Petition — California v. Dalton

Supreme Court, U.S.

FILED

pec 14 919

ICHAEL RODAK, JR., CLERK

In the Supreme Court

OF THE

United States

OcTOBER TERM, 1979

Wo. 9-930

THe PEOPLE OF THE STATE OF CALIFORNIA

Petitioner,

Vs.

F'repprt Daron

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of California

Grorcse DEuKMEJIAN

Attorney General of the State of California

Rosert H. Pxurmimosian

Chief Assistant Attomey General—

Criminal Division

Epwakp P. O’Brren

Assistant Attorney General

Rosset R. Granvcct

Deputy Attorney General

Ronaup E. Niver

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Telephone: (415) 557-2653

Attorneys for Petitioner

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © &S.F., CA 94111 © (415)

®

SUBJECT INDEX

Page

a ci nas wpe keke 1

EEE ty. cots ses csewereede. cc eeaes teres 2

ney I i ie. WR... ein He 2

| Constitutional provision involved .......................... 2

cs cue ems ye ceo he 2

ee TP MN Nn os Gis sis sing» wlacece since os ap eras 2

B.. Statement of Qhe facies... 6 ois. cd. cece ce ene 4

Reasons for granting the writ ............................. 7

ee eae he gay. g's. An's d wins ws ba « Kv « Peck 8

Police may lawfully conduct a warrantless search of containers

en ee OOF, 2501) Oak. SER cadet: op went 8

I USS gee oO OR aA oe ye 16

OL

li

. TABLE OF AUTHORITIES CITED

Cases

Arkansas v. Sanders, 442 U.S. .. (1979) 47 U.S.L.W. 4783,

Se NE ses Foes CORA eek eeS eats 7, 8, 9, 10, 11, 12,13

Bell v. Wolfish, .. U.S. .., 47 U.S.L.W. 4507 (1979) ........ 15

Cady v. Dombrowski, 413 U.S. 433 (1973) ................ 9, 10

Cardwell v. Lewis, 417 U.S. 583 (1974) .................. 10, 11

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

Chambers v. Maroney, 399 U.S. 42 (1970) .............. 9,10, 11

Coolidge v. New Hampshire, 403 U.S. 443 (1971) .......... ll

Cooper v. State of California, 386 U.S. 58 (1967) .......... 9

Katz v. United States, 389 U.S. 347 (1967) (Harlan, J., con-

I Sane oss sit Sas Peak Cobos ses cy 13

Marron v. United States, 275 U.S. 192 (1967) ............. 14

Michigan v. Tyler, 436 U.S. 499 (1978) .................. 15, 16

Mincey v. Arizona, 437 U.S. 385 (1978) .................. 15, 16

People v. Rogers, 21 Cal.3d 542, 579 P.2d 1048, 146 Cal.

UR EM SoG eee ie oy eee, 9

Rakas v. Illinois, 439 U.S. 128 (1978) ............. 7, 10, 12, 13, 14

South Dakota v. Opperman, 428 U.S. 364 (1976) .......... 10

Stanford v. Texas, 379 U.S. 476 (1965) .................... 14

Tenes v. White, 485 U.S. G7 (1076) ...................... 9

United States v. Chadwick, 433 U.S. 1 (1977) .......... 8, 10, 11

United States v. Martinez-Fuerte, 428 U.S. 543 (1976) ...... 9

United States v. Milhollan, 509 F.2d 518 (3d Cir.), cert.

denied, .. U.S. .., 48 U.S.L.W. 3240 (1979) ............ 11, 12

United States v. Ortiz, 422 U.S. 891 (1975) ................ 9

Constitution

United States Constitution:

I III ee ot 2, 8,9

Rule

California Rules of Court, Rule 24(a) .................... 1

|

|

iii

TABLE OF AUTHORITIES CITED

Statutes

Page

California Business & Professions Code:

EE NS ne i oo a ee ne 3

California Health and Safety Code:

ANI Og a ain liad eae a a 3

REE AR aS CRS ARS Te aoa $s nue 2

a IDES RAE ai SARC et Hage ll a 3

ERS ae a> | Ae ae ee ee oe ee 2

California Penal Code:

ay ead cee sie ke Tt 3

gt cia le Ei aia ep la a key de 3

I oo, CeCe Oe ek Seat tbe Ao oa eu 2

Ee is Sie e rg wee whee free vinta 2,3

I ss ae gc a eae Pn oy es eae 2

I co BP tee Te tie ae

California Vehicle Code:

RE CLA Tea Rae ne (ORES eag BIRD gn a RePaOE RE hemn* totem 3

ee a BEC OS ee eee co 2

Text

Warrantless Searches and Seizures of Automobiles, 87 Harv.

Ray SUR cis Pas era te we nent che Ee Le ee 10

In the Supreme Court

OF THE

United States

Ocroser TreRMm, 1979

No.

THe PEOPLE oF THE STATE OF CALIFORNIA

Petitioner,

vs.

Freppig Daron

Réspondent.

Petition for a Writ of Certiorari to the

Supreme Court of California

The Petitioner, the People of the State of California,

respectfully prays that a writ of certiorari issue to review

the judgment of the Supreme Court of California, which

was entered in this proceeding on August 16, 1979, and

which became final on September 17, 1979 (Rule 24(a),

California Rules of Court).

OPINION BELOW

The opinion of the Supreme Court of California, which

may be found at 24 Cal.3d 850, 598 P.2d 467, 157 Cal. Rptr.

497 (1979), appears as Appendix A to this petition. The

vacated opinion of the California Court of Appeal, First

Appellate District, Division Four, appears as Appendix

B to this petition.

2

' SURISDICTION

The judgment of the Supreme Court of California became

final on September 17, 1979. This petition for writ of cer-

tiorari was filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Whether the thief of a car has an expectation of pri-

vacy in containers found therein so intense as to require

police to secure a warrant before they may search those

containers.

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment IV:

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, sup-

ported by oath or affirmation, and particularly describ-

ing the place to be searched, and the persons or things

to be seized.”

STATEMENT OF THE CASE

A. History of the Case

By Information No. 93563 filed in the San Francisco

Superior Court on December 17, 1976, respondent Freddie

Dalton was charged: with: (1) possession of a sawed-off

shotgun (Cal. Pen. Code § 12020); (2) possession of a

concealable firearm by a former felon (4 12021); (3) pos-

session for sale of amphetamine (Cal. Health and Safety

Code § 11378) ; (4) possession for sale of heroin (§ 11351) ;

(5) possession of a concealable firearm within a vehicle by

a former felon (Pen. Code § 12025(a)); and (6) car theft

3

(Cal. Veh. Code § 10851). It was further charged that

respondent was armed with 4 knife and a handgun at the

time of the offenses alleged in Counts 1-4 and 6, and that

he had previously been convicted of a felony. Respondent.

pleaded not guilty to all counts and denied the arming

and prior felony allegations on December 28, 1976 (CT 6).?

By Information No. 93588 filed in the San Francisco

Superior Court on December 21, 1976, respondent was fur-

ther charged with: (1) possession of heroin (Cal. Health

and Safety Code § 11350) ; (2) possession of methampheta-

mine ({ 11377) ; (3) possession of a concealable firearm by

former felon (Pen. Code § 12021); (4) possession of a

hypodermic needle and hypodermic syringe (Bus. & Prof.

Code § 4143(a)); and (5) knowingly giving false informa-

tion to an officer who was in the performance of his duties

(Pen. Code § 31) (CT 7-8). A prior felony conviction was

alleged by amendment on December 28, 1976 (CT 9-10).

By Information No. 93630 filed in the San Francisco

Superior Court on December 22, 1976, respondent was

charged with possession of a concealable firearm by a

former felon. The information also alleged a prior felony

conviction (CT 11-12).

Respondent’s motions to suppress evidence (Cal. Pen.

Code § 1538.5) and to dismiss Information No. 93563 (§ 995)

were denied by the superior court on January 24, 1977

(CT 34).

On January 27, 1977, respondent withdrew his plea of

not guilty to the offenses charged in Information No. 93563

and pleaded guilty to the crimes of possession for sale of

*“CT” designates the Clerk’s Transcript on Appeal.

4

heroin (Count 4) and car theft (Count 6). Respondent

admitted the prior felony conviction. Upon the motion of

the district attorney, the trial court dismissed Counts 1,

2, 3, and 5, and struck the arming allegation (CT 59). Also

on January 27, respondent withdrew his plea of not guilty

to the- offense charged in Information No. 93630 and

pleaded guilty to the crime of. possession of a concealable

firearm by a former felon. The court struck the prior upon

the motion of the district attorney ( CT 61). Also upon the

motion of the district attorney, Information No. 93588 was

dismissed in its entirety (CT 60).

On February 17, 1977, respondent was sentenced to state

prison for the terms prescribed by law for possession for

sale of heroin, car theft, and possession of a concealable

weapon by a former felon. The sentences for each offense

were to run concurréntly (CT 62-63, 65-69).

On April 20, 1978, the California Court of Appeal, First

Appellate District, Division Four, affirmed the judgment

of convictions. On July 15, 1978, the California Supreme

Court granted a hearing and transferred the cause to itself.

On August 16, 1979, the supreme court reversed, holding

that the challenged warrantless search was unreasonable,

and remanded the canse to the trial court. Respondent was

given the options of standing on his guilty pleas or with-

drawing the pleas and awaiting a refiling by the prosecutor

of those charges which could be supported by admissible

evidence. The judgment became final on September 17, 1979.

B. Statement of the Facts

The evidence adduced at the preliminary hearing held

on Information No. 93563 established that Officer David

4)

Ellis of the California Highway Patrol stopped a white

1966 Cadillac on Highway 280 at about 2:35 p.m. on March

3,°1976 for exceeding the speed limit. The driver of: the

car, respondent Freddie Dalton, turned off at 25th and

Pennsylvania Streets in San Francisco and stepped from

the vehicle, armed with two knives in his belt (PHT 3-4,

6).2 A woman remained in the car. Ellis took one of the.

knives, not covered by a sheath, from respondent’s belt,

advised respondent that he had exceeded the speed limit,

and asked to see his driver’s license (PHT 7). Respondent

said that he had no identification and claimed that his name

was Woods (PHT 8). The car had no registration papers

(PHT 29). Although he said that the woman’s name was

Marlene, she identified herself as Victoria Arzadon and

produced a document bearing that name (PHT 9). Because

respondent had no identification and gave a name at vari-

ance with that provided by the woman, Officer Ellis radioed

for a back-up unit (PHT 9).

Responding to the call was Officer Michael Peterson,

whom Officer Ellis told to speak with the female passenger

(PHT 18). As Peterson kneeled down at the open door

on the driver’s side, he saw a gun beneath the arm rest

which had been lowered onto the seat (PHT 20). He seized

the gun, gave it to Officer Ellis, and asked the woman to

step from the car (PHT 21).

California Highway Patrol Officer James Hertogs testi-

fied that he arrived at 25th and Pennsylvania Streets in

response to Officer Ellis’ radio request that the car’s VIN

number be ascertained. Since the car bore license plates

*“PHT” designates the Preliminary Hearing Transcript.

6

of another state and was without registration cocuments,

Ellis wanted to investigate the possibility that it had been

stolen (PHT 28-29). Hertogs’ inspection revealed that the

engine and frame numbers were the same, but were differ-

ent than the number on the doorplate (PHT 29-30). A radio

check on the Cadillac provided the information that it might

have been stolen in San Francisco in January of 1976

(PHT 31).

By this time the woman, whose real name was Clare

Willock, was handcuffed and seated on the curb of the

street (PHT 31). Officer Hertogs explained to her that she

would be transported to jail because she was under arrest

for possessing a firearm in the car. He asked whether she

had any belongings in the automobile which she wanted

to take with her. She replied that in the trunk were two

suitcases and a box of Pampers which she wanted (PHT

32). Seeing that the trunk lock had been “punched,”

Hertogs opened the trunk by removing the lock cylinder

with a screwdriver. His purpose for opening the trunk

was to retrieve the items which Willock requested (PHT

33).

In the trunk Officer Hertogs saw a blue suitcase, a box

of Pampers, a large metal box, and two shoulder holsters

(PHT 33). As only one weapon had been found in the car,

Hertogs deduced that a second handgun might be found

in the trunk (PHT 34). Beneath the suitcase the officer

found an unlocked brown box, inside of which was a dis-

assembled sawed-off shotgun (PHT 34-36). Still looking

for a second handgun, Officer Hertogs opened the locked

metal box, in which he found narcotics paraphernalia, a

bag of white powder, five small packets of brown powder,

7

five packets of white powder, a .357 caliber revolver, and a

weapon of a smaller caliber (PHT 39-44, 66). A second

metal box in the trunk contained a packet of balloons of

white powder, a scale, blender, and a pestle and mortar

(PHT 46-50). During the examination of the trunk, Inspec-

tor Hoenisch of the San Francisco Police Department

arrived to conduct a field test of the powders found in the

vehicle (PHT 45).

It was stipulated that Grace Williams would have testi-

fied that she lived at 27 Agnon Avenue in San Francisco

on January 12, 1976, when she discovered that her white

1966 Cadillac was missing from her driveway at about

2:30 p.m. The VIN number of the car matched that of the

vehicle found in possession of respondent when he was

apprehended (PHT 1, 30).

It was further stipulated that the packets contained over

70 grams of amphetamine (PHT 95-97), and over four

grams of heroin (PHT 96). In addition, it was stipulated

that an expert would testify that the substances had been

packaged for future sale (PHT 94).

REASONS FOR GRANTING THE WRIT

This case presents an issue left open by Rakas v. Illi-

nois, 439 U.S. 128 (1978); and Arkansas v. Sanders, 442

Garis , 47 U.S.L.W. 4783 (1979), to wit: Does the thief

of a car have an expectation of privacy in containers

placed within so great as to require that police officers

obtain a warrant before searching those containers?

The State of California submits that an analysis of the

privacy expectations of the owner and thief of an automo-

8

bile point to the reasonableness of a warrantless search of

containers in a car known to be stolen. A thief should be

held to know that the inevitable capture of the car will en-

tail a search to determine its ownership and an inspection

of any containers to determine their ownership. The owner

of the car who has reported it stolen has effectively con-

sented to a search of the vehicle for items of evidentiary

significance.

Not only may a thief of a car reasonably expect that a

warrantless search be necessary and therefore inevitable,

but also procurement of a warrant may often be difficult.

Police seizing a suitcase or other container in a stolen car

typically will not know what it holds. But the Fourth

Amendment requires that the warrant describe with rea-

sonable particularity the thing to be seized. Thus, a magis-

trate could not lawfully issue a warrant to an officer who

did not know what he was looking for in the container.

This case is of nationwide importance because police in

all jurisdictions must be informed of the extent to which

they may search stolen vehicles. We submit that the search

must include any containers found inside the car.

ARGUMENT

POLICE MAY LAWFULLY CONDUCT A WARRANT.

LESS SEARCH OF CONTAINERS FOUND IN A

. STOLEN CAR

In its opinion below, the California Supreme Court, rely-

ing upen Arkansas v. Sanders, 442 U.S. ....... (1979) ; and

Umted States v. Chadwick, 433 U.S. 1 (1977), held that

probable cause to believe that a car is stolen does not fur-

9

nish to police the right to conduct a warrantless search of

its containers. The court reasoned that once the containers

have been immobilized, there were no exigent circum-

stances which required an immediate search. The fact that

the car was stolen was deemed irrelevant to the analysis.

Although the car thief had no protectible interest in the

car, he did have such an interest in the containers, which

police did not believe were stolen. A person who has placed

his personal effects in a stolen car has not waived his right

of privacy in their contents. The court therefore held the

warrantless search to be unreasonable within the meaning

of the Fourth Amendment. |

We first state applicable principles. When police stop a

car on the street or highway because they have probable

cause to believe that it contains contraband or evidence of

a crime, they may search it without a warrant. Arkansas

v. Sanders, supra, 442 U.S. at ...... 99 S.Ct. 2575, 2581;

United States v. Martinee-Fuerte, 428 U.S. 543, 561-562

(1976); Texas v. White, 423 U.S. 67, 68 (1975); United

States v. Ortiz, 422 U.S. 891, 896 (1975) ; Chambers v. Ma-

roney, 399 U.S. 42, 47-49 (1970) ; Carroll v. United States,

267 U.S. 132, 153 (1925). An automobile which has been

stolen is evidence of a crime and, as such, may be searched

without a warrant. See People v. Rogers, 21 Cal.3d 542,

549, 579 P.2d 1048, 146 Cal.Rptr. 732 (1978).

The search may be conducted on the spot (Carroll v.

United States, supra), or at the police station garage.

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

Cady v. Dombrowskt, 413 U.S. 433, 439-448 (1973) ; Cooper

v. California, 386 U.S. 58 (1967).

10

Although some cases have suggested that the warrant-

less search is necessitated by the exigent circumstances oc-

casioned by the car’s mobility (Arkansas v. Sanders, supra,

99 S.Ct. at 2591; Chambers v. Maroney, supra, 399 U.S. at

49-50), that rationale makes the station house search cases

inexplicable despite attempts to reconcile them with the

warrantless search rule. Arkansas v. Sanders, supra, 99

S.Ct. at 2594 n.14; Note, Warrantless Searches and Seiz-

ures of Automobiles, 87 Harv.L.Rev. 835, 843-845 (1974).

Noting that “warrantless searches of vehicles [have been

upheld] in cases in which the possibilities of the vehicle’s

being removed or evidence in it destroyed were remote, if

nonexistent” (Cady v. Dombrowski, supra, 413 U.S. at

441-442), this Court has concluded that a warrantless

search is justified by the diminished expectation of pri-

vacy which surrounds the automobile: “One has a lesser

expectation of privacy in a motor vehicle because its func-

tion is transportation and it seldom serves as one’s resi-

dence or as the repository of personal effects.” Cardwell

v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion) ;

United States v. Chadwick, supra, 433 U.S. at 12. “Auto-

mobiles operate on public streets; they are serviced in

public places; they stop frequently; they are usually

parked in public places; their exteriors are highly visible ;

and they are subject to extensive regulation and inspec-

tion.” Rakas v. Illinois, supra, 439 U.S. at 154 n.2 (Powell,

J,. concurring). See also South Dakota v. Opperman, 428

U.S. 364, 367-368 (1976).

We therefore submit that an officer discovering probable

cause to believe that a car has been involved in a crime

may conduct a warrantless search of that vehicle if the

11

detention and search are fortuitous and unforeseeable.

Compare Chambers v. Maroney, supra, at 51, with Coolidge

v. New Hampshire, 403 U.S. 448, 471 n.27 (1971) (“we

deal here with a planned warrantless seizure”) ; see United

States v. Milhollan, 599 F.2d 518, 526 (3d Cir.), cert. de-

wed, ........ We Un. , 48 U.S.L.W. 3240 (1979); but see

Cardwell v. Lewis, supra, 417 U.S. at 595-596 (plurality

opinion). If the vehicle can be searched on the street, no

greater intrusion occurs by (1) the seizure of the car be-

fore presenting the probable cause issue to a magistrate;

or (2) the removal of the car to the station house, where

it is subsequently searched. Chambers v. Maroney, supra.

In other words, an unplanned search of a car can be con-

ducted without a warrant on the street because of the

driver’s diminished expectation of privacy; it can also

be made at the station house because the removal from the

street occasions no greater intrusion than the original

search.

The search of containers found in the car apparently

presents a separate problem. In Arkansas v. Sanders,

supra, decided last Term, this Court held “that the war-

rant requirement of the Fourth Amendment applies to- per-

sonal luggage taken from an automobile to the same degree

it applies to such luggage in other locations.” 99 S.Ct. at

2594. Probable cause to believe that a suitcase in the trunk

of a car contains evidence of a crime is not legally sufficient

to authorize a search; the owner’s reasonable expectation

of privacy requires that a search warrant be secured. See

Umited States v. Chadwick, supra, 433 U.S. 1. It has not

been decided “whether a warrant is required before open-

ing luggage when the police have probable cause to believe

12

contraband is located somewhere in the vehicle, but when

they do not know whether, for example, it is inside a piece

of luggage in the trunk, in the glove compartment, or con-

cealed in some part of the car’s structure.” Arkansas v.

Sanders, supra, 99 S.Ct. at 2595 (Burger, C.J +» concur-

ring) ; accord, United States v. Milhollan, supra, 599 F.2d

at 527.

Turning to the facts of the present case, the police knew

that the car was stolen.* They did not, however, have infor-

mation about the contents of the suitcases and boxes found

in the trunk of the car. As was true in Milhollan, “the

police had probable cause to believe that [the] car, not a

particular container in brief contact with [the] car, con-

tained evidence of a crime. Their suspicions were not

localized; their search of the automobile was not a pretext

for a search of the satchel.” 599 F.2d at 527.

We submit that Rakas v. Illinois, supra, provides guid-

ance for the disposition of the question whether warrants

are required for the search of containers in a stolen car.

In Rakas, this Court discarded the “rubric of standing,”

instead holding that the right of a defendant to challenge

the legality of a search and seizure is determined by

“whether tiie disputed search and seizure has infringed

an interest of the defendant which the Fourth Amendment

*Although the lower court waived the purported “failure of

the officers to articulate the premise [of the stolen nature of the

car] at the preliminary hearing” (24 Cal.3d 857; 598 P.2d at 471;

157 Cal.Rptr. at 501), it is clear that the stolen status of the car

was, or would have been, the ultimate reason for its search. The

police knew that it was stolen; it was seized because it was stolen;

it was going to be towed because it was stolen; and it would have

been searched at the station because it was stolen. Therefore, the

propriety of searching a stolen car was before the lower court and

is before this Court.

13

e

was designed to protect.” 439 U.S. at 140. The interest, or

expectation of privacy, “must have a source outside of the

Fourth Amendment, either by reference to concepts of real

or personal property or to understandings that are recog-

nized and permitted by society.” Id. at 144 n.12. Despite

respondent’s ownership of the containers ultimately

searched (see Arkansas v. Sanders, supra, 99 S.Ct. at 2592

n.8; Rakas v. Illinois, supra, 439 U.S. at 142 n.11), we sub-

mit that his interest in these containers, voluntarily placed

in the stolen car, was not “one that society is prepared to

recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S.

347, 361 (1967) (Harlan, J., concurring).

A car thief, or the driver of a car known to be stolen,

must be held to realize that the car will probably be dis-

covered by police. Once it is seized, it will also be searched

for indicia of ownership (registration and the like), finger-

prints, burglar tools, and other items of evidentiary sig-

nificance. Not only is this search inevitable, it may not be

challenged by the thief. Rakas v. Illinois, supra, 439 U.S.

at 141 n.9. Furthermore, the owner of the car has effec-

tively consented to the search when he has reported the

vehicle as stolen.

The next question is what socially acceptable expecta-

tion may the thief have with regard to the containers

within the car. The ownership of any containers in a stolen

vehicle is necessarily unsolved at the time of the seizure.

A suitcase or box found in a trunk may belong to the thief,

his passenger, the owner of the car, or some other victim.

Police should not have tc take the word of the thief that

the articles were his when an inspection of the contents

often can settle the matter.

14

The lower court characterized the foregoing argument

regarding expectations of privacy as “circular.” “First,

[the State] contends that the car could be searched because

[respondent] had no privacy interest in it. Then [the

State] contends that [respondent] could have no privacy

interest in the car because it would ultimately be searched

if he were caught.” 24 Cal.3d at 858 n.2; 598 P.2d at 472

n.2; 157 Cal.Rptr. at 502 n.2. The criticism perhaps would

be valid if we had argued that any search procedure estab-

lished by the police or the legislature could lawfully

diminish privacy expectations. But that was not, and is

not, our position. Rather, we submit that the necessity

for the search, a procedure which should be “recognized

and permitted by society,” precludes a property interest

in the containers “sufficient to establish a legitimate expec-

tation of privacy with respect to particular items located”

in, the containers. Rakas v. Illinois, supra, 439 U.S. at

144 n.12.

There is an additional reason why the search warrant

procedure required by the lower court would be unaccept-

able in most cases of this sort. An officer who finds a suit-

case or other container in a stolen car typically will not

know what it holds. But the Constitution demands that the

warrant describe with reasonable particularity the thing

to be seized. Stanford v. Texas, 379 U.S. 476, 485-486

(1965); Marron v. United States, 275 U.S. 192, 195-198

(1967). A magistrate could not lawfully issue a warrant

to an officer who did not know what he was looking for in

the container. The officer is left with two alternatives: He

can return the suitcase to the thief without examining its

contents, surely an irresponsible act; or he can open it to

2

15

discover what it contains, the most reasonable course he

could follow.

It was suggested in the lower court’s opinion that con-

tainers in the car could be removed for safekeeping until

the vehicle’s owner had a chance to identify them. 24 Cal.

3d at 859; 598 P.2d at 472; 157 Cal.Rptr. at 502. But if the

owner cannot identify them as his own, it would not follow

that they belonged to the thief, for he might have taken

them from a third party. Furthermore, if the car’s owner

is unavailable, the containers may be left unclaimed and

unidentified indefinitely. Simply stated, it is reasonable

for the police to conduct an immediate search of a stolen

car and its contents for indicia of ownership and other

items of evidentiary significance.

Finally, we address the lower court’s declaration that the

reasonable expectation of privacy of a person is not for-

feited because police believe that he has committed a crime.

24 Cal.3d at 859; 598 P.2d at 472-473; 157 Cal.Rptr. at 502-

503. According to the lower court, our “argument justifies

the search not by the officer’s belief at the time, but by the

fact of [respondent’s] subsequent conviction.” Jd. In fact,

after receiying the radio report that the car had been

stolen, the police had probable cause to believe that re-

spondent had no expectation of privacy in the car or its

contents. Police need not wait until conviction to conduct

a search because the presumption of innocence has no

bearing on the reasonableness of a search. See Bell v.

Wolfish, ...... US. ....... 47 U.S.L.W. 4507, 4510 (1979).

Mincey v. Arizona, 437 U.S. 385, 391 (1978) ; and Michi-

gan v. Tyler, 436 U.S. 499, 506 (1978), cited by the lower

PE ONAL NEL ET te CENCE hp MEE IN WE TE ID

16

court, are not in point. In neither case was there doubt

about the property interest of the defendant in the place

that was searched. Mincey rented his apartment, and his

arrest for murder did not forfeit his right to privacy in it.

Tyler leased the building in which he had started an arson

fire, and his arrest did not alter his property right or

diminish his expectation of privacy. But when the crime

suspected establishes that there may be no property right,

then the propositions articulated in Mincey and Tyler have

no relevance. In this case, probable cause existed that re-

spondent stole the car; therefore, probable cause existed

that he had no property interest and no privacy right in

the automobile. Police were entitled to search the car and

its contents based on that reasonable suspicion.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for writ of certiorari should be granted.

Dated: December 6, 1979

Grorce DEUKMEJIAN

Attorney General of the State of California

Rosert H. Pumisosian

Chief Assistant Attorney General—

Criminal Division

Epwarp P. O’Brien

Assistant Attorney General

Rosert R. Granvcci

Deputy Attorney General

Ronap E. Niver

Deputy Attorney General

Attorneys for Petitioner

(Appendices Follow)

Appendices

Appendix A

In the Supreme Court of the

State of California

Crim. 20550

(Super. Ct. No. 93563)

‘ithe People, j

Plaintiff and Respondent,

Vs.

Freddie Dalton,

Defendant and eats

[Filed Aug. 16, 1979]

This court must decide whether the warrantless search

of closed boxes in the trunk of a car was lawful after the

driver was under arrest and handcuffed.

I

Around 2:30 p.m. on March 4, 1976, Officer Ellis of the

California Highway Patrol observed a white Cadillac

bearing Arizona license plates proceeding about 65 miles

per hour southbound on Highway 280. He followed the car

a short distance and signalled the driver to stop. The

Cadillac left the freeway and stopped.

Appellant, the driver, stepped out of the ear. Officer

Ellis noticed two knives in his belt. When appellant was

unable to produce any identification or vehicle registra-

tion, the officer requested and received the driver’s license

A-2

of appellant’s passenger. A backup unit was requested and

Officer Peterson arrived three or four minutes later. While

questioning the passenger, Officer Peterson saw what he

believed to be the butt of a gun wedged between the seat

and an armrest that bisected the front seat. The gun was

removed. Appellant: and his passenger were arrested for

carrying a concealed weapon in a vehicle (Pen. Code,

§ 12025, subd. (a)), and both were placed i in handenffs and

seated on the curb until transported to the police station.

The officers radioed for assistance because they sus-

pected the vehicle might be stolen. Officer Hertogs

responded. Another officer, who happened to be passing

by, also stopped. Officer _Hertogs — ascertained that the

identification number on the engine of the car was the

same as the number on the car’s frame, but not the same

as the number on the car’s doorplate. A further check

revealed that the vehicle associated with one of those

numbers was possibly stolen.

The passenger was ‘adorned that she and appellant

would be transported to the police station and she was

asked if she wanted anything from the car. She requested

the suitcase and a box of Pampers. Unable to find them in

the passenger compartment, Hertogs was told by the pas-

senger that they were in the car’s trunk. He opened the

trunk with a screwdriver because the trunk was “punched.”

Inside he observed two empty shoulder holsters, two

suitcases, a box of Pampers, a large silver colored metal

box and various tools. Since only one weapon had been

located inside the car, the officer began to search for

another weapon to go with the second shoulder holster.

A-3

One suitcase and a box of Pampers were removed, and a

brown leather box was found beneath the suitcase. On the

top was written “Longines, the world’s most honored

watch.” Officer Hertogs opened the box and found a dis-

assembled sawed-off shotgun. Next to the leather box was

a silver-gray metal box. Hertogs removed it and opened

it with a screwdriver. Inside were plastic bags with a white

powder subsequently identified as amphetamine, a small

caliber revolver, some small packets containing a brown

powder later identified as heroin, and narcotics parapher-

nalia. The suitcases were also searched, but they contained

no contraband.

The highway patrol officers radioed the San Francisco

Police Department for assistance and an officer from the

narcotics detail arrived. The large metal toolbox was

removed from the car and its padlock hammered off.

Inside were packets of the white powder, mortar and

pestle, a scale, a grinder, and plastic bags. Appellant and

his passenger were transported to the police station and

charged with possession of controlled substances for sale

(Health & Saf. Code, §§ 11378, 11351), auto theft (Veh.

Code, § 10851) and various weapon offenses (Pen. Code,

$§ 12020, 12021, 12025, subd. (a)).

A motion to suppress was made and denied at the pre-

liminary hearing. Neither appellant nor his codefendant

testified. That motion was renewed in superior court based

on the transcript of the preliminary hearing. Following

its denial, appellant pled guilty to possession of heroin

for sale and auto theft. This appeal followed.

* Appellant also pled guilty to a consolidated charg SD ewe

of a concealable firearm by one who has been aan felony.

(Pen. Code, § 12021.) That conviction is not involved in this appeal.

A4

Re |

This court must decide whether a warrantless search

may be made in the field of closed personal effects found

in the trunk of a car when the car’s occupants have been

taken into custody.

The Fourth Amendment guarantees individuals privacy

in their persons, homes, papers and effects against unrea-

sonable searches and seizures. In addition, it protects

against searches conducted without a judicially issued

search warrant. As the Supreme Court has recently stated,

“In the ordinary case, therefore, a search of private prop-

erty must be both reasonable and performed pursuant to

a properly issued search warrant. The mere reasonable-

ness of a search, assessed in the light of the surrounding

circumstances, is not a substitute for the judicial warrant

required under the Fourth Amendment.” (Arkansas v.

Sanders (1979) ...... ase 2G. Pra [47 U.S. L.Week 4783,

4785].)

The high court has repeatedly held that warrantless

searches are per se unreasonable under the Fourth Amend-

ment, subject only to a few carefully circumscribed and

jealously guarded exceptions. (Jones v. United States

(1958) 357 U.S. 493, 498-499; Katz v. United States (1967)

389 U.S. 347, 357; Mincey v. Arizona (1978) 437 U.S. 385,

390; Arkansas v. Sanders, supra, ...... Una wy. =: [47

U.S. L.Week at p. 4785].) If the warrantless search of the

boxes found in the trunk of the car 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 (195€) 46 Cal.

2d 269, 272.) | |

A-5

Respondent contends that neither appellant nor his pas-

senger had any protectible privacy interest in the boxes

because they were in the trunk of a stolen automobile.

A warrantless search of closed containers found within an

automobile involves considerations separate from those

involved in a warrantless search of the interior of the

automobile, and it must be justified by some recog-

nized exception to the warrant requirement. (Arkansas v.

Sanders, supra, ...... ie. oy ee [47 U.S. L.Week at

p. 4786]; People v. Minjares (1979) 24 Cal.3d 410, 425; see

also United States v. Chadwick (1977) 433 U.S. 1, 15.)

The considerations involved in a search of closed per-

sonal effects were explored in United States v. Chadwick,

supra, 433 U.S. 1. In Chadwick the Supreme Court held

invalid a delayed warrantless search of luggage, believed

to contain contraband, which was removed from an auto-

mobile. The court noted that at the time of the search the

luggage had come under the exclusive control of federal

agents since the suspects had been placed in custody.

Therefore, the search could not be characterized as incident

to an arrest. (Jd., at p. 15.)

The court emphasized that individuals have a greater

privacy interest in the contents of closed luggage than in

the interior of an automobile. It went on to note that

luggage is easier to secure while seeking to obtain a war-

rant than is an automobile. (Zd., at p. 13, fn. 7.) Chadwick

held that once luggage comes under the exclusive control

of law enforcement officers, a warrantless search is per-

missible under the federal Constitution only if both prob-

A-6

able cause and actual exigent circumstances are present.

(Id., at. pp. 15-16.)

In People v. Minjares, supra, 24 Cal.3d 410, 423, this

court applied the reasoning of Chadwick and held that

luggage, found in an automobile which was at the station-

house and in the exclusive control of police, may not be

searched without a warrant absent exigent circumstances.

Subsequent to this court’s decision in Minjares, the

Supreme Court held in Arkansas v. Sanders, Supra, ......

US. ..... [47 U.S. L.Week 4783] that a warrant is also

required to search luggage when it is removed from an

automobile in the field. (...... U.S. at p. ...... [47 U.S. L.Week

at p. 4786].) Paralleling this court’s reasoning in Minjares,

the Supreme Court in Sanders reiterated the distinctions

drawn in Chadwick—that individuals have a greater priv-

acy interest in closed luggage and that luggage, by its

nature, may be more easily reduced to the control of police.

“[A]s we noted in Chadwick, the exigency of mobility must

be assessed at the point immediately before the search—

after the police have seized the object to be searched and

have it securely under their control. See 433 US., at 13.

Once police have seized a suitcase, as they did here, the

extent of its mobility is in no way affected by the place

from which it was taken. Accordingly, as a general rule

there is no greater need for warrantless searches of lug-

gage taken from automobiles than of luggage taken from

other places.” (...... of @ s yam [47 U.S. L.Week at

p. 4786], fns. omitted.)

Under both Minjares and Sanders, respondent must

show not only that probable cause existed for the search

of the boxes in this case, but also that exigent circum-

A-7

stances dictated an immediate search without a warrant.

Finally, Sanders makes it clear that because a search takes

place in the field rather than at the stationhouse does not

eliminate the need for a warrant. (See also United States

v. Johnson (5th Cir. 1979) 588 F.2d 147, 151; United

States v. Stevie (8th Cir. 1978) 582 F.2d 1175, 1179-1180.)

Here, the boxes were discovered in the trunk after ap-

pellant and his passenger had been handcuffed and placed

under arrest. At that time, four highway patrolmen and

four highway patrol cars were on the scene. The boxes

were not accessible to appellant or his passenger. At all

times after the discovery of the closed boxes, they were

under the exclusive control of the officers. Therefore, under

Chadwick the search cannot be characterized as incident

to the arrest. (433 U.S. at p. 15.) Further, the fact that the

boxes were found in the trunk of an automobile after the

officers legitimately opened the car’s trunk cannot validate

their later being searched. (People v. Minjares, supra, 24

Cal.3d at p. 423.)

In the present case, there were no exigent circumstances

that would have dictated an immediate search of the boxes.

Appellant and his passenger were safely under arrest.

The two metal boxes were closed, and anything that might

have been inside was well out of the reach of the hand-

cuffed suspects. Even though no decision had been made

as to whether the car should be impounded or towed, the

boxes themselves could have been safely transported to the

police station, No fears for the officers’ safety or threat of

destruction of evidence dictated an immediate search. (See

People v. Koehn (1972) 25 Cal.App.3d 799, 805.) Further,

A-8.

it was mid-afternoon on a weekday and a magistrate would

have been easily accessible only a-short distance away at.

the Hall of Justice. Since there was no necessity to im-

mediately search the boxes without a warrant, the search

whieh followed was invalid under Chadwick, Sanders and

Minjares. -

Respondent further contends that notwithstanding the

failure of- the officers to articulate the premise at the pre-

liminary hearing, the officer’s belief that the car might be

stolen provided a legitimate basis for a warrantless search.

He argues that officers may properly search a stolen car,

and that this search extends to any and all locked con-

tainers within that car.

Respondent contends that the officer’s belief that a car

is stolen provides probable cause to search it under the

“automobile” exception of Chambers: v. Maroney (1970)

399 U.S. 42, 48-49. This argument misses the point. The

suspicion that an automobile may be stolen goes to the

issue of the validity of a warrantless search of the auto-

mobile itself. Appellant is contesting the search of the

boxes, not the search of the car. Respondent has never

contended that the boxes were stolen, and the officers never

testified they had cause to believe they were stolen.

In searching the boxes, the officers testified they were

initially looking for appellant’s property. Even if the au-

tomobile itself could be searched without a warrant under

the “automobile” exception, the warrantless search of the

boxes must still be justified by some further exigency.

(Arkansas y. Sanders, supra, ........ U.S. at p. ....... [47 U.S.

L.Week at p. 4786]; United States v. Johnson, supra, 588

A-9

F.2d at p. 151; United States v. Stevie, supra, 582 F.2d at

pp. 1179-1180.) The belief that the automobile may be

stolen provided no exigency dictating an immediate search

of the boxes, particularly when the driver was under arrest.

If the officers had reason to helieve that there was evidence

or contraband in the locked containers, the question of

probable cause should have been submitted to a magistrate.

Respondent also contends that one who has stolen an

automobile may not contest the search of the automobile or

of containers found within because he can have no privacy

interest in the stolen vehicle. Again respondent misses the

point. Even if ‘appellant had no protectible interest in the

car, he clearly had a reasonable expectation of privacy in

the contents of the boxes. (United States v. Chadwick,

supra, 433 U.S. at p. 11.) The officers never testified they

believed the boxes were stolen. Therefore, appellant could

properly contest the search of the boxes.? (Cf. Arkansas v.

Sanders, supra, ...... US. at p. ...... fn. 8 [47 U.S. L. Week

at p. 4786, fn. 8].)

A second variant of this argument is similarly flawed.

It is contended that appellant may not contest the search

of the car under the vicarious exclusionary rule because

no interest of the owner of the veb‘cle was violated. (See

People v. Solario (1977) 19 Cal.3d 760, 764.) Once again it

should be pointed out that appellant is contesting the war-

rantless search of the boxes, not of the car. He never dis-

*Respondent’s argument is circular. First, he contends that the

car could be searched because — had no privacy interest in

it. Then he contends that ap could have no privacy interest

in the car because it would ultimately be searched if he were

caught.

A-10

elaimed any interest in the boxes. Thus, the search of the

boxes does not involve the. vicarious exclusionary. rule.

(See People v. Martin (1955) 45 Cal.2d 755, 759-761 3; Kap-

lan v. Superior Court (1971) 6 Cal.3d 150, 155.)

It cannot be assumed that the owner of the vehicle has -

no personal effects in the car to which a Fourth Amend-

ment claim might be raised. Although officers are author-

ized: to remove a stolen vehicle from the road and to store

it (Veh. Code $§ 22651, subd. (c), 22850), the removal and

storage provisions do not authorize a warrantless search

of the contents of the vehicle. (Mozzetti v. Superior Court

(1971) 4 Cal.3d 669, 707.) Any interest of the owner of the

car in possessions left in the car may be adequately pro-

tected by noting the presence of any closed containers: and

removing them for safekeeping or rolling up the windows

of the car and locking the doors. (Jd., at pp. 707-712.)

If respondent is contending that anyone who places per-

sonal effects in an automobile that is stolen has somehow

waived his right of privacy in their contents, he has failed

to read Mincey v. Arizona, supra, 437 U.S. at page 391. In

that case the Supreme Court rejected a similar contention

that Mincey had forfeited any reasonable expectation of

privacy in his apartment by committing a homicide inside.

The high court noted that “this reasoning would imper-

missibly convict the suspect before the evidence against

him was gathered.” In the present case, the officers were

not certain appellant had stolen the Cadillac at the time

the boxes were searched. Probable cause is needed for an-

arrest. However, respondent’s argument justifies the search

not by the officers’ belief at the time, but by the fact of

a ak eli

A-11

appellant’s subsequent conviction. In rejecting a similar-

argument in Michigan v. Tyler (1978) 436 U.S. 499, 506,

the Supreme Court noted that “a conviction cannot be used

ex post facto to validate the introduction of evidence used

to secure that same conviction.” Therefore the fact that

the automobile was suspected to have been stolen cannot

validate the search of the boxes.

Accordingly, this court holds that in the absence of

exigent circumstances which require an immediate search,

probable cause furnishes sufficient grounds only for a war-

rantless seizure and immobilization of the closed contain-

ers pending the issuance of a search warrant. (See United

States v. Chadwick, supra, 433 U.S. at p. 15, and Arkansas

v. Sanders, supra, ....... USS. at p. ...... [47 U.S. L.Week at

p. 4785].)

The warrant requirement is not an empty formality. It

is the cornerstone of the Fourth Amendment’s guarantee

of the right to privacy. The assurance that a determination

of probable cause will be made by a neutral and detached

magistrate rather than an officer under stress in the field

is not a minor guarantee. (Johnson v. United States (1948)

333 U.S. 10, 13-14.) The authority of the executing officer

and his need to search are carefully reviewed. (United

States v. Chadwick, supra, 433 U.S. at p. 9.) Limits are

imposed on the search through the requirement of par-

ticularity. (Zbid.) And the factual basis on which the affiant

is justifying the search is made in advance of the search

itself. This ensures that a search will not be impermissibly

justified by what it turns up. (See White, The Fourth

Amendment as a Way of Talking About People: A Study

A-12.

of Robinson and Matlock (1974) Sup.Ct.Rev. 165, 181, fn.

34.) These important protections would be undermined by

the adoption of a rule that would encourage officers to con-

duct a search at the time of the seizure of personal effects,

rather than requiring them to obtain a warrant. (See

United States v. Schleis (1978) 582 F.2d 1166, 1172;

United States v. Johnson, supra, 588 F.2d at p. 151.) .

Since the officers failed to obtain a warrant to search

the closed boxes found in the trunk of the car, appellant’s

motion to suppress the evidence found in the boxes should

have been granted. Accordingly, appellant should be al-

lowed the election of standing on his guilty pleas or with-

drawing the pleas and awaiting a refiling by the prosecutor

of those charges which can be supported by admissible

evidence. (See People v. Hill (1974) 12 Cal.3d 731, 767-

770.) The trial court ‘2 directed that upon any appropriate

motion filed by appellant within 30 days after this deci-

sion becomes final, it should vacate the guilty pleas en-

tered by appellant and reinstate those charges requested

by the prosecutor. If no such motion is filed by appellant,

the trial court is directed to reinstate the original judg-

ments. (Jd., at pp. 769-770.)

Bird, C.J.

We concur:

Tobriner, J.

Mosk, J.

Richardson, J.

Manuel, J.

Newman, J.

ie a2

A-13

Concurring Opinion by Clark, J.

I concur under the compulsion of Arkansas v. Sanders

(20 June 1979) ...... i? Speers .

* Advance Report Citation: 47 U.S. L.Week 4783.

aA ls NE i AON eh stireutioe

SE RL IE I IIT EK

+ lS

Appendix B

In the Court of Appeal of the State of California

First Appellate District, Division Four

1/Crim. 16645

(Superior Court No. 93563)

The People, )

Plaintiff and Respondent,

VS. :

Freddie Dalton,

Defendant and peed

Freddie Dalton appeals from a judgment by which con-

current terms of imprisonment were imposed after he

pleaded guilty to possession for sale of heroin (Health &

Saf. Code, § 11351), car theft (Veh. Code, § 10851) and

possession of a concealable firearm by a felon (Pen. Code,

§ 12021).

The appeal tests the propriety of orders which the court

had made denying appellant’s motions to suppress evi-

dence (Pen. Code, § 1538.5) and to set aside one informa-

tion (Pen. Code, § 995). The motion to suppress evidence

was submitted on the preliminary hearing transcript. The

following narrative is derived from that transcript.

A highway patrolman stopped appellant for exceeding

the speed limit. Appellant stepped out of the car and the

officer saw that appellant was wearing two knives on his

B-2

belt. Appellant had no identification and could produce no

registration papers for the car. Other officers came up to

help. One of them saw in the car the butt and back part

of an automatic weapon; the weapon was seized. Because

the car had out-of-state license plates and no registration

papers, the officers checked the vehicle identification num-

ber and were informed by radio that the car was possibly

one that had been stolen in San Francisco about two

months earlier.

Appellant and his passenger were both arrested for

possession of the automatic weapon. An officer informed

the passenger that she would be taken to jail for bocking,

and asked whether she had belongings in the car which

she wanted to take along. She asked the officer to get some

items out of the trunk of the car. He opened the trunk for

that purpose and saw, among miscellaneous luggage and

other equipment, two shoulder holsters. The officer then

began looking for more firearms. He found a sawed-off

shotgun, two revolvers, narcotics paraphernalia and pack-

aging equipment, amphetamine and heroin.

The vehicle had in fact been stolen.

Appellant contends that the search of the vehicle was

unlawful. This contention is entirely without merit. It was

proper for the officer to stop the vehicle for speeding. When

preliminary inquiries produced indications that the vehicle

might have been stolen, it was proper to investigate that

possibility. It was proper to look for vehicle identification

numbers under the circumstances. (People v. Davitt ( 1976)

56 Cal.App.3d 845.) When in the course of that inspection

an automatic weapon was discovered, it was proper to

seize the weapon and arrest the occupants of the car.

ee ee Oa

B-3

Appellant contends that the request of the passenger

that the officer remove her personal effects from the trunk

did not justify an entry. That contention cannot be sus-

tained ; the passenger acted within her rights in asking the

officer to assist in reclaiming her property. Once the trunk

was opened and the officer saw two shoulder holsters, he

was justified in making a thorough search for additional

firearms. (Cf. People v. Hill (1974) 12 Cal.3d 731, 751.)

United States v. Chadwick (1977) 433 U.S. 1 (53 L.Ed.

2d 538), cited by appellant, is to be distinguished. There

the United States Supreme Court held that a warrant was

required to authorize search of a footlocker which had been

taken, pursuant to lawful arrests, from the trunk of a car.

But the footlocker had been taken by federal agents to the

federal building and was opened there more than an hour

after the arrests. Here, in contrast, the packages were

opened shortly after the arrests, while everyone was still

by the vehicle, and while the Officers were reasonably

searching for more firearms and for evidence.

The judgment is affirmed.

Christian, J.

We concur:

Caldecott, P. J.

Rattigan, J.