# Petition — Robbins v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1836%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 443 U.S. 903 ## Text | 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1836%3A1. Public record. Not legal advice.