PEOPLE v. GUARDADO

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Rafael GUARDADO, Defendant and Appellant.

AO18420.

Decided: August 30, 1983

Sheldon Portman, Public Defender, Stephen B. Elrick, Deputy Public Defender, County of Santa Clara, San Jose, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

In July of 1981, the Governor of California signed an amended declaration of emergency due to the infestation of the Mediterranean Fruit Fly (Medfly), a pest which threatened the agriculture industry of this state.   The Governor designated Medfly quarantine areas within Alameda, San Mateo and Santa Clara Counties and authorized the California Highway Patrol to establish vehicle inspection checkpoints in order to prevent removal of Medfly host, such as fruit, from the quarantine areas.

Appellant was stopped at the Pacheco Pass checkpoint.   He was questioned by Inspector Millan from the U.S. Department of Agriculture, and his trunk was searched by Highway Patrol Officer Brescia.   The search produced evidence of heroin for sale, and resulted in appellant's conviction under Health and Safety Code section 11352.   Officer Brescia had neither consent nor a warrant to search.

Appellant challenges his conviction on the ground that the search of his car trunk was unlawful.   We have determined that the search was proper for the reasons discussed below.

Guidelines Requirement

Appellant argues that the searches conducted under authority of the Medfly proclamation were invalid because the inspecting officers were afforded unbridled discretion and operated without procedural guidelines as to which vehicles to stop and search.  (See United States v. Ortiz (1975) 422 U.S. 891, 896, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623;  Almeida-Sanchez v. United States (1972) 413 U.S. 266, 270, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596.)   However, neither the exercise nor the existence of absolute discretion appears in this case.

The checkpoints were operated under procedures aimed at stopping as many passing vehicles as possible.   When the volume of traffic prevented the inspection of every vehicle, stops were made according to established priorities.   For example, a commercial vehicle was to be detained before any other type of vehicle.   And a passenger vehicle with California license plates was to be stopped only if no other type of vehicle was available to fill the inspection space.

 Traffic was light at the time and place that appellant was stopped, so that the inspectors were able to detain all passing vehicles.   No discretion was exercised in stopping appellant's car.

 Inspector Millan told Officer Brescia that appellant was nervous and uncooperative.   Appellant stated untruthfully that he did not have a key to the trunk.   The situation led Brescia to suspect that the trunk contained host fruit.   His search was conducted not as a result of an arbitrary exercise of discretion, but due to his reasonable suspicion that the appellant was concealing fruit.

Administrative Warrant Requirement

The United States Supreme Court has held that administrative searches conducted without a warrant may violate the Fourth Amendment in Camara v. Municipal Court (1967) 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930.   The Camara decision prompted the California Legislature to promulgate Code of Civil Procedure sections 1822.50 et seq. which cover the issuance of “inspection warrants.”  (Witkin, Cal.Evidence (2nd ed. 1966, 1977 supp.) § 89c, pp. 105–107.)   Appellant argues that under the code, the state was required to obtain an inspection warrant before searching his car trunk.   However, neither Camara nor the code suggest that the legislature intended such a result.

Camara involved a warrantless building inspection where there was “no compelling urgency to inspect at a particular time or on a particular day.”   (387 U.S. at 539, 87 S.Ct. at 1736.   See also, Vidaurri v. Superior Court (1970) 13 Cal.App.3d 550, 91 Cal.Rptr. 704.)   The Camara holding explicitly excludes emergency circumstances such as those before this court:  “nothing we say today is intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations.   See North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (seizure of unwholesome food);  Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (compulsory smallpox vaccination);  Compagnie Francaise v. Board of Health, 186 U.S. 380, 22 S.Ct. 811, 46 L.Ed. 1209 (health quarantine);  Kroplin v. Truax, 119 Ohio St. 610, 165 N.E. 498 (summary destruction of tubercular cattle).”  (Id., at p. 539.)   The relevant inquiry is “whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.”  (Id., at p. 533;  see also People v. Hyde (1974) 12 Cal.3d 158, 168, 115 Cal.Rptr. 358, 524 P.2d 830.)

People v. Dickinson (1980) 104 Cal.App.3d 505, 163 Cal.Rptr. 575 upheld the validity of a car trunk search conducted at an agricultural inspection site near the border of California and Arizona.   The court adopted the reasoning employed in United States v. Schafer (9th Cir.1972) 461 F.2d 856, regarding the warrant requirement.

Schafer upheld the admission of criminal evidence seized at an airport fruit quarantine inspection station.   The court stated that “a search warrant would ‘frustrate’ the purpose of these inspections, because of the time delays inherent in the search warrant mechanism.   Unless all departing passengers could be detained while warrants could be obtained, the goods would be moved before the warrants could issue.   Whereas, in Camara there was no suggestion that ‘fire, health, and housing inspection programs could not achieve their goals within the confines of a reasonable search warrant requirement,’ [citation omitted] we are persuaded that requiring warrants for agricultural inspection of this type would effectively cripple any meaningful quarantine.”  (Id., at p. 858;  People v. Dickinson, supra, 104 Cal.App.3d 505, 511, 163 Cal.Rptr. 575.)

Before an inspection warrant may issue under the Civil Code, it must be supported by an affidavit which describes the particular subject of the search, and the warrant itself must delineate the subject to be searched with particularity.  (Code Civ.Proc., § 1822.54)  The supporting affidavit must state that consent to search was sought and refused or that failure to seek consent was justified.  (Code Civ.Proc., § 1822.51)  Ordinarily, an inspection may not be conducted between the hours of 6 p.m. and 8 a.m., and if consent to search has been sought and refused, notice that a warrant has been issued must be given at least 24 hours before the warrant is executed.   (Code Civ.Proc., § 1822.56)

 More than 5,000,000 vehicles passed through the Medfly inspection stations.   Time was of the essence and the government's interest was compelling.   The warrant requirement is simply incompatible with the success of the quarantine method of eradication, and we see no reason to believe the Legislature intended to eliminate this approach to problems of an emergency nature directly involving the public welfare.1  The emergency situation which existed in this case is ample justification for the warrantless search of appellant's car trunk.

Requirement of Cause to Stop

 Appellant asserts that he was illegally stopped at the Medfly checkpoint because there was no reasonable cause to suspect he was transporting host fruit.   The Dickenson court found agriculture inspection stations comparable to fixed border patrol checkpoints designed to intercept illegal aliens, (People v. Dickinson, supra, 104 Cal.App.3d 505, 509, 163 Cal.Rptr. 575), discussed in United States v. Martinez-Fuerte (1976) 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116.  Martinez-Fuerte holds that motorists may be stopped and questioned at reasonably located checkpoints without an individualized suspicion that a stopped vehicle is transporting illegal aliens.  (Id., at p. 562, 96 S.Ct. at p. 3085.)  Dickinson applied the Martinez-Fuerte holding to agriculture inspection stops (104 Cal.App.3d at 509, 163 Cal.Rptr. 575), and in that respect Dickinson applies here.

Requirement of Cause to Search

 Appellant argues that the Medfly searches conducted by highway patrol officers rather than agricultural inspectors required criminal probable cause for support.   According to appellant, a search conducted by police must be supported by probable cause because police are generally looking for evidence of crime;  agricultural inspectors, on the other hand, may search with a general administrative cause because they are more concerned with fruit than crime.   While appellant's assertions may be true in the abstract, here, both agencies were primarily interested in preventing the transportation of Medfly host out of the quarantined areas.  (See discussion, post.)   We see no significance in the status of the inspecting official with regard to the standard of cause imposed on the searches.  United States v. Soto-Soto (9th Cir.1979) 598 F.2d 545, cited by appellant, lends no support to the contrary.

Next, appellant argues that probable cause is required because transportation of Medfly host out of the quarantine areas was made a misdemeanor by the Governor's proclamation.

In Salwasser Manufacturing Co. v. Municipal Court (1979) 94 Cal.App.3d 223, 156 Cal.Rptr. 292, the court held that inspections conducted pursuant to the California Occupational Safety and Health Act (Cal/OSHA) must be supported by a showing of criminal probable cause because criminal sanctions under Cal/OSHA “permeate the entire inspection process.”  (Id., at p. 230, 156 Cal.Rptr. 292.)   The court distinguished the inspections conducted in Camara v. Municipal Court, supra, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, which the Supreme Court found were not aimed at the discovery of evidence of crime.  (Camara, at 537, 87 S.Ct. at 1735;  Salwasser, 94 Cal.App.3d at p. 231, 156 Cal.Rptr. 292.)

The Camara inspections were made pursuant to a city ordinance which made violation punishable by a fine not exceeding $500 or by imprisonment not exceeding six months, or both, the same as that provided in the Medfly proclamation.   While penalties under Cal/OSHA were only moderately higher (see Salwasser, 94 Cal.App. at 231, 156 Cal.Rptr. 292), the Act punished negligent as well as willful violation.  (Salwasser at 230, 156 Cal.Rptr. 230.)   Significantly, the Medfly proclamation makes only willful violation punishable.   The emergency measure is akin to the ordinance discussed in Camara;  it is not aimed at the discovery of evidence of crime.

 “[W]e are at a loss as to how probable cause would develop for the plant quarantine officer to believe a maggot-infested, quarantined, pest-ridden orange was in the trunk of the vehicle.”  (People v. Dickinson, supra, 104 Cal.App.3d 505, 510, 163 Cal.Rptr. 575.)  “ ‘In view of the fact that a quarantine inspection is not a search “which has as its design the securing of information ․ which may be used to effect a further deprivation of life, liberty or property,” [citation omitted], and the fact that “it is doubtful that any other canvassing technique would achieve acceptable results,” [citation omitted], we think that the general administrative determination of the necessity for these ․ searches ․ satisfies the “probable cause” requirements of Camara.’ ”  (Id., at pp. 511–512, 163 Cal.Rptr. 575, quoting United States v. Schafer, supra, 461 F.2d 856 at 859.)   That reasoning is equally applicable here.

Requirement of Opportunity to Avoid Search

Appellant asserts that because he was not given the opportunity to turn his car around in order to avoid the inspection station the search was invalid.   He quotes United States v. Davis (9th Cir.1973) 482 F.2d 893, at pp. 910–911:  “airport screening procedures [to detect highjackers] are valid only if they recognize the right of a person to avoid search by electing not to board the aircraft.”

 Davis does not support the proposition that persons must be afforded the opportunity to retreat before they may be subjected to search.   The Davis court's statement was made with reference to search of would-be passengers who attempt to turn back after catching sight of a screening station.  (See People v. Bleile (1975) 44 Cal.App.3d 280, 118 Cal.Rptr. 556.)   Here, appellant was not stopped in the process of retreat and there is no evidence that “retreat searches” were ever conducted to further Medfly eradication.

Similarly, People v. Scott (1976) 16 Cal.3d 242, 128 Cal.Rptr. 39, 546 P.2d 327, is inapposite.   There, police officers had offered the defendant a ride in their patrol car.   Before allowing the defendant to enter the car, the officers searched him without arresting or believing him armed.   The court held that the search was illegal because the police failed to advise the defendant that he was not obligated to accept the proffered ride.  (Id., at p. 250, 128 Cal.Rptr. 39, 546 P.2d 327.)   In contrast to the circumstances now before us, the officers in Scott had no cause or authority to search.

Authority to Search

 Appellant argues that the highway patrol officers were not authorized to search by the emergency proclamation.   However, the Governor directed all state agencies “to utilize and employ state personnel, equipment, and facilities for the performance of any and all activities to alleviate this emergency; ․”  Such activities included searches by the California Highway Patrol of vehicles at authorized checkpoints within the confines of state and federal law.

The highway patrol was expressly given the authority to “stop any vehicle” within the quarantine areas and adjacent counties “for the purpose of determining if such vehicle contains Mediterranean fruit fly host.”   A restrictive construction of this language hinders the practical achievement of its stated purpose.   Without the implied authority to search, an officer would have had little chance of detecting host not in plain view, whether intentionally or unintentionally hidden and unmentioned by a motorist.

Finally, where the officer after making an authorized stop reasonably suspects that the stopped vehicle may bear forbidden fruit, as occurred here, the ensuing search may be valid without executive authority.

Necessity and Effect of Checkpoint Method

 Appellant argues that the prosecution failed to prove that the checkpoint method was necessary to prevent the spread of the Medfly.  (Cf. Camara v. Municipal Court, supra, 387 U.S. 523, 535–536, 87 S.Ct. 1727, 1734–1735, 18 L.Ed.2d 930.)   He also asserts that the inspections were ineffective.

A district director from the U.S. Department of Agriculture testified that the only known means by which the Medfly spread was through the vehicular transportation of infested host fruit.   A lieutenant from the highway patrol testified that Medfly host was confiscated at the inspection stations from 98,266 vehicles during the eradication period.   The trial court could have reasonably deduced (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738) that the checkpoint method was both necessary and effective.

The judgment is affirmed.

FOOTNOTES

1.   Appellant suggests that the issuance of an area warrant authorizing the inspection of all vehicles leaving the quarantined areas could have alleviated the burden of warrant obtainment.   It is doubtful, however, that authority to inspect vehicles in transit is within the scope of area warrants;  such warrants are ordinarily confined to fixed structures.  (See Camara v. Municipal Court, supra, 387 U.S. 523, 535–536, 87 S.Ct. 1727, 1734–1735, 18 L.Ed.2d 930.)   If we assume otherwise, arguendo, the Governor's emergency proclamation supplies an area warrant facsimile.

FEINBERG, Associate Justice.

WHITE, P.J., and BARRY–DEAL, J., concur.

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