Baraka H., In re

• Decision Date: 21 May 1992
• Docket Number: No. A053822,A053822
• Court: California Court of Appeals Court of Appeals
• Parties: In re BARAKA H., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. BARAKA H., Defendant and Appellant.

Page 221

8 Cal.Rptr.2d 221

6 Cal.App.4th 1039

In re BARAKA H., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. BARAKA H., Defendant and Appellant.

No. A053822.

Court of Appeal, First District, Division 2, California.

May 21, 1992.

Review Denied Aug. 13, 1992.

R.E. Scott, R.E. Scott & Associates, Orange, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Rene A. Chacn, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

KLINE, Presiding Judge.

Baraka H. appeals from a dispositional order of the juvenile court predicated on a finding that he possessed marijuana for sale. Appellant contends that the court erred by denying his motion to suppress evidence consisting of marijuana taken from a paper bag found at the time of his arrest. We find no convincing evidence that defendant possessed a reasonable expectation of privacy in the bag at the time of the search. Accordingly we affirm.

BACKGROUND

At about 4:15 p.m. on January 7, 1991, undercover police officer Orozco watched appellant from an unmarked car parked on the east curb of 73rd Avenue. Appellant was standing on the southeast corner of 73rd and Hamilton, 30 to 40 feet in front of Officer Orozco, flagging down cars. Three times in ten minutes, a car so hailed would stop on the west side of the street, pointed southbound, and appellant would approach the driver. After a short conversation appellant would walk back to the street corner, where a crumpled paper bag was sitting on the ground, among some leaves, in a small grass area next to a ramp leading to a walkway passing over Hegenberger Road. The bag was hidden from traffic on the north side of Hamilton, but visible from 73rd Avenue. Appellant would reach into the bag, then put it back on the ground. Returning to the driver's window, he would receive money in apparent exchange for something too small to be seen by the officer. He would then return to his original location, hand the money to another male, and wait for the next car to pass by.

Based on Officer's Orozco's radio report of apparent ongoing narcotics sales, uniformed officers Smith and Rae came to the scene and arrested appellant. Officer Orozco directed Officer Smith by radio to the brown paper bag. The bag contained eight small Ziplock packages containing what appeared to be marijuana.

The District Attorney filed subsequent and supplemental petitions under Welfare and Institutions Code sections 777 and 602, alleging that appellant had possessed marijuana for sale. ¹ Appellant moved under Welfare and Institutions Code section 700.1 to suppress the evidence from inside the paper bag on the ground that its discovery and seizure violated his Fourth Amendment rights. Appellant's trial counsel conceded that officers could seize the bag, but contended that they could not open and search it without a warrant. The deputy district attorney replied that appellant had "abandoned" the bag, at least at those points when he walked away from it to complete a transaction or flag down another prospective buyer. The court rejected this argument, finding it logically inconsistent with the basic charge that appellant possessed the marijuana contained in the bag. Nonetheless the court denied the motion, acceding to defense counsel's characterization of the ruling as resting on the premise that a paper bag is "not a worthy container." ²

Appellant submitted the case on the police report. The court found the petition true and committed appellant to the custody of the probation officer for placement in a county facility. This timely appeal followed.

ANALYSIS

A. Introduction

A defendant ³ who moves to suppress evidence has the initial burden of producing evidence to make out a prima facie case of an illegal search or seizure. (4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Exclusion of Illegally Obtained Evidence, § 2253, p. 2648.) Here, appellant does not challenge the seizure of the paper bag, only its supposed "search" without a warrant. But the record does not establish that a search occurred. There is no evidence that officers opened the paper bag in which the marijuana was found. ⁴ For all we know, the bag was already open. If so, no "search" of its contents occurred; the officers merely seized contraband in plain view.

We hesitate to rest our decision on this basis, however. The parties and the court below seem to have assumed that the bag was "searched," i.e., opened by officers. It may be less than fair to tax appellant with the consequences of a failure of proof now, when it is now too late to adduce the evidence which might cure the deficiency. Accordingly we proceed on the assumption that the paper bag was closed when seized, and that the discovery of the contraband could not occur without the officers' opening the bag. The question then is whether their doing so without a warrant offended the Fourth Amendment.

The threshold question in any Fourth Amendment analysis is whether the person challenging the allegedly unlawful search had a constitutionally protected reasonable expectation of privacy with respect to the area or item searched. (California v. Ciraolo (1986) 476 U.S. 207, 211, 106 S.Ct. 1809, 1811-12, 90 L.Ed.2d 210.) This involves a two-part inquiry: "first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" (Ibid.; see California v. Greenwood (1988) 486 U.S. 35, 39-40, 108 S.Ct. 1625, ---, 100 L.Ed.2d 30; Smith v. Maryland (1979) 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220; People v. Cook (1985) 41 Cal.3d 373, 376-377, 379, 221 Cal.Rptr. 499, 710 P.2d 299, cert. den.; People v. Galan (1985) 163 Cal.App.3d 786, 792, 209 Cal.Rptr. 837; People v. Smith (1986) 180 Cal.App.3d 72, 81, 225 Cal.Rptr. 348.)

The reasonableness of a claimed expectation of privacy depends on the totality of circumstances presented in each case. (Betchart v. Department of Fish & Game (1984) 158 Cal.App.3d 1104, 205 Cal.Rptr. 135; People v. Smith, supra, 180 Cal.App.3d 72, 81, 225 Cal.Rptr. 348.) The burden is on the defendant to prove that he or she had a protectible expectation of privacy in the area or item searched. (People v. Dees (1990) 221 Cal.App.3d 588, 593, 270 Cal.Rptr. 554, citing Rawlings v. Kentucky (1979) 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633; People v. Root (1985) 172 Cal.App.3d 774, 779, 218 Cal.Rptr. 182.) Insofar as the trial court's determination of this issue rests on uncontroverted facts, an appellate court exercises independent judgment in reviewing that determination. (See People v. Brown (1990) 216 Cal.App.3d 1442, 1448, 265 Cal.Rptr. 552, review den.)

B. No Categorical Exclusion

The trial court here may be understood to have concluded that paper bags are categorically exempt from Fourth Amendment protection. (See fn. 2.) Appellant correctly points out that such a view is untenable. The Supreme Court has declared that "a constitutional distinction between 'worthy' and 'unworthy' containers would be improper.... [T]he central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case.... [T]he Fourth Amendment provides protection to the owner of every container that conceals the contents from plain view." (United States v. Ross (1982) 456 U.S. 798, 822-823, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572, fns., citation omitted.)

A paper bag, then, is a "container" every bit as entitled to Fourth Amendment protection as any other "container." (United States v. Salazar (9th Cir.1986) 805 F.2d 1394, 1398; see Smith v. Ohio (1990) 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464 [illegal search of paper bag first being carried by defendant when accosted by officers]; People v. Haines (1981) 123 Cal.App.3d 861, 177 Cal.Rptr. 41 [bag placed in carport storage cabinet by defendant was properly seized by officers, but impermissibly searched without warrant].) To the extent the contrary is suggested by People v. Fick (1980) 107 Cal.App.3d 892, 896, 166 Cal.Rptr. 106, that case is irreconcilable with the Supreme Court cases just cited. (See People v. Carter (1985) 163 Cal.App.3d 1183, 1187-1188, 210 Cal.Rptr. 103.)

It follows that the trial court here applied an erroneous legal principle insofar as it took such a categorical approach. That error does not, however, automatically require reversal. Generally, the trial court's reliance on erroneous reasoning is no basis for reversal if the decision is correct. (6 Witkin & Epstein, op. cit. supra, Appeal, § 3204, p. 3962.) We review the correctness of the challenged ruling, not of the analysis used to reach it. Here we believe the ruling was correct because the circumstances shown by the undisputed facts could not give rise to an objectively reasonable expectation of privacy.

C. No Reasonable Expectation of Privacy

At the time of the search, the paper bag was not within appellant's immediate reach; indeed, appellant had taken pains to put it out of his apparent possession and control, for the manifest purpose of maintaining "deniability" as to the bag and its contents in the event of the arrival of law enforcement officers. To all appearances the bag was mere litter. A casual passerby would assume that a crumpled paper bag lying unattended on or near a public street or sidewalk has been discarded by, and is of no further interest or concern to its erstwhile owner. A normative...