# Petition — California v. Minjares > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0636%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 887 ## Text 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.