Jack Galiegos MESTAS, Petitioner, v. The SUPERIOR COURT of the State of California In and For the COUNTY OF SANTA CLARA, Respondent; PEOPLE of the State of California, Real Party in Interest.
Following the grant of an alternative writ of mandate by the Supreme Court (S.F. No. 22807) petitioner's petition for writ of mandate, in which he seeks review of an order denying his motion to suppress evidence (see Pen.Code, § 1538.5(i)), was transferred to this court for reconsideration in the light of Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84.1
The evidence which petitioner seeks to suppress consisted of a woman's purse, and two wallets contained therein, all found in the unlocked truck of petitioner's car subsequent to his arrest on November 2, 1970. The property was identified as having been stolen from an apartment on October 18, 1070. The articles furnished the basis for a charge of burglary on October 18, 1970, and a charge of receiving stolen property on the date of petitioner's arrest. Petitioner was held to answer on both charges, despite objections to the introduction of the evidence at his preliminary hearing. Following his arraignment on an information filed in the superior court, he interposed his motion to suppress.
The opinion in the Mozzetti case was filed April 30, 1971, 16 days after the Supreme Court granted a hearing in this case and ordered the issuance of an alternative writ. (See fn. 1 above.) In his return to the alternative writ the Attorney General contended that the police properly impounded the petitioner's automobile pursuant to the provisions of subdivision (h) of section 22651 of the Vehicle Code.2 He conceded ‘that under the ruling of Mozzetti the purse found in petitioner's [automobile] trunk pursuant to the inventory should not have been opened.’ He urged that the ruling pronounced in Mozzetti should have no application to this case because it should not have retroactive application.
Petitioner in his reply accepted the People's concession, but does not rely on Mozzetti, because, he asserts, there was no right in the first place to impound his automobile. He does point out that the cases upon which the court relied in Mozzetti make it clear that it was always the rule that impounding and inventory did not include the right to search and inventory articles not plain sight. The fact that the Supreme Court ordered reconsideration of this case in the light of Mozzetti is itself a ruling that it should be applied retroactively. Any doubt in the matter has been resolved for practical purposes by a remark in a footnote in Gallik v. Superior Court (1971) 5 Cal.3d 855, 97 Cal.Rptr. 693, 489 P.2d 573 in which it is stated, ‘Accordingly, the ‘Mozzetti rule’ like Kiefer [People v. Superior Court (1970) 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, which was the rule under review in the body of the opinion], does not represent a substantial change in the law and hence is not merely prospective in effect. (Accord, People v. Heredia (1971) 20 Cal.App.3d 194, 97 Cal.Rptr. 488.)' (Id., p. 860, fn. 4, 97 Cal.Rptr. p. 696, 489 P.2d 576.)
It is concluded that insofar as the validity of the seizure of the evidence in question was predicated on the right to search and make an inventory of articles not in plain sight, the trial court erred in failing to grant the motion to suppress. At the argument on the motion to suppress the prosecutor stated, ‘It is the People's position that it was a reasonable inventory of the vehicle that was impounded. . . .’ The court took the matter under submission on the transcript of the preliminary hearing and subsequently announced its decision, as follows: ‘The motion of the defendant pursuant to Penal Code Section 1538.5, having been heard and considered by the Court, is ordered denied.’
The petitioner's pre-Mozzetti argument to this court was predicated upon two propositions: first, that the police had no right to impound the car, and that therefore any search predicated upon the impound was illegal; and second, that the search could not be justified as a search incident to an arrest. Mozzetti renders it unnecessary to consider whether the removal and storage of petitioner's car was justified under the provisions of subdivision (h) of section 22651 and section 22850 of the Vehicle Code.3 In Mozzetti, however, the petitioner was not arrested but had been taken to a hospital after an accident, and the car impounded under the authority of other provisions of section 22651 (see Veh.Code, § 22651, subds. (b) and (g); 4 Cal.3d at p. 702, 94 Cal.Rptr. 412, 484 P.2d 84, fn. 1 and accompanying text). The court expressly pointed out, ‘The search was not incident to a lawful arrest, based on probable cause to believe the vehicle contained contraband, or justified by the peculiar nature of the police custody involved. Nor were there exigent circumstances which made the search reasonable and necessary.’ (4 Cal.3d at pp. 711–712, 94 Cal.Rptr. at p. 420, 484 P.2d at p. 92.)
If the trial court's order may be sustained under one of the exceptions noted in Mozzetti it will affect the relief to be given petitioner, that is, whether the trial court should be ordered to set aside the denial of petitioner's motion and grant the relief he requested, or merely be ordered to set aside its order and hear the matter. Five days after the decision in Mozzetti the court reiterated the general rule applicable to a search of an automobile, as follows: ‘. . . unlike a house search, a car may be searched without a warrant if the officer has probable cause to believe that it contains contraband. (Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 . . .; People v. Superior Court, supra, 3 Cal.3d 807, 816–817, 91 Cal.Rptr. 729, 478 P.2d 449; People v. Webb, 66 Cal.2d 107, 114–115, 56 Cal.Rptr. 902, 424 P.2d 342 . . .; People v. Burke, 61 Cal.2d 575, 578–579, 39 Cal.Rptr. 531, 394 P.2d 67 . . .; People v. Terry, 61 Cal.2d 137, 152–153, 37 Cal.Rptr. 605, 390 P.2d 381 . . .)’ (People v. Fein (1971) 4 Cal.3d 747, 755, 94 Cal.Rptr. 607, 612, 484 P.2d 583, 588.) An examination of the cases cited by the court and related cases reveals the following principles:4
‘It is now settled that as an incident to a lawful arrest, a warrantless search limited both as to time (Preston v. United States (1964) 376 U.S. 364, 367–368, 84 S.Ct. 881, 11 L.Ed.2d 777 . . .) and place (Chimel v. California (1969) 395 U.S. 752, 762–763, 89 S.Ct. 2034, 23 L.Ed.2d 685 . . .) may be made (1) for instrumentalities used to commit the crime, the fruits of that crime, and other evidence thereof which will aid in the apprehension or conviction of the criminal; (2) for articles the possession of which is itself unlawful, such as contraband or goods known to be stolen; and (3) for weapons which can be used to assault the arresting officer or to effect an escape. (See generally Warden v. Hayden (1967) 387 U.S. 294, 300–310, 87 S.Ct. 1642, 18 L.Ed.2d 782 . . .)’ (People v. Superior Court [Kiefer] (1970) 3 Cal.3d 807, 812–813, 91 Cal.Rptr. 729, 731, 478 P.2d 449, 451. See also Coolidge v. New Hampshire (1971) 403 U.S. 455–456, 91 S.Ct. 2022 at pp. 2032–2033, Stewart, J., part IA joined by Douglas J. Brennan, J. and Marshall, J.; but cf. pp. 502–504, 91 S.Ct., pp. 2056–2057, Black, J. concurring and dissenting, part IIIA, joined by Blackman, J. and as to this part by Burger, C. J., and pp. 510–511, 91 S.Ct., pp. 2060–2061, White, J. concurring and dissenting, joined by Burger, C. J.; and note p. 493, 91 S.Ct. at p. 2051, fn.*, Harlan, J., concurring but for other reasons; Caughlin v. Superior Court (1971) 4 Cal.3d 461, 465, 93 Cal.Rptr. 587, 482 P.2d 211; People v. Williams (1967) 67 Cal.2d 226, 229, 60 Cal.Rptr. 472, 430 P.2d 30; People v. Webb (1967) 66 Cal.2d 107, 111–112, 56 Cal.Rptr. 902, 424 P.2d 342; People v. Robinson (1965) 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Burke (1964) 61 Cal.2d 575, 580, 39 Cal.Rptr. 531, 394 P.2d 67; People v. Lovejoy, (1970) 12 Cal.App.3d 883, 887, 91 Cal.Rptr. 94; Martinez v. Superior Court (1970) 7 Cal.App.3d 569, 577, 87 Cal.Rptr. 6 [disapproved on inventory search issue in Mozzetti v. Superior Court, supra, 4 Cal.3d 699, 703 and 712, 94 Cal.Rptr. 412, 484 P.2d 84]; People v. Andrews (1970) 6 Cal.App.3d 428, 85 Cal.Rptr. 908 [disapproved on inventory search issue in Mozzetti v. Superior Court, supra], but see 6 Cal.App.3d p. 439, 85 Cal.Rptr. 908, Molinari, P. J. concurring; People v. Taylor (1969) 2 Cal.App.3d 979, 984, 83 Cal.Rptr. 119; People v. Cox (1969) 269 Cal.App.2d 579, 585, 75 Cal.Rptr. 147; People v. McBride (1969) 268 Cal.App.2d 824, 829, 74 Cal.Rptr. 375; People v. Upton (1968) 257 Cal.App.2d 677, 683–684, 65 Cal.Rptr. 103; People v. Fritz (1967) 253 Cal.App.2d 7, 15, 61 Cal.Rptr. 247; People v. Green (1965) 235 Cal.App.2d 506, 512–513, 45 Cal.Rptr. 371; People v. Loomis (1965) 231 Cal.App.2d 594, 598–599, 42 Cal.Rptr. 124; and People v. Koelzer (1963) 222 Cal.App.2d 20, 29, 34 Cal.Rptr. 718.
In Preston v. United States, supra, the court categorically stated, ‘Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. [Citation.]’ (376 U.S. at p. 367, 84 S.Ct. at p. 883.) The opinion concludes, ‘We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car [in police custody at a garage] without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.’ (Id. at p. 368, 84 S.Ct. at p. 884. See also, Coolidge v. New Hampshire, supra, 403 U.S. at p. 456, 91 S.Ct. at p. 2033, Stewart, J., part IA, joined by three justices, but cf. p. 505, fn. 2, 91 S.Ct. at p. 2057, fn. 2, Black, J. concurring and dissenting, part IIIB joined by two justices; Chambers v. Maroney (1970) 399 U.S. 42, 47, 90 S.Ct. 1975, 26 L.Ed.2d 419; Dyke v. Taylor Implement Co. (1968) 391 U.S. 216, 220, 88 S.Ct. 1472, 20 L.Ed.2d 538; and People v. Burke, supra, 61 Cal.2d 575, 580, 39 Cal.Rptr. 531, 394 P.2d 67.) The rationale of Preston is found in the following passage: ‘The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime—things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest.’ (376 U.S. at p. 367, 84 S.Ct. at p. 883. See also People v. Fein, supra, 4 Cal.3d at p. 755, 94 Cal.Rptr. 607, 484 P.2d 583; and People v. Burke, supra, 61 Cal.2d at pp. 579–580, 39 Cal.Rptr. 531, 394 P.2d 67.)
Nevertheless, both the Supreme Court of the United States, and the courts of this state have found grounds to sustain searches of an automobile which might be considered to be remote in time or place from the arrest of a suspect. In Chambers v. Maroney, supra, seven justices joined in limiting Preston and Dyke, as follows: ‘In Preston, supra, the arrest was for vagrancy; it was apparent that the officers had no cause to believe that evidence of crime was concealed in the auto. In Dyke, supra, the Court expressly rejected the suggestion that there was probable cause to search the car, . . .’ (399 U.S. at p. 47, 90 S.Ct. at p. 1979. See also Coolidge v. New Hampshire, supra, 403 U.S. at p. 505, fn. 2, 91 S.Ct. 2057, fn. 2, Black, J. concurring and dissenting Part IIIB, joined by two justices, and id., at p. 526, 91 S.Ct. at p. 2068, White, J., concurring and dissenting; Cooper v. California (1967) 386 U.S. 58, 60, 87 S.Ct. 788, 17 L.Ed.2d 730; People v. Superior Court (Kiefer), supra, 3 Cal.3d 807, 814, 91 Cal.Rptr. 729, 478 P.2d 449; People v. Upton, supra, 257 Cal.App.2d 677, 681, fn. 1, 65 Cal.Rptr. 103, and accompanying text; and People v. Green, supra, 235 Cal.App.2d 506, 511, 45 Cal.Rptr. 371.) The Chambers opinion refers to Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, as follows: ‘[a]fter surveying the law from the time of the adoption of the Fourth Amendment onward, the Court held that automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.’ (399 U.S. at p. 48, 90 S.Ct. at p. 1979.) The court recognized that Carroll had dispensed with the necessity for a warrant because of the mobility of the vehicle. (Id., at pp. 48, 50, fn. 8, and 51, 90 S.Ct. 1975.) It pointed out, ‘Where this is true . . . if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.’ (Id., at p. 51, 90 S.Ct. at p. 1981 fn. omitted.) It resolved this dilemma as follows: ‘For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.’ (Id., p. 52, 90 S.Ct. p. 1981) It concluded that the probable cause factor still obtained after the vehicle had been driven to the police station following the arrest of its occupants, and that it was not unreasonable to bring it there for a search. (Id., p. 52, 90 S.Ct. 1975, fn. 10 and accompanying text.5 See also Coolidge v. New Hampshire, supra, 403 U.S. at pp. 504–505, 91 S.Ct. at p. 2057, Black, J. concurring and dissenting Part IIIB joined by two justices, and id., at pp. 522–526, 91 S.Ct. at pp. 2066–2068, White, J., concurring and dissenting part III.)
In this state the principle that probable or reasonable cause to search will sustain the validity of the search of a motor vehicle without a warrant has been recognized under varying circumstances. (See People v. Williams, supra, 67 Cal.2d 226, 229, 60 Cal.Rptr. 472, 430 P.2d 30; People v. Webb, supra, 66 Cal.2d 107, 118, 56 Cal.Rptr. 902, 424 P.2d 342; People v. Terry (1964) 61 Cal.2d 137, 152–153, 37 Cal.Rptr. 605, 390 P.2d 381; People v. Taylor (1969) 2 Cal.App.3d 979, 984, 83 Cal.Rptr. 119; People v. McBride, supra, 268 Cal.App.2d 824, 829–830, 74 Cal.Rptr. 375; and cf. People v. Fein, supra, 4 Cal.3d 747, 755, 94 Cal.Rptr. 607, 484 P.2d 583; and People v. Burke, supra, 61 Cal.2d 575, 579, 39 Cal.Rptr. 531, 394 P.2d 67.) As stated in People v. McBride, supra, ‘It is settled that police officers may search a car without a warrant if they have reasonable cause to believe that the car contains contraband or stolen property, even though the search is not incidental to an arrest [citations].’ (268 Cal.App.2d at pp. 829–830, 74 Cal.Rptr. at p. 378.)
As Justice Harlan noted in dissenting in Chambers v. Maroney, supra, ‘. . . the very facts establishing probable cause to search will often also justify arrest of the occupants of the vehicle.’ (399 U.S. at pp. 63–64, 90 S.Ct. at p. 1987. See also People v. Taylor, supra, 2 Cal.App.3d 979, 984, 83 Cal.Rptr. 119.) Many decisions of this state have approved warrantless searches of automobiles by finding the search incident to an arrest based on probable cause despite the qualifying language of Preston. The most complete review of cases is found in People v. Webb, supra. There, after a cursory search at the scene of the arrest, a wrecked automobile was towed to a police parking lot where it was subjected to further search. After an exhaustive review of applicable precedents (66 Cal.2d at pp. 112–126, 56 Cal.Rptr. 902, 424 P.2d 342), the author of the opinion in Mozzetti conclude with the unqualified concurrence of five members of the court, as follows: ‘We conclude that in view of the conditions at the scene of he 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 surveillance, 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.' (Id., at p. 126, 56 Cal.Rptr. at p. 915, 424 P.2d at p. 355.)
In arriving at that conclusion the opinion recognized the oft-reiterated rule “that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case. . . .” (Id., at p. 114, 56 Cal.Rptr. at p. 907, 424 P.2d at p. 347 quoting from Cooper v. California, supra, 386 U.S. 58 at p. 59, 87 S.Ct. 788, 17 L.Ed.2d 730.) In answer to the contention that the owner or operator of the vehicle had been taken into custody and was not at the scene, the opinion, after reviewing some of the precedents, stated: ‘The foregoing decisions teach us that the classic justifications for the doctrine of search incident to an arrest, i.e., the need to discover hidden weapons and the need to prevent the destruction of evidence by the defendant, are not exclusive.’ (66 Cal.2d at p. 118, 56 Cal.Rptr. at p. 910, 424 P.2d at p. 350.) It recognized and approved the following statement from Cooper v. California, supra, ‘It is no answer to say that the police could have obtained a search warrant, for ‘[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’ United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653 . . .” (386 U.S. at p. 62, 87 S.Ct. 788, 17 L.Ed.2d 730, as quoted 66 Cal.2d at p. 119, 56 Cal.Rptr. at p. 910, 424 P.2d at p. 350.) The opinion also endorsed the following rule: ‘Since the officers could lawfully have taken possession of this evidence when they arrested the defendant, the fact that they delayed doing so for reasons of convenience did not render the subsequent seizure unreasonable.’ (66 Cal.2d at p. 120, 56 Cal.Rptr. at p. 911, 424 P.2d at p. 351. See also People v. Williams, supra, 67 Cal.2d 226, 230, 60 Cal.Rptr. 472, 430 P.2d 30). The opinion cites and approves cases which upheld warrantless searches of automobiles which were related to arrests because the search was part of a ‘continuing series of events,’ or because the search and the arrest were ‘units of an integrated incident,’ or each a ‘part of one continuous act,’ or because the search otherwise remote in time or place from the arrest was a ‘continuation’ of the original authorized search (id., 66 Cal.2d pp. 119–123, 56 Cal.Rptr. 902, 424 P.2d 342).
The court did note facts and circumstances which qualified the application of the rules, to wit—the necessity of moving the wrecked car to clear the street, and the need to conduct the search free of interference from bystanders attracted to the scene (id., pp. 124–125, 56 Cal.Rptr. 902, 424 P.2d 342). It also noted that the vehicle had been kept under surveillance and that the search was promptly resumed (id., pp. 125–126, 56 Cal.Rptr. 902, 424 P.2d 342). Moreover, it should be noted that in distinguishing Preston and Burke the court noted that no search had been commenced at the place of the arrest in either case, and it observed, ‘Thus in each case the subsequent search at a different location was general and exploratory in nature, a search for evidence of a crime which the police did not yet know the defendant had committed.’ (Id., p. 124, 56 Cal.Rptr. p. 914, 424 P.2d p. 354.)
In Caughlin v. Superior Court, supra, decided five weeks prior to Mozzetti, the petitioner was in custody under a citizen's arrest for shoplifting. The manager of the store accosted her after she left the store and requested her to come to his office where the citizen's arrest was effected after a police officer had responded to the manager's call. The officer handcuffed the petitioner and took her to the patrol car. As a result of discussion concerning the disposition to be made of the petitioner's dog, the officer, at her direction, went to her car in the store's parking lot to get a notebook which contained a friend's telephone number. He picked up the notebook and a large purse, and in handling the purse, which was open, he noticed it contained a cellophane package which appeared to contain marijuana. Four members of a temporarily constituted court joined in an opinion which recites, ‘Under the facts of this case and the legal decisions governing permissible search and seizure at the time in question, there was a lawful search and seizure of personal property in plain view in a motor vehicle over which the arrest had constructive control and to which she directed the police officer. The purse was taken virtually contemporaneously with the arrest and properly incident thereto. [Citations.]’ (4 Cal.3d at p. 465, 93 Cal.Rptr. at p. 589, 482 P.2d at p. 213, fn. omitted.6 )
In People v. Williams, supra, as a result of a chase of a vehicle suspected of invovement in a burglary, the defendant fled his car on foot and was apprehended 15 or 20 minutes later about a block away. The court ruled, ‘The search of defendant's vehicle conducted at the scene was incident to the arrest. The two events were substantially contemporaneous, and the fact that the search occurred first in time did not render it unlawful. [Citations.] Further, the arrest and search took place within the same general area. Of no legal significance is the fact that defendant, through his efforts to escape, succeeded in separating himself from the car by a distance of about one block. [Citation.] [¶] A defendant's absence from the scene does not of itself render illegal a search which, in view of the totality of surrounding circumstances, is reasonable. [Citations.]’ (67 Cal.2d at p. 229, 60 Cal.Rptr. at p. 474, 430 P.2d at p. 32. See also People v. Taylor, supra, 2 Cal.App.3d 979, 984, 83 Cal.Rptr. 119; People v. Cox, supra, 269 Cal.App.2d 579, 585, 75 Cal.Rptr. 147; and People v. Upton, supra, 257 Cal.App.2d 677, 682, 65 Cal.Rptr. 103; but cf. People v. Perkins (1970) 7 Cal.App.3d 593, 600–601, 86 Cal.Rptr. 585.) It further followed People v. Webb, supra, in validating a continuation of the search at a police storage garage. (Id., 66 Cal.2d at pp. 229–231, 56 Cal.Rptr. 902, 424 P.2d 342. See also People v. Lovejoy, supra, 12 Cal.App.3d 883, 887, 91 Cal.Rptr. 94; People v. Andrews, supra, 6 Cal.App.3d 428, 439, 85 Cal.Rptr. 908, Molinari, P. J. concurring; People v. Jones (1969) 274 Cal.App.2d 614, 623–624, 79 Cal.Rptr. 251; and People v. McBride supra, 268 Cal.App.2d 824, 829, 74 Cal.Rptr. 375.)
In People v. Robinson, supra, the car was stopped in front of the police station, ant the driver and passenger who were apparently intoxicated were taken inside the station for further examination. Another officer searched the car. A unanimous court joined in stating, ‘In the case before us, the police conducted their search at the place of arrest, i.e., in front of the police station, at a time virtually contemporaneous to that of arrest. Viewing the matter realistically, we conclude that the officers, in taking defendant a few steps away to the interior of the police station, acted as reasonably as if they had ordered him to stand in from of his car while they conducted their search. Since the latter course would clearly be incidental to an arrest, the procedure actually employed must as its equivalent be accorded the same legal effect.’ (62 Cal.2d at p. 895, 44 Cal.Rptr. at p. 766, 402 P.2d at p. 838.)
In People v. Fritz, supra, the court in applying People v. Webb, supra, observed, ‘All searches of a suspect's car other than at the immediate time and in the immediate vicinity of his arrest are not ipso facto constitutionally unreasonable [citing Webb]. Searches of a parked automobile generally contemporaneous in time with the arrest but merely in the general vicinity of the point of arrest have been repeatedly upheld as incident to the arrest involved.’ (253 Cal.App.2d at p. 15, 61 Cal.Rptr. at p. 253.) There follows a collection of cases evidencing application of the rule including People v. Green, supra, 235 Cal.App.2d 506, 513–514, 45 Cal.Rptr. 371, which has been cited and approved in Webb (66 Cal.2d at pp. 118 and 124, 56 Cal.Rptr. 902, 424 P.2d 342) and Caughlin (4 Cal.3d at p. 465, 93 Cal.Rptr. 587, 482 P.2d 211).
The circumstances of the arrest and search in this case may now be considered with the foregoing principles in mind.
At 5:25 a.m. on November 2, 1970, while he was driving a patrol car accompanied by Officer Sanders, Officer Reuter of the San Jose Police Department received a call on the radio that a complaint had been made of a prowler from 660 Vine Avenue, Apartment number 2. He drove to area from which the complaint had been received and parked two or three houses to the north of the given address. Another officer was at the scene and had checked out the area behind the apartment building. The complainant told the officers that she had observed the prowler in the carport area in the rear of the apartment complex where she lived. She described the prowler as a short, five foot two or three, white male with long black hair with a white bandana around the forehead, wearing a full length trench coat.
As the officers were leaving she yelled out that she observed the same person in the backyard of the residence next door at 670 Vine Avenue. The officers then ran to those premises. Officer Reuter went out to the street, around a fence separating the premises, and down a driveway on the north side of the house to the garage in back of the house. He looked around the rear with his flashlight, and saw Officer Kelsey, who had been the first on the scene, walking out the driveway to the street. Officer Sanders was in back looking over the fence. Reuter observed that there was a large black object lying flat beside a large brick step, which rose two and one-half feet or so adjacent to a walkway on the south side of the house. He approached the figure and turned his flashlight on it. A head raised up, and he observed a white bandana around the forehead. The person put his head down and remained motionless until Officer Reuter yelled to his companions. The suspect got up and started walking rapidly toward the street and was intercepted there by Officer Kelsey, as Officer Reuter overtook him from the rear.
He was attired, as described by the complainant, in a bandana and a trench coat. With the exception of this attire and a wig, he proved to be naked and barefooted. He was arrested for prowling and for burglary, placed in the rear of Reuter's police car, and advised of the charges against him and of his legal rights. He stated he understood his legal rights. In order to conduct a more thorough search of the trench coat he was removed from the vehicle, and a food coupon book, ten one dollar bills, one five dollar bill, one quarter, one dime, two nickels, and three pennies, and a flashlight were removed from the right pocket of his trench coat.
As Officers Reuter and Sanders were leaving the scene with the suspect, he told them that he had his personal car in the area, that he had just purchased the car and was concerned about it, and that he had some clothing in the car. He directed the officers to where he had left it, and they drove around the block to a point which proved to be right around the corner, about four houses, from where petitioner had been arrested. Officer Sanders went to the vehicle which the defendant had indicated. He found the door standing partially open, shut but not latched. He found the clothing on the floorboard in the front seat, and returned with pants and a shirt and some shoes. Officer Sanders locked the doors to the passenger section of the car to insure the safety of the vehicle. (It was necessary for the tow truck driver to open it when the vehicle was subsequently impounded.) The petitioner donned the clothes and was taken by both officers to the police station where they arrived about five minutes later. On arrival at the station petitioner was taken into the interrogation room. He again voiced concern about his car. Officer Reuter began to do the paper work with respect to the arrest, and Officer Sanders left almost immediately to arrange for impounding the vehicle.
Officer Sanders testified that he impounded the vehicle because the petitioner had been arrested for prowling and burglary, and that in connection with the impound he inventoried the vehicle and all the items in it. When he returned to the car he found the trunk unlocked. He opened the trunk and observed a purse, a tool box with various small tools, and a box with some old clothes. The purse had an unusual attachment for gloves, and was apparently a woman's purse. Sanders opened the purse and found two wallets in it. One of them contained a Navy I. D. card and the other had identification of another person. The officer took the purse and its enclosures and returned with them to the police station, after arranging for the car to be towed to a garage. According to the officer the petitioner was arrested at about 5:40 a.m., the impound slip was made out about 6:15 a.m., and Officer Sanders was only gone 20 or 30 minutes while conducting the search, inventory and impound.
It is obvious that there was reasonable cause to arrest petitioner for ‘prowling.’ Section 647 of the Penal Code provides in pertinent part, ‘Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . . (g) Who loiters, prowls or wanders upon the private property of another, in the nighttime, without visible or lawful business with the owner or occupant thereof. . . .’ Under the provisions of subdivision 1 of section 836 of the Penal Code an officer is authorized to arrest a person for a misdemeanor committed in his presence.7 Petitioner properly concludes that the officers could not arrest the defendant for prowling on the complaint of the original complainant, but he erroneously asserts that since the arrest occurred on the sidewalk as petitioner left the premises on which he was discovered, no violation was observed by the officers. The circumstances of the discovery and apprehension of the petitioner as observed by Officer Reuter are sufficient to establish reasonable cause to believe the petitioner had committed the charged misdemeanor.
The existence of reasonable cause to believe that the petitioner had committed burglary (see Pen.Code, § 836, subd. 3, fn. 7 above) is more tenuous. Officer Reuter testified that he was arrested for burglary because the officers did not know where the money and the food coupon books came from, and that although no reports of a burglary or missing property in that area had been received, the officers were of the impression that he had committed burglary in that area. In arriving at this conclusion they were entitled to consider the complaint which had been made and the information received from the complainant, and the facts that the petitioner was wearing a wig—a device to conceal identity—; that he was carrying a flashlight—often used by sneak thieves—; and that he attempted to conceal himself and avoid detection and apprehension.8
On balance it appears that there was reasonable cause to arrest the petitioner for both offenses. (See People v. Garcia (1969) 274 Cal.App.2d 100, 103–104, 78 Cal.Rptr. 775; People v. Singletary (1968) 268 Cal.App.2d 41, 44–45, 73 Cal.Rptr. 855; and People v. Koelzer, supra, 222 Cal.App.2d 20, 26–27, 34 Cal.Rptr. 718.) In any event, even if there were insufficient reasonable cause to arrest for burglary, there still was a right to search the vehicle incident to the arrest for the misdemeanor. In People v. Burke, supra, the defendant and his companion were arrested because of their suspicious activities and unsatisfactory explanation. Although the court condemned a subsequent search after impound, it stated, ‘The search made of the interior of defendant's car at the time and place of the arrest was lawful as a search incidental to arrest, . . .’ (61 Cal.2d at p. 580, 39 Cal.Rptr. at p. 534, 394 P.2d at p. 70.) In Preston the suspects were arrested for vagrancy, and as noted above, the application of Preston has sometimes been limited by reference to the fact that there are no fruits of implements of the crime of vagrancy. In this case, however, the prowling, combined with the petitioner's attire, or rather, lack of it, reasonably suggested that the suspect was an exhibitionist, a transvestite or a voyeur. It is common knowledge that those suffering from such perversions often steal feminine garments9 (cf. People v. Loomis (1965) 231 Cal.App.2d 594, 598–599, 42 Cal.Rptr. 124.)
It is concluded that the officers would have been entitled to search the petitioner's automobile if he had fled to it and been arrested by or in ti. Such a search would have encompassed a search of the trunk, and the purse itself for the fruits of the crime, and other evidence which would aid in the conviction of the petitioner. (See People v. Superior Court (Keifer), supra, 3 Cal.3d 807, 812, 91 Cal.Rptr. 729, 478 P.2d 449, and cases listed above.) Do the facts that the search was remote in space—around the corner—or in time—within a half hour of petitioner's arrest—invalidate the right to search?
Whether considered under the principle of Chambers v. Maroney—probable of integration of arrest and search as found in People v. Webb and reviewed above, Officer Sanders had the right to make a warrantless search at the time he returned to the vehicle. The fact that the vehicle was not discovered until after the arrest, and then only by direction of the petitioner, does not render its search one not predicated on probable cause for search, nor does it necessarily render the search not incident to the arrest. In Caughlin v. Superior Court, supra, the shoplifter was apprehended on the street and formally arrested in the office of the store manager. Nevertheless, the subsequent seizure of the purse from the car to which she had directed the officer was upheld as virtually contemporaneous with the arrest and properly incident thereto. (4 Cal.3d 461, 465, 93 Cal.Rptr. 587, 482 P.2d 211. See also People v. Taylor, supra, 2 Cal.App.3d 979, 983, 83 Cal.Rptr. 119 [defendant pointed out car]; and People v. Fritz, supra, 253 Cal.App.2d 7, 11, 61 Cal.Rptr. 247 [defendant described car in which suspects arrived at apartment at which they were arrested].)
The fact that the search was delayed in order to take the suspect to jail is not fatal. (See People v. Jones, supra, 274 Cal.App.2d 614, 623, 79 Cal.Rptr. 251; People v. McBride, supra, 268 Cal.App.2d 824, 829, 74 Cal.Rptr. 375; and People v. Green, supra, 235 Cal.App.2d 506, 511–513, 45 Cal.Rptr. 371.) In one sense it could be considered as a continuation of the search that commenced with the discovery and removal of petitioner's clothes. When viewed in the light of Chambers, the probable cause to search which existed at the time of the defendant's arrest was not dissipated by the delay in returning to the scene where the car was located, any more than it would have been had the car been immediately removed to the station.
For the foregoing reasons this court denied the original petition out of hand without depending on the inventory search doctrine.10 Two reasons restrain the same conclusion at this time. In the first place, it is evident that the prosecution throughout has depended upon the alleged right to search and inventory in connection with an authorized removal and storage of a vehicle. The propriety of the search and seizure on other grounds may better be resolved in the first instance by further hearing in the trial court. (Cf. People v. Heredia (1971) 20 Cal.App.3d 194, 200, 97 Cal.Rptr. 488.) Secondly, a further hearing may produce facts (cf. fns. 8 and 9 above) which will remove the controversy engendered by this case further from the penumbra, which as demonstrated above, renders the meaning of ‘unreasonable’ as used in the Fourth Amendment subject to the opinion of one mind out of seven or nine, be it ever so artfully and rationally expressed. (See Coolidge v. New Hampshire, supra; and Caughlin v. Superior Court, supra). It would be improper, however, in view of the circumstances adduced to issue a writ summarily ordering the suppression of the evidence.
To paraphrase from People v. Koelzer, supra, 222 Cal.App.2d 20, 34 Cal.Rptr. 718. Does the fact that the inventory was not warranted by the removal and storage of the petitioner's vehicle constitute ‘a fortuitous windfall for [defendant], as the result of which [he] must be given impunity for [his] crime notwithstanding’ that there was probable cause to search the car as incident to petitioner's arrest? ‘So to hold would not be to preserve any constitutional guaranty, it would only serve to penalize the state.’ Assuming that the officers misinterpreted their authority under subdivision (h) of section 22651 of the Vehicle Code, what of it? ‘The purpose of the exclusionary rule (where it is applicable) is not to punish the state for the blunders of its constabulary. It is to prevent the courts from being a party to the ‘dirty business' of illegal evidence collection, thus discouraging such practices for the future protection of all citizens in the enjoyment of their bill of rights. (People v. Cahan, 44 Cal.2d 434, 282 P.2d 905 . . .)’ Mozzetti has established that the police cannot search for and inventory articles not in plain sight just because they are authorized to remove and to store a vehicle. On the other hand if the search was constitutionally permissible because of probable cause to search, either alone or as incident to the petitioner's arrest, there is no need to exclude the evidence in order to prevent such permitted searches in the future, or to avoid stigmatizing the judicial process. (See 222 Cal.App.2d at pp. 28–29, 34 Cal.Rptr. 718.)
Let a peremptory writ of mandate issue directing the trial court to set aside its order of December 29, 1970 denying petitioner's motion to suppress, and to rehear the said motion on the record before it alone, or with such further evidence as it may in its discretion permit to be adduced.
1. The petition for writ of mandate was originally filed with this court and denied following consideration of the petition, opposition filed by the Attorney General, and the record of the hearing on the motion to suppress. A petition for hearing in the Supreme Court was granted; an alternative write of mandate was issued; the Attorney General filed a return to the writ; he petitioner filed a reply (traverse) to the return; and the matter was then transferred to this court. On reviewing the transcript of the preliminary hearing on which the motion was based this court issued its order reading. ‘The petition for a writ of mandate is denied. (Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.)’ Petitioner again applied for hearing in the Supreme Court. Meanwhile this court having ascertained that an alternative writ had been issued, vacated its purported second denial and set the matter for hearing. Petitioner's second petition for hearing in the Supreme Court was thereupon withdrawn.
2. The authority under which the police impound and inventory following an arrest is Vehicle Code section 22651, subdivision (h) which provides: ‘Any member of the California Highway Patrol or any regularly employed and salaried deputy of the sheriff's office of the county in which a vehicle is located or any regularly employed and salaried officer of the police department in a city in which a vehicle is located, . . . may remove a vehicle from a highway under the following circumstances: . . . (h) When an officer arrests any person driving or in control of a vehicle for alleged offense and the officer is by this code or other law required or permitted to take and does take the person arrested before a magistrate without unnecessary delay.’
3. Petitioner attacked the impounding of the car on the grounds (1) that his arrest was illegal (see discussion in text below), and (2) that a car cannot be automatically impounded when its owner is arrested. (See People v. Nagel (1971) 17 Cal.App.3d 492, 494–498, 95 Cal.Rptr. 129; People v. Andrews (1970) 6 Cap.App.3d 428, 437, 85 Cal.Rptr. 908 (disapproved on inventory search issue in Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 703 and 712, 94 Cal.Rptr. 412, 484 P.2d 84); and Virgil v. Superior Court (1968) 268 Cal.App.2d 127, 131–133, 73 Cal.Rptr. 793. Cf. Martinez v. Superior Court (1970) 7 Cal.App.3d 569, 574, 87 Cal.Rptr. 6 (disapproved on inventory search issue in Mozzetti v. Superior Court, supra); and People v. Andrews, supra, 6 Cal.App.3d at pp. 437–438, 85 Cal.Rptr. 908.) In People v. Nagel, supra, the court pointed out, ‘Defendant's traffic violation [running a red light (Veh.Code, § 21453) and inability to produce a driver's license or other satisfactory evidence of identity as required in section 40302, subdivision (a)] involved no forfeiture of his vehicle, and nothing else occurred that would reasonably justify a search.’ (17 Cal.App.3d at p. 498, 95 Cal.Rptr. at p. 133. Cf. People v. Andrews, supra. 6 Cal.App.3d at p. 431, 85 Cal.Rptr. 908, fn. 1, and Molinari, P. J. concurring at p. 439, 85 Cal.Rptr. 908; and note Virgil v. Superior Court, supra, 268 Cal.App.2d at p. 131, 73 Cal.Rptr. 793.)
4. Since it is inapplicable in this case it is unnecessary to review the ‘plain view’ doctrine. (See Coolidge v. New Hampshire (1971) 403 U.S. 443, 464–473, 91 S.Ct. 2022, 2037–2042, 29 L.Ed.2d 564; Stewart, J., part IIC, joined by three justices, and at pp. 504–509, 91 S.Ct. at pp. 2057–2059; Black, J. concurring and dissenting, part IIIC, with one justice and the Chief Justice concurring, and pp. 520–522, 91 S.Ct. at pp. 2065–2066, White, J. concurring and dissenting, part II, with the Chief Justice concurring. See also Harris v. United States (1968) 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067; People v. Terry (1964) 61 Cal.2d 137, 152, 37 Cal.Rptr. 605, 390 P.2d 381; People v. Perkins (1970) 7 Cal.App.3d 593, 600–602, 86 Cal.Rptr. 585; People v. Green (1965) 235 Cal.App.2d 506, 510–511, 45 Cal.Rptr. 371; and People v. Koelzer (1963) 222 Cal.App.2d 20, 27–28, 34 Cal.Rptr. 718.)
5. In dissenting in part, Harlan, J. accepted the alternative of holding the vehicle until a warrant could be secured. He stated, ‘The Fourth Amendment proscribes, to be sure, unreasonable ‘seizures' as well as ‘searches.’ However, in the circumstances in which this problem is likely to occur, the lesser intrusion will almost always be the simple seizure of the car for the period—perhaps a day—necessary to enable the officers to obtain a search warrant. In the first place, as this case shows, the very facts establishing probable cause to search will often also justify arrest of the occupants of the vehicle. Since the occupants themselves are to be taken into custody, they will suffer minimal further inconvenience from the temporary immobilization of their vehicle. Even where no arrests are made, persons who wish to avoid a search—either to protect their privacy or to conceal incriminating evidence—will almost certainly prefer a brief loss of the use of the vehicle in exchange for the opportunity to have a magistrate pass upon the justification for the search.' (399 U.S. at pp. 63–64, 90 S.Ct. at 1987. See also Coolidge v. New Hampshire, supra, 403 U.S. at pp. 445–464, 91 S.Ct. at pp. 2033–2037; Stewart, J. part IIB, joined by three justices.) Coolidge did not expressly overrule Carroll and Chambers insofar as they rest on probable cause to arrest the occupants of the vehicle, because the only theory in which five justices joined to invalidate the search was stated as follows: ‘. . . the police must obtain a warrant when they intend to seize an object outside the scope of a valid search incident to arrest. . . .’ 403 U.S. at pp. 472–490 and 491, particularly p. 483, 91 S.Ct. at pp. 2042–2047 and 2050–2051, particularly p. 2047; Stewart, J., part IID, joined by four justices. In that part of the opinion the author stated, ‘And as to the automobile exception, we do not question the decision of the Court in Cooper v. California, supra, and Chambers v. Maroney, supra, . . .’ 403 U.S. at p. 482, 91 S.Ct. at p. 2046.)
6. The omitted footnote reads, ‘The challenged search occurred on January 2, 1969, and the limitations imposed by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 . . . are not here applicable. (People v. Edwards, 71 Cal.2d 1096, 1106–1107, 8o Cal.Rptr. 633, 458 P.2d 713 . . .)’ (4 Cal.3d at p. 465, 93 Cal.Rptr. at p. 589, 482 P.2d at p. 213, fn. 1.) Insofar as searches of automobiles are concerned, the court noted as follows in Chambers v. Maroney, supra, ‘Nothing said last term in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 . . . (1969), purported to modify or affect the rationale of Carroll. As the Court noted: Our holding today is of course entirely consistent with the recognized principle that, assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants ‘where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 . . .; see Brinegar v. United States, 338 U.S. 160, 60 S.Ct. 1302, 93 L.Ed. 1879 . . .' 395 U.S. at 764, 89 S.Ct. at 2040, n. 9, . . .' (399 U.S. at p. 50, fn. 8, 90 S.Ct. at pp. 1980, 1981.)
7. Penal Code section 836 provides: ‘A peace officer may make an arrest in obedience to a warrant, or may, pursuant to the authority granted him by the provisions of Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, arrest a person: [¶] 1. Whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence. [¶] 2. When a person arrested has committed a felony, although not in his presence. [¶] 3. Whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.’
8. The petitioner is charged with three prior burglary convictions. There is some indication in the record that he admitted this background to the officers shortly after his apprehension. Officer Reuter testified that he asked the defendant if he had ever been arrested before, but this volunteered answer on cross-examination was not pursued by the prosecutor. Officer Sanders was asked if there was any reason for impounding the vehicle other than because it was customary when a person was arrested. He replied at first ‘No sir,’ and affirmed that it was just standard procedure, and then interjected, ‘He informed us prior to this time that he had been arrested before for burglary.’ The answer was stricken as nonresponsive. The officers would not be required to disregard that information on the issue of probable cause. (See People v. Taylor (1969) 2 Cal.App.3d 979, 983, 83 Cal.Rptr. 119.)
9. Here the record reveals that a pair of female panties, red in color, were found in the purse in the trunk of the car. They were not, however, offered in evidence.
10. In People v. Upton (1968) 257 Cal.App.2d 677, 65 Cal.Rptr. 103, this court noted, ‘. . . nor do we think that the Constitution permits an otherwise unreasonable search of a car simply because the police have statutory authority to impound it under Vehicle Code, sections 22650 and 22651.’ (257 Cal.App.2d at p. 682, 65 Cal.Rptr. at p. 107.) In People v. Andrews (1970) 6 Cal.App.3d 428, 85 Cal.Rptr. 908, a majority of the court held that contraband or other evidence of crime observed during an inventory search in open areas of the vehicle, including glove compartments and trunks, could be seized. It was pointed out that there was no authorization to search hidden places (6 Cal.App.3d at p. 437, 85 Cal.Rptr. 908). No question of opening observed containers was presented. As pointed out in the concurring opinion the search was reasonable as a continued search incident to an arrest (id., at p. 439, 85 Cal.Rptr. 908). Subsequently the latter doctrine was applied under similar circumstances. (See People v. Lovejoy (1970) 12 Cal.App.3d 883, 887, 91 Cal.Rptr. 94.) The original denial of the petition in this matter should not be considered an unqualified endorsement of the inventory search doctrine condemned in Mozzetti.
SIMS, Associate Justice.
MOLINARI, P. J., and ELKINGTON, J., concur.