Summary
In People v. Krivda(Cal.App.) 91 Cal.Rptr. 219, cited by appellant in oral argument, the facts not only are distinguishable but our Supreme Court has granted a hearing.
Summary of this case from People v. LeighterOpinion
Cr. 18140
11-16-1970
The PEOPLE of the State of California, Plaintiff and Appellant, v. Judith KRIVDA and Roger T. Minor, Defendants and Respondents.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood and Daniel L. Lieberman, Deputy Dist. Attys., for appellant. Sam Bubrick, Los Angeles, for respondents.
The PEOPLE of the State of California, Plaintiff and Appellant,
v.
Judith KRIVDA and Roger T. Minor, Defendants and Respondents.
Nov. 16, 1970.
Hearing Granted Jan. 14, 1971.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood and Daniel L. Lieberman, Deputy Dist. Attys., for appellant.
Sam Bubrick, Los Angeles, for respondents.
LILLIE, Acting Associate Justice.
On September 8, 1968, defendants were charged with violation of section 11530, Health and Safety Code. Thereafter trial of the cause was continued because of the pendency on appeal of people v. Edward, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, decided September 24, 1969. On October 24, 1969, defendants' motion under section 1538.5, Penal Code, was argued and denied. On December 12, 1969, the cause was called for trial setting at which time defendants moved 'to reopen' their motion under section 1538.5, Penal Code. The trial judge granted both motions and dismissed the case under section 1238, subdivision 8, Penal Code. The People appeal from the order.
On July 1, 1968, Officer Gates received a telephone call from an anonymous informant who told him that 'Roger' and 'Judy' and a Lesbian named 'Frankie,' residing at 1901 Nolden, Los Angeles, were engaged in sex and narcotic activities and were injecting Judy's two children with methedrine. Thereafter Officers Gates and Marsden located the premises, observed two young female children in front and ran a utility check which showed that Judy Krivda paid the utilities there; investigation also showed that Edward Krivda, whose wife was named Judy, had previously been arrested for narcotic activity. Around 11 a. m. on July 9, 1968, the officers returned to the address and saw several trash barrels in front on the parkway adjacent to the sidewalk; they also observed the refuse collectors approaching and stopped them about half a block west, identified themselves and requested them to empty the well of their trash truck and pick up the trash in the cans in front of 1901 Nolden. The residence there is a single family dwelling and the trash barrels were directly in front of 1901 Nolden in the parkway in front of the house adjacent to the sidewalk. The officers watched the men empty the well of their truck, drive to the front of the premises and empty the trash barrels; one block north they examined the contents of the well and found five paper sacks containing miscellaneous marijuana debris and marijuana seeds in one of which were also four to six partially burned marijuana cigarettes and an envelope bearing the name Edward Krivda, 1901 Nolden, a white lined piece of paper on which was a handwritten letter with the name 'Frankie' mentioned in it dated Saturday, 13th, signed by Al, and a three by five card dated Wednesday, 6-26, bearing the names of Roger and Judy. The officers took a position of vantage and watched the premises; they observed Roger Minor come out of the address, pick up the trash barrels and carry them to the front porch of the house; they then approached the premises, effected entry, discovered defendants in the residence and recovered contraband and paraphernalia.
There is merit to appellant's first point that the superior court should not have reheard the 1538.5 motion after denying the same in October 1969. Once a trial court has entertained a motion under section 1538.5, Penal Code, before trial and denied the same, defendants' only remedy is to seek a writ of mandate or prohibition from the appellate court (§ 1538.5(i), Pen. Code) and, if unsuccessful therein, after conviction, a review on appeal from the judgment. (Thompson v. Superior Court, 262 Cal.App.2d 98, 106-107, 68 Cal.Rptr. 530.) Prior to trial the court does not have jurisdiction to hear a second motion under section 1538.5, Penal Code, or rehear the first and thereby permit relitigation of the issue of search and seizure. (§ 1538.5, Pen.Code; People v. O'Brien, 71 Cal.2d 394, 402-403, 79 Cal.Rptr. 313, 456 P.2d 969; People v. Superior Court, 10 Cal.App.3d 477, 480, 89 Cal.Rptr. 223.) However, inasmuch as the matter is now before us and in the interest of economy of court time, we proceed to the merits.
At the outset it should be noted that the events herein took place in July 1968, and People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, upon which the trial court placed reliance, was decided September 24, 1969. In the light of the discussion in People v. Edwards, 71 Cal.2d 1096, pp. 1107-1109, 80 Cal.Rptr. 633, 458 P.2d 713, relative to criteria guiding resolution of the question of retroactivity and the holding therein that the rule of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, be given prospective application, we conclude that the criteria mentioned in support thereof also strongly supports prospectivity for People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713. In any event, for other reasons hereinafter discussed we conclude that People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, dose not support the order herein.
Relying on the following in People v. Bradley, 1 Cal.3d 80, at page 84, 81 Cal.Rptr. 457, at page 459, 460 P.2d 129, at page 131, the People argue that the doctrine of People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, regarding a defendant's reasonable expectancy of privacy is not the only test applicable to claims of unreasonable search and seizure: 'A number of cases in upholding searches in open fields or grounds around a house have stated their conclusions in terms of whether the place was a 'constitutionally protected area,' (See, e. g., cases cited in People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713). That phrase, however, does not afford a solution to every case involving a claim of an illegal search and seizure (see Katz v. United States, 389 U.S. 347, 350-352, 88 S.Ct. 507, 19 L.Ed.2d 576, 581-582), and we believe that an appropriate test is whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion (People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, and cases cited therein).' (People v. Bradley, 1 Cal.3d 80, 84, 81 Cal.Rptr. 459, 460 P.2d 131.)
There really is no issue before us concerning whether the special protection accorded by the Fourth Amendment to the people in their 'persons, homes, papers, and effects' is extended to the location of the trash barrels for the record shows that while the barrels were sitting in a public place--a parkway adjacent to the sidewalk--and they were observed without committing trespass, the officers at no time touched, inspected or searched the barrels; the examination of the contents of these barrels took place a block away from the premises and then only after the trash collectors had emptied them into the well of their truck. It is true that the trash collectors were under orders of the police to empty the well of their truck and were their agents in doing so but it cannot be denied that they picked up the barrels from the front of defendants' residence and emptied their contents into the truck and drove away all in the ordinary course of their duties as trash collectors and this they would have done had not the officers intervened. In People v. Edwards, 71 Cal.2d 1096, 1104, 80 Cal.Rptr. 633, 458 P.2d 713, the trash can was searched, was within a few feet of the back door to defendants' home and required trespass for its inspection.
As to abandonment, when property has been abandoned by defendant a search of the same does not constitute an unreasonable search, and appropriation thereof an unreasonable seizure. (Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668; Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898; People v. Long, 6 Cal.App.3d 741, 748-749, 86 Cal.Rptr. 227.) In People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, placing marijuana in a trash can 'so situated and used'--two or three feet from the back door of defendants' home and an adjunct to the domestic economy (p. 1104, 80 Cal.Rptr. 633, 458 P.2d 713)--did not constitute an abandonment except as to trashmen. While abandonment appears to have been a consideration of the court in Edwards in determining whether defendants exhibited a reasonable expectation of privacy, the foundational facts differ somewhat from those here involved. In Edwards the trash can, near defendants' back door, was used by them as a secret place of safe keeping 'enough [marijuana] to roll a couple of cigarettes or more' (p. 1099, 80 Cal.Rptr. 634, 458 P.2d 714). It was obvious that defendants in relegating the contraband to the trash can had no intention of abandoning it as trash but of hiding it for future use. Here the marijuana debris--leaves, seeds and partially smoked cigarettes--not of useable quantity, in the paper sacks found among defendants' trash, obviously was not contraband defendants were stashing away for future use but throwing away. That the debris was not placed in the trash can for safe keeping but for discard is a reasonable inference from the fact that the trash barrels were moved by defendants from their premises to a public place for regular pickup by trash collectors. Thus, leaving the barrels and their contents in a public place for removal by trash collectors to their truck, and discarding, among other trash, the marijuana debris in a paper sack that among other things contained papers bearing personal reference to defendants and their address fail to convince us that defendants exhibited an expectation of privacy and if they did that such expectation was reasonable under the circumstances of the case. Certainly they knew that when the collectors came the trash would be dumped into the truck; also reasonably they should have known that even when the trash was commingled if someone saw the contents of the one paper sack, the ownership of that particular piece of trash could be identified by the papers found therein. Under the circumstances of this case we do not think that the well of a trash truck on a public street a block away from defendants' residence constitutes a protected area or that the marijuana debris found therein was not abandoned by defendants; nor does it appear to us that when the trash found its way into the well of the truck any expectation of privacy in regard thereto by defendants is reasonable.
We are confronted with the following in People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, appearing after the court's holding: 'We can readily ascribe many reasons why residents would not want their castaway clothing, letters, medicine bottles or other telltale refuse and trash to be examined by neighbors or others, at least not until the trash had lost its identity and meaning by becoming part of a large conglomeration of trash elsewhere. Half truths leading to rumor and gossip may readily flow from an attempt to 'read' the contents of another's trash.' (P. 1104, 80 Cal.Rptr. 638, 458 P.2d 718.) Here by the time defendants' trash came to rest in the well of the truck it was outside the realm of curious examination by prying eyes of neighbors or others for it was then in the exclusive possession of the trash collectors. Is the householder also entitled to protection from a routine examination by police after the trash becomes the property of the refuse collector? The honest resident neither wants it nor needs it. While it might well be said that the trash collectors in this case were acting as agents of the police in clearing the well of the truck and dumping defendants' trash into the empty well so that it could be more easily identified, they surely were not acting as police agents in picking up defendants' trash in the first instance. As far as defendants knew and ever contemplated, and it is a fact, under ordinary circumstances and in the ordinary course of events without intervention of the police, the trash, as it was, would have been collected and dumped into the well, the only difference, it would have been emptied on top of other trash; as long as the marijuana debris and the identification papers remained together in the sack, even though commingled with other trash, they would not lose their identity and meaning. In any event the trash when and where examined by the officers was beyond the 'rumor and gossip' stage from which Edwards sought to protect the householder.
For any one of the foregoing reasons, the order is reversed.
THOMPSON, and GUSTAFSON, JJ., concur.