Petition — Ruggles v. California

80-5677

SUPREME COURT OF THE unrTeD states NOV10 1980

OFFICE OF THE CLERK

OCTOBER TERM, 1980 SU COURT, US.

IN THE

NO. 80 -

DAVID WENDELL RUGGLES,

Petitioner,

- against -

PEOPLE OF THE STATE OF CALIFORNIA,

._ Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CALIFORNIA

TEPHEN YAGMAN

Attorney for Petitioner

10880 Wilshire Boulevard

Suite 1900

Los Angeles, California 90024

(213) 475-4988

TABLE OF AUTHORITIES

CASES PAGE NO.

Arkansas v. Sanders, 442 U.S. 753 (1979) ........-. - passim

Carroll Vv... United. States, 267°U.8... 132. 2925) wecwre 8

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ..... 8, 9

Katz v. United States, 389 U.S. 347 (1967) ......... 8

People v. Minjares, 24 Cal. 3d 410, 591 P.2d 514,

153 Cal. Rptr. 224, cert. denied, 434 U-S.

DON AIOTES Sin és. doe cee ee Ree ns be wok

United States v. Chadwick, 433 U.S. 1 (1977) ....... 9

STATUTES

oe i Nw Sy FRAN ae

CONSTITUTIONAL PROVISIONS

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO. 80 =

DAVID WENDELL RUGGLES,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

TO: THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED STATES

AND THE ASSOCIATE JUSTICES OF THE UNITED STATES SUPREME

COURT

Petitioner, DAVID WENDELL RUGGLES, respectfully

requests that a writ of certiorari issue to review the

judgment of the Supreme Court of the State of California, which

denied a Petition for Hearing from the judgment of the Court

of Appeal of the State af California, Second Appellate District,

affirming petitioner's conviction for robbery and possession

of a firearm by an ex felon.

OPINION BELOW

The Supreme Court of the State of California denied

Petitioner's Petition for Hearing by postcard (Annexed hereto

as Appendix A). There is no other written opinion from the

California Supreme Court. The Court of Appeal of the State of

California, Second Appellate District tenein, J.) rendered a

written opinion, which has not been published, annexed hereto

as Appendix B.

JURISDICTION

The judgment of the Supreme Court of the State

of California was entered on August 13, 1980, and is annexed

hereto as Appendix A.

The federal question was raised for the first

time when petitioner, represented by appointed counsel, made

a timely motion to suppress certain evidence seized at the time

of petitioner's arrest. The question was preserved on appeal to

the Court of Appeal and Supreme Court of the State of Cal-

ifornia.

No application for an extension of time to file

this petition has been sought.

The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. Section 1257(3).

QUESTION PRESENTED

Was the warrantless search of petitioner's

briefcase, while it was under the exclusive control of the

police, invalid thereby necessitating the granting of

petitioner's motion to suppress?

STATEMENT OF THE CASE

Petitioner, DAVID WENDELL RUGGLES, was ~«rested

on January 3, 1979, and charged in a two-count information

. with robbery and use of a weapon, and with possession of a

firearm by an ex-felon. The information subsequently was

amended to reflect six prior convictions. Petitioner was

arraigned on the original charges on February 5, 1979 after

private counsel was appointed to represent him, and on the

priors on February 27, 1979, entering pleas of not guilty

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and denying the priors. (Clerk's Transcript on Appeal at

1-7).

Defense counsel filed a motion to suppress, and

a hearing on the motion was held on March 29, 1979.

Following testimony and oral argument, the motion was denied

(Clerk's Transcript at 20), whereupon petitioner was permitted

to change his earlier plea to gailty on the first count of

the amended information (robbery and use of a weapon), and to

admit three prior felony convictions. On motion of the district

attorney, the additional counts of the information were dis-

missed (Clerk's Transcript at 21-22).

Defendant's plea was accepted by the court and

thereupon, he was sentenced to a term in the state prison for

a total of dine years less a credit for 85 days already

spent in custody.

On appeal to the Court of Appeal of the State of

California, petitioner raised several points in support of

reversal ineludiie the issue of unlawful search preserved

here, citing the decision of the California Supreme Court in

People v. Minjares, 24 Cal. 3d 410, cert. denied, 434 U.S.

998 (1979), and the decision of this Court in Arkansas v.

Sanders, 442 U.S. 753 (1979). The appellate court concluded

that there had been no unconstitutional search (Appendix B

at 10-13), citing extensively from the dissenting opinion

in Sanders. A Petition for Hearing filed in the Supreme Court

of the State of California was denied on August 13, 1980.

STATEMENT OF FACTS

In late November, 1978, Sergeant Morosky of the Los

Angeles Police Department Intelligence Division received

information from an informant that petitioner had participated

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in several armed robberies in and around the City of Los

Angeles (Reporter's Transcript on Appeal at 11-12). Sergeant

Morosky promptly communicated this information to Officer

Robert G. McSeveney who was assigned to the Robbery-Homicide

Division of the Los Angeles Police Department (Reporter's

Transcript at 10-11). Officer McSeveney was also informed

that petitioner was a parolee, had been in prison for armed

robbery, was currently living in San Pedro, and drove a black

over red Mercury Montego. Officer McSeveney also was given a

physical description of the defendant. The information

regarding defendant's prior criminal record and his description

was verified by the Records Identification Division.

During the initial conversation between the officers,

Sergeant Morosky revealed that his informant had suggested

that petitioner may have been involved in a recent motel

robbery in the City of Los Angeles, that he had been accom-

panied by another unidentified male, and that petitioner had

used a blue steel automatic handgun and handcuffs during the

robbery (Reporter's Transcript at 13-14).

Further investigation by Officer McSeveney alerted

him to a July 1978 robbery of the Nutel Motel in the City of

Los Angeles. After obtaining a booking photograph and a.

driver's license photograph of the petitioner, the officer

constructed a show-up card with the petitioner's photograph,

and showed the photo display to the victim of the robbery

(Mr. Carragher), and to two female employees of the motel

(Reporter's Transcript at 14-15, 30). Mr. Carragher stated

that defendant's photograph “strongly resembled" the robber

(Reporter's Transcript at 18), but the other witnesses were

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unable to identify the petitioner (Reporter's Transcript at 31).

On the basis of Mr. Carragher's statement, Officer

McSeveney believed that he had probable cause to arrest

petitioner for the robbery, but made no attempt to secure an

arrest warrant or to effect an arrest because he hoped

petitioner might lead police officers to the second suspect

(Reporter's Transcript at 18-19).

On January 2, 1979, Sergeant Morosky told Officer

McSeveney that his informant had reported that petitioner was

preparing to commit a major robbery, probably the following

day, that petitioner would meet an accomplice about 8:00 a.m.

the next day on Reseda Boulevard near the Ventura Freeway,

and that the two suspects were going to rob a jewelry store

possibly in Santa Barbara. The informant was reported to have

indicated that two handguns would be used, a blue steel

automatic and another gun, that petitioner normally carried

one gun in the small of his back and would probably have the

second weapon in a briefcase or a satchel with him (Reporter's

Transcript at 23-24).

Officer McSeveney communicated this information to

the surveillance unit, and also told the surveillance officers

that petitioner had multiple prior felony convictions. He

instructed the officers to stop and arrest petitioner if it

appeared that he was leaving Los Angeles County (Reporter's

Transcript at 24, 27).

On January 3, 1979, at about 7:00 a.m., officers

from the surveillance unit assembled in the vicinity of

Reseda Boulevard and the Ventura Freeway. Present were at

least ten plain-clothes officers in five or six unmarked

police vehicles, and one marked police car, as well as a

police helicopter (Reporter's Transcript at 41-42, 54-55).

Officer Brooks observed petitioner's vehicle as

it exited from the Ventura Freeway at Reseda Boulevard and

proceeded to an apartment complex. Petitioner exited his

vehicle, looked up and down the street, walked to the trunk

of his car, opened the trunk, and removed a brown attache

case (Reporter's Transcript at 42-43). Petitioner entered the

apartment complex with the briefcase, and returned alone

approximately fifteen minutes later. He walked back to his

car, replaced the attache case in the trunk of the car, drove

back to the freeway after stopping briefly at a gas station,

and headed west on the Ventura Freeway in the number one lane

(Reporter's Transcript at 43-44).

All of the surveillance followed petitioner's car,

and when it appeared that petitioner was leaving the county, the

marked police car pulled in behind petitioner's vehicle and

activated its lights whereupon petitioner pulled off the road

to the center divider. One of the unmarked vehicles pulled over

in front of petitioner's car; the other police units pulled

in behind the marked police car. The helicopter circled overhead

(Reporter's Transcript at 45).

Petitioner exited his vehicle and began walking back

to the marked police car. Three or four of the officers

pointed handguns at the petitioner, and at least one other

officer levelled a shotgun in his direction. Petitioner was

ordered to raise his hands and then to lie facedown on the

center divider. Petitioner's hands were handcuffed behind his

back, he was patted down for weapons, and he was placed under

arrest. No weapons had been found on Petitioner's person. He

was pulled to his feet and stood up against the center divider

fence (Reporter's Transcript at 46-62).

One of the officers saw a syringe and needle with

two labeled vials and a large container with tinfoil around

it on the back seat of petitioner's car. On the front seat

was a police scanner. The officer walked up to the petitioner

and took the car keys. The officer opened the car trunk,

removed the attache case, and opened it. Inside the attache

case was another brown leather bag similar to a shaving kit.

One of the guns was found inside this bag when it was opened;

the second handgun was also found in the attache case with

ammunition, a holster, a sap, handcuffs, and other objects

(Reporter's Transcript at 48-53, 65-67).

The prosecution stipulated that no arrest warrant

or séarch warrant had been obtained prior the the arrest and

search of defendant, his vehicle, and its contents (Reporter's

Transcript at 4).

REASONS FOR GRANTING THE WRIT

A. THE WARRANTLESS SEARCH OF THE ATTACHE CASE

FOUND IN THE TRUNK OF PETITIONER'S CAR WAS

A VIOLATION OF PETITIONER'S REASONABLE

EXPECTATION OF PRIVACY AND OF HIS RIGHT TO

BE FREE FROM WARRANTLESS SEARCHES GUARANTEED

BY THE FOURTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION.

B. THERE WERE NO EXIGENT CIRCUMSTANCES TO

JUSTIFY THE WARRANTLESS SEARCH OF THE

ATTACHE CASE BECAUSE IT WAS IN THE

EXCLUSIVE CUSTODY OF THE POLICE OFFICERS.

The Fourth Amendment to the United States Constitution,

made applicable to the states, provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, support by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

This Court has held that "Searches conducted outside the

judicial process, without prior approval by judge or magis-

trate, are per se unreasonable under the Fourth Amendment --

subject only to a few specifically established and well-

delineated exceptions." Katz v. United States, 389 U.S. 347,

357 (1967); Arkansas v. Sanders, 442 U.S. 753, 758 (1979).

Two preconditions must be established to justify a warrantless

search, probable cause and exigent circumstances. Carroll v.

United States, 267 U.S. 132 (1925); Coolidge v. New Hampshire,

403 U.S. 443 (1971).

The issue in the instant case is simple in light of

the decisions of this Court. Petitioner concedes that at the

time of his arrest, there was probable cause to believe that

his vehicle, and specifically the attache case in the trunk

of his car, contained evidence of a crime. Petitioner contends,

however, that the search of the attache case found in the trunk

was unreasonable because it was conducted without a warrant

and because there were no exigent circumstances to justify a

warrantless search. In support of this position it is necessary

to discuss only one case because that case is totally indis-

tinguishable from the case now confronting the Court.

The Court will recall that in Arkansas v. Sanders, 442

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U.S. 753 (1979), police officers had received a tip from an

informant that the defendant therein would arrive at the

Municipal Airport that afternoon at 4:35 p.m., carrying a

green suitcase from the baggage claim area containing

marijuana. The defendant was known both to the informant and

to the police officer to whom the information had been

communicated. Surveillance was set up at the airport, and when

defendant arrived he was observed as he claimed a green

suitcase from the baggage claim area and transferred the suitcase

to the trunk of an awaiting taxicab. As the taxi drove off

the officers gave pursuit and stopped the vehicle. The

driver opened the trunk at the request of the officers; the

officers thereupon removed and opened the unlocked suitcase

and found ten plastic bags of marijuana. At trial the evidence

was admitted over defendant's objection. This Court held

that the evidence should have been suppressed because, although

probable cause existed to believe the suitcase contained

contraband, there was no showing of any exigent circumstance

to justify the warrantless intrusion. The Sanders majority

noted:

The police acted properly -- indeed commendably

-- in apprehending respondent and his luggage.

They had ample probable cause to believe that

respondent's green suitcase contained marihuana.

A previously reliable informant had provided a

detailed account of respondent's expected arrival

at the Little Rock Airport, which account

proved to be accurate in every detail, including

the color of the suitcase in which respondent

would be carrying the marihuana. Having probable

cause to believe that contraband was being driven

away in the taxi, the police were justified in

stopping the vehicle, searching it on the spot,

and seizing the suitcase they suspected contained

contraband.

442 U.S. at 761.

However, the Court continued, “the mere reasonableness

of a search, assessed in the light of the surrounding cir-

cumstances, is not a substitute for the judicial warrant

required under the Fourth Amendment." Id. at 758. The Court

reaffirmed that "The warrant requirement ... is not an

inconvenience to be somehow 'weighed' against the claims of

police efficiency.” Id. quoting Coolidge v. New Hampshire,

403 U.S. at 481.

In United States v. Chadwick, 433 U.S. 1 (1977), the

Court had held that there is a legitimate expectation of

privacy in the contents of a suitcase accompanying a person

om Sete

by

that is not diminished simply because the person is arrested

in public. In Sanders, the Court concluded that the same

expectation exists when the suitcase is removed from the

trunk of-a car.

A closed suitcase in the trunk of an automobile

may be as mobile as the vehicle in which it rides.

But as we noted in Chadwick, the exigency of

mobility must be assessed at the point

immediately before the search -- after the police

have seized the object to be searched and have

it securely within their control.... Once

police have seized a suitcase, as they did here,

the extent of its mobility is in no way affected

by the place from which it was taken. Accordingly,

as a general rule there is no greater need for :

warrantless searches of luggage taken from

automobiles than of luggage taken from other

places.

Similarly, a suitcase taken from an auto-

mobile stopped on the highway is not necessarily

attended by any lesser expectation of privacy

than is associated with luggage taken from other

locations. One is not less inclined to place

private, personal possessions in a suitcase

merely because the suitcase is to be

carried in an automobile rather than trans-

ported by other means or temporarily checked or

stored. Indeed, the very purpose of a suitcase

is to serve as a repository for personal

items when one wishes to transport them.

Accordingly, the reasons for not requiring a

warrant for the search of an automobile do

not apply to searches of personal luggage

taken by police from automobiles. We therefore

find no justification for the extension of

Carroll and its progeny to the warrantless

search of one's personal luggage merely because

it was located in an automobile lawfully stopped

by the police.

442 U.S. at 763-65 (emphasis added; footnotes omitted).

In the instant case, police officers had been informed

that petitioner would be at a particular place at a particular

time, and that he would be carrying an attache case containing

a gun. Surveillance was set up and when petitioner arrived he

was observed removing an attache case from the trunk of his

car and then replacing the case in the trunk. Shortly thereafter

petitioner was stopped on the highway and placed under arrest.

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Petitioner was handcuffed in the presence of at least ten

armed police officers in six or seven vehicles with a

police helicopter circling overhead. Under these circumstances

one of the officers opened the trunk to petitioner's car,

removed the attache case, and searched it. As in Sanders,

there can be no question that the attache case was in the

exclusive custody and control of the police officers when it

was searched. Accordingly, no exigent circumstances were present,

and a warrant should have been obtained before a search was

undertaken.

Nevertheless, the state court held that the search of

the attache case was justified because “the luggage, like the

car itself, constituted a fleeting target," and "since the

police already had probable cause to search the attache case,

a warrant would have been routinely forthcoming." Exhibit B

at 14. The state court continued, suggesting that there is

"no logical distinction between searching a trunk and searching

luggage found in the trunk, since there is no reason for

greater expectation of privacy." Id. t 15, citing Sanders,

442 U.S. at 769 (Blackmun, J., dissenting).

It is clear that the opinion of the state court is nothing

less that a blantant refusal to abide by the law announced by

this Court. First, a majority of this Court in Sanders rejected

the state court's assertion that luggage, like the car from

which it is removed, is a fleeting target. Rather, “the

exigency of mobility must be assessed at the point immediately

before the search -- after the police have seized the object

to be searched and have it securely within their control....

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

of its mobility is in no way affected by the place from which it

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was taken." 442 U.S. at 763 (emphasis added, footnotes omitted).

Next, the notion that a warrant would be routinely

forthcoming does not extinguish the protections accorded by the

Fourth Amendment. "The mere reasonawleness of a search ...

is not a substitute for the judicial warrant required under the

Fourth Amendment." Id. at 758. Furthermore as the Sanders 4

majority noted:

It is beyond yuestion that the police easily

could have obtained a warrant to search

respondent's bag if they had taken the suitcase

to a magistrate. They had probable cause to believe

not only that respondent was carrying marihuana,

but also that the contraband was contained in the

suitcase that they seized. The State argues that

under the circumstances of this case inconvenience

to all concerned would have been the only result

of deferring search of the suitcase until a warrant

was obtained. Those in respondent's position who

find such inconvenience unacceptable may avoid

it simply by consenting to the search.

Id. at 764 n.12.

Finally, concerning the state court's contention that

there is "no logical distinction between searching a trunk and

searchi-~ luggage found in the trunk," the Sanders majority

concludeu that

insofar as the police are entitled to search

such luggage without a warrant, their actions

must be justified under some exception to the

warrant requirement other than that applicable

to automobiles stopped on the highway. Where --

as in the present case -- the police, without |

endangering themselves or risking loss of the

evidence, lawfully have detained one suspected

of criminal activity and secured his suitcase,

they should delay the search thereof until after

judicial approval has been obtained. In this way,

constitutional rights of suspects to prior judicial

review of searches will be fully protected.

Id. at 766 (emphasis added). Furthermore, "a suitcase taken

from an automobile stopped on a highway is not necessarily

attended by any lesser expectation of privacy than is assoc-

iated with luggage taken from other locations." Id. at 764.

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Thus, it is manifest that the opinion of the state

court is completely without any legal foundation and,

indeed, is directly contrary to the decisior of this Court

in Arkansas v. Sanders.

CONCLUSION

For the above stated reasons, this Court shoud grant

petitioner's writ of certiorari and reverse the judgment of

the state court.

Respectfully submitted,

STEPHEN 86 ( pe

Attorney for Petitioner

ful lJ. Pree

PAUL W. GRACE

Attorney for Petitioner

Assisting on the Brief

10880 Wilshire Boulevard

Suite 1900

Los Angeles, California 90024

(213) 475-4988

Dated: November 6, 1980

Los Angeles, California

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CLERK’ S OFFICE, SUPREME COURT

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SAN FRAN ornnta 94102

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I have this day filed Order.

_—-HEARING-DENIED —

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In re:___2-Crim___No____35011—

___ People —

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P Soe Ruggles : ,

Respectfully,

} Clerk

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APPENDIX A

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NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE ,

THE PEOPLE, ) 2 Crim. No. 35011

)

Plaintiff and ) (Super. Ct. No. A347889)

Respondent, )

) COURT OP APPEAL-SECOND DIST.

: Fa eas

v )

)

. ) JUN 161980

DAVID WENDELL RUGGLES, CLAY ROBBINS, JR. Clerk

Defendant and ) —

Appellant. ) Deputy Clerk

)

APPEAL from a judgment of the Superior Court of Los

Angeles County. Ronald M. George, Judge. Affirmed.

Paul W. Grace, under appointment by the Court of

Appeal, for Defendant and Appellant.

George Deukmejian, Attorney General, Robert H.

Philibosian, Chief Assistant Attorney General, S. Clark Moore,

Assistant Attorney General, John R. Gorey and Penina S.

Van Gelder, Deputy Attorneys General, for Plaintiff and

Respondent.

APPENDIX B

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David Wendell Ruggles appeals his conviction,

pursuant to guilty plea, on one count of robbery with the

use of a firearm in the commission of the offense.

FACTS

Defendant Ruggles was charged in a two count

information with (1) robbery (Pen. Code, § 211) alleging use

of a firearm in the commission of the offense (Pen, Code,

§§ 12022.5, 1203.06) and (2) possession of a firearm by an

ex-felon (Pen. Code, § 12021). The information was subsequently

amended to reflect six prior convictions and the case was

consolidated with a second case in which a single count was

charged against defendant Ruggles. Defendant pleaded not

guilty, denied the priors and filed a 1538.5 motion to

suppress which the trial court denied. Defendant thereupon

changed his plea to guilty on the first count of the amended

information (robbery and use of a weapon) and he admitted three

of the prior felony convictions charged. On motion of the

district attorney the second count (possession of a firearm

by an ex-felon) and the single count in the second case were

dismissed. Probation was denied and defendant was sentenced

to state prison for nine years (four years for robbery, a

consecutive two year sentence for the admitted use of a

firearm, and three consecutive one year terms for the three

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admitted prior convictions [Pen. Code, § 667.5, subd. (b)]).

The People's motion to dismiss the remaining prior convictions

was granted.

Defendant Ruggles has appealed his conviction

complaining that the trial court erred in denying his 1538.5

motion to suppress certain evidence obtained from a search

of the vehicle he was driving at the time of his arrest. The

record includes certain portions of the preliminary hearing

transcript which trial court considered pursuant to stipulation.

In July 1978 there was a robbery at the Nutel Motel

and Ruggles, who was identified by Mr. John Carragher, the

manager, was subsequently apprehended by police officers on

suspicion of this crime. Defendant's arrest came about as the

result of an investigation by Officer Robert McSeveney of the

Los Angeles Police Department.

At the 1538.5 hearing Officer McSeveney testified

that in November of 1978 he received information from

Sergeant Morosky that Ruggles had participated in various

armed robberies including the robbery with an accomplice of

a motel in Los Angeles; that Ruggles was on parole for armed

robbery; that he lived in San Pedro and drove a black over

red Mercury Montego; and that he was a Caucasian male approxi-

mately 39 years old, 6 feet tall and weighed around 200 pounds.

< e oy eeeme -

Officer McSevenéy verified this information, which was given

to Morosky by an informant, by checking various sources

_ including the police department's records which disclosed that

in several robberies Ruggles had posed as a law enforcement

officer showing a badge. He also learned that a few days

Btore the robbery of the Nutel Motel, Rpggles was seen in

the vicinity posing as a law enforcement officer, and the

perpetrator of that robbery had shown a badge, represented

that he was with some state department, and had used handcuffs

on the victim. |

McSeveney, who concluded that Ruggles had committed

the robbery of the Nutel Motel, obtained defendant's driver's

license photograph and constructed a showup card including

that photograph among six other pictures. Mr. Carragher, who

had clearly seen defendant at least twice before the robbery

posing as a narcotics agent, identified the person in the

driver's license photograph as the robber. Although the officer

believed that he then had probable cause to arrest defendant

Ruggles, he refrained because he and other officers were still

attempting to identify the second suspect involved in the

robbery. Police maintained a helicopter surveillance of

defendant Ruggles at his San Pedro residence in an attempt to

identify the second suspect.

Finally, on January 2, 1979, Sergeant Morosky told

Ser - eo

Officer McSeveney that defendant Ruggles and a partner would

commit a major robbery probably the next day. The defendant

was to meet his partner at 8 a.m. on Reseda Boulevard in the

San Fernando Valley and they would then proceed to rob a

jewelry store possibly in Santa Barbara. The informant said

two handguns would be used, one of them a blue steel automatic,

and that Ruggles would probably carry one weapon in the small

of his back and the second weapon in a briefcase. Officer

McSeveney conveyed this information to the surveillance team

and also told them that the defendant had been involved in a

shoot out in Orange County, that he had multiple prior felony

convictions and was to be considered armed and dangerous,

and that the team should attempt to stop and arrest Ruggles

if it appeared he was leaving Los Angeles County.

Officer Brooks of the surveillance team testified

that he received the foregoing information together with a

description of defendant Ruggles, the car he was driving, and

its license number. As Officer Brooks pulled onto Reseda

Boulevard on the morning of January 3, 1979, he saw defendant

Ruggles' car and followed him. Defendant parked on the north

side of Erwin, got out of the car and surveyed the street.

then opened the trunk and removed a brown attache case which

he took with him into an apartment building complex, About

15 minutes later, defendant Ruggles returned to the car,

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surveyed the street again, then opened the trunk and re- | z

placed the brown briefcase therein. He closed the trunk, got

into the car, drove down Reseda Boulevard toward the freeway,

and finally got onto the freeway and turned westbound. The

car driven by Officer Brooks and other police surveillance

units followed Ruggles until it appeared that he was leaving

the county and then the officers decided to stop and arrest

him on suspicion of robbery.

A black and white police car with red lights turned

on pulled up behind defendant's car when Ruggles stopped his

car along the center divider. The police car pulled up

directly behind him while Officer Brooks pulled his police car

in frortof Ruggles' car. Defendant Ruggles immediately got

out of his car as other officers carrying guns approached.

Defendant complied with their request to raise his hands. He

was then ordered to lay down prone, was handcuffed and patted

down, and was told that he was under arrest.

As Officer Brooks approached defendant Ruggles, he

peered into the vehicle through the open window on the driver's

side and saw on the front seat a small hand-held police call

scanner. In plain view on the back seat was a syringe and needle

and two little vials of the type the officer recognized as those

customarily containing narcotics. In the opinion of the officer

the syringe and needle were a "hype" kit and the vial and

bottles contained some type of controlled substance. Defendant

Ruggles, however, did not appear to be under the infiuence of

drugs or narcotics. :

The officer took the car keys from defendant Ruggles’

hand and opened the trunk. In the trunk he found a large

police call scanner. standing next to the brown briefcase. The

officer took the unlocked briefcase out of the trunk, opened

it and found inside a holster, a sap, handcuffs, some gloves,

a flashlight and a bandana together with an unzipped bag

similar to a shaving kit. He found another gun in the

unzipped bag. The officer also opened a couple, of

other bags which he found in the trunk and there he found a three

foot sledge hammer, miscellaneous clothes and a brown cap. In

the trunk there was a raincoat, and some Halloween-type masks

with tape over the eye holes, and a scanner company manual

entitled, "Police Frequencies”.

| Defendant testified on his own behalf that when he

noticed a police car behind him on the freeway that morning he

promptly stopped and got out of his car. An officer ordered

him to lie down on the ground or he would "blow his fucking head

off." When the defendant complied, officers rushed in and

grabbed his arms and one of the officers holding a shotgun put

his foot on defendant's neck and held him down. While the

defendant was still lying down, an officer asked if he could

look in his car but the defendant refused. The officers then

took the keys from the defendant's hand and opened the trunk.

ISSUES

Defendant Ruggles contends on appeal (1) that

officers did not have probable cause to arrest him; (2) that

Officer Brooks did not have sufficient probable cause to

conduct a warrantless search of the trunk of his car; and (3)

that the search without a warrant of the briefcase was illegal.

DISCUSSION

I

Contrary to defendant's contention, the evidence

introduced at the 1538.5 hearing amply supported the trial court's

determination that probable cause existed for his arrest with-

out a warrant. In a 1538.5 hearing, the trial court sits as the

trier of fact. It is the role of the reviewing court only to

measure the facts, as found by the trier, against the consti-

tutional standard of reasonableness. (People v. Lawler (1973)

9 Cal.3d 156, 160.)

Probable cause to arrest without a warrant is based

1/ Although defendant also argues that the trial court correctly

concluded that he did not voluntarily consent to the search of

the vehicle, and that the plain view observation of narcotics

paraphernalia in the car did not jvstify a trunk search, the

People concede these issues and they are therefore not matters

for our review.

upon the facts known to the officers at the time of the

arrest. (People v. Lara (1967) 67 Cal.2d 365, 373-374.) The

standard is whether a man of ordinary care and prudence

would be led to believe and conscientiously entertain an

honest and strong suspicion that the accused is guilty.

(People v. Cockrell (1965) 63 Cal.2d 659, 6€5.) The information

Officer McSeveney obtained in the present case, derived from

his investigation and Carragher's photographic identifica-

tion, established probable cause to arrest Ruggles, After he

received a tip that Ruggles might have robbed a Los Angeles

motel, Officer McSeveney investigated. As the record discloses

he learned that Ruggles during several robberies posed as a

law enforcement officer, that Ruggles was seen near the Nutel

Motel posing as a law officer, and the robber had flashed a

badge.

McSeveney's theory that Ruggles may have been connected

with that robbery was substantiated by information he obtained

from the employees of the Nutel Motel. Carragher, the motel

manager, was present during the commission of the crime and

positively identified Ruggles, whom he had met twice before, as

one of the two perpetrators of the robbery. He identified

defendant less than two weeks thereafter from a photo spread of

six men prepared by Officer McSeveney.

As a result of information obtained by McSeveney's

investigation and Carragher's identification of defendant,

the police had reasonable cause to believe that Ruggles had

participated in the Nutel robbery. Although defendant argues

that there was a delay of over a month from the time the

officers had probable cause to the time of defendant's arrest,

he has presented no facts from which it can be concluded that

the probable cause to seize him had gone stale. In view of

the fact that the arrest was made in public, the arrest

without a warrant is not offensive to defendant's consti-

tutional rights. (United States v. Watson (1976) 423 U.S.

411, 423-424.)

Il

Defendant next contends that the search of the trunk

of his car at the time of his arrest was invalid.

Searches conducted outside the judicial process are

per se unreasonable, subject to a few specific exceptions. (Katz

v. United States (1967) 389 U.S. 347, 357.) It is the burden of

the People to show that the search falls within one of those

exceptions. (People v. Minjares (1979) 24 Cal.3d 410, 416,)

The warrantless search of the trunk of defendant's

car in the case at the bench was justified under the

“automobile exception" to the warrant requirement. This

exception allows the police to conduct 4 warrantless search of

an automobile where there is probable cause, and exigent

circumstances make it impracticable for the police to obtain a

ar

ll

warrant. (Chambers v. Moroney (1970) 399 U.S. 42, 48-51.)

The automobile exception is applied where the

seizing officer has probable cause that the contents of the

automobile offend against the law. (Carroll v. United States

(1924) 267 U.S, 132, 155-156, 158-159.) This requirement is

satisfied in the case at bench because the evidence disclosed .

that immediately prior to defendant's arrest the officers

received a second tip from the original informant saying that

defendant was planning another crime and had two handguns in

his possession. Police are entitled to rely on such information

when it is shown that both the informant and his information

have been reliable. (Aguilar v. Texas (1964) 378 U.S. 108, 114-115.)

In the present case police were entitled to conclude that the

informant was reliable because McSeveney had by independent

investigation established that his first tip to the police was

true. Furthermore, the informant's information was shown to be

reliable because it was corroborated by other facts, e.g.,

Ruggles’ plan to rendezvous with someone else at an identified

location, his plan to commit another robbery, the fact that he

would have two guns with him, one of which he would have in a

brown attache case.

Information given by an informant is sufficient as a

basis for probable cause if it is corroborated by other facts,

sources, or circumstances. (People v. Lara, supra, 67 Cal.2d

4

12

at 374-375.) The presence of the defendant at the rendezvous

location at the correct time, the fact that he was seen taking

the brown attache case out of the trunk and later returning ©

it to the trunk, that it appeared he planned to commit a

crime in Santa Barbara because he was apprehended driving out

of Los Angeles County westbound corroborated the tip in its

essential facts. Independent corrqboration occurred through

the officers' observation of Ruggles‘ suspicious behavior,

continuous surveying of the street while he was removing and

carrying the attache case and again when he returned it to

the trunk of his car. Such corroboration provided the officers

with reasonable grounds to believe that the informant was

telling the truth, and probable cause for the police to

believe that the attache case in the trunk contained a gun.

Defendant argues, however, that there were no exigent

circumstances in this case (Chambers v. Moroney, supra, 399 U.S.

at p. 51) because the car was at the time of the search within

the exclusive control of the police. Nonetheless, due to the

inherent mobility of the automobile various automobile searches

have been upheld whe e no immediate danger was presented, (South

Dakota v. Opperman (1976) 428 U.S. 364, 367.) If the police

have’ to take the time to get a warrant to search every car on

the highway, they run the risk that the vehicle may be moved

13

out of the locality or the evidence destroyed. (Carroll v.

United States, supra, 267 U.S. at 153.) The fact that the

occupants of the automobile have already been arrested does

not negate the exigent circumstance. (Chambers v. Moroney,

supra, p. 44,)

Despite Ruggles’ arrest his car was still a fleeting

target, it was on an open highway, and there was a possible

confederate waiting to remove the evidence. (Coolidge v.

New Hampshire (1971) 403 U.S. 443.) There had been.no earlier

opportunity to gain a warrant because the car had been under

constant police surveillance; and now that it was seized, there

was no constitutional difference between searching it or holding

it until a warrant could be obtained. (Chambers v. Moroney,

supra, 399 U.S. at 52.) Consequently, the search of the trunk

of the car without a warrant was valid under the automobile

‘ t

exception.

Iil

Defendant's final contention is that the officers

illegally searched the contents of the briefcase. In the

present case in view of the existence of exigent circumstances

under the automobile exception and the doctrine of inevitable

‘

so ee we ree — " —s

: ee

14

discovery (People v. Superior Court (Tunch) (1978) 80 Cal.

———_——_—_——

App. 3d 665) the search of Ruggles’ luggage without a warrant

was valid. The luggage, like the car itself, constituted a

fleeting target. It was mobile; it was capable of being

easily lost or stolen; and it was in the center of a freeway

where "posting a guard" was impractical. In addition,

officers had reason to believe the attache case contained a

dangerous weapon. The facts of this case are distinguishable | |

from those of the recent Supreme Court cases where the search

of luggage was disapproved when it was merely to obtain

evidence of the crime committed. (United States v. Chadwick

> Pyne”

(1977) 433 U.S. 1; People v. Dalton (1979) 24 Cal.3d 850;

People v. Minjares, supra, 24 Cal.3d 410.)

In fact, federal courts have upheld the search of

luggage under the automobile exception where, for instance,

oe te ee ee

there was probable cause for the. search and the suitcase was

closely related to the reason for the arrest. (United States

vy. Tramunti (2d Circ. 1975) 513 F.2d 1087 at 1104; see 2lso

United States v. Finnegan (9th Cire. 1977) 568 F.2d 637.)

Finally, under the circumstances of the case at

bench obtaining a warrant would be a mere formality. Since

the police already had probable cause to search the attache

case, a warrant would have been routinely forthcoming. (See

a

Arkansas v. Sanders (1979) 442 U.S. 753, 770 (dissenting

opinion).) Even if a warrant is required, the end result is

the same -- the inevitable discovery of the instrumentalities

of the crime. Therefore, the doctrine of inevitable discovery

permits the evidence to be admitted as: an exception since the

warrant requirement would not produce the desired effect.

(People v. Superior Court (Tunch), supra, 80 Cal.App.3d 665.)

In fact, to enforce the warrant requirement would be likely

to have an adverse practical effect since it might unjustly

grant criminals immunity from prosecution. (See Novikoff, The

Inevitable Discovery Exception to the Constitutional Exclusionary

Rules (1974) 74 Colum.L.Rev. 88.)

In any event, there is no logical distinction

between searching a trunk and searching luggage found in the

trunk, since there is no reason for greater expectation of

privacy. (Arkansas v. Sanders, supra, 442 U.S. 753, 769

(dissenting opinion),) In the present case, there was no showing

of expectation of privacy since although the ‘trunk was locked,

the briefcase was in fact unlocked and the shaving kit type bag

inside was unzipped. Moreover, once an individual is in

police custody and his personal property has been seized, the

additional intrusion of a search of luggage is at best only

incidental. (Arkansas v. Sanders, supra, p. 770.)

"Where it is shown that a suspect would have been

Se CEE A I OR

ee ———— ———_ ee - ee Se le «CD

jailed and thus subject to a booking search, the fact that

a thorough search of the booking type occurs pridr to the :

actual booking process does not render the search illegal, - -

since no additional or greater intrusion on the privacy of

the suspect is involved. (People v. Barajas, 81 Cal.App.3d

999, 1008-1009; People v. Flores, 100 Cal.App.3d 221, 229-

230; see People v. Superior Court (Simon), 7 Cal.3d 186,

208-209; People y. Longwill, 14 Cal.3d 943, 948; People v.

Brown, 88 Cap.App.3d 283, 293.)" (People v. Bullwinkle

(Apr. 24, 1980, 2 Crim. Nos. 33763 and 34931) ___ Cal.App.3d

-)

DISPOSITION

In view of the fact that the 1538.5 motion to

suppress was properly denied the judgment of conviction is

affirmed.

HANSON, J.

We concur:

LILLIE, Acting P.J.

RADIN, J.*

* Assigned by the Chairperson of the Judicial Council.

al

80 - 5677 RECEIVED |

a NOV 1 0 1980

IN THE

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES SUPREME COURT, U.S,

OCTOBER TERM, 1980

NO. 80 -

DAVID WENDELL RUGGLES,

Petitioner,

- against -

STATE OF CALIFORNIA,

Respondent.

APPLICATION FOR LEAVE TO PROCEED IN

FORMA PAUPERIS

4

°o

THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED

STATES AND THE ASSOCIATE JUSTICES OF THE UNITED

STATES SUPREME COURT.

Petitioner DAVID WENDELL RUGGLES respectfully seeks

leave to proceed here in forma pauperis without payment of

fees and costs. Counsel's affidavit in support of this

application is annexed.

Route YAGMAN

Attorney for Petitioner

10880 Wilshire Boulevard

Suite 1900

Los Angeles, California 90024

(213) 475-4988

Los Angeles, California

November 6, 1980

af 5 tat eae ep qeeweer

~ rsh Dieta Ye } Zo yy ee ce = 40 - in pee Lg it) pn de hs at

a en * yet 4 she TT PEN cue in

Eee Lie ate athe ak Ragen -tbdey! Smee ae: Soaks /nemans oote te

1 CORRE Ra etd GF ah Shes Sod Rr eS e168 Ye bot ab Sp ase axe

Ae Yt ae x a ke ga fyi mihtex stab > We het Ca Ee iD

» ” * : »

;

ee io ae rg ST WE gs caning am

vt pel i ee ee ~~ ee he ee ee ee yO eee), OEE a

RECEIVED

IN THE NOV 10 1980

) SUPREME COURT OF THE UNITED STATES rattan ena Rr, Un

OCTOBER TERM, 1980

NO. 80 =

DAVID WENDELL RUGGLES,

Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

; \ AFFIDAVIT OF STEPHEN YAGMAN

STATE OF CALIFORNIA )

COUNTY OF LOS ANGELES <

STEPHEN YAGNAN, being duly sworn, deposes and says:

I am an attorney at law, admitted to practice before

this Honorable Court. I make this affidavit in support of the

annexed application for leave to proceed here in forma

pauperis without payment of fees and costs.

Petitioner was represented at trial in the Superior

Court of the State of California for the County of Los

Angeles by an attorney appointed by the court because he did

not have sufficient funds to retain private counsel. Mr.

Paul W. Grace of this office was appointed by the Court of

Appeal of the State of California, Second Appellate District,

to represent petitioner on appeal because he did not have

sufficient funds to retain private counsel. Mr. Grace prepared

the brief for petitioner on that appeal as well as a Petition

for Hearing in the California Supreme Court which was denied.

ES ct nay eesti rete

I have no further information which would suggest that

petitioner's financial status has changed. I have agreed to

represent petitioner before this Honorable Court without

payment of attorney's fees by petitioner.

WHEREFORE, it is respectfully prayed that petitioner's

application for leave to proceed in forma pauperis without

payment of fees and costs be granted.

Dated: November 73 , 1980

7rEPHEN some of CO

Subscribed and sworn to before me

this 03 day of Jlovember, 1980.

i La MEYER BERKOWITZ

NOTARY PUBLIC - CALIFORNIA

' aT .

.

oN ie hehe} : “ey 34 ‘ oa

° 7 a, ~ ‘

Ae ae ee oe

~ * R

4 - ‘

4.0 Ae

— 2. . See ee

a eo |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO. 80 - S677

DAVID WENDELL RUGGLES,

Petitioner,

vs. :

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

AFFIDAVIT OF DAVID WENDELL RUGGLES

STATE OF CALIFORNIA )

COUNTY OF SOLANO is

DAVID WENDELL RUGGLES, being duly sworn, deposes

and says:

I am the petitioner in this case. I make this affi-

davit in support of the annexed application for leave to

proceed here in forma pauperis without payment of fees and

costs.

I was represented at trial in the Superior Court of

the State of California for the County of Los Angeles by

counsel appointed by the Court because I did not have

sufficient funds to retain private counsel.

I was represented on appeal in the Court of Appeal of 4

the State of California, Second Appellate District, and in

the Supreme Court of the State of California, by counsel

appointed by the Court of Appeal because I did not have >

sufficient funds to retain private counsel.

I am presently incarcerated in the state prison at

Vacaville, California, and am unable to obtain funds to

pay the fees and costs required by this Court, or to

retain private counsel.

WHEREFORE, it is respectfully prayed that this

application for leave to proceed here in forma pauperis

be granted.

DATED:

lov. 5 14 fy

OFFICIAL SEAL

D. G. CAPRIO

TARY Soe Le Smee

incipal Office in SOLANO Cou

My Commission Expires June 21, 9 a AVID WEN UGGLE

Subscribed and sworn to before me

this 5A day of Mol. » 1980.

NOTARY LIC