PEOPLE v. BAKER (1980)

OPINION

Real parties Baker and Perez are defendants in Orange County Superior Court case number C–42888 in which they are charged with attempted robbery.   On November 30, 1979, defendant Baker's de novo Penal Code section 1538.5 suppression motion was heard and denied.   Defendant Perez had not joined in Baker's suppression motion and on January 25, 1980, he made his own motion to suppress the evidence seized in a search of the trunk of his automobile.   Defendant Baker moved to reopen his suppression motion on the basis of a claimed change in the law as a result of the decision in People v. Gott (1979) 100 Cal.App.3d 1, 160 Cal.Rptr. 307.   After some legal maneuvering not important to this proceeding, Perez' suppression motion and Baker's reopened suppression motion were heard together.   It was stipulated that the evidence would consist of that presented at the November 30, 1979, hearing as set forth in the transcript.   The motions to suppress were granted, apparently on the authority of People v. Gott, supra, and the subsequent decision in People v. Rodriguez (1980) 102 Cal.App.3d 510, 162 Cal.Rptr. 535 (hearing granted by the California Supreme Court June 19, 1980 [Crim. 21522]).

Pursuant to subdivision (o) of Penal Code section 1538.5 the People petitioned this court for a writ of mandate to review the suppression order.   We issued an alternative writ.

The question presented is whether the trunk of an automobile lawfully stopped by the police may be searched by them without a search warrant when they have probable cause to believe that evidence of a committed crime will be found therein in the absence of exigent circumstances other than the inherent mobility of the automobile.   We conclude that such a search is lawful and that the suppression order of the superior court should be reversed.

Facts

Thomas A. Mathisen, an experienced Anaheim police officer responded at about 9:15 a.m. on August 13, 1979, to a radio report of a robbery at the Taco Bell on Lincoln Avenue in Anaheim.   At approximately 9:30 a.m. Mathisen contacted Judy Brown, an employee at the Taco Bell.   She told Mathisen that she entered the Taco Bell at approximately 8:15 that morning and that upon going to the front of the premises to start her work she saw two men who tackled her to the ground.   One was a male Negro approximately six feet tall weighing about 180 pounds, wearing a Taco Bell scarf over his face, dark gloves on his hands, blue pants and athletic tennis shoes.   This subject placed a knife at Ms. Brown's throat.   The other subject was a male Mexican approximately five feet six inches tall weighing 145 pounds.   He wore a ski mask, blue pants and rubber surgical gloves.   He carried a gun, the barrel of which was two to four inches in length and made of black or blue steel.   The subjects demanded that she open the safe but she did not know the combination.   They then discussed what to do with her and began to look at the employee work schedule to see who else might be coming to work who could open the safe.   Ms. Brown pleaded with the subjects to leave her alone.   She promised not to tell anyone what they had done.   Eventually they let her go, and she heard them leave a couple of minutes later.

About five minutes later a second employee, Mr. Fantino, arrived.   He noticed by Ms. Brown's expressions that something was amiss.   Ms. Brown advised Fantino not to turn around.   She then related the circumstances of the robbery to Fantino and the two of them decided to close the business and leave.

As Brown and Fantino were walking toward Fantino's car which was parked near the Taco Bell they heard a vehicle start up and saw two subjects sitting in a light blue vehicle described as a 1977–1978 Camaro LT or Berlinetta model with fancy hubcaps.   As Brown and Fantino continued walking toward Fantino's car, the light blue Camaro departed from the parking lot at a high rate of speed.

As Ms. Brown was relating the foregoing information to Officer Mathisen they were standing in an alley behind the Taco Bell.   Suddenly Mr. Fantino yelled from the front of the premises that the vehicle they had seen leave earlier had just driven by.   He said that the car contained two subjects that were similar to those described by Brown to Mathisen.   Officer Mathisen got into his police car and headed eastbound on Lincoln to pursue the Camaro.   Upon arriving at the intersection of Lincoln and Beach, Mathisen saw a Camaro that fit the description given by Ms. Brown.   He could see into the Camaro and determined that the passenger was a male Negro.   Although his view was somewhat obstructed he believed the driver to be a male Mexican.

The Camaro made a left turn and Mathisen followed activating his red lights.   Although Mathisen was only two to three car lengths behind the suspect vehicle, it did not immediately pull over.   Mathisen then activated his siren and eventually his horn.   The suspect vehicle pulled over approximately two–tenths of a mile from the intersection at which it had turned left.   At about the time the Camaro was stopped other police units arrived on the scene in response to a radio call for assistance by Officer Mathisen.

For officer protection, felony car stop procedure was followed.   The occupants of the Camaro, defendants Baker and Perez, were ordered out of the car at gunpoint, instructed to lie down on the street and were handcuffed by the officers.   Baker and Perez fit the description of the subjects given by Ms. Brown and some of their clothing matched that described by Ms. Brown.   Officer Mathisen, feeling that weapons might be located in the car, removed the keys from the ignition and opened the trunk over the objection of defendant Perez.   Upon opening the trunk lid he observed an unzipped gun case, but no weapon was in it.   A sweatshirt lying in the trunk was picked up by another officer, Magranahan.   In it was a .45 Colt automatic.   A third officer named Crawford was sent back to the Taco Bell to bring Ms. Brown to the scene of the stop.   When Ms. Brown arrived she identified Baker and Perez as the persons who had attempted to rob her.   At about this time Mathisen discovered a large rifle in the trunk of the car.   A ski mask, a pair of surgical gloves and a pair of blue gloves were also found in the trunk of the car after it was impounded.   These items were found underneath some unzipped tote bags in the trunk.   Other items of clothing were found in the unzipped tote bags.

Discussion

Real parties first contend that the officers did not have probable cause to arrest them prior to discovering the gun and other items in the trunk of Perez' automobile, asserting that the officers must have felt that way themselves because real parties were not arrested until after the trunk was searched.   Whether or not the officers had probable cause to arrest real parties prior to the trunk search, however, is not the issue.   The People do not attempt to validate the search as one incident to an arrest.   They claim it was lawful under the so–called “automobile exception” to the search warrant requirement.

“In People v. Laursen (1972) 8 Cal.3d 192, 201 [104 Cal.Rptr. 425, 501 P.2d 1145], the California Supreme Court, relying on Chambers v. Maroney, supra, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, held 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 since there is no distinction of constitutional proportion between an immediate search on probable cause without a warrant and the automobile's immobilization until one is secured.’   In Laursen, one of the suspects had been arrested and the other had escaped from the scene of the crime;  yet the court held that the police, upon probable cause, were entitled to search the automobile without a warrant, and furthermore could do so after the vehicle was impounded at a police garage.  (8 Cal.3d at pp. 201–202, 104 Cal.Rptr. 425, 501 P.2d 1145.)   The court's holding implies that exigent circumstances justified the search, in spite of the fact that there was no danger that the car would not remain safely in police custody until a warrant was obtained.  (Accord, People v. Hill (1974) 12 Cal.3d 731, 751 [117 Cal.Rptr. 393, 528 P.2d 1], overruled on another pt. in People v. DeVaughn (1977) 18 Cal.3d 889, 896 [135 Cal.Rptr. 786, 558 P.2d 872];  People v. Remiro (1979) 89 Cal.App.3d 809, 829–830 [153 Cal.Rptr. 89], cert. den. sub nom. California v. Little, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197;  People v. Paul (1978) 78 Cal.App.3d 32, 46–47 [144 Cal.Rptr. 431];  ․” (People v. Piper (1980) 103 Cal.App.3d 102, 108, 162 Cal.Rptr. 833.)

The rule was repeated in Wimberly v. Superior Court (1976) 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417.   The court in Wimberly, however, added with respect to the search of the trunk of an automobile, “that the existence of probable cause to search the interior of a car is not necessarily sufficient to justify the search of the car's trunk.   A search based on probable cause which reasonably only tends to support the inference that contraband or evidence will be found in the passenger compartment will be of intolerable intensity and scope if expanded to include a closed trunk.   In such a situation there must be some specific articulable facts which give reasonable cause to believe that seizable items are, in fact, concealed in the trunk.”  (16 Cal.3d at p. 568, 128 Cal.Rptr. 641, 547 P.2d 417;  accord:  People v. Fraijo (1977) 78 Cal.App.3d 977, 981, 144 Cal.Rptr. 424;  see also People v. Minjares (1979) 24 Cal.3d 410, 423, 153 Cal.Rptr. 224, 591 P.2d 514,¹ cert. den. 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 117.)

There can be no question but that here the officers had, in addition to probable cause to believe the vehicle might contain evidence of the attempted robbery, articulable facts giving reasonable cause to believe that such evidence might be found in the trunk.   The automobile, pursued from the vicinity of the scene of the robbery, matched perfectly the description of the suspect vehicle, the suspects fit the description given by the victim, and some of their clothing matched that described by the victim.   The attempted robbery had involved the use of a gun and a knife, and, on these facts, the officers could entertain a reasonable, strong belief that the weapons might be found in the vehicle.   When a search of the interior disclosed no such weapons, the officers could reasonably believe that the weapons might have been secreted in the trunk.   Insofar as probable cause to search the trunk is concerned, the facts of the instant case are virtually indistinguishable on any meaningful basis from those in People v. Fraijo, supra, 78 Cal.App.3d at p. 982, 144 Cal.Rptr. 424.

The contention that the officers were required to obtain a search warrant before searching the trunk because real parties had been immobilized and the automobile was in the control of the several officers present at the scene is not meritorious.   The holding in People v. Laursen, supra, 8 Cal.3d at pp. 201–202, 104 Cal.Rptr. 425, 501 P.2d 1145 that officers were entitled to search the automobile there involved without a warrant even after the vehicle had been impounded at a police garage necessarily implies that no exigent circumstances aside from the mobility of the vehicle are required to validate a warrantless search when there is probable cause to believe the vehicle contains contraband or evidence of a committed crime.  (People v. Piper, supra, 103 Cal.App.3d at p. 108, 162 Cal.Rptr. 833;  see also People v. Vodak (1980) 105 Cal.App.3d 1014, 1017, 164 Cal.Rptr. 785 and cases there cited.)

People v. Rodriguez, supra, formerly at 102 Cal.App.3d 510, 162 Cal.Rptr. 535, which apparently influenced the trial court and which is cited by real parties must be regarded as unauthoritative and must be disregarded in view of the fact that the California Supreme Court granted a hearing in that case on June 19, 1980 (Crim. 21522).   The other decision apparently relied on by the trial court and cited by real parties, People v. Gott, supra, 100 Cal.App.3d 1, 160 Cal.Rptr. 307, is likewise unauthoritative.   In the first place, in that decision the court improvidently determined that People v. Minjares, supra, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, and People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467 cert. den. 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781, “dictat[ed] the result.”  (100 Cal.App.3d at p. 4, 160 Cal.Rptr. 307.)   The Minjares and Dalton cases involved searches of closed containers found in vehicles rather than the vehicles themselves.   The distinction was expressly noted in Minjares :  “Police officers may, if they have probable cause, under certain circumstances, search the interior of a car and, with further probable cause, its trunk.   However, the factors underlying the ‘automobile’ exception do not support a warrantless search of closed personal effects found within an automobile.”   (24 Cal.3d at p. 423, 153 Cal.Rptr. 224, 591 P.2d 514.)   Moreover, the Gott decision was subsequently repudiated by the same court that decided it.  (People v. Haynes, formerly reported at 106 Cal.App.3d 413, 423, 165 Cal.Rptr. 138, but ordered nonpublished by the Supreme Court on July 30, 1980).

Disposition

Let a preemptory writ of mandate issue to the Orange County Superior Court commanding it to vacate its suppression order and to enter a new order denying the suppression motions.

FOOTNOTES

1.   “Police officers may, if they have probable cause, under certain circumstances search the interior of a car and, with further probable cause, its trunk.”  (People v. Minjares, supra, 24 Cal.3d at p. 423, 153 Cal.Rptr. 224, 591 P.2d 514, emphasis added.)

KAUFMAN, Associate Justice:

GARDNER, P. J., and MORRIS, J., concur.