Petition — Robbins v. California

su 1900

80-148 "

No.

In: the Supreme Court

OF THE

United States

OctoBer TERM, 1979

JEFFREY RicHarp Rossins,

Petitioner,

VS.

STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal, State of California,

First Appellate District

aa

JosepH G. BAxTER MarsHaLu W. Krause

Box 37, Main Street Krause, Trman, Baskin,

Duncans Mills, CA 95430 SHELL & Grant

Tel.: (707) 865-1311 Wood Island, Suite 207

60 E. Sir Francis Drake

Blvd.

Larkspur, CA 94939

Tel.: (415) 461-4100

Attorneys for

Petitioner

BOWNE-PERNAU WALSH © 1048 SANSOME ST. © &.F., CA O4111 © (415) 981-7882

QUESTIONS PRESENTED

1. When this Court vacates a state judgment and man-

dates the state court to reconsider its judgment, does the

state court violate the mandate when it re-instates its judg-

ment on new grounds not encompassed within the prior

judgment or the mandate of this Court?

2. Are the Fourth and Fourteenth Amendments vio-

lated by warrantless searches of private property other

than luggage when such property has been immobilized

during a highway stop and arrest?

3. What constitutional limits apply when inferences

drawn from the appearance of a closed package or con-

tainer are used to avoid the Warrant Requirement?

ii

SUBJECT INDEX

Page

SS i

OD EPO 00 PLA OTA LO ROOT TA 1

EERE REALE EIT LE PE RTD 2

Constitutional provision at issie ............ccceccceceecececceceeseeee 2

I 2

EER RTI LE SA A DOS CS LTE eR 2

CRM WRURCOUNROTANS OOD nanos ncecc csc caceccecnnseconce 4

SE LL ERT CRT +

The proceedings in the trial court ..0............c-cece-cececeese- 6

Proceedings in the appellate courts and this court .... 7

| Ra eee 8

I

The California Court of Appeal has not followed the

i i 8

II

Although the issue is presented daily to police author-

ities and the courts, this court has not yet articulated

a constitutional standard for searches of private

property immobilized by police authorities as a re-

sult of a highway stop and arrest 0.0.0........ccecccccecececoeee 10

III

The dicta in Arkansas v. Sanders permitting police to

make warrantless searches based upon inferences

drawn from the type of container involved is subject

to misunderstanding, as illustrated by the misunder-

standing of the court below, and should be explained 19

SERIES ee ie Ren ee EI, Poo tS 23

TABLE OF AUTHORITIES CITED

Cases

Page

Arkansas v. Sanders, 442 U.S. ......; 61 L.Ed.2d 235; 99

SIG I aeccsisbeosite 7, 10, 11, 12, 14, 16, 17, 18, 19, 20, 22, 23

Chambers v. Maroney, 399 U.S. 42 (1970) .....eeeeeeseceeeeeee 22

Chimel v. California, 395 U.S. 752 (1969) oo. 18

Harris v. United States, 390 U.S. 234 (1968) 00.0... 19

Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877 (1878) ...... 20

Johnson v. United States, 333 U.S. 10 (1948) ........ 13, 16, 21

Katz v. United States, 389 U.S. 347 (1967) oe 11

People v. Dalton, 24 C.3d 850 (1979) .o.cceeeeceeseseeeeeeeee 14

People v. Diaz, 101 C.A.3d 440 (1980) oo... ceeeeeeeee 15

People v. Fick, 80 Daily Journal D.A.R. 1955 (C.A.2d

a a llaataaeais 15

People v. Musante, 102 C.A.3d 156 (1980) 00. 14

People v. Pace, 92 C.A.3d 199 (1979) ou... cette cceccsscese 14, 15

United States v. Chadwick, 433 U.S. 1 (1977) ........ 14, 20, 21

United States v. Christophe, 470 F.2d 865 (1972) .......... 18

United States v. Dien, 609 F.2d 1038 (1979)... 16

RTI Al OI ane hi, eas tact bedencunaneimectinons 16

United States v. Van Leeuwen, 397 U.S. 249, 25 L.Ed.

RRR ear WON Oe Oe 20

Constitutions

United States Constitution:

Fourth Amendment. .............2...:::2sc00000-+ i, 7,11, 12, 16, 21, 23

EOE AES SACO i

pg eS SEES AIR DN OPO LAO ON COE ROC 2

Statutes

28 U.S.C.:

RRNA Sie CRIS Re ANE PA Pe 2

EERE SRE ESTP TIES 97 Joy PE OR a etl COAT 2

No.

In the Supreme Court

OF THE

United States

Octoser Term, 1979

JEFFREY RicHarp Rossins,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal, State of California,

First Appellate District

Petitioner, Jeffrey Richard Robbins, respectfully prays

that a writ of certiorari issue to review the judgment of

the Court of Appeal of the State of California in and for

the First Appellate District (1/Crim. 14387) entered in

this matter on March 24, 1980 as a result of this Court’s

June 25, 1979 mandate in Robbins v. State of California,

No. 78-567.

OPINION BELOW

The opinion of the Court of Appeal of the State of Cali-

fornia, First Appellate District and the order of the Su-

preme Court of California on July 5, 1978, denying a peti-

tion for hearing, are reproduced in the appendix.

2

JURISDICTION

This court’s jurisdiction is invoked under 28 U.S.C.

§§ 1257 and 2101, this being a petition arising out of a

state criminal conviction. The petition is filed within 90

days of April 30, 1980.

CONSTITUTIONAL PROVISION AT ISSUE

Amendment IV:

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable

search and seizures, shall not be violated, and no war-

rants shall issue, but upon probable cause, supported

by oath or affirmation, and particularly describing the

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

seized.

STATEMENT OF THE CASE

The facts we state are undisputed in the record unless

otherwise indicated.’

The Stop

On January 5, 1975 at 1:45 a.m., while traveling along

Interstate 80 in the foggy and very cold morning hours,

Officer DePue of the California Highway Patrol observed

petitioner’s stationwagon, between one tenth and one

quarter mile distant, traveling on Nelson Road. (R.T.S.

4:16-28, 9:26-27, 5:1-7; R.T. 65:6-9)

1The following designations have been used in this brief: P.H.

(Reporter’s Transcript of Preliminary Hearing); R.T.S. (Reporter's

Transcript of Special Suppression Hearing); R.T. Reporter’s Tran-

script on Appeal); R.T.J.S. (Reporter’s Transcript of Judgment and

Sentencing); C.T. (Clerk's Transcript).

3

Despite the difficult viewing conditions, which limited

visability to one quarter of a mile, Officer DePue formed

an opinion that petitioner was driving too slowly. (R.T\S.

6:2-3) It was later established that this opinion was mis-

taken and based upon DePue’s mistaken belief that the

speed limit on Nelson Road was much higher than it

actually was. (R.T. 202:13-28, 229:26-239:9, 240 :5-241 :19)

Viewing the distant scene in this false light, DePue

likewise believed he observed petitioner twice cross over

the broken yellow road line, once three feet and once a full

vehicle width. (R.T. 6:9-16, 7:24-8:4) DePue, however,

never testified that his limited view of the distant scene

allowed him.to determine whether these alleged maneuvers

were in violation of law.

Upon exiting the freeway Officer DePue and his partner,

Officer Stoltz, stopped petitioner to question him about his

driving. Since the road did not have a shoulder, petitioner’s

vehicle was stopped iu the middle of the right hand road-

way. (R.T. 75:8-19)

Petitioner stepped out of his stationwagon and produced

his driver’s license. (R.T.S. 8:11-22) Asked to produce a

registration, petitioner returned to his car and proceeded

to look for the registration. (R.T.S. 8:25-28) While the

door was opened Officer DePue detected the odor of burned

marijuana. (R.T.S. 9:28-10:21) Immediately upon receiv-

ing petitioner’s registration, DePue arrested petitioner for

driving under the influence of marijuana. (R.T.S. 20:20-25,

9 :16-17)

4

The Automobile Search

A search of the passenger compartment then followed.

Several entries were made into the vehicle which yielded

evidence to support the basis for the arrest: two pairs of

tweezers, one with a hand-rolled cigarette butt, and a cookie

tin containing cigarette papers and approximately 1th

oz. of marijuana. (R.T.S. 11:27-12:9, R.T.S. 17:17-18:12,

P.H. 25:4-5)

While this search took place Robbins was kept spread-

eagled against his still-running car, breathing in the fumes

from its exhaust. (P.H. 7:11-16, R.T.S. 10:21-25, R.T. 80:17-

18) At some point he was overcome by these fumes and

fell into the middle of the oncoming roadway, where he

vomited.

Still standing outside in what Officer DePue described

as a very cold night, Robbins was swallowing rapidly and

perspiring profusely. (R.T.S, 14:15-16, 9:26-27) He began

saying irrational things and looked wild-eyed. (R.T\S.

15:12-17, P.H. 26-28) He was then handcuffed, and while

DePue continued the search, Stoltz questioned Petitioner in

order to complete a lengthy vehicle impoundment form.

(R.T.S. 15:12-28) Shortly thereafter, and after Robbins

learned of the search of the cookie tin, Robbins allegedly

stated to Sergeant Stoltz, “What you are looking for is in

the back.” (R.RS, 15 :26-26:6, R.T, 120:23-25) Robbins was

then removed from the cold and placed in the patrol vehicle.

(R.T. 50:8-12)

The Luggage Search

Removing the keys from the petitioner's ignition, DePue

unlocked and opened the tailgate of the wagon. (R.T.

5

50:13-15) Picking up the floor rug, DePue discovered a

luggage compartment under the floor in the rear deck of

the wagon. (P.H. 22:16-18) Pulling a handle set flush into

the deck, DePue opened the luggage compartment and

observed therein two pieces of luggage and two sealed

packages. (Jd. P.H. 23:7-24:6)

DePue proceeded to open up these items. He first opened

up a brown leather tote bag and discovered a masonry

jar and three white plastic bags, each of which was double

taped. (R.'[. 133:6-7) After they were opened these items

were found to contain a total amount of marijuana in

excess of one pound. (P.H. 25:9-13)

DePue next removed and opened a brown leather brief-

case and rummaged througi) petitioner’s clothing. (P.H.

13:17-18, R.T. 54:28-55:9) DePue then removed a package

wrapped in opaque green plastic and sealed closed. (P.H.

13 :28-14:21, R.T. 57:20-17)

Justice Rattigan of the California Court of Appeal

provides a vivid description of this package:

“The package visible in the photograph is apparently

wrapped or boxed in an opaque material covered by an

outer wrapping of transparent, collophane-type plastic.

(The photograph is not in color, and the “green” plastic

cannot be seen at all.) Both wrappings are sealed on the

outside with at least one strip of opaque tape. As thus

wrapped and sealed, the package roughly resembles an

oversized, extra-long cigar box with slightly rounded

corners and edges. It bears no legend or other written

indicia supporting any inference concerning its contents.

“The photograph thus presents to me the visual impres-

sion of a package that had been tightly wrapped for

6

shipment by mail, or to protect its contents, or for both

purposes. For all that I see, it could contain books,

stationery, canned goods, or any number of other wholly

innocuous items which might be heavy in weight. In fact,

it bears a remarkable resemblance to an unlabelled carton

of emergency highway flares that I bought from a store

shelf and have carried in the trunk of my own automobile.”’

Upon opening this package DePue discovered a block

of marijuana weighing approximately fifteen pounds. (P.H.

25:6-8) Finally, DePue removed and opened a similar

package containing approximately the same amount of

marijuana. (Jd.)

The Proceedings In The Trial Court

Petitioner was charged with counts of possession of

marijuana, possession of marijuana for sale, transportation

of marijuana, and driving under the influence of a drug.

On January 14, 1975 during the preliminary hearing in

the municipal court, petitioner’s counsel orally objected to

the introduction into evidence of all articles taken during

the warrantless search of the trunk. (P.H. 26) The court

reserved counsel’s objection but permitted the items to be

received in evidence. (P.H. 26-27)

At the preliminary hearing the District Attorney elicited

from DePue a statement that he had heard that contraband

is sometimes packaged the way the two parcels were

packaged. DePue, however, said he hadn’t seen this him-

self (in all of his eight years with the Highway Patrol)

and discredited this information as “merely hearsay.”

(P.H. 24; R.T.S. 22:9-10)

7

On March 24, 1976 petitioner’s motion to suppress ail

tangible evidence as obtained in violation of petitioner’s

constitutional rights came on for hearing and was denied.

(R.T.S. 2-37)

Petitioner was convicted of possession of marijuana,

possession for sale, and transportation of marijuana, but

found not guilty of driving under the influence of a drug.

Petitioner was sentenced to prison for a term of five years

to life and has been released on bail pending Supreme

Court review after serving only a portion of this sentence.

Proceedings In The Appellate Courts and This Court

On May 9, 1978 the Court of Appeal, First Appellate

District, reaching the merits of the Fourth Amendment

contention, affirmed the conviction below. The court upheld

the warrantless search of the luggage and sealed packages

in the luggage compartment “as falling within the excep-

tion authorizing warrantless searches of automobiles and

their contents where there is probable cause.’’ (Opinion

at p. iv, App. Petition For A Writ of Certiorari in Rob-

bins v. State of California, No. 78-567). No other excep-

tions to the Warrant Clause were relied upon.

On June 25, 1979 this Court granted a petition for a

writ of certiorari, ordered the judgment of the Court of

Appeal to be vacated, and remanded the case to the Court

of Appeal for further consideration in light of Arkansas

v. Sanders, 442 US. ........ ; 61 L.Ed.2d 235; 99 S.Ct. 259.

On remand, the California Attorney General conceded

that the warrantless search of the tote bag and cookie tin

was in violation of the Fourth Amendment.

—

8

On March 4, 1980, two members of the Court of Appeal,

over the dissent of Justice Rattigan, ruled that the mandate

of this Court did not require the suppression of the sealed

plastic packages on the ground that “the packages did not

support a reasonable expectation of privacy.” (Opinion at

p. 6, App.) Relying upon Officer DePue’s statement that

he had heard that contraband is sometimes wrapped in this

manner, the Court of Appeal found as follows:

“Although a variety of legally possessable objects

could conceivably be wrapped in brick-shaped, plastic-

wrapped packages, legally possessable objects are not

commonly packaged in this manner. . . . Any experi-

enced observer could have inferred from the appear-

ance of the packages that they contained bricks of

marijuana. The parcels thus could not support a

reasonable expectation of privacy and were not pro-

tected by the Fourth Amendment.” (Opinion at p. 6,

App.) (Emphasis in the original)

On April 30, 1980, over the dissent of Chief Justice Bird

and Justice Tobriner, the California Supreme Court voted

to deny a petition for hearing.

REASONS FOR GRANTING WRIT

I

THE CALIFORNIA COURT OF APPEAL HAS NOT

FOLLOWED THE MANDATE OF THIS COURT

Petitioner submits that the California Court of Appeal,

despite its choice of labels, has essentially sought to autho-

rize a warrantiess search on the ground that contraband

was in “plain view.”

9

The marijuana, of course, was not in plain view. Officer

DePue could not see through the opaque green plastic

wrap. He was not even attracted to the packages when he

first saw them lying side by side with other property in

the luggage compartment. Nevertheless, through the power

of hindsight, the contents of the packages now appear obvi-

ous to two members of the Court of Appeal. Since no other

recognized exception to the Warrant Clause would apply,

this is tantamount to a claim that the contents of the pack-

ages were subject to the “rlain view” exception.

The record of this case prior to the June 25, 1979 man-

date of this Court provides absolutely no basis for such a

claim. Although an objection to the warrantless search was

made in the trial court, no plain view exception was

claimed. (P.H. 1-28; R.T.S. 1-37). Nor was the plain view

exception urged by the State of California on appeal.

(Respondent’s Brief, dated January 18, 1978, filed in the

California Court of Appeal).

~The May 9, 1978 decision of the California Court of

Appeal upheld the warrantless search on one ground only,

“as falling within the exception authorizing warrantless

searches of automobiles and their contents where there is

probable cause.” (Opinion at p. iv, App. to Petition For

A Writ of Certiorari, Robbins v. State of California, No.

78-567).

Had the plain view exception been previously raised or

decided upon, petitioner might have filed a different peti-

tion to this Court, the review by this Court might have

been different, a different mandate might have issued, or

no mandate at all might have issued.

10

But this was not the case. The review of this Court was

directed to a decision of the California Court of Appeal

which did not encompass a claim that the search could be

upheld under the plain view exception to the Warrant

Clause. Petitioner submits that this should settle that issue

forever. Any other result permits a lower appellate court

to undermine the authority of this Court and make the

review process of this Court a waste of time for both the

Court and the petitioner.

Petitioner therefore submits that the California Court of

Appeal is in violation of the mandate of this Court. Peti-

tioner furthermore submits that insofa:' as much of this

Court’s workload is accomplished throug’, mandates direct-

ing lower courts to reconsider their decisions on the basis

of specified decisions of this Court, this issue is important

for review.

II

ALTHOUGH THE ISSUE IS PRESENTED DAILY TO

POLICE AUTHORITIES AND THE COURTS, THIS

COURT HAS NOT YET ARTICULATED A CONSTI.

TUTIONAL STANDARD FOR SEARCHES OF PRI-

VATE PROPERTY IMMOBILIZED BY POLICE AU-

THORITIES AS A RESULT OF A PIGHWAY STOP

AND ARREST

In Arkansas v. Sanders, 442 U.S. 753; 61 L.Ed.2d 235

(1979), this Court held that in the absence of exigent cir-

cumstances, the police are required to obtain a warrant

before searching luggage taken from an automobile prop-

erly stopped and searched for contraband. But, as Justice

Blackmun noted in his dissent,

Se

11

“Still hanging in limbo, and probably soon to be liti-

gated, are the briefcase, the wallet, the package, the

paper bag, and every other kind of container.” 442

SIE BB ectinceats ;

Highway searches of private property other than lug-

gage occurs daily, however, and the issue “continues to

occupy much of the attention of courts at all levels of the

state and federal judiciary.” Arkansas v. Sanders, 442 U.S.

oe . Nevertheless, courts and law enforcement offi-

cials find it difficult to discern a clear constitutional stand-

ard for such cases. Petitioner submits that the erroneous

decision of the court below resulted from this confusion

and uncertainty.

Although the underlying thrust of that court’s decision

appeared to be to the effect that contraband was in plain

view, the principles actually articulated were quite differ-

ent. The Court of Appeal opinion suggests that in cases

involving searches of property immobilized from a high-

way stop and arrest, the ultimate test is whether the prop-

erty is a container which supports a “reasonable expecta-

tion of privacy.” In the hands of the Court of Appeal,

however, this test is a constitutional wild card, so subjec-

tive that it provides no guidance and achieves whatever

result is desired. Thus, two members of the Court of

Appeal were capable of finding that there was no reason-

able expectation of privacy in a package which a third

member said looked like a very ordinary mail parcel.

As a Fourth Amendment standard, the concept of “legit-

imate expectations of privacy” is at least as old as Katz v.

United States, 389 U.S. 347 (1967). Yet no decision of this

Court has ever held it to be a test to be applied by the

12

officer in the field in making Fourth Amendment determina-

tions. Some support for the notion that this might be the

case in highway stop cases, however, may be found in foot-

note 13 of the Arkansas v. Sanders decision where this

Court states:

“Not all containers and ¢~ckages found by police dur-

ing the course of a search will deserve the full pro-

tection of the Fourth Am »ndment. Thus, some contain-

ers (for example, a kit of burglar tools or a gun case)

by their very nature cannot 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.”

Some support for such a rule could likewise be drawn

from the Court’s references to the fact that unlike an auto-

mobile, which may be searched without a warrant, “luggage

is a common repository for one’s personal effects, and

therefore is inevitably associated with the expectation of

privacy.” 442 U.S. at ...... ; 61 L.Ed.2d at 244; see also 442

Us: Ot 2 ; 61 L.Ed.2d at 245.

Nevertheless, the possibility that these dicta remarks

may presage a new ultimate test under the Fourth Amend-

ment creates enormous room for confusion. Although many

thousands of cases may be governed by this test, this Court

has never actually ruled upon it, explained what it means,

or considered its possible conflict with other Fourth Amend-

ment principles.

In determining whether an expectation of privacy is

“reasonable”, to what factors must police and the courts

look for guidance? The right to privacy is the “right to be

13

let alone” and is said to be the most comprehensive of all

rights that exist. Any search of a man’s private property

constitutes some invasion of his privacy.

What account is to be taken for the fact that people’s ex-

pectations of privacy differ, or of the many personal

factors unknown to the officer which are involved in any

inquiry into a privacy question? What account is to be

taken of a man uses a shoe box to transport his valuables

because he can’t afford a briefcase; of a man uses a paper

bag walking through a high crime area because he knows

that an expensive piece of luggage will attract attention,

or of a man who uses an uncommon package but mani-

fests his expectations of privacy by clutching it twice as

tightly and watching it more carefully than the next man?

From which perspective must the expectation of privacy

appear “reasonable”? From the perspective of the person

claiming the right? Or from the perspective of the officer

in the field who is “engaged in the often competitive enter-

prise of ferreting out crime?” Johnson v. United States,

333 U.S. 10, 14 (1948). The California Court of Appeal,

however, suggests that only the view of the highest Court

counts if that Court can reasonably conclude that the

trial “court could reasonably conclude that the contents

of the packages could have been inferred.” (Opinion

at p. 5, App.)

But why should highly personal feelings of privacy,

often times fused with irrationality, be weighed on a scale

of open-ended reasoning? Why must the expectation of

privacy appear “reasonable” to anyone so long as the

14

right of privacy has not been waived by placing that

which could be private “in plain view”?

With this in mind, Justice Blackmun’s remarks may be

well taken, that

“(T)he carving out of a special warrant requirement

for one type of personal property, but not for others,

will impose untoward costs on the criminal justice

systems of this country in terms of added delay and

uncertainty.” Arkansas v. Sanders, 442 U.S. ...... (dis-

senting opinion).

The classification of containers will not solve this prob-

lem. The types of containers in which objects may be

carried are potentially infinite.

As Justice Blackmun states:

“[S]uppose the arresting officer opens the car’s trunk

and finds that it contains an array of containers—an

orange crate, a lunch bucket, an attache case, a duffel

bag, a cardboard box, a backpack, a totebag, and a

paper bag. Which of these may be searched immedi-

ately, and which are so ‘personal’ that they must be

impounded for future search only pursuant to a war-

rant?” 442 U.S. at 0...

The decisions of California courts demonstrate these

problems. In People v. Dalton, 24 C.3d 850 (1979), the Cali-

fornia Supreme Court said the warrant requirement of

Chadwick and Sanders fully applied to a metal tool box

and a leather box with a “Longine” watch inscription, both

of which were found in an automobile trunk. In People v.

Pace, 92 C.A.3d 199 (1979), the Warrant Clause was held to

apply to a lunchbox, while in People v. Musante, 102 C.A.

3d 156 (1980), it was held to apply to an electric blanket

15

box found in an automobile. And in People v. Robbins,

herein, it was conceded by the Attorney General that there

was a reasonable expectation of privacy in a cookie tin.

(Opinion at p. 3, App.).

At the same time, however, the California Court of

Appeal held that there was no reasonable expectation of

privacy in tape-secured plastic-wrapped packages which

presented to Justice Rattigan of that court “the visual

impression of a package that had been tightly wrapped for

shipment by mail, or -to protect its contents, or for both

purposes,” (Disseating Opinion at p. 11, App.) since two

other Justices were of the opinion that “legally possible

objects are not commonly packaged in this manner.”

(Opinion at p. 6, App.). Following this approach, some

California courts have held that one has a reasonable ex-

pectation of privacy only if the container is of a type

commonly used as a repository for one’s personal effects.

Thus, in People v. Diaz, 101 C.A.3d 440 (1980) the Cali-

fornia Court of Appeal held that for this reason, there

was no reasonable expectation of privacy in a closed soft

drink container.’ The court furthermore added that it dis-

agreed with the holding in People v. Pace, supra, that an

individual had a reasonable expectation of privacy in a

lunchbox. 101 C.A.3d at 448, n.5. Likewise, in People v. Fick,

80 Daily Journal D.A.R. 1955 (C.A.2d, July 1, 1980) the

California Court of Appeal held that there was no reason-

able expectation of privacy in the contents of a paper bag

seized during an automobile search.

*At first impression this seems reasonable. Nevertheless, almost

anyone would regard it as an invasion of privacy if government

agents took a closed soft drink container from them and inspected

its contents.

16

Federal Circuit decisions are just as perplexing. In

United States v. Dien, 609 F.2d 1038 (1979), for example,

the Second Circuit held that an occupant of a rented van

had a reasonable expectation of privacy in cardboard car-

tons found in the back of the van which contained mari-

juana, Jd. at 1045 In United States v. Gooch, however, the

Tenth Circuit held that an occupant of a small airplane

could have no reasonable expectation of privacy in large

plastic sacks containing marijuana since Sanders applies

to luggage and not “mere cargo.” Jd. at 126.

In view of this array of opinions among appellate jus-

tices about what is a reasonable expectation of privacy it

may be questioned whether it is consistent with Fourth

Amendment policy to entrust the officer in the field with

the authority to draw inferences from facts presented to

him to determine whether a reasonable expectation of pri-

vacy exists in a particular case. The point of the Fourth

Amendment, according to Mr. Justice Jackson, is that

these types of determinations are to be drawn by a neutral

magistrate :

“The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies

law enforcement the support of the usual inferences

which reasonable men draw from evidence. Its protec-

tion consists in requiring that those inferences be

drawn by a neutral and detached magistrate instead

of being judged by the officer engaged in the often

competitive enterprise of ferreting out crime . .

When the right of privacy must yield to the right of

search is as a rule, to be decided by a judicial officer,

not by a policeman or government enforcement agent.

Johnson v. United States, 333 U.S. 10, 13-14.

17

Carving out a special warrant requirement for one type

of private property, found in an automobile, but not for

others, may, likewise, be inconsistent with the most basic

Fourth Amendment principle, recognized in Arkansas v.

Sanders, that

“In the ordinary case ... a search of private property

must be both reasonable and performed pursuant. to

a properly issued search warrant.” 442 US. at .......... ;

Variations from this rule constitute an exception from

the Warrant Clause. These “few ‘jealously and carefully’

drawn exceptions provide for those cases where the

societal costs of obtaining a warrant . . . outweigh the

reasons for prior recourse to a neutral magistrate.” Arkan-

sas v. Sanders, id. at ...., 61 L.Ed.2d at 242. What, therefore,

are the “societal costs of obtaining a warrant” which

justify the need for carving out an exception from the

Warrant Clause for certain types of property found in an

automobile?

Arkansas v. Sanders, indeed, appears to hold that the

extent to which the Warrant Clause applies, depends not

at all upon whether it is seized from an automobile:

“Our decision in this case means only that a warrant

generally is required before 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.” 442 U.S. at ........ , n.13.

But if this is the case, then the Warrant Clause would

apply to practically all private property found in an auto-

mobile, absent proof that the property fell within one of

18

the traditional exceptions. When an arrest is made with-

out a search warrant, for example, a warrantless search

may be made only of the area within the person’s immedi-

ate control. Chimel v. California, 395 U.S. 752 (1969). No

“reasonable expectation of privacy” test has ever been

applied to the property outside that area. In such cases,

the Warrant Clause ordinarily applies to all private prop-

erty owned by the individual irrespective of whether the

property is contained within a container. Thus, if a man

is arrested in his home without a search warrant, absent

proof of some exception to the Warrant Clause, the police

may not pull apart his mattress, his stuffed chair, his pot-

ted plants, or his TV looking for contraband on the alleged

ground that these are not “common repositories for per-

sonal effects.” See Chimel v. California, 395 U.S. 752

(1969) ; United States v. Christophe, 470 F.2d 865 (1972).

Why then should a different test apply in a man’s auto-

mobile or truck? What are the “identified needs of society”,

Arkansas v. Sanders, 442 US. at ........ ; 61 L.Ed.2d at 242

which would authorize this type of warrantless search sim-

ply because the objects were found in an automobile?

For the exclusionary rule to achieve its stated consti-

tutional objective, there must be clear constitutional stand-

ards for the police to follow. As is evidenced by the Court

of Appeal decision in this case, the “reasonable expecta-

tion of privacy” test provides no guidance. While the rule

suggested by Justice Blackmun—permitting warrantless

searches of all property found in an automobile—would

obviously serve this purpose, that approach was rejected

19

by the Court in Arkansas v. Sanders. The most clear-cut

alternative would therefore be to hold that there is a rea-

sonable expectation of privacy as to all private property

seized in an automobile unless the property falls within

the “plain view” exception to the Warrant Clause. See,

Harris v. United States, 390 U.S. 234, 236 (1968) (per

curiam).

Whatever this Court’s decision may be as to what ulti-

mate constitutional standard applies to searches of private

property taken from an automobile search, there is no

question that a clear constitutional standard and further

guidance from this Court is required.

III

THE DICTA IN ARKANSAS v. SANDERS PER-

MITTING POLICE TO MAKE WARRANTLESS

SEARCHES BASED UPON INFERENCES DRAWN

FROM THE TYPE OF CONTAINER INVOLVED IS

SUBJECT TO MISUNDERSTANDING, AS ILLUS-

TRATED BY THE MISUNDERSTANDING OF THE

COURT BELOW, AND SHOULD BE EXPLAINED

To appreciate the scope of the California Court of

Appeal’s ruling, it must be kept in mind, as Justice Ratti-

gan states, that each of the packages simply “presents .. .

the visual impression of a package that had been tightly

wrapped for shipment by mail.” (Dissenting Opinion at

11, App.). Two members of the Court of Appeal, however,

interpret Arkansas v. Sanders to hold that a package of

this type of almost any size and weight is outside the War-

rant Clause so long as someone is capable of drawing an

20

imterence regarding its contents. Previously, however, it

was well established that the protection of the Warrant

Clause applied to all “letters and sealed packages . . . closed

against inspection, wherever they may be.” Ex parte Jack-

son, 96 U.S. 727, 733; 24 L.Ed. 877 (1878) ; United States v.

Van Leeuwen, 397 U.S. 249; 25 L.Ed.2d 282 (1970) ; United

States v. Chadwick, 433 U.S. 1, 10 (1977). Petitioner sub-

mits that this breach with the prior law points to a need

for guidance by this Court.

The Court of Appeal found that there was no reasonable

expectation of privacy in the taped, secured packages be-

cause Officer DePue “testified that he had heard that con-

traband was commonly packaged this way.” (Opinion at p.

4-5, App.). Relying upon language in footnote 13 of Arkan-

sas v. Sanders, supra, the Court of Appeal held that a find-

ing of no reasonable expectation of privacy is appropriate

when the police can infer the contents of the package from

its outer appearance and that DePue’s statement indicated

that he could do so.

The language in Arkansas v. Sanders relied upon by the

California Court of Appeal states:

“({S]ome containers (for example a kit of burglar tools

or a gun case) by their very nature cannot support a

reasonable expectation of privacy because their con-

tents can be inferred from their outward appearance.”

Arkansas v. Sanders, 442 U.S. at ........ ,n. 13.

Unfortunately, the examples drawn by this Court are not

extremely useful. Although no descriptions of a kit of

burglar tools can be found in standard texts on criminal

investigation, it seems reasonable to assume that such a kit

21

is either a rolled pouch with inside pockets secured by

straps or a case with room for tools therein. The first type

of container might resemble an innocent tool pouch or

silverware roll, while the second might be indistinguishable

from a tool box or fishing tackle box.

A gun case might receive rather special treatment under

the Fourth Amendment. For their own protection, and for

no other reason, the police might be entitled to search a

gun case found in an automobile based upon probable cause

alone. But why should such principles apply to a guitar

case or a shoe box or any other container which may per-

mit inferenees but not certainly about the contents of the

container?

To infer means to use the power of reason to deduce

something from known facts. The constitutional policy of

the Warrant Clause, however, consists in requiring that

“the usual inferences which reasonable men draw from

evidence . . . be drawn by a neutral and detached magis-

trate instead of being judged by the officer engaged in the

often competitive enterprise of ferreting out crime.” John-

son v. United States, 333 U.S. 10, 13-14. Thus the policy

of the Warrant Clause requires that the magistrate and

not the police draw the inferences from the outward

appearance of the container.

This was the rule applied in United States v. Chadwick,

4.3 U.S. 1 (1977). In that case, police were clearly able

to infer the contents of the footlocker from outward ap-

pearances as well as other reliable information. Talcum

powder, known to be used to cover up the odor of mari-

juana, was leaking and a trained dog had signalled the

22

presence of marijuana. Yet a warrant was held to be

required.

This has always been the rule under the Warrant

Clause. The exterior of a container may provide probable

cause about the contents of the container, but until the

contents are plainly known by the senses, there is still

nothing more than probable cause. No amount of probable

cause, standing alone, is sufficient to justify a search with-

out a warrant. |

“In enforcing the Fourth Amendment’s prohibition

against unreasonable searches and seizures, the Court

has insisted upon probable cause as a minimum re-

quirement for a reasonable search permitted by the

Constitution. As a general rule, it has also required

the judgment of a magistrate on the probable-cause

issue and the issuance of a warrant before a search

is made. Only in exigent circumstances will the judg-

ment of the police as to probable cause serve as suffi-

cient authorization for a search.” Chambers .v.

Maroney, 399 U.S. 42, 51 (1970).

If a special rule is to be established, permitting war-

rantless searches based upon the outward appearance of

a container, just how much probable cause will be re-

quired? How will such a standard be applied?

Petitioner submits that the only rule regarding outward

appearances of property which is both consistent with the

constitution and workable is the plain view rule. Dicta in

Arkansas v. Sanders, supra, however, cast doubt upon this,

creates confusion regarding the traditional rule that prob-

able cause standing alone does not justify a warrant and

invites the police to find new avenues to avoid the warrant

23

requirement. Petitioner requests the court to grant the

petition in order to resolve these misunderstandings which

otherwise will provide a continuing source of disputes in

lower courts concerning the Warrant Clause.

CONCLUSIONS

Although the general principles applicable to claims of

Fourth Amendment violations are deemed well-settled.

there is widespread uncertainty and confusion over how to

apply these principles to cases involving private property

taken from a highway stop and arrest. Arkansas v.

Sanders, 442 U.S. 753 has resolved most of the uncertainty

in cases involving luggage. N evertheless, while automobile

searches occur every hour of the day, only a small percent-

age of the property found in autoniobiles constitute

luggage.

Dicta in a footnote in Arkansas v. Sanders presages the

possibility that non-luggage searches may be governed by

a test of whether the property is a container “supporting

a reasonable expectation of privacy.” A further test may

be whether the contents of the container “may be inferred”

from outward appearances.

These tests, while possibly well founded under certain

Fourth Amendment principles, do not resolve the uncer-

tainty. On the contrary, as is evidenced by the facts of the

case, without further guidance from this Court these tests

are constitutional wild cards. Until these highly subjective

tests are explained or limited, they threaten to eclipse the

most basic Fourth Amendment principles: the principle

that in the ordinary case inferences are to be drawn by

94

the magistrate and not the police, the principle that in the

ordinary case searches of private property must be per-

formed pursuant to a warrant, and the principle that in

the ordinary case no amount of probable cause, standing

alone, is sufficient to justify a warrantless search.

Petitioner furthermore submits that behind the mistakes

of law and despite the choice of labels the California Court

of Appeal has violated this Court’s mandate by reinstating

their judgment on grounds which tend to nullify and under-

mine the review process of this Court.

For these reasons a Writ of Certiorari should be

granted.

Dated: July 29, 1980

Respectfully submitted,

JosePH G. Baxter

MarsHALL W. Krause

Attorneys for Petitioner

(Appendix follows)

APPENDIX

In the Court of Appeal of the State of California

First Appellate District, Division Four

See Dissenting Opinion

1 Crim. No. 14387

(Sup. Ct. No. 10357)

People of the State of California, ;

Plaintiff and Respondent,

vs

Jeffrey Richard Robbins,

Defendant and Appellant. ;

[Filed March 4, 1980]

Jeffrey Richard Robbins appeals from a judgment of

imprisonment which was rendered after a jury found him

guilty of possession of marijuana (Health & Saf. Code

§ 11357), possession of marijuana for sale (Health & Saf.

Code, § 11359), and transportation of marijuana (Health &

Saf. Code, § 11360).

On May 9, 1978, in an unpublished decision, this court

modified the judgment to stay the sentence for possession

of marijuana for sale, and affirmed the judgment as

modified.

The United States Supreme Court subsequently dealt

with the problem of search of a closed container found

in an automobile in Arkansas v. Sanders (1979) 422 U.S.

A-2

sie * [61 L.Ed.2d 235; 99 S.Ct. 2586]. The court then

granted certiorari in the present case, vacated this courts’

decision and remanded the cause to us for further con-

sideration in light of Arkansas v. Sanders.

Although the appeal is from a judgment after trial, the

principal challenge is to the propriety of a pretrial order

denying a motion to suppress evidence (Pen. Code,

§ 1538.5). Therefore the following narrative is based not on

the trial record, but on the evidence received at the hearing

on the motion to suppress evidence.

On January 5, 1975, at 1:45 a.m., California Highway

Patrol Officer DePue and Sergeant Stoltz stopped appel-

lant’s station wagon on Nelson Road in Solano County.

Appellant had been driving erratically. He immediately

left his car, meeting DePue halfway between the vehicles.

The officer asked appellant for his operator’s license and

ownership registration. Appellant began talking very

rapidly and had difficulty in removing his license from his

wallet. DePue followed appellant to the car, and smelled

marijuana smoke when appellant opened the door.

Officer DePue patted appellant down for weapons and

found only a vial of liquid. The officer saw a pair of tweez-

ers on the front seat of the vehicle, of a type used to hold

marijuana roaches. He retrieved the tweezers; appellant

then began to vomit in the road. In the passenger com-

partment DePue found a pair of tweezers holding a burned

hand-rolled cigarette butt, an alligator clip, a hand-rolled

cigarette, and a cookie tin which contained marijuana

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

A-3

seeds, two packs of cigarette papers, and a plastic baggie

containing marijuana.

While Officer DePue was searching the passenger com-

partment, appellant said to Sergeant Stoltz, “What you

are looking for is in the back.” The officers then placed

appellant in the patrol car and DePue opened the luggage

compartment of appellant’s automobile. DePue found a

tote bag and two bulky packages wrapped in plastic.

DePue opened all of the packages. Each of the plastic-

wrapped parcels contained approximately fifteen pounds

of marijuana; the tote bag contained approximately three

pounds.

I

It was lawful for the officers to stop appellant’s car to

determine why it was moving erratically (People v. Boddie

(1969) 274 Cal.App.2d 408). Search of the automobile was

proper when the officers learned that appellant was

smoking marijuana when they stopped him.

The record establishes that when Officer DePue saw

the containers in the back of the car he had probable

cause to believe that they contained contraband.

Appellant contends that the Supreme Court’s mandate

to consider this case in light of Arkansas v. Sanders com-

pels the suppression of all the marijuana found in his

automobile. The Attorney General concedes that the cookie

tin retrieved from the passenger compartment and the

tote bag found in the luggage compartment were both

closed containers for which a warrant was required under

Arkansas v. Sanders, but contends that the plastic-wrapped

A-4

parcels were not protected by the Fourth Amendment

because they were readily identifiable as marijuana bricks.

In Arkansas v. Sanders, the United States Supreme

Court held that, absent exigent circumstances, a warrant

is generally required to search closed containers removed

from an automobile properly stopped in the field and

searched for contraband. (Accord, People v. Dalton (1979)

24 Cal.3d 850, cert. applied for Dec. 1979, Supreme Ct.

Dock. No. 79-930.) The court declared, however, that

“TnJot 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 cannot 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.” (442 U.S. at p. ...... n. 13°

[61 L.Ed.2d at p. 245; 99 S.Ct. at p. 2593].)

Appellant argues that the contents of the plastic-

wrapped packages were not in plain view. Indeed there

was no testimony that the plastic wrapping was sufficiently

transparent to reveal its contents. But the packages did

not support a reasonable expectation of privacy.’ Officer

DePue described the package as “green-wrapped plastic

blocks,” and testified that he had heard that contraband

247 U.S.L.Week 4783, at p. 4786.

*Arkansas v. Sanders, supra, involved a suitcase; also see People

v. Minjares (1979) 24 Cal.3d 410, cert. den. ... U.S... [Advance

Report Citation: 48 U.S.L.Week 3222] (zippered tote bag);

People v. Pace (1979) 92 Cal.App.3d 199 (closed lunch box).

A-5

was commonly packaged this way.‘ The packages were

received in evidence at the preliminary hearing. At the

subsequent suppression hearing the preliminary hearing

testimony was stipulated into evidence, and the exhibits

were also received, “under the same numbers they were

marked at the preliminary hearing.” We have not examined

the packages, but the trial record does include a photo-

graph of them in place in appellant’s car. The bulky

tape-secured packages do not present an appearance of

containing anything other than contraband. The court

could reasonably conclude that the contents of the pack-

ages could have been inferred from their outward appear-

ance, so that appellant could not have held a reasonable

expectation of privacy with respect to the contents.

Appellant contends that diverse legally possessable

objects could be wrapped in green plastic, citing Remers v.

Superior Court (1970) 2 Cal.3d 659. In Remers, the Cali-

fornia Supreme Court held that a suspect’s act of showing

a tinfoil package to a companion did not provide probable

cause for an arrest following which an incidental search

revealed the package to contain seconal tablets. The prose-

cution argued that the officer knew that dangerous drugs

‘Redirect examination of DePue:

“Q. .. . You stated in response to Mr. Ross’ question,

when you first saw this brown tote bag there was nothing

unusual about it; nothing about these two plastic wrapped

green blocks that attractd your attention?

“A. I had previous knowledge of transportation of such

blocks. Normally contraband is wrapped this way, merely

hersay. I had never seen them before.

“Q. You had heard contraband was packaged this way?

“A. Yes.”

A-6

are often packaged in tinfoil, but the court held that a

tinfoil package is so commonly used for legitimate pur-

poses, such as to wrap food or tobacco, that it in itself

is not a suspicious circumstance. (Jd., at pp. 665-666.)

Remers is to be distinguished from the present case.

Unlike a small tinfoil package, the very appearance of a

bulky, fifteen pound, brick-shaped, plastic-wrapped pack-

age suggested that it contains a specific type of contraband

(a brick of marijuana). Although a variety of legally pos-

sessable objects could conceivably be wrapped in brick-

shaped, plastic-wrapped packages, legally possessable

objects are not commonly packaged in this manner, as are

food and tobacco commonly wrapped in tinfoil. Any experi-

enced observer could have inferred from the appearance

of the packages that they contained bricks of marijuana.

The parcels thus could not support a reasonable expecta-

ton of privacy and were not protected by the Fourth

Amendment.

The Attorney General has conceded that suppression

of the cookie tin found in the passenger compartment and

the tote bag found in the luggage compartment is man-

dated by Arkansas v. Sanders. But erroneous denial of a

suppression motion and admission of evidence does not

require reversal if the error was harmless. (People v.

Tarantino (1955) 45 Cal.2d 590, 595; People v. Daniels

(1971) 16 Cal.App.3d 36, 45.) The amount of marijuana

in the improperly searched containers (about three

pounds) was insignificant when compared with that con-

tained in the lawfully searched plastic-wrapped packages

(about thirty pounds). It is certain beyond reasonable

doubt that the error did not affect the verdict on the

A-7

transportation count. The jury would have reached the

same verdict as to the transportation count upon thirty

pounds of marijuana as it did upon thirty-three pounds.

Therefore, the Fourth Amendment point does not justify

reversal of the judgment on that count. (See Chapman v.

California (1967) 386 U.S. 18, 24.)

II

Appellant contends that the trial court erred when it

refused to consider his renewed motion to suppress made

during trial. It is clear that once a defendant’s motion to

suppress evidence has been denied at a special Penal Code

section 1538.5 hearing in the superior court, the trial judge

should not entertain a renewed motion at trial unless there

is an interevening charge in the applicable law or the

discovery of new evidence.’ (People v. Superior Court

(1971) 4 Cal.3d 605, 610, reh. den. 386 U.S. 987.)

On the second day of the trial, defense counsel moved to

suppress evidence, asserting that the posted speed limit at

the site of the arrest is 35 miles per hour rather than 55

miles per hour. The defense argued that this discovery

destroyed the probable cause necessary for the initial stop.

The motion was denied. Appellant contends that this is

new evidence within the meaning of Penal Code section

1538.5, subsection (h), and that the motion should have

been granted.

*Penal Code section 1538.5, subdivision (h):

“If, prior to the trial of a felony or misdemeanor, oppor-

tunity for this motion did not exist or the defendant was

not aware of the grounds for the motion, the defendant

shall have the right to make this motion during the course

of trial in the municipal, justice or superior court.”

A8

The California Supreme Court in People v. Martinez

(1975) 14 Cal.3d 533, 537, recognized a “due diligence”

limitation on the availability of a belated motion to

suppress under section 1538.5, subdivision (h). The court

held that a motion to suppress raised at trial was prop-

erly denied when based on information defense counsel

could have obtained at any time simply by interviewing his

client. The present case is similar. It may be questioned

whether appellant realized the actual speed limit prior to

trial. However, it is clear that defense counsel could have

discovered the true speed limit simply by visiting the

scene of the arrest, an act which falls within the scope of

due diligence. Under the Martinez limitation, appellant’s

motion to suppress at trial was properly denied. (See

People v. Burke (1974) 38 Cal.App.3d 708, 713.)

III

Appellant contends and respondent concedes that the

sentence must be stayed as to the possession for sale count.

In People v. Sanders (1967) 250 Cal.App.2d 123, and In

re Adams (1975) 14 Cal.3d 629, the court recognized that

while possession for sale is a crime separate from trans-

porting, where both were part of an indivisible course of

conduct which has a single objective double punishment

would violate Penal Code section 654.

Appellant further contends that the offense of posses-

sion must be included within the offense of possession for

sale. The jury found appellant guilty of separate counts of

possession and possession for sale, upon evidence which

would support a determination that appellant possessed

distinct quantities of marijuana for different purposes: a

A-9

small amount in the cookie tin in the front of the car for

personal use, and a large amount in the sealed packages in

the baggage compartment for sale. But the contents of the

cookie tin should have been suppressed under Arkansas v.

Sanders. The only physical evidence available to support

the verdicts was the marijuana in brick form found in the

baggage compartment. Therefore, appellant’s contention

with respect to the charge of simple possession must be

upheld.

IV

Appellant argues that California’s marijuana laws are

unconstitutional. Constitutional challenges to the mari-

juana laws have consistently been rejected. (See People v.

Oatis (1968) 264 Cal.App.2d 344, cert. den. 393 U.S. 1108;

People v. Aguiar (1968) 257 Cal.App.2d 597, cert. den. 393

U.S. 970; People v. Glaser (1965) 238 Cal.App.2d 819, cert.

den. 385 U.S. 880, reh. den. 385 U.S. 965.) In a related con-

tention it is argued that trial counsel manifested constitu-

tional inadequacy when he failed to challenge the validity of

the laws proscribing marijuana. It is not an indication of

inadequacy for counsel to withhold making an unsound

argument.

The purported appeal from the order denying the motion

to suppress evidence is dismissed. The judgment is

reversed as to the count of simple possession. The sentence

as to the count of possession for sale is stayed. Upon such

modification the judgment is affirmed as to the counts of

possession for sale and of transportation.

Certified for publication.

Christian, J.

I concur:

Caldecott, P. J.

A-10

I respectfully dissent. I agree that the judgment of con-

viction must be reversed as to the contents of the cookie

tin found in the passenger compartment of appellant’s

station wagon, and as to the contents of the tote bag found

in the luggage compartment, but I reach the same conclu-

sion as to the eontents of the “plastic wrapped” packages

found with the tote bag. Because I would therefore reverse

the judgment in its entirety, contrary to part I of the ma-

jority opinion, I need not reach the points discussed in

parts II and III.

In declaring closed containers to be generally within the

protection of the Fourth Amendment against warrantless

searches, the United States Supreme Court excepted only

those containers which “by their very nature cannot sup-

port any reasonable expectation of privacy because their

contents can be inferred from their outward appearance.”

(Arkansas v. Sanders (1979) ...... Wy ents. sovees (61 L.Ed.2d

235, 245], fn. 13 [quoted in the majority opinion].) The

most demonstrative evidence of the “outward appearance”

of the two packages in question is the photograph men-

tioned in the majority opinion. It depicts only one of the

packages as Officer DePue found them among a cluttered

array of articles in the luggage compartment, but his testi-

monial description supports the inference that the pack-

ages were identical in appearance.

The package visible in the photograph is apparently

wrapped or boxed in an opaque material covered by an

outer wrapping of transparent, collophane-type plastic.

(The photograph is not in color, and the “green” plastic

cannot be seen at all.) Both wrappings are sealed on the

A-11

outside with at least one strip of opaque tape. As thus

wrapped and sealed, the package roughly resembles an

oversized, extra-long cigar box with slightly rounded

corners and edges. It bears no legend or other written

indicia supporting any inference concerning its contents.

The photograph thus presents to me the visual im-

pression of a package that had been tightly wrapped for

shipment by mail, or to protect its contents, or for both

purposes. For all that I see, it could contain books, sta-

tionery, canned goods, or any number of other wholly

innocuous items which might be heavy in weight. In fact,

it bears a remarkable resemblance to an unlabelled carton

of emergency highway flares that I bought from a store

shelf and have carried in the trunk of my own automobile.

For these reasons, I perceive nuthing about the

packages which dispels “any reasonable expectation of

privacy because their contents can be inferred from their

outward appearance.” (Arkansas v. Sanders, supra, ......

Jf eae | Gee [61 L.Ed.2d 235 at p. 245], fn. 13.)

I cannot plausibly distinguish them from the closed con-

tainers to which the California Supreme Court unani-

mously extended Fourth Amendment protection under

virtually identical circumstances, and on the authority of

Arkansas v. Sanders, in one of the decisions cited in the

majority opinion. (People v. Dalton (1979) 24 Cal.3d 850,

854 [describing a “large silver eqlored metal box,” a

“silver-gray metal box,” and a “brown leather box,” all

of which were found in the trunk of an automobile and

opened by police officers]. See also id., at pp. 855-857

A-12

[invalidating the officers’ warrantless search of the

“boxes” ].)*

The only conceivable support for the majority’s con-

trary conclusion is Officer DePue’s testimony to his

“merely hearsay” impression that “[n]ormally contraband

is wrapped this way,” which he had “never seen” himself.

He also testified that he had received limited training

at the California Highway Patrol Academy, “three times,”

on how to identify the “odor of burned marijuana.” The

record does not show that he had any training on how

marijuana or other contraband is “normally wrapped,”

nor that his “hearsay” impression on that subject was

received from any reliable source, nor that he developed

it in the course of his experience in law enforcement.

Given this limited authenticating background, the offi-

cer’s “hearsay” certification would not have supported

the issuance of a valid warrant authorizing a search of

packages with the outward appearance shown here.

Given the same background, I am unwilling to rely on

the “hearsay” as a basis for determining that he could

constitutionally open and search the packages without

any warrant at all. Lacking “exigent circumstances” as

well (see my footnote, ante), I conclude that the sealed

packages were protected by the Fourth Amendment and

*This decision also controls a significant companion point in the

present case. The officers who arrested appellant had handcuffed

him and positioned him away from the station wagon before its lug-

gage compartment was opened. Dalton therefore establishes that

there were no “exigent circumstances” justifying a warrantless search

of the packages found in the compartment. (People v. Dalton,

supra, 24 Cal.3d at p. 857.)

A-13

that their contents should have been suppressed. (Arkan-

sas v. Sanders, supra, ...... 2 a eee — [61

L.Ed.2d 235 at pp. 244-246]; compare id., at p. ......

(61 L.Ed.2d at p. 245], fn. 13; see also People v. Dalton,

supra, 24 Cal.3d 850 at pp. 855-858; People v. Minjares

(1979) 24 Cal.3d 410, 423-424.) I would accordingly re-

verse the judgment of conviction in its entirety.

Ratrican, J.

A-14

Order Due

May 2, 1980

Order Denying Hearing

After Judgment by the Court of Appeal

Ist District, Division 4, Crim. No. 14387

In the Supreme Court of the State of California

IN BANK

we Sr ees oe ——

2S eee

People

v.

Robbins

FABRE, x es.

ES a 8 a ae et

[Filed April 30, 1980]

Appellant’s petition for hearing DENIED.

Bird, C.J., and Tobriner, J., are of the opinion that the

petition should be granted.

/s/ BIRD

Chief Justice