PEOPLE v. TYLER (1981)

INTRODUCTION

An alternative writ of mandate issued pursuant to Penal Code section 1538.5, subdivision (o) to review the trial court's order granting in part the defendant's motion to suppress evidence (Pen.Code, § 1538.5), in proceedings wherein defendant is charged with possession of heroin (Health & Safety Code, § 11351).

STATEMENT OF FACTS

On June 19, 1979, Los Angeles County Deputy Sheriffs Wenrich and Ketelson observed the defendant's automobile run a red traffic signal while travelling at a high rate of speed. The deputies stopped defendant for the traffic violations and approached the automobile. Deputy Wenrich noticed defendant lean forward as if defendant were placing something on the floor. Emanating from the automobile was a strong odor which Deputy Wenrich associated with heroin. Shining a flashlight into the automobile, Deputy Wenrich saw a small clear plastic bag containing tightly rolled balloons on the floor near the driver's seat. The deputy believed that the balloons contained heroin.

As defendant was leaving the automobile, Deputy Wenrich saw a suitcase in the rear floorboard area. The case was lying upside down, tilted at a 60-degree angle with the handle pointing downward toward the floorboard and the back resting against the rear seat cushion.

Although the record is ambiguous, it appears that the suitcase probably was equipped with two zipper tracks. Presumably, they were mounted on opposite sections of the enclosure and when completely unzipped twin zippers rested at the bottom of the case. As a means of securing the case, they were pulled in opposite directions to positions where their respective tracks terminated, approximately 1 to 1 1/212 inches apart under a handle affixed to the center top side. One of the zippers was equipped with a padlock and the case was constructed with a flap available to be passed through the handle and “snapped.” When Deputy Wenrich initially saw the case the zippers were unzipped and the flap was lying unsnapped.

Deputy Wenrich saw a beam scale and clear package containing a white powder lying in close proximity to the upside-down suitcase. The scale and package appeared to have spilled out of the suitcase. Deputy Ketelson also observed the suitcase, the scale and the package.

Deputy Wenrich examined the plastic bag observed in the front seat area and found a substance appearing to be heroin. He informed Deputy Ketelson that defendant was under arrest for possession of heroin. Deputy Ketelson then placed defendant in the police vehicle while Deputy Wenrich returned to examine defendant's automobile.

Deputy Wenrich noticed that the heroin-like odor was strongest near the suitcase. He picked up the suitcase, noticed it weighed about 30 pounds, and placed it on the seat. He then lifted the lid of the case and observed that the suitcase contained narcotics paraphernalia and two paper bags which in turn contained clear plastic bags filled with heroin.

The defense contended that the deputies had removed the suitcase from the trunk. The trial judge rejected the defense contentions and accepted the facts to be as related by the deputies. He concluded that the suitcase was closed and that no exigent circumstances existed. Based on those findings and relying on People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467, the judge suppressed the contents of the suitcase holding that the search of the suitcase without a warrant was illegal.

DISCUSSION

Absent exigent circumstances, a warrant is generally required to search closed containers removed from an automobile lawfully stopped in the field by police officers. (Arkansas v. Sanders (1979) 442 U.S. 753, 765, 99 S.Ct. 2586, 2594, 61 L.Ed.2d 235; Accord People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467.) Certain types of closed containers are invariably associated with the expectation of privacy. Articles of luggage, as common repositories for one's personal effects, have this inevitable association. (Arkansas v. Sanders, supra, 442 U.S. 753, 762, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235; Chadwick v. United States (1977) 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538.) The privacy association of luggage is not lost because the luggage is to be carried in an automobile. “Indeed, the very purpose of a suitcase is to serve as a repository for personal items when one wishes to transport them.” (Arkansas v. Sanders, supra, 442 U.S. 753, 764, 99 S.Ct. 2586, 2593, 61 L.Ed.2d 235.)

Sanders clearly emphasizes the prevailing importance of a special privacy interest in certain types of containers over how securely the container is closed. In fact, the court stated, “respondent's failure to lock his suitcase [[[[did not] alter its fundamental character as a repository for personal, private effects.” (Id., at p. 762, fn. 9, 99 S.Ct. at 2592 fn. 9.) Federal cases are in accord and California cases do not hold to the contrary.¹ People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514 discussed the fact that the athletic bag was zipped shut only in response to the police officer's contention that at the time of the search the bag was open and a gun butt was in plain view. Thus Minjares never reached the question of whether the athletic bag might have been closed although unzipped. Similarly, the Longines box discussed in People v. Dalton, supra, 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467, is referred to as “closed” without any mention of a form of fastening. And People v. Fick (1980) 107 Cal.App.3d 892, 166 Cal.Rptr. 106 did not validate a search of a paper sack because it was an open container, but because a sack could not be characterized as a container “‘inevitably associated’ as a repository of personal effects” (Id., at p. 896, 166 Cal.Rptr. 106; see also People v. Diaz (1980) 101 Cal.App.3d 440, 448, 161 Cal.Rptr. 645.) and thus carried no expectation of privacy.

The trial court determined that defendant's suitcase was closed within the meaning of People v. Dalton as a matter of law and that there was no exigency. In reviewing a challenged warrantless search, “it is our duty to examine the uncontradicted facts to determine independently whether the trial court's conclusion … was properly found.” (People v. Jimenez, supra, 21 Cal.3d 595, 609, 147 Cal.Rptr. 172, 580 P.2d 672; see People v. Sanchez (1969) 70 Cal.2d 562, 571-572, 75 Cal.Rptr. 642, 451 P.2d 74; People v. Superior Court (Henry) (1974) 41 Cal.App.3d 636, 639, 116 Cal.Rptr. 24.)

We conclude from our application of the appropriate standard of review that the uncontradicted facts in the record support the trial court's finding that defendant's suitcase was closed. The uncontradicted facts establish that although the suitcase was unzipped and the securing flap was apparently unsnapped, the lid of the suitcase remained closed in such a manner that the contents were hidden from view. Even when Deputy Wenrich picked up the suitcase and placed it on the back seat of the automobile, it remained closed. To view the contents, it was necessary for Deputy Wenrich to lift the lid.

Nevertheless, the People argue that even if the suitcase must be considered closed, the defendant's expectation of privacy had disappeared because a suitcase is meant to be carried by a handle; had it been picked up by the handle, the lid inevitably would have fallen open, causing the contents to spill forth. Although this result may have been probable, we cannot agree that it was inevitable. The record is not a model of clarity as to the manner is which one might negotiate open the unzipped suitcase other than lifting the lid. However, the suitcase was in evidence and subject to the direct observation and examination of the trial judge whose comments reflect his conviction that the suitcase remained closed throughout Deputy Wenrich's inspection and handling of it. Lacking the advantage thus afforded the trial judge, we are unwilling to assume that revelation of the contents would be the inevitable result of carrying the suitcase by its handle.²

At most, by leaving the suitcase unzipped and the flap unsnapped, the defendant's expectation of privacy was reduced by the risk that the contents would be revealed. This was no greater risk than that undertaken by every person who fails to zip or snap shut the securing flap of a purse; yet society is uniformly prepared to recognize the reasonableness of the privacy expectations associated with a closed purse—perhaps the most common repository for personal effects. That one risks the occurrence of a circumstance which may defeat one's privacy interest does not logically compel the conclusion that one thereby loses all reasonable expectation of privacy.

In addition, we do not consider the fact that the beam scale may indeed have fallen from the suitcase when it tilted forward toward the floor to be a sufficiently diminishing circumstance. While it is true that purest chance governed which items spilled forth, it is also true that purest chance governed whether any item would be dislodged. We are no more prepared to state that the revelation of a very small portion of the contents of the suitcase defeated defendant's privacy expectation entirely than was the court in People v. Smith (1980) 103 Cal.App.3d 840, 163 Cal.Rptr. 322 prepared to hold that an arrestee has no further privacy interest in personal property once it is subjected to a booking search. If the item is one traditionally associated with an expectation of privacy, some vestige of the interest remains and is protected against random attack. (Id., at pp. 845, 846, 163 Cal.Rptr. 322.)

A closed suitcase, even when carelessly secured, cannot be equated with an ordinary paper cup designed to hold liquid refreshment (People v. Diaz, supra, 101 Cal.App.3d 440, 161 Cal.Rptr. 645), a common paper sack which normally contains impersonal merchandise (People v. Fick, supra, 107 Cal.App.3d 892, 166 Cal.Rptr. 106), a cigarette box (People v. Scott (1979) 95 Cal.App.3d Supp. 8, 158 Cal.Rptr. 270), or a pillowcase (People v. Suennen (1980) 114 Cal.App.3d 192, 170 Cal.Rptr. 677). Given that there was clearly sufficient closure to hold the remaining contents in place after the suitcase was dislodged from its horizontal position, the defendant retained at least as great an expectation of privacy therein as existed in an arrestee's purse and wallet following a booking search (People v. Smith, supra, 103 Cal.App.3d 840, 845, 163 Cal.Rptr. 322) or in the pocket of a suspect's jacket lying on the seat of an automobile. (People v. Yuna (1980) 112 Cal.App.3d 634, 641, 169 Cal.Rptr. 424.) The foregoing cases represent a clear line of authority which establishes that it is the nature of the container, coupled with contents not open to view, which determines the reasonableness of an expectation of privacy.

The People next argue that defendant lost any expectation of privacy in the suitcase because it had ceased to be a repository for personal effects and had become a container, like a gun case or kit of burglar tools, whose outward appearance revealed its contents. (See Arkansas v. Sanders, supra, 442 U.S. 753, 764, fn. 13, 99 S.Ct. 2586, 2593 fn. 13, 61 L.Ed.2d 235; Accord People v. Robbins (1980) 103 Cal.App.3d 34, 40, 162 Cal.Rptr. 780.) In support of this argument, the People maintain that the combination of strong odor, considerable weight, unzipped condition of the suitcase, and the packet of powder and scale which appeared to have fallen out creates a totality of circumstances (an “appearance”) from which the deputies could have concluded that the suitcase was a container of contraband and nothing more.

The difficulty with this position is that the circumstances iterated by the People form the foundation for probable cause to search the suitcase, but little more. If anything, the 30-pound weight of the suitcase works against the gun case analogy. Many suitcases, containing no more than clothing and personal effects, weigh as much. However, the People argue that the strong heroin odor associated with the suitcase was an aspect of “appearance”; that is, “plain smell” is closely akin to “plain view.” Unfortunately, case law does not support that proposition. Just recently, this court held that in the absence of exigent circumstances a strong odor of marijuana emanating from an automobile trunk merely gave officers probable cause to impound the vehicle and seek a warrant. (People v. Gott (1979) 100 Cal.App.3d 1, 160 Cal.Rptr. 307.) People v. Cook (1975) 13 Cal.3d 663, 119 Cal.Rptr. 500, 532 P.2d 148 does not hold to the contrary. Rather, Cook states that a strong odor associated with specific contraband will provide probable cause which will justify a warrantless search of an automobile trunk in the face of exigent circumstances.³ (Id., at p. 669, fn. 4, 119 Cal.Rptr. 500, 532 P.2d 148.) We do not consider that the additional factor of the packet of powder and scale which apparently fell out of the suitcase is enough to create a peculiar “appearance” like that of a gun case merely because a beam scale has an association with narcotics. The packet of white powder was as easily associated with a non-narcotic substance as with a narcotic.⁴ Concededly, the instant case comes somewhat closer to the large, plastic wrapped bricks of marijuana in People v. Robbins, supra, 103 Cal.App.3d 34, 162 Cal.Rptr. 780 than to the tin foil packets observed from a distance in Remers v. Superior Court (1970) 2 Cal.3d 659, 87 Cal.Rptr. 202, 470 P.2d 11. However, the instant case is most closely analogous to Chadwick v. United States, supra, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538. In Chadwick, the authorities were certain that the footlocker contained marijuana due to the clear identification of that distinctive scent by a trained dog.⁵ In addition, the authorities had observed talcum powder, a substance commonly used to mask the odor of marijuana, spilling out of the footlocker. Surely this combination of factors, even more than a strong odor associated with heroin and coupled with the spilled packet and scale was direct evidence which supported only the one inference that the footlocker contained marijuana. Yet the Supreme Court invalidated the warrantless search. In the instant case, the odor had an association with heroin only because Deputy Wenrich had already observed balloons of heroin on the floor of the driver's portion of the vehicle. The balloons cannot be “boot-strapped” as an aspect of the appearance of the suitcase; thus, the connection of the odor with contraband is even more tenuous than it was in Chadwick. Accordingly, we cannot logically conclude that the suitcase had lost its character as a container commonly used for legitimate purposes. Rather, we find it more closely akin to the footlocker considered in Chadwick and the automobile trunk reeking of marijuana which this court considered in People v. Gott, supra, 100 Cal.App.3d 1, 160 Cal.Rptr. 307.

Having concluded that the defendant had a reasonable expectation of privacy in the contents of the suitcase, the remaining question is whether exigent circumstances existed to justify a warrantless search. “[T]he exigency of mobility must be assessed at the point immediately before the search—after the police have seized the object to be searched and have it securely within their control.” (Arkansas v. Sanders, supra, 442 U.S. 753, 763, 99 S.Ct. 2586, 2593, 61 L.Ed.2d 235.) “Once a closed container comes under an officer's exclusive authority, an immediate search is no longer necessary.” (People v. Minjares, supra, 24 Cal.3d 410, 423, 153 Cal.Rptr. 224, 591 P.2d 514.) Thus, absent the exigency of mobility, a threat to police safety or to the preservation of evidence will be required. (See Chadwick v. United States, supra, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538.)

The evidence is undisputed on this point. Deputy Wenrich walked to the back of defendant's automobile, where defendant was standing with Deputy Ketelson, and informed him that he was under arrest for possession of heroin. Deputy Ketelson then put defendant in the police vehicle while Deputy Wenrich returned to examine defendant's automobile. It was during this examination that Deputy Wenrich lifted the suitcase onto the back seat and raised the lid, thereby revealing its contents. Clearly, the defendant was under arrest, well away from any opportunity to reach into the suitcase for a weapon or to destroy evidence. The suitcase was under the exclusive authority and control of Deputy Wenrich and not too large for him to seize acting alone. Thus, it was effectively immobilized.

The dissent correctly maintains that the doctrine of inevitable discovery permits the admission of evidence which eventually would have been secured through legal means, regardless of alleged official misconduct. (People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 671, 145 Cal.Rptr. 795.) However, we discern no persuasive basis for the inevitable discovery of the evidence in question. First, although it is possible that the contents of the suitcase would have shifted and spilled forth had it been carried by the handle preparatory to transporting it, we are not convinced, as discussed above, that discovery by this means was inevitable. Second, discovery was not inevitable when the defendant was subjected to the booking process. Government Code section 26640 states: “The sheriff shall take charge of, safely keep, and keep a correct account of, all money and valuables found on each prisoner when delivered at the county jail.” (Emphasis added.) In view of the statutory duty to account for small items of value on the person of the arrestee imposed by Penal Code section 1412,⁶ and Government Code section 26640, such personal effects as a wallet or purse and their contents are traditionally within the purview of a booking inventory. The courts have recognized that these items are so closely associated with the person of an arrestee as to be an extension thereof and precisely the sort of items where money or other small items of valuable personal property, subject to being easily misplaced are to be found. (People v. Bullwinkle (1980) 105 Cal.App.3d 82, 88, 89, 164 Cal.Rptr. 163.)

However, the instant suitcase is not analogous to items on or intimately associated with the person of an arrestee. Rather, the suitcase is classed more appropriately as property subject to impoundment in view of the warrant requirement. As such, it would have much the same status as an impounded automobile and the police are not free to conduct a mere inventory search after impounding a vehicle. (See Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 711-712, 94 Cal.Rptr. 412, 484 P.2d 84.) There is no statutory high standard of care imposed on police custodians of impounded property comparable to that owed to an arrestee with respect to effects found on the arrestee's person. (Id., at p. 708, 94 Cal.Rptr. 412, 484 P.2d 84.) Moreover, a suitcase is not as readily subject to theft as a purse or wallet. The rule of Mozzetti cannot be limited to automobiles or to property seized for reasons other than its evidentiary value. If the restriction on inventory searches enunciated in Mozzetti does not extend to closed containers seized from an automobile for their possible evidentiary value, then People v. Dalton, supra, 26 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467 is essentially meaningless. Moreover, we note that property immediately associated with the person of an arrestee is not necessarily subject to a warrantless search once it is reduced to the exclusive control of the police. (See People v. Silvey (1980) 110 Cal.App.3d 67, 70, 167 Cal.Rptr. 566.) The unzipped character of the suitcase does not change the result. It was within the power of police officials to seal the suitcase with relative ease, as they would any other item of evidentiary value, and store it for safekeeping in the property room until such time as a warrant could be secured.

Accordingly, we hold that the warrantless search of the interior of the suitcase was unreasonable, and evidence obtained thereby was properly suppressed by the trial court.

The petition for peremptory writ of mandate is denied, and the alternative writ is discharged.

I dissent.

I would grant the petition and order the writ to issue compelling the superior court to vacate and annul that portion of its order of July 7, 1980, suppressing the evidence, and make a new and different order denying the motion to suppress in its entirety.¹ I cannot subscribe to the majority view that in the circumstances here a police officer cannot lift the flap of the suitcase found in the rear seat area of defendant's car and remove from that suitcase heroin and heroin processing equipment without first going to a magistrate and obtaining a search warrant. It appears to me to be an unreasonable requirement and a waste of police time and effort just to lift the flap of a suitcase that so certainly contains heroin and narcotic paraphernalia. In my view the outward appearance of the suitcase—its condition and position in the vehicle—the strong acid smell of heroin emanating therefrom, the spilled narcotic contents lying at the mouth of the tilted suitcase and its weight simply do not support any reasonable expectation of privacy. The contents could not have been more obvious had the suitcase been constructed of clear see-through plastic.

Most of the facts proffered at the hearing are undisputed and those which are not were resolved against the prevailing party.² The trial court held as a matter of law that the search was barred under People v. Dalton, 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467. Thus it is clear that this court is not bound by the legal conclusion reached by the trial court (People v. Superior Court (Henry), 41 Cal.App.3d 636, 639, 116 Cal.Rptr. 24; People v. Manning, 33 Cal.App.3d 586, 603, 109 Cal.Rptr. 531.)

As Deputy Wenrich approached the driver's side he observed defendant, the sole occupant of the car, lean forward slightly and dip his left shoulder down toward the front of the car as if placing something on the floorboard, then straighten up; the windows were down and he noticed a heavy pungent odor associated with heroin coming from the interior of the car; standing outside of the vehicle, and to determine if there were any offensive weapons in the area into which he had observed defendant lean forward, he directed his flashlight therein and observed three small tightly rolled clear plastic balloons containing a powder resembling heroin in front of and slightly under the driver's seat behind defendant's left leg. As defendant exited the vehicle, Deputy Wenrich stepped to the rear, and with a flashlight scanned the interior and saw on the rear floorboard area a suitcase lying tilted or cocked at a 60 degree angle with the handle at the opening “down towards the floorboards” the back of it resting against the seat cushion; the bag was unzipped, both zippers being completely back around the bottom of the bag; on one zipper was attached a padlock so that when the bad is zipped the two zippers can be secured; the flap which runs underneath the handle and snaps with a metal-type clasp was lying loose outside of the handle and unsnapped; he saw to the left of the tilted suitcase in a cocked position on the center hump of the floorboard a beam scale (17 inches by 6 3/434 inches) used in weighing narcotics, and three to six inches from the mouth of the lip of the suitcase a small clear plastic packet containing a white powder resembling cocaine; the beam scale and packet of white powder appeared to have spilled out of the tilted suitcase.

Deputy Wenrich first retrieved the three balloons on the front floorboard, examined them and determined they contained heroin, then entered the front seat of the vehicle and leaned over the back of the seat to more closely view the packet containing the white powder in front of the suitcase which “appeared to have spilled out of the suitcase along with the beam scale”; he detected an extremely strong odor like battery acid or vinegar which is associated with heroin, emanating from the suitcase. Based on his opinion that the beam scale and the packet had spilled out of the tilted suitcase and the packet contained cocaine and his determination that the pungent odor of heroin was much stronger in the vicinity of the suitcase, he picked it up and set it back on the seat; it appeared to weigh approximately 30 pounds; the suitcase was closed but when he “lifted up the flap” it opened and he detected an even stronger odor of heroin and observed the contents—no clothing, but heroin and numerous heavy narcotic paraphernalia; the suitcase was three-quarters full, and the contents “looked like they had been thrown in or jumbled up”; the suitcase contained a brown sack containing a large quantity (4 3/434 pounds) of heroin, and various heavy processing equipment including heat lamp, blender, heat seal device, rubber gloves, mixing containers, strainers, screens, funnels, balloons, papers, narcotic quality testers, lactose, bottles, etc., all used in weighing, cutting, straining, heating and packaging heroin.

The United States Supreme Court in Arkansas v. Sanders (1979) 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235, held that the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree as it applies to luggage in other locations so that in the absence of exigent circumstances, police are required to obtain a warrant before searching luggage which is removed from an automobile that is properly stopped and searched for contraband. (442 U.S. at pp. 764-765, 99 S.Ct. at pp. 2593-2594.) However, in discussing the expectation of privacy inevitably associated with personal luggage, a common repository for one's clothing and personal effects, the court noted certain exceptions which, in my view, here control; “Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to ‘plain view,’ thereby obviating the need for a warrant. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067, (1968) (per curiam.)” (442 U.S. at p. 764, fn. 13, 99 S.Ct. at 2593 fn. 13.)

The majority concerns itself with the fact that the suitcase was closed, and submits that defendant's failure to zip it or snap lock the flap did not alter its fundamental character as a repository for personal effects, relying on various federal and state authorities. I quite agree with this principle in its application to the normal suitcase, but in the circumstances of this case the fact that it was closed does not resolve the issue of whether there was a reasonable expectation of privacy. The suitcase was closed only insofar as the two sides of the opening were together so that the contents could not be observed, but not so closed that it did not permit the escape of the strong odor of heroin from the interior, did not disgorge part of its narcotic contents when tilted on the back seat of the vehicle or would not fall open by the shift of the heavy contents when carried by the handle exposing the interior to public view.³ I readily accept the trial court's finding that the suitcase was closed (although unzipped and the flap left loose outside of the handle) before Deputy Wenrich lifted the loose flap, and if this were the sole circumstance surrounding the suitcase, I would agree under the compulsion of Arkansas v. Sanders (1979) 442 U.S. 753, 765, 99 S.Ct. 2586, 61 L.Ed.2d 235, [closed unlocked suitcase containing marijuana]; United States v. Chadwick (1977) 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538; [[double locked footlocker containing contraband]; People v. Dalton, 24 Cal.3d 850, 860, 157 Cal.Rptr. 497, 598 P.2d 467 [closed Longine box containing firearms, and closed metal box containing amphetamines]; and People v. Minjares, 24 Cal.3d 410, 415, 153 Cal.Rptr. 224, 591 P.2d 514 [zipped tote bag containing firearms and evidence of robbery] that defendant would have had a special privacy interest therein and an expectation of privacy which deserves the full protection of the Fourth Amendment. But the suitcase here by its very nature and outward appearance—its condition, use, weight, position in the vehicle, the strong acidic smell associated with heroin emanating directly therefrom and the narcotic items lying at the mouth of the tilted suitcase which obviously spilled from it as it turned over—cannot support a reasonable expectation of privacy. While, as opined by the majority, these factors do “form the foundation for probable cause to search the suitcase,” more significantly they constitute direct evidence which supports only one reasonable inference—that the suitcase contained narcotics and narcotic paraphernalia. The exception articulated by the United States Supreme Court in Arkansas v. Sanders does not require that the officers know what the suitcase contains, only that the “contents can be inferred from [its] outward appearance” (442 U.S. at p. 763, fn. 13, 99 S.Ct. at 2593 fn.13.) It was defendant's choice to use the suitcase not for clothing or personal effects but to transport narcotics and narcotic paraphernalia, paraphernalia so heavy that it weighed close to 30 pounds and when the suitcase, left unzipped, unsnapped and unattended on the back seat fell off the seat the heavy contents shifted to the mouth of the suitcase forcing it open to disgorge part of the narcotic contents onto the floorboard. Having crammed the suitcase three-quarters full with heavy narcotic equipment and left it unzipped and unsnapped on the seat, defendant could not have reasonably expected that if it fell off the seat in the course of his operation of the vehicle, its contents would not have spilled out into public view; nor could he have reasonably expected that if someone simply picked up the suitcase by the handle and walked any distance with it, its heavy contents would not have shifted to one side forcing it open to expose the contents or tilting it to spill them to the ground. The fact is that all Deputy Wenrich had to do to expose the interior of the suitcase was to lift the flap.

This is not unlike the kit of burglar tools used by the Supreme Court in Arkansas v. Sanders as an example of a container which by its very nature cannot support any reasonable expectation of privacy because its contents can be inferred from its outward appearance. I assume that the shape or size of the bag carrying burglar tools is what the court had in mind, but a plain closed suitcase as well can contain burglar tools. It seems, therefore, that inference of the contents could be drawn, as here, from the circumstances surrounding the suitcase—its weight, and/or the presence nearby of burglary loot, other tools, weapons or clothing used in a burglary.

I make no effort to equate “plain smell” with “plain view” but the extremely strong pungent odor associated with heroin emanating directly from the tilted suitcase unquestionably is part of its “very nature” and the “outward appearance” from which the contents of the suitcase “can be inferred”. Further, it hardly can be contended that one had a reasonable expectation of privacy with regard to a suitcase containing almost five pounds of heroin and approximately twenty-five pounds of heroin processing equipment some of which bore heroin residue, which he left on the car seat unzipped with the flap loose permitting the strong pungent acidic odor of heroin to escape therefrom. To satisfy the reasonableness test of the Fourth Amendment he must have exhibited an actual (subjective) expectation of privacy; and that expectation must be one society is prepared to accept as reasonable. (People v. Kosoff, 34 Cal.App.3d 920, 932, 110 Cal.Rptr. 391, quoting from Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, (Harlan, J., concurring); see also People v. Edwards, 71 Cal.2d 1096, 1104, 80 Cal.Rptr. 633, 458 P.2d 713.) If defendant chose to carry his narcotics and narcotic paraphernalia in the back seat of his car in an unzipped suitcase with a loose flap (making the contents readily available to him either for his own use or to purvey to others) so that it emitted the strong odor of heroin, would spill its contents if it tilted off the seat and if carried by the handle in all probability would open to expose the interior, there hardly can be an intrusion of his privacy by the deputy who lifted the flap of the suitcase exposing its narcotic contents. I can perceive no difference between this case in which the contents of the suitcase could be so easily inferred, and a case in which the contents of a suitcase made of a clear substance could be identified at once by sight. In my opinion it would be a meaningless act to require the deputy to obtain a search warrant to search a suitcase that so obviously would open when carried by the handle and so clearly contained contraband and narcotic paraphernalia.

Finally, it is my view that the doctrine of inevitable discovery applies to the contents of the suitcase. This doctrine, as defined in People v. Superior Court (Tunch), 80 Cal.App.3d 665, 145 Cal.Rptr. 795, allows the admission of evidence that eventually would have been secured through legal means regardless of alleged improper official conduct. It was developed to prevent unjustly granting criminals immunity from prosecution (p. 673, 145 Cal.Rptr. 795). (See also Lockridge v. Supreme Court, 3 Cal.3d 166, 170, 89 Cal.Rptr. 731, 474 P.2d 683; cf. People v. Gordon, 84 Cal.App.3d 913, 925-926, 149 Cal.Rptr. 91.) Here, in the course of normal events and proper police activity the contents of the suitcase inevitably would have been discovered. First, defendant was under arrest for a felony and was taken to the station for booking. Deputy Wenrich could not leave an unzipped unlocked suitcase in the car unattended, and under normal circumstances would have taken the suitcase to the station for safe-keeping. However, in carrying by its handle the unzipped suit case on which the flap was loose and which contained 30 pounds of narcotic processing equipment, the heavy contents most certainly would shift to one side forcing open the mouth of the suitcase exposing perhaps even spilling the contents. Second, because defendant was arrested for a felony he was subjected to the booking process. Thus assuming the suitcase could have been carried into the station by either defendant or Deputy Wenrich in such a way as to remain closed, the fact that it was unzipped and the flap was unsnapped made the contents easily susceptible to theft invoking the statutory duties imposed upon the police to account for and safeguard a prisoner's property justifying an inventory of its contents. (§ 1412, Pen. Code; People v. Bullwinkle, 105 Cal.App.3d 82, 88, 90, 164 Cal.Rptr. 163.) Assuming that defendant had a reasonable expectation of privacy in the suitcase as it lay on the rear passenger area of the vehicle, the theory is that the privacy of the prisoner and his effects would have been invaded anyway, thus no greater intrusion on that privacy exists when the search is conducted other than during or as a part of the booking process.

FOOTNOTES

1.  Cf. United States v. Johnson (5th Cir. 1979) 588 F.2d 147 (a duffel bag enjoys the same expectation of privacy as a suitcase; even a tear in a suitcase which reveals a suspicious wrapping does not remove the warrant requirement); United States v. Meier (10th Cir. 1979) 602 F.2d 253 (a closed backpack enjoys an expectation of privacy as a repository for personal items).

2.  A party seeking review of a ruling of the trial court by means of petition for extraordinary writ bears the burden of producing documentation filed in the trial court to ‘the extent necessary to understand the proceedings and justify relief ․’ (Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 938, 152 Cal.Rptr. 870.) As noted in Sherwood v. Superior Court (1979) 24 Cal.3d 183, 187, 154 Cal.Rptr. 917, 593 P.2d 862: Whenever the consideration of an exhibit is necessary for a complete understanding of the case, it must be furnished by petitioner.

3.  The California Supreme Court expressly rejected the idea that “plain smell” is the equivalent of “plain view” in Guidi v. Superior Court (1973) 10 Cal.3d 1, 17, fn. 18, 109 Cal.Rptr. 684, 513 P.2d 908, stating: “nor do we mean to accord ‘plain smell’ a place in Fourth Amendment doctrine equivalent to that occupied by ‘plain sight.’ We recognize that the scent of contraband … may well provide, of itself, probable cause to search, and when conjoined with exigent circumstances may justify a warrantless search․” (Emphasis added.)

4.  Deputy Wenrich concluded that the packet contained cocaine even though the odor was associated with heroin. The packet of white powder in fact contained no narcotic substance.

5.  The odor associated with heroin is not a distinctive one, such as that of marijuana. Rather, when exposed to air, heroin “may have a faint to strong odor of vinegar (acetic acid).” (Edholm and Nierdorf, Heroin Use: Legal and Medical Aspects (1978) p. 18.)

6.  Penal Code section 1412 provides: “When money or other property is taken from a defendant, arrested upon a charge of a public offense, the officer taking it must at the time give duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken; one of which receipts he must deliver to the defendant and the other of which he must forthwith file with the clerk of the court to which the depositions and statement are to be sent. When such property is taken by a police-officer of any incorporated city or town, he must deliver one of the receipts to the defendant, and one, with the property, at once to the clerk or other person in charge of the police-office in such city or town.”

1.  The court denied the motion to suppress three balloons of heroin found on the front floorboard of defendant's car, and a beam scale and plastic packet containing white powder found on the floorboard of the rear seat; but granted the motion as to the contents of the suitcase found on the rear floorboard. The only items involved in this writ proceeding are the suitcase contents consisting of approximately 25 pounds of heavy narcotic paraphernalia such as blender, heat lamp, mixing containers, etc. and 4 3/434 pounds of heroin.

2.  The trial court gave credence to the testimony of the deputies and rejected the testimony of defense witnesses Maiden and Johnson on the only fact in dispute—the location of the suitcase when it was found by the deputies. The deputies testified the suitcase was in the back seat area of the car on the floorboard; Maiden and Johnson testified it was in the trunk of the car. Declaring that he was “not persuaded” by Maiden and Johnson, the judge found against defendant, that the suitcase was on the back seat floorboard. This is not in issue here.

3.  Deputy Wenrich did lift the suitcase and the flap did remain closed as observed by the majority. But, he did no more than move it from its tilted position upright on the seat, and then while leaning over the front seat. The record does not support any suggestion that he carried it by the handle.

SPENCER, Presiding Justice.

AUERBACH, J.,* concurs.LILLIE, Associate Justice, dissenting.Hearing denied; MOSK and RICHARDSON, JJ., dissenting.