PEOPLE v. HAYNES (1980)

Defendant has appealed from his conviction for violation of Penal Code section 211, robbery.   Defendant pleaded guilty to that offense following denial of his motion to suppress evidence.   He was sentenced to five years in state prison for the offense, plus one year enhancement for a prior felony conviction.   On this appeal, defendant challenges the propriety of the court's ruling on his motion to suppress evidence, asserting that the officers had no probable cause to search the trunk of his car.

I

Officer Dan Olivier testified that, on January 16, 1979, he was a police officer with the City of Santa Monica.   At approximately noon that date, he received a radio broadcast that an armed robbery had just occurred at the Von's Supermarket at Euclid and Wilshire Streets in Santa Monica, and that the weapon used was possibly a submachine gun.   The broadcast included a description of the suspect as a male black in his twenties, approximately six feet tall, with a medium afro hairdo and wearing a beige rain jacket or raincoat.   The broadcast stated that the suspect had taken a large amount of money in an attache case or canvas bag and was heading northbound from Wilshire Boulevard on foot.   The officer began to drive eastbound on California Street;  California Street is one block north of, and runs parallel to, Wilshire Boulevard.   As he did so, he saw a vehicle approaching him, driven by a man matching the description of the suspect.   The car was a black over bright blue Triumph TR7 with a white stripe on the side and white wheels.   There was a string of large white beads hanging from the inside rearview mirror.   This observation was made moments after the radio call was received.   The officer made a U-turn to attempt to follow the TR7, but it had turned the corner and was out of sight.   The officer broadcast his observations while attempting to find the Triumph.   Shortly thereafter, during his search, he received a radio broadcast that another officer had detained someone matching the suspect's description, a few blocks away on Eleventh Street just north of California.   The officer proceeded to that location.

On arrival, Officer Olivier saw several police officers interviewing the defendant.   He recognized defendant as the man he had seen driving the TR7.   The defendant was wearing a beige V-neck sweater, and no raincoat.   The officers had detained defendant at the request of a woman in the apartment building who told them that defendant did not live there and had been trying to open a number of doors in the apartment building.

Officer Olivier went down into the subterranean garage of the apartment building, at the request of the other officers, and saw the blue Triumph TR7 which defendant had been driving.   He positively identified the car to the other officers, recognizing all of its features including the necklace hanging from the rearview mirror.   He also told them that the subject detained upstairs was the driver of that car.

Officer Verbeck testified that he is also a police officer for the City of Santa Monica.   All of the foregoing information had been communicated to him in the garage of the apartment building where defendant was detained.   When he first saw the TR7 automobile, he felt the hood, which was still warm.   He ran a license check on the license plate on the rear of the TR7;  information was returned that that license belonged to someone living in that apartment building, but was registered to a Fiat automobile.   The officer found a Fiat with no rear license plate parked in the same garage.   A plate with the same number was affixed to the front of the Fiat.   The officer testified that he and other officers present looked through the windows to the interior of the vehicle.   No property was visible.   Detective Kaiser then went to the rear of the vehicle and leaned down to see how the rear license was fastened on.   As he did so, the trunk came open.   Visible in the trunk were the overcoat defendant was wearing at the time of the offense, and the stolen money.   The machine gun was subsequently found hidden in another location in the garage.

At the conclusion of evidence and argument on the motion to suppress, the court viewed the car and its trunk mechanism in order to determine whether it could have opened spontaneously while the officer was inspecting the license plate.   Thereafter, the court ruled:  “I am prepared to find that the officer could not have opened that trunk inadvertently;  that because of the weight and the manner in which the trunk mechanism functioned, the opening of it could not have been accidental.   It would have required an intentional opening.  [¶]  I find that that is what took place there;  but nevertheless, I deny the defendant's motion to suppress the evidence.”

II

Appellant contends that the warrantless search of the trunk of his automobile was unconstitutional, citing Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and Wimberly v. Superior Court (1976) 16 Cal.3d 557, 128 Cal.Rptr. 641, 547 P.2d 417.   Those cases do not support appellant's position, but rather mandate the conclusion that the trial court properly denied appellant's motion to suppress evidence.

 The Fourth Amendment of the Constitution assures an individual the right to be secure in his property.   However, the constitutional protection is not that one remain inviolate from search but only that the search be reasonable.   A person's home may not be entered and personal papers rifled to obtain evidence to be used in a trial against him.   The sovereignty of the home and the necessity of a warrant for search therein has continued to be sacrosanct in the decisions of our courts.  (See People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333;  Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639.)

 It has, however, long been established by the United States Supreme Court and defined and limited by the California Supreme Court that the same expectation of privacy does not obtain with regard to an automobile, which may be searched without a warrant where police officers have probable cause to believe that it contains evidence of a crime or contraband.  (Carroll v. United States, supra, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543.)  “These places may be searched upon probable cause alone under circumstances of less demanding urgency.”  (People v. Dumas (1973) 9 Cal.3d 871, 882, 109 Cal.Rptr. 304, 312, 512 P.2d 1208, 1216.)   However, “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.”  (Wimberly v. Superior Court, supra, 16 Cal.3d at p. 568, 128 Cal.Rptr. at p. 648, 547 P.2d at p. 424.)   The Wimberly court explained:  “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.”  (Wimberly v. Superior Court, supra, 16 Cal.3d at p. 568, 128 Cal.Rptr. at p. 648, 547 P.2d at p. 424.)   Appellant's reliance on this language is misplaced.   We find that there was probable cause to search the trunk.

 The evidence established that, a few moments after the crime was committed, defendant was seen driving the car.   The hood of that car was still warm, indicating that it had been recently driven and it was identical to the car defendant had been seen operating, even to such details as the string of beads hanging from the rearview mirror.   Further, the car's license plates had been switched with those of another car parked in the garage.   Probable cause for a search exists where an officer knows of facts which would lead a man of ordinary prudence to believe and conscientiously entertain a strong suspicion that the object of the search is in the particular place to be searched.   (People v. Hill (1974) 12 Cal.3d 731, 747, 117 Cal.Rptr. 393, 528 P.2d 1.)   The information known to the officers who conducted the search would lead them reasonably to believe that the weapon and contraband were within the vehicle.   A logical conclusion would be that defendant, who was running from the police, who had just parked the car moments before, and who had no machine gun or money in his possession, had left them in that car.   It was also reasonable to expect that the raincoat worn during the commission of the crime would be found in the car.

Appellant argues that, while those facts might support a search of the car, they do not justify an intrusion into the trunk, but in this case they do.   The fact that none of that contraband was found within the interior of the vehicle contributes to probable cause in this case.   In many cases, justification to search a trunk is based on the nature and extent of evidence which was found within the vehicle.  (See, e. g., People v. Gregg (1974) 43 Cal.App.3d 137, 141, 117 Cal.Rptr. 496;  People v. Medina (1972) 26 Cal.App.3d 809, 817, 103 Cal.Rptr. 337.)   However, justification may also be based upon what is not found in the interior of the car.  (See People v. Fraijo (1977) 78 Cal.App.3d 977, 144 Cal.Rptr. 424.)   In the instant case, the officer believed that defendant had recently had contraband in his possession.   Under the circumstances, it was reasonable to assume that it had been secreted in the trunk of the car, and probable cause to search there existed.   The Supreme Court stated in Wimberly :  “We do not conclude, however, that trunk searches are never justified  ․ ․ ․ .  Rather, we recognize that additional circumstances may generate the reasonable suspicion necessary to justify the further intrusion.”  (Wimberly v. Superior Court, supra, 16 Cal.3d at p. 573, 128 Cal.Rptr. at p. 652, 547 P.2d at p. 428.)

III

 Appellant cites People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467, for the proposition that a warrant was required before the vehicle trunk could be opened.   Appellant points out that cross-examination of the officers in the case before us revealed that the Santa Monica courthouse was a short distance from the scene of defendant's arrest;  that it was early afternoon on a weekday and that magistrates were undoubtedly available;  and that under those circumstances, Dalton requires that a warrant be obtained.   We disagree.   In Dalton, the Supreme Court found invalid the search of closed containers located in an automobile trunk.   Relying on United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, and Arkansas v. Sanders (1979) 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235, the court said a warrantless search of closed containers found within an automobile involves considerations separate from those involved in a warrantless search of the interior of the automobile, and “it must be justified by some recognized exceptions to the warrant requirement.”  (People v. Dalton, supra, 24 Cal.3d at p. 856, 157 Cal.Rptr. at p. 500, 598 P.2d at p. 470.)   Further, the court emphasized that individuals have a greater privacy interest in the contents of closed luggage than in the interior of an automobile.   It went on to note that luggage is easier to secure while seeking to obtain a warrant than is an automobile.   Therefore, the court concluded that for closed containers, found within an automobile or elsewhere, the requirements of exigency and probable cause to open the container must be established to justify a warrantless search of the containers.   The court did not find a lack of emergent necessity for a warrantless search of the trunk of the car.   As pointed out, the court had prefaced this discussion by emphasizing the greater privacy interest in luggage which distinguished it from the interior of the automobile.   The Dalton court specifically said at page 857, 157 Cal.Rptr. at page 501, 598 P.2d at page 471:  “Further, the fact that the boxes were found in the trunk of an automobile after the officers legitimately opened the car's trunk cannot validate their later being searched.”  (Emphasis added.)   It is significant to our discussion of People v. Gott, infra, 100 Cal.App.3d 1, 160 Cal.Rptr. 307, that four officers were present at the trunk search in the Dalton case.   There is no validity to the appellant's argument that the same degree of exigency must exist to justify the search of the trunk of the automobile as is needed to search a container found therein.

In early cases, the mobility of the automobile was discussed as one of the factors justifying its classification as a place entitled to a lesser degree of constitutional protection than a home.   The “mobility potential” of the automobile was said to fill the exigency requirement.   The crux of the constitutional test for the warrantless search of an automobile is the degree of expectation of privacy and the reasonableness of the search based on the probable cause.

“As observed in Chambers, the factor of mobility is present even though the car has been immobilized by the police since the Fourth Amendment does not deny the use of the car to anyone until a warrant is secured.  ․ ․ ․   Given probable cause to search an automobile the police may seize and hold the car until a warrant is obtained or they may search it without a warrant.”   (People v. Medina, supra, 26 Cal.App.3d at p. 818, 103 Cal.Rptr. at p. 343.)

 It is in this context that we have reexamined the holding in People v. Gott, supra, 100 Cal.App.3d 1, 160 Cal.Rptr. 307 and concluded that it cannot be reconciled with the Supreme Court's holding in People v. Dalton or the weight of Court of Appeal opinions which have decided this issue in the past.   We do not believe that the number of officers present at the scene of the crime is determinative of the issue of emergent necessity nor the consideration of privacy in the search of an automobile trunk.   These requirements are determined by the nature of the thing to be searched.   As discussed, a different standard exists for the warrantless search of the trunk of a car than for luggage or some other container therein.   We adopt the language of People v. Laursen (1972) 8 Cal.3d 192, 201–202, 104 Cal.Rptr. 425, 431, 501 P.2d 1145, 1151:  “․ ․ ․  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.  ․ ․ ․  [T]he mere immobilization of an automobile is as substantial an intrusion on the constitutional rights of the owner or possessor as is an immediate search,  ․ ․ ․”  The Laursen court went on to consider whether the fact that the vehicle is impounded in a police garage before the warrantless search was of greater constitutional significance and concluded that it was not.  (See also Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, and People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, where the vehicle was removed from the place of apprehension to a police station before being searched.)

 The constitutional rights of the defendant herein were not violated.   The trial court properly concluded that the officers had probable cause to search the trunk of the defendant's car.   The motion to suppress evidence was properly denied.

IV

The Enhancement of Appellant's Sentence

By supplemental brief, filed by appellant on his own behalf, he asserts that the court erred in adding a one-year enhancement to his five-year prison sentence on the basis of a prior felony conviction.   The record reflects that an amended information was filed against appellant in the instant case, alleging that, on June 9, 1976, he was convicted of a felony, to wit, robbery, for which he served a prison sentence.   He was released on parole from that prison sentence on August 8, 1978.   The current offense was committed on January 16, 1979, while appellant was still on parole.   Appellant was declared in violation of parole because of the January 16, 1979, offense and was recommitted.

Penal Code section 667.5 provides for the enhancement of sentences for prior felony convictions for which prison terms were served.   The enhancement provided for the crime of robbery is one year.

Subdivision (g) of Penal Code section 667.5 reads as follows:  “A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after escape from such incarceration.”

Appellant relies on People v. Cole (1979) 94 Cal.App.3d 854, 155 Cal.Rptr. 892, for the proposition that because his parole was revoked and he was recommitted to prison, he is still serving the sentence imposed for the 1976 robbery and thus has not completed service of his prior sentence as defined in subdivision (g).

 While the precise language of subdivision (g) would appear to support appellant's contention, to so interpret the section would lead to an absurd result.   The criteria determining the one-year enhancement should not be whether or not the parole has been successfully completed before the commission of a second felony.   We do not so interpret the statute.   Rather, we concur with the conclusion of the Court of Appeal in People v. Espinoza (1979) 99 Cal.App.3d 59, 68–76, 159 Cal.Rptr. 894.   That court concluded that the Legislature intended the following when it enacted subdivision (g):  (1) that a term of imprisonment is completed at the expiration of the term in prison and does not include time spent on parole;  and (2) that any term of reimprisonment for violation of that parole should be included in the original term of imprisonment, thus preventing a court from counting the initial term of imprisonment and the reimprisonment on parole violation as two separate felony offenses, thereby allowing two separate enhancements.

Our conclusion that Cole was not well reasoned is supported by its express disapproval in People v. Espinoza, supra, 99 Cal.App.3d at page 69, 159 Cal.Rptr. 894;  and its implied disapproval in People v. Welge (1980) 101 Cal.App.3d 616, 620–623, 161 Cal.Rptr. 686.   Of greatest significance is that the authors of the Cole opinion recently stated in People v. Butler (1980) 104 Cal.App.3d 868, 883, 162 Cal.Rptr. 913:  “Mindful that Cole was decided by this court, upon reconsideration we find that we must reverse our position and expressly disavow the holding in Cole.   Although we are still of the view that the literal wording of section 667.5 of the Penal Code is susceptible of the construction given it in Cole, such an interpretation of the statute leads to results which are both illogical and inequitable.   It is an established rule of statutory construction that where a statute is susceptible of two considerations, the courts should adopt the construction which will render the statute reasonable, fair and harmonious with its manifest purpose.  [Citations.]”

 Appellant's term of imprisonment for his prior felony offense was completed on August 8, 1978, when he was released on parole.   His reimprisonment for parole violation was included as part of that initial imprisonment and was not deemed a separate second felony offense.   Therefore, appellant's sentence was properly enhanced for a period of one year.

The judgment is affirmed.

I dissent.

(1) I find myself unable to agree with the majority that the police had reasonable grounds to search the car trunk.   The description of the robber was that he was wearing a beige jacket or raincoat, carrying a canvas bag, and proceeding northbound on foot.   The officer saw a man, driving a car, not wearing a beige jacket or raincoat.   The testimony was that “the driver appeared to me to be possibly matching the description of the suspect.”   Asked to elucidate further, the officer testified that the driver “was a black male in his 20's and had a medium Afro.”   While defendant's conduct at the apartment house and the condition of his car, gave rise to a reasonable suspicion that he was up to no good, I can see nothing known to the police to entitle them to believe that defendant was the robber for whom they were looking.   The fact that, as the trial court found, the officer lied about an “accidental” opening of the trunk supports my belief that even he did not think he had reasonable grounds to search the trunk.

(2) This division, of this district, decided Gott, which held, on facts similar to those here before us, that a warrantless search of a car trunk was not justified where the car was under the control of a large number of policemen.   Now, to reject Gott, long since final, does no less than to impose on the trial courts and trial bar the impossible task of crystal-reading to determine what this division will do next.   If the Supreme Court finds that Gott is bad law, it is for them, and not for us, to overrule it.

WOODS, Associate Justice.

HOGOBOOM, J.,* concurs.