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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Mark Allan YOUNG, Defendant and Appellant. IN RE: Mark Allan YOUNG on Habeas Corpus.

F002197, F003254.

Decided: August 15, 1984

Richard B. Barron, Visalia, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Joel Carey, Ramon M. de la Guardia and Ben Johnson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


Defendant appeals from his conviction of burglary (Pen.Code, § 459) 1 and possession of stolen property (§ 496) based on his guilty plea.   He challenges the trial court's denial of his section 1538.5 motion.  (§ 1538.5, subd. (m).)

Defendant also filed in this court a petition for writ of habeas corpus in which he alleged his trial counsel was incompetent for failing to object at a pretrial suppression hearing to a written consent obtained in violation of Tidwell v. Superior Court (1971) 17 Cal.App.3d 780, 95 Cal.Rptr. 213.

We affirm the judgment and deny the petition for habeas corpus.2


On August 8, 1982, the Ditch Witch Company (Ditch Witch) in Visalia was burglarized.   The burglar had entered the building in which the burglary occurred by prying open a hole in a metal wall, thus activating a silent burglar alarm.   Visalia Police Officer Abbot promptly responded to the alarm.   Upon Abbot's arrival, he observed defendant crawling out of a hole in the building.   Defendant was carrying a tote bag and was wearing gloves.   On Abbot's demand defendant stopped, raised his arms and dropped the tote bag.   Abbot pat searched and handcuffed defendant before placing him in the back of Abbot's patrol car.   Defendant was not read his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) or questioned at that time.

After a second Visalia police officer, Correia, arrived at the scene, Abbot retrieved a flashlight from just inside the point of entry into the building as well as the tote bag defendant had dropped outside upon being apprehended.   The tote bag was not zippered, and inside of it Abbot could see tools, including a screwdriver, a crowbar, and a pair of pliers.   The tote bag and its contents were turned over to the Visalia Police Department.

About 30 to 40 feet from the point of entry into the building and in the direction defendant was proceeding at the time he was stopped, Correia located a backpack with a sleeping bag tied to it.   Those items were partially concealed in some shrubbery.   Correia summoned Abbot, who retrieved the backpack and sleeping bag and placed them on the hood of his police car.   Without Mirandizing defendant, Abbot asked him for identification.   Defendant replied that it was in the backpack, which was within his field of vision on the hood of the patrol car.   Abbot went through the backpack and found defendant's identification in a small, zippered shaving kit.   In going through the backpack, Abbot noted a small desk calculator and a clear plastic quartz digital clock.   Although Abbot thought these items were unusual in a backpack, he did not seize them.   He did, however, put the backpack, its contents and the attached sleeping bag into the patrol car before transporting defendant to the Visalia Police Department.   Later Abbot commented to Correia about the unusual items he had seen in defendant's backpack.   Abbot was not involved in any further search of the backpack.

At some time on the same weekend in which defendant was taken into custody, Delta Plastics in Visalia had also been burglarized.   Among the items taken were a typewriter, a small plastic digital clock, a small desk-model calculator, and a sleeping bag belonging to one of Delta Plastic's employees.

On the Monday morning after defendant was taken into custody, Visalia police officer Dawson contacted defendant in the Visalia jail about the Ditch Witch burglary.   At that time Dawson was not aware of the Delta Plastics burglary.   Dawson read defendant his Miranda rights, and defendant declined to waive those rights or to make any statement.   The interview ended.   Defendant, along with his personal property, was then transported to the Tulare County jail.

Two days later, Dawson again contacted defendant and told him he would like to look through the property “booked in” with defendant, i.e., the backpack.   Dawson expressed his suspicion that some or all of the property was stolen.   Before initiating this second contact, Dawson reminded defendant he still had all of his constitutional rights.   Defendant expressed his desire to obtain his comb and razor from the backpack, but Dawson responded that defendant would have to take up that request with the jailer.   Defendant then told Dawson the booked-in property was his.   Defendant appeared to have no qualms about signing a written release for the property.

After obtaining the property release form, Dawson examined defendant's backpack and sleeping bag.   Dawson determined that the calculator and clock he found in the backpack matched the description in the police report of items taken in the Delta Plastics burglary.


We consider defendant's challenge to the trial court's denial of his section 1538.5 motion under the standard of review reaffirmed by the Supreme Court in People v. Rios (1976) 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 546 P.2d 293.   The court stated:

“A proceeding pursuant to section 1538.5 is one in which factual issues are resolved by the court sitting as a finder of fact.  [Citation omitted.]  ‘In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.   On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’   (People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621].)”

We also bear in mind that the challenged ruling pertained to two distinct searches.   The trial court found that the first search, that of Officer Abbot in going through defendant's backpack to locate defendant's identification, was illegal.   The second search occurred when Officer Dawson obtained defendant's consent to look through the backpack for items Dawson suspected were stolen property.   This second search was upheld by the trial court.

 I. Did the trial court correctly rule that Abbot's search of defendant's backpack was illegal? *

 II. Did Abbot's illegal search taint the second search of the backpack by Officer Dawson? *

 III. Has defendant established, by his petition for habeas corpus relief, that he was denied effective assistance of counsel? A. Did trial counsel's failure to assert a “Tidwell” violation in the 1538.5 motion constitute ineffective assistance of counsel, entitling defendant to habeas corpus relief?

The report of the special referee establishes that the Office of the Tulare County Public Defender was appointed to represent petitioner on August 10, 1982, in connection with the Ditch Witch burglary and possession of burglary tools, the only crimes with which defendant was then charged.   The day following defendant's arraignment and the appointment of the public defender's office to represent him, August 11, Officer Dawson contacted defendant, who was still in custody, in connection with Dawson's investigation of the Delta Plastics burglary.   Defendant was not charged with the Delta Plastics burglary at the time of Dawson's contact.

On August 11, Dawson did not know that the public defender had been appointed on August 10 to represent defendant on the Ditch Witch burglary charge.   Consequently, Dawson did not contact the office of the public defender prior to requesting defendant's consent to a search of his backpack, nor did the office of the public defender give such consent or join with defendant in giving consent.   However, Dawson did know that defendant had been in custody since August 9, and Dawson was aware of the statutory time limits governing the arraignment of a person detained in custody.

Defendant's trial counsel, Public Defender Stephen Biskar, filed a 1538.5 motion seeking to suppress the evidence seized from defendant's backpack.   Although Biskar knew that the search had been conducted on August 11, he too was unaware that his office had been appointed to represent defendant on August 10.   This information is normally recorded on an interview sheet placed in the file, but Biskar did not remember reviewing any interview sheet or even seeing one in the file;  it was possible that the sheet had not been included at the time the 1538.5 motion was made.   Biskar testified his failure to raise the issue of consent obtained without advice of counsel was simply the result of his own inadvertence and was not a knowing, tactical choice.   Had he known of the appointment of his office on August 10, he would have raised the issue in the 1538.5 motion.

Initially, in a habeas corpus proceeding, “[P]etitioner has the burden of alleging and proving by a preponderance of the evidence all of the facts upon which he relies to show his illegal detention.  [Citations omitted.]  He likewise is charged with the sustaining of his claims that he has suffered essential unfairness and injustice, and in order to have the result set aside, these claims must be sustained not as a matter of speculation but as a demonstrable reality.  [Citations omitted.]”  (In re Merkle (1960) 182 Cal.App.2d 46, 48–49, 5 Cal.Rptr. 745;  see also In re Riddle (1962) 57 Cal.2d 848, 22 Cal.Rptr. 472, 372 P.2d 304.)

 A claim raised in a habeas corpus proceeding that the defendant was denied effective assistance of counsel at trial is reviewed under the standard recently affirmed by the California Supreme Court in People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144.   There the court reiterated the two-step test applicable in assessing the adequacy of trial counsel which had previously been articulated in People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859:  “ ‘[Defendant] must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.   In addition, [he] must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.’ ”  (People v. Fosselman, supra, 33 Cal.3d at p. 581, 189 Cal.Rptr. 855, 659 P.2d 1144.)   However, the court in Fosselman went on to expand the Pope test to cover those cases in which trial counsel's inadequate performance did not strictly constitute the deprivation of a potentially meritorious defense but nonetheless seriously prejudiced the defendant's case.   Thus, expanding upon Pope, the court in Fosselman concluded that “in cases in which a claim of ineffective assistance of counsel is based on acts or omissions not amounting to withdrawal of a defense, a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings.  [Citations omitted.]”  (People v. Fosselman, supra, at p. 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)

Thus, in the instant case defendant could meet his burden in the habeas corpus proceeding if he established, by a preponderance of the evidence, either (1) trial counsel's failure to assert the alleged Tidwell violation in support of his 1538.5 motion deprived defendant of a potentially meritorious defense or (2) the failure seriously prejudiced defendant's case.

In determining whether defendant has met his burden of proof, we have in mind that defendant's conviction was predicated upon his plea of guilty to the Ditch Witch burglary in one count and possession of property stolen from Delta Plastics in a second count.   No evidence pertinent to the Ditch Witch burglary was seized as a result of the search challenged by the 1538.5 motion;  the evidence supporting defendant's conviction of the Ditch Witch burglary was largely the testimony of the officers who arrested defendant while he was crawling out of the building.   Defendant has not asserted any carryover effect between the denial of the 1538.5 motion, relevant only as it was to Delta Plastics, and his election to plead guilty to the Ditch Witch burglary.   As pointed out by the People in their opposition to defendant's petition for habeas corpus, were this court to grant the relief prayed for in the petition, the conviction of the Ditch Witch burglary would be unaffected.

In Tidwell v. Superior Court, supra, 17 Cal.App.3d 780, 95 Cal.Rptr. 213, the defendant and his brother had both been arrested on charges of burglary about August 17.   During the course of a search of the brothers' apartment, pursuant to a warrant, police observed evidence potentially linking the brothers to some unsolved murders, and an investigation of these murders, focusing on the brothers, was undertaken.   The defendant was arraigned on the burglary charge, and counsel was appointed to represent him on that charge on August 23.   The reported facts indicate the defendant was in custody at all times relevant to the opinion, i.e., from the time of his arrest until the time of the challenged search of the defendant's car conducted on September 1.   On that date, an investigating officer contacted the defendant and asked for his consent to a search of defendant's automobile;  the ensuing search revealed evidence used in the subsequent homicide trial.   The defendant's appointed counsel had not been contacted prior to the officer's request, and counsel did not join in the defendant's consent.   The burglary charge, on which counsel had been appointed, was dismissed no later than September 1 and possibly as early as August 23.   The defendant had not been arraigned on the murder charge, nor had counsel been appointed to represent the defendant on that charge at the time of the automobile search.

In holding the search illegal, the court relied upon the cases of People v. Isby (1968) 267 Cal.App.2d 484, 73 Cal.Rptr. 294 and People v. Valencia (1968) 267 Cal.App.2d 620, 73 Cal.Rptr. 303.   Both Isby and Valencia were predicated upon the Sixth Amendment right to effective assistance of counsel, which attaches once judicial proceedings have been instituted against one accused of crime.   In ordering the issuance of a writ of mandate directing the trial court to suppress the evidence seized in the search of the automobile, the court in Tidwell stated in part, “[O]nce counsel is appointed the police may not initiate interrogation of the defendant without notifying counsel, and the exclusionary policy applies to any evidence or information obtained in violation of this rule.”  (Tidwell v. Superior Court, supra, 17 Cal.App.3d at p. 789, 95 Cal.Rptr. 213.)   Moreover, the court rejected the People's argument that the rule was inapplicable to “consents” given as opposed to “statements elicited.”  “This distinction is very thin considering the incriminating effect a consent to search may have.   The reasoning of Isby and Valencia, which protects defendants' right to effective aid of counsel, applies equally to a consent given at the instigation of the police.”  (Id., at p. 790, 95 Cal.Rptr. 213.)

We are aware of only one California case which considered and distinguished the Tidwell rule that consent obtained without contacting appointed counsel is invalid.   In People v. Williams (1980) 114 Cal.App.3d 67, 170 Cal.Rptr. 433, defendant had been arrested, booked, and released on bail on January 26.   Prior to the arrest, the police had several conversations with an attorney, attempting to arrange defendant's surrender.   The attorney himself had appeared at the police station to arrange defendant's bail.   However, as defendant was not in custody, no felony complaint was filed in the case until February 8, and appellant was not arraigned until March 27.   Based on the attorney's involvement, which was known to the police, defendant argued that:

“[A]dversary proceedings had been initiated against him, and that any communication with him in the absence of counsel was prohibited.  [The court disagreed.]  The booking procedure is not tantamount to institution of adversary judicial proceedings.   The Constitution requires that an accused be given the aid of counsel at or after the time that judicial proceedings have been initiated against him, ‘․ whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’  [Citation omitted.]  The right to the presence of counsel does not attach to prearraignment, investigatory interrogations or searches.”  (Id., at p. 76, 170 Cal.Rptr. 433, fn. omitted.)

The court in Williams concluded:

“The officer's request of defendant that he consent to the search of his storage locker, and the earlier request that defendant consent to the search of his car, occurred prior to the filing of formal charges against defendant.   The fact, therefore, that the officers knew that defendant had been represented by a particular attorney in the past did not require that that attorney be present or consulted at the time consent was sought.”  (Id., at p. 77–78, 170 Cal.Rptr. 433.)

See also United States v. Messina (2d Cir.1974) 507 F.2d 73 in which the court acknowledged the decision in Tidwell v. Superior Court, supra, 17 Cal.App.3d 780, 95 Cal.Rptr. 213 and “assumed” the correctness of that decision without discussion because the court in Messina determined that Tidwell was inapplicable to the proceedings before it.

 We are satisfied that a challenge to the validity of defendant's consent in the context of the instant 1538.5 motion, based upon Tidwell v. Superior Court, supra, would have been successful, and the evidence seized from the backpack would have been suppressed.   It is unlikely that the trial court would have found People v. Williams, supra, 114 Cal.App.3d 67, 170 Cal.Rptr. 433 controlling based upon the obvious distinction between the total absence of arraignment and appointment of counsel in Williams and the appointment of counsel on a different but related offense in the instant case, i.e., the Ditch Witch burglary as opposed to the Delta Plastics burglary.   The trial court could not reasonably have ignored the similarity of the facts in this case to those in Tidwell;  it would have been bound by that decision.   Thus, had Biskar asserted the Tidwell violation as a basis for vitiating defendant's consent to the search of his backpack, the trial court would have been obligated to grant the motion and order that the evidence seized incident to the search of the backpack be suppressed.

Clearly, suppression of the evidence seized in connection with the search of defendant's backpack would have constituted a potentially meritorious defense to the charges arising from the burglary of Delta Plastics.   Indeed, the evidence seized from defendant's backpack was the only evidence connecting him to this occurrence.   The hearing on the reference established (1) that Officer Dawson obtained defendant's consent to the search without contacting the public defender's office, (2) that the public defender's office was representing defendant on the Ditch Witch burglary at the time Dawson sought and obtained defendant's consent to the search, and finally (3) that Public Defender Biskar had no tactical purpose in failing to assert the Tidwell violation in connection with the 1538.5 motion.   Biskar simply failed to recognize the issue.   Thus, in the context of a consentual search, defendant has established by a preponderance of the evidence that Biskar's failure to assert the Tidwell violation did deprive him of a potentially meritorious defense and thus constituted ineffective assistance of counsel.   However, because the Tidwell violation goes only to defendant's consent to the search and because the trial court's denial of the 1538.5 motion alternatively rested upon the doctrine of inevitable discovery, it is necessary to evaluate the applicability of this doctrine to the facts of this case to determine whether defendant has established that he was deprived of effective assistance of counsel.

 B. In light of the doctrine of inevitable discovery, did defendant establish by a preponderance of the evidence that the ineffectiveness of trial counsel deprived him of a potentially meritorious defense or seriously prejudiced his case?

The doctrine of inevitable discovery and the authority supporting it was fully discussed in People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 673, 145 Cal.Rptr. 795.   The court described the doctrine as follows:

“ ‘Although typically any evidence obtained, even indirectly, through the illegal actions of police is inadmissible as “fruit of the poisonous tree,” where the court finds that the challenged evidence would have been eventually secured through legal means regardless of the improper official conduct, the inevitable discovery exception allows the evidence to be admitted.   The doctrine was developed to prevent unjustly granting criminals immunity from prosecution.’  [Citation omitted.]”

(See also People v. Aylwin (1973) 31 Cal.App.3d 826, 838–839, 107 Cal.Rptr. 824;  Witkin, Cal. Criminal Procedure (1983 supp.) pt. 2, Exclusion of Illegally Obtained Evidence, § 847, pp. 32–33.)

Because the underlying offenses in the instant case occurred after the passage of Proposition 8, we look first to applicable federal authority with respect to the doctrine of inevitable discovery.   Significantly, the United States Supreme Court has only recently affirmed the inevitable discovery doctrine as an exception to the exclusionary rule in Nix v. Williams (1984) 467 U.S. 431, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377.   Of special importance in the instant case is the rationale of that court in applying the doctrine to cases in which the underlying illegality was violative of the Sixth Amendment right of a criminal defendant to assistance of counsel, rather than the more common ground on which such claims are based, alleged violation of the right to be free of unreasonable searches and seizures, guaranteed by the Fourth Amendment.

“Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.   The Sixth Amendment right to counsel protects against unfairness by preserving the adversary process in which the reliability of proffered evidence may be tested in cross-examination.  [Citations omitted.]  Here, however, Detective Leaming's conduct did nothing to impugn the reliability of the evidence in question—the body of the child and its condition as it was found, articles of clothing found on the body, and the autopsy.   No one would seriously contend that the presence of counsel in the police car when Leaming appealed to Williams' decent human instincts would have had any bearing on the reliability of the body as evidence.   Suppression, in these circumstances, would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice.

“Nor would suppression ensure fairness on the theory that it tends to safeguard the adversary system of justice.   To assure the fairness of trial proceedings, this Court has held that assistance of counsel must be available at pretrial confrontations where ‘the subsequent trial [cannot] cure a[n otherwise] one-sided confrontation between prosecuting authorities and the uncounseled defendant.’  [Citation omitted.]  Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place.   However, if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings.   In that situation, the State has gained no advantage at trial and the defendant has suffered no prejudice.   Indeed, suppression of the evidence would operate to undermine the adversary system by putting the State in a worse position than it would have occupied without any police misconduct.   Williams' argument that inevitable discovery constitutes impermissible balancing of values is without merit.”  (Id., 104 S.Ct. at pp. 2510–2511.)

Because defendant in the instant case has challenged the search in question on Sixth Amendment grounds, we could rely upon the decision in Nix v. Williams, supra, and so affirm the trial court's determination that the evidence seized from defendant's backpack was admissible.   However, even applying California precedent to the facts before us, we reach the same result, albeit somewhat less directly than under the federal rule.

In affirming the doctrine of inevitable discovery, the court in Hernandez v. Superior Court (1980) 110 Cal.App.3d 355, 364, 185 Cal.Rptr. 127, stated, “Thus where there is a reasonably strong probability that the evidence would have been discovered by lawful means independent of the illegality, such evidence will not be excluded.  [Citation omitted.]”  However, the court in Hernandez also pointed out that the “inevitable discovery doctrine applies only to evidence obtained as the indirect product, or fruit, of other evidence illegally seized.  [Citation omitted.]  It is inapplicable to a situation where the challenged evidence is itself illegally obtained apart from any taint imputed to it from its connection with antecedent illegal police conduct․”  (Id., at p. 361, 185 Cal.Rptr. 127.)

The difficulty in the instant case arises because of defendant's assertion that there were two separate acts of unlawful police conduct.   Defendant had argued in his 1538.5 motion that the initial examination of the contents of his backpack in the field by arresting officer Abbot was an unlawful search;  thus the subsequent search by Officer Dawson was the tainted fruit of that poisonous tree.   The trial court accepted defendant's argument insofar as it found the initial search to be illegal, discussed above, but the trial court found that any taint was purged because of defendant's valid consent.   Moreover, the trial court found that, even absent a valid consent, the evidence would have been inevitably discovered.   However, applying the rule of Hernandez v. Superior Court, supra, 110 Cal.App.3d 355, 185 Cal.Rptr. 127, before we can apply the doctrine of inevitable discovery, we must ascertain whether the contents of defendant's backpack were illegally seized as the direct result of some official misconduct.

Notwithstanding the illegality of defendant's consent to the search of his backpack, it is reasonably probable that Officer Dawson could have obtained a warrant for the search of the backpack.   The backpack was confiscated by police at the time of defendant's arrest in the Ditch Witch burglary;  the burglary report from Delta Plastics revealed small items had been stolen, including a digital clock and desk calculator, items which could be concealed in a backpack.   Moreover, the report indicated a sleeping bag had been stolen, and a sleeping bag of similar description was attached to the outside of defendant's backpack.   However, the rationale that a search warrant could have been obtained has little, if any, place in evaluation of the reasonableness of a warrantless search, since realistically a search warrant could have been obtained in the majority of criminal investigations where evidence is obtained as a result of a warrantless search.   Thus, the courts are reluctant to validate a warrantless search on this hypothetical basis.  (See United States v. Chadwick (1977) 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538.)

Therefore the final question with respect to the search of defendant's backpack in the instant case is whether Dawson could properly have searched the backpack without a warrant.

The law governing warrantless searches of a detainee's personal effects, once these effects have been reduced to exclusive police control, is less than clear.   In United States v. Edwards (1974) 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 and in People v. Earls (1980) 109 Cal.App.3d 1009, 167 Cal.Rptr. 685, postbooking searches and seizures of arrested persons' clothing were upheld despite the fact that police had obtained no warrant to seize or search the clothes.   The seizure and search in Edwards occurred the morning following the defendant's arrest;  on the night of his arrest, no jail clothing had been available for him and, as soon as suitable clothes could be obtained for him the following morning, the defendant's own clothing was taken and examined for evidence, specifically paint chips from the scene of a break-in.   The court in Edwards concluded:

“[O]nce the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.   This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant's name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial.   The result is the same where the property is not physically taken from the defendant until sometime after his incarceration.”  (United States v. Edwards, supra, 415 U.S. at pp. 807–808, 94 S.Ct. at p. 1239, emphasis added, fn. omitted.)

In People v. Earls, supra, 109 Cal.App.3d 1009, 167 Cal.Rptr. 685 the defendant's clothing had been confiscated at the time of his arrest on a Vehicle Code violation.  “Several days later, defendant became a suspect in [a] robbery and his blue jeans were sent to the FBI laboratory for analysis.”   (Id., at p. 1011, 167 Cal.Rptr. 685.)   In rejecting defendant's argument that any evidence obtained from the laboratory analysis of his blue jeans should have been excluded since it was obtained as a result of a warrantless search and was the fruit of an unreasonable search and seizure, the court stated in part:

“The argument is a fruitless exercise in semantics as it ignores the long-standing principle that a warrantless search of a person at booking and seizure of his property is reasonable.  [Citations omitted.]

“ ‘ “Once articles have lawfully fallen into the hands of the police they may examine them to see if they have been stolen, test them to see if they have been used in the commission of a crime, return them to the prisoner on his release, or preserve them for use as evidence at the time of trial.   [Citation.]  During their period of police custody an arrested person's personal effects, like his person itself, are subject to reasonable inspection, examination, and test.” ’  [Citations omitted.]”  (Id., at p. 1012, 167 Cal.Rptr. 685.)

Another line of cases, flowing from the United States Supreme Court's decision in United States v. Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (invalidating the search of a padlocked footlocker, containing narcotics, found adjacent to defendants at the time of their arrest but not searched until more than an hour after federal agents had gained exclusive control of the footlocker and long after defendants were securely in custody), is difficult to reconcile with Edwards, supra, and Earl, supra.  (See, e.g., People v. Smith (1980) 103 Cal.App.3d 840, 163 Cal.Rptr. 322.)   In Smith, the defendant's mother had been arrested on an out-of-county warrant and booked into the Berkeley jail.   A Berkeley police officer investigating the defendant on an unrelated offense went to the prisoners' property facility where the defendant's mother's belongings were stored and conducted a warrantless search of her purse.   The officer was hoping to find evidence leading to the defendant's whereabouts and linking the defendant to the crime under investigation.   The officer was successful on both counts, but the appellate court held the search of the purse was illegal.  (Id., at pp. 845–846, 163 Cal.Rptr. 322.)

The decision in People v. Smith was distinguished, however, in two cases involving evidence seized from the property room of the police station long after the booking process had ended.   In both People v. Bradley (1981) 115 Cal.App.3d 744, 171 Cal.Rptr. 487 and People v. Superior Court (Gunn) (1980) 112 Cal.App.3d 970, 169 Cal.Rptr. 559, rings had been seized from the defendants at the time of their arrest.   In Bradley, the ring in question was identified by the victim as one worn by the robber during the course of the crime;  in Gunn, the widow of the murder victim identified the ring as one which had been possessed by her deceased husband.   In both cases, the rings had been placed in clear plastic bags in police storage with other personal effects of the defendant's.   In both cases the courts rejected the vestige of privacy rationale of Smith upon the premise that the rings had been lawfully taken from defendants during the booking process and stored for safekeeping by the police, in accord with department policy, in clear plastic bags and were thus in plain view in the police property room.   Neither ring was in a private place at the time the police seized it as evidence.   The rationale of the court in Bradley is instructive.

“There may be some impounded items, however, in which a defendant may retain an expectation of privacy.   For example, People v. Smith [supra ] 103 Cal.App.3d 840 [163 Cal.Rptr. 322], held a postbooking search inside a wallet contained in the impounded purse was improper because a wallet inside a purse holds a ‘vestige of privacy.’   A ring worn on defendant's finger open to plain view to the victim during the robbery and properly within the custody of the sheriff after booking hardly falls within the same category.   It did not have, nor can it acquire after booking, a ‘vestige of privacy’ requiring a search warrant.   The retrieval of the ring upon the victim's identification of it and its admission into evidence was proper.”  (People v. Bradley, supra, 115 Cal.App.3d at p. 751, 171 Cal.Rptr. 487.)

 If all of these cases are to be reconciled, the rule which emerges is that certain self-evident personal effects or belongings, such as clothing and jewelry, which may properly be seized from the defendant incident to the booking process and stored by the police for safekeeping, may be examined or tested subsequent to the booking process without a search warrant so long as these items remain in exclusive police control.   Moreover, personal effects, such as purses, wallets, and other closed articles, in the possession of the person arrested at the place of detention and which were properly subject to search at the time and place of the arrest, may be subsequently searched incident to the booking process notwithstanding their retention in exclusive police control for some intervening period of time.   However, under the rationale of United States v. Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, and People v. Smith, supra, 103 Cal.App.3d 840, 163 Cal.Rptr. 322, and their progeny, once the booking process has been wholly completed and the personal effects remain in exclusive police control for safekeeping, closed containers, whether purses as in Smith, footlockers as in Chadwick, or backpacks as in the instant case, cannot be reopened and reexamined without a search warrant.   Although a defendant has no privacy interest in a closed container which could be lawfully seized and searched at the time of his arrest when the police have probable cause to believe the closed container contains weapons, evidence, or instrumentalities of crime, once the police have completed that immediate search and reclosed the container, a vestige of privacy interest is restored to the defendant to protect the contents of the closed container from further warrantless intrusion.

 Because this court cannot rely upon the high probability that Officer Dawson could have obtained a search warrant to open defendant's backpack as a basis to sustain the trial court's determination that the evidence seized from the backpack, i.e., the digital clock and desk calculator, would have been inevitably discovered, we conclude that the trial court erred in its ruling as to those two items of evidence.   However, we reach a contrary conclusion with respect to the stolen sleeping bag, which was attached to the outside of the backpack, and was therefore stored in plain view in the police property room.   This was not a personal effect to which a vestige of privacy had been restored by its concealment within a closed container.   The sleeping bag was property in the exclusive control of the police and within their “plain view” in the police property room like the rings in People v. Superior Court (Gunn), supra, 112 Cal.App.3d 970, 169 Cal.Rptr. 559 and People v. Bradley, supra, 115 Cal.App.3d 744, 171 Cal.Rptr. 487, and the clothing in United States v. Edwards, supra, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 and People v. Earls, supra, 109 Cal.App.3d 1009, 167 Cal.Rptr. 685.   Because the sleeping bag matched the general description of stolen property, it remained subject to inspection or testing, notwithstanding defendant's argument that the bag had to be unrolled in order to reveal the actual identity of the owner.   The unrolling of the sleeping bag is no more than inspection or testing and thus is permissible under the rationale of Edwards, supra, and Earls, supra.

 Thus, although the trial court erred in determining that the evidence seized from the backpack, i.e., the desk calculator and the digital clock, would have been inevitably discovered, this doctrine is correctly applicable to the sleeping bag.   Properly admitted, the sleeping bag is evidence sufficient to sustain defendant's plea of guilty to possession of property stolen from Delta Plastics.   In the context of defendant's petition for habeas corpus, defendant has therefore failed to establish by a preponderance of the evidence that the ineffectiveness of his counsel in failing to assert the Tidwell violation deprived him of a potentially meritorious defense or substantially prejudiced his case.

Judgment is affirmed.   The habeas corpus petition is denied.


1.   All further statutory references are to the Penal Code unless otherwise stated.

2.   Parts I and II are not published, as they do not meet the standards for publication contained in rule 976(b) of the California Rules of Court.

FOOTNOTE.   See footnote 2, ante.

HAMLIN, Associate Justice.

WOOLPERT, Acting P.J., and MARTIN, J., concur.

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