Petition — Robbins v. California

| Mi@ua Tala)

———AEL RODAK, JR., CLERK

~_—.-

——-

In the Supreme Court

OF THE

United States

Ocroser Term, 1978

No. 787567

JEFFREY RicHarp Rossins,

Petitioner,

vs.

Strate or CaLirorni,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal, State of California,

First Appellate District

MarsHatu W. Krause

Krause, Trman, Baskin, SHELL &

GRANT

Wood Island, Suite 207

60 E. Sir Francis Drake Blvd.

Larkspur, CA 94939

Telephone: (415) 461-4100

JoserH G. Baxter

Box 37, Main Street

Duncans Mills, CA 95430

Telephone: (707) 865-1511

Attorneys for Petitioner.

BOWNE-PERNAU WALSH * 1045 SANSOME ST. © &.F.,CA S4111 *¢ (415) 931-7682

Page

ee eg Sah. is nt chin bee sec ccns 1

Jurisdiction ......... SOURCE APE es eu ic Asis. cue dds do's -0's 2

IE Ee 2

Constitutional provision at issue ....................... ae

Ne chase sa csc aus ssceeeve 2

| ee en alo As cit a's Va nowisenae’s 3

ee aaa iw ody cans eda sews 4

Tee ce evn a Wins b-sns oe eens 5

The proceedings in the Trial Court ...................... 5

Proceedings in the Appellate Courts ..................... 6

CE ee 7

The Fourth Amendment’s warrant requirement is not subject to

an absolute “automobile exception” when seized items are

safeguarded within a securely closed package within a closed

luggage compartment in an automobile .................. 7

ee cave veces cececets 8

EES 9

C. The principles of the “automobile exception” .......... ll

II

The “automobile exception” is not limitless ............. os ae

Ill

RR lds edu soe tvs cecsans 20

TABLE OF AUTHORITIES

Cases

Cady v. Dombrowski, 413 U.S. 433 ......................... 8

Cardwell v. Lewis, 417 U.S. 583 (1974) ............... 18, 19, 20

Chambers v. Maroney, 399 U.S. 42 (1970) .. .7, 15, 16, 17, 18, 19, 20

Coolidge v. New Hampshire, 403 U.S. 433 (1971) ........ 9, 15, 18

Ex Parte Jackson, 96 U.S. 727 (1878) ....... Hover fy

Johnson v. United States, 330 U.S.10 ..................... 8

Mozzetti v. Superior Court, 4 C.3d 699 (1971) ............. 18

People v. Hamilton, 371 N.E.2d 1234 (C.A.I1L 1978) ........ 14

People v. Lands, 30 C.A.3d 487 (1973) ................... 13

Sanders v. State, 559 S.W.2d 704 (S.C. Arkansas 1978) .... 14

South Dakota v. Opperman, 428 U.S. 364 (1976) aha 18

State v. Dean, 574 P.2d 572 (Kan. App. 1978) .............. 14

EE OLE Te nT ETS ene at tT

li

TABLE OF AUTHORITIES

Cases

Page

State In Interest of D.H., 380 A.2d 295 (N.J. Super. 1977) .... 14

United States v. Chadwick, 433 U.S. 1 (1977) ..........

aaa t ~eoree © Bie BF 15, 20, 21

United States v. Finnegan, 568 F.2d 637 (9th Cir. 1977) ...... 14

United States v. Vallieres, 443 F.Supp. 186 (D.Conn. 1977) . 14

Wong Sun v. United States, 371 U.S. 471 (1963) ............ 9

Constitutions

United States Constitution:

Fourth Amendment ........... 2, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20

GS OES, SOUR OT el eS 7,8

Codes

See ray: I IN, SE Sassen cee bk oicwied a cc veee et 2

Other Authorities

Amsterdam, Perspectives on the Fourth Amendment (1974)

SMR IS A ce eee

In the Supreme Court

OF THE

United States

Octoser Term, 1978

No.

JEFFREY RicHarp Rossins,

Petitioner,

vs.

Srate or CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal, State of California,

First Appellate District

Petitioner, Jeffrey Richard Robbins, respectfully prays

that a writ of certiorari issue to review the judgment of

the Court of Appeal of the State of California in and for

the First Appellate District (1/Crim. 14387) entered in

this matter on May 22, 1978.

OPINION BELOW

The opinion of the Court of Appeal of the State of Cali-

fornia, First Appellate District and the subsequent amend-

ment thereto, and the order of the Supreme Court of

California on July 5, 1978, denying a petition for hearing,

none of which have been reported, are reproduced in the

appendix.

2

JURISDICTION

This court’s jurisdiction is invoked under 28 U.S.C.

§§ 1257 and 2101, this being a petition arising out of a

state criminal conviction. The petition is filed within 90 days

of July 5, 1978.

QUESTION PRESENTED

Is the Fourth Amendment violated by a ruling that

sealed luggage and packages contained in the trunk of an

immobilized automobile after the driver’s arrest may be

opened and inspected without warrant or emergency?

CONSTITUTIONAL PROVISION AT ISSUE

Amendment IV:

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable search

and seizures, shall not be violated, and no warrants

shall issue, but upon probable cause, supported by oath

or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.

STATEMENT OF THE CASE

The facts we state are undisputed in the record unless

otherwise indicated.’

*The following designations have been used in this brief: P.H.

(Reporter's Transcript of Preliminary Hearing); R.T.S. (Reporter's

Transcript of Special Suppression Hearing); R.T. Reporter’s Tran-

script on Appeal); R.T.J.S. (Reporter's Transcript of Judgment and

Sentencing ); C.T. (Clerk’s Transcript).

3

\ The Stop

On\ January 5, 1975 at 1:45 a.m., while traveling along

Interst 80 in the foggy and very cold morning hours,

Officer DePue of the California Highway Patrol observed

petitioner’s stationwagon, between one tenth and one

quarter mile distant, traveling on Nelson Road. (R.T.S.

4:16-28, 9:26-27, 5:1-7; R.T. 65:6-9)

Despite the difficult viewing conditions, which limited

visability to one quarter of a mile, Officer DePue formed

an opinion that petitioner was driving too slowly. (R.T.S.

6:2-3) It was later established that this opinion was mis-

taken and based upon DePue’s mistaken belief that the

speed limit on Nelson Road was much higher than it actually

was. (R.T. 202:13-28, 229 :26-239 :9, 240 :5-241 :19)

Viewing the distant scene in this false light, DePue

likewise believed he observed petitioner twice cross over

the broken yellow road line, once three feet and once a full

vehicle width. (R.T. 6:9-16, 7:24-8:4) DePue, however,

never testified that his limited view of the distant scene

allowed him to determine whether these alleged maneuvers

were in violation of law.

Upon exiting the freeway Officer DePue and his partner,

Officer Stoltz, stopped petitioner to question him about his

driving. Since the road did not have a shoulder, petitioner’s

vehicle was stopped in the middle of the right hand road-

way. (R.T. 75:8-19)

Petitioner stepped out of his stationwagon and produced

his driver’s license. (R.T.S. 8:11-22) Asked to produce a

registration, petitioner returned to his car and proceeded

to look for the registration. (R.T.S. 8:25-28) While the

4

door was opened Officer DePue detected the odor of burned

marijuana. (R.T.S. 9:28-10:21) Immediately upon receiving

petitioner’s registration, DePue arrested petitioner for

driving under the influence of marijuana. (R.T.S. 20 :20-25,

9 :16-17)

The Automobile Search

A search of the passenger compartment then followed.

Several entries were made into the vehicle which yielded

evidence to support the basis for the arrest: two pairs of

tweezers, one with a hand-rolled cigarette butt, and a cookie

tin containing cigarette papers and approximately 4th

oz. of marijnana. (R.T.S. 11:27-12:9, R.T.S. 17:17-18:12,

P.H. 25 :4-5)

While this search took place Robbins was kept spread-

eagled against his still-running car, breathing in the fumes

from its exhaust. (P.H. 7:11-16, R.T.S. 10:21-25, R.T. 80:17-

18) At some point he was overcome by these fumes and

fell into the middle of the oncoming roadway, where he

vomited.

Still standing outside in what Officer DePue described

as a very cold night, Robbins was swallowing rapidly and

perspiring profusely. (R.T.S. 14:15-16, 9:26-27) He began

saying irrational things and looked wild-eyed. (R.T.S.

15:12-17, P.H. 26-28) He was then handcuffed. (R.T.S.

15.12-28) Shortly thereafter Robbins allegedly stated to

Sergeant Stoltz, “What you are looking for is in the back.”

(R.T.S 15:26-16:6, R.T. 120:23-25) Robbins was then re-

moved from the cold and placed in the patrol vehicle. (R.T.

50 :8-12)

5

The Luggage Search

Removing the keys from the petitioner’s ignition, DePue

unlocked and opened the tailgate of the wagon. (R.T.

50:13-15) Picking up the floor rug, DePue discovered a

luggage compartment under the floor in the rear deck of

the wagon. (P.H. 22:16-18) Pulling a handle set flush into

the deck, DePue opened the luggage compartment and

observed therein two pieces of luggage and two sealed

packages. (Id. P.H. 23 :7-24 :6)

DePue proceeded to open up these items. He first opened

up a brown leather tote bag and discovered a masonry

jar and three white plastic bags, each of which was double

taped. (R.T. 133:6-7) After they were opened these items

were found to contain a total amount of marijuana in

excess of one pound. (P.H. 25:9-13)

DePue next removed and opened a brown leather brief-

case and rummaged through petitioner’s clothing. (P.H.

13:17-18, R.T. 54:28-55:9) DePue then removed a package

wrapped in opaque green plastic and sealed closed. (P.H.

13:28-14:21, R.T. 57:20-17) Upon opening the package

DePue discovered a block of marijuana weighing approxi-

mately fifteen pounds. (P.H. 25:6-8) Finally, DePue

removed and opened a similar package containing approxi-

mately the same amount of marijuana. (Jd.)

The Proceedings In The Trial Court

Petitioner was charged with counts of possession of

marijuana, possession of marijuana for sale, transporta-

tion of marijuana, and driving under the influence of a

drug.

On January 14, 1975 during the preliminary hearing in

the municipal court, petitioner’s counsel orally objected

to the introduction into evidence of all articles taken

during the warrantless search of the trunk. (P.H. 26) The

court reserved counsel’s objection but permitted the items

to be received in evidence. (P.H. 26-27)

On March 24, 1976 petitioner’s motion to suppress all

tangible evidence as obtained in violation of petitioner’s

constitutional rights came on for hearing and was denied.

(R.T.S. 2-37)

Petitioner was convicted of possession of marijuana,

possession for sale, and transportation of marijuana, but

found not guilty of driving under the influence of a drug.

Petitioner was sentenced to prison for a term of five years

to life and has been released on bail pending this Petition

after serving only a portion of this sentence.

Proceedings In The Appellate Courts

On May 9, 1978 the Court of Appeal, First Appellate

District, reaching the merits of the Fourth Amendment

contention, affirmed the conviction below. (Appendix) The

court upheld the warrantless search of the luggage and

sealed packages in the luggage compartment “as falling

within the exception authorizing warrantless searches of

automobiles and their contents where there is probable

cause.” (Opinion at p. iv, App.)

On July 5, 1978 the Supreme Court of the State of

California denied a petition for hearing.

eee

7

REASONS FOR GRANTING THE WRIT

I

THE FOURTH AMENDMENT’S WARRANT REQUIRE-

MENT IS NOT SUBJECT TO AN ABSOLUTE

“AUTOMOBILE EXCEPTION” WHEN SEIZED

ITEMS ARE SAFEGUARDED WITHIN A SE-

CURELY CLOSED PACKAGE WITHIN A CLOSED

LUGGAGE COMPARTMENT IN AN AUTOMOBILE.

The issue in this case arises under the Fourth Amend-

ment’s Warrant Clause as applied to state action under the

Fourteenth Amendment. Petitioner’s conviction is founded

upon the evidence secured during the warrantless search

of the inner contents of luggage and securely wrapped

packages which had been safeguarded in the luggage com-

partment of his stationwagon.

At the time of this search petitioner had already been

arrested for driving under the influence of marijuana (for

which he was later found not guilty). Petitioner was both

handcuffed and locked into the back seat of the highway

patrol cruiser. Petitioner’s aute had been immobilized and

a decision had been made by the police to impound it. Thus

the luggage and packages were immobilized and within

the exclusive dominion and control of police authority

from the moment of their discovery. Conceding as we must’

under Chambers v. Maroney, 399 U.S. 42 (1970) that

petitioner’s automobile could be thoroughly examined by

the arresting officers, we raise the question of whether this

examination extends lawfully to warrantless and non-

2We reserve the right to agree with the dissent of Mr. Justice

Harlan in Chambers v. Maroney, infra, should this Petition be

granted.

8

emergency inspection of the contents of sealed packages

and luggage. ,

The luggage and securely wrapped packages could have

easily been removed from the luggage compartment to the

police station in their original sealed condition. It is not

claimed that there was any police necessity for rummaging

through petitioner’s luggage and packages in the middle

of a dark and foggy roadway. On the contrary, the police

conduct unnecessarily prolonged a highway hazard.

Nor has the state or any court claimed that petitioner,

who was physically sick and exhausted, irrational and

emotionally beaten at the time of his alleged statement,

“What you are looking for is in the back,” knowingly and

voluntarily waived his Fourth and Fourteenth Amendment

rights.

A. Warrant Clause

While “[t]he ultimate standard set forth in the Fourth

Amendment is reasonableness . . . ‘except in certain care-

fully defined classes of cases, a search of private property

without proper consent is unreasonable unless it has been

authorized by a valid search warrant.’ Camera v. Munici-

pal Court, 387 U.S. 523, 528-529 (1967).” Cady v. Dom-

browski, 413 U.S. 483 (1973). The constitutional policy

of the Fourth Amendment is to place the deliberate judg-

ment of the magistrate between the citizen and the police

_ whenever practicable. Mr. Justice Jackson, writing for

the court in Johnson v. United States makes the classic

statement of this policy:

The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies

9

law enforcement the support of the usual inferences

which reasonable men draw from evidence. Its pro-

tection consists in requiring that those inferences be

drawn by a neutral and detached magistrate instead

of being judged by the officer engaged in the often

competitive enterprise of ferreting out crime.

When the right of privacy must yield to the right of

search is as a rule, to be decided by a judicial officer,

not by a policeman or government enforcement agent.

333 U.S. 10, 13-14.

See also Coolidge v. New Hampshire, 403 U.S. 433, 449

(1971); United States v. Chadwick, 433 U.S. 1, 9 (1977);

Wong Sun v. United States, 371 U.S. 471, 481-482 (1963).

Thus, whether Officer DePue had probable cause to

search the contents of petitioner’s luggage and securely

wrapped packages is not relevant to the question we raise.

The Warrant Clause was designed to avoid the type of

hurried and sweeping inference-reaching process involved

in DePue’s decision to search when no exigency was pre-

sented and privacy was obviously desired by petitioner

by reason of the sealed nature of the packages opened and

by reason of their location in the closed trunk. This court

should squarely so rule.

B. United States v. Chadwick

Except for the possibility that automobiles and every

square inch of even the most private of their contents are

categorically exempt from the Warrant Clause, we believe

that luggage and sealed package cases such as ours should

be controlled by this court’s landmark decision in United

States v. Chadwick, 433 U.S. 1 (1977) and its cornerstone,

Ex Parte Jackson, 96 U.S. 727 (1878).

10

In Chadwick the police had probable cause to telieve

that a footlocker placed in an automobile trunk contained

marijuana. The footlocker had been seen to be leaking

talcum powder, a substance used to mask the odor of

marijuana and hashish. A trained dog released near the

footlocker also signaled the presence of marijuana. Before

the car could pull away an arrest was made of Chadwick,

while the footlocker was seized and taken into federal

custody. One and a half hours later the footlocker was

opened without a warrant. Large amounts of marijuana

were found.

This court held that since there was no exigency, the

warrantless search violated the Fourth Amendment. To

reach its decision in Chadwick, this court reaffirmed the

century-old principles of Ex Parte Jackson, 96 U.S. 727,

733 (1878), extending the protection of the Warrant

Clause to papers and packages “closed against inspection,

wherever they may be.” 433 U.S. at 10. After a compre-

hensive review of the cases extending the Warrant Clause

outside the home, the Chief Justice, writing for the Court,

stated :

... These cases . . . reflect the settled constitutional

principle . . . that a fundamental purpose of the

Fourth Amendment is to safeguard individuals from

unreasonable invasions of legitimate privacy and not

simply those interests found inside the four walls of

the home. Wolf v. Colorado, 338 U.S. 25, 27 (1949).

In this case, important Fourth Amendment privacy

interests were at stake. By placing personal effects

inside a double-locked footlocker, respondents mani-

fested an expectation that the contents would remain

free from public examination. . . . [O]ne who safe

11

guards his personal possessions in this manner is due

the protection of the Fourth Amendment Warrant

Clause. There being no exigency, it was unreasonable

for the government to conduct this search without

the safeguards a judicial warrant provides. 433 U.S.

at 11.

The words of Chadwick should also control in cases of

properly stopped vehicles in transit which contain in

closed compartments luggage and sealed packages, items

securely “closed against inspection,” under circumstances

where it is reasonable to have “an expectation that their

contents would remain free from public examination.”

Safeguarding “personal possessions in this manner is due

the protection of the Fourth Amendment Warrant

Clause.”

Petitioner, indeed, manifested a greater expectation of

privacy than did Chadwick. Petitioner safeguarded his

luggage and packages by sealing them and storing them

in the privacy of a covered and recessed luggage compart-

ment. Chadwick, by contract, launched his olfactable lug-

gage to pass on its own through the hands of third parties

and exposed it to public sight and smell while leaking

talcum powder. If Chadwick is not to be thought of as

flotsam in the sea of precedent, packages exhibiting the

seals of privacy must have the same protection under the

Warrant Clause when there is no exigency.

C. The Principles of the “Automobile Exception”

United States v. Chadwick, supra, should thoroughly

dispose of the claim that automobile search cases are in-

- variably different in principle from the scope of the War-

12

rant Clause as described in Ex Parte Jackson, supra. Yet

the opposite is true. As we point out below, Chadwick has

not been applied to the automobile search which extends

to sealed packages.

In Chadwick, the Chief Justice noted that the treat-

ment of the automobile under the Fourth Amendment is

based upon two factors:

1. the automobile’s “inherent mobility;” 433 U.S.

at 12;

2. “the diminished expectations of privacy which

surround the automobile.” (Id.)

The Court holds that though these factors applied to

Chadwick’s automobile, they do not apply to the foot-

locker seized from the trunk of the automobile. The fac-

tors which diminish the privacy aspects of an automobile

do sot apply to luggage contents:

The factors which diminish the privacy aspects of an

automobile do not apply to respondent’s footlocker.

Luggage contents are not open to public view, except

as a condition to a border entry or common carrier

travel; nor is luggage subject to regular inspection

and official scrutiny on a continuing basis. Unlike an

automobile, whose primary purpose is transportation,

luggage is intended as a repository of personal

effects. 433 U.S. at 13.

Nor does the factor of mobility any longer apply to

luggage and packages once they are within police cus-

tody:

Nor does the footlocker’s mobility justify dispensing

with the added protection of the Warrant Clause... .

The initial seizure and detention of the footlocker,

13

the validity of which respondents do not contest, were

sufficient to guard against any risk that evidence

might be lost. With the footlocker safely immobilized,

it was unreasonable to undertake the additional and

greater intrusion of a search without a warrant. 433

US. at 13.

Dealing with a general rule for closed packages and

luggage within an auto, we perceive no reason why Chad-

wick should not carry the day. The factors which diminish

the privacy aspects of an automobile and its contents do

not apply to the closed luggage and packages seized from

a closed luggage compartment. That compartment, in pe-

titioner’s case covered by a rug, was only discovered after

removing the keys from the ignition and unlocking the

tailgate. Just as in Chadwick, the contents of the luggage

and packages therein would not be “open to public view

except as a condition of border entry.”

Nor does the prior mobility of the luggage and pack-

ages within petitioner’s stationwagon add anything new

once the vehicle has been stopped, its handcuffed driver

had been locked into the patrol cruiser, and the luggage

and packages had been seized. Indeed, more than any-

thing else, United States v. Chadwick stands for the prop-

osition that when an object is of seizable size its prior

*A vehicle inspection might require the age of the trunk,

but not the opening of packages in the trunk. California vehicle

storage might necessitate the listing of items in plain view but

not —_ of closed packages. Mozzetti v. Superior Court,

4 C.3d 699, 707, 712 (1971); People v. Lands, 30 C.A.3d 487, 492

(1973). See also R.T. 216. The only time that luggage or sealed

packages in a trunk could themselves be opened would be at the

time of border entry. United States v. Chadwick, 433 U.S. 1, 13.

This, however, is because of the border entry itself and not because

of the automobile and is a rule of broad application, not just to

automobiles.

14

mobility is constitutionally irrelevant once the police ex-

ercise dominion and control over the object:

Even though on this record the issuance of a warrant

by a judicial officer was reasonably predictable, a line

must be drawn. In our view, when no exigency is

shown to support the need for an immediate search,

the Warrant Clause places the line at the point where

the property to be searched comes under the ex-

clusive dominion of police authority. 433 U.S. at 15.

Four state appellate courts and one federal district

court have therefore followed this court’s decisions in

Chadwick, supra, and held that the so-called “automobile

exception” does not extend to searches of luggage contents

within an automobile. Sanders v. State, 559 S.W.2d 704

(S.C. Arkansas 1978) ; State v. Dean, 574 P.2d 572 (Kan.

App. 1978) ; State In Interest of D.H., 380 A.2d 295 (N.J.

Super. 1977); People v. Hamilton, 371 N.E.2d 1234, 1238-

1239 (C.A.Ill. 1978); United States v. Vallieres, 443 F.

Supp. 186, 191 (D.Conn. 1977).

Both the Ninth Circuit Court of Appeals, United States

v. Finnegan, 568 F.2d 637 (9th Cir. 1977) and the Cali-

fornia Court of Appeal in this case have held quite the

opposite, that the automobile exception is absolute.

II

THE “AUTOMOBILE EXCEPTION” IS NOT

LIMITLESS

Having established that traditional Warrant Clause

principles compel holding that the warrantless search

inside petitioner’s luggage and sealed packages violated

the Fourth Amendment’s Warrant Clause, the crucial

15

issue is whether an “automobile exception” exists in some

absolute sense, outside even its own policy boundaries.

If so, the Warrant Clause has no application, so long as

a search could properly be labeled as a probable cause

“automobile” search. By this view, United States v. Chad-

wick could be distinguished as not properly an “automo-

bile” search because of the brevity of the contract with

the automobile.

This was apparently the view of the California Court

of Appeal in upholding the warrantless seizure in this

case. That court read Chambers v. Maroney, 399 U.S. 42

(1970) as a declaration of an absolute freedom from the

Warrant Clause for everything inside of an automobile

irrespective of the scope of the privacy invasion and con-

siderations of exigency, so long as probable cause to

search exists. According to the opinion below, “United

States v. Chadwick ... did not call into question the con-

tinued effectiveness of the automobile exception.” (Ap-

pendix A, p. v).

This approach to constitutional law allows the determi-

nation of whether a precious constitutional right exists to

turn on the glib and grim supposition that automobiles

have been entirely read out of the Warrant Clause. The

decisions of this Court, we believe, are not meant to sup-

port such a view of constitutional rights. As Mr. Justice

Stewart states for the court in Coolidge v. New Hamp-

shire, 403 U.S. 483, 461-62 (1971):

‘The word “automobile” is not a talisman in whose

presence the Fourth Amendment fades away and dis-

appears.

16

Contrary to the contention of the California Court

of Appeal and similar holdings we have mentioned,

Chambers v. Maroney, 399 U.S. 42 (1970) does not create

an “automobile exception” absolutely authorizing warrant-

less searches of automobiles and all of their contents on

probable cause alone. Chambers involved an automobile

escaping from a gun robbery of a gas station. It was the

search of the car which yielded the guns used as evidence

against the defendants. They were discovered in a com-

partment under the dashboard, but not in sealed packages

or luggage. No search of luggage or sealed packages took

place. The Court upheld the search as follows:

On the facts before us, the blue stationwagon could

have been searched on the spot when it was stopped,

since there was probable cause to search and it was

a fleeting target for a search. 399 U.S. at 52.

The Court then upheld a search at the stationhouse

since “there is little to choose in terms of practical conse-

quences between an immediate search without a warrant

and the car’s immobilization until a warrant is obtained.”

399 U.S. at 52. This second aspect of the holding, the

stationhouse search, was based upon the right to search

the automobile at the scene of the stop. It does not elimi-

nate warrant considerations for everything within an

automobile.

If it were a constitutional principle that the Warrant

Clause had no application to anything within an automo-

bile, dangerous consequences, antithetical to principles of

privacy and security, would ensue. A stopped motorist,

as to whom there was probable cause that he might be

carrying contraband, would have his locked briefcase

— ——

17

searched, no matter how confidential. An attorney could

not prevent the files of his cases from being looked

through, a government employee carrying confidential

papers for use in a sensitive governmental decision not

yet for public release would expose that decision to public

view, and in a stop involving alleged bad checks or other

papers which might be evidence of crime, every paper in

the automobile could be read without warrant.

Suppose federal agents stop an automobile containing

two individuals. The passenger is wanted for tax evasion.

The trunk of the car contains a locked safe. The driver

of the car claims that the safe is his and that it contains

his confidential papers. Federal agents disbelieve this and

think that the safe contains the suspect’s confidential

papers which may help to establish their case. The agents,

under the decision under review, may open the safe with-

out warrant. Thus there would be irretrievable damage

from a breach of the security and privacy which the

Fourth Amendment is meant to protect from warrantless

scrutiny.

Obtaining a warrant would allow such closed packages

to be searched on probable cause without risk that their

use as evidence would be reduced. But the magistrate

could put limits on the scope of the search and require

a prompt inventory of all contents. These protections are

not waived in all circumstances merely by riding in a car.

In Chambers, no right to search packages or luggage

closed against inspection was claimed. This court there-

fore carefully notes that certain types of automobile

searches might require the extra protection of privacy af-

forded by a warrant:

18

Neither Carroll, supra, nor other cases of this court

require or suggest that in every conceivable circum-

stance the search of an auto even with probable cause

may be made without the extra protection for privacy

that a warrant affords. 399 U.S. 42, at 50.

In South Dakota v. Opperman, 428 U.S. 364, another

automobile search case, this court, after noting that auto-

mobile searches must always be tested against the consti-

tutional mandate of reasonableness, quotes Mr. Justice

Black:

The test of reasonableness cannot be fixed by per se

rules; each case must be decided by its own facts. Id.

at 373, quoting Coolidge v. New Hampshire, 403 U.S.

at 509-510 (Justice Black, concurring and dissenting.)

Mr. Justice Powell, after a thorough review of this

court’s automobile search cases also carefully notes:

[T']hese decisions establish no general “automobile

exception” to the warrant requirement. See Preston

v. United States, 376 U.S. 364 (1964). Rather they

demonstrate that ‘for the purposes of the Fourth

Amendment there is a constitutional difference be-

tween houses and cars’... a difference that may in

some cases justify a warrantless search. South Dakota

v. Opperman, 428 U.S. 364, 382 (1976) (J. Powell,

concurring) (Emphasis added.)

Justice Blackmun’s plurality opinion in Cardwell v.

Lewis, 417 U.S. 583 (1974) affirms this conclusion and

points to our standard. In that case the police obtained

a warrant for the arrest of Lewis who they suspected of

murder. After securing his arrest at the police station

they towed his car from a nearby commercial parking lot

to a police impoundment lot. A warrantless probable

19

cause examination of the exterior revealed that a tire

matched the case of a tire impression made at the crime

scene and that paint samples taken from respondent’s car

were not different from foreign paint on the fender of the

victim’s car.

Justice Blackmun upholds the probable cause seizure

of the car under the authority of Chambers v. Maroney,

supra, (417 U.S. 583 at 593-595). In upholding the war-

rantless probable cause examination of the exterior Jus-

tice Blackmun notes on two separate occasions that the

result might be different where traditional privacy in-

terests are invaded:

Again, we are not confronted with any issue as to

the propriety of a search of the car’s interior.

‘Neither Carroll, supra, nor other cases of this court

require or suggest that in every conceivable circum-

stance the search of an auto even with probable cause

may be made without the extra protection for privacy

that a warrant affords.’ 399 U.S. at 592, n. 8.

... This is not to say that no part of the interior of

an automobile has Fourth Amendment protection; the

exercise of the desire to be mobile does not, of course

waive one’s right to be free from unreasonable gov-

ernment intrusion. But insofar as Fourth Amend-

ment protection extends to a motor vehicle, it is the

right to privacy that is the touchstone of our inquiry.

417 U.S. at 591.

We think this court ought to make it clear that the “auto-

mobile exception” does not swallow privacy interests in

packages and luggage.

20

III

CONCLUSION

Encounters between citizens and police on the highway

are one of the principal testing points for the Fourth

Amendmert. The present conflict surrounding the scope of

Fourth Amendment rights on the highway is not solved.

Despite repeated assertions to the contrary by many mem-

bers of this Court, lower courts still adhere to the view

that Chambers v. Maroney, 399 U.S. 42, creates an absolute

exception to the Warrant Clause which is independent of

constitutional principles. So long as this misunderstanding

is allowed to persist many police authorities will undoubt-

edly exploit it, giving rise to many judicial proceedings

infected by constitutional error.

This court can now call an end to the confusion which

has so long surrounded the so-called “automobile excep-

tion.” See Amsterdam, Perspectives on the Fourth Amend-

ment (1974) 58 Minn.L.Rev. 349. The opinions of this

court have fully distilled an absolutely clear set of guide-

lines which need only be implemented to be better under-

stood. The Fourth Amendment right to the impartial and

deliberate judgment of a judicial officer does not turn on a

choice of words. Insofar as the protection of the Warrant

Clause extends to a motor vehicle or its contents, “it is the

right to privacy which is the touchstone of our inquiry.”

Cardwell v. Lewis, 417 U.S. 583, 591. This court’s landmark

decision in United States v. Chadwick, 433 U.S. 1 fully

states this constitutional command:

Even though on this record the issuance of a warrant

by a judicial officer was reasonably predictable, a line

must be drawn. In our view when no exigency is shown

21

to support the need for an immediate search, the War-

rant Clause places the line at the point where the

property to be searched comes under the exclusive

dominion of police authority. Jd. at 16.

For these reasons a Writ of Certiorari should be granted.

Dated, September 29, 1978.

Respectfully submitted,

JosEPH G. BaxtTER

Marsuauu W. Krause

Attorneys for Petitioner.

(Appendices Follow)

Appendices

Appendix A

NOT TO BE PUBLISHED

IN OFFICIAL REPORTS

In the Court of Appeal

of the

State of California, First Appellate District,

Division Four

1/Crim. 14387

(Superior Court 10357)

The People, 7

Plaintiff and Respondent,

Vs. .

Jeffrey Richard Robbins,

Defendant and Appellant.

2

[Filed May 9, 1978]

OPINION

Jeffery [sic] Richard Robbins appeals from a judgment

of imprisonment which was rendered after a jury found him

guilty of possession of marijuana (Health & Saf. Code,

§ 11357), possession of marijuana for sale (Health & Saf.

Code, $ 11359) and transportation of marijuana (Health

& Saf. Code, § 11360). The notice of appeal designated both

the judgment and the order denying the motion to suppress

evidence; the latter order is not appealable (People v.

Jochen (1975) 46 Cal.App.3d 243) and the purported ap-

peal from it is to be dismissed.

ii

On January 5, 1975, at 1:45 a.m., California Highway

Patrol Officer DePue noticed appellant driving eastbound

on Nelson Road which parallels Interstate Route 80. As

DePue watched from his position on Interstate 80 (about

1/10 of a mile from appellant), appellant crossed the

center line of the road twice, once the full width of the

ear. DePue thought that appellant’s speed was excessively

slow. DePue and his partner, Sergeant Stoltz, followed

appellant and stopped him “to determine why [he] was

operating outside of a marked road lane.”

Appellant immediately stepped out of his vehicle and

approached the Highway Patrol car, meeting DePue half-

way between the vehicles. DePue asked for Robbins’ opera-

tor’s license and evidence of registration. Appellant per-

spired heavily, swallowed rapidly, had watery bloodshot

eyes and had difficulty in removing his license from his

wallet. DePue, who followed Robbins to the car, smelled

the odor of burned marijuana when appellant opened the

door. The officer also saw smoke in the car’s interior.

DePue patted appellant down for weapons and found

only a vial of liquid. The officers saw on the front seat of

the passenger compartment a pair of tweezers of a type

used to hold marijuana roaches. DePue entered the car to

get these tweezers and was interrupted when appellant

began to vomit in the road. Two further entries of the

passenger compartment by DePue yielded two pairs of

tweezers, one with a burned hand-rolled cigarette butt, and

a cookie tin which contained two packs of cigarette papers

and a plastic baggie containing marijuana.

While Officer DePue searched the passenger compart-

ment, appellant said to Sergeant Stoltz, “what you are

ae

iii

looking for is in the back.” The officers then placed appel-

lant in the patrol car and DePue searched the luggage

compartment of appellant’s automobile. This search yielded

two securely wrapped bricks of marijuana and a tote bag

containing another 2.2 pounds of marijuana. Appellant

was advised of his Miranda rights about ten minutes after

the contraband was discovered. Prior to the warning ap-

pellant had made several voluntary statements, including

asking Sergeant Stoltz what it would take “to get out of

this.” Robbins then told Stoltz to check his left pocket,

which was found to contain $521.

I,

Appellant contends that the officers were not justified in

stopping his car. He points out that the arresting officers

were mistaken in their belief that the roadway being used

by appellant was a 55 mile-per-hour zone. In fact, the

posted advisory speed limit was apparently 35 miles per

hour; thus, the fact that appellant was driving only 30

miles per hour could not be taken as grounds for suspicion.

But other circumstances short of probable cause to make

an arrest may justify stopping a vehicle for investigation.

(People v. Mickelson (1963) 59 Cal.2d 448.) California

courts have upheld stops based on observation of erratic

driving (People v. Boddie (1969) 274 Cal.App.2d 408),

driving a truck in the dark without headlights (People v.

Norman (1975) 14 Cal.3d 929) and equipment violations

(People v. Grace (1973) 32 Cal. App.3d 447; Willett v. Su

perior Court (1969) 2 Cal‘App.3d 555). .

Appellant cites Wirin v. Horrall (1948) 85 Cal.App.2d

497, as a case where a vehicle stop was held to be based

iv

on insufficient cause, therefore precluding introduction of

evidence obtained in the subsequent search of the car. But

the Wirin case involved police blockades set up in Los

Angeles which resulted in stops and searches of vehicles

without any cause even to issue traffic citations. The

Michelson test is on the spectrum between the absence of

cause found in the Wirin stops and full probable cause to

arrest. In 1977, the United States Supreme Court set forth

the test for stops in circumstances short of probable cause

for arrest. (Pennsylvania v. Mimms (1977) ...... U.S. —.

[54 L.Ed.2d 331].) The case involved a stop to issue a

traffic ticket. The court held that the test is always the

reasonableness of a particular governmental invasion of a

citizen’s personal security. That reasonableness depends

on the balance between the public interest and the indi-

vidual’s right to personal security free from arbitrary in-

terference. (Pennsylvania v. Mimms, supra, citing Terry

v. Ohio (1968) 392 U.S. 1, and United States v. Brignoni-

Ponce (1975) 422 U.S. 873.) Therefore, probable cause to

issue a traffic citation is sufficient justification for a vehicle

stop. The officers saw a car weaving on a curving two-lane

road. This observation gave reason to stop the driver “to

find out why [he] was operating outside of a marked road

lane,” e.g., for the purpose of protecting the public against

the hazard of a driver who inferably might be intoxicated

or too sleepy to drive safely. Appellant contends, citing

Mestas v. Superior Court (1972) 7 Cal.3d 537, 542, that to

uphold the lawfulness of the stop on that basis would go

beyond the factual basis established in the trial court. But

the purpose stated in the officer’s testimony was sufficient

to cover both the illustrations we have mentioned. It was

lawful to stop appellant’s car.

es

Vv

After the arresting officers learned that appellant was

in possession of marijuana, they searched the interior of

appellant’s vehicle, the luggage compartment, and the con- ~

tents of various packages and suitcases found in the in-

terior and luggage compartment of the vehicle. Appellant

does not dispute the existence of probable cause to search

the interior and trunk of the vehicle. However, he contends

that the warrantless search of the luggage and sealed

packages in the luggage compartment violated the Fourth

Amendment.

Appellant bases his argument on United States v. Chad-

wick (1977) 433 U.S. 1 [53 L.Ed.2d 538]. In Chadwick, the

United States Supreme Court held that the warrantless

search of a footlocker removed from the trunk of a ear

was not justified either by the automobile exception or as —

a search incident to an arrest. Chadwick is readily to be

distinguished from the present case. In Chadwick, federal

agents had been alerted to the possible presence of contra-

band in a footlocker which they had under surveillance long

before its placement in the automobile. While holding that

the automobile exception’ did not justify a warrantless

search under the particular circumstances, the decision

did not call into question the continued effectiveness of the

automobile exception. Recent California decisions have

upheld warrantless searches of automobiles even where

the element of exigency has ceased to exist (People v. Hill

(1974) 12 Cal.38d 731 [warrantless search of automobile

sustained although defendants were under arrest and their

car had been impounded]; People v. Superior Court

(Gutierrez) (1977) 69 Cal.App.3d 335 [warrantless search

1See Chambers v. Maroney (1970) 399 U.S. 42.

vi

of impounded automobile subsequent to arrest of defend-

ants for burglary upheld].) Here, the odor of marijuana

and presence of marijuana and paraphernalia in the in-

terior of the automobile, amplified by appellant’s voluntary

statement that what they were looking for was in the back,

gave ample cause to search the baggage compartment and

open suspicious-looking packages which they found there.

The case falls within the exception authorizing warrant-

less searches of automobiles and their contents where there

is probable cause.

Il.

Appellant contends that the trial court erred when

it refused to consider his renewed motion to suppress made

during trial. It is clear that once a defendant’s motion to

suppress evidence has been denied at a special Penal Code

section 1538.5 hearing in the superior court, the trial judge

should not entertain a renewed motion at trial unless there

is an intervening change in the applicable law or the dis-

covery of new evidence.’ (People v. Superior Court (Ed-

monds) (1971) 4 Cal.3d 605, 610.) :

On the second day of the trial, defense counsel moved

to suppress evidence, asserting that the posted speed limit

at the site of the arrest is 35 miles per hour rather than

55 miles per hour. The defense argued that this discovery

destroyed the probable cause necessary for the initial

stop. The motion was denied. Appellant contends that this

*Penal Code section 1538.5, subdivision ( “h

If, prior to the trial of a felony or misdemeanor, opportunity

for this motion did not exist or the defendant was not aware of

the grounds for the motion, the defendant shall have the right

to make this motion during the course of'trial in the municipal,

justice or superior court.

OE IO nc

Vii

is new evidence within the meaning of Penal Code section

1538.5, subdivision (h), and that the motion should have

been granted.

The Californa Supreme Court in People v. Martinez

(1975) 14 Cal.3d 533, 537, recognized a “due diligence”

limitation on the availability of a belated motion to sup-

press under section 1538.5, subdivision (h). The court

held that a motion to suppress raised at trial was properly

denied when based on information defense counsel could

have obtained at any time simply by interviewing his

client. The present case is similar. It may be questioned

whether appellant realized the actual speed limit prior

to trial. However, it is clear that defense counsel could

have discovered the true speed limit simply by visiting

the scene of the arrest, an act which falls within the scope

of due diligence. Under the Martinez limitatior appellant’s

motion to suppress at trial was properly denied. (See

People v. Burke (1974) 38 Cal.App.3d 708, 713.)

ITI.

Appellant contends and respondent concedes that the

sentence must be stayed as to the possession for sale

count. In People v. Sanders (1967) 250 Cal.App.2d 123, and

In re Adams (1975) 14 Cal.3d 629, the court recognized

that while possession for sale is a crime separate from

transporting, where both were part of an_ indivisible

course of conduct which has a single objective double

punishment would violate Penal Code section 654,

Appellant further contends that the offense of possession

must be included within the offense of possession for sale.

But the jury found appellant guilty of separate counts of

Vili

possession and possession for sale, upon evidence which

would support a determination that appellant possessed

distinct quantities of marijuana for different purposes: a

small amount in the cookie tin in the front of the car for

personal use, and a large amount in the sealed packages

in the baggage compartment for sale. The test for appli-

cability of Penal Code section 654 is, “If evidence discloses

that a defendant entertained multiple criminal objectives

which were independent of and not merely incidental to

each other, he may be punished for independent violations

committed in pursuit of each objective even though the

violations shared common acts or were parts of an other-

wise indivisible course of conduct.” (In re Adams (1975)

14 Cal.3d 629, 634, citing People v. Beamon (1973) 8

Cal.3d 625, 639.) The judgment must be upheld on both

possessory counts.

IV.

Appellant argues that California marijuana laws are

unconstitutional. Constitutional challenges to the mari-

juana laws have consistently been rejected. (See People

v. Glaser (1965) 238 Cal.App.2d 819; People v. Aguiar

(1968) 257 Cal.App.2d 597; People v. Oatis (1968) 264

Cal.App.2d 324.) In a related contention it is argued that

trial counsel manifested constitutional inadequacy when

he failed to challenge the validity of the laws proscribing

marijuana. It is not an indication of inadequacy for counsel

to withold making an unsound argument.

The purported appeal from the order denying the motion

to suppress evidence is dismissed. The judgment is modi-

ee eee Oe ee eee eee

ix

fied to stay the sentence as to the count of possession for

sale. As so modified the judgment is affirmed.

Christian, J.

We concur:

Caldecott, PJ.

Paik, J.*

°Under assignment by the Chairperson of the Judicial Council.

x i xi

Appendix B Appendix C

Inthe Court of A

of the ois | Clerk’s Office, Supreme Court

4250 State Building

State of California

San Francisco, California 94102

First Appellate District 7 July 5, 1978

In have this day filed Order

HEARING DENIED

In re: 1 Crim. No. 14387

Division Four

Crim. No. 14387

Superior Court No. 10357

People

People of the State of California, ; | ‘i be

Plaintiff & Respondent, obbins

= > | Respectfully,

Jeffrey Richard Robbins, | G. E, BisHen

Defendant & Appellant Clerk

BY THE COURT: |

The written opinion filed May 9, 1978 is ordered amended |

at page 6, lines 9 through 12, by deleting the citation

People v. Superior Court Gutierrez) (1977) 69 Cal App.

3d 335 [warrantless search of impounded automobile sub- |

sequent to arrest of defendants for burglary upheld].) in ‘

its entirety.

Dated May 22, 1978

Caupgcott, P.J.