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Court of Appeal, Second District, Division 2, California.

Richard Robert BRANTNER, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; The PEOPLE of the State of California, Real Party in Interest.

Civ. 39370.

Decided: February 24, 1972

Russell F. Maginnis, Los Angeles, for petitioner. Joseph P. Busch, Dist Atty., Harry Wood, Head, Appellate Division, Eugene D. Tavris, Deputy Dist. Atty., for real party in interest. No appearance for respondent.

Brantner, charged in two counts with possession of restricted dangerous drugs (Health & Saf.Code, § 11910), petitions for an extraordinary writ to compel the superior court to suppress evidence of drugs seized during an asserted unreasonable search of his vehicle.

About 2:30 in the afternoon of 14 April 1971 Officers Divine and Kavanaugh responded to a call to investigate a traffic accident on Pacific Coast Highway. Officer Divine arrived first and found Brantner alone in the driver's seat of a 1967 Chevrolet van located on the muddy dirt shoulder of the highway and facing in the wrong direction. When Divine asked for vehicle registration, Brantner could not locate it because the van had been overturned and righted and everything inside had been spilled. Brantner's speech was slurred; he was unable to perform balance and coordination tests; he staggered; he had difficulty maintaining an upright position; he appeared to be in a stupor yet gave forth no odor of alcohol. Divine arrested Brantner for being under the influence of a drug (Pen.Code, § 647(f), told Officer Kavanaugh to take charge of the vehicle and inventory its contents, and left to book Brantner at the Malibu substation.

Officer Kavanaugh arrived at the scene of the accident a few minutes after Officer Divine. ‘I stood by until something was needed and then Officer Divine informed me he was going to arrest the driver, and I proceeded to store the vehicle.’ Because of the mud in front of the vehicle and because of a quantity of tools, materials, bathroom fixtures, and plumbing fixtures inside the vehicle, Kavanaugh did not conduct his inventory at the scene of the accident but called a tow truck to pull the vehicle out of the mud and move it to the police storage area in Malibu. Kavanaugh followed the vehicle to the storage area and began his inventory within 15 to 20 minutes of the time he had first arrived at the scene of the accident. Inside the vehicle in a closed 14-inch leather bah Kavanaugh found a plastic container containing marijuana seeds. He summoned Officer Divine, who searched the rest of the leather bag and discovered the restricted dangerous drugs which form the basis for this prosecution, as well as marijuana seeds and stems, a pipe, a bowl, roach clips, cigarette wrapping paper, and a cigarette wrapping machine.

The officers did not have a warrant to arrest Brantner or search his van.


The Vehicle Search was Valid as Incident to an Arrest

In their testimony at the preliminary hearing the officers characterized their search as an inventory of the contents of the vehicle incident to its storage. At the time of their search an inventory search of an impounded vehicle had been ruled lawful by California's appellate courts in a number of cases. Subsequently, however, the California Supreme Court in Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84, disapproved of inventory searches and declared that an inventory search which had no independent factual justification amounted to an unreasonable search. Thus the ground stated by the police officers as authority for their search had been invalidated by the Supreme Court subsequent to the time of their search. However, ‘although the search cannot be upheld for the reason given by the officer, if in fact reasonable cause for the search existed, the statement of the officer that he based his authority to search on a ground subsequently disapproved by the Supreme Court does not vitiate the validity of the search if other valid ground for the search existed.’ (People v. Shaw, 21 Cal.App.3d 710, 713, 98 Cal.Rptr. 724, 725 (hearing denied).)

Other valid ground for the search was present here, for incident to the arrest of the sole occupant of the vehicle for violation of Penal Code section 647(f) (found in a public place under the influence of drugs) Officer Divine was entitled to search the vehicle for evidence relating to that offense. (People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834.) A search of a vehicle for liquor, drugs, or narcotics when the sole occupant of the vehicle has been arrested for being under the influence of liquor, drugs, or narcotics is a valid, authorized search. As the court said in Robinson (p. 894, 44 Cal.Rptr. p. 765, 402 P.2d p. 837), ‘Since defendant and the driver of the car were intoxicated, their arrests were lawful. (Veh.Code, § 23102; Pen.Code, § 647, subd. (f); Pen.Code, § 836, subd. 1.) As incident to such arrest the police officers, for the purpose of discovering evidence of the crime, could properly search not only defendant and the driver but the car as well. Thus the officers could lawfully examine the interior of the car for the possible presence of liquor containers.’ Officer Kavanaugh could rely on the arresting officer's request to inventory the van as reasonable cause to make a search. (People v. Lara, 67 Cal.2d 365, 374, 62 Cal.Rptr. 586, 432 P.2d 202.)

The limitations on police inventory searches of a vehicle set out in Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84, have no direct bearing on the validity of the search in the present case. The search in Mozzetti followed an automobile accident in which the driver had been taken to the hospital and her vehicle left on the street blocking traffic. Prior to removal of the vehicle to a police storage area the police conducted an inventory search of the vehicle and discovered narcotics in a closed suitcase inside the vehicle. However, the driver had not been arrested, she was not suspected of a crime, and no probable cause existed to believe her vehicle harbored either evidence of crime or contraband. Therefore, concluded the court, the warrantless search of her vehicle was unreasonable, because removal of a vehicle from the highway and its impoundment by the police do not in themselves justify a warrantless search. Mozzetti thus stands for the proposition that where no reasonable cause for an arrest exists, where no arrest has been made, and where probable cause to suspect the existence of contraband in the vehicle is lacking, the vehicle may not be searched, either at the scene of an accident or at the place of storage.

In contrast are those cases where there is reasonable cause to believe a crime has been committed, where a suspect has been arrested, and where there is rational ground to believe that evidence relating to the crime for which the suspect has been arrested may be found in the vehicle. Such is the situation in an arrest for drunk driving or for driving under the influence of a narcotic. (People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834.) At bench petitioner was arrested in or about his vehicle for being under the influence of a narcotic. Undoubtedly, the only reason he was not arrested for driving under the influence of a narcotic was that the arresting officer at the time of arrest could not be certain that petitioner had been the driver of the vehicle and not a passenger. But an arrest under either charge gives the police probable cause to search the vehicle for specific evidence of the offense for which the arrest has been made.

Agar v. Superior Court, 21 Cal.App.3d 24, 98 Cal.Rptr. 148, relied on by petitioner, is not controlling. That case held that a search could not be justified as incident to an arest where the officer could have made an arrest for possession of narcotics (which would have justified a search), but did not do so and arrested only for reckless driving (which the court declared did not justify a search). (See also People v. Heredia, 20 Cal.App.3d 194, 97 Cal.Rptr. 488, where the officer expressly testified that he was not conducting a search for instrumentalities of crime and where the absence of probable cause to conduct a search was conceded by the prosecution.) Nothing in the instant case suggests Officer Divine did not intend to search the vehicle for evidence of narcotics as an incident of the arrest for a narcotic offense. His characterization of the search as an inventory search rather than as a vehicle search for narcotics incident to a narcotic arrest neither enlarged nor diminished his actual authority to authorize a search.


The Vehicle Search was not Remote in Time or Place

Petitioner also makes the argument that the vehicle search was too remote in time and place to qualify as a search incident to an arrest. We recognize the force of the doctrine that a search incident to an arrest must be substantially contemporaneous in time and coextensive in place with the arrest to qualify as a valid search. Yet the remoteness doctrine is itself an offspring of the basic concept of reasonable search and seizure, and like its parent it must be applied under a rule of reason.

The search took place approximately 10 to 15 minutes after the time of the arrest and was delayed only by the time needed to pull the overturned and righted van from the muddy shoulder of the highway and transport it to the storage area. We think the time interval between arrest and vehicle search was sufficiently short to preserve the contemporaneousness of the search. (People v. Webb, 66 Cal.2d 107, 124–126, 56 Cal.Rptr. 902, 424 P.2d 342 (15 minutes); People v. Williams, 67 Cal.2d 226, 229, 60 Cal.Rptr. 472, 430 P.2d 30 (15 to 20 minutes).)

The distance from the place of the accident to the storage area is not shown in the record, but since the tow truck took only a few minutes to pull the van out of the mud and transport it to the storage area the distance could not have been greater than a few miles. On this aspect of the cause the question is whether a vehicle search which would have been reasonable at the scene of the accident becomes unreasonable because of the movement of the vehicle to a nearby location. We think the concept of reasonableness provides the key to the problem. It should be kept in mind that the sphere of the search, the vehicle, remains the same whether the vehicle has been moved or not. It is the vehicle that is searched, not its location, and hence the scope of the search remains unaffected by the movement of the vehicle to a different location. For this reason warrantless searches of vehicles and ships (whose mobility is comparable to that of vehicles) have always been judged by different standards from those applied to warrantless searches of immobile structures such as houses, warehouses, and offices. (Cf. Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and United States v. Rabinowitz (1950), 339 U.S. 56, 73, 70 S.Ct. 430, 94 L.Ed. 653 (Frankfurter, J., dissenting opinion), with Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.) The search of a vehicle which has been moved to another location is somewhat analogous to the search of an arrested person after his movement to a different location. If a search of an arrested person for instrumentalities of crime, contraband, or weapons is authorized at the scene of the arrest, normally it is still authorized at the police station. So with a vehicle. If a search of a vehicle involved in an accident is authorized at the scene of the accident, then a search conducted a short time later in a more secure location at a nearby storage area rather than on the muddy shoulder of a heavily-travelled highway seems to us a reasonable and sensible way to conduct an authorized search and one which remains incident to the arrest. In People v. Webb, 66 Cal.2d 107, 126, 56 Cal.Rptr. 902, 915, 424 P.2d 342, 355, the court said: ‘We conclude that in view of the conditions at the scene of the arrest it was reasonable for the officers to interrupt the search of defendant's car until it could be moved to a safer location, away from the crowd and out of the line of traffic; that the search at the police parking lot, following a brief delay during which the car was under constant surveilance, should be deemed a continuation of the search lawfully begun at the time and place of the arrest; and hence that the entire search process was incident to that arrest and was not ‘unreasonable’ within the meaning of the Fourth Amendment. Accordingly, it was not error to admit the evidence here challenged.'

On the doctrine of remoteness in connection with reasonable search and seizure of a vehicle we note a difference between the theoretical approach taken by the California Supreme Court and that taken by the United States Court. The California court emphasizes that the search of a vehicle is incident to the arrest, and that the arrest justifies the search. (People v. Webb, 66 Cal.2d 107, 126, 56 Cal.Rptr. 902, 424 P.2d 342; People v. Superior Court (Kiefer), 3 Cal.3d 807, 812, 91 Cal.Rptr. 729, 478 P.2d 449 (incident to an arrest a search may be made for instrumentalities of crime, contraband, and weapons).) The United States Supreme Court has taken the view that the facts which establish probable cause for the arrest also provide probable cause for the vehicle search. Under this latter analysis the vehicle search is directly related to the facts establishing probable cause and is not tied to the intermediate arrest. This difference may be expressed diagramatically:

The difference between the two approaches may be seen by contrasting People v. Webb (1967), 66 Cal.2d 107, 56 Cal.Rptr. 902, 424 P.2d 342, with Chambers v. Maroney (1970), 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. In Webb the California court relied on the doctrine of search incident to arrest and found delay in the conduct of the vehicle search reasonable. In Chambers, where the police with probable cause arrested four robbery suspects driving a vehicle, transported the suspects and their vehicle to the police station, and there searched the vehicle for weapons and evidence, the Supreme Court said that the vehicle search was not sufficiently contemporaneous in time and place to be incident to the arrests. But the court went on to say that just as there was probable cause to make the arrests there was probable cause to search the vehicle for evidence of the crimes for which the arrests were made. Thus both arrests and vehicle search were directly tied to the facts which established probable cause. Under this view, ‘it was not unreasonable in this case to take the car to the station house. All occupants of the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers, and it would serve the owner's convenience and the safety of his car to have the vehicle and the keys together at the station house.’ (p. 52, 90 S.Ct. p. 1081.) Chambers stands for the proposition that ‘whenever the police may make a legal contemporaneous search under Carroll, they may also seize the car, take it to the police station, and search it there.’ (Coolidge v. New Hampshire (1971), 403 U.S. 443, 458, 91 S.Ct. 2022, 2033, 29 L.Ed.2d 564.)

Because of these differing conceptions in the field of search and seizure, the theoretical machinery of California and federal law is not fully intermeshed, and on occasion some grinding of gears results, a circumstance which undoubtedly contributed to the view expressed by Justice Harlan in Coolidge v. New Hampshire that the law of search and seizure is due for overhauling and reevaluation. (p. 490, 91 S.Ct. 2022.) Yet in the vast majority of cases, of which this is one, it amounts to little whether the vehicle search is justified as incident to a contemporaneous arrest (California) or whether the vehicle search is justified by the facts which also furnish probable cause for the arrest. Only when the vehicle search has no immediate relationship to the facts which justify the arrest does this theoretical difference between state and federal law assume practical importance.1 Such is not the situation here, for the search of the vehicle directly related to a search for evidence of the arrest offense and for contraband. Hence the search was not remote under either California or federal law.

The alternative writ is discharged, and the petition for extraordinary writ is denied.


1.  For example, in Coolidgo v. New Hampshire (1971), 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, the court concluded that the seizure and subsequent search of a vehicle in the driveway were not incident to the arrest of the defendant inside his house nor were they justified by the existence of probable cause to believe the vehicle contained stolen, contraband, or dangerous objects. Hence, in the absence of a valid warrant the search was unreasonable.

FLEMING, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.