Opinion
KERRIGAN, J.
Charged with possession of marijuana with intent to sell (Health & Saf. Code, § 11530.5), and transportation of marijuana (Health & Saf. Code, § 11531), petitioner, Michael Filitti, pleaded not guilty. His motions to dismiss the information (Pen. Code, § 995) and to suppress evidence (Pen. Code, § 1538.5) were denied. He then sought extraordinary relief in this forum and we issued an alternative writ of mandate. The crucial issue on review is whether the contraband resulted from an illegal search and seizure.
On March 11, 1971, at 12:30 p.m., Laguna Beach Police Officer Saporito was conducting “narcotics surveillance” of a two-block area where Woodland Drive and Victory Walk intersect. He stationed himself on a hillside from which he was able to1 survey residences in the 100-200 blocks of Woodland Drive. He had participated in approximately 100 arrests in [932]*932this area during the preceding 6 months. He had utilized this particular hilltop for surveillance purposes on 4-5 occasions, his specific purpose being to look down on the 2-block area “just to see what he could see.”
He utilized a private access road approximately 100' yards long in reaching the surveillance point. The road was posted as private, and the officer saw the signs. On the day in question, however, Saporito conversed with Mr. Kahan, who alleged he resided on the hillside property. He told Saporito he could remain there.
Saporito stood in a grove of trees on top of the hill, about 25-35 yards above the house at 1188 Victory Walk. The entire hillside was covered with trees and bushes. At the bottom was a fence, 3-5 feet high, completely enclosing the backyard at 1188 Victory Walk, except for a 4-5 foot section where the fence was down. Shrubbery and trees from 2-20 feet high grew along the fence. The officer indicated that the trees and bushes may have been 10-20 feet high because “from that position all you observe is just the tops of that stuff ... You can’t even see the contour of the ground.”
From his towering vantage point, Saporito observed a Karmann Ghia [a foreign sportscar] drive into the area and park next to 1188 Victory Walk. The petitioner Filitti and a male companion, Steven Ollar, exited the car and walked into the yard. His observations at this time were made without the use of binoculars or even the prescription glasses that he normally wears to correct distance vision. Both petitioner and Ollar sat in the backyard, apparently conversing with Connie Fleming and two unidentified males. Ten minutes later, one of the unidentified males walked over near the east fence with Filitti and Ollar, picked up a plastic bag about a foot square, removed contents which Saporito could not then identify, and showed the bag to Filitti and Ollar. At that point, the officer returned to his car and obtained a pair of eight-power binoculars. Using the binoculars, he kept the five occupants of the yard under observation while they remained seated for ten minutes. Then Miss Fleming walked over near the house, kneeled down with her back toward Saporito and “appeared to' be digging or moving her hands.” She stood up and turned around, holding a shoe box and a paper bag. The shoe box was uncovered and appeared to contain a dark-colored unidentifiable object, and a 7" x 10" package wrapped in butcher paper.1 Although Saporito' could not see the contents of the wrapped package, he testified that marijuana is often wrapped in this manner. Miss Fleming and the four males went into the house where they remained for ten minutes.
[933]*933When they came out, petitioner Filitti was carrying a 10-12" brown paper bag. The bag was open and Saporito- saw a blue substance. Petitioner looked from side-to-side as he walked through the gate to the car. He stopped at the driver’s door, looked around, opened the door, and reached into the car. He walked to the back of the car and placed the paper bag in the rear-engine compartment. He closed the hood and sat on it. Ollar, who- had followed Filitti to the car, seated himself in the passenger’s side while Filitti got into the driver’s seat and backed out onto Woodland Drive. Officer Saporito followed and radioed for a patrol vehicle to stop them. Saporito testified he did not intend to arrest Filitti and Ollar, nor did he think he had probable cause to do- so. He stopped them “. . . to conduct an investigation.” Saporito identified himself and rendered a constitutional advisement, although he did not arrest the men at that time. Notwithstanding the occupants’ objections, he searched the engine compartment and found marijuana. He then searched the vehicle’s interior and found more marijuana, a hash pipe, and a roach clip.
Petitioner first contends that the warrantless search of the car was illegal. The general rule is that a motor vehicle may be searched without a warrant so long as the officer has probable cause to believe that the vehicle contains contraband. (People v. Gale, 46 Cal.2d 253, 255 [294 P.2d 13].) To constitute probable cause, a state of facts must be known to the officer that would lead a man of ordinary care and prudence to entertain a strong suspicion that a crime has been committed. (People v. Hillery, 65 Cal.2d 795, 803 [56 Cal.Rptr. 280, 423 P.2d 208].) Saporito’s search of petitioner’s vehicle was based entirely on his observations of the activities in the backyard at 1188 Victory Walk. There he saw petitioner and four other individuals in possession of a plastic bag, a brown paper bag and an open shoe box. The shoe box contained a dark-colored object and a small package wrapped in butcher paper. Saporito admittedly had no idea what was in either the plastic bag or the paper bag, or what the dark object in the shoe box was. He guessed that the butcher-wrapped package was marijuana, but he could not see the contents. All five persons, including petitioner, went into the house together, taking with them the bags and shoe box. Petitioner emerged 10 minutes later carrying a brown paper bag which appeared similar to the bag Saporito had seen earlier in the yard. Again, Saporito could not tell what was in the bag. He caught a brief glimpse of something blue in the bag, but admitted that the color suggested nothing in particular to him. Consequently, Saporito could only speculate as to' what was in the paper bag petitioner carried to his car.
These facts do not support probable cause for a search. The law is clear that there is no probable cause where an officer merely sees an ex[934]*934change of unidentified objects between two or more persons even in a high narcotics area. (Cunha v. Superior Court, 2 Cal.3d 352 [85 Cal. Rptr. 160, 466 P.2d 704]; Renters v. Superior Court, 2 Cal.3d 659 [87 Cal.Rptr. 202, 470 P.2d 11].) In Cunha, two officers who had made numerous narcotics arrests in the immediate area observed two pedestrians who looked around as if to see if anyone was watching; the suspects then appeared to exchange an object for money; the Supreme Court ruled that the ensuing arrest and search were illegal, stating that: “Transactions conducted by pedestrians are not per se illegal, and participants’ apparent concern with privacy does not imply guilt.” (Cunha v.
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Opinion
KERRIGAN, J.
Charged with possession of marijuana with intent to sell (Health & Saf. Code, § 11530.5), and transportation of marijuana (Health & Saf. Code, § 11531), petitioner, Michael Filitti, pleaded not guilty. His motions to dismiss the information (Pen. Code, § 995) and to suppress evidence (Pen. Code, § 1538.5) were denied. He then sought extraordinary relief in this forum and we issued an alternative writ of mandate. The crucial issue on review is whether the contraband resulted from an illegal search and seizure.
On March 11, 1971, at 12:30 p.m., Laguna Beach Police Officer Saporito was conducting “narcotics surveillance” of a two-block area where Woodland Drive and Victory Walk intersect. He stationed himself on a hillside from which he was able to1 survey residences in the 100-200 blocks of Woodland Drive. He had participated in approximately 100 arrests in [932]*932this area during the preceding 6 months. He had utilized this particular hilltop for surveillance purposes on 4-5 occasions, his specific purpose being to look down on the 2-block area “just to see what he could see.”
He utilized a private access road approximately 100' yards long in reaching the surveillance point. The road was posted as private, and the officer saw the signs. On the day in question, however, Saporito conversed with Mr. Kahan, who alleged he resided on the hillside property. He told Saporito he could remain there.
Saporito stood in a grove of trees on top of the hill, about 25-35 yards above the house at 1188 Victory Walk. The entire hillside was covered with trees and bushes. At the bottom was a fence, 3-5 feet high, completely enclosing the backyard at 1188 Victory Walk, except for a 4-5 foot section where the fence was down. Shrubbery and trees from 2-20 feet high grew along the fence. The officer indicated that the trees and bushes may have been 10-20 feet high because “from that position all you observe is just the tops of that stuff ... You can’t even see the contour of the ground.”
From his towering vantage point, Saporito observed a Karmann Ghia [a foreign sportscar] drive into the area and park next to 1188 Victory Walk. The petitioner Filitti and a male companion, Steven Ollar, exited the car and walked into the yard. His observations at this time were made without the use of binoculars or even the prescription glasses that he normally wears to correct distance vision. Both petitioner and Ollar sat in the backyard, apparently conversing with Connie Fleming and two unidentified males. Ten minutes later, one of the unidentified males walked over near the east fence with Filitti and Ollar, picked up a plastic bag about a foot square, removed contents which Saporito could not then identify, and showed the bag to Filitti and Ollar. At that point, the officer returned to his car and obtained a pair of eight-power binoculars. Using the binoculars, he kept the five occupants of the yard under observation while they remained seated for ten minutes. Then Miss Fleming walked over near the house, kneeled down with her back toward Saporito and “appeared to' be digging or moving her hands.” She stood up and turned around, holding a shoe box and a paper bag. The shoe box was uncovered and appeared to contain a dark-colored unidentifiable object, and a 7" x 10" package wrapped in butcher paper.1 Although Saporito' could not see the contents of the wrapped package, he testified that marijuana is often wrapped in this manner. Miss Fleming and the four males went into the house where they remained for ten minutes.
[933]*933When they came out, petitioner Filitti was carrying a 10-12" brown paper bag. The bag was open and Saporito- saw a blue substance. Petitioner looked from side-to-side as he walked through the gate to the car. He stopped at the driver’s door, looked around, opened the door, and reached into the car. He walked to the back of the car and placed the paper bag in the rear-engine compartment. He closed the hood and sat on it. Ollar, who- had followed Filitti to the car, seated himself in the passenger’s side while Filitti got into the driver’s seat and backed out onto Woodland Drive. Officer Saporito followed and radioed for a patrol vehicle to stop them. Saporito testified he did not intend to arrest Filitti and Ollar, nor did he think he had probable cause to do- so. He stopped them “. . . to conduct an investigation.” Saporito identified himself and rendered a constitutional advisement, although he did not arrest the men at that time. Notwithstanding the occupants’ objections, he searched the engine compartment and found marijuana. He then searched the vehicle’s interior and found more marijuana, a hash pipe, and a roach clip.
Petitioner first contends that the warrantless search of the car was illegal. The general rule is that a motor vehicle may be searched without a warrant so long as the officer has probable cause to believe that the vehicle contains contraband. (People v. Gale, 46 Cal.2d 253, 255 [294 P.2d 13].) To constitute probable cause, a state of facts must be known to the officer that would lead a man of ordinary care and prudence to entertain a strong suspicion that a crime has been committed. (People v. Hillery, 65 Cal.2d 795, 803 [56 Cal.Rptr. 280, 423 P.2d 208].) Saporito’s search of petitioner’s vehicle was based entirely on his observations of the activities in the backyard at 1188 Victory Walk. There he saw petitioner and four other individuals in possession of a plastic bag, a brown paper bag and an open shoe box. The shoe box contained a dark-colored object and a small package wrapped in butcher paper. Saporito admittedly had no idea what was in either the plastic bag or the paper bag, or what the dark object in the shoe box was. He guessed that the butcher-wrapped package was marijuana, but he could not see the contents. All five persons, including petitioner, went into the house together, taking with them the bags and shoe box. Petitioner emerged 10 minutes later carrying a brown paper bag which appeared similar to the bag Saporito had seen earlier in the yard. Again, Saporito could not tell what was in the bag. He caught a brief glimpse of something blue in the bag, but admitted that the color suggested nothing in particular to him. Consequently, Saporito could only speculate as to' what was in the paper bag petitioner carried to his car.
These facts do not support probable cause for a search. The law is clear that there is no probable cause where an officer merely sees an ex[934]*934change of unidentified objects between two or more persons even in a high narcotics area. (Cunha v. Superior Court, 2 Cal.3d 352 [85 Cal. Rptr. 160, 466 P.2d 704]; Renters v. Superior Court, 2 Cal.3d 659 [87 Cal.Rptr. 202, 470 P.2d 11].) In Cunha, two officers who had made numerous narcotics arrests in the immediate area observed two pedestrians who looked around as if to see if anyone was watching; the suspects then appeared to exchange an object for money; the Supreme Court ruled that the ensuing arrest and search were illegal, stating that: “Transactions conducted by pedestrians are not per se illegal, and participants’ apparent concern with privacy does not imply guilt.” (Cunha v. Superior Court, supra, p. 357.) In Renters, two officers who also had made numerous arrests in the same area observed a woman offering a tinfoil-wrapped package to a “hippie-type” man; the officers quickly approached the woman and searched her purse; the search was held illegal even though one officer testified he had often seen drugs wrapped in tinfoil in that fashion; the court noted that legitimate food items are often wrapped in tinfoil.
Saporito’s observations included nothing significantly different from the factual situations involved in Cunha and Renters. Even using binoculars, he could not identify the contents of the various bags and packages, nor could he be certain the bag petitioner carried to the car was the same one as was previously seen in the backyard. The prosecution relies heavily on the fact that petitioner placed the paper bag in the rear-engine compartment of his Karmann Ghia. However, Saporito admitted that he had no idea whether the car’s normal storage area was full or whether petitioner’s car had storage capacity under the rear hood for tools or other items. He said he could not tell if the bag petitioner carried contained rags, tools, or even a battery. He specifically stated, “I didn’t know what was in the bag.” Saporito further stated he didn’t think he had probable cause to arrest petitioner when he stopped the car, although the standards for probable cause to search an automobile and probable cause to arrest are identical. (Carroll v. United States, 267 U.S. 132, 161-162 [69 L.Ed. 543, 555, 45 S.Ct 280, 288-289].) Saporito wanted to conduct the search first, to see what the bag really contained, an indication that he had formed no- more than a “hunch” as to- the bag’s contents.
We conclude that Saporito had not observed facts which were so suspicious that a man of ordinary care and prudence would strongly suspect contraband was in the paper bag. Consequently, we need not reach petitioner’s contention that Saporito’s regular and systematic observations from the hilltop constituted an unconstitutional invasion of privacy. (See People v. Edwards, 71 Cal.2d 1096 [80 Cal.Rptr. 633, 458 P.2d 713]; People v. Bradley, 1 Cal.3d 80 [81 Cal.Rptr. 457, 460 P.2d 129]; People [935]*935v. Krivda, 5 Cal.3d 357 [96 Cal.Rptr. 62, 486 P.2d 1262]; and People v. Conley, 21 Cal.App.3d 894 [98 Cal.Rptr. 869].)
Let the peremptory writ issue; the alternative writ is discharged.
Tamura, J., concurred.