People v. Riegler

• Decision Date: 30 December 1981
• Docket Number: Cr. 4230
• Citation: 127 Cal.App.3d 317,179 Cal.Rptr. 530
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Lawrence RIEGLER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 530

179 Cal.Rptr. 530

127 Cal.App.3d 317

The PEOPLE, Plaintiff and Respondent, v. Robert Lawrence RIEGLER, Defendant and Appellant.

Cr. 4230.

Court of Appeal, Fifth District, California.

Dec. 30, 1981.

Hearing Denied March 17, 1982.

Duane, Lyman & Seltzer and Eugene Seltzer, Berkeley, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Roger E. Venturi and Ramon M. de la Guardia, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

FRANSON, Acting Presiding Justice.

The United States Supreme Court, -- U.S. --, 101 S.Ct. 3153, 69 L.Ed.2d 1001, granted respondent's petition for a writ of certiorari, vacated this court's previous opinion, 111 Cal.App.3d 580, 168 Cal.Rptr. 816, and remanded the matter for further consideration in light of New York v. Belton (1981) -- U.S. --, 101 S.Ct. 2860, 69 L.Ed.2d 768. Pursuant to the high court's command, we have reconsidered the matter, and conclude the Belton rule permitting a warrantless search of the passenger compartment of an automobile and containers found therein when incidental to a lawful arrest, is inapplicable to this case. Accordingly, we again reverse the judgment.

The facts are these:

On November 8, 1977, a customs inspector at JFK Airport in New York City notified John Huber, a special agent with the Drug Enforcement Administration, that a detector dog had alerted the inspector to two packages sent from Germany and when the inspector opened them up he observed what he believed to be hashish. Chemical analysis confirmed the substance was hashish.

The packages were addressed to Michael and Selma Fortner, 1130 W Street, Merced, California.

The packages were resealed by the customs agent and Huber sent the packages to Patrick Dorn, a United States postal inspector in Fresno, who received them on November 21, 1977.

Dorn brought the packages to Merced and contacted a Lieutenant Moore who was in charge of Specialized Manpower Assigned to Crime Control (SMACC) in Merced County. Huber also had contacted Moore on November 21, 1977, and told him about the packages.

The plan was to have a controlled delivery, and on November 22, 1977, Agent Atkins with SMACC obtained a warrant to search the premises at 1130 W Street and any packages and wrappings located therein addressed to Michael and Selma Fortner.

On November 22, Lieutenant Moore and other agents took up surveillance at the Fortner residence. At approximately 1:30 p. m. Dorn gave the parcels to the regular mail carrier who delivered the parcels at approximately 1:40, and Michael Fortner took them into the house.

About 10 to 15 minutes after the delivery of the packages a red Volkswagen driven by appellant and with a passenger pulled into the driveway at the Fortner residence. A few minutes later appellant placed the packages in the back of the Volkswagen and drove away.

Lieutenant Moore testified that between 1:40 p. m. and 2:11 p. m., when appellant left with the packages, nothing prevented Moore from going into the residence to execute the warrant. Moore did not immediately serve the warrant because he wanted to wait for the occupants to have time to open the packages. He was also interested in where the hashish was going if it left the residence. He wanted to ascertain who else was involved in the case and whether he could arrest more people. He would follow suspects wherever they went, including on a plane.

After the Volkswagen left, the warrant was executed and served on Mike Fortner at 2:30 p. m., and the house searched, but nothing incriminating was found. Agent Austin overheard Michael Fortner on the phone say that a couple of packages came for Bob and "I gave them both to Bob."

The search warrant was restricted to the premises, structures, rooms and receptacles of the Fortner residence at 1130 W Street, Merced, and did not provide for the search of any vehicle or persons.

When appellant's Volkswagen left the Fortner residence, several SMACC agents including Moore, along with Postal Inspector Dorn, followed. Although several opportunities existed to stop the Volkswagen and detain the occupants, the officers chose not to do so until approximately 4:05 p. m. The vehicle was stopped in Contra Costa County about 100 miles from the Fortner residence. The reason for the stop was the fear of losing surveillance in the East Bay traffic.

Appellant and his passenger exited the vehicle and were arrested, handcuffed and removed from the scene before the parcels were removed from the backseat of the Volkswagen. The packages were identified as being the same ones previously delivered to the Fortner residence. The arrestees were booked into a Contra Costa jail.

The packages were placed unopened into a police vehicle and taken back to the SMACC office in Merced where they were photographed, opened and found to contain hashish. The search of the packages was about five hours after they were seized from the Volkswagen. No search warrant was obtained before the opening. Moore testified that when he took the packages back from Contra Costa County to the Merced office, he had no fear that something would happen to the packages.

DISCUSSION

In New York v. Belton, supra, -- U.S. --, 101 S.Ct. 2860, 69 L.Ed.2d 768, a New York state trooper driving alone in an unmarked car was passed by a speeding car. The trooper gave chase and forced the car to pull over. It soon became evident that none of the four occupants of the car owned the vehicle or was related to its owner. Meanwhile, the officer had smelled burning marijuana and had seen an envelope on the floor of the car marked "Supergold" which the officer associated with marijuana. The four men were directed to exit the vehicle and were arrested for possession of marijuana. The trooper patted the four occupants down and tried to split them up from each other so they could not be in physical contact. The suspects were all by the side of the car when the trooper then searched the interior of the car, found Belton's jacket, unzipped the pocket, and discovered cocaine therein which became the subject of the prosecution in the case (New York v. Belton, supra, 101 S.Ct. at pp. 2860-2861).

The United States Supreme Court reversed the New York Court of Appeal which had ordered suppression of the evidence on the theory that a "warrantless search of the zippered pockets of an unaccesible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article." (Id., at p. 2862.)

Justice Stewart emphasized the need for a single, familiar standard as essential to the guidance of police officers who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront. (Id., at p. 2863.) In United States v. Robinson (1973) 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, according to Justice Stewart, the court attempted to articulate a straightforward rule that could be easily applied and predictably enforced. (New York v. Belton, supra, 101 S.Ct. at p. 2862.) However, no straightforward rule emerged following Robinson in respect to the question of the proper scope of the search of the interior of an automobile incident to a lawful custodial arrest of its occupants. (Ibid.) Therefore, Belton relying on the principles of Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. (New York v. Belton, supra, 101 S.Ct. at p. 2864.) While conducting the search incident to an arrest, the police may also examine the contents of any containers found within the passenger compartment because if the passenger compartment is within the reach of the arrestee, so also are the containers that are therein. ¹ (Ibid.)

In the instant case the packages in question were sitting on the backseat of the Volkswagen. Thus, under Belton the police had the right to seize and search those packages incident to the arrest of the occupants of the Volkswagen. However, a problem arises because the officers did not open the packages at the time of the seizure and the arrest; rather, the officers delayed the opening of the packages until some four to five hours later after they had been seized. As we shall explain, this delay is fatal to the officers' right to open the packages without a warrant.

Belton carefully distinguished United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 and Arkansas v. Sanders (1979) 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235, relied on by the New York Court of Appeal in holding the search constitutionally invalid, on the ground that neither case involved a search incident to a lawful custodial arrest. "As the Court pointed out in the Chadwick case, 'Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any exigency.' (Citation.) And in the Sanders case, the Court explicitly stated that it did not 'consider the constitutionality of searches of luggage incident to the arrest of its possessor. (See, e.g., United States v. Robinson, 414 U.S. 118 (94 S.Ct. 467, 38 L.Ed.2d 427) ... (1973). The State has not argued that respondent's suitcase was searched incident to his arrest and it appears that the bag was not within his "immediate control" at the time of the search.' " (New York v. Belton, supra, 101 S.Ct. 2860 at p. 2865.)

Belton clearly implies an automobile container search must occur immediately to be considered as incident to the arrest. "It is not...