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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Appellant, v. George BREWER, Defendant and Respondent.

No. A051318.

Decided: September 09, 1991

Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Catherine A. Rivlin, David H. Rose, Deputy Attys. Gen., San Francisco, for plaintiff and appellant. Jay B. Gaskill, Public Defender, County of Alameda, Charles M. Denton, Asst. Public Defender, Oakland, for defendant and respondent.

As originally enacted, Oakland Municipal Ordinance section 3–4.21 (hereafter “the Ordinance”) provided in pertinent part:  “No person shall drink or have in his possession an open container of any alcoholic beverage:  (1) On any public street, sidewalk, or other public way;  (2) within 50 feet of any public way while on private property open to public view without the express permission of the owner, his agent, or the person in lawful possession thereof.”

On the evening of April 17, 1988, Oakland Police Officer Timothy Sanchez observed defendant George Brewer standing in front of Ozzie's Liquor Store and apparently drinking from a container enveloped in a brown paper bag.   Seeing Sanchez, defendant set down the bag and began walking away.   Sanchez checked the bag and found it contained a partially consumed can of beer.   Intending to “cite or arrest” defendant for violating the Ordinance, Sanchez called him back to the sidewalk outside the liquor store.   Sanchez told defendant “I was detaining him for the open container I found in the bag,” and asked defendant for identification.   As defendant started to reach into a rear trouser pocket, Sanchez “decided to pat search him for my safety, however, for weapons before he actually reached in the back pocket.”   Sanchez explained this decision:  “[T]his particular area is a high narcotics area, particularly [the] San Pablo Hotel, which is directly next door to Ozzie's Liquor Store, with that in mind and also the knowledge that many parolees are paroled directly into the San Pablo Hotel[,] I was concerned for my safety.   I just decided to pat search him and ensure he had no weapons.”   Sanchez had personal experience with parolees living in the San Pablo Hotel drinking in front of the liquor store, and with finding weapons on suspects detained in this area.   He also knew that most of the parolees at the hotel had been convicted of violent crimes.   Sanchez told defendant he would be checked for weapons.

As Sanchez was conducting the pat search, he observed a “small zip-lock coin baggie” protruding from one of defendant's trousers pocket.   Sanchez had personal experience that “coin baggies of that kind ․ are commonly used to carry narcotics,” particularly rock cocaine.   Sanchez “at that point ․ immediately suspected that he was possibly carrying narcotics because of my experience.”   Sanchez patted the “baggie” in the pocket, “but because of the thickness of his pants, I couldn't really articulate what it was, but it felt to me like something was in there, something small.”   Sanchez removed the baggie from defendant's pocket and “saw three small yellowish rocks which I know are consistent with the appearance of rock cocaine.”   Sanchez then arrested defendant.

Based upon this incident, defendant was charged with possessing cocaine base in violation of Health and Safety Code section 11350.   The magistrate who conducted the preliminary examination denied defendant's motion to suppress evidence generated by the search.   After the information against him had been filed, defendant moved pursuant to Penal Code section 1538.5, subdivision (i), for a special hearing to determine whether the evidence should be suppressed.1  The trial court granted the motion, and then dismissed the action pursuant to Penal Code section 1385, following which the People commenced this authorized appeal (Pen.Code, § 1238, subd. (a)(7)).

The trial court's decision was based in part on the view, endorsed by the parties, that the Ordinance has a dual emphasis on (1) the possession of alcohol, and (2) the consumption of alcohol.   Accepting the lead of People v. Butler (1967) 252 Cal.App.2d Supp. 1053, 59 Cal.Rptr. 924, the trial court held that the Ordinance's attempted regulation of possession was pre-empted by the exclusive power of the state (see Cal. Const., art. XX, § 22),2 but that Oakland did have the power to prohibit consumption.   The first of the ensuing difficulties is that the court further held that the pre-empted portion of the Ordinance was not severable from the legitimate portion.   Secondly, those portions of the Ordinance that were linked to its “public way” language had been found unconstitutionally vague by a municipal court in 1981, which thus precluded its use by Sanchez in detaining defendant.

Despite desultory opposition by defendant, we discern no basis for not agreeing with the first two of the three conclusions respecting the Ordinance made by the trial court.   Its decision to concur with the Butler result was correct because the underlying reasoning was sound.   We are of the same opinion, and therefore adopt Butler's reasoning as our own:

“ ‘Analysis of the many prior decisions on this subject indicates that although the language differs from case to case, the rationale of all have one thing in common, that is, that chartered counties and cities have full power to legislate in regard to municipal affairs unless:  (1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern;  (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action;  or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.’

“Applying the first of the three above-mentioned criteria, we find that regulation of consumption of alcoholic beverages as distinguished from possession, transportation, etc., was, almost studiously, omitted, it seems, in article XX, section 22 of the Constitution.

“As to the second criterion, the general laws relating to the consumption of alcoholic beverages are quite selective and limited in their application and demonstrate no comprehensive scheme to prohibit the consumption of liquor in situations where such consumption could reasonably be expected to create a police problem.

“As to the third criterion, there would appear to be nothing in a municipal ordinance regulating the consumption of alcoholic beverages on streets, malls, etc., which would have any appreciable impact on the transient citizen to the degree that it would outweigh the benefit to a municipality in the control of such drinking.”  (People v. Butler, supra, 252 Cal.App.2d Supp. 1053 at pp. 1057–1058, 59 Cal.Rptr. 924 [citing and quoting In re Hubbard (1964) 62 Cal.2d 119, 128, 41 Cal.Rptr. 393, 396 P.2d 809].)

Almost a quarter of a century has passed with no challenge to this conclusion.   Numerous subsequent decisions have cited Butler without a hint of criticism.  (See e.g., Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 294, fn. 14, 219 Cal.Rptr. 467, 707 P.2d 840;  Galvan v. Superior Court (1969) 70 Cal.2d 851, 865, 76 Cal.Rptr. 642, 452 P.2d 930;  Gluck v. County of Los Angeles (1979) 93 Cal.App.3d 121, 132, 155 Cal.Rptr. 435;  People v. Robinson (1976) 58 Cal.App.3d 363, 365, 129 Cal.Rptr. 915;  People v. Orozco (1968) 266 Cal.App.2d 507, 512, 72 Cal.Rptr. 452.)   Even if defendant is correct in characterizing these expressions as dicta, their unanimity evidences an approval more firmly entrenched than can be explained by the mere off-hand acceptance of an issue already decided.   There seems no point in disturbing a matter so long at rest.

 But although we agree with the trial court as to the substantive nature of the portions of the Ordinance that are and are not pre-empted by state law, we dispute the conclusion that the portions cannot be uncoupled.   The test of “mechanical severability” requires parsing the Ordinance to delete the segments found pre-empted and unconstitutional in order to determine if the remaining provisions have sufficient grammatical, functional, and volitional characteristics to deserve an independent reincarnation.  (See Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821–822, 258 Cal.Rptr. 161, 771 P.2d 1247.)   The presence of a severability clause helps (id. at p. 821, 258 Cal.Rptr. 161, 771 P.2d 1247), but the most persuasive demonstration is also the most dramatic.   As reconstructed by the District Attorney of Alameda County in the wake of the municipal court's ruling, the Ordinance would read:  “No person shall drink any alcoholic beverage;  (1) on any street or sidewalk;  (2) while on private property open to public view without the express permission of the owner, his agent, or the person in lawful possession thereof.” 3  This redacted version is capable of an independent existence.   It is grammatically coherent in addressing the topic of consuming alcoholic beverages on property not owned by the consumer.   It is functionally complete in that the proscribed behavior is placed in both public and private settings.   There is no problem discerning what is intended.   The fact that the modified version was in fact being enforced without the need for additional action by the relevant legislative authority can be seen as tacit ratification of the de facto editings by that authority.   Accordingly, there is no persuasive reason to believe that the objectionable portions of the Ordinance were so crucial that enactment would not have occurred in their absence.  (See id. at p. 822, 258 Cal.Rptr. 161, 771 P.2d 1247.)

As thus reconstructed, the Ordinance constituted a valid and effective statute at the time Officer Sanchez detained defendant.   Sanchez was therefore entitled to use it as the basis for initiating the detention.4  The only remaining question concerns the propriety of that detention, and of the ensuing discovery of the contraband.

Defendant's suppression motion was submitted to the trial court after an identical motion had been denied by the magistrate conducting the preliminary examination.   A transcript of that earlier proceeding constituted all of the evidence on the renewed motion.   The twofold consequences are that (1) the trial court was limited to determining whether substantial evidence supported the express or implied findings of the magistrate, and (2) our review is identical, no deference being paid to any purely factual determinations the trial court may have made.  (Pen.Code, § 1538.5, subd. (i);  People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223–1224, 266 Cal.Rptr. 473;  People v. Ramsey (1988) 203 Cal.App.3d 671, 677–679, 250 Cal.Rptr. 309.)

 At no time during this prosecution has it ever been intimated that defendant's detention for the infraction violation of the Ordinance ipso facto furnished Officer Sanchez with the justification for a pat search.   Nothing we say here should be taken as validating such a position.   What we do say here is that the evidence heard by the magistrate and recounted at the start of this opinion is substantial support for the magistrate impliedly finding that Officer Sanchez's motivation for the pat search was a legitimate concern for his personal safety.   Sanchez had personal experience with persons in defendant's situation proving to be persons convicted of violent felonies who, once paroled to this precise location, had rearmed themselves.   Sanchez therefore had reasonable grounds for the pat search.   (See In re Frederick B. (1987) 192 Cal.App.3d 79, 86, 237 Cal.Rptr. 338.)   That same store of personal experience led Sanchez to conclude that the baggie he observed (apparently for the first time) during the course of that search was tied to a particular type of illicit substance.   The evidence thus supports a further implied finding by the magistrate to the effect that the search remained within permissible bounds prior to discovery of the baggie's contents.  (See People v. Lilienthal (1978) 22 Cal.3d 891, 898–899, 150 Cal.Rptr. 910, 587 P.2d 706;  People v. Lee (1987) 194 Cal.App.3d 975, 982–985, 240 Cal.Rptr. 32.)   The magistrate's comment that the baggie itself may have been in plain sight only underscores the validity of the latter finding.   (See Washington v. Chrisman (1982) 455 U.S. 1, 5–6, 102 S.Ct. 812, 815–816, 70 L.Ed.2d 778.)

The order of dismissal is reversed.


1.   The city attorney of Oakland submitted a memorandum of points and authorities supporting the prosecution's position regarding the Ordinance.

2.   “The State of California ․ shall have the exclusive right and power to license and regulate the manufacture, sale, purchase, possession and transportation of alcoholic beverages within the State․”  (Emphasis added.)

3.   The record includes a handwritten note by the municipal court judge indicating that “The above is an accurate statement of what was left” following his ruling.It is important to note that the Ordinance as originally enacted was never declared unconstitutional in its entirety.

4.   Given that the Ordinance is and was valid and constitutional, Sanchez's good faith reliance on it must be conceded.   The authorities dealing with good faith reliance on unconstitutional statutes cited by defendant and accepted by the trial court (i.e., Illinois v. Krull (1987) 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364;  Michigan v. DeFillippo (1979) 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343), are therefore immediately distinguishable.

POCHÉ, Acting Presiding Justice.

PERLEY and REARDON, JJ., concur.