*1 Dist., G005611. Fourth Div. Three. Feb. [No. 1989.] PEOPLE, THE Plaintiff and Respondent, WADE, DONALD TYLER Defendant and Appellant.
Counsel Carico, D. David under the Court for appointment Appeal, Defendant Appellant. and White, General,
John K. Van Attorney de Steve Chief Kamp, Assistant General, Foster, General, Attorney and M. Attorney Robert Deputy for Plaintiff and Respondent.
Opinion CROSBY, guilty J. Donald Wade to of heroin pleaded possession under being the influence of a his controlled substance after motion to suppress was a Although body cavity evidence denied. of his person did not strictly conform to law as Penal Code expressed section remedy.1 that statute no exclusionary contains We find no basis for under federal law and affirm suppression accordingly.
I 7, 1987, On at 8:30 April Ana approximately p.m., Santa Police Officers Wiist and registration Schweitzer observed a vehicle with expired stickers. Wiist police activated the car’s red while Schweitzer spotlight focused a white spotlight on car’s interior. The officers the car followed for ap- proximately one-half mile and in his passenger noticed rise seat several times, headliner; touching right and his shoulder as he dipped, though adjust were trying to below his something waist. Wade,
Once stopped, the car asked Schweitzer routine passenger, questions and then ordered him out of the car and conducted patdown search. No contraband found. Wiist weapons spoke were also with Wade 1 important Penal following lengthy Code section is to the discussion is a but statute. reproduced appendix It is in full A attached. also observed He his were slow and deliberate. and noticed movements mouth, eyelids, dry droopy he face and that had scratch marks Wade’s aas training years experience Based on pupils. and constricted evaluator, influence of an Wade under the Wiist determined was narcotics searched, no contraband The automobile was but and arrested him. opiate found. was station, room. After an interview
At Wade was escorted to the police visu- lieutenant to conduct a supervising from the receiving permission oral search, Wade down his trousers body cavity pull al Schweitzer told to Wiist saw a small and to over and his buttocks. spread underwear bend object from Wade’s anus and believed was object plastic protruding Chaney Investigator to assist bindle of tar heroin. The officers summoned buttocks; Wade’s and the Chaney spread them. Wearing gloves, rubber *4 invasion into the rectal any physical bindle to the without further fell floor as to the nature of cavity. Laboratory analysis confirmed Wiist’s suspicion in the substance the bindle.
II body cavity Wade launches a attack the two three-pronged visual He heroin because the suppressed searches.2 claims the should have been cause, not failed first searches were the officers to supported probable warrant, obtain a and the searches were conducted in an unreasonable manner. cause to con reject probable
We all three contentions. There was the in car duct first search. Wade’s behavior appearance suspicious reason to hidden on his gave good person. officers believe narcotics were any And the object obviously observation of the in Wade’s anus eliminated to rectal cause conduct the second question concerning probable examination. not a Wade’s does warrant
Despite protestations, require law Code, 4030, a before subd. cavity (Pen. visual search be conducted. § not, course, body sanctuary As is in evidence (h).) human of a which “[t]he . may be concealed with . . to retrieve impunity[,] procedures [appropriate such evidence are neither ‘unreasonable’ se under the Fourth per 2 actually question physi a present These facts close as to whether the second search was search, 4030, body cavity (d)(3). cal term is in Penal as that defined Code section subdivision But, statutory despite concerning need opening a bland in of his brief reference footnote 7 search, cavity body both physical appears for a search warrant to Wade to concede conduct only meaningful light in of searches visual. The not be of our resolution were distinction will appeal. his 308
Amendment, nor violations of ‘due process’ procedures guaranteed by the Fifth and Fourteenth Amendments. v. Scott 21 (People [Citations.]” 284, 876, Cal.3d Moreover, 293 Cal.Rptr. P.2d 123].) [145 “[w]hen person lawfully is . . arrested . searches of the post-arrest body to discover . . . controlled (Salinas substances are generally permissible. [Citation.]” 1073, Breier (1982) 695 F.2d The 1083.) rationale for this rule is several- fold: Retrieval of evidence, concealed contraband preserves prevents the import illegal substances into a penal facility, and also guards against accidental overdosing by the individual ingesting secreting drugs. arrest, Given the circumstances of this a warrantless cavity visual was legal under California law as codified Penal Code section 4030. Federal law is accord. (See, e.g., United States v. Cameron 254, F.2d do not hold that a warrant must be obtained to all prior [“We body cavity searches.”].)
Other of Penal provisions met, Code section 4030 were not however. Code, (See, Pen. e.g., subds. (f) authorization from the § [written “supervising officer on duty” is a for a visual prerequisite body cavity “breast, buttocks, search], (j) or genitalia of the person being [the searched” may not be Nevertheless, touched in a visual body cavity search]). Wade is not entitled to suppression the contraband.
Penal Code section 4030 was expressly enacted “to the protect state and federal constitutional of the rights of people by California establishing statewide policy strictly limiting and strip body cavity searches.” (Pen. Code, 4030, subd. It (a).) is a misdemeanor to “knowingly § and willfully body cavity search in violation of this authorize[] section” conduct[] Code, 4030, (Pen. subd. (n)), and a person by any harmed § such violation is accorded Code, civil specific statutory 4030, remedies. (Pen. subd. (p).) § But nowhere has the Legislature provided for suppression of evidence ob- tained without section 4030 compliance, it although certainly knows how to create an exclusionary rule Code, 631, when it so intends. (See, Pen. e.g., § (c).) era, subd. And in this post-Proposition 8 absent such a pronouncement by the Legislature, state courts are powerless to suppress evidence unless federal law so requires. 326, (People (1985) West 170 330-331 Cal.App.3d Cal.Rptr. 195].) [216
Use of the federal rule exclusionary has been discussed in scores of cases involving physical searches. For example, Rochin v. 342 183, U.S. 165 205, L.Ed. 72 S.Ct. 25 1396], A.L.R.2d the [96 Supreme Court emphasized the importance of a case-by-case test to balancing deter- mine whether an invasion into a suspect’s body “shocks the conscience” (id., at 172 p. L.Ed. at 190]) or p. involves “methods too close to the [96 rack and the screw to” be There, tolerated. (Ibid. L.Ed. at 190].) p. [96 bedroom, him in an jumped entered defendant’s forcibly officers he swal of morphine capsules effort to force expectoration unsuccessful lowed, by stomach pumped his finally having and retrieved the contraband “even hardened The court this offended episode at a determined hospital. 190].) at In (Ibid. p. L.Ed. and the evidence. suppressed sensibilities” [96 1611], L.Ed.2d 105 S.Ct. Lee Winston v. U.S. [84 to remove a general under anesthesia surgery concluded a proposed court not be tolerat his would from the defendant’s chest without consent bullet considered, be factors should ed. The decision set forth various which the individual’s interests dignitary “the extent of intrusion including upon community’s interest in bodily and and “the integrity” personal privacy at 761-762 accurately (Id., pp. or innocence.” fairly determining guilt and at pp. 669-670].) L.Ed.2d [84 body Rochin Winston: The
This case with pales comparison brief, nonviolent, intrusive, not conducted in a minimally search was are inmates of penal offensive manner. Such searches routine for grossly relatively across the When the mild intrusion is balanced country. facilities against combating interest in narcotics use and fact public’s strong invasion the contraband was visible and retrieved without actual of physical cavity, it is clear would body require suppression that federal law not the evidence. To the extent Penal Code section 4030 this state’s represents Amendment, of the there been a Fourth have violation interpretation United States under the view of that Legislature’s Constitution Legislature exclusionary remedy, But the did not enact an amendment. 8 if exists under state after would not be Proposition none law suppression under federal required law. affirmed.
Judgment
Scoville,
J.,
P.
concurred.
us,
SONENSHINE,
In the
before
particular
J.
I concur.
facts
exclusion
v.
by
(Winston
is not mandated
States
Court.
Lee
Supreme
United
662,
U.S. 753
105 S.Ct.
Rochin v.
(1985)
1611];
L.Ed.2d
[84
And,
183,
205,
1396].)
25 A.L.R.2d
Appendix A See next page. *7 311 Appendix A § body cavity forcement throughout been infraction section to searches. prearraignment statewide ing cavity intrusion into a some or all inspection freedom from unreasonable of the genitalia of search which demeanor offenses and to a this section shall not cluding stances rights Welfare detention person tion of a searches, and late Director of the Youth conducted discover and retrieve person tion supervising include the mined there is reasonable visual general except for those minors articulable facts to substances search minor detained weapons, grounds may stances or misdemeanor felonies or offenses involving the weapon 4030. (a) The misdemeanor or infraction offense. The (b) (c) (1) (d) As used in this section: (e) It (0 No application; any object state discovery arbitrarily subjected to cavity made was be is the searches The As used Notwithstanding “Physical body cavity “Visual body cavity “Body cavity” only Director of the of the body cavity of a is arrested upon described jail population, and Institutions Section 40304.5 or subjected Strip that he or she is a and federal constitutional offenses. policies and or policy stnctly Legislature hearing body cavity. violence, person controlled substances or violence nor California. without the provisions visual of the protect contraband, of his or prior searches ^.of officer such specific intent person, wmch the reasonable or infraction requires after thorough clothing and people in this concealed in the detainees arrested body cavity definitions; prior of the body cavity person. arrested in to being on the to and taken into underclothing, the state shall be of the Legislature arrests body believe Some her search concealed apply Section weapon of this section and patdown searches, finds practices for Department prior Consequently, of section, to a detention a any duty. unless a supervisor. and a Authority. clothing Code detained Welfare limiting suspicion of the articulable facts person any cavity present offense, grounds means search” means visual for vagina alleged to such subjected and unnecessary strip and and pnor other person for written placed searches conditions; damages and federal any person 300, 601, alleged or contraband. strip minor detained weapons, minor search” means weapons search or The authorization shall the “strip peace declares held in so as Vehicle and Institutions person searches; to remove or arrange strip body cavity. the persons except search searches for to breasts, buttocks, provision of of a custody, based on suspicion conducting rights described in to have search will that he purpose authonzation of the in a booking cell. shall ato some misdemeanor Corrections to have by stomach or rectal placement infraction or mis- and to search” officer has deter- and in hearing and controlled sub- is female or permit those involving metal detector Code, practices vio- to custody in strip establishing a that law constitutional apply both vary widely enacting seizures. concealing provisions and circum- people body in order to privacy of discover- specific or she the limitation; that contraband of determina- committed committed pnor search or strip No means result in physical law, custody a visual when a Section only on the person. inspec- person of the in the or the cavity body Code, have on and strip en- is a to a and any this or in- he or of to a a ons, misdemeanor in the (2), Section are true: recognizance only cavity Such paragraph and made specific population or his or her authorized there is no reasonable written authonzation supervisor conducting tion or bail emergency. commander. population pursuant or shall be reasonable cavity search. regard searched or his or her authorized by ing health care to detainees and inmates of the under the under practitioner, practice magistrate may and shall except rights genitalia of the the person required by records and made search shall (cid:127)eareh procedure (g) (1) (ii) The strip (iii) The (2) No (j) (h) (/) (i) A (k) A (in) emergency search, subdivisions search. Persons are controlled place offense, no (1) upon conduct The be All person Persons conducting a be conducted m an to release sanitary general No shall not touch the search searched, to cannot All search or visual or which for is conducted. subjected facts copy in this state. Except person 1318) of physical body cavity persons any available, of the person person (!) unless person strip, prior including person poor authority lime of require specifically subdivision the search and a statement of the results of the person physicians nor if registered and circumstances shall be pursuant or infraction of the jail population unless strip, physical body cavity be Any were conditions, medical technician Level I! licensed to substances the same sex as the their official on pursuant shall be recorded in the person to visual not less search, arrested written any observed (0 conducting to a arrested on misdemeanor is not may Chapter is not citation, available, on them release facility visual upon request, person is preempted prior a documented a list of and minor described in subdivision of to physical shall Any physician placed not (h) shall be to Article nurse, or licensed medical authorizing be housed in the general being searched. alternative to such considered to the a authorization cited and paragraph to the to he than three hours. wntten authonzation and or or and held released on his by ¡>crsons (g) representative. pursuant search strip offense physical confined able area of physical body cavity be his or her own or name any l or body violence, in dunes relative search shall be conducted a only by physician, licensed vocational nurse body cavity and signed of as a otherwise by provisions present of the search or a visual items removed from the the person to request, to the and sex of the Title [9] search, representative. placed warrant emergency breasts, buttocks, not involving a uniformed watch released. the search body cavity privacy all searches. (1) shall retain all to the post consequence the (commencing with general in the general engaged in not by be shall be documenting emergency. of agency’s person at being custody [10] participating participating physical present in the the uniformed ball within a to the the following recognizance, search of provisions or her own issued of Part 2. so that population placement. the paragraph personnel. exists and in time, or infrac- to search searched, confined searched required agency's time the searches warrant records provid- facility dunng person person search except weap- of the on nurse body With by body date The jail (b), jail the the or of a a *8 person knowingly willfully (n) A who authorizes strip, physical body cavity or visual conducts guilty in violation of this section is of a misdemeanor. (o) this Nothing in section shall be as construed any statutory any limiting person common law or rights of any injunctive regarding action for damages or precluding prosecution relief, or as under another provision any peace person of law of officer or who other has violated this section. (p) Any person who suffers damage or as harm result of a violation this section a civil bring action to damages, recover actual or one thousand dollars ($1,000), whichever is greater. addition, In the court may, punitive discretion, equitable its award damages, necessary proper, relief as it costs, deems attorney's including reasonable fees.