# Petition for Writ of Certiorari — Reed v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1975
- **Citation:** 419 U.S. 1108

## Text

SUPREME COURT, U. &
IN THE

Supreme Court of the United .

October Term, 1974

No.9.4.=.56 6

JoHN LAWRENCE REED,
Petitioner,
VS.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

Petition for a Writ of Certiorari to the Court of Appeal,
Second District, State of California.

CHARLES G. RUBIN,
Attorney at Law,

316 West Second Street, Suite 400,
Los Angeles, Calif. 90012,
(213) 485-1001,

Attorney for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

ita

SUBJECT INDEX

Page

ENS SM ele OS TREO 1
oe gc ER IRER SI Sie cee ee ae 2
Questions Presented 2
Constitutional Provisions Involved ............... 2
ene Or Oe 2
ee ee 4
Reasons for Granting the Writ 8
I ae a 9

1. There Was Not Substantial Evidence to Sup-

port the Trial Court’s Findings ............... 9

2. The Warrantless Search of Appellant’s
Automobile Was Unreasonable Under the

Fourth and Fourteenth Amendments ____. 14
3. The Search Cannot Be Construed as One
Incident to a Lawful Arrest 15

4. The Search Cannot Be Construed as One
Necessitated by Emergency Circumstances .. 16

5. Appellant Was Arrested Without Probable
RNs RD NR MS ae ee i 21

I tae i cr 22

INDEX TO EXHIBITS

Exhibit A. Opinion of the Court of Appeal ....... 1
Exhibit B. Order Hearing Denied 8

TABLE OF AUTHORITIES CITED

Cases Page
Bethune v. Superior Court (1970) 11 Cal.App.3d
aE EEE ELLY E Naokiae) OS ae NA OO 9, 11, 16, 18

Carroll v. United States (1925) 267 U.S. 132 ..9, 17

Chambers v. Maroney (1970) 399 U.S. 42 ........
CESIFO eT Be 9, 11, 13, 16, 17, 18, 20

Chimel v. California (1969) 395 U.S. 752 ........
EPL POINT ie MESSE Pe ER TOTO EE 11, 13, 15, 16, 290

Coolidge v. New Hampshire (1971) 403 U.S. 443
istacdetanuipsupleduaentauibadencniemaeoat 12, 13, 14, 15, 16, 18, 20

Mapp v. Ohio (1961) 367 U.S. 643 .................... 22

Medina v. Superior Court (1972) 26 Cal.App.3d
LOST RET ORNL 12, 13, 19, 20, 21

Munoz v. on Court (1971) 21 Cal.App.3d
PORE Reece er Neen Te ere 12, 13, 19, 20

ae v. Cahan (1955) 44 Cal.2d 434 ..000........ 22
People v. Ingle (1960) 53 Cal.2d 407 .................. 21
People v. Levy (1971) 16 Cal.App.3d 327 .......... 9
People v. Medina (1972) 26 Cal.App.3d 809 .... 9
People v. Superior Court (Mahle) (1970) 3 Cal.

SPATE Ti ous sa haaceigishesapebdeceasaboaiedannirenasaidparisiGisaeciaanics 9
People v. Teale (1969) 70 Cal.2d 497 .......... 11, 18
People v. Waters (1973) 30 Cal.App.3d 354 .... 9
Yale v. Louisiana (1970) 399 U.S. 30 .............. 15, 16

Statutes Page
Health and Safety Code, Sec. 11910 ~....0000000022... 3
Health and Safety Code, Sec. 11911 ~......0002..... a 3
ee RE | | | Cem | cen seomeannn 3
Sy a a 1h eulopeoanenasnoucinans 4

spcliice pspianisoadinaiabtienmaonaansstaainbnstaeinaseaiabiai 2, 8, 14

Pe re

IN THE

Supreme Court of the United States

October Term, 1974
I secthireicicnss

JOHN LAWRENCE REED,
Petitioner,
vs.

THE PEOPLE OF THE STATE OF CALIFORNIA,
Respondent.

Petition for a Writ of Certiorari to the Court of Appeal,
Second District, State of California.

Petitioner John Lawrence Reed respectfully prays
that a Writ of Certiorari issue to review the action of
the Court of Appeal, Second District, of the State of
California, affirming the trial court’s judgment of con-
viction. (Petition for hearing denied by the Supreme
Court of the State of California on October 2, 1974.)

Opinion Below.

The Court of Appeal issued a written opinion affirm-
ing the trial court’s judgment against the petitioner.
(See Exhibit A.) The Supreme Court of the State of
California summarily denied petitioner's petition for
a hearing, without issuing a written opinion. (See
Exhibit B. )

| Jurisdiction.

The California Supreme Court denied the petition
for hearing on October 2, 1974. This Court’s jurisdic-
tion is invoked under Title 28 United States Code,
§ 1257(3). 3

Questions Presented.

Petitioner was denied due process of law and equal
protection of the law in that there was not substantial
evidence to support the trial court’s findings; further,
petitioner was subjected to an unlawful search which
cannot be justified as one incident to a lawful arrest,
necessitated by exigent circumstances nor consented to.
Finally, petitioner was arrested without probable cause.

Constitutional Provisions Involved.

The Fourth Amendment to the United States Con-
stitution provides in substance protection for persons
_ against unreasonable searches and seizures. The Four-
teenth Amendment to the United States Constitution
makes these rights, of criminal defendants applicable
to state court trials. '

| ‘Statement of the Case.

Appellant is, and at, all times herein mentioned,
was a resident of the County of Los Angeles, State
of California. |

On March 19, 1973, an Information was filed by the
District Attorney for the County of Los Angeles, charg-
ing Appellant with a violation of Health and Safety
Code, Section 11911, possession of a dangerous drug,
_ to wit, an amphetamine, for sale. On May 16, 1973,
an Amendment to Information was filed, charging the
Appellant with one prior felony conviction. Appellant

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was arraigned and denied the allegation. At the trial in
this matter, the Court granted Appellant’s motion un-
der Penal Code, Section 1118 to enter a judgment of
acquittal as to the alleged prior felony conviction. [R.T.
77, lines 25-28; p. 78, lines 1-8.]

On March 20, 1973, Appellant was arraigned in De-
partment NW R of the Superior Court, County of Los
Angeles, and pled not guilty. Trial and motion pur-
suant to Penal Code, Section 1538.5 were set for April
26, 1973.

On April 4, 1973, Appellant’s ex parte motion for
reports and transcripts was denied.

Thereafter, trial and motion under Penal Code, Sec-
tion 1538.5 were continued on motion of Appellant
and finally came before the Court on August 7, 1973.
On that date, Appellant’s motion pursuant to Penal
Code, Section 1538.5 was denied. On motion of Ap-
pellant, trial was trailed to August 8, 1973.

Thereafter, trial was continued or trailed several
times. The cause came before the Court for a non-
jury trial on August 15, 1973, at which time Appel-
lant was found guilty as charged. Appellant’s motion
for mistrial was denied and probation and sentence
hearing was set for September 24, 1973.

On September 24, 1973, on motion of the Court,
probation and sentence hearing and Appellant’s motion
for new trial were continued to October 1, 1973.

On October 1, 1973, the Court, in lieu of granting
a new trial, found the Appellant guilty of a violation of
Health and Safety Code, Section 11910, possession of
an amphetainine, and not guilty of a violation of Health
and Safety Code, Section 11911, no finding having
been made as to the alleged prior conviction. The Ap-

:

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pellant was sentenced to the State Prison for the term
prescribed by law and the Court requested diagnostic
information and recommendation as a basis for review
under the terms of Penal Code, Section 1168. Appel-
lant was to be given credit for 237 days heretofore
served.

On October 3, 1973, Appellant’s ex parte motion
to set bail on appeai was granted and bail was set at
$30,000.00. Appellant also filed a Notice of Appeal
through his counsel, Ron Minkin.

On March 12, 1974, petitioner filed his opening
brief to the Court of Appeal, State of California,
Second Appellate District. In an opinion filed on July
23, 1974, the Court of Appeal affirmed the judgment
of conviction. (See Exhibit A.)

On September 6, 1974, petitioner filed a Petition
for Hearing in the Supreme Court of the State of Cal-
ifornia. On October 2, 1974, the petitioner’s petition for
hearing was summarily denied. (See Exhibit B.)

Statement of Facts.

During the course of the hearing on Appellant’s
motion pursuant to Penal Code, Section 1538.5, the
substantive evidence received by the Court was as fol-
lows:

Officer Larry M. Davenport of the Los Angeles
Police Department testified that on December 26, 1972,
he received information concerning the sale of meth-
amphetamine from a person named John Hardeman.
[R.T. 6.] On that date, Officer Davenport was at
Hardeman’s residence at 1548 North Topanga Canyon
in Los Angeles when Hardeman said that he would as-
sist Officer Davenport in arresting his, Hardeman’s
narcotics supplier. [R.T. 6.]

ASE AD IRE RE Pe AS CTR LST pet oe ope ey? +

—

According to Officer Davenport, Hardeman said
that his supplier was Appellant, John Reed. [R.T. 6.]
Hardeman then made a phone call, allegedly to John
Reed in which he indicated to the person on the other
end of the line that he, Hardeman, wanted to pur-
chase an ounce of speed or methamphetamine. [R.T.
7.] Officer Davenport listened in on this conversation.
[R.T. 7.]

This telephone conversation occurred at approxi-
mately 6:30 p.m., and Hardeman’s alleged connection
indicated that he would come to the residence at 1548
North Topanga Canyon at approximately 8:00 p.m.
[R.T. 8.] Thereafter, Appellant was observed by the of-
ficers to drive up in a brown car and park near the resi-
dence which was a house trailer. Before exiting the
car, Appellant was seen to lean over toward the glove
compartment area of the car. [R.T. 9 and 10.] Officer
Davenport and his partner then hid themselves in
another part of the trailer as the Appellant approached.
[R.T. 10.]

When Appellant entered the trailer, Officer Daven-
port testified that he heard him say, “I’m confused.
How much stuff did you want?” [R.T. 11, lines 12-
14.] At this point, Appellant was arrested for pos-
session of dangerous drugs. A search of the Appellant
uncovered no contraband at all. [R.T. 13, lines 24-
26. ]

Soon thereafter, Officer Davenport said to Appel-
lant, “I’m going to search it (the car he had driven to
the location).” [R.T. 16, line 5.] The subsequent search
of the car uncovered the items of contraband which
formed the basis of the charge in this case. [R.T. 16,
line 20. ]

PRN NTI ROR ED er err iee eA ae:

CAE a RP SA LT Ri Ts tT, eevee

ili

On cross-examination, the following testimony was
elicited: Officer Davenport had originally gone to Har-
deman’s residence on December 26, 1972, to serve a
search warrant. [R.T. 19.| This was at approximately
1:00 p.m. [R.T. 22.] The officer testified that he
and his partner remained with Hardeman the entire
day. [R.T. 22.]

After being arrested, Appellant stated that the car
he was driving was not his and that the officers could
search it if they wanted to do so. [R.T. 27.] Appel-
lant gave Officer Davenport a key that fit the doors
and ignition of the car. [R.T. 28.] When Officer Dav-
enport found that this key did not open the glove com-
partment or trunk, he requested additional keys. [R.T.
29.| When no additional keys were produced, Officer
Davenport returned to the car and forcibly opened
both the trunk and glove compartment. [R.T. 29.j
Contraband was found in the glove compartment. It
was both ascertained that the car was in fact a leased
vehicle to someone named Momburger. [R.T. 31.]

At the trial, three witnesses testified on behalf of
the Appellant. Paul Arthur Jordan testified that on the
day of the arrest, December 26, 1972, he was at the
residence of a person named Momburger. [R.T. 79.]
On that date, Mr. Jordan had had a telephone conver-
sation with John Hardeman during which Hardeman
said that he would pick up a Ford LTD automobile
which was parked at the Momburger residence. [R.T.
81.] Mr. Jordan testified that he went horseback riding

SPE LOKI > _

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and that when he returned at about 4:30 p.m., the
car had been removed. [R.T. 82.] Mr. Jordan’s con-
versation with Hardeman had taken place at about
3:30 p.m. [R.T. 82.]

Mr. Jordan further testified that he was involved
in a business venture with the Appellant and Mr. Mom-
burger. [R.T. 82-83.] It was also known to Mr. Jor-
dan that John Hardeman was indebted to the Appel-
lant in the amount of $200.00. [R.T. 83-84. ]

At the time that John Hardeman called the Appel-
lant and allegedly set up the narcotics transaction, Mr.
Jordan was at the Momburger residence along with the
Appellant. He testified that Mr. Momburger answered
the phone and then handed it to the Appellant. During
the conversation, the Appellant became very upset and
said that Hardeman wanted to buy some speed. [R.T.
84.] Mr. Jordan testified that the Appellant told him
that Hardeman had the money to pay him and that he
wanted the Appellant to go and pick it up. [R.T. 85.]
He stated that Appellant did leave the residence in an
Oldsmobile Cutlass. [R.T. 85.]

David Eugene Bolsinger testified that in the weeks
prior to the trial he had made an unsuccessful search
for John Hardeman. [R.T. 87-88. ]

Appellant, John Lawrence Reed, testified that he
was involved in a business pursuit with Mr. Jordan and
Mr. Mombuiger. [R.T. 91.] He further testified that
he had received a telephone call from John Hardeman
at the Momburger residence on the date in question.

—

[R.T. 94.] During that conversation, Mr. Hardeman
indicated that he wanted to buy some speed. [R.T.
96.] According to Appellant, the conversation then
changed to the subject of the money owed to the Ap-
pellant by Hardeman with the result being that Appel-
lant agreed to go to Hardeman’s residence. [R.T. 96.]
Appellant testified that he did go to Hardeman’s resi-
dence in the Oldsmobile Cutlass leased to Mr. Mom-
burger. [R.T. 97.] He further testified that when he
arrived, he made no move toward the glove box of
the car. [R.T. 98.]

After Officer Davenport found the contraband and
returned to the trailer, according to the testimony of
the Appellant, John Hardeman told the officers that
the speed belonged to him. [R.T. 105.]

REASONS FOR GRANTING THE WRIT.

It is requested that the Court grant the Writ be-
cause the judgment of conviction was based on evi-
dence seized in violation of the Fourth Amendment
made applicable to the states by the Fourteenth Amend-
ment.

ee ee en

_—
ARGUMENT.
1. There Was Not Substantial Evidence to Support
the Trial Court’s Findings.
People v. Medina, 26 Cal.App.3d 809, 815 held:

“In reviewing a determination of a trial court
on a 1538.5 motion, the function of the review-
ing court is to determine whether there was sub-
stantial evidence to support the trial court’s find-
ings.”

In accord see also:

People v. Superior Court (Mahle), 3 Cal.App.
3d 476;

People v. Levy, 16 Cal.App.3d 327;
People v. Waters, 30 Cal.App.3d 354.

Appellant contends that there was no probable cause
for a search of areas which were inaccessible to Ap-
pellant.

In arguing against Appellant's motion pursuant
to Penal Code Section 1538.5, the prosecution cited
Chambers, v. Maroney, supra and Bethune v. Superior
Court, supra. In Chambers, supra, the defendant was
arrested in an automobile which was later taken to a
police station and searched. The Court held that given
probable cause to search, there was no difference be-
tween seizing and holding the car and then getting a
warrant and an immediate search without a warrant.
This holding in Chambers was based on Carroll v.
United States, 267 U.S. 132 which allowed warrant-
less searches of autos where there was reasonable or
probable cause to believe that the automobine contained

ia te a a ee

VIS Se AP PN RI OS PRE

—

contraband coupled with the fact that the automobile
was moveable.

The crucial question is whether there was probable
cause to search. In the instant case, Appellant was
arrested inside of a house trailer. According to tes-
timony given at the special hearing on the 1538.5 mo-
tion, Appellant was there to conduct a narcotics trans-
action. However, other testimony indicated he was there
to collect a debt. Regardless of which version is be-
lieved, the fact remains that the Appellant was ar-
rested for possession of a dangerous drug. A subse-
quent search of his person disclosed no contraband.
The officers then searched the car the Appellant had
been dri.ing. According to the officer, he had observed
Appellan: making a move toward the glove compart-
ment of the car before he exited. It is entirely pos-
sible that the Appellant was merely locking the pas-
senger side door. Indeed, officers had to use a key
to first unlock the auto door before searching it. [R.T.
65.]

The Appellant had told the officer that the car was
not his, a fact later shown to be correct. It was a car
leased to one of Appellant’s friends. After an initial
search of the car during which the officer discovered
no contraband, but found the trunk and glove box
to be locked, he returned and requested the key. When
none was produced, the officer returned to the car,
broke open those two compartments and found con-
traband in the glove box.

The facts recited above do not constitute probable
cause to search. The mere fact that the officer be-
lieved the car contained seizable evidence is insuf-
ficient. This belief must be reasonable. When the Ap-

eaten ee

—

pellant was arrested, there was no reason why the of-
ficers could not have presented an affidavit to a magis-
trate and obtained a search warrant.

The People rely on the Bethune case, supra, in
which the defendant was arrested in a car which was
searched after the arrest. The search uncovered con-
traband in the defendant’s purse which had been left in
the car. The Court in Bethune stated that Chimel
was not applicable because it was not a search inci-
dent to an arrest and then justified the search using
the Chambers case. But, it is important to keep in
mind that there must be probable cause to believe the
auto contains contraband or seizable items. In Bethune
an extensive police investigation had revealed much
information that the persons arrested with the defend-
ant were involved in narcotics transactions. The ar-
resting officers had even obtained a search warrant for
the residence of those persons. Here, there is nothing
similar to that situation.

The People also rely upon People v. Teale, (1969)
70 Cal.2d 497, a pre-Chambers case, supra, in which
an auto was seized and examined ten days later in a
location very distant from the place of arrest. The
Court held at 70 Cal.2d 511:

“When officers, incidental to a lawful arrest,
seize an auto or other object in the reasonable
belief that such object is itself evidence’ of the
commission of the crime to which such arrest is
made, any subsequent examination of said object
undertaken for determining its evidentiary value
does not constitute a ‘search’ within the meaning
of the Fourth Amendment.” (Emphasis in orig-
inal.)

_

However, footnote 10 at 70 Cal.2d 511 reads as
follows:

“The italicized language is crucial. We think it
clear that the Constitution does not permit the
seizure incident to a» vest merely because it is rea- ’
sonably believed to be a container for evidence of
the charged crime. Only an object reasonably be-
lieved to be itself evidence of the charged crime
is subject to seizure and, therefore, to detailed
examination subsequent to seizure.” (Emphasis in
original).

In the case at bar, Appellant was arrested for pos-
session of dangerous drugs. The officers, in effect,
seized the auto when they searched it. However, the
auto itself was not the instrumentality of any crime. The
Appellant was not charged with transportation of dan-
gerous drugs, only possession. The car was nothing
more than a container and the locked glove compart-
ment was a Container within a container, if you will.

The Superior Court, in denying Appellant’s motion
pursuant to Penal Code, Section 1538.5 relied on
Munoz v. Superior Court, (1971) 21 Cal.App.3d 805
and Medina v. Superior Court, (1972) 26 Cal.App.3d
809. Munoz is clearly distinguishable from the case
at bar. In that case, a member of a car theft ring
was arrested and a car parked a short distance away
was searched and evidence seized. The Court said
Coolidge was distinguishable because there, as in the
case at bar, all suspects were in custody. The Court in
Munoz felt that other members of the gang would
possibly have come and taken the car, thus satisfying
the exigent circumstances of Coolidge.

ae LLM LS LT RE TINTS a

pon ae

However, the Court did state in footnote 2 at 21
Cal.App.3d 810:

“We need not, and do not, here consider the
effect of Coolidge on searches involving other fac-
tual situations, such as searches incident to law-
ful impounds or incident to arrest which involve
an application of Chimel v. California (1969)
395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034].”

It has already been clearly shown that Chimel cannot
be used to justify the search in this case. Further, the
Superior Court’s reliance in Munoz is misplaced since
the facts there were very different. The case at bar is
very similar to Coolidge which is still the law.

In Medina, the defendant was charged with rob-
bery. Two men who had robbed a man of money and
certain other inings were later arrested in a restaurant.
They denied having an auto, but the police found one
matching a description they had driven parked in a
service station across from the restaurant. They looked
in and saw what appeared to be part of the stolen
goods in plain view. They then searched the car and,
indeed, found what had been taken. Moreover, one of
the defendants was wearing the victim’s watch at the
time of arrest.

The Court in Medina cited Chambers v. Maroney,
supra, and held that probable cause to search the car
did exist. However, note that the officers actually saw
part of the stolen goods in the car. There is nothing
similar to that in the case at bar. The officers here
saw nothing in the car, nor did they have any reason
to believe that contraband would be found there. The
Medina Court talked about mobility of the car in the
opinion, but their reliance on that is not well founded

eK On Ra Oe

a”

since all the suspects were already in custody as in the
Coolidge case.

Appellant contends that the foregoing clearly shows
that the search of his car cannot be justified under
any theory advanced by the prosecution or the Superior
Court. In light of that, his motion pursuant to Section
1538.5, Penal Code, should have been granted and
evidence seized should have been suppressed.

2. The Warrantless Search of Appellant’s Automobile
Was Unreasonable Under the Fourth and Four-
teenth Amendments.

In dealing with warrantless searches, the point of de-
parture is the landmark case of Coolidge v. New Ham-
shire, (1971) 304 U.S. 443, in which the United
States Supreme Court held at 403 U.S. 454, 455:

“Thus, the most basic constitutional rule in this
area is that ‘searches conducted outside the judi-
cial process, without prior approval by judge or
magistrate, are per se unreasonable under the
Fourth Amendment—subject only to a few specif-
ically established and well delineated exceptions’
(citation). The exceptions are ‘jealously and care-
fully drawn’ (citation) and there must be ‘a show-
ing by those who seek exemption * * * that the
exigencies of the situation made that course in-
operative.’ (citation) ‘[T]he burden is on those
seeking the exemption to show the need for it.’
(citation)” (Emphasis in original).

Two of the most often cited exceptions to this rule
are warrantless searches incident to a lawful arrest and
a warrantless search necessitated by emergency cir-
cumstances. Appellant contends that the search in this
case fails to fall within either of those two exceptions.

—

sinellibaais

3. The Search Cannot Be Construed as One Incident
to a Lawful Arrest.

Assuming only for the sake of argument, that the
arrest in this case was valid, the scope of a search inci-
dent to the arrest has been well defined by the United
States Supreme Court. In Chimel v. California, (1969)
395 U.S. 752, the Court held at 395 U.S. 763:

“There is ample justification, therefore, for a
search of the arrestee’s person and the area ‘with-
in his immediate control’—construing that phrase
to mean the area from within which he might gain
possession of a weapon or destructible evidence.”

In the case at bar, it is undisputed. that the Ap-
pellant was arrested in a trailer and that the car that
was searched without a warrant was located some 50
to 100 feet away. This is very similar to the Coolidge
case, supra, where the defendant was arrested in his
house and a car in the driveway was searched. The
Court in Coolidge held that the search would not be
construed as one incident to an arrest under Chimel
or even under the law as it was prior to the Chimel
decision.

In Yale v. Louisiana, (1970) 399 U.S. 30, the
Court held:

“A search may be incident to an arrest ‘only if
it is substantially contemporaneous with the arrest
and is confined to the immediate vicinity of the
arrest.’ (citations. )”

In Yale, the defendant was arrested outside of his
house and then taken into the house which was sub-
sequently searched. Yale can be seen as the law as
it stood prior to Chimel because the Court specifically
did not apply Chimel since they declined to rule on

—16—

the case’s retroactivity. Thus, in Coolidge, supra,
the Court relied on both Chimel and Yale in holding
that the search was not one incident to an arrest.

Based on Coolidge, Chimel and Yale, it is clear
that the search in the case at bar cannot be justified
as One incident to an arrest.

4. The Search Cannot Be Construed as One Necessi-

_ tated by Emergency Circumstances,

Much of the prosecution’s case and the Superior
Court’s decision in this matter indicates that the search
of Appellant’s auto can be justified as one necessitated
by emergency or exigent circum:'ances. Appellant con-
tends that this is not the case.

In Coolidge v. New Hampshire, supra, the Court
stated at 403 U:S. 461, 462:
“The word ‘automobile’ is not a talisman in
whose presence the Fourth Amendment fades
away and disappears.”

The Court went on to hold that where a search is
not incident to an arrest, a search warrant is required
absent some exigent circumstances making it imprac-
tical to obtain it. The Court made it very clear that
the mere potential mobility of an automobile, standing
alone, does not constitute such an exigent circumstance.

' In arguing against Appellant’s motion pursuant to
Penal Code, Section 1538.5, the prosecution cited
- Chambers v. Maroney, (1970) 399 U.S. 42 and Be-
thune v. Superior Court, (1970) 11 Cal.App.3d 249.
In Chambers, supra, the defendant was arrested in an
automobile which was later taken to the police station
and searched. The Court held that given probable
cause to search, there is no difference between seizing

a

a ee

and holding the car and then getting a warrant and
an immediate search without a warrant. The holding
in Chambers was based on Carroll vy. United States,
(1925) 267 U.S. 132 which allowed warrantless
searches of autos whcre there was reasonaue or prob-
able cause to believe the automobile contained con-
traband combined with the fact that the car wes move-
able.

The crucial question is whether there was probable
cause to search. In the instant case, Appellant was ar-
rested inside of a house trailer. According to testimony
given at the special hearing on the 1538.5 motion, Ap-
pellant was there to conduct a narcotics transaction.
However, other testimony indicated he was there to
collect a debt. Regardless of which version is believed,
the fact remains that the Appellant was arrested for
possession of a dangerous drug. A subsequent search of
his person disclosed no contraband. The officers then
searched the car the Appellant had been driving. Ac-
cord:ng to the officer, he had observed Appellant mak-
ing a move toward the glove compartment of the car
before he exited. It is entirely possible that the Ap-
pellant was merely locking the passenger side door.

The Appellant had told the officer that the car was
not his, a fact later shown to be correct. It was a car
leased to one of Appellant’s friends. After an initial
search of the car during which the officer discovered
no contraband, but found the trunk and glove box to
be locked, he returned and requested the key. When
none was produced, the officer returned to the car,
broke open those two compartments and found con-
traband in the glove box.

ied > a 2 lB a

The facts recited above do not constitute probable
cause to search. The mere fact that the officer be-
lieved the car contained seizable evidence is insuffi-
cient. The Coolidge case, supra, makes it clear that
exigent circumstances must be present which makes
obtaining a search warrant impractical. Here, as in
Coolidge, the accused was already in custody. No one
else had accompanied Appellant to the trailer. It is
important to remember that Coolidge is a later state-
ment of the law from Chambers v. Maroney, supra.
When the Appellant was arrested, there was no rea-
son why the officers could not have presented an af-
fidavit to a magistrate and obtained a search warrant.

The People rely on the Bethune case, supra, in
which the defendant was arrested in a car which was
searched after the arrest. The search uncovered contra-
band in defendant’s purse which had been left in the
car. The Court in Bethune stated that Chimel was not
applicable because it was not a search incident to an
arrest and then justified the search using the Chambers
case. But, it is important to keep in mind that there
must be probable cause to believe the auto contains
contraband or seizable items. In Bethune, an extensive
police investigation had revealed much information that
the persons arrested with the defendant were involved
in narcotics transactions. The arresting officers had
even obtained a search warrant for the residence of
those persons. Here, there is nothing similar to that
situation.

The People also rely upon People v. Teale, (1969)
70 Cal.2d 497, a pre-Chambers case, supra, in which
an auto was seized and examined ten days later in a
location very distant from the place of arrest. The
court held at 70 Cal.2d 511:

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“When officers, incidental to a lawful arrest,
seize an auto or other object in the reasonatle be-
lief that such object is itself evidence’ of the
commission of the crime to which such arrest is
made, any subsequent examination of said object
undertaken for determining its evidentiary value
does not constitute a ‘search’ within the meaning
of the Fourth Amendment.” (Emphasis in orig-
inal.)

However, footnote 10 at 70 Cal.2d 5il reads as
follows:

“The italicized language is crucial. We think it
clear that the Constitution does not permit the
seizure incident to arrest merely because it is rea-
sonably believed to be a container for evidence of
the charged crime. Only an object reasonably be-
lieved to be itself evidence of the charged crime
is subject to seizure and, therefore, to detailed
examination subsequent to seizure.” (Emphasis in
original. )

In the case at bar, Appellant was arrested for pos-
session of dangerous drugs. The officers, in effect,
seized the auto when they searched it. However, the
auto itself was not the instrumentality of any crime.
The Appellant was not charged with transportation of
dangerous drugs, only possession. The car was nothing
more than a container.

The Superior Court, in denying Appellant’s motion
pursuant to Penal Code, Section 1538.5 relied on Mu-
noz v. Superior Court, (1971) 21 Cal.App.3d 805
and Medina v. Superior Court, (1972) 26 Cai.App.3d
809. Munoz is clearly distinguishable from the case at
bar. In that case, a member of a car theft ring was ar-

A ie NS ee Sa

_

rested and a car parked a short distance away was
searched and evidence seized. The Court said Cool-
idge was distinguishable because there, as in the case
at bar, all suspects were in custody. The Court in
Munoz felt that other members of the gang would pos-
sibly have come and taken the car, thus satisfying the
exigent circumstances of Coolidge.

However, the Court did state in footnote 2 at 21
Cal.App.3d 810:

“We need not, and do not, here consider the
effect of Coolidge on searches involving other fac-
tual situations, such as searches incident to lawful
impounds or incident to arrest which involve an
application of Chimel v. California (1969) 395
U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034].”

It has already been clearly shown that Chimel cannot
be used to justify the search in this case. Further, the
Superior Court’s reliance in Munoz is misplaced since
the facts there were very different. The case at bar is
very similar to Coolidge which is still the law.

In Medina, the defendant was charged with robbery.
Two men who had robbed a man of money and cer-
tain other things were later arrested in a restaurant.
They denied having an auto, but the police found one
matching a description they had seen driven, parked in
a service station across from the restaurant. They looked
in and saw what appeared to be part of the stolen
goods in plain view. They then searched the car and,
_ indeed, found what had been taken. Moreover, one of
the defendants was wearing the victim’s watch at the
time of arrest.

The Court in Medina cited Chambers v. Maroney,
supra, and held that probable cause to search the car

fee

_

did exist. However, note that the officers actually saw
part of the stolen goods in the car. There is nothing
similar to that in the case at bar. The officers here
saw nothing in the car, nor did they have any reason
to believe that contraband would be found there. fhe
Medina Court talked about mobility of the car in the
opinion, but their reliance on that is not well founded
since all the suspects were already in custody as in the
Coolidge case.

Appellant contends that the foregoing clearly shows
that the search of his car cannot be justified under
any theory advanced by the prosecution or the Superior
Court. In light of that, his motion pursuant to Section
1538.5, Penal Code, should have been granted and
all evidence seized should have been suppressed.

5. Appellant Was Arrested Without Probable Cause.

The probable cause formula is generally stated as
follows:

“Reasonable or probable cause is shown if 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.
See People v. Ingle, (1960) 53 Cal.2d 407.”

In the case at bar, no such probable cause existed.
There was conflicting testimony presented at the special
hearing on the motion pursuant to Penal Code, Sec-
tion 1538.5 as to why the Appellant had gone to the
location where the arrest occurred. According to the
officers, he had gone there to consummate a narcotics
transaction. Appellant and one other witness testified
that he had gone there to collect a debt. The officer
testified that he had seen Appellant move toward the

EPO PR RS AN nll Sr

_—

glove box of the car before he exited. Appellant de-
nied this.

When Appellant entered the trailer, he said some-
thing to the effect, “I’m confused. What was it that
you wanted?” At this point, the officers appeared and
arrested the Appellant. Prior to Appellant’s arrival at
the location, John Hardeman had called him trying to
set up a narcotics transaction. Appellant never told
Hardeman that he had any speed, nor that he intended
to sell him any. He merely indicated to Hardeman that
he would go to his residence later in the evening. Ap-
pellazt went there to collect a debt, nothing more.

The facts above do not constitute probable cause to
arrest. The officers never saw any narcotics in Ap-
pellant’s possession, nor did they see any money ex-
changed. Appellant didn’t say, “Show me the money,
I’ve got tne stuff in the car.” The prosecution produced
no evidence that would lead a reasonable man to be-
lieve that a crime had been committed.

Once it is established that the arrest was without
probable cause, all evidence seized subsequent to that
point in time must be suppressed.

People v. Cahan, (1955) 44 Cal.2d 434;
Mapp v. Ohio, (1961) 367 U.S. 643.

Conclusion.
In view of the foregoing reasons, it is respectfully
submitted that this petition be granted.
CHARLES G. RUBIN,
Attorney at Law,
Attorney for Petitioner.

\

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EXHIBIT A.
Opinion of the Court of Appeal.

In the Court of Appeal of the State of California,
Second Appellate District, Division Three.

The People, Plaintiff and Respondent, vs. John
Lawrence Reed, Defendant and Appellant. 2d Crim.
No. 24522, (Superior Ct. No. A 124802).

Filed: July 23, 1974.

APPEAL from a judgment of the Superior Court
of Los Angeles County in a prosecution for possession
for sale of a dangerous drug. Robert H. London,
Judge. Judgment of conviction of possession of a dan-
gerous drug affirmed.

Ron Minkin for Appellant.

Evelle J. Younger, Attorney General, Jack R.
Winkler, Chief Assistant Attorney General—Criminal
Division, S. Clark Moore, Assistant Attorney General,
and Juliet H. Swoboda and Shunji Asari, Deputy At-
torneys General, for Respondent.

Defendant was charged with possession for purposes
of sale of a dangerous drug in the nature of an am-
phetamine. He made a motion under Penal Code sec-
tion 1538.5 to suppress “all evidence that was ;e-
ceived at the time of the preliminary hearing” which
consisted of four envelopes containing amphetamine
sulfate and a certain credit card and driver’s license.
The envelopes were seized from an automobile while
the other objects were taken from defendant’s person
at the time of his arrest. At the 1538.5 hearing the evi-
dence and argument were directed almost exclusively

to the envelopes of drug.

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Taking the evidence most favorable to the People,
as we must in support of the judgment (People v.
Mosher (1969) 1 Cal.3d 379, 395), the following
facts were established.

On December 26, 1972, Officers Davenport and
Stevens went to a trailer home at 1548 North Topanga
Canyon to serve a search warrant on one John Harde-
man. In a conversation with Hardeman, the latter of-
fered to “do his connection” who was John Feed. To
“do his connection” means to assist the officers in mak-
ing a case against him. In pursuance of thi: offer,
Hardeman made a phone call which was listened in on
by Officer Davenport. Hardeman asked for John Reed.
A voice, which Officer Davenport subsequently recog-
nized as that of defendant, responded, “This is John.”
Hardeman then stated that he had $620 and that he
wanted “a righteous weight ounce of speed.” The term
“righteous weight” is used in the drug trade to mean a
full measure of weight. Reed then stated that he would
see Hardeman at about 8:00 p.m. at his trailer. About
9:00 p.m. the officers observed a brown car drive up
to the trailer and park, facing northbound, on the east
side of Topanga Canyon fifty to one hundred feet
south of the officers’ location. Officer Davenport had
previously assisted in narcotic investigations of John
Reed and recognized the driver and sole occupant of
the car as that person. After stopping, Reed leaned
over in the direction of the glove compartment. He
then left the car and went to the trailer home. As he
reached the door, the officers, who had concealed
themselves inside, heard him say to Hardeman, “I’m
confused. How much stuff did you want?” Knowing
from. previous experience that “stuff” is a common
word used between people who traffic in narcotics and

PIR EER LI NE STAGE LSD SORE LE CEE LSS CNL N GER ROIS pS a HI | mae

tian,

dangerous drugs as the product which they are selling
or using or dealing, the officers placed defendant under
arrest for possession of dangerous drugs. Defendant
was searched and was asked his name. In reply he
gave a name which Officer Davenport knew was not
the name of the person he had just arrested. Finding
no contraband on Reed, Officer Davenport told him
he was going to search the car which he saw him drive
up in. The officer asked for the keys. Defendant re-
sponded, “It is not my car. You can search it;” and
handed over a bunch of keys. Using one of those keys,
the officer opened the car and searched it. Finding the
glove compartment locked, Officer Davenpori asked
for the key. Defendant again responded, “It is not my
car.” Thereupon the officer forced the glove compart-
ment and found four packets containing a white pow-
dery substance that it was stipulated «at the trial would
be identified by Mr. J. Settles, an expert forensic
chemist, as Desoxyephedrene-Methamphetamine.

Insofar as the search and seizure was concerned, the
evidence at the trial was basically the same as that
presented at the 1538.5 hearing.

Appellant seeks a reversal on three bases: (1) there
was no probable cause for his arrest, (2) the search of
the automobile and seizure of the drug was illegal,
and (3) the whereabouts of John Hardeman, the in-
former and a material witness, were never provided to
appellant.

Appellant correctly states the probable cause formu-
la as follows: “Reasonable or probable cause is shown
if 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.”

Se See are . DEST A TING ER RES 9 ae OEP PL BS RITE EGE IWS Le Te PET Me

a ae

In arguing that the evidence does not meet this test,
counsel for appellant improperly states it in the light
most favorable. to appellant. (E.g., he quotes Reed’s
statement at the door to be “I’m confused. What was it
you wanted?” The trial court was justified in believing
the true statement was: “I’m confused. How much
stuff did you want?” We are bound by the latter ver- |
sion. Again he states: “Appellant went there to collect
a debt, nothing more.” The trial court was justified in
drawing the inference that appellant’s purpose was to
deliver an order of “speed.” )

Restating the evidence and the inferences to be
drawn therefrom in the light most favorable to the
People, the trial court was justified in finding that
John Hardeman, an informant of unknown reliability,
offered to set up his supplier for the police, naming his
supplier to be John Reed; pursuant to this offer the
informer placed a phone call; Officer Davenport
listened in on that call; he heard Hardeman ask for
John Reed and offer $620 for a “righteous weight
ounce of speed”; the offer was replied to by a voice
which the officer subsequently recognized as that of
John Reed, with a statement to the effect that he, Reed,
would meet Hardeman at his trailer about 8:00 p.m.
Within an hour of the appointed time defendant, whom
Officer Davenport recognized from previous narcotic
investigations, arrived and stated, “How much stuff
did you want?”

Certainly this evidence is adequate to cause a man
of reasonable care and prudence to believe that de-
fendant was present to deliver an order for dangerous
drugs and hence was guilty of the original charge of
possession for purposes of sale of a dangerous drug.

LIER IEEE NENT iY (RENO RRR ERE OO -

~~

Appellant cannot complain because the trial judge
leniently reduced the charge to simple possession.

The test of legality of the search and, seizure is sim-
ilar: Did the officer have reasonable cause to believe
the automobile contained contraband?

In Burke v. Superior Court, 39, Cal.App.3d 28, at
page 32, the rule is stated as follows: “Because of the
mobility of automobiles, and the ease with which they
may vanish while search warrants are being sought,
such vehicles are accorded a lesser degree of protection
from warrantless searches than are stationary premises.
They may be searched without a warrant when the
police have probable cause to believe they contain
contraband.” (Emphasis in original.) (See also Beth-
une v. Superior Court, 11 Cal.App.3d 249, 257.)

The rules allows search upon reasonable ground to
believe the car contains contraband even when the
search cannot be justified as an incident to a lawful
arrest. (Chambers v. Maroney, 399 U.S. 42 [26 L.Ed.
2d 419, 90 S.Ct. 1975].)

The rule of Coolidge v. New Hampshire, 403 U.S.
443 [29 L.Ed.2d 564, 91 S.Ct. 2022], relied upon by
appellant as requiring emergency or exigent circum-
stances in addition to reasonable cause, does not apply
where the articles to be seized are contraband. (People
v. Medina, 26 Cal.App.3d 809, 816.) No contraband
was involved in Coolidge v. New Hampshire, supra.

As pointed out above, we have in the case at bench
evidence justifying the trial judge in inferring that de-
fendant came to Hardeman’s trailer to make delivery
of a dangerous drug. Upon search of this person no
drug was found. But defendant gave false identification,

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—6--
warranting an inference of guilty knowledge, and the
officer had seen him move 'in the direction of the glove
compartment on parking his car. Thus, there was ade-
quate evidence to support a finding that there was
reasonable cause to believe that contraband was being
carried exactly where it was found in the glove com-
partment of the car.

Appellant complains of the denial of his motion for
new trial. His first complaint in this regard is as to the
sufficiency of the evidence. The dangerous drug was
found in an automobile driven by defendant and of
which he was recently the sole occupant. Defendant
had come to the location. after receiving an offer to
buy “speed” from him. Other facts are above stated
in connection with the validity of his arrest. The fact
that no key to the glove compartment of the car was
found in defendant’s possession or that the car was
leased by another, although made available to defend-
ant, merely caused a conflict decided against defendant
by the trier of fact.

_ Finally, defendant complains that the. whereabouts
of John Hardeman, the informer and a material wit-
ness, were never provided to him. There is no evidence
that he ever requested that the prosecution furnish him
_ the address of said witness or assist in locating him.
Admittedly, the person attempting to serve a subpoena
on this witness did not contact the Los Angeles Police
Department or the arresting officers, or check with the
Los Angeles County Jail. Mere statements of counsel
as to what he thought someone else had done are insuf-
ficient to establish any concealment or failure of the
People to cooperate or assist in locating the witness.
No motion for production of or assistance in the pro-
duction of the witness was ever made. The first time

EERE NCE LN CTO NONE RR CRI Fe nce
x bial cthia lies eee ease le Le eee a a)

_

the question of his whereabouts was raised was at the
trial when Officer Davenport was asked on cross-exam-
ination if he knew of his whereabouts and responded
that he thought Hardeman was in the Los Angeles
County Jail. This had been true a few weeks before.
Counsel asked for a fifteen-minute recess to ascertain
whether Hardeman was in jail. After the court had
given him a half hour, he stated: “It appears that we
are not going to be able to obtain the presence of this
witness and therefore rest at this time.” No motion
for further continuance nor for assistance in locating
the witness was made at that time. Eleazer v. Superior
Court, 1 Cal.3d 847, 852, requires that the police and
district attorney undertake reasonable efforts in good
faith to locate the witness so that either party, or the
court itself if it so desired, could subpoena him. The
prosecution is not required to produce the witness,
only to assist on request in his production. Eleazer
does not impose a general duty on prosecution offi-
cials to serve as defense investigators. (People v. Beagle,
6 Cal.3d 441, 450-451.)

The defendant having made no proper effort to ob-
tain information concerning, or assistance in locating,
Hardeman before or at the time of trial, the court
was not required to grant his motion for new trial and
allow him to start all over again.

The judgment is affirmed.
Whyte, J.*
We concur:
Ford, P. J.
Allport, J.

*Retired superior court judge sitting under appointment by the
Chairman of the Judicial Council.

—-S—
EXHIBIT B.
Clerk’s Office, Supreme Court, 4250 State Build-
ing, San Francisco, California, 94102.

Oct. 2, 1974.

I have this day filed Order Hearing denied.

In re: 2 Crim. No. 24522 People vs. Reed.

Respectfully,
G. E. BISHEL
Clerk

tener rere

a a et

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2172%3A1. Public record. Not legal advice.