Petition — California v. Minjares
Supreme Court brief1979
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Supreme Court, U,
FILED
IN THE
Supreme Court of the Anited! BtalPs * °°
MICHAEL RODAK, JR,, CLERI
OCTOBER TERM 1978
no £97145
THE STATE OF CALIFORNIA,
Petitioner,
v.
PAUL MICHAEL MINJARES,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE CALIFORNIA SUPREME COURT
GEORGE DEUKMEJIAN,
Attorney General
ROBERT H. PHILIBOSIAN, Chief Assistant
Attorney General
| DANIEL J. KREMER,
| Assistant Attorney General
| ALAN S. METH,
rk Deputy Attorney General
PATRICIA D. BENKE,
Deputy Attorney General
San Diego, California 92101
|
110 West “A” Street, Suite 600~ ~
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
QUESTIONS PRESENTED
CONSTITUTIONAL PROVISIONS INVOLVED
STATUTES INVOLVED
STATEMENT OF THE CASE
A.
B.
STATEMENT OF THE PROCEEDINGS
STATEMENT OF FACTS ADDUCED
AT THE MOTION TO SUPPRESS
EVIDENCE
THE TRIAL COURT'S RULING
REASONS WHY CERTIORARI SHOULD BE
GRANTED
I
IN THOSE CASES WHERE POLICE
ARE FACED WITH THE EXIGENCY
OF PURSUING FLEEING SUSPECTS,
LOOT AND EVIDENCE OF A CRIME,
THE CALIFORNIA SUPREME COURT
HAS IMPROPERLY APPLIED THE
SEARCH INCIDENT TO ARREST
STANDARD OF UNITED STATES v.
CHADWICK, AND AS A RESULT,
HAS ACCORDED LUGGAGE IN
AUTOMOBILES GREATER PRIVACY
THAN LUGGAGE IN RESIDENCES
A. The California Supreme
Court Has Incorrectly
Determined Ynited States
v. Chadwick Controls
This Case
12-22
12-14
Il
Iil
TOPICAL INDEX
(Continued)
Pages
B.. The California Supreme
Court Erred In Determining
There Was No Exigency In
This Case 15-17
C. As a Result of Its
Incorrect Application of
United States v. Chadwick
and Refusal to Treat This
Case As One Involving
Exigency, the California
Supreme Court Has, In Cases
Where Police Are Searching
For Suspects, Accorded
Containers In Automobiles
Greater Privacy Than
Containers In Residences 18-22
THE CALIFORNIA SUPREME COURT
INCORRECTLY APPLIED UNITED
STATES V. CHADWICK RETRO-
ACTIVELY, AND, EVEN IF IT
DID NOT, THE EXCLUSIONARY
RULE SHOULD NOT OPERATE TO
VOID THE SEARCH OF THE TOTE
BAG ? 22-24
THE OPINION BELOW IS BASED
EXCLUSIVELY ON FEDERAL
CONSTITUTIONAL AUTHORITY 24-25
CONCLUS ION 25
APPENDICES
- iii -
LIST OF AUTHORITIES CITED
CASES Pages
Arkansas v. Sanders, 47 U.S.L.Week
4783 ae, 23,
Coolidge v. New Hampshire (1971)
403 U.S. 443
Gilbert v. California (1967) 388 U.S.
263
Guidi v. Superior Court (1973) 10 Cal.
3d 1 [513 P.2d 908] 19, 20,
Mapp v. Ohio (1961) 367 U.S. 643
Michigan v. DeFillippo (June 25, 1979)
47 U.S.L.Week 4805
Michigan v. Tyler (1978) 436 U.S. 499
People v. Gilbert (1965) 63 Cal.2d
690 18, 19,
People v. snag» ape slip opinion
(filed May 25, 1979), attached
herein as Exhibit A =, 20,
United States v. Berry (7th Cir.
1978) 571 F.2d 2
United States v. Chadwick (1977)
433 U.S. 1 i. 5, 4, 38, 22, 23.
United States v. Choate (9th Cir. 1978)
576 F.2d 165
United States v. Mancillas (7th Cir.
1978) 580 F.2d 1301
United States v. Montgomery (5th Cir.
1977) 558 F.2d 311
14
22
- iv - .
| IN THE SUPREME COURT OF THE UNITED STATES
LIST * ean CITED October Term 1978
CASES Pages
United States v. Powell (E. D. Pa. | 7
1978) 449 F.Supp. 562 23 °
United States v. Reda (2nd Cir.
1977) 563 F.2d 510, cert.
den. 435 U.S. 973, rehg. den. f THE STATE OF CALIFORNIA,
98 S.Ct. 2775 23 Petitioner,
United States v. Santana (1976) r
427 U.S. 38 16 | .
United States v. Schleis (8th Cir. PAUL MICHAEL MINJARES ,
1978) 582 F.2d 1166 aa, a2 | Rediondicsit:.
United States v. Sink (5th Cir.
1978) 586 F.2d 1041 23
Warden v. Hayden (1967) 387 U.S. PETITION FOR WRIT OF CERTIORARI
294 16, 20
Petitioner, the State of California
respectfully prays that a Writ of Certiorari
be issued to review the judgment and opinion
of the California Supreme Court entered in
this proceeding May 25, 1979, reversing a
judgment finding respondent guilty of two
counts of armed robbery of the first degree
in violation of California Penal Code,
sections 211 and 12022.5.
OPINIONS BELOW
The opinion for the California
Supreme Court is reported as People v.
Minjares (1979) __ Cal.3d ___, Crim. 20549,
Slip opinion May 25, 1979. A copy of
that opinion appears as Appendix A to this
petition. The order of the California
Supreme Court issued June 27, 1979, refusing
rae.
to grant a rehearing in this case appears
as Appendix B to this petition.
JURISDICTION
Petitioner invokes the jurisdic-
tion of this Court under Title 28, United
States Code, section 1257(3) to review a
judgment of the California Supreme Court,
which was entered on May 25, 1979. The |
California Supreme Court denied a rehearing
in this case on June 27, 1979. The present
petition for Writ of Certiorari is filed
within 90 days of both the filing of the
opinion of the California Supreme Court
and the denial of a rehearing by the
Califoinia Supreme Court. Thus, the
instant judgment is a final decision
rendered by the highest court of the State
of California interpreting rights under
the United States Constitution. (Chicago
G.W.R. Co. v. Basham (1919) 249 U.S. 162.
167; Market Street R. Co. v. Comm'n (1944)
324 U.S. 548, 550-552.)
QUESTIONS PRESENTED
1. Should the warrantless search
of luggage in a getaway automobile be
permitted where at the time of the search
police are still in pursuit of a missing
suspect, loot and firearms used during a
crime?
2. Should United States v.
Chadwick, be applied retroactively
to crimes which occurred before that
decision?
AZ
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution,
Amendment IV:
"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 particularly
describing the place to be searched,
and the persons or things to be
seized."
United State Constitution,
Amentment XIV, in relevant part:
"SECTION 1. All persons born
or naturalized in the United States,
and subject to the jurisdiction
thereof, are citizens of the United
States and of the State wherein
they reside. No State shall make or
enforce any law which shall abridge
the privileges or immunities of
citizens of the United States;
nor shall any State deprive any
person of life, liberty, or property,
without due process of law; nor
deny to any person within its
jurisdiction the equal protection
of the laws."
STATUTES INVOLVED
California Penal Code section 21ll:
rr ee
"Robbery is the felonious
taking of personal property in the
possession of another, from his
person or immediate presence, and
against his will, accomplished by
means of force or fear."
California Penal Code, section
1538.5 in relevant part:
"(a) A defendant may move for
the return of property or to
suppress as evidence any tangible
or intangible thing obtained as a
result of a search or seizure on
either of the following grounds:
"(1) The search or seizure
without a warrant was unreasonable.
"(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 defen-
dant shall have the right to make
this motion during the course of
trial in the municipal, justice
or superior court."
California Penal Code, section
12022.5 in relevant part:
"Any person who personally uses
a firearm in the commission or
attempted commission of a felony
shall, upon conviction of such
felony or attempted felony, in
addition and consecutive to the
punishment prescribed for the
felony or attempted felony of
which he has been convicted, be
ee
punished by an additional term of
two years, unless use of a firearm
is an element of the offense of
which he was convicted. ..."
STATEMENT OF THE CASE
A. STATEMENT OF THE PROCEEDINGS
On April 19, 1976, the District
Attorney for Alameda County charged respon-
dent with two counts of armed robbery in
violation of California Penal Code section
211. Prior to and during trial, respondent
brought motions to suppress evidence obtained
during a search of a tote bag found in the
trunk of his automobile. The motions were
denied by the trial court.
On May 4, 1976, respondent was
found guilty by a jury of two counts of
first degree robbery. It was also found
he used a handgun during the commission
of the offenses. He was sentenced to
state prison, the terms to run consecutively.
The California Court of Appeal,
First Appellate District, Division Two,
upheld the trial court's denial of respon-
dent's suppression motion and affirmed
the judgment of conviction in a published
opinion filed April 17, 1978. The Court of
Appeal found United States v. Chadwick
(1977) 433 U.S. I inapplicable. It also
found the search took place during hot
pursuit. (A copy of the opinion of the
Court of Appeal is attached hereto as
Exhibit C.
A hearing was granted by the
California Supreme Court. On May 25, 1979,
by a divided court, it reversed the
conviction, holding United States v.
Chadwick, supra, applies to the facts of
a a
this case and renders the tote bag search
invalid.
Petitioner's request for a
rehearing was denied by the California
Supreme Court on June 27, 1979. (See
Appendix B.) :
Petitioner's motion to stay
issuance of the remittitur in this case
pending action by the United States Supreme
Court on this petition for Writ of
Certiorari was also denied on June 27,
1979. (See Appendix D.)
B. STATEMENT OF FACTS ADDUCED
AT THE MOTION TO SUPPRESS
EVIDENCE
On December 19, 1975, at approxi-
mately 8:50 p.m.,1/ the Fremont Safeway
Store was robbed by two individuals armed
with handguns. A witness to the robbery
followed the two men out of the store
and saw them get into an automobile. The
witness followed the car for 5 to 10
minutes, about 5 miles. He determined the
car was a 1968 or 1969 Ford Fairlane.
When he got close enough to note the
license number, 075 ALC, he went directly
to the police department and reported what
he had seen. (RST 48-56.)2/
1. This was the time indicated at the
motion to suppress hearing. (RST 48.) It
differs from the time indicated in the
opinion of the California Supreme Court and
that stated in petitioner's request for a
stay.
2. "RST" refers to the Reporter's
Supplemental Transcript of the pretrial
motion to suppress evidence, which was
included as part of the record before the
California Supreme Court.
(continued next page)
— =
At approximately 8:50 p.m., Fremont
police officer William Bone broadcast the
description of the suspect's vehicle and
license number. At that time, the Fremont
Police Department invoked S.N.A.R.E., a
tri-city "lookout" procedure. Officers
involved in this program took their posts.
(RST 5-7, 46.)
Fremont police officer William Perry
heard the broadcast and took his position
on Highway 680, 6 to 8 miles from the scene
of the robbery. About 9:10 p.m., twenty
minutes after the robbery broadcast,
Officer Perry saw a car matching the suspect
vehicle, with the license number ALC 075,
going north on Highway 680. He requested
cover units,then stopped the vehicle.
(RST 12-15, 17, 20.)
Once the vehicle was stopped,
respondent, the driver, was ordered from
the car, searched and advised he was under
arrest for robbery. He was the only
person in the vehicle and he fit the
physical description of one of the suspects.
Nothing on his person connected him with
the robbery. (RST 15.)
The automobile was then searched.
The reasons for doing so were articulated
by the officer who stopped the vehicle:
"Q. And why was the decision made
2. (continued from page 6)
"RT" refers to the Reporter's
Transcript of the motion to suppress
evidence held pursuant to California Penal
Code section 1538.5(h) and which was
included as part of the record before the
California Supreme Court.
to search the aren compart-
ment of the vehicle out on the
road at that time?
"A, For evidence of the robbery,
the weapons, clothing, anything
that might indicate the second
suspect, loss.
"Q, All right. You also had in
mind possible identification as
to the other persons involved in
the robbery?
"MR. PACE: Objection as
leading, Your Honor.
"THE COURT: Yes, he's
already responded to that. The
information leading to the second
suspect or something similar,
words that he used, it was
leading. Sustained. Already
asked and answered." (RT 366.)
"Q. After searching the passenger
compartment of the car, was there
anything found in that passenger
compartment which was evidence of
the crime which had occurred?
"A, No.
"Q. Was there a discussion
concerning the search of the --
the possible search of that
vehicle out -=- while you were
out on Highway 680 after the
search of the passenge> com-
partment?
"A. Yes.
ae ie
"Q. And who was that discussion
among or between?
"A, Officer Perry, Sergeant Ehlen
and myself.
"Q. And Sergeant Ehlen arrived
out at the scene of the car stop
by then? A. Yes.
"Q. And was there a decision
made to attempt to open the trunk
at that time?
"A. Well, an attempt was made in
that Perry requested the key from
Minjares to the trunk, That's
as far as the attempt went.
"Q. A decision then had been made
to open the trunk if there was a
key available at that time?
"A. Yes.
"Q. And why had the decision
been made to go into the trunk
compartment of the car?
"A. Well, I think primarily |
again looking for evidence of the
crime and we were missing a
second suspect." (RT 366-367.)3/
3. The opinion of the California
Supreme Court concludes there is no evidence
the police wished to search the trunk or its
contents for evidence leading to the second
suspect. (Slip opinion, p. 6, fn. 3.)
However, as was pointed out at argument and
in petitioner's request for a rehearing, this
is not a correct statement of the testimony
in this case.
ee” ane
« ta
He later testified:
"Q. Now, let me ask you this: ~
While you were making the decision
to search the car and the trunk,
did you ever make a decision to
obtain a search warrant?
"A. I considered a search warrant
and decided against it.
"Q. And what were the reasons you
considered against getting a
search warrant at that time?
"A. Basically, I think, time.
In other words, by searching
without the search warrant, we
would save a matter of hours.
"Q. And why was time a factor at
this stage in the occurrence?
"A, Well, we were still looking
for a second suspect.
"Q. Was there a network or an
operation in process that's
referred to as Snare in the
Fremont area? A. Yes, there was."
(RT 368.)
The police also wished to search the trunk
to determine if the second suspect was
aa5 3" there. (RST 37, 41, 45; RT 350,
3535+
The officers, who knew the
suspects were armed during the robbery,
decided the vehicle should be towed to a
corporation yard where it would be off the
highway and in better light. At that time
they considered the automobile a piece of
evidence. (RST 17; RT 365, 368.)
- son no ne
. ah
Fifteen to twenty minutes after
the stop, the automobile was towed to the
corporation yard eight to ten miles away.
(RST 17, 21, 24; RT 350.)
At the corporation yard, two
armored vests were draped over the vehicle's
trunk. An officer, with gun drawn, stood
by as precautions were taken in the event
an armed individual was found inside.
Within thirty seconds the lock was picked
and the trunk opened. No suspect was found
inside. However, a bulging tote bag was
found in the middle, not more than a foot
into, the trunk. (RST 31-33.)
Inside the tote bag, police found
a number of guns and clothing matching the
description of that worn by the suspects.
(RT 229-235, 253-254.)
THE TRIAL COURT'S RULING
The trial court denied respon-
dent's motion to suppress the evidence
seized during the search of the tote bag.
(RT 385-386; RST 66-67.)
In so ruling, the court stated:
"THE COURT: Be denied. I do
that because it's overwhelming.
I'm not going to go through all the
facts, but the articulable facts,
they were looking for clothing,
for indicia that might lead them
to the other defendant. They were
looking for the guns that might have
been used, they were looking for
the cash, they knew that there had
been, this car had sped away from
the scene at a high rate. They
knew there was this second person.
I'm not going to go in and I'm
» 92
not by this trying to enumerate
all the items, but just in quick
response, without even looking at
my notes." (RT 386-387.)
REASONS WHY CERTIORARI SHOULD
BE GRANTED
I
IN THOSE CASES WHERE POLICE ARE
FACED WITH THE EXIGENCY OF
PURSUING FLEEING SUSPECTS, LOOT
AND EVIDENCE OF A CRIME, THE
CALIFORNIA SUPREME COURT HAS
IMPROPERLY APPLIED THE SEARCH
INCIDENT TO ARREST STANDARD OF
UNITED STATES v. CHADWICK, AND
AS A RESULT, HAS ACCORDED
LUGGAGE IN AUTOMOBILES GREATER
PRIVACY THAN LUGGAGE IN RESIDENCES
A. The California Supreme
Court Has Incorrect
Determined United
States v. Chadwick
Controls This Case
This Court has held that in the
absence of special exigencies the auto-
mobile exception to the warrant require~
ment does not extend to personal luggage
found inside automobiles. (United States
v. Chadwick (1977) 433 U.S. 1, 13, l n.
g; Arkansas v. Sanders (June 20, 1 79) 47
U.S.L.Week 4783.
By its opinion the California
Supreme Court holds the Chadwick case
precludes the warrantless search of luggage
found in a getaway vehicle, even though
police are still in organized search of
a missing suspect and missing evidence
of the crime, including firearms and stolen
money.
a 0% «
The rationale of the California Supreme
Court is that:
"While an automobile in police
custody may conceivably be
moved or broken into, the tote
bag could have been held quite
secure until a warrant was
obtained. Whatever delay the
obtaining of a search warrant
might have entailed, it would
not have resulted in the loss
or destruction of any evidence
that might have been in the tote
bag." (People v. Minjares
slip opinion, p. 9.)
This reasoning works well in situations
like United States v. Chadwick, supra,
433 U.S. 1, 13, and the more recent
decision of Sanders, supra, 47 U.S.L.Week
4783. In Chadwick and itexe., the police
had probable cause to believe a particular
piece of luggage contained contraband.
In both cases, this probable cause existed
before the luggage was placed in a car.
s case, however, is significantly
different from chadyick and
Sanders. Neither o ose cases
involved police engaged in fresh pursuit
of missing suspects, loot and firearms.
Here, prior to searching the tote bag
police knew a second, possibly armed
suspect was still at large. They also
knew the money stolen in the robbery was
missing, as were the guns used to commit
the crime. Because the robbery had
occurred shortly before respondent's
automobile was stopped, there was probable
cause to believe the tote bag might hold
some of the missing objects of their
pursuit, or evidence which would lead
them to those objects. However, the police
- 14 -
» 4
had absolutely no: way'of knowing what,
if anything, would be found in the tote
bag. It might contain the guns, loot
and name and address of the: second suspect,
or it might contain nothing, The only way
to tell was. to look and a delay in looking
while a warrant’ was obtained would probably
have cost "hours.". (RT 368.),, If evidence
was then found: in it. which could lead to
the missing suspect or loot, it mi ht
be too late to use it. If it was, found
to be empty, valuable time and resources
would have been wasted while the second
suspect, loot and other evidence were far
beyond reach.
Under such circumstances, 4a
rationale which requires police hold the
tote bag and await a warrant is simply
unreasonable and does not take into account
the practical difficulties facing police
who are pursuing fleeing suspects who may
be armed and carrying stolen loot. .
This Court has not had occasion
to rule on the validity of a warrantless
search of lugzage contained in an auto-
-ghi'te where, as here, police in the
field are engaged in a search for a
missing suspect, loot and firearms, and
are confronted with an automobile which —
may or may not contain the objects of their
search. (See Arkansas v. Sanders (June 20,
1979) 47 U.S.L.Week 4783, concurring
opinion of Chief Justice Burger,
Mr. Justice Stevens).
Under the circumstances presented
here, the tote bag search was proper. The
rationale of United States v. Chadwick,
supra, 433 U.S. l, should not control this
case.
St a a
a» 26
B. The California Supreme Court
Erred In Determining There
Was No Exigency In This Case
The testimony at the suppression
motions and ruling of the trial court
clearly reflect the police searched respon-
dent's automobile and tote bag in order to
find evidence which could help in the still
ongoing pursuit of the second suspect,
and retrieval of the loot and firearms.
At the time of the tote bag search, the
police were still organized in the tri-city
SNARE operation, and had no way of knowing
if the automobile or tote bag contained
any of the objects of their search. (RT
350, 355, 366-368.) Indeed, the trial
court determined the search of the tote
bag was conducted in order to expedite
pursuit. It expressly found there was
‘overwhelming " evidence that the time
police searched the tote bag, they were
involved in an ongoing search and were
looking for evidence which would lead them
to the second, missing suspect, the guns
that might have been used, and the stolen
cash. CRT 386.) Similarly, the District
Court of Appeal held the automobile was
stopped during "hot pursuit" and at a time
when such a search might reasonably provide
evidence of the crime or the fruits of
the robbery. (Court of Appeal opinion (Exh. C)
attached hereto, pp. 9-10.)
The opinion of the California
Supreme Court itself clearly shows that
at the time police stopped respondent's
automobile and made contact with him,
they knew the second, possibly armed, sus-
pect was still at large and that the cash
taken in the robbery, and guns used in the
robbery were also missing. The opinion
very clearly reflects the police searched
the automobile for this second suspect and
- 16 =
evidence of the crime. (Pevple v. linjares,
supra, slip opinion, pp. 1-2, 5-6.)
Nevertheless, the California
Supreme Court concludes there was no exi-
gency which would have allowed the warrant-
less search of the tote bag, because,
once having secured the tote bag» no
evidence in (p would have been lost or
destroyed. People v. Minjares, supra,
slip spladen., p. 9.) It is respectfully
urged the California Supreme Court is
incorrect and its conclusion is contrary
to the opinions of this Court.
Both "hot pursuit" which involves
"some kind of chase," and the need to act have
been defined as exigent circumstances by
this Court. (Mich v. Tyler (1978)
436 U.S. 499, 33 United States : Santana
(1975) 427 U.S. 43; n. 3; Warden v.
Hayden (1966) 387 U.S. 294, 298-299.)
In its opinion, the California
Supreme Court did not expressly state
hot pursuit was not involved. It simply
ignored the overwhelming evidence of hot
pursuit and the trial court's ruling
that the tote bag was searched in order to
aid the pursuit of the second suspect.
In any event, even on the facts recited
by the California Supreme Court, the police
were faced with an obvious need to search
the tote bag as soon as possible. The
opinion of the California Supreme Court
reflects that at the time the tote bag
was searched, a possibly armed suspect was
still at large and the money taken in the
robbery was still missing.
As the opinion also reflects, in
spite of the fact the automobile license
matched the suspect vehicles, not one
shred of evidence of the robbery had been
~~ S
a Eee
found in the automobile or on respondent's
person.
Complicating the search efforts
was the delay occasioned because the
automobile trunk had been locked and the
key was "unavailable." Indeed, although
the search of the automobile trunk and tote
bag took place approximately forty minutes
to one hour after the robbery, the police
never, in any manner, voluntarily slowed
in their search efforts. The only reason
the trunk was not immediately opened on
the highway was because there was no key
to open it and there was fear an armed
suspect might be in it. (RT 367.)
If an immediate search of the tote
bag is not to be allowed in such situations,
the hands of the police pursuing suspects
are effectively tied. They must delay
or impair pursuit to await a determination
as to what, if anything, is in the tote
bag. Meanwhile, an armed. suspect may be
endangering lives elsewhere and the loot
from the robbery may be placed beyond
reach,
The opinion of the California
Supreme Court opens a primer for those
who would use the automobile to commit
crimes. It teaches that if individuals
wish to commit crimes they should place
some evidence in closed containers in the
trunk of their vehicle, throw away the
trunk key, then split up. There is nothing
to lose and perhaps several hours to gain.
/
/
/
— 2
C. As a Result of Its Incorrect
Application of United States
v. Chadwick and Refusal to
Treat This Case As One
Involving Exigenc the
an venenre Supreme Court
Has, In Cases Where Police
Are Searching For Suspects,
Accorded Containers In
Automobiles Greater Privacy
Than Containers In
esidences
As the opinion of the California
Supreme Court and the record in this case
clearly reflect, at the time the police
stopped respondent's automobile and made
contact with him, they knew the second,
possibly armed, suspect was still at large
and that the cash taken in the robbery,
and guns used in the robbery were also
missing. They did not know where or if,
these items would be found anywhere in
the automobile.
Nonetheless, the California
Supreme Court has relied on United States v.
Chadwick, supra, to hold the situation
did not permit the officers to conduct
a warrantless search of luggage in an
automobile.
However, California, in reliance
on other decisions by this Court, has ~
concluded that where police enter a residence
either in hot pursuit or by some other
proper method, and are engaged in searching
that residence for suspects, they may
conduct a warrantless search of (1) items
which may aid the pursuit of the suspects
or (2) suspicious objects in plain view
which there is probable cause to believe
contain contraband, loot or other evidence
of the crime. (People v. Gilbert (1965)
oe
63 Cal.2d 690, 707 [408 P.2d 365, 375].)
The Gilbert case was reversed
by this Court on other grounds in Gilbert
v. California (1967) 388 U.S. 263. However,
the principles of search and seizure noted
by the California Supreme Court in its
Gilbert opinion were reaffirmed by it in
Guidi v. Superior Court (1973) 10 Cal.3d
1, 12-13, fn. 10; [513 P.2d 908, 914-915,
fn. 10]. In reaffirming the search principles
of Gilbert, the California Supreme Court
states:
- » »« we regard our statements
of law made in People v. Gilbert,
supra, 63 Cal.2d , aS remaining
the law of this jurisdiction save
insofar as specifically disapproved
by this court or the United States
Supreme Court. The search and
seizure portions of People v.
Gilbert, supra, have not been
disapproved. Indeed, in Gilbert
v. California, supra, 388 U.S. at
page 269 [18 L.Ed.2d at page 1184],
the Supreme Court vacated certiorari
on this issue as improvidently
granted. The court explained this
action in an appendix: ‘Assuming
that the warrantless entry into
the apartment was justified by the
need immediately to search for the
suspect, the issue remains whether
the subsequent search was reasonably
supported by those same exigent
circumstances. If the (evidence)
were come upon in the course of a
search for the suspect, the answer
might be different from that where
it is come upon, even though in
plain view, in the course of a
general, indiscriminate search of
closets, dressers, etc., after it
‘—
is known that the occupant is
absent. Still different
considerations may be presented
where officers, pursuing the
suspect, find that he is absent
from the apartment but conduct
a limited search for suspicious
objects in plain view which
might aid in the pursuit. ...
(Guidi v. Superior Court, supra
10 Cal.3d at 13, fn. 11 (5 P.2d
at 916-917, fn. 11].)
The California Supreme Court then relied
upon the search principles in its Gilbert
opinioén and Warden v. Hayden, supra,
387 U.S. 294, in concluding that police
lawfully searching a residence for suspects
could seize a paper bag found in plain
view, where they had probable cause to
believe it contained the hashish they
were also searching for. (Guidi v.
Superior Court, supra, 10 Cal.3d at 9, 14
[513 P.2d at 914, 91 -917].)
The California Supreme Court went on to
state:
"Having determined that the
seizure of the bag was reasonable,
we turn now to the search of the
bag after its seizure. Since
the bag was seized as evidence,
a search of its interior was
"reasonably related in scope to
the circumstances which justified
the interference in the first
place.' Qnly by so searching
could Officer Hol
confirm or discount his initial,
constitutionally reasonable
conclusion that it had eviden-
tiary value. . . . Moreover,
. « » police officers may
————ee
OS ee eR Eee ee ee a ee ee
- 21 =
"properly examine suspicious
objects in plain sight' not
only to assess their evidentiary
value but also to expedite the
investigation which in the
exigencies of the situation allowed
the officers to gain a lawful
view of the suspicious objects
despite aad cry of a search
warrant.’ Guidi v. Superior
Court, supra, 10 Cal.3d 1, 18-
19 [513 P.2d at 920-921]
(emphasis added) .)
If the police had pursued respondent into
his residence soon after the robbery and
searched the residence for the second
suspect, they could have seized and
searched the suspicious bulging tote bag
assuming they also had probable cause under
those circumstances to believe it contained
contraband, loot, or other evidence.
Moreover, contrary to the conclusion
of the California Supreme Court (People v.
Minjares, supra, slip opinion, p. 10) had
respondent and his crime partner split
up on foot after the robbery, and had
respondent been seized on the sidewalk
with the suspicious tote bag in his hands,
the police could have searched it for
evidence which would lead to the quick
apprehension of the second suspect and
missing loot and firearms.
As petitioner has strenuously
urged at every level of the proceedings,
the controlling factor in this case is
that police were searching for a suspect
and missing loot, firearms, and other
evidence. The refusal of the California
Supreme Court to recognize this results
in a gross and unreasonable inconsistency
in the law. Since this inconsistency
ies
rests upon interpretations of opinions
by this Court, it is most respectfully
urged certiorari should be granted.
The word "automobile" is not
a talisman in whose presence the Fourth
Amendment fades away and ot 9ep ears
(rgolidge v. New H hire (1 BT) 403 U.S.
443, -462.) By the Opinion of the
California Supreme Court, however, the
word "automobile" becomes a talisman in
whose presence the Fourth Amendment becomes
an unreasonable impediment to law
enforcement. The latter is as
intolerable as the former.
II
THE CALIFORNIA SUPREME COURT
INCORRECTLY APPLIED UNITED
STATES v. CHADWICK RETRO-
7. : IF IT
DID NOT, THE EXCLUSIONARY
RULE SHOULD NOT OPERATE TO
VOID THE SEARCH OF THE TOTE
BAG
Regardless whether this Court's
opinion in United States v. Chadwick,
Supra, is applicable to the type of
situation presented herein, the question
arises as to whether the California Su reme
Court correctly applied it retroactively
in this case to a crime occurrin i
to the Chadwick decision. dunes
The opinion below presupposes
Chadwick announced no new lh on law,
and at page 12, in footnote 6, cites
United states v. Schleis (8th Cir. 1978)
° » in support of this conclu-
sion. In particular, the California
Supreme Court took note that this Court
remanded Schleis for further consideration
@ 23 «
in light of Chadwick, and thus concludes
this Court would not have done so it Chadwick
were not to apply retroactively.
Other federal cases, however,
have held Chadwick did, indeed, announce
a new rule of law which does not apply
retroactively. (See United States v.
Sink (5th Cir. 1978) ° ,
, n. 8; United States v. Montgomery
(5th Cir. 1977) 558 F.2d 311; United States
v. Reda (2nd Cir. 1977) 563 F.2d :
cert. den., 435 U.S. 973, rehg. den. 98
S.Ct. 2275; United States v. Choate (9th
Cir. 1978) "s . aca od En. 20:
cert. den., S.Ct. ; Unite tates v.
Berry (7th Cir. 1978) 571 F.2d 2, 3,
cert. den. 99 S.Ct. 129; United States v.
Mancillas (7th Cir. 1978) 580 F.2d 1301,
1306-1307, cert. den., 99 S.Ct. 361;
United States v. Powell (E.D. Pa. 1978)
F.Supp. 562, 564.) While the fact
certiorari has been denied in many of these
cases is not conclusive as to this
Court's attitude on the question of
Chadwick's retroactivity, there is at
least a question as to the correctness of
the retroactive application of Chadwick by
the California Supreme Court, and its
reliance this Court's remand of United
States v. Schleis, supra. Due to the
conflict in existing authorities and what
petitioner believes is inconclusive and
inconsistent evidence of this Court's
attitude on the retroactivity question,
a resolution of the issue is being sought.
Even if Chadwick applies retro-
actively, and is controlling in this case,
the exclusionary rule should not be applied
to void the search of the tote bag. There
is no question in this case that the
officers conducting the search of respon-
dent's automobile and tote bag were fulfilling
» See
their duties and acting upon an honest and
good taith belief that the search was
proper. The fruits of the search are being
excluded only because of legal pronounce-
ment occurring some two years after the
search itself. The exclusionary rule
was designed to deter wrongs committed
by police and deter dishonest searches.
(Mapp v. Ohio (1961) 367 U.S. 643.) It
has no value where, as here, there is
nothing to deter and where any correction
of action would occur so long after the
search that its deterrent value is meaning-
less. This Court has recently applied
similar reasoning to the situation where
a police officer acted in good faith
pursuant to a statute later declared
unconstitutional. (Michigan v. DeFilli oO
(June 25, 1979) 47 U.S.L-Week 4805. L807)
III
THE OPINION BELOW IS BASED
EXCLUSIVELY ON FEDERAL
CONSTITUTIONAL AUTHORITY
The instant decision of the
California Supreme Court is based exclu-
Sively upon an interpretation of the
Federal Constitution and United States v.
Chadwick, supra. There are no references
to state statutory or constitutional
rounds. Indeed, in footnote 8 of the
alifornia Supreme Court's opinion, page
17, the court states in pertinent part:
"This opinion intimates no views
on how the validity of the search
in this case would be decided
under the California Constitution."
For the foregoing reasons,
petitioner submits that the opinion below
~- 25 -
is based exclusively upon federal consti- ~
tutional authority and is properly the subject
of review by this Court on Writ of Certiorari.
CONCLUS ION
For the foregoing reasons, peti-
tioner submits that a Writ of Certiorari
should be issued to review the decision
of the California Supreme Court.
Respectfully submitted,
GEORGE DEUKMEJIAN,
Attorney General
ROBERT H. PHILIBOSIAN,
Chief Assistant
Attorney General
DANIEL J. KREMER,
Assistant Attorney General
ALAN S. METH,
Deputy Attorney General
Patiaa D. Banke
PATRICIA D. BENKE,
Deputy Attorney General
Attorneys for Petitioner
APPENDIX
A
ded OL il sad od
- fi -
[Filed May 25, 1979]
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
Crim. 20549
(Super. Ct. No. 61376)
THE PEOPLE,
Plaintiff and Respondent,
Ve
PAUL MICHAEL MINJARES,
Defendant and Appellant.
Ne Ne Ne ee ee ee Se Se
Appellant was convicted of two counts
of first degree robbery (former Pen. Code, §$§
211, 211a) and was found to have been armed at
the time of his arrest. He contends that the
warrantless search of a tote bag found in his
car's trunk after his arrest was unlawful.
This court agrees.
I
Around 8:30 p.m., on December 19,
1975, Mariana Mungia and another employee were
checking and bagging groceries at checkstand
four of a Safeway store in Fremont. A tall
man approached the checkstand, showed them he
had a gun, and told them to put the money from
the cash register into a paper bag. They com-
plied. The tall man, subsequently identified
as appellant's codefendant, then joined a
smaller man, later identified as appellant, at
checkstand one. The smaller man asked checker
SEE DISSENTING OPINION.
a. Ant
Tim Prinster for money. After noticing the
gun in the taller man's hand and a bulge under
the smaller man's belt, Prinster told the men
to take the money. The smaller man reached
into the open cash drawer, removed several
bills and placed them in a paper bag. The
pair then left the store.
Mark Sollitt, who was waiting for
Prinster to get off duty, observed the rob-
bery and followed the two robbers. He saw
them get into a car which he followed until
he noted its make and license number. Then
Sollitt reported the robbery to the police
and gave them a description of the perpe-
trators and the getaway car.
The Fremont police broadcast the
information concerning the Safeway robbery
at approximately 9 p.m. A subsequent broad-
cast informed police units that the getaway
car was a white Ford with license plate
number 075 ALC. |
Shortly after this broadcast,
Fremont Police Officer Perry + T igeite a white
Ford with license number ALC 075 proceeding
north on Highway 680. Officer Perry requested
the help of backup units and proceeded to stop
the white Ford. Appellant, the lone occupant
of the car, was ordered out. Appellant fit
the description of the smaller of the two
Safeway robbers. He was searched, as was the
passenger compartment of the car. Neither
search revealed anything to connect appellant
to the robbery. Officers were unable to
locate a key to the car's trunk.
The witnesses to the Safeway robbery
were brought to the scene of the car stop.
Sollitt and Prinster had been informed that
the police had “pulled over a car that
matched the description and license identi-
fications" of the perpetrators. Mungia was
told that the police had "gotten one” of the
- A~-3 -
robbers. Despite these facts, no one was able
to positively identify appellant as one of the
robbers.
Appellant was arrested and taken to
the police station. The white Ford was towed
to the city corporation yard. The officers
testified that they decided to open the trunk
as soon as the Ford arrived at the yard rather
than obtain a warrant because they believed
that the second suspect might have been hiding
in the trunk. None of the officers testified
that they were looking for evidence that might |
lead them to the second suspect. The trunk's |
lock was picked, but no suspect was found.
However, a red tote bag and several other items
were removed from the trunk and photographed.
The tote bag, ge was zippered when recovered
from the trunk, was opened. In it were
various items, including clothing similar to
that described by witnesses to the robbery,
three guns and a roll of pennies in a wrapper
from the bank used by Safeway. All were ad-
mitted into evidence at the trial.
1. At the initial suppression hearing,
the officer who had picked the lock testified
that the tote bag was open when he saw it in
the trunk and that he could see a leather
jacket and a gun butt in the bag. At trial
the evidence technician who had searched the
bag testified that the bag was zipped shut
when it was found. Photographs nct pre-
viously disclosed to the dofenae taken im-
mediately before and after the bag's removal
from the trunk also showed it closed. A
second suppression motion was made on the
basis of this newly discovered evidence.
(Pen. Code, § 1538.5, subd. (h).) At the
hearing on that motion, a second officer
present at the search also testified that
the bag had been closed. The second sup-
pression motion was denied.
- Aub =
Sollitt, Prinster and Mungia iden~
tified appellant as one of the robbers prior
to trial. At the trial, Muingia testified
that the only reason she was able to identify
appellant was because she had seen him on the
highway.
Appellant testified that he had
lent his car to a friend on the night in
question and that the friend had transported
some guns to San Jose to be sold. He stated
that Re had handled the guns. The car was
returned to him shortly before he was stopped
by the police. The prosecutor impeached this
testimony by introducing a prior inconsistent
statement by appellant immediately after his
arrest and two unspecified prior felony con-
victions sustained in 1971. The codefendant
was acquitted. Appellant was convicted and
this appeal followed.
It
This court must decide the consti-~
tutional validity of a warrantless search of
luggage which was found in the trunk of a
car and placed under the exclusive control of
the police, after the driver was taken into
custody.
The Fourth Amendment guarantees
individuals privacy in their persons, homes,
papers and effects against unreasonable
searches and seizures. The "cardinal prin-~
ciple" of Fourth Amendment analysis is that
''searches conducted outside the judicial
process, without prior approval by judge or
magistrate, are per se unreasonable under the
Fourth Amendment <= subject only to a few
specifically established and well-delineated
exceptions.'" (Mincey v. Arizona (1978)
—., UeSe ’ [98 S.Ct. 2408, 2412]
Sting Katz v. United States (1967) 389 U.S.
47, 357; Wimberly v. Superior Court (1976)
16 Cal. 3d 557, 563.) If the warrantless
» ApS ~
search of the tote bag is to be upheld, it is
the state's burden to show that the search falls
within one of those exceptions. (McDonald v.
United States (1948) 335 U.S. 451, 456; Badillo
v. Superior Court (1956) 46 Cal.2d 269, 272.)
In the present case, the state pri-
marily seeks to justify the search of the tote
bag under the "automobile" exception to the
warrant requirement. Soon after the automobile
came into widespread use, the Supreme Court
held that because of its mobility, an auto-
mobile that is stopped on the highway may be
searched without a warrant when police officers
have probable cause to believe it contains
contraband or evidence of a crime. (Carroll
v. United States (1925) 267 U.S. 132; see also
Chambers v. Maroney (1970) 399 U.S. 42, 48-
49.) The Supreme Court has further held that
when there is justification for a warrantless
search of an automobile stopped on the high-
way, the search is not Lwalid if undertaken
later at the police station. (Chambers v.
Maroney, 399 U.S. at p. 52. But see
» at PP. -64, dis. opn. of Harlan, J.;
ady v. Dombrowski (1973) 413 U.S. 433, 450,
dis. opn. of Brennan, J.; Cardwell v. Lewis
(1974) 417 U.S. 583, 596, dis. opn. of
Stewart, J.)
In the present case, at the time
the trunk of appellant's car was searched
and the tote bag was discovered, the car
had been towed to the city corporation yard
and appellant was in pustodysat The offi-
cers' stated purpose in opening the trunk
2. Although the automobile in the
present case was impounded, the search of the
trunk and tote bag were not a routine inven-
tory of a suspect automobile. Such an inven-
tory, not based on probable cause, involves
entirely different considerations. (South
~ A-6 -
was to search for the second suspect himse1f.3/
The officers could have sought a search war-
rant, but chose not to because of the delay
involved. Even if the possible presence of a
second suspect in the car's trunk justified
opening the trunk, that possibility would not
necessarily validate the subsequent warrant-
less search of the tote bag. "[A] search
which is reasonable at its inception may
violate the Fourth Amendment by virtue of its
intolerable intensity and scope." (Terry v.
Ohio (1968) 392 U.S. 1, 18; Wimberly v.
Superior Court, supra, 16 Cal.3d at p. 567.)
Appellant contends that under the
recent Supreme Court decision in United States
v. Chadwick (1977) 433 U.S. 1, the warrantless
search of luggage which is under the exclusive
control of police in invalid, notwithstanding
the fact that the luggage has been seized from
an automobile. In Chadwick, the Supreme Court
held invalid the warrantless search of a foot-
locker that occurred while the footlocker was
in the control of federal agents and*over an
2. (Continued)
Dakota v. Opperman (1976) 428 U.S. 364, 369.)
It is clear that in an inventory search,
police officers would have been free neither
to unlock the trunk, nor to search the tote
bag. (Mozzetti v. Superior Court (1971) 4
Cal.3d 699, 707-712.)
3. At oral argument, respondent con-
tended that the purpose of the search was to
| discover evidence that might lead to the
_ apprehension of the second suspect. No
testimony appears in the record to support
this.contention. Thus, this theory of
respondent is not available to justify the
search in this case. (See r v. Superior
Court (1971) 21 Cal.App.3d 24, 28-30.
oe eee ere = —_ -
ee La ee ee
- A-7 -
hour after its possessors had been arrested.
Amtrak officials in San Diego had suspected
that a footlocker bound for Boston contained
marijuana. They alerted federal agents in
San Diego, who forwarded a description of the
footlocker and the persons involved to agents
in Boston, who were on hand when the foot-
locker was picked up. While the suspects were
seated on the footlocker, the agents had a
trained dog sniff the footlocker. The dog
reacted, indicating to the agents that the
locker contained marijuana. The agents waited
to seize the footlocker until it was placed in
the trunk of a suspect's car. The footlocker
was removed to the federal building where an
hour and a half later it was opened and sear-
ched while the suspects were in custody.
The government in Chadwick attempted
to justify the warrantless search of the foot-
locker by analogy to the "automobile" excep-
tion to the warrant requirement. (Cf. Chambers
v. Maroney, supra, 399 U.S. 42.) In rejecting
this contention, the Supreme Court noted that
the "automobile" exception was based on (1) an
automobile's "inherent mobility, which often
makes obtaining a judicial warrant impracti-
cable" (United States v. Chadwick, supra, 433
U.S. at p. 12), and (2) "the diminished expec-
tation of privacy which surrounds the auto-
mobile." (Ibid. However, the court stated,
"(tlhe factors which diminish the privac
aspects of an automobile do not app to
respondents" footlocker. . . . Unlike an
automobile, ose primary function is trans-
portation, luggage is intended as a reposi-
tory of personal effects. In sum, a person's
expectations of privacy in personal luggage
are substantially greater than in an auto-
mobile." (Id., at p. 13, emphasis added.)
In addition, the court noted that luggage may
be seized and held secure until a warrant is
obtained. This is not always true of auto-
mobiles. (Ibid.) Thus, the court rejected
- A-8 -
the government's analogy, finding differences
of constitutional dimension between the war-
rantless search of luggage and automobiles.
eee ee in Chambers v. Maroney the
court had held t there was no constitutional
difference between immobilization of an auto-
mobile pending issuance of a search warrant
and immediate search (399 U.S. at pp. 51-52),
in Ghadwick thi s reasoning was held inappli-
cable to personal luggage. The increased
expectation of privacy in the contents of the
footlocker compelled the conclusion that with
respect to luggage, immobilization, rather than
immediate search, was the lesser intrusion.
(United States v. Chadwick, supra, 433 U.S. at
pp. 13-14, fn. 8.) Thus real, rather than
theoretical, exigencies are required before
luggage may be searched without a warrant.
Since no exigency required the greater intru-
sion in Chadwick, it was held to be constitu-
tionally impermissible. (Ld. , at p. 15.) As
one United States Court of Appeals has com-
mented, chadwick stands for the proposition
that a warrantless search of personal property
should be the exception and not the rule.
Where, as here, the authorities are in control
of the situation, they must obtain a warrant
prior to searching luggage or similar personal
property either on the scene or back at the
stationhouse." (United States v. Johnson
(Sth Cir. 1979) 588 F.2d 147, 151; accord
United States v. Stevie (8th Cir, 1978) 582
F.2d 1175, 1179; United States v. Schleis
(8th Cir. 1978) 582 F.2d 1166, 1172; but see
United States v. Finnegan (9th Cir. 1977) 568
F.2d 637 [validating on the scene search of
luggage in an automobile].)
As in Paes E the tote bag in the
present case was searc ed while appellant was
in custody and while the bag was under the
exclusive control of police officers. Further,
there were no exigent circumstances that would
@ And o
have justified a warrantless search of the
tote bag. While an automobile in police cus-
tody may conceivably be moved or broken into,
the tote bag could have been held quite secure
until a warrant was obtained. Whatever delay
the obtaining of a search warrant might have
entailed, it would not have resulted in the
loss or destruction of any evidence that: might
have been in the tote bag.
Respondent argues that since Chadwick
did not involve an automobile search, that case
did not in any way limit the "automobile" ex-
ception which, it is asserted, extends to any
closed containers found within an automobile.
Respondent points out that Chambers was not
overruled but was reaffirmed by the court in
Chadwick. This is true but misses the point.
ers did not involve a search of luggage
and stands only for the proposition that once
an automobile s been seized, a warrantless
search is not a significantly greater intru-
sion than immobilization. C ck explicitly
stated that this is not the case with luggage.
(433 U.S. at pp. 13-14 and fn. 8; United
States v. Johnson, ra, 588 F.2d at p. 153.)
Although the government in Chadwick did not
seek to justify the warrantless search of the
footlocker under the "automobile" exception
(433 U.S. at p. 11),4/ the logic of the
Chadwick opinion suggests that an individual's
interest in keeping private the contents of
4. The government did argue in the trial
court that the warrantless search of the foot-
locker could be justified under the "auto-
mobile" exception of Chambers v. Maroney,
supra, 399 U.S. 42. The district court re-
jected this contention, and it was apparently
abandoned by the government when the case was
argued before the Supreme Court. (433 U.S.
at PP. a» 41.)
- A-10 -
personal luggage is not lost simply because
that luggage is placed in an automobile.
"Every factor which the Court cites in sup-
port of its holding [in Chadwick] remains
present whether the 3 Reage is atic or
United States v.
ate tde an automobile.
tevie, supra, 582 F.2d at p. 1179, original
Sa far United States v. Johnson, ra,
588 F.2d at p. 152.) Thus while chebhers
may have sanctioned the warrantless search
of automobiles in most cases, Chadwick re-
fused to extend this exception to luggage.
‘hades Ce clearly requires that a warrant be
Oo
tained once luggage is under the exclusive
control of police.
It is clear from Chadwick itself
that the tote bag would not have been sub-
ject to a warrantless search if appellant
had been arrested on the street and the bag
taken from his possession. The government
had also contended in Chadwick that any
property in the possession of one who is
arrested is subject to a warrantless search.
In rejecting this sontenkionay the Supreme
Court stated that "warrantless searches of
luggage or other hy sgt seized at the time
of an arrest cannot ustified as incident
to that arrest either if the 'search is remote
in time or place from the arrest,' [citation],
ot no CAL BE NCS ~ALbts. Once law enforcement
officers have reduced luggage or other per-
sonal property not immediately associated
5. The government also contended that
because an individual has a lesser privacy
interest in a footlocker than in a dwelling
or a private communication, only a showing
of probable cause is necessary for its war-
rantless search. This contention was also
rejected. (433 U.S. at pp. 6-11.)
———
- A-11 -
with the person of the arrestee to their
exclusive control, and there is no longer any
danger that the arrestee might gain access to
the property to seize a weapon or destroy
evidence, a search of that property is no
longer an incident of the arrest." (433 U.S.
at p. 15, 8 added; see also United
States v. Schleis ra, 582 F.2d at p. 1172.)
Further, had appel lant een arrested in his
home, the tote bag could not have been sear~
ched without a warrant. (Chimel v. California
(1969) 395 U.S. 752, 763; see also People v.
Robinson (1974) 41 6al.App. 3d 658, 669.) It
would be anomalous indeed if personal effects
not otherwise subject to a warrantless search
could be searched simply because they were
found in an automobile. Given the omnipre-
sence of automobiles in modern life, such a
holding would considerably diminish indivi-
dual privacy.
The principles underlying Chadwick
-- and the Fourth Amendment -- are not altered
because the luggage in this case was found in
the course of a search of an automobile. As
the Supreme Court has observed, "(t]he word
‘automobile' is not a talisman in whose
presence the Fourth Amendment fades away and
disappears." Re ae 73 v. New Hampshire
(1971) 403 U.S. 443, 461-462.)
The cardinal principle of the Fourth
Amendment is that a warrant is required unless
some grave rps og d can be shown that neces-
sitates an immediate search without a warrant,
(McDonald v. United States, supra, 335 U.S.
at pp. 455-456.) Further, "a warrantless
search must be 'strictly circumscribed by the
oo mated which justify its mk are ee
Mincey v. Arizona, ra, U.S. at p.
oT 98 S.Ct. at p. BuiaT.) When those cir-
cumstances cease to exist, the exception also
ceases to exist and a warrant must be obtained.
This is the rationale of Chadwick: "Even
- An12 ~
though on this recod the issuance of a war-
rant by a judicial officer was reasonably
predictable, a line must be drawn. In our
view, when no exigenr s shown to suppor
Ne Need ¢ i Mme giaAle ses : he Wa int
vhause places the line at th > point where the
KClusive dominion of police authority."
3 U.S. at ’ 15, emphasis added, To hold
otherwise would exalt the exceptions above
the rule,0/
Respondent alternatively argues
that the automobile was itself an "instrumen-~
tality" of the crime, since it was used in
6. In view of the principle that a war-
rant is required unless the circumstances
dictate otherwise, it is evident that phat ck
did not announce a new rule of law. erefore,
no retroactivity problem is encountered in
applying to this case. It was the
government in which sought the for-
mulation of a new rule that luggage could be
searched without a warrant by analogy to the
"automobile" exception, The Supreme Court
declined to apply the "automobile" exception
in that fashion. Instead, it held that since
no exigent circumstances were shown, a war-
rant was required to search the footlocker
under the Fourth Amendment. Thus, no new
ee va pect yipe tb Aly United a te Ve
chleis, supra, 2d at p. 1174. Schleis
which had gb plat upheld a delayed warrant~
less search of a briefcase in the defendant's
possession at the time of his arrest, was
remanded by the Supreme Court for further
consideration in light of Chadwick (Schleis
ve United States (1977) 433 U.S. 905.) The
Supreme Court would not have done so if
Chadwick were not to apply retroactively.
(582 F.2d at p. 1172. See also United States
v. Stevie, supra, 582 F.2d at p. 1178, fn. 1.)
e A-13 -
opera ee 8 escape. Therefore, it is argued
the car and its entire contents, including
the tote bag, were subject to a thorough
search under what is termed the "instrumen~
tality" exception, Chambers v. Maroney,
vues 399 U.S. 42 and this court's opinions
in People v. Teale (1969) 70 Cal.2d 497,
People v. Laursen (1972) 8 Cal.3d 192 and
People v. Hill (1974) 12 Cal.3d 731 are cited
in support of this position.
Respondent reads more into these
cases than is there. In general, the belief
that an automobile was used in the perpetra~
tion of a crime merely ieeeres the requisite
probable cause to search the car. (See
Almeida-Sanchez v. United States (1973) 413
U.S. 266, 269.) It does not justify its
t search. To the extent that there
is a separate "instrumentality" exception
under either Constitution which in any way
adds to the "automobile" exception, it is
inapplicable to the facts of this case.
In People v. Teale, supra, 70 Cal.2d
497, this court upheld the delayed search by
a criminalist of an automobile thought to have
been used in a kidnap-murder. This court
reasoned that an automobile which is seized
‘in the reasonable belief that [it] 1s itself
gto” could be searched "for the purpose
of determining its evidentiary value" on the
theory that such an examination was not a
search within the Fourth Amendment. (Id., at
p. 511, original emphasis.) However, the
court in Teale was careful to distinguish
between a car as a n of evidence and
a car which of a crime.
(Id., at p. 511, fn. 10, examination of
the former is clearly a search and must be
justified under a recognized exception to the
warrant requirement,
In subsequent cases, this court has
clarified Tegle, holding that any examination
- A-14 -
of a seized automobile is a search and there-
fore must be reasonable under the Fourth
Amendment. (Mozzetti v. Superior Court,
4 Cal.3d at pp. 705-706; see also
Guidi v. Superior Court (1973) 10 Cal.3d 1,
18-19, fn. 19.) Although a seizure and in-
spection of a vehicle thought to have been
used in a kidnapping was upheld by a divided
court in North v. Superior Court (1972) 8
Cal.3d 301, that case, like Tegle, principally
involved a scientific examination of the
interior of the car to determine whether the
victim had been inside and a measurement and
examination of its exterior. (See also
Cardwell v. Lewis, 417 U.S. 583, up-
holding the removal of paint and the taking
of i impressions from the exterior of a
car.
The "instrumentality" exception as
pater by the Pg 4 res would go a be-
yond the rationale o Teale and North.
Because an automobile may be said to be "used"
in the commission of virtually every offense
for which it is a container of evidence, the
mites exception as proposed by
respondent would effectively end all Fourth
Amendment scrutiny of automobile searches.
Such a result would be clearly counter to the
many decisions of this court which carefully
circumscribe the "automobile" exception.
(E.g., Wimberly v. Superior Court, supra, 16
Cal.3d 557; Mozzetti v. Superior Court, ra,
4 Cal.3d 699; — ve Cook (1975) 13 cal 3d
663.) Moreover, for the reasons stated above,
such a result, if it sanctioned the warrant-
less search of luggage within the exclusive
control of the police, would be counter to
United States v. Chadwick, 5 » 433 U.S. 1.
If there were any vitality to the "instrumen-
tality" exception as it applied to automobiles
or other containers of evidence, it would be
applicable only to a scientific examination
of the eee itself, for example for finger-
prints, bloodstains, or the taking of tire
- Am13 =
impressions or paint scrapings. (See Cardwell
v. Lewis, supra, 417 U.S. at p. 591.)
Police officers may, if they have
probable cause, under certain circumstances
search the interior of a car and, with fur-
ther probable cause, its trunk. However, the
factors underlying the "automobile" exception
do not support a warrantless search of closed
personal effects found within an automobile.
Once a closed container comes under an offi-
cer's exclusive authority, an immediate search
is no longer necessary. Thus probable cause
to believe the item contains contraband or
evidence of a crime can support at most the
seizure of the item; but a warrant must be
obtained for its search. (United States v.
Johnson Saat 588 F.2d at p. 151; United
States Ve tevie, supra, 582 F.2d at Pp» 1180.)2/
The holding of this case is a narrow
one. It will entail no diminution of the
ability of law enforcement officers to appre-
hend those suspected of breaking the criminal
law. Where probable cause is believed to
exist to search a container found within an
automobile, the container may be seized and
held until a magistrate determines whether a
warrant may be issued for its search. Where
7. There is no merit to respondent's
suggestion that an individual who uses an auto-
mobile in the commission of a crime thereby
forfeits any expectation of privacy in the
automobile or its contents. As the Supreme
Court has said in rejecting a similar conten-
tion, "it suffices here to say that this
reasoning would impermissibly convict the
suspect even before the evidence against him
was gathered."" (Mincey v. Arizona, supra,
U.S. at p. [98 S.Ct. at p. 2413]; see
also Michigan v. Tyler (1978) 436 U.S. 499,
505-506. )
- A-16 -
exigent circumstances dictate an immediate
search, a closed container found in an auto-
mobile may be searched without a warrant,
(See, e.g., United States v, Chadwick, supra,
433 U.S. at p. 15, fn. 19; United States v,
Gaultney (5th Cir. 1978) 581 F.2d 1137.) By
requiring as a rule only the lesser intrusion
of seizure and immobilization of personal
effects rather than immediate search, maximum
respect for individual privacy can be main-
tained at relatively little cost to law
enforcement. An individual who prefers im-
mediate search rather than the inconvenience
of immobilization ma always consent to an
immediate search, (See Chambers v. Marone >
399 U.S. at p. 64, dis. opn. of Harlan,
*5 See generally Williamson, e Supreme
Court rantless Searches, and Exigent
ircumstance 1 a. L.Rev. 110,
144- VE Note, United States v. Chadwick and
the er Int on Concept: The Unrea-
so ene of Bein fe) e (1 8
eUe eKREV,. 9 on e
The Supreme Court recently observed
that "(t]he investigation of crime would
always be simplified if warrants were unneces-
sary. But the Fourth Amendment reflects the
view of those who wrote the Bill of Rights
that the privacy of a person's home and er
perty may not be totally sacrificed int e
name of maximum sim licity in enforcement of
the criminal law, iCitatyone}" (Mincey v,.
Arizona 9 a, US. at p. __—s« (98 S.Ct,
at p. 24127) A constant tension exists be-
Cween the needs of law enforcement and the
right of individual privacy. The Fourth
Amendment embodies our founders! resolution
of that tension: the requirement that the
determination of probable cause to search be
made by a neutral and detached magistrate,
rather than "the officer engaged in the often
competitive enterprise of Tt hao. out crime,"
(Johnson v. United States (1948) 333 U.S. 10,
14.) Courts must be ever watchful that the
- A-17 -
delicate balance embodied in the Fourth
Amendment is maintained. "It is precisely
that
the predictability of these pressures
comment a resolute loyalty to constitutional
” » United
safeguards." (Almeida Rasenes Ya a
supra, 413 U.S. at p.
sateen c est maintained by a faithful ad-
herence to the warrant requirement except
where exigent circumstances dictate = "
exception. The warrantless search of the
tote bag “" invalid under the Fourth ‘
Amendment. Since the evidence seized from
the tote bag constituted a ee ad Part
of the prosecution's case, reversal of appe
lant's conviction is required. oo Ve
California (1967) 386 U.S. 18, 23-24,
The judgment is reversed.
BIRD, C.J.
WE CONCUR:
TOBRINER, J.
MOSK, J. ;
MANUEL, J.
NEWMAN, J.
I CONCUR IN THE RESULT:
RICHARDSON, J.
ight of this holding, it is not
cadnunaies saan the other contentions raised
by appellant. This opinion intimates no views
pe how the validity of the search in this =.
would be decided under the California Constitu
tion. .
- A-18 -
PEOPLE V. MINJARES
Crim, 20549
DISSENTING OPINION BY CLARK, J,
The warrantless search of the
found in the trunk of defendant's car ga
justified under the "automobile exception" to
the warrant requirement. (Carroll v. United
States (1925) 267 U.S. 132; Chambers v. Maroney
(1970) 399 U.S. 42; United States v. Finnegan
ge fag rey dare 637.) United States
° c 33 U.S.
with this conclusion. went hk
In Chadwick, railroad official
San Diego observed Machado and Leary load ry
footlocker onto a train bound for Boston.
Their suspicions were arounsed when they
noticed that the trunk was unusually heavy
for its size, and that it was leaking talcum
powder, a substance often used to mask the
odor of marijuana or hashish. Because Machado
matched a profile used to spot drug traffickers
the railroad officials reported these circum- -
stances to federal agents in San Diego, who in
turn relayed the information, together with
detailed descriptions of Machado and the foot-
locker, to their counterparts in Boston.
When the footlocker arrived in
Boston federal narcotics agents used a trained
dog to ascertain it contained marijuana. The
agents then waited until Chadwick and Machado
lifted the locker into the trunk of Chadwick's
car. ‘At that point, while the trunk of the
Car was still open and before the car engine
had been started," the agents arrested them.
At the federal building an hour and a half
later, the agents, without a warrant, opened
the locker and discovered marijuana. (United
7s v. Chadwick, supra, 433 U.S. at pp.
Se eT OONy eee n
at ale leh RITE lt il hate oa Ciel 4 Ve ee
- 19 -
In the federal district court, the
government explained its omission to obtain a
search warrant was justified under the auto-
mobile exception of Chambers v. Maroney,
SUbEi, 399 U.S. 42. Rejecting this argument
on the ground that the relationship between
the footlocker and Chadwick's automobile
was merely coincidental, the district court
suppressed the marijuana, and the court of
appeals affirmed. As the majority note
(ante, p. _, fn. 4*), the government aban-
Soned this contention when the case was
argued before the Supreme Court. "The
Government does not contend that the foot-
locker's brief contact with Chadwick's car
makes this an automobile search, but it is
argued that the rationale of our automobile
search cases demonstrates the reasonableness
of permitting warrantless searched of lug-
gage; the Government views such Luggage as
analogous to motor vehicles for Fourt
7 eae purposes." (433 U.S. at pp. 11-
12.
The government's argument rested
on the novel proposition that "the Fourth
Amendment Warrant Clause protects only in-
terests traditionally identified with the
home." (433 U.S. at p. 6.) "Drawing on
its reading of history, the Government
argues that only homes, offices, and private
communications implicate interests which lie
at the core of the Fourth Amendment. Accor-
dingly, it is only in these contexts that
the determination whether a search or sei-
zure is reasonable should turn on whether a
warrant has been otained. In all other
situations, the Government contends, less
significant privacy values are at stake,
and the reasonableness of a government in-
trusion should depend solely on whether
there is probable cause to believe evidence
*Ma jority opinion, page 11, footnote 4.
- A-20 -
of criminal conduct is present. Where per-
sonal effects are lawfully seized out side the
home on probable Cause, the Government would
thus regard searches without a warrant as not
unreasonable.'" (Id. at p. 7.)
Rejecting this argument, th
Court declined to extend the citcintite oe
ception to all movable personalty lawfully
seized in a public place. The high court
pointed out that it is the diminished expec-
tation of privacy surrounding the automobile
rather than its mobilit » which justifies a ‘
warrantless search, “The factors which
diminish the privacy aspects of an automobile
do not apply to respondents! footlocker,"'
the court held. "Luggage contents are not
open to public view, except as a condition to
a border cared 4 or common carrier travel; nor
is luggage subject to regular inspections and
official scrutiny on a continuing basis.
Unlike an automobile, whose primary function
is transportation, luggage is intended as a
repository of personal effects. In sum. a
person's expectations of privacy in per sonal
luggage are substantially greater than in an
automobile." (433 U.S. at p. 13.)
As the Ninth Circuit Court of
Appeals has recognized, "a unique fact
Situation was presented in Chadwick which con-
trolled the outcome of the case. Had the
facts been only marginally different, as
Justice Blackmun pointed out in his dis-
senting opinion, the search would have been
upheld under established exceptions to the
warrant requirement. The agents could have
avoided having the footlocker search held
unconstitutional either by delaying the
arrest for a few minutes until the car was
in motion or by conducting the search at the
Cime and place of the arrests." (United
States v. Finnegan (9th Cir. 1977) 568 F.2d
637, 641, fin. omitted; accord, United States
- A-21 -
Ve “ae (2d Cir. 13 March 1979) F.2d
* re
This point bears repetition. As
Justice Blackmun emphasized in his dissenting
opinion--without contradiction by the majority--
ick does not limit the automobile excep-
tion to the warrant requirement by poem
that closed containers found in an automobile
are outside the scope of that exception. To
the contrary, as Justice Blackmun pointed out,
"if the agents had postponed the arrest just
a few minutes longer until the respondents
started to drive away, then the car could have
been seized, taken to the agents’ office, and
all its contents-~-including the footlocker--
searched without a warrant." (433 U.S. at pp.
22-23.) "The scope of the ‘automobile Pred. ¢
exception to the warrant requirement extends
to the contents of locked compartments, in-
cluding glove compartments and trunks.
(Citation. ] The Court of Appeals have con-
strued this doctrine to include briefcases,
suitcases, and footlockers inside automobiles.
United States v. Tramunti, 513 F. 2d 1087,
1104-1105 (CA2 1975); United States v. Issod,
508 F.[2d] 990, 993 (CA7 1974), cert. denied,
421 U.S. 916 (1975); United States v. Soriano,
497 F. 2d 147 (CAS 1974) (en banc), convic-
tions summarily aff'd sub. nom. United States
v. Aviles, 535 F. 2d 658 (1976), cert. pending,
Nos. 76-5132 and 76-5143; United States v.
Evans, 481 F. 2d 990, 993-994 (CA9 1973)."
(Id. at Pe re fn. 4.)
Chadwick's limited significance has
been pointed out by the Ninth Circuit in United
States v. Finnegan, supra, 568 F.2d 637. "The
Supreme Court in Chadwick did not substitute a
test of ‘expectation of privacy' for probable
cause. Indeed, the Court did not address the
tests for, or scope of, the automobile search
*Advance Report Citation: ee
2054. .
- A-22 -
exception since those issues were not before
it in light of the government's failure to
renew on appeal its argument based on the
automobile exception. Rather, Chadwick ex~
plicates the rationale for excepting a new
class of objects from the usual proscription
against warrantless searches. Chadwick lays
down a rule whereby courts faced with an
invitation by the government to define a new
class of objects which may be searched with-
out warrant nust consider whether there is a
diminished expectation of privacy with
a to that class of object e." (Id. at
The warrantless search of the bag
found in the trunk of defendant's car having
been justified under the automobile exception
to the warrant requirement, the judgment APPENDIX B
should be affiroed,
CLARK, J.
CLERK'S OFFICE, SUPREME COURT
4250 STATE BUILDING
SAN Francisco, CALironnia 94102
An 22,227
I have this day filed Order__-_>_ =»
REHEARING DFNIED
In i” | | CRIA No. <OSy ay
Respectfully,
G. E. BISHEL
Clerk
enose Ar? tt 78 aM Or
APPENDIX C
oe
[Filed April 17, 1978]
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
1 CRIM. NO. 15834
(Sup.Ct.No. 61376)
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
PAUL MICHAEL MINJARES,
Defendant and Appellant.
NaF ae Nae Nae Ne Net Nee See See ee”
Defendant, Paul M. Minjares, appeals
from a judgmentl/ entered on a jury verdict
finding him guilty of two counts of first
rr robbery (Pen. Code, § 211), and using
a handgun during the commission of these
offenses (Pen. Code, § 12022.5). He contends
that: (1) the search of the trunk and subse-
quent search of the tote bag found in the
trunk were invalid, as they were made without
a warrant and not based on probable cause;
1. The notice of appeal erroneously
indicates that an appeal is also taken from
the sentence. As the sentence is not separately
appealable but merged in the judgment, this
purported appeal must be dismissed.
‘ae
(2) the single suspect confrontation and
subsequent identifications were impermissibly
suggestive and deprived him of due process;
(35 failure to disclose the nature of the
prior felony convictions that were used
to impeach him constituted prejudicial
error; and (4) he was not sufficiently
advised of the effect of admitting his priors
and of being armed with concealed weapons
at the time of his arrest. We have concluded
that the judgment must be reversed for a
limited new trial on the issue of the prior
convictions.
In view of the absence of any
contentions concerning the sufficiency of
the evidence, a brief summary of the perti-
nent facts will suffice.
Around 8:30 p.m. on December 19,
1975, James Gondal and Mariana Mungia were
bagging and checking groceries at check-
stand four in a Fremont Safeway store.
A tall person, subsequently identified as
the codefendant, B. Aguirre,2/ came up,
showed them he had a gun, and told them to
put the cash register money in a paper bag.
Gondal and Ms. Mungia complied.
After taking the money from check-
stand four, Aguirre joined the second and
smaller robber (subsequently identified
as defendant), who was at checkstand one.
Defendant asked the checker there, Tim
Prinster, for money, at gunpoint. Prinster
turned over his cash register money after
he noticed the gun in Aguirre's hand and a
"bulge" under defendant's belt.
2. Aguirre was acquitted.
Mark Sollitt, who was waiting for
Prinster to get off duty, was in the Safeway
store and witnessed the robbery and defendant's
participation in it. After defendant and
Aguirre left the store, Sollitt followed
and saw them get into a car. He pursued them
in his own car for about five to ten minutes,
at times at a speed of 80 miles per hour,
until he got close enough to read the license
and determine that the getaway vehicle was a
1968 or 1969 Ford Fairlane. He then went to
the police department to report the robbery,
describe the robbers, their vehicle and its
license number. Prinster indicated that
defendant was about five feet six inches
tall, weighed about 150 pounds, and was
wearing a blue stocking cap and had a
"fumanchu-type" mustache.
About 9:00 p.m., the Fremont
police received and then broadcast the infor-
mation concerning the Safeway robbery. One
of the robbers was described as a male
Mexican adult, about 28 years old, wearing
levis and a tan leather jacket. A subsequent
broadcast informed units that the getaway
car was a white Ford with the confirmed
license number 075 ALC.
Fremont Police Officer William
Perry received this information on a radio
dispatch shortly thereafter and about 15
minutes later, he observed a white Ford with
license number ALC 075 proceeding north on
Highway 680. Perry requested cover units
and then stopped the vehicle. Perry then
ordered its only occupant, the driver, subse-
quently identified as defendant, out of the
car. Defendant fit the physical description
of one of the Safeway pide | suspects.
He was searched and advised he was under
arrest for armed robbery. A search of
the passenger compartment of the vehicle
« Bako
revealed nothing to connect defendant to
the robbery. Defendant was then asked if
he had a key to the trunk and reptied
negatively.
Sollitt, Prinster and Ms. Mungia
were brought out to the location of the auto
stop. Prinster and Sollitt were told that the
vehicle identified by Sollitt had been stopped;
Ms. Mungia was told that the police had "gotten
one."' Prinster and Sollitt declined to make
a positive identification of defendant at
that time and indicated they wanted to see
him under better conditions. Subsequently,
they identified defendant as one of the
robbers at a photo lineup, a physical lineup,
the preliminary hearing, and a pretrial hearing.
On their way to and from the road showup,
Sollitt, Prinster and Ms. Mungia discussed
their ability to identify the robbers. Neither
Prinster nor Sollitt were certain of their
identification at the roadside showup on
the night of the robbery. Ms. Mungia was
not able to identify defendant at that time;
she subsequently indicated that the only
reason she was able to identify defendant
from the photographs and at the lineup was
because of the one-man showup.
In order to search the trunk for
the second suspect, whom the authorities
believed might be hiding there,3/ and to
further examine the vehicle, the Ford was
towed to the Fremont City Corporation Yard
about 11:00 p.m. Armed officers stood by
as a precaution as the trunk lock was picked.
No suspect was found inside. However, among
the many items, a red Samsonite tote bag
stood out, was removed, and photographed
3. A search warrant had been considered
but rejected because of the immediacy of
getting into the trunk, in light of the sus-
picion that the second robber might be hidden
there.
WL ee 3 8
a n% «
and then opened by Sergeant Phillips. The
tote bag contained, among other items,
clothing matching the description of that
worn by the suspects, three handguns with
defendant's and Aguirre's fingerprints, and
a roll of pennies in a bank wrapper identical
to those used by the Safeway store. All
of these items were admitted into evidence
for purposes of identification, after denial
of two defense motions to suppress.4/
Defendant took the stand and denied
any participation in the robbery or any
knowledge of the use of his car in the robbery.
He admitted, however, that his vehicle had
been borrowed on that evening by a friend
to transport some guns to San Jose to be
sold. Defendant was to receive $75.00 to
$100.00 for the use of his car. He helped
load the guns into the trunk. His vehicle
had been returned to him shortly before he
was stopped by the police. This alibi was
impeached by the introduction of a state-
ment made by defendant immediately after
his arrest and advisement of Miranda rights.
This statement indicated that he had been
4. At the initial pretrial suppression
hearing on March 29, 1976, Officer Phillips
testified that the tote bag was open when it
was seen in the trunk. After testimony at
trial and the photograph not preivously dis-
closed to the defense indicated that the tote
bag was, in fact, zipped shut at the time of
its discovery, a second suppression hearing
was conducted by the trial court pursuant to
a defense motion. The second defense suppres-
sion motion was denied without a specific
finding by the trial court as to whether the
tote bag was open or shut when the guns, clothing
and roll of pennies were found and removed.
o.~ oo
with the codefendant all evening and that no
one else had driven his car. Defendant was
further impeached by his admission of two
unspecified prior felony convictions in 1971
in two different counties.
Defendant's major contentions on
appeal concern the legality of the search of
the trunk of his automobile and its contents,
the one-man showup and the fact that the nature
of his admitted prior convictions was not revealed
to the jury.
We turn first to the warrantless
search of the trunk and the closed tote bag.
Defendant's contention concerning the illegality
of the search of the trunk need not detain
us long here. Defendant, relying on Wimberly
v. Superior Court, 16 Cal.3d 557, argues that
here, as there, the initially reasonable search
of a car's interior became unreasonable when
extended to the locked trunk that was a
distant part of the car in which there is
a reasonably greater expectation of privacy
than in the passenger's compartment. Our
Supreme Court said at page 568: "A search
based on probable cause which reasonably
only tends to support the inference that
contraband or evidence will be found in the
passenger compartment will be of intolerable
intensity and scope if expanded to include
a closed trunk. In such a situation there
must be some specific articulable facts which
give reasonable cause to believe that seizable
items are, in fact, concealed in the trunk."
The court then, at page 569,
distinguished People v. Laursen, 8 Cal.3d 192,
where the vehicle had been identified by
eyewitnesses as the one used by the robbers
in an aborted attempt to escape. The court
said: "We upheld the search, including a
search of the trunk even though there was no
specific information that the trunk contained
: - C-7 -
any evidence relating to the crime. It
is important to note, however, that the
probable cause upon which we upheld that
search pertained to the vehicle as a whole.
Thus, we said: ‘Having connected the robbery
with the Mercury on the basis of these
reports the officers had reason to suspect
that some evidence helpful in the apprehension
of the culprits and investigation of the crime
would be contained within.’ (Id., at p. 201,
fn. 8.)"" (Emphasis added.) Here, also,
where the vehicle used inthe robbery was
stopped shortly after the robbery, there
was probable cause for the search of the
trunk.
Defendant, relying on United States
v. Chadwick, 53 L.Ed.2d 538, argues that even
if so, the subsequent search of the tote bag
required a warrant. Chadwick, supra,
summarized in footnote 5 below,5/ is inapposite
here as it involved the search of a personal
effect, not an automobile. Here, there
was a nexus between the vehicle and the
search, as the vehicle was an instrumentality
of the crime.
5. In Chadwick, supra, 53 L.Ed.2d 538,
decided June 21, 1977, the U.S. Supreme Court
held unlawful the warrantless search of a
locked footlocker lawfully seized by federal
agents from the open trunk of a parked
automobile during the arrest of the persons
in possession of the footlocker on probable
cause that the footlcocker contained contra-
band. The defendants were arrested and the
footlocker was removed to the Boston Federal
Building under the exclusive control of the
federal agents, ard opened. The court (at
pp. 549 and 551) emphasized that a person's
expectations of privacy of personal luggage
are substantially greater than in automobiles,
and held at page 551, that under the circun-
stances, the search was no longer incident
to the arrest and, therefore, subject to the
warrant requirement.
=
We agree with the People that the
search of the tote bag here was proper
pursuant to the rule of Chambers v. Maroney,
399 U.S. 42. Chambers, supra, held that a
search without a warrant of an automobile
stopped on the highway is permissible if based
on probable cause, and further that under
the circumstances present in Chambers, a
delay in the search until the car had been
taken to the station house was permissible.
Texas v. White, 423 U.S. 67, held that the
probable cause for a search of a car at the
scene of the arrest still obtains at the
Station house (id., at p. 68). The Chambers
exception to the warrant requirement in
the limited class of searches of automobiles
rests on two factors: (1) the "exigent
circumstances that exist in connection with
movable vehicles" (Cardwell v. Lewis, 417
U.S. 583, 590); and (2) the diminished
expectation of privacy that attends auto-
mobiles, as opposed to a house, a person, or
personal effects (Almeida-Sanchez v. United
States, 413 U.S. 266, 279).
United States v. Soriano (5th Cir.
1974) 497 F. » demonstrates that the
Chambers rationale can be used to sustain the
legality of a search under analogous cir-
cumstances. In Soriano, supra, the evidence
showed that federal law enforcement officials
followed a taxi occupied by three people
whom the agents had probable cause to believe
were transporting heroin. Upon arrival at
the Miami International Airport, the agents
arrested the occupants of the cab, and removed
three suitcases from that vehicle. The agents
peeked into one of the suitcases at the place
of arrest; the other two were searched at a
place other than that of arrest. The searches
were sustained as to all three suitcases.
- C-9 -
_ ., 4 The California Supreme Court has ,,,
clearly indicated that. whatever the proper ....
scope of Chambers, supra, 399 U.S, 42, . .
as a nattar or teaeeat constitutional law .,,
it must not be extended so far beyond its ~--
original rationale under the "more exacting. ..,
standard for cases arising within this .._,.
state" established by article I, section 13,
of the California Constitution. eop.= ee
Brisendine, 13 Cal.3d 528, 545). The standard
was Summarized by our eee a
cf
‘a
Ww
Court in People
v. Hill, 12 Cal.3d 731, at page. 51, as Follows :
ue). when there is probable cause to
believe that an automobile stopped on a
highway’ contains contraband, eyidence of a
crime, or was itself an :instrumentality of
the commission. of one, law enforcement officers
need not obtain a warrant befaqre conducting
a search since there is no distinction of
constitutional proportion between an immediate
search on probable cause without .a warrant
and the automobile’s immobilization until one
is secured," quoting from People v. Laursen, .
supra, 8 Cal.3d 192, 201, onphases added. =
Thus, here, nder both “the federal :
constitutional rule and the more stringent
state one, probable cause6/ pertained to the
vehicle as a whole. The vehicle was an instrument-
ality of the crime, and.was seized in hot
pursuit within a short period after the commis-
sion of the robbery. Thus, the vehicle and all
of its contents, including the tote bag, were
=. me — 7 heer
~~
6. The search of the trunk and tote, |;
bag were not a routine inventory of a suspect
automobile. Such an inventory, not based on
probable cause, involves entirely different .
~_ .
considerations (South ta v.. 49 -
L.Ed.2d 1000, 1008). It is cle operat in an
2
inventory search, the People would have been
free neither to unlock the trunk, nor to
search the tote bag found therein (Mozzetti v.
Superior Court, 4 Cal.3d 699, 707-712; People v.
Jochen, 46 Cal.App.3d 243, fn. 3, at p. 58h).
- C-10 -
subject to a detailed examination after the
seizure (cf. People v. Teale, 70 Cal.2d
497, 511). Here, as in People v. Hill,
supra, 12 Cal.3d 731, there were circumstances
that led the officers to reasonably believe
that the fruits of the robbery or some evidence
helpful in the investigation of the robbery
would be contained within the tote bag (People
v. Laursen, supra, 8 Cal.3d, fn. 8 at p. TOL).
It follows that the search of the tote bag
was also lawful and the defense motions to
suppress the items found in it properly denied.
We turn next to the contention
concerning the unfairness of the single suspect
on-the-road confrontation and that this was
the basis of the subsequent identification of
defendant by Sollitt and Prinster. While a
less mis pag procedure would have been
preferable to the initial roadside showup,
we need not discuss this contention in detail.
As this Court (Division One) indicated in
People v. Rodriguez, 10 Cal.App.3d 18, 30,
where it is asserted under the rule of
Stovall v. Denno, 388 U.S. 293, 302, and
In re Hill, 7I Cal.2d 997, pages 1004-1005,
that the pretrial identification procedures
were so unfair as to taint any subsequent
in-court identification, the proper procedure
is an initial hearing outside the presence
of the jury. At this hearing, the defendant
must demonstrate that the pretrial confronta-
tion infringed on his right to due process of
law. Where, as here, the trial court decides
that the pretrial identification procedures,
in their totality, were not so unfair as to
taint an in-court identification, the identify-
ing witness may identify the defendant in court
without the necessity of showing that the
courtroom identification had an origin independ-
ent of the pretrial proceedings. The defendant
may then offer evidence of unfairness which
- C-1l -
affects the weight rather than the admis-
sibility of the identification.
Here, the requisite hearing was
held and the trial court ruled that the
pretrial identification procedures were not
so unfair as to taint an in-court identifica-
tion. The record shows that both Sollitt and
Prinster declined to make a positive identifica-
tion of defendant at the single person roadside
showup. After they had an opportunity to see
defendant under better conditions, they picked
him out as one of the robbers from a series
of photographs and ina lineup. As the record
substantially supports the trial court's
determination and also indicates an independ-
ently reliable basis for the identification,
we cannot disturb it on appeal (People v. Greene
34 Cal.App.3d 622, 646-647).
Next, we turn to the contentions
concerning defendant's admitted prior convic-
tions for robbery that were used to impeach
his testimony.7/ The record indicates that
7. A motion predicated on People v. Beagle
6 Cal.3d 441, and People v. Rist, 16 Cal.3
211, was timely made and renewed. Under the
applicable rules, at least one of the prior
robbery convictions could have been properly
used to impeach him to avoid giving his
testimony a false aura of veracity (People v.
Boothe, 65 Cal.App.3d 685, 688-689). fe
one of the prior robberies reflected directly
on defendant's honesty and integrity, and
revealing its nature could have been more
harmful here than the brief impeachment by
two unidentified priors.
- C-12 -
defendant admitted four prior convictions
for robbery, three of which occurred in
Riverside County in 1971, and the fourth in
San Bernardino County in 1971.8/ The court
permitted the use for impeachment of two of
the 1971 priors, one from each county.
The instant case was tried prior to
People v. Rollo, 20 Cal.3d 109, wherein our
Supreme Court held that it was error to
impeach a defendant by prior convictions, whose
nature is not revealed to the jury. In Rollo,
supra, the court pointed to two fundamental
reasons for the rule: (1) the jury is deprived
of information essential to its deliberations;
and (2) the defendant is initially prejudiced
as he must choose between remaining silent
and subjecting himself to improper speculation
by the jury or incurring the risk that by
divulging the nature of the priors, the jury
will draw an impermissible inference of guilt.
As Rollo is aimed at the integrity
of the fact-finding process pursuant to the
applicable rules of retroactivity as most
recently set forth in People v. Gainer, 19 Cal.3d
835, 853, the Rollo rule should be applied
to the instant case, which was pending on
appeal when Rollo was decided on October 11,
1977. The record indicates that the jury was
-left to speculate not only as to the nature of
defendant's prior convictions, but also as
to the critical issue of the relationship
between the character of defendant's undisclosed
priors and his credibility. The jury was not
admonished to refrain from speculation and the
prosecution also elicited the fact that defendant
was on parole at the time of the instant robbery.
8. The dates in the information were
apparently incorrect and subsequently amended.
A fifth admitted prior conviction for posses-
sion of marijuana while defendant was committed
to the Youth Authority was subsequently stricken
for purposes of penalty enhancement.
iin i carne Sener italia =
- C-13 -
In Rollo, supra, 20 Cal.3d 109,
however, the court nelt that such an error
was not prejudicial per se and in Rollo was
not of prejudicial dimension, as the case
against the defendant was overwhelming.
Defendant here was apprehended shortly after
the robbery and driving the getaway car, which
contained some of the loot, the guns and the
clothing worn by the robbers. He had attempted
to flee at great sp :d and was identified by
two eyewitnesses. iis only defense consisted
of his rather strained alibi that the jury
obviously did not believe.
Here, as in Rollo, supra, 20 Cal.3d
at pages 120-121, none of this evidence was
tainted by the error of failing to identify
the nature of the prior. Defendant also was
not kept from testifying and had ample
opportunity to present his case to the jury.
That it was unconvincing was not the result
of the Rollo error, but of the weakness of
defendant*s story. We conclude, after an
examination of the entire cause, including
the evidence, that it is not reasonably pro-
bable that a result more favorable to defend-
ant would have been reached in the absence of
this error (Cal. Const., art. VI, § 13;
People v. Watson, 46 Cal.2d 818, 836).
Finally, we turn to the contention
that defendant was not fully advised of the
effects of his admission of the prior convic-
tions and his being armed with concealed
weapons at the time of the arrest, as required
by In re Yurko, 10 Cal.3d 857. Yurko, supra,
held, ct page 864, that before a court can
accept a defendant's admission of prior convic-
tions, the accused is entitled to express
and specific admonitions as to the constitu-
tional rights (confrontation, jury trial and
privileges against self-incrimination) waived
by an admission and to be advised: '"(2) of
the precise increase in the term or terms
~' (+14 -
which might be imposed, if any, in the
accused's case pursuant to section 644 or
other applicable statutes (see, e.g.,
§§ 666, 667); and (3) of the effect of any
increased term or terms of imprisonment on
the accused's eligibility for parole."
The record indicates that although
the jury found that defendant had used a
firearm during the commission of the instant
offenses, he was not sentenced on the use count
(Pen. Code, § 12022.5), which would have
added another five years to his sentence. As
to the habitual criminal statute, the record
indicates that the court initially refused
to make a finding that defendant was not a
habitual criminal. However, at the time of
sentencing, the court clearly indicated
defendant was not found to be a habitual
criminal or sentenced pursuant to that statute.
The record indicates that defendant was sen-
tenced pursuant to former Penal Code section
3024, subdivision (b), which provided, so
far as here pertinent, that the minimum term
of sentence and imprisonment shall be four
ears “For a person previously convicted of
a felony .. . and armed with. .. a con-
caaled deadly weapon at the time of his
SeseeGess «. s (Emphasis added.) Although
defendant was subsequently advised that his
admission of prior felony convictions could
increase the minimum term served to four
years, it was not specifically pointed out
to him that this increased minimum sentence
mandated by Penal Code section 3024, subdivi-
sion (b) was the result of his admission of
the priors and of his admission of being armed
at the time of arrest.
Defendant complains that the record
discloses that he was not advised as to:
(1) his right to confront his accusers; and
(2) the precise term which might have been
imposed had he been adjudged a habitual criminal
RN oe A A cn OEE te REIL OTR wy site 9 RAE wn FS A
ee Oe eee ee es eee need
wish. ew ee ee ee be ee ee a
- C-15 -
pursuant to former Penal Code section 644;
(3) the effect of his admissions on his
eligibility for probation pursuant to
Penal Code section 1203, subdivision (d) (4)9/
and section 1203.06, subdivisions (a) (2)
and (b) (4)10/ (In re Yurko, supra, 10 Cal.3d,
p. 862); (4) the Fact that the prior convic-
tions he was admitting could be used to
impeach him if he chose to testify; and
(5) prior to his admission that he was
armed at the time of the arrest,11/ he should
have been advised of the additional minimum
four-year term of Penal Code section 3024,
subdivision (b).
be
We need not discuss defendant's
contentions in detail as, except for Penal
Code section 1203.06, each of the above
mentioned statutes either have been repealed
or substantially modified by the Uniform
Determinate Ser -encing Act of 1976 (Stats.
1976, ch. 1139, effective July 1, 1977).12/
9. This subdivision, so far as here
pertinent, prohibited the granting of
probation to a person twice previously con-
victed of a felony.
10. These subdivisions, so far as here
pertinent, prohibit the granting of proba-
tion or suspension of a sentence for a
person convicted of robbery who is convicted
of a subsequent felony and knowingly carried
a firearm as a means of offense or defense
at the time of the arrest for the subsequent
felony.
11. No evidence supports this admission.
Rather, the evidence is to the contrary since
three guns were found in the tote bag in
the trunk.
12. Our discussion of the new act is
based on the excellent overview of M. Oppenhein,
51 State Bar Journal 604 (Nov. - Dec. 1976).
- C-16 -
Thus, on retrial, the admission of his
priors and his admission that he was armed
at the time of the arrest will be subject
to the newly enacted provisions of Penal
Code sections 667.5, 1170.1la, subdivision
(a), and 1203.11.13/ The new statutes
provide for general enhancements and repealed
all of the specific enhancements inconsist-
ent therewith. The Uniform Determinate
Sentencing Act of 1976 provides for an enhance-
ment of punishment for adults who have served
a separate prison term for at least one year
for a felony (Pen. Code, § 667.5), prevents
the granting of probation to persons pre-
viously convicted of certain specified
felonies, including robbery (Pen. Code, §
1203.11), and provides for the enhancement
of sentences under specific circumstances,
such as being armed with or using a deadly
weapon (Pen. Code, § 1170.la), a continuation
of the current provisions of Penal Code
sections 12022 and 12022.5. Thus, under
the new statutes and the applicable Yurko
rules (supra, 10 Cal.3d 857), defendant ‘s
admissions still involve "severe" sanctions
applicable under numerous and complex circum-
stances that can be explained to an accused
without imposing undue burden on the judicial
process (Yurko, supra, p. 864).
We conclude that these multiple
omissions indicate that defendant's waiver
of his constitutional protections, revealed
by the instant record, was not based on a
full understanding of the adverse consequences
of the admissions of his prior convictions
and of being armed at the time of the arrest.
(Boykin v. Alabama, 395 U.S. 238, 243;
13. Penal Code section 1203.11 was added
by Statutes of 1976, chapter 1135, and became
effective on January 1, 1977, before the Uni-
form Determinate Sentencing Act of 1976, but
after the judgment in the instant case.
ee eee °
PO ee cee ee Ae en ee Ee as
- C-l7 -
In re Tahl, 1 Cal.3d 122, 130-133).
Thus, the instant case requires only a
limited new trial on the priors (People
v. Fisk, 50 Cal.App.3d 364, 371).
The purported appeal from the
sentence is dismissed. The judgment of
conviction is affirmed. That part of the
judgment declaring the existence of the
prior felony convictions is reversed. The
cause is remanded to the trial court, with
directions to resentence defendant after
a limited new trial on the priors follow-
ing a finding that defendant's waiver was
based on an understanding of all of the
consequences of his admission of the priors,
as well as the consequences of his admission
of being armed at the time of his arrest.
CERTIFIED FOR PUBLICATION.
Taylor, P.J.
I CONCUR:
Rouse, J.
- C-18 -
I concur in the judgment affirm-
ing defendant's conviction. The evidence
of defendant's guilt was demonstrably
overwhelming. There are two areas dis-
cussed in the main opinion, however, which
call for some elaboration and which involve
judicially declared rules of law which in
my opinion are unsound, unnecessary and
inimical to the fair administration of
justice. Exercising my authority to
criticize existing law (rule 976, Cal.
Rules of Court), I proceed:
The first point involes the
Rollo rule (People v. Rollo (1977) 20 Cal.3d
olding ehot it is error for a trial
court to permit impeachment by an unidenti-
fied prior felony conviction. As pointed
out by Justice Richardson in his dissent
in Rollo, the Supreme Court beginning with
its decision in People v. Beagle, 6 Cal.3d
441, has continued to dissolve the hertofore
firmly accepted principle--now legislatively
recognized in Evidence Code section 788--
that a witness can be impeached by proof of
conviction of a felony. The courts have--
without any foundation--through purely
gratuitous opinions converted a simple,
workable rule into a breeding ground for
frivolous appeals. For example, consider
the bare assertion that a prior conviction
for a crime of violence does not reflect
upon the trait of credibility (People v.
Rollo, supra, fn. 4, p. 120). Why doesn't
it? Who says it doesn't? The basic, unrefuted
theory for the rule that a prior conviction
of any felony may affect the witness’ credibi-
lity is simply a common sense conclusion that
anyone who commits a felony, i.e., who
breaches society's most serious penal statutes,
is considered by society to be untrustworthy.
I agree with Justice Richardson
that for all intents and purposes section
“ C+19 -
788 of the Evidence Code has been effectively
erased by Beagle and its amorphous progeny.
By judicially excluding prior felony convic-
tion evidence, we are depriving our juries
of an important tool which the citizens,
through their elected representatives,
have emphatically said that they want and
need in order to properly perform their role
as judges of the credibility of witnesses.
If the judicial branch is to
achieve any credibility with the law-abiding
segments of society, I suggest that it
start with a re-examination of this unfortunate
trend toward the obliteration of an explicit
statute (Evid. Code, § 788) and its under-
lying sound basic principles of common sense.
And, in my opinion, the first
step should be to return to the pre-Beagle
rule that evidence of any prior felony
conviction is connalittetiy admissible for
impeachment purposes. Arguments that a
particular type of felony does nor does not
bear on one's credibility are peculiarly
matters of weight to be resolved by the
trier of fact.
The second point I wish to address
concerns the burden placed upon the trial
judge under In re Yurko, 10 Cal.3d 85/7,
which requires that in addition to the admoni-
tion of the constitutional rights, i.e.,
confrontation, jury trial, and privileges
against self-incrimination, the judge advise
the defendant "(2) of the precise increase
in the term or terms which might be imposed,
if any, in the accused's case pursuant to
section 644 or other applicable statutes
(see, e.g., §§ 666, 667); and (3) of the
effect of any increased term or terms of
imprisonment on the accused's eligibility
for parole." (In re Yurko, supra, at p.
864.)
- C-20 -
This requires the judge to make
computations based on factors which are not
always readily discernible at the time of
trial. An element of clairvoyance thus
becomes a necessary ingredient in the
process; yet I am unaware of any competent
judge who is so endowed. And, of course,
any error in advising the defendant of the
“precise increase" vitiates the admission
of the prior, requiring reversal. In my
opinion, due process in the context of
advice as to the effect of admitting priors
would be fully satisfied by simply advis-
ing the defendant that such an admission
can provide a basis for an increased term
of imprisonment and/or parole. Period!
In the case at bench, the record
is abundantly clear that appellant was
advised that by admitting the five charged
priors his minimm term would be increased
to four years under Penal Code section
3024, subdivision (b), which required the
combination of prior felony conviction and
being armed with a deadly weapon either at
the time of the offense or being armed with
a concealed deadly weapon at the time of
arrest. Appellant's contention that he was
not advised of the effect of his admission
that he was armed with a concealed deadly
weapon at the time of his arrest is techni-
cally correct. In the context of the entire
voir dire regarding the enhancement of the
minimum term, however, it is obvious that
the arming admission was part.and parcel of
the mechanism which activated section 3024.
Appellant cannot possibly claim any prejudice
by reason of the inarticulateness of his
own counsel's voir dire, since appellant
acknowledged and accepted the potential
of an increase to the four-year minimum which
was precisely what the arming admission
plus priors provided for (§ 3024, subd. (b)).
- C-21 -
The record does fail to show that
appellant was advised that he could be
impeached by the priors if he elected to
testify. But appellant cites no authority
that such advice is required. On the contrary,
the theory of Yurko is that advice and
waiver are required as to consequences in
terms of increased penalty (In re Yurko,
supra, 10 Cal.3d at p. 864). Clearly,
impeachment presents no such potential. I
therefore would reject this contention of
Yurko error.
Likewise, the lack of admonition
concerning the possible application of
the Habitual Criminal Law is without merit,
since the court did not sentence appellant
as an habitual criminal.
However, I agree that remand is
necessary in this case because (although
not discussed by the parties) the record
fails to show that the trial court made any
finding that the admissions and waivers by
appellant were knowing and intelligent
(In re Yurko, supra, Fo Cal.3d at p. 865).
I observe in closing, however, that the
preferred practice in taking guilty pleas
or admissions of prior convictions or
waiver of constitutional rights is for the
trial judge to conduct the voir dire
personally. We have observed in this and
other cases that where the inquiry is
delegated to counsel the margin for error
increases demonstrably.
Kane, J.
= €-22 -
[Filed May 17, 1978]
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
1 CRIM. NO. 15834
(Sup.Ct.No. 61376)
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
PAUL MICHAEL MINJARES,
Defendant and Appellant.
THE COURT:
On his petition for rehearing,
defendant argues that the People conceded
at oral argument that the People v. Rollo
(20 Cal.3d 109) error here was per se
reversible. There is no transcript of the
argument. However, the People's brief
contended that a Rollo error would not be
reversible per se, but would be subject
to the rule enunciated in People v. Watson,
46 Cal.2d 818, 836. If the concession was
made at oral argument, it was clearly
- C-23 -
érroneous and this Court is not bound by
such concession in rendering its opinion.
The petition for rehearing is
denied.
Dated: May 17, 1978.
Taylor, P.J.
Presiding Justice
APPENDIX D
=,
No. 20549
IN THE SUPREME COURT OF THE STATE
STATE OF CALIFORNIA
IN BANK
PEOPLE
Ve
MINJARES
Request for an order staying
issuance of the remittitur is denied.
Appellant's motion for release from
custody is denied.
SUPREME COURT
FILED
June 27, 1979
G. E. Bishel, Clerk
Deputy
BIRD
Chief Justice
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.