PEOPLE v. CHAVERS (1980)

Defendant appeals from his conviction of robbery (Pen.Code, s 211) and use of a dangerous weapon (Pen.Code, ss 1203.06(a)(1), 12022.5) which resulted after he entered a plea of nolo contendere to those charges.

On February 28, 1979, at approximately 3:00 a. m., Officer Paschke and his partner, Officer Jones were summoned by radio to the scene of an armed robbery. The location was a mini-market adjacent to a gas station. The clerk at the market described the robbers as black men, about 6 feet and 6 feet one inch in height, one wearing a blue knit watch cap, long sleeved Levi shirt and blue jeans, the other wearing blue pants, a brown tank top, and Levi jacket. After brandishing a revolver with a two inch barrel, the robbers took a small bag of Lay's potato chips, a six-pack of 16 ounce Schlitz beer, a few dollars and some change. A tanker-truck driver who had been filling the gas station's tanks told the officers that he had seen a large, standard sized, two-door sedan parked in the alley behind the service station. The color of the car, the witness believed, could have been white, but he was not certain, as the outdoor lighting (yellow sodium type) made it difficult to ascertain the color. The description of the robbers and the car was broadcast to other police units.

Shortly thereafter Paschke and Jones were summoned to investigate two male Negroes whose car had been stopped by other officers. Although a package of Lay's potato chips and some Schlitz beer cans were found in this car, these men were eliminated from suspicion, as they had beards and mustaches, and the robbers had neither. Just prior to releasing these men, a late model, light-brown Cadillac came around a nearby corner at a high rate of speed. Because this car roughly matched the description obtained at the market, and because it was occupied by two male Negroes, the police pursued it. It was pulled over in a driveway on a nearby street.

The occupants were asked to leave their car, and, because the car was sandwiched between a block wall and an apartment building, they were forced to exit through the car window. An officer entered the car, and backed it down the driveway for freer access. A small bag of Lay's potato chips was found on the dashboard, and several opened and unopened 16 ounce cans of Schlitz beer. Officer Jones then found a long sleeve Levi shirt and blue watch cap under the front seat.

Meanwhile, Officer Paschke opened the glove compartment to search for registration and possibly a weapon. Some force was necessary, as the door mechanism was allegedly jammed, although not locked. He found a small black vinyl or mylar bag inside. When he picked it up he found it to be very heavy for a shaving kit, and through the pliable material, he could feel the distinct outline of a gun. The defendant was then placed under arrest.

Defendant made a motion pursuant to Penal Code section 1538.5 to suppress the gun. This was denied by the court below. On appeal, defendant contends that police should have obtained a warrant before opening the vinyl bag, and that the search of the glove compartment was illegal.

DISCUSSION

Warrantless searches are considered to be unreasonable per se and are therefore barred by the Fourth Amendment unless the search in question falls into one of the carefully delineated exceptions to that rule. (Mincey v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290; Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576; People v. Dalton (1979) 24 Cal.3d 850, 855, 157 Cal.Rptr. 497, 598 P.2d 467.) The prosecution bears the burden of showing that the warrantless search in question was justified. (McDonald v. United States (1948) 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153; Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23.)

Defendant contends that under United States v. Chadwick (1979) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538; People v. Dalton, supra, and People v. Minjares, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, his motion to suppress should have been granted. These cases stand for the proposition that warrantless searches of personal effects such as luggage cannot be justified as searches incident to an arrest when the luggage has come under the exclusive control of the police. Moreover, these cases concluded that a search of such luggage or effects is not justified even though they were taken from a car. (United States v. Chadwick, supra, 433 U.S. at 15, 97 S.Ct. at 2485; People v. Dalton, supra, 24 Cal.3d at 858, 157 Cal.Rptr. 497, 598 P.2d 467; see also, Arkansas v. Sanders, 442 U.S. 753 at 756, 99 S.Ct. 2586 at 2589, 61 L.Ed. 235 at 240; People v. Minjares, 24 Cal.3d 410, 423, 153 Cal.Rptr. 224, 591 P.2d 514.)

The search of the bag can be upheld only if the People can show probable cause for the search, and some exigent circumstances that would justify an immediate search thereof. The fact that the search took place in the field does not eliminate the need for a warrant. (People v. Dalton, supra, 24 Cal.3d at 857, 157 Cal.Rptr. 497, 598 P.2d 467.)

In this case the appellant was handcuffed and standing some 20 feet from the car while it was searched by Jones and Paschke. Furthermore, he was being guarded by two uniformed officers not involved with the search. Thus, the bag, when removed from the glove compartment, was under the exclusive dominion of the police. The officers should have seized the item, and held it until a search warrant could be obtained.

Nor did any exigent circumstances exist which would justify the search. Although the car was slated for impound, the bag and other evidence could have been taken to the police station. Despite the hour it was 3:00 a. m. a warrant would have been available within hours.

The People argue that it would have been unreasonable to require a search warrant under these circumstances, as the officer was certain that a gun was inside the bag. No authority is cited in support of this contention. Moreover, the officers' knowledge of the contents of a locked receptacle may strengthen probable cause but it has not been adjudicated that such knowledge entitles the officer to access to its contents without a warrant (barring exigent circumstances) and assuming transfer of control from defendant. In Chadwick, supra, telltale leakage of talcum powder used to mask the odor of marijuana, the signaling of the presence of the substance by a trained police dog and the matching of a drug trafficker's profile by one of the suspects all made for certainty that a footlocker contained marijuana. Nevertheless, a warrant was required.

To avoid application for a warrant, we would have to conclude that no search took place, arguing that the item was detected by the officer's senses. Such reasoning is akin to that which supports the “plain view” theory. (See, Coolidge v. New Hampshire (1971) 403 U.S. 443, 465-470, 91 S.Ct. 2022, 2037-2040, 29 L.Ed.2d 564; Guidi v. Superior Court (1973) 10 Cal.3d 1, 15, 109 Cal.Rptr. 684, 513 P.2d 908; see generally, W. LaFave, Search and Seizure, s 2.2 (1978).) We cannot so conclude, as no authority supports the extension of that reasoning. (See, People v. Lilienthal (1978) 22 Cal.3d 891, 898-899, 150 Cal.Rptr. 910, 587 P.2d 706, where a folded paper could be opened because the officer had previously observed cocaine or heroin to be transported in similar paper bindles.)

Defendant pleaded nolo contendere to the charges against him after his motion was denied. A plea of nolo contendere has the same effect as a guilty plea in this particular proceeding. (Witkin, California Criminal Procedure, s 250, at p. 231.) Appellant should be allowed to withdraw his plea, if he so desires, and if the prosecution may reinstate all original charges. (See, People v. Hill (1974) 12 Cal.3d 731, 767-770, 117 Cal.Rptr. 393, 528 P.2d 1.)

The judgment is reversed with directions that the trial court shall grant a motion by defendant to vacate his nolo contendere plea if such motion is made within 30 days after this decision becomes final. If defendant so moves, the case will proceed to trial. If defendant fails to move to vacate within the allotted time, or waives his right to so move, the trial court is directed to reinstate the original judgment. (See, People v. Rios (1976) 16 Cal.3d 351, 359, 128 Cal.Rptr. 5, 546 P.2d 293.)

I dissent. I would affirm the judgment for I am unable to join the majority in a ruling that a police officer, who has stopped suspected armed robbers in a vehicle at 3 a. m. in the area and within half an hour of the robbery and in the vehicle has found among other evidence of the crime a small soft pliable vinyl bag which he knows without question contains a loaded handgun, cannot open the bag to remove the loaded gun without first going to a magistrate and obtaining a search warrant. This seems to me to be an unreasonable requirement under the circumstances here and a waste of police time and effort to open a bag that so certainly contains a loaded gun. The weapon could not have been any more obvious had it been encased in clear plastic.

When Officers Paschke and Jones pursued and stopped defendant and codefendant Bailey they were aware that an armed robbery had been committed at 3 a. m. in a mini-market by two male Negroes, one wearing a blue knit watch cap, Levi-type shirt or jacket and blue jeans, the other, blue pants, brown tank top and blue Levi jacket; they held a two-inch blue steel revolver with which they threatened to shoot the victim and took a small bag of Lay's Potato Chips, six-pack of 16 ounce Schlitz beer, one can of beer and money and change; parked behind the market in the alley was a large standard size two-door sedan in the early 70's, possibly white in color (the color was questionable because of yellow sodium lights); and within a half hour and in the area (less than a mile from the robbery scene) a late model light brown Cadillac with broken taillight driven by Bailey and in which defendant was seated at a high rate of speed had “squealed” around the corner, defendant and Bailey were male Negroes and the Cadillac matched the description of the car seen in the alley behind the market at 3 a. m.

Although there appears to have been an equipment failure and a vehicle code violation, it is clear from the record that the vehicle was pursued and stopped as the “suspect vehicle.” The standard for detention is of lesser degree than that applicable to an arrest (People v. Harris, 15 Cal.3d 384, 389, 124 Cal.Rptr. 536, 540 P.2d 632), and the foregoing facts known to the officers at the time they stopped defendant met the requisite but lesser detention standards of “good faith suspicion” and “rational belief of criminal activity” articulated in People v. Harris, 15 Cal.3d 384 at pages 388-389, 124 Cal.Rptr. 536, 540 P.2d 632. Indeed they properly discharged their duties as officers in stopping the Cadillac. (People v. Flores, 12 Cal.3d 85, 91-92, 115 Cal.Rptr. 225, 524 P.2d 353.)

The vehicle came to rest in the private driveway of a house wedged between a wall and the house. The officers believed the occupants to be the armed robbery suspects, and ordered them out of the vehicle, searched and handcuffed them. Under the circumstances the request to exit the Cadillac was proper (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110-111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331; People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Beal, 44 Cal.App.3d 216, 220, 118 Cal.Rptr. 272; People v. Knight, 20 Cal.App.3d 45, 49-50, 97 Cal.Rptr. 413), as was the search for weapons (People v. Waters, 30 Cal.App.3d 354, 360, 106 Cal.Rptr. 293) and the use of handcuffs. (People v. Harris, 15 Cal.3d 384, 391, 124 Cal.Rptr. 536, 540 P.2d 632; People v. Radford, 98 Cal.App.3d 765, 774, 159 Cal.Rptr. 702.)

Bailey had neither identification nor driver's license on his person. To remove the Cadillac from the driveway Officer Jones entered the vehicle; at that time he observed in plain sight on the dashboard a small package of Lay's Potato Chips and in the vehicle opened and unopened 16 ounce Schlitz beer cans. The plain view observation of these objects entitled him to seize them (Lorenzana v. Superior Court, 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33; North v. Superior Court, 8 Cal.3d 301, 306, 104 Cal.Rptr. 833, 502 P.2d 1305), but it was of greater significance as a factor of probable cause justifying the search of the Cadillac. After Officer Paschke learned that Bailey had no identification on his person, he entered the vehicle and searched the passenger compartment; under the front seat was a blue knit watch cap and long-sleeved blue Levi shirt. He believed the defendants to be the armed robbers, and not knowing whether the Cadillac was stolen, he opened the glove compartment “for identification” of Bailey, “to locate some registration on the vehicle” and “to locate a possible weapon” because he knew the robbers had a gun and had threatened to shoot the victim.

It is my view on the authority of Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Wimberly v. Superior Court, 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417; People v. Dumas, 9 Cal.3d 871, 884-885, 109 Cal.Rptr. 304, 512 P.2d 1208; People v. Laursen, 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145 and People v. Fraijo, 78 Cal.App.3d 977, 981, 144 Cal.Rptr. 424, that the search of the Cadillac was a reasonable one. These cases establish the rule that when there is probable cause to believe that an automobile stopped on the 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. There were sufficient facts within Officer Paschke's knowledge to warrant a reasonable man to believe that evidence of criminal activity was present in the vehicle; and the search was proper. So too, there were specific articulable facts which provided reasonable cause to believe that a loaded revolver was concealed in the glove compartment. (Wimberly v. Superior Court, 16 Cal.3d 557, 568, 128 Cal.Rptr. 641, 547 P.2d 417.)

In the glove compartment Officer Paschke observed a small soft pliable black mylar plastic shaving bag; he lifted it out; it was very heavy and he felt through the material a hard object that resembled a handgun; there was nothing else in the bag and nothing to mask the shape of the gun; the shape “resembled the outline of a gun grips the grips, the barrel, and etc.,” he could clearly make out the outline of a weapon; there was no question in his mind that the object inside the bag was a handgun; and he believed the gun to be loaded. He opened the bag and found therein a loaded blue steel revolver, then arrested defendant and Bailey.¹ There was probable cause to arrest defendant. (People v. DeVaughn, 18 Cal.3d 889, 895, 135 Cal.Rptr. 786, 558 P.2d 872.)

Relying on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538; People v. Dalton, 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467 and People v. Minjares, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, the majority holds that when Officer Paschke found the vinyl bag, he could not open it without a search warrant. There are two reasons for my departure from the majority view (1) the “exigent circumstance” factor (People v. Minjares, 24 Cal.3d 410, 423, 153 Cal.Rptr. 224, 591 P.2d 514) which exists here by virtue of the presence in the bag of a gun that was loaded, and for obvious reasons should have been removed therefrom and unloaded. To my mind this was a circumstance that dictated an immediate search of the bag; (2) the unreasonableness of requiring an officer to go to a magistrate at that hour of the morning under the circumstances here to obtain a search warrant to remove from a bag an object that was so obviously a handgun. I can perceive no difference between this case in which by weight and defined outline traced by finger tips the object unquestionably was identified as a gun, and a case in which such a gun was encased in clear plastic and by sight could be identified at once. It would be a meaningless act to require the officer to obtain a search warrant to search a bag that so clearly contained a gun. If the suspects chose to carry the gun in that fashion there was no intrusion upon their privacy by opening the bag.

FOOTNOTES

FOOTNOTE.  

1.  No identification was found on either person; no one identified himself as the owner of the vehicle; no registration therefor was found and the car was impounded.

MARSHALL,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

JEFFERSON, P. J., concurs.