People v. Rios

• Citation: 546 P.2d 293,16 Cal.3d 351,128 Cal.Rptr. 5
• Decision Date: 03 March 1976
• Docket Number: Cr. 18712
• Court: United States State Supreme Court (California)
• Parties: , 546 P.2d 293 The PEOPLE, Plaintiff and Respondent, v. Manuel Chavez RIOS, Defendant and Appellant.

Page 5

128 Cal.Rptr. 5

16 Cal.3d 351, 546 P.2d 293

The PEOPLE, Plaintiff and Respondent, v. Manuel Chavez RIOS, Defendant and Appellant.

Cr. 18712.

Supreme Court of California In Bank.

March 3, 1976.

Kate Whyner, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and David R. Chaffee, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Manuel Chavez Rios appeals from a judgment rendered upon his plea of guilty to possession of amphetamines for sale. (Former Health & Saf.Code, § 11911, now § 11378.) ¹ Defendant had first entered pleas of not guilty to each of three counts alleging possession of narcotics for sale and had moved pursuant to section 1538.5 for the suppression of physical evidence as to each count. When the motion was denied defendant withdrew his plea of not guilty and pleaded guilty to one of the counts and the other counts were dismissed. ² Defendant's appeal challenges only the propriety of the trial court's ruling on the motion to suppress. (§ 1538.5, subd. (m).) We conclude that because some of the evidence should have been suppressed the judgment must be reversed without evaluation of the prejudice suffered by defendant because of the erroneous ruling. (People v. Hill (1974) 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1.)

Near midnight on November 30, 1971 Deputy Sheriff Russ Holmes was directed to an altercation in progress near a psychedelic paraphernalia business shop operated by defendant. The officer found defendant and others in an alley at the rear of the shop holding a person described by defendant as a burglary suspect. Defendant explained that when he entered his shop he saw three or four persons in the rear thereof and that he had pursued and caught the person being held. Defendant also stated that the burglars were in the process of stacking articles on the floor of the shop when interrupted by him. The officer arrested the suspect and entered the shop with defendant to search for additional suspects and to investigate the burglary.

A partition divided defendant's shop into a front show room and a rear storage and living area, and the rear area had been further partitioned to include a smaller storage space with an eight-foot level overhead on top of which articles had been piled. As Deputy Holmes and petitioner walked from the show room into the rear area the officer saw among the articles on the top of the small storage space a clear plastic bag containing numerous red pills resembling sodium secobarbital. Using a stepladder to climb to the shelf level, he seized and opened the bag, and found approximately 1,000 sodium secobarbital capsules. The deputy was able to observe from his vantage point additional pills and marijuana in an open paper bag which was placed within an open cardboard box. He took possession of the bag, which contained approximately 3 ounces of marijuana and 5,000 amphetamine sulfate tablets. Defendant was then arrested.

Additional officers arrived at the shop. Deputy Holmes commented that they 'were probably going to have to search the whole location' and directed the officers in such a search. Large quantities of contraband were discovered during the subsequent warrantless search of the entire premises, including an additional 13,500 amphetamine sulfate tablets.

Defendant contends that all narcotics were seized by the officers contrary to constitutional prohibitions. We agree with defendant as to those narcotics including the 13,500 amphetamine sulfate tablets discovered and seized during the warrantless search following defendant's arrest. The burden is as always on the People to show that contraband seized during a search without a warrant falls within a recognized exception to the warrant requirement if they are to prevail on an attack seeking to suppress the contraband. (Katz v. United States (1967) 389 U.S. 347, 357--358, 88 S.Ct. 507, 514--515, 19 L.Ed.2d 576, 585--586; Horack v. Superior Court (1970) 3 Cal.3d 720, 729--730, 91 Cal.Rptr. 569, 574--575, 478 P.2d 1, 6--7; People v. Edwards (1969) 71 Cal.2d 1096, 1105, 80 Cal.Rptr. 633, 638, 458 P.2d 713, 718.) The general search of the premises cannot be justified as a search incident to defendant's arrest as the search extended well beyond defendant's person and the area within his immediate control. (Chimel v. California (1969) 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694; People v. Block (1971) 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 282, 499 P.2d 961, 962.) The People contend, however, that in response to Deputy Holmes' statement that the entire location would have to be searched defendant consented to the extended search and was cooperative in pointing out the hidden contraband.

It appears that although the question of defendant's consent to the search was raised to the court on the motion to suppress, the court declined to make a finding thereon. ³ The claimed consent, if given by defendant, might have been either free and voluntary if defendant had understood Deputy Holmes' statement to mean that no search would be made except with a warrant (see People v. McClure (1974) 39 Cal.App.3d 64, 69, 113 Cal.Rptr. 815, 818), or it might have merely constituted a nonvolitional submission to the deputy's stated intention to conduct an immediate warrantless search, if the deputy's remark had been so understood by defendant (see People v. Shelton (1964) 60 Cal.2d 740, 746, 36 Cal.Rptr. 433, 435, 388 P.2d 665, 668).

The court indicated that the legality of the search was not dependent upon whether defendant had consented thereto and failed to make any finding relative to that issue, and as it does not appear as a matter of law that consent was freely and voluntarily given, the search cannot be justified on a consensual basis. (People v. Henry (1967) 65 Cal.2d 842, 846, 56 Cal.Rptr. 485, 488, 423 P.2d 557, 560; see also In re Walker (1974) 10 Cal.3d 764, 780, 112 Cal.Rptr. 177, 186, 518 P.2d 1129, 1138; People v. Kanos (1969) 70 Cal.2d 381, 385, 74 Cal.Rptr. 902, 905, 450 P.2d 278, 281.) Because the People urge no other exception to the warrant requirement for the search after defendant's arrest they fail in their burden of justifying the warrantless search. The contraband discovered during that search was thus seized in violation of constitutional prohibitions and should have been suppressed.

Defendant further contends that the initial seizure of contraband from the top of the small storage space was constitutionally impermissible. He relies in the main, however, on his version of events taking place prior to the seizure. Although defendant's testimony raises substantial conflicts with that of the People's witnesses heretofore set out, that conflict was resolved by the court in favor of the People. ⁴ A proceeding pursuant to section 1538.5 is one in which factual issues are resolved by the court sitting as a finder of fact. (People v. West (1970) 3 Cal.3d 595, 602, 91 Cal.Rptr. 385, 387, 477 P.2d 409, 411.) 'In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.' (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 15, 507 P.2d 621, 623.)

There is substantial evidence that Deputy Holmes entered defendant's shop at defendant's implied invitation for the purpose of investigating a burglary (see People v. Shepherd (1973) 33 Cal.App.3d 866, 869, 109 Cal.Rptr. 388, 390); that during the lawful course of such investigation the deputy inadvertently observed contraband in plain view; that he properly positioned himself to retrieve such contraband; and that in doing so he accordingly was able to view additional contraband in the open paper bag which is the basis for the conviction herein. Neither the observation of contraband in plain view from a position where an officer has a right to be nor the seizure of such contraband is constitutionally prohibited. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33; People v. Block, supra, 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 282, 499 P.2d 961, 962.) Defendant's motion for the suppression of physical evidence was thus properly denied as to the contraband on the top of the storage space including the 5,000 amphetamine sulfate tablets.

It accordingly appears that the trial court properly denied defendant's section 1538.5 motion as to some but not all of the amphetamine sulfate tablets, some 13,500 in number, seized by the officers. When on such a record an accused withdraws a not guilty plea and enters a guilty plea pursuant to subdivision (m) of section 1538.5, thereby challenging the propriety of the trial court's ruling on appeal, the judgment must in All cases be reversed for reasons we enunciated in People v. Hill, supra, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1. (See also People v. Fry (1969) 271 Cal.App.2d 350, 358--359, 76 Cal.Rptr. 718, 724--725.) We stated in Hill: 'In view of the magnitude of the consequences of a guilty plea and the lack of an adequate basis upon which an appellate court can evaluate the impact of a trial court's error, we conclude that the doctrine of harmless error is inapplicable in the context of an appeal under section 1538.5, subdivision (m). The accused must be afforded an opportunity the personally elect whether, contrary to the trial court's ruling, the suppression of certain items of evidence would alter the situation in a sufficiently favorable manner so as to render a plea of not guilty...