Soli v. Superior Court

• Citation: 103 Cal.App.3d 72,162 Cal.Rptr. 840
• Court: California Court of Appeals
• Decision Date: 05 March 1980
• Parties: Joseph Edwin SOLI et al., Petitioners, v. The SUPERIOR COURT OF MENDOCINO COUNTY, Respondent; The PEOPLE, Real Party in Interest. 1 Civ. 47416.

Page 840

162 Cal.Rptr. 840

103 Cal.App.3d 72

Joseph Edwin SOLI et al., Petitioners, v. The SUPERIOR COURT OF MENDOCINO COUNTY, Respondent The PEOPLE, Real Party in Interest.

1 Civ. 47416.

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

March 5, 1980.

Hearing Denied April 30, 1980.

Thomas S. Brigham, Ukiah, Scott LeStrange, Public Defender, Ukiah, for petitioners.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Morris Lenk, Deputy Attys. Gen., San Francisco, for real party in interest.

ELKINGTON, Acting Presiding Justice.

Petitioners Joseph Soli and Raymond Soli stand charged in the superior court with grand theft of a bovine animal (Pen.Code, § 487, subd. 3), and with the misdemeanor offense of violating Penal Code section 597a. On their petition for a writ of prohibition, we inquire into the legal sufficiency of an order denying their motion to suppress certain evidence essential to their prosecution. (See Pen.Code, § 1538.5.)

(We shall for convenience hereafter refer to the two petitioners, without distinction, simply as petitioners, and as they themselves do in their briefs.)

In our ensuing discussion, we follow the well-settled rule stated by the high court in People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 15, 507 P.2d 621, 623, in this manner: " ' "A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the (trial) court Sitting as a finder of fact. " . . .' . . . In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence."

The relevant evidence before the superior court as it fairly and reasonably might have been, and presumably was, accepted and believed, follows.

A Mendocino County resident had observed, adjacent to a highway, the head and skin of a recently killed Black Angus cow. He reported his find to the county sheriff's office. Deputy Sheriff Frank Rakes (hereafter for convenience, the sheriff) responded to the scene. An examination disclosed two bullets in the animal's head which were, respectively, "consistent with having been fired from a Winchester caliber .30 W.C.F. rifle," and from a "Charter Arms .357 magnum revolver, . . ." The skin bore a brand mark which was registered to Charles Sizemore, a Mendocino County cattle rancher.

The sheriff communicated the information to Sizemore who had been unaware of his loss. Sizemore was engaged in unrelated pressing business at the time, but said that "he was going to look around when he could get up to his ranch; . . ." The sheriff told him "he should get up there and look around, . . ." In the meantime the sheriff, who was assigned as county "livestock investigator," searched the completely fenced 1,200-acre Sizemore ranch four or five times. Finally, while with Sizemore, he found a place in the fence where "the wire had been cut."

A day or two later Sizemore returned to the hole in the fence. He observed "some tracks on the other side of the fence . . . ." Beyond the fence were several large unfenced parcels of property under different ownerships. Two or three parcels away was unfenced land owned by petitioners. The several parcels were traversed by a rough dirt road leading from an unlocked gate in Sizemore's fence. (The magistrate of the preliminary hearing, the transcript of which constituted the greater part of the superior court evidence, found the gate "clearly a common gate used by both Solis and Sizemore.")

Sizemore started to follow the tracks he had observed. With his dog he traced them with some difficulty for a mile or more without passing a fence, or gate, or other barrier. The tracks then went "up the hill" and "into some timber." In the timber or at its edge Sizemore "found the stomach contents," i. e., a large "pile" of animal entrails which he identified as removed from a cow. The entrails were on petitioners' land and from that point could be seen a small wooden shack and house trailer 30 or more feet away. Sizemore promptly reported his observations to the sheriff who, contacting a deputy district attorney, was instructed to go with Sizemore "to determine if they were, could be cow guts from my case."

The sheriff and Sizemore did so, traveling by automobile through the unlocked gate on Sizemore's fence and, unlike Sizemore earlier, along the dirt road "It's all open country. There are no fencelines" until they came to a low-lying wire stretched across the road on petitioners' property, which otherwise was also unfenced. He and Sizemore stepped over the wire. The two then went into the timber where the cow's entrails were again observed. ^*

The deputy district attorney thereafter prepared, and the sheriff swore to the truth of, affidavits for a search of the homes of petitioners, respectively, in Ukiah in Mendocino County and San Bruno in San Mateo County. All of the above-related matters, including the details of both entries and searches upon petitioners' land were fully and fairly reported in the affidavits. (Petitioners make no contrary contention.) Upon the affidavits' presentation to a magistrate search warrants were issued. Upon their execution, boots covered with cow's blood and guns of the caliber of the bullets found in the cow's head, were found in petitioners' possession. And the crime's perpetration was thereafter admitted by petitioners, or one of them.

Petitioners' contentions on their motion to suppress evidence in the superior court may reasonably be reduced to the following:

(1) Both of the searches violated petitioners' "Reasonable expectation of privacy " (emphasis added), and were accordingly proscribed by the Fourth Amendment.

(2) The second search "was an illegal 'confirmation search' under the recent Supreme Court holding in People v. Cook (1978) 22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130 . . . ."

At the conclusion of the hearing the superior court found no reasonable "expectation of privacy in this situation," and that there was "nothing unreasonable" about the search and "there is thus no (confirmatory) search as was prohibited in People v. Cook, 22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130." The motion to suppress the "fruits" of the searches was denied, and these proceedings in prohibition followed.

We treat petitioners' superior court contentions, as we must, as a statement of the issues of our review. Points here raised for the first time will not be considered. (See People v. Gallegos (1971) 4 Cal.3d 242, 249-250, 93 Cal.Rptr. 229, 481 P.2d 237; People v. Brawley (1969) 1 Cal.3d 277, 294-295, 82 Cal.Rptr. 161, 461 P.2d 361.)

We consider now the first contention of petitioners, i. e., that Both of the searches violated their reasonable expectation of privacy.

It is, of course, a truism of our law that "the Fourth Amendment protects people, not places." (Katz v. United States (1967) 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576.)

But people will have a constitutionally protected expectation of privacy according to the nature of the place in which they claim it.

"The pattern of prior decisions suggests that one of the most crucial determinants of the validity of warrantless searches is the nature of the place subjected to search. This pattern has been created by the interweaving of constitutional concepts with fundamental human needs and expectations. The courts have implicitly recognized that man requires some sanctuary in which his freedom to escape the intrusions of society is all but absolute. . . . Certain other places carry with them an expectation of privacy which, although considerable, is less intense and insistent. These places may be searched upon probable cause alone under circumstances of less demanding urgency. Still other sites are regarded as so public in nature that searches are justifiable without any particular showing of cause or exigency. This hierarchy of protection arises not from the application of differing constitutional standards to various locales, but rather from an application of a single standard of reasonableness to all places in accordance with a fundamental understanding that a particular intrusion into one domain of human existence seriously threatens personal security, while the same intrusion into another domain does not." (People v. Dumas (1973) 9 Cal.3d 871, 881-883, 109 Cal.Rptr. 304, 311-312, 512 P.2d 1208, 1215-1216; fns. omitted.)

The highest of Fourth Amendment protection extended to people is in their "houses." "(W)arrantless searches of a private dwelling are unreasonable per se in the absence of one of a small number of carefully circumscribed exceptions . . . ." (People v. Ramey (1976) 16 Cal.3d 263, 270, 127 Cal.Rptr. 629, 633, 545 P.2d 1333, 1337.) Such dwellings are "ordinarily afforded the most stringent Fourth Amendment protection." (United States v. Martinez-Fuerte (1976) 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116.) "Freedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment." (Dorman v. United States (D.C.Cir. 1970), 140 U.S.App.D.C. 313, 317, 435 F.2d 385, 389.)

A lesser degree of constitutional concern is shown in respect of such places as a person's automobile. There, "one's expectation of privacy (is) significantly different from the traditional expectation of privacy and freedom in one's residence." (United States v. Martinez-Fuerte, supra, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084-3085.) And "business premises may . . . reasonably be (searched) in many more situations than private homes, . . ." (See v. City of Seattle (1967) ...