Miller v. Superior Court

• Decision Date: 06 November 1981
• Citation: 127 Cal.App.3d 494,179 Cal.Rptr. 783
• Court: California Court of Appeals Court of Appeals
• Parties: Rickey Gene MILLER, Petitioner, v. SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 52383.

Page 783

179 Cal.Rptr. 783

127 Cal.App.3d 494

Rickey Gene MILLER, Petitioner, v. SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 52383.

Court of Appeal, First District, Division 3, California.

Nov. 6, 1981.

As Modified Dec. 4, 1981.

Patrick R. Murphy, Public Defender, Contra Costa County, David O. Headley, Deputy Public Defender, Richmond, for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., John T. Murphy, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for real party in interest.

WHITE, Presiding Justice.

This petition challenges denial of a motion to suppress the contents of a "Grodin's" bag taken from petitioner after his street arrest for auto burglary.

Petitioner, Rickey Gene Miller, by information filed in Contra Costa County is charged with burglary (Pen.Code, § 459) and receiving stolen property (Pen.Code, § 496).

Following arraignment in the superior court, petitioner moved (Pen.Code, § 1538.5) to suppress the contents of a "Grodin's" bag that he was carrying "tucked" or "rolled up" under his arm at the time of his arrest. The trial court, Honorable Coleman Fannin, Judge, denied the motion to suppress. This petition for a writ of prohibition and/or mandate followed. Petitioner submitted his motion entirely upon the testimony elicited at the preliminary hearing (Honorable Robert G. McGrath, Judge, presiding). Petitioner's trial was stayed by order of this court. On May 28, 1981, we issued the alternative writ after receiving requested opposition. At oral argument we permitted the parties to submit supplemental briefing in light of the recent United States Supreme Court decisions of New York v. Belton (1981) --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 and Robbins v. California (1981) --- U.S. ----, 101 S.Ct. 2841, 69 L.Ed.2d 744.

Officer Dale Carlson testified that five minutes after receiving a radio broadcast of a burglary "want and arrest on a Rickey Miller," he stopped petitioner, who he knew by name, walking in the area of "19th and McDonald" in the City of Richmond. Officer Carlson, upon alighting from his patrol car, questioned petitioner relative to the contents of the brown paper bag. Petitioner responded "clothes," whereupon Officer Carlson advised petitioner that he was under arrest. He was not able to recall whether he or petitioner placed the "Grodin's" bag on the patrol car in the process of handcuffing and placing petitioner in the back seat of the vehicle. He did recall looking inside the bag when he "picked up the bag again to place it in the patrol car along with me, ..." Officer Carlson's testimony identified "one white pair of pants with a blue belt, blue and white striped sweater, or shirt, and also a brown and white striped shirt. And a brown with suede front sweater. And there was (sic) also two sales slips inside." At the time he opened the bag and noted its contents Officer Carlson had not been advised that the reported burglary netted clothing. However, there is no argument but that the above described clothing was stolen approximately 10 to 15 minutes earlier from a locked and parked Datsun automobile owned by David Wechsler. Mr. Wechsler testified that he had parked his Datsun near his place of business (Marlene's) on Eighth Street near McDonald Avenue. The burglar pilfered the clothing from the passenger compartment by smashing the right rear window. A booking search at the Hall of Justice produced from petitioner's person a lengthy strip of wire, "(f)our inches by one and a half," when folded up several times. Petitioner does not contest the legality of the "booking search" producing the wire coat hanger or object to its admissibility in evidence. That Officer Carlson arrested him with legally sufficient probable cause is not contested by petitioner.

Petitioner's contention that the trial court erred in denying his motion to exclude from evidence the clothing and sales slips contained in the "Grodin's" paper bag presents the seemingly endlessly recurring constitutional issues in search and seizure law (U.S.Const., 4th Amend., Cal.Const., art. I, § 13) i.e., the scope of a warrantless search incident to a lawful custodial arrest.

Raising a contention with which we are well acquainted, petitioner asserts that the discovery of Mr. Wechsler's property (clothing and tags) resulting from Officer Carlson's act of opening and peering into the "Grodin's" bag without prior approval by judge or magistrate constituted per se an unreasonable search proscribed by both the federal and state Constitutions. Not surprisingly, petitioner relies upon People v. Minjares (1979) 24 Cal.3d 410, 416, 153 Cal.Rptr. 224, 591 P.2d 514: "The Fourth Amendment guarantees individuals privacy in their persons, homes, papers and effects against unreasonable searches and seizures. The 'cardinal principle' of Fourth Amendment analysis is that ' "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions. " ' (Citations.) If the warrantless search of the tote bag is to be upheld, it is the state's burden to show that the search falls within one of those exceptions. (Citations.)''

We find appellant's contention not surprising in light of the dictum that appears in the next sentence in the quote from the Minjares opinion. "It is clear from Chadwick itself that the tote bag would not have been subject to a warrantless search if appellant had been arrested on the street and the bag taken from his possession. The government had also contended in Chadwick that any property in the possession of one who is arrested is subject to a warrantless search. In rejecting this contention the Supreme Court stated that 'warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the "search is remote in time or place from the arrest," (citation), or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.' (Citations.)" (Id., at pp. 419-420, 153 Cal.Rptr. 224, 591 P.2d 514, emphasis in original.)

In Minjares, supra, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, our Supreme Court held that the Fourth Amendment proscribed the warrantless police search of a zippered red tote bag, containing incriminating evidence of an armed Safeway store robbery. The tote bag was discovered and removed from the locked trunk of an automobile that matched the description of the robbery getaway car.

In Minjares, the Attorney General did not rely upon the "search incident to arrest" exception to the warrant requirement. The People urged primarily the "automobile" (Chambers v. Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419) and alternatively the "instrumentality" (People v. Teale (1969) 70 Cal.2d 497, 75 Cal.Rptr. 172, 450 P.2d 564) exceptions to the warrant requirement in seeking to justify the search of Minjares' tote bag. Both claimed exceptions were rejected. Essentially the Minjares court concluded that United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, clearly required that a warrant be obtained once luggage is under the exclusive control of the police unless some grave emergency or exigent circumstance necessitates the warrantless intrusion upon the individual's right of privacy. The fact that the tote bag was found in the course of a search of an automobile did not negate the underlying principles of Chadwick. (Minjares, supra, 24 Cal.3d at p. 420, 153 Cal.Rptr. 224, 591 P.2d 514.) Further, the court found the People's reliance upon the "instrumentality" exception misplaced and held it inapplicable. However, the narrow holding in Minjares is that "(w)here probable cause is believed to exist to search a container found within an automobile, the container may be seized and held until a magistrate determines whether a warrant may be issued for its search. Where exigent circumstances dictate an immediate search, a closed container found in an automobile may be searched without a warrant. (Citations.)" (At p. 423, 153 Cal.Rptr. 224, 591 P.2d 514.) Thus Minjares is not entirely dispositive of the issue in the case at bench.

Petitioner also cites People v. Silvey (1980) 110 Cal.App.3d 67, 167 Cal.Rptr. 566, a decision rendered by Division Four of this court, and People v. Pace (1979) 92 Cal.App.3d 199, 154 Cal.Rptr. 811, a unanimous decision of this division (Division Three) of this court for his argument that lacking exigent circumstances, when a bag such as that carried by Mr. Miller is reduced to exclusive police control, it cannot legally be searched without a warrant. ¹

In People v. Pace, supra, 92 Cal.App.3d 199, 154 Cal.Rptr. 811, an appeal pursuant to Penal Code section 1538.5, subdivision (m), the sole question this division considered was "whether the warrantless search of appellant's lunchbox violated the constitutional guarantees (federal and state) prohibiting unreasonable searches and seizures. (U.S.Const., 4th Amend.; Cal.Const., art. I, § 13.)" (Id., at p. 201, 154 Cal.Rptr. 811.) We answered the question in the affirmative, compelled in our view by the logic and underlying rationale of United States v. Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, 26 L.Ed.2d 419, as correctly analyzed in United States v. Schleis (8th Cir. 1978) 582 F.2d 1166, en banc.

The Attorney General in Pace argued that Pace could have no justifiable greater expectation of privacy in...