Opposition — Penoli v. California

= ———_

IN THE Mc aM nici

Supreme Court of the United States >, CLERK

OCTOBER TERM 1978

No. 78-845

RAYMOND J. PENOLI, JR.,

Petitioner,

Vv.

THE STATE OF CALIFORNIA,

Respondent.

|

|

ON PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

FOR THE SECOND APPELLATE DISTRICT

BRIEF OF RESPONDENT IN OPPOSITION

GEORGE DEUKMEJIAN

Attorney General

JACK R. WINKLER

Chief Assistant

Attorney General

Criminal Division

DANIEL J. KREMER

Assistant Attorney General

ALAN 8. METH

Deputy Attorney General

JAY M. BLOOM

Deputy Attorney General

110 West A Street, Suite 600

San Diego, California 92101

Telephone: (714) 237-7750

Attorneys for Respondent

INTERIM PRINTING & MAILING COMPANY

1105 West MORENA BOULEVARD, SAN DIEGO, CALIFORNIA 92110 — 275-3050

TOPICAL INDEX

OPINIONS BELOW

JURISDICTION

STATUTES INVOLVED

QUESTIONS PRESENTED

STATEMENT OF THE CASE

STATEMENT OF FACTS

ARGUMENT

I

II

IIl

NOTHING IN UNITED STATES

v. CHADWICK

U.S. 1, INDICATES THERE

IS AN EXPECTATION OF

PRIVACY WITH REGARD TO

AUTOMOBILES IN THE SAME

MANNER THAT THERE WOULD

BE IN A FOOTLOCKER

POLICE MAY PROPERLY

CONDUCT A WARRANTLESS

SEARCH OF A VEHICLE

AFTER IT HAS BEEN

IMPOUNDED

CALIFORNIA DOES NOT

HAVE A SEPARATE INSTRU-

MENTALITY DOCTRINE WHICH

VIOLATES THE FOURTH

AMENDMENT RIGHTS OF

PERSONS

CONCLUSION

APPENDICES

13

15

17

- ii-

TABLE OF AUTHORITIES

Pages

CASES

Cardwell v. Lewis (1974) 417 U.S.

583 6,14

Carroll v. United States (1925)

267 U.S. 132 6,13

Chambers v. Maroney (1970) 399

U.S. 42 6,13,14,15,16

People v. Dumas (1973) 9 Cal.3d 871 15

People v. Hill (1974) 12 Cal.3d 731 15,16

People v. Laursen (1972) 8 Cal.3d

192 15,16

South Dakota v. Opperman (1976)

428 U.S. 364 6,14

Texas v. White (1975) 423 U.S.

67 14,15,16

United States v. Berry (7th Cir.

1978) 571 F.2d 2 13

United States v. Chadwick (1977)

433 U.S. 1 6,8,9,12,

13,14,16,17

United States v. Choate (9th Cir.

1978) 576 F.2d 165 13

United States v. Diaz (2d Cir.

1978) 577 F.2d 821 13

United States v. McGrath (S.D.N.Y.

1978) 448 F.Supp. 1338 9

* 735. °

TABLE OF AUTHORITIES

(Continued)

United States v. McLaughlin (5

(Sth Cir. 1978) 578 F.2d 1180

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

1976) 533 F.2d 578

United States v. Stevie (8th Cir.

1977) 578 F.2d 204

United States v. Trejo-Zambrano

(9th Cir. 1978) 582 F.2d 460

CONSTITUTIONS

United States Constitution

Fourth Amendment

Pages

13,14

14

13

13

16

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1978

No. 78-845

RAYMOND J. PENOLI, JR.,

Petitioner,

Ve

THE STATE OF CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

FOR THE SECOND APPELLATE DISTRICT

BRIEF OF RESPONDENT IN OPPOSITION

OPINIONS BELOW

The California Court of Appeal,

Second Appellate District, Division Three,

received petitioner's direct appeal from a

judgment of conviction. In an unpublished

opinion, the court found no merit to peti-

tioner's contentions and affirmed the

judgment. (Appen. B.)

JURISDICTION

This Court has jurisdiction to

consider this case pursuant to 28 U.S.C.

1257, subdivision 3.

STATUTES INVOLVED

The applicable statutes involved

are set forth in Appendix A.

QUESTIONS PRESENTED

1. Whether United States v.

Chadwick (1977) 433 U.S. 1, indicates there

is an expectation of privacy with regard to

automobiles in the same manner that there

would be in a locked trunk when Chadwick

has nothing to do with automobile searches

and does suggest that where automobiles are

involved there is a lesser expectation of

privacy.

2. Whether it is improper for

police to conduct a warrantless search of a

vehicle after it has been impounded where the

police had probable cause to search the vehi-

cle and exigent circumstances existed when

the vehicle was stopped.

3. Whether California has an

instrumentality doctrine justifying vehicle

searches in violation of the Fourth Amendment

or the doctrine is merely part of the deter-

mination of whether there is probable cause

to search a vehicle.

STATEMENT OF THE CASE

In a five count information

petitioner and Thomas Decker were charged

in count I with burglary (Cal. Pen. Code,

§ 459), in counts II-IV with concealin

stolen property (Cal. Pen. Code, § 496), and

- 3-

in count V with possession of burglary tools

(Cal. Pen. Code, § 466). (CT 1-4.)1/

After entering a not guilty plea,

petitioner's motion to suppress evidence pur-

suant to Penal Code section 1538.5 was heard

and denied as was a motion to dismiss the

info tion pursuant to Penal Code section

995.2)

Thereafter, petitioner entered a

guilty plea to the charge in count I as

second degree burglary. All other counts

were dismissed upon motion by the prosecu-

tion. (CT 6, 61-62.) Petitioner was

sentenced to state prison for the term pre-

scribed by law, but was granted bail pending

appeal. (CT 64-66.)

Petitioner appealed, and the

California Court of Appeal, Second Appellate

District, Division Three, affirmed the con-

viction in an unpublished opinion. (Appen.

B.) Thereafter, a hearing was denied by the

California Supreme Court. (Appen. C.)

1. CT refers to the clerk's transcript

of the proceedings before the San Luis Obispo

County Superior Court. RT refers to the re-

porter's transcript of the proceedings. If

this Court desires a copy of these transcripts,

respondent would be pleased to lodge them with

this Court. All references are to California

Statutes.

2. It was stipulated the court could

consider the preliminary hearing transcript

in ruling on the motion to suppress. (CT 61;

RT 109-111.) The preliminary Sistine is

reported at pages 2-104 of the reporter's

transcript.

STATEMENT OF FACTS

On October 10, 1976, Warren Davey

was staying at the Spyglass Motel in Pismo

Beach, California. He had a gold 1970

Lincoln parked by the motel. At about 10:00

a.m. he went out on the motel balcony and saw

a white Cadillac El Dorado with a black top

parked behind the trunk of his car. The pas-

senger door of the Cadillac was open and

right behind the trunk of Davey's car. Davey

also noted the trunk of his Lincoln was open

about four inches. The man standing by the

cars was Decker. Decker had sandy hair, was

about six feet tall, and about thirty years

old.

Decker apparently saw Davey and

spoke to another man inside the Cadillac.

This man was Penoli. Thereafter, they drove

away. Davey checked the trunk and found a

camera and camera case, his wife's coat, and

an overnight case were missing from the trunk.

Davey had closed the trunk the night before

and had locked the car. Davey called the

police, told them what had happened, and in-

dicated he had seen the white Cadillac turn

right on the freeway. He indicated the

Cadillac was a white El Dorado with a black

top, and had two men inside. One was six

feet tall and had light, sandy hair. The

other suspect was six feet tall and had dark

hair. (RT 4-9, 19.)

At about this same time, David

Griffith of the Pismo Beach Police Department

received a call indicating he should be on

the lookout for a black over white Cadillac

which had been involved in a "459 auto" at

the Spyglass Motel. The bulletin indicated

the vehicle had two male occupants. One occu-

pant had light colored hair, and both occupants

were white. Thereafter, he observed 'a black

over white Cadillac with two male occupants

« 5 =

and noted the driver had light colored hair.

He followed the vehicle, requested a backup,

and eventually stopped the vehicle. Penoli

and Decker were in the vehicle. (RT 49-53.)

Officer Holt of the Pismo Beach

Police assisted in the stop of the vehicle

and contacted Decker and Penoli. They denied

having committed the burglary. Holt had his

dispatcher contact Davey so Davey could come

to the scene. Davey arrived at the scene

about five to ten minutes later. This was

only 25 minutes after the burglary.

Davey told Holt he had seen a man

fitting Decker's description by his car and

Decker and Penoli had removed property from

his car. Davey said Penoli had been driving

the Cadillac and Decker had been the passen-

ger. Davey said he had seen Decker close the

trunk hood on his car, get in the Cadillac,

and leave the scene. (RT 63-68, 10-13, 88.)

After Davey had identified Decker and Penoli,

Holt arrested them for burglary. Various

items which were similar to items used for

picking locks were found on Decker and Penoli.

(RT 68-77.)

Decker and Penoli refused to con-

sent to a search of the Cadillac, the

Cadillac was taken to a gas station, and the

trunk was opened. Decker and Penoli were

transported to the police station. The trunk

was searched after the car had been impounded.

Various items, including the property taken

from Mr. Davey, were found in the trunk. The

xs —— was also searched. (RT

At the motion to suppress, Decker

and Penoli stipulated Officer Holt had a sub-

jective belief, whether reasonable or

unreasonable, that the trunk contained con-

traband. (RT 110-111.)

NOTHING IN UNITED STATES v.

CHADWICK (1977) 433 U.S. 1,

INDICATES THERE IS AN EXPEC-

TATION OF PRIVACY WITH REGARD

TO AUTOMOBILES IN THE SAME

MANNER THAT THERE WOULD BE

IN A FOOTLOCKER

Relying on United States v. Chadwick

(1977) 433 U.S. 1, petitioner contends there

is a right to privacy with regard to auto-

mobiles similar to that in locked trunks and

police thus may not conduct a warrantless

search of a vehicle. (Petn. 6-8.) This con-

tention is without merit.

Prior to United States v. Chadwick,

supra, this Court repeatedly upheld the right

of the police to conduct warrantless searches

of vehicles under varying circumstances. (See

Carroll v. United States (1925) 267 U.S. 132,

153-154; Chambers v. Maroney (1970) 399 U.S.

42; Cardwell v. Lewis (1975) 417 U.S. 583,

589.) The rationale behind these rulings and

similar rulings was that there was a different

expectation of privacy with regard to auto-

mobiles and a home or office.

As this Court noted in South Dakota

v. Opperman (1976) 428 U.S. 364, 367-368:

"This Court has traditionally

drawn a distinction between auto-

mobiles and homes or offices in

relation to the Fourth Amendment.

Although automobiles are ‘effects’

and thus within the reach of the

Fourth Amendment, Cad - Dombrowski,

413 U.S. 433, 439 (1973), warrant-

less examinations of automobiles

have been upheld in circumstances

in which a search of a home or

office would not. Cardwell v.

Lewis, 417 U.S. 583, 589 (1974);

Cady v. Dombrowski, supra, at 439-

; Chambers v. Maroney, 399 U.S.

42, 48 (1970).

"The reason for this well-

settled distinction is twofold.

First, the inherent mobility of

automobiles creates circumstances

of such exigency that, as a prac~

tical necessity, rigorous enforce-

ment of the warrant requirement is

impossible. Carroll v. United

States, 267 U.S. 132, ag tn

(1925); se v. New Hampshire,

403 U.S. 5 9-46 1 71 ° But

the Court has also upheld warrant-

less searches where no immediate

danger was presented that the car

would be removed from the juris~

diction. Chambers v. Maroney,

supra, at 51-52; Cooper v.

C f

alifornia, 386 U.S. (1967).

Besides the element of mobility,

less rigorous warrant requirements

govern because the expectation of

privacy with respect to one's auto-

mobile is significantly less than

that relating to one's home or

office. In discharging their varied

responsibilities for ensuring the

public safety, law enforcement

officials are necessarily brought

into frequent contact with auto-

mobiles. Most of this contact is

distinctly noncriminal in peg tt

Cady v. Dombrowski, supra, at °

Automobiles, unlike homes, are sub-

jected to pervasive and continuing

governmental regulation and con-

trols, including periodic inspection

and licensing requirements. As an

everyday occurrence, police stop

and examine vehicles when license

plates or inspection stickers have

expired, or if other violations,

such as exhaust fumes or excessive

noise, are noted, or if headlights

or other safety equipment are not

in proper working order.

"The expectation of privacy as

to automobiles is further diminished

by the obviously public nature of

automobile travel. Only two Terms

ago, the Court noted:

"'One has a lesser expectation

of privacy in a motor vehicle be-

cause its function is transportation

and it seldom serves as one's resi-

dence or as the repository of

personal effects. ... It travels

public thoroughfares where both its

occupants and its contents are in

plain view.' Cardwell v. Lewis,

supra, at 590." (Footnote omitted.)

Nothing in United States v. Chadwick,

supra, changed the well settled view of this

Court there was a lesser expectation of pri-

vacy with regard to automobiles than offices,

homes, or other items.

There, this Court merely held a

footlocker could not be searched without a

search warrant and noted the search could not

be justified as a search incident to arrest

or under a theory similar to the automobile

@ 9 «=

exception to the warrant requirement .3/ In-

deed, in concluding a theory similar to the

automobile exception to the warrant require-

ment could not be used to justify a search of

a footlocker, this Court reaffirmed its prior

holding justifying warrautless searches of

vehicles because of the lesser expectation of

privacy an individual has as to an automobile.

"But this Court has recognized

significant differences between

motor vehicles and other property

which permit warrantless searches

of automobiles in circumstances in

which warrantless searches would

not be reasonable in other con-

texts. Carroll v. United States,

267 U.S. 132 (1925); Preston v.

United States, supra, at 3006-367;

ambers v. Maroney, 399 U.S. 42

(1970). See also South Dakota v.

Opperman, 428 U.S. 3604, 367 (1976).

"Our treatment of automobiles

has been based in part on their

inherent mobility, which often

makes obtaining a judicial warrant

impractical. Nevertheless, we have

also sustained 'warrantless searches

of vehicles . . . in cases in which

the possibilities of the vehicle's

being removed or evidence in it

destroyed were remote, if not non-

existent.' Cady v. Dombrowski,

3; ah

413 U.S. 43 1-442 (1973); accord,

3. The government never argued the

search was justified under the automobile

exception to the warrant requirement. (United

States v. Chadwick, supra, at p. 11; see too

United States v. McGrath (S.D.N.Y. 1978) 448

F.Supp. 1338, 1342.

= 10 =

South Dakota v. Opperma supra, at

367; see Texas v. White.’ 4 U.S.

67 (1975)3 Chambers v. | Wrata

ab rai Cooper v. Ca v. California, 86

"The answer lies in the dimini-

shed expectation of ec which

surrounds the automobile:

"'One has a lesser expectation

of privacy in a motor vehicle be-

cause its function is transportation

and it seldom serves as one's resi-~

dence or as the repository of per-

sonal effects. ... It travels

public thoroughfares where both its

occupants and its contents are in

plain view.' Cardwell v. Lewis,

417 U.S. 583, 590 (1974) ( plurality

opinion).

"Other factors reduce automobile

privacy. ‘All States require vehi-

cles to be registered and operators

to be licensed. States and locali-

ties have enacted extensive and

detailed codes regulating the con-

dition and manner in which motor

vehicles may be operated on public

streets and highways.' Cady v.

Dombrowski, supra, at 441. Auto-

mobiles pe perio ically undergo

official inspection, and they are

often taken into police custody in

the interests of public safety.

South Dakota v. Opperman, supra,

8.

"The factors which diminish

the privacy aspects of an auto-

mobile do not apply to respondents’

footlocker. Luggage contents are

= 11 =

not open to public view, except

as a condition to a border entry

or common carrier travel; nor is

luggage subject to regular in-

spections and official scrutiny

on a continuing basis. Unlike

an automobile, whose primary func-

tion is transportation, Luggage

is intended as a big eg °

personal effects. In sun,

person's expectations of iniey

in personal luggage are substan-

tially greater than in an auto-

mobile.

"Nor does the footlocker's

mobility justify dispensing with

the added protections of the War-

rant Clause. Once the federal

agents had seized it at the rail-

road station and had safely trans-

ferred it to the Boston Federal

Building under their exclusive

control, there was not the

slightest danger that the foot-

locker or its contents could have

been removed before a valid search

warrant could be obtained. The

initial seizure and detention of

the footlocker, 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 intrusjon of a search with-

out a warrant,

"7 This may often not be the

case when automobiles are seized.

Absolutely secure storage facili-

ties may not be available, see

- oF S | » 43

South Dakota v. Opperman, 428 U.S. searches of vehicles based upon probable

364 (1976); Cady v. Dombrowski, cause and the existence of exigent circum-

413 U.S. 433 (1973), and the size stances. (See Chambers v. Maroney, supra;

and inherent mobility of a vehicle Carroll v. United States, supra.)

makes it susceptible to theft or

intrusion by vandals. Support for our argument here may

also be found in recent cases which indicate

"8 Respondents' principal pri- nothing in Chadwick overrules the prior deci-

vacy interest in the footlocker was, sion of this Court in Chambers v. Maroney,

of course, not in the container it- supra, authorizing warrantless searches of

self, which was exposed to public , vehicles based upon probable cause and the

view, but in its contents. A search existence of exigent circumstances. (United

of the interior was therefore a far States v. Trejo-Zambrano (9th Cir. 197

greater intrusion into Fourth Amend- F.2d 460, 3; United States v. McLaughlin

ment values than the impoundment of if (Sth Cir. 1978) 578 F.2d 1180, 1182-1183;

the footlocker. Though surely a United States v. Stevie (8th Cir. 1977) 578

substantial infringement of respon- i F.ed ’ -)

dents' use and possession, the

seizure did not diminish respon- Even assuming arguendo Chadwick

dents' legitimate expectation that somehow stood for the proposition asserted by

the footlocker's contents would petitioner, it would not assist petitioner

remain private. here. The search in the instant case occurred

long before the date Chadwick was decided

"It was the greatly reduced (June 21, 1977) and it has been repeatedly

expectation of privacy in the auto- held that Chadwick does not apply to searches,

mobile, coupled with the transpor- such as this one, which occurred before the

tation function of the vehicle, decision in Chadwick. (United States v. Berry

which made the Court in Chambers (7th Cir. 1978) 571 F.2d 7. 3; United States

unwilling to decide whether an v. Choate (9th Cir. 1978) 576 F.2d 165, 182,

immediate search of an automobile, n. 20 (U.S. appeal pending) ; peg ates Ve

or its seizure and indefinite im- Diaz (2d Cir. 1978) 577 F.2d 821, 824.

mobilization, constituted a greater

interference with the rights of the

owner. This is clearly not the

case with locked luggage." (United

States v. Chadwick, supra, at pp.

Thus, petitioner's first contention

is without merit.

12-14.) i II

Accordingly, nothing in Chadwick POLICE MAY PROPERLY CONDUCT

supports the conclusion this Court should A WARRANTLESS SEARCH OF A

abandon the power of law enforcement offi- VEHICLE AFTER IT HAS BEEN

cials to conduct warrantless searches of IMPOUNDED

vehicles under varying circumstances. Accor-

dingly, police may still conduct warrantless Petitioner next contends a locked

trunk of a vehicle is like the locked trunk

- 14 -

in Chadwick and police should thus not be

permitted to search the trunk of a vehicle

after it has been impounded as there are no

exigent circumstances existing at this time.

(Petn. 8-9. )

As noted in Argument I, supra,

Chadwick has nothing to do with automobile

searches, but does reaffirm the automobile

exception to the warrant requirement. More-

over, even if Chadwick did affect such

searches, it does not apply to this search

which occurred before the Chadwick decision.

Thus, the only question here is whether the

trunk search of an impounded vehicle was

proper under existing law regarding auto-

mobile searches.

Prior decisions of this Court have

repeatedly held police may conduct a warrant-

less search of a vehicle where the police

have probable cause to search the automobile

and exigent circumstances ex#st at the time.

Moreover, the police may impound a vehicle

under these circumstances and search the

vehicle later at the police station.

(Chambers v. Maroney, supra, 399 U.S. 42,

47-52; Cardwell v. Lewis, supra, 417 U.S.

583, 592-596; Texas v. White (1975) 423

U.S. 67; South Dakota v. Opperman, supra.)

Indeed, Texas v. White, supra, and United

States v. Chadwick, supra, suggest this

Court would now uphold warrantless vehicle

searches where there are no exigent circum-

stances if the police have probable cause to

search the vehicle. (See United States v.

McLaughlin, supra, at p. 1183; United States

v. Robinson (D.C. Cir. 1976) 533 F.2d 578,

586 (conc. opn. of Robb, J.).)

The record in the instant case

clearly reveals the police had probable cause

to search the vehicle. The Cadillac was

parked right behind Mr. Davey's car at the

7‘ ®

- 156

motel. Mr. Davey saw Decker standing between

the Cadillac and Davey's car. Mr. Davey's

trunk had been opened and various items from

the trunk were found to be missing. The

Cadillac was stopped in broad daylight about

15 minutes later. Decker and Penoli were

inside and had burglary implements on their

persons.

All these facts lead to the rea-

sonable conclusion Decker and Penoli had taken

items from Davey's car and had not, as yet,

had time to dispose of them. Thus, it was

reasonable to conclude they were using the

vehicle to hide stolen merchandise. Under

these circumstances, the oe had probable

cause to search the vehicle for the stolen

items. Exigent circumstances also existed

at the time of the stop as the vehicle could

have been removed by an unknown accomplice if

the police had not seized it. (People v.

Laursen (1972) 8 Cal.3d 192, 201, fn. 8;

People v. Hill (1974) 12 Cal.3d 731, 750-753;

People v. Dumas (1973) 9 Cal.3d 871, 885;

Chambers v. Maroney, supra; Texas v. White,

supra.)

Under these circumstances the suh-

sequent search of the trunk at the station

was proper. (Texas v. White, supra; Chambers

v. Maroney, supra; People v. Hill, supra.

IIil

CALIFORNIA DOES NOT HAVE A

SEPARATE INSTRUMENTALITY

DOCTRINE WHICH VIOLATES THE

FOURTH AMENDMENT RIGHTS OF

PERSONS

Petitioner's final argument is some-

what confusing. In essence, he contends

California has developed a doctrine which has

» 16 <

not been sanctioned by this Court. This doc-

trine permits police to search a vehicle as

an instrumentality of a crime in violation of

an individual's Fourth Amendment rights.

As noted earlier this Court has

repeatedly upheld warrantless searches of

vehicles besed upon probable cause and exi-

gent circumstances. In interpreting these

rulings, California courts have discussed

various ways of determining whether the

police have probable cause to search a ve~

hicle. In these discussions the courts have

concluded probable cause to search exists

where the vehicle is an instrumentality of

the crime. (People v. Laursen, supra, 8

Cal.3d 192, 201; People v. Hill, supra, 12

Cal.3d 731, 751.) This doctrine is pre-

sumably based on the compelling logic that

where a car is an instrumentality of a

crime, i.e., used as a getaway car or to

otherwise perpetrate the crime, it is likely

the vehicle will contain evidence of the

crime or contraband.

Accordingly, the instrumentality

doctrine is nothing more than a way of deter-

mining probable cause to search a vehicle.

Its existence, thus, does not impinge on any

phe to privacy which may exist in an auto-

mobile. This Court has held there is no

ee 9 to privacy in moving vehicles where

atte — rir on cause to search the

vehicle. ambers v. Maroney, supra; Texas

v. White, supra. Ly

4. Petitioner contends if the instru-

mentality doctrine had been used in Chadwick

the footlocker could have been searched.

However, contends petitioner, such a result

would have been inconsistent with Chadwick.

This contention is a non sequitur. Chadwick

did not involve an automobile search as the

- 17 -

CONCLUSION

For the foregoing reasons respondent

requests the petition for writ of certiorari

be denied.

Respectfully submitted,

GEORGE DEUKMEJIAN,

Attorney General

JACK R. WINKLER,

Chief Assistant Attorney

General--Criminal Division

DANIEL J. KREMER,

Assistant Attorney General

ALAN S. METH,

Deputy Attorney General

We

prin . ‘BLOOM,

Per ty Attorney General

Attorneys for Respondent

4. (Continued)

government did not even contend the brief

contact the locked trunk had with a car

turned the case into an automobile search

case. Moreover, Chadwick obviously did not

involve a situation where the vehicle was an

instrumentality of the crime. Thus, nothing

in Chadwick has anything to do with the in-

strumentality doctrine.

APPENDIX A

- Ami -

UNITED STATES CONSTITUTION

AMENDMENT IV

Seizures, Searches and Warrants

[Section 1.] The right of the people to,

be secure in their persons, houses, papers,

and effects, against unreasonable searches

and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particu-

larly describing the place to be searched, and

the persons or things to be seized.

Proposed September 25, 1789; ratified

December 15, 1/791.

CALIFORNIA STATUTES

Penal Code Sections

§ 459,

Every person who enters any house, room,

apartment, tenement, shop, warehouse, store,

mill, barn, stable, outhouse or other building,

tent, vessel, railroad car, trailer coach, as

defined in Section 635 of the Vehicle Code,

any house car, as defined in Section 362 of

the Vehicle Code, inhabited camper, as de-

fined in Section 243 of the Vehicle Code,

vehicle as defined by the Vehicle Code when

the doors of such vehicle are locked, air-

craft as defined by the Harbors and Naviga-

tion Code, mine or any underground portion

thereof, with intent to commit grand or petit

larceny or any felony is guilty of burglary.

As used in this section, "inhabited" means

currently being used for dwelling purposes,

whether occupied or not.

@ A=?

§ 466.

Every person having upon him or in his

possession a picklock, crow, keybit, or other

instrument or tool with intent feloniously to

break or enter into any building, railroad

car, aircraft, or vessel, trailer coach, or

vehicle as defined in the Vehicle Code, or

who shall knowingly make or alter, or shall

attempt to make or alter, any key or other

instrument above named so that the same will

fit or open the lock of a building, railroad

car, aircraft, or vessel, trailer coach, or

vehicle as defined in the Vehicle Code, with-

out being requested so to do by some person

having the right to open the same, or who

shall make, alter, or repair any instrument

or thing, knowing or having reason to be-

lieve that it is intended to be used in

committing a misdemeanor or felony, is

guilty of a misdemeanor. Any of the struc-

tures mentioned in Section 459 shall be

deemed to be a building within the meaning

of this section.

§ 496.

1. Every person who buys or receives

any property which has been stolen or which

has been obtained in any manner constituting

theft or extortion, knowing the property to

be so stolen or obtained, or who conceals,

sells, withholds or aids in concealing,

selling, or withholding any such propert

from the owner, knowing the property to be

so stolen or obtained, is punishable by im-

prisonment in a state prison, or in a county

jail for not more than one year; provided,

that where the district attorney or the

grand jury determines that such action would

be in the interests of justice, the district

attorney or the grand jury, as the case may

a

be, may, if the value of the property does

not exceed two hundred dollars ($200 :

specify in the accusatory pleading that the

offense shall be a misdemeanor, punishable

only by imprisonment in the county jail not

exceeding one year. « « -

§ 995.

The indictment or information must be

set aside by the court in which the defen-

dant is arraigned, upon his motion, in

either of the following cases:

If it be an indictment:

1. Where it is not found, endorsed,

and presented as prescribed in this code.

2. That the defendant has been in-

dicted without reasonable or probable cause.

If it be an information:

1. That before the filing thereof the

defendant had not been legally committed by

a magistrate.

2. That the defendant had been com-

mitted without reasonable or probable cause.

§ 1538.5.

(a) A defendant may move for the return

of property or to suppress as evidence any

tangibie or intangible thing obtained as a

result of a search or seizure... .

s

ae

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[Filed June 28, 1978]

NOT TO BE PUBLISHED IN

THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE

OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

2D CRIM. NO. 31380

(Sup.Ct.No. 10226)

THE PEOPLE,

Plaintiff and Respondent,

Ve

THOMAS LEROY DECKER and

RAYMOND JOSEPH PENOLI,

Defendants and Appellants.

a ee

THE COURT*

Codefendants, Thomas Leroy Decker

and Raymond Joseph Penoli, pleaded guilty to

second degree burglary (Pen. Code, "459 ,

Prior thereto they unsuccessfully moved to

suppress evidence (Pen. Code, § 1538.5).

They appeal, contending in essence, that

*Before Klein, P.J., Cobey, J., and Allport, J.

» Be? =

(1) their initial detention was illegal, (2)

they were arrested without probable cause,

and (3) the warrantless search of their ve-

hicle after it was impounded was unlawful.

’ We review the evidence in the light

most favorable to the order denying suppres-

sion as is required by the usual rule governing

appellate review. (People v. James, 19 Cal.3d

95, 107.) On October 10, 1976, at about 10:00

a.m. Warren Davey was standing on the second

floor balcony outside of his room at the

Spyglass Motel in Pismo Beach when he noticed

that appeliants' Cadillac automobile was

parked perpendicular to the rear of his car.

The right front door of the Cadillac was

open opposite the trunk of Davey's car and

appellant Decker was standing between the two

cars, his hands holding the trunk lid which

was opened about four inches.

As Davey looked on, Decker glanced

up at him standing 20 feet above and immed-

iately closed the trunk lid. After briefly

speaking with appellant Penoli, who was

seated Behind the steering wheel of the

Cadillac, they drove away. Davey then

checked the contents of the trunk and dis-

covered his camera and camera case, his

wife's coat and an overnight case were

missing. He had locked these items in the

trunk of his car the night before.

Davey telephoned the local police

and reported, "I believe someone had gotten

into my trunk and taken my camera case." He

described the car and its occupants as "a

white Cadillac, El Dorado, with a black top

and had two men inside, and one of them was

six feet and light hair, light sandy hair,

and the other one was roughly six feet and

had dark hair.'"' Shortly thereafter Pismo

Beach Police Officer David Griffith re-

ceived a bulletin over his police radio to

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"be on the lookout for a black over white

Cadillac that had just been involved in a

459 auto at Spyglass Motel... [containing]

two male occupants . . . ome with light-

colored hair." 4

At approximately 10:30 a.m. Officer

Griffith observed appellants in the Cadillac

heading south from Pismo Beach on Interstate

Highway 101. He ordered Decker, who was

driving, to stcp and exit the car. At this

time Officer Gary Holt arrived at the scene

and alerted the police dispatcher to summon

the victim, Davey, to the location. Approxi-

mately five or ten minutes later Davey

arrived, identified himself to Officer Holt,

and made a positive identification of appel-

lants and their car. Appellants were arrested

and scqnthindat and their car was impounded

at a nearby gas station. One hour later

Officer Holt had a locksmith Ops the trunk

and recovered Davey's property.

The contention that Officer Griffith

had insufficient information to detain appel-

lants is meritless. In the instant matter,

Officer Griffith obtained knowledge through

"official channels" that a burglary had taken

place a short time before observing appellants

on the highway. He knew the general descrip-

tion of the suspects and the car used by them.

1. A search of Decker's jacket pocket

uncovered a set of altered automobile keys

used for "picking" locks on cars.

2. The locked glove box was also opened

and searched but no seizable evidence was

round therein.

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From this set of facts, Officer Griffith

could "reasonably entertain a sufficient good

faith suspicion to warrant a detention of the

re hepa for ee a gee eee"

People v. Flores, 12 Cal.3d 85, 91; People

v. Waters, 30 Cal.App.3d 354, 361.) Fur-

ther, since Griffith was the first officer

on the scene to confront appellants, he was

justified in requiring Decker to alight from

the car as a safety precaution. (See People

v. Ortega, 2 Cal.App.3d 884, 892; People v.

Figueroa, 268 Cal.App.2d 721, 726-727.)

Appellants' argument that the vic-

tim was an unreliable informant and the

information he supplied was insufficient to

constitute probable cause to arrest them is

equally meritless. Prior to arresting appel-

lants, Officer Holt had the victim, Davey,

summoned to the detention location. When he

arrived the victim provided Officer Holt

with a detailed description of the crime and

made a positive identification of the car

and appellants. Mr. Davey, as a citizen-

informant, is presumed to be reliable and

there is nothing contained in this record to

challenge his credibility. (People v.

mey, 16 Cal.3d 263, 269.) e find the

information supplied by Davey amply sup-

ports the court's implied finding that

probable cause to arrest appellants existed.

(See People v. Ramey, supra, at pp. 269, 270;

People v. Amos, 70 Cal. App. 3d 562. 566-567.)

Lastly, appellants contend that the

warrantless search of their impounded vehi-

cle was unlawful. Here appellants were

stopped on the highway driving away from the

city only one-half hour after the burglary

was reported. Under these circumstances

the officers had reason to believe appel-

lants had not yet disposed of the stolen

goods and the items were probably concealed

= B-5 -

somewhere in the car. (See People v. Dumas,

9 Cal.3d 871, 885.) They were then entitled

to conduct an immediate warrantless search

of all areas of the car. (People v. Laursen,

8 Cal.3d 192, 201.) The fact that the trunk

was opened and searched only after appellant's

car was removed from the open highway and

impounded does not invalidate the search.

(People v. Hill, 12 Cal.3d 731, 751 and cases

therein; People v. Stafford, 29 Cal.App. 3d

940, 947.)

The judgment s3/are affirmed.

NOT TO BE PUBLISHED IN

THE OFFICIAL REPORTS _

3. Appellant Decker was granted pro-

bation, an order deetied a judgment for

appellate purposes. (Pen. Code, § 1237.)

APPENDIX C

= C-l1 -

' CLERK'S OFFICE, SUPREME COURT

4250 STATE BUILDING

San Francisco, CAurrorn1a 94102

AUG 24 1978 <7,

I have this day filed Order___

)

5

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6

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Patter Shy |

REARING DENIED =

In re: 2 Crim ° No 31 380

People a

os

-_____ Decker and Penoli

| TEA OZ'/ eiaciaiiien

1, My G. E. BISHEL

| ; g@-2/ ; Cl ork

.

87371.077 1-78 = OF