamer contrivances so wonderful to the ear yet impossible of application by trial court or police officer.
Frank was in lawful detention when the officer in a proper search saw, in plain view, the handle of a partially concealed pistol protruding from a vinyl bag. The officer removed the pistol, found it was loaded. In addition to the pistol, the officer also observed several shotgun shells. He lifted the vinyl bag out of the truck, noted it was quite heavy, opened it and found the sawed off shotgun. At the time the officer opened the closed container, he had probable cause to arrest Frank not only for possible drunken driving but also for possession of a loaded weapon in a truck. (Pen.Code, § 12031, subd. (a).) He also had probable cause to believe that there was more than one gun in the vehicle. The “possible” outstanding felony warrant was also then known to the searching officer. The fact that Frank was not arrested until after the seizure of the sawed off shotgun is not legally significant for Officer Kassenbaum had probable cause to arrest Frank for the possession in the vehicle of a loaded pistol. (See People v. Richardson, 6 Cal.App.3d 70, 75–76, 85 Cal.Rptr. 607.)
Close in point factually is People v. Superior Court (Sanders), 99 Cal.App.3d 130, 160 Cal.Rptr. 366 (hrg. den.), where a pistol was observed in plain view in an opened glove compartment. While searching for more weapons, the police found a sawed-off shotgun hidden by a folded over back seat cushion. In support of the officer's right to continue a search of the truck's interior after discovery of one weapon, the court said:
“The issue here is whether the legal discovery at night of one concealed weapon and a quantity of matching cartridges in an automobile carrying three persons furnishes the requisite probable cause to justify a warrantless search of the remaining parts of the vehicle's passenger compartment. The applicable test for probable cause is whether the facts and circumstances known to the searching officer were sufficient to warrant the belief of a reasonably cautious person that more weapons were being transported in the vehicle. [Citation.] That test is met here. Where one of a trio of persons is in possession of a weapon in a vehicle, ordinary caution would lead to the strong suspicion that other weapons are present. This is even more apparent where a box of ammunition is also found, with some of its rounds loose on the floor. As the court noted in a different context in People v. DeLong (1970) 11 Cal.App.3d 786, 792 [90 Cal.Rptr. 193] ․
“Although the theory justifying an automobile search based on probable cause is different from that which justifies a search incident to an arrest [citations], there is no suggestion in search arrest cases that the police are obliged to refrain from further search after having found a single weapon. Buxton testified, and the court found, that the purpose of the search was to uncover additional concealed weapons. The reasonableness of a suspicion of the presence of such weapons after finding the first one was not disputed in People v. Jochen (1975) 46 Cal.App.3d 243, 247 [119 Cal.Rptr. 914] ․, and was upheld in People v. McNeal, supra. The search did not exceed a reasonable scope by forcible entry into a locked area, as in People v. Koehn (1972) 25 Cal.App.3d 799 [102 Cal.Rptr. 102] ․ We conclude the search was reasonable.” (People v. Superior Court (Sanders), supra, at pp. 134–135, 160 Cal.Rptr. 366; italics added.)
We conclude that the police lawfully entered the vehicle to retrieve beer cans in plain view. Seizure of the pistol was lawful because it too was in plain view from the lawful vantage place of the officer. The warrantless search of the zippered compartment of the vinyl bag found inside the passenger compartment of the vehicle was reasonable, does not violate federal constitutional law pronounced in Belton and does not violate the constitutional principles of this state announced in Robinson, Kiefer, Simon and Wimberly. (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)
The denial of Frank's section 1538.5 motion was on constitutionally sound grounds.
I concur in the result because, on the facts peculiar to this case, there is no expectation of privacy, even under article I, section 13, California Constitution.
Frank elected to disclose the probable nature of the contents of his vinyl bag when he visibly displayed a .32 caliber revolver protruding from one of its open pouches, and shotgun shells in another. Having thus “labeled” the weapons cache he effectively negated any privacy interest.
1. Whether the vinyl bag containing the sawed off shotgun was a “gun case” “clearly announcing its contents” does not appear in the record. It was introduced in evidence, observed by the magistrate. We have no factual basis here for assuming footnote 13 has application.
2. 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.
STANIFORTH, Acting Presiding Justice.
MALKUS, J.,* concurs.