STEPHEN MICHAEL GUIDI et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
L.A. No. 30041
In Bank
Sept. 5, 1973
Richard G. Sherman and Alan Fenster for Petitioners.
No appearance for Respondent.
Joseph P. Busch, District Attorney, Harry Wood and Daniel L. Lieberman, Deputy District Attorneys, for Real Party in Interest.
OPINION
WRIGHT, C. J.—An alternative writ of mandate issued challenging the propriety of respondent court‘s failure to grant petitioners’ motion to suppress contraband evidence alleged to be the fruit of an unreasonable seizure and search (
For some months prior to his election to cooperate with Orange County authorities as an undercover operative seeking to deal in narcotics, Joe Del Sesto had frequented various commercial establishments patronized by narcotics traffickers. Acting in his undercover capacity he entered into preliminary negotiations with petitioners Guidi, Lefort and Neilson and thereafter went to an apartment in Long Beach in order to inspect hashish proffered by such petitioners in exchange for an agreed purchase price of $7,500.
The door of the apartment opened into a living room which was partially separated from the adjacent kitchen by a counter or bar six to eight feet long and three and a half feet high. A hall led to two bedrooms and a bathroom at the rear of the apartment. Upon his entrance Del Sesto went
Del Sesto left the apartment to get the purchase money. Petitioners Lefort and Neilson, who had left with Del Sesto, were arrested on the street as they returned with Del Sesto to the apartment. Del Sesto told the officers that two other suspects were in the apartment and that the hashish was in a shopping bag on the floor of the living room. Del Sesto also said he had not been able to see if other occupants of the apartment were within the bedrooms.
Petitioner O‘Connor responded to a police officer‘s knock and was arrested at the door of the apartment. Moving inside with weapon drawn and accompanied by two fellow officers, Officer Holt arrested petitioner Guidi in the living room. Both O‘Connor and Guidi were handcuffed immediately. During this time Holt heard sounds coming from the rear of the apartment. He crossed the room to the kitchen. Behind the counter Holt saw a shopping bag with the opening squared shut. For the first time the officer became aware that the distinctive odor of hashish permeated the room and seemed to come directly from the vicinity of the bag. Seizing the bag he found the 10 “baggies” of hashish within. Holt then searched the bedrooms of the apartment, first for occupants and then more thoroughly to the point of rifling through drawers and opening shoeboxes. A small child was found in one bedroom and the tenant of the apartment in the other. The officers possessed neither search nor arrest warrants.
Essential to the maintenance of Fourth Amendment rights is the concept that a police intrusion into an area of private control should wherever feasible be made contingent on a judicial finding of probable cause embodied in a warrant. Nowhere has the warrant requirement been applied more stringently than in relation to searches of residences. The United States Supreme Court has repeatedly emphasized that probable cause alone, no matter how compelling, will not justify a search within a residence absent a warrant. (See Vale v. Louisiana (1970) 399 U.S. 30, 34 [26 L.Ed.2d 409, 413, 90 S.Ct. 1969]; Chapman v. United States (1961) 365 U.S. 610, 613 [5 L.Ed.2d 828, 831, 81 S.Ct. 776].) The Fourth and Fourteenth Amendments mandate the exclusion of evidence seized in the course of an unreasonable search (Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933]), and warrantless residential searches have been judicially deemed “per se unreasonable” save where recognized exceptions apply. (Katz v. United States (1967) 389 U.S. 347, 357 [19 L.Ed.2d 576, 585, 88 S.Ct. 507]; People v. Edwards (1969) 71 Cal.2d 1096, 1105 [80 Cal.Rptr. 633, 458 P.2d 713]; see also United States v. Rabinowitz (1950) 339 U.S. 56, 68 et seq. [94 L.Ed. 653, 661 et seq., 70 S.Ct. 430] (dissenting opinion by Frankfurter, J.).)
Petitioners contend that the search of the bag of hashish in the kitchen falls within none of these exceptions to the presumptive invalidity of a warrantless search. The People argue that the odor emanating from the bag put the contraband inside it within the “plain smell” of Officer Holt, and urge that we treat “plain smell” as the legal equivalent of “plain view,”2 thus invoking or creating, with respect to items possessing unique or distinctive odors, a rule similar to the long-standing concept that contraband seen in plain view may be seized without a warrant.3
Although it received only cursory attention from the parties in this case, we believe a substantial Fourth Amendment issue must be resolved preliminarily to our discussion of the seizure of the bag and the search thereof. It is elementary that the legality of the seizure of an object falling within the plain view of an officer is dependent upon that officer‘s right to be in the position from which he gained his view of the seized object. (Harris v. United States (1968) 390 U.S. 234 [19 L.Ed.2d 1067, 88 S.Ct. 992].) Thus we must first determine whether Holt had a right to cross the living room and survey the kitchen before we can consider whether his plain view of the bag and his “plain smell” of the hashish within gave him legal ground to seize the bag and inspect its contents.
One of the recognized exceptions to the rule that warrantless searches of residences are per se unreasonable is the search incident to an arrest within a residence. Indeed, this exception once threatened to eclipse the rule. The Supreme Court in Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034] sought to delimit narrowly the scope of permissible warrantless searches incident to arrest and thereby reaffirm that the warrant requirement was essential to the vitality of the Fourth Amendment.
The Chimel court noted two rationales in justification of warrantless searches incident to arrest: the security of the arresting officers and the preservation of evidence. Yet for fear that through “unconfined analysis, Fourth Amendment protection in this area would approach the evaporation
Petitioners invoke Chimel as authority for suppressing the seized hashish. Given the fact that both of the petitioners present in the apartment were handcuffed immediately upon arrest and were in any case never less than eight feet in front of the kitchen counter behind which the hashish was found, it is unquestionable that Officer Holt‘s survey of the kitchen cannot be validated as a search incident to arrest. The kitchen and any evidence or weapons it might have harbored were clearly beyond the reach of the arrestees. In any case, Holt was not even arguably attempting to comply with the Chimel limitation on warrantless searches. As previously mentioned, the arresting officers in clear derogation of petitioners’ rights proceeded after the discovery of the hashish to search the entire apartment.5
Although Officer Holt‘s search cannot be justified under Chimel, that
Chimel was not the first case to recognize that measures reasonably tailored to assuring the security of arresting officers ought not to be inhibited by the warrant requirement. Earlier Terry v. Ohio (1968) 392 U.S. 1, 20 [20 L.Ed.2d 889, 905, 88 S.Ct. 1868] had declared that “advance judicial approval of searches and seizures through the warrant procedure” is inherently impractical in the context of “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat. . . .” Terry thus effected a fundamental revision of Fourth Amendment analysis by reclassifying searches and seizures into two distinct categories.
The first of these categories is “police conduct subject to the Warrant Clause of the Fourth Amendment, . . .” Such searches and seizures are justifiable only upon “probable cause,” the sufficiency of which must normally be tested in advance by application to a magistrate for a warrant. (Terry v. Ohio, supra, 392 U.S. at p. 20 [20 L.Ed.2d at p. 905].)
The second category of searches and seizures outlined in Terry is composed of those intrusions which cannot practicably be made contingent on advance judicial approval. Such conduct “must be tested by the Fourth Amendment‘s general proscription against unreasonable searches and seizures.” (Ibid.)6 In assessing reasonableness, “there is ‘no ready test . . . other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.‘” (Brackets in original.) (Id., at p. 21 [20 L.Ed.2d at p. 905].) This balancing test is essentially a dual inquiry: “whether the officer‘s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” (Id., at p. 20.)
In People v. Block (1971) 6 Cal.3d 239 [103 Cal.Rptr. 281, 499 P.2d 961] we recognized that Chimel and Terry must be read together in assessing the authority of police to search for possible additional suspects when making an arrest. Chimel concerned on its facts a solely evidentiary search—the quintessence of the sort of search Terry held subject to the warrant procedure. Moreover, Chimel concerned the arrest of just one man whom the police knew to be alone in his house with his wife. Thus there were not present in Chimel the reasonable grounds for self-protective measures to which Terry accorded constitutional recognition in its category of
We were aware in Block that suspect searches incident to arrest could potentially become as serious a threat to Fourth Amendment freedoms as were the evidentiary searches incident to arrest condemned in Chimel. Thus we questioned “the propriety of conducting in every case a general exploratory search for ‘possible suspects’ . . . .” (People v. Block, supra, 6 Cal.3d at p. 243.) In holding the limitations of Chimel inapplicable to a search for additional suspects incident to a residential narcotics arrest, we sought in Block to forestall abuse of this power to search without a warrant by adopting the substance of the rule propounded in Terry: “As a general rule, the reasonableness of an officer‘s conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or ‘hunches,’ but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary.” (People v. Block, supra, 6 Cal.3d at p. 244; citations omitted.)
Applying the foregoing standard to the facts of the case before us we conclude that Officer Holt‘s excursion into the kitchen was an appropriate action for a man of reasonable caution to take. Holt knew that the traffickers with whom petitioners Guidi and O‘Connor were involved included at least two other persons, they being the already-arrested petitioners Lefort and Neilson; that petitioners Guidi and O‘Connor and any accomplices who might be present were in possession of 10 pounds of hashish; that the hashish had a $7,500 wholesale value which the officer knew had potential street value in excess of $40,000; that Del Sesto had not looked into any room other than the living room and bathroom; and that upon entering the apartment the officer had heard sounds coming from elsewhere than the open areas. The counter between the kitchen and the living area was high enough and long enough to shelter a lurking accomplice. The value of the contraband reasonably believed present by Holt was surely not so de minimis as to make remote the possibility of violent and desperate efforts to resist the arrests and defend the contraband. Accordingly, the officer‘s movement which positioned him to glance into the kitchen area
We now address ourselves to the central issue: the question of the inadmissibility of the hashish on the ground that although the view of the brown paper bag was constitutionally obtained, the viewing of the interior of the bag resulting in the disclosure of the hashish was constitutionally impermissible. We proceed to focus our attention on the seizure of the bag itself, which seizure necessarily preceded any examination of the contents of the bag. We have already held that in the case before us the bag was seen in plain sight during a lawful cursory search for additional suspects. We further conclude that the bag itself was evidence of the criminal transactions witnessed by Del Sesto; that the description of the bag by Del Sesto corroborated by the odor emanating therefrom furnished probable cause for Officer Holt to seize the bag; that his seizure of the bag was constitutionally reasonable; and that the search of the bag subsequent to its seizure was therefore likewise reasonable.
We believe People v. Roberts (1956) 47 Cal.2d 374 [303 P.2d 721], People v. Gilbert (1965) 63 Cal.2d 690 [47 Cal.Rptr. 909, 408 P.2d 365] (revd. on other grounds),8 and Warden v. Hayden (1967) 387 U.S. 294 [18 L.Ed.2d 782, 87 S.Ct. 1642], set forth the law which properly controls our disposition of this case.
Roberts was decided prior to Warden v. Hayden, supra. Thus Roberts properly observed that the United States Supreme Court had theretofore drawn “a sharp distinction between the seizure of property which is stolen or contraband and property which is inoffending of itself and merely evidentiary.” (People v. Roberts, supra, 47 Cal.2d at p. 379.) The validation by Roberts of the seizure of property found in plain sight during a cursory search of a dwelling for occupants was accordingly limited to the seizure of contraband or possibly stolen property.
Several years after Roberts, however, we held that the “mere evidence” rule had been fashioned by the United States Supreme Court solely as a federal procedural rule. (People v. Thayer (1965) 63 Cal.2d 635 [47 Cal.Rptr. 780, 408 P.2d 108], cert. den. 384 U.S. 908 [16 L.Ed.2d 361, 86 S.Ct. 1342].) Accordingly we declared that “the mere evidence rule is not a constitutional standard and has no application in California.” (Id., at p. 642.)
The expansive effect of Thayer on Roberts was implicit in our decision in People v. Gilbert, supra, 63 Cal.2d 690, where we read Roberts as permitting the plain view seizure of “suspicious objects,” without confining such seizures to stolen property or contraband.10 In Gilbert eyewitnesses to a bank robbery saw stolen currency and coins being placed in a brown Alpha Beta Market shopping bag. During the subsequent investigation officers entered a suspect‘s apartment without a warrant. In the course of their search of the apartment for the suspect, held valid despite the lack of a warrant because it was made under exigent circumstances and was appropriately circumscribed, the officers saw a shopping bag imprinted with the name of the Alpha Beta Market within which they found rolls of coins from the robbed bank. All members of this court agreed with
Less than two years after Thayer and Gilbert were decided, the United States Supreme Court held in Warden v. Hayden, supra, 387 U.S. 294, 300-310 [18 L.Ed.2d 782, 788-794], that the mere evidence rule was a “Fourth Amendment ruling” (id., at p. 303 [18 L.Ed.2d at pp. 789-790]), not a procedural rule solely for federal courts. But citing Thayer as the leading case setting forth judicial opposition to the mere evidence rule (Warden v. Hayden, supra, 387 U.S. at p. 300, fn. 6 [18 L.Ed.2d at p. 788]), Warden promptly labelled the mere evidence rule “wholly irrational” (id., at p. 302 [18 L.Ed.2d at p. 789]), and attributed its perpetuation “more to chance than considered judgment.” (Id., at p. 308 [18 L.Ed.2d at p. 792].) Concluding that “there is no viable reason to distinguish intrusions to secure ‘mere evidence’ from intrusions to secure fruits, instrumentalities, or contraband” (id., at p. 310 [18 L.Ed.2d at p. 794]), Warden upheld the admissibility of items of clothing found in the search without
Reviewing Roberts, Thayer, and Gilbert in the light of Warden, we conclude therefrom that the police may effect plain view seizures of evidence found in the course of properly circumscribed cursory searches for suspects, free of former constitutional restrictions of such seizures to contraband or stolen property.
In the instant case, the officers entering the apartment were possessed of substantially contemporaneous information describing the container of contraband as a paper shopping bag.12 In the course of a lawful inspection of the premises he had entered, Officer Holt saw in plain sight a bag conforming to that described as bearing the hashish previously offered for sale to Del Sesto.
In a prosecution for offering drugs for sale, a bag found in the possession of the accused which matched an earlier description of the bag bearing the proffered drugs would itself be, even absent its contraband contents, relevant evidence of the presumably disputed fact that the accused had as alleged offered the drugs for sale. (
Intrinsic to the concept of “plain view” seizures is the proposition that such seizures, unlike searches, are not presumptively invalid whenever effected without the authority of a warrant.15 Nevertheless, such seizures must still comport with the ultimate Fourth Amendment requirement of reasonableness.16 We hold that in the particular circumstances of the case
Two additional elements must be weighed in the balance in the determination of the reasonableness of the seizure by Officer Holt. First, the bag was highly portable and second, as described to Holt, the contents of the bag consisted solely of the proffered hashish and nothing else. As will be discussed below, the power to seize carries with it the power to “search” the seized item. Thus too liberal a rule of reasonableness for warrantless evidentiary seizures could quickly erode the general requirement of warrants as prerequisites to searches. Where contraband is believed to be hidden among several items within a container, such as a suitcase or a dresser drawer, seizure of the container may well be more difficult to justify. The type of container which may reasonably be seized as evidence
The above standards render clearly justifiable some types of plain view seizures of evidence—such as the seizure of a marijuana “joint” even though the cigarette paper completely obscures the contraband itself from view. It is equally clear that the seizure of other literal containers of contraband would be insupportable—such as the “seizure” of a suspect‘s entire house. We deem under the totality of circumstances heretofore described that Officer Holt could reasonably conclude that the bag matched the description and location of the bag containing the hashish baggies, gave the appearance of utilization for such storage, emanated a strong smell of hashish and was removable, and that its invasion constituted a minimum infringement of privacy. The seizure was thus constitutionally reasonable.
We have already noted in the context of Officer Holt‘s entry into the kitchen that when dealing with a seizure and search not subject to the warrant procedure “our inquiry is a dual one—whether the officer‘s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” (Terry v. Ohio, supra, 392 U.S. at pp. 19-20 [20 L.Ed.2d at p. 905].) Having determined that the seizure of the bag was reasonable, we turn now to the search of the bag after its seizure. Since the bag was seized as evidence, a search of its interior was “reasonably related in scope to the circumstances which justified the interference in the first place.” Only by so searching the bag could Officer Holt confirm or discount his initial, constitutionally reasonable conclusion that it had evidentiary value. (See People v. Teale, supra, 70 Cal.2d at pp. 507-511.)19 Moreover, under
Having determined that seizure of the bag was constitutionally reasonable and that inspection of its contents was concomitantly reasonable as an incident of the seizure of the bag, we hold that the bag and its contents are admissible as evidence against petitioners.
The petition for a peremptory writ of mandate is denied, and the alternative writ is discharged.
Tobriner, J., and Sullivan, J., concurred.
MOSK, J.—I concur in the judgment and in the scholarly analysis by the Chief Justice. However I have considerable difficulty with the rationale of footnote 18.
It is comforting that People v. Marshall (1968) 69 Cal.2d 51 [69 Cal.Rptr. 585, 442 P.2d 665] “is no longer to be followed,” but unfortunately the footnote in which that conclusion is reached also contains some confusing equivocation. In short, I agree with the People that this case is controlled by Marshall factually and legally; therefore the result reached here calls for a forthright overruling of Marshall.
In the instant case we conclude that the officer‘s movement was justified as a warrantless search and that he “thus infringed no constitutional mandate” (ante, p. 10). In Marshall even the majority conceded that the officers were properly inside the premises. (69 Cal.2d at p. 56.) In this case the officer saw only “a shopping bag with the opening squared shut“; in Marshall the contraband was not in plain sight because it was contained
All the majority of the sharply divided court permitted in Marshall was that “officers may rely on their sense of smell to confirm their observation of already visible contraband” (italics added; 69 Cal.2d at p. 59). It was that unreasonable restriction which I decried in my dissent (id. at p. 63). I insisted then, and continue to believe, that the sense of smell, and indeed all the senses, may be employed, not merely in confirmation of what is already visible, but in equal weight with the sense of sight in the determination of probable cause to search and seize. For illustrations that demonstrate the impracticality of limiting valid discovery of evidence to that which is seen, or to the use of other senses merely in corroboration of what is already known or visible, see my dissent in Marshall (at p. 66).
For the reasons stated and in reliance upon the authorities cited in my dissent therein, I would expressly overrule Marshall more forthrightly than my colleagues do in footnote 18 of their opinion.
McComb, J., Burke, J., and Clark, J., concurred.