People v. Lilienthal

• Citation: 22 Cal.3d 891,150 Cal.Rptr. 910,587 P.2d 706
• Decision Date: 19 December 1978
• Docket Number: Cr. 20516
• Parties: , 587 P.2d 706 The PEOPLE, Plaintiff and Respondent, v. William M. LILIENTHAL, Defendant and Appellant.
• Court: United States State Supreme Court (California)

Page 910

150 Cal.Rptr. 910

22 Cal.3d 891, 587 P.2d 706

The PEOPLE, Plaintiff and Respondent, v. William M. LILIENTHAL, Defendant and Appellant.

Cr. 20516.

Supreme Court of California.

Dec. 19, 1978.

Marcus S. Topel, San Francisco, and Paul D. Wolf, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci and Donna Petre, Deputy Attys. Gen., for plaintiff and respondent.

MANUEL, Justice.

On this appeal from a judgment of conviction entered on his plea of guilty, defendant William Lilienthal seeks review of the validity of the seizure of evidence from his person and automobile. A preliminary question that must be decided is whether defendant is entitled to appellate review of the issue. Although we conclude that the appeal lies under Penal Code section 1538.5, subdivision (m), ¹ we further conclude that the evidence was validly seized. Accordingly, we affirm the judgment.

Defendant was charged by complaint with unlawful possession of cocaine for sale (Health & Saf.Code, § 11351), unlawful possession of hashish (Health & Saf.Code, § 11357, subd. (a)), unlawful possession of amphetamines (Health & Saf.Code, § 11377), and driving at an unsafe speed (Veh.Code, § 22350). Pursuant to section 1538.5, subdivision (f), he moved at the preliminary hearing to suppress evidence seized from his person and automobile. ² The motion was denied, and he was held to answer on all charges. In the superior court, defendant moved to dismiss the information pursuant to section 995 on the ground that the only substantial evidence supporting the commitment was obtained in violation of the Fourth Amendment. The motion was denied. Defendant then withdrew his original pleas and pleaded guilty to the count charging possession of cocaine for sale. On the People's motion, the other three counts were dismissed. Defendant was sentenced to state prison for the term prescribed by law. Execution of sentence was suspended, and defendant was placed on probation for three years on conditions including confinement in the county jail for three months.

Defendant appeals from the judgment pursuant to section 1538.5, subdivision (m), raising only the search and seizure issue. ³ The People dispute defendant's right to appeal, arguing that he is not entitled to appellate review under section 1538.5, subdivision (m) because he pleaded guilty without renewing his motion to suppress in the superior court. As will be explained, we conclude that the appeal lies.

Subdivision (m) of section 1538.5 provides: "The proceedings provided for in this section, Section 995, Section 1238, and Section 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him. A defendant may seek further review of the validity of a search or seizure on appeal from a conviction in a criminal case notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty. Such review on appeal may be obtained by the defendant providing that at some stage of the proceedings prior to conviction he has moved for the return of property or the suppression of the evidence."

Under subdivision (m), it is sufficient that a motion to suppress be made "at some stage of the proceedings." Defendant did so at the preliminary hearing. The People, however, assert that this statute should not be interpreted to allow a defendant to bypass the superior court. We agree that it should be interpreted to require that the matter be raised in the superior court to preserve the point for review on appeal, for it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention. ⁴ We do not agree, however, that the matter must be raised in the superior court by a motion to suppress rather than a section 995 motion, for subdivision (m) itself acknowledges the propriety of a section 995 motion to test the validity of a search or seizure. ⁵ Nor do we agree that defendant's guilty plea precludes review of the matter. Subdivision (m) constitutes an exception to the rule that all errors arising prior to entry of a guilty plea are waived, except those which question the jurisdiction or legality of the proceedings. (See People v. Kaanehe (1977) 19 Cal.3d 1, 9, 136 Cal.Rptr. 409, 559 P.2d 1028; People v. Warburton (1970) 7 Cal.App.3d 815, 821-822, 824-825, 86 Cal.Rptr. 894.) We believe that appellate review of the instant ruling is authorized by subdivision (m), which specifically refers to section 995 as a proper method of testing the validity of a search or seizure and provides for review of the issue on appeal from a judgment entered on a plea of guilty. Although challenges to rulings on section 995 motions premised on other grounds do not survive a guilty plea (People v. Warburton,supra, 7 Cal.App.3d at pp. 821-822, 824-825, 86 Cal.Rptr. 894), a challenge to a ruling on a section 995 motion brought to review the magistrate's ruling on a motion to suppress at the preliminary hearing, in our view, falls directly within the ambit of subdivision (m). To hold that such a challenge does not survive a guilty plea would do violence to the plain language of subdivision (m) and place form over substance.

It bears emphasis that the authorization in subdivision (m) of appellate review of the denial of a section 995 motion contesting the validity of a search or seizure does not authorize appellate review after a guilty plea of rulings on section 995 motions made on other grounds. Moreover, if there is substantial legally obtained evidence to support the information, the superior court's order denying a section 995 motion will be correct even if there was error in admitting illegally obtained evidence at the preliminary hearing. (See People v. Scoma (1969) 71 Cal.2d 332, 335, 78 Cal.Rptr. 491, 455 P.2d 419.) In short, a section 995 motion will be effective to preserve the Fourth Amendment issue on an appeal following a guilty plea only when it appears from the transcript of the preliminary hearing that essential evidence was illegally obtained.

We turn to that issue. The evidence presented at the preliminary hearing reveals that defendant was stopped by San Francisco Police Officer Brookbush for a traffic violation about 3:15 a. m. on September 23, 1976. Defendant stepped out of his car as the officer approached and asked to see his driver's license. ⁶ While defendant was fumbling through his wallet for his driver's license, a neatly folded squared piece of paper fell from his wallet to the ground. Defendant immediately placed his foot over the piece of paper. Officer Brookbush suspected that the paper contained narcotics and asked defendant to step back from it so he could examine it. Officer Brookbush testified that his suspicion was based on his experience in making numerous narcotics arrests where cocaine or heroin was transported in paper bindles similar to the one dropped by defendant. After finding in the packet a white powdery substance which he suspected to be either heroin or cocaine, Officer Brookbush looked through defendant's wallet and found another similar paper packet containing the same white powdery substance. Defendant was arrested, turned over to other officers and taken to the police station for booking. These officers then returned to the scene and told Brookbush that another paper packet had been found on defendant during booking at the police station. The officers also told him that defendant's car was subject to warrantless search as a condition of probation; Brookbush had already been notified of this over the police radio. The officers then searched the trunk of defendant's car and found a plastic bag with 5.11 grams of a concentrated form of marijuana, two plastic bags with 42.98 grams of a white powder containing cocaine, and a glass bottle containing .9 grams of white powder with amphetamine. The paper bindles found on defendant's person had 1.13 grams of white powder containing cocaine.

We first consider defendant's challenge to the seizure of the folded paper that fell from his wallet. He argues that Officer Brookbush did not have probable cause to believe that it contained contraband. His argument is unpersuasive, for it completely ignores Officer Brookbush's testimony as to the basis of his suspicion that the paper contained narcotics. Officer Brookbush described the distinctive manner in which the paper was folded and said that his suspicion that it contained narcotics was based on his experience in making numerous arrests where cocaine or heroin was transported in paper bindles similar to the one dropped by defendant. ⁷ Reasonable grounds for believing a package contains contraband may be adequately afforded by the package's shape design, and the manner in which it is carried. (People v. McKinnon (1972) 7 Cal.3d 899, 917, 103 Cal.Rptr. 897, 500 P.2d 1097.) We conclude that a prudent man of Officer Brookbush's experience could reasonably believe that the distinctively folded paper that fell from defendant's wallet contained contraband. (People v. Clayton (1970) 13 Cal.App.3d 335, 91 Cal.Rptr. 494; People v. Poole (1975) 48 Cal.App.3d 881, 122 Cal.Rptr. 87.) Officer Brookbush was therefore justified in making the plain view seizure of the paper. (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 562-566, 128 Cal.Rptr. 641, 547 P.2d 417; Guidi v. Superior Court (1973) 10 Cal.3d 1, 10-18, 109 Cal.Rptr. 684, 513 P.2d 908.)

Defendant also challenges the validity of the warrantless search of the trunk of his car. He argues that it cannot be justified on the basis of the search condition of his probation because the...