Opinion
Roglan O’Sullivan appeals from her conviction for possession of methamphetamine in a county jail, a violation of Penal Code section *240 4573.6. The court imposed the 16-month lower term and credited appellant with 182 days for time served.
Appellant contends that the trial court violated her Fifth Amendment privilege against self-incrimination by (1) admitting a statement she made while in custody during a strip search and (2) admitting evidence and allowing comment upon the fact that, aside from her one statement at the time the methamphetamine was discovered, appellant never claimеd, prior to testifying at trial, that the container in which the amphetamine was found was not hers. . . .*
We hold that the court did not err in admitting appellant’s spontaneous utterance when an officer searching her property stated, “I think I have something here,” because there was no interrоgation or its equivalent. We further hold that after Proposition 8, evidence of appellant’s
pre-Miranda
silence may be excluded only if application of the exclusionary rule is compelled by federal law. Since the admission of evidence of
pre-Miranda
silence to rebut a defense claimed for the first time at trial is permitted by federal law (see
Fletcher
v.
Weir
(1982)
Facts
Deputy Sheriffs Felix and Elliott were assigned to the receiving area of the women’s division of the county jail in San Bruno on January 6, 1988. Appellant, who had been transferred from thе county jail on Bryant Street to the San Bruno facility, arrived handcuffed, holding her property in a plastic bag. While processing her into the jail, Deputy Elliott asked appellant if the property in the bag was hers. She replied that it was. Deputy Elliott then searched appellant’s prоperty while Deputy Felix searched her person. In the bottom of a deodorant container Deputy Elliott found two small clear plastic bags containing a white powder substance. She turned to Deputy Felix and said, “I believe I have something here.” Appellant turned around, looked toward Deputy Elliott and the table where the powder was exposed and said, “oh, oh.”
The powder found with appellant’s property contained methamphetamine.
Appellant testified that before she entered the Bryant Street jail in early December she was strip-searched and not allowed to bring any personal possessions into the county jail except money. Prior to her transfer to the *241 San Bruno facility on January 6, she had been given a Mennen Speedstick deodorant by a cellmate. Two other inmates in her cell possessed Mennen dеodorant sticks and numerous people had access to her property before it was searched by Deputy Elliott. When she was told on January 6, 1988, that she would be leaving that day, she “just kind of geared [her] things together and put them in a bag.” She did not recall putting the deodorant in the bag and did not think the one which was confiscated was hers; hers was more used. Appellant denied making any statement to the deputies while she was being searched.
Later, two other inmates who were being processed into San Bruno with appellant told her that the deputies had found something—they didn’t knоw what—in her deodorant. Appellant then looked for her deodorant stick and noted it was missing. She first learned of these charges when she was brought back to San Francisco the next day and rebooked.
I.
Admission of Appellant's Statement During the Strip Search
Appellant first contends that the trial court should not have admitted her statement, i.е., “oh, oh,” when she saw that Deputy Elliott had discovered the methamphetamine, because no
Miranda
warning had been given. The trial court determined that appellant was not subjected to interrogation or its equivalent. We hold that appellant’s statement was the type of spontanеous utterance that is admissible even in the absence of
Miranda
warnings. (See
Rhode Island
v.
Innis
(1980)
There is no dispute in this case that appellant was in custody at the time that the statement was made. The only issue is whether Deputy Elliott’s statement, “I think I have something here,” constituted interrogation or its functional equivalent for purposes of invoking the procedural protections mandated by
Miranda
v.
Arizona
(1966)
Applying this standard to the conversation that took place during the strip search, the trial court concluded that Deputy Elliott’s comment, “I think I have something here,” was not the functional equivalent of interrogation. The court found that “Deputy Elliott, . . . [was] simply notifying her companion officer or supervisor of the discovery of some contraband which presumably is what she’s supposеd to do.” The court also stated that Deputy Elliott’s statement was not “intended to elicit some sort of response from the defendant.”
Appellant argues that the focus, when determining whether, under
Innis,
a suspect has been subjected to interrogation or its functional equivalent, must be on the “subjective perceptions” of the suspect, rather than the intent of the officer. A careful reading of
Innis,
however, discloses that there are two components to the definition of “interrogation,” neither of which turns on the actual subjective perceptions of the suspeсt or the intent of the officer. The first is whether the police conduct was the type of conduct
“reasonably likely
to elicit an incriminating response.” With respect to this component, appellant is correct. The focus is “upon the perceptions of the suspect rather than the intent of the police”
(Rhode Island
v.
Innis, supra,
446 U.S. at pp. 301-302 [
The second component is whether, even if the officer did not intend to elicit an incriminating response, she
should have known
that her remark was likely to do so. The facts of this case are analogous to those in
Innis.
In that case, Innis was arrested, given his
Miranda
rights, and asked to see a lawyer. He was placed in a police car with a wire mesh screen between the front and rear seats. Three officers accompanied Innis to the station in the car. Two of the officers had a conversation about thе danger to handicapped
*243
children in a nearby school if one of them should find the missing shotgun. The defendant told the officers to turn back so he could tell them where the gun was. After further
Miranda
advice, Innis told them where the gun was in order to “ ‘get the gun out of the way because of the kids.’ ” (446 U.S. at pp. 294-295 [
Similarly in this сase, the officers were making the searches as a part of a normal transfer procedure, and appellant, although in custody, had been in custody for some time and was not in any additional state of confinement related to suspicion of another offense. While thе officers were carrying out these routine searches of appellant’s person and property, the comment was made by one deputy to another conveying information relevant to the search they were carrying out. Appellant turned around and looked toward the table where the bags of powder were in view. She then made her comment. By analogy to the hypothetical situation posed in
Innis,
it is clear that had appellant been facing Deputy Elliott, observed her remove the plastic bags, and said, “oh, oh,” before the deputy informеd her own colleague, there would have been no
Miranda
issue. There is no basis for finding that the deputy should have known her quick, informative remark, made contemporaneously with her discovery, was reasonably likely to elicit an incriminating response. The comment made by Deputy Elliott could fаirly be characterized as the type of comment “normally attendant to arrest and custody” that the
Innis
court specifically excluded from the definition of interrogation.
(Rhode Island
v.
Innis, supra,
446 U.S. at pp. 301-302 [
The cases relied on by appellant in support of her contention that Deputy Elliott’s remark constituted thе functional equivalent of interrogation do not present analogous facts. In
People
v.
Morris
(1987)
II.
Admission of Evidence and Comment upon Appellant’s Pre-Miranda Silence
Appellant next contends that the court erred in admitting evidence that she never denied that the container in which the contraband was found belonged to her. The prosecutor established appellant’s silence . . . * on rebuttal by the testimony of Deputy Felix and appellant. In addition to establishing that appellant never said anything to the deputies except “oh, oh,” the prosecutor also questioned appellant on rebuttal regarding her silence when told by two fellow inmates that something had been found in her deodorant. 1 In closing argument, the prosecutor argued that appellant’s silence following the disсovery of the deodorant was a factor to consider in evaluating the credibility of her defense that the deodorant stick was not hers.
Appellant had not been given Miranda warnings prior to these silent “responses.”
It is an established principle of federal law that once an accused has been given the
Miranda
warning, his or her silence may not be used to impeach an explanation subsequently offered at trial.
(Doyle
v.
Ohio
(1976)
Prior to the effective date of Proposition 8, the California courts adopted a mоre expansive reading of
Doyle,
based on independent state constitutional grounds. Thus, in
People
v.
Free
(1982)
For the proposition that the California rule requiring exclusion of evidence of her silence, even in the absence of
Miranda
warnings, survives Proposition 8, appellant relies upon
People
v.
Jacobs, supra,
In
May,
the issue before the court was whether the “savings clause” of Proposition 8, which provides that “. . . Nothing in this section [prohibiting the exclusion of relevant evidence except by statute] shall affect any existing statutory rule of evidence relating to privilege or hearsay, . . preserved the exclusionary rule set forth in
Disbrow.
Relying on
In re Lance W.
(1985)
Since the
May
decision, the courts have consistently held that state cases applying the exclusionary rulе in circumstances where federal law would not compel exclusion are no longer valid. (See, e.g.,
People
v.
Hall
(1988)
The holding of the court in Jacobs was also based on independent state constitutional grounds. It therefore also must fall because the decision in Jacobs, like the decision in Disbrow, did not define the scope of the privilege against self-inсrimination. Rather, it simply applied the remedy of exclusion of the evidence in circumstances which would not compel exclusion under federal law. We therefore find no error to the extent that evidence of appellant’s silence was admitted for purposes of rebuttal.
*246 *
The judgment is affirmed.
Newsom, Acting P. J., and Holmdahl, J., concurred.