# Petition for Writ of Certiorari — California v. Leichty

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1192%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1095

## Text

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

BEST AVAILABLE COPY |

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1192%3A1. Public record. Not legal advice.