People v. Cook

• Decision Date: 04 March 1975
• Docket Number: Cr. 17900
• Citation: 532 P.2d 148,13 Cal.3d 663,119 Cal.Rptr. 500
• Court: California Supreme Court
• Parties: , 532 P.2d 148 The PEOPLE, Plaintiff and Respondent, v. Joseph Robert COOK et al., Defendants and Appellants. In Bank

Page 500

119 Cal.Rptr. 500

13 Cal.3d 663, 532 P.2d 148

The PEOPLE, Plaintiff and Respondent, v. Joseph Robert COOK et al., Defendants and Appellants.

Cr. 17900.

Supreme Court of California,

In Bank.

March 4, 1975.

Rehearing Denied April 2, 1975.

Keith C. Monroe, James D. Riddet, Santa Ana, Lawton, Christensen, Fazio, McDonnell, Briggs & Ward and Michael R. McDonnell, La Habra, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Arnold O. Overoye and Robert D. Marshall, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Defendants, Joseph Robert Cook and Rodney Turner Ellis, individually appeal from an order granting probation to each defendant following his conviction in a joint nonjury trial on an information charging violations of Health and Safety Code section 11530.5 (possession of marijuana for sale, now Health & Saf.Code, § 11359). ¹ Defendants contend first, that an odor of marijuana detected by police officers when they stopped the automobile of defendants for a traffic violation did not constitute probable cause for their arrest and the contemporaneous search of the vehicle and, second, that their joint representation by retained counsel at trial raised conflicts of interest which denied to each of them the constitutional right to be represented by effective counsel. ² We conclude for the reasons which follow, that defendants are entitled to no relief.

Sometime after 3 a.m. Highway Patrol Officers Walker and McCoy observed an automobile traveling at an excessive rate of speed on a state highway. The driver of the car, defendant Ellis, responded to the officers' signal to stop, left his car and walked back to the patrol car. Officer McCoy, who testified to a long familiarity with the smell of marijuana, detected a strong odor of such material in the immediate area of Ellis. The officer then went to the passenger side of the stopped vehicle and motioned for defendant Cook to open the window on that side of the car. When Cook complied the officer detected a strong odor of fresh marijuana emanating from inside the automobile.

Officer McCoy reported to defendant Ellis that he detected the odor of marijuana originating from inside the car and asked for permission to conduct a search of the car. Ellis refused. The officer advised him that nevertheless he would conduct a search and proceeded to do so. On the back seat he found a brief case containing incense punks, a small brass screen and a small box in which marijuana debris was present. ³ On the passenger side of the front-seat console he found a smoking pipe which smelled of burned marijuana and he also discovered marijuana seeds on the floor board immediately adjacent to the front seat.

Because the odor was much stronger than that which could be attributed to the materials he had discovered, Officer McCoy decided to search the trunk of the automobile. Discovering that the ignition key did not fit the trunk lock and that neither defendant would respond to a request for the proper key, Officer McCoy pried open the lid to the trunk. During this process defendant Cook became very upset, pacing back and forth and contending that the officer had no right to search the rear compartment of the car. Officer McCoy discovered five plastic bags in the trunk each of which contained approximately a pound of marijuana. He also located a number of similar bags each containing smaller amounts of the contraband.

The record fails to disclose the nature of the relationship between defendants, if any, other than that the automobile in which the contraband was found was leased to and driven by Ellis and that Cook was a passenger therein. Neither defendant sought to explain his presence or the presence of the contraband in the car nor did either incriminate the other as being responsible for that contraband.

In challenging the propriety of the search and seizure defendants claim that the odor of unburned marijuana did not furnish probable cause to search the car. We rejected a similar contention in People v. Gale (1973) 9 Cal.3d 788, 108 Cal.Rptr. 852, 511 P.2d 1204. In that case we held that a police officer having made a lawful entry into an automobile could rely on a strong aroma of fresh marijuana as giving him "probable cause to believe . . . that contraband may be present.' (People v. Marshall, Supra, 69 Cal.2d 51, 57, fn. 2, 69 Cal.Rptr. 585, 442 P.2d 665. Inasmuch as the contraband was apparently located not in a dwelling but in an automobile parked in a public lot--unlocked, accessible, and readily movable--the same probable cause would have justified the subsequent search of (the) vehicle under the rationale of Carroll v. United States, 267 U.S 132, 45 S.Ct. 280, 69 L.Ed. 543 . . . and its progeny.' (People v. Gale, supra, 9 Cal.3d 788, 794, 108 Cal.Rptr. 852, 587, 511 P.2d 1204, 1209.) ⁴

In the instant case the search was conducted between 3 and 4 a.m. on a remote section of an interstate highway. The nearest town or city where a magistrate might be located was approximately 25 miles away. If an attempt to impound the car had been made, the officers would have been presented with security problems not only with respect to maintaining custody over the two defendants but with respect to the vehicle itself. In addition there was the risk of a possible break in the chain of possession of the contraband, the presence of which Officer McCoy clearly detected from the instant of his initial stopping of the car. Reason and good police procedure dictated that if the officers were to preserve the evidence of illegal activity which their investigations had uncovered, an on-the-scene search of the vehicle was mandated.

In People v. Dumas (1973) 9 Cal.3d 871, 109 Cal.Rptr. 304, 512 P.2d 1208, we stated that officers are empowered under the Carroll doctrine 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.' (Id., at p. 884, 109 Cal.Rptr. at pp. 313--314, 512 P.2d at pp. 1217--1218, see also concurring opn. by Sullivan, J., at p. 886, fn. 1, 109 Cal.Rptr. 304, 512 P.2d 1208; see also Chambers v. Maroney (1970) 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419; People v. Laursen (1972) 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145.) It is manifest in the instant case that exigent circumstances were clearly present and that there was no practical alternative to an on-the-scene search of the vehicle. Probable cause to believe that the car contained contraband having been established without infringing any of defendants' constitutional rights, ⁵ the officers would have been remiss in their duties had they not undertaken an immediate search.

There is likewise no merit in defendants' further contention that the scope of the search exceeded permissible limits. The record clearly establishes that the officers had probable cause to believe that the trunk compartment contained marijuana; thus, they were entitled to search it. (People v. Laursen, supra, 8 Cal.3d 192, 197, 201, 104 Cal.Rptr. 425, 501 P.2d 1145; see also Guidi v. Superior Court, supra, 10 Cal.3d 1, 15--19, 109 Cal.Rptr. 684, 513 P.2d 908.) As determined by the United States Supreme Court, the scope of a permissible search where there is probable cause to believe that a vehicle contains contraband is not limited by the rules circumscribing the scope of a search incident to a contemporaneous arrest. (See Chambers v. Maroney, supra, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.)

We next deal with the contentions urged individually by defendants that because they were jointly represented at trial by the same attorney, such counsel could not adequately defend either without prejudice to the other; therefore, it is alleged, each was denied his constitutional right to effective assistance of counsel. A debilitating conflict of interest exists, inter alia, when the defenses of codefendants are factually inconsistent. (People v. Chacon (1968) 69 Cal.2d 765, 775--776, 73 Cal.Rptr. 10, 447 P.2d 106; People v. Thompson (1970) 13 Cal.App.3d 47, 55, 91 Cal.Rptr. 341; People v. Odom (1965) 236 Cal.App.2d 876, 878, 46 Cal.Rptr. 453.) When codefendants who have possible conflicting interests are jointly represented at trial such counsel may be inhibited from producing evidence or from arguing matters or by objecting to the introduction of evidence which may be exculpatory as to one of his clients because such a course may be prejudicial to another of the codefendants. The very failure to produce or emphasize such information, moreover, produces a void and results in a record which shields the fact of any possible conflict and makes it difficult to demonstrate on appeal that a conflict did in fact exist. (People v. Chacon, supra, 69 Cal.2d 765, 775, 73 Cal.Rptr. 10, 447 P.2d 106.) Accordingly, a codefendant claiming he was denied effective assistance of counsel ordinarily need not establish that there was an actual conflict of interest, but rather it is sufficient if the record provides an adequate basis for an 'informed speculation' that there was a potential conflict of interest which prejudicially affected the defendant's right to effective counsel. (Id., at pp. 775, 776, fn. 3, 73 Cal.Rptr. 10, 447 P.2d 106; People v. Thompson,supra, 13 Cal.App.3d 47, 57, 91 Cal.Rptr. 341; People v. Gallardo (1969)269 Cal.App.2d 86, 89, 74 Cal.Rptr. 572.)

Permissible speculation giving rise to a conflict of interest may be deemed an informed speculation but only when such is grounded on a factual basis which can be found in the record. That basis must consist of something more than evidence which merely establishes the commission of and the codefendants' possible participation in the crime or crimes. Thus, in the instant case the mere fact that the...