People v. Lilienthal
People v. Lilienthal
Opinion of the Court
On this appeal from a judgment of conviction entered on his plea of guilty, defendant William Lilienthal seeks review of the validity of the seizure of evidence from his person and automobile. A preliminary question that must be decided is whether defendant is entitled to appellate review of the issue. Although we conclude that the appeal lies under Penal Code section 1538.5, subdivision (m),
Defendant was charged by complaint with unlawful possession of cocaine for sale (Health & Saf. Code, § 11351), unlawful possession of hashish (Health & Saf. Code, § 11357, subd. (a)), unlawful possession of amphetamines (Health & Saf. Code, § 11377), and driving at an unsafe speed (Veh. Code, § 22350). Pursuant to section 1538.5, subdivision (f), he moved at the preliminary hearing to suppress evidence seized from his person and automobile.
Defendant appeals from the judgment pursuant to section 1538.5, subdivision (m), raising only the search and seizure issue.
Under subdivision (m), it is sufficient that a motion to suppress be made “at some stage of the proceedings.” Defendant did so at the preliminary hearing. The People, however, assert that this statute should not be interpreted to allow a defendant to bypass the superior court. We agree that it should be interpreted to require that the matter be raised in the superior court to preserve the point for review on appeal, for it would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention.
It bears emphasis that the authorization in subdivision (m) of appellate review of the denial of a section 995 motion contesting the validity of a search or seizure does not authorize appellate review after a guilty plea of rulings on section 995 motions made on other grounds. Moreover, if there is substantial legally obtained evidence to support the information, the superior court’s order denying a section 995 motion will be correct even if there was error in admitting illegally obtained evidence at the preliminary hearing. (See People v. Scoma (1969) 71 Cal.2d 332, 335 [78 Cal.Rptr. 491, 455 P.2d 419].) In short, a section 995 motion will be effective to preserve the Fourth Amendment issue on an appeal following a guilty plea only when it appears from the transcript of the preliminary hearing that essential evidence was illegally obtained.
We turn to that issue. The evidence presented at the preliminary hearing reveals that defendant was stopped by San Francisco Police Officer Brookbush for a traffic violation about 3:15 a.m. on September 23, 1976. Defendant stepped out of his car as the officer approached and asked to see his driver’s license.
We first consider defendant’s challenge to the seizure of the folded paper that fell from his wallet. He argues that Officer Brookbush did not have probable cause to believe that it contained contraband. His argument is unpersuasive, for it completely ignores Officer Brookbush’s testimony as to the basis of his suspicion that the paper contained narcotics. Officer Brookbush described the distinctive manner in which the pap r was folded and said that his suspicion that it contained narcotics was based on his experience in making numerous arrests where cocaine or heroin was transported in paper bindles similar to the one dropped by defendant.
Defendant also challenges the validity of the warrantless search of the trunk of his car. He argues that it cannot be justified on the basis of the search condition of his probation because the officers failed to notify him of their intent to search his car.
No persuasive reason appears why a notice requirement should be read into a consent to search condition which contains no such express provision. The condition itself provides general notice to a defendant that he or his belongings may be subjected to warrantless searches. There appears no greater possibility of violence or of violation of innocent third parties’ rights than exists with any other search conducted without the knowledge of the owner of the premises or car. (See People v. Mason, supra, 5 Cal.3d at p. 766.) Moreover, the knock-notice provisions of sections 844 and 1531 apply to searches conducted pursuant to a probation. condition. (See People v. Freund (1975) 48 Cal.App.3d 49, 56-58 [119 Cal.Rptr. 762]; cf. People v. Kanos (1969) 70 Cal.2d 381, 384-385 [92 Cal.Rptr. 614].)
We conclude that the officers were justified in searching defendant’s car trunk pursuant to defendant’s consent to warrantless searches as a condition of his probation. Since the search was justifiable on this ground, it is unnecessary to address defendant’s contention that there was no independent probable cause to search the trunk under Wimberly v. Superior Court, supra, 16 Cal.3d 557.
The judgment is affirmed.
Unless otherwise specified, all statutory references hereafter are to sections of the Penal Code.
Subdivision (f) of section 1538.5 provides: “If the property or evidence relates to a felony offense initiated by a complaint, the motion [to suppress] may be made in the municipal court or justice court at the preliminary hearing.”
This appeal follows our order directing the clerk of the superior court to file defendant’s notice of appeal after defendant sought relief from his unsuccessful attempt
Although there is language in People v. Triggs (1973) 8 Cal.3d 884, 887-888, footnote 2 [ 106 Cal.Rptr. 408, 506 P.2d 232], to support an argument that a motion at the preliminary hearing is alone sufficient to preserve the point for appeal under section 1538.5. subdivision (m). that language was unnecessary to the decision there and is disapproved. In Triggs. the suppression question was entertained in the superior court at the time the case was submitted on the transcript of the preliminary hearing and at the time of the section 995 motion to dismiss the information.
We are not persuaded by the People’s assertion of practical difficulties that will result from a conclusion that a section 995 motion is sufficient to raise the point in the superior court. Such a conclusion does not result in depriving the People of the opportunity to present evidence in support of the reasonableness of the search or seizure; they have that opportunity at the motion to suppress in the preliminary hearing. Nor do we perceive any
Defendant does not contest the validity of the stop or of the request to see his driver’s license.
The officer’s testimony as to his suspicion and the basis for it distinguishes this case from People v. Norman (1975) 14 Cal.3d 929 [123 Cal.Rptr. 109, 538 P.2d 237], where there was no evidence that the tobacco pouch dropped by the defendant was suspected to contain contraband. It also distinguishes this case from Thomas v. Superior Court (1972) 22 Cal.App.3d 972 [99 Cal.Rptr. 647], where there was no evidence concerning the circumstances or prior visual experience, if any, which caused the officer to form the opinion that the hand-rolled cigarette he saw contained marijuana. Defendant’s reliance on People v. Trevino (1977) 72 Cal.App.3d 686 [140 Cal.Rptr. 243], is also misplaced, for there the officer saw only that the defendant took “something” from the passenger seat during a traffic stop and put that “something” in his mouth.
Defendant pleaded guilty to a burglary charge in July 1975. The offense was reduced to a misdemeanor pursuant to section 17, subdivision (b), and defendant was placed on probation for three years. As a condition of probation the court ordered defendant to "submit to warrantless search.”
We interpret the word “submit” in the search condition to mean present agreement or consent to warrantless searches during the probationary period. (See People v. Byrd (1974) 38 Cal.App.3d 941, 949 [113 Cal.Rptr. 777].) It does not imply presence of the defendant or notice to him at the time of the search. (Ibid.: see also People v. Superior Court (Stevens), supra, 12 Cal.3d at pp. 861-862, fn. 3.)
Concurring Opinion
I concur in the result reached in the majority opinion. However, I do not agree with the dictum that a search and seizure issue in a felony case must be litigated in the superior court in order to “preserve the point for review on appeal. . . .”
Since, as the majority concede (ante, at p. 896), a preliminary hearing is a “stage of the proceedings prior to conviction,” a motion to suppress made at that stage is squarely appealable under subdivision (m). However “inappropriate” the members of this court might believe such a procedure to be, the statute has permitted it. As there is no constitutional impediment to the procedure the Legislature has set forth, this court may not ignore the statute.
Since the appellant in the present case did litigate the search and seizure issue in superior court as a Penal Code section 995 motion, the language of the majority opinion on this point is as “unnecessary to the decision” in this case as was the criticized language in People v. Triggs (1973) 8 Cal.3d 884, 887-888. footnote 2 [106 Cal.Rptr. 408, 506 P.2d 232], (See maj. opn., ante, at p. 896. fn. 4.)
Reference
- Full Case Name
- The PEOPLE, Plaintiff and Respondent, v. WILLIAM M. LILIENTHAL, Defendant and Appellant
- Cited By
- 199 cases
- Status
- Published