Guidi v. Superior Court

• Citation: 513 P.2d 908,109 Cal.Rptr. 684,10 Cal.3d 1
• Court: United States State Supreme Court (California)
• Decision Date: 05 September 1973
• Parties: , 513 P.2d 908 Stephen Michael GUIDI et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30041.

Page 684

109 Cal.Rptr. 684

10 Cal.3d 1, 513 P.2d 908

Stephen Michael GUIDI et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

The PEOPLE, Real Party in Interest.

L.A. 30041.

Supreme Court of California,

In Bank.

Sept. 5, 1973.

Richard G. Sherman, Beverly Hills, and Alan Fenster, Los Angeles, for petitioners.

No appearance for respondent.

Joseph P. Busch, Dist. Atty. Harry Wood and Daniel L. Lieberman, Deputy Dist. Attys., for real party in interest.

WRIGHT, Chief Justice.

An alternative writ of mandate issued challenging the propriety of respondent court's failure to grant petitioners' motion to suppress contraband evidence alleged to be the fruit of an unreasonable seizure and search (Pen.Code, § 1538.5, subd. (a)), in proceedings wherein petitioners are charged with offering marijuana for sale and possession of marijuana for sale (Health & Saf.Code, §§ 11531, 11530.5). ¹ We conclude that the seizure and subsequent search herein concerned were constitutionally permissible. We therefore discharge the alternative writ.

For some months prior to his election to cooperate with Orange County authorities as an undercover operative seeking to deal in narcotics, Joe Del Sesto had frequented various commercial establishments patronized by narcotics traffickers. Acting in his undercover capacity he entered into preliminary negotiations with petitioners Guidi, Lefort and Neilson and thereafter went to an apartment in Long Beach in order to inspect hashish proffered by such petitioners in exchange for an agreed purchase price of $7,500.

The door of the apartment opened into a living room which was partially separated from the adjacent kitchen by a counter or bar six to eight feet long and three and a half feet high. A hall led to two bedrooms and a bathroom at the rear of the apartment. Upon his entrance Del Sesto went through the hall to the bathroom but was unable to observe the occupants of either bedroom as the doors to those rooms were closed. Having returned to the living room Del Sesto observed petitioner O'Connor withdraw 20 bricks of hashish, wrapped in pairs in separate plastic 'baggies,' from a brown grocery bag.

Del Sesto left the apartment to get the purchase money. Petitioners Lefort and Neilson, who had left with Del Sesto, were arrested on the street as they returned with Del Sesto to the apartment. Del Susto told the officers that two other suspects were in the apartment and that the hashish was in a shopping bag on the floor of the living room. Del Sesto also said he had not been able to see if other occupants of the apartment were within the bedrooms.

Petitioner O'Connor responded to a police officer's knock and was arrested at the door of the apartment. Moving inside with weapon drawn and accompanied by two fellow officers, Officer Holt arrested petitioner Guidi in the living room. Both O'Connor and Guidi were handcuffed immediately. During this time Holt heard sounds coming from the rear of the apartment. He crossed the room to the kitchen. Behind the counter Holt saw a shopping bag with the opening squared shut. For the first time the officer became aware that the distinctive odor of hashish permeated the room and seemed to come directly from the vicinity of the bag. Seizing the bag he found the 10 'baggies' of hashish within. Holt then searched the bedrooms of the apartment, first for occupants and then more thoroughly to the point of rifling through drawers and opening shoeboxes. A small child was found in one bedroom and the tenant of the apartment in the other. The officers possessed neither search nor arrest warrants.

Essential to the maintenance of Fourth Amendment rights is the concept that a police intrusion into an area of private control should wherever feasible be made contingent on a Judicial finding of probable cause embodied in a warrant. Nowhere has the warrant requirement been applied more stringently than in relation to searches of residences. The United States Supreme Court has repeatedly emphasized that probable cause alone, no matter how compelling, will not justify a search within a residence absent a warrant. (See Vale v. Louisiana (1970) 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409; Chapman v. United States (1961) 365 U.S. 610, 613, 81 S.Ct. 776, 5 L.Ed.2d 828.) The Fourth and Fourteenth Amendments mandate the exclusion of evidence seized in the course of an unreasonable search (Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081), and warrantless residential searches have been judicially deemed 'per se unreasonable' save where recognized exceptions apply. (Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 389, 19 L.Ed.2d 576; People v. Edwards (1969) 71 Cal.2d 1096, 1105, 80 Cal.Rptr. 633, 458 P.2d 713; see also United States v. Rabinowitz (1950) 339 U.S. 56, 68 et seq., 70 S.Ct. 430, 94 L.Ed. 653 (dissenting opinion by Frankfurter, J.).)

Petitioners contend that the search of the bag of hashish in the kitchen falls within none of these exceptions to the presumptive invalidity of a warrantless search. The People argue that the odor emanating from the bag put the contraband inside it within the 'plain smell' of Officer Holt, and urge that we treat 'plain smell' as the legal equivalent of 'plain view,' ² thus invoking or creating, with respect to items possessing unique or distinctive odors, a rule similar to the long-standing concept that contraband seen in plain view may be seized without a warrant. ³

Although it received only cursory attention from the parties in this case, we believe a substantial Fourth Amendment issue must be resolved preliminarily to our discussion of the seizure of the bag and the search thereof. It is elementary that the legality of the seizure of an object falling within the plain view of an officer is dependent upon that officer's right to be in the position from which he gained his view of the seized object. (Harris v. United States (1968) 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067.) Thus we must first determine whether Holt had a right to cross the living room and survey the kitchen before we can consider whether his plain view of the bag and his 'plain smell' of the hashish within gave him legal ground to seize the bag and inspect its contents.

One of the recognized exceptions to the rule that warrantless searches of residences are per se unreasonable is the search incident to an arrest within a residence. Indeed, this exception once threatened to eclipse the rule. The Supreme Court in Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, sought to delimit narrowly the scope of permissible warrantless searches incident to arrest and thereby reaffirm that the warrant requirement was essential to the vitality of the Fourth Amendment.

The Chimel court noted two rationales in justification of warrantless searches incident to arrest: the security of the arresting officers and the preservation of evidence. Yet for fear that through 'unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point' (Id., at p. 765, 89 S.Ct. at p. 2041), the court insisted that the dual rationales for searches incident to arrest be oriented solely to the threat posed by the arrestee and limited the search for either weapons or evidence to the arrestee's person and the area within his immediate control. ⁴

Petitioners invoke Chimel as authority for suppressing the seized hashish. Given the fact that both of the petitioners present in the apartment were handcuffed immediately upon arrest and were in any case never less than eight feet in front of the kitchen counter behind which the hashish was found, it is unquestionable that Officer Holt's survey of the kitchen cannot be validated as a search incident to arrest. The kitchen and any evidence or weapons it might have harbored were clearly beyond the reach of the arrestees. In any case, Holt was not even arguably attempting to comply with the Chimel limitation on warrantless searches. As previously mentioned, the arresting officers in clear derogation of petitioners's rights proceeded after the discovery of the hashish to search the entire apartment. ⁵

Although Officer Holt's search cannot be justified under Chimel, that case concerned only one of the several exceptions to the rule that warrantless residential searches are inherently unreasonable. Thus our conclusion that Holt's positioning himself so as to gain a view of the kitchen was beyond his power to search incident to arrest is not necessary dispositive of the legality of such action apart from the general exploratory search which followed.

Chimel was not the first case to recognize that measures reasonably tailored to assuring the security of arresting officers ought not to be inhibited by the warrant requirement. Earlier Terry v. Ohio (1968) 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, had declared that 'advance judicial approval of searches and seizures through the warrant procedure' is inherently impractical in the context of 'necessarily swift action predicated upon the on-the-spot observations of the officer on the beat.' Terry thus effected a fundamental revision of Fourth Amendment analysis by reclassifying searches and seizures into two distinct categories.

The first of these categories is 'police conduct subject to the Warrant Clause of the Fourth Amendment.' Such searches and seizures are justifiable only upon 'probable cause,' the sufficiency of which must normally be tested in advance by application to a magistrate for a warrant. (Terry v. Ohio, supra, 392 U.S. at p. 20, 88 S.Ct. at p. 1879.)

The second category of searches and seizures outlined in Terry is composed of those intrusions which cannot practicably be made contingent on advance judicial approval. Such conduct 'must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.' (Ibid.) ⁶ In assessing...