PEOPLE v. CHESTNUT

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Edward CHESTNUT, Defendant and Appellant.

Cr. 12062.

Decided: January 20, 1983

Quin Denvir, State Public Defender, and Cynthia A. Thomas, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and Joel Carey and Robert D. Marshall, Deputy Attys. Gen., for plaintiff and respondent.

Following denial of his motion to suppress evidence (Pen.Code, § 1538.5), defendant entered a negotiated plea of guilty to the charge he was an ex-felon in possession of a gun (Pen.Code, § 12021).   He appeals, contending the trial court erred in denying his suppression motion.   We disagree and affirm.

At approximately 3:20 a.m. one morning Sacramento Police Officers Peters and Olsen saw a Ford van parked facing the wrong way while on patrol in an area where a number of recent car burglaries had taken place.   Officer Peters approached the passenger door and saw an individual (later identified as Ross Wardlaw) sitting in the passenger seat.   When the officer shined his flashlight into the van toward the console area to determine if the radio had been tampered with, he observed an open cigar box with a plastic bag containing a green leafy material along with some cigarette rolling papers.   Wardlaw immediately reached over and closed the lid to the box.   Peters then assisted Wardlaw from the van and placed him under arrest for possession of marijuana.   While doing so he heard a rustling noise coming from behind the van's front bucket seat and glimpsed a hurried movement.   The officers investigated and found defendant, who was removed and arrested.   A pat-down search of Wardlaw produced a hypodermic syringe.

After both suspects were secured in the police vehicle, officers searched the van and found a sawed-off shotgun and 10 rounds of ammunition under a makeshift couch, a muzzle-loading handgun underneath the cushion of a chair, and a .38 Remington automatic pistol in a makeshift chest of drawers.

The trial court found that the plain-view observation of the marijuana coupled with the rustling in the van gave rise to the inference “that there was other contraband in there being secreted, ․ [giving] the officer probable cause to go find that contraband.”   It held that the immediate search was proper because of “the mobility aspects of a vehicle.”

Defendant challenges that ruling on appeal.   He contends the search (1) was made without probable cause and exigent circumstances, and (2) violated his privacy expectations.   We disagree.

 The plain-view observation of marijuana, followed by the removal of Wardlaw and the simultaneous rustling from the back of the van, where defendant was discovered, established probable cause to believe there might be additional contraband in the van.   The United States Supreme Court in United States v. Ross (1982) 456 U.S. 798, 102 S.Ct. 2157 [72 L.Ed.2d 572], recently held that if police have probable cause to believe contraband is being carried in a vehicle, they may conduct a search of every part of the vehicle and its contents.  (Id., at p. ––––, 102 S.Ct., at p. 2173 [72 L.Ed.2d at p. 594].)  “The scope of a warrantless search of an automobile ․ is not defined by the nature of the container in which the contraband is secreted.   Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.”  (Id., 456 U.S. at p. ––––, 102 S.Ct. at p. 2172 [72 L.Ed.2d at p. 593].)

In determining whether a state Constitution provides greater protection than its federal counterpart, we are guided by the California Supreme Court's pronouncement in People v. Teresinski (1982) 30 Cal.3d 822, 836, 180 Cal.Rptr. 617, 640 P.2d 753:  “Decisions of the United States Supreme Court, ․ are entitled to respectful consideration [citations] and ought to be followed unless persuasive reasons are presented for taking a different course.”   No such reasons have been proffered here.1

 However, defendant claims this case is factually distinguishable from Ross and the ordinary automobile exception case.   His premise is that those traveling in motor homes, truck campers and the like may have a greater expectation of privacy than those traveling in ordinary cars;  that the former are in many senses more akin to a home than a car.  (See United States v. Williams (9th Cir.1980) 630 F.2d 1322, 1326.)   He asserts that his van was used and furnished in a way manifesting a greater expectation of privacy than vehicles used solely for transportation.

It may be that subjectively defendant may have had a greater expectation of privacy than someone driving, say, a convertible.   However, that does not remove him from the ambit of the automobile exception.  Ross makes palpably clear that it is the mobile characteristics of vehicles that justify their immediate warrantless search based upon probable cause.   As first explained in Carroll v. United States (1924) 267 U.S. 132, 153, 45 S.Ct. 280, 285, [69 L.Ed. 543, 551], “the guaranty of freedom from unreasonable searches and seizures by the 4th Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, 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.”

Ross held the permissible scope of the search extended to every part of the vehicle and its contents that might conceal the object of the search.  (Id., at pp. ––––, ––––, 102 S.Ct., at pp. 2170, 2172 [72 L.Ed.2d at pp. 591, 593].)  This was so even though a person could have a well-manifested expectation of privacy in luggage or packages contained in the car;  the court stated that these interests “must yield to the authority of a search.”  (Id., at pp. ––––, ––––, 102 S.Ct., at p. 2172 [72 L.Ed.2d at p. 593].)  So too must defendant's interests yield.   We think it wholly impracticable to impose on police the burden of assigning a constitutionally significant value to a person's expectation of privacy according to shape, make, and present use of a motor vehicle.

Defendant's van was parked on a public street.   There is nothing in the record to indicate it was identifiably immobile and no such claim is made.   Ross is therefore applicable.   It is of no constitutional import whether the van served as either a temporary or permanent abode, or no abode at all.

The judgment (order) is affirmed.

FOOTNOTES

1.   Although several vehicle search cases are pending before the California Supreme Court (People v. Laiwa (Crim. 22259, hg. granted Oct. 2, 1981);  People v. Cardenas (Crim. 22616, hg. granted May 20, 1982)), no decision of that court directs a different result here based on the state Constitution.   Both People v. Minjares (1979) 24 Cal.3d 410, 424, 153 Cal.Rptr. 224, 591 P.2d 514, and People v. Dalton (1979) 24 Cal.3d 850, 860, 157 Cal.Rptr. 497, 598 P.2d 467, cited by defendant, were based on the federal Constitution only.

EVANS, Associate Justice.

PUGLIA, P.J., and SPARKS, J., concur.