*1 Dist, No. 20467. [Crim. Second Div. One. Feb. 1972.] PEOPLE,

THE Plaintiff Respondent, RHODES,

BEVERLY FRANCINE Defendant and Appellant.

Counsel for Defend- the Court Russell under H. Halpern, appointment Appeal, ant and Appellant. General, J. Kremer and A. Wells

Evelle Daniel Attorney J. Younger, Petersen, General, for Plaintiff Attorneys Deputy Respondent. Opinion P. on

LILLIE, from of conviction J. Defendant appeals judgment Acting (§ Health & Saf. guilty dangerous drugs plea possession 1538.5, Code) denial of her motion under section Penal Code. October 8:45 Officer defendant’s On at p.m. Laughlin stopped vehicle broken no license because three of four were bore taillights Because defendant could no identification light. plate acceptable produce vehicle, was no the officers ran a warrant registration and there check her two which indicated warrants from outstanding City arrest, Los she was under to the Angeles; thereupon placed transported station and booked. a search of her During booking purse procedure revealed seven LSD tablets and secobarbital in her one sodium capsule It was that the issued wallet. amount for which warrants were stipulated $127 $6.23. was and her wallet contained Code, concedes to section Vehicle

Appellant pursuant Laughlin Officer custody, take her and that obligated be “skin but contends that searched” when jail, prior placed thus, bail she must have been being given post jailed opportunity of her contention is cor of her wallet was first illegal. part both the warrants were rect for traffic violation and the Los Angeles city matters her to release on bail to a fixed bail schedule entitling *3 Court, former, (Agar Superior on 21 the and the terms of the latter. v. Court, 148]; Superior Carpio 27-28 v. Cal.App.3d Cal.Rptr. [98 Mercurio, 186]; People v. 10 Cal.Rptr. [97 750].) However, Agar 429-430 unlike Cal.Rptr. [88 Court, Superior Superior Carpió and in which the court under V. the evidence was entitled to and did assume that the accused would have bail,1 been able to the the evidence introduced post by way required stipulation establishes that defendant could not have bail even posted had been given she the do to so. opportunity

Not been released her having own the recognizance, only possible defendant could have way avoided on the was to being jailed warrants bail or have someone do post so for her. It is that she undisputed personally could not have bail on the traffic and on the posted warrants violation (the for amount $127), which were issued they was for her wallet con- Moreover, tained $6.23. but there is no light showing foregoing, that defendant had relatives or who friends have for bail. might arranged event, In any all of the under circumstances that she had assuming been given bail, the to the realities of the situation make the opportunity post of her to' do prospect ability so within a reasonable time somewhat doubt- ful. For her release on bail she would have had to make one or more tele- calls. she phone Whoever contacted would have had to either bring or contact money a bail bondsman and for the bond arrange premium; if that had not for sufficient funds either have would purpose been for necessary him to make financial for such an under- arrangements which taking would have undoubtedly caused in all delay, probability substantial one. Meanwhile it would be the police responsibility keep defendant under surveillance. on the extent in- Depending delay Agar Court, Superior 148], 1In Cal.Rptr. the court said: suggest evidence was “No introduced to that defendant could not have made bail and (P. 28.) jailed.” would have had to have been Court, Superior 186], Carpio In that petitioner said: “It is admitted have been able to there was no reason to assume that would not given post required opportunity bail bond had he been 793); (p. $50 to do so" page and commented in footnote 1 at 793: “Petitioner had argument person. in cash on his At oral counsel admitted that this was more than enough any potential to cover no premium bond and that there was reason to not, not, posted promptly believe that bond could and would have been on the fact, given by arresting In such was he traffic offenses. the advice officer when petitioner police took station.” it is available, likely

volved, at the and manpower the facilities station kind in some defendant, would custody, placed who was in police detained. be similarly others would of detention area in which undoubtedly detention, by we are persuaded before being At this and placed point Court, 913, 916 Superior of Morel v. the rationale here, made defendant of that a search of type indignity failed to achieve the for but weapons more than “patdown” search, of a skin or would be reasonable proper. body Morel, speed engaging In been having stopped police Code, defendant Vehicle and arrested to section contest to the car to be was searched in a transported being placed prior an offender alleged the officer has taken station. The court held that “when him, magistrate only about whether custody transport *4 until of detention (if bail) the arrestee able to or to some is make place bail, the arrestee. he made search the shall have the officer may person . . . (1) thorough . . . these: A weapons Our are more reasons assumes new (2) The officer custody. is allowable when the is in person officer has vehicle duties the arrestee is. in when placed police ishe to The officer must escape; responsible new actions perform. prevent arrestee; and cannot give he attend to driving for the of the must safety is and even if he relieved attention to the under his custody; complete person arrestee, the officer may from certain other duties while transporting other emergencies come events in the criminals upon apprehension more (3) on bemay action his The officer transporting require part. there (4) each. Finally, arrestee he give than one and must protection inclination is the matter of contraband. There natural is important taken custody of contraband to of it when he is possessor dispose if earlier. It not means by any he has not been able to rid is get . .”. be in a police contraband speculation deposited vehicle. Court, 913, (Morel Superior Cal.Rptr. v. 10 [89 917-918 Carnesi, 555]; 863, 297]; v. 16 868 People Cal.Rptr. [94 879; Pugh Cal.Rptr. Court 93 People Superior *(Cal.App.) v. [Simon] Court, 168].) If Superior Cal.Rptr. before accused Morel a search of the reasons stated in justify (if he is able to a magistrate he is in a car for transportation placed patrol bail” until he shall have made bail) “or some of detention to make place Court, all 917), are Superior supra, they (Morel search of one who is of a similar the more in justification persuasive in a station is about to detention police and who enter custody police (See bail bondsman or other the arrival of a person. pending 811].) have The Munsey, police granted May opinion final 1971. The hearing *A 837, 496 P.2d reported is 7 Cal.3d of that court not harm one in their but to responsibility only custody to- of contraband either prevent any attempt dispose by personal consump- tion or that it by abandoning might it so available to others similarly detained. Given the of the situation and the obvious practicalities respon- circumstances, sibilities of the under such a set of it would be unrealistic to the officers from preclude making such search. The search would have revealed and did reveal the contraband defendant’s wallet. is affirmed. judgment

Clark, J., concurred. THOMPSON, J.I concur in the result and of the majority reasoning That is a skillful opinion. analysis existing its precedent result is the more decisional law compelled by with persuasive dealing to us. problem presented

My with much of the recent quarrel rash of appellate opinions with searches incident dealing to arrests without a warrant covered by of law as well specific Penal Code section In provisions 836. my personal those decisions are both opinion, an unnecessary expenditure *5 of strained already resources and to trial and judicial courts confusing law enforcement that must agencies their action them. The govern by judicial would be much better served if in process cases such as that considered here we followed the lead of our in In re Martinez, 1 Cal.3d 463 P.2d and focused on the rationale of the rule. to- exclusionary By attempting pick fly specks arrest, out of the of the law of the of pepper and “booking” propriety offenses,” the definition of “jailable Courts of have needlessly Appeal obscured the judicable before them—the determination of controversy whether a defendant was found a fair trial. properly guilty

While earlier decisional law sometimes the that the expressed concept Fourth Amendment unreasonable search guarantee against its terms by search, included from the the protection of recent consequences high has abandoned that a rationale in favor of of opinion concept Martinez, deterrence of (In conduct the Fourth re Amendment. violating 1 Cal.3d supra, 648.) The deterrent effect is by sought punishing for the sins of its Thus the is denied its society police agents. public in the interest conviction of those who- violate laws where its evidence the violation is obtained is establishing illegally. punishment judicially that the be deterred from countenancing will imposed hope public future methods of evidence. It is not the the illegal gathering of purpose where a defendant to rule

exclusionary permit guilty escape punishment function of the rule. so does not achieve the theoretical deterrent do considered, the purpose In the context of cases of type the the of a rule is served much by application exclusionary adequately used in recent Court more direct test than has been simpler Appeal offense, Where, here, as arrested for a minor decisions. suspect should be tested two criteria: of a search incident to the arrest by validity (1) than for an was the arrest bona fide rather merely pretext exploratory search; (2) disclose was the search one designed reasonably (People evidence of offense for which the arrested suspect 444]) Yniguez, or in reason way any If (see related to detention of the majority opinion). ably suspect arrest is bona fide and a reasonable one for evidence of the search detention, or in crime manner related to the any purpose reasonably evidence obtained in the search should be held admissible regardless crime the one the fact that it disclose of a more than guilt serious fact. should be treated one of the arrest. The issue prompted complicated decisions have unnecessarily Recent Court of Appeal ultimate dis- statutory requirements governing problem emphasizing and detained. The after he is arrested legally suspect position late seems to have commenced venture judicial glass through looking 12, 1969, of the First District in 1969. On November the Court of Appeal James, filed its Cal.Rptr. 845]. in the search of It considered the of seconal tablets obtained admissibility no driver’s license who could produce suspect stopped speeding obtained legally other identification. The court held that the evidence was himself, the was unable to identify stating: respondent “[B]ecause take before officer could arrest him order to- him lawfully *6 40302, (a). subdivision in Vehicle Code section magistrate provided (1 of the was also lawful.” As the arrest was lawful a search respondent 645, 648.) a later, filed the of the Fourth District One week Court of Appeal Dukes, Cal. People directly contrary The court dealt with the of obtained admissibility Rptr. marijuana 218]. of too in a search of a detained for the traffic offenses following suspect in an of alcoholic beverage an container closely permitting open other evidence was unable to a driver’s license or automobile who produce “That identification. It held the evidence obtained stating: illegally the the were for custody officers warranted in suspect] taking [the not identification does offenses because of their unsatisfactory traffic under the Fourth Amendment of search permissible expand scope for jailable the United Constitution. arrested States Conceding field he (since may be searched for contraband in the offense might intro- from being contraband searched when booked thoroughly Vehicle Code section duced into the allowed custody jail), If before a (a), subdivision is limited to the arrestee magistrate. taking unavailable, before the officer must take the arrestee is magistrate so he clerk of the or the officer in magistrate charge jail (1 916.) intro- bail. Having be admitted to ...” “booking,” offense” and duced the “jailable propriety concepts of search in the case of a concluded that the scope permissible down for could not exceed a weapons. Vehicle Code arrest cursory pat identical results on almost James and Dukes reached Thus opposite Code section subdi- for of Vehicle facts calling interpretation for (a). vision Unfortunately, petition hearing by James and Dukes each filed in either More unfortunately, was not case. court decisions. its own line of became the progenitor appellate Tennessee, 697], the Fifth People In followed the District of the Court of Division of Second Appeal the course seconal obtained in of James to validate evidence of reasoning Vehicle Code section arrested for violation of of booking suspect Tennessee, however, cites neither drunk (misdemeanor driving). Dukes which it is contra in its in accord nor James with which rationale. Mercurio,

In Division of the Fourth Second District of the Court of followed Appeal Dukes invalidated evidence of found in a incident marijuana arrest of a unable to identification and jaywalking suspect produce detained therefore to Vehicle Code section subdivision Dukes, (a). While Mercurio makes no reference to James citing Tennessee. Mercurio, the Fourth Division of the

Eighteen days Court of for the First District validated the search of a detained Appeal suspect because a violation of the magistrate Vehicle transportation *7 Court, Superior Code’s In Morel contests. v. 10 upon proscription speed 297], the court discusses the rationale justify 913 Cal.App.3d Cal.Rptr. [89 It the search. states that dictates a search prudence thorough ing officer of to be taken before a detaining magistrate suspect pursuant to the Vehicle Code to insure that he is not in of small possession weapons down, disclosed in a to obtain from attack

not necessarily pat security and and of the he is safety while suspect being transported, of contraband vehicle. Morel disposition transporting expressly Mercurio. neither declines to follow Dukes but does not mention It cites James nor which with Our Tennessee are in accord its holding. Supreme Court denied Mercurio. both Morel and hearing James, Tennessee,

The Morel has since been followed approach validate incident detentions to Vehicle Code searches to traffic pursuant Court, 40302, (a) Superior v. 12 Pugh sections subdivision and 40303 in Brown, denied; 168], 1184 v. People Cal.App.3d hearing Cal.Rptr. [91 473]; Superior (Simon 14 Court People 507 Cal.App.3d Cal.Rptr. [92 v. 879; Cal. People Munsey, v. 18 and 93 r.p.i.) *(Cal.App.) Cal.Rptr. Dukes, has 440 The Mercurio approach App.3d Cal.Rptr. [95 811]. Superior since been People followed to. invalidate similar searches v. 545]; v. (Fuller Carpio 14 935 r.p.i.) Cal.Rptr. Cal.App.3d [92 Court, 186]; v. Superior Agar and Su 19 790 Cal.Rptr. Cal.App.3d [97 Court, perior 24 Cal.Rptr. 148]. [98 The conflict in Court of decisions Appeal with searches incident dealing to detention and transportation magistrate to Vehicle Code sections (a) proved subdivision and 40303 fertile as well as It has hardy. spawned conflict in a related People Yniguez area. In supra, Dukes, we faced a contention that the Mercurio rule was to bar evidence of applicable obtained in a search of a drugs defendant arrested for a violation of Vehicle Code section 23102. Noting that section 23102 while proscribes driving under the influence of drugs or the combined influence of drugs as well as under the alcohol in alone, fluence of we alcohol held the valid one for evidence of the crime which arrest was made. We did not thus reach the choice of of the lines of cases to follow conflicting although stating of the presence Yniguez conflict. People was followed Wilken, 20 The rare Cal.Rptr. [97 925]. appearance thus consistency resulting fact that the rationale of dispelled by Yniguez and Wilken has been where the crime for which rejected arrest is made involves intoxication other than in the course of driving Dukes, an automobile. Thus the Mercurio was utilized in approach Millard, People v. 402], Cal.Rptr.

Smith, 17 to invalidate the search of a arrested for drunk in a public place. courts there rea soned that since one arrested for that offense at the may, option hearing *A granted May Court was 1971. The final reported that court is in 7 Cal.3d 186 P.2d 1205]. *8 filed, of his a search being be without thorough released charges police, not person permitted. such as in the case searches total of law disarray governing rule itself. The exclusionary

volved the case bench is in significant in at If society of misconduct. to bar evidence obtained because operates police the misconduct agents, is to for the misconduct of its punish police itself similar bars evidence obtained situations should clear. Case law which of a rule in violation that here considered clear misconduct finds police so its struc agree difficult to formulate that of cannot Courts Appeal upon ture, obscure rationale, based a rale so or It bars validity. upon evidence a discussion of that decisional law the rule frequently following ignores of the con of itself contra cases and is ignored development group of law. trary body exists a that the rule

Unless we exclusionary accept proposition Mercurio, Dukes, make-work for the the basis of project judiciary, appellate them, rights the cases is untenable. The intrusion following upon drunkenness) its (or a arrested offense changes of for a traffic person public character of way when the officer determines to by detaining proceed (a) (or Vehicle Code section subdivision or 40303 their equivalent arrests). the area of drunk not free to leave At that the offender is point, Rather, for a him. he is detained with citation recording charge against clerk, extended an to be or magistrate, magistrate’s taken period commences, bar of the clerk of a Once that extended detention no jail crime will deter evidence an which by unsuspected happen- stance discloses the evidence. No officer of his faculties possessed will be rhetoric of whose has by judges, exposure danger convinced vicarious, that he should not search down if he been beyond pat strictly feels the detained his him have by may conceivably weapon No officer who for the intro- risks possession. discipline proper permitting vehicle, court, into a magistrate’s duction contraband jail, police other will be deterred a search facility designed from public that occurrence. The bar of evidence in situations such as that in- cannot deterrent rule. volved thus serve the of the exclusionary purpose masochism, of the rale a form of societal becomes Application self-punish- sake of alone. society ment punishment

I thus concur but the result and reasoning majority which are not only would further and set of go adopt specific principles Dukes, ration- Mercurio doctrine but which also are contrary directly alized rale. exclusionary purposes

A for a was denied rehearing February 1972. petition