Wimberly v. Superior Court , 16 Cal. 3d 557 ( 1976 )

CLARK, J., Dissenting.

The majority conclude generally that probable cause to search part of a car does not necessarily justify searching the entire car. They conclude specifically that discovery of a quantity of marijuana “indicative only of personal use” in the interior of a car does not provide probable cause to believe that more marijuana will be found in the trunk. Neither'conclusion is supported by reason or authority.

For their general conclusion, the majority rely on Mozzetti v. Superior Court (1971) 4 Cal.3d 699 [94 Cal.Rptr. 412, 484 P.2d 84]; Mestas v. Superior Court (1972) 7 Cal.3d 537 [102 Cal.Rptr. 729, 498 P.2d 977]; People v. Gregg (1974) 43 Cal.App.3d 137 [117 Cal.Rptr. 496]; and People v. Superior Court (Courie) (1974) 44 Cal.App.3d 207 [118 Cal.Rptr. 586].

Mozzetti and Mesías are inapposite. Mozzetti held that police may observe and inventory items in plain view in an impounded car, but may not, in the absence of probable cause, open and search a suitcase found in the passenger compartment. Mesías followed Mozzetti, suppressing evidence discovered in a routine inventory search of the trunk of an impounded automobile. Had the police discovered evidence or contraband in plain view during their routine inventories of the impounded vehicles, Mozzetti and Mesías would have presented the question whether such a discovery provides probable cause to search closed areas of a vehicle or closed containers within it for additional evidence or contraband. However, as the police made no such discovery in either case, neither Mozzetti nor Mesías casts light on the question presented here.

In reaching the novel conclusion that the discovery of a small amount of marijuana in the passenger compartment of an automobile provides probable cause to search the remainder of the passenger compartment, but not the trunk, Gregg relied entirely on the following cases: People v. Superior Court (Silver) (1970) 8 Cal.App.3d 398 [87 Cal.Rptr. 283]; People v. Spelio (1970) 6 Cal.App.3d 685 [86 Cal.Rptr. 113]; Fraher v. Superior Court (1969) 272 Cal.App.2d 155 [77 Cal.Rptr. 366]; and People v. Schultz (1968) 263 Cal.App.2d 110 [69 Cal.Rptr. 293].

Fraher did not involve an automobile search. An officer looking through the window of a house observed what he believed to be a marijuana pipe. He knocked on the door, entered with permission, observed marijuana debris in the bowl of the pipe, arrested the occupants and searched the house, finding additional narcotics. Upholding the search, the court stated, “The observation of marijuana debris which is insufficient to sustain a conviction is sufficient to constitute reasonable cause to make an arrest and to believe that a larger amount of marijuana may be present in close proximity to the debris.” (272 Cal.App.2d at p. 163.) Perhaps because Fraher was decided prior to Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034], the court did not bother to specify exactly how close the remaining contraband was to either the pipe or the occupants. However, Fraher clearly provides no support for the novel position taken in Gregg.

In Silver, an officer looking through the window of a Volkswagen van observed a hashish pipe in plain view on the back shelf of the vehicle. A search of the van then revealed a bag of hashish within a few feet of the pipe, a bag of marijuana behind the driver’s seat, and narcotic paraphernalia “throughout the vehicle.” Citing Fraher, the court upheld the search, observing, “From the presence of a homemade instrument designed to smoke a contraband narcotic it is logical to infer that the contraband itself may be hidden in close proximity to the smoking device.” (8 Cal.App:3d at p. 402.) As Volkswagen vans do not have trunks, the court obviously had no occasion to consider whether a trunk search would have been justified under the circumstances.

In Schultz and Spelio, officers observed marijuana seeds in plain view in the passenger compartments of the defendants’ automobiles. Searches of the automobiles then revealed more marijuana. In Schultz, the court held “the officer, upon observing a marijuana seed in the automobile in which defendants were riding, had reason to believe other marijuana might be located in the automobile.” (263 Cal.App.2d at p. 114.) In Spelio, the court held “[hjaving seen the marijuana seeds, Officer Clements certainly had probable cause to believe the car contained further contraband.” (6 Cal.App.3d at p. 688.) There is no indication in either case that the search was limited to the passenger compartment, or that the court was of the opinion that it should have been so limited.

Its reliance on prior authority being misplaced, Gregg should be overruled, not followed. Courie adds nothing to Gregg; it merely accepts Greggwithout analysis, distinguishing Gregg on its facts. (44 Cal.App.3d at pp. 211-214.) The majority’s vain attempt to distinguish all of the other cases bearing on this question underscores the fact that the rule announced today is unprecedented in the decisions of this court or the United States Supreme Court.

The majority’s specific conclusion is based on their assumption that a “casual user”¹ of marijuana transporting the contraband by car will keep his entire supply in the passenger compartment. Granted, a court may take judicial notice of facts and propositions that are matters of such common knowledge that they cannot reasonably be the subject of dispute. (Evid. Code, § 452, subd. (g); Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 716 [63 Cal.Rptr. 724, 433 P.2d 732]; People v. Torres (1961) 56 Cal.2d 864, 866 [17 Cal.Rptr. 495, 366 P.2d 823].) And, true, some propositions concerning the drug culture have become matters of such common knowledge that judicial notice may be taken of them. (See, e.g., People v. Torres, supra, 56 Cal.2d at pp. 866-867 (capsules and milk sugar are used in processing narcotics); People v. Hubbard (1970) 9 Cal.App.3d 827, 831 [88 Cal.Rptr. 411] (“reds” is a slang term for Seconal capsules).)

However, the assumption made by the majority is not such a proposition. Rather than it being a matter of common knowledge that a marijuana user keeps his entire supply in the passenger compartment, this assumption is plainly inconsistent with what we know of the behavior patterns of persons transporting contraband. As the majority themselves point out, marijuana being contraband, neither a user nor a dealer transporting it by car will likely leave it in plain view. (Ante, p. 573, fn. 9.) As the majority further point out, there is a greater expectation of privacy toward the trunk than the passenger compartment. (Ante, pp. 566-568.) Therefore, would a person transporting marijuana by car not more likely keep it in the trunk rather than in the passenger compartment? And if he kept some in the passenger compartment to use during the trip, where would he likely stash the remainder? The answers being obvious, I would deny the writ.

McComb, J., concurred.

RICHARDSON, J.

I concur in the judgment. Under the particular facts of this case, the officers lacked probable cause to believe that the trunk of petitioners’ vehicle contained contraband. However, in those cases in which the circumstances tend to support a strong suspicion that the trunk of an automobile may contain contraband, I would permit a reasonable search of the trunk and its contents.

1 This curious coinage remains undefined except insofar as “logic” is said to compel differentiation between “casual use” and “dealing.”, (Ante, p. 572.) Nevertheless, this distinction will henceforth be required of the police officer determining whether probable cause exists for a trunk search.