275 Cal. App. 2d 1007 | Cal. Ct. App. | 1969
The People appeal from order dismissing an information on defendant’s motion under section 995, Penal Code. Defendant was charged with one count of possession of marijuana and two counts of possession for sale of dangerous drugs.
Around 4:40 a.m. on September 8, 1968, defendant, driving a 1967 Mercury Cougar, ran into a building; Officer
Officer Scanned, who arrived at about the same time as Officer Gibson, saw defendant seated behind the steering wheel and observed that he seemed dazed; defendant had a slurred accent and his balance was such that Sergeant Teal had to assist him in getting out of the vehicle; the officer was present when defendant was arrested and knew that Officer Gibson was taking him to the hospital for a blood alcohol test. After defendant was removed Officer Scanned remained at the scene to make out the accident report and impound the vehicle; as a check list he used the Highway Patrol Check Sheet Form 180 to record anything of value found in the vehicle; he proceeded to inventory the contents of the interior of the ear; when he came to the spare tire he was to check, he discovered the trunk was locked and the key to it was not in the car; he passed over this item and continued with the inventory; before he completed it the tow truck arrived and while the driver, Mr. Clark, was sweeping the debris off the street, Clark found in the debris the key to the trunk. Officer Scanned then opened the trunk and saw a closed duffel bag which he unzipped and in which he found several plastic bags containing miscellaneous cigarettes and leafy material, measuring spoon with a burned bottom, corn cob pipe and pill containers containing capsules and pills; in the trunk he also found a colander, sifter with marijuana residue, plastic container and Zig Zag papers. It was established that the duffel bag contained marijuana and dangerous drugs—-8 hand-rolled marijuana cigarettes, 6 grams marijuana, 1 gram hashish, 400 amphetamine tablets and 135 sodium secobarbital capsules.
Viewing the totality of circumstances (People v. Williams, 67 Cal.2d 226, 231 [60 Cal.Rptr. 472, 430 P.2d 30] ; People v.
Around five minutes after the accident occurred, immediately upon defendant’s removal from the scene and before the tow truck arrived, preparatory to impounding the vehicle, Officer Scannell proceeded to take inventory of its contents. “While Upton [People v. Upton, 257 Cal.App.2d 677 [65 Cal.Rptr. 103]] states that the Constitution does not permit ‘an otherwise unreasonable search of a car simply because the police have a statutory authority to impound it under Vehicle Code, sections 22650 and 22651 ’ this means no more than that those sections cannot be used as a subterfuge to cover up otherwise illegal activity, i.e. where the officers are actually engaged in the process of ferreting out evidence to be used in a criminal prosecution they cannot justify such activity under the guise that they were making ‘an inventory ’ for purpose of impounding. A different result obtains where the officers were in fact acting in good faith and making such an inventory. (Cf. State v. Severance (1968) 108 N.H. 404 [237 A.2d 683, 686].)” (People v. Norris, 262 Cal.App.2d Supp. 897, 899 [68 Cal.Rptr. 582].) Thus where an officer is engaged in the making of a good faith inventory preparatory to or in the
A review of the entire record convinces us of the officer’s good faith in making an inventory clearly preparatory to impounding the vehicle. First, Officer Scannell throughout his testimony consistently claimed that the inventory was made in connection with impounding the Cougar; there is no evidence to the contrary. Second, it is readily apparent that the officer was not engaged in the process of “ferreting out evidence” to be used in a criminal prosecution nothing indicates he was seeking contraband or anything else. His sole intention was to inventory the contents of the vehicle for his own protection as well as for the protection of the owner and the garageman, and take for safekeeping anything of value. This was entirely proper. (People v. Jones, 263 Cal.App.2d 818, 823 [70 Cal.Rptr. 13] ; People v. Roth, 261 Cal.App.2d 430, 435 [68 Cal.Rptr. 49] ; People v. Harris, 256 Cal.App.2d 455, 461 [63 Cal.Rptr. 849] ; People v. Garcia, 241 Cal.App.2d 681, 684 [29 Cal.Rptr. 609] ; People v. Ortiz, 147 Cal.App.2d 248, 251 [305 P.2d 145].) Third, the inventory was a part of the ‘‘customary and well justified procedure” (People v. Ortiz, 147 Cal.App.2d 248, 250 [305 P.2d 145] ; People v. Gil, 248 Cal.App.2d 189, 192 [56 Cal.Rptr. 88]) preliminary to the lawful impounding of the vehicle; there is no question of its constitutionality in terms of it having been properly occasioned. (People v. Gil, 248 Cal.App.2d 189, 192 [56 Cal.Rptr. 88] ; People v. Nebbitt, 183 Cal.App.2d 452, 461 [7 Cal.Rptr. 8].) Fourth, Officer Scannell used the regular Highway Patrol Check Sheet Form 180 as a check list to record those articles of value found in the vehicle. Fifth, the officer’s conduct in checking the items on the check sheet form was normal, reasonable and routine— immediately after defendant departed he began to inventory the contents of the interior of the ear, registration, cushions, glove compartment, etc.; when he came to the spare tire listed on the form he passed over the item unable to check it because he could not open the trunk; he made no effort to force it open; while continuing down the list the tow truck arrived and the key was recovered; to finish the inventory, he opened the trunk wherein he found the zippered duffel bag and its contents. At this point the officer discontinued the inventory.
For the foregoing reasons the order is reversed.
Wood, P. J., and Thompson, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied October 29, 1969. Peters, J., was of the opinion that the petition should be granted.
Section. 22651, subdivision (h), Vehicle Code, provides that an officer may remove a vehicle ‘ ‘ When an officer arrests any person driving or in control of a vehicle for an alleged offense and the officer is by this code or other law required or permitted to take and does take the person arrested before a magistrate without unnecessary delay.” Section 40302, subdivision (d), Vehicle Code, provides that whenever any person is arrested for any violation of the Vehicle Code not declared to be a felony he shall be taken without unnecessary delay before a magistrate 1 ‘ When the person arrested is charged with violating Section 23102 . . .