People v. Superior Court

The car parked in front of room 10, the only room alight in the motel, bore an expired temporary emergency operating sticker. From his place on the public sidewalk used for reaching the units of the motel, Reuter noticed that the curtains to room 10 were open about three inches and he looked in to ascertain whether there was anybody present to explain the lack of current evidence of licensing of the car, and to determine whether there was anyone present who would answer the reported physical description of the drug suspect. He saw a young man, James Pierce, sitting in front of a desk. On the desk was a tripod mounted with a camera pointing down, and lights. Leaning up on the base pole was a card with blue printing which Reuter believed was a driver’s license from another state and later recognized as a Colorado driver’s license.

Reuter advised Sergeant Bush of what he had seen and Bush knocked on the door. Pierce asked “Who’s there?” and Reuter stated “San Jose Police Department.” When Pierce opened the door two or three inches, the officers asked him to whom the Oldsmobile belonged. At that point Reilly came out of the shower with a towel around his waist, and despite the extremely cold night came outside. He told the officers that .the car belonged to him, and that the necessary papers were in the car.

Reilly went to the Oldsmobile and produced the papers. While Pierce, who had also come out, stood at the front of the vehicle, Reilly spoke with the officers for about five minutes and then asked to go inside to dress as it was cold outside. Given permission to go inside, Reilly shut the door on Reuter who had started to follow Reilly inside.

Reuter then went to the window and watched Reilly, who took a brown wallet, off of the desk top and put it in the upper right hand drawer of the desk. Reuter also observed Reilly putting the photographic material and the Colorado driver’s license into a brown box on the floor.

Pierce, who was outside in his bare feet at the time, requested permission to go inside and was allowed to do so. He tried to shut the door on the officers as Reilly had done, but was unable to do so. The officers entered the room and placed both Pierce and Reilly under arrest.

On the top of the desk only a few minor things remained. In the box on the floor the officers found a Colorado driver’s license with Pierce’s picture on it and various items of information filled in. Also in the box were photographs, approximately 12 or 13, of the defendant, Reilly. The brown wallet which Reuter had previously seen Reilly place in the desk drawer was removed and inspected. Inside the wallet were approximately 10 different pieces of identification containing different names, date of births, and social security cards. Though the numerous pieces of identification, including driver’s licenses from three states, fit the defendant they all contained different names. In the bathroom of the motel the officers found the black packet of traveler’s checks hidden under two or three towels. The name James A. Krug which was on two of the driver’s licenses was on the checks.

Preliminarily it may be noted that at the time he made his original observations the officer, since he was on property open to public common use, was where he had a right to be. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626 , 631-633 [ 108 Cal.Rptr. 585 , 511 P.2d 33 ]; and People v. Berutko (1969) 71 Cal.2d 84 , 91 [ 77 Cal.Rptr. 217 , 453 P.2d 721 ].) There was therefore no violation of the accused’s or his confederate’s constitutional rights in making the initial observation through the window. The explanation of the officer’s presence at the scene or his motive for looking in the window are not of great significance. Anyone passing by could observe Pierce’s strange nocturnal activity.

The court apparently properly concluded that the observation of an individual working with a camera and driver’s license at 2 a.m. provided probable cause to arrest Pierce for a felony committed in the officer’s presence. So much was conceded by Reilly’s attorney at the hearing. The fact that the officers did not immediately act with respect to that offense, but elected to first secure an explanation of the ownership of the car, did

Reilly withdrew in a manner which precluded entry by the officers to further investigate the apparent counterfeiting of a driver’s license. His actions, as then observed from outside, implicated him in the wrongdoing attributed to Pierce, and there was then cause to enter to arrest Reilly. There was no need for the officers to announce their identity again, and any announcement of their purpose in accompanying Pierce through the door would have been superfluous because it was apparent that Reilly knew he was engaged in wrongdoing, and was hurrying to eliminate all evidence which would reveal it. “Under the doctrine of ‘substantial compliance’ the requirements of section 844 will be deemed satisfied where police officers identify themselves, demand entry and, although they fail to explain why they seek admittance, it is reasonably apparent to the occupants why the police wish to enter. [Citations.]” (People v. Hill (1974) 12 Cal.3d 731 , 758 [ 117 Cal.Rptr. 393 , 528 P.2d 1 ]. See also People v. Peterson (1973) 9 Cal.3d 717 , 722-724 [ 108 Cal.Rptr. 835 , 511 P.2d 1187 ]; People v. Tribble (1971) 4 Cal.3d 826 , 832-837 [ 94 Cal.Rptr. 613 , 484 P.2d 589 ]; People v. Superior Court [Manfredo] (1971) 17 Cal.App.3d 195 , 202-203 [ 94 Cal.Rptr. 643 ]; People v. Peterson (1970) 9 Cal.App.3d 627 , 631-633 [ 88 Cal.Rptr. 597 ]; and People v. Boone (1969) 2 Cal.App.3d 66 , 68-69 [ 82 Cal.Rptr. 398 ]. Cf. People v. Bennetto (1974) 10 Cal.3d 695 , 700-702 [ 111 Cal.Rptr. 699 , 517 P.2d 1163 ]; People v. Dumas (1973) 9 Cal.3d 871 , 877-879 [ 109 Cal.Rptr. 304 , 512 P.2d 1208 ]; Duke v. Superior Court (1969) 1 Cal.3d 314 , 318-324 [ 82 Cal.Rptr. 348 , 461 P.2d 628 ]; Greven v. Superior Court (1969) 71 Cal.2d 287 , 290-295 [ 78 Cal.Rptr. 504 , 455 P.2d 432 ]; People v. De Santiago (1969) 71 Cal.2d 18 , 28-30 [ 76 Cal.Rptr. 809 , 453 P.2d 353 ]; and People v. Gastelo (1967) 67 Cal.2d 586 , 588-589 [ 63 Cal.Rptr. 10 , 432 P.2d 706 ].)

The trial court in upholding the seizure of that which was in plain sight at the time of the entry correctly ruled that it was not invalidated by the manner in which the officer had made his observation, or by the manner in which they entered.

The trial court did suppress the wallet, which the accused had placed in the desk, and the driver’s licenses and other identification cards

In Chimel v. California, supra, the court concluded that there is no constitutional justification, in the absence of a search warrant, for extending the search incident to the lawful arrest of an accused beyond his person and the area from within which he might obtain either a weapon or something that could be used as evidence against him. (395 U.S. at p. 768 [23 L.Ed.2d at pp. 696-697].) The basis of this rule was enunciated after a thorough review of prior precedents. (Id. at pp. 755-762 [23 L.Ed.2d at pp. 689-693]. See also Guidi v. Superior Court (1973) 10 Cal.3d 1 , p. 7, fn. 4 [ 109 Cal.Rptr. 684 , 513 P.2d 908 ], and accompanying text.) The court recognized, “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.” (Id. at pp. 762-763 [23 L.Ed.2d at p. 694], italics added.) The court pointed out, “There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence to judicial processes’ mandated by the Fourth Amendment requires no less.” (Id. at p. 763 [23 L.Ed.2d at p. 694], italics added, fn. omitted.) The court distinguished “ ‘an unrestrained and thoroughgoing examination’ ” of a suspect and his personal effects from the type of search approved in Chimel and the earlier case of Peters v. New York (1968) 392 U.S. at page 67 [20 L.Ed.2d at page 937, 88 S.Ct. 1889 ] (id. p. 764 [23 L.Ed.2d p. 694], and it approved the statement of Judge Learned Hand (United States v. Kirschenblatt (2d Cir. 1926) 16 F.2d 202 , 203) that an arrest of a man in his house should not give the power “ ‘to rummage at will among his papers in search of whatever will convict him.’ ” (Id.,

We also note that seizures involving a search of areds within the proximity of the arrestee are permitted although nothing subject to seizure is in plain sight. In People v. King (1971) 5 Cal.3d 458 [ 96 Cal.Rptr. 464 , 487 P.2d 1032 ], the court recognized that Chimel was not applicable to a search and seizure made prior to the date of that decision but it noted that Chimel permitted search with a flashlight under the bed, from which the officer had directed the arrestee to remove herself, and the seizure of a brown paper bag and its contents. (5 Cal.3d at pp. 462 and 463.) In People v. Spencer (1972) 22 Cal.App.3d 786 [ 99 Cal.Rptr. 681 ], the court upheld a successful search for weapons in a cardboard box at the foot of a bed upon which the suspect was lying at the time of his arrest. (22 Cal.App.3d at p. 793.) In People v. Arvizu (1970) 12 Cal.App.3d 726 [ 90 Cal.Rptr. 895 ], a pre-Chimel search, the court indicated that search of a duffel bag was proper even under Chimel because the duffel bag was in the area of the arrestee’s immediate control, and was an extension of his person, and because a search of that article for a weapon was legally permissible. (12 Cal.App.3d at pp. 729-730.)

More recently the United States Supreme Court has recognized Chimel as standing for the proposition that police “are normally permitted to seize evidence of crime when it is lawfully encountered.” (United States v. Edwards (1974) 415 U.S. 800 , 806 [ 39 L.Ed.2d 771 , 777,

It may be suggested that the officers should have placed the suspects into custody, secured a warrant, and returned to the scene. This presupposes unlimited personnel resources to watch the scene in the meantime lest a confederate designedly, an interloper unwarrantedly, or a chambermaid carelessly dispose of the evidence while the warrant is secured. To require the securing of a warrant under the particular circumstances of this case would be as out of place as in the situation reviewed by the court in People v. McKinnon (1972) 7 Cal.3d 899 [ 103 Cal.Rptr. 897 , 500 P.2d 1097 ]. There the court considered the rationale of Chambers v. Maroney (1970) 399 U.S. 42 [ 26 L.Ed.2d 419 , 90 S.Ct. 1975 ], which had upheld the search of a vehicle for weapons and incriminating evidence after its occupants were arrested, upon probable cause, as the perpetrators of an armed robbery. Because of the original mobility of the car, the Chambers court observed, as noted by our Supreme Court, “ ‘Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. . . . The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.’ (Italics added; fn. omitted.) (Id. [399 U.S.] at pp. 51-52 . . . .)” (7 Cal.3d at p. 908.) The McKinnon court ascribed the mobility of an automobile to a box or trunk

Let a peremptory writ of mandate issue directing the trial court to vacate its order suppressing evidence.

Molinari, P. J., and Elkington, J., concurred.