Record and brief — California v. Ruggles

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uonied

Supreme Court, U.S.

FILED

MAR 24 1982

81-1778

IN THE SUPREME COURT OF

UNITED STATES LEXANDER L. STEVAS

CLERK

October Term, 1981

No.

STATE OF CALIFORNIA,

Petitioner,

Ve

DAVID WENDELL RUGGLES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief Assistant

Attorney General--Criminal Division

S. CLARK MOORE,

Assistant Attorney General

EDWARD T. FOGEL, JR.,

Deputy Attorney General

SHUNJI ASARI,

ss Deputy Attorney General

JOHN R. GOREY,

Deputy Attorney General

and Attorney of Record

3580 Wilshire Boulevard

Los Angeles, California 90010

Telephone: (213) 736-2156

Attorneys for Petitioner

QUESTIONS PRESENTED

Whether, notwithstanding this Court's

plurality opinion in Robbins v. California

(1981) 453 U.S. __, 101 S.Ct. 2841,

69 L.Ed.2d 744), a suspect's arrest in his

car based on (1) probable cause to believe

he had committed a robbery in which he

used a firearm and, (2) information from a

reliable informant that the suspect had a

firearm in a briefcase for use in an

imminent robbery, justified the warrant-

less seizure of firearms from an unlocked

briefcase found in the suspect's car

trunk.

II

Whether exigent circumstances existed

under Arkansas v. Sanders (1979) 442 U.S.

753, to justify the warrantless search of

an unlocked briefcase found in a suspect's

car trunk where the suspect was arrested

in his car at the center divider of a

freeway and the arresting officers had

1.

probable cause to believe that a firearm

to be used in a robbery was secreted in

the briefcase.

II!

Whether the warrantless search of an

unlocked briefcase found in the trunk of a

car following a suspect's arrest, and

contemporaneous with that arrest, is

justified as a “accelerated booking

search" under this Court's holding in

Bullwinkle v. California {1980) 449 U.S.

988.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

A.

B.

Statement of the Proceedings

Statement of Relevant Facts

from the Motion to Supress

Evidence

REASONS WHY CERTIORARI

SHOULD BE GRANTED

I

NOTWITHSTANDING THIS COURT'S

PLURALITY OPINION IN ROBBINS

V. CALIFORNIA (1981)

453 U.S. » PROBABLE CAUSE

TO BELIEVE A FIREARM WOULD BE

FOUND IN A BRIEFCASE IN THE

CAR TRUNK OF RESPONDENT'S

AUTOMOBILE DURING A SEARCH

INCIDENT TO RESPONDENT'S

LAWFUL ARREST FOR ARMED ROBBERY

JUSTIFIED A WARRANTLESS SEARCH

OF THE BRIEFCASE UNDER THE

FOURTH AMENDMENT

3.

12

17

17

TABLE OF CONTENTS

Continued

Page

REASONS WHY CERTIORARI

SHOULD BE GRANTED

It

Itt

PROBABLE CAUSE TO BELIEVE THAT

A DANGEROUS WEAPON IS INSIDE A

CONTAINER IN A VEHICLE AT THE

CENTER DIVIDER OF A FREEWAY

CONSTITUTED EXIGENT CIRCUM-

STANCES UNDER ARKANSAS V.

SANDERS (1979) 442 U.6. 753,

AND JUSTIFIED THE WARRANTLESS :

SEARCH OF THE CONTAINER 24

THE WARRANTLESS SEARCH OF AN

UNLOCKED BRIEFCASE FOUND IN

THE TRUNK OF A CAR FOLLOWING

A SUSPECT'S ARREST AND

CONTEMPORANEOUS WITH THAT

ARREST IS JUSTIFIED AS AN

ACCELERATED BOOKING SEARCH

UNDER THIS COURT'S HOLDING

IN BULLWINKBE V. CALIFORNIA 27

CONCLUSION 30

TABLE OF AUTHORITIES

Cases

Page

Federal:

Arkansas v. Sanders (1979)

442 U.S. 753 1,20,21,

24,25,27

Eaton v. Price (1960)

364 U.S. 263 19

Hicks v. Miranda (1975)

442 U.S. 332 28

Robbins v. California (1981)

653:3.8. 1,10,15,17,18,

19,21,22-23,24,25,28

United States v. Chadwick (1977)

433 U.S. 1 20,28

United States v. Healy (1974)

376 U.S. 75 8

United States v. Ross, 80-2209 23

State:

Bullwinkle v. California (1980).

449 U.S. 988,

101 S.Ct. 522 2,27,28,29

People v. Bullwinkle (1980)

105 Cal.App.3d 82,

164 Cal.Rptr. 163 28

TAPLE OF AUTHORITIES

Continued

Cases

Page

State:

People v. Minjares (1979)

24 Cal.3d 410,

153 Cal.Rptr. 224,

591 P.2d 514 15-16

People v. Ruggles (1981)

125 Cal.App.3d 473,

178 Cal.2ptr. 231 15

Constitutions

United States Constitution,

Fourth Amendment 8,17,21

United States Constitution,

Fourteenth Amendment 8

Statutes

Federal: 4

28 U.S.C.:

Section 1257 8

State:

Cal. Penal Code:

Section 211 10

Section 1538.5 8,9

Section 12022.5 10

OPINIONS BELOW

The initial California Court of Appeal

opinion filed June 16, 1980, affirming the

judgment of conviction, appears at pages

1 through 21 of the Appendix. The order

of the California Supreme Court denying

the Petition for Hearing appears at

page 22 of the Appendix. The second

opinion of the California Court of Appeal,

filed November 10, 1981, and reversing

the judgment of conviction, appears at

pages 23 through 94 of the Appendix. The

order of the California Court of Appeal

denying rehearing appears at page 95 of

the Appendix. The order of the California

Supreme Court denying hearing appears at

page 96 of the Appendix.

The order of the California Court of

Appeal denying petitioner's Application

for Stay of Issuance of the Remittitur and

for an Order Deferring Execution and

Enforcement of the Judgment appears at

page 97 of the Appendix.

JURISDICTION

The judgment of the California Court

of Appeal was filed on November 10, 1981.

(Appen., pp. 23-94.) A timely Petition

for Hearing was denied by the California

Supreme Court on January 27, 1982.

(Appen. p. 96.) This Petition for Writ

of Certiorari is filed within 60 days of

that date and is therefore timely filed.

(United States v. Healy (1974) 376 U.S.

75, 77-80, and cases cited.) This Court's

jurisdiction is invoked under 28 United

States Code section 1257, subdivision (3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United

States Constitution is reproduced at

page 99 of the Appendix.

The Fourteenth Amendment to the United

States Constitution is reproduced at

pages 99 through 102 cf the Appendix.

Section 1538.5 of the California Penal

Code is reproduced at pages 102 through

117: of the Appendix.

STATEMENT OF THE CASE

The instant case involves the legality

of a warrantless search of an unlocked

briefcase found in the trunk of a car

following the suspect's arrest for

robbery. At the time of the arrest, the

police were investigating information that

another robbery was about to be committed

by the suspect. The police also had

reasonable cause to believe, based on

information received from a reliable

informant, that the briefcase contained a

firearm which was to be used in the

robbery. The police also knew that the

suspect had recently been involved in

crimes in which he had used firearms.

A. Statement of the Proceedings

Following respondent Ruggles’ motion

to suppress evidence pursuant to

California Penal Code section i538.5, and

pursuant to a negotiated plea bargain,

respondent Ruggles withdrew his previously

entered plea of not guilty, entered a plea

of guilty to the crime of robbery in

violation of California Penal Code section

211, and admitted an allegation that he

had used a firearm within the meaning of

California Penal Code section 12022.5.

The California Court of Appeal filed an

opinion on June 16, 1980, which held

respondent Ruggles’ motion to suppress

evidence was properly denied and affirmed

the conviction. (Appen., pp. 1-21.) The

California Supreme Court denied

respondent's Petition for Hearing.

(Appen., Pp. 22.)

On July 2, 1980, this Court granted

certiorari, ordered the judgment vacated,

and remanded the case to the California

Court of Appeal for further consideration

in light of Robbins v. California (1981)

453 U.S. __.

The California Court of Appeal, Second

Appellate District,’ Division One, then

reversed the judgment of conviction.

(Appen., pp. 23-94.) The California Court

of Appeal denied petitioner's subsequent

Petition for Rehearing. (Appen., p. 95.)

Thereafter the California Supreme Court

denied a Petition for Hearing. (Appen.,

p. 96.)

10.

The California Court of Appeal, Second

Appellate District, Division One, denied

petitioner's Application for Stay of

Issuance of the Remittitur and for an

Order Deferring Execution and Enforcement

of the Judgment. (Appen., p. 97.) The

remittitur was issued by the California

Court of Appeal, Second .Appellate

District. (Appen., p. 98.)

On March 11, 1982, Justice William H.

Rehnquist granted petitioner's Application

for a Stay of the Enforcement of the

Judgment pending timely filing and

disposition of a Petition for Writ of

Certiorari.

1. On March 8, 1982, following re-

sumption of trial proceedings and pursuant

to the Remittitur issued by the California

Court of Appeal, the trial court granted

respondent's Motion to Suppress Evidence

as to the items found in his briefcase.

(Appen., Pp. 118.) On March 16, 1982, the

trial court vacated its order of March 8,

1982, in its entirety based on the

March 11, 1982 order issued by Justice

Rehnquist. (Append., p. 119.)

ll.

B. Statement of Relevant Facts

from the Motion to Suppress

Evidence

In November 1978, police officers at

the Los Angeles Police Department received

information from an informant that

respondent Ruggles had participated in

several armed robberies in Los Angeles,

including a recent motel robbery involving

an accomplice. The information included

the following facts. During the motel

robbery, respondent Ruggles had posed as a

law enforcement officer. He had been

armed and had handcuffed the victim.

Respondent was & parolee and had been in

prison for armed robbery.

After this information was verified,

the victim of the motel robbery identified

respondent Ruggles’ photograph. The

police concluded they had probable cause

to arrest respondent Ruggles but made no

arrest since they wanted to effectuate the

arrest of the accomplice as well.

Surveillance of respondent Ruggles was

commenced.

On January 2, 1979, the same informant

12.

told the police that the next morning

respondent Ruggles and another individual

were going to commit a major jewelry store

robbery in Santa Barbara. Respondent was

to meet the second suspect at 8 o'clock

the next morning. The informant also

indicated that two firearms would be used

in the robbery, one firearm to be carried

in the small of respondent's back and the

other in a brown briefcase or satchel.

According to the informant, when

respondent Ruggles did not carry the

firearm in the small of his back, he

usually carried it in the briefcase with

the other firearm.

The next morning the surveillance team

observed respondent drive to the location

where he was to meet the second suspect.

He parked his car and got out.

Respondent continuously looked up and down

the street, and from side to side. He then

walked to the rear of his car, opened the

trunk, removed a brown briefcase and,

continuing to make careful observations of

the surrounding area, entered an apartment

building complex.

Approximately 10 to 15 minutes later,

13.

respondent Ruggles returned to the car,

again looking up and down the street. He

opened the trunk and replaced the brown

briefcase. He then drove off. When the

surveillance team decided respondent

Ruggles was about to leave the county,

they stopped him on the freeway.

Respondent parked his car on the shoulder

in the center of the freeway, just to the

left of the fast lane.

Respondent Ruggles was arrested.

Then one of the officers looked into

respondent's car and observed in plain

view, a police call scanner, narcotic

p*raphernalia which the officer believed

to be a “hype” kit, and two small vials

which the officer believed contained

controlled substances. The officer opened

the car trunk and observed the brown

briefcase and a large scanner for picking

up police calls. The officer opened the

unlocked brown briefcase and observed a

bag similar to a shaving kit which was

unzipped and contained a firearm. In the

briefcase itself was another firearm,

ammunition, a holster, a sap, handcuffs,

gloves, a flashlight and a bandanna.

- «

14,

Numerous other items were found in the

trunk of the car, including two duffel-

type bags, a change of clothes and masks.

The trial court denied respondent

Ruggles’ motion to suppress evidence,

finding that the officers had probable

cause to arrest him and stop his car. The

trial court also found that the officers

were justified in searching the trunk of

the car and briefcase since there was a

definite nexus between the information

known to the police officers and the

contents of the briefcase consisting of

weapons and other possible instrumentali-

ties of crime.

Following respondent's conviction, the

California Court of Appeal reversed the

judgment of conviction in People v.

Ruggles (1981) 125 Cal.App.3d 473,

178 Cal.Rptr. 231, and held (by a vote of

2-1) that respondent Ruggles’ motion to

suppress evidence was improperly denied.

The court reasoned that the warrantless

search of the briefcase found in the trunk

of the car was iliegal under this Court's

plurality opinion in Robbins v. California

(1981) 453 U.S. __, and People v.

15.

Minjares (1979) 24 Cal.3d 410,

153 Cal.Rptr. 224, 591 P.2d 514.

2. People v. Minjares, Supra, was

decided exclusively on federal

constitutional grouhds.

16.

REASONS WHY CERTIORARI

SHOULD BE GRANTED

NOTWITHSTANDING THIS

COURT'S PLURALITY OPINION

IN ROBBINS V. CALIFORNIA

(1981) 453 U.S. ___, PROB-

ABLE CAUSE TO BELIEVE A

FIREARM WOULD BE IN A

BRIEFCASE FOUND IN THE

CAR TRUNK OF RESPONDENT'S

AUTOMOBILE DURING A SEARCH

INCIDENT TO RESPONDENT'S

LAWFUL ARREST FOR ARMED

ROBBERY JUSTIFIED A

WARRANTLESS SEARCH OF THE

BRIEFCASE UNDER THE FOURTH

AMENDMENT

This case presents an important

question of law as to whether the Fourth

Amendment requires the police to obtain a

search warrant before opening an unlocked

briefcase found in the suspect's car trunk

incident to a lawful arrest even if they

17.

have probable cause to believe the brief-

case contains a firearm.

In the instant case, the police

officers opened an unlocked briefcase

found in respondent‘*s car trunk following

his lawful arrest for robbery. At the

time of the arrest, the police officers

had information from a reliable informant

that respondent was keeping a firearm in

the briefcase for imminent use in a

jewelry store robbery. The police

officers were also aware that respondent

previously had been convicted of armed

robbery and had been involved in addi-

tional robberies in which he used

firearms.

The California Court of Appeal below

Originally upheld the search of the

unlocked briefcase and affirmed the

conviction, but later reversed itself

after this Court vacated the judgment and

remanded the case for further considera-

tion in light of Robbins v. California,

supra. Relying on the plurality opinion

in Robbins v. California, the California

18.

Court oe aeees held the search was

illegal.~

Reliance on the plurality opinion in

Robbins resulted in a reversal of the

criminal conviction even though the

officers who had just arrested respondent

for robbery had probable cause to ‘believe

the briefcase contained a firearm and

that, but for the arrest having foiled his

plot, he was about to commit yet another

robbery. Having received information that

respondent kept a firearm in a briefcase

and further having seen respondent place a

briefcase in his car trunk on the day of

his arrest and the planned jewelry store

robbery, the police could reasonably

conclude that the briefcase contained a

loaded firearm which could pose a serious

public danger.

3. In Robbins v. California, supra,

only four members of this Court joined in

the lead opinion. The law is well settled

that a judgment of an equally divided

United States Supreme Court "is without

force as precedent.” (Eaton v. Price

(1960) 364 U.S. 263, 264.)

19.

The search and seizure of the

briefcase on the facts of this case

clearly does not run afoul of this Court"s

decisions in United States v. Chadwick

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

(1979) 442 U.S. 753. Chadwick and Sanders

stand for the proposition that a warrant

is necessary for searching a trunk and/or

luggage from an automobile properly

stopped and searched for contraband.

However, footnote 13 of the Sanders

opinion makes quite clear that some

containers found in a car, such as a kit

of burglar tools or a gun case, cannot

support a reasonable expectation of

privacy because their contents may be

discerned from their outward appearance

and therefore a warrant would be

unnecessary for their search and seizure.

(See Arkansas v. Sanders, supra, at

pp. 764-765.) In the instant case the

totality of the facts and circumstances

make it abundantly clear that respondent's

briefcase could not, under any circum-

stances, support a “reasonable expectation

of privacy” in view of the officer's

information that a firearm was contained

20.

in the briefcase. The briefcase was thus,

in effect, a virtual gun case and a

warrant was therefore not necessary for

its search or seizure. (See Arkansas v.

Sanders, supra, 442 U.S. at pp. 764-765.)

Because the search of the briefcase

was clearly proper under this Court's

holding in Sanders, it was invalidated

only because of the plurality opinion in

Robbins limiting the warrantless search of

containers found in car trunks. Peti-

tioner submits, however, that when

officers have probable cause to believe

that the contents of such a container are

in and of themselves inherently dangerous,

any need to obtain a warrant is then

dissipated. What happened in the instant

case is that the officers knew the brief-

case contained an inherently dangerous

object, to wit, a firearm. The invalida-

tion of the search of a briefcase under

the circumstances of this case makes clear

that this Court should reconsider its

plurality opinion in Robbins v.

California.

The Fourth Amendment prohibits only

police activity which is "unreasonable."

21.

In the instant case the officers not only

had knowledge of the probable contents of

the briefcase, but also probable cause to

believe the briefcase contained a danger-

ous firearm. Petitioner submits that

under the circumstances of this case the

officers acted reasonably in undertaking

an immediate seizure of the weapon. To

have acted otherwise would have been

“unreasonable.”

Applicable here are Mr. Justice

Rehnquist's comments in his dissent in

Robbins:

"Not only has historical study

"suggested that in emphasising the

warrant requirement over the reason-

ableness of the search the Court has

"stood the fourth amendment on its

head” from a historical standpoint."

(Coolidge, supra, at 492 (Harlan, J.,

concurring) (quoting T. Taylor,

Two Studies in Constitutional

Interpretation, 23-24 (1969)), but the

Court has failed to appreciate the

impact of its decisions, not mandated

by the Fourth Amendment, on law

enforcement. . . ." (Robbins v.

22.

ne

California, supra, 453 U.S. ’

(69 L.Ed.2d 744, 759, 101 S.Ct.

2841) .)

Finally, it must be noted that the

continued validity of the rule in Robbins

v. California, appears to be in serious

question in view of this Court's

directive to the parties in United States

v. Ross, 89-2209, for additional briefing

on the question of whether this Court

should reconsider its holding in Robbins

v. California, supra, 453 U.S... ~=aSince

the California Court of Appeal relied on

the plurality opinion in Robbins, and it

appears this Court is reconsidering the

piurality opinion in Robbins, certiorari

should be granted.

23.

II

PROBABLE CAUSE TO BELIEVE

THAT A DANGEROUS WEAPON

IS INSIDE A CONTAINER IN

A VEHICLE AT THE CENTER

DIVIDER OF A FREEWAY CON-

STITUTED EXIGENT CIRCUM-

STANCES UNDER ARKANSAS V.

SANDERS (1979) 442 U.S. 753,

AND JUSTIFIED THE WARRANT-

LESS SEARCH OF THE CONTAINER

Even assuming arguendo that Robbins is

applicable to the instant case, petitioner

submits that the warrantless search of the

briefcase found in respondent's car trunk

was proper because of the existence cf

exigent circumstances. Petitioner submits

that probable cause to believe that a

dangerous weapon is contained in a

container in a vehicle at the center

divider of a freeway constitutes exigent

circumstances under this Court's holding

in Arkansas v. Sanders (1979) 442 U.S.

753, and justifies the warrantless search

of the container.

24.

The plurality in Robbins expressly

acknowledged by implication that "(T]he

presence of any circumstances that would

constitute a valid exception to this

general rule, .. ." is still cognizable

even under Robbins. Indeed, the Robbins

Plurality opinion cites with approval

footnote 11 of Arkansas.v. Sanders, supra,

which stands for the proposition that

exigent circumstances may justify a

warrantless search of luggage taken from a

vehicle following a lawful arrest. (See

Robbins v. California, supra, 453 U.S.

_._, 69 L.Ed.2d 744, 101 S.Ct. 2841.)

Petitioner submits that the facts in the

instant case justified the warrantless

search of the briefcase found in the trunk

of the car because of the existence of

exigent circumstances. As noted by

Justice Hanson of the California Court of

Appeal in his dissenting opinion:

"Here, there was probable cause

for the search because the officers

had knowledge that the probable

contents of the brown attache case

consisted of two handguns and probably

other instrumentalities used in

25.

robberies already committed and being

transported for use in a robbery of a

jewelry store in Santa Barbara. While

the briefcase may have been under the

control of the police, the totality-

of-the-circumstances includes the fact

that the defendant was arrested in the

center divider of a freeway with

vehicles speeding by a few feet away

at speeds in excess of 55 m.p.h. This

locale necessitated quick action by

the officers to confirm the presence

of the dangerous weapons and to secure

them. By merely flipping a finger,

the police unlatched the unlocked

catches and confirmed the presence of

two guns, ammunition, a sap,

handcuffs, flashlight and gloves in

the briefcase. _I would hold that the

totality-of-the-circumstances consti-

tuted exigent circumstances rendering

the obtaining of a warrant an

impractical alternative." (Appen.,

pp. 84-85.)

Petitioner submits that, when police

officers have probable cause to believe

that a dangerous weapon is contained in a

container in a vehicle on the center

divider of a freeway, such a showing

should constitute, as a matter of law,

exigent circumstances under Arkansas v.

Sanders, supra, 442 U.S. 753, to justify

the warrantless search of the container.

Petitioner further submits that this Court

should grant certiorari to resolve the

issue of what type of showing is necessary

in order to justify a warrantless search

of a container found in the trunk of a car

following a lawful arrest based on the

existence of exigent cirumstances.

Itt

THE WARRANTLESS SEARCH OF AN

UNLOCKED BRIEFCASE FOUND IN

THE TRUNK OF A CAR FOLLOWING

A SUSPECT'S ARREST AND

CONTEMPORANEOUS WITH THAT

ARREST IS JUSTIFIED AS AN

ACCELERATED BOOKING SEARCH

UNDER THIS COURT'S HOLDING

IN BULLWINKLE V. CALIFORNIA

Irrespective of this Court's ultimate

27.

holding as to the Robbins rule, the search

in the instant case was clearly justified

as an “accelerated booking search"

following arrest. The California Court of

Appeal below refused to acknowledge the

validity of the search under such a

theory, completely ignoring this Court's

holding in Bullwinkle v. California,

supra, 449 U.S. 988, 101 S.Ct. 522,

wherein defendant's appeal to this Court

was dismissed “for want of a substantiai

federal question." Such dismissal, which

constituted a decision on the merits under

Hicks v. Miranda (1975) 422 U.S. 332,

344-345, in effect, affirmed the finding

of the California Court of Appeal that

this Court's opinion in United States v.

Chadwick (1977) 433 U.S. 1, did not render

unconstitutional searches of purses o!

felony-arrestees under the “accelerated

booking search" theory. (People v.

Bullwinkle (1980) 105 Cal.App.3d 82,

164 Cal.Rptr. 163.)

In the instant case, it would not have

been unreasonable for the police to have

taken the unlocked briefcase along with

the other items found in the car

compartment and in the trunk to the police

station for booking. The contents of the

briefcase surely would have been disclosed

at the time of booking at the police

station during an inventory. Since the

items in the briefcase would have been

discovered at the time of booking, it was

not unreasonable for the police officers

to conduct a search of the briefcase in

the field at the scene of respondent's

arrest. (See Bullwinkle v. California,

supra.)

29.

CONCLUS ION

For the foregoing reasons, petitioner

submits that a Writ of Certiorari should

issue to review the decision of the Court

of Appeal of the State of California.

Respectfully submitted,

GEORGE DEUKMEJIAN, Attorney General

of the State of California

ROBERT H. PHILIBOSIAN, Chief

Assistant Attorney General

-- Criminal Division

S. CLARK MOORE,

Assistant Attorney General

EDWARD T. FOGEL, JR.,

Deputy Attorney General

SHUNJI ASARI,

Deputy Attorney General

JOHN R. GOREY,

Deputy Attorney General

and Attorney of Record

Attorneys for Petitioner

30.

APPENDIX

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 OF APPEAL-2D DIST.

v. ) FILED

DAVID WENDELL RUGGLES, ) JUN 16 1980

Defendant and ) CLAY ROBBINS, JR. Clerk

Appellant. )

) Depaty 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.

1.

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.

PACTS

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

2.

(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

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

3.

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

approximately 39 years old, 6 feet tall

and weighed around 200 pounds. Officer

McSeveney 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 before the robbery of the

Nutel Motel, Ruggles 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 Officer McSeveney that

defendant Rugglvs 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 proveed 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 defendan’ Ruggles, the car

he was driving, and its license rumber.

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,

Gefendant Ruggles returned to the car-

surveyed the street again, then opened the

trunk and replaced the brown briefease

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

front of 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

7.

lay down prone, was handcuffed and patted

down, and was toid 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 custo-

marily 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 appez. to be under the influence

of drugs or narcotics.

The officer took the car keys from

defendant Ruggles’ hand and opened the

tiunk. 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.

DISCUSS ION

I

Contrary to defendant's contention,

the evidence introduced at the 1538.5

hearing amply supported the trial court's

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 parapherna-

lia in the car did not justify a trunk

search, the People concede these issues

and they are therefore not matters for our

review.

10.

. @determination that probable cause existed

for his arrest without a warrant. Ina

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 standards of reasonableness.

(People v. Lawler (1973).9 Cal.3d 156,

160.)

Probable cause to arrest without a

warrant is based 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, 665.) The informa-

tion Officer McSeveney obtained in the.

present case, derived from his investiga-

tion and Carragher's photographic

identification, 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

ll.

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

12.

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 constitutional rights.

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

411, 423-424.) ;

II

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 bench was

justified under the “automobile exception"

to the warrant requirement. This

exception allows the police to conduct a

warrantless search of an automobile where

13.

there is probable cause, and exigent

circumstances make it impracticable for

the police to obtain a 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 hand-

suns 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

14,

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 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 corrobora-

tion occurred through the officers’

observation of Ruggles' suspicious

behavior, continuous surveying of the

street while he was removing and carrying

15.

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

was no exigent circumstances in this case

(Chambers v. Moroney, supra, 399 U.S. at

51) because the car was at che 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 where

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 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 auto-

mobile have already been arrested does not

negate the exigent circumstance.

16.

(Chambers v. Moroney, supra, at 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 exception.

Itt

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

discovery (People v. Superior Court

17.

(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 (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, there was

probable cause for the search and the

suitcase was closely related to the reason

for the arrest. (United States v.

Tramunti (24 Circ. 1975) 513 F.2d 1087 at

1104; see also United States v. Finnegan

(9th Circ. 1977) 568 F.2d 637.)

18.

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

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 eaception 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 sinse 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

19.

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, at 770.)

"Where it is shown that a suspect

would have been jailed and thus subject to

a booking search, the fact that a thorough

search of the booking type occurs prior 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 v. Longwill,

14 Cal.3d 943, 948; People v. Brown,

88 Cal.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.

21.

CROER DUE

August 15, 1980

AFTER JUDGMENT BY THE COURT OF APPEAL

2nd DISTRICT, DIVISION 1, Crim. Mo. _35011_

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

IN BANK

SUPREME COURT

PILED

PEOPLE AUG 13 1980

v. IAURENKE P. GILL, Clerk

RUGGLES

Deputy

i

Appellant's petition

for hearing DENIED.

Bird, C.J., is of the opinion the petition

should be granted.

Chief Justice

CERTIFIED FOR PUBLICATION

IN THE COURT CF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PECPLE, ) 2 Crim. No. 35011

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

Respondent , ) COURT OF APPEAL-2D DIST.

v. ) PILED

DAVID WENDELL RUGGLES, ) NOV 10 1981

Defendant and ) CLAY ROBBINS, JR. Clerk

Appellant. )

) Deputy Clerk

APPEAL from a judgment of the Superior Court of

Los Angeles County. Ronald M. George, Judge.

Reversed.

Paul W. Grace and Stephen Yagman, 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,

William R. Pounders and John R. Gorey, Deputy

Attorneys General, for Plaintiff and Respondent.

David Wendell Ruggles (defendant)

appeals his conviction after a guilty

plea, on one count of robbery with the use

of a firearm in the commission of the

offense.

PROCEDURAL HISTORY

Defendant was charged with (1) robbery

(Pen. Code, § 211) and the use of a

firearm in the commission of the offense

(Pen. Code, §§ 12022.5) and (2) possession

of a firearm by an ex-felon (Pen. Code,

§ 12021). The information was

subsequently amended to charge six prior

convictions, and thereafter the case was

consolidated with a second case in which a

single count of robbery (Pen. Code, § 211)

was charged. Defendant pled not guilty to

the charges, denied the priors, and moved

to suppress evidence pursuant to section

1538.5 of the Penal Code. A hearing on

the 1538.5 motion ensued, and following

denial of that motion by the trial court,

defendant, pursuant to a negotiated plea,

withdrew his not guilty plea and entered a

plea of guilty to count I (robbery),

24.

admitted the use allegation charged under

section 12022.5, and also admitted three

of the six prior convictions.

Defendant then appealed the denial of

his 1538.5 motion and the judgment of

conviction. This court on June 16, 1980,

filed its unpublished opinion wherein we

ruled that the 1538.5 motion to suppress

was properly denied and affirmed the

conviction. On August 13, 1980, the

California Supreme Court denied

defendant's petition for a hearing. On

November 6, 1980, defendant filed a

petition for a writ of certiorari with the

United States Supreme Court.

Defendant's petition presented to the

Supreme Court a single question: “Was the

warrantless search of petitioner's

briefcase, while he was under the

exclusive control of the police, invalid,

thereby necessitating the granting of

petitioner's motion to suppress?"

On July 2, 1981, the United States

Supreme Court granted defendant's petition

and the clerk of the court advised this

court, “[{T]he judgment is vacated and the

cause is remanded to the Court of Appeal

25.

of California, Second Appellate District,

for further consideration in light of

Robbins v. California, 453 U.S. 1981."

FACTS

In November 1978 Sergeant Morosky of

the Los Angeles Police Department,

Intelligence Division, received

information that defendant Ruggles had

participated in several armed robberies in

the City of Los Angeles. The sergeant

communicated this information to Officer

Robert G. McSeveney of the Robbery-

Homicide Division of the Los Angeles

Police Department. McSeveney was also

informed that defendant was a parolee, had

been in prison for armed robbery, and was

living in San Pedro. Je was given a

physical description of the defendant, and

he obtained verification of defendant's

description and criminal record from the

Records and Identification Division of the

department. Morosky indicated to

McSeveney that defendant had been involved

in a recent motel robbery in which he had

been accompanied by a male Latin and that

during the commission of the robbery the

defendant had been armed and had

handcuffed the victim, and that defendant

drove a black over red Mercury Montego

automobile. It was learned by McSeveney

that defendant had been seen in the locale

of the Nutel Motel and that he posed as a

law enforcement officer. During the Nutel

Motel robbery the victim had been shown a

badge and told that the robber was an

agent of the state narcotics department or

of the department of justice.

After making a showup card with a

photograph of the defendant, McSeveney

displayed that card to the victim of the

robbery and to two female employees

thereof. Mr. Carragher, the victin,

stated that the person in the photograph

strongly resembled the man who had robbed

him.

From the information received by

McSeveney concerning the Nutel robbery, he

concluded that the description of the

robber coincided with that of the

defendant, that the defendant was the

robber, and that he had probable cause to

arrest defendant. In spite of these

27.

conclusions no attempt was made to arres*

the defendant because the officers hoped

that by placing him under surveillance

they would be able to effectuate the

arrest of the accomplice as well. A

surveillance of defendant and his

residence was instituted.

On January 2, 1979, Sergeant Morosky

told Officer McSeveney and his partner,

Sergeant Stein, that he had information

that the defendant was going to commit a

major robbery and that there would be

another suspect in the robbery. He

informed them that the defendant was to

meet the other person at 8 o'clock in the

morning of January 3, 1979, on Reseda

Boulevard near the Ventura Freeway in the

San Fernando Valley and that the two of

them would rob a jewelry store in Santa

Barbara. Morosky said that his informant

had indicated that two handguns would be

used and that defendant normally carried

one of the weapons on the small of his

back and probably would have the second

weapon in a briefcase or a satchel.

McSeveney contacted the surveillance team

and informed them that the defendant was

28.

armed and dangerous. They were made privy

to all of the information related above

and instructed to stop and arrest the

defendant should he appear to be leaving

the County of Los Angeles.

On the morning of January 3, Officer

Brooks of the Los Angeles Police

Department, a member of the surveillance

team, set up a surveillance in the area of

Reseda Boulevard and Ventura Freeway as

instructed. In addition to Officer Brooks

there were ten other officers and five or

Six police vehicles and a helicopter

employed in the surveillance. Brooks and

his partner, Sergeant Hagele, took their

positions at 7 a.m. and commenced

communications by radio with other

surveillance team members.

Observing the defendant's automobile,

Brooks watched defendant drive to a

location on the north side of Irwin just

east of Reseda Boulevard. Brooks watched

defendant park and leave the automobile.

Defendant was continuously looking back

and forth, up and down the street, and

from side to side. He then went to the

rear of the vehicle, opened the trunk, and

29.

removed a brown briefcase and, continuing

to make careful observations of the area,

entered an apartment building complex.

Approximately 10 to 15 minutes later

defendant returned to the car, again

looking up and down the street, and opened

the trunk, replacing the brown briefcase

therein. He then drove to the Ventura

Freeway and entered proceeding westbound

to the area of Chesebar. The surveillance

ceam decided that defendant was about to

leave the country, whereupon they stopped

him. A black and white police unit

displayed a red light, and defendant

parked his vehicle on the shoulder in the

center of the freeway. Defendant

immediately emerged from the car, and

Officer Brooks and other officers

approached, displaying three or four

handguns and at least one shotgun, all of

which were pointed at the defendant.

Complying with instruction, defendant lay

prone on the center divider, where he was

handcuffed, patted down, and informed that

he was under arrest. He was then stood up

against the center divider fence. By this

time at least five or six police vehiclcs

30.

=a Sv

and approximately ten to twelve officers

had gathered.

Brooks looked into defendant's vehicle

and observed in plain view a police call

scanner, as well as narcotic parapherna-

lia, including two small vials such as

frequently contain various narcotics.

Officer Brooks concluded that the

paraphernalia was a “hype” kit and that

the vials and bottles contained controlled

substances. Brooks took the keys to the

vehicle from defendant and opened the

car's trunk. There he observed a large

scanner for picking up police calls and

the brown briefcase. There were also two

other bags in the trunk, together with a

raincoat, two other hats, four or five

halloween-type masks with tape over the

eyeholes, and a scanner copmany manual

entitled "Police Frequencies." Officer

Brooks opened the briefcase and the other

bags. Upon opening the briefcase he

discovered a bag similar to a shaving kit

which was unzipped and contained a gun.

Another gun, ammunition, a holster, a sap,

handcuffs, gloves, a flashlight, and a

bandanna were found in the briefcase

31.

itself. In the other bags he found a

sledge hammer, miscellaneous clothes, and

a brown cap.

ISSUES

Defendant contends (1) the officers

did not have probable cause to arrest him;

(2) Officer Brooks did not have sufficient

probable cause to conduct a warrantless

search of the trunk of his car; and (3)

the search of the br} fcase without a

warrant was illegal.

DISCUSSION

I

Contrary to defendant's contention,

the evidence introduced at the 1538.5

2/ although defendant also contends

that defendant did not consent to the

search of his vehicle and that the plain

view obstruction of the narcotics

' paraphernalia did not justify the trunk

search, we do not deal with these issues

- as they are conceded by the People.

32.

=

hearing amply supported the trial court's

determination that probable cause existed

for his arrest without 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

constitutional standard of reasonableness.

(People v. Lawler (1973) 9 Cal.3d 156,

160.) Probable cause to arrest without a

warrant is based upon the facts known to

the officers at the time of the arrest.

(People v. Lara (1967) 67 Cal.2d 365,

373-374, cert. den., 392 U.S. 945.) The

standard is whether ". .. aman of

ordinary care and prudence would be led to

believe and conscientiously entertain an

honest and strong suspicion that the

accused is guilty. [Citations.]" (People

v. Cockrell (1965) 63 Cal.2d 659, 665,

cert. den., 389 U.S. 1006.)

McSeveney's belief that Ruggles may

have been connected with the Nutel robbery

was substantiated by information he

obtained from the employees of the Nutel

Motel.

As a result of information obtained by

33.

McSeveney's investigation and Carragher's

identification of defendant, the police

had reasonable cause to believe that

Ruggles had participated in the Nutel

robbery and probable cause to arrest him.

Although defendant argues that there was a

Gelay 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 become

stale. The arrest without a warrant was

not offensive to defendant's constitu-

tional rights. (United States v. Watson

(1976) 423 U.S. 411, 423-424.)

II

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

34.

of those exceptions. (People v. Minjares

(1979) 24 Cal.3d 410, 416, cert. den.,

444 U.S. 887.) The warrantless search of

the trunk of defendant's car in the case

at bench was justified under the

"automobile exception" to the warrant

requirement. This exception allows the

police to conduct a warrantless search of

an automobile where there is probable

cause, and exigent circumstances make it

impracticable for the police to obtain a

warrant. (Chambers v. Maroney (1970)

399 U.S. 423, 48-51.)

The automobile exception is applied

where the seizing officer has probable

cause to believe that the contents of the

automobile offend against the law.

(Carroll v. United States (1925) 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

35.

it is shown that both the informant and

his information are reliable. (Acuilar 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, sources, or circumstances.

(People v. Lara, supra, 67 Cal.2d 365,

374-375.) The presence of the defendant

at the rendezvous location at the correct

time, the fact that he was seen taking the

brown briefcase out of the trunk and later

returning it to the trunk, and the fact

that it appeared defendant planned to

commit a crime in Santa Barbara because he

was apprehended driving out of Los Angeles

County westbound, all corroborated the tip

in its essential facts. Independent

corroboration occurred through the

officers’ observation of Ruggles’

suspicious behavior -- continuous

surveying of the street while he was

removing and carrying the briefcase and

36.

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

(Ch rs v. Maroney, supra, 399 U.S. 42,

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 where

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 out of the locality

or the evidence destroyed. (Carroll v.

United States, supra, 267 U.S. 132, 153.)

The fact that the occuparts of the auto-

mobile have already been arrested does not

negate the exigent circumstance. (See

Chambers v. Maroney, supra, 399 U.S. 42,

37.

44, 52.)

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. (See Coolidge v. New Hampshire

(1971) 403 U.S. 443, 460.) 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. Maroney, supra, 399 U.S. 42,

52.) Consequently, the search of the

trunk of the car without 4&4 warrant was

valid under the automobile exception.

Itt

Defendant's final contention is that

the officers illegally searched the

briefcase. This was also the issue which

defendant presented to the United States

Supreme Court. After reviewing Robbins v.

38.

California (July 1, 1981)* 453 U.S. ___,

we conclude that the search of defendant's

briefcase was illegal.

Noting the proliferation of litigation

revolving around the principles limiting

the search incident to a lawful arrest,

the Supreme Court in New York v. Belton

(July 1, 1981)** 453 U.S. __, took note

of criticisms which have been leveled

concerning sophisticated rules which must

be followed by police in their day-to-day

work. The court noted the importance of

establishing a single familiar standard

which could guide police officers in the

pursuit of their duties. Noting that no

such rule has emerged from the litigated

cases respecting the question of the

search of an automobile, the court in

Belton held that when there has been a

lawful arrest of an occupant of an

automobile, the officer or officers may

contempor aneously with that arrest, search

*Advance Report Citation: 49 U.S.L.

Week 4906.

**Advance Report Citation: 49 U.S.L.

Week 4915.

39.

the passenger compartment of the automo-

bile. The court further held that upon

making such a search, the police may also

examine the contents of any containers

found within the passenger compartment.

The court stated, "Such a container may,

of course, be searched whether it is open

or closed, since the justification for the

search is not that the arrestee has no

privacy interest in the container, but

that the lawful custodial arrest justifies

the infringement of any privacy interest

the arrestee may have.” (Id., at p. __.)

That the Supreme Court did not include

in its new rule a provision for searching

the trunk of an automobile or a container

within the trunk, is made abundantly clear

by the fact that Robbins v. California,

supra, was decided the same day as Belton.

Robbins involved the search of the “trunk”

of a station wagon. Actually because of

the construction of the vehicle, the area

in question is a recessed luggage

compartment reached after opening the

tailgate of the station wagon. This

search was instituted after highway patrol

officers had stopped petitioner's car

40.

after observing erratic driving. After

Robbins had alighted from his vehicle, the

officers in patting him down discovered a

vial ow liquid. They also smelled

marijuana smoke coming from the

automobile, searched the passenger

compartment and found marijuana, as well

as paraphernalia for using it. At that

point Robbins was arrested, and, searching

the luggage compartment, the officers

found a tote bag and two packages wrapped

in green opaque plastic. Opening the

packages, they discovered blocks of

marijuana.

After affirmance of Robbins’

conviction by the Court of Appeal, the

Supreme Court granted a writ of

certiorari, vacated the Court of Appeal's

judgment, and remanded the case for

further consideration in light of Arkansas

v. Sanders (1979) 442 U.S. 753. On

remand, the Court of Appeal again

affirmed, holding that the trial court

". . - could reasonably [have] conclude [d]

that the contents of the packages could

have been inferred from their outward

appearance, so that appellant could not

41.

have held a reasonable expectation of

privacy with respect to the contents.”

(People v. Robbins (1980) 103 Cal.App.3d

34, 40.)

The Supreme Court again granted

certiorari “Because of continuing uncer-

tainty as to whether closed containers

found during a lawful warrantless search

of an automobile may themselves be

searched without a warrant. .. ."”

(Robbins v. California, supra, 453 U.S.

__.-) The lead opinion in Robbins was

delivered by Justice Stewart and three

justices concurred therein. A fifth

justice, Justice Powell, concurred in the

judgment with opinion. The Chief Justice

concurred in the judgment.

The opinon by Justice Stewart rejected

the contention that the “automobile

exception” (Carroll ve United States,

supra, 267 U.S. 132) warranted the search

of the green plastic bag. The opinion

pointed out that it had been determined in

United States v. Chadwick (1977) 433 U.S.

1 tha: the automobile exception is

confined to a special, possibly unique

circumstances which were the occasion of

42.

the rule's genesis. Chadwick held that

although cars and luggage might both be

characterized as being mobile, luggage

itself is subject to being taken and kept

under the control of the police. Also,

the inherent mobility of an autombile is

not the only justification for the

automobile exception, since warrantless

searches have been approved by the court

even in cases where the automobile's

mobility was irrelevant. The other factor

giving rise to the automible exception is

the "*. . . diminished expectation of

privacy which surrounds the automobile,"

(id., at p. 12) which arises from the fact

that a car is used for transportation and

not as a residence or repository of

personal effects; that a car's occupants

and contents travel in plain view; and

that automobiles are necessarily highly

regulated by government. (Id., at

pp. 12-13.) The opinion of Justice

Stewart in Robbins then held that there is

not any diminished expectation of privacy

regarding luggage and that *. . . on the

contrary, luggage is typically a

repository of personal effects, the

43.

contents of closed pieces of luggage are

hidden from view, and luggage is not

generally subject to state regulation."

(Robbins v. California, supra, 453 U.S.

__.+) The court rejected the argument

that the contents of a closed container

which is placed in a vehicle are not fully

protected by the Fourth Amendment.

Justice Stewart pointed out that the

Fourth Amendment protects people and their

effects, and it makes no difference

whether the effects are “personal” or

"impersonal." The criteria used to render

the contents immune from a warrantless

search is the type of container and if the

container is closed and opaque, there is

manifested thereby an expectation that the

contents will be secure from examination.

The court stated, “Once placed within such

a container, a diary and a dishpan are

equally protected by the Fourth

Amendment." (Id., at p. __.) The

opinion noted that the fact that some

containers by their very nature disclose

their contents or at least create an

inference thereof from their outward

appearaiices are the kind of exceptions

44,

which prove the rule.

The court in Robbins, as it did in

Belton, supra, 453 U.S. ___, expressed a

desire to establish a rule which would be

easy to apply and not riddled with

exceptions. As the opinion was signed

only by a plurality, it apparently did not

succeed in establishing, such a rule.

Nevertheless, the holding is not to be

disregarded as is suggested by the

Attorney General. Justice Powell in his

opinion specifically agreed that the

situation in Robbins must be distinguished

from Belton because in Belton the court

established a “bright line" rule which

permits the interior or passenger

compartment of a vehicle and containers

found therein to be searched without a

warrant where there has been an arrest of

the occupant of the vehicle. Insofar as

the plurality opinion in Robbins’

establishes a new “bright line" rule,

Justice Powell would not join because he

couldn't assume that the police had

probable cause to search the whole

automobile as the plurality did. Justice

Powell maintained that Robbins was a

45.

"container case." However, he noted. that

_ both Chadwick, supra, 433 U.S. 1, and

Sanders, supra, 442 U.S. 753, require a

warrant to search a container when it is

either one that generally is used for

personal effects or is sealed in such a

manner as to manifest an ©xpectation of

privacy. Justice Powell wrote, "I

nevertheless concur in the judgment

because the manner in which the package at

issue was carefully wrapped and sealed

evidenced petitioner's expection of

privacy in its contents." (Robbins v.

California, supra, 453 U.S. ___.)

If a package wrapped in green opaque

Plastic material may not be opened without

a warrant even if it is found during the

course of the lawful search of an

automobile, then, a fortiorari, a

briefcase, such as we have in the instant

case, may not be opened even though found

during the course of the lawful search of

an automobile. It can scarcely be argued

that a briefcase is not generally “a

repository of personal effects."

Assuming, arguendo, that Justice

Powell distinguished Robbins from Belton

46.

because Robbins was a “container case"

rather than an “automobile case" and that

thus we are not bound by Robbins because

the case at bench is an “automobile case,"

we are nevertheless governed by. the

holding in People v. Minjares, supra,

24 Cal.3d 410.

In Minjares the police stopped a car

because of information linking the car and

its occupant to a robbery. After

arresting the driver and searching the

passenger compartment, the police opened

the trunk and found a tote bag, which they

searched. The court held that under

Chadwick v. United States, supra, 433 U.S.

1, the search was illegal. "The

principles underlying Chadwick--and the

Fourth Amendment--are not altered because

the luggage in this case was found in the

course of a search of an automobile. ...

*[t]he word “automobile” is not’a talisman

in whose presence the Fourth Amendment

fades away and disappears.’ ([Citation.]"

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

420.) The facts in Minjares cannot be

distinguished from the case at bench.

There are, of course, exceptions which

47.

would permit the arresting officers to

search a container such as the briefcase

herein; however, it is not argued that the

opening of this briefcase was incident to

a lawful arrest. (See Chimel v.

California (1969) 395 U.S. 752.)

The People do, however, argue, and our

dissenting colleague agrees, that in this

case the search was justified by exigent

circumstances (Arkansas v. Sanders, supra,

442 U.S. 753). Recognizing, of course,

that the doctrine of exigent circumstances

is well established and well reasoned, we

are unable to discern any such

circumstances in this case. The briefcase

in question was hardly within the

“immediate control" of the respondent at

the time of the search. Although footnote

11 in Arkansas v. Sanders, supra, 442 U.S.

756, 763-764, states that exigencies will

depend upon the probable contents of the

luggage, this should not be taken as

meaning that mere prior knowledge of the

probable nature of such contents will

justify the search. In.both Sanders and

Chadwick, supra, 433-U.S. 1, the officers

had prior information concerning the

48.

contents of the containers therein

involved. It is only when the officers

have knowledge of the probable contents

and probable cause to believe that the

contents of the container are in and of

themselves inherently dangerous that the

need to obtain a warrant is dissipated.

The briefcase had been reduced to the

exclusive custody of the police, and there

were no grave circumstances justifying the

officer in substituting his judgment for

that of a magistrate in determining the

existence of probable cause for the

search. The exigent circumstances

justifying the search of the trunk were

eliminated once the trunk was opened and

the contents were reduced to the

possession of the police. (People v.

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

Finally, the People suggest (and our

learned dissenting colleague seems to

accept) that the warrantless search may be

justified on the theory of an “accelerated

booking search." In People v. Bullwinkle

(1980) 105 Cal.App.3d 82, the court

justified the search of the arrestee's

purse when the arrestee took it with her

49.

to the police station after having been

arrested. After arriving at the police

department, the officers searched the

purse and discovered incriminating

evidence. The Bullwinkle court held that

a person who is under arrest and subject

to being booked into jail must yield to a

search of his or her personal effects.

The court correctly held that booking

searches traditionally extend to a purse.

The court noted, ". . . [P]Jurses and

wallets are entirely different from

automobiles. The contents of automobiles

‘may be readily and adequately protected

by locking the vehicle.' [Citation.] The

contents of purses and wallets, on the

other hand, are easily susceptible to

theft since purses and wallets cannot

normally be locked. [Citation.]" (Id.,

at p. 89.) There was absolutely no

necessity to search the briefcase in the

case at bench during the booking of the

Gefendant. On the contrary, the briefcase

itself could have been secured while .

awaiting a decision by a magistrate as to

whether to issue a warrant. “Once a

closed container comes under an officer's

50.

exclusive authority, an immediate search

is no longer necessary. Thus probable

cause to believe the item contains

contraband or evidence of a crime can

support at most the seizure of the item;

but a warrant must be obtained for its

search. [Citations.]" (People v.

Minjares, supra, 24 Cal.3d 410, 423, fn.

omitted.)

Our dissenting colleague also opines

that the search herein should be justified

on the basis of inevitable discovery. The

inevitable discovery doctrine enunciated

so cogentiy in People v. Superior Court

(Tunch) (1978) 80 Cal.App.3d 665, is but a

corollary of the “poison fruit" doctrine,

i.e.: The constitutional compulsion to

exclude evidence discovered as a result of

official misconduct is logically limited

to such evidence as would not have been

discovered in the ordinary course of

investigatory events. To now stretch the

doctrine of inevitable discovery to the

point where a warrantless search can be

justified on the ground that a search

warrant would have been "inevitably"

issued had it been sought is not only

51.

sophistry, but would constitute a

practical repeal of the Fourth Amendment.

Such reasoning requires a retroactive

evaluation of a non-existent affidavit

presented to an imaginary magistrate, all

of which must then be reviewed at a

subsequent hearing by employing mere

speculation.

Although we do agree that given the

facts in the case at bench, the officers

almost certainly would have been provided

a warrant had they bothered to apply for

such, this fact cannot be considered as

justification for not making the effort to

obtain the warrant. (United States v.

Chadwick, supra, 433 U.S. l, 15.)

The order denying the motion to

suppress the evidence of the contents of

the briefcase is reversed. The matter is

remanded. The court is directed to enter

its order suppressing the evidence

discovered from the search of the

52.

briefcase. The judgment of conviction is

reversed. A new trial is ordered.

CERTIFIED FOR PUBLICATION.

DALSIMER, J.

I concur:

SPENCER, P.J.

53.

DISSENTING OPINION OF HANSON (Thaxton), J.

I respectfully dissent.

In order to make the discussion

portion of this dissent more meaningful, I

feel it is necessary, although somewhat

repetitious of the majority opinion, to

retrace in more detail the procedural

history. Also in order to breathe a

little life and realism into an otherwise

sterile case, an expansion of the factual

background is deemed warranted.

PROCEDURAL HISTORY

On February 2, 1979, by way of a

two-count information defendant Ruggles

was charged with the robbery of John

Carragher on July 24, 1978, using a 9

millimeter automatic pistol (count I) and

with possession of a firearm by an

ex-felon on January 3, 1979, in violation

of Penal Code section 12021.

a ee

i/ Unless otherwise indicated, all

statutory references are to the Penal

Code.

54,

An amendment to the information

alleges that defendant Ruggles suffered

six prior felony convictions for which he

served time in state prison, namely: (1)

and (2) convicted of conspiracy and

robbery in the first degree, felonies, in

the County of Los Angeles, State of

California, on May 16, -1962; (3) convicted

of robbery in the first degree, a felony,

in the County of Los Angeles, State of

California, on April 3, 1969; (4) con-

victed of robbery in the first degree, a

felony in the County of Santa Clara, State

of California on April 3, 1969; (5) con-

victed of the crime of escape from

custody, a felony, in the County of Santa

Clara, State of California, in violation

of section 4532b on October 3, 1969; and

(6; convicted of assault with a deadly

weapon, a relony, in violation of section

245. Each of tne foregoing prior alleges

that in each of the above listed felonies

that he committed an offense resulting in

a felony conviction during a five-year

period subsequent to the conclusion of

said term within the meaning of section

667.5, subdivision (b).

55.

On February 5, 1979, defendant with

court appointed counsel pleaded not guilty

as charged.

On February 27, 1979, defendant denied

the alleged six prior felony convictions

and made a motion to suppress evidence

pursuant to section 1538.5. The People

moved to have the instant case

(No. A347889) spp with case

number A348227.

2/ pursuant to California Rules of

Court, rule 12(a), I augmented the record

by ordering up the superior court file on

case No. A348227 for review.

In this case defendant Ruggles was

charged with robbery in violation of

section 211 on November 30, 1978, and use

of a handgun within the meaning of

sections 12022.5 and 1203.06, subdivision

(a) (1).

The reporter's transcript of the

preliminary hearing conducted on

February 9, 1979, contains the testimony

of the victim, Teresa Romero, who stated

Footnote 2 continued

On March 29, 1979, defendant's motion

to suppress pursuant to section 1538.5

that on November 30, 1978, she was the

manager of a 7l-unit apartment complex in

Glendale, California; that at about

12 o'clock noon two men came inquiring

about renting an apartment; that one of

the two men was defendant Ruggles; that

defendant Ruggles who was the bigger of

the two and wearing gloves pulled out a

gun from his waistband; that the smaller

man told her in Spanish he wanted money

and told her to lie down on the floor;

that when she refused, she was told to sit

in a chair; defendant Ruggles took $150

deposit money kept in a box on the shelf

behind the desk and then searched the

premises; that they taped her into a

chair; and that after the two men departed

she freed herself and called the police.

Victim Romero stated that defendant

Ruggles had long reddish brown hair and

wore a moustache; that she identified

defendant Ruggles from a series of

Footnote 2 continued

57.

was heard and denied. The evidence

consisted of pages 4 through 32 of the

preliminary hearing transcript (to be

considered by the court pursuant to

stipulation of the parties) and the

additional testimony of prosecution

witnesses Robert G. McSweeney and Jerry

Lee Brooks and the testimony of defendant

Ruggles limited to the motion to suppress.

On the same date, following denial of

defendant's motion to suppress evidence,

and pursuant to a negotiated plea,

defendant withdrew his net guilty plea and

pleaded guilty to count I (robbery),

admitted the use allegation pursuant to

section 12022.5 and admitted three of the

six prior convictions.

Thereafter defendant Ruggles waived a

probation report and requested immediate

sentencing. He was sentenced to state

photographs shown to her by the police at

a later date and also at the time of the

preliminary hearing made an in-court

identification of defendant Ruggles as

being the taller of the two men who robbed

her on November 30, 1978.

prison for a total of nine years which

could be served in any federal or state

penal institution and said sentence to be

served concurrently with any term the

defendant may currently be serving.

On the People's motion, apparently in

accordance with the plea bargain, the

court, “in the interest of justice,"

dismissed count II of the instant case

(No. A347889); dismissed three of the

alleged priors which were not admitted;

and dismissed the single robbery count in

case No. A348227. (See fn. 2, ante.)

On April li, 1979, defendant Ruggles

filed his notice of appeal and appellate

counsel was appointed at public expense.

On June 16, 1980, this court filed its

opinion holding that defendant's section

1538.5 motion was properly denied and

affirming the judgment of conviction.

On August 13, 1980, the California

Supreme Court, in Bank, denied defendant

Ruggles’ petition for a hearing with Chief

Justice Rose Bird voting to grant the

petition.

On November 6, 1980, defendant filed a

petition with the United States Supreme

Court seeking to proceed in forma pauperis

and for a writ of certiorari.

The sole question presented to the

United States Supreme Court in defendant's

petition for a writ of certiorari before

that Court was as follows: "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?"

On July 2, 1981, the United States

Supreme Court granted defendant Ruggles’

petition to leave to proceed in forma

pauperis and his petition for writ of

certiorari. The clerk of the Court

advised this court that "[T]he judgment is

vacated and the case is remanded to the

Court of Appeal of California, Second

Appellate District, for further considera-

tion in light of Robbins v. California,

453 U.S. ___ (1981."*

*Advance Report Citation: (July 1, 1981)

49 U.S.L.Week 4906.

FACTS

THE PRELIMINARY HEARING:

The testimony of John Carragher con-

tained in the reporter's transcript of the

preliminary hearing (pp. 4-32) conducted

on January 18, 1979, and considered by the

superior court at the 1538.5 hearing on

the motion to suppress pursuant to

stipulation was substantially as follows:

Witness John Carragher testified that

on July 24, 1978, while a manager of the

Nutel Motel in Los Angeles he was robbed;

that about two weeks prior to the robbery

defendant Ruggles came to the motel and

represented that he was a police officer

with the Treasury Department and presented

a badge; that the defendant said he was on

"a narcotic bust" involving room 122 and

wanted some information; that it was not

unusual for police to come seeking

information with problems involving the

motel and he (Carragher) cooperated with

defendant; and that this first contact

with the defendant laster about ten

minutes.

61.

Victim Carragher further testified

that on July 24, 1978, defendant Ruggles

reappeared at the motel. Debbie Doan, the

PBX operator, called to Carragher who was

in his office and said "this police

officer is out here to see you".

Mr. Carragher said to "come right in"

whereupon two men entered his office, the

taller of the two being defendant Ruggles

whom he had talked to several weeks before

and represented himself as a police

officer; that after the two men were in

his office the defendant said he had

brought some photographs which he

(defendant Ruggles) had referred to during

his previous visit; that Ruggles

introduced him to his partner and as

Carragher reached out to shake his hand

defendant Ruggles pulled an automatic

pistol out of his coat and said: “If you

don't keep quiet, I will blow your fucking

head off"; that since it was after the

holidays there was about four days'

receipts amounting to approximately $5,000

in cash and checks on his desk; that

defendant Ruggles ordered him to open the

safe and defendant took a bank, some bills

and an envelope containing Japanese yen

and money orders; that Carragher was

handcuffed with his hands behind his back

and told to get on the floor on his knees

where his legs were tied and Ruggles’

partner stuffed cotton in his mouth and

sealed it with tape; that the robbers were

in his office a total of about 10 minutes

and when they left they put his coat over

his head and .told him not to make any

noise for at least*10 minutes.

Witness Carragher made a tentative

identification of Ruggles from a series of

mug shots as the person who posed as a

police officer and robbed him on July 24,

1978. The witness also identified

defendant Ruggles in a subsequent lineup

and from the defendant's passport photo-

graph. The person who was with defendant

Ruggles was a Latin of stocky build and

much shorter than Ruggles with a

pock-marked face.

THE MOTION SUPPRESS HEARING:

Police officers Robert G. McSeveney

and Jerry Lee Brooks and defendant Ruggles

63.

were the only witnesses to testify at

defendant's motion to suppress evidence

pursuant to section 1538.5 on March 29,

1979. Their testimony is substantially as

follows:

Witness Robert G. McSeveney, assigned

to the robbery-homicide division of the

Los Angeles Police Department with 24

years experience, testified that in the

latter part of November 1978 he received

information from Sergeant Morosky of the

intelligence division that Sergeant

Morosky had received information from an

informant that defendant Ruggles, a

parolee who had been in prison for armed

robbery, was living in the San Pedro area

of Los Angeles at 566 West 7th Street, was

driving a black over red Mercury Montego

and was pulling robberies in the Los

Angeles area and that Ruggles had been

involved in a motel robbery in Los Angeles

accompanied by a male Latin and had used a

blue steel automatic and handcuffs in the

commission of the robbery.

Officer McSeveney testified that based

upon the information from Sergeant Morosky

he checked with the records division and

64.

came up with a “David Wendell Ruggles who

had been arrested and had been in prison

for robbery, had been paroled to the

County of Los Angeles". The records

disclosed a description of Ruggles as "a

male, Caucasion, approximately 38 or 39

years old, he was over six feet tall,

weighed over 200 pounds, and had reddish

hair." Officer McSeveney then pulled what

is called "a police package" which showed

"a series of arrests and the nature of the

crimes which Ruggles had been processed

for in the past". Having been advised by

Sergeant Morosky that the informant had

said Ruggles had been involved in a motel

robbery, Officer McSeveney checked police

records for current outstanding robberies

in the Los Angeles area including all

hotel-motel robberies with Caucasian

suspects and came up with the Nutel Motel

on West 3rd Street.

Officer McSeveney also talked to other

local law enforcement officers concerning

incidents defendant Ruggles had been

involved in in Los Angeles and talked to

investigators in other jurisdictions. He

was advised that defendant Ruggles two or

three times prior to the Nutel Motel

robbery had posed as a state narcotics

officer and showed a badge; that in the

City of Orange during an aborted robbery

attempt in a restaurant in which defendant

was shot, he (Ruggles) posed as a law

enforcement officer from the treasury

department checking out possible

counterfeit money.

Thereafter Officer McSeveney obtained

a booking photograph of Ruggles from prior

arrests and convictions and driver's

license photograph and prepared a photo

lineup card which included Ruggles’

photograph which he took to the Nutel

Motel. There Carragher identified Ruggles

and at that time the officer believed he

had probable cause to arrest Ruggles for

the robbery of the motel.

The officers did not arrest defendant

Ruggles immediately because they were

still attempting to identify the second

suspect in the robbery. The information

collected on Ruggles was given to the

surveillance unit which had a helicopter

surveillance on his San Pedro residence in

an effort “to identify the second suspect

or the person that he was running with at

the time".

On January 2, 1979, Officer McSeveney

and his partner Sergeant Stein were

informed by Sergeant Morosky of

intelligence that the same informant said

Ruggles “was going to pull a major

robbery, probably the following day”

(Jan. 3, 1979). The informant indicated

there were to be two people on the robbery

and he was to pick up the second suspect

near Reseda Boulevard and the Ventura

Freeway and to rob a jewelry store in

Santa Barbara. Officer McSeveney stated

that the information from the informant

was “that there would be two handguns

used, one being a blue steel automatic.

He also indicated that Mr. Ruggles

normally would carry one of the weapons in

the small of his back, and that he would

probably have the second weapon in a

briefcase or satchel with him." The

information also was to the effect that

Ruggles was armed and dangerous and was

involved in two shoot-outs--one in Orange

County and one in Beverly Hills.

The foregoing information was

67.

communicated to the surveillance team who

were to conduct surveillance the following

morning (Jan. 3, 1979) with instructions

that if Ruggles was leaving the County of

Los Angeles he was to be stopped and

arrested. Officer McSeveney was not

present when defendant Ruggles was

arrested.

Witness Jerry Lee Brooks, who had 18

years experience with the special

investigation section of the detective

investigative support division of the

Los Angeles Police Department, was with

the team surveilling defendant Ruggles on

the morning of January 3, 1979.

Officer Brooks testified that before

starting the surveillance other officers

gave him a description of the defendant,

the vehicle he would be driving with the

license number and told him that defendant

Ruggles had a prior criminal record and

had probably been involved in numerous

robberies in the Los Angeles County area

and previously was involved in a specific

motel or hotel robbery. Officer Brooks

stated that he was told "That he usually

carried two handguns, one being carried in

the small of his back area, and the other,

usually carried in a brown attache case.

{¥] And when the second gun that he

carried in the small of his back, when it

was not there, was always carried in a

brown attache case. [4] That he and

another individual or other individuals

had been involved in these robberies, or

several robberies. [4] That he may be or

was in the process or may be preparing to

commit another robbery. [4] And that he

would be in the area of Reseda Boulevard

and Ventura Freeway on that particular

date, or thereabouts. [4] I was also

informed that if he should leave, or

during this surveillance, if it appeared

that he was attempting to leave the County

of Los Angeles, that he should be taken

into custody on robbery charges."

Officer Brooks further testified that

at about 7 a.m. on January 3, 1979, in an

unmarked police vehicle along with other

police vehicles surveillance of defendant

was set up in the vicinity of Reseda

Boulevard and the Ventura Freeway in the

San Fernando Valley; that he observed

defendant Ruggles in the red Cougar with

license number described drive northbound

onto Reseda Boulevard from the Ventura

Freeway off ramp; that he (Officer Brooks)

followed the defendant and saw him make

several turns on surface streets and then

park at the:curb,

Officer Brooks then observed "The

defendant, who was the driver, exited the

vehicle. And as he exited the vehicle, he

continuously looked up and down the

street, back and forth, from one side of

the street to the other, in all

directions, . . .3 that “He then walked to

the trunk area of the vehicle. And he was

still looking around. He opened the

trunk. He removed a brown attache case,

Closed the trunk, continued looking in

different directions, walked southbound

and into an apartment building complex

which is located on the southeast corner

of Reseda and whatever that street is";

that defendant was in the apartment

complex for 10 to 15 minutes and he

(Officer Brooks) saw “He exited the

apartment building complex and walked

towards the car, once again looking up and

down the streets, or in different

70.

directions, went to the trunk of the

vehicle, opened the trunk, placed the

briefcase in -- the same briefcase in the

trunk of the vehicle, closed it, got into

the vehicle, drove it off, westbound on

Reseda to, I mean, wextwound [sic] towards

Reseda and then southbound on Reseda

towards the freeway."

Officer Brooks further testified that

he earlier had received information

specifically in respect to the attache or

briefcase. "That at least one of the guns

that the defendant had was kept in that

particular briefcase, and when he was not

carrying the other gun that he usually

carried in the small of his back, it was

also in the briefcase."

Officer Brooks. followed defendant who

first stopped in a gas station for a few

minutes and then continued south on Reseda

Boulevard to the Ventura Freeway and made

a right-hand turn onto the on ramp of the

Ventura Freeway westbound; that when it

appeared defendant Ruggles was going to

leave Los Angeles County area, defendant's

vehicle was stopped and he was placed

under arrest.

71.

Officer Brooks stated the defendant's

vehicle was traveling in the number one

(fast lane) of the Freeway and a marked

black and white police car with red lights

on pulled up behind defendant's vehicle

and it pulled into the center divider;

that the following marked police vehicle

pulled up Sehind defendant's vehicle

followed by several other police vehicles

pulled in behind the black and white while

Officer Brooks pulled up in front of

defendant's vehicle.

As soon as the defendant stopped, he

immediately exited his vehicle and the

officers ordered him to raise his hands

and he complied. The defendant was then

ordered to lay prone on the center divider

area and he was patted down, handcuffed

and informed he was under arrest; that the

defendant was then stood up against a

chainlink fence in the middle of the

freeway center divider. Officer Brooks

peered into defendant's vehicle from the

outside and stated that "In the backseat

I could see, in plain view, what is

commonly referred to as a hype kit or

syringe and needle. And I believe there

72.

*

ort?

was [sic] two of them. But I could

definitely see one complete syringe and

needle. [4] And there was two vials or

little vials of some type, or the type

that I have seen in the doctor's office,

that contain various types of narcotics.

Had a label on the outside. Small label.

There was also a large, liquid container

with tinfoil around it laying on the

backseat. ... First thing I observed,

or, back up a bit, when I peered into the

vehicle, I observed a small hand-held

scanner, commonly known as a scanner,

which picks up police calls, in the front

seat of the vehicle.”

The officer testified he had four or

five years experience in narcotics and

formed the opinion "That the needle and

syrine was -- a needle and syringe,

commonly known as hype kit, and the vials

were vials that contained some type of

liquid narcotics or tranquilizer. But it

is the particular type of bottle not

normally dispensed over the counter, like

if you would buy it from a pharmacy. [4]

Q Did you believe the items were

controlled substance? [4] A Yes."

73.

Officer Brooks asked Ruggles if he

could search the trunk. The defendant

said: "Shit, I don't care. Go ahead."

Officer Brooks went to defendant's car and

leoked in the ignition but the key wasn't

there and Ruggles then either took it out

of his pocket or was still holding it in

his hands and opened the trunk.

When Officer Brooks opened the trunk,

he observed "a large, approximately 18

inches by 11 inches by 3 or 4 inches, what

is called a Bearcat scanner, which picks

up police calls. It has a wide-range of

different frequencies. ... sitting

right next to the brown briefcase." In

addition, there was "The brown briefcase.

There was another brown bag. I believe

there was an overcoat. There was a change

of clothes of some type. [4] There were

other items in the trunk of the vehicle.

I can't recall which particular item was

in the briefcase and which item was laying

scattered about the trunk. But there were

also masks, halloween-type masks with tape

over the eyeholes, four or five of those.

Handcuffs, a sap, a brown or stocking

knit-type cap. Numerous other -- on,

74.

there was a manual that is produced or put

out by, I believe, one of the scanner

companies that said, ‘Police Frequencies,'

which gave all the police frequencies that

could be picked up on these particular

scanners throughout the Southern

California or local area."

Officer Brooks, who opened the tan

briefcase assisted in preparing an |

itemized property report, stated that the

briefcase contained “Both guns, the

ammunition, the holster, sap, handcuffs,

some of the gloves. There were quite a

few gloves. Flashlight, a bandanna, I

think the -- I said handcuffs and a sap.

{"] Q Those items were in the briefcase;

is that correct? [4] A Yes."

Officer Brooks also opened two duffel

type bags in the trunk besides the

briefcase. In one bag “was a hammer, or

about a three-foot sledge-type hammer,

miscellaneous clothes in the one bag.

There were three hats found in the car, or

two hats and a knit cap.

Officer Brooks removed the unlocked

briefcase from the trunk and opened it by

releasing “a couple of catches". One of

75.

the guns was in an unzipped shaving-type

case.

Defendant Ruggles testified only as to

the events surrounding his arrest. He

stated that around 8 o'clock on January 3

he was driving westbound in the number one

(fast) lane of the Ventura Freeway when a

police car came up behind him with its red

lights on; that he pulled into the center

divider and stopped and got out and an

officer with a shotgun said: "Put your

hands in the air and lay on the ground";

that he (Ruggles) hesitated not more than

two seconds and the officer said: "Or

I'll blow your fucking head off"; that the

officers rushed in and put his arms behind

him; that an cfficer said: “It is lucky

that you didn't make a move towards your

coat"; that one officer said: "Can I look

in your car?" and he (Ruggles) said:

"Shit, you are going to do what you want

to do anyway” and an officer yanked the

keys from his hand. Defendant Ruggles

denied that he gave the officers consent

to go into the trunk of his car.

The parties having rested, argued and

submitted the matter, the trial court

76..

denied defendant's motion to suppress

finding that the officers had probable

cause to arrest defendant Ruggles and

therefore the right to stop his vehicle;

that the narcotics paraphernalia inside

the vehicle observed through the window

was in plain view and subject to seizure;

and that although defendant did not

voluntarily consent to the search of the

trunk since any such consent constituted a

submission to the assertion of authority,

the officers were nevertheless justified

in searching the trunk and the briefcase

and bags therein since there was a

definite nexus between the information

known to the police officers and the

contents thereof consisting of weapons and

other possible instrumentalities of crime.

DI ION

I agree with the majority opinion (1)

that the police officers had probable

cause to arrest defendant Ruggles and (2)

that they had probable cause to conduct a

warrantless search of the trunk of his

car.

77.

However, I disagree with that portion

of the majority opinion which concludes

that a reversal is necessary because “the

search [openingj of defendant's

{unlatched] briefcase [at the scene of the

lawful arrest) was illegal."

It should be noted that the case at

bench was remanded to this court for

further consideration in light of the

Robbins decision.

The Deputy Attorney General

representing the People argued that the

establishment of the “bright line” rule in

Robbins is without force as precedent

citing Eaton v. Price (1960) 364 U.S. 263,

264; North v. Superior Court (1972)

8 Cal.3d 301, 380; People v. McKinnon

(1972) 7 Cal.3d 899, 911. He points to

the fact that in Robbins the four justices

forming the plurality of the court

(Stewart, Brennan, White and Marshall,

JJ.) expressly disagreed with Justice

Powell while Justice Powell, who concurred

in the judgment and filed an opinion,

expressly disagreed with the plurality of

the court on the requirement as to when a

search warrant is necessary to search a

78.

closed container found in the trunk or

storage area of a car. (See 49 U.S.L.Week

at pp. 4907, 4909.) Since Chief Justice

Burger only concurred in the judgment

while Justices Blackmun, Rehnquist and

Stevens filed dissenting opinions, the

issue raised by the plurality opinion in

Robbins was in fact considered by an

equally divided court, hence was not

actually decided, and, therefore, “is

without force as precedent." (Eaton v.

Price, supra, 364 U.S. at p. 264; North v.

Superior Court, supra, 8 Cal.3d at p. 308;

People v. McKinnon, supra, 7 Cal.3d at p.

911.)

The majority opinion in the case at

bench apparently agrees that since the new

“bright line" rule which was sought to be

established by Justice Stewart was signed

by only a plurality, it did not succeed.

However, the majority opinion argues that

the plurality holding should not be

disregarded because of the language in

Justice Powell's separate opinion.

Irrespective of the precedential

weight to be given to the plurality in

79.

Robbins ,>” in my opinion the case at bench

is not only markedly factually distin-

guishable from Robbins, but the warrant-

less search of the briefcage was justified

in view of the exigent circumstances

confronting the officers at the scene of

the arrest and was in any event justified

under the recognized and accepted doctrine

of inevitable discovery.

The factual distinctions between

Robbins and the instant case are glaring.

In Robbins the California Highway Patrol

stopped defendant Robbins’ station wagon

because he was driving erratically. When

Robbins opened the car door to get his

registration, the officers smelled

3/ as a matter of interest it is

noted that if defendant Ruggles’ parole

agent had accompanied the police officers

to the scene of the arrest, the agent,

having been fully informed, would have

been fully justified in making the search

of the briefcase merely because of the

parolee : .atus of the defendant. (See

People v. Natale (1978) 77 Cal.App.3d 568,

574.)

marijuana smoke. The officers in

searching the passenger compartment found

marijuana as well as equipment for using

it. The officers opened the tailgate of

the station wagon and located a handle set

flush in the deck and lifted it to uncover

a recessed luggage compartment where they

discovered a tote bag and two packages

wrapped in green opaque plastic. Upon

unwrapping the packages, the police found

that each contained 15 pounds of

marijuana.

In the case at bench, unlike in

Robbins where the officers stopped the

defendant for operating his vehicle in an

erratic manner, the officers stopped

defendant Ruggles because they had

probable cause to arrest him for the armed

robbery of the Nutel Motel where he had

posed as a law enforcement officer; was a

parolee who had been convicted of numerous

other armed robberies; and from a reliable

informant had learned that he was on his

way to rob a jewelry store in the Santa

Barbara area and was leaving their

jurisdiction.

It is of interest to note that the

81.

plurality opinion in Robbins disposed of

the argument that the officers were justi-

fied in opening the marijuana packages

because “any experienced observer could

have inferred from the appearance of the

packages that they contained bricks of

marijuana” by pointing out that the

testimony of one of the arresting officers

was somewhat obscure in that he had never

seen such packages before but had heard

contraband was packaged that way. The

Plurality stated that such vague testimony

certainly did not establish that marijuana

is ordinarily “packaged this way".

Here, the officers’ testimony was not

vague or obscure. They had reliable

information that defendant Ruggles,

according to the testimony of Officers

McSeveney and Brooks, would have two

handguns; that he (Ruggles) normally

carried one in the small of his back and

the other in a brown briefcase with him

and if the one was not carried in the

small of his back it was carried in the

attache case with the other one. The

officers had observed Ruggles a short time

before his arrest on the Ventura Freeway

62.

take a brown attache case, look around,

enter an apartment building complex,

return 10 to 15 minutes later, look around

and put the brown attache case back in the

trunk. The trial judge in denying

defendant's motion to suppress the

evidence found there was a definite nexus

between the information known to the

police and the contents consisting of

weapons and other possible instrumentali-

ties of crime.

The instant case does not require a

reversal because the plurality's language

in Robbins (49 U.S.L.Week at p. 4908)

expressly acknowledges by implication that

"the presence of any circumstances that

would constitute a valid exception to this

general Rule, .. ." is still cognizable

even under Robbins.

(In our pre-Robbins court of appeal

unpublished opinion filed June 16, 1980,

unanimously concurred in by Hanson, J.;

Lillie, Acting P. J.; and Radin, J.*, we

held the existence of the exigent

*Assigned by the Chairperson of the

Judicial Council.

83.

circumstances exception justified opening

the briefcase and the opinion passed

muster by the state Supreme Court since

defendant's petition for a hearing before

that court was denied.)

Officers may conduct a warrantless

search provided the following two elements

are satisfied: (1) exigent circumstances

which render the obtaining of the warrant

an impossible or impractical alternative

and (2) probable cause exists for the

search. (People v. Huff (1978)

83 Cal.App.3d 549.)

Here, there was probable cause for the

search because the officers had knowledge

that the probable contents of the brown

attache case consisted of two handguns and

probably other instrumentalities used in

robberies already committed and being

transported for use in a robbery of a

jewelry store in Santa Barbara. While the

briefcase may have been under the control

of the police, the totality-of-the-

circumstances includes the fact that the

defendant was arrested in the center

divider of a freeway with vehicles

speeding by a few feet away at speeds in

84.

excess of 55 mph. This locale

necessitated quick action by the officers

to confirm the presence of the dangerous

weapons and to secure them. By merely

flipping a finger, the police unlatched

the unlocked catches and confirmed the

presence of two guns, ammunition, a sap,

handcuffs, flashlight and gloves in the

briefcase. I would hold that the

totality-of-the-circumstances constituted

exigent circumstances rendering the

obtaining of a warrant an impractical

alternative.

The majority opinion also relies on

the California case of People v. Minjares

(1979) 24 Cal.34 410, (Clark, J., dis.) es

authority requiring a reversal. The

Minjares case is factually

distinguishable. In Minjares after the

defendant was arrested, his vehicle was

towed to a city-owned storage yard and

there the officers picked the lock to gain

entry. The Minjares court held that a

warrant must be obtained for a search of a

container found in the trunk unless

exigent circumstances dictate an immediate

search and suppressed the container's

contents. By contrast, the officers in

the case at bench lawfully gained access

to the trunk area at the time they appre-

hended defendant on the freeway. In view

of the fact that officers had reason to

believe Ruggles’ briefcase contained

weapons, Clearly the exigent circumstances

existed that justified the police flipping

open the catches on the unlocked briefcase

when they stopped defendant. These

circumstances satisfied Robbins and the

result does not run afoul of the principle

set forth in Minjares.

In any event I would hold the

"doctrine of inevitable discovery”

applies.

The “doctrine of inevitable discovery"

is discussed at length in People v.

Superior Court (Tunch) (1978) 80 Cal.App.

34 665, and is defined at page 673 as

follows: "‘Although typically any

evidence obtained, even indirectly,

through the illegal actions of police is

inadmissible as “fruit of the poisonous

tree," where the court finds that the

challenged evidence would have been

eventually secured through legal means

regardless of the improper official

conduct, the inevitable discovery

exception allows the evidence to be

admitted. The doctrine was developed to

prevent unjustly granting criminals

immunity from prosecution.’ (Novikoff,

The Inevitable Discovery Exception to the

Constitutional Exclusionary Rules (1974)

74 Colum.L.Rev. 88; fns. omitted.)"

The recent consolidated cases of

People v. Bullwinkle (1980) 105 Cal.App.3d

82, point out that it is proper to search

a defendant's purse in the course of

booking defendant into the jail, stating

at page 87: "[I]}t has long been the rule

that the police may search the person and

the effects of a prisoner who is to be

booked into jail, in order to prevent the

introduction of contraband or weapons into

the jail and in order to account for and

safeguard the property taken from the

prisoner. (United States v. rds

(1974) 415 U.S. 800, 804-805 & fn. 6, 807

[. « -]# People v. Ross (1967) 67 Cal.2d

64, 70 [. . -})# [revd. on other grounds

sub nom. Ross v. California (1968)

391 U.S. 470 (. . .)]# People v. Maher

87.

(1976) 17 Cal.3d 196, 200-201 [. . .]3

People v. Rogers (1966) 241 Cal.App.2d

384, 389 [. . .}# People v. Superior Court

(Murray) (1973) 30 Cal.App.3d 257, 263

[. - »-]# People v. Balassy (1973)

30 Cal.App.3d 614, 623 [. . .]# People v.

Gilliam (1974) 41 Cal.App.3d 181, 189

[. » «])# People v. Remiro (1979) 89 Cal.

App.3d 809, 835 [. . .]# Pen. Code,

§ 1412; Gov. Code, § 26640.)

"Where it is shown that a suspect

would have been jailed and thus subject to

a booking search, the fact that a thorough

search of the booking type occurs prior 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

(1978) 81 Cal.App.3d 999, 1008-1009

[. - +] People v. Flores (1979) 100 Cal.

App. 3d 221, 229-230 {. +. ols see People Ve

Superior Court (Simon) (1972) 7 Cal.3d

186, 208-209 [. . .] People v. Longwill

(1975) 14 Cal.3d 943, 948 [. . .]# People

v. Brown (1979) 88 Cal.App.3d 283, 293

[. oho)?

The court also stated at pages 88-89:

"(T]he purposes of a booking search

include not only to prevent contraband and

weapons from entering the jail, but also

to account for the valuables and other

property of the prisoner, which the police

are mandated by statute to do. (P99)

Code, § 1412; Gov. Code, § 26640.)

4/ tna footnote at this point the

court states:

""When money or other property is

taken from a defendant, arrested upon

a charge of a public offense, the

officer taking it must at the time

give duplicate receipts therefor, spe-

cifying particularly the amount of

money or the kind of property taken;

one of which receipts he must deliver

to the defendant and the other of

which he must forthwith file with the

clerk of the court to which the depo-

sitions and statement are to be sent.

When such property is taken by the

police-otticer of any incorporated

Pootnote 4 continued

city or town, he must deliver one of

the receipts to the defendant, and

In my opinion, it would not be

unreasonable police conduct to have taken

the "closed" but unlocked briefcase along

with the other loose items found both in

one, with the property, at once to the

clerk or other person in charge of the

police-office in such city or town.'

"Government Code section 26640

provides: ‘The sheriff shall take

charge of, safely keep, and keep a

correct account of, all money and

valuables found on each prisoner when

delivered at the county jail. Except

when otherwise ordered by a court of

competent jurisdiction, the sheriff

shall pay such money or sums therefrom

and deliver such valuables or portions

thereof as the prisoner directs and

shall pay and deliver all the

remainder of his money and valuables

to the prisoner or to his order upon

his release from the jail or to his

legal representative in case of his

death or insanity.'" (Italics added.)

the car compartment and in the trunk, such

as the hype kit, syringe and needle, the

vials, the small hand-held scanner, the

Bearcat scanner, the Halloween-type masks

with tape over the eyes and the two duffel

bags, with the defendant to the police

station for booking. If this had

occurred, the contents of the briefcase

would have inevitably been disclosed at

the time of booking at the police station

during inventory as required by law and

which did not require a search warrant.

The majority asserts that application

of the inevitable discovery doctrine is

based on “sophistry, [and] would

constitute a practical repeal of the

Fourth Amendment." Not so. It is a well

established doctrine recognized by the

courts of this state and the United States

Supreme Court.

The doctrine of inevitable discovery

was relied upon by the panel of this court

in its pre-Robbins opinion filed June 16,

1980, which passed muster by the State

Supreme Court in that it denied

defendant's petition for a hearing.

Moreover, the United States Supreme

91.

Court has not disapproved the “accelerated

booking search" theory. (Bullwinkle v.

California filed November 17, 1980)

_. ~-U.S. __,* involved an appeal

challenging the conclusion in People v.

Bullwinkle, supra, 105 Cal.App.3d 82, that

an “accelerated booking search” of a purse

of a felony-arrestee is constitutional

despite the United States Supreme Court

holding in United States v. Chadwick

(1977) 433 U.S. 1. The United States

Supreme Court dismissed the appeal “for

want of a substantial federal question."

(See Bullwinkle v. California, supra.)

Dismissal of appeals for want of a

substantial federal question constitutes a

decision “on the merits" under Hicks v.

Miranda (1975) 422 U.S. 332, 344-345.

Finally, there is not one word in the

Fourth Amendment about "illegal" police

activity. The operative word is

"unreasonable". Only “unreasonable”

police activity is prohibited. Where

police officers in the discharge of their

*Advance Report Citation: 49 U.S.L.Week

3371.

official duties “insur[ing] domestic

tranquility" act “reasonably” in

conducting searches and seizures_there is

no Fourth Amendment prohibition.

Reasonable minds may differ as to

whether police conduct was reasonable or

unreasonable under the totality-of-the-

circumstances of any particular case. In

view of the totality-of-the-circumstances

of the instant case, as previously set

forth, the police officers’ conduct

constituted good police work and was

reasonably justified in all respects.

Hopefully, this case will wend its way

back to the United States Supreme Court.

In view of the retiremen'. of Justice

Stewart and the addition of a new member

to the court, it may rethink the plurality

3/ The Fourth Amendment provides, in

pertinent part, that 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, .. ."

(Italics added.)

93.

position in Robbins and adopt the posi-

tions expressed by Justices Blackmun,

Rehnquist and Stevens in their dissents.

As Justice Rehnquist pointed out in his

dissent in Robbins, “Not only has

historical study ‘suggested that in

emphasizing the warrant requirement over

the reasonableness of the search the Court

has “stood the fourth amendment on its

head" from a historical standpoint.’

Coolidge, supra, at 492 (Harlan, J.,

concurring) (quoting T. Taylor, Two

Studies in Constitutional Interpretation,

23-24 (1969)), but the Court has failed to

appreciate the impact of its decisions,

not mandated by the Fourth Amendment, on

law enforcement. .. ." (Robbins v.

California, supra, 453 U.S. , -)*

I would affirm the judgment.

HANSON (Thaxton), J.

*Advance Report Citation: 49 U.S.L.Week

4906, 4910-4911.

94.

CLAY ROBBINS, Clerk

San Francisco, California 94102

JAN 27 1982

I have this day filed Order

Clerk

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

Minutes of Division One February 3, 1982

35011 People v. David Wendell Ruggles

THE COURT:

Application for stay of issuance of

remittitur and for order deferring

execution and enforcement of judgment

denied.

I would grant: Hanson, J.

CLAY ROBBINS, Clerk

The Fourth Amendment to the United

States Constitution reads:

"(SECTION 1.] The right of the

people to be secure in their persons,

houses, papers, effects, against

unreasonable searches and seizures

shall not be violated, and no warrants

shall issue, but upon probable cause,

supported by oath or affirmation, and

particularly describing the place to be

searched, and the persons or things to

be seized.

The Fourteenth Amendment to the United

States Constitution reads:

"Citizenship

"SECTION 1. All persons born or

naturalized in the United States, and

subject to the jurisdiction thereof,

are citizens of the United States and

of the State wherein they reside. No

State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

“Apportionment of Representatives

"SECTION 2. Representatives shall

be apportioned among the several States

according to their respective numbers,

counting the whole number of persons

in each State, excluding Indians not

taxed. But when the right to vote at

any election for the choice of electors

for President and Vice President of the

United States, Representatives in

Congress, the executive and judicial

officers of a State, or the members of

the Legislature thereof, is denied to

any of the male inhabitants of such

State, being twenty-one years of age,

and citizens of the United States, or

in any way abridged, except for

participation in rebellion, or other

crime, the basis of representation

therein shall be reduced in the

100.

proportion which the number of such

male citizens shall bear to the whole

number of male citizens twenty-one

years of age in such State.

"Disqualification for Public Office

"SECTION 3. No person shall be a

Senator or Representative in Congress,

or elector of President and Vice

President, or hold any office, civil or

military, under the United States, or

under any State, who, having previously

taken an oath, as a member of Congress,

or as an officer of the United States,

Or as a member of any State

Legislature, or as an executive or

judicial officer of the State, to

support the Constitution of the United

States, shall have engaged in

insurrection or rebellion against the

same, or given aid or comfort to the

enemies thereof. But Congress may by a

vote of two-tlirds of each House,

remove such disability.

101.

"Public Debt, Guarantee of

"SECTION 4. The validity of the

public debt of the United States,

authorized by law, including debts

incurred for payment of pensions and

bounties for services in suppressing

insurrection or rebellion, shall not be

questioned. But neither the United

States nor any State shall assume or

pay any debt or obligation incurred in

aid of insurrection or rebellion

against the United States, or any claim

for the loss or emancipation of any

Slave; but all such debts, obligations

and claims shall be held illegal and

void.

"Power of Congress

"SECTION 5. The Congress shall

have the power to enforce, by appropri-

ate legislation, the provisions of this

article.

102.

Section 1538.5 of the California Penal

Code reads:

"Motion to return property or suppress

evidence

"Grounds

"(a) A defendant may move for the

return of property or to suppress as

evidence any tangible or intangible

thing obtained as a result of a search

or seizure on either of the following

grounds:

"(1) The search or seizure without

a warrant was unreasonable.

"(2) The search or seizure with a

warrant was unreasonable because

(i) the warrant is insufficient on its

face; (ii) the property or evidence

obtained is not that described in the

warrant; (iii) there was not probable

cause for the issuance of the warrant;

(iv) the method of execution of the

warrant violated federal or state

constitutional standards; (v) there was

any other violation of federal or state

103.

constitutional standards.

"First Hearing

"(b) When consistent with the

procedures set forth in this section

and subject to the provisions of

Section 170 through 170.6 of the Code

of Civil Procedure, the motion should

first be heard by the magistrate who

issued the search warrant if there is a

warrant.

"Evidence

"(c) Whenever a search or seizure

motion is made in the municipal,

justice or superior court as provided

in this section, the judge or

magistrate shall receive evidence on

any issue of fact nevessary to

determine the motion.

"Effect of granting motion

"(d) If a search or seizure motion

is granted pursuant to the proceedings

104.

authorized by this section, the

property or evidence shall not be

admissible against the movant at any

trial or other hearing unless further

proceedings authorized by this section

or Section 1238 or Section 1466 are

utilized by the people.

"Return of property

"(e) If a search or seizure motion

is granted at a trial, the property

shall be returned upon order of the

court unless it is otherwise subject to

lawful detention. If the motion is

granted at a special hearing, the

property shall be returned upon order

of the court only if, after the

conclusion of any further proceedings

authorized by this section or Section

1238 or Section 1466, the property is

not subject to lawful detention or if

the time for initiating such proceed-

ings has expired, whichever occurs

last. If the motion is granted at a

preliminary hearing, the property shall

be returned upon order of court after

105.

10 days unless the property is other-

wise subject to lawful detention or

unless, within that time, further

proceedings authorized by this section

or Section 1238 are utilized; if they

are utilized, the property shall be

returned only if, after the conclusion

of such proceedings, the property is no

longer subject to lawful detention.

"Felony; motion at preliminary

hearing

"(f) If the property or evidence

relates to a felony offense initiated

by a complaint, the motion may be made

in the mcaicipal or justice court at

the preliminary hearing.

"Misdemeanor; pre-trial motion

at special hearing

"(g) If the property or evidence

relates to a misdemeanor complaint, the

motion shall be made in the municipal

or justice court before trial and heard

prior te trial at a special hearing

106.

relating to the validity of the search

or seizure. If the property or

evidence relates to a misdemeanor filed

together with a felony, the procedure

provided for a felony in this section

and Sections 1238 and 1539 shall be

applicable.

.

"Motion at trial '

"(h) If, prior to the trial of a

felony misdemeanor, opportunity for

this motion did not exist or the defen-

dant 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.

"Felony; renewal of motion

at special hearing; review

"(i) If the property or evidence

obtained relates to a felony offense

initiated by complaint and the

defendant was held to answer at the

preliminary hearing, or if the property

107.

or evidence relates to a felony offense

initiated by indiotment, the defendant

shall have the right to renew or make

the motion in the superior court at a

special hearing relating to the

validity of the search or seizure which

shall be heard prior to trial and at

least 10 days after notice to the

people unless the people are willing to

waive a portion of this time. The

defendant shall have the right to

litigate the validity of a search or

seizure de novo on the basis of the

evidence presented at a special

hearing. After the special hearing is

held in the superior court, any review

thereafter desired by the defendant

prior to trial shall be by means of an

extraordinary writ of mandate or

prohibition filed within 30 days after

the denial of his motion at the special

hearing.

108.

"Relitigation of question after

grant of motion; new evidence;

review

"(j) If the property or evidence

relates to a felony offense initiated

by complaint and the defendant's motion

for the return of the property or

suppression of the evidence at the

preliminary hearing is granted, and if

the defendant is not held to answer at

the preliminary hearing, the people may

file a new complaint or seek an

indictment after the preliminary

hearing, and the ruling at the prior

hearing shall not be binding in any

subsequent proceeding. If the property

or evidence relates to a felony offense

initiated by complaint and the

defendant's motion for the return or

suppression of the property or evidence

at the preliminary hearing is granted,

and if the defendant is held to answer

at the preliminary hearing, the ruling

at the preliminary hearing shall be

binding upon the people unless, upon

notice to the defendant and the court

109.

in which the preliminary hearing was

held and upon the filing of an

information, the people within 15 days

after the preliminary hearing request

in the superior court a special

hearing, in which case the validity of

the search or seizure shall be

relitigated de novo on the basis of the

evidence presented at the special

hearing, and the defendant shall be

entitled, as a matter of right, to a

continuance of the special hearing for

a period of time up to 30 days. If

defendant's motion is granted at a

special hearing in the superior court,

the people, if they have additional

evidence relating to the motion and not

presented at the special hearing, shall

have the right to show good cause at

the trial why such evidence was not

presented at the special hearing and

why the prior ruling at the special

he.ring should not be binding, or the

people may seek appellate review as

provided in subdivision (0), unless the

court prior to the time such review is

sought has dismissed the case pursuant

a7%

to Section 1385. If the property or

evidence seized relates solely to a

misdemeanor complaint, and the

defendant made a motion for the return

of property or the suppression of

evidence in the municipal court or

justice court prior to trial, both the

people and defendant shall have the

right to appeal any decision of that

court relating to that motion to the

superior court of the county in which

such inferior court-is located, in

accordance with the California Rules of

Court provisions governing appeals from

municipal and justice courts in

criminal cases. If the people

prosecute review by appeal or writ to

decision, or any review thereof, in a

felony or misdemeanor case, it shall be

binding upon them.

"Release of defendant pending

resumption of proceedings in

trial court

"(k) If the defendant's motion to

return property or suppress evidence is

1ll.

granted and the case is dismissed

pursuant to Section 1385, or the people

appeal in a misdemeanor case pursuant

to subdivision (j), the defendant shall

be released pursuant to Section 1318 if

he is in custody and not returned to

custody unless the proceedings are

resumed in the trial court and he is

lawfully ordered by the court to be

returned to custody.

"If the defendant's motion to

return property or suppress evidence is

granted and the people file a petition

for writ of mandate or prohibition

pursuant to subdivision (o) or a notice

of intention to file such a petition,

the defendant shall be released

pursuant to Section 1318 unless (1) he

is charged with a capital offense in a

case where the proof is evident and the

- presumption great, or (2) he is charged

with a noncapital offense defined in

Chapter 1 (commencing with Section 187)

of Title 8 of Part 1 and the court

orders that the defendant be discharged

from actual custody upon bail.

112.

"Stay; time for trial;

dismissal; continuance;

bail or release

"(1) If the defendant's motion to

return property or suppress evidence is

granted, the trial of a criminal case

shall be stayed to a specified date

pending the termination in the

appellate courts of this state. of the

proceedings provided for in this

section, Section 1238, or Section 1466

and, except upon stipulation of the

parties, pending the time for the

initiation of such proceedings. Upon

the termination of such proceedings,

the defendant shall be brought to trial

as provided by Section 1382, and

subject to the provisions of Section

1382, whenever the people have sought

and been denied appellate review

pursuant to subdivision (0), the

defendant shall be entitled to have the

action dismissed if he is not brought

to trial within 30 days of the date of

the order which is the last denial of

the petition. Nothing contained in

113.

this subdivision shall prohibit a

court, at the same time as its rules

upon the search and seizure motion,

from dismissing a case pursuant to

Section 1385 when such dismissal is

upon the court's own motion and is

based upon an order at the special

hearing granting defendant's motion to

return property or suppress evidence.

In a misdemeanor case, the defendant

shall be entitled to a continuance of

up to 30 days if he intends to file a

motion to return property or suppress

evidence and needs this time to prepare

for the special hearing on the motion.

In case of an appeal by the defendant

in a misdemeanor case from the denial

of such motion, he shall be entitled to

bail as a matter of right, and, in the

discretion of the trial or appellate

court, may be released on his own

recognizance pursuant to Section

1318.4.

114.

"Exclusive pre-trial remedy;

review on appeal after

conviction

"“(m) The proceedings provided for

in this section, Section 995, Section

1238, and Section 1466 shall constitute

the sole and exclusive remedies prior

to conviction to test the unreasonable-

ness of a search or seizure where the

person making the motion for the return

of property or the suppression of

evidence is a defendant in a criminal

case and the property or thing has been

offered or will be offered as evidence

against him. A defendant may seek

further review of the validity of a

search or seizure on appeal from a

conviction in a criminal case notwith-

standing the fact that such judgment of

conviction is predicated upon a plea of

guilty. Such review on appeal may be

obtained by the defendant providing

that at some stage of the proceedings

prior to conviction he has moved for

the return of property or the

suppression of the evidence.

115.

"Motion on other grounds;

existing law and procedure

"(n) Nothing contained in this

section shall prohibit a person from

making a motion, otherwise permitted by

law, to return property, brought on the

ground that the property obtained is

protected by the free speech and press

provisions of the Federal and State

Constitutions. Nothing in this section

shall be construed as altering (i) the

law of standing to raise the issue of an

unreasonable search or seizure; (ii) the

law relating to the status of the person

conducting the search or seizure; (iii)

the law relating to the burden of proof

regarding the search or seizure; (iv) the

law relating to the reasonableness of a

search or seizure regardless of any

warrant which may have been utilized; or

(v) the procedure and law relating to a

motion made pursuant to Section 995 or

the procedures which may be initiated

after the granting or denial of such a

motion.

116.

"People's petition for

mandate or prohibition;

notice of intention

"(o) Within 30 days after a

defendant's motion is granted at a

special hearing in the superior court,

the people may file a petition for writ

of mandate or prohibition, seeking

appellate review of the ruling regarding

the search or seizure motion. If the

trial of a criminal case is set for a

date which is less than 30 days from the

granting of a defendant's motion at a

special hearing in the superior court,

the people, if they have not filed such a

petition and wish to preserve their right

to file such a petition, shall file in

the superior court on or before the trial

date or within 10 days after the special

hearing, whichever occurs last, a notice

of intention to file such a petition and

shall serve a copy of the notice upon the

defendant."

117.

DEPT. 129

MARCH 8, 1982

Date:

HONORABLE RONALD M. GEORGE, JUDGE

4 :

ee

DEPT. 129

MARCH 16, 1982

HONORABLE RONALD M. GEORGE, JUDGE

Date:

A 347889

PEOPLE OF THE STATE OF CALIFORNIA

vs.

—- , 1982, of WILLIAM H. REHNQUIST,

Upon receipt ee eS ee

ie Hoge

uoHIsodd

. ~*he tote owt

tl) et te a ne Oe ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

61-1778

STATE OF CALIFORNIA,

Petitioner,

Respondent.

APPLICATION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

PAUL W. GRACE, ESQ. .

1301 South Scott Street

Suite 238

Arlington, Virginia 22204

Telephone: (202) 377-6424

STEPHEN YAGMAN, ESQ.

10880 Wilshire Boulevard

Suite 1900

Los Angeles, California 90024

Telephone: (213) 475-4988

- *

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NO. 81-1778

STATE OF CALIFORNIA,

Petitioner,

vs.

DAVID WENDELL RUGGLES,

Respondent.

APPLICATION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

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

THE ASSOCIATE JUSTICES OF THE UNITED STATES SUPREME COURT

Respondent, David Wendell Ruggles, respectfully seeks

leave to proceed in forma pauperis without payment of fees

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

is annexed.

1301 South Scott Street

Suite 238

Arlington, Virginia 22204

(202) 377-6424

Washington, D.C.

June 24, 1982

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NO. 81-1778

STATE OF CALIFORNIA,

Petitioner,

vs.

DAVID WENDELL RUGGLES,

Respondent.

AFFIDAVIT OF PAUL W. GRACE

WASHINGTON

DISTRICT OF COLUMBIA)

PAUL W. GRACE, 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 appiication for leave to proceed here in forma

pauperis without payment of fees and costs.

Mr. Ruggles was represented at trial in the Superior

Court of the State of California for the County of Los

Angeles by an attorney appwinted by the court because he did

not have sufficient funds to retain private counsel. I was

appointed by the Court of Appeal of the State of California,

Second Appellate District, to represent Mr. Ruggles on appeal

because he did not have sufficient funds to retain private

Counsel. I prepared the brief for Mr. Ruggles on that appeal

as well as a Petition for Hearing in the California Supreme

Court, which was denied. .

An Application for Leave to Proceed in Forma Pauperis

and a Petition for a Writ of Certiorari were filed on behalf

< €

1 of Mr. Ruggles in this Court (No. 80-5677). On July 2, 1981,

2 this Court granted Mr. Ruggles’ application and petition,

3 vacated the decision of the state court, and remanded for

4 reconsideration in light of Robbins v. California.

5 I represented Mr. Ruggles on remand, and the Court of

| 6 Appeal reversed his conviction. The State of California has

7 petitioned this Court for certiorari after a Petition for

: 8 Hearing was denied by the California Supreme Court.

: | 9 Mr. Ruggles is still incarcerated in California. I have

Ac ee 10] no further information which would suggest that his financial

bs 4 ll status has changed.

. 3 12 WHEREFORE, it is respectfully prayed that respondent's

: és j 13 application for leave to proceed herein in forma pauperis be

ie 4 14 granted.

6 Sad 15] pated: June 24, 1982

oe 16

: 17 L/, Prmoe

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i 19 Subscribed and sworn to before me

¥ a0 tnis2¢Aaay of June, 1982.

| 21

22

23

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25

26

27

28

29

30

31

32

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ae ZI r | RECEIVED |

: a JUN 2 5 1982

. ORIGINAL OFFICE OF THE CLERK

SUPREME COURT, U.S.

| IN THE

: SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1961

ie NO. 81-1778

; STATE OF CALIFORNIA,

; Petitioner,

- vs.

“33 DAVID WENDELL RUGGLES,

od Respondent.

<4 RESPONSE OF RESPONDENT IN OPPOSITION

7 TO PETITION POR WRIT OF CERTIORARI

PAUL W. GRACE, ESQ.

1301 South Scott Street

Suite 238

Arlington, Virginia 22204

Telephone: (202) 377-6424

STEPHEN YAGMAN, ESQ.

10880 Wilshire Boulevard

Suite 1900

4 Los Angeles, California 90024

, | Telephone: (213) 475-4988

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THE COURT OF APPEAL CORRECTLY CONCLUDED

THAT THE WARRANTLESS SEARCH OF THE

BRIEFCASE WAS IMPROPER

CONCLUS ION

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TABLE OF AUTHORITIES

Cases

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

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

Chambers v. Maroney, 267 U.S. 42 (1970)

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

Recple v. Min Ares. 24 Cal. 34 410, cert.

’ We 887 (1979)

Robbins v. California, 453 U.S. 420 (1981)

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

United States v. Ross, 50 U.S.L.W. 4580 (U.S.

2, 4

5,6,7

4,5,6,7

.

.

a a oe

oon awe «an F

15

SESSSSRSERESREBSEES &

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

NO. 81-1778

STATE OF CALIFORNIA,

Petitioner,

vs.

DAVID WENDELL RUGGLES,

Respondent.

RESPONSE OF RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

QUESTION PRESENTED

Whether probable cause to believe that a closed, latched

briefcase contains contraband justifies the warrantless search

of the briefcase when the briefcase is placed in the trunk of

an automobile shortly before it is seized by police?

JURISDICTION

The jurisdiction of this Court is invoked pursuant to

Title 28, United States Code, section 1257(3).

THE PROCEEDINGS BELOW

Pollowing denial by the Los Angeles County Superior Court

of respondent Ruggles’ motion to suppress evidence pursuant to

California Penal Code section 1538.5, and pursuant to 4

negotiaced plea bargain, respondent Ruggles agreed to enter

@ piley. of guaity to the first count of an amended information

(roboery and use of a weapon). In return, on motion of

petitioner, State of California, the second count of the

information (possession of a firearm by an ex-felon) and the

oes: awe wN Ff

16

SESSSSRERESEREBSES

O C

single count in a second consolidated case were dismissed.

Respondent Ruggles filed a timely appeal contending that

the warrantless search of the closed, latched attache case

found in the trunk of his car was unreasonable. The decision

of the Superior Court was upheld in an unpublished opinion

(Pet. for Cert. App., p- 1). The California Supreme Court

denied Ruggles’ Petition for Hearing (Pet. for Cert. App., p-

22), but on July 2, 1981, the United States Supreme Court

granted Ruggles’ Application for Leave to Proceed in Forma

Pauperis and his Petition for Certiorari, ordered the judgment

of the California appellate court vacated, and remanded the

case to the California Court of Appeal for further consideration

in light of Robbins v. California, 453 U.S. 420 (1981).

On remand, the California Court of Appeal, Second Appellate

District, Division One reversed the judgment of the Superior

Court, directed the Superior Court to enter an order suppressing!

the evidence found in the briefcase, and ordered a new trial

(Pet. for Cert. App., p- 23, at 52-53). '

Petitioner, State of California, filed a petition for a

rehearing, which was denied on December 9, 1981 (Pet. for

Cert. App., p- 95). The California Supreme Court denied a

hearing on January 27, 1962 (Pet. for Cert. App., p. 96).

A remittitur was issued on February 9, 1982 (Pet. for

Cert. App-.. p- 98) after the Court of Appeal denied the State's

application for stay of issuance of remittitur (Pet. for Cert.

App-. Pp- 97). On March 11, 1982, Justice Rehnquist granted the

State of California's Application for a Stay of Enforcement of

Judgment pending disposition of this Petition for Certiorari.

STATEMENT OF FACTS

The facts relating to the motion to suppress evidence

were summarized by the California Court of naguel in its

e : 7: ~ “>.

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SESSSYURSEREESREBRES &

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Published opinion filed on November 11, 1981. 178 Cal.

Rptr. 231, 233-34 (1961)(Pet. for Cert. App., pp. 26-32).

Police surveillance of Ruggles began in November, 1978 after

officers of the Los Angeles Police Department received

information from a confidential informant that Ruggles may

have been involved in a motel robbery in July, 1978.

Tentative identification of Ruggles was made by one of the

victims of the robbery from a photographic showup display.

The police determined that based on this information and the

tentative identitrication, they had probable cause to believe

that Ruggles had committed the robbery. However, no attempt

was made to arrest Ruggles or to secure an arrest warrant

Decause the police officers hoped that by placing Ruggles

ander surveiiiance they might be led to an accomplice.

On January 2, 1979, the police received information

that Ruggles was going to meet another suspect the next

morning, and that they might commit a major robbery. The

informant indicated that two handguns would be used and

that Ruggles normally carried one gun in the small of his

back and would carry the second weapon in a briefcase or

satchel.

A surveillance team made up of at least eleven police

officers with five or six police vehicles and a police

helicopter assembled the next morning near the designated

meeting piace. Shortly thereafter, the officers observed

as Ruggles arrived at the location alone, driving an

automobile. Ruggles parked his car, exited the vehicle,

looked up and down the street, removed a briefcase from

the trunk of his car, and euterea a nearby apartment

building. A few minutes later, Ruggles emerged alone and

returned to his car. He replaced the briefcase in the

trunk of the car and drove toward the Ventura Freeway,

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Stopping at a gas station before proceeding westbound on

the freeway. The briefcase had been placed in the auto-

mobile trunk in full view of the officers, and the vehicle

never left their sight before the briefcase was in police

custody. ,

As Ruggles approached the county line, a black and

white police vehicle puiied in behind his car, displayed a

red light, and caused Ruggles to pull over to the center

divider. The other surveillance units immediately

surrounded Ruggles as he emerged from his car. Several

officers approached Ruggies displaying handguns and at least

one shotgun, and ordered him to lie face down on the ground.

The helicopter was circling overhead. Ruggles complied

immediately and was handcuffed, patted down, and informed that

he was under arrest. Wo weapon was found on his person or in

the passenger compartment of his car. One of the officers took

the car keys from Ruggles and opened the car trunk. The

officer removed the closed, latched briefcase, opened the

briefcase, and sercched it finding two handguns and other

materials that the State sought to introduce into evidence

over Ruggles’ objection.

ARGUMENT

THE COURT OF APPEAL CORRECTLY CONCLUDED THAT

THE WARRANTLESS SEARCH OF THE BRIEFCASE WAS

- JMPROPER _

The State court correctly concluded that the police

officers violated respondent's Fourth Amendment rights when

they conauctea a war.antiess search of respondent's briefcase.

This Court's recent decision in United States v. Ross, 50

U.S.L.W. 4580 (U.S. June 1, 1982), reinforces that conclusion.

The California Court of Appeal, in Ruggles, determined

that the search of the briefcas« was illegal whee Robbins

¥. California, 453 U.S. 420 (1981), but also noted that its

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Conclusion also was compelled by People v. Minjares, 24

Cal. 34 410, cert. denied, 444 U.S. 887 (1979), and by

Arkansas v. Sanders, 442 U.S. 753 (1979), and United States

v. Chadwick, 433 U.S. 1 (1977). See Pet. for Cert. App., pp-

47-49. :

This Court, in United States v. Ross, supra, sought to

clarify when the so-called “automobile exception” to the

warrant requirement may be invoked and when a police officer

may conduct a warrantiess search of a closed container found

in an automobile. In Ross, the focus of the warrantless

search was the vehicle itself. The officer in Ross had been

informed that Ross had just completed a narcotics sale and

that Ross had additional narcotics in the trunk of his car.

50 U.S.L.W. at 4581. That information was said to justify

@ search of Ross* automobile and-of any containers within

the automobile that could secrete the suspected contraband:

The scope of a warrantless search of an

automobile thus is not confined by the

nature of the container in which the

conmmanaes ip eteretss. Rather, Sede

not support 4@ warrant to search an upstairs

bedroom, probable cause to believe that

undocumented aiiens are being trans ed

in a van will not justify a warr ess

search of a suitcase. Probable cause to

believe that a container placed in the

trunk of a taxi contains contraband or

evidence does not justify a search of the

entire cab.

Id. at 4587 (emphasis added). The Court continued: “We hold

that the scope of the warrantiess search authorized by [the

automobile] exception is no broader ana no narrower than 4

magistrate could legitimately authorize by warrant." Id. at

4587-88.

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In the instant case, the information relied upon by the

police officers to estabiish probable cause indicated that a

Weapon might be found on Ruggles’ person or in a briefcase in

his possession. Had the police sought out a magistrate for 4

search warrant for the weapons based upon this information,

the magistrate couid have issued a warrant to search “the

places in which there is probable cause to believe that [the

object of the search] may be found...." i.e., on Ruggles’

person and in his briefcase.

The decision in Ross quite clearly was strictly an

automobile search case. When the focus of an officer's

attention falls generally upon an automobile, the “specific-

ally establishea and well-delineated" exception announced in

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

in Chambers v. Maroney, 399 U.S. 42 (1970), and in United

States v. Ross, 50 U.S.L.W. 4580 (1982), permits the

warrantless search “of every part of the vehicle and its

Contents that may conceal the object of the search." Ross

50 U.S.L.W. at 4588. See Katz v. United States, 389 U.S. 347,

357 (1967).

The Ross Court also expressly reaffirmed the rule announced

in United States v. C’iadwick, 433 U.S. 1 (1977), and reaffirmed

in Arkansas v. Sanders, 442 U.S. 753 (1979), that the “auto-

mobile exception” does not apply to every movable container that

is suspected to contain contraband, even though the container

had been placed in a vehicie shortly before it is seized. Ross,

50 U.S.L.W. at 4583-85. As the Chief Justice wrote, concurring

in Sanders:

Here, as in GQwick, it was the lu

being trans respondent a

of the arrest, not the automobile in which

it was being carried, that was the suspected

Locus of the contraband. The relationship

between the automobile and the contraband

was purely coincidental, as in Chadwick. The

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442 U.S. at 766-67, quoted in Ross, 50 U.S.L.W. at 4584-85.

In the instant case, the attention of the police officers

was specifically directed to Ruggles’ briefcase. The probable

cause to search the briefcase, if it existed at all, existed

regardless of where the briefcase was placed, whether in 4

bus station locker, in a closet in a residence, or in the trunk

of an automobile. Here, as in Chadwick and in Sanders, the fact

that the briefcase happened to be resting in the trunk of an

automobile when it was seized did not justify the warrantless

search.

CONCLUS ION

The Court of Appeal correctly applied the law regarding

Warrantless searches of movable containers. The appellate

court rvied that when police officers have probable cause to

believe that a specific container contains contraband, a warrant

must be obtained before the container may be searched. When

the attention of law enforcement officers is focused upon a

particular container, the fact that the container is found

resting in the trunk of an automobile does not obviate the warrant

requirement of the Fourth Amendment.

Accordingly, the petition for a writ of certiorari should

be denied.

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Attorneys for Respondent

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CERTIFICATE OF SERVICE

I hereby certify that on June 24, 1982, I served

a copy of the Respondent's Application for Leave to Proceed

in Forma Pauperis and Response of Respondent in Opposition

to Petition for Writ of Certiorari upon Petitioner

by depositing a true and correct copy, enclosed in a sealed

envelope with postage thereon fully prepaid, in the United

States mail at Arlington, Virginia, and addressed to the

attorney for Petitioner as follows:

John R. Gorey, Esq.

3360 Wilshire soulevard

3 iishire levard

Los Angeles, California 90010

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Attorney for Respondent »

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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