THE PEOPLE, Plaintiff and Appellant, v. RAYMOND LAIWA III, Defendant and Respondent.
Crim. No. 22259
Supreme Court of California
Oct. 6, 1983.
34 Cal.3d 711 | 195 Cal.Rptr. 503 | 669 P.2d 1278
George Deukmejian and John K. Van de Kamp, Attorneys General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein and Edward P. O‘Brien, Assistant Attorneys General, Herbert F. Wilkinson, John T. Murphy, Gloria F. DeHart, Robert R. Granucci and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Appellant.
John J. Meehan, District Attorney (Alameda), William M. Baldwin, Assistant District Attorney, and William McKinstry, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Appellant.
Sheldon Portman, Public Defender, Barbara B. Fargo, Rosemary S. Morrison and Jeffrey A. Kroeber, Deputy Public Defenders, for Defendant and Respondent.
Quin Denvir, State Public Defender, George L. Schraer and Ralph H. Goldsen, Deputy Public Defenders, as Amici Curiae on behalf of Defendant and Respondent.
OPINION
MOSK, J.—While on patrol at midday in July 1979, a police officer saw defendant in a parking lot making stiff, “robot-like” movements. From his training and experience the officer formed the opinion that defendant was under the influence of phencyclidine (PCP). He detained defendant and tested him for certain distinctive eye movements that are seen in persons under the influence of PCP. When the test proved positive, the officer arrested defendant, took from him a closed tote bag he had been carrying, and put him in handcuffs; he may also have placed defendant in the patrol car at that time.
The officer then opened and searched the tote bag; he subsequently testified that he did so “for inventory purposes.” Inside the bag he found a
At the preliminary hearing the foregoing evidence was introduced and defendant stipulated that the officer had probable cause to arrest him for being under the influence of a narcotic. (
In superior court defendant filed a compound motion to suppress the evidence (
I
We begin by addressing a procedural problem that has troubled our courts and practitioners since the enactment of the statutory motion to suppress (
lenging before trial the admissibility of evidence obtained by a warrantless search and seizure: i.e., a nonstatutory motion to suppress (People v. Gershenhorn (1964) 225 Cal.App.2d 122, 124 [37 Cal.Rptr. 176]) and a statutory motion to set aside the accusatory pleading (
The difficulty we address here stems from the fact that when the Legislature codified, expanded, and regulated the motion to suppress evidence on the ground of unreasonable search and seizure in the elaborate provisions of
The principal differences lie in the functions of the courts when ruling on these motions, and in the scope of appellate review.
These differences cause no mischief when the defendant makes only one of the two motions at a time: following the foregoing rules, both the superior court and the appellate court know what to do. (See, e.g., People v. Norman (1975) 14 Cal.3d 929, 931, 939 [123 Cal.Rptr. 109, 538 P.2d 237] [
Review of an order ruling on such a compound motion presents other complications. As noted above, insofar as the order is made under
The parties also face obstacles in obtaining review of such an order. If the order denies the motion the defendant may seek immediate relief by writ, but for a full review of the ruling he will be compelled to file either two separate writ petitions or a compound petition for two writs—one to review the order insofar as it denies the
If the order grants the motion, the problems are still more complex. As pointed out earlier, insofar as the order grants the
For these and other reasons, the appellate courts have often experienced difficulty in dealing with cases in which the People simultaneously petition for a writ under
In addition, in all cases in which the court acts at the instance of the defendant or the prosecutor, this device also does violence to the statute granting the People a limited right of appeal from such a dismissal. Although under
Finally, the Courts of Appeal have sought to forestall the foregoing problems by urging superior courts not to act on these compound motions in the first place. Instead, the courts have been advised to rule only on the
Although this technique represents an advance over a simultaneous ruling on the compound motion, it too is not without apparent flaws. It in effect denies the defendant his right, inferrable from subdivisions (m) and (n) of
More than a decade ago, an appellate court pointed out “the crying need for legislative reform” of the overlapping statutory procedures for pretrial challenge of a search and seizure. (People v. Sanchez (1972) supra, 24 Cal.App.3d 664, 690, fn. 15.) For all the reasons stated above, we support the call for such reform. Because legislative reconsideration has not been forthcoming, this often litigated area of our criminal law remains unsatisfactory both in principle and in practice.
In the meantime, some improvements may be adopted on the basis of existing statutes and the common law. Thus we urge that when a superior court has granted the
If the court determines not to so dismiss, it should at least consider deferring ruling on the
If the court determines not to so defer its ruling it may decide the
The same rule, however, does not bar us from construing a different—and much less clear—portion of the statute that appears to offer a solution to the theoretical objections discussed earlier. Subdivision (j) of
Such a writ proceeding will provide the People with appellate review of the
We conclude that when a superior court simultaneously grants both the
In the case at bar, however, a simpler remedy is available because of the state of the record and the limited issue it presents. As noted at the outset, no testimony whatever was offered at the superior court hearing, nor did the parties introduce in lieu thereof the evidence taken at the preliminary examination. The court apparently accepted the facts as found by the magistrate; the entire hearing was dedicated to debating questions of precedent; and the ruling was based exclusively on the court‘s interpretation of the relevant law. In these circumstances we deem that the court in effect ruled only on the
II
As noted at the outset, the arresting officer testified he searched defendant‘s tote bag “for inventory purposes.” The only justification for that search presented by the prosecution at the preliminary hearing was that the intrusion constituted a so-called “accelerated booking search.” The magistrate accepted this justification and made it the ground of his ruling denying the motion to suppress. Finally, the sole contention raised in the Attorney General‘s brief on appeal is likewise that the search of the bag was justifiable as an “accelerated booking search.” We therefore limit our
It is axiomatic, of course, that warrantless searches are per se unreasonable under the California and federal Constitutions with only a few carefully circumscribed exceptions, and that the People have the burden of proving that any search without a warrant comes within one of those exceptions. (People v. Dalton (1979) 24 Cal.3d 850, 855 [157 Cal.Rptr. 497, 598 P.2d 467], and cases cited.) A “booking search” has been recognized as such an exception. (People v. Ross (1967) 67 Cal.2d 64, 70 [60 Cal.Rptr. 254, 429 P.2d 606], revd. on other grounds sub nom. Ross v. California (1968) 391 U.S. 470 [20 L.Ed.2d 750, 88 S.Ct. 1850]; see generally 2 LaFave, Search and Seizure (1978) § 5.3 (a).) The question at hand is whether another exception should be recognized for an “accelerated booking search.”
The Attorney General relies primarily on People v. Bullwinkle (1980) 105 Cal.App.3d 82, 86-90 [164 Cal.Rptr. 163].8 In Bullwinkle a Court of Appeal upheld a warrantless search of an arrestee‘s purse conducted prior to booking. The court stressed that because the suspect had been arrested on a felony warrant, she would inevitably have been jailed in any event, and her purse would have been searched at that time as part of the booking process. The court then reasoned that “Where it is shown that a suspect would have been jailed and thus subject to a booking search, the fact that a thorough search of the booking type occurs prior to the actual booking process does not render the search illegal, since no additional or greater intrusion on the privacy of the suspect is involved.” (Id. at p. 87.) The court further stated that such a search may be upheld on appeal as an “accelerated booking search” even when the arresting officer expressly concedes in his testimony that he was not conducting a booking search at the time of the intrusion; the court reiterated, “The theory is that the privacy of the prisoner and her effects would have been invaded anyway, and that therefore no greater intrusion on that privacy occurs when the search is conducted other than during the booking process.” (Id. at p. 90.)
After careful consideration we cannot accept this theory as justification for a warrantless search. To begin with, we are unpersuaded by the claim that an “accelerated booking search” causes “no additional or greater intrusion” into the privacy of an arrestee than a jailhouse search at the time of the booking process. The latter can be very thorough indeed; for exam-
Next, the justifications for a true booking search are inapplicable to a search in the field at the time of arrest. Although those justifications have been variously stated in our decisions (see, e.g., People v. Maher (1976) 17 Cal.3d 196, 200-201 [130 Cal.Rptr. 508, 550 P.2d 1044], and cases cited) they properly fall into two broad categories—inventory and jail safety. First, in California several statutes impose on jail officials the duty to take charge of, give receipts for, keep safely, and account for the personal property of all persons delivered into their custody. (
A search at the time and place of the arrest, however, cannot be justified as necessary or even appropriate to serve any of the foregoing purposes. It is evident that the need to inventory a prisoner‘s property is satisfied poorly, if at all, by allowing the arresting officers to rifle through his possessions at the scene of the crime, where they are unlikely to have the time or incentive to meticulously catalog everything they find, or the means of furnishing him with formal receipts, or facilities such as property bags and storage lockers for safeguarding each of his effects. There will be ample
Nor is there any need for the arresting officers to concern themselves about searching the suspect in order to discover items such as weapons or contraband that should be kept out of jail, for the obvious reason that he is not about to be put in jail; he is simply being taken into their temporary custody for transportation to the police station or place of eventual incarceration. Existing law, moreover, fully permits the officers to protect themselves from any danger while the defendant is in their custody. As an incident to the arrest they may conduct a limited search “(1) for instrumentalities used to commit the crime, the fruits of that crime, and other evidence thereof which will aid in the apprehension or conviction of the criminal; (2) for articles the possession of which is itself unlawful, such as contraband or goods known to be stolen; and (3) for weapons which can be used to assault the arresting officer or to effect an escape.” (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 812-813 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559].) Indeed, even when the charge will be resolved by a mere citation a patdown search for weapons is permissible if the officers are required to travel in proximity with the arrestee. (People v. Brisendine (1975) 13 Cal.3d 528, 537 [119 Cal.Rptr. 315, 531 P.2d 1099].)
In short, just as the legitimate purposes of the booking search exception do not justify a belated search conducted after the booking process has ended (People v. Smith (1980) 103 Cal.App.3d 840, 845 [163 Cal.Rptr. 322]), so also they do not justify a premature search performed before that process has begun.
Finally, we cannot blind ourselves to the practical dangers inherent in the “accelerated booking search” theory. Both of the above-mentioned intrusions permissible at the time of a lawful arrest—a search incident to the arrest and a patdown in the event of transportation—are restricted in their scope and tailored to their particular justifications. By contrast, as noted above an “accelerated booking search” would have no such restrictions.9 If such an exception were recognized, police officers would have a license to conduct an immediate “thorough search of the booking type” of the person and effects of any individual they arrest without a warrant for a minor but bookable offense, in the hope of discovering evidence of a more serious crime; if such evidence were found, the suspect would then be
For all the foregoing reasons we hold that the so-called “accelerated booking search” is not a permissible exception to the warrant requirement of
We conclude that the magistrate erred in denying defendant‘s motion to suppress the cigarette that he is charged with possessing. Because there is no other competent evidence to hold him to answer, the superior court correctly ruled that defendant was committed without probable cause.
The order appealed from is affirmed.
Bird, C. J., Broussard, J., and Reynoso, J., concurred.
RICHARDSON, J.—I respectfully dissent.
The majority purports to “limit [its] consideration” (ante, pp. 724-725) of the issues in this case to the single question whether the officer‘s search of defendant‘s tote bag was an “accelerated booking search,” because this point supposedly was the only one raised in the Attorney General‘s opening brief on appeal. I find it unnecessary to reach the “accelerated booking search” issue because the search clearly was a proper search incident to defendant‘s valid arrest. (New York v. Belton (1981) 453 U.S. 454 [69 L.Ed.2d 768, 101 S.Ct. 2860].) Contrary to the majority‘s suggestion, the record demonstrates beyond question that the People raised and relied on the “search incident to arrest” theory from the outset in this case.
Thus, following the preliminary examination, and during oral argument regarding defendant‘s motion to suppress, the parties focused upon the only
The fact that the Attorney General emphasized the “accelerated booking search” theory in his Court of Appeal brief is hardly surprising. The United States Supreme Court had not yet decided Belton, and pre-Belton decisions (including Pace, supra) regarding searches incident to arrest seemed adverse to the People‘s position. Once Belton was decided, however, the Attorney General called our attention to that case in a supplemental brief.
Moreover, analytically, an “accelerated booking search” is merely one form of a search incident to arrest, rather than an entirely different variety of search as the majority suggests. By relying upon the former theory, the Attorney General was arguing, in effect, that the search herein was a valid search incident to an arrest which contemplated eventual booking. In making such an argument, surely the Attorney General cannot reasonably be held to have waived his right to rely upon any subsequent controlling cases (such as Belton) which upheld searches incident to arrest whether or not booking was contemplated.
Thus, the majority seriously errs in declining to examine whether the search at issue was proper under Belton, to which question I now turn.
In Belton, an officer stopped a vehicle for speeding; after discovering evidence of marijuana use, he arrested the four men in the car for possession of marijuana. A search of an envelope found on the floor of the car and marked “supergold” revealed marijuana, and the officer proceeded to search the persons of the arrestees and the entire passenger compartment. He discovered cocaine in a zippered pocket of Belton‘s jacket which was found lying on the back seat.
The Belton court noted at the outset that the Fourth Amendment‘s protection against unreasonable searches and seizures can be realized in practical effect only if the courts fulfill their obligation to guide the conduct of police by developing “straightforward rule[s], easily applied, and predictably enforced.” (453 U.S. at p. 459 [69 L.Ed.2d at p. 774].) After adopting the factual assumption that items within the interior of automobiles generally are within the reach of its occupants, the court proceeded to hold that the
In an important footnote, the court squarely rejected the argument that the jacket search was invalid because it was conducted after the officer had assumed exclusive control of the jacket, stating simply that “under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee‘s person, an officer may be said to have reduced that article to his ‘exclusive control.‘” (Id., at p. 462, fn. 5 [69 L.Ed.2d at p. 776].)
It will readily be seen that the facts of the case at bar clearly invite application of the principles of Belton: Laiwa‘s stuffbag was plainly within the area of Laiwa‘s immediate control at the time of its seizure. As in Belton, the searching officers reasonably could have suspected that the bag held contraband. Hence, the reasoning of Belton would allow it to be searched without a warrant. If confirmation of this reasoning is necessary, it is clearly provided by the following dictum from the high court‘s even more recent holding in United States v. Ross (1982) 456 U.S. 798, 823 [72 L.Ed.2d 572, 592, 102 S.Ct. 2157]: “A container carried at the time of arrest often may be searched without a warrant and even without any specific suspicion concerning its contents.”
On the record before us, it cannot be determined with any certainty whether or not defendant actually had access to the interior of the stuffbag at the time the search was conducted, because he made no attempt to gain such access. He was handcuffed, and he may even have been sitting in the back seat of the patrol car at the time the search occurred. Nevertheless, the search should be upheld. Laiwa was arrested for the crime of being under the influence of PCP in a public place; the commission of that crime is commonly accompanied by evidence in the form of the drug itself on a defendant‘s person or in his immediate vicinity. Therefore, the arresting officers had the authority to conduct a reasonably intensive search of both the arrestee‘s person and all items found within the area of his immediate
I would reverse the order granting defendant‘s motion to suppress.
KAUS, J.—I respectfully dissent.
In conducting the “accelerated booking search” in this case, the police officer acted in conformity with a consistent line of California decisions which have explicitly approved such a practice in cases in which the People can show that the arrested person would have been subjected to the booking process in any event. (See People v. Bullwinkle (1980) 105 Cal.App.3d 82, 86-88 [164 Cal. Rptr. 163]; People v. Flores (1979) 100 Cal.App.3d 221, 229, 230 [160 Cal.Rptr. 839]; People v. Brown (1979) 88 Cal.App.3d 283, 293 [151 Cal.Rptr. 749]; People v. Barajas (1978) 81 Cal.App.3d 999, 1008-1009 [147 Cal.Rptr. 195].) Until today, this court has never cast doubt on the propriety of such a procedure; on the contrary, nearly a decade ago, we expressly declared, albeit in dictum, that “[w]e have no quarrel with [the accelerated booking] rationale if in fact the individual is to be subjected to the booking process.” (People v. Longwill (1975) 14 Cal.3d 943, 948 [123 Cal.Rptr. 297, 538 P.2d 753].) Since the factual pattern leading to an accelerated booking search arises in virtually every felony arrest, I would venture to guess that there have been thousands of such searches carried out in reliance on the previously unquestioned rulings on this point.1 Thus, even if I agreed with the majority that this line of decisions should now be disapproved, I would think that normal principles of retroactivity/prospectivity as applied in the search and seizure area would dictate that any change in the law be prospective. (See, e.g., In re Joe R. (1980) 27 Cal.3d 496, 511-512 [165 Cal.Rptr. 837, 612 P.2d 927]; People v. Kaanehe (1977) 19 Cal.3d 1, 10 [136 Cal.Rptr. 409, 559 P.2d 1028].)
My disagreement with the majority goes further, however, for I see no reason to disapprove the established “accelerated booking search” rule. Despite the majority‘s parade of horribles, neither this case nor any of the previous accelerated booking search cases suggests that the California citi-
In my view, the accelerated booking search rule can properly be seen as simply a limited and reasonable application of the “inevitable discovery” doctrine. (See generally People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 671-682 [145 Cal.Rptr. 795].) As the Court of Appeal explained in People v. Bullwinkle, supra, 105 Cal.App.3d at page 87: “Where it is shown that a suspect would have been jailed and thus subject to a booking search, the fact that a thorough search of the booking type occurs prior to the actual booking process does not render the search illegal, since no additional or greater intrusion on the privacy of the suspect is involved.” (Italics added.) This is not an instance in which the “inevitable discovery” rationale threatens any value protected by the warrant requirement (see 3 LaFave, Search and Seizure (1978) § 11.4(a), pp. 623-624); the stationhouse booking search, which would inevitably turn up the same evidence found in the on-the-scene search, is, of course, routinely conducted without a warrant. Under these circumstances, the exclusion of evidence which the police would invariably have discovered a few minutes later in the course of the booking process serves no constitutionally significant purpose.
Accordingly, I conclude that the evidence was properly obtained and would reverse the order setting aside the information.
Richardson, J., concurred.
Appellant‘s petition for a rehearing was denied December 1, 1983. Richardson, J., and Kaus, J., were of the opinion that the petition should be granted.