Record and brief — California v. Ruggles
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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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SSSSRSERPEBRBEBS
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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
i 18} é
i 19 Subscribed and sworn to before me
¥ a0 tnis2¢Aaay of June, 1982.
| 21
22
23
ee MY COMMISSION EXPIRES 1/1/84
25
26
27
28
29
30
31
32
cL. cit: se ee i
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
i
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TOPICAL
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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
)
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.