Petition for Writ of Certiorari — Young v. California

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oo” Supreme Court, U.S.

_ FEL Ss Dp

9613388 FEB 211997

No.oggick OF THE CLERK

In The

. Supreme Court of the United States

October Term, 1996

NORMAN HAI YOUNG,

Petitioner,

Vs.

THE STATE OF CALIFORNIA,

Respondent.

On Petition For A Writ Of Certiorari To The

Court Of Appeal Of The State Of California

First Appellate District, Division Three

PETITION FOR WRIT OF CERTIORARI

Tep W. CassMAN

Cooper, ARGUEDAS & CASSMAN

5900 Hollis Street, Suite IN

Emeryville, California 94608

Telephone: (510) 654-2000

Attorneys for Petitioner

Norman Hai Young

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does California Vehicle Code Section 2805's

authorization of warrantless inspections of automobile

repair shops and numerous other locations constitute a

valid administrative inspection provision or is it instead

an unreasonable grant of warrantless search authority to

the police?

2. May police officers rely on a statutory adminis-

trative provision for warrantless inspections as a pretext

to conduct a criminal search without violating the Fourth

and Fourteenth Amendments to the United States Consti-

tution?

TABLE OF CONTENTS

Page

CPUBDIIINS PREG EDD 6 a oss ss eckccceccactecans i

TABLE UF ACEI ee «oss 50 se5sceeeasaeeeeees iii

CSP EROS TGA 5 «65. 0 ak ddsw baa ee eee 1

FPR RSE BORIS 00s 6 von gece kere ane Seana: 1

STATUTES AND CONSTITUTIONAL PROVISIONS... 1

STATEMENT OF THE CAGE . ois icin inuwlivess 3

HOW THE FEDERAL QUESTION WAS RAISED

PAINE) ERC TE RA oo vv cece cee eae 2

REASONS FOR GRANTING THE WRIT ........... 6

BROCCO. 5 5 5 xs yn 40K O re eae 6

I. VEHICLE CODE SECTION 2805 IS AN

UNCONSTITUTIONAL WARRANTLESS

SEARLE PUFVE 656s0kceeeaeens ovens: 7

A. The Automobile Repair Industry Is Not

Heavily Regulated In California......... 7

B. Section 2805 Is Not An Administrative

snapection. PRPUNEI «<< isi xddkeuekes ets 13

Il. THE FOURTH AMENDMENT CANNOT

COUNTENANCE POLICE OFFICER’S

RELIANCE ON AN ADMINISTRATIVE

INSPECTION PROVISION AS A PRETEXT TO

CONDUCT A WARRANTLESS CRIMINAL

SS a . er oe el as 18

CORSCTL AISI. 555005 5 05 05 Calin aie 23

iii

TABLE OF AUTHORITIES

Page

FEDERAL Cases

Colonnade Corp. v. United States, 397 U.S. 72, 90

S.Ct. 774, 25 L.Ed.2d 60 (1970)............... 6, 9, 14

Donovan v. Dewey, 452 U.S. 594, 101 S.Ct. 2534, 69

NE NE ONG ies dds bobs bes b5s beac sacs 7, 8,9

Long v. Van De Kamp, 722 F. Supp. 1141 (C.D. Cal.

on EERE G Apne ere 9, 10, 11, 12, 13, 19

Long v. Van De Kamp, 961 F.2d 151 (9th Cir. 1992) 10, 13

Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct.

1616, 56 L.Ed.2d 305 (1978)...........ccccccccucs 8, 9

Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78

OS 19, 2h, 2d

Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56

Se DS eg 19, 23

New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96

SL en passim

People v. Pace, 101 App.Div.2d 336, 475 N.Y.S.2d

443 (1984), aff'd, 65 N.Y.S.2d 684, 491 N.Y.S.2d

OR 8.) 20

United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1539,

ee es Y

United States v. Davis, 482 F.2d 893 (9th Cir. 1973) ....19

Whren v. United States, ___ U.S. __, 116 S.Ct. 1769,

ES 21

TABLE OF AUTHORITIES - Continued

Page

STATE CASES

Estes v. Rowland, 14 Cal.App.4th 508, 17 Cal.Rptr.

oe nr een fe ener ener Oy rar BOGIeAy. AR 19, 21

People v. Calvert, 18 Cal.App.4th 1820, 23 Cal.Rptr.

di (ial (| SENET ETE eT eT ree 5, 10, 16, 17

People v. Roberts, 2 Cal.4th 271, 6 Cal.Rptr.2d 276,

ee Rae Ae REPO OD ws 5 604 Os kaa c ea enyaienasee toe cues 5

People v. Taylor, 6 Cal.App.4th 1084, 8 Cal.Rptr.2d

We GROM s 6.2% cosa hs reread oaceni teak teers crs 5

Pinney v. Phillips, 230 Cal.App.3d 157, 21 Cal.Rptr.

FO MAPPED oi eo cic Cpavunce sie ake eeeera ies 10, 11

Rush v. Obledo, 756 F.2d 713 (9th Cir. 1995).......... 10

Terry York v. Dept. Of Motor Vehicles, 197

Cal.App.3d 307, 242 Cal.Rptr. 790 (1987).......... 11

STATUTES, Copes, CONSTITUTION, OTHER RULES

20 Sie. SORORITIES os oinkies ese Re eh kkk 1

Business and Professions Code Section 9882......... 16

Business and Professions Code Section 9984......... 10

California Code Regulations Title 16, Section 3350 .... 16

California Vehicle Code Section 2805............ passim

California Vehicle Code Sections 12000-12003........ 16

California Vehicle Code Section 11520............... 13

Fourth Amendment to the United States Constitu-

SE xi beh eek sa ctarvasonnens ae 7, ee, bo, 2s 2

TABLE OF AUTHORITIES - Continued

Page

Occupational Safety and Health Act of 1970.......... 9

United States Supreme Court Rules ee 7

United States Supreme Court Rules i) See ernenny eae l

United States Supreme Court Rules PPE axe ets nsdece l

OPINION BELOW

The unreported opinion of the Court of Appeal, First

Appellate District, Division Three for the State of Califor-

nia is reproduced in the Appendix. (App. 1.) The unre-

ported order of the Supreme Court of California denying

YOUNG '’s petition for discretionary review is also repro-

duced in the Appendix. (App. 18.)

JURISDICTION

This Court’s jurisdiction is invoked pursuant to 28

U.S.C. § 1257(a).

The judgment of the California Court of Appeal was

rendered on August 6, 1996, affirming Petitioner’s 11

convictions of state firearm possession offenses. (App. 1.)

The California Supreme Court summarily denied Young’s

request for discretionary review on November 26, 1996.

(App. 18.) Under the Rules of the United States Supreme

Court [hereafter “Supreme Court Rule”] 13(1) and 13(3),

the time period for filing this petition extends to and

includes February 24, 1997. This petition is therefore

timely filed.

STATUTES AND CONSTITUTIONAL PROVISIONS

California Vehicle Code Section 2805 provides as fol-

lows:

“(a) For the purpose of locating stolen vehicles, a

member of the California Highway Patrol, or a member of

a city police department or county sheriff’s office whose

primary responsibility is to conduct vehicle theft investi-

gations, may inspect any vehicle of a type required to be

registered under this Code, or any identifiable vehicle

component thereof, on a highway or in any public garage,

repair shop, terminal, parking lot, or new or used car lot,

automobile dismantler’s lot, vehicle shredding facility,

vehicle leasing or rental lot, vehicle equipment rental

yard, vehicle salvage pool, or other similar establishment,

or any agricultural or construction work location where

work is being actively performed, and may inspect the

title Or registration of vehicles, in order to establish the

rightful ownership or possession of the vehicle or identi-

fiable vehicle component.

“As used in this subdivision, ‘identifiable vehicle

component’ means any component which can be distin-

guished from other similar components by a serial

number or other unique distinguishing number, sign, or

symbol.

“(b) A member of the California Highway Patrol, cr

a member of a city police department or county sheriff's

office whose primary responsibility is to conduct vehicle

theft investigations, may also inspect, for the purposes

specified in subdivision (a), implements of husbandry,

special construction equipment, forklifts, and special

mobile equipment in the places described in subdivision

(a) or when such a vehicle is incidentally operated or

transported upon a highway.

“(c) Whenever possible, inspections conducted pur-

suant to subdivision (a) or (b) shall be conducted at a

time and in.a manner so as to minimize any interference

with, or delay of, business operations.”

STATEMENT OF THE CASE

The San Francisco Police Department received infor-

mation that Discount Muffler Shop on Folsom Street in

San Francisco was possibly involved in the stripping of

stolen vehicle cars and stolen vehicle parts. (RT 11-12.)!

Beginning in December 1992, Inspector Van Koll con-

ducted a criminal investigation. (RT 55-57.) On March 3,

1993 Van Koll decided to conduct a warrantless search of

the premises of Discount Muffler Shop, purportedly

under Vehicle Code § 2805. (RT 29-30; 59-60; 96; 142.) Van

Koll and five other police officers arrived at the premises

at approximately 5:15 p.m. (RT 66-67.) The officers

entered the shop simultaneously through at least four

different doors. (RT 32, 67, 70.) The officers were wearing

San Francisco Police Department jackets. Upon entering

the premises, the officers fanned out through the entire

premises. (RT 67, 70.)

Inspector Van Koll presented his police identification

to Appellant YOUNG and provided him with a copy of

Vehicle Code § 2805. (RT 30-32.) Van Koll requested that

YOUNG show him copies of his records and work orders

for all the vehicles on the premises. YOUNG was cooper-

ative, and the paperwork was in order. (RT 34, 75-76.)

‘ All citations denoted “RT” are to the Reporters’ transcript

of the hearing on YOUNG’s suppression motion on October 11,

1994. The transcript was included in the record on appeal.

Later, Van Koll observed YOUNG’s business permit from

the Bureau of Automotive Repair, which was displayed

above an office door, had expired. (RT 38.) Van Koll asked

YOUNG about the permit’s status, and YOUNG told him

that he had an updated permit in his business office. At

the same time, another officer told YOUNG that he

wished to check inside the office for vehicle parts and

components. YOUNG opened the door to his business ;

office, and Van Koll and anoth>r officer entered. (RT 38, :

78, 120-121, 148.)

As YOUNG walked toward his desk to retrieve the

permit, one of the officers noticed a knife on the desk. (RT

121-122.) The officer told YOUNG to move away from the

desk and to sit down in a chair. The officers then inquired

whether there were any other weapons in the office.

YOUNG told the officer that there was a gun underneath

the newspaper on the seat next to him. The officers

removed the newspaper and found a fully loaded

revolver. (RT 122.) The officers then inquired whether

there were any other weapons. YOUNG directed the offi-

cers to an unlocked safe on top of the desk. Inside the

safe Van Koll found three more loaded firearms. (RT 124.)

The officers then proceeded to look under YOUNG’s desk

and found approximately a pound of marijuana inside a

brown paper bag. The officers then arrested YOUNG for

suspected possession of marijuana for sale. (RT 44, 86,

126.) No stolen vehicles or vehicles components were

aR WT. serene

——

discovered by the officers.

HOW THE FEDERAL QUESTION WAS RAISED

AND DECIDED BELOW

In the trial court, YOUNG moved to suppress all

evidence seized as a result of the warrantless search of

the Discount Muffler premises on the grounds that Vehi-

cle Code § 2805 was unconstitutional and that the offi-

cers’ purported reliance on Section 2805 was a pretext for

a criminal search. (RT 63.) The superior court denied the

‘motion. (App. 21-25.) The court ruled that Section 2805

was constitutional. Further, although the superior court

expressly found that the officers’ reliance on Section 2805

was a pretext to conduct a criminal search, the court

ruled that this fact did not affect the reasonableness of the

officers’ conduct. (App. 22-24.) YOUNG timely appealed

to the California Court of Appeal.

The court of appeal agreed with both of the trial

court’s rulings. Relying on the analysis in People v

Calvert, 18 Cal.App.4th 1820, 1825-1836, 23 Cal.Rptr. 644

(1993), the court of appeal held that Vehicle Code § 2805

was a constitutionally valid administrative search provi-

sion. (App. 8-10.) In addition, the court of appeal ruled

that the officers’ subjective motivations and intentions

were irrelevant to the constitutionality of their search.

(App. 10-13.) As the Court explained, it “decline[d] to

hold the Courts must delve into the subjective motiva-

tions of officers performing otherwise objectively reason-

able and justifiable administrative inspections under

Section 2805.” (App. 13.) Without discussing whether any

deference was appropriate to the trial court’s findings

and whether the clearly erroneous standard was applica-

ble [see e.g. People v. Roberts, 2 Cal.4th 271, 303, 6

Cal.Rptr.2d 276, 826 P2d 274 (1992); People v. Taylor, 6

Cal.App.4th 1084, 1092-1093, 8 Cal.Rptr.2d 439 (1992)],

the court of appeal also “disagree[d] with the trial

court’s” finding that the officer’s reliance on § 2805 was

pretextual. (App. 11.)

REASONS FOR GRANTING THE WRIT

Introduction

The instant Petition should be granted for two rea-

sons. First, the decision of the court of appeal approves a

broad legislative delegation of warrantless search author-

ity to local police which bears no relationship to the

doctrine that this Court adopted when embracing the

administrative inspection exception to the warrant

requirement in the context of heavily regulated indus-

tries. See Colonnade Corp. v. United States, 397 U.S. 72, 90

S.Ct. 774, 25 L.Ed.2d 60 (1970); New York v. Burger, 482

U.S. 691, 699-700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987).

(hat doctrine permits legislatures to enact warrantless

inspection provisions as part of a regulatory scheme,

serving a substantial governmental interest, applicable to

a heavily regulated industry. Vehicle Code Section 2805

does not meet this standard. The statute was not adopted

as part of any regulatory scheme. The statute does not

refer to or implement any regulatory scheme. Nor is the

Statute applicable to a particular industry or related

industries. Rather, Section 2805 is an unprecedented grant

of warrantless search authority across a remarkably

broad spectrum of public and private enterprises.

Second, the court of appeal ruled that the subjective

intentions of the officers who conducted the warrantless

a aa

search of Discount Muffler were irrelevant to the propri-

ety of the search under the Fourth Amendment. (App.

13.) This ruling conflicts with this Court’s decision in

Burger and eschews this Court’s recent opinion in Whren

v. United States, _ __U.S.__, 116 S.Ct. 1769, 1773-1774, 135

L.Ed.2d 89 (1996), which expressly recognized that in the

context of an administrative inspection an officer’s sub-

jective motivation can invalidate the reasonableness of

his conduct under the Fourth Amendment.

Both of these issues constitute decisions of “an

important federal question in a way that conflicts with

relevant decisions of this Court” which are therefore

appropriate for certiorari pursuant to Supreme Court

Rule 10(c). —_

I. VEHICLE CODE SECTION 2805 IS AN UNCON-

STITUTIONAL WARRANTLESS SEARCH PROVI-

SION

The Fourth Amendment's prohibition against unrea-

sonable searches and seizures applies to commercial

premises as well as to private homes. Burger, 482 U.S. at

699. However, given the different and to some extent less

intimate privacy interests implicated by a search of a

business, together with the frequent necessity for govern-

ment regulation of businesses, this Court has established

less rigorous standards for administrative searches and

has expressly recognized that “legislative schemes

authorizing warrantless administrative searches of com-

mercial property do not necessarily violate the Fourth

Amendment.” Donovan v. Dewey, 452 U.S. 594, 598, 101

S.Ct. 2534, 69 L.Ed.2d 262 (1981) [emphasis added.]. Thus,

there are “carefully defined classes of cases” arising in

the context of pervasively regulated businesses in which

“a history of government oversight” and inspection

reduces the privacy expectations of the entrepreneur and

in which warrantless administrative searches may be con-

ducted pursuant to a valid regulatory scheme. Burger, 482

U.S. at 700-701; Donovan, 452 U.S. at 598-600.

However, even in the context of commercial enter-

prises, the Fourth Amendment warrant requirement

remains the rule, not the exception. See Marshall v. Bar-

low’s, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305

(1978). Where, as here, the police purport to conduct a

warrantless search pursuant to Statutory authorization,

the threshold question is whether the particular enter-

prise that is the subject of the search qualifies as a per-

vasively regulated business so that warrantless

administrative inspections of the premises are both justi-

fied and reasonable. See Burger, 482 U.S. at 701. But a

finding that the targeted business is subject to pervasive

government regulation does not end the inquiry. Instead,

the court must next examine the relevant statutory provi-

sions to determine whether they meet three criteria:

First there must be a ‘substantial’ government

interest that informs the regulatory scheme pur-

suant to which the inspection is made. . . . [J]

Second, the warrantless inspection must be ‘nec-

essary to further [the] regulatory scheme.’

. . - [{] Finally, ‘the statute’s inspections pro-

gram, in terms of the certainty and regularity of

its application, [must] provid[e] a constitu-

tionally adequate substitute for a warrant.’ In

other words, the regulatory statute must per-

form two basic functions of a warrant: It must

advise the owner of the commercial premises

that the search is being made pursuant to the

law and has a properly defined scope, and it

must limit the discretion of the inspecting offi-

Burger, 482 U.S. at 702-703 [citations omitted].

The “closely regulated business” exception to the

warrant requirement was first embraced by this Court in

Colonnade, 397 U.S. 72, a case involving warrantless

inspections of the liquor industry. Shortly thereafter, this

Court again invoked the warrant exception in the context

of inspections of business records of licensed firearm

dealers. United States v. Biswell, 406 U.S. 311, 92 S.Ct.

1593, 32 L.Ed.2d 87 (1972). More recently, this Court has

found the nation’s mining industry and New York’s auto-

mobile junkyards to qualify as closely regulated indus-

tries justifying limited warrantless inspections. See

Burger, 482 U.S. 691; Donovan, 452 U.S. 594. By contrast, in

Marshall, 436 U.S. at 313-314, this Court declined to find

that all businesses affecting interstate commerce were

pervasively regulated despite Congress’ enactment of a

complex regulatory scheme in the Occupational Safety

and Health Act of 1970.

A. The Automobile Repair Industry Is Not

Heavily Regulated In California.

Applying these standards to the instant case, it is

clear that the automobile repair industry is not per-

vasively regulated within the meaning of Colonnade and

its progeny. See Long v. Van De Kamp, 722 F. Supp. 1141

(C.D. Cal. 1991).2 But see Calvert, 18 Cal.App.4th at

1831-1836. True, the Business and Professions Code con-

tains provisions for the registration of automobile repair

shops. See Business and Professions Code §§ 9984 et seq.

But even California’s courts have recognized that the

existence of registration and licensing provisions are not

the sine qua non for a finding of pervasive regulation:

Arguably substantially all laws licensing busi-

nesses or professions were enacted to protect

the public from dishonest and incompetent peo-

ple engaging in licensed activity. Yet, all such

licensed businesses or professions may not be

considered pervasively regulated or the closely

regulated business exception to the warrant

requirement would no longer be the exception

but the rule.

Pinney v. Phillips, 230 Cal.App.3d 157, 1585, 21 Cal.Rptr.

904 (1991). See also Rush v. Obledo, 756 F.2d 713, 722 (9th

Cir. 1995) (“we cannot stress forcibly enough that there is

no basis for applying the ‘pervasively regulated business’

exception to the warrant requirement merely because a

business . . . requires a license.”); Long, 722 F. Supp. at

1149 (“unless every industry in California is to be

deemed pervasively regulated, the requirement of a

license without more, cannot diminish the proprietor’s

? The decision in Long was later vacated by a panel in the

Ninth Circuit Court of appeals on jurisdictional grounds. See

Long v. Van De Kamp, 961 F.2d 151 (9th Cir. 1992). At the same

time, however, the Ninth Circuit found the district court’s

“well-reasoned examination of the Fourth Amendment issue

persuasive. ...” Id. at 153. For the reasons set forth below, we

believe the district court’s reasoning was both compelling and

correct.

Rt PEN RNS ae INE ee

constitutional guarantee against the unwarranted govern-

ment intrusion into his private commercial premises.”).

The automotive repair industry is subject to no

greater regulation than electrical contractors and auto-

mobile dealers. See Pinney, 230 Cal.App.3d at 1538-1586;

Terry York Imports, Inc. v. Dept. of Motor Vehicles, 197

Cal.App.3d 307, 319-320, 242 Cal.Rptr. 790 (1987). That

was the precise conclusion reached by a federal district

court in Long, 722 F. Supp. 1141. In the context of a

constitutional challenge to the warrantless search provi-

sions of Vehicle Code § 2805, the court in Long found the

State’s registration statute to be so “meager” that it “can-

not be stretched to take the place of a pervasive regula-

tory scheme.” Id. at 1149. Moreover, the avowed purpose

of § 2805’s search provisions - i.e., locating stolen vehi-

cles - was divorced from any regulatory scheme applica-

ble to automotive repair shops. Id. at 1146-1147.

“Presumably it is the VIN number that would be helpful

in tracing or locating stolen vehicles, not the repair shop’s

estimate on the installation of a new muffler.” Id. at

1149-1150. Yet, the court noted in Long, § 2805 does not

refer to, let alone enforce, any California law or regula-

tion requiring repair shops to maintain “a record of VIN

numbers or registration papers of vehicles serviced... . ”

Id. at 1149. Thus the court held that “§ 2805 cannot be

upheld as directed at a pervasively regulated industry”

and found that the statute’s “only purpose is to uncover

evidence of criminal violations. ...” Id. at 1147, 1150.

In reaching these conclusions, the court in Long

readily distinguished the warrantless inspection provi-

sions that the Supreme Court analyzed in Burger. First

unlike the automobile dismantling industry, the automo-

tive repair industry did not constitute a “new branch” of

the long-regulated junkyard business. Id. at 1155.

[In addition] the regulatory scheme addressed

in Burger required a junkyard dealer to obtain an

operating license, which could be refused if the

applicant had previously been convicted of pos-

session of stolen property, and to maintain a

‘police book’ recording the acquisition and dis-

position of motor vehicles and vehicle parts.

[citations omitted.] Police officers and agents of

the Department of Motor Vehicles were autho-

rized by statute to examine the police book and

to compare the entries in the book against the

Vehicle Identification Numbers (VINs) of vehi-

cles and vehicle parts found on the premises.

Long, 772 F. Supp. at 1145 [citations omitted]. By requir-

ing that automobile dismantlers maintain a “police book”

or lose their licenses, New York’s regulatory scheme

could be expected to deter the market in stolen vehicles

(wholly apart from the state’s penal approach to the same

problem), by helping to insure that unscrupulous entre-

preneurs were excluded from the automobile dismantling

business. Burger, 482 U.S. at 715-716; Long, 772 F. Supp. at

1148. Moreover, New York’s provision for the warrantless

inspection of automobile dismantlers’ records, which was

enacted as part of the same regulatory scheme, furthered

those same objectives by permitting police officers to

inspect the dismantlers’ “police books.” Burger, 482 U.S.

at 710. Thus, the search provisions had a regulatory pur-

pose wholly apart from any effect they might have on

criminal enforcement. Id. at 712-713.

By contrast, the court in Long recognized, the Califor-

nia Vehicle Code imposes no similar record-keeping func-

tion on automobile repair shops. Compare Vehicle Code

§ 11520 (auto dismantlers). As a consequence, officers in

California who would invoke § 2805 have nothing admin-

istratively to “inspect” or to “look for” aside from evi-

dence of criminal wrongdoing. Long, 722 F. Supp. at 1147.

Thus, unlike the inspection provisions which the

Supreme Court evaluated in Burger, § 2805 is merely “an

expedient means of enforcing the Penal Code without

observing the guarantees of the Fourth Amendment.” Id.

at 1147.3

B. Section 2805 Is Not An Administrative Inspec-

tion Provision.

In Burger, the State of New York enacted an extensive

statutory scheme establishing an administrative regime

under the Commissioner of the Department of Motor

Vehicles for the regulation of automobile dismantlers.

Burger, 482 U.S. at 693, n. 1. The Statutory scheme was

expressly designed to address the State’s significant and

growing problem of automobile theft by ensuring that car

thieves could not find a market in which to sell their ill-

gotten goods. Id. at 708. Toward that end, the statute

required that automobile dismantlers be licensed and

“maintain a police book recording the acquisition and

° We reiterate that although the Ninth Circuit Court of

Appeals vacated the district court’s decision in Long for want of

jurisdiction, the Court of Appeals also opined that the lower

court’s analysis of the Fourth Amendment issues was “well-

reasoned” and “persuasive.” Long, 961 F.2d at 153.

disposition of motor vehicles and motor vehicle

parts....” Id. at 694, n. 1, and 704. The statute further

provided that each auto dismantler must “display his

registration number prominently at his place of business,

on business documentation, and on vehicles and parts as

they pass through his business.” Id. at 704. To ensure

compliance with these provisions, the statute required

that, upon the request of a police officer, dismantlers

make their “police book” and all vehicles or parts subject

to the recordation requirement available for inspection.

Id. at 704. A failure to comply with any of these provi-

sions subjected the owner to a possible loss of license,

civil fines and criminal penalties. Id. at 693, n. 1, and 704.

Relying on these and other regulatory provisions

applicable to automobile dismantlers under New York

law, the Supreme Court first held that auto dismantlers

constitute a heavily regulated industry. Burger, 482 U.S. at

703-707. As the Court explained, the proper focus is

whether “the regulatory presence is sufficiently compre-

hensive and defined that the owner of commercial prop-

erty cannot help but be aware that his property will be

subject to periodic inspections undertaken for specific

purposes.” Id. at 705, n. 16. Given the specific regulations

applicable to automobile dismantlers requiring that they

be licensed, that they comply with record-keeping provi-

sions, and that they submit to inspection to ensure com-

pliance, the Court ruled that the industry was heavily

regulated within the meaning of Colonnade.

The Court then moved on to evaluate the three crite-

ria that must be satisfied by a regulatory scheme in order

for a provision for warrantless inspections to be reason-

able — i.e., whether the regulatory scheme serves a sub-

stantial government interest; whether the warrantless

search provision is necessary to further the regulatory

scheme; and whether the statutory inspection provision is

sufficiently specific to constitute an adequate substitute

for a warrant. Burger, 482 U.S. at 708-712. The Court

found that the first criterion was Satisfied because New

York State had a substantial interest in regulating the

automobile dismantling industry due to the increasing

problem of vehicle theft, which the legislature found to

be associated with the industry. Id. at 708. The second

criterion was met because the State legislature rationally

concluded that “it will reduce car theft by regulations

that prevent automobile junkyards from becoming mar-

kets for stolen vehicles and that help trace the origin and

””

destination of vehicle parts ... ” and because surprise

inspections are necessary to ensure compliance. Id. at

709-710. Finally, the third criterion was Satisfied because

the regulatory statute informed the operators of auto-

mobile dismantling businesses that their premises would

be subject to a periodic inspection of the police book and

of vehicles and vehicle parts subject to the recordation

requirement. Id. at 710-712.

Here, in stark contrast to Burger, the State of Califor-

nia has enacted no regulatory scheme, applicable to auto-

mobile repair shops, which is designed to prevent that

industry from becoming a market for stolen vehicles and

parts. Unlike Burger, California has no requirement that

automobile repair owners maintain records of vehicles

and parts, for the purpose of deterring the purchase of

stolen items.* Nor does California require that auto repair

shops prominently display their registration numbers on

vehicles and parts that move through the premises. Nor

are there any other regulatory provisions, directed

toward the prevention of vehicle thefts, which are appli-

cable to repair shops. Compare Burger, 482 U.S. at 693,

704.

Vehicle Code § 2805 stands alone, entirely divorced

from any regulatory scheme. The warrantless search pro-

vision was not enacted as part of any regulatory scheme,

does not purport to enforce or ensure compliance with

any specific regulations, and has never been incorporated

into any regulatory body of law. Compare Burger, at

693-694. No regulatory scheme, applicable to auto repair

shops, mandates compliance with a § 2805 inspection as a

licensing condition or imposes penalties for the failure to

comply. Compare Burger at 693-694. Conversely, § 2805

does not authorize the inspection of any business records

4 This is not to say that there are no regulatory schemes

applicable to automobile repair shops in California. There are in

fact licensing requirements which are designed to ensure that

auto repair shops are run by reputable people and other

regulatory provisions which are expressly intended to prevent

consumer fraud, primarily by the prevention of the secretive

use of used or defective parts. See Vehicle Code § 12000-12003,

Business & Professions Code § 9882; Cal. Code Regs., Tit. 16

§ 3350. See also Calvert, 18 Cal.App.4th at 1832-1834. But none of

these provisions addresses the problem of stolen vehicles and

parts flowing through repair shops, and none are subject to

enforcement through Vehicle Code § 2805 inspections, which

authorizes an inspection only of vehicles, vehicle parts, and

vehicle title or registration. § 2805(a).

required to be maintained by an auto repair shop. Com-

pare Burger, at 703-704. Indeed, the wary automobile

iepair shop owner will search in vain through the entire

panoply of administrative provisions in the Business &

Professions Code, the regulations adopted thereunder,

and the Vehicle Code to locate any requirement that he

maintain a record of the identification numbers for vehi-

cles and parts flowing through his premises, as part of a

program to deter the purchase of stolen parts. There is no

such program; and, as a consequence, § 2805 enforces no

such program.

Nor does § 2805 specifically apply to automobile

repair shops and related industries. Compare Burger, 482

U.S. at 705, n. 16, and 711. Instead, § 2805’s inspection

provisions appiy to a broad spectrum of public activities

and locations, including cars on the highways or in

garages, parking lots, new or used car lots and numerous

other locations not logically associated with the same

types of concerns about stolen vehicles and parts that

might arise in the context of repair shops. Thus, Vehicle

Code § 2805 is not an enforcement mechanism for a

regulatory scheme in the automobile repair industry. It is

instead, and however well intentioned, a broad grant of

warrantless search authority to police officers. As such, it

is patently and irretrievably unconstitutional.

It was the failure to address this fundamental point

which undermines the analysis of the court of appeal. See

also Calvert, 18 Cal.App.4th at 1832-1836. Vehicle Code

§ 2805 simply is not a regulatory enforcement mecha-

nism. Rather, the statute is carte blanche for police to

inspect vehicles, vehicle parts and ownership documenta-

tion virtually wherever and whenever they desire. This

conclusion is underscored not only by the statute’s

breadth, but also by its express objective — i.e. “locating

stolen vehicles.” That goal, however laudable, does not

include enforcing compliance with any administrative

regulation.® In short, there is no regulatory scheme here,

just a warrantless search provision. As such, § 2805 fails

to pass muster because it is not necessary to further any

regulatory scheme and is not administrative. Burger, 482

U.S. at 708-710, 717.

Il. THE FOURTH AMENDMENT CANNOT COUNTE-

NANCE POLICE OFFICERS’ RELIANCE ON AN

ADMINISTRATIVE INSPECTION PROVISION AS

A PRETEXT TO CONDUCT A WARRANTLESS

CRIMINAL SEARCH

The starting point for this Court’s analysis in Burger

was the proposition that the officers’ search in that case

was indeed administratively motivated:

There is . . . no reason to believe that the instant

inspection was actually a ‘pretext’ for obtaining

evidence of respondent's violation of the Penal

laws. It is undisputed that the inspection was

° In reaching a contrary conclusion, the court of appeal

improperly relied on statutes and regulations which, though

imposing some record keeping responsibilities on automobile

repair shops, were enacted after § 2805 became law, operate

completely independent of and include no reference to § 2805,

and do not have as their object the prevention of a market for

stolen vehicles and vehicle parts. (App. 9.) Instead, the

provisions relied upon by the court of appeal are consumer

protection regulations, entirely divorced from the purpose

which supposedly informs § 2805.

made solely pursuant to the administrative

scheme.

Burger, 482 U.S. at 691, n. 27. The courts have long recog-

nized that an administrative or regulatory search is one

“conducted as part of a general regulatory scheme in

furtherance of an administrative purpose, rather than as

part of a criminal investigation to secure evidence of

crime.” Estes v. Rowland, 14 Cal.App.4th 508, 522, 17

Cal.Rptr. 901 (1993), quoting United States v. Davis, 482

F.2d 893, 908 (9th Cir. 1973). Indeed, this Court has

always adhered to the principle that if “the primary

object of a search is to gather evidence of criminal activ-

ity, a criminal search warrant [must] be obtained... . ”

Michigan v. Clifford, 464 U.S. 287, 294, 104 S.Ct. 641, 78

L.Ed.2d 477 (1984). See also Michigan v. Tyler, 436 U.S. 499,

98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). As the court stated in

Long, “[a]dministrative inspections schemes are not

meant to trump the constitutional guarantees applicable

to criminal investigations.” Long, 772 F. Supp. at 1145

[citations omitted].

In Burger, the officers who executed the inspection

were members of a police division that conducted such

inspections on a regular basis, about 5 to 10 times a week.

Burger, 482 U.S. at 694. The record established that the

officers selected a particular business for inspection from

a list of auto dismantling businesses compiled by another

division of the police department. Id. at 694. It was

“undisputed that the inspection was made solely pur-

suant to the administrative scheme... ” and this Court

emphasized that the fact that the search was not a “pre-

text” for a criminal search permitted the appellate courts

to address the question of the warrantless inspection

provision’s constitutionality. Id. at 716, n.27. In fact, this

Court noted with approval that the New York Court of

Appeals had refused to address the constitutionality of

the auto dismantler’s inspection scheme in a previous

case because “the police officers in that case were not

conducting an administrative inspection, but were acting

on the basis of recently discovered evidence that criminal

activity was taking place at the automobile salvage yard.”

Id. at 697, n.7, citing People v. Pace, 101 App.Div.2d 336,

475 N.Y.S.2d 443 (1984), aff'd, 65 N.Y.S.2d 684, 491

N.Y.S.2d 618, 481 N.E.2d 250 (1985). Thus, even as this

Court recognized that administrative regulatory schemes

are not invalid merely because they address the same

problems as penal laws and that an administrative

inspection scheme is not rendered unconstitutional

merely because an officer may discover evidence of crime

in the course of an enforcement inspection, this Court

insisted that the inspection itself must “truly” be admin-

istrative. Burger, 482 U.S. at 716, n.27.

Here, as in Pace, the officers attempted to justify their

warrantless criminal search by reference to a statutory

inspection procedure. Indeed, the record in this case

amply demonstrates that the impetus for the inspection

was a criminal investigation, and the trial court found

that the inspection was in fact a pretext for a “criminal

search.” (App. 22-23.) But as this Court recognized, the

police must establish that their inspection was in fact

administrative and not criminal, as a prerequisite to

reliance on an administrative search procedure. Burger,

482 U.S. at 716, n.27. See also Pace, 475 N.Y.S.2d at 446;

People v. Burger, 67 N.Y.2d 338, 342-343, 502 N.Y.S.2d 702,

493 N.E.2d 926 (1986). This rule is consistent with the

Court’s long standing recognition that an administrative

search is one that is “conducted as part of a general

regulatory scheme in furtherance of an administrative

purpose, rather than as part of a criminal investigation to

secure evidence of crime.” Estes, 14 Cal.App.4th at 522.

By contrast, where as here the “primary object of the

search is to gather evidence of criminal activity, a crimi-

nal search warrant [must] be obtained. ... ” Clifford, 464

U.S. at 294.6

Very recently, no less a constitutional authority than

Justice Scalia re-affirmed that an officer may not use an

administrative inspection provision to evade the Fourth

Amendment's requirements for a criminal search war-

rant. In Whren v. United States, 116 S.Ct. 1769, this Court

confronted the issue whether a traffic stop that was justi-

fied by probable cause was nevertheless unreasonable

because the officer’s subjective intent was to use the stop

as a pretext for investigating other suspected criminal

activity. Given the fact that, regardless of the officer’s

subjective intentions, his conduct was objectively justified

by probable cause, this Court held that the officer’s “pre-

text” did not implicate the Fourth Amendment. However,

in so ruling, this Court expressly distinguished the signif-

icance of an officer’s subjective intent in an administra-

tive search context. As Justice Scalia explained:

° We emphasize that, for the reasons previously stated,

there can be no administrative inspection pursuant to Vehicle

Code § 2805. That section simply is not part of a “general

regulatory scheme” and has no “administrative purpose.” But

here, in addition to the defects in the statute, the record

establishes that the officers’ motivation was in fact a criminal

investigation.

[O]nly an undiscerning reader would regard

these cases as endorsing the principle that ulte-

rior motives can validate police conduct that is

justifiable on the basis of probable cause to

believe that a violation of the law has occurred.

In each case we were addressing the validity of

a search conducted in the absence of probable

cause. Our quoted statements simply explain

that the exemption from the need for probable cause

(and warrant), which is accorded to searches made

for the purpose of inventory or administrative regu-

lation, is not accorded to searches that are not made

for these purposes.

Id. at 1773. (Italics in original, citations omitted, underline

added). The Court went on to emphasize that administra-

tive inspections and inventory searches are two contexts

in which the Court has held that “an officer’s motive

[may] invalidate[ ] objectively reasonable behavior under

the Fourth Amendment... . ” Id. at 1774.

Whren reaffirmed the principle which was already

clear from the Court’s decision in Burger: Because an

administrative inspection is one that is undertaken for

the purpose of “enforcing a pervasive regulatory scheme”

(116 S.Ct. at 1773, n. 2), an inspection that is undertaken

for any other purpose is, by definition, not an administra-

tive inspection and cannot lawfully be justified as such.

Or, to paraphrase Justice Scalia, the exemption from prob-

able cause and warrant which is accorded to administra-

tive search “is not accorded to searches that are not made

for [that purpose].” Id. at 1773 [emphasis in original].

Here, there can be no doubt that the sole motivation

for the officers’ intrusion into the premises of Discount

Muffler on March 3, 1993 arose from their desire to collect

—

evidence of criminal violations, and the trial court so

found.” The evidence established that the officers in this

case had received information of criminal violations at

Discount Mufflers and had conducted a fruitless criminal

investigation over several months before turning to the

subterfuge of a “business inspection.” Although both Van

Koll and Nannery knew that such inspections are

required to be “arbitrary” or to occur “randomly” (RT 26,

111), the search of Discount Muffler was neither. Instead,

as the trial court expressly found, the so-called inspection

was a “pretext” for a criminal search, as demonstrated by

the manner and timing of its execution. (App. 22-23.)

Contrary to the trial court’s ruling, the Supreme Court’s

precedents do not require, let alone permit, such a pretext

to stand. Instead, where as here the primary object of the

search is a criminal investigation, the officers must obtain

a criminal search warrant. Clifford, 464 U.S. at 294.

Because the officers in this case proceeded without a

warrant, the trial court erred by denying the motion to

suppress and the court of appeal’s judgment affirming

Young’s conviction cannot be permitted to stand.

CONCLUSION

For the reasons stated, Petitioner’s petition for cer-

tiorari should be granted, the judgment of the California

? The Court of Appeal disagreed with the trial court’s

finding but failed to accord any deference to that finding or to

evaluate it under the “clearly erroneous” standard. See Taylor, 6

Cal.App.4th at 1092-1093.

court of Appeal reversed, and the case remanded for

further proceedings. -

DATED: February 20, 1997

Respectfully submitted,

Cooper, ARGUEDAS & CASSMAN

Tep W. CaAssMAN

App. 1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

A067922

(San Francisco

ee ee ee ee ee ee et ee

NORMAN HAI YOUNG, County

Defendant and Appellant. Super. Ct.

No. 153317)

(Filed

Aug. 6, 1996)

Norman Hai Young appeals from a judgment and

order of probation entered after he pleaded guilty to 11

counts of possession of illegal firearms. He contends that

Vehicle Code section 2805 (hereinafter Section 2805), the

statute authorizing the warrantless administrative search

which led to the seizure of the illegal firearms, is uncon-

stitutional; the search was not in compliance with Section

2805; and his purported consent to the search of his

business premises and residences was involuntary. We

disagree, and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In October and November 1992, the San Francisco

police obtained evidence and received allegations from

App. 2

neighboring business indicating that the Discount Muf-

fler shop on Folsom Street in San Francisco was possibly

involved in facilitating automobile theft through the

“stripping” of stolen cars, the exchange of stolen parts

between vehicles, and the removal of vehicle identifica-

tion numbers. In December 1992, San Francisco Police

Inspector Richard John Van Koll opened a criminal inves-

tigation of Discount Muffler. Van Koll conducted surveil-

lance of Discount Muffler on two separate occasions, but

could find no evicence of any criminal activities on the

premises.

On March 3, 1993, at approximately 5:15 p.m., Inspec-

tor Van Koll went to the Discount Muffler shop with five

other police officers to conduct an administrative inspec-

tion pursuant to Section 2805.1! His purpose was to

1 Section 2805 provides in pertinent part: “(a) For the

purpose of locating stolen vehicles, . ..a member of a city police

department or county sheriff’s office whose primary

responsibility is to conduct vehicle theft investigations, may

inspect any vehicle of a type required to be registered under this

code, or any identifiable vehicle component thereof, on a

highway or in any public garage, repair shop, terminal, parking

lot, new or used car lot, automobile dismantler’s lot, vehicle

shredding facility, vehicle leasing or rental lot, vehicle

equipment rental yard, vehicle salvage pool, or other similar

establishment, . . . and may inspect the title or registration of

vehicles, in order to establish the rightful ownership or

possession of the vehicle or identifiable vehicle component.

“As used in this subdivision, ‘identifiable vehicle

component’ means any component which can be distinguished

from other similar components by a serial number or other

unique distinguishing number, sign, or symbol.

App. 3

determine whether the business was legitimate, to ascer-

tain whether any vehicles or vehicle components on the

premises were stolen or dismantled, and “to close [his]

case.”2 Van Koll brought the other officers in order to

expedite the inspection and minimize disruption of the

on-going business, which was located in a large two-story

building with approximately 10,000 square feet of space.

The officers, wearing San Francisco Polite Department

jackets, split up and entered the shop through four sepa-

rate doors. They did not secure the entrances or bar

anyone from leaving the facility.

Inspector Van Koll presented his identification as a

police officer and asked to speak to the owner. When

appellant identified himself as the owner, Van Koll told

him the purpose of the inspection and gave him a copy of

Section 2805. Van Koll then toid appellant to continue

conducting his business normally, and assured him that

the officers would try to minimize any disruption. Pur-

suant to Business and Professions Code section 9884.11,5

DORE E HEHE EEE EEE EEE E EEE EEE EEE EEE EEE SEE EEE EE EE EEE EEE EEE EEE EEE EEE EEE EEE EEE EEE E HEE EEE EEE EEE EHEEEE EEE EEEEEE

“(c) Whenever possible, inspections conducted pursuant

to subdivision (a) . . . shall be conducted at a time and in a

manner so as to minimize any interference with, or delay of,

business operations.” (Italics added.)

2 Inspector Koll was joined by Inspectors Nannery,

Chignell, Logan and Totah, and Lieutenant Camara.

3 Business and Professions Code section 9884.11 provides:

“Each automotive repair dealer shall maintain any records that

are required by regulations adopted to carry out this chapter.

Those records shall be open for reasonable inspection by the

chief or other law enforcement officials. All of those records

shall be maintained for at least three years.” This statute is part

of Chapter 20.3 of Division 3 of the Business and Professions

App. 4

Van Koll asked appellant to produce records and work

orders for all the vehicles on the premises. Appellant was

cooperative and Van Koll found that all the paperwork

was in order. Meanwhile, Inspector Nannery walked

upstairs to inspect vehicles and vehicle parts and compo-

nents that might be there. Nannery found a trunk lid,

fenders, manifolds and wheels. Nannery thought it

unusual to find disassembled vehicle body parts in a

facility for repairing mufflers and brakes. Nannery went

back downstairs to look for more vehicle body parts,

sheet metal, engines or transmissions that might be

unusual in a muffler and brake repair facility, but found

nothing out of the ordinary. During the investigation,

business continued as usual in the shop, and customers

and employees were free to come and go.

Inspector Van Koll observed appellant's business per-

mit from the Bureau of Automotive Repair framed above

his office door. Van Koll noticed that the permit had

Code, entitled the Automotive Repair Act. (Bus. & Prof. Code,

§ 9880 et seq.)

California Code of Regulations, title 16, section 3358,

adopted pursuant to this provision, states: “Each automotive

repair dealer shall maintain legible copies of the following

records for not less than three years:

“(a) All invoices relating to automotive repair including

invoices received from other sources for parts and/or labor.

“(b) All written estimates pertaining to work performed.

“(c) All work orders and/or contracts for repairs, parts

and labor. All such records shall be open for reasonable

inspection and/or reproduction by the [Bureau of Automotive

Repair] or other law enforcement officials during normal

business hours.”

App. 5

expired, and pointed this out to appellant. Appellant

responded that he had an updated permit in the drawer

of his desk in his business office, and proceeded to open

the door to his office. At the same time, Inspector Nan-

nery asked appellant if he could check inside the office

for any other vehicle parts or components. Appellant

directed Van Koll and Nannery into his office.

As appellant walked toward his desk to retrieve the

permit, Inspector Nannery observed a knife on the desk.

Concerned for officer safety, Nannery told appellant to

move away from the desk and to sit down on a chair, and

asked appellant if there were any more weapons or any

guns in the office. Appellant said there was a gun under-

neath a newspaper on the seat next to him. Van Koll

removed the newspaper and found a fully loaded Charter

Arms .38 caliber revolver. Nannery asked if there were

any more weapons in the office. Appellant directed the

officers to an unlocked safe on top of the desk. Inside the

safe, Van Koll found three guns: an Inter Arms .20 milli-

meter, a .380 Walther semiautomatic, and a North Ameri-

can Derringer, all fully loaded. Asked if there were any

more weapons, appellant said no. Inspector Nannery

looked around the room to see if there were any other

weapons within appellant’s reach. In doing so, he saw a

plastic bag of what appeared to be a pound of marijuana.*

Appellant exclaimed, “I’m just holding it for someone.”

* Inspector Van Koll testified that the plastic bag was inside

a brown bag underneath the desk. Inspector Nannery testified

that the plastic bag containing the marijuana “was not covered

up in a brown paper bag.”

App. 6

The officers then placed appellant under arrest for sus-

pected possession of marijuana for sale, and handcuffed

his hands behind his back.

At this point, the nature and purpose of the officers’

investigation changed from administrative to criminal.

Appellant was advised of and waived his Miranda rights.5

In a tape-recorded interview, he told the officers he had

given $800 to one of his employees to purchase the mari-

juana because the employee needed it for medicinal pur-

poses, and he was keeping the marijuana in his office for

the employee to use. Appellant gave the officers permis-

sion to search the rest of his office. At this point, appel-

lant told them that there was an illegal weapon concealed

in a brown bag underneath a lap top computer. Inspector

Van Koll found a Mac Cobray .10 millimeter gun with no

visible serial number in the location to which appellant

directed him. Appellant told the officers. he had loaned an

employee $500 to purchase the gun “off the street,” and

was keeping the gun as collateral pending return of his

loan. Appellant appeared nervous during questioning

and he told the officers that he was “scared.”

In their search of the office, the Inspectors Van Koll

and Nannery found “large amounts” of cash and ammu-

nition, apparent diamonds, several large Bowie knives,

and a bullet-proof vest. The officers asked appellant for |

permission to search his residence. Appellant readily

agreed, saying “[O]h, sure, no problem,” or words to that

effect. At about 6:45 p.m., Inspector Nannery and another

officer drove appellant to his residence in San Francisco.

5 Miranda v. Arizona (1966) 384 U.S. 436.

a ey oe,

App. 7

After unlocking his front door for the officers, appellant

directed them to three locations, two of them locked,

where they found a fully automatic machine gun and

about 30 other weapons. The officers did not search areas

in the house where appellant said there were no

weapons.

Appellant told the officers he had a second residence

in Hillsborough, where he also had guns. At approxi-

mately 8:30 p.m., the officers drove appellant to the Hills-

borough residence. Again opening his home for the

officers, appellant directed them to two safes in the guest

house, where they found a .50 caliber gun and approxi-

mately 20 other weapons. The officers found about 1,000

rounds of ammunition, including numerous rounds for

the .50 caliber weapon. The officers did not search appel-

lant’s residence, but simply went to the locations where

appellant directed them to find weapons. In all, the offi-

cers seized approximately 93 weapons. -

On November 16, 1993, the San Francisco Grand Jury

returned an indictment charging appellant with one

count of possessing a machine gun (Pen. Code, § 12220),6

one count of possessing a firearm with an altered or

obliterated serial number (§ 12090), nine counts of pos-

sessing an assault weapon (§ 12280, subd. (b)), and one

count of possession of marijuana for sale (Health & Saf.

Code, § 11359). Appellant pleaded not guilty. The trial

court denied appellant’s section 1538.5 motion to sup-

press the evidence, and granted his subsequent motion to

references are to the Penal Code.

App. 8

withdraw his plea of not guilty. Appellant pleaded guilty

to the 11 weapons charges, and the single charge of

possession of marijuana for sale was dismissed. The trial

court sentenced him to three years of felony probation.

This appeal followed pursuant to the trial court’s issu-

ance of a certificate of probable cause.

CONSTITUTIONALITY OF SECTION 2805

As indicated, the officers in this case initially based

their investigatory search of appellant’s business on the

provisions of Section 2805. Among other things, this stat-

ute authorizes inspections of automobile repair shops to

examine the title or registration of vehicles and vehicle

components, for the purposes of establishing rightful

ownership or possession and locating stolen vehicles.

Appellant first contends that the administrative search

provisions of Section 2805 are unconstitutional as applied

to automobile repair shops. The contention is without

merit.”

Because commercial property owners have lower

expectations of privacy in their places of business than do

individuals in their private residences, the Legislature

has comparatively greater latitude to enact statutes and

regulations providing for warrantless administrative

inspections and searches of commercial property. (New

York v. Burger (1987) 482 U.S. 691, 699-700; Donovan v.

7 We note that this same contention was recently addressed

and rejected in People v. Calvert (1993) 18 Cal.App.4th 1820,

1825-1836. We agree with the analysis and conclusions in that

case.

—-—---

App. 9

Dewey (1981) 452 U.S. 594, 598-599.) In order to pass

constitutional muster, statutes and regulations permitting

warrantless inspections must fulfill a number of require-

ments. First, they can apply only to “closely regulated”

industries with a history of government oversight. Sec-

ond, there must be a substantial government interest

underlying the regulatory scheme authorizing the inspec-

tion. Third, the warrantless inspections must be necessary

to further the regulatory scheme. Fourth, the statutory

inspection program must provide a constitutionally ade-

quate substitute for a warrant that advises the owner that

the search is made pursuant to law and defines a limited

scope of discretion for the inspecting officers. (New York v.

Burger, supra, 482 U.S. at pp. 700-703.)

Section 2805 meets these constitutional tests. The

automobile repair business is a closely regulated industry

governed by extensive, detailed, statutory and regulatory

provisions in the Business and Professions Code, the

Vehicle Code, and the Code of Regulations. (Bus. & Prof.

Code, § 9880 et seq.; Veh. Code, §§ 10653, 12000-12003;

Cal. Code Regs., tit. 16, § 3350 et seq.) These statutes and

regulations require extensive recordkeeping and strict

accountability for replacement of vehicle parts, and man-

date that both repair facilities and business-related paper

work be open and available for reasonable on-site inspec-

tion by law enforcement officials. (Bus. & Prof. Code,

§§ 9884.11, 9889.39; Cal. Code Regs., tit. 16, § 3358; People

v. Calvert, supra, 18 Cal.App.4th at pp. 1832-1836.) There

is a substantial and legitimate government interest in the

prevention of automobile theft. The warrantless adminis-

trative inspection provisions of Section 2805 are neces-

sary to further the public policy purpose of deterring

App. 10

automobile theft because of the difficulty of detecting

stolen vehicles and vehicle components as they pass

quickly and undetected through repair shops. (New York

v. Burger, supra, 482 U.S. at pp. 708-710; Donovan v. Dewey,

supra, 452 U.S. at p. 600; United States v. Biswell (1972) 406

U.S. 311, 316.) Finally, the administrative inspection pro-

cedure set out in Section 2805 provides a constitutionally

adequate substitute for a warrant, by putting automobile

repair shop owners on statutory notice that their prem-

ises may be inspected at any time without notice for the

specific limited purpose of finding evidence of stolen

vehicles and vehicle components. (Donovan v. Dewey,

supra; 452 U.S. at p. 600.)

The constitutionality of Section 2805 is not affected

by the fact that its purpose in establishing a procedure for

warrantless administrative inspection of automobile

repair shops overlaps the criminal purposes of the Penal

Code. States may address significant societal problems

such as widespread vehicle theft through both adminis-

trative schemes and penal sanctions. For this reason, an

administrative inspection such as Section 2805 may prop-

erly respond simultaneously to the usual purposes of

commercial regulation and the additional aim of enforc-

ing criminal sanctions. (New York v. Burger, supra, 482 US.

at pp. 712-714; People v. Calvert, supra, 18 Cal.App.4th at

pp. 1835-1836.)

“PRETEXTUAL” NATURE OF SEARCH

Appellant contends that the officer’s administrative

inspection under Section 2805 was an unlawful pretext to

conduct a warrantless criminal search. He cites the trial

App. 11

court’s statement that the administrative inspection was

“pretextual and .. . really a criminal search,” although

“still . . . valid” under Section 2805 and governing case

authority. We disagree both with appellant and with the

trial court’s characterization of the administrative inspec-

tion in this case.

The undisputed evidence shows that the officers

went to appellant’s shop for the sole specific purpose of

locating stolen vehicles, through the inspection of vehi-

cles and vehicle components found on the premises. This

is precisely what they were permitted to do under the

express terms of Section 2805. The record is clear that

they never searched for drugs, and did not !ook for

weapons until appellant revealed that he had a number of

weapons in his office. The officers only found the mari-

juana when they saw it in plain view while looking for

weapons, as they were permitted to do to protect their

own safety. So long as the officers had an objectively

proper justification for the search, it is irrelevant whether

or not they may have subjectively harbored any hope to

find evidence of other crimes. (Maryland v. Macon (1985)

472 U.S. 463, 470-471; People v. Calvert, supra, 18

Cal.App.4th at p. 1831; People v. Uribe (1993) 12

Cal.App.4th 1432, 1436-1439.)

At oral argument, counsel for appellant suggested

that this court should examine the subjective, pretextual

motivation of the officers in undertaking the administra-

tive inspection under Section 2805, in order to prevent the

statute from becoming a vehicle for granting law enforce-

ment officers unlimited license for conducting warrant-

less searches without probable cause. To support this

argument, he cited the recent opinion of the United States

App. 12

Supreme Court in Whren v. U.S. (1996) __ U.S. __ [116

S.Ct. 1769]. Nothing in that opinion requires us to invali-

date the investigation and subsequent search in this case.

Whren reaffirmed the established principle that the con-

stitutional reasonableness of traffic stops does not

depend on the actual subjective motivation of the indi-

vidual officers involved. The Supreme Court distin-

guished traffic stops from inventory and administrative

searches on the grounds that the latter may be conducted

without probable cause. (Whren v. U.S., supra, ___ U.S. __

___ [116 S.Ct. at pp. 1773-1' 74].)

The Supreme Court’s statements in Whren about

administrative investigations were dicta, and not author-

ity for the principle asserted by appellant in this case. In

our opinion, the administrative inspection before us was

analogous to other inspections the United States Supreme

Court has upheld when challenged under the Fourth

Amendment as pretextual searches. Thus, in United States

v. Villamonte-Marquez (1983) 462 U.S. 579, the Court

upheld a warrantless customs inspection of a vessel

despite the fact that the officers were acting on the basis

of an informant’s tip that the ship was carrying mari-

juana, and were accompanied by a state police officer.

The officers’ subjective intent or motivation was irrele-

vant to the search, which was otherwise objectively justi-

fiable as a customs inspection. (Id. at p. 584, fn. 3.)

If anything, the administrative search in the instant

case is less susceptible to challenge as a “pretextual”

search than the customs search at issue in Villamonte-

Marquez. Here, the most the officers suspected was that

there might be stolen vehicle parts on the premises. Their

only purpose in conducting the administrative search was

App. 13

the legitimate one of looking for stolen vehicles or vehicle

parts. They had no suspicion that there might be other

contraband on the premises, and no intention of looking

for drugs or illegal weapons. In short, the record estab-

lishes that the administrative search in this case was not a

pretext for a criminal search.

We decline to hold that courts must delve into the

subjective motivations of officers performing otherwise

objectively reasonable and justifiable administrative

inspections under Section 2805. An objective test is con-

sistent with the goals of Section 2805, which was enacted

in order to help prevent vehicle theft and the use of

stolen vehicle parts. Thus, the administrative inspection

of appellant’s shop “[flor the purpose of locating stolen

vehicles” under Section 2805 was not invalidated by the

fact that the officers in this case may have suspected that

they might actually find stolen automobile parts on the

premises.

COMPLIANCE OF SEARCH WITH STATUTORY PROVISIONS

Appellant argues that the officers in this case con-

ducted an “unbridled” general criminal search beyond

the scope of any administrative investigation as provided

under Section 2805. We do not agree.

The record shows that the officers conducted a lim-

ited administrative inspection of Discount Mufflers. It did

not become a criminal search until they found drugs and

a substantial number of weapons in appellant’s office, all

of which occurred as a result of their simple observation

of objects in plain view and appellant’s own statements.

It is undisputed that the officers did not intend to look

App. 14

for drugs or weapons when they decided to make an

administrative inspection of the premises. They com-

menced the inspection late in the day, but still during

normal business hours. The number of officers involved

was appropriate to the relatively large size of the build-

ing to be inspected. Once inside the shop, the inspection

proceeded normally in conformance with Section 2805,

Business and Professions Code section 9884.11, California

Code of Regulations, title 16, section 3358, and the statu-

tory provisions for automotive repair facility certification

(Bus. & Prof. Code, §§ 9889.30 et seq.) The officers did not

seal the premises or interfere with the normal transaction

of business in any way. Customers and employees were

free to come and go throughout the investigation. As they

were authorized to do under the applicable statutes and

regulations, the officers asked to see vehicles, vehicle

components, business certification and licenses, and writ-

ten records and invoices relating to automotive repair.

With regard to the officers’ entry into appellant's

office, the record shows that Nannery asked appellant to

open the door so he could check for vehicle components.

This was a legitimate purpose under Section 2805. More-

over, the evidence also indicates that appellant himself

invited the officers into his office to show them his

updated Board of Automotive Repair license, which he

kept in the desk in his office. In either case, the officers’

entry into appellant's office was proper. Once inside the

office, Inspector Nannery saw a large knife in plain view

on appellant’s desk. For reasons of officer safety, Nannery

legitimately told appellant to step away from the weapon,

and asked if he had any other weapons. (Maryland v.

Macon, supra, 472 U.S. at p. 471.) Appellant then directed -

tie eetenemaeecetaaieeieiiieiaaiieelidaiaiiaiaiiiiial

App. 15

the officers to five guns, at least one of which was illegal.

In the course of checking to see if there were any other

weapons within reach, Nannery saw the bag of marijuana

in plain view, and legitimately seized it. (People v. Webster

(1991) 54 Cal.3d 411, 431.) It was not until that point that

the administrative investigation changed its focus and

became a criminal one.

In short, the evidence in the record, viewed in the

light most favorable to the trial court’s ruling, shows that

the entire investigation was conducted in accordance

with Section 2805 and other regulatory provisions gov-

erning such an administrative investigation of an auto-

motive repair facility. The evidence at issue in this case

was found either because it was in plain view, or because

appellant himself directed the officers to it.

VOLUNTARINESS OF CONSENT

Finally, appellant contends that his consent to search

his business premises and his residences was involuntary.

We disagree.

Whether consent has been voluntarily given is a

question of fact to be determined in the first instance by

the trier of fact. The standard is an objective one: whether

the facts available to the officer at the moment warranted

a reasonable belief that a valid consent has been given.

On appeal, all presumptions favor the trial court’s exer-

cise of its power to make inferences and resolve factual

discrepancies. We must uphold the trial court’s factual

findings, whether express or implied, if supported by

substantial evidence. (Illinois v. Rodriguez (1990) 497 U.S.

177, 185-188; People v. Ratliff (1986) 41 Cal.3d 675, 686.)

App. 16

In this case, the trial court found that appellant's

consent to search was voluntary. There was substantial

evidence to support this factual finding. At the outset,

Inspector Van Koll introduced himself, told appellant the

purpose of the investigation, and gave him a copy of the

relevant statutory provision. Appellant was cooperative

and gave the officer all the relevant paper work. He

therefore consented to the initial administrative search.

(People v. Woolsey (1979) 90 Cal.App.3d 994, 1004.) When

Van Koll commented that the displayed copy of appel-

lant’s Board of Automotive Repair permit had expired,

appellant offered to show the officers the updated permit

inside his office. His conduct in this regard manifests

consent to enter his office. (People v. James (1977) 19 Cal.3d

99, 106, 113; People v. Timms (1986) 179 Cal.App.3d 86, 90;

People v. Linke (1968) 265 Cal.App.2d 297, 313.)

Once inside the office, appellant responded to the

officers’ questions about the knife on his desk by telling

them about the gun underneath a newspaper and the

three guns in the safe. After they saw marijuana under

his desk, appellant gave the officers consent to search his

entire office. He waived his Miranda rights and consented

to an interview. At the end of the interview, appellant

gave the officers consent to search his residences for

guns, accompanied them there, and opened the doors for

them. The officers in fact did not make a general search of

appellant’s two homes, but simply accompanied him

there and looked for weapons only in the specific places

to which he directed them. This evidence supports the

conclusion that appellant voluntarily consented to the

App. 17

officers’ search of his office and his two residences. (Peo-

ple v. Linke, supra, 265 Cal.App.2d at p. 313; People v. Cove

(1964) 228 Cal.App.2d 466, 470.)

On this record, we conclude that there was substan-

tial evidence to support the trial court’s finding of volun-

tary consent.

DISPOSITION

The judgment is affirmed.

McGuiness, J.*

We concur:

Corrigan, Acting P. J.

Parrilli, J.

A067922, People v. Young

* Judge of the Alameda Superior Court sitting under assignment

by the Chairperson of the Judicial Council.

App. 18

First Appellate District, Division Three,

No. A067922 S056104

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, Respondent

v. (Filed

Nov. 26, 1996)

NORMAN HAI YOUNG, Appellant

Appellant’s petition for review DENIED.

The request for an order directing publication

of the opinion is denied.

/s/ GEORGE

Chief Justice

App. 19

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

THE PEOPLE OF THE STATE

OF CALIFORNIA,

PLAINTIFF AND

RESPONDENT,

)

VS. )

NORMAN H. YOUNG,

)

DEFENDANT AND

APPELLANT.

REPORTER’S TRANSCRIPT

ON APPEAL FROM THE JUDGMENT OF THE

SUPERIOR COURT OF THE STATE OF

CALIFORNIA, IN AND FOR THE

CITY AND COUNTY OF SAN FRANCISCO

HONORABLE JACK BERMAN, JUDGE

APPEARANCES:

HON. DANIEL E. LUNGREN

ATTORNEY GENERAL OF THE STATE OF CALIFORNIA

455 GOLDEN GATE AVENUE, SUITE 6200

SAN FRANCISCO, CA 94102

ATTORNEY FOR APPELLANT

REPORTED BY: CONNIE MIHOS, CSR 7391

OFFICIAL COURT REPORTER

App. 20

IN THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA,

IN AND FOR THE CITY AND

COUNTY OF SAN FRANCISCO

BEFORE THE HONORABLE JACK BERMAN, JUDGE

DEPARTMENT NO. 25

THE PEOPLE OF THE

)

STATE OF CALIFORNIA, _ )

) NO. 153317 -

PLAINTIFE, ) HEARING RE 1538.5

VS. ) CHANGE OF PLEA

NORMAN H. YOUNG, __) ~ JUDGMENT &

) SENTENCE

DEFENDANT. ai

(Filed Mar. 15, 1995)

REPORTER’S TRANSCRIPT

OCTOBER 24, 1994

APPEARANCES:

FOR THE PEOPLE: HON. ARLO E. SMITH

~DISTRICT ATTORNEY

BY: S. JANKOWITZ

ASST. DISTRICT ATTORNEY

FOR THE DEFENDANT: P. COOPER

ATTORNEY AT LAW

REPORTED BY: CONNIE MIHOS, CSR 7391

OFFICIAL COURT REPORTER

[p. 1] OCTOBER 24, 1994 A.M. SESSION

App. 21

PROCEEDINGS

THE COURT: LET’S CALL NORMAN YOUNG,

153317.

MS. COOPER: PENNY COOPER FOR MR.

YOUNG. HE’S PRESENT.

MR. JANKOWITZ: STEWARD JANKOWITZ.

THE COURT: ANYTHING FURTHER TO BE

ADDED-IN THIS MATTER?

MS. COOPER: NO.

THE COURT: I’M GOING TO MAKE CERTAIN

FINDINGS. I'VE GOT CERTAIN QUESTIONS, ACTU-

ALLY. LET ME SEE HOW YOU ANSWER THEM.

HOW DO YOU GET AROUND USS. V. BERGER?

MS. COOPER: CAN I HAVE A MOMENT,

YOUR HONOR?

THE COURT: YOU CAN HAVE AS MUCH -

MS. COOPER: BERGER DOESN’T DEAL WITH

THE WAY THIS SO-CALLED INSPECTION WAS EXE-

CUTED, YOUR HONOR.

THE COURT: IT’S ALMOST IDENTICAL.

MS. COOPER: NO.

THE COURT: I WANT TO TELL YOU THAT I

PERSONALLY IDENTIFY WITH THE DISSENT IN

BERGER, BUT I AM BOUND BY THE LAW LIKE ANY

OTHER JUDGE.

MS. COOPER: THIS WAS EXECUTED LIKE A

FULL-BLOWN SEARCH.

App. 22

THE COURT: I’M GOING TO MAKE A FIND-

ING IT’S PRETEXTUAL AND IT’S REALLY A CRIMI-

NAL SEARCH, BUT I STILL THINK IT’S VALID

MS. COOPER: I RESPECTFULLY DISAGREE

BECAUSE -

THE COURT: YOU CAN PERSUADE ME. I

WRESTLED WITH THIS [p. 2] FOR DAYS. THIS HAS

BEEN ONE OF MY CLOSER CALLS AS A JUDGE.

MS. COOPER: REALLY?

THE COURT: YES.

THERE SHOULDN’T HAVE BEEN '.HAT MUCH

LAUGHTER FROM MS. BAUTISTA. PUT THAT ON THE

RECORD.

MS. COOPER: YOUR HONOR, I DON’T

BELIEVE THAT THE COURT - DO YOU KNOW WHAT

THE ACTUAL FACTS ARE IN THE BERGER CASE?

THE COURT: I READ IT YESTERDAY AGAIN

FOR THE SECOND TIME. THANK YOU.

MS. COOPER: THE INSPECTION WENT

DOWN - IT DIDN’T GO DOWN LIKE THIS.

THE COURT: IN BERGER - BERGER WAS

MORE EGREGIOUS THAN THIS IN A FACTUAL SENSE.

MS. COOPER: I DON’T AGREE WITH THE

COURT ON THAT.

THE COURT: BUT I DON’T THINK THAT’S

THE ISSUE.

I FIND - I'LL MAKE THIS FINDING FOR EITHER

ONE OF YOU IS GOING TO GO UP ON APPEAL, AND I

App. 23

THINK YOU SHOULD. I FIND THE SEARCH HERE

WAS A PRETEXT.

I FURTHER FIND THEY WENT IN THERE - THIS

WAS A RESULT OF A CRIMINAL INVESTIGATION

AND THE USE OF THE ADMINISTRATIVE SEARCH

UNDER - WHAT IS IT? - 805? 405?

MS. COOPER: 2805.

THE COURT: 2805. AND THAT’S EVIDENCED

BY THE FACT THEY HAD FIVE INSPECTORS AND A

LIEUTENANT GOING THERE 5:15 AT NIGHT. THEY

DID NOT GO TO THE OFFICE AS A FACTUAL MAT-

TER; THEY IMMEDIATELY WENT TO SEARCH. THERE

WAS SIX TO EIGHT CARS THERE, I PRESUME EACH

INSPECTOR EXAMINING ONE [p. 3] CAR. AND

THAT’S THE REASON I FIND THAT THE ADMINIS-

TRATIVE PORTION WAS A PRETEXT FOR THE CRIMI-

NAL SEARCH.

NEVERTHELESS, UNDER U.S. V. BERGER, I MUST

FIND THAT YOUR MOTION TO SU:’PRESS BE DENIED.

AS I SAY, I'M SYMPATHETIC FROM A PHILOSOPHIC

POINT OF VIEW WITH THE DISSENT IN BERGER, BUT

I FEEL I’M BOUND.

MS. COOPER: YOUR HONOR, IS THE COURT

DEALING AT THIS POINT WITH THE CONSENT AT

ALL, BECAUSE THAT’S A SEPARATE -

THE COURT: THAT’S A SEPARATE ISSUE,

BUT ESSENTIALLY THEY GET IN UNDER THE SAME

PRETEXT. ONCE THEY GET IN THERE, I DON’T SEE - I

THINK THERE IS VALID CONSENT. AFTER ALL, THEY

GO IN THERE AND HE TAKES THEM INTO THE

App. 24

OFFICE BECAUSE HE’S GOING TO GET HIS 1994 PER-

MIT FROM THE D.A.R. THEY SEE THE KNIFE - THAT’S

UNDISPUTED - THEY SEE THE KNIFE THERE, THEY

ASK HIM TO STEP AWAY FROM IT. THAT’S REASON-

ABLE. WHAT’S UNDER THE PAPER IS A LOADED

GUN, WHICH IS REGISTERED, AND THAT LEADS TO

THE OTHER GUNS.

I REALIZE WHEN THEY FIND THE MARIJUANA

HE’S HANDCUFFED - AFTER THAT, HE’S HAND-

CUFFED, BUT I THINK THAT THE REST OF IT IS CON-

SENTUAL [sic].

MS. COOPER: THE COURT IS RULING

DESPITE THE FACT HE WAS HANDCUFFED AND HE

WAS AFRAID, THE CONSENT TO GO TO THE OTHER

RESIDENCE IS VALID?

THE COURT: I THINK THAT’S VALID. I AM

TRULY TROUBLED WITH THAT.

MS. COOPER: WELL, WE’LL TRY TO

RESOLVE THAT TROUBLE IN A DIFFERENT PLACE,

AS THEY SAY, YOUR HONOR.

THE COURT: THAT’S WHAT THE APPEL-

LATE COURTS ARE FOR.

[p. 4] AS ISAY, MY INSTINCTS WERE TO FIND THE

SEARCH ILLEGAL; BUT QUITE HONESTLY, I TOLD

MR. JANKOWITZ ON FRIDAY - I TOLD HIM I DIDN’T

HAVE A COPY; HE BROUGHT ME USS. V. BERGER.

I WAS HERE YESTERDAY, AS WELL AS JUDGE

GARCIA. I WANT YOU TO KNOW WE JUDGES WORK

ON SUNDAY.

App. 25

ANYWAY, THE MOTION IS DENIED.

THIS IS THE TRIAL DATE. I PRESUME YOU’RE

LOOKING FOR A NEW TRIAL DATE.

MS. COOPER: YOUR HONOR, I THINK IT

MIGHT BE POSSIBLE - BECAUSE THE CASE HAS BEEN

ALREADY THROUGH PRETRIAL AND WE HAVE A

PRE-PLEA REPORT, I THINK IT’S POSSIBLE MAYBE WE

CAN JUST RESOLVE IT IN HERE AT THIS POINT IF

YOU WANT TO KEEP IT.

THE COURT: YES. I CAN DO THAT LATER

THIS MORNING.

MS. COOPER: WE HAD A PRETRIAL IN

FRONT OF JUDGE WILLIAMSON. I THINK I MEN-

TIONED IT TO YOU.

THE COURT: YOU BOTH ADVISED ME OF

WHAT THE -

MS. COOPER: AND WE HAVE A REPORT

HERE THAT’S QUITE COMPLETE. THERE ARE A COU-

PLE OF PROBLEMS THAT I NEED TO TAKE UP WITH

MR. JANKOWITZ.

THE COURT: WHY DON’T YOU TAKE THEM

UP. I'VE GOT ANOTHER MATTER AND SEVERAL

OTHER CASES SET FOR TRIAL.

MR. JANKOWITZ: YOU WANT US TO COME

BACK 11:00 O’CLOCK?

THE COURT: GO OUTSIDE. IT WILL TAKE

YOU TEN MINUTES.

App. 26

(WHEREUPON, THE PROCEEDINGS

RECESSED.)

THE COURT: THIS IS 153317.

YOUR APPEARANCES, COUNSEL.

MS. COOPER: PENNY COOPER FOR MR.

YOUNG, WHO’S [p. 5] PRESENT.

MR. JANKOWITZ: STEWART JANKOWITZ

FOR THE PEOPLE.

THE COURT: I UNDERSTAND THERE’S

GOING TO BE A DISPOSITION IN THIS MATTER.

MS. COOPER: YES, YOUR HONOR. AS I INDI-

CATED TO THE COURT, MR. YOUNG IS GOING TO

PLEAD TO THE FIRST 12 COUNTS OF THE INDICT-

MENT - EXCUSE ME - 11 COUNTS, AND I BELIEVE

THE 12TH COUNTS WILL BE DISMISSED BECAUSE

I’VE DONE SUCH A NOBLE JOB. 11 OUT OF 12; THAT’S

PRETTY GOOD.

THE COURT: OKAY. WHY DON’T YOU VOIR

DIRE HIM.

MS. COOPER: MR. YOUNG, I'M GOING TO

MAKE A STATEMENT TO THE COURT ABOUT YOUR

CASE; IT’S VERY IMPORTANT THAT LISTEN TO IT

CAREFULLY. |

YOUR HQNOR, NORMAN YOUNG WANTS TO

ENTER A PLEA OF GUILTY TO THE CHARGES OF

POSSESSION OF A MACHINE GUN, POSSESSION OF A

WEAPON WITH AN ALTERED SERIAL NUMBER OR

NO SERIAL NUMBER 4 ¢.. TEN COUNTS OF POSSES-

SION OF ASSAULT WE®*” NS.

App. 27

THE CLERK: WE NEED THE CODE SEC-

TIONS.

MS. COOPER: THE FIRST COUNT, POSSES-

SION OF A MACHINE GUN, IS SECTION 12220 OF THE

PENAL CODE; THE SECOND COUNT IS 12090 OF THE

PENAL CODE AND THE NEXT NINE COUNTS ARE

12280(B) OF THE PENAL CODE.

1 HAVE TOLD MR. YOUNG THAT SEVERAL CON-

STITUTIONAL RIGHTS WILL BE GIVEN UP IF THE

COURT ACCEPTS THIS PLEA INCLUDING, FIRST, HIS

PRIVILEGE AGAINST SELF-INCRIMINATION; THAT IS,

HE IS UNDER NO OBLIGATION TO SAY ANYTHING

THAT MAY TEND TO INCRIMINATE HIM. AND I

HAVE TOLD HIM THAT BY [p. 6] PLEADING GUILTY

HE IS, IN FACT, INCRIMINATING HIMSELE.

SECOND, HIS RIGHT TO BE TRIED BY A JURY. IN

THIS REGARD, I'VE ADVISED HIM THAT HE CANNOT

BE CONVICTED UNLESS ALL 12 JURORS AGREE THAT

THE PROSECUTION HAS PROVED HIS GUILT

BEYOND A REASONABLE DOUBT.

THIRD, HIS RIGHT TO SEE AND HEAR HIS

ACCUSERS TESTIFY IN OPEN COURT IN HIS PRES-

ENCE AND TO HAVE HIS ATTORNEY CROSS-EXAM-

_INE THEM.

WE HAVE DISCUSSED THE ELEMENTS OF THE

CHARGES AGAINST HIM AND THE POSSIBLE

DEFENSES TO THE CHARGES, AND I HAVE ADVISED

HIM OF THE LAW AS IT RELATES TO THE FACTS OF

HIS CASE. I HAVE ADVISED HIM OF THE LEGAL

CONSEQUENCES OF A GUILTY PLEA TO THE

App. 28

CHARGES AND THAT THE PUNISHMENT FOR THESE

OFFENSES IS -

DID YOU FIGURE THIS OUT? IT’S ABOUT TEN

YEARS. THEY’RE ALL 16, TWO AND THREE.

MR. JANKOWITZ: DOES THE COURT HAVE

A PENAL CODE?

MS. COOPER: ACTUALLY, I DO HAVE IT FIG-

URED OUT.

THE COURT: IT CAN’T BE MORE THAN SIX.

IT CAN’T BE MORE THAN THE GREATEST - IT CAN’T

BE MORE THAN SIX.

MS. COOPER: THAT’S CORRECT.

THE COURT: DOUBLE BASE TERM IF YOU

USE THE AGGRAVATED.

MR. JANKOWITZ: SIXTEEN, TWO AND

THREE.

MS. COOPER: I THINK THEY’RE THE SAME.

MR. JANKOWITZ: YES, 16, TWO OR THREE.

AND 12090 -

MS. COOPER: THAT’S 16, TWO AND THREE.

THE COURT: SIX YEARS IS THE MAXIMUM.

MS. COOPER: I HAVE ADVISED HIM OF THE

LEGAL [p. 7] CONSEQUENCES OF A GUILTY PLEA TO

THE CHARGE AND THAT THE POSSIBLE PUNISH-

MENT FOR THE OFFENSES IS UP TO SIX YEARS IN

STATE PRISON.

se ee al

App. 29

UPON HIS RELEASE FROM CUSTODY, HE MIGHT

BE PLACED ON PAROLE FOR A PERIOD OF FOUR

YEARS FROM THE DATE OF HIS INITIAL PAROLE.

HOWEVER, IF PAROLE IS REVOKED, CONFINEMENT

PURSUANT TO A REVOCATION OF PAROLE IN THE

ABSENCE OF A NEW CONVICTION AND COMMIT-

MENT TO PRISON UNDER OTHER PROVISIONS OF

LAW SHALL NOT EXCEED A YEAR EXCEPT AS PRO-

VIDED BY PENAL CODE SECTION 3057(C), SUBSE-

QUENT ACTS OF MISCONDUCT COMMITTED BY A

PAROLEE WHILE CONFINED PURSUANT TO THAT

PAROLE REVOCATION.

THE COURT: WHAT’S THE PROPOSED DIS-

POSITION? I GUESS THIS IS OPEN TO THE COURT.

MS. COOPER: RIGHT. THE PLEA WOULD BE

OPEN TO THE COURT, YOUR HONOR. AND I UNDER-

STAND THAT MR. JANKOWITZ WILL DISMISS THE

11359, WHICH IS THE 12TH COUNT.

THE COURT: MR. YOUNG - 12TH AND 13TH:

ISN’T IT?

MS. COOPER: IT IS?

THE COURT: THE LAST TWO COUNTS.

MS. COOPER: JUST COUNT 12, YOUR

HONOR.

THE COURT: OH. SO HE’S PLEADING TO 11.

MS. COOPER: RIGHT.

THE COURT: MR. YOUNG, HAVE YOU

HEARD AND UNDERSTOOD EVERYTHING SAID

HERE TODAY?

App. 30

THE DEFENDANT: YES, YOUR HONOR.

THE COURT: DO YOU PERSONALLY GIVE UP

YOUR PRIVILEGE NOT TO INCRIMINATE YOURSELF?

[p. 8] THE DEFENDANT: YES, YOUR HONOR.

THE COURT: DO YOU PERSONALLY GIVE UP

YOUR RIGHT TO BE TRIED BY A JURY?

THE DEFENDANT: YES. YOUR HONOR.

THE COURT: DO YOU PERSONALLY GIVE UP

YOUR RIGHT TO SEE, QUESTION, CONFRONT AND

CROSS-EXAMINE THE WITNESSES AGAINST YOU?

THE DEFENDANT: YES, YOUR HONOR.

THE COURT: WHERE WERE YOU BORN, MR.

YOUNG?

THE DEFENDANT: TAIPEI, TAIWAN.

THE COURT: IF YCU’RE NOT A CITIZEN,

YOU ARE HEREBY ADVISED CONVICTION OF THE

OFFENSE WHICH WITH YOU HAVE BEEN CHARGED

MAY HAVE THE CONSEQUENCE OF DEPORTATION,

EXCLUSION FROM ADMISSION TO THE UNITED

STATES OR DENIAL OF NATURALIZATION PUR-

SUANT TO THE LAWS OF THE UNITED STATES. DO

YOU UNDERSTAND THAT? |

THE DEFENDANT: YES, YOUR HONOR.

THE COURT: DO YOU REALIZE IF YOU’RE

GRANTED PROBATION AND YOU VIOLATE ANY OF

THE TERMS AND CONDITIONS OF THAT PROBA-

TION, YOU COULD BE SENTENCED TO STATE PRISON

a aiaataiiaceaeiaiateiidadinmaiaiiiaiatlll

App. 31

UP TO SIX YEARS WITHOUT A TRIAL. DO YOU

UNDERSTAND THAT?

THE DEFENDANT: YES, YOUR HONOR.

THE COURT: NORMAN YOUNG, WHAT’S

YOUR PLEA TO VIOLATING PENAL CODE SECTION

12220 AS CHARGED IN COUNT ONE OF THE INFOR-

MATION?

THE DEFENDANT: GUILTY.

THE COURT: WHAT’S YOUR PLEA TO VIO-

LATING PENAL CODE SECTION 12090 AS CHARGED

IN COUNT TWO OF THE INFORMATION?

[p. 9] THE DEFENDANT: GUILTY.

MR. JANKOWITZ: I DON’T KNOW IEF IT

MAKES A DIFFERENCE, BUT IT’S AN INDICTMENT.

THE COURT: NO, IT DOESN’T MAKE A DIF-

FERENCE.

WHAT IS YOUR PLEA TO VIOLATING PENAL

CODE SECTION - COUNT THREE IN THE INDICT-

MENT, A VIOLATION OF PENAL CODE SECTION

12280(B)?

THE DEFENDANT: GUILTY.

THE COURT: WHAT IS YOUR PLEA TO

COUNT FOUR, A VIOLATION OF PENAL CODE SEC-

TION 12280(B)?

THE DEFENDANT: GUILTY.

THE COURT: WHAT IS YOUR PLEA TO

COUNT FIVE, A VIOLATION OF PENAL CODE SEC-

TION 12280(B)?

App. 32

THE DEFENDANT: GUILTY.

THE COURT: WHAT IS YOUR PLEA TO VIO-

LATING SECTION 12280(B) AS CHARGED IN COUNT

SIX?

THE DEFENDANT: GUILTY.

THE COURT: WHAT IS YOUR PLEA TO VIO-

LATING SECTION 12280(B) AS CHARGED IN COUNT

SEVEN OF THE INDICTMENT?

THE DEFENDANT: GUILTY.

THE COURT: WHAT IS YOUR PLEA TO VIO-

LATING SECTION 12280(B) AS CHARGED IN COUNT

EIGHT?

THE DEFENDANT: GUILTY.

MS. COOPER: I SEE WHAT THE PROBLEM IS.

THERE IS NO COUNT NINE.

THE COURT: I APPRECIATE THAT. THERE’S

A TYPO. IT’S AN IX.

WHAT IS YOUR PLEA TO COUNT NINE, VIOLAT-

ING PENAL CODE [p. 10] SECTION 12280(B)?

THE DEFENDANT: GUILTY.

THE COURT: IN COUNT TEN, WHAT IS

YOUR PLEA TO VIOLATING PENAL CODE SECTION

12280(B)?

THE DEFENDANT: GUILTY.

THE COURT: AND COUNT ELEVEN, YOUR

PLEA TO VIOLATING PENAL CODE SECTION

12280(B)?

App. 33

THE DEFENDANT: GUILTY.

THE COURT: THE COURT HAVING DIS-

CUSSED THE FACTS WITH RESPECTIVE COUNSEL

FINDS A FACTUAL BASIS FOR THE PLEAS ENTERED

BY THE DEFENDANT.

THE COURT FURTHER FINDS THE DEFENDANT

WAS INFORMED OF HIS RIGHTS, THAT HE VOLUN-

TARILY AND INTELLIGENTLY WAIVED THOSE

RIGHTS AND HE ENTERED HIS PLEA OF GUILTY

WELL KNOWING THE CONSEQUENCES OF THE

PLEA. THEREFORE, THE PLEA WILL BE ACCEPTED.

WAIVE FORMAL ARRAIGNMENT FOR JUDG-

MENT?

MS. COOPER: YES, YOUR HONOR, WE

WAIVE TIME FOR JUDGMENT. I’VE SUBMITTED TO

THE COURT A REPORT THAT WAS PREPARED IN

CONNECTION WITH THIS CASE.

THE COURT: I REALIZE THAT, THE PROBA-

TION OFFICER’S REPORT, WHICH I HAVE READ,

DATED JUNE 8TH, ’94.

ANY LEGAL CAUSE WHY JUDGMENT SHOULD

NOT NOW BE PRONOUNCED?

MS. COOPER: NO, YOUR HONOR.

THE COURT: AS TO COUNT ONE, THE

COURT WILL GRANT PROBATION FOR A PERIOD OF

THREE YEARS.

CREDIT FOR TIME SERVED, ONE DAY.

App. 34

[p. 11] HE’LL SUBMIT HIS PERSON, VEHICLE OR

PREMISES TO A SEARCH, DAY OR NIGHT, WITH OR

WITHOUT REASONABLE OR PROBABLE CAUSE,

WITH OR WITHOUT A WARRANT, BY ANY PEACE OR

PROBATION OFFICER.

FOR THE THREE-YEAR PERIOD HE’S ON PROBA-

TION, HE’S TO POSSESS NO WEAPONS.

HE WILL PAY A RESTITUTION FINE OF $2200.00,

200 PER COUNT.

$150.00 FOR THE PREPARATION OF THE PRESEN-

TENCE INVESTIGATION REPORT.

PROBATION COSTS OF UP TO $40.00 A MONTH.

$5,000 FINE PLUS THE PENALTY AS TO THAT

COUNT.

AS TO COUNT TWO, IMPOSITION OF SENTENCE

SUSPENDED, PROBATION FOR THREE YEARS TO RUN

CONCURRENT WITH COUNT ONE. ALL THE TERMS

AND CONDITIONS WILL BE THE- SAME. THAT

APPLIES TO COUNTS THREE, FOUR, FIVE, SIX, SEVEN,

EIGHT, NINE, TEN AND ELEVEN. HE’S TO GET PRO-

BATION ALL TO RUN CONCURRENT WITH THE SEN-

TENCE IMPOSED ON COUNT ONE.

I DON’T THINK I HAVE TO SENTENCE HIM INDI-

VIDUALLY ON EACH COUNT.

MS. COOPER: NO.

MR. JANKOWITZ: AND THE COURT IS

IMPOSING IMPOSITION OF SENTENCE SUSPENDED.

App. 35

THE COURT: I SAID SUSPENDED. THREE

YEARS PROBATION TO THE ADULT PROBATION

DEPARTMENT.

IS THERE A MOTION TO COUNT TWELVE?

MR. JANKOWITZ: BEFORE I DO THAT, THE

PEOPLE WOULD ASK FOR ONE MORE CONDITION.

[p. 12] THE COURT: THAT HE POSSESS NO

WEAPONS.

MR. JANKOWITZ: NO, THAT THE FIREARMS

THAT WERE SEIZED BE ORDERED TRANSFERRED TO

THE CUSTODY OF THE SAN FRANCISCO POLICE

DEPARTMENT TO PAY FOR THE COSTS OF THIS

INVESTIGATION.

THE COURT: NO, I WON’T GO ALONG WITH

THAT. I'LL ORDER THEM DESTROYED.

MS. COOPER: THAT’S FINE.

THE COURT: I DON’T WANT ANYBODY TO

GET THOSE GUNS. ALL THE GUNS ARE ORDERED

DESTROYED.

MR. JANKOWITZ: IF THE POLICE DEPART-

MENT HAS A NEED FOR CERTAIN WEAPONS -

MS. COOPER: WELL, YOUR HONOR, THE

POLICE DEPARTMENT DOESN’T HAVE ANY NEED

FOR THESE WEAPONS.

THE COURT: I WON’T ARGUE WHETHER WE

HAVE A NEED FOR THEM OR NOT, BUT THAT’S

WHAT WE PAY TAXES FOR. LET THEM BUY THEM.

App. 36

ALL GUNS WILL BE ORDERED DESTROYED.

MS. COOPER: YOUR HONOR, I WOULD

REQUEST A STAY OF THE SENTENCE. AS THE COURT

IS AWARE, WE WILL FILE A NOTICE OF APPEAL. I’LL

HAVE IT ON FILE THIS WEEK.

THE COURT: WELL, WHY DON’T WE ORDER

A PROBATION REPORT FROM AND HAVE HIM BE ON

PROBATION, UNLESS YOU DON’T CARE ABOUT

WHEN IT STARTS.

MS. COOPER: NO, I DON’T CARE WHEN IT

STARTS. I'D RATHER EVERYTHING BE STAYED. IF

YOU COULD STAY JUDGMENT PENDING APPEAL,

AND I DO INFORM THE COURT THAT WE’LL HAVE

THE NOTICE ON FILE WITHIN A DAY OR TWO.

[p. 13] THE COURT: ALL RIGHT. THAT WILL

BE THE ORDER.

MR. JANKOWITZ: WITH REGARD TO

COUNT TWELVE, YOUR HONOR, ALTHOUGH THIS IS

A PLEA OPEN TO THE COURT, THE PEOPLE’S ORIGI-

NAL RECOMMENDATION WAS STATE PRISON IN

THIS CASE.

IN VIEW OF THE PLEA OF GUILTY TO COUNTS

ONE THROUGH ELEVEN AND THE FACT THAT

COUNT TWELVE WOULD ADD NO ADDITIONAL

PENALTY, WE’D MOVE TO DISMISS. _

THE COURT: THAT WILL BE THE ORDER.

(WHEREUPON, THE PROCEEDINGS CONCLUDED.)

RRR ROE

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.