Appendix — California v. Acevedo

FILED |

| APR 30 1990

JOSEPH F SPANIOL, JP.

tte

'

;

SUPREME COURT OF THE UNITED STATES

October Term, 1989

PEOPLE OF THE STATE OF CALIFORNIA,

Petitioner,

v.

CHARLES STEVEN ACEVEDO,

Respondent.

APPENDICES TO PETITION FOR WRIT

OF CERTIORARI

JOHN K. VAN DE KAMP,

Attorney General of the

State of California

RICHARD B. IGLEHART,

Chief Assistant Attorney

General

HARLEY D. MAYFIELD,

Assistant Attorney General

PREDERICK R. MILLAR, JR.,

Supervising

Deputy Attorney General

ROBERT M. FOSTER, Supervising

Deputy Attorney General

110 West A Street, Suite 700

San Diego, California 92101

Telephone: (619) 237-7253

Attorneys for Petitioner

TABLE OF CONTENTS

APPENDIX A

Court of l, Fourth

llate District,

Division Three Opinion A-01 - A-21

APPENDIX B

Order modifying

concurring opinion,

no change in judgment A-23

APPENDIX C

A-25

Order modifying opinion A-27 - A-28

APPENDIX D

Order modifying

concurring opinion, n

© change in judgment A-30

APPENDIX E

A-31

California Supreme Court

Order denying review A-33

APPENDIX A

ve

CERTIFIED FOR PUBLICATION

[Filed December 12, 1989]

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

PEOPLE OF THE

STATE OF CALIFOPNIA,

)

)

Plaintiff and Respondent, ) G007480

)

Vv. ) (Super.

) Ct. No.

CHARLES STEVEN ACEVEDO, ) C-68857)

)

Defendant and Appellant. ) OPINION

Appeal from the judgment of the

Superior Court of Orange County, Myron S.

Brown, Judge. Reversed with directions.

Theodore A. Cohen for Defendant and

Appellant.

John K. Van De Kamp, Attorney

General, Richard B. Iglehart, Chief

Assistant Attorney General, Harley D.

Mayfield, Assistant Attorney Genera,

Jarelle B. Davis and Robert M. Foster,

A-2

Deputy Attorneys General, for Plaintiff

and Respondent.

Charles Acevedo'’s motion to suppress

was denied, and he pleaded guilty to

“possession of marijuana for sale. Under

compulsion of United States Supreme Court

authority, we agree the warrantless search

of a lunch bag seized from the trunk of

his car was unlawful and reverse

accordingly. y

I

In October 1987, federal drug

enforcement agents in Hawaii seized a

Federal Express package containing a

cooler and nine clear bags of marijuana

addressed to J.R. Daza at 805 West Stevens

Avenue in Santa Ana. In esepasetian with

federal officials, Santa Ana police

confirmed Daza's address and telephone

number and left the package at the local

Federal Express office for pickup.

os

, | Police followed Daza home after he

retrieved the package. Daza left his

apartment approximately 45 minutes later

and discarded the wrapping and cardboard

box in a trash bin. One of the

surveilling officers went to obtain a

search warrant for the apartment.

Within c~e-half hour, Acevedo's

. codefendant, Richard St. George, also

walked out of the apartment, a blue

knapsack on his back. Officers detained

St. George, searched the knapsack, and

found more than a pound of marijuana

inside.

Within another half hour, an empty-

handed Acevedo entered the apartment. He

left ten minutes later carrying a brown

lunch bag which appeared to be full. He

placed the bag in the trunk of an

automobile and drove away. Fearing the

loss of evidence, police officers stopped

the car, opened the trunk, searched the

A-4

brown bag, and discovered marijuana. The

search warrant for the apartment arrived

soon after.

In the superior court, Acevedo

contended the officers lacked probable

cause to search the trunk of the car. He

also argued the officers could not open

the lunch bag without a warrant. We

disagree with the first contention, but

the second carries the day.

II

Acevedo relies on People v. Valdez

(1987) 196 Cal.App.3d 799 to support his

claim that the trunk search was without

probable cause. In Valdez a film canister

containing contraband was suppressed

because officers had no probable cause for

its seizure: Nothing connected the

defendant to the sale of illegal drugs;

and a canister “is not a distinctive drug-

carrying item equivalent to a heroin

balloon, a paper bindle, or a marijuana-

A-5

smelling brick-shaped package, which may

be seized upon observation.” (Id., at pp.

806-807.) Here, however, there was more

than a fair probability Acevedo was

involved in dealing drugs and carrying

marijuana in the lunch bag (Illinois v.

Gates (1983) 462 U.S. 213, 238): Although

the occupant of the apartment was not in,

an empty-handed Acevedo entered within two

hours of the arrival of a sizeable

quantity of contraband and emerged with

something in a brown paper bag which

approximated the size of the wrapped

packages officers knew contained

marijuana. Accordingly, there was

probable cause for a warrantless search of

the trunk and seizure of the brown bag

under the automobile exception to the

Fourth Amendment. (See generally United

States v. Ross (1982) 456 U.S. 798.)

/

/

A-f

III

But could the officers open the bag

they lawfully seized? They could not

without first obtaining a warrant.

That is the rule of a line of cases

headed by United States v. Chadwick (1977)

433 U.S. 1. There, federal agents had

probable cause to believe marijuana was

concealed in a footlocker located in the

trunk of a car. The occupants were

arrested, and the footlocker was seized

and searched without a warrant. The

Supreme Court found the search unlawful.

There are, ruled the court, signiticantly

greater privacy interests in personal

luggage as opposed to cars: “Unlike an

automobile, whose primary function is

transportation, luggage is intended as a

repository of personal affects.” (Id., at

p. 13.)

In United States v. Ross, supra, 456

U.S. 798, on the other hand, officers had

A-7

probable cause to believe narcotics were

being sold from the trunk of the

defendant's vehicle. Police stopped the

car, saw a bullet on the front seat, and

retrieved a pistol from the glove

compartment. The defendant was arrested,

and officers opened the car’s trunk and

removed a brown paper bag. They .

it and found heroin. They discovered

additional contraband in a zippered pouch.

The Supreme Court upheld the warrantless

search, distinguishing Chadwick on the

basis that probable cause to search was

limited to the footlocker in that case.

In Ross, however, “police officers had

probable cause to search respondent's

entire vehicle.” (Id., at p. 817,

emphasis added. )~+’

1.Ross did reject the suggestion in

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

764, footnote 13 that a warrant may

always be required to search containers

found in a vehicle. (United States v.

Ross, supra, 456 U.S. at p. 824.)

—

A-8

This distinction was more recently

noted in United States v. Johns (1985) 469

U.S. 478. There, customs officers

developed probable cause to believe

marijuana had been smuggled into parked

trucks at a remote private airstrip.

Federal agents approached the trucks,

detected the odor of marijuana, and saw

packages likely to contain contraband.

The packages were seized and searched

without a warrant.

Chadwick was inapplicable, determined

the Supreme Court, because the customs

officers “were unaware of the packages

until they approached the trucks, and

contraband might well have been hidden

elsewhere in the vehicles ... [T]he

Customs officers had probable cause to

believe that not only the packages but

also the vehicles themselves contained

contraband. ... [T])he police [in

Chadwick] had no probable cause to believe

A-9

that the automobile, as contrasted to the

footlocker, contained contraband.” (Id.,

at pp. 482-483.)

Shortly after Johns the Supreme Court

divided equally in affirming without

opinion a decision of the Oklahoma Court

of Criminal Appeals to suppress evidence

obtainéd under circumstances similar to

ours. (Oklahoma v. Castleberry (1985) 471

U.S. 146.) In Castleberry v. State (Okla.

Crim. App. 1984) 678 P.2d 720, police

officers knew the defendant carried

narcotics in blue suitcases in the trunk

of a car. After arresting him, they

opened the trunk, seized the suitcases,

and searched them without a warrant.

Relying on Chadwick and Sanders, the

Oklahoma appellate panel determined the

contraband should have been suppressed:

“If the officer has probable cause to

believe there is contraband somewhere in

the car, but he does not know exactly

A-10

where, he may search the entire car as

well as any containers found therein.

{[Citations.] If, on the other hand, the

officer only has probable cause to believe

there is contraband in a specific

container in the car, he must detain the

container and delay his search until a

search warrant is obtained. [Citations.]”

(Id., at p. 724.)

The Ninth Circuit, on facts

remarkably close to those of the present

case, has also confirmed the continuing

validity of the Chadwick-Ross distinction.

In United States v. Salazar (9th Cir.

1986) 805 F.2d 1384, 1396, police officers

observed known drug dealers deliver

suspicious-looking packages to others.

The recipients were detained, and a search

of the packages revealed cocaine.

Officers then saw the dealers hand a brown

shopping bag to Salazar, who placed the

item in a locked car. Salazar was stopped

A-11

as he drove away, and the bag was seized

and searched. Citing Chadwick, the Court

of Appeals concluded a warrantless search

of the bag was unlawful: “Where, prior to

a search, officers have probable cause to

believe that a specific closed container

holds contraband... , they must obtain

a search warrant before opening it, even

though it is located in an automobile.

{[Citation.]” (Id., at p. 1397.)

We recognize the anomalous nature of

the Ross-Chadwick dichotomy: If police

have probable cause to believe contraband

is concealed in a particular container,

they must obtain a warrant before

searching it, even when it is being stored

in a vehicle. If the investigation has,

for whatever reason, yet to focus on a

particular container and there is only

probable cause to believe the contraband

is located somewhere in an automobile,

officers may conduct a warrantless search

A-12

of any container in the car that could

reasonably conceal the evidence. The

first situation was described by Justice

Kaus in People v. Ruggles (1985) 39 Cal.3d

1 as “type A” and the second “type B.”

The crucial distinction is that in a type

A case “officers do not have probable

cause to believe the vehicle itself -- as

distinguished from the container --

contains seizable material.” (Id., at p.

14 (dis. opn. of Kaus, J.).)

Cne unfortunate feature of the rule

is an incentive for police officers to

withhold evidence related to probable

cause in order to fit within the more

generous confines of Ross. Despite

misgivings concerning the continuing

validity of Chadwick after Ross, we are in

no position to ignore the Supreme Court's

current mandate. This is a type A case;

the officers had probable cause to believe

marijuana would be found only in a brown

A-13

lunch bag and nowhere else in the car. We

are compelled to hold they should have

obtained a search warrant before opening

it.

The Attorney General raises several

arguments in support of the search. He

contends the warrant issue was waived.

But the record indicates the parties

stipulated to a statement of facts (with

minor additions) taken from the

prosecutor's responding papers below and

both sides would stipulate to additional

facts as issues arose. Acevedo’s counsel

argued, “Now, then according to

Castleberry, which is a Ninth Circuit

[sic] case, according to that they have to

have a search warrant to search the bag.”

Counsel's citation may have been skewed

but it was adequate to place the necessity

of a warrant at issue. We agree the

statement of facts is thin regarding the

actual search of the trunk and lunch bag,

A-14

but the failure of the record on this

point is the responsibility of the

prosecutor who had the burden to establish

the reasonableness of the search and

failed to present additional facts or

testimony.

The Attorney General also argues,

“[sJince the officers had probable cause

to arrest appellant they had the right to

search the entire car and any objects in

the car.” This argument misstates the

law, however, for police may only search

the passenger compartment of a car

incident to a lawful arrest. (New York v.

Belton (1981) 453 U.S. 454.) The

Chadwick-Ross line of cases applies to

trunk searches.

The Attorney General urges

application of the inevitable discovery

doctrine, claiming the warrant which

arrived shortly after the search of the

bag would have authorized its search as

| A-15

part of the contents of the apartment and

that the police could have secured the

premises pending the arrival of the

warrant and prevented its departure. He

cites no evidence in the record of legal

authority to support these propositions.

Police officers have no right to track

down an item in the vehicle or home of

another merely because certain items

expected to be found in the place subject

to the warrant happen to be missing when

it is executed. The warrant authorized

the search of Daza’s apartment, not a

third party's vehicle or bag located far

from the premises.

We need not decide whether a warrant

would have been issued for the unopened

bag in police custody. The bag itself was

innocuous, and the police knew nothing of

Acevedo before he visited Casa Daza. But

the argument is beside the point. If

warrantless searches could be upheld on an

A-16

inevitable discovery theory on the basis

that a warrant would have issued, no one

would bother to secure one.

We are aware that the California

Supreme Court has recently said, "We

further note that the evidence seized in

the house inevitably would have been

discovered. [Citations.] The officers

who initially entered the .. . house

observed blood throughout. It appeared

likely that the killer had entered the

house and showered; relevant evidence was

probable inside. The house was secured

and, as the trial court noted, ‘there is

not a judge in the world that would not

Sign a warrant with these facts.'”

(People v. McDowell (1988) 46 Cal.3d 551,

564.) We view this language as

unfortunate dicta, sure to cause mischief

and sure to be recanted by our Supreme

Court or rejected by the United States

Supreme Court should the occasion arise.

|

y

A-17

(2/] Until one of the two higher courts

holds otherwise, we cannot accept the

spurious notion that probable cause to

obtain a search warrant is the equivalent

of having done so: “Searches conducted

without warrants have been held unlawful

‘notwithstanding facts unquestionably

showing probable cause’ [citation], for

the Constitution requires ‘that the

deliberate, impartial judgment of a

judicial officer .. . be interposed

between the citizen and the police .

.'“ (Katz v. United States (1967) 389

U.S. 347, 356-357; see also Lorenzana v.

Superior Court (1973) 9 Cal.3d 626, 639.)

2.We do not understand our

concurring colleague's refusal to react

to the McDowell language we question.

It is cited in the Attorney General's

brief, and it was specifically urged as

biding authority at oral argument for

the proposition that probable cause

sufficient to obtain warrant is in and

of itself enough to uphold a warrantless

search.

A-18

Finally, the Attorney General claims

transportation of the marijuana was a

separate crime and the car itself became

evidence which could have been seized and

searched. Whether the scope of that

search would permissibly reach closed

containers during an inventory of the

vehicle we need not address. This

argument was not presented in any fashion

below: “If the People had other theories

to support their contention that the

evidence was not the product of illegal

police conduct, the proper place to argue

those theories was on the trial level ac

the suppression hearing. The People

offered no such argument at that hearing

and may not do so for the first time on

appeal.” (Lorenzana v. Superior Court,

supra, 9 Cal.3d at p. 640; People v. Neer

(1986) 177 Cal.App.3d 991, 1006 (dis. opn.

of Crosby, J.); United States v. Salazar,

supra, 805 F.2d at pp. 1398-1399.)

A-19

The judgment is reversed with

directions to grant the motion to

suppress.

Crosby, Acting P.J.

I concur:

Wallin, J.

wee ee |

ae ae i — —. =. . . . ma

<a a

tec = = ie RO NR *

A-20

SONENSHINE, J., concurring:

I concur with the result but withhold

judgment at this time on the import of the

quoted language of People v. McDowell

(1988) 46 Cal.3d 551. I believe that

analysis is unnecessary to the opinion, in

that the Attorney General's inevitable

discovery argument is not based on the

theory a different warrant would have

issued from any “judge in the world.”

Rather, he argues “the officers could have

searched the bag under the auspices of the

warrant that arrived ten minutes later,”

rendering it “independently admissible

under the doctrine of inevitable

discovery.” Therefore his argument is not

that a warrant would have issued, it is

that one did issue and that the issued

warrant inferentially encompassed the bag.

The majority addresses the contention, but

by disposing of an argument not raised by

A-21

the parties, it is erecting a straw person

to knock down.

—Ls

SONENSHINE, J.

APPENDIX B

—eeeee

A-23

APPENDIX B

ERTIFI F PUBL TION

[Filed December 20, 1989}

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

PEOPLE OF THE

STATE OF CALIFORNIA, G007480

(Super.

Ct. No.

C-68857 )

Plaintiff and Respondent,

Vv.

ORDER

MODIFYING

CONCURRING

OPINION, NO

CHANGE IN

JUDGMENT

CHARLES STEVEN ACEVEDO,

Defendant and Appellant.

me ee ee ee ee ee ee ee”

THE COURT:

It is ordered that the concurring

opinion filed herein on December 12, 1989,

be modified in its entirety as follows:

I concur with the result but withhold

judgment at this time on the import of the

quoted language of People v. McDowell

(1988) 46 Cal.3d 551. I believe that

ee eee

A-24

analysis is unnecessary to the opinion, in

that the Attorney General's inevitable

discovery argument was not based on the

theory a different warrant would have

issued from any "judge in the world.”

Rather, he argued, “the officers could

have searched the bag under the auspices

of the warrant that arrived ten minutes

later,” rendering it “independently

admissible under the doctrine of

inevitable discovery.” Therefore his

argument was not that a warrant would have

issued, it was that one did issue and that

the issued warrant inferentially

encompassed the bag.

Contrary to the majority's opinion,

my review of respondent’s brief reveals

not a single citation to McDowell. While

respondent did attempt to inject such an

analysis for the first time during oral

argument, I believe the issue was not

timely raised. The majority addresses the

A-25

contention, but by disposing of an

argument not properly raised by the

parties, it is erecting a straw person to

knock down.

There is no change in judgment.

CERTIFIED FOR PUBLICATION

SONENSHINE, J.

- 27. <-

[Filed December 29, 1989}

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

PEOPLE .OF THE

STATE OF CALIFORNIA, G007480

(Super.

Ct. No.

C-68857)

Plaintiff and Respondent,

Vv.

ORDER

MODIFYING

OPINION

CHARLES STEVEN ACEVEDO,

Defendant and Appellant.

em ee ee ee ee ee ee ee ee

The opinion in this matter was filed

December 12, 1989, and certified for

publication. The majority opinion is

modified as follows:

(1) On page 10, line 14, insert “2”

at the end of the sentence which

concludes, “should the occasion arise.”

- 28. -

(2) Delete footnote 2 in its

entirety and substitute the following in

its place:

2 We do not understand our

concurring colleague's refusal to come to

grips with the McDowell language we

question. It was specifically urged as

binding authority at oral argument for the

proposition that probable cause sufficient

to obtain a warrant is in and of itself

enough to uphold a warrantless search; it

must be addressed.

The modification does not effect a

change in the judgment.

Crosby, Acting P.J.

I concur:

Wallin, J.

APPENDIX D

- 30. -

[Filed January 03, 1990]

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

PEOPLE OF THE

STATE OF CALIFORNIA, G007480

(Super.

Ct. No.

C-68857)

Plaintiff and Respondent,

ORDER

MODIFYING

CONCURRING

OPINION, NO

CHANGE IN

JUDGMENT

CHARLES STEVEN ACEVEDO,

)

)

)

)

)

)

Vv. )

)

)

)

Defendant and Appellant. )

)

The concurring opinion filed herein

on December 12, 1989, certified for

publication, and modified December 20,

1989, is further modified as follows:

Delete the introductory phrase

“Contrary to the majority's opinion,” at

the beginning of the second paragraph.

/

- 31. -

There is no change in judgment.

SONENSHINE, J.

APPENDIX E

- 33. -

[Filed March 15, 1990)

ORDER DENYING REVIEW

AFTER JUDGMENT BY THE COURT OF APPEAL

Fourth Appellate District, Division Three, No. G007480

$013758

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

IN BANK

Ess

THE PEOPLE, Respondent

Vv.

CHARLES STEVEN ACEVEDO

nse

| Respondent's petition for review DENIED.

| Panelli, J. is of the opinion the petition

| should be granted.

Chief Justice