Opinion
For Opinion on Hearing, see, 117 Cal.Rptr. 393, 528 P.2d 1.
Opinion on pages 18-55 omitted.
HEARING GRANTED
Paul R. Falzone, David M. Weetman and Thomas H. Frankel, Davis, for defendant and appellant Gerald Meyer Schnabel.
[107 Cal.Rptr. 798]Constantine P. Matthews, Upland, for defendant ant appellant Charles E. Hill, Jr.
Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., A. Wells Petersen and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
KERRIGAN, Associate Justice.
Arthur 'Tudy' Hernandez, Charles Edwin Hill, Jr. and Gerald Meyer Schnabel were charged in an information with the murder of Stephen Paul Smith(Pen.Code, § 187) and robbery (Pen.Code, § 211). Hill and Schnabel were also charged with possession of marijuana (Health & Saf. Code, § 11530). Their motions to set aside [107 Cal.Rptr. 799] the information (Pen.Code, § 995) and to suppress evidence (Pen.Code, § 1538.5) were denied. Pursuant to a plea bargain (Pen.Code, § 1192.5) by which the other charges were dismissed, Hill and Schnabel entered pleas of guilty to murder in the second degree and were sentenced to state prison. In this appeal from the judgments of conviction they seek further review of the admissibility of certain evidence. (Pen.Code, § 1538.5(m).) Hernandez was tried by jury and convicted of murder in the first degree. His appeal is not now before us.
The facts and issues of this case have been here several times before. We denied without opinion petitions by Hill and Hernandez for writs of prohibition (Pen.Code, § 999a) after denial of their 995 motion (4 Civ. 11527, 11528) and petitions by Hill and Schnabel for writs of mandate to compel suppression of evidence after denial of their motions to suppress. (4 Civ. 11579, 11580.) We dismissed the appeal of codefendant Hernandez for failure to cooperate with his appointed counsel (4 Crim. 4908) and the appeal of his wife, Annette Hernandez, separately charged and convicted of first degree murder, for failure to file an opening brief. (4 Crim. 5602.)
THE CRIME
About 6:00 p. m. on December 17, 1970, Stephen Paul Smith and David Lee McElhinney arrived at 25978 Juanita Street, Bryn Mawr. Smith parked his 1970 Volkswagen van behind a white Chevrolet in front of the house. His purpose was to buy a large quantity of marijuana; McElhinney was along for the ride. They went through the gate and up to the porch; Smith knocked. Annette 'Sparky' Hernandez opened the door a few inches and asked who was there. Smith identified himself and said McElhinney was all right. She opened the door and they stepped into a small living room.
It was dark inside because the shades were drawn and the electricity was off. The only light came from two candles in the corner of the room. As McElhinney started to sit down on a sofa, he heard a metallic click. Looking up, he saw a man silhouetted in a bedroom doorway across the room, pointing a revolver directly at him. He could not tell whether or not this man was wearing a mask, and could not identify him. The man told him to lie down on the floor. At this point he was understandably frightened and immediately complied.
As McElhinney lay prone on the floor with his face toward the wall to his left, he heard a scuffle behind him and heard Smith saying, 'You're not going to get away with this. There's people that know where I'm at.' He turned his head and saw Hernandez run out of the bedroom with his hands behind his back, spitting something out of his mouth.
There was a shot, and McElhinney felt Smith's body fall across his legs. Smith, crying in pain, said, 'Oh, my God, I'm shot.' McElhinney heard a voice saying, 'What did you shoot him for?' and another voice answer, 'I didn't. The gun went off.'
McElhinney's wallet was removed from his pocket; he was then rolled onto his back; a gun was held to his right eye, and a penlight to his left. He was asked where Smith's wallet was. When he said he did not know, he was rolled back onto his stomach. Someone asked Smith for his wallet; a voice, said, 'I got it,' and the two men ran out the back door.
McElhinney and Tudy Hernandez placed Smith in his Volkswagen, but were unable to start it because they could not find the keys. They transferred him to Sparky's white Chevrolet, in which they drove to Loma Linda Hospital. As they approached the emergency entrance, Tudy and Sparky agreed that she should not get involved, and Sparky got out of the car. Hernandez and McElhinney accompanied Smith into the hospital. He was either dead on arrival or died soon afterward.
San Bernardino county Sheriff's homicide detectives Ron Telles and Gene Rogers [107 Cal.Rptr. 800] arrived at the hospital to investigate. Rogers talked to McElhinney and Telles talked to Hernandez in separate rooms. Later both men were taken to the courthouse for further interrogation. Tudy Hernandez was booked that night on suspicion of murder.
Defendants Hill and Schnabel were arrested by Highway Patrol and Sheriff's officers around 6:30 p. m. about 12 miles away from the murder site in an incident that at the time seemed unrelated to Smith's murder. Evidence was taken from their car both at the scene of the stop and again the following day at a garage where the car had been impounded.
Sheriff's officers searched Smith's car and the house where he was shot the same evening, without a warrant, and seized evidence.
Hill and Schnabel made statements to each other and to Detectives Hardy and Rogers at the jail on December 18. These statements were all ordered suppressed as violative of defendants' rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.
The Attorney General evidently concedes the correctness of the trial court's ruling, since he does not challenge it on appeal. (See Pen.Code, § 1252.)
On December 21, Sparky Hernandez' house in Colton was searched under authority of a search warrant, and evidence was seized.
During an interview about December 22, McElhinney was shown seven color mug shots by Detective Rogers, including both Hill and Schnabel. He identified Hill. Subsequently he identified Hill in court at both the preliminary hearing and the hearing on the motions to suppress.
Sheriff's deputies monitored and recorded a conversation between Schnabel and a woman claiming to be his wife in the visiting area of the jail on December 23.
A more detailed exposition of the facts and circumstances of each of these events accompanies the discussion of the related points on appeal below.
ISSUES ON APPEAL
Defendants' contentions will be considered in approximately chronological order. They may be summarized as follows:
(1) The search of the Juanita Street residence in Bryn Mawr (the murder site) was unlawful because the officers did not have a warrant, and all evidence seized therein must be suppressed.
(2) Defendants' arrest was unlawful, and all evidence subsequently obtained must be suppressed as the fruit of that unlawful arrest, because: (a) The officers had no right to conduct a pat-down search of defendant Schnabel who was merely a passenger in a vehicle stopped for a traffic violation; (b) even if the pat-down was permissible under the circumstances, it was excessive in scope; (c) search of the vehicle at the scene was illegal; and (d) there was no probable cause to arrest defendants for any felony.
(3) Search of the impounded vehicle the day after the arrest, without a warrant, was unlawful, so that all items seized during the search must be suppressed.
(4) Seizure of items in Sparky Hernandez' Colton residence was illegal, and the evidence must be suppressed, because: (a) Detective Hardy's initial entry into the house, without a warrant, was unlawful; (b) the warrant issued on December 21 was the fruit of the previous unlawful entry and of other unlawfully-obtained evidence, and was therefore invalid; (c) the affidavit in support of the search warrant was insufficient on its face; and (d) even if the warrant and search were lawful, the evidence seized exceeded the scope of the warrant's authority.
(5) Defendant Schnabel's conversation with his wife in the jail visiting area was illegally monitored and must be suppressed.
(6) McElhinney's in-court identification of defendant Hill must be suppressed because: (a) The photographic identification procedure was so impermissibly suggestive [107 Cal.Rptr. 801] as to give rise to a substantial likelihood of irreparable misidentification; and (b) the People did not show that the in-court identifications were not tainted by the unlawful photographic identification.
(7) An alleged admission by defendant Schnabel at the scene of his arrest was obtained in violation of his Miranda rights.
Preliminarily, it should be noted that the testimony of the various witnesses at the hearing on the motions to suppress was in sharp conflict. It was the trial court's duty to resolve such conflicts. On appeal, all findings of the trial court, express or implied (see Evid.Code, § 402 (c)), will be upheld if supported by substantial evidence. It is our duty to measure the facts as found by the superior court against the constitutional standard of reasonableness. (People v. Lawler (filed March 20, 1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)
THE SEARCH OF THE MURDER RESIDENCE
About 6:25 p. m. on the day of the killing, Sheriff's Lieutenant Ringstad received a call at home from Sergeant Terry, relating that a shooting victim had been brought to Loma Linda Hospital, that Detectives Telles and Rogers were on their way to the hospital, and that other officers were on their way to the scene of the shooting in Bryn Mawr. Ringstad went to the hospital, conferred with officers Rogers and Telles, then went on to Bryn Mawr, arriving about 7:30. He was met by Deputy O'Rourke, who pointed out blood in Smith's Volkswagen (still parked in front of the house) as well as blood on the fence, gate, and porch or the house. O'Rourke had noticed candle light from within. While standing on the front porch and looking through the window with flashlights, the officers could see various objects and what appeared to be blood stains on the living room floor.
Crime lab technicians arrived, took photographs of the Volkswagen, and removed some evidence from it, including a shotgun belonging to McElhinney's brother. A vehicle registration check showed the Volkswagen registered in the name of the victim, Smith.
A neighborhood check by sheriff's deputies revealed that the house was owned by one Amelia Hernandez, who was then living in the San Francisco area, and that the place had been unoccupied for several months.
Ringstad and O'Rourke approached the house. They knocked on the front door, which was locked, and O'Rourke called out, 'Sheriff's office!' or words to that effect. There was no response. They could see no one inside, and Ringstad believed the house was empty. O'Rourke went around to the back, found the door unlocked, and entered, letting Ringstad in through the front door. Except for the two candles still burning in the living room, the house was dark. The entire house was searched, photographs were taken, and various items of evidence were seized, including some marijuana, a yellow notebook and brown address book, a pair of blood-spattered eyeglasses, a black purse with its contents, and two pieces of soiled, white adhesive tape. Another piece of adhesive tape was found on the sidewalk outside the house. When the officers entered, they found the black purse with its contents spilled on the living room floor. The purse contained personal identification with the name Anita Lerma Hernandez. Ringstad also saw on the top of the television set a roll of adhesive tape without a cover, and on the kitchen table two green plastic bags with eyeholes cut in them.
Defendants assert that the search of the house was unlawful, inasmuch as the officers did not have a warrant, and were not excused by any exigent circumstances from obtaining one. We agree and observe that the defendants have standing to raise this issue. (People v. Martin (1955) 45 Cal.2d 755, 761, 290 P.2d 855.)
'The protection of the Fourth Amendment extends to all equally--to those justly suspected or accused, as well as to the innocent. [107 Cal.Rptr. 802] The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws. . . . Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.' (Agnello v. United States (1925) 269 U.S. 20, 32-33, 46 S.Ct. 4, 6, 70 L.Ed. 145, 149, 51 A.L.R. 409. See also Chapman v. United States (1961) 365 U.S. 610, 613, 81 S.Ct. 776, 5 L.Ed.2d 828, 831.)
The Attorney General would support the officers' entry under the 'hot pursuit' doctrine of Warden v. Hayden (1967) 387 U.S. 294, 298-299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782, 787, wherein the court said, 'The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for the persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.' (Ibid.) These circumstances were not present in the case under review.
Fresh pursuit of a fleeing suspect who has committed a grave offense and remains dangerous may constitute the exceptional circumstances necessary to justify a search without a warrant. (People v. Smith (1966) 63 Cal.2d 779, 797, 48 Cal.Rptr. 382, 409 P.2d 222, cert. den., 388 U.S. 913, 87 S.Ct. 2119, 18 L.Ed.2d 1353.) In Smith the officers were in pursuit of a suspect who had just murdered two policemen; in Hayden the police were pursuing a robber. Here, they were pursuing no one; they did not know where Smith's murderers were, and they had no sound reason to believe they were in the Juanita Street residence. The officers were not confronted with an emergency; they had satisfied themselves that no one was in the house. The burden is on the prosecution to show the existence of a situation so exceptional as to excuse the requirement for a search warrant. (Vale v. Louisiana (1970) 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409, 413; Pierson v. Superior Court (1970) 8 Cal.App.3d 510, 520, 87 Cal.Rptr. 433.) This the prosecution has failed to do.
The Attorney General's alternate ground for upholding the search, that the house itself was evidence and could therefore be seized under the doctrine of North v. Superior Court (1972) 8 Cal.3d 301, 305-307, 104 Cal.Rptr. 833, 502 P.2d 1305, is untenable. Absent unusual circumstances not present here, a house may not be seized as evidence.
The record does not show exactly what could be distinguished inside the house by the officers from their vantage point on the porch. Since the front porch is a place to which the public would normally have access as the main entrance to the house, the officers had a right to be there, and they had a right to observe whatever could be seen through the window, provided they did not make or enlarge the opening through which they (People v. Berutko (1969) 71 Cal.2d 84, 91, 77 Cal.Rptr. 217, 453 P.2d 721.) Nor did the use of a flashlight make the view illegal. (People v. Superior Court (Mata) (1970) 3 Cal.App.3d 636, 639, 84 Cal.Rptr. 81.)
All of the evidence taken inside the Bryn Mawr residence must be suppressed, including photographs and testimony as to observations made by the officers while in the house. The physical evidence, photographs, and testimony as to observations from outside the house were lawfully obtained and are admissible in evidence.
THE ARREST
While patrolling alone in the Valley Boulevard area of Fontana between 6:15 and 6:30 p. m. on December 17, Officer Quaschnick of the California Highway Patrol (CHP) saw a bronze or gold-colored [509 P.2d 803] [107 Cal.Rptr. 803] 1967 Pontiac GTO moving north on Citrus Avenue toward the intersection with Valley Boulevard. The car slowed as it approached the intersection, then went through the stop sign at about 25 miles per hour. Quaschnick followed with the intention of issuing a warning to the driver (who eventually proved to be defendant Hill). As the Pontiac continued north on Citrus, Quaschnick accelerated to 85 miles per hour to catch up, and clocked the speeder at 65. The speed limit was 35 miles per hour. The Pontiac slowed to 25 as it rolled through a stop sign, turned right, and drove east on San Bernardino Avenue, accelerating rapidly to 65 miles per hour. At this point Quaschnick turned on his red light and siren. Hill turned right again, heading south on Oleander Avenue with Quaschnick right behind him at speeds up to 75 miles per hour. The officer advised his radio dispatcher of the chase and his position.
Hill slowed as he approached Valley again, ran the stop sign, turned left, and headed east on Valley at 75 miles per hour. After going a half mile he attempted a left turn onto Juniper Avenue. As he started to turn he lost control; the car skidded into a spin and stopped facing west. As Quaschnick pulled up, Hill accelerated again and drove west on Valley. Quaschnick made a U-turn and followed. Just west of Cypress, Hill finally pulled over onto the shoulder and stopped. Quaschnick stopped his car behind the Pontiac.
Immediately after stopping, Quaschnick stepped out behind his door and ordered Hill to get out of his car. He did not ask or order Schnabel, the passenger, to get out. Hill got out and started walking back toward the patrol car. They met between the cars. Hill said he had tried to get away to avoid being stopped for driving without a license. Quaschnick arrested him for reckless driving (Veh.Code, § 23103), frisked him for weapons with negative results, handcuffed him, and put him in the right front seat of the patrol vehicle. Hill gave the name Gary Glenn Pond, said he had recently bought the car, and said the registration or pink slip was in the car.
Meanwhile, CHP Officers Smith and Sharp, having heard of the high-speed chase on their radio while patrolling the San Bernardino Freeway, arrived to assist. Smith alighted and observed that Quaschnick and Hill were just getting out of their cars, and that Schnabel was beginning to step out too. Schnabel walked back toward Smith, who ordered him to stop, place his hands on the car in spread-eagle position, and submit to a pat-down search. He noticed that Quaschnick was doing the same with Hill, but paid no attention, being occupied with Schnabel.
As Smith began the pat-down, he felt, and also saw, a very large roll of money in Schnabel's jacket pocket. He thought there were fifty or sixty bills in the bundle (in fact there were 87). Smith asked Schnabel where he got the money; Schnabel answered, 'Wheeling and dealing.'
Continuing the frisk, Smith felt a hard object, about three inches square, in Schnabel' § right front pants pocket. He pulled the object out. It was a match box bound with rubber bands. Smith shook the box. It did not sound like matches, and was much heavier than a match box normally would be. Opening the box, Smith saw about six .32 caliber bullets. He asked Schnabel where the gun was. Schnabel said, 'What gun?'
Based on his knowledge of the highspeed chase, Schnabel's unusual action in getting out of the car without being ordered to do so, discovery of the money and bullets, Schnabel's evasive answers, and the fact they were in a high crime area, Smith handcuffed him and placed him under arrest for suspicion of armed robbery. He left the money in Schnabel's pocket, but set the box of bullets down on defendants' car.
Meanwhile, upon learning from Hill (alias Pond) that the registration or other evidence of ownership was in the Pontiac, Quaschnick approached the vehicle. He [107 Cal.Rptr. 804] shined his flashlight into the rear seat to ascertain whether any other persons were in the car, and saw a blue, cellophanewrapped package about three by eight by ten inches in size. Based on his experience and previous observations, he thought it might be a kilo of marijuana. The right front door was open. On the front floorboards he could see two wallets, miscellaneous scattered papers, and a small leather pouch about the size of a pack of cigarettes, in which he could distinguish three hand-rolled cigarettes with twisted ends. He believed these were marijuana cigarettes. He told Smith what he had seen, and Smith told him about the money and bullets. Quaschnick then radioed the dispatcher to request a sheriff's officer to assist with investigation of the robbery and marijuana aspects of the case.
While waiting for the deputy to arrive, or shortly after his arrival, Quaschnick again approached the Pontiac. This time he examined the vehicle identification plate on the left front door post. He noticed that the rivets appeared to be the wrong type, too new for the age of the plate and the car, and that there were scratches in the paint above the plate, as if someone had scratched on or near the plate with a screwdriver. The rest of the paint in that area was in good condition.
Deputy Thurlow, while patrolling in the north section of Fontana, received a radio call of a possible robbery at Valley and Cypress. When he arrived, Quaschnick told him about the vehicle identification plate, the wallets in the car, the money in Schnabel's pocket, and the blue package that appeared to be a brick of marijuana.
Thurlow checked the identification plate and made the same observations as Quaschnick. Looking in the right side he saw the wallets, one empty, the other containing identification for one Gary Pond (the alias used by Hill). He also noticed some keys. He picked up the pouch, removed one of the hand-rolled cigarettes and broke it open. The contents appeared to be marijuana. He also opened the blue package and found Alpha-Bits, a breakfast cereal. Finding the matchbox, he opened it and saw the bullets.
Thurlow testified that he picked up the matchbox of bullets from the floor of the car, in the same general area as the wallets and pouch. Smith testified as related above: that he removed the box from Schnabel's pocket and set it on the car, but that he did not place it in the car. Obviously, one of the officers was mistaken. It seems most likely that Thurlow picked up the box from the hood or fender of the car, where it had been placed by Smith. This is only one of the many conflicts as to detail and sequence of events in the testimony of the four officers at the scene. Where possible, we resolve these discrepancies in favor of the rulings of the trial court. (People v. Lawler, supra, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)
Thurlow arrested defendants for possession of marijuana and suspicion of auto theft. Removing the money from Schnabel's pocket, he counted it out on the fender of his patrol car. There were 87 bills having a total value of $1,878. He removed another dollar from Schnabel's pants pocket.
The CHP officers decided to impound the Pontiac. Smith and Sharp filled out a vehicle inventory report. Officer Smith looked through the whole car, including the trunk and under the hood. In the course of their inventory they did not remove anything from the car, and did not record on the inventory form any personal property of obvious value other than the equipment of the car itself.
One of the officers located a registration certificate with the name Boris Naydoff, which was recorded on the inventory form. None of the testifying officers could recall who found the registration or when. The [107 Cal.Rptr. 805] inventory form also indicated that the vehicle identification number on the registration certificate checked against the car's identification plate. Before the officers left the scene, Smith recalled that someone (not himself) radioed for a registration check on the Pontiac; the reply indicated no 'wants.' The Pontiac was towed away about 7:00 p. m., about the same time that defendants were leaving the scene. Quaschnick transported Hill to the Fontana sheriff's substation; Thurlow took Schnabel.
Appellant Schnabel's supplemental brief, citing the transcript of Deputy Thurlow's testimony, states that Thurlow found the registration at the scene. Respondent's brief, citing the same page of the transcript (see below), states that Thurlow did not find the registration. The transcript, at pages 266-267 (254-255 of Schnabel's copy) contains the following:
Defendants assert that the detention and pat-down of Schnabel, the search of the car, and their arrests were all unlawful. The trial court found that the arrests, and impliedly the preceding stop-and-frisk and search, were lawful. As hereinafter appears, the findings are supported by strong, solid evidence and will not be disturbed. (People v. Lawler, supra, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)
Stop-and-Frisk of Schnabel
Neither defendant challenges the propriety of Hill's arrest for reckless driving. Defendants do argue, however, that this was an ordinary traffic stop and that the police therefore had no right to detain or frisk Schnabel, who was merely a passenger.
The short answer to the contention is that this was no ordinary traffic stop. Hill had led Quaschnick over a zigzag course of two miles, at hazardous speeds up to 75 miles per hour, through speed limit zones of 25-45, in a primarily residential area. Though of course he was not aware of all the details of the chase, Officer Smith had heard enough on the radio, including Quaschnick's report of the spinout at Valley and Juniper, to form a general picture of what had happened. In these circumstances it was certainly reasonable for the officers to believe that defendants were guilty of some crime that an immediate investigation was called for, and that precautionary measures were necessary for their own safety, including an immediate search of the occupants of the Pontiac for weapons. (People v. Martin (1956) 46 Cal.2d 106, 107-108, 293 P.2d 52; see also Sibron v. New York (1968) 392 U.S. 40, 66-67, 88 S.Ct. 1889, 20 L.Ed.2d 917, 936-937.) 'There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.' (Terry v. Ohio (1968) 392 U.S. 1, 33, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, 913 (Harlan, J., concurring); People v. Anthony (1970) 7 Cal.App.3d 751, 760, 86 Cal.Rptr. 767.)
During the course of the search, Officer Smith felt, and simultaneously saw, the roll [107 Cal.Rptr. 806] of 87 bills in Schnabel's pocket. Seeing the bills, his first reaction was that Schnabel had just cashed a payroll check. The circumstances being out of the ordinary, he asked, 'Where did you get the money?' If Schnabel had had an innocent explanation for the money, he could have given it; instead he replied, 'Wheeling and dealing,' a response which understandably heightened the officer's suspicion that illegal activity was afoot.
United States v. Davis (9th Cir. 1971) 441 F.2d 28, on which Schnabel relies, is not in point, because (1) there the officer only felt, but could not see, the roll of bills, and (2) there the officer immediately removed the roll from the suspect's pocket, without either probable cause for arrest, or any fear the object was a weapon.
Continuing the pat-down, he located a hard object in Schnabel's pocket. He did not know what it was, but felt it might be an offensive weapon of some kind. He removed it to find out. His action was not unreasonable. The object, for all he knew, could have been a folded knife, a miniature pistol, or a pocket-size teargas or Mace dispenser, or even a box of bullets. (See People v. Anthony, supra, 7 Cal.App.3d 751, 762, 86 Cal.Rptr. 767 (officer properly removed bullets from suspect's pocket during weapons frisk).) The only way to find out was to remove the object for inspection. We hold that a prudent man could reasonably believe that the hard object Officer Smith felt in Schnabel's pants pocket could be usable as a weapon of assault. (See People v. Mosher (1969) 1 Cal.3d 379, 393-394, 82 Cal.Rptr. 379, 461 P.2d 659 (sharp object felt like a knife, turned out to be homicide victim's wristwatch; seizure held proper); cf. Amacher v. Superior Court (1969) 1 Cal.App.3d 150, 154, 81 Cal.Rptr. 558 (hard object removed from pocket was Marlboro cigarettes 'flip-top box.').)
Moreover, even though Officer Smith could see that the object was a matchbox, it was obviously not an ordinary matchbox. Its peculiar characteristics justified Officer Smith in examining it further to determine its contents. The present circumstances are readily distinguishable from Amacher v. Superior Court, supra, 1 Cal.App.3d 150, 81 Cal.Rptr. 558, on which defendants rely. There the Marlboro package, when removed from the suspect's pocket, presented a perfectly normal appearance. The officer opened it, not because he suspected any sort of weapon, but because, as he testified, he thought it contained marijuana (which in fact was so). Here, Officer Smith had a matchbox that very obviously did not contain matches. He thought it might contain some sort of explosive device. The trial court found that his action in opening the box was reasonable. The finding was correct.
The stop-and-frisk of Schnabel by Officer Smith was lawful in all respects.
On-Scene Search of the Pontiac
The initial searches by Quaschnick and Thurlow were not incident to the arrests of defendants. There may be no search of an automobile incident to an arrest simply for reckless driving, inasmuch as there are no fruits or instrumentalities of the crime, other than the automobile itself. (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 201-202, 101 Cal.Rptr. 837, 496 P.2d 1205.) Officer Smith did not take part in the initial searches, and there is no indication in the record that any of the other officers knew of his purported arrest of Schnabel for robbery. The searches by Officers Quaschnick and Thurlow must therefore be justified on other grounds.
Everything Quaschnick observed was in plain sight. It was certainly reasonable for him to shine his flashlight into the back seat of the car to look either for the registration, which Hill had told him was in the car, or for other passengers, who might have posed a potential threat to him and the other officers. The blue package was in plain sight on the back seat and its sighting did not constitute [107 Cal.Rptr. 807] a search at all. (Harris v. United States (1968) 390 U.S. 234, 236, 19 L.Ed.2d 1067, 1069, 88 S.Ct. 992; People v. Terry (1969) 70 Cal.2d 410, 428, 77 Cal.Rptr. 460, 454 P.2d 36, cert. den. 399 U.S. 911, 90 S.Ct. 2205, 26 L.Ed.2d 566.) The same remarks apply to the pouch with the three handrolled cigarettes. As to Quaschnick's observation of the identification plate, Hill had told him the registration was in the car and he had a right to look for it there. Obviously, it was necessary to open the car door to get in. When the door was open, the door post and vehicle identification plate were in plain view. Even if it had not been in plain view, we think it not unreasonable for Officer Quaschnick to take a look at the plate under the circumstances, where the driver, arrested after the dangerous chase described hereinabove, produced neither license nor registration. Even though Quaschnick did not yet have probable cause to arrest Hill on a charge of auto theft (People v. Superior Court (Simon), supra, 7 Cal.3d 186, 194-197, 101 Cal.Rptr. 837, 496 P.2d 1205), further investigation was definitely called for. ( Ibid., p. 197, 101 Cal.Rptr. 837, 496 P.2d 1205; People v. Ceccone (1968) 260 Cal.App.2d 886, 890, 67 Cal.Rptr. 499.) We re-emphasize that this was not an ordinary traffic stop.
The first search of the car and its contents was made by Deputy Thurlow. Quaschnick had informed him of the apparently altered identification plate, the money in Schnabel's pocket, the blue package that looked like a kilo of marijuana, the two wallets in the car, and of the chase. He knew the car's registration had not been found. Both Quaschnick and Thurlow had been trained to recognize the various forms of packaging marijuana in bulk, as well as in the form of cigarettes. Although he had no knowledge that any robbery or burglary had been reported in the vicinity that evening, Thurlow did know that there had been a number of robberies involving hitchhikers in the area during that previous two weeks. The court could also have inferred that Thurlow, who operated from the Fontana substation, was aware of the numerous robberies of convenience markets in the area testified to by Officer Smith. All of these facts in combination gave Thurlow probable cause to search the car for the registration in particular, and for evidence of any or all of the crimes of auto theft, robbery, and possession of marijuana. If an officer has probable cause to believe that an automobile contains contraband, he need not obtain a search warrant in order to search it. (People v. Laursen (1972) 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145; People v. Terry, supra, 70 Cal.2d 410, 428, 77 Cal.Rptr. 460, 454 P.2d 36.)
Defendants argue that the appearance of the blue package and the hand-rolled cigarettes were insufficient to give the officer probable cause to believe they contained marijuana, citing Remers v. Superior Court (1970) 2 Cal.3d 659, 87 Cal.Rptr. 202, 470 P.2d 11; Eiseman v. Superior Court (1971) 21 Cal.App.3d 342, 98 Cal.Rptr. 342: Thomas v. Superior Court (1972) 22 Cal.App.3d 972, 99 Cal.Rptr. 647; and Filitti v. Superior Court (1972) 23 Cal.App.3d 930, 100 Cal.Rptr. 583.
In all the cited cases it was held that observation of packages similar to those in which narcotics are often found did not give probable cause to seize and/or open those packages. In Remers the officers observed the suspect showing a tin-foil package (which turned out to contain seconal) to a companion; she had looked around, but had shown little concern for her surroundings; the area had a high volume of narcotics traffic; and the officer who seized the package had heard unsubstantiated reports that the suspect had a criminal record. In Eiseman, officers were validly arresting a suspect in his own room for marijuana sales; one officer picked up a vial of amphetamine pills and another containing a paper bindle which in turn apparently contained cocaine. The vials were on top of a dresser in the suspect's room, with various other articles; [107 Cal.Rptr. 808] the evidence was ordered suppressed because the vials did not come to their attention until they began an illegal search of the room, and because they could not see contraband in the vials until they picked them up to examine them. In Thomas the court found that there was only one suspicious circumstance: a hand-rolled cigarette. In Filitti we found that the essentially unremarkable behavior of the suspects, combined with what the arresting officer regarded as a suspicious package (wrapped in brown paper) and a high frequency of narcotics traffic in the area did not provide probable cause for a search and arrest.
The present case is much stronger than any of those cited. The circumstances here were not as consistent with innocent activity as with criminal activity. (Cf. Remers v. Superior Court, supra, 2 Cal.3d 659, 664, 87 Cal.Rptr. 202, 470 P.2d 11.) First, there was a high-speed chase. It would have been unreasonable to conclude that defendants' activity was entirely innocent. To the contrary, it was reasonable to conclude that they were trying to escape apprehension for a serious offense or to hide something. Then the officers saw not only a package which was both wrapped like and the same size as a kilo of marijuana, but also three hand-rolled cigarettes with the ends twisted. Unlike the police in Thomas, where there were no other suspicious circumstances (see Thomas v. Superior Court, supra, 22 Cal.App.3d 972, 979-980, 99 Cal.Rptr. 647), and where the officer apparently had no training or experience in recognition of marijuana (Ibid., at 976, 99 Cal.Rptr. 647), Deputy Thurlow could reasonably have concluded that some serious criminal activity was afoot, and that it involved marijuana. Unlike the officers in all the cited cases, Thurlow had probable cause, aside from the suspected marijuana, to search the car. His seizure and breaking open of the marijuana cigarette constituted proper conduct under the circumstances.
Probable Cause to Arrest
Defendants were arrested by Thurlow for possession of marijuana and suspicion of auto theft. When Thurlow's lawful search of the Pontiac and the objects therein revealed marijuana, it was proper to arrest both driver and passenger. (People v. Valerio (1970) 13 Cal.App.3d 912, 921-923, 92 Cal.Rptr. 82.)
Probable cause exists when the facts and circumstances known to the officers at the moment of arrest, considered not in isolation but together, were such as would lead a man of ordinary care and prudence to believe, or entertain an honest and strong suspicion, that the person arrested has committed an offense. (Beck v. Ohio (1964) 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142, 145; People v. Kilvington (1894) 104 Cal. 86, 92, 37 P. 799.)
At the time he arrested defendants, Thurlow had not found the Pontiac's registration. The facts known to him were that the driver had no license, no registration, no certificate of ownership, the vehicle identification plate had apparently been tampered with, and the defendants had tried hard to escape a routine traffic stop. These facts were sufficient to constitute probable cause to arrest the driver, Hill, for auto theft. (People v. Superior Court (Simon), supra, 7 Cal.3d 186, 196-198, 101 Cal.Rptr. 837, 496 P.2d 1205; People v. Ceccone, supra, 260 Cal.App.2d 886, 890, 67 Cal.Rptr. 499.) The apparently contrary holding of People v. Williams (1970) 9 Cal.App.3d 565, 568-569, 88 Cal.Rptr. 349 notwithstanding, we rule there was also probable cause to arrest the passenger, Schnabel, on the same charge.
After the registration was found by one of the officers and checked against the car's identification plate, and the radio check showed the car had not been reported stolen, there was no longer probable cause to hold defendants on the auto theft charge, but their arrest did not thereby become illegal, inasmuch as the [107 Cal.Rptr. 809] marijuana charge was valid, and further investigation was required by the unexplained condition of the identification plate and the fact the car was registered to neither occupant. (Under the circumstances, the officers did not have to take at face value Hill's explanation that he had just bought the car.)
The record suggests that Hill and Schnabel were booked for violation of section 4463 of the Vehicle Code (which makes it a felony to alter a registration certificate or plate with intent to defraud), not section 10851 (grand theft auto). It appears booking would have been more appropriate under section 10750 (misdemeanor to alter vehicle identification number) or 10751 (misdemeanor to knowingly possess vehicle with altered vehicle identification number). Citation of the wrong code section at booking does not invalidate the arrest. (Cf. Agar v. Superior Court (1971) 21 Cal.App.3d 24, 30-32, 98 Cal.Rptr. 148.) This is true even though the proper section described a misdemeanor, inasmuch as defendants were validly booked for another felony, possession of marijuana.
Before Deputy Thurlow's arrival, Officer Smith had arrested Schnabel for robbery. At the hearing on the motion to suppress, the court indicated in colloquy with counsel that he did not think Smith had probable cause to arrest Schnabel at that time. We hold that in the circumstances as they appeared to Smith at the time, he did have probable cause to arrest Schnabel, despite the fact he had no reports of robberies being committed that evening. Whether or not the robbery arrest was valid, Schnabel's evasive answer, together with many other suspicious circumstances, certainly warranted detaining him until completion of the on-scene investigation, which, as pointed out above yielded valid probable cause to arrest both defendants for possession of marijuana. Therefore, assuming arguendo that the robbery arrest was unlawful, its illegality did not taint any of the following searches and seizures, and did not affect the admissibility of any of the evidence so obtained. (Wong Sun v. United States (1963) 371 U.S. 471, 491, 83 S.Ct. 407, 9 L.Ed.2d 441, 457.)
SEARCH OF THE IMPOUNDED PONTIAC
The following morning, December 18, Sergeant Wagner of the Fontana substation telephoned Lieutenant Ringstad and informed him of defendants' arrest the previous evening; that approximately $1,800 had been taken from Schnabel; that one of the Fontana deputies had noticed what appeared to be blood on the hand of the suspects; and that deputies sent out to search along the route of the previous evening's chase had located at the corner of Juniper Avenue and Valley Boulevard what appeared to be some identification of one of the victims of the Bryn Mawr crime.
Arriving at Juniper and Valley about 7:30 a. m., Ringstad saw two wallets stuck in some bushes off the roadway at the northwest corner of the intersection about eight feet apart. A laminated plastic identification card with the name David McElhinney was stuck in the bush under one of the wallets, and under the card was a 7.65 mm. Llama automatic pistol. No officers had touched these items before Ringstad's arrival; they were then photographed and removed by lab technicians. Later in the morning, a .38 caliber revolver was recovered from a citizen whose home was on the south side of Valley Boulevard between Cypress and Oleander (along the route of the high-speed chase).
From the intersection where the wallets were found, Ringstad went to Gayto's Garage, less than a mile away, where the Pontiac had been impounded. He looked into the car, saw nothing of interest, got the keys from the garageman, and opened the doors and the trunk. A thorough search of the car was conducted by a criminalist, photographs were taken, and many small items seized, including the cover of a two-inch roll of Red Cross adhesive tape and a green plastic bag. The cover appeared to Ringstad to match the roll of tape he saw at the murder scene, and the [107 Cal.Rptr. 810] bag was similar in size and color to the bags with eyeholes observed in the kitchen of the Bryn Mawr residence. There was no warrant for the search.
Defendants assert that the search of the automobile without a warrant was illegal. The search cannot be justified as incident to the arrest, which we have found to be valid, because the search took place the next day while defendants were safely in custody at the jail. (Chambers v. Maroney (1970) 399 U.S. 42, 47, 90 S.Ct. 1975, 26 L.Ed.2d 419, 426; Mestas v. Superior Court (1972) 7 Cal.3d 537, 541, 102 Cal.Rptr. 729, 498 P.2d 977.)
On the other hand, if the officers had probable cause to believe the car contained evidence or contraband, they had the right to search without a warrant. Although probable cause alone never justifies a search of a dwelling or other fixed premises, different considerations govern an automobile or other readily movable object. A search of an automobile must meet the test of reasonableness under the Fourth Amendment (Preston v. United States (1964) 376 U.S. 364, 366, 84 S.Ct. 881, 11 L.Ed.2d 777, 780), but what may be an unreasonable search of a house may be reasonable in the case of a car because of its mobility. (Ibid.; People v. Burke (1964) 61 Cal.2d 575, 579, 39 Cal.Rptr. 531, 394 P.2d 67.)
Marijuana had been found in the car at the time of the arrest. The officers had the right to search the car then and there for other contraband. That they did in fact conduct a search at the scene does not preclude them from a later search. Given probable cause for an immediate search, it was reasonable to search the car immediately or to impound it. The delay in search until the next morning was not unreasonable, because both probable cause and the mobility of the car were still present factors. (Chambers v. Maroney, supra, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419. 428; People v. Medina (1972) 26 Cal.App.3d 809, 818, 103 Cal.Rptr. 337.)
By the next morning the officers had probable cause to search the car for evidence of the murder the previous day, and although none of the witnesses explicitly said so, it may be inferred from Lieutenant Ringstad's role as officer in charge of the investigation that this was in fact their motive. Even though probable cause to search for murder evidence did not arise until after the car had been impounded, the search was still reasonable because the original probable cause (to search for marijuana) still obtained, and so did the car's mobility unless the Fourth Amendment permits a warrantless seizure of the car and denial of its use to anyone until a warrant is secured. (Chambers v. Maroney, supra, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419, 429.)
The officers had at least three valid grounds for impounding the vehicle: (1) probable cause to search at the scene (People v. Laursen, supra, 8 Cal.3d 192, 201-202, 104 Cal.Rptr. 145, 501 P.2d 1145; (2) investigation of the apparently altered vehicle identification plate--the reason given by Officer Quaschnick for impounding the car--(Veh.Code, § 10751); and (3) the authority given to CHP officers to remove vehicles from the public highways when the occupants have been arrested. (Veh.Code, § 22651(h).)
Defendants' rights were not violated by the search at Gayto's Garage or by use of the evidence seized in the course of that search.
SEARCH OF COLTON RESIDENCE
On the afternoon of December 18, the day after the murder, Detectives Hardy and Rogers went to 457 H Street in Colton to arrest Annette 'Sparky' Hernandez for the murder of Stephen Smith. From the interviews with McElhinney and Tudy Hernandez the previous night, they knew that Smith and McElhinney went to Bryn Mawr to buy a thousand dollars ($1,000) worth of marijuana; that Smith had telephoned the Hernandez home from a pay phone in Riverside a few hours before the murder; that Sparky had been at 25978 Juanita Street when Smith was murdered, [107 Cal.Rptr. 811] and that she had opened the door to let Smith and McElhinney in; that she had been in the car taking Smith to the hospital, that she had gotten out of the car just before arriving at the hospital; that Tudy Hernandez had told McElhinney they should not get Sparky involved; and that Sparky had called Mrs. Smith to tell her that her husband had been shot, but that she didn't know who had done it.
They also had the conversation between Hill and Schnabel at the jail, in which the following exchange took place: SCHNABEL: 'What about Sparky and Tudy?' HILL: 'Well, let's cut them loose and ride the beef ourselves. Let's ride it all the way.' This conversation was ordered suppressed by the trial court as obtained in violation of defendants' rights, and may therefore not be considered in determining whether there was probable cause to arrest Sparky Hernandez.
Their reason for going to the Colton residence was that an address book taken from Schnabel at booking contained an entry, 'Sparky and Tudy Hernandez, 457 H. Street,' with directions how to get there and a phone number.
When they arrived, they knocked on the door, but there was no answer. They contacted the landlady, Mrs. DeLeon, who lived in adjacent premises, telling her they were investigating a murder, and were looking for Sparky Hernandez. Mrs. DeLeon said she had not seen Sparky that day, and there had been no activity in the apartment. The officers returned to the apartment, pounded on the back door, called out 'Sheriff's Office,' and tried to look through a window. There was no answer, and they left, after asking Mrs. DeLeon to call if she should see Sparky.
Sometime between December 18 and 20, Hardy received information that Sparky Hernandez had called the Smith home twice, trying to locate McElhinney.
The McElhinneys had been living with the Smiths for a two week period before the murder.
On December 20, Hardy was told by the desk sergeant that Mrs. DeLeon had telephoned to tell the police that Sparky was now at home and her car was parked in back. He returned alone to 457 H Street, announced himself, and shouted to Sparky to open the door or he would kick it down. Getting no response, he went to Mrs. DeLeon, who pointed out the white Chevrolet in the driveway and repeated that Sparky was inside. He asked her if she would open the door for him, and she did so with her key. While Mrs. DeLeon stayed on the porch, Hardy walked through the entire house looking for Sparky. She was not there.
As he was leaving the bedroom, he noticed a personal telephone directory on a nightstand. It was open; without disturbing it he could see the name 'Schnabel,' with the further information, 'Sacramento, 916-489-2298.' He also saw the name of the victim, Stephen Smith, and his telephone number. He left without touching anything.
The next day, Monday, Rogers and Hardy obtained a warrant to search the residence of Annette Hernandez at 457 H Street, Colton. The warrant authorized seizure of the following property: (1) personal telephone directory of Annette Hernandez (Sparky), (2) all correspondence between Annette Hernandez and Gerald Schnabel, (3) all correspondence between Annette Hernandez and Charles Hill, (4) all correspondence between Annette Hernandez and Stephen Smith, and (5) all memorandums concerning possible narcotics dealings with Stephen Smith. The warrant was issued on Detective Hardy's sworn affidavit. The magistrate took [107 Cal.Rptr. 812] additional sworn testimony from Detective Hardy, the nature of which does not appear in the record.
The factual part of the affidavit contains ten paragraphs.
The additional testimony may not be considered for probable cause, inasmuch as it was not recorded and transcribed as required by section 1526(b) of the Penal Code.
Rogers, Hardy, Lieutenant Ringstad, and other officers went to the Colton residence to serve the warrant. They knocked and called out, 'Sheriff's Office.' Receiving no response, they had Mrs. DeLeon unlock the door.
After checking the house to make sure no one was there, the officers searched the entire place and seized the following twelve items, listed in the same order as in the return to the search warrant: (1) a personal telephone directory, marked 'Tudy and Sparky Hernandez, 457 H Street, Colton, California, 825-9627,' taken from a night stand in the bedroom; (2) another personal phone directory, with the same inscription, in a dresser drawer in the front room; (3) a telephone bill addressed to Amelia Hernandez, dated 1-5-71, in a dresser drawer in the bedroom; (4) a yellow notebook with notations of narcotics sales from the same drawer; (5) a green notebook with narcotic sales notations from the same drawer; (6) a black and gray folding suitcase from the bedroom; (7) a .30 caliber lever action Winchester rifle, from which the serial number had been removed; (8) two green plastic bags from the kitchen table; (9) four tape recordings in their boxes, taken from the living room; (10) two green paper bags marked 'Larson and Hub City Rexall [107 Cal.Rptr. 813] Drugs, 142 West H Street, Colton, California,' with a cash register receipt from the same store for a single purchase of 98 cents plus 5 cents tax, recovered from a trash can; (11) a motel receipt from the Colony Inn Motel, Colton, in the name of Annette Hernandez, 457 H Street, Colton, 825-9627, dated December 14, 1970, in a dresser drawer in the living room; and (12) a pair of panty hose with the legs cut off, recovered from the trash can.
Defendants claim that Hardy's entry on December 18 was illegal, that the affidavit, and consequently the warrant, for the December 20 search was the poisoned fruit of previous illegal seizures, and that even if the search warrant was valid, the scope of the search and seizure exceeded the warrant's authority.
The Initial Entry
In finding the search valid, the trial court impliedly found that Hardy's initial entry on December 18 was lawful. Such a finding requires antecedent findings that Hardy had probable cause to arrest Annette Hernandez for a felony and probable cause to believe she was in the house at the time he went in to look for her, and that he substantially complied with the knock-and-notice requirements of section 844 of the Penal Code. (Horack v. Superior Court (1970) 3 Cal.3d 720, 726, 91 Cal.Rptr. 569, 478 P.2d 1; People v. Marshall (1968) 69 Cal.2d 51, 55-56, 69 Cal.Rptr. 585, 442 P.2d 665.) There were no exigent circumstances. The search may not be upheld on the basis of the landlady's consent to enter; a landlord may not consent to a search of his tenant's premises. (Chapman v. United States, supra, 365 U.S. 610, 616-617, 81 S.Ct. 776, 5 L.Ed.2d 828, 833.)
The information recited above, together with knowledge of Hernandez' involvement in Smith's murder (see footnote 10, supra, paragraph II) was sufficient to establish probable cause to believe that Annette 'Sparky' Hernandez was a participant in a conspiracy to rob and murder Stephen Smith, or at least that she aided and abetted the crime, and that she lived at the H Street address.
Detective Hardy also had probable cause to believe Sparky was at home when he entered on December 20. He could reasonably rely on the information furnished by Mrs. DeLeon; she was known to him personally from his visit two days before, she was not involved in any way in crime, and she had no motive to falsify her information. (See People v. Edwards (1969) 71 Cal.2d 1096, 1106, 80 Cal.Rptr. 633, 458 P.2d 713; People v. Abbott (1970) 3 Cal.App.3d 966, 970-971, 84 Cal.Rptr. 40.) In addition, Hardy was able to see the white Chevrolet parked behind the house. (The fact that it turned out not to be Sparky's White Chevrolet does not vitiate the probable cause.)
Section 844 of the Penal Code imposes three requirements on an officer before he may enter a dwelling to effect an arrest: He must (1) identify himself, (2) announce his purpose, and (3) demand entry. (People v. Superior Court (Ludeman) (1969) 274 Cal.App.2d 578, 580, 79 Cal.Rptr. 55.) The first and third requirements were satisfied when he announced his presence and knocked on the door. (People v. Hall (1971) 3 Cal.3d 992, 997, 92 Cal.Rptr. 304, 479 P.2d 664.) Had Sparky been home, there could have been little doubt in her mind what was wanted by the police officer outside; his purpose, though not expressly stated, was clear. In such circumstances, identification and demand for entry are sufficient to substantially comply with section 844. (Greven v. Superior Court (1969) 71 Cal.2d 287, 291-293, 78 Cal.Rptr. 504, 455 P.2d 432.) Receiving no response from within, Detective Hardy properly asked the landlady to open the door with her key. (See People v. Carswell (1959) 51 Cal.2d 602, 607, 335 P.2d 99, cert. den. 361 U.S. 854, 80 S.Ct. 100, 4 L.Ed.2d 92.) The entry was lawful.
While he was in the house, Hardy did not exceed his authority. Having ascertained that the person whom he [107 Cal.Rptr. 814] sought to arrest was not there, he left without touching anything. During a lawful search of premises for persons believed to be in hiding, police officers may seize contraband evidence in plain sight. (People v. Block (1971) 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961.) Here, he did not actually seize anything--he merely looked at what was spread before his eyes. His observation of the open telephone directory was entirely proper.
The Affidavit
Detective Hardy's affidavit in support of the warrant contains information obtained from various sources which, if reliable, provides more than sufficient probable cause to search Sparky's home.
For an affidavit based on an informant's hearsay statements to be legally sufficient to support the issuance of a search warrant, two requirements must be met: (1) the affidavit must allege the informant's statement in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such statement; and (2) the affidavit must contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable. (Aguilar v. Texas (1964) 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, 729; People v. Hamilton (1969) 71 Cal.2d 176, 179-180, 77 Cal.Rptr. 785, 454 P.2d 681.)
The source of the information in paragraphs I, III and IV was David McElhinney, both victim and witness of the crime, and therefore considered reliable as a 'citizen informant.' (See People v. Hogan (1969) 71 Cal.2d 888, 890, 80 Cal.Rptr. 28, 457 P.2d 868.) His information was obviously based on personal observation. The information given by the defendant Tudy Hernandez in paragraph II should be considered not for its truth or falsity but as demonstrating his and Sparky's involvement in the crime and his effort to exonerate himself and her. Detectives Rogers and Telles, as police officers, are presumed to be reliable informants. The informant in paragraph V is the victim's wife. The paragraph shows that she spoke from personal knowledge, but her reliability is not otherwise established. Paragraph VI is in three parts: The first relates personal observations of the affiant; the second, as to statements by Hill and Schnabel, must be deleted, since the statements were suppressed by the trial court as illegally obtained; the third part relates personal observations of Detective Rogers, a reliable informant. Paragraphs VII and VIII relate personal observations of the affiant. Paragraph IX relates reports from Deputy Thurlow, who as a policeman is reliable. Paragraph X must be deleted because the trial court suppressed defendants' statements.
Disregarding paragraphs V, VI (as to statements by defendants), and X, the affidavit contains more than enough information to induce in the magistrate a strong and reasonable suspicion that some or all of the items described in the warrant would be on the described premises. The warrant and the search on December 21 were valid.
Scope of the Search
Defendants complain that even if the search was valid, the items seized exceeded the authority conferred by the warrant. The United States Supreme Court has expressed the rule governing the extent of a search pursuant to a warrant: 'The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.' (Marron v. United States (1927) 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231, 237.) But there are at least two exceptions to this narrow rule. The Marron court recognized the first: search incident [107 Cal.Rptr. 815] to lawful arrest. (Ibid. at 199, 48 S.Ct. at 77, 72 L.Ed. at 238.) The second has been formulated by the California Supreme Court: 'When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as a result of the officers' efforts.' (Sklton v. Superior Court (1969) 1 Cal.3d 144, 157, 81 Cal.Rptr. 613, 622, 460 P.2d 485, 494.) It is this second exception which the Attorney General invokes here.
It is clear that 'contraband' was not used in its narrowest sense in Skelton, since the items under discussion in that case were various articles of stolen property, which would more conventionally be considered the fruits of crime. On the other hand, the Skelton rule could be construed to exclude evidence that does not fall within any of the traditional classifications: contraband, fruits, or instrumentalities of crime. We do not read Skelton to impose such a limitation. There is no constitutional difference between 'mere evidence' on the one hand, and contraband, fruits, or instrumentalities of crime on the other. (Warden v. Hayden, supra, 387 U.S. 294, 306-307, 87 S.Ct. 1642, 18 L.Ed.2d 782, 792.) We hold that officers may seize any evidence discovered during proper execution of a valid search warrant, subject to the condition of the following paragraph.
The burden is on the police to demonstrate, with regard to any evidence they seize which does not fall within a narrow reading of the warrant's authorization, that they had probable cause for the seizure. 'There must, of course, be a nexus--automatically provided in the case of fruits, instrumentalities or contraband--between the item to be seized and criminal behavior. Thus in the case of 'mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required.' (Warden v. Hayden, supra, 387 U.S. 294, 307, 87 S.Ct. 1642, 1649, 18 L.Ed.2d 782, 792.)
Some of the twelve items seized on December 21 do not meet this test.
Seizure of the personal telephone directories and notebooks containing records of narcotics sales was specifically authorized by the warrant. The other items must be suppressed unless they are contraband or a substantial probability is shown that they are connected with the murder of Stephen Smith.
The telephone bill was apparently made out to Amelia Hernandez, the reputed owner of the house in Bryn Mawr where Smith was murdered. It also contained the telephone number of that house. It was lawfully seized as tending to establish a link between Sparky Hernandez and the murder site.
The suitcase was similar to one apparently used by Smith for his marijuana transactions, and recovered from his van on December 18. In the course of their search, the officers opened it, as they were entitled to do, and found only marijuana debris. The possible connection with Smith, plus the important role of marijuana in all the pertinent events, made seizure of the suitcase lawful.
The Attorney General asserts, without any citation of authority, that the rifle from which the serial number had been removed was contraband. We can certainly agree with the Attorney General that any firearm with a defaced, altered, or deleted serial number ought to be contraband, but that apparently is not the law in California. It is a federal offense to transport in interstate commerce any firearm which has had the serial number removed, obliterated, or altered. (18 U.S.C., § 922(k).) It is a crime in California to alter the serial number of a pistol or to possess a pistol which has been so altered. (Pen.Code, §§ 12090, 12091, 12094.) It is neither a federal nor a state offense merely [107 Cal.Rptr. 816] to possess a rifle whose serial number has been altered or obliterated. Therefore, the rifle was not contraband. Inasmuch as there is no suggestion anywhere in the record that a rifle was involved in any of the criminal activity in this case, the rifle was wrongfully seized and must be suppressed.
The two green plastic bags resembled bags seen by Lieutenant Ringstad at the Bryn Mawr house. Inasmuch as the search of that house was unlawful, this connection may not be used to provide probable cause to seize the bags. Lieutenant Ringstad testified, however, that the green plastic bag on the back seat floor of defendants' Pontiac also resembled the bags seen at Bryn Mawr. It is therefore reasonable to suppose that the H Street bags resembled the one found in defendants' car, and may properly be seized as tending to establish a link between Sparky Hernandez and defendants.
Officer Rogers testified that he took the four tape recordings because, 'They had handwritten information on them as to different recordings between parties. I felt that they were--if I played them it might reveal something.' This amounts to no more than speculation. The tapes must be suppressed.
The two paper bags with a drug store label and a cash register receipt were taken because they might have been evidence of purchase of the adhesive tape allegedly used to tie Hernandez at the murder site. This, too, is nothing more than speculation. The bags and cash register receipt must be suppressed.
The motel receipt was seized because, 'I felt there might be information at the motel which would then connect people.' This again is speculation. It would have been proper for Detective Rogers to follow up this lead at the Colony Inn Motel, but without more information he could not legally seize the receipt.
The last item was the panty hose with legs cur off. This is a fairly common way of forming a mask, and there was evidence that Hill or Schnabel or both had worn masks during the robbery and murder. There was sufficient connection to validate seizure of the panty hose.
To recapitulate: All items were lawfully seized, except the rifle, tape recordings, paper bags with cash register receipt, and motel receipt, which must by suppressed.
SCHNABEL'S CONVERSATION WITH HIS WIFE
On December 23, 1970, Schnabel was visited at the jail by a woman known as Bonita or Juanita Schnabel. The visit was conducted in the visiting area of the jail, in a semi-enclosed booth, with Schnabel and his visitor separated by a plate-glass partition. Their conversation, carried on through a telephone installed for that purpose, was electronically monitored and recorded by deputies in the desk sergeant's area.
Although the record is not clear, we assume for this discussion that Schnabel and his visitor were legally married.
Schnabel contends that the recorded conversation was the fruit of his illegal arrest, and must therefore be suppressed. This contention must fail, since his arrest was legal.
Schnabel further argues that electronic monitoring of his conversation violated the privacy guaranteed to all persons by the Fourth Amendment and to spouses by section 980 of the Evidence Code. He may properly raise this question on this appeal taken pursuant to section 1538.5(m) of the Penal Code, since recording a conversation is a seizure cognizable under the Fourth Amendment. (Katz v. United States (1967) 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576, 583.)
North v. Superior Court, supra, 8 Cal.3d 310, 104 Cal.Rptr. 833, 502 P.2d 1305, dealt with this problem. There, recording of a conversation between husband and wife was held to violate the Fourth Amendment [107 Cal.Rptr. 817] because of the peculiar facts of that case, where the conversation took place in a detective's private office under circumstances strongly indicating that Mr. and Mrs. North were lulled into believing their conversation would be confidential. But the court said: 'In view of the general rule that an inmate of a jail or prison has no unreasonable [sic] expectation of privacy, it would follow that an ordinary jailhouse conversation between spouses could not be deemed to have been 'made in confidence,' as required by Evidence Code section 980 to establish the [husband-wife] privilege.' (8 Cal.3d at 311, 104 Cal.Rptr. at 839, 502 P.2d at 1311.) The court further said, 'We emphasize that nothing in our opinion should be deemed a disapproval of the common practice of monitoring inmates' conversations with others, including their spouses, in visiting rooms or similar places.' (8 Cal.3d at 312, 104 Cal.Rptr. at 839, 502 P.2d at 1311.)
Schnabel insists that North v. Superior Court is contrary to the decisions of the United States Supreme Court, particularly citing Katz, wherein it was said that 'the Fourth Amendment protects people--and not simply 'areas'--against unreasonable searches and seizures,' and, 'The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment.' (Katz v. United States, supra, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, 583.) We reiterate what was said in North and a host of other cases: except in unusual circumstances, not present here, no inmate of a jail has any justifiable expectation of privacy. (See Lanza v. New York (1962) 370 U.S. 139, 143, 82 S.Ct. 1218, 8 L.Ed.2d 384, 387-388.)
PHOTOGRAPHIC IDENTIFICATION OF HILL
McElhinney testified that while he was lying on his back with a gun in one eye and a flashlight in the other, he got a brief look at the upper portion of the face of the man holding the gun. On December 22 he was shown seven colored booking photographs by Detective Rogers. Rogers had chosen five 'mug shots' from about sixty or seventy in his desk drawer for their general similarity to the pictures of Hill and Schnabel. He handed them to McElhinney in a stack, with Schnabel's sixth and Hill's last. McElhinney picked Hill's picture out of the stack, stating that the eyes, cheeks, and hairline looked similar to the man who had held the gun on him. At the preliminary hearing on January 15, 1971, McElhinney identified Hill in court. He reaffirmed his identification at the hearing on the motions to suppress, and testified that he was sure he was identifying the man he saw over the gun barrel, not the man in the photograph.
Both defendants contend that the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification (Simmons v. United States (1968) 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247, 1253) and that McElhinney's identification of Hill in court was tainted by the illegal photographic identification some three weeks before, and must therefore be excluded. (Gilbert v. California (1967) 388 U.S. 263, 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178, 1186.)
We do not discuss in detail the argument by which defendants support their position, because defendants may not raise this issue on their appeal from judgments entered on pleas of guilty pursuant to the provisions of section 1538.5(m) of the Penal Code.
The right to appeal a criminal conviction is not guaranteed by the Federal Constitution (Griffin v. Illinois (1956) 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891, 898, 55 A.L.R.2d 1055), nor is it found in the common law. (Witkin, California Criminal Procedure (1963), § 639.) No judgment or order is appealable unless declared so by constitution or statute. (People v. Succop [107 Cal.Rptr. 818] (1966) 65 Cal.2d 483, 486, 55 Cal.Rptr. 397, 421 P.2d 405.) The right to appeal from a conviction entered on a guilty plea is limited to cases where the trial court has issued a certificate of probable cause on application of the defendant, made within 60 days after rendition of the judgment. (Pen.Code, § 1237.5; California Rules of Court, rule 31(d).) There are two exceptions to section 1237.5 and rule 31(d): Compliance is excused where the appeal is based on errors occurring after entry of the plea (People v. Ward (1967) 66 Cal.2d 571, 575, 58 Cal.Rptr. 313, 426 P.2d 881) or where the appellant is seeking review of a contested search and seizure under the provisions of section 1538.5(m). (Moran v. St. John (1968) 267 Cal.App.2d 474, 477-478, 73 Cal.Rptr. 190.)
The question was properly raised in the trial court by the pretrial motions to suppress (People v. Lawrence (1971) 4 Cal.3d 273, 275, fn. 1, 93 Cal.Rptr. 204, 481 P.2d 212, cert. den. 407 U.S. 909, 92 S.Ct. 2431, 32 L.Ed.2d 682), but may not be raised on this appeal, since defendants have not complied with section 1237.5 and are not excused by either of the recognized exceptions thereto.
SCHNABEL'S ALLEGED ADMISSION
The final point raised, by Schnabel only, is based on an alleged admission extracted from him by Officer Smith in violation of his Miranda rights.
When Officer Smith found the roll of bills in Schnabel's pocket while patting him down for weapons at the scene of the arrest, he asked Schnabel where he got the money. Schnabel's answer was, 'Wheeling and dealing.' This flip reply, apparently calculated to convey as little intelligence as possible, increased Officer Smith's suspicions and contributed to his ultimate conclusion that he had probable cause to arrest Schnabel for robbery.
Schnabel contends that Smith's question was intended to elicit and incriminating response, that since he had been deprived of his personal freedom in a significant way (People v. Arnold (1967) 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515) Smith should have advised him of his rights in accordance with Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that absent the warning, his statement may not be used to provide probable cause for arrest, and is not admissible in evidence.
We need not reach this question, since it is not properly before us on this appeal. (Pen.Code, § 1237.5, supra; California Rules of Court, rule 31(d), supra.)
DISPOSITION
Our finding that some of the People's evidence was unlawfully seized and must consequently be suppressed does not necessarily require reversal, notwithstanding defendant' argument that they pleaded guilty because of the illegally-obtained evidence against them, the inference being that if the evidence were suppressed, they would not have pleaded guilty. Their argument ignores the fact that the codefendant, Arthur 'Tudy' Hernandez, was convicted by a jury of first degree murder on June 23, 1971, five months before defendants changed their pleas. It is not too much to surmise that this sobering event had some influence on defendants' decision to plead guilty to second degree murder, particularly in view of the devastating evidence reflecting that these defendants were the individuals who robbed the victim (Smith) and that one of them actually fired the fatal shot.
However, assuming for the sake of argument that defendants' pleas were motivated solely by the refusal of the court to suppress the evidence against them, and that if the evidence had been suppressed they would not under any circumstances have pleaded guilty, the judgment of conviction still stands.
Our decision leaves undisturbed the superior court's rulings as to all the most [107 Cal.Rptr. 819] damaging evidence against defendants: All of McElhinney's testimony, including his identification of defendant Hill; Schnabel's recorded conversation with his wife; all the items seized from defendants at and following their arrest, including the roll of money from Schnabel's pocket; and the guns and wallets found by the roadside the day after their arrest. Although certain of the illegally seized or observed items found at the Bryn Mawr and Colton residences tend to connect defendants with the crime, e. g., the green plastic bags and coverless tape dispenser at Bryn Mawr, the effect of such evidence would be minimal in comparison with the overwhelming effect of the admissible evidence.
Defendants' pleas of guilty, in exchange for which the principal charge was reduced to second degree murder and the robbery and marijuana charges were dismissed, were plainly motivated by their and their attorneys' assessment of the likelihood of conviction of first degree murder if the prosecution's evidence were admitted against them in a trial. (See McMann v. Richardson (1970) 397 U.S. 759, 769-771, 90 S.Ct. 1441, 25 L.Ed.2d 763, 772-773.) It is inconceivable that defendants would have persisted in their pleas of not guilty if the trial court had ordered suppression of those items, and only those items, which we have found to be unlawfully obtained by the police. Accordingly, we find harmless beyond a reasonable doubt the trial court's error in failing to suppress the illegally seized items. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705, 711, 24 A.L.R.3d 1065; Cf. People v. Hicks (1971) 4 Cal.3d 757, 763, 94 Cal.Rptr. 393, 484 P.2d 65; People v. Parra (1973) 30 Cal.App.3d 729, 735-736, 106 Cal.Rptr. 531; People v. Tiner (1970) 11 Cal.App.3d 428, 441-442, 89 Cal.Rptr. 834, disapproved on other grounds in People v. Beagle (1972) 6 Cal.3d 441, 451, 99 Cal.Rptr. 313, 492 P.2d 1.)
The judgment of conviction is affirmed.
GARDNER, P. J., and KAUFMAN, J., concur.
'THE COURT: Yes. Just one question, though. Did you ever see any kind of registration to this car that night of the arrest?
'THE WITNESS: No, sir. I did not.
'. . ..
'BY MR. ARDEN [Deputy District Attorney]:
'Q When you were at that location did you specifically look for a certificate of registration?
'A Yes, I specifically looked for it.
'Q And you of course did find it?
'A That's correct. (Emphasis added.)
That neither the court nor any of the four attorneys at the hearing made any remark at all in response to this amazing about-face indicates it is probably a mistake in transcription or that the reporter misunderstood the testimony. This impression is strengthened by the subsequent cross-examination by Schnabel's attorney, during which Thurlow's answers attorney, during which Thurlow's answers strongly suggest that he did not, in fact, find the registration. Officer Sharp's testimony makes it clear, however, that someone found it.
Comparison of the copious references to the transcript in Schnabel's briefs with the transcript itself makes it clear that his copy is differently paginated from the copy in the record in this court. Apparently two separate transcripts were prepared--one, which Schnabel is now using, for the petitions for prohibition/mandate which we denied (see fn. 1 supra), and the other for this appeal. We have noticed no difference in the two except the pagination.
Paragraph I recites that Hardy was told by Rogers that Smith was brought to Loma Linda Hospital, dead on arrival of a gunshot wound, by McElhinney, Tudy Hernandez and Sparky Hernandez on December 17.
'[II] Affiant was informed by Ronald Telles, Detective, Sheriff's Office, that he had spoken with Arthur Hernandez at the Sheriff's Office and learned the following information: That Arthur Hernandez and Annette Hernandez, also known as Sparky, were at 25978 Juanita Street, Bryn Mawr, in the County of San Bernardino, during the day of December 17, 1970. That he had called Stephen Smith at his home concerning $300.00 owed by Smith to Hernandez and was waiting for Smith to arrive at his residence. That two men arrived, names unknown. The two men tied up Arthur Hernandez with tape and placed him on the bed and had Annette Hernandez sit on the couch, prior to Smith's arrival. Stephen Smith and David McElhinney came to the residence, and were admitted to the house by Annette Hernandez around six o'clock in the evening. He heard a struggle and a shot. Detective Rogers removed a personal telephone director [sic] from the property of Arthur Hernandez, and it contained on the inside cover, 'To the only one I shall ever truly love, God Bless, Love, Sparky, 7-16-70.' It also had the number of Steve Smith, Muscoy 887-3336.'
Paragraph III recites the facts of McElhinney's and Smith's arrival at Juanita Street and Smith's murder, as recounted to Rogers by McElhinney.
Paragraph IV states that McElhinney and the Hernandezes took Smith to the hospital, that Sparky left the car, and that Tudy told McElhinney not to say anything about her or about narcotics deals.
Paragraph V indicates that Mrs. Smith told Ringstad she had been telephoned by Sparky.
Paragraph VI says: (a) Hardy's first visit to 457 H Street on December 18 and his request to the landlady to call if Sparky should come home; (b) the conversation between defendants related in footnote 8, supra; and (c) that Rogers had dialed the telephone number 916-489-2298 and turned the telephone over to defendants, who conversed about personal matters with the female who answered.
Paragraph VII recites the facts of Hardy's entry of 457 H Street on December 20, and his observation of the personal telephone directory, including the name Schnabel with the number 916-489-2298.
'[VIII] Affiant observed in the property of Gerald Schnabel, the name Annette Lerma Hernandez (Tudy and Sparky) 457 'H' Street and 12th, 1-714-825-9627 off Mount Vernon and Valley. This was observed on December 18, 1970. . . .
'[IX] Affiant learned from Deputy Thurlow that he assisted in the arrest of Gerald Schnabel and Charles Hill. Subjects were arrested by Highway Patrol Officers for H & S 11530, and Vehicle Code violation 4463. Deputy Thurlow observed blood on the hand of Gerald Schnabel and recovered $1800.00 from the person of Gerald Schnabel.'
Paragraph X recites certain admissions of defendants, ordered suppressed by the superior court. (See fn. 2 and accompanying text, supra.)