People v. Chavers

BIRD, C. J.—Concurring and Dissenting.

I concur in the judgment of my colleague, Justice Richardson. However, I would reach that result by a different route.

I.

Section 1 of the majority opinion contains a discussion of the validity of the warrantless search of the car’s interior. That discussion is basically dictum since appellant failed to challenge this aspect of the police conduct at the motion to suppress in superior court and during the course of this appeal. Thus, the *474issue of whether or not the California Constitution required the officers to obtain a warrant before entering and searching the interior of appellant’s car has not been presented to us for decision.

Indeed, having failed to mention this theory in the superior court, appellant is precluded from raising it for the first time on appeal. (See, e.g., People v. Rogers (1978) 21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048]; People v. Pranke (1970) 12 Cal.App.3d 935, 939-942 [91 Cal.Rptr. 129].) Given this procedural defect, this court, too, is precluded from deciding the issue favorably to appellant, regardless of our views of the theoretical merits. The discussion in section 1 of the majority opinion is, therefore, dictum.

Appellant has challenged only the warrantless entry into the glove compartment. By conceding the validity of the search of the passenger compartment,1 he is arguing that the warrant requirement is stricter with respect to glove box searches than to searches of the open interior. In my view, however, these two searches cannot be separated for purposes of obtaining a warrant. If no warrant is necessary to undertake a full-blown search of the passenger compartment, none should ordinarily be required to search the glove box.

This is so because the factors that may justify dispensing with a warrant for a passenger compartment search will generally apply to a search of a glove box as well. Traditionally, those factors involve the existence of “‘exigent circumstances [which] render[] the obtaining of a warrant an impossible or impractical alternative . . . .’ ” (People v. Cook (1975) 13 Cal.3d 663, 669 [119 Cal.Rptr. 500, 532 P.2d 148].) Among these are considerations relating to the “highly movable nature” of automobiles. (See People v. McKinnon (1972) 7 Cal.3d 899, 908 [103 Cal.Rptr. 897, 500 P.2d 1097].)

Obviously, considerations of mobility will not be different for glove boxes than for passenger compartments. Both are permanently affixed to the same frame. Where one travels, the other must necessarily go. If one is in danger of being moved out of the jurisdiction, the other cannot be deemed to be more secure. And when there are other types of exigencies that operate to excuse police officers from obtaining a warrant prior to searching a car’s passenger compartment, those exigencies will likely be applicable to a glove box search as well.

Since appellant conceded the validity of the warrantless passenger compartment search, despite having both the motive and opportunity to challenge it if illegal, the considerations just discussed would seem to dictate the result in this *475case. Appellant has offered no reason relating to exigency or mobility for treating the warrantless glove box search differently. I would, therefore, uphold it.

I am aware that recent decisions of the United States Supreme Court have proffered an additional reason to justify dispensing with a warrant in some situations where automobiles are to be searched. That court has determined that under the federal Constitution, automobiles are associated with a “diminished expectation of privacy.” (United States v. Chadwick (1977) 433 U.S. 1, 12 [53 L.Ed.2d 538, 549, 97 S.Ct. 2476].)

Analysis of the reasons underlying the Supreme Court’s conclusion might suggest that a warrant should normally be required for searches of glove compartments and trunks. Unlike the passenger compartment, a glove box “is intended as a repository of personal effects,” and its contents “are not open to public view.” (See id., at p. 13 [53 L.Ed.2d at p. 549].) Indeed, in terms of a justifiable expectation of privacy, a glove box is hard to distinguish from a trunk, and in Wimberly v. Superior Court (1976) 16 Cal.3d 557, 567-571 [128 Cal.Rptr. 641, 547 P.2d 417], this court specifically held that there is a “reasonably greater expectation of privacy” in a trunk than in the passenger compartment.2

Nevertheless, I hesitate to import the Chadwick-type reasoning into the California Constitution in every conceivable situation where it might be seen to apply. When courts perform their duty to translate the broad constitutional commands regarding seizures and searches into everyday rules governing police officers in the street, the rules that are fashioned must be clear and *476workable. (See In re Tony C. (1978) 21 Cal.3d 888, 903-904 [148 Cal.Rptr. 366, 582 P.2d 957] (conc. & dis. opn. of Bird, C. J.).) The officer acting in the field must be able to determine, quickly and with some certainty, what it is that the Constitution demands of him or her.

There may well be a strict, logical basis for applying a Chadwick analysis so as to afford the protection of the warrant requirement to glove boxes and trunks but not to the passenger compartments to which they are unalterably attached. (See text accompanying fn. 2, ante.) However, such a fine distinction does not promote the goal of a workable Fourth Amendment. Thus, I would hold under the California Constitution that the rules regarding the need for obtaining a warrant must be the same for all unseverable portions of an automobile.

Of course, this leaves unanswered the question as to what those rules should be. The answer to that question must await a case in which it is squarely posed. As already noted, appellant in the present case merely contends that a warrant is required to search the glove compartment even when not required to search the car’s interior. On this issue, the California Constitution does not and should not agree with him.

II.

The second issue to be decided is whether the warrantless entry into the opaque shaving kit was unlawful, notwithstanding that the police were constitutionally entitled to enter and search the glove compartment without a search warrant. As this court has held, “A warrantless search of closed containers found within an automobile involves considerations separate from those involved in a warrantless search of the interior of the automobile, and it must be justified by some recognized exception to the warrant requirement.” (People v. Dalton (1979) 24 Cal.3d 850, 855-856 [157 Cal.Rptr. 497, 598 P.2d 467].)3 These exceptions generally involve the existence of exigent circumstances which render it impractical to obtain a search warrant.

*477In the present case, the officer had ample probable cause to believe that the shaving kit contained the loaded handgun just used in a robbery. He also was entitled to continue looking amongst the other items in the glove box for the bills taken in the robbery. Under these circumstances, he clearly was entitled to enter the thin plastic shaving kit and secure the weapon to ensure that it did not accidentally discharge while he was carrying out his duties. Obtaining a warrant was impractical, and hence compliance with the warrant requirement was excused. We need go no further in upholding the warrantless search of the shaving kit.

However, the majority opinion takes a more circuitous route to reach this straightforward result. It appears to hold that because the officer “discovered” the shaving kit’s entire contents “inadvertently”4 through his sense of touch, those contents were “in plain view” for constitutional purposes. (Maj. opn., ante, at pp. 470-473.) Rather than being entitled to the protection of the “closed container” cases, the contents could be seized in accordance with the principle that evidence of a crime discovered in plain view during the course of an otherwise lawful search may usually be seized without a warrant.5 If this is the holding, it is problematic.

There can be no serious quarrel with the proposition that information obtained through a police officer’s sense of touch may be relied upon in determining probable cause to search. But absent exigent circumstances, our state and federal Constitutions require more than the existence of probable cause to justify an intrusion into a closed container. To ensure accuracy in the probable cause determination, they also demand that an impartial magistrate, rather than a police officer, make the decision as to whether or not the facts known to the police amount to probable cause. (See, e.g., United States v. Chadwick, supra, *478433 U.S. at p. 9 [53 L.Ed.2d at p. 547], See also Coolidge v. New Hampshire (1971) 403 U.S. 443, 449-453 [29 L.Ed.2d 564, 572-575, 91 S.Ct. 2022].)

This carefully crafted constitutional framework is entirely circumvented by the majority opinion’s conclusion that the officer’s inadvertent tactile discovery of the entire contents of the shaving kit amounted to a discovery of evidence “in plain view.” It allows the police rather than a neutral magistrate to determine when the contents of a closed container may be exposed and seized.

This is not a sound extension of “plain view” principles. The “inadvertent” tactile sensations in this case could have been produced by a harmless starter pistol, a well-made toy, or a small electric drill. Perhaps, given hindsight and factors other than the officer’s tactile perceptions, these alternative possibilities may seem remote. However, the fact remains that the tactile information by itself was open to interpretation in ways that a true “plain view" would not have been. Moreover, “[n]o amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’” (Coolidge v. New Hampshire, supra, 403 U.S. at p. 468 [29 L.Ed.2d at p. 584]. See also id., at p. 451 [29 L.Ed.2d at p. 574.) Thus, the fact that the contents of the shaving kit were “inadvertently discovered” by sense of touch should not by itself have rendered a magistrate’s neutral judgment superfluous.

The Chadwick decision itself shows that the majority opinion’s “plain view” analogy cannot be applied to this case, even under federal law. In Chadwick, officers seized and searched without a warrant a locked footlocker which had been shipped to Boston by a man who matched a drug-trafficker profile. Prior to the search, the police knew from “plain view” observations that (1) the footlocker was leaking talcum powder, a substance often used to mask the odor of marijuana, and (2) a trained police dog had signalled the presence of marijuana in the footlocker.6 (433 U.S. at pp. 3-4 [53 L.Ed.2d at p. 543].)

In light of these “plain view” perceptions, it was a virtual certainty that the footlocker contained contraband. (See 433 U.S. at p. 15 [53 L.Ed.2d at p. 551].) Surely, the officers’ “plain view” perceptions in Chadwick led to an inference about the footlocker’s contents that was no less certain than the inference to be drawn from “plain touch” as to the contents of appellant’s shaving kit. Nevertheless, the Supreme Court in Chadwick held that a warrant was required to enter into and search the footlocker. Today’s case cannot be meaningfully distinguished from Chadwick on the basis of what is deemed to be “in plain view.”

*479It is critical to remember that appellant did not rely solely on the privacy of the glove box in his attempt to protect his property. By placing the pistol inside the opaque shaving kit, closing the kit, and only then placing the kit inside the glove box, appellant demonstrated a justifiable expectation of privacy beyond that which would have existed if the property had been left “exposed” to intruders into the glove box. His extra efforts may not have brought him within the scope of the warrant requirement for other reasons which I have noted. But to hold that the pistol was effectively “in plain view” inside the glove box is to lose sight of the essential facts of this case.

III.

In sum, I agree with my colleagues that the trial court properly denied appellant’s motion to suppress the gun and shaving kit. I do so without reaching the question of whether a warrant might have been necessary to enter and search the passenger compartment of the automobile in which appellant was riding. That issue has not been presented to this court. The trial court properly denied the suppression motion for other reasons.

Appellant’s petition for a rehearing was denied March 23, 1983.

Appellant clearly had a motive to challenge the search of the passenger compartment if he thought it illegal, since it resulted in the discovery and seizure of incriminatory evidence from beneath the front seat.

I thus confess to being perplexed by the majority opinion’s conclusion that Wimberly contains “the controlling principles” for rejecting appellant’s arguments in the present case. (See maj. opn., ante, at p. 469.) Wimberly held that probable cause to search the passenger compartment of a car is not necessarily sufficient to justify the search of the car’s trunk. (16 Cal.3d at p. 568.) The question whether a search warrant might be required to justify a trunk search (or a glove box search) was not raised in Wimberly, and this court did not mention it, let alone set forth a “controlling principle.” “Cases are not authority for propositions not considered.” (In re Tartar (1959) 52 Cal.2d 250, 258 [339 P.2d 553].)

Today’s majority opinion also seeks support for its conclusion from language in People v. Gregg (1974) 43 Cal.App.3d 137 [117 Cal.Rptr. 496] which this court quoted with approval in Wimberly. (See 16 Cal.3d at p. 572.) But the Gregg language regarding glove compartments was remote dictum, as no issue relating to a glove box search was raised by the parties or presented by the facts of that case. Clearly, Wimberly did not elevate the Gregg language to a higher status, since Wimberly likewise did not involve a search of a glove box and did not consider the possible need for a warrant.

Even in light of such extraordinary use of precedent, the majority opinion’s treatment of People v. Jochen (1975) 46 Cal.App.3d 243 [119 Cal.Rptr. 914] is surprising. Jochen did involve a glove compartment search. The Court of Appeal squarely held the searches of a trunk and a glove box to be unlawful for lack of a warrant. Moreover, Jochen was cited with approval on this point by Wimberly. (16 Cal.3d at p. 568.) Notwithstanding, today’s majority opinion disapproves Jochen on the basis of Wimberly and the Gregg dictum. (Maj. opn., ante, at pp. 470-471.)

Unlike a rule that would differentiate between distinct but unseverable portions of a car for purposes of the warrant requirement, this rule seems workable. A closed container may readily be removed from an automobile. Moreover, it is a “common repository for one’s personal effects, and therefore is inevitably associated with the expectation of privacy.” (See Arkansas v. Sanders (1979) 442 U.S. 753, 762 [61 L.Ed.2d 235, 99 S.Ct. 2586].) Indeed, the justifiable expectation of privacy in closed containers is “substantially greater than in an automobile.” (United States v. Chadwick, supra, 433 U.S. at p. 13 [53 L.Ed.2d at p. 549]. See also People v. Dalton, supra, 24 Cal.3d at pp. 855-856.) As a result, a warrant is normally required to search closed containers, unless exigent circumstances make obtaining a warrant impractical. (Ibid.)

Consequently, police officers understand that closed containers generally are covered by the warrant requirement. No confusion is caused by requiring officers to apply this same rule to a closed container wherever found, even it if happens to be located in an automobile. (But cf. United States v. Ross (1982) 456 U.S. 798 [72 L.Ed.2d 572, 102 S.Ct. 2157].)

The majority opinion’s repeated references to the “inadvertent” nature of the officer’s tactile discovery indicate that the concept is important to today’s decision. However, it is difficult to describe the discovery of the handgun as truly “inadvertent,” since the officer was searching the glove box for the precise purpose of locating the pistol which he “discovered” in the shaving kit. What the majority opinion means by “inadvertent” is, I believe, “without tactile probing, examination, or manipulation.” Resorting to such manipulations would amount to a search. (See, e.g., Leake v. Commonwealth (1980) 220 Va. 937 [265 S.E.2d 701]; Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].)

The difference in analysis between myself and the majority opinion is more than just an academic exercise. Under the majority opinion’s reasoning, the nature of the contents of a closed container is unimportant. Once a police officer is able to deduce those contents from “inadvertent plain feel,” he or she is permitted to make a warrantless entry into the container. The contents of an opaque toiletries kit would be “in plain view”—and hence warrantless entry into the kit would be permitted—regardless of whether it was believed to contain a gun, a checkbook, or a birth control device.

An approach which would be more sensitive to constitutional privacy rights would permit warrantless entries based on the dangerous nature of the item reasonably believed to be inside the container and on the attendant need, if any, for immediate action to prevent serious injury or death.

This court has recently held that such activities of a trained detector dog fall within the “plain view” rubric. (People v. Maxberry (1982) 31 Cal.3d 335. 340-342 [182 Cal.Rptr. 617, 644 P.2d 810].)