People v. Edwards , 71 Cal. 2d 1096 ( 1969 )

BURKE, J.

An information was filed charging Robert and Jennifer Edwards with violating Health and Safety Code sections 11530.5 (possession of marijuana for sale) .and 11911 (possession of a restricted dangerous drug for sale). A jury trial was waived, and the case was submitted on the preliminary hearing transcript. The court found defendants guilty on each count. They appeal contending, among other things, that the trial court erred in admitting, over objection, evidence of marijuana found in a.'search of their trash can. We have concluded that the contention is médtorious and that the judgment must be reversed.

The sole witness at the preliminary hearing was Detective Bernie Hern of the Riverside County sheriff’s office, who testified as follows:

Shortly after 9 p.m. on January 13, 1967, Hem contacted Mr. Hansen, who lived next door to defendants, and Hansen reported that about a week before he had seen on defendants’ back porch a large plastic bag containing described packages, one of which was torn and contained a dark green vegetable Substance that appeared similar to alfalfa but did not smell like alfalfa and had a “small funny type seed.”

After discussing this information with other officers, Hern, accompanied by Detective Oden, walked down the railroad tracks behind defendants’ residence and entered into “the open back yard area” of that residence. There the officers observed three trash cans 2 or 3 feet from the back porch door. The officers did not have a search warrant. Inside one of the trash cans they found, among other things, a bag' which contained marijuana — “possibly enough to roll a couple of cigarettes or more” and which had “Other stuff on top of it.”

Hem took the .marijuana back to his office to examine, -it more eárefully. He and other officers then returned to the area of defendants’ house where they conducted a “stake out” from 12:30 a.m. until 4:40 a.m. when Hern, who was driving in his car, saw a vehicle that had been described as belonging to Mr. Edwards pull into the front yard of the house. Hern returned to the other officers and discussed approaching the residence.

Two officers then went to the rear door, and Hern, accompanied by several officers, went to the front door. Hern knocked, and a male voice from the upstairs asked “Who is it?” Hern replied, “Come on down. I want to talk to you.” Defendant Robert Edwards crossed the dining room, approached the front door, and asked “What do you want?” Hern identified himself and stated in a, loud voice ‘ ‘ Open the door. I want to talk to you.” Through the glass portion of the door Hern saw Robert Edwards “hurriedly proceeding” from the living room toward the dining room. The officers then forced open the door and arrested him' in the dining room. Two officers were sent upstairs to “contact Mrs. Edwards and bring her down, ’ ’ and she came down moments later accompanied by the officers. Hern advised them that they were under arrest for “possession- of marijuana, as to the possession of marijuana found in the trash receptacle. ...” He asked, but was not given, permission to search the house. The officers nevertheless conducted a search of the house and in an “upstairs closet” found marijuana inside a duffel bag and L.S.D. and marijuana inside a suitcase. They also discovered marijuana in a sifter in the dining room, L.S.D. in tbe living room, and marijuana in a can on a bathroom shelf. Robert Edwards led the officers to a hole under the house, where additional marijuana was found, and particles (apparently of marijuana) were found .in Edwards’ vehicle. The officers did not have an arrest or search warrant.

Since the search of the trash can was without a warrant the burden was on the prosecution to show proper justification. (People v. Kanos, 70 Cal.2d 381, 384 [74 Cal.Rptr. 902, 450 P.2d 278]; People v. Lara, 67 Cal.2d 365, 373 [62 Cal. Rptr. 586, 432 P.2d 202]; People v. Henry, 65 Cal.2d 842, 845 [56 Cal.Rptr. 485, 423 P.2d 557].) The Attorney General argues that the search was valid because, he asserts, the premises around a house are not protected by the Fourth Amendment of the United States Constitution,¹ made applicable to the states by the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 655-657 [6 L.Ed.2d 1081, 1090-1091, 81 S.Ct. 1684, 84 A.L.R.2d 933]), or article I, section 19, of the California Constitution, which contains an essentially identical guarantee of personal privacy.

As hereafter discussed, a number of cases involving claims of unconstitutional searches or seizures in open fields or grounds around a- house have stated their conclusions in terms of whether the place was a “constitutionally protected area.” That phrase, however, does not serve as a solution in all cases involving such claims, 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. Measured by that test, as we shall see, the search of the trash can was unlawful under the circumstances here appearing.

In Hester v. United States, 265 U.S. 57, 58-59 [68 L.Ed. 898, 899-900, 44 S.Ct. 445], the United States Supreme Court enunciated the “open fields” doctrine. There officers concealed themselves from 50 to 100 yards from the house of Hester’s father and saw Hester leave the house and hand a bottle to one Henderson. When an alarm sounded, Hester and Henderson ran. Hester dropped a jug which broke, and Henderson threw .away the bottle. The officers retrieved the jug and bottle, as well as a broken jar that was thrown from the house, and recognized their contents as moonshine. The opinion states, “It is obvious that even if there had been a trespass, the [officers’] testimony was not obtained by an illegal search or seizure. The defendant’s own acts, and those of his associates, disclosed the jug, the jar and the bottle — and there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned. . . . The only shadow of a ground for bringing up the case is drawn from the hypothesis that the examination of the vessels took place upon Hester’s father’s land. As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in th'éir ‘persons, houses, papers, and effects,* is not extended to the open fields. The distinction between the latter and the house is as old as the common law.” (Italics added.)

The “open fields” doctrine of Hester v. United States, supra, 265 U.S. 57, has been applied by many lower federal court decisions in upholding1 the legality of a search or seizure. (E.g., McDowell v. United States (8th Cir.) 383 F.2d 599, 603 [items seized in fields, separated from the defendant’s farm buildings and about one-fourth to one-half a mile distant therefrom]; Care v. United States (10th Cir.) 231 F.2d 22, 25 [search of cave used as a distillery in a field across a road and more than a block from the defendant’s home]; Koth v. United States (9th Cir.) 16 F.2d 59, 61 [search upon open premises apparently about a quarter of a mile from the house].)

The decisions of the lower federal courts, however, contain conflicting statements as to whether the ground area of the curtilage² is protected by the Fourth Amendment (see Davis, Federal Searches and Seizures (1964) pp. 14-15). Some, relying on Hester v. United States, supra, 265 U.S. 57, have declared that the “grounds” or “enclosed or unenclosed . . . grounds or open fields around . . houses aré not included in the prohibition of the Fourth Amendment.’ ’ (Monnette v. United States (5th Cir.) 299 F.2d 847, 850; Martin v. United States (5th Cir.) 155 F.2d 503, 505; see United States v. Hayden, 140 F.Supp. 429, 435 ; 79 C.J.S., Searches and Seizures, § 13, pp. 790-791.) Under the foregoing rule it was held that the Fourth Amendment was not .violated by the examination of a jug left on the ground under a car apparently parked by the porch óf a shack belonging to one of the defendants (Martin v. United States, supra) or by the detection of an odor by the porch of- the defendant’s premises (Monnette v. United States, supra).

Other lower federal courts, however, have declared that ‘ ‘ The protection afforded by the Fourth Amendment, insofar as houses are concerned, has never been restricted to the interior of the house, but has extended to open areas immediately adjacent thereto.” (E.g., Wattenburg v. United States (9th Cir.) 388 F.2d 853, 857; see Rosencranz v. United States (1st Cir.) 356 F.2d 310, 313.) Wattenburg, supra, stated (at p. 857), “The differentiation between an immediately adjacent protected area and an unprotected open field has usually been analyzed as a problem of determining the extent of the ‘curti-lage,’ ” and Wattenburg held that a stockpile of trees in the backyard of a motel, not more than 35 feet therefrom, was within the curtilage of the abode of Wattenburg, who resided at the . motel, and therefore protected' by the Fourth Amendment.

Several California decisions, in rejecting claims of unlawful searches and seizures, have stated that ‘ ‘ the premises around a house” or “ Enclosed or unenclosed grounds or open fields’ around a house” are not protected by the Fourth Amendment. (E.g., People v. Shields, 232 Cal.App.2d 716, 719 [43 Cal.Rptr. 188] [evidence found in fenced rear yard, used as auto wrecking yard, on premises where the defendant’s house was located]; People v. Jackson, 198 Cal.App.2d 698, 701-702 [18 Cal.Rptr. 214] [bag containing marijuana found among garbage in trash pile on far side of chicken coop behind the defendant’s house; according to officer, the trash pile appeared to be a “joint” one apparently of the defendant and his neighbor; the defendant, testified that his neighbor alone used the trash pile].) Shields and Jackson relied in part on cases such as Hester v. United States, supra, 265 U.S. 57, and Martin v. United States, supra, 155 F.2d 503.

Other California cases have emphasized the degree of privacy the defendant enjoyed in the place in question. In People v. Willard, 238 Cal.App.2d 292 [47 Cal.Rptr. 734], an officer entered the side yard of a duplex through an open gate. A sidewalk went from the gate to a side porch that was unroofed; there were no bushes or hedges nearby. The officer stood on the first step of the side porch and looked through a window into the interior of the house where he observed certain matters. Willard concluded that under the circumstances there appearing the officer’s acts did not constitute an unconstitutional invasion of the defendant’s privacy. Willard stated (at p. 302) that under cited authorities looking through a window , does not become an unreasonable search merely because a police officer may be on the defendant’s premises when he makes the observation and (at p. 307) that “the degree of privacy which defendant enjoyed in the place involved is an important factor in determining the reasonableness of the search. ...”

The quoted statement in People v. Willard, supra, 238 Cal.App.2d 292, 307, was relied on by People v. Alexander, 253 Cal.App.2d 691 [61 Cal.Rptr. 814], which held that the Fourth Amendment was not violated by “the search” of the chimney of a barbecue, which was in the backyard of a single-family residence.

The United States Supreme Court has repeatedly recognized that “the security of one’s privacy against arbitrary intrusion by the police” is “at the core of the Fourth Amendment.” (E.g., Berger v. New York, 388 U.S. 41, 53 [18 L.Ed.2d 1040, 1049, 87 S.Ct. 1873]; Schmerber v. California, 384 U.S. 757, 767 [16 L.Ed.2d 908, 917, 86 S.Ct. 1826] ; Wolf v. Colorado, 338 U.S. 25, 27 [93 L.Ed. 1782, 1785, 69 S.Ct. 1359] [overruled on another point in Mapp v. Ohio, supra, 367 U.S. 643].) In Terry v. Ohio, 392 U.S. 1, 9 [20 L.Ed.2d 889, 899, 88 S.Ct. 1868], the court stated, “We have recently held that ‘the Fourth Amendment protects'people not places,’ (Katz v. United States, 389 U.S. 347, 351 [19 L.Ed.2d 576, 582, 88 S.Ct. 507] (1967) and wherever an individual may harbor a reasonable ‘expectation-of privacy,’ id., at p. 361 [19 L.Ed.2d at p. 588] (Mr. Justice HarlaN, concurring), he.is entitled to be free from unreasonable governmental intrusion. ...”

In Katz v. United States, supra, 389 U.S. 347, federal agents,. by means of an electronic device listened to, and recorded, the defendant’s end of a conversation made from a public telephone booth, the door to which apparently had been closed by the defendant. The court held (at p. 353 [19 L.Ed.2d at p. 583]) that “The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment” and that in the absence of prior judicial authorization the search and seizure were unreasonable. The court also noted (389 U.S. at p. 351, fn. 9 [19 L.Ed.2d at p. 581]) that although it had occasionally described its conclusions in terms of “constitutionally protected areas,” it had “never suggested that this concept can serve as a talismanie solution to every Fourth Amendment problem. ’ ’³

Recently we held in People v. Terry, 70 Cal.2d 410, 427-428 [75 Cal.Rptr. 199, 450 P.2d 591], that the defendant’s constitutionally protected right of privacy was not violated when officers entered an apartment house garage, used in common by tenants of the apartment building, and saw in plain sight marijuana on an open ashtray inside the defendant’s car. We pointed out that the Fourth Amendment prohibits unreasonable searches and seizures, not trespasses, and that, even if the officers’ entry into the garage was a technical trespass, there was no violation of- the Fourth Amendment.

In the light of the above authorities, we are satisfied that the search of the trash can was unlawful. As we have seen, the trash can' was within a few feet of the back door of defendants’ home and required trespass for its inspection. It was an adjunct to the domestic economy. (See Work v. United States, 243 F.2d 660, 662 [100 App.D.C. 237].) Placing the marijuana in the trash can, so situated and used, was not an abandonment unless as to persons authorized to remove the receptacle’s contents; such as trashmen. (See Work v. United States, supra, at pp. 662-663.) The marijuana itself was not visible without “rummaging” in the receptacle. So far as appears defendants alone resided at the house. In the light of the combined facts and circumstances it appears that defendants exhibited an expectation of privacy, and we believe that expectation was reasonable under the circumstances of the case. 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.

It is also clear that defendants’ reasonable expectation of privacy was violated by unreasonable governmental intrusion. The United States Supreme Court repeatedly “has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes [citation], and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment . . . —subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States, supra, 389 U.S. 347, 357 [19 L.Ed.2d 576, 585, 88 S.Ct. 507].) In the instant ease it does not appear that any of the exceptions apply to the search of the trash can. Accordingly, that search was unlawful under the Fourth Amendment of the federal Constitution. It similarly violated article I, section 19, of the California Constitution. The trial court thus erred in admitting the evidence found in the trash can.

People v. Bly, 191 Cal.App.2d 352, 354 [12 Cal.Rptr. 542], is disapproved to the extent that it is inconsistent with the views expressed herein.

Should the marijuana and L.S.D. found on the premises and in the vehicle following the arrests also have been excluded as the “fruit” of the prior illegal search?⁴ The exclusionary prohibition, of course, extends to the indirect as well as the direct products of an illegal search. (Wong Sun v. United States, 371 U.S. 471, 484 [9 L.Ed.2d 441, 453, 83 S.Ct. 407]; Silverthorne Lbr. Co. v. United States, 251 U.S. 385 [64 L.Ed. 319, 40 S.Ct. 182, 24 A.L.R. 1426].) The test for determining the reach of the

“fruits” doctrine is that set forth in Wong Sun v. United States, supra, at pages 487-488 [9 L.Ed.2d at p. 455, 83 S.Ct. 407], wherein the court stated, “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the morfe apt question in such a case is ‘whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221. ...” (See also United States v. Wade, 388 U.S. 218, 241 [18 L.Ed.2d 1149, 1165, 87 S.Ct. 1926] ; People v. Terry, 70 Cal.2d 410, 427-428 [75 Cal.Rptr. 199, 450 P.2d 591]; People v. Kanos, supra, 70 Cal.2d 381, 385-386; People v. Bilderbach, 62 Cal.2d 757, 766 [44 Cal.Rptr. 313, 401 P.2d 921] ; Robert Pitner, Fruit of the Poisonous Tree, 56 Cal.L.Rev. 579, 588 et seq.)

Here, independent of the evidence found in the search of the trash can, the officers had the information reported by Hansen, a “private citizen” informer (see, e.g., People v. Guidry, 262 Cal.App.2d 495, 497-498 [68 Cal.Rptr. 794]). The evidence obtained by the search of the trash can was highly incriminating to defendants and corroborated Hansen’s report. Whether on the basis of Hansen’s report alone the officers would have gone to defendants’ home, conducted the lengthy stakeout, and then after observing defendant Robert Edwards move hurriedly away from them following Hern’s conversation with him, made one or both of the arrests and subsequent discovery of the marijuana and L.S.D. is a matter of speculation on the present record.⁵ Thus even if it be assumed that there was probable cause for the arrest of one or both of the defendants apart from the evidence found in the' search of the trash can, the prosecution has failed to establish that the evidence found after the arrests was not ‘ ‘ come at by exploitation of ’ ’ the prior illegal search, and the evidence should therefore have been excluded. (See, e.g., Somer v. United States, 138 F.2d 790, 791; United States v. Paroutian, 299 F.2d 486, 488-490; People v. Stoner, 65 Cal.2d 595, 602-603, fn. 3 [55 Cal.Rptr. 897, 422 P.2d 585] ; R. McGuire, Mow to Unpoison the Fruit — The Fourth Amendment and the Exclusionary Rule, 55 J. Crim. L., C. & P.S. 307, 315.)

In the absence of the improperly admitted evidence there is insufficient proof to sustain the convictions. We must therefore reverse the judgment.

It does not follow from this decision, however, that the evidence obtained after the arrests is inevitably inadmissible. Upon a retrial the prosecution may be able to establish that the evidence in question is not the “fruit” of the prior illegal search and that defendants were arrested upon probable cause apart from the evidence found in the trash can.

If the prosecution is successful in establishing the above matters, additional questions will arise, including, among others, whether the search that followed the arrests violated the principles set forth in Chimel v. California, 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034], Chimel declared (395 U.S. at p. 763 [23 L.Ed.2d at p. 694]) that the permissible scope under the Fourth Amendment of a search incident to an arrest is “the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching rooms other than that in which an arrest occurs — or, for that matter, for searching .through all the desk drawers or other closed or concealed areas in that room itself. ’ ’ Chimel overruled Harris v. United States, 331 U.S. 145 [91 L.Ed. 1399, 67 S.Ct. 1098], and United States v. Rabinowitz, 339 U.S. 56 [94 L.Ed. 653, 70 S.Ct. 430], each of which had upheld as incident to an arrest a search that extended beyond the scope that is permissible under Chimel.⁶ Numerous California decisions have been in accord with Harris and Rabinowitz. (E.g., People v. Chimel, 68 Cal.2d 436 [67 Cal.Rptr. 421, 439 P.2d 333] [vac. 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034]]; People v. Cockrell, 63 Cal.2d 659, 667 [47 Cal.Rptr. 788, 408 P.2d 116] [cert.den. 389 U.S. 1006 [19 L.Ed.2d 604, 88 S.Ct. 568] ]; People v. Rogers, 270 Cal.App.2d 705 [75 Cal.Rptr. 919]; People v. Adame, 250 Cal.App.2d 380, 384-385 [58 Cal.Rptr. 687]; see People v. Cruz, 61 Cal.2d 861, 865-866 [40 CalRptr. 841, 395 P.2d 889].)

Here the Attorney General correctly concedes that the search following defendants’ arrests exceeded the scope held to be permissible in Chimel, and the question thus arises whether Chimel applies to cases that are not final before the date of that decision (June 23,1969) or only to cases in which the search took place after that date.

Chimel did not decide the question of retroactivity, nor did its companion eases (Von Cleef v. New Jersey, 395 U.S. 814 [23 L.Ed.2d 728, 89 S.Ct. 2051], and Shipley v. California, 395 U.S. 818 [23 L.Ed.2d 732, 89 S.Ct. 2053]). Two California cases have concluded that Chimel applies only to cases in which the search took place after June 23, 1969 (People v. Castillo, 274 Cal.App,2d 508 512-513 [80 Cal.Rptr. 211]; People v. Foster, 274 Cal.App.2d 778, 780, fn. 1 [79 Cal.Rptr. 397]), and for the reasons hereafter stated we. agree with that conclusion.

The criteria guiding resolution of the question of retroactivity “implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (e) the effect on the administration, of justice of a retroactive application of the new standards.” (Stovall v. Denno, 388 U.S. 293, 297 [18 L.Ed.2d 1199, 1203, 87 S.Ct. 1967] ; Johnson v. New Jersey, 384 U.S. 719, 727 [16 L.Ed.2d 882, 888, 86 S.Ct. 1772]; Tehan v. Shott, 382 U.S. 406, 413 et seq. [15 L.Ed.2d 453, 458, 86 S.Ct. 459]; Linkletter v. Walker, 381 U.S. 618, 638 [14 L.Ed.2d 601, 613, 85 S.Ct. 1731] ; People v. Feggans, 67 Cal.2d 444, 448 [62 Cal.Rptr. 419, 432 P.2d 21]; In re Gaines, 63 Cal.2d 234, 238-240 [45 Cal.Rptr. 865, 404 P.2d 473].)

The first of the foregoing criteria strongly supports prospectivity for Chimel. (Cf. Desist v. United States, 394 U.S. 244, 249-250 [22 L.Ed.2d 248, 255-256, 89 S.Ct. 1030, 1048] [plurality opinion] ; People v. Mabry, ante, pp. 430, 442 [78 Cal.Rptr. 655, 455 P.2d 759] [which adopted the Desist rule].) The plurality opinion in Desist, which determined that the new rule set forth in Katz v. United States, 389 U.S. 347 [19 L.Ed.2d 576, 88 S.Ct. 507] (i.e., that every electronic surveillance upon private conversations is a search or seizure) applies only to cases in which the prosecution seeks to introduce the fruits of such surveillance conducted after the date of Katz, pointed out that the purpose of the rule requiring the exclusion of evidence obtained by an unlawful search or seizure is to deter illegal police action, that this purpose would not be advanced by making the new rule retrospective, that the police misconduct had already occurred and would not be corrected by releasing the prisoners involved, and that the exclusionary rule is but a procedural rule that has no bearing upon guilt or the fairness of the trial. (See also Linkletter v. Walker, supra, 381 U.S. 618, 636-638 [14 L.Ed.2d 601, 612-613, 85 S.Ct. 1731].)

Desist v. United States, supra, 394 U.S. 244, further concluded that the other two criteria (reliance of law enforcement officials on the prior rule and the burden on the administration of justice that would flow from a retroactive application) likewise militated in favor of prospective application of the new rule there involved. The same is true here.

All the reasons for making Chimel prospective lead to our concluding that there should be no distinction between final judgments and those not yet final and that Chimel is to apply only to cases in which the search was conducted after the date of that decision. As stated in the plurality opinion in Desist v. United States, supra, 394 U.S. 244, 253 [22 L.Ed.2d 248, 257, 89 S.Ct. 1030, 1048, “Both the deterrent purpose of the exclusionary rule and the reliance of law enforcement officers focus upon the time of the search, not any subsequent point in the prosecution, as the relevant date. Exclusion of . . . evidence seized before [the decision announcing the new rule] would increase the burden on the administration of justice, would overturn convictions based on fair reliance upon [the prior] decisions, and would not serve to deter similar searches and seizures in the future. ’ ’

In arguing that Chimel applies to cases not final before the date of that decision, defendants cite People v. De Santiago, ante, p. 18 [76 Cal.Rptr. 809, 453 P.2d 353], There we applied People v. Gastelo, 67 Cal.2d 586 [63 Cal.Rptr. 10, 432 P.2d 706] (which held that the mere fact that the case involved easily disposable evidence did not excuse compliance with.the notice requirements of Penal Code section 1531 and which overruled cases to the contrary) in a case involving the substantially identical notice requirements of Penal Code section 844 where the officers’ conduct had occurred before the decision in Gástelo. We held in De Santiago that the rule announced in Gástelo represented such a substantial change in the former rule as to excuse the defendant’s failure to make an objection anticipating that decision. We did not, however, in De Santiago discuss the question of retroactivity, and De Santiago was decided after this court without discussion had regarded Gástelo as applicable to cases on appeal. (People v. Rosales, 68 Cal.2d 299, 305 [66 Cal.Rptr. 1, 437 P.2d 489].)⁷ Here, however, “the possibility of applying [Chimel] only prospectively is yet an open issue.” (Cf. Desist v. United States, supra, 394 U.S. 244 [plurality opinion]; Johnson v. New Jersey, supra, 384 U.S. 719 [relating to rules in Escobedo v. Illinois, 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and Miranda v. Arizona, 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]].)

Defendants also cite People v. Kitchens, 46 Cal.2d 260 [294 P.2d 17], to support their claim that Chimel applies retroactively to cases on appeal. Kitchens applied the new exclusionary rule of People v. Cohan, 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513], to a case tried before Cohan. Kitchens, however, did not discuss the question of retroactivity and in our more recent eases under appropriate circumstances we have selected the date of the prohibited practice (People v. Mabry, supra, ante, pp. 430, 442 [rule in Katz v. United States, supra, 389 U.S. 347]; People v. Feggans, supra, 67 Cal.2d 444, 448 [rule in United States v. Wade, 388 U.S, 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926], and Gilbert v. California, 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951]]); or the date, the trial was commenced (People v. Rollins, 65 Cal.2d 681 [56 Cal.Rptr. 293, 423 P.2d 221] [rule in Miranda v. Arizona, supra, 384 U.S. 436]) to determine the applicability of a new rule. Defendants also point to decisions in which this court has applied the new rule there involved to cases that were not final before the decision announcing that rule (People v. Rollins, supra [rule in Escobedo v. Illinois, supra, 378 U.S. 478]; People v. Charles, 66 Cal.2d 330 [57 Cal.Rptr. 745, 425 P.2d 545] [rule in People v. Aranda, 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265]]), but “Each . . . rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably, vary with the. dictate involved.” (Johnson v. New Jersey, supra, 384 U.S. 719, 728 [16 L.Ed.2d 882, 889, 86 S.Ct. 1772].)

An additional question that may arise upon retrial is whether, as argued by defendants on appeal, the arrests were a pretext for.the subsequent search.⁸ Defendants rely upon the settled rule that when it appears that the search and not the arrest was the real object of the officers in entering upon the premises and that the arrest was a pretext for or at most an incident of the search, the search is not reasonable within the meaning of the Constitution. (See People v. Raven, 59 Cal.2d 713, 719 [31 Cal.Rptr. 47, 381 P.2d 927].) The recited facts, however, do not show that this is such a case.

The judgment is reversed.

Traynor, C. J., McComb, J., Tobriner, J., Mosk, J., and Sullivan, J., concurred.

1 The Fourth Amendment provides, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated. . . .”

2 It has been stated that “Whether the place searched is within the curtilage is to he determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the’ dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family.” (McDowell v. United States, supra, 383 F.2d 599, 603; Care v. United States, supra, 231 F.2d 22, 25.) “The word originally -signified the land with the castles and outhouses, inclosed often with high stone walls, and where the old barons sometimes held their court in the open air.” (See 25 C.J.S., Curtilage, p. 82; Davis, Federal Searches and Seizures (1964) p. 11.) The presence of a fence or other boundary has been said to be an important, but not controlling, factor in determining the extent of the curtilage. (See Davis, op. cit, supra, p. 12.)

3 Desist v. United States, 394 U.S. 244, 254 [22 L.Ed.2d 248, 258, 89 S.Ct. 1030, 1048], held that “Katz is to he applied only to eases in which the prosecution seeks to introduce the fruits of electronic surveillance conducted after December 18, 1967.” However, the rule that had emerged from decisions before Katz and that was applied there in the context of electronic surveillance, of course, remains applicable in other contexts irrespective of the date of the events in question.

4 An objection based on “the fruits of the poisonous tree” doctrine rvas made in the trial court.

5 The matter was not explored at the trial, undoubtedly because of the trial court’s mistaken ruling that the search of the trash can was lawful.

6 In Harris the defendant was arrested in the living room of a four-room apartment, and the entire apartment was searched. In Rabinowitz the arrest occurred in a one-room office, and the officers searched “the -desk, safe, and file cabinets in the office for about an hour and a half.’.’

7 The date of the officers’ conduct in Rosales appears in the Court of Appeal decision in that case. (People v. Rosales (Cal.App.) 61 Cal.Rptr. 170.)

8 Another question is the effect, if any, upon the legality of the arrests of the previously recited statement by Hern as to the cause of the arrests. This question has not been argued on appeal.