People v. Huntsman, Cr. 12730

• Court: California Court of Appeals
• Writing for the Court: SIMS; BLEASE, Acting P.J., and CARR
• Citation: 152 Cal.App.3d 1073,200 Cal.Rptr. 89
• Parties: The PEOPLE, Plaintiff and Respondent, v. Fred Norman HUNTSMAN, Defendant and Appellant.
• Decision Date: 09 March 1984
• Docket Number: Cr. 12730

Page 89

200 Cal.Rptr. 89 152 Cal.App.3d 1073 The PEOPLE, Plaintiff and Respondent,
v.
Fred Norman HUNTSMAN, Defendant and Appellant. Cr. 12730. Court of Appeal, Third District, California. March 9, 1984.

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[152 Cal.App.3d 1077] Harrison, Taylor & Bazile and Albert C. Taylor, Oakland, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Robert D. Marshall and Christine M. Diemer, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

Defendant Fred Norman Huntsman appeals from a judgment of conviction by jury of possession of cocaine (Health & Saf. Code, § 11350). Defendant was placed on three years' formal probation conditioned upon service of ten months in Sacramento County Jail. On appeal defendant contends, inter alia, that the trial court erroneously denied his motions to set aside the information and to suppress evidence (Pen.Code, §§ 995, 1538.5) [152 Cal.App.3d 1078] because the only incriminating evidence was obtained as a result of an illegal detention and subsequent search of an automobile trunk conducted without probable cause. For the reasons set forth below we conclude the warrantless search of the automobile trunk was unlawful, so that defendant's Penal Code section 1538.5 motion was erroneously denied, and we reverse.

We hold, among other things, that where the People assert that an officer's probable cause to search is based on his observation of a citizen holding a container commonly used for innocent purposes (in this case an eight-by-eleven-inch plastic bag with a "Zip-Loc" top), the People must present testimony indicating the basis for the officer's suspicion that the container holds contraband or evidence of crime. Therefore, in the absence of such testimony, the observation of such a container by a police officer does not contribute to probable cause required for a search.

PROCEDURAL AND FACTUAL BACKGROUND

On June 14, 1982, before trial, defendant noticed motions to set aside the information (Pen.Code, § 995) and to suppress evidence (Pen.Code, § 1538.5). The section 995 motion was submitted on the preliminary hearing transcript and the section 1538.5 motion was submitted on the transcript plus testimony. ¹ The motions were denied on July 12, 1982, by a minute order that contains no findings of fact.

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The scope of appellate review of a motion pursuant to section 995 is different from that of a motion pursuant to section 1538.5. (People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278; see also People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, 165 Cal.Rptr. 851, 612 P.2d 941.) Since our review of the section 1538.5 motion disposes of this appeal, we do not review the denial of the section 995 motion.

[152 Cal.App.3d 1079] The evidence submitted on the section 1538.5 motion (People v. Gibbs (1971) 16 Cal.App.3d 758, 760, 94 Cal.Rptr. 458) viewed in the light most favorable to the trial court's implied findings (People v. Orr (1972) 26 Cal.App.3d 849, 852-853, 103 Cal.Rptr. 266), is as follows:

On February 19, 1982, at approximately 7:25 p.m., when it was dark, Sacramento Police Department officers Sherrets and Sharrer were on a "vice" assignment, patrolling the area of 17th and L Streets. The officers, in plain clothes and operating an unmarked vehicle, were traveling southbound on 17th Street.

Officer Sherrets had previously made arrests in the area of 17th and L Streets for prostitution and prostitution-related activity and regarded the area as a high-prostitution area. Officer Sherrets also testified he had made two or three under-the-influence-of-narcotics arrests in the area within two days prior to or after defendant's arrest. The officer did not, however, opine that the area was known for a high incidence of sales of narcotics.

As the two officers were driving along, Officer Sherrets observed two men standing 50 to 60 feet away behind a vehicle in a parking lot next to an alley. The man on the left, later identified as defendant, was facing the vehicle's open trunk and was holding a plastic bag approximately eight inches by eleven inches in size. Officer Sherrets was unable to observe the bag's contents, if any. The man on the right, a black male approximately 20 to 25 years of age, was facing defendant and was looking around. The officer did not observe the men exchange any objects or money. However, the officer immediately thought the men were dealing in stolen property or narcotics.

The officers proceeded about one-half block past the suspects, made a U-turn, and came back toward the vehicle. The suspects noted the vehicle's approach and defendant slammed the trunk lid closed. The suspects walked away from the car into the alley.

The officers got out of their vehicle and Sherrets yelled out, "Police, stop." The suspects continued walking, and hurried their pace. Officer Sherrets ran after defendant and detained him. The officer asked defendant for identification, but defendant refused to identify himself and resisted detention.

Officer Sherrets noticed that defendant had a set of keys in his right hand and asked defendant for them. Defendant refused to give Officer Sherrets the keys. The officer took the keys from defendant and, after looking unsuccessfully around the rear of the car for the bag, used one of the keys to [152 Cal.App.3d 1080] open the trunk, without consent. Officer Sherrets never obtained a warrant for the search.

In the trunk the officer found an eight-by-eleven-inch plastic bag with a "Zip-Loc" top containing smaller baggies enclosing a white powder. Defendant was then placed under arrest for possession of a controlled substance for sale.

DISCUSSION

Defendant contends that both the investigative stop and detention and the subsequent warrantless search of the auto's trunk were unlawful, and that the only incriminating evidence, i.e., the cocaine bindles, should have been suppressed. (Pen.Code, § 1538.5.) Because we conclude the search was unlawful, we assume, arguendo, the investigative stop and detention were lawful.

An appellate court's review of a motion to suppress evidence seized in a warrantless search is governed by well-settled principles. ²

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² "It is axiomatic, of course, that warrantless searches are per se unreasonable under the California and federal Constitutions with only a few carefully circumscribed exceptions, and that the People have the burden of proving that any search without a warrant comes within one of those exceptions. [Citations.]" (People v. Laiwa, supra, 34 Cal.3d at p. 725, 195 Cal.Rptr. 503, 669 P.2d 1278.) "The trial court's factual findings relating to the challenged search or seizure, 'whether express or implied, must be upheld if they are supported by substantial evidence.' (People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621].) ' "The trial court also has the duty to determine whether, on the facts found, the search was unreasonable within the meaning of the Constitution." (Ibid.) Because "that issue is a question of law," the appellate court is not bound by the substantial evidence standard in reviewing the trial court's decision thereon. Rather, ... in such review it is "the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness." (Idid.) On that issue, in short, the appellate court exercises its independent judgment.' (People v. Leyba (1981) 29 Cal.3d 591, 597 [174 Cal.Rptr. 867, 629 P.2d 961], fn. omitted, quoting People v. Lawler, supra, 9 Cal.3d at p. 160 [107 Cal.Rptr. 13, 507 P.2d 621].)" (People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436.)

[152 Cal.App.3d 1081] Our starting point is People v. Chavers (1983) 33 Cal.3d 462, 189 Cal.Rptr. 169, 658 P.2d 96. There, in considering the legality of a warrantless search of a vehicle's glove compartment and of a shaving kit located therein, Justice Richardson outlined the applicable principles of automobile search and seizure law under the Fourth Amendment to the federal Constitution as follows: ³ "In Wimberly v. Superior Court (1976) 16 Cal.3d 557 [128 Cal.Rptr. 641, 547 P.2d 417], we examined the general principles which had governed a lawful warrantless search of an automobile in this state. Quoting from earlier cases, we declared that ' "officers are empowered under the Carroll [Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790) ] 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.' " ' (16 Cal.3d at p. 563 [128 Cal.Rptr. 641, 547 P.2d 417]; quoting People v. Dumas (1973) 9 Cal.3d 871, 884 [109 Cal.Rptr. 304, 512 P.2d 1208]; People v. Cook (1975) 13 Cal.3d 663, 669 [119 Cal.Rptr. 500, 532 P.2d 148].)" (Chavers, supra, at p. 467, 189 Cal.Rptr. 169, 658 P.2d 96, emphasis added; see People v. Superior Court (Valdez) (1983) 35 Cal.3d 11, 15-16, 196 Cal.Rptr. 359, 671 P.2d 863.)

The two-pronged test set forth in Chavers makes it clear that exigency is not a substitute for probable cause; rather both probable cause and exigent circumstances are necessary to justify a warrantless search of an automobile. Chavers did nothing to change Justice Richardson's earlier command in Cleaver v. Superior Court (1979) 24 Cal.3d 297 at page 307, 155 Cal.Rptr. 559, 594 P.2d 984, that "the search of an automobile--whether pursuant to a warrant or not--must be supported by probable cause."

In United States v. Ross (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572, the United States Supreme Court also recently reaffirmed that officers are required to demonstrate objectively verifiable probable cause to believe contraband or evidence of crime is located in a vehicle's trunk before

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a warrantless search passes muster under the Fourth Amendment....