People v. Rooney

• Decision Date: 13 December 1985
• Citation: 175 Cal.App.3d 634,221 Cal.Rptr. 49
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Peter ROONEY, Defendant and Respondent. B006936.

Page 49

221 Cal.Rptr. 49

175 Cal.App.3d 634

The PEOPLE, Plaintiff and Appellant, v. Peter ROONEY, Defendant and Respondent.

B006936.

Court of Appeal, Second District, Division 7, California.

Dec. 13, 1985.

Review Denied March 13, 1986.

Ira Reiner, Dist. Atty. of Los Angeles County, Donald J. Kaplan and Arnold T. Guminski, Deputy Dist. Attys., for plaintiff and appellant.

Arthur Lewis, Los Angeles, for defendant and respondent.

THOMPSON, Associate Justice.

The People bring this appeal (Penal Code, § 1238, subd. (a)(7)) ¹ from the order dismissing the case against defendant who was charged with bookmaking ( § 337a). The dismissal was entered after the prosecution represented that it could not proceed due to the granting of defendant's motion to quash a search warrant and suppress evidence ( § 1538.5). The first issue before us is whether the warrantless search of the defendant's apartment building's trash bin constituted an unreasonable search and seizure. We conclude that it did for lack of probable cause. The second issue is whether a police officer's affidavit provided probable cause for the issuance of the search warrant authorizing the search of defendant's apartment. We conclude that even excluding the items seized from the trash bin, the tip from the informant coupled with other corroborating evidence were sufficient to support the warrant. We therefore reverse and remand.

I FACTUAL AND PROCEDURAL BACKGROUND

The following evidence was before the magistrate. On December 3, 1983, an informant told the affiant, Officer Shorb, that defendant, Peter Rooney, was accepting wagers on professional football games over the telephone and with an answering machine at (213) 656-8430. Although the informant told Shorb that defendant was "in the location between 1600 hours and 1800 hours," the informant did not tell Shorb the address of "the location."

On December 7, 1983, Shorb ascertained through the telephone company that the number given to him by the informant was registered to a Peter Ryan at 1120 North Flores Street, Apartment # 8, West Hollywood. Shorb also determined that the utilities at that address were registered in the name of Peter Ryan.

On December 13, 1983, Shorb learned from defendant's arrest record that defendant had been arrested three years earlier for bookmaking activities at 1120 North Flores Street, Apartment # 8, West Hollywood. Shorb obtained a booking photo of defendant from the prior arrest.

On December 15, 1983, Officers Shorb and Wyeth went to 1120 North Flores Street, West Hollywood, a 28-unit apartment building with a subterranean garage. The officers entered the garage and conducted a search of the communal trash bin, which measured approximately 8' X 4' X 5', and was filled to capacity. Upon reaching the bottom half of the bin, Shorb discovered a brown paper shopping bag with mail addressed to defendant, but not to Peter Ryan, at 1120 North Flores Street, Apartment # 8, West Hollywood, the address obtained from the telephone company and defendant's arrest record. The bag also contained pieces of paper with "sports wagers, pays and owes, and a tally sheet of wagers on professional football teams...."

While conducting a surveillance of the apartment building on December 26, 1983, Shorb saw a male caucasian, whom he recognized from the booking photograph to be defendant, drive into the subterranean garage and enter apartment # 8. Shorb observed apartment # 8 for approximately one hour, during which time no one entered or left. This occurred on the Friday afternoon before a weekend when numerous professional football games were to be played.

Subsequently, Shorb dialed the telephone number that was given to him by the informant and which the telephone company told him was listed to apartment # 8, and overheard a telephone conversation between the informant and an unknown male. The informant asked, " 'What's the latest line?,' " to which the unknown male responded with the latest point spreads on professional football games.

Both Officers Shorb and Wyeth had prior experience in bookmaking investigations and arrests, from which they formed the opinion that defendant was operating a bookmaking office at the apartment. Based on Shorb's supporting affidavit which detailed the above information, a search warrant issued authorizing a search of defendant's apartment. The record on appeal contains no details of the search, the items seized, or defendant's arrest.

Defendant moved to quash the search warrant and to exclude evidence ( § 1538.5). In granting his motion, the magistrate stated that the betting markers and paraphernalia found in the warrantless search of the trash bin were the fruits of an invalid search. The magistrate concluded that the other evidence corroborating the informant's tip--the telephone conversation concerning the latest line and defendant's prior arrest for bookmaking at the same address that was matched to the telephone number provided by the informant--failed to provide probable cause to support the issuance of the search warrant.

After the superior court granted the prosecution's section 871.5 motion, defendant again moved to quash the search warrant and to suppress evidence ( § 1538.5). At the hearing on defendant's motion, the trial court ordered the search warrant quashed and the evidence suppressed on the ground that the warrantless search of the trash bin constituted an unreasonable search and seizure.

Following the prosecutor's representation that the People would not be able to proceed, the case was dismissed. The prosecution appeals from the order of dismissal.

II DISCUSSION

The prosecution contends that the warrantless search of the trash can was a valid search under both the federal and state Constitutions, and that the search warrant was properly supported by the existence of probable cause.

A. The Warrantless Search of the Trash Bin

The issue before us is the reasonableness of defendant's expectation of privacy in a bag of trash placed in a communal trash bin located in the apartment's garage, an area accessible to the public. First, we note that the mere fact that the trash bin was located in an area accessible to the public is not dispositive of the issue. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. [Citations.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." (Katz v. United States (1967) 389 U.S. 347, 351-352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576.)

With respect to the validity of trash can searches, our Supreme Court has stated that the "secondary degree of protection [that] applies to automobiles ... also appears to apply to a trash can placed by the curb for the disposal of its contents...." (People v. Dumas (1973) 9 Cal.3d 871, 882, fn. 9, 109 Cal.Rptr. 304, 512 P.2d 1208.) An automobile "may be searched upon probable cause and upon a showing that 'delay would enhance the possibility the articles would be destroyed or placed beyond the reach of the officers. [Fn. omitted.]' " (People v. Parker (1974) 44 Cal.App.3d 222, 229, 118 Cal.Rptr. 523.) In Dumas, the court noted that it would be anomalous to hold that a trash can next to a house may not be searched "but that an automobile parked immediately adjacent to it is subject to such a search, inasmuch as an automobile undeniably evokes at least as great an expectation of owner privacy as a trash can." (People v. Dumas, supra, 9 Cal.3d at p. 884, 109 Cal.Rptr. 304, 512 P.2d 1208.)

Under California law, trash placed in a trash can in one's back yard or in front of one's house where it can be collected is not abandoned property outside the scope of protection of the state Constitution. In People v. Edwards (1969) 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, our Supreme Court held that trash placed in a trash can located in the defendant's back yard was not abandoned, and thus not placed beyond the protection of the Fourth Amendment and article I, section 19, of the California Constitution. (Id., at pp. 1104-1105, 80 Cal.Rptr. 633, 458 P.2d 713.) As stated in Edwards: "The marijuana itself was not visible without 'rummaging' in the receptacle. So far as appears defendants alone resided at the house. In the light of the combined facts and circumstances it appears that defendants exhibited an expectation of privacy, and we believe that expectation was reasonable under the circumstances of the case. We can readily ascribe many reasons why residents would not want their castaway clothing, letters, medicine bottles or other telltale refuse and trash to be examined by neighbors or others, at least not until the trash had lost its identity and meaning by becoming part of a large conglomeration of trash elsewhere." (Id., at p. 1104, 80 Cal.Rptr. 633, 458 P.2d 713.)

And in People v. Krivda (1971) 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, our Supreme Court held that a trash can placed in front of the defendant's house for collection of its contents was not abandoned property placed beyond the protection of the Fourth Amendment and the state Constitution. ² While it may be reasonable to anticipate that nonpolice third persons may rummage through and scavenge from one's trash barrels despite local ordinances prohibiting such behavior, the probability of that occurrence does not necessarily create the same expectation that police would rummage through and retrieve evidence from one's trash barrels without a search warrant. (People v Krivda, supra, 5 Cal.3d at pp. 366-367, 96 Cal.Rptr. 62, 486 P.2d 1262.) The court expressed a concern against "encourag[ing] a practice whereby our citizens' trash cans could be made the subject of police inspection without the protection of applying for and securing a search warrant." (People v. Krivda, supra, 5 Cal.3d at p. 367, 96 Cal.Rptr. 62, 486 P.2d 1262.)

While it appears logical to conclude...