People v. Sandoval

• Citation: 211 Cal.Rptr. 1,164 Cal.App.3d 958
• Decision Date: 29 January 1985
• Docket Number: Cr. F3605
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Guadalupe SANDOVAL, Defendant and Appellant.

Page 1

211 Cal.Rptr. 1

164 Cal.App.3d 958

The PEOPLE, Plaintiff and Respondent, v. Guadalupe SANDOVAL, Defendant and Appellant.

Cr. F3605.

Court of Appeal, Fifth District, California.

Jan. 29, 1985.

As Modified Feb. 20, 1985.

[164 Cal.App.3d 960] Michael J. Ward, Modesto, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Joel Carey, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

PAULINE DAVIS HANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

Appellant appeals from a judgment of conviction upon a guilty plea of one count of possession of cocaine (Health & Saf.Code, § 11350), urging error in the denial of his motions to set aside the information (Pen.Code, § 995) and to suppress evidence (Pen.Code, § 1538.5). ¹

STATEMENT OF FACTS ²

Just before 1 a.m. on the morning of July 17, 1983, Modesto Police Officer Paul Konsdorf, on routine patrol in his marked car, stopped momentarily in a city parking lot adjacent to the Vintage Restaurant. The restaurant had a bar which stayed open until early morning. Fights, vandalism and incidents of intoxication often occurred in the parking lot.

Officer Konsdorf's attention was drawn to the occupants of a 1973 Ford pickup parked approximately 26 feet from his patrol car. He observed the male driver and female passenger alternately leaning forward in their seats, out of sight. When upright, the female passenger kept looking over her right shoulder as if to see whether anyone was approaching.

Konsdorf got out of his car and walked up to the driver's side of the pickup to see what the occupants were doing. With the aid of the parking lot lights and his flashlight, Konsdorf saw the male driver holding a rolled up $20 bill in his right hand and balancing an upside-down frisbee on his lap with his left hand; a red-and-white, 4-inch long straw, a razor blade, and a small amount of white powder were inside the frisbee.

Konsdorf immediately opened the driver's door and informed appellant he was under arrest. As Konsdorf took appellant by the arm and assisted him from the vehicle, appellant volunteered, "It's only $20 worth of coke."

Konsdorf handcuffed appellant and had him stand at the rear of the pickup while the officer retrieved the frisbee and its contents. The officer then went around to the passenger's side, told the female she was also under arrest, and handcuffed her. After placing both arrestees into his patrol unit, Konsdorf returned to the pickup to look for further evidence of narcotics. He saw a closed, blue canvas bag resting on top of the seat, between where the two occupants had been sitting. Konsdorf opened the canvas bag and found two smaller packages wrapped in magazine paper. Inside, he found more white crystal powder, stipulated to be cocaine.

DISCUSSION

I. The Investigation of the Automobile.

Appellant contends Konsdorf's actions in approaching the vehicle to conduct an investigation constituted an illegal detention. The contention is totally without merit.

Not all contacts by a police officer with the citizenry constitute Fourth Amendment intrusions into the citizen's privacy. Under California law, a Fourth Amendment-invoking police detention occurs "[i]f the individual is stopped or detained because the officer suspects he may be personally involved in some criminal activity, ..." (In re Tony C. (1978) 21 Cal.3d 888, 895, 148 Cal.Rptr. 366, 582 P.2d 957; People v. Bower (1979) 24 Cal.3d 638, 643, 156 Cal.Rptr. 856, 597 P.2d 115 [a detention also occurs " 'whenever a police officer accosts an individual and restrains his freedom to walk away....' "].) To detain an individual legally because he is suspected of involvement in criminal activity, the prosecution must establish that

"at the moment of the detention, there were specific and articulable facts, which reasonably caused the officer to believe that (1) some activity out of the ordinary had taken place or was occurring or about to occur; (2) the activity was related to crime; and (3) the individual under suspicion was connected to the activity." (People v. Bower, supra, 24 Cal.3d at p. 644, 156 Cal.Rptr. 856, 597 P.2d 115.)

The officer's decision to investigate the automobile and its occupants was not a detention without (1) some physical restraint of freedom to move, recognized as such by the persons in the automobile, or (2) the stopping of the car and occupants for questioning upon the officer's suspicion they were personally involved in criminal activity.

Appellant was neither "stopped" nor "restrained" in any manner until the officer looked through the window and noticed appellant about to ingest a line of cocaine.

Nor did Konsdorf's observation of the contraband in appellant's hand constitute a "search" in the constitutional sense. The objects were in plain view and the officer clearly had a right to be in the position to have that view. (People v. Rogers (1978) 21 Cal.3d 542, 549, 146 Cal.Rptr. 732, 579 P.2d 1048; People v. Vallee (1970) 7 Cal.App.3d 167, 172, 86 Cal.Rptr. 475 ["Where officers lawfully approach a vehicle and observe in plain view contraband or other evidence of crime they are warranted in searching the vehicle and making an arrest"].) Furthermore, "[t]hat the illumination was provided by the officer's flashlight is of no significance." (People v. Rogers, supra, at p. 549, 146 Cal.Rptr. 732, 579 P.2d 1048; see also Texas v. Brown (1983) 460 U.S. 730, 103 S.Ct. 1535, 1541, 75 L.Ed.2d 502.)

In People v. Divito (1984) 152 Cal.App.3d 11, 199 Cal.Rptr. 278, police officers traveling in an unmarked vehicle noticed defendant and two other men on a street corner examining a container in the light of the street lamps. The men, upon spotting the police vehicle, turned and walked away. One of the officers alighted from the police car and approached the defendant, whereupon the officer detected the odor of "PCP." The defendant was subjected to a patdown search which produced contraband; the defendant was subsequently arrested.

The superior court granted the defendant's motion to suppress evidence obtained in the patdown search upon the grounds the police officer had no right to stop or detain the defendant prior to the detection of the odor. The People appealed the ruling and the Court of Appeal reversed the suppression order, holding the officer's actions in stopping the police vehicle and walking toward the defendant did not constitute a detention.

"Officer Avila was not constitutionally foreclosed from approaching respondent, or any other citizen, on a public street as it is beyond question that a mere 'contact' or 'approach' does not invoke Fourth Amendment considerations. [Citations.] While the officer's reason for approaching respondent was the inchoate suspicion that he might be involved in illegal narcotics activity, the officer did not convey this suspicion to respondent nor take any action to restrict or otherwise curtail respondent's freedom of movement prior to his smelling the distinctive chemical odor about respondent's person. A detention commenced only after the officer lawfully approached respondent and detected the characteristic odor of PCP." (152 Cal.App.3d at p. 14, 199 Cal.Rptr. 278.)

The instant case is indistinguishable. Konsdorf's approach of appellant's truck on the inchoate suspicion appellant might be involved in criminal activity did not invoke any Fourth Amendment privacy considerations as far as appellant is concerned; appellant's contention is rejected. (See also Florida v. Royer (1983) 460 U.S. 491, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229.)

II. The Search of the Closed Blue Canvas Bag.

Appellant also contends the search of the closed blue canvas dufflebag found on the front seat of the truck cannot be justified as a search incident to a lawful arrest or under the automobile exceptions to the warrant requirement. Appellant's contention is meritless. The search was justified under the full panoply of California and federal decisions interpreting the "automobile exception" to the warrant requirement.

In Wimberly v. Superior Court (1976) 16 Cal.3d 557, 128 Cal.Rptr. 641, 547 P.2d 417, the California Supreme Court reiterated its view that police officers were empowered under the Carroll doctrine (Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543) to search an automobile as long as it could 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." ' " (Wimberly v. Superior Court, supra, 16 Cal.3d at p. 563, 128 Cal.Rptr. 641, 547 P.2d 417, quoting People v. Cook (1975) 13 Cal.3d 663, 669, 119 Cal.Rptr. 500, 532 P.2d 148.)

Regarding the exigency requirement, the court recently stated that a search may be conducted of the interior of the automobile upon probable cause that it contains contraband " 'despite the absence of any additional exigent circumstances.' " (People v. Superior Court (Valdez ) (1983) 35 Cal.3d 11, 15, 196 Cal.Rptr. 359, 671 P.2d 863; People v. Chavers (1983) 33 Cal.3d 462, 469, 189 Cal.Rptr. 169, 658 P.2d 96.) Further, upon a finding of probable cause to search the interior of the vehicle for contraband, the scope and character of the search is not defined by the type of container to be searched or the legitimate expectation of privacy that might be attached to the container, but rather by "the reason for the search and the kind of object believed to be concealed." (People v. Chavers, supra, 33 Cal.3d 462, 470, 189 Cal.Rptr. 169, 658 P.2d 96; People v. Superior Court ...