People v. Carney

• Decision Date: 08 September 1983
• Docket Number: Cr. 22047
• Citation: 194 Cal.Rptr. 500,34 Cal.3d 597,668 P.2d 807
• Court: California Supreme Court
• Parties: , 668 P.2d 807 The PEOPLE, Plaintiff and Respondent, v. Charles Richard CARNEY, Defendant and Appellant.

Page 500

194 Cal.Rptr. 500

34 Cal.3d 597, 668 P.2d 807

The PEOPLE, Plaintiff and Respondent, v. Charles Richard CARNEY, Defendant and Appellant.

Cr. 22047.

Supreme Court of California.

Sept. 8, 1983.

Rehearing Denied Oct. 6, 1983.

Thomas F. Homann, San Diego, for defendant and appellant.

Louis R. Hanoian, Deputy Atty. Gen., San Diego, for plaintiff and respondent.

MOSK, Justice.

Defendant was charged with possession of marijuana for sale. (Health & Saf.Code, § 11359.) After unsuccessful motions to suppress evidence seized from his motor home, defendant pleaded nolo contendere and was granted probation. He appeals from that order.

The major issue presented is whether the warrantless search of defendant's motor home was justified by an exception to the warrant requirement. The People seek to justify the search on two alternate theories: (1) the automobile exception and (2) the protective sweep exception. ¹ We conclude that neither of these proposed justifications is applicable under the facts of this case and hence the order must be reversed.

I

Agent Robert Williams of the Drug Enforcement Administration undertook a surveillance of suspected drug dealer Lee Bowman in the Horton Plaza area of downtown San Diego. Williams noticed defendant because "he did not look like he fit in the area there, and he was approaching a Mexican boy and talking to him." Defendant and the youth walked to a nearby parking lot, entered a Dodge motor home parked there and closed the curtains, including one across the front window.

Williams noted the license plate number of the motor home and recalled having received uncorroborated information from which he inferred that defendant "had taken the place of the person [i.e., Bowman] we were following and [that he was] dealing narcotics." The information was furnished by an organization called "WeTip" (We Turn in Pushers); it suggested that the motor home was associated with an individual who reportedly was exchanging marijuana for sex.

Additional officers, including an agent by the name of Clem, arrived in response to a request by Williams. The motor home was kept under surveillance during the entire hour and a half that defendant and the youth were inside. After the youth left the motor home the officers followed, stopped and questioned him. He told them the occupant of the motor home had given him marijuana in exchange for allowing the man to perform oral copulation on him.

The youth then complied with the officers' request that he return to the motor home, knock on the door, and ask defendant to come out. Defendant answered the door and as he stepped out of the motor home, the agents identified themselves as law enforcement officers. Agent Clem entered the motor home; inside he observed marijuana, ziploc bags, and a scale on a table. On the basis of Clem's observations, Williams arrested defendant, seized the motor home, and drove it to the police station. A subsequent search of the motor home revealed additional marijuana in the cupboards and refrigerator.

At the preliminary hearing defendant moved to suppress the evidence seized from both searches of the motor home. The motion was denied by the magistrate on the ground that as to the initial search, Agent Clem had the right to enter to look for other persons; the more thorough second search was upheld as a standard inventory search. Defendant unsuccessfully renewed his suppression motion in the superior court, which found that (1) there was sufficient probable cause to arrest defendant; (2) the search of the motor home was authorized under the automobile exception; and (3) the motor home itself could be seized as an instrumentality of the crime.

II

Article I, section 13, of the California Constitution establishes the right of the people of this state to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. The Fourth Amendment provides a similar guarantee. This protection has repeatedly been interpreted to require the impartial approval of a judicial officer before undertaking most searches. (Payton v. New York (1980) 445 U.S. 573, 583-585, 100 S.Ct. 1371, 1378-79, 63 L.Ed.2d 639; People v. Dalton (1979) 24 Cal.3d 850, 855, 157 Cal.Rptr. 497, 598 P.2d 467.) "In the ordinary case ... a search of private property must be both reasonable and pursuant to a properly issued search warrant." (Arkansas v. Sanders (1979) 442 U.S. 753, 758, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235.)

The importance of the judicial warrant cannot be overemphasized: " 'The warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow "weighed" against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the "well-intentioned but mistakenly overzealous executive officers" who are a part of any system of law enforcement' .... By requiring that conclusions concerning probable cause and the scope of a search 'be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime' [citation], we minimize the risk of unreasonable assertions of executive authority." (Id. at pp. 758-759, 99 S.Ct. at pp. 2589-90.) Thus, searches conducted without the benefit of the judicial warrant process are " 'per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' " (Mincey v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 2415, 57 L.Ed.2d 290, quoting Katz v. United States (1967) 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576; accord, People v. Minjares, supra, 24 Cal.3d at p. 416, 153 Cal.Rptr. 224, 591 P.2d 514.)

It is against this background that we examine defendant's challenge to the warrantless search of the living compartment of his motor home. If that search is to be upheld, it is the state's burden to show that it falls within one of the "few carefully circumscribed and jealously guarded exceptions" (People v. Dalton, supra, 24 Cal.3d at p. 855, 157 Cal.Rptr. 497, 598 P.2d 467) to the warrant requirement. (People v. Dumas (1973) 9 Cal.3d 871, 881, 109 Cal.Rptr. 304, 512 P.2d 1208; Arkansas v. Sanders, supra, 442 U.S. at p. 760, 99 S.Ct. at p. 2591; McDonald v. United States (1948) 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153.)

In the present case the state seeks to justify the search primarily under the so-called "automobile exception." Our formulation of the controlling principles of that doctrine provides that " 'officers are empowered ... to search an automobile as "long as it can be demonstrated that (1) exigent circumstances rendered the obtaining of a warrant an impossible or impractical alternative, and (2) probable cause existed for the search." ' " (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417.)

The "automobile exception" had its genesis in Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; it has since been expanded and extensively litigated to the point that this area of search and seizure law is now characterized as "troubled" (United States v. Ross (1982) 456 U.S. 798, 817, 102 S.Ct. 2157, 2169, 72 L.Ed.2d 572, 589) and "something less than a seamless web" (Cady v. Dombrowski (1973) 413 U.S. 433, 440, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706). The court in Carroll premised its analysis on the notion that there is a constitutional difference between houses and cars. The underlying rationale for this distinction was the inherent mobility of automobiles. (Carroll, supra, 267 U.S. at p. 153, 45 S.Ct. at p. 285; Cooper v. California (1967) 386 U.S. 58, 59, 87 S.Ct. 788, 789, 17 L.Ed.2d 730; see also Katz, Automobile Searches and Diminished Expectations in the Warrant Clause (1982) 19 Am.Crim.L.Rev. 557, 563-565 (hereafter referred to as Katz).) California courts have independently relied on similar reasoning. (People v. Laursen (1972) 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145; People v. McKinnon (1972) 7 Cal.3d 899, 907, 103 Cal.Rptr. 897, 500 P.2d 1097; People v. Odom (1980) 108 Cal.App.3d 100, 107, 166 Cal.Rptr. 283.)

Although subsequent decisions have purported to rely on the mobility justification, the courts have recognized that this reasoning alone fails to support their sustaining of "warrantless searches of vehicles ... in cases in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not nonexistent." (Cady v. Dombrowski, supra, 413 U.S. at pp. 441-442, 93 S.Ct. at p. 2528; accord, United States v. Chadwick (1977) 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538; South Dakota v. Opperman (1976) 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000.) This is demonstrated first by the line of cases in which warrantless searches were upheld regardless of the automobile's actual mobility, e.g., where there was no immediate danger that the vehicle would be removed from the jurisdiction. (See, e.g., Cady, supra, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 [car, disabled as result of accident, in control of police; driver, sole occupant, arrested and hospitalized]; Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 [occupants of car arrested and car taken to police station]; Cooper v California (1967) 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 [defendant arrested and car impounded].) Conversely, another line of decisions disapproves certain warrantless searches of containers despite the recognition of their "mobility." (Sanders, supra, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 [suitcase in trunk of car]; Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 [footlocker in trunk of car]; People v. Minjares, supra, 24 Cal.3d at p. 418, ...