Petition — California v. Musante

IN THE

Supreme Court of the United IODAK, J. CLERR

October Term, 1980

e¥9- 1909

. THE PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

Vv.

MICHAEL MUSANTE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

CALIFORNIA COURT OF APPEAL,

FOURTH APPELLATE DISTRICT, DIVISION TWO

GEORGE DEUKMEJIAN, Attorney General

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney General--Criminal Division

DANIEL J. KREMER,

Assistant Attorney General

HARLEY D. MAYFIELD,

Deputy Attorney General

JAY M. BLOOM,

Deputy Attorney General

110 West “A” Street, Suite 700

San Diego, California 92101

Telephone: (714) 237-7750

Attorneys for Petitioner

INTERIM PRINTING & MAILING COMPANY

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

JUN 4

i960

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TOPICAL INDEX

Pages

OPINION BELOW 1

JURISDICTION 2

QUESTIONS PRESENTED 2

CONSTITUTIONAL PROVISION INVOLVED 2 - 3

STATEMENT OF THE CASE 3-5

A. History of the Case 3 = 5

B. Statement of Facts 5 - 6

1. The Burglary Charge 5

2. The Possession of oe

Marijuana for Sale

Charge

REASONS FOR GRANTING THE WRIT 7

ARGUMENT 7 =- 21

I THE WARRANTLESS

SEARCH OF THE BOX

WAS PROPER += 2a

CONCLUSION 21

APPENDICES

-ii-

TABLE OF AUTHORITIES

CASES

Arkansas v. Sanders (1979)

442 U.S. 753

Auto Equity Sales, Inc. v.

Superior Court (1962)

54 Cal.2d 450

California v. Minjares (1979)

443 U.S. 916

Cardwell v. Lewis (1974)

Si? G.8. S63

Carroll v. United States

(1925) 267 U.S. 132

Chambers v. Maroney (1970)

399 U.S. 42

Harris v. United States

(1968) 390 U.S. 234

Mapp v. Ohio (1961) 367 U.S. 643

Mincey v. Arizona (1978)

437 U.S. 385

Oregon v. Hass (1975)

420 U.S.714

People v. Cahan (1955)

44 Cal.2d 434

passim

15

16

-iii-

TABLE OF AUTHORITIES

(Continued)

Pages

CASES

People v. Dalton (1979) 11 ,32933¢

24 Cal.App.3d 850 14,15

People v. Minjares (1979) |

24 Cal.3d 410 10,11,15

People v. Musante (1980)

102 Cal.App.3d 156 14

People v. Solario (1977)

19 Cal.3d 760 16

People v. Upton (1968)

257 Cal.App.2d 677 11,14

Rakas v. Illinois (1978)

439 U.S. 128 14,15,16

South Dakota v. Opperman (1976)

428 U.S. 364 8

Stone v. Powell (1976)

428 U.S. 455 19,20

United States v. Chadwick 10,11,15,

(1977) 433 U.S. 1 16,17

United States v. Neumann

(8th Cir. 1978) 585 F.2d 355 17,18

United States v. Peltier

(1975) 422 U.S. 531 19

-iy-

TABLE OF AUTHORITIES

(Continued)

TEXT

Oakes, Studying the

Exclusionary Rule in

Search and Seizure (1970)

37 U. Chi. L.Rev.

Pages

19

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1980

No.

THE PEOPLE OF THE STATE OF CALIFORNIA

Petitioner,

Vv.

MICHAEL MUSANTE

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE CALIFORNIA COURT OF APPEAL,

FOURTH APPELLATE DISTRICT, DIVISION TWO

Petitioner, the People of the

State of California respectfully requests

a writ of certiorari issue to review the

judgment of the California Court of

Appeal, Fourth Appellate District,

Division Two, which was entered on March

1l, 1980, and became final on April 24,

1980. (Cal. Rules of Court, rule 24a.)

OPINION BELOW

The opinion of the Court of

Appeal may be found at 102 Cal.App.3d

156, ___ ~Cal.Rptr. __—_. ~=AA copy of the

opinion appears as Appendix A to this

petition.

_o

JURISDICTION

The judgment of the Court of

Appeal of California became final on

April 24, 1980. This petition for writ

of certiorari was filed within 90 days of

that date. This Court's jurisdiction is

invoked under 28 U.S.C. section 1257(3).

QUESTIONS PRESENTED

1. Whether a thief of an auto-

mobile has an expectation of privacy in

closed containers in the automobile so

that police must obtain a search warrant

to search closed containers within the

automobile.

2. Whether the rule in Arkansas

v. Sanders (1979) 442 U.S. 753, should be

applied to the search in this case which

occurred in 1977.

3. Whether the exclusionary

rule should be modified or abolished as

its deterrent effect is questionable and

it does not foster- public belief in the

integrity of the judicial system.

CONSTITUTIONAL PROVISION 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

a Sea

issue, but upon probable cause,

supported by oath or

affirmation, and particularly

described the place to be

searched, and the persons or

things to be seized."

STATEMENT OF THE CASE

A. History of the Case

A complaint filed in the

Municipal Court of San Bernardino County

charged respondent Michael Musante with

burglary (Pen. Code, § 459) in case

F-1114. (CT 6.)1/ On January 27, 1978,

an information was filed in CR 34522

charging respondent in count I with

receiving stolen property (Pen. Code, §

496), in count II with possession of

marijuana for sale (Health & Saf. Code,

§ 11359, subd. (a)), in count III with

transportation of marijuana (Health &

Saf. Code, § 11360), and in count IV with

taking or driving the vehicle of another

(Veh. Code, § 10851).

On February 6, 1978, respondent

entered a guilty plea in the municipal

court to the burglary charge in F-1114.

(CT 11-18.) On March 31, 1978, respon-

dent's motions to suppress evidence pur-

suant to Penal Code section 1538.5 and to

dismiss the information pursuant to Penal

Code section 995 were heard and denied in

case CR 34522. (CT 23.)

| 1. CT refers to the clerk's

transcript of the proceedings in the

superior court.

~~

On April 7, 1978, respondent

entered a guilty plea to the charge in

count II of the information in case CR

34522. As part of the bargain the

remaining counts in the information were

to be dismissed. (CT 27-28.)

On May 22, 1978, a motion to

withdraw the guilty plea to the burglary

charge in F-1114 was heard and denied.

(RT 5/22/78.) 2/

On June 5, 1978, respondent was

sentenced to state prison for three years

on ‘the burglary charge in case F-1114.

He was also sentenced to state prison for

24 months as to the marijuana case.

However, 16 months were to be stayed so

respondent would only serve a consecutive

term of 8 months as to that charge. (CT

47-51.)

He appealed from the judgments.

(C? $2-53.)

In a published opinion issued

on February 14, 1980, the California

Court of Appeal, Fourth Appellate

District, Division Two, reversed the con-

viction on the possession of marijuana

for sale charge (CR 34522) on the ground

the seizure of the marijuana was

improper. (Appen. A.)

Petitioner, the People of the

State of California sought a hearing

2. RT refers to reporter's

transcript of the proceedings in the

superior court.

x =

before the California Supreme Court, but

the request for a hearing was denied on

April 24, 1980. (Appen. B.)

The Court of Appeal and this

Court have refused to stay enforcement of

the judgment. (Appen. C.)

B. Statement of Facts

Re The Burglary Charge

Respondent's conviction on the

burglary charge rested upon his guilty

plea to the charge that he unlawfully

entered a dwelling belonging to an Escol

Moses in Lucerne Valley, California, with

the intent to commit theft. (CT 6.)

Re The Possession of Marijuana for

Sale Charge

On November 12, 1977, at about

1:25 a.m., Deputy Richard Crocker of the

San Bernardino County Sheriff's Office,

noted a car weaving slightly and moving

to the shoulder. After observing the car

weave, he followed it. Thereafter, the

vehicle went through an intersection at a

very slow speed and almost stopped at a

green light. The car continued onto the

freeway and continued to weave slightly.

He then stopped the vehicle, spoke to the

driver, checked her license, and admin-~

istered a field sobriety test. However,

he could not tell from her performance

whether she was under the influence.

Lacking the expertise to conclusively

determine the issue, he called to the

Highway Patrol for assistance.

aGe

(Preliminary Hg. Transcript, pp.

26-36.)

About 15 minutes later,

Officers Stevens and Hernandez of the

Highway Patrol arrived. Stevens con-

tacted Musante, a passenger in the

vehicle, while Hernandez administered a

sobriety test to the driver. Stevens

asked Musante whose car it was and

Musante indicated it belonged to the

driver and him as they were married.

Musante then removed the registration

from the car and showed it to the

officer. When the officer noted the VIN

number on the registration did not match

the VIN number of the car, he ran a

registration check. While he waited for

a response, Hernandez told him the driver

was not under the influence. During this

time Musante and the driver gave

conflicting stories with regard to

ownership of the vehicle. The registra-

tion check eventually indicated the car

had been stolen in Sonora, California, on

October 25, 1977. Musante and the

driver, a Miss Caston, were then

arrested.

While the contents of the

vehicle were being inventoried, an

electric blanket box was found in the

rear seat of the vehicle. The box was

opened and marijuana was found inside.

The box had been taped shut.

(Preliminary Hg. Transcript, pp. 41-55,

72-74.)

— oe

REASONS FOR GRANTING THE WRIT

This case presents a fundamental

question regarding application of the

exclusionary rule: whether an automobile

thief may assert a legitimate right to

privacy as to closed containers in the

stolen car.

The State of California

believes an analysis of the contrasting

privacy expectations of the owner and the

thief of an automobile indicate it is

reasonable for the police to conduct a

warrantless search of closed containers

in a stolen vehicle. A thief should know

the inevitable capture of the car will

involve a search to determine ownership

and an inspection of any containers in

the car to determine their ownership.

This case is of nationwide

importance as it involves the extent to

which a thief may hide behind the shield

of the exclusionary rule and use it as a

sword to prevent proper police

investigation. It also raises fundamen-

tal questions as to whether our legal

system can recognize the right of a thief

to assert a legitimate expectation of

privacy in items contained inside a

vehicle the thief has stolen.

ARGUMENT

I

THE WARRANTLESS SEARCH OF THE

BOX WAS PROPER

Petitioner, the People of the

State of California, respectfully

requests this Court grant this petition

for writ of certiorari to consider the

fundamental question of whether a thief

who steals an automobile has any right to

privacy with regard to items inside the

automobile and whether the thief may assert

Fourth Amendment rights with regard to

the property in the stolen automobile.

Initially, it is well settled

police may stop and search an automobile

without a search warrant when they have

probable cause to believe the vehicle

contains contraband or evidence of a

crime. (Arkansas v. Sanders, supra, 442

U.S. 753, 760; Chambers v. Maroney (1970)

399 U.S. 42; Carroll v. United States

(1925) 267 U.S. 132.) The reason for

this rule is that the inherent mobility

of automobiles often makes it impractical

to obtain a warrant. (Arkansas v.

Sanders, supra, at p. 761; Chambers v.

Maroney, supra; Carroll v. United States,

Supra.) In addition, the configuration,

use, and regulation of automobiles often

dilute the reasonable expectation of pri-

vacy that exists with respect to dif-

ferently situated property. (Arkansas v.

Sanders, supra; South Dakota v. Opperman

(1976) 428 U.S. 364, 368; Cardwell v.

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

However, in Arkansas v.

Sanders, supra, this Court concluded the

rules allowing warrantless searches of

automobiles did not apply to items inside

an automobile to which there was an

expectation of privacy such as personal

luggage. Consequently, if such items

were found inside a vehicle, they could

be seized, but a search warrant would be

required before the items could be

searched. (Arkansas v. Sanders, supra,

==

This Court also noted, however,

that not all items inside a vehicle were

entitled to such an expectation of

privacy.

Rather, a case by case deter-

mination would be required to determine

which items may only be searched with a

warrant.

The only specific holding in

Arkansas v. Sanders, supra, was that

luggage carried an expectation of privacy

and could only be opened and searched

with a warrant whether or not it was

inside a vehicle.

"Not all containers and

packages found by police during

the course of a search will

deserve the full protection of

the Fourth Amendment. Thus,

some containers (for example a

kit of burglar tools or a gun

case) by their very nature can-

not support any reasonable

expectation of privacy because

their contents can be inferred

from their outward appearance.

Similarly, in some cases the

contents of a package will be

open to ‘plain view,’ thereby

obviating the need for a

warrant. See Harris v. United

States, 390 U.S. 234, 236

(1968) (per curiam). There

will be difficulties in deter-

mining which parcels taken from

an automobile require a warrant

for their search and which do

not.

Our decision in this case

means only that a warrant

generally is required before

= Quen

personal luggage can be

searched and that the extent to

which the Fourth Amendment

applies to containers and other

parcels depends not at all upon

whether they are seized from an

automobile." (Arkansas v.

Sanders, supra, at pp. 764-

765, fn. 13.)

In the meantime, the California

Supreme Court reached a similar conclu-

sion. In People v. Minjares (1979) 24

Cal.3d 410, the California Supreme Court

relied on the prior opinion of this Court

in United States v. Chadwick (1977) 433

U.S. 1, and concluded once a closed con-

tainer found in an automobile comes under

the exclusive control of a police officer

an immediate search was no longer

necessary. Rather, a warrant had to be

obtained for a search of the container

unless exigent circumstances mandated an

immediate search. 3/

Based on this conclusion the

court held a tote bag found in an automo-

bile could not have been examined without

a search warrant. The court also noted

its holding was based on the federal

constitution as it intimated "no views on

how the validity of the search in this

case would be decided under the

California Constitution." (People v.

Minjares, supra, at p. 424, fn. 8.)

3. The Court denied a petition

for writ of certiorari in the case.

(California v. Minjares (1979) 443 U.S.

916.)

elle

All these cases were employed

by the California Supreme Court in People

v. Dalton (1979) 24 Cal.3d 850. In

Dalton, the California Supreme Court

relied on Chadwick, Sanders and Minjares,

and concluded a thief riding ins‘de an

automobile he had taken could assert a

right to privacy as to closed items

inside the automobile.4/ Accordingly, he

could challenge and have a court invali-

date a warrantless seizure of closed

items inside the vehicle such as a box.

The essential facts in the

instant case indicate officers stopped a

car which was being operated in an erra-

tic manner. Musante was the passenger

and his wife was the driver. Prompt

police investigation revealed the vehicle

had been stolen and Musante was arrested.

On the backseat the officers saw an

electric blanket box. It had a top on it,

but the top was not taped to the box,

The box was opened and marijuana was

located inside.

Under preexisting California

law the search and seizure would have

been proper as a thief could not procure

the benefits of the Fourth Amendment and

use them to shield him from a search of

the box. (People v. Upton (1968) 257

Cal.App.2d 677, 682-684. Nevertheless,

because of the Dalton decision, the Court

of Appeal was required to invalidate the

search of the box in the car on the

ground Musante, the man who had taken the

4. A petition for writ of cer-

tiorari was denied in Dalton on March 24,

1980. _—s«—*vu«. 8. °

=] 2@

car, had a right to privacy as to the box

inside the car. (See Auto Equity Sales

Inc. v. Superior Court 11563} 54 Cal.2d

450, 454-455 (decisions of the California

Supreme Court are binding on all lower

courts) .)

Petitioner believes fundamental

principals of constitutional law compel

the conclusion a thief of a vehicle

should not be able to assert a right to

privacy as to closed items inside the

vehicle the thief has taken.

Accordingly, it is requested this peti-

tion for writ of certiorari be granted to

reject such a result and to disapprove of

any language in Dalton to the extent it

intimates federal law grants a thief any

legitimate expectation of privacy in

closed items in a stolen vehicle.

The major problem with Dalton

is that the California Supreme Court

accepted the argument one who has stolen

an automobile may assert a right to pri-

vacy in the items in the automobile. The

rationale for his holding is that even if

a thief has no expectation of privacy in

the vehicle, he still would have an

expectation of privacy in the closed

items in the vehicle. The point being

the issue is not the validity of the car

search, but the validity of the search of

the item in the vehicle. (People v.

Dalton, supra, at pp. 858-859.)

However, the reasoning behind

this conclusion is flawed because the

interest of the thief in the vehicle can-

not be separated from the interest of the

thief in the items inside the vehicle.

o} Se

It makes no sense to hold a thief has no

right to privacy as to the stolen vehicle

and then permit him to insulate evidence

of a crime or instrumentalities of a

crime from the police by placing them in

closed items which were stolen along with

the vehicle, or placed in the vehicle by

the thief. A thief should have no legi-

timate expectation of privacy as to the

vehicle or items inside the vehicle.

Instead, a thief should know the inevi-

tible capture of the car will entail a

search to determine its ownership and an

immediate inspection of any containers to

determine ownership.

As Justice Gardner, of the

California Court of Appeal observed in

his concurring opinion below:

"When someone is driving my

stolen car, I think the police

have a right to arrest him and

to search him and all closed

containers therein. I do not

want that thief to have any of

my Fourth Amendment rights. Of

course, if the cops open a box

and find my stash of marijuana,

I have grounds to complain.

But if they open the box and

find the thief's stash he has

no legal right to complain. He

is not legally on the premises

to be searched and has no

standing to complain when the

police open closed containers

on those premises. But then,

of course, Dalton says he has

and that, to coin a phrase, is

that.

alte

"None of this is meant to

indicate that a burglar or a

car thief loses his Fourth

Amendment rights entirely. For

example, he can only be patted

down for weapons or destructive

evidence. The skin search

comes later -- during the

booking process. It simply

means he can't clothe himself

in my Fourth Amendment rights

-- which is exactly what the

court did in Dalton although it

denied doing it. I cannot see

any logic in insisting on the

issuance of a search warrant

before the officers conduct an

inventory of the contents of

closed containers therein. I

still think Upton was a good

law." (People v. Musante

(1980) 102 Cal.App.3d 156,

159-160.)

Support for our argument here

may also be found in Rakas v. Illinois

(1978) 439 U.S. 128. There passengers in

a vehicle challenged a police search of a

box in the glove compartment of the

vehicle as well as seizure of a rifle.

This Court rejected the notion the

passengers could assert any Fourth

Amendment claims as to the seizures

noting the Fourth Amendment only protects

those who can claim a legitimate expec-

tation of privacy with regard to the

invaded place. (Id., at pp. 141, 143-144,

and fns. 9, 12.) Obviously, if the

passengers of a vehicle had no legitimate

Fourth Amendment rights with regard to

the car, then Musante, who is a car

=o] 5.

thief, is hardly in the position of being

able to assert a legitimate expectation

of privacy as to items in the victim's

vehicle.

In addition, Musante cannot

assert Rakas cannot be applied here as it

is a rule of federal standing. Rakas

defines what legitimate-»interests may

constitutionally be protected by the

Fourth Amendment, it is not a narrow

decision concerning standing

requirements. (Id., at p. 139.)

Moreover, Musante cannot claim

Dalton and this case were only based on

the California Constitution and are thus

not affected by the Rakas decision.

Dalton was based on the decisions of this

Court in Sanders and Chadwick as well as

Minjares, which, as noted earlier, was

based on federal constitution. As Dalton

purports to interpret rights grante

under the federal Constitution, it is

obviously subject to the limits of Fourth

Amendment rights set forth in Rakas.

(Oregon v. Hass (1975) 420 U.S. 714,

719.)

Moreover, Mincey v. Arizona

(1978) 437 U.S. 385, does not assist

respondent. In Mincey this Court held a

defendant did not lose his Fourth

Amendment rights in his own residence by

having committed a murder there. The

point of Mincey being commission of a

crime does not deprive one of legitimate

Fourth Amendment rights. However, unlike

Mincey the defendants in Dalton and this

case simply have no legitimate expec-

tations of privacy to assert. They were

=16@

not the legitimate owners of the car

involved or necessarily the contents of

the vehicle.

United States v. Chadwick

(1977) 433 U.S. 1, and Arkansas v.

Sanders, supra, also do not compel a

contrary result. These cases discuss the

legitimate right to privacy of indivi-

duals in closed objects and indicate a

warrant is required before such objects

can be searched and seized. The crucial

point here is that a thief of an automo-

bile cannot assert any legitimate

interest in the privacy of the articles

contained therein,

Moreover, allowing a thief to

assert a right to privacy in closed items

in a stolen vehicle can only lead to

public questioning of the reasonableness

of our legal system. The exclusionary

rule is designed to deter unlawful acts

of law enforcement and to not make courts

party to police illegalities. This is

why illegally obtained evidence is

suppressed despite the culpability of the

accused, (Mapp v. Ohio (1961) 367 U.S.

643; People v. Cahan (1955) 44 Cal.2d

434.) In addition, the purpose of the

exclusionary rule is the protection of an

individual's legitimate right to privacy.

Yet it seems questionable that the legal

system should be in the business of

granting a thief a right to privacy in

items found in a stolen car. (People v.

Solario (1977) 19 Cal.3d 760, Rakas v.

Illinois, supra, at pp. 143-144, fn. 12.)

While this fact may be lost on some, it

is not lost on the public which, after

all, the law is really designed to protect.

oi Fe

Moreover, it seems worth noting

the exclusionary rule is not an end in

itself. Rather, it is merely a means of

protecting the rights of citizens from

unreasonable invasions of their right to

privacy in accord with the mandate of the

United States Constitution. (Arkansas v.

Sanders, supra, at p. 758.) However, a

thief simply cannot assert police acted

unreasonably by examining items in a

stolen car. If he steals the car, he can

hardly assert any rights as to the items

in the stolen car. Moreover, if the

items belong to the victim of the car

thief, the victim can always assert his

own right to privacy in the items. The

thief of the car can hardly be permitted

to steal the car and then claim the

owner's rights to items in the car had

been violated by police conduct.

It must also be noted that the

idea of giving a thief a right to privacy

as to items inside a car he has stolen

seems contrary to the very basis of the

Fourth Amendment which gives the people

the right to "be secure in their persons,

houses, papers, and effects, against

unreasonable searches and seizures."

(Emphasis added.)

Furthermore, federal law indi-

cates there is no right to privacy ina

closed container such as a box. Both

Chadwick and Sanders dealt with personal

luggage to which an individual could have

a reasonable expectation of privacy.

There is no reason to assume, however,

there is an expectation of privacy in an

unsecured box lying in plain sight in the

passenger area of a vehicle. (United

oite~

States v. Neumann (8th Cir. 1978) 585

F.2d 355, 360.) AS was noted in Neumann,

Supra, at pages 360-361: .

"This court is of the

opinion that the warrant

requirement in Chadwick should

not be extended to the facts of

this case. There is simply an

insufficient expectation of

privacy in an unsecured card-

board box sitting in plain view

in the passenger compartment of

an automobile. The arresting

officers merely lifted the lid

of the box and discovered a

large quantity of pills.

Unlike the situation in Stevie,

where the officers could have

seized and inventoried the

locked suitcase as a unit

without fear of loss or theft

of the contents, here it was

reasonable for the officers to

promptly examine the contents

of the box and later to have

the drugs properly inventoried

and secured. This procedure

protected the legitimate

interests of the arresting

officers, including protection

against unwarranted allegations

of theft or loss, and could

well have protected the

interests of the Neumanns in

having their property properly

identified, safely kept and

returned had not the box con-

tained a controlled substance."

-19-

Accordingly, having obtained

cause to seize and search the vehicle,

the officers had the perfect right to

conduct a warrantless search of the card-

board box to determine its contents.

It must also be noted the rule

enunciated in Arkansas v. Sanders, was

not espoused until 1979. Yet, the search

in this case occurred during 1977.

Accordingly, the officers acted in good

faith in accord with the law existing at

the time. Under these circumstances

there is no reason to apply the rule

espoused in Arkansas v. Sanders

retroactively. Such an application will

not deter future illegal conduct as the

police did not act illegally here.

Rather, they acted in accord with the law

as it existed at the time. Moreover,

prospective application of the Sanders

case will not place the courts in the

position of condoning any conduct that

was illegal at the time it occurred.

Thus, the conduct of the police should be

upheld here on the ground the Sanders

case should only be applied

prospectively. (United States v. Peltier

(1975) 422 U.S. 531.)

Finally, it would seem this

case presents an excellent example as to

why the exclusionary rule should be

reconsidered, First, recent studies have

not been conclusive as to whether the

exclusionary rule has deterred police

from unlawful conduct. (See Oakes,

Studying the Exclusionary Rule in Search

and Seizure (1970) 37 U. Chi. L.Rev.;

see Stone v. Powell (1976) 428 U.S. 465,

492-493. )

-20-

Moreover, the concept of

deterrence assumes most police conduct is

deliberate. However, this is not always

the case. An incorrect judgment may be

due to the pressure of making a split-

second decision in the field, an inabi-

lity to foresee changes in the law as in

this case, or to foretell the composition

and disposition of a particular court.

(See California v. Minjares (1979) 443

U.S. 916.)

In addition, it is often said

the exclusionary rule is needed to foster

respect for the court system by showing

the public the courts do not condone

illegal activity by law enforcement.

(See Stone v. Powell, supra, at pp.

489-491.)

Yet, it is difficult to see how

the results of this case in the state

courts would foster public respect for

the court system. A thief took the car

of another person and was then able to

assert a right to privacy as to items in

that car. The victim of the theft never

asserted any right to privacy as to the

car or the items inside or complained of

police conduct. Yet, the thief was per-

mitted to do so to have a court invali-

date a search which was proper at the

time it was conducted and have his con-

viction reversed. Such an Alice in

Wonderland result hardly fosters respect

for the legal system.

Accordingly, it is requested

certiorari be granted to determine

whether the exclusionary rule can be

applied in the manner it has been applied

or whether it should be abolished or

modified.

o2ie

Consequently, it is apparent

the instant case raises fundamental

questions as to the application of the

exclusionary rule to this case and the

validity of the rule itself. Because the

issues presented in this case are of fun-

damental importance to all persons in the

United States, it is requested this peti-

tion for writ of certiorari be granted.

CONCLUSION

For the foregoing reasons, it

is respectfully submitted that the

petition for writ of certiorari be

granted,

Respectfully submitted,

GEORGE DEUKMEJIAN,

Attorney General

ROBERT H. PHILIBOSIAN,

Chief Assistant Attorney

General--Criminal Division

DANIEL J. KREMER,

Assistant Attorney General

HARLEY D. MAYFIELD,

Deputy Attorney General

juty Attorney General

torneys for Petitioner

APPENDIX A

= An} o

[Filed February 14, 1980]

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE

OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

4TH CRIM. NO. 10041

(Sup.Ct.No. CR-34522/VCR-432)

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

Vv.

MICHAEL MUSANTE,

Defendant and Appellant

APPEAL from the Superior Court

of San Bernardino County. Donald R. Egan

and Don A Turner, Judges. Affirmed in

part; reversed in part.

Richard J. Weller, under

appointment by the Court of Appeal, for

Defendant and Appellant.

George Deukmejian, Attorney

General, and Michael E. Lasater, Deputy

Attorney General, for Plaintiff and

Respondent,

o fad =

Defendant pled guilty to

burglary. Insofar as this court is

concerned, he contends (1) that the trial

court failed to advise him of the direct

consequences of his guilty plea, and (2)

that the degree of burglary was not spe-

cifically designated although he was sen-

tenced for first degree burglary.

The lack of a certificate of

probable cause precludes consideration of

these contentions. We agree completely

with the stand taken by the court in

People v. Pinon, 96 Cal.App.3d 904 that

if Penal Code §/1237.5 is to retain any

viability in the statutory scheme,

appellate courts cannot engage in a

wholesale disregard of its procedural

requirements. Judicial economy, the

usual excuse for circumventing this

section, is a sorry excuse for ignoring a

statute which was enacted for that very

consideration.

rnert on Pp A-(r

The judgment of conviction of .

burglary will be affirmed.

At the same time the defendant

pled guilty to the burglary, he pled

guilty to possession of marijuana for

sale after an unsuccessful motion to

suppress. We review the motion to

suppress.

Stripped to their essentials

the facts are really quite simple.

Officers stopped a car which was being

operated in an erratic manner. Defendant

was the passenger; his wife the driver.

Prompt investigation revealed that the

car was stolen. Defendant and his wife

— ae

were arrested. On the back seat was a

large box described as an electric

blanket box. The box was opened and in

it was a large amount of marijuana. It

is the opening of this box which is the

bone of contention.

At the time of this hearing,

the issue seemed fairly clear. In People

v. Upton, 257 Cal.App.2d 677, it was held

that it was reasonable for officers to

search a stolen car and in so doing to

open suitcases or boxes found in that car

for the purpose of ascertaining ownership

or whether they contained any stolen

material. (See Witkin, California

Evidence 2d 1977, Supplement 4 120A.)

Applying upton to the facts of this case,

when the o cers found themselves in

possession of a stolen car, it would

appear reasonable for them to open the

box which from its markings contained an

electric blanket. It became necessary to

ascertain either ownership of the blanket

or whether it had been stolen,

Of course, Upton was decided

before the current spate of

footlocker/brief case/package/closed con-

tainer cases. (United States v.

Chadwick, 433 U.S. 1 [53 L.Ed.2d 538, 97

S.Ct. 2476]; Arkansas v. Sanders, __

U.S. . Ed. 2d Ls ae Sate

[ L

2586]; People v. Minjares, 24 Cal.3d 410;

People v. Dalton, 24 Cal.3d 850.) Upton

might have had continued vitality under

Chadwick, Sanders and Minjares. However,

Dalton shot Upton down in flames. Under

the circumstances almost identical to

those in the instant case, the Supreme

Court held that closed boxes or con-

o Awd o

tainers in a stolen vehicle cannot be

opened without a search warrant. Under

the compulsion of Dalton, we reverse the

conviction of possession of marijuana for

sale.

Affirmed in part; reversed in

part.

CERTIFIED FOR PUBLICATION.

/s/ Gardner

We concur:

/s/ Kaufman

/s/ McDaniel

- Ans o

Concurring opinion, Gardner,

P.J.

People v. Dalton, 24 Cal.3d

850, which compelled a reversal in this

case has a significant flaw. It is

wrong.

I fully recognize that under

the rulings of the Supreme Court, and if

that court wishes to jump off a figura-

tive Pali, I, lemming-like, must leap

right after it. However, I reserve my

First Amendment right to kick and scream

on my way down to the rocks below.

I have no quarrel with the

principle that the Fourth Amendment pro-

tects closed personal effects as well as

persons, houses and cars. After all, it

is rather specific in protecting the

rights of people to be secure in their

"persons, houses, papers and effects."

However, I think that if the authors of

the Fourth Amendment were aware of

Dalton, they would be turning over in

their graves.

I do not accept the concept

that a thief who steals my car thus wraps

himself in the mantle of my Fourth

Amendment rights. I do not quarrel with

the concept that the Fourth Amendment

protects people, not places. In our

case, the lawful owner of the car would

possess certain privacy rights concerning

his vehicle and its contents which rights

must receive the protection of the law.

However, the owner possesses no person

expectation of privacy as to contraband

placed in his car by others after the

= hof o

vehicle has been stolen. In order to

apply the vicarious exclusionary rule to

one in the defendant's position, it is

first necessary to create a theoretical

expectation of privacy in the vehicle

Owner as to the contraband of which he

knows nothing and which found its way

into his vehicle solely because the

vehicle was stolen from him. I decline

to accept the absurdity that the owner

has any expectation of privacy in

defendant's marijuana. I further contend

that the thief had no expectation of pri-

vacy as to any package in the stolen

vehicle.

Although Dalton denied that the

vicarious exclusionary rule was appli-

cable in this type of case, the court was

in error. In Dalton, the court said at

p. 859: "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

vehicle ws violated. (Citation.) Once

again it should be pointed out that

appellant is contesting the warrantless

search of the boxes, not of the car. He

never disclaimed any interest in the

boxes. Thus, the search of the boxes

does not involve the vicarious exclu-

Sionary rule. (Citations.)" This is

pure sophistry. Conceptually, Dalton

can't be upheld without resort to the

vicarious exclusionary rule. And when

that happens, the court comes slap dab up

against Solario.

In People v. Solario, 19 Cal.3d

760, the court held that a burglar is not

entitled to the protection of Penal Code

> an? oo

§ 844. It held that the vicarious exclu-

sionary rule does not enure to the bene-

fit of a burglar since the person whose

rights were theoretically violated was

the burglar's victim. The court made it

clear that Penal Code § 844 offers pro-

tection to the householder, not to the

burglar. As this court said in an

earlier case, with perhaps a touch of

hyperbole, a burglar cannot make another

man's home his castle. (People v. Ortiz,

276 Cal.App.2d 1, 5.) Neither can a car

thief make his victim's car his car for

the purposes of the vicarious exclu-

sionary rule. The concept was aptly put

in the concurring opinion in People v.

Shaw, 21 Cal.App.3d 710, 715, "To my mind

it borders upon the absurd to hold that a

thief should be given the benefit of a

constitutional right to an expectation of

privacy to a vehicle which he has

stolen,"

This is not to say that Fourth

Amendment rights are available only to

one who has clear title to property.

That Amendment protects persons without

title, e.g., one with a possessory

interest or anyone legitimately on the

premises or where the area is one to

which there was a reasonable expectation

of freedom from governmental intrusion.

(Mancusi v. DeForte, 392 U.S. 364 [20

L.Ed.2d 1154, 88 S.Ct. 2120]; Jones

v. United States, 362 U.S. 257 [4 L.Ed. 2d

697, 80 S.Ct. 725]; United States v.

Jeffers, 342 U.S. 48 [96 L.Ed. 59, 72

S.Ct. 93].)

The test for whether or not

there has been an unreasonable governmen-

- A=® o

tal intrusion, of course, is whether the

defendant had a reasonable expectation of

privacy. (People v. Edwards, 71 Cal.2d

1096, 1100.) Aye, there is the rub.

Unquestionably, a burglar has an

overwhelming expectation of privacy.

Actually, the entire criminal class, with

the possible exception of flashers,

operate entirely with a very real expec-

tation of privacy. However, this is not

a reasonable expectation which the courts

will recognize or enforce. The

criminal's right of privacy is always

subject to reasonable governmental

intrusion. Thus, to claim the protection

of the Fourth Amendment, one must be

legally and legitimately in the area

about to be entered and searched. A

simple example will suffice.

I was recently the victim of a

burglary. A neighbor had seen the entry

and, purely by accident, the police and I

arrived at the same time and while the

burglary was in full swing. The burglar,

Billy Bell, a well known local

professional, was apprehended under some

bushes in the backyard. He was hand-

cuffed and taken to the police car. The

officers then returned to the bushes and

in that area they found Billy's loot

scattered around. But what if Billy had

put his loot in a box, perhaps in a box

with the label "Private property of Billy

Bell, professional burglar. Keep out.”

Would the police have had to get a search

warrant to open that box? To me the idea

is downright silly. So, too, if a thief

is caught in possession of a stolen car,

why should he have any Fourth Amendment

rights over closed containers in the car?

o Ln} o

Perhaps thieves and burglars have dif-

ferent standards of protection. This, of

course, presents some rather prickly

equal protection problems. To me the

idea of giving car thieves or burglars

Fourth Amendment rights over closed con-

tainers in burgled houses or stolen cars

is simply preposterous. Nevertheless,

that is the result compelled by Dalton.

Dalton says that the officers

were not certain that the defendant had

stolen the car at the time the boxes were

searched. Of course, they were not.

Nevertheless, probable cause for an arrest

existed. If we have to wait for convic-

tions before officers can act, the

efforts to police officers to protect the

law-abiding public are going to be

somewhat curtailed. When someone steals

my car and I report it to the police, I

think they have probable cause to arrest

the driver and I don't think that a lack

of a conviction has anything to do with

the case. Actually, the odds are almost

prohibitive that the driver is the thief.

Of course, the insidious Dr. Fu Manchu

might have stolen it, then, disguised as

Honest John, used car salesman, sold it

to the innocent driver. (To avoid a

charge of racism, I will have Charley

Chan arrest Dr. Fu Manchu.) But all of

this has nothing to do with probable cause.

When someone is driving my stolen car, I

think the police have a right to arrest

him and to search him and all closed con-

tainers therein. I do not want that

thief to have any of my Fourth Amendment

rights. Of course, if the cops open a

box and find my stash of marijuana, I

have grounds to complain. But if they

- A-10 -

open the box and find the thief's stash

he has no legal right to complain. He is

not legally on the premises to be

searched and has no standing to complain

when the police open closed containers on

those premises. But then, of course,

Dalton says he has and that, to coin a

phrase, is that.

None of this is meant to indi-

cate that a burglar or a car thief loses

his Fourth Amendment rights entirely.

For example, he can only be patted down

for weapons or destructive evidence. The

skin search comes later -- during the

booking process. It simply means that he

can't clothe himself in my Fourth

Amendment rights -- which is exactly what

the court did in Dalton although it

denied doing it. I cannot see any logic

in insisting on the issuance of a search

warrant before the officers conduct an

inventory of the contents of closed con-

tainers therein. I still think Upton was

good law.

When, in Cahan, the Supreme

Court of this state adopted the exclu-

sionary rule, it made a commitment that

the courts would develop “workable rules"

and not indulge in "needless refinements

and distinctions" nor “introduce con-

fusion into the laws of criminal

procedure." (People v. Cahan, 44 Cal.2d

434, 3450.) That commitment was not only

commendable, it was necessary. Police

officers in the field making minute to

minute and second to second decisions

must have rules which are definite,

simple, plain, explicit and

understandable. Nevertheless, as I sur-

- A-ll -

vey the 400 to 500 cases collected in Mr.

Bell's splendid Compendium on Search and

Seizure, I cannot but observe that the

rules which have evolved constitute a

kind of encrusted ritual of rigid eti-

quette which is almost Byzantine in its

frozen formality and labyrinthine

protocol. Dalton simply adds, erro-

neously I submit, to this ever thickening

layer of legalisms and adds one more

barren technicality to this already

bloated and amorphous field.

I don't know how many car

thieves are apprehended each year, but in

each case any police officer worth his

salt is going to conduct an inventory to

ascertain the ownership and status of the

contents of the car because car thieves

are notoriously catholic in their thefts.

In so doing, it will be necessary to open

closed containers to ascertain ownership

and whether they contain stolen goods.

Under Dalton, they will have to secure a

search warrant for this task. This

simply imposes on the already heavy

workload of prosecutors and judges a

completely unnecessary burden because I

can't for the life of me imagine any

judge turning down such a request. So

where has anyone benefited from this

"needless refinement" to the exclusionary

rule?

CERTIFIED FOR PUBLICATION.

_/s/ Gardner

P.J.

- A-l2 -

[Filed March ll, 1980]

NOT TO BE PUBLISHED IN

THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE

OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

4TH CRIM. NO. 10041

(Sup.Ct.No. CR-34522/VCR-432)

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

Vv.

MICHAEL MUSANTE,

Defendant and Appellant.

ee ee ee ee ee ee eee ee ee

The opinion in the above case,

filed February 14, 1980, is modified by

the insertion of the following paragraph

on page 2, following the first paragraph

which concludes with the words ". . . was

enacted for that very consideration."

The inserted paragraph is as

follows:

- A-13 -

"However, just to avoid an

inevitable collateral attack on the basis

of inadequacy of counsel for not securing

a certificate of probable cause, we would

observe that the defendant's contentions

insofar as the burglary charge are

without merit. This was a plea bargain.

The defendant was advised of the direct

consequences of his guilty plea and that

advisement made it clear that he was

pleading guilty to first degree burglary.

The advisement was that he was to receive

a 2, 3 or 4 year state prison term. That

is the penalty attached to first degree

burglary. Second degree burglary is

punishable by either county jail or state

prison (Penal Code § 461). The state

prison term for second degree burglary is

16 months or 2 or 3 years (Penal Code §

18). Therefore, no question can arise as

to the fact that defendant pled guilty to

first degree burglary with the possible

penalty specified. Thus, defendant's

contentions if considered in spite of the

failure to secure a certificate of pro-

bable cause would be held to be

meritless."

With this modification, the

petition for rehearing is denied.

f/s/ Gardner

P.J.

I concur:

/s/ McDaniel

- A-14 -

[Filed March 12, 1980]

IN THE COURT OF APPEAL OF THE STATE

OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

4TH CRIM. NO. 10041

(Sup.Ct.No. CR-432 (VIC) )

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

Vv.

MICHAEL MUSANTE,

Defendant and Appellant.

THE COURT:

Due to a clerical error, the

Modification of Opinion on Denial of

Rehearing, filed March ll, 1980, was

stamped, ‘Not To Be Published In Official

Reports', and should have been stamped,

"Certified For Publication'.

Gardner, P.J.

ee ee ee ee ee ee eee ee ee

Presiding Justice

APPENDIX B

-B-l- °°:

CLERK'S OFFICE, SUPREME ‘COURT ,

4250 STATE BUILDING: t iy

San Francisco, CALirornta 94102 % >.

‘¢ ;

4/cr. No._10041__ |

People | f.

v8.

Musante =

Respectfully,

G. E. BISHEL

Clerk

In re:

3

ty

5068-677 11-78 46 OOP

APPENDIX C

- C-] -

[Filed May 19, 1980]

IN THE COURT OF APPEAL OF THE STATE

, OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

4TH CRIM. NO. 10041

(County No. VCR 432)

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

Vv.

MICHAEL MUSANTE,

Defendant and Appellant

ee ee ee ee ee ee ee ee eee

THE COURT:

The request by respondent,

Attorney General, to recall and Stay

Remittitur, is DENIED.

Gardner, P.J.

Presiding Justice