PEOPLE v. HALVORSEN (1981)

The present appeal is from a judgment of conviction of possession of cocaine for sale following denial of a motion to suppress. (Pen.Code, 1538.5.)

The underlying incident occurred at about 1 a. m. on September 24, 1979, when Deputy Sheriff Smith, while on patrol with his partner, Monroe, observed a 1973 Dodge van illegally parked (after hours) in the Twin Lakes State Beach parking lot.

When he approached the vehicle Smith saw through the front windshield appellant and Ms. Hunt seated on a bed inside, and, when he tapped on the windshield, Smith observed Ms. Hunt place a white cloth on “something … between her and [appellant]” on the bed.

When Ms. Hunt, in response to Smith's knock, opened the van door, she appeared anxious to shield the officer's view of the interior of the van.

As he attempted to see past Ms. Hunt to view appellant, Smith observed a semi-automatic pistol in plain view near appellant, and saw the latter shift his gaze repeatedly to the pistol, whereupon Smith asked both occupants to place their hands upon their heads and step outside the van, which they did.

As he left, Smith noticed, only partially covered, the white cloth on a mirror, a white powder, considerable cocaine paraphernalia and a glass pipe in which marijuana had recently been smoked.

Suspecting that the powder was cocaine, Smith lifted the white cloth to expose the rest of the mirror. On the mirror was a checkbook box, sitting on its own lid, in which were plastic bottles containing fluid, pill bottles, and an eyedropper with a white powdery residue, as well as an envelope, unsealed, containing $3000.

Appellant and Ms. Hunt were arrested. Backup units arrived and, re-entering the van, Smith now observed in plain view on the bed an unlocked bank bag, its zipper drawn open. In it were codeine, hashish, cocaine and phenobarbital—all of which, together with the pistol, which proved to be loaded, were seized.

I

On appeal, no contention is made that the plain-view sighting of the weapon was improper. Appellant argues, however, that the entry into the van to examine the weapon, was unjustified and that all seizure of evidence was the fruit of that illegal entry.

Appellant cites in support of his position People v. Kern (1979) 93 Cal.App.3d 779, 155 Cal.Rptr. 877, holding that Penal Code section 12031¹ requires that the officer request an examination prior to searching a vehicle trunk for a weapon believed to be inside. The court in Kern further found that the trunk search was not independently justified by a showing of either probable cause to believe the weapon was loaded, or exigent circumstances. Kern is inapposite, for there the search was of a closed and locked automobile trunk. Here the weapon was in the officer's plain sight. “[O] bjects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.” (People v. Mack (1980) 27 Cal.3d 145, 150, 165 Cal.Rptr. 113, 611 P.2d 454.)

Moreover, we think the entry was supportable on the separate grounds that, in carrying out a criminal investigation the police may take reasonable steps to protect themselves from violence. (People v. Rico (1979) 97 Cal.App.3d 124, 131, 158 Cal.Rptr. 573; People v. Turner (1969) 2 Cal.App.3d 632, 635, 82 Cal.Rptr. 763.) The court in In re Richard C. (1979) 89 Cal.App.3d 477, 152 Cal.Rptr. 787 noted: “As emphasized in cases, in carrying out an investigation of crime, the police may take reasonable steps to protect themselves from violence and may submit the person under investigation to a weapons search (Adams v. Williams (1972) 407 U.S. 143, 145-148 [92 S.Ct. 1921, 1922-1924, 32 L.Ed.2d 612] …; People v. Green (1971) 15 Cal.App.3d 766, 772 [93 Cal.Rptr. 433] …; People v. Turner (1969) 2 Cal.App.3d 632, 635 [82 Cal.Rptr. 763] …, because “‘The right to investigate gives rise to the right to conduct a reasonable search for weapons in order to protect the safety of the officers”’ (People v. Lumar (1968) 267 Cal.App.2d 900, 904 [73 Cal.Rptr. 682] …), and because ‘a failure to make such a search, in many cases, might mean death to policemen’ (People v. Dumas (1967) 251 Cal.App.2d 613, 617 [59 Cal.Rptr. 541] …; see also People v. Turner, supra, at p. 636 [82 Cal.Rptr. 763]).” (Id., at pp. 488-489, 152 Cal.Rptr. 787.)

Deputy Smith was faced with a situation in which he observed a weapon in a vehicle following a late-night encounter with occupants of an illegally parked van. The pistol was seen lying next to appellant, within an area of easy access. Moreover, the officer observed surreptitious behavior; he saw, for example, appellant look to the gun, and then move toward it when asked to place his hands on his head. And no back-up unit was present to afford the officer protection, though deputy Smith's trainee-partner was waiting outside the van.

Under these circumstances, deputy Smith was justified in concluding that his safety, and that of his partner, required the minimally intrusive protective examination of the weapon. (People v. Rico, supra, 97 Cal.App.3d 124, 132; In re Richard C. (1979) 89 Cal.App.3d 477, 489, 152 Cal.Rptr. 787; People v. Marceaux (1970) 3 Cal.App.3d 613, 617, 83 Cal.Rptr. 798.) The officer's only alternative would have been to request that appellant hand him the weapon; a clearly unsafe procedure which the law should not require. Accordingly, we find that apart from the statute (section 12031), the entry into the vehicle for the purpose of examining the firearm was justified. (People v. Hale (1974) 43 Cal.App.3d 353, 356, 117 Cal.Rptr. 697; People v. Green (1971) 15 Cal.App.3d 766, 772, 93 Cal.Rptr. 433.)

II

Appellant next challenges the officer's entry and second search inside the van, and the subsequent warrantless seizure of contraband observed in plain view on the mirror.

We find no merit in appellant's argument that no probable cause supported this second search, and seizure. Certainly the officer's observation of Ms. Hunt's reactions and the items on the mirror, in the light of his training and experience, furnished probable cause to believe that contraband would be found in the vehicle. (People v. Knutson (1976) 60 Cal.App.3d 856, 863, 131 Cal.Rptr. 846; People v. Howell (1973) 30 Cal.App.3d 228, 235, 105 Cal.Rptr. 748; People v. Goldberg (1969) 2 Cal.App.3d 30, 34, 82 Cal.Rptr. 314; People v. Benedict (1969) 2 Cal.App.3d 400, 402, 82 Cal.Rptr. 759.)

Moreover it has long been recognized that the mobility of an automobile makes it particularly susceptible to searches under the “exigent circumstances” exception to the warrant requirement. (Chambers v. Maroney (1970) 399 U.S. 42, 48-49, 90 S.Ct. 1975, 1979-1980, 26 L.Ed.2d 419; Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; People v. Odom (1980) 108 Cal.App.3d 100, 107, 166 Cal.Rptr. 283.) Thus in rejecting a claim that a warrantless vehicle passenger compartment search was invalid, the court in Wimberly v. Superior Court (1976) 16 Cal.3d 557, 128 Cal.Rptr. 641, 547 P.2d 417 explained: “It is therefore manifest 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 ․”’ (Id., at p. 563, 128 Cal.Rptr. 641, 547 P.2d 417; see also People v. Laursen (1972) 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145.)

While the “automobile exception” to the Fourth Amendment warrant requirement continues to be debated, and awaits final resolution, the rule in Wimberly v. Superior Court, supra, 16 Cal.3d 557, 128 Cal.Rptr. 641, 547 P.2d 417, respecting passenger compartments remains viable. (People v. Yuna (1980) 112 Cal.App.3d 634, 639, 169 Cal.Rptr. 424; and cf. Arkansas v. Sanders (1979) 442 U.S. 753, 760-761, 99 S.Ct. 2586, 2591-2592, 61 L.Ed.2d 235; Wimberly v. Superior Court, supra; People v. Cook (1975) 13 Cal.3d 663, 669, 119 Cal.Rptr. 500, 532 P.2d 148; People v. Odom, supra, 108 Cal.App.3d 100, 109, 166 Cal.Rptr. 283; People v. Diaz (1980) 101 Cal.App.3d 440, 445, 161 Cal.Rptr. 645; People v. Superior Court (Sanders) (1979) 99 Cal.App.3d 130, 134, 160 Cal.Rptr. 366.)

The numerous “closed container” decisions of our Supreme Court (e. g., People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514; People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467) might call for a re-assessment of the “automobile exception,” except that they involved not the search of the open, visible area of a vehicle-interior, but the warrantless search of receptacles found within it whose configuration did not clearly evidence their contents. (Cf. Minjares, supra, at p. 423, 153 Cal.Rptr. 224, 591 P.2d 514 and People v. Superior Court (Baker), supra, 111 Cal.App.3d 726, 732-733, 168 Cal.Rptr. 797.)

For all of the above reasons we think the search of the interior of the van and seizure of contraband in plain view was supported by probable cause.

III

Appellant argues lastly that the warrantless search of the bank bag and subsequent seizure of its contents violated the “Dalton-Minjares” closed container rule. (People v. Dalton (1979) 24 Cal.3d 850, 157 Cal.Rptr. 497, 598 P.2d 467; People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514.)

This court, however, has ruled that “not every object serving the function of a closed receptacle will automatically fall within the ambit of constitutional protection simply because its physical form forecloses an open or public examination.” (People v. Diaz, supra, 101 Cal.App.3d 440, 447, 161 Cal.Rptr. 645; see also Arkansas v. Sanders, supra, 442 U.S. 753, 762, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235; People v. Robbins (1980) 103 Cal.App.3d 34, 39, 162 Cal.Rptr. 780.) As explained in People v. Fick (1980) 107 Cal.App.3d 892, 166 Cal.Rptr. 106: “Certain closed containers, such as luggage and briefcases, clearly fall within the Fourth Amendment's proscription against warrantless searches because they are ‘common repositor[ies] for one's personal effects [[[[and are] inevitably associated with the expectation of privacy.’ (Arkansas v. Sanders (1979) 442 U.S. 753, 762 [99 S.Ct. 2586, 2592, 61 L.Ed.2d 235] ․) Other items, however, are not reasonably associated with an expectation of privacy, and containers whose primary use is something other than as repositories for personal effects do not normally raise reasonable expectations of privacy. (Guidi v. Superior Court (1973) 10 Cal.3d 1, 10-14 [[109 Cal.Rptr. 684, 513 P.2d 908] …, paper shopping bag; People v. Diaz (1980) 101 Cal.App.3d 440, 446-448 [161 Cal.Rptr. 645] …, paper cup with lid; People v. Scott (1979) 95 Cal.App.3d Supp. 8, 11 [158 Cal.Rptr. 270] …, cigarette box.)” (Id., at p. 895.)

Similarly, in People v. Yuna, supra, 112 Cal.App.3d 634, 169 Cal.Rptr. 424, the pertinent inquiry was stated by the court as follows: “However, the difficult practical question is: Must the police secure a warrant in every ‘closed container case’ regardless of whether it is a suitcase or a paper bag? The emerging case law indicates the test is whether there exists a reasonable expectation of privacy in the container deserving of constitutional protection. (See People v. Fick (1980) 107 Cal.App.3d 892 [166 Cal.Rptr. 106] …; People v. Diaz (1980) 101 Cal.App.3d 440, 446-448 [161 Cal.Rptr. 645] ․) The Sanders case extended the Fourth Amendment protection to a suitcase because it is the type of container that is ‘a common repository for one's personal effects, and therefore is inevitably associated with the expectation of privacy.’ (Arkansas v. Sanders, supra, 442 U.S. 753, 762 [99 S.Ct. 2586, 2592, 61 L.Ed.2d 235] ․)” (Id., at p. 640.)

Courts have found this “reasonable expectation of privacy” to attach to luggage (Arkansas v. Sanders (1979) 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235), a locked footlocker (United States v. Chadwick (1976) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538), closed boxes (People v. Dalton, supra, 24 Cal.3d 850, 157 Cal.Rptr. 497, 548 P.2d 467), a tote bag (People v. Minjares, supra, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514), a jacket pocket (People v. Yuna, supra, 112 Cal.App.3d 634, 169 Cal.Rptr. 424), wrapped, sealed packages (People v. Riegler (1980) 111 Cal.App.3d 580, 168 Cal.Rptr. 816), a vest pocket (People v. George (1980) 110 Cal.App.3d 528, 168 Cal.Rptr. 44), an electric blanket box (People v. Musante (1980) 102 Cal.App.3d 156, 162 Cal.Rptr. 158), an athletic bag (Bell v. Superior Court (1980) 101 Cal.App.3d 238, 161 Cal.Rptr. 455), and a lunch box (People v. Pace (1979) 92 Cal.App.3d 199, 154 Cal.Rptr. 811). On the other hand, the requisite expectation of privacy was found wanting in a pillowcase (People v. Suennen (1980) 114 Cal.App.3d 192, 170 Cal.Rptr. 677), a paper bag (People v. Fick, supra, 107 Cal.App.3d 892, 166 Cal.Rptr. 106), plastic-wrapped packages (People v. Robbins, supra, 103 Cal.App.3d 34, 162 Cal.Rptr. 780), a lidded paper cup (People v. Diaz, supra, 101 Cal.App.3d 440, 161 Cal.Rptr. 645), and a cigarette box (People v. Scott (1979) 95 Cal.App.3d Supp. 8, 11, 158 Cal.Rptr. 270).

With these decisions in mind, we must determine whether a Bank of America money bag “is such a common repository for personal effects that it is inevitably associated with the expectation of privacy and deserving of constitutional protection.” (People v. George, supra, 110 Cal.App.3d 528, 534, 168 Cal.Rptr. 44.) Clearly, a money bag is customarily used as a container for cash, checks, bank statements, and other personal and valuable possessions. These items, however, are not “personal,” except to those engaged in the banking business—an occupation which, as surrounding circumstances show, was not appellant's calling. If, therefore, the test is an objective one, as we think it is appellant can have had no reasonable expectation of privacy in the bag's contents.

For that principal reason, and not merely because the bag was open, we think appellant can have had no objectively reasonable expectation of privacy in the bag's contents such as would require the officer to seek a warrant before examining its contents. Accordingly, we find no error in the court's denial of suppression respecting such contents.

The judgment is affirmed.

I concur in the decision and result; but on the record before us I cannot subscribe to the reasons given to sustain the validity of the warrantless search of the unlocked, unzippered bank bag following defendant's custodial arrest. Contrary to the majority's conclusion, the bag—while unzippered—was not open so as to expose its contents to plain view.¹ Moreover, I can not agree that a money bag “customarily used as a container for cash, checks, bank statements, and other personal and valuable possessions” (174 Cal.Rptr. 265) may never be considered as a common repository for personal effects entitled to constitutional protection.

As a matter of common knowledge, many bank customers and depositors frequently use money bags supplied by the bank in transacting their business with the bank. The contents of such money bags typically include the specific personal effects mentioned by the majority; most bank customers would, I believe, entertain an expectation of privacy as to their financial affairs, and it would appear to be eminently reasonable to do so. (See Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656-657, 125 Cal.Rptr. 553, 542 P.2d 977; Burrows v. Superior Court (1974) 13 Cal.3d 238, 243.) But since the record is unclear whether the bank bag involved was for the exclusive use of the bank as distinguished from customer use, it must be presumed on appeal that the trial court found in favor of the former variety (see People v. Gale (1973) 9 Cal.3d 788, 792-793, 108 Cal.Rptr. 852, 511 P.2d 1204) in which defendant could assert no protectible interest.

FOOTNOTES

1.  Section 12031 states: “(a) … Every person who carries a loaded firearm on his person or in a vehicle while in any public place or any public street in an incorporated city … is guilty of a misdemeanor.”

1.  Officer Smith, who conducted the search, testified (during the preliminary hearing) that the bag “was unzippered, but I couldn't see what was inside.”

NEWSOM, Associate Justice.

ELKINGTON, J., concurs. RACANELLI, Presiding Justice, concurring.