People v. Maltz

Opinion

By a complaint filed in the Municipal Court of the South Orange County Judicial District, defendant was accused of possession of restricted dangerous drugs—LSD (count I, Health & Saf. Code, § 11910) and furnishing and sale of restricted dangerous drugs—LSD (count II, Health & Saf. Code, § 11912). After a preliminary hearing, defendant was held to answer, and an information, consisting of two counts, was filed in the Orange County Superior Court charging defendant with these offenses. Defendant’s motion to set aside the information made pursuant to Penal Code section 995 was granted by the superior court. The People appeal from the order. (Pen. Code, § 1238, subd. (1).)

The Issues

For reversal, the district attorney contends:

(1) There was probable cause for the arrest and search of the person of William Monroe;

(2) Assuming that the search of Monroe was unlawful, nevertheless the evidence seized from his person was admissible in a criminal prosecution against defendant, inasmuch as defendant has no standing to attack the illegal search of another;

(3) There was no search of the residential garage and seizure of contraband therefrom was lawful;

(4) Even if the seizure from the garage was unlawful as to the owner or occupant of the property, the evidence is admissible as against defendant inasmuch as he neither owned, occupied or controlled the garage, that is, that defendant has no standing as to assert a seizure of contraband that may have been unlawful as to some third person.

We have concluded that the first and third contentions are meritorious. It will be unnecessary, therefore, for us to consider the interesting problems presented by the second and fourth contentions.

The Facts

The events that form the basis of the criminal charges against the defendant transpired during the evening and night of July 26, 1969. On that evening, Sergeant Babcock and Detective Purcell of the Laguna Beach Police Department were participating in a surveillance of the parking lot area of Albertson’s Market in Laguna Beach. The surveillance was conducted from a vantage point across the street from the parking lot. Officer Purcell was using binoculars. Sergeant Babcock was not.

The officers were working together and observed substantially the same events. It would serve no useful purpose, therefore, to segregate their testimony, and, except as specifically indicated by reference to the officers’ names, no such segregation is hereinafter made.

After the two men had been taken to the police station for booking, Sergeant Babcock, based upon his knowledge that drug dealers frequently have a “stash” and upon his observation of defendant in the vicinity of and in the yard of the house on the corner of Glenneyre and Cleo Streets, returned to that location to make an investigation of the area from which he had seen defendant come.

The exact location of the structures, doors, areas and objects next referred to and the location of Detective Babcock in relation thereto cannot be accurately ascertained from the record. Most of the testimony was given by Officer Babcock with reference to a diagram of the location drawn by him at the preliminary hearing. So far as the record discloses, the diagram itself was not introduced into evidence and was not before the superior court. It should also be noted that, at the request of counsel for defendant, the magistrate who conducted the preliminary hearing viewed the premises. The record before us, and presumably that before the superior court, does not disclose what facts were observed during this view of the premises.

From the reporter’s transcript of the preliminary hearing, the following facts appear. The garage was situated about one and one-half “car widths” from what would be the curb of Cleo Street if Cleo Street had a curb. There is a driveway to the garage and a vehicle door in the garage. Somewhere in the vicinity of the driveway, apparently on the presumably private property itself, there were a number of garbage cans and trash and papers on the ground. Sergeant Babcock was on his hands and knees around the

The judge at the preliminary hearing was concerned about the ownership and control of the garage and asked that evidence be adduced with respect to these matters. Defendant’s attorney declined to enter into a stipulation concerning them. The only evidence that the prosecution was able to adduce at the preliminary hearing was that at the time of their booking, defendant gave his address as Caldwell, New Jersey, and gave no local address and that Monroe gave the address 519 Via Flores, San Clemente. Officer Purcell also testified that he was on the phone when Sergeant Babcock had a telephone conversation with the owners of the property, the clear implication being that the owners were someone other than the defendant or Monroe. Although the magistrate felt that the evidence was inconclusive as to defendant’s ownership or occupancy of the property, he nevertheless concluded that defendant could not have had a reasonable expectation of privacy in respect thereto. In his brief on appeal, defendant concedes that he “had no legitimate interest in the garage.”

Validity of the Search of William Monroe

At the outset, defendant argues that the prosecution did not urge at the time of the section 995 proceedings that the search of Monroe was lawful and that the People may not raise this issue for the first time on appeal. This argument is untenable. Although the People did not assert the validity of this search at the time of the 995 motion, they did assert its validity at the preliminary hearing. In determining defendant’s motion under Penal Code section 995, the superior court was acting as a reviewing court, and, on this appeal, we likewise are reviewing the action of the magistrate in holding defendant to answer. (People v. Heard, 266 Cal.App.2d 747 , 749-750 [ 72 Cal.Rptr. 374 ]; see also People v. Superior Court, 276 Cal.App.2d 581 , 584-586 [ 81 Cal.Rptr. 42 ].) In so doing,

A search of the person is, of course, permissible incident to a valid arrest (Chimel v. California, 395 U.S. 752 [ 23 L.Ed.2d 685 , 89 S.Ct. 2034 ), and the question is whether, at the time Monroe was searched, the officers had reasonable cause to believe that he had committed a felony. (Pen. Code, § 836, subd. 3.) The fact that the search of Monroe’s person preceded his arrest by moments would not vitiate the search if there was probable cause to arrest at the time the search was made. (People v. Cockrell, 63 Cal.2d 659 , 666-667 [ 47 Cal.Rptr. 788 , 408 P.2d 116 ]; People v. Sirak, 2 Cal.App.3d 608 , 611 [ 82 Cal.Rptr. 716 ].)

The general principles are well settled. “There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances [citations omitted]. . . .” (People v. Ingle, 53 Cal.2d 407 , 412 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ].) “Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.” (People v. Ingle, supra, at pp. 412-413; People v. Hillery, 65 Cal.2d 795 , 803 [ 56 Cal.Rptr. 280 , 423 P.2d 208 ].) Good faith of the officer alone is not sufficient, but the evidence upon which the officer acts need not be sufficient to convict but only sufficient to incline the mind to believe, leaving some room for doubt. (People v. Ingle, supra, at p. 413.) The specialized knowledge of a police officer experienced in police narcotics work may render suspicious what would appear innocent to a layman. (Cunha v. Superior Court, 2 Cal.3d 352 , 358 [ 85 Cal.Rptr. 160 , 466 P.2d 704 ]; People v. Berutko, 71 Cal.2d 84 , 90-91 [ 77 Cal.Rptr. 217 , 453 P.2d 721 ]; People v. Williams, 196 Cal.App.2d 726 , 728 [ 16 Cal.Rptr. 836 ].) Nevertheless, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the police instrusion. (Terry v. Ohio, 392 U.S. 1 , 16-19, fns. 16, 20-21 [ 20 L.Ed.2d 889 , 902-905, fns. 16, 20-21, 88 S.Ct. 1868 ]; Cunha v. Superior Court, supra, atp. 356.)

In support of his contention that the officers lacked reasonable cause, defendant relies upon Cunha v. Superior Court, supra, 2 Cal.3d 352 and Remers v. Superior Court, 2 Cal.3d 659 [ 87 Cal.Rptr. 202 , 470 P.2d 11 ]. The People rely upon the general principles stated above and People v. Brown, 147 Cal.App.2d 352 [ 305 P.2d 126 ]. Over and over again

In Cunha, the majority of the court characterized the situation as follows: “The instant arrest was predicated solely upon the officers’ observations that petitioner and his companion looked around as they walked on a public sidewalk in broad daylight, and apparently engaged in some sort of transaction in an area known for frequent narcotics traffic. Neither petitioner’s activities nor the location of his arrest provided probable cause for arrest.” (Cunha v. Superior Court, supra, 2 Cal.3d at p. 357.)

Several important facts distinguish Cunha from the case at bench. In Cunha, the court minimized the officers’ testimony concerning their knowledge of narcotics and drug activity in the area, noting that “. . . in the absence of any evidence in the record as to how many of those arrests [45 to 60 in 6 months] actually vindicated the officers’ suspicions, it is impossible to determine how accurate their estimate of the local narcotics traffic was. In short, giving substantial weight to the perceived crime rate of an area may constitute a self-fulfilling prophecy.” (Cunha v. Superior Court, supra, 2 Cal.3d at p. 357, fn. 1.) In the case at bench, there was specific testimony by Sergeant Babcock that of his approximately 50 arrests, approximately 15 cases had resulted in conviction to that time and that most of the others were still pending. Detective Purcell testified that most of the cases in which he had made an arrest were still pending but that a substantial number had resulted in the defendant being held to answer. In addition, in almost all of the cases in which the officers were previously involved, they had observed conduct very similar to the conduct observed in the case at bench and had observed that the greatest incidence of narcotics traffic in the area occurred between the hours of 7 and 10 p.m., the very time of the activities observed in the case at bench.

Perhaps even more importantly, the conduct observed by the officers in the case at bench was substantially greater, both in quantity and suspicious quality, than that involved in Cunha. In Cunha the officers observed the

Remers is similarly distinguishable. In that case the officers observed the defendant woman talking with a “hippie-type” male; saw her look around over either shoulder and remove a tinfoil packet from her purse; saw her nod in a motion that they both go into a cafe. Although the officers claimed to have special knowledge concerning the area and previous drug dealings by defendant, the court found the former slight and disallowed the latter as unreliable. (Remers v. Superior Court, supra, 2 Cal.3d at pp. 666-667.) The court itself noted that “[t]he circumstances in the instant case provide less justification for arrest than did the circumstances held insufficient to validate the arrest in Cunha. The act of showing a tinfoil package to a companion is even less suspicious than that of engaging in a sidewalk sale. . . . Petitioner exhibited less concern with her surroundings than did the suspects in Cunha. . . .” (2 Cal.3d at p. 665.)

In People v. Brown, supra, it appears that the officers were patrolling a well-lighted alley at the rear of a hotel in Los Angeles at about 1:35 a.m. One of the officers testified that he knew that quite a bit of narcotics was sold in that area. The officers observed the woman defendant and another woman walk into the alley. They appeared to be conversing. “The defendant was observed placing something in the other woman’s hand, when the officer heard what sounded like a coin hit the pavement. The defendant bent over, picked up the object, and placed it in the lady’s hand. The other lady was observed removing something from her purse and placing it in the defendant’s hand. The latter then placed her hand in the area of her breast.” (147 Cal.App.2d at p. 354.) On these facts, the arrest was upheld, and a petition for hearing by the California Supreme Court was denied. (147 Cal.App.2d at p. 357.) Cunha did not disapprove Brown, but characterized the circumstances in Brown as more suspicious than those in Cunha. (Cunha v. Superior Court, supra, 2 Cal.3d at p. 358.)

Validity of the Seizure from the Garage

Having determined that the search of Monroe and the seizure of the contraband found on him were lawful, it is apparent that there was ample evidence to hold defendant to answer for the offense of sale of a restricted dangerous drug and that, therefore, the order of the superior court setting aside the information must be reversed. We nevertheless think it appropriate to determine whether the seizure of the contraband from the garage was valid. Defendant was charged in a separate count in the information with possession of restricted dangerous drugs, and it may well be that this count related to the contraband seized from the garage rather than that found on Monroe in which case defendant could possibly be convicted of (although not necessarily punished for) both possession and sale. (People v. Sheldon, 254 Cal.App.2d 174 , 182 [ 61 Cal.Rptr. 778 ] and cases there cited.) Moreover, it would appear likely, in the event of trial, that the prosecution would attempt to introduce the evidence of the contraband found in the garage as circumstantial evidence on the count charging sale.

Inasmuch as the contraband in the garage was “in plain sight” there was no search of the garage in the constitutional sense. (Ker v. California, 374 U.S. 23 , 43 [ 10 L.Ed.2d 726 , 743, 83 S.Ct. 1623 ]; People v. Marshall, 69 Cal.2d 51 , 56 [ 69 Cal.Rptr. 585 , 442 P.2d 665 ]; People v. Roberts, 47 Cal.2d 374 , 379 [ 303 P.2d 721 ]; People v. Lees, 257 Cal.App.2d 363 , 368 [ 64 Cal.Rptr. 888 ].)

The analysis of the legality of a search on the grounds surrounding a private residence involving minor trespasses but not entry into a structure has been the subject of a considerable recent evolution. (See generally, People v. Edwards, supra, at pp. 1100-1104; People v. Willard, 238 Cal.App.2d 292 , 298-307 [ 47 Cal.Rptr. 734 ].) Based upon the “open fields” doctrine of Hester v. United States, 265 U.S. 57 , 58-59 [ 68 L.Ed. 898 , 899-900, 44 S.Ct. 445 ], a number of cases indicated that the open areas surrounding a private residence and, indeed, some outbuildings, were not constitutionally protected areas. (E.g., People v. Lees, supra, 257 Cal.App.2d at p. 368; People v. Shields, 232 Cal.App.2d 716 , 719 [ 43 Cal. Rptr. 188 ].) Other cases indicated that, although such areas might be constitutionally protected, a minor trespass made by a police officer in the course of his investigative duties did not necessarily constitute an unreasonable search. (People v. King, supra, 234 Cal.App.2d 423 , 428-433; cf. People v. Terry, 70 Cal.2d 410 , 427 [ 77 Cal.Rptr. 460 , 454 P.2d 36 ]; People v. Berutko, supra, 71 Cal.2d 84 , 90-92 and fn. 7; see also cases discussed in People v. Willard, supra, 238 Cal.App.2d at pp. 298-305.) In recognition of the proposition that the Fourth Amendment protects persons rather than places (Katz v. United States, 389 U.S. 347 , 351 [ 19 L.Ed.2d 576 , 582, 88 S.Ct. 507 ]; People v. Edwards, supra, 71 Cal.2d at p. 1103), and, perhaps, in recognition of the principle that the conflicting policy considerations involved in Fourth Amendment problems are not to be resolved by reference to technical rules of property (cf. Jones v. United States, 362 U.S. 257 , 266 [ 4 L.Ed.2d 697 , 705, 80 S.Ct. 725 , 733, 78 A.L.R.2d 233 , 242]; Mancusi v. DeForte, 392 U.S. 364 , 368 [ 20 L.Ed.2d 1154 , 1159, 88 S.Ct. 2120 , 2123-2124]; People v. Bradley, supra, 1 Cal.3d at p. 84; People v. Edwards, supra, 71 Cal.2d at p. 1100), the more recent cases deemphasize the question of trespass and attempt to resolve the reasonable

Since there was no search of the garage, our consideration of these questions is initially limited to the area of the search, the vicinity of the garbage cans. Defendant concedes that he had “no legitimate interest in the garage.” It is to be inferred, therefore, that as to the area near the driveway in the vicinity of the garbage cans, he himself was a trespasser. Although we entertain considerable doubt whether a trespasser can be said to have a reasonable expectation of privacy on the private property of another (see People v. Ortiz, 276 Cal.App.2d 1 , 5 [ 80 Cal.Rptr. 469 ]), we need not decide that issue. Moreover, even if it be assumed that defendant could avail himself of an expectation of privacy on the part of the owner or occupant of the property (cf. People v. Martin, 45 Cal.2d 755 , 759-761 [ 290 P.2d 855 ]; People v. Wilcox, 276 Cal.App.2d 414 , 416-417 [ 81 Cal.Rptr. 60 ]), defendant cannot prevail on this point, for, with respect to the area near the driveway in the vicinity of the garbage cans, neither he nor the owner or occupant could have had a reasonable expectation of privacy.

It will be remembered that the magistrate viewed the premises and specifically determined that there could be no reasonable expectation of privacy. Even though we have not had the benefit of viewing the property, the evidence is that the garage was only about one and a half car widths from the curbline of Cleo Street, and there is nothing whatever in the record suggesting that there was any impediment to the view of anyone passing by on Cleo Street of the area around the garbage cans. There is nothing in the record indicating that either defendant or the owner or occupant entertained a subjective expectation of privacy with respect to this area, but even if there were, under these circumstances no such expectation could be classified as reasonable. (Cf. People v. Bradley, supra, 1 Cal.3d at p. 85; People v. Willard, supra, 238 Cal.App.2d at p. 307; People v. King, supra, 234 Cal.App.2d at p. 432.)

Neither can it be said that Sergeant Babcock’s conduct in looking around in the vicinity of the garbage cans was an “unreasonable govern

Defendant next contends that the officer was not permitted to seize the contraband from the garage without obtaining a warrant. In support of this contention he cites Johnson v. United States, 333 U.S. 10 [ 92 L.Ed. 436 , 68 S.Ct. 367 ]; Agnello v. United States, 269 U.S. 20 [ 70 L.Ed. 145 , 46 S.Ct. 4 ]; People v. Nichols, 1 Cal.App.3d 173 [ 81 Cal.Rptr. 481 ]; People v. Hobbs, 274 Cal.App.2d 402 [ 79 Cal.Rptr. 281 ]; People v. Hawkins, 273 Cal.App.2d 529 [ 78 Cal.Rptr. 286 ]; and People V. Superior Court, 264 Cal.App.2d 165 [ 70 Cal.Rptr. 362 ]. A careful reading of these cases discloses that all of them actually stand for the proposition that probable cause to believe that contraband is present, no matter how well founded, does not justify a warrantless search therefor, if such search involves an unreasonable governmental intrusion into the constitutionally protected right of privacy.

In making this contention and in relying upon these cases, defendant confuses “probable cause to believe contraband will be found, which justifies the issuance of a search warrant, and observation of contraband in plain sight, which justifies seizure without a warrant.” (People v. Marshall, supra, 69 Cal.2d 51 , 57.) The rule is well established that, when a police officer, in the proper exercise of his duty to investigate, or during the course of an otherwise lawful search, is in a place where he has a right to be and sees contraband in plain sight, he may lawfully seize it without first obtaining a warrant. (E.g., Ker v. California, supra, 374 U.S. 23 , 36-37 [ 10 L.Ed.2d 726 , 740, 83 S.Ct. 1623 , 1631]; People v. Marshall, supra, 69 Cal.2d at pp. 57-58 and cases there cited; People v. Bradley, supra, 1 Cal.3d at p. 85; People v. Kampmann, 258 Cal.App.2d 529 , 532-533 [ 65 Cal.Rptr. 798 ]; cf. Zap v. United States, 328 U.S. 624 , 628-630, 632-633 [ 90 L.Ed. 1477 , 1481-1483, 1484, 66 S.Ct. 1277 ].)

As we see it, the only remaining question is whether this well-recognized rule is inapplicable to the case at bench, because, in order to seize the contraband, Sergeant Babcock was required to insert his hand 10 to 12 inches inside the garage through the opening in the wall. Although, as we have seen, the propriety of searches of the uninhabited portions of private property involving minor trespasses have received much consideration (People v. Bradley, supra; People v. Edwards, supra; People v . Berutko, supra; People v. Willard, supra; People v. King, supra), there appear to be few, if any, cases discussing independently the pro

As in the case of searches, it is not all seizures that are constitutionally prohibited, only unreasonable seizures. (U.S. Const., Amend. IV; Cal. Const., art. I, § 19; People v. Curley, supra, 12 Cal.App.3d at p. 738; cf. Terry v. Ohio, supra, 392 U.S. 1 [ 20 L.Ed.2d 889 , 88 S.Ct. 1868 ]; People v. Hammond, 54 Cal.2d 846 , 853 [ 9 Cal.Rptr. 233 , 357 P.2d 289 ]; Bielicki v. Superior Court, supra, 57 Cal.2d 602 , 605.) Although the officer’s sticking his hand through the opening in the wall 10 to 12 inches inside the garage could not be classified as a forcible entry, nevertheless it was technically an entry or trespass. As in the case of a search involving such a minor trespass, however, we do not think that the conflicting fundamental policy considerations involved in determining whether a seizure is reasonable ought to depend upon the words “entry” or “trespass” or upon technical rules of property. (Cf. Jones v. United States, supra, 362 U.S. 257 , 266 [ 4 L.Ed.2d 697 , 705, 80 S.Ct. 725 , 733]; Mancusi v. DeForte, supra, 392 U.S. 364 , 368 [ 20 L.Ed.2d 1154 , 1159, 88 S.Ct. 2120 , 2123-2124]; People v. Bradley, supra, 1 Cal.3d at p. 84; People v. Edwards, supra, 71 Cal.2d at p. 1100.) The problem involves a balancing between the rights of the individual and the rights of the public to proper and efficient law enforcement (see People v. Willard, supra, 238 Cal.App.2d at p. 307; People v. Kampmann, supra, 258 Cal.App.2d at p. 533), and we can see no valid reason why the test for reasonableness articulated in People v. Bradley, supra, 1 Cal.3d at p. 84 and People v. Edwards, supra, 71 Cal.2d at p. 1100 should not be applicable under similar circumstances to a seizure as well as a search. Indeed, in both of those cases seizures as well as searches were involved, and in Bradley, the seizure was held proper.

As we have already observed, neither defendant nor the rightful owner' or occupant of the property could have had a reasonable expectation of privacy with respect to the contraband in the garage. Neither can Sergeant Babcock’s reaching through the opening in the wall 10 to 12 inches into the garage to seize the contraband be classified as an unreasonable governmental intrusion. The contraband was in the plain sight of the officer who was lawfully and properly discharging his duty to investigate from a place where he had the right to be. The structure technically entered was not a habitation, and there was no forcible entry or breaking. The extent of the governmental intrusion was, under the circumstances, no greater than that involved in an officer reaching into a backyard barbecue (see People v. Alexander, 253 Cal.App.2d 691 , 700 [ 61 Cal. Rptr. 814 ]), and, indeed, seems to us less offensive than peering into a

We hold, therefore, that, notwithstanding the technical trespass or entry required to seize it, the contraband was “ ‘fully disclosed and open to the eye and hand’ ” and, therefore, properly seized by Sergeant Babcock without first obtaining a warrant. (People v. Marshall, supra, 69 Cal. 2d at pp. 57-58; see also Ker v. California, supra, 374 U.S. 23 , 36-37 [ 10 L.Ed.2d 726 , 740, 83 S.Ct. 1623 , 1631]; People v. Bradley, supra, 1 Cal.3d at p. 85; People v. Kampmann, supra, 258 Cal.App.2d at pp. 532-533.)

The order setting aside the information is reversed.

Gabbert, Acting P. J., and Kerrigan, J., concurred.

A petition for a rehearing was denied January 27, 1971, and respondent’s petition for a hearing by the Supreme Court was denied March 16, 1971. Peters, J., was of the opinion that the petition should be granted.