Petition for Writ of Certiorari — California v. Leichty

PETITION FOR WRIT OF CERTIORARI

JOHN K. VAN DE KAMP,

Attorney General of the

State of California

STEVE WHITE,

Chief Assistant Attorney

yeneral

HARLEY D. MAYFIELD,

Assistant Attorney General

LOUIS R. HANOIAN, Supervising

Deputy Attorney General

ESTEBAN HERNANDEZ,

Deputy Attorney General

110 West A Street, Suite 700

San Diego, California 92101

Telephone: (619) 237-7365

Attorneys for Petitioner

a a

QUESTION PRESENTED

Where the Government has

properly seized a package in plain view

which clearly contains contraband by its

outward appearance should the Government

also be entitled to conduct a full

warrantless search of the package?

- ii. -

TOPICAL INDEX

Pages

OPINIONS BELOW 2

JURISDICTION 2-3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 3

STATEMENT OF THE CASE :

STATEMENT OF FACTS 6 = 11

HOW THE FEDERAL QUESTION

IS PRESENTED ii - 13

REASONS FOR GRANTING THE WRIT 13 - i6

ARGUMENT 17 - 29

I. | WHERE THE GOVERNMENT HAS

PROPERLY SEIZED A PACKAGE IN

PLAIN VIEW WHICH CLEARLY

CONTAINS CONTRABAND BY ITS

OUTWARD APPEARANCE THE

GOVERNMENT SHOULD ALSO BE

ENTITLED TO CONDUCT A FULL

WARRANTLESS SEARCH OF THE

PACKAGE SINCE ALL PRIVACY

INTERESTS IN IT HAVE ALREADY

BEEN EXTINGUISHED 17 = 18

A. THIS CASE IS THE NEXT LOGICAL

STEP IN THE EVOLUTION OF THE

"SINGLE-PURPOSE CONTAINER

EXCEPTION" TO THE WARRANT

REQUIREMENT 18 - 23

- iii. -

B. CERTIORARI SHOULD BE GRANTED TO

DELINEATE THAT THE "VEHICLE

EXCEPTION" TO THE WARRANT

REQUIREMENT ALSO APPLIES TO

PACKAGES CONSIGNED TO COMMON

CARRIERS 23 - 26

Cc. CERTIORARI SHOULD BE GRANTED TO

GIVE FURTHER CLARIFICATION TO

UNITED STATES v. JACOBSEN (1984)

466 U.S. 109 AS LOWER COURTS ARE

SERIOUSLY MISINTERPRETING IT 27 - 29

CONCLUSION 30

APPENDICES

- iv. -

TABLE OF AUTHORITIES

CASES

American Railway Express Co. v. Levee

(1923) 263 U.S. 19

Arizona v. Hicks

(1987) 480 U.S. 321

Arkansas v. Sanders

(1979) 442 U.S. 753

Chambers v. Maroney

(1969) 399 U.S. 42

Colorado v. Bertine

(1987) 479 U.S. 367

New York v. Belton

(1981) 453 U.S. 454

People v. Leichty

(1988) 205 Cal.App.3d 914

People v. McKinnon

(1972) 7 Cal.3d 899

People v. Williams

(1988) 198 Cal.App.3d 873

Robbins v. California

(1981) 453 U.S. 420

United States v. Jacobsen

(1984) 466 U.S. 109

United States v. Miller

(9th Cir. 1985) 769 F.2d 554

United States v. Mulder

13,

(9th Cir. 1987) 808 F.2d 1346

Ame OTs

17, 19,

33,5 22,

ay 23,

22,

14, 20,

16, 27,

12,

es

18

24

26

14

14

21,

Fe

24

19

24

28

17

28

- V.-

TABLE OF AUTHORITIES CONTINUED

Pages

United States v. Ross

(1982) 456 U.S. 798 14

United States v. Williams

(D.C. Cir. 1987) 822 F.2d 1174 19

CONSTITUTIONS

United States Constitution

Fourteenth Amendment 3

United States Constitution

Fourth Amendment 3, 2868, 20; O22

STATUTES

United States Code

Cit. 26, § 1257(3) 3

OTHER AUTHORITIES

1 W. LaFave, Search & Seizure

§ 2.2, at p. 240; § 7.2 at p. 254

fn. 73 (1978) 19

J. Choper, Y. Kamisar & L. Tribe,

The Supreme Court: Trends and Developments

1980-1981 at pp. 104-105 (1982) 19

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Vv.

STEPHEN EDWARD LEICHTY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Petitioner, State of California,

respectfully prays that a writ of

certiorari be issued to review the

judgment and opinion of the California

Court of Appeal, Fourth Appellate

District, Division Two, issued on November

1, 1988, excluding the seized evidence and

reversing the order of probation, entered

on August 17, 1987. A petition for review

« do =

and alternative request for depublication

was denied by the California Supreme Court

on February 15, 1989. The remittitur was

issued on February 22, 1989.

PINI

The opinion of the California

Court of Appeal, Fourth Appellate

District, Division Two, reversing the

order of probation (People v. Leichty

(1988) 205 Cal.App.3d 914) appears as

Appendix A of this petition. A copy of

the California Supreme Court’s order

denying review without opinion appears as

Appendix B.

JURISDICTION

The California Court of Appeal,

Fourth Appellate District, Division Two,

entered its judgment and opinion on

November 1, 1988. On November 30, 1988,

the People filed a timely petition for

review with: the California Supreme Court.

On February 15, 1989, the petition for

te

review was denied. Title 28, United

States Code, section 1257(3), confers

jurisdiction on the Court in this case.

Where the highest state court

has jurisdiction to review a decision of a

lower state court, but refuses to do so,

the time for petitioning for a writ of

certiorari runs from the date of the

higher court’s refusal to review.

(American Railway Express Co. v. Levee

(1923) 263 U.S. 19, 20-21.) Since filed

within 60 days of the California Supreme

Court’s denial of review, this petition is

timely.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution,

Amendments Four and Fourteen.

STATEMENT OF THE CASE

In an information filed by the

District Attorney of San Bernardino County

on January 20, 1987, respondent, Stephen

a oe

Edward Leichty, was charged with

manufacturing methamphetamine,

possession for sale of methamphetamine,

and transporting, importing or selling

methamphetamine. (CT 125-126. )+/

Respondent’s motion to suppress

evidence was heard and denied on April 27,

1987. (CT 170; RT 3-19.) Respondent

subsequently pled guilty on June 19, 1987,

to possession for sale of methamphetamine

in exchange for the other two counts being

dismissed. (CT 172-175.)

On August 17, 1987, respondent

was granted probation for a period of

three years; one of the conditions being

that he serve 120 days in county jail.

The jail term was stayed pending appeal.

(CT 176-178. )

i. The designation "CT" refers to

the Clerk’s Transcript on appeal. The

designation. "RT" refers to the

Reporter’s Transcript of the hearing on

et motion to suppress held April 27,

1987.

rs

- 5.- :

On November 1, 1988, the

California Court of Appeal, Fourth

Appellate District, Division Two, excluded

the seized evidence and reversed

respondent’s grant of probation in a

published opinion. (Appendix A.)

On February 15, 1989, the

California Supreme Court denied

petitioner’s petition for review and

alternative request for depublication.

(Appendix B.) The remittitur was issued

on February 22, 1989.

/

/

/

/

/

/

/

/

/

/

“——

STATEMENT OF FACTS~’

On September 23, 1986, at 4:00

p.m., Michael Brooks, Night Shift

Supervisor for Air Cargo, International,

located at the Ontario Airport was on duty

when he saw respondent bring in a package

for air shipment to Denver, addressed to

Greg Ramsey. (CT 11-12, 96.) Respondent

appeared very nervous and was wearing dark

sunglasses inside the building; this

struck Brooks as odd because the inside of

the building was dark and most people who

entered wearing sunglasses would

2. The facts are taken from the

transcript of the preliminary

examination held on January 6, 1987 (CT

4-124), and from the transcript of the

hearing held April 27, 1987, on the

motion to suppress. (RT 3-19.) The

transcript of the preliminary

examination was submitted into evidence

at the hearing on the motion to

suppress. (RT 3.) These two hearings

and the points and authorities submitted

on the motion (CT 130-169) served as the

sole basis for the trial court’s

decision to deny respondent’s motion to

suppress.

—,

immediately take them off. (CT 13, 23.)

Respondent told Brooks that the package

contained "personal effects." (CT 13.)

Brooks recalled, after

respondent lieft, that 20 days earlier on

September 3, 1986, he had inspected a

questionable package addressed to

respondent from Denver. (CT 9-10, 14.)

That earlier package had smelled strongly

of ether, a hazardous substance. (CT 9.)

Brooks had telephoned respondent after the

package had been picked up for him by his

friend, Mr. Ramsey, and explained to

respondent the problems of having such a

volatile substance shipped on an airplane.

Respondent promised it would not happen

again. (CT 11-12.)

After connecting respondent and

Mr. Ramsey with the earlier incident,

Brooks contacted the supervisor on duty,

Dobromil Frank, Supervisor of Customer

Service at United Airlines, and advised

« £.

him of his suspicions. (CT 14.) Brooks

was concerned that respondent might be

shipping some more hazardous material and

was concerned for the safety of the

aircraft and its passengers. (CT 14.)

Frank arrived and instructed

Brooks to open the package to determine if

it did contain a dangerous substance. (CT

32.) Frank was also concerned about the

safety of the passengers, crew and

aircraft if: this were indeed an undeclared

hazardous substance; furthermore, Frank

felt compelled by federal safety

regulations and tariffs to inspect this

suspicious package which had been brought

to his attention. (CT 33, 48.)

Brooks opened the package and

found two Pepsi bottles filled with

yellowish liquid and heavily taped at the

top, labeled "high grade two cycle model

airplane oil," packaged in potato chips

(this appeared to Frank to be an obvious

ie

a

attempt to disguise any smell.) Brooks

and Frank immediately called the narcotic

task force housed at the Ontario Airport

as they believed they had discovered

illegal drugs. (CT 14-19, 27, 33-34, 49-

51, 69; RT 5-6.)

Detective Michael Moriarity of

the Los Angeles Police Department and

Deputy Raul Bracamonte of the San

Bernardino County Sheriff’s Office arrived

within thirty minutes. (CT 40, 52-53, 86-

88.) Frank showed the officers the opened

package and gave them permission to open

the bottles. (CT 53-54.)

Upon opening one of the bottles,

Detective Moriarity immediately noticed a

strong ether odor which he associated with

the illegal drug, PCP. (CT 54.) Deputy

Bracamonte also smelled the ether and

associated it with either PCP or liquid

methamphetamine. (CT 91.)

- 10. -

Los Angeles Police Department

Criminalist Bernard Sanchez was summoned

to the airport and arrived about an hour

after Officers Bracamonte and Moriarity.

(CT 72, 55, 40.) Sanchez conducted an on-

the-spot field-test of the liquid in the

bottles. (CT 71-73.) Although the

results were somewhat inconclusive, they

did indicate "some sort of drug [was]

present." (CT 73.) Sanchez conducted a

more thorough test on the liquid the next

day in the laboratory and determined

conclusively that this was methamphetamine

oil. (cT 74.)2

3. The California Court of Appeal

presumed that a "broad" laboratory test

(i.e., one capable of revealing the

molecular structure of the tested

substance) was used in this case because

the prosecution did not meet its burden

of showing that a “narrow” laboratory

test (i.e., one capable of revealing

only contraband substances) was used.

(Appendix A, pp. 20-23.) Petitioner

stipulates for this petition that a

"broad" laboratory test was used.

- ll. -

Based on the above information,

the police obtained a search warrant for

respondent’s dorm room at Clairemont

Colleges; they recovered alli the lab

equipment and chemicals necessary to

produce methamphetamine, in addition to a

formula for making methamphetamine and a

gun. (CT 98-103.)

Respondent waived his Miranda

rights and immediately confessed that the

air shipment package was his and that all

the chemicals and lab equipment in his

dorm room were his. (CT 101-103.)

HOW THE FEDERAL QUESTION IS PRESENTED

In the trial court, counsel for

respondent filed a motion to suppress the

_ evidence seized from his air shipment

package on the ground that the seizure and

search of his package violated both the

federal and state constitutions. (CT 135-

136, 152, 160-168; RT 17, 9-12, 14-19.)

' Petitioner argued at the hearing on the

i

- 12. -

motion to suppress that under the Fourth

Amendment, under the "plain view

exception" to the warrant requirement, and

under the rationale of Chambers v. Maroney

(1969) 399 U.S. 42, 52 [i.e., that if the

Government had a right to seize material

| which was obviously contraband, they had a

right to search it as welij, the

- Government had sustained its burden for

having conducted a warrantless seizure and

search of respondent’s air shipment

_package. (CT 142-143, 165-167; RT 11, 13-

' 14, 16-19.) United States v. Miller (9th

Cir. 1985) 769 F.2d 554, which discusses

the interrelationship between the plain

view doctrine and the “single-purpose

container exception" to the warrant

requirement, was also addressed at the

motion to suppress. (CT 162-164; RT 11,

13-14, 17.) The trial court’s denial of

respondent’s motion to suppress implicitly

TE ORRIN Dh IO eC IS ICI Se ——

_

j i

3 }

- 13. -

endorsed the Government’s position on

these arguments. (CT 170; RT 19.)

Respondent’s Fourth Amendment

argument was repeated to the California

Court of Appeal which agreed with

respondent’s contention and excluded the

seized evidence and confession, and

reversed respondent’s conviction under its

interpretation of United States v.

Jacobsen (1984) 466 U.S. 109. (People v.

Leichty (1988) 205 Cal.App.3d 914, 923-

924; appen. A, pp. 16-20.)

Petitioner’s timely petition for

review and alternative request for

depublication to the California Supreme

Court was denied. (Appendix B.)

REASONS FOR GRANTING THE WRIT

This case presents the Court

with the opportunity of completing the

evolution of the "“single-purpose container

exception” to the warrant requirement.

This Court first created this exception in

—_————

- 14. -

Arkansas v. Sanders (1979) 442 U.S. 753,

764~765, £n. 13 [distinguished on other

grounds, United States v. Ross (1982) 456

U.S. 798, 824], in discussing the reduced

Fourth Amendment privacy expectations

which exist in certain containers (such as

burglar tool kits) whose outward

appearances announce to the world that

their single-purpose for existence is to

house contraband. Evolving this exception

in cases such as Robbins v. California

(1981) 453 U.S. 420 [distinguished on

other grounds in New York v. Belton (1981)

453 U.S. 454, 461 and Colorado v. Bertine

(1987) 479 U.S. 367, 370] a plurality of

the Court clarified that the "single-

purpose container exception" is

analytically “little more than another

variation of the ‘plain view’ exception"

to the warrant requirement. (Id. p. 427.)

Lower courts have extrapolated

from this holding that therefore the

———

- 15. -

reasoning in the "plain view exception"

case, Arizona v. Hicks (1987) 480 U.S.

321, should be equally applicable to

"single-purpose container exception"

cases. Hicks held that if an object could

be lawfully seized under the "plain view

exception," it was absurd to require a

warrant to be obtained before the object

could also be searched. The time has come

for this Court to expressly extend the

holding of Hicks to the "single-purpose

container exception."

Certiorari should also be

granted in this case to extend the

"vehicle exception" to the warrant

requirement to. packages consigned to

common carriers. Several Justices of this

Court have previously indicated that they

would be willing to do so. If the Court

did so in this case, then the holding of

the "vehicle exception" case Chambers v.

| Maroney (1969) 399 U.S. 42, 52, that the

- 16. -

right to seize contraband without a

warrant carries with it the right to fully

search said contraband without a warrant,

could be invoked and the full warrantless

search of the contraband in this case

would be upheld.

Finally, certiorari should also

be granted in the instant case to give

further clarification to United States v.

Jacobsen (1984) 466 U.S. 109, as Jacobsen

was seriously misinterpreted by the Court

of Appeal below and has ostensibly been

misinterpreted by other lower courts as

well.

oe a ee ee ey |

WHERE THE GOVERNMENT HAS PROPERLY SEIZED A

PACKAGE IN PLAIN VIEW WHICH CLEARLY

CONTAINS CONTRABAND BY ITS OUTWARD

APPEARANCE THE GOVERNMENT SHOULD ALSO BE

ENTITLED TO CONDUCT A FULL WARRANTLESS

SEARCH OF THE PACKAGE SINCE ALL PRIVACY

INTERESTS IN IT HAVE ALREADY BEEN

EXTINGUISHED

Petitioner submits that the time

is now ripe for this Court to complete the

evolution of the "single-purpose container

exception "+! to the warrant requirement by

expressly extending to it the reasoning of

the "plain view exception" case, Arizona

v. Hicks (1987) 480 U.S. 321, 326, and

expressly holding: where the Government

has properly seized a package in plain

view, which package also falls within the

4. The Ninth Circuit coined the

phrase "single-purpose container

exception" in United States v. Miller

(1985) 769 F.2d 554, 558, as a shorthand

way of referring to this exception to

the warrant requirement which was first

, created in Arkansas v. Sanders (1979)

442 U.S. 753, 764-765, fn. 13.

™

’ |

- 18. -

"single-purpose container exception,” the

Government is also entitled to conduct a

full warrantless gearch of the package

since all privacy interests in the package

have already been extinguished.

A. THIS CASE IS THE NEXT LOGICAL STEP IN

THE EVOLUTION OF THE “SINGLE-PURPOSE

CONTAINER EXCEPTION” TO THE WARRANT

REQUIREMENT

Justice Scalia, writing for the

majority in Arizona v. Hicks, supra, 480

U.S. 321 held that if an object in plain

view can be properly seized without a

warrant, it can also be searched without a

warrant:

"It would be absurd to say that an

object could lawfully be seized and

taken from the premises, but could

not be moved for closer examination.

It is clear, therefore, that the

search here was va £f the ‘plain

view’ doctrine would have sustained a

seizure of the equipment.” (Emphasis

added; Id., at p. 326.)

Certiorari should be granted in

the instant case so that this Court can

provide guidance for lower courts that the

—_

- 19. -

analysis in Hicks is directly applicable

to "“single-purpose container exception"

cases. Some lower courts have anticipated

the direction of this Court and have

already begun applying Hicks to "single-

purpose container exception" cases.

(United States v. Williams (D.C. Cir.

1987) 822 F.2d 1174, 1180-1186; People v.

Williams (1988) 198 Cal.App.3d 873, 891;

see also 1 W. LaFave, Search & Seizure §

2.2, at p. 240, § 7.2 at p. 254 En. 73

(1978); see also J. Choper, Y. Kamisar &

L. Tribe, The Supreme Court: Trends and

Developments 1980-1981 at pp. 104-105

(1982).)

The evolution of the "single-

purpose container exception" shows that

the Court has been moving in this

direction. The exception was first

created by this Court in Arkansas v.

Sanders (1979) 442 U.S. 753, 764-765, fn.

13:

ae

- 20. -

"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 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."

(Emphasis added. )

In Robbins v. California (1981)

453 U.S. 420, Justice Stewart writing for

a plurality of the Court refined the

implications of footnote 13 of Sanders and

the theoretical underpinnings of the

"“single-purpose container exception" by

pointing out that:

"{[The single-purpose container]

exception is likewise little more

than another variation of the ‘plain

view’ exception, since, if the

distinctive configuration of a

container proclaims its contents, the

contents cannot fairly be said to

have been removed from a searching

officer’s view." (Emphasis added;

Id., at p. 427.)

0

- 21. -

If the "single-purpose container

exception" is therefore "little more than

another variation of the ‘plain view’

exception,” it makes absolute sense that

the analysis of Hicks, a "plain view

exception" case should be equally if not

more applicable to "single-purpose

container exception" cases.

One of the principal defects in

the opinion of the California Court of

Appeal below is that it fails to tools a

Hicks type of analysis. The Court of

Appeal expressly found that the police

officers who had been summoned by the

airport employees "violated no rule of law

in visually examining the contents of the

opened package, which were in plain view.

[Citations]" (Emphasis added; People v.

Leichty (1988) 205 Cal.App.3d 914, 920;

appen. A, pp. 10-11.) The Court of Appeal

also went on to find that given the unique

and distinctive packaging of the

Die

Fes ee ee

|

- 22. -

contraband, the officer’s experience with

narcotics smuggling, and five other

enumerated factors, ample probable cause

existed in this case to justify

governmental seizure of respondent’s air

shipment package without a warrant because

the material was obviously contraband:

"Based on the law enforcement

officers’ testimony, we hold that

they [the government's agents] had

probable cause to believe that the

bottles contained contraband before

opening and field testing them. The

facts which they possessed concerning

the bottles would ve led an rson

of reasonable caution to believe that

the bottles contained contraband

drugs." (Emphasis added; People v.

Leichty, supra, 205 Cal.App.3d at pp.

920-921; appen. A, pp. 13-14.)

Where the Court of Appeal’s

analysis falters, however, is in its

failure to take the next logical step. It

acknowledges that the bottles of

methamphetamine oil were in plain view and

that by their packaging any reasonable

person would have concluded the bottles

contained contraband (i.e., the "“single-

teen enema

- 23. -

purpose container exception"), however,

because Hicks has not yet been expressly

extended to "single-purpose container

exception" cases by this Court, the Court

of Appeal apparently felt that it was not

on solid ground to rule that the right to

seize a "single-purpose container" filled

with obvious contraband carries with it

the right to conduct a full search of said

contraband. Certiorari should therefore

be granted to instruct lower courts that

these two rights go hand-in-hand once

governmental agents encounter obvious

contraband. -

B. CERTIORARI SHOULD BE GRANTED TO

DELINEATE THAT THE “VEHICLE

EXCEPTION” TO THE WARRANT REQUIREMENT

ALSO APPLIES TO PACKAGES CONSIGNED TO

COMMON CARRIERS

Chambers v. Maroney (1969) 399

U.S. 42, 50, fn. 8, instructs us that the

“vehicle exception” to the warrant

requirement applies not only to auto-

mobiles, but also to "other vehicles."

- 24. -

Several justices of this Court have

indicated that they would be willing to

extend the “vehicle exception" to packages

consigned to a common carrier as they are

"things readily moved rather than a fixed

piece of property." (Arkansas v. Sanders,

supra, 442 U.S. at p. 769 (Blackmun, J.,

dissenting); Robbins v. California, supra,

453 U.S. at pp. 440-441 (Rehnquist, J.,

dissenting); see also People v. McKinnon

(1972) 7 Cal.3d 899, 908-917 [cert. denied

411 U.S. 931)}.) This case presents the

Court with the opportunity of taking that

step.

The prosecution relied on the

applicability of Chambers to this case at

the hearing on the motion to suppress.

(CT 143; RT 9.) The Calitornia Court of

Appeal implicitly acknowledged the

applicability of the “vehicle exception"

in this case and its underlying rationale

regarding the object’s high mobility when

- 25. -

it held that the police officers here

acted properly in seizing the air shipment

package and preventing it from being

“shipped out of the officers’ juris-

diction." (People v. Leichty, supra, 205

Cal.App.3d at p. 921; appen. A, p. 14.)

However, because no decision by

this Court has come out squarely extending

the “vehicle exception" to packages

consigned to common carriers, the Court of

Appeal here was constrained from doing so.

Had such an opinion previously come down

from this Court, the Court of Appeal would

then have been at liberty to apply the

Hicks-type rule which had already been

announced in Chambers (but limited to

“vehicle exception" cases):

"For constitutional purposes, we

see no difference between on the one

hand seizing and holding a car [or

any othe r_ instrumentality subject to

the cle exc we ore

w - Given probable

cause to search, either course is

- 26. -

reasonable under the Fourth

Amendment." (Emphasis added;

Chambers v. Maroney, supra, 399 U.S.

at p. 52.)

The same proper result would

thus have been possible in this case under

two separate exceptions to the warrant

requirement if only this Court had

extended Hicks to the "single-purpose

container exception” or if this Court had

expressly extended the “vehicle exception"

to packages consigned to common carriers.

Had it done’ the latter, the holding of

Chambers could have been evoked and the

full search of the contraband would not

have triggered suppression of the

evidence. Countless other drug cases with

similar facts will continue to be

dismissed until this Court expressly

extends the “vehicle exception" to

packages consigned to common carriers.

/

/

- 27. -

Ge CERTIORARI SHOULD BE GRANTED TO GIVE

FURTHER CLARIFICATION TO UNITED

STATES v. JACOBSEN (1984) 466 U.S.

109 AS LOWER COURTS ARE SERIOUSLY

MISINTERPRETING IT

As a final matter, petitioner

submits that United States v. Jacobsen,

supra, 466 U.S. 109 is being seriously

misinterpreted by lower courts. This

Court should therefore grant certiorari in

this case as it is an appropriate vehicle

for clarifying the intent of Jacobsen.

The language in Jacobsen which is being

misinterpreted is as follows:

"Even when government agents may

lawfully seize such a[n airfreight]

package to prevent loss or

destruction of suspected contraband,

the Fourth Amendment requires that

they obtain a warrant before

examining the contents of such a

package. [Footnote 8 omitted.]"

(Emphasis added; Id., at p. 114.)

Given the foregoing discussion,

it is readily apparent that “suspected" is

the key modifying adjective in this quote.

In contrast, had the package been "clearly

contraband" (e.g., because this package

- 28. -

met the "single-purpose container

exception") then no warrant would have

been necessary either to seize or to

search it, einen there is no Fourth

Amendment expectation of privacy in

contraband. (United States v. Jacobsen,

supra, 466 U.S. at p. 122)

Had the Court of Appeal in this

case which went into detailed analysis of

Jacobsen properly focused on the adjective

"suspected," it would have realized that a

different standard applies for packages

which are clearly contraband (i.e., the

standard announced in Chambers and Hicks.)

An examination of the facts in

United States v. Mulder (9th Cir. 1987)

808 F.2d 1346 (a case which was heavily

relied on by the Court of Appeal in

Leichty for purposes of interpreting

Jacobsen) reveals that had the Ninth

Circuit focused on the adjective

“suspected” in Jacobsen, it also would

- 29. -

have realized that obvious contraband

(there, 10,033 pills contained in clear

plastic bags hidden in a brown paper bag

without any prescription labels or

markings) does not have the same privacy

expectations as suspected contrahand.

Absent clarification by this

Court, lower courts (such as Leichty and

Mulder) will continue to overlook the

modifying adjective “suspected“ in

Jacobsen and improperly extend Fourth

Amendment privacy protection to marcotic

contraband in which there is no jJegitimate

privacy interest.

se oe OS US CS

- 30. -

CONCLUSION

For the foregoing reasons petitioner

respectfully submits that the writ of

certiorari should issue to review the

decision of the California Conrt of Appeal

in this case.

4/10/89

EH:cg

SD89US0001

Respectfully submitted,

JOHN K. VAN DE KAMP,

Attorney General of the

State of Califommia

STEVE WHITE,

Chief Assistant Attorney

General

HARLEY D. MAYFIELD,

Senior Assistant Attorney

General

LOUIS R. HANOIAN Supervising

Len Attorney General

ESTEBAN HERNANDEZ

Deputy Attorney General

Attorneys for Petitioner

A-1

APPENDIX A

CERTIFIED FOR PUBLICATION

{Filed November 1, 1988]

COURT OF APPEAL, FOURTH DISTRICT

DIVISION TWO

STATE OF CALIFORNIA

PEOPLE OF THE

STATE OF CALIFORNIA,

)

)

Plaintiff and Respondent, ) E004695

)

Vv. ) (Super.

) Ct. No.

STEPHEN EDWARD LEICHTY, ) OCR12262)

)

Defendant and Appellant. ) OPINION

)

APPEAL from the Superior Court of San

Bernardino County. Clifton L. Allen,

Judge. Reversed.

Dennis S. Tilton and Richard Price

for Defendant and Appellant.

John K. Van de Kamp, Attorney

General, Steve White, Chief Assistant

Attorney General, Michael D. Wellington,

Supervising Deputy Attorney General,

A-2

Esteban Hernandez and Janelle B. Davis,

Deputy Attorneys General, for Plaintiff

and Respondent.

Defendant pled nolo contendere to one

count of possession of methamphetamine for

sale (Health & Saf. Code, § 11378). He

was granted three years’ probation on the

condition that he serve 120 days in county

jail. He appeals from the denial of his

motion to suppress evidence pursuant to

section 1538.5 of the Penal Code, on the

ground that the evidence was the fruit of -

an illegal warrantless search.

FACTS

Michael Brooks, air cargo supervisor

of an air freight facility at Ontario

airport, was on duty on an evening in

early September 1986. He noticed a five-

gallon plastic container which had been

received in shipment. The container was

empty but smelled of ether; it had not

been declared a hazardous materials at the

A-3

time of shipping, as is required in

shipping such items. The package was

addressed to defendant, but was picked up

by a man who identified himself as Ramsey.

Because of his concern that a hazardous

material had been shipped improperly,

Brooks contacted defendant by phone and

explained to him the danger involved in

shipping ether and the procedures for

doing so. Defendant indicated he would

not violate the procedures in the future.

Some 20 days later Brooks was again

on duty at the air freight facility when

defendant brought in a package for

shipment. Defendant appeared very nervous

and wore dark glassed. He stated that the

package contained personal effects and

Brooks accepted it for shipment. Brooks

did not know defendant by sight; however,

after defendant left the facility, Brooks

recognized the name on the shipment as the

name to which the empty ether bottle had

A-4

been addressed. He became concerned that

the shipment might contain hazardous

materials and, along with an employee of

the shipping airline, opened the package.

When the two men opened the package,

the found two Pepsi bottles containing a

yellowish liquid. The bottles had been

packed in paper and potato chips. They

had handwritten labels which stated that

they ota tae “high grade two cycle model

airplane oil.” Brooks did not know

whether airplane oil was a petroleum

distillate and thus a hazardous material

which must be declared prior to shipment.

He also suspected that the package

contained narcotics because of the method

of packaging and the previous shipment of

the ether bottle. He contacted the

airport narcotics task force for

assistance in identifying the contents of

the bottles.

A-5

Two officers from the narcotics task

force came to the air freight facility at

5:30 p.m. in response to Brooks’ call--

police detective Moriarity and sheriff's

deputy Bracamonte. Brooks showed

Moriarity the two Pepsi bottles in the

open package. He also told Moriarity

about the previous ether bottle shipment.

Moriarity made a visual inspection of the

bottles, which had screw-on caps and were

sealed with cellophane tape. After

‘ teckine at the bottles, Moriarity felt he

had probable cause to believe that they

contained contraband, specifically PCP.

Bracamonte though the liquid could be

either PCP or liquid methamphetamine.

After receiving permission to open the

bottles from the airline employee,

Moriarity opened one of the bottles and

immediately smelled a strong, ether-like

odor. Bracamonte also smelled ether.

Moriarity then took the bottles to the

A-6

task force office and contacted a

criminalist to come to the office to

investigate the bottles. Criminalist

Sanchez of the Los Angeles Police

Department reported to the task force

office at 7:30 the same evening to perform

field tests on the contents of the

bottles. He performed two tests on the

contends of the bottles; one was for "PCP

and/or some other similar drugs,” and the

other for amphetamines. He testified:

“The results of those tests weren't very

conclusive. The results indicated some

sort of drug present, but they were not

the results I expected for PCP or

methamphetamine ... .”

Detective Moriarity then took the two

bottles to the Los Angeles Police

Department property division at Parker

Center in downtown Los Angeles, where he

booked them into evidence. On the

following day criminalist Sanchez

A-7

conducted laboratory tests on the contents

of the bottles and concluded that they

contained methamphetamine oil. Sanchez

testified that normally he would not have

conducted the laboratory tests because he

was assigned to another unit. However, he

testified that he performed the tests

himself for the following reason: "”.

I was curious as to the nature of the

substance, to relate back to the test that

I performed on it and why they appeared

the way they did.” No search warrant was

obtained before the laboratory tests were

carried out.

Police detective Greenwell had been

in the airport narcotic task force office

when detective Moriarity brought the

bottles there for field testing. Based on

the results of the investigation of the

suspicious package and the results of the

laboratory tests at Parker Center, he

obtained a warrant to search defendant’s

A-8

dormitory room at a local college. The

search of the dorm room and & storage unit

rented by defendant revealed numerous

pieces of chemical apparatus normally used

in the manufacture of methamphetamine, all

of the chemical ingredients necessary for

making amphetamine, and substances which

tested positive in field tests for

amphetamines.

A Drug. Enforcement Administration

(DEA) officer arrested defendant pursuant

to a warrant outside his dormitory. He

was taken back to his room where a search

was commenced. In a room next to

defendant’s dorm room, Greenwell gave

defendant his Miranda warnings and

questioned him concerning the incident.

Defendant confessed to possessing and

manufacturing methamphetamine.

Additional facts will be set out

where pertinent to the discussion below.

/

A-9

ISSUES ON APPEAL

Defendant contends that the law

enforcement officers’ exercise of dominion

and control over the Pepsi bottles after

visual examination constituted an illegal

seizure without probable cause to believe

that the bottles contained contraband; and

that the opening and field testing of the

contends of the bottles, as well as the

laboratory testing, exceeded the scope of

the private search and thus were illegal

warrantless searches; so that the trial

court erred in failing to suppress the

evidence of the nature of the bottles’

contents. He also contends that the

evidence obtained as the result of the

illegal seizure and searches, including

all the physical evidence found in his

dorm room and storage unit and his

incriminating statements made at the time

of the search, should be suppressed as the

fruit of the poisonous tree. As we

; A-10

explain below, we agree that the trial

court erred in failing to grant

defendant's suppression motion.

DISCUSSION

I

PROBABLE CAUSE TO SEIZE CONTRABAND

Defendant concedes that the initial

opening and viewing of the contends of

defendant's package was a private search

by air cargo and airline employees and

thus not subject to the exclusionary rule;

and that Detective Moriarity and Deputy

Bracamonte violated no rule of law in

visually examining the contends of the

opened package, which were in plain view.

(United States v. Jacobsen (1984) 466 U.S.

109, 114-118; Walter v. United States

(1980) 447 U.S. 649, 657.) However, he

argues that these officials did not have

probable cause to believe that the bottles

contained contraband after the visual

A-11

inspection, and thus acted unlawfully in

seizing the bottles without a warrant.

"“[Ijt is well settled that it is

constitutionally reasonable for law

enforcement officials to seize ‘effects’

that cannot support a justifiable

expectation of privacy without a warrant,

based on probable cause to believe they

contain contraband.” (United States v.

Jacobsen, supra, 466 U.S. 109, 121-122;

see United States v. Place (1983) 462 U.S.

696, 701-702.) "“'[{P]jrobable cause is a

flexible, common sense standard.’ Texas

v. Brown, 460 U.S. 730, 742 [citations]

(1983). It requires only that facts be

available to the officers which would

‘warrant a [person] of reasonable caution,

Carroll v. United States, 267 U.S. 132,

162 [citations] (1925), to believe that

certain items may be contraband or

evidence of a crime. Brown, 460 U.S. at

742 [citation]. ‘A “practical,

A-12

nontechnical” probability that

incriminating evidence is involved is all

that is required.’ Id. (quoting Brinegar

v. United States, 338 U.S. 160, 176

[citations] (1949)).” (United States v.

Licata (9th Cir. 1985) 761 F.2d 537, 542.)

In the instant case, Detective

Moriarity testified that before opening

the bottles he felt he had probable caused

to believe the bottles contained

contraband,’ based on the following

factors: (1) the suspicious circumstances

Surrounding the two shipments; (2) his own

experience; (3) his observations of a

silver residue in the two bottles, which

he believed to be magnesium turnings used

in manufacturing PCP; (4) the color of the

liquid, which was consistent with liquid

PCP; (5) the fact that defendant had

indicated to the air cargo supervisor that

the package contained personal effects,

rather than.model airplane oil; (6) his

A-13

belief that model airplane oil must be

commercially available so that there would

be no need to repackage it in Pepsi

bottles; and (7) the fact that the bottles

were packaged in potato chips (he knew

from experience that contraband was

sometimes packaged in food products to

mislead narcotic-sniffing dogs).

Deputy Bracamonte testified that

after viewing and smelling the bottles he

thought they contained either PCP or

methamphetamine oil. He stated that he

has seen methamphetamine oil before and

that it had the same “Wesson oil-looking

quality” as the liquid in the bottles.

He, like Moriarity, saw metal residue in

the bottles, and he testified that he had

seen such residue before in both PCP and

methamphetamine oil.

Based on the law enforcement

officers’ testimony, we hold they had

probable cause to believe that the bottles

A-14

contained contraband before opening and

field testing them. The facts which they

possessed concerning the bottles would

have led any person of reasonable caution

to believe that the bottles contained

contraband drugs; failure to seize the

bottles in such circumstances would have

been a dereliction of duty, given the fact

that the bottles were in a busy air

terminus and were scheduled to be shipped

out of the officers’ jurisdiction.

II

WARRANTLESS FIELD TESTING

Defendant contends that, even if the

officers did have probable cause to seize

the bottles without a warrant, they

violated his Fourth Amendment rights by

conducting field tests to ascertain the

contends of the bottles without first

obtaining a search warrant. He argues

that because this “search” exceeded the

scope of the private search which had been

A-15

conducted by the air cargo and airlines

employees a warrant was required, citing

Walter v. United States, supra, 447 U.S.

at page 657.

In Walter an interstate shipment of

obscene films was mistakenly delivered to

a business office. (Id., at p. 651.) The

officer personnel opened the shipment and

examined the individual film boxes on

which were suggestive drawings and

explicit descriptions of the contends of

the films. vere at pp. 651-652.) The

office employees did not view the films.

(Id., at p. 652.) They contacted F.B.I.

agents who seized the films and viewed

them with a projector without obtaining a

warrant. (Ibid.) The Government argued

that it did not expand the private search

by viewing the films because the private

search had already destroyed the

defendant's reasonable expectation of

privacy in the shipment. (iId., at p.

A-16

658.) A plurality of the court concluded

that only part of the defendant's

legitimate expectation of privacy had been

frustrated by the private search, because

the office employees had not viewed the

actual contends of the films. (Id., at p.

659.) It explained that the F.B.I. agents

would have had the right to exceed the

scope of the private search only if they

had a right to make an independent search,

and held that the agent’s independent

search was unlawful because it was

conducted in the absence of any exigency.

(iG, at p. 657.)

In United States v. Jacobsen, supra,

466 U.S. 109, decided four years after

Walter, the Supreme Court was confronted

with a case very factually similar to the

case at bench. Employees of a private air

freight carrier examined a package which

had been damaged by a forklift. (Id., at

p. 111.) Inside the package they found

A-17

about six ounces of white powder in a

Ziploc bag concealed inside a tube

constructed of duct tape. (Ibid.) The

employees summoned a D.E.A. agent who

removed a trace of the white powder and

conducted a test which revealed the powder

to be cocaine. (Id., at p. 112.) The

field test used would disclose whether or

not a substance was cocaine, but there was

no evidence it would identify any other

substance. (Id., at p. 112, fn. 1.)

A majority court in Jacobsen applied

the Walter test, examining D.E.A. agents’

actions to see how far they exceeded the

scope of the private search. (Id., at p.

115.) It concluded the agents exceeded

the scope of the private search by field

testing for cocaine; however, it then went

on to determine whether the additional

intrusion by the field test actually

amounted to a “search” within the meaning

of the Fourth Amendment, posing and

A-18

answering the question of whether the test

“infringe[d] an expectation of privacy

that society is prepared to consider

reasonable.” (Id., at p. 122.) First, it

emphasized that the test could tell the

agents nothing more than whether or not

the substance was cocaine-- "not even

whether the substance was sugar or talcum

powder.” (Ibid.) It then concluded: "A

chemical test that merely discloses

whether or not a particular substance is

cocaine does not compromise any legitimate

interest in privacy. This conclusion is

not dependent on the result of any

particular test. It is probably safe to

assume that virtually all of the tests

conducted under circumstances comparable

to those disclosed by this record would

result in a positive finding; in such

cases, no legitimate interest has been

compromised. But even if the results are

negative--merely disclosing that the

A-19

substance is something other than cocaine-

-such a result reveals nothing of special

interest. Congress has decided--and there

is no question about its power to do so--

to treat the interest in ‘privately’

possessing cocaine as illegitimate; thus

governmental conduct that can reveal

whether a substance is cocaine, and no

other arguable ‘private’ facts,

compromises no legitimate privacy

interest.” (Id., at p. 123.) The court

held that “the likelihood that official

conduct of the kind disclosed by the

record will actually compromise any

legitimate interest in privacy seems much

too remote to characterize the [field]

testing as a search subject to the Fourth

Amendment.” (Id., at p. 124.)

The field test of the bottles in this

case likewise cannot be characterized as a

search subject to the Fourth Amendment.

The criminalist tested only for the

A-20

presence of PCP and methamphetamine oil,

neither of which is subject to a

legitimate interest in privacy. The field

tests used were designed to reveal only

whether methamphetamine, PCP, or similar

drugs were present. Thus, law enforcement

officers did not violate defendant’s

Fourth Amendment rights by field testing

the bottles.

Iil

WARRANTLESS LABORATORY TESTING

While the field tests did not

constitute an illegal warrantless search,

the tests conducted at the police

laboratory without benefit of a warrant

are another matter. Because warrantless

searches are presumptively unreasonable,

the prosecution must bear the burden of

legally justifying warrantless activity

such as that carried out by law

enforcement officers in this case.

(Coolidge v. New Hampshire (1971) 403 U.S.

A-21

443, 445-455.) The field tests were

inconclusive as to whether the bottles

contained either PCP or methamphetamine

oil. The criminalist testified that they

revealed only that “some drug” was

present; he did not state that the tests

showed the unknown drug was contraband.

The criminalist also testified that he

personally tested the contents of the

bottles in the police lab because he was

curious “as to the nature of substance, ”

given the unexpected results of the field *‘

tests. He did not state whether the tests

he conducted were designed only to show

whether or not the bottles contained PCP,

uethamphetanine oil, or similar contraband

drugs, or would have revealed the identity

of the contends even if it were a

substance in which defendant had a

legitimate privacy interest. Thus, we

conclude that the prosecution failed to

carry its burden under Jacobsen to show

A-22

that this significant expansion of the

scope of the private search did not

constitute a search within the meaning of

the Fourth Amendment.

In reaching the above conclusion we

are aided by the analysis in United States

v. Mulder (9th Cir. 1987) 808 F.2d 1346.

In Mulder, hotel employees searched a

guest’s suitcase and found 10 clear

plastic bags containing tablets inscribed

with the lettering "LEMMON 7/14.” (Id.,

at p. 1347.) They contacted D.E.A. agents

who seized the bags and, without obtaining

a warrant, took them to a laboratory where

they were tested "through the use of mass

spectrometry, infrared spectroscopy and

gas chromatography.” (Id., at p. 1348.)

The tests showed that the tablets were

methaqualone. (Ibid.) The government

argued that the warrantless testing was

not unlawful because it did not exceed the

scope of the private search. (Ibid.) The

A-23

court concluded that the lab testing

exceeded the scope of the private search,

and refused to extend the Jacobsen field

test exception to the warrant requirement

to the case before it. (Id., at pp. 1348-

1349.) It reasoned: “First of all, this

case does not involve a field test, but a

series of tests conducted in a toxicology

laboratory several days after the tablets

were seized. Secondly, the chemical

testing in this case was not a field test

which could merely disclose whether or not

the substance was a particular substance,

but was a series of tests designed to

reveal the molecular structure of a

substance and indicate precisely what it

is. Because of the greater sophistication

of these tests, they could have revealed

an arguably private fact.” (Ibid.)

As in Mulder, the facts of this case

do not warrant the extension of the

Jacobsen field test case to laboratory

A-24

testing. They involved testing in a

police laboratory the day after the

seizure and there is no evidence that the

lab tests were limited only to those which

would reveal the presence of contraband

drugs. Moreover, because no exigency

existed once the law enforcement officers

had secured the bottles and removed them

to police headquarters, a warrantless

search could not be justified on any other

basis. (Walter v. United States, supra,

447 U.S. at p. 657.)+

1. The People contend that the

search was legal because the air cargo

and airline personnel gave their consent

to the search, or that defendant

impliedly consented to the search

because once he entered the “package

shipment area, he was confronted with

signs warning him that all packages were

subject to inspection for explosives,

etc.” These contentions are without

merit. The People’s argument,

unsupported by any authority, that third

party consent by airport personnel

rendered the warrantless laboratory

tests legal is specious, especially

because at the time the laboratory tests

were run it had been determined that the

bottles contained “some sort of drug,”

rather than explosives. Moreover, the

A-25

IV

SUPPRESSION OF THE EVIDENCE AS THE

“FRUIT OF THE POISONOUS TREE"2!/

Defendant contends the evidence

discovered in the search of his dorm room

and storage room pursuant to a search

warrant, as well as the incriminating

statements he made to law enforcement

officers at the time of the search, must

be suppressed because they were elicited

based on “tainted” evidence obtained in

the warrantless laboratory tests. The

People failed to carry their burden to

show that warning signs about

inspections were posted in the air

freight facility when defendant took the

package there for shipment. A witness

was asked whether there were such signs

posted in the facility on the day

defendant brought in the package

containing the bottles. He stated that

there should have been a sign on the

counter of the facility, but could not

recollect whether a sign was in fact

posted there on that day. (See United

States v. Davis (9th Cir. 1973) 482 F.2d

893, 914-915.)

2. Wong Sun v. United States

(1963) 371 U.S. 471, 488.

A-26

People do not deny that the search warrant

was based on tainted evidence; however,

they argue that the evidence was properly

admitted under the “good faith exception”

to the exclusionary rule established in

United States v. Leon (1984) 468 U.S. 897.

In Wong Sun v. United States, supra,

371 U.S. at page 488 our Supreme Court

held that evidence which “has been come at

by exploitation of [a primary] illegality”

rather than “by means sufficiently

distinguishable to be purged of the

primary taint,” must be suppressed

pursuant to the exclusionary rule. In the

case at bench, there has been no assertion

by either party that the physical evidence

and admissions in question were gotten at

by means separate from the illegal

warrantless laboratory tests. Thus, the

search warrant was obtained and the

evidence gathered by exploitation of a

primary illegality. Under Wong Sun, the

-———

A-27

trial court erred in failing to suppress

this evidence pursuant to the exclusionary

rule.

United States v. Leon, supra, 468

U.S. at page 922, recognized a good faith

exception -_ the exclusionary rule. In

Leon, police conducted a search pursuant

to a warrant which later proved to be

lacking in probable cause but which was

not legally deficient on its face. (lId.,

at p. 926.) The Supreme Court held that i

“the marginal or nonexistent benefits

produced by suppressing evidence obtained

in objectively reasonable reliance on a

subsequently invalidated search warrant

cannot justify the substantial costs of

exclusion.” (Id., at p. 922.) In

reaching its decision, the court pointed

out that the purpose of the exclusionary

rule is "to deter police misconduct rather

than to punish the errors of judges and

magistrates.” (Id., at p. 916.) It

A-28

stated that “[i]f exclusion of evidence

obtained pursuant to a subsequently

invalidated warrant is to have any

deterrent effect, ... , it must alter

the behavior of individual law enforcement

officers or the policies of their

departments.” (Id., at p. 918.) The

court concluded that "suppression of

evidence .. . should be ordered only on a

case-by-case basis and only in those

unusual cases in which exclusion will

further the purposes of the exclusionary

rule.” (Ibid.) The court ruled that the

exclusionary doctrine did not apply tc the

case before it, because to was a close

legal question as to whether there was in

fact probable cause to support the

warrant, and the defect in the warrant

could not have been apparent to the police

officers who sought and executed it.

(Id., at p. 926.)

A-29

Approaching this matter on a case-by-

case basis, as required by Leon, we must

conclude that it is one of those “cases in

which exclusion will further the purposes

of the exclusionary rule.” (Id., at p.

918.) Here, unlike in Leon, the law

enforcement officers obtained the search

warrant through exploitation of their

primary illegal behavior in conducting

laboratory tests on the contents of the

Pepsi bottles. Thus, imposition of the

exclusionary rule will work to deter this

illegal behavior, rather than to punish a

judicial or magisterial error. Though we

reach this conclusion reluctantly given

the very serious nature of defendant's

admitted transgressions, we feel that we

are compelled to do so by existing law.

We are aided in reaching the above

conclusion by U.S. v. Vasey (9th Cir.

1987) 834 F.2d 782, in which the circuit

court was also confronted with a case in

A-30

which tainted evidence obtained through an

illegal warrantless search was included in

the affidavit to support issuance of a

search warrant. (Id., at pp. 788-789.)

In Vasey, as here, the court concluded

that the Leon analysis did not apply

because the officers who obtained and

served the warrant were acting in bad

faith when they gathered and used the

tainted evidence. (Id., at p. 789;

accord: U.S. v. Villard (D.N.J. 1988) 678

F.Supp. 483, 490-493.) The Vasey court

also held that the action of the

magistrate in considering the evidence

offered to support the search warrant did

not “sanitize the taint of the illegal

warrantless. search,” because a magistrate,

working under time constraints and without

benefit of an adversarial hearing, “is

simply not in a position to evaluate the

legality” of [the warrantless] search.

(U.S. v. Vasey, supra, 834 F.2d at p. 789;

A~-31

accord: U.S. v. Villard, supra, 678

F.Supp. at p. 493. )+

Based on the above analysis, we hold

that the evidence obtained pursuant to the

search warrant, including both the

physical evidence and defendant's

incriminating statements made at the time

of the search, is subject to the

exclusionary rule. The trial court erred

in failing to exclude this evidence

pursuant to defendant's motion to

suppress.

3. The People also cite Rodriquez

v. Superior Court (1988) 199 Cal.App.3d

1453 to support their argument that the

Leon good faith exception applies to

this case. Rodriquez is inapposite,

however, since it does not involve the

use of tainted evidence to support the

search warrant in question.

i censreereneenennennn nena

A-32

DISPOSITION

Judgment reversed.

CERTIFIED FOR P ICATION

_/s/ Schulte

We concur:

/s/ Campbell

P.J.

/s/ Hews

J.

*Retired judge of the superior court

sitting under assignment by the

Chairperson of the Judicial Council.

A-33

APPENDIX B

{Filed February 15, 1989]

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

4th District, Division 2, No. E004695

$008103

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

IN BANK

PEOPLE

Vv.

STEPHEN EDWARD LEICHTY

Respondent's petition for review DENIED.

The request for an order directing

depublication of the opinion in the above-

entitled cause is DENIED.

/s/__Lucas

Chief Justice

AFFIDAVIT OF SERVICE BY MAIL

Attorney:

JOHN K. VAN DE KAMP

Attorney General of

the State of California

ESTEBAN HERNANDEZ

Deputy Attorney General

110 West A Street, Suite 700

San Diego, California 92101

No:

October Term, 1988

THE STATE OF CALIFORNIA,

Petitioner,

Vv.

STEPHEN EDWARD LEICHTY,

Respondent.

I, THE UNDERSIGNED, say: I am a citizen of the United States, am

18 years of age or over, employed in the County of San Diego in

which County the below stated mailing occurred, and not a party

to the subject cause, my business address being 110 West A

Street, Suite 700, San Diego, California 92101.

I have served the within PETITION FOR WRIT OF CERTIORARI as

follows: To Joseph F. Spaniol, Clerk, Supreme Court of the

United States, Washington, D.C. 20543, an original and forty-one

(41) copies, of which a true and correct copy of the document

filed in this cause is hereunto affixed; AND, by placing one copy

in a2 serarate envelope eddreceed for aan to esch sddressee named

7

as follows:

Dennis S. Tilton

Attorney at Law

155 W. Hospitality Lane, Ste.

San Bernardino, CA 92408

Court of Appeal

Fourth Appellate District

Division Two

303 West Fifth Street

San Bernardino, CA 92401

Martin J. Moshier, County Clerk

San Bernardino Superior Court

351 North Arrowhead Avenue

San Bernardino, CA 92415

Richard Price

Attorney at Law

355 North Sierra Way

San Bernardino, CA 92410

Robert Wandruff, Clerk

Supreme Court of California

350 McAllister St., Rm. 4250

San Francisco, CA 94102

Dennis Kottmeier

District Attorney

316 North Mountain View Ave.

San Bernardino, CA 92415

FOR DELIVERY TO: Hon. Clifton L. Allen

Each envelope was then sealed and with the postage prepaid

deposited in the wea 43 States mail by me at San Diego,

California, on the //&

day of April,

1989.

There is a delivery service by United States Mail at each place

60 addressed or regular communication by United States Mail

potwccn the pleco cf mailing and

csck piscs so addressed.

I declare under penalty of perjury that the foregoing is true and

correct.

Dated at San Diego, California, April YF 1989.

Subscribed and sworn to before

this - day of ween 1989.

\ thane VA in)

Notary Pub

+42 SAPS ALS ; ii™~

id wOTARY

4 r4 UTARY bum, ‘

; CORP.1) Ce Avs

| My Crema eye heed Y1 bye

a : Z { / Ad?

64142522

CECILIA C. GARCIA

n and for Lil)

lA

. eB

Jarge and State

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