8 Cal.3d 301, 29973, North v. Superior Court

Docket Nº:29973
Citation:8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305
Opinion Judge:[10] Burke
Party Name:North v. Superior Court
Attorney:[6] Patrick H. Maloy, Public Defender, and B. J. Bjork, Deputy Public Defender, for Petitioner. [7] No appearance for Respondent. [8] Byron C. Morton, District Attorney, and Gary Scherotter, Chief Deputy District Attorney, for Real Party in Interest.
Case Date:November 16, 1972
Court:Supreme Court of California

Page 301

8 Cal.3d 301

104 Cal.Rptr. 833, 502 P.2d 1305

Jerald Douglas NORTH, Petitioner,



The PEOPLE, Real Party in Interest.

L.A. 29973.

Supreme Court of California

Nov. 16, 1972.

In Bank

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[Copyrighted Material Omitted]

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Patrick H. Maloy, Public Defender, and B. J. Bjork, Deputy Public Defender, for petitioner.

No appearance for respondent.

Byron C. Morton, Dist. Atty., and Gary Scherotter, Chief Deputy Dist. Atty., for real party in interest.

Page 304

BURKE, Justice.

Petitioner North is charged with kidnapping and assault with a deadly weapon. Pursuant to Penal Code section 1538.5, petitioner moved the superior court to suppress certain evidence linking him to the crimes charged. His motion was denied and he now seeks mandate to review that denial. (Pen.Code, § 1538.5, subd. (i).) We have concluded that petitioner's motion was properly denied with respect to evidence obtained following a seizure of petitioner's automobile subsequent to his arrest. We further hold, however, that evidence of a 'jailhouse' communication between petitioner and his wife which was secretly tape-recorded by police officers should have been ordered suppressed as an impermissible invasion of marital privacy. Accordingly, mandate should issue with respect to such evidence.

According to evidence presented at the preliminary hearing, the victim, a school girl, told Detective Neesan, the arresting officer, that on October 4, 1971, as she was walking home from school, she was pulled into a car at knifepoint by the driver. According to Neesan, the victim described the cas as 'a light blue two-door car. She thought it was a Ford fastback. . . .' The victim indicated that the car was 'higher' than ordinary, had two front bucket seats separated by a center console containing a gear shift and glove box, and was equipped with what appeared to be custom carpeting of a 'shag type, with long pile, possibly multicolored yellow and brown.'

Following the alleged incident, the officers showed the victim a series of 13 photographs, from which she selected two persons as possible suspects; petitioner was one of the suspects she chose. Detective Neesan had known petitioner and was aware that he had been arrested on two prior occasions involving female victims 'picked up in a vehicle while they were on the street.' Neesan obtained and drove to petitioner's address where he observed a vehicle (a light blue two-door 1964 Ford) matching the description given by the victim. Neesan then determined that the vehicle was registered to a 'female subject' but that a transfer notice was on file dated July 29, 1971. Neesan next asked the victim to review a police 'mug book' containing photographs of automobiles and to try and pick out the suspect vehicle. She picked out a 1964 Ford as the car within which she had been abducted.

On October 5, at 8:30 p.m., Neesan drove back to petitioner's residence and arrested petitioner inside his apartment. Petitioner's wife was also present in the apartment. Petitioner asked Neesan if he could give his car keys to her, but Neesan refused since the car was to be towed to the police station. Later that night, the car was examined for fingerprints and various

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tests made and measurements taken. Although the fingerprints taken at this time were 'negative,' subsequent tests made on October 7, disclosed 'positive' prints of the victim. The October 5 tests did indicate that the left rear tire was similar in design to the impression left at the crime scene, and that the car's 'wheel span' matched measurements taken at the scene. Apparently, examination of the vehicle turned up additional evidence linking petitioner with the crime. No search warrant was obtained by the officers who seized and examined petitioner's car.

On October 6, petitioner's wife visited petitioner at the Palm Spring Police Department where he was incarcerated. This visit, which occurred during ordinary visiting hours, took place in Detective Neesan's own office, which was in the same building as the jail. According to Neesan, it is a frequent and normal practive to permit such visits to take place in a detective's office. Neesan was present during the initial 'contact' between petitioner and his wife; he then left the room and closed the door behind him. The subsequent five-minute conversation between petitioner and his wife was secretly monitored and tape-recorded.

Following his arraignment, petitioner moved the superior court to suppress (1) all evidence obtained as a result of the seizure and examination of his car; and (2) the tape-recorded conversation with his wife. The court denied his motion in its entirety.

1. The Seizure and Subsequent Examination of Petitioner's Car

The People rely primarily upon our decision in People v. Teale, 70 Cal.2d 497, 75 Cal.Rptr. 172, wherein we upheld the validity of a seizure and subsequent examination of a vehicle under similar circumstances. In Teale, defendant sought to exclude incriminating evidence derived from a scientific examination of the car in which the victim has been shot. F.B.I. officers arrested defendant in his car and thereupon seized, locked and stored the car until California authorities were able to examine it ten days later. A subsequent scientific examination of the car, performed without the authority of a search warrant, indicated that the victim had been in the car at the time he was shot.

Defendant in Teale contended that the police examination of the car constituted an unreasonable search and seizure. We concluded otherwise. First, we noted that the automobile itself was properly seized following defendant's arrest 'as evidence connecting defendant with the alleged crimes' and that 'it is plainly within the realm of police investigation to subject objects properly seized to scientific testing and examination (citation) . . ..' (70 Cal.2d at p. 508, 75 Cal.Rptr. at p. 178.) Next, we explained that the cases had already acknowledged the implication that "when the police lawfully

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seize a car which is itself Evidence of a crime rather than merely a container of incriminating articles, they may postpone searching it until arrival at a time and place in which the examination can be performed in accordance with sound scientific procedures." (70 Cal.2d at p. 508, 75 Cal.Rptr. at p. 178; see People v. Talbot, 64 Cal.2d 691, 51 Cal.Rptr. 417; People v. Miller, 245 Cal.App.2d 112, 53 Cal.Rptr. 720; Johnson v. State, 238 Md. 528, 209 A.2d 765.)

We concluded by setting forth the following principle 'distilled' from the foregoing cases: 'When officers, incidental to a lawful arrest, seize an automobile or other object in the reasonable belief that such object Is itself evidence (fn. omitted) of the commission of the crime for which such arrest is made, any subsequent examination of said object undertaken for the purpose of determining its evidentiary value does not constitute a 'search' within the meaning of the Fourth Amendment. Thus, that evidence in the instant case which was obtained as a result of the criminalist's examination of Mrs. Chapman's automobile was properly admissible.' (70 Cal.2d at p. 511, 75 Cal.Rptr. at p. 180.)

Here, as in Teale, petitioner's car was seized contemporaneous with petitioner's arrest, as evidence of the alleged kidnapping; the car was believed to be the very instrumentality used to commit the kidnapping. 1 Of course, since petitioner was arrested in his apartment, a Search of the car could not have been made as 'incident to arrest'; such searches must be limited to the area within the suspect's immediate control. (E.g., Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.) We are concerned, however, with a Seizure of evidence in plain sight of arresting officers rather than a search for such evidence. As is made clear by it reliance upon such cases as People v. Talbot, Supra, 64 Cal.2d 691, 51 Cal.Rptr. 417, the court in Teale (a pre-Chimel case) did not intend to limit the seizure of evidence in plain view only to those objects within the immediate reach of the person arrested.

On the contrary, this court has recognized an important exception to the rule announced in the Chimel case, Supra, namely, that "objects falling in the plain view of an officer who has a right to be in a position to have that view are subject to seizure and may be introduced in evidence." (People v. Sirhan, 7 Cal.3d 710, 742, 102 Cal.Rptr. 385, 406, 1142; People v. Block, 6 Cal.3d 239, 243, 103 Cal.Rptr. 281.) Thus, in

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Block, supra, we upheld the seizure of contraband found in plain view of officers conducting a post-arrest house search for additional suspects. Although the instant case involves the seizure of evidence of an offense rather than contraband itself, the cases no longer recognize a distinction between contraband and 'mere evidence' for purposes of applying the Fourth Amendment. (Warden v. Hayden, 387 U.S. 294, 300--308, 87 S.Ct. 1642, 18 L.Ed.2d 782; see Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (seizure of vehicle registration card in plain sight); People v. Sirhan, Supra, 7 Cal.3d 710, 742--744, 102 Cal.Rptr. 385 (seizure of envelope in plain sight).) Petitioner's car was parked on a public street, in plain view of the arresting officers. Under Teale and other authorities cited above, the officers properly seized the car as evidence of the alleged kidnapping.

Petitioner contends, however, that our holding in Teale must be reexamined and modified in the light of the subsequent decision P.2d 633, the court in Teale (a Pre-Chimel in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. Coolidge, properly understood, leaves Teale undisturbed.

In Coolidge, the police arrested a murder suspect in his house and thereupon seized his automobile and searched it later at...

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