PEOPLE v. SIMON

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

The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, Gary Steven SIMON, Real Party in Interest.

Civ. 37324.

Decided: March 23, 1971

Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, Eugene D. Tavris, Deputy Dist. Atty., for petitioner. Richard S. Buckley, Public Defender, James L. McCormick, Benjamin D. Avan, Dennis A. Fischer, Deputy Public Defenders, for real party in interest. No appearance for respondent.

Petition to mandate the Superior Court of Los Angeles County to vacate its order suppressing evidence pursuant to Penal Code section 1538.5.

Los Angeles Police Officer Fred A. Erickson observed Gary Steven Simon (hereinafter called defendant) driving a vehicle after dark without headlights or taillights. He stopped defendant's vehicle, and defendant voluntarily got out of the car and ‘started to play around under the dash. He reached under the dash.’ Officer Erickson asked him to step to the sidewalk and produce his identification. Defendant said he had no personal identification and had no registration for the vehicle. Defendant was then arrested ‘for his traffic violation under authority of 40302(a) of the Vehicle Code.'1

Officer Erickson then searched defendant at the scene of the arrest and in defendant's right front pants pocket found a plastic bag containing a green leafy material which resembled, and later proved to be, marijuana. Defendant was subsequently charged with the felony of possession of marijuana. (Health & Saf.Code, § 11530.) Thereafter the trial court granted a motion to suppress evidence on the ground that while the arrest was lawful the search did not ‘pertain to the arrest’ and that ‘there is no relationship between a search under those circumstances and an arrest. * * * The cases all hold that the search has to be related to the arrest.’

Petitioner, relying on Morel v. Superior Court, 10 Cal.App.3d 913, 89 Cal.Rptr. 297, contends that a person arrested under Vehicle Code section 40302(a) may be searched prior to being transported from the scene of the arrest in a police vehicle. Defendant urges us to ignore the Morel case and be guided by People v. Mercurio, 10 Cal.App.3d 426, 88 Cal.Rptr. 750 and People v. Dukes, 1 Cal.App.3d 913, 82 Cal.Rptr. 218.

We have reviewed the cited cases, and we are persuaded that the rationale of Morel is sound and applies to the present case. Here we have the following situation: (1) there has been a proper arrest, (2) the arrested person is to be transported elsewhere by police vehicle in order to be taken without unnecessary delay before a magistrate. In this situation an arresting officer is entitled to make such search as may be appropriate to assure himself that the arrested person in his custody does not present a danger, either to the arrested person himself, or to the officer, or to a third party, or to the security and integrity of the transportation. Transporting an arrested person by police vehicle to another area involves a greater risk of danger than talking to a person under temporary detention on the street. For that reason the search of an arrested person preparatory to his movement elsewhere may be more extensive and more thorough than that authorized in connection with temporary detention. Since we agree on all points with the analysis by Justice Devine in Morel v. Superior Court, 10 Cal.App.3d 913, 89 Cal.Rptr. 297, we adopt the arguments he there set forth, and we conclude that the search of the arrested person here preparatory to his movement elsewhere was proper. (To the same effect see People v. Brown, 14 Cal.App.3d 507, 92 Cal.Rptr. 473, and Pugh v. Superior Court, 12 Cal.App.3d 1184, 91 Cal.Rptr. 168.) If in the course of such a search contraband is discovered, it may be confiscated and made the basis for an accusation.

A peremptory writ of mandate will issue.

FOOTNOTES

1.  ‘§ 40302 Mandatory appearance‘Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate * * * in any of the following cases:‘(a) When the person arrested fails to present his driver's license or other satisfactory evidence of his identity for examination.’

FLEMING, Acting Presiding Justice.

ALARCON, J.,* concurs.