People v. Ingram

• Decision Date: 17 August 1981
• Docket Number: Cr. 36805
• Citation: 176 Cal.Rptr. 199,122 Cal.App.3d 673
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert James INGRAM, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 199

176 Cal.Rptr. 199

122 Cal.App.3d 673

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert James INGRAM, Defendant and Appellant.

Cr. 36805.

Court of Appeal, Second District, Division 1, California.

Aug. 17, 1981.

As Modified Aug. 26, 1981.

Bledstein & Lauber and I. Mark Bledstein, Encino, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Otis D. Wright, Deputy Attys. Gen., for plaintiff and respondent.

LILLIE, Associate Justice.

After submitting the cause to the trial court on the transcript of testimony taken at the preliminary hearing, defendant was found guilty of possession for sale of cocaine. He appeals from the judgment. His contentions relate solely to the denial of his motion to suppress pursuant to section 1538.5 of the Penal Code.

As Emma Brown, a maid at the Olympian Hotel, was cleaning room 231, which was a "check out" that morning, she found a briefcase under the bed; she told Mrs. O'Bryant, the housekeeper, about it and turned it over to her to be placed in lost and found. Mrs. O'Bryant delivered the briefcase to Mr. Jacoby, the hotel manager, who opened it and found several transparent plastic bags and one large such bag filled with white powder; he took the briefcase into the back office, and the police were called.

When Officer Gossett arrived Mr. Jacoby told him "I'd like you to take a look at a case;" he then looked at an opened briefcase ¹ and observed a quantity (331.1 grams) of what he believed to be cocaine in plastic bags, other small bags, photos and a strainer. The officer asked for information concerning the party who had rented the room, and Jacoby showed him a registration receipt which indicated the same person (Robert Ingram) had rented room 231 and room 230, directly across the hall; Jacoby gave him a description of defendant (Robert Ingram) and a pass key.

The door to room 230 was closed and the officers knocked, identified themselves and stated their purpose; there was no response, and they entered by using the pass key. The room was empty except for an oblong wooden box. Based on his experience in narcotic enforcement, Officer Gossett assumed that it contained a scale; he opened the box and found "a very nice scale" leading him to believe that whoever rented the room did not intend to leave it behind; thus, three officers waited in room 230 and three entered room 231 across the hall, the door of which had been opened because the maid was cleaning the room.

The officers closed the door to room 231 and after waiting about 15 minutes, Officer McClelland heard a key being inserted in the lock; he looked through the peephole and observed defendant, but by the time the officers had fumbled with the lock for three or four seconds to get the door open defendant had fled. After a chase through the corridor and out an exit door, defendant was apprehended.

Citing United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, appellant claims the officers had no right to search the briefcase, arguing that when the officers "received word telephonically that a citizen was in possession of a briefcase containing contraband they were required to obtain a warrant." The contention is without merit.

First, Sergeant Maga told Officer Gossett only "that the manager of the Olympian Hotel had called and stated that he had found a briefcase and it had a large quantity of white powder in it that he thought might be narcotic." Second, Sergeant Maga directed Officer Gossett to go to the hotel to investigate. Third, when Officer Gossett arrived, he immediately contacted Mr. Jacoby who told him that a maid found the briefcase while cleaning a room she believed to have been vacated and took it to her supervisor who brought it to him, and he (Jacoby) opened it and observed a white powder. ² Fourth, Mr. Jacoby showed him the briefcase and said "take a look"; "the briefcase was open" and the officer observed in plain sight in the open briefcase numerous plastic bags; the bags were transparent and he could see their contents white powder that he as an experienced narcotic officer believed to be cocaine.

Officer Gossett was in Mr. Jacoby's office at his request; the briefcase had already been opened by Jacoby, who left it open and directed his attention to it; the transparent bags of cocaine were exposed to open view where they were observed by Officer Gossett. The observation of that which is in plain sight of an officer made from a place where he has a right to be does not constitute a search in the constitutional sense (Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067; Lorenzana v. Superior Court, 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33). Thus, Officer Gossett's observation of the cocaine in the transparent bags in the open briefcase was, in fact, no search for evidence (People v. Shepherd, 33 Cal.App.3d 866, 870, 109 Cal.Rptr. 388), and the evidence was subject to seizure without a warrant (People v. Hill, 12 Cal.3d 731, 755, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Block, 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961).

Appellant cites as error the court's failure to suppress the scale because its seizure was unlawful based on his claim of "legitimate expectation of privacy with regard to the contents of the closed container containing the scales." Closely related is his final contention that a search of room 230 was not justified and the manager had no power to consent thereto.

Entry by police officers without a warrant to a residence while it is lawfully occupied is not justified by consent given by the owner of the building (People v. Escudero, 23 Cal.3d 800, 808, 153 Cal.Rptr. 825, 592 P.2d 312). However, abandoned property is subject to search and seizure without a warrant (Abel v. United States (1960) 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (search with permission of management of hotel room vacated by defendant and seizure of evidence found in waste basket); People v. Smith, 63 Cal.2d 779, 800-801, 48 Cal.Rptr. 382, 409 P.2d 222 (search of abandoned auto and seizure of certain items); People v. Long, 6 Cal.App.3d 741, 748, 86 Cal.Rptr. 227 (search of vacated hotel room with consent of manager and seizure of suitcase)). A landlord may consent to a search of premises abandoned by a tenant. (People v. Remiro, 89 Cal.App.3d 809, 834, 153 Cal.Rptr. 89; People v. Urfer, 274 Cal.App.2d 307, 318, 79 Cal.Rptr. 60.)

In denying the motion to suppress, the trial court stated that the maid had established to its satisfaction that the room had been vacated; that the briefcase was found in a room that appeared to have been vacated; and that Jacoby had opened the briefcase and he had properly opened it to identify the owner. Implied in the denial of the motion is the finding that Jacoby gave his permission to the officers to enter and search room 230. Such finding is supported by substantial evidence. The door was open when the officers arrived at room 231 because the maid was cleaning it for the next tenant. As to both rooms it is readily apparent that Jacoby gave his permission to the officers to enter and presented them with a pass key. ³

As to abandonment of the premises by the defendant, a maid in the hotel, not herself in any way connected with law enforcement, determined that the tenant in room 231 had abandoned the room. She had taken a room count that morning and had "put this room down as a checkout" because "I didn't see anything in it," it looked like no one was there. Later, she returned to the room to clean it for the next tenant; in the process of cleaning she stooped down to pick up a magazine on the floor and saw the briefcase under the foot of the bed on the floor; she took the briefcase to the housekeeper to be placed in "lost and found." This information and the briefcase were conveyed to Mr. Jacoby by the housekeeper, and when Officer Gossett arrived, he repeated the same information to him. Then he showed Officer Gossett the open briefcase and asked him to take a look at it; after observing the white powder through the transparent plastic bags, Officer Gossett asked Jacoby for the registration card for room 231. The name on the card was "Robert Ingram"; Jacoby told him that the same person had rented two rooms 230 and 231 directly across from each other, the maid was cleaning room 231 and as far as he knew there was no one in it. Mr. Jacoby told him "that it was his opinion that they (the rooms) had been vacated." Officer Gossett then asked if he could take a look in room 230 and Jacoby said "yes, you can" and gave him a pass key.

The trial court made the finding that the scale was found in the room (230) "which for all purposes was abandoned, even though it may have been paid for that particular period of time. The evidence was to the effect the room was abandoned, therefore, there is no right of privacy in that room." We conclude that the evidence supports the finding; but we are also of the view that in any case, the circumstances known to both Jacoby and Officer Gossett, whether or not they constitute abandonment, justified the officer in the reasonable good faith belief that Jacoby had authority to consent to enter and search. (People v. Hill, 69 Cal.2d 550, 554-555, 72 Cal.Rptr. 641, 446 P.2d 521; People v. Smith, 63 Cal.2d 779, 799, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Remiro, 89 Cal.App.3d 809, 834, 153 Cal.Rptr. 89; People v. Urfer, 274 Cal.App.2d 307, 310, 79 Cal.Rptr. 60.) Since it is only unreasonable searches that are unlawful, Mr. Jacoby's consent provided justification for the entry and search. We conclude that the officers' entry to room 231 and the entry and search of room 230 by Officer Gossett were lawful.

The evidence shows that appearances of room 231 were such as to justify the belief of the maid and Mr. Jacoby that defendant...