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Court of Appeal, Fifth District, California.

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent, Allan Foster HAWKINS, Real Party in Interest.

Civ. 1500.

Decided: July 09, 1971

Evelle J. Younger, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Jack R. Winkler, Deputy Atty. Gen., Sacramento, for petitioner. No appearance for respondent. Vizzard, Baker, Sullivan, McFarland & Long, Richard M. Long, Bakersfield, for real party in interest.


Defendant was charged with vehicle manslaughter, violation of Penal Code, section 192, subdivision 3(a), and felony drunk driving, violation of Vehicle Code, section 23101. He moved the superior court for an order suppressing evidence concerning a blood test, which was granted; the People seek review by way of mandate

About 9:30 p. m. on June 21, 1967, Robert Craig was driving his station wagon on Rosedale Highway, accompanied by his wife, Lela, and their three children. At the intersection with Allen Road, real party in interest Hawkins drove his pickup through the stop sign and struck the Craig station wagon. Hawkins was injured and his twin sister, who was riding with him in the pickup, was killed. Mr. and Mrs. Craig were injured and she was taken to the hospital by ambulance. California Highway Patrol Officers Hernandez and Apsit arrived at the scene a few minutes after the accident, and found Hawkins standing near the station wagon. There were two full cans of beer and one empty in the pickup. The officers testified that Hawkins appeared to be dazed and his breath smelled of alcohol, his speech was a little slow and his eyes were bloodshot. Because Hawkins suffered back injuries in the accident, he was not given a roadside sobriety test but was sent to the hospital in the same ambulance as Mrs. Craig.

When the officers completed their investigation at the scene, they went to the hospital, where Officer Apsit contacted Hawkins in the emergency room. He asked him if he would consent to a blood-alcohol test. The officer testified that Hawkins said that he would, so the officer prepared a written consent which was then signed by Hawkins. The blood sample was taken at the hospital in a medically approved fashion, and a chemical test revealed that it contained 203 milligrams per cent alcohol.

At a 1538.5 hearing to suppress the result of the blood test, Hawkins testified that he could not read the form he signed, because blood was in his eyes, and that he thought the paper was an authorization for treatment. He also testified that he did not know who had handed the paper to him and that he had lost consciousness subsequent to the accident. The trial court ordered the results of the blood test suppressed upon the ground the blood sample was obtained in an unreasonable search and seizure in violation of Hawkins' Fourth Amendment rights.

The word ‘unreasonable,’ given its dictionary definition, would support the People's contention that there was nothing unreasonable in taking the blood sample. Officer Apsit believed in good faith that Hawkins consented, and the conditions under which the blood sample was taken are above criticism. However, within the framework of the Fourth Amendment the courts have given the word ‘unreasonable’ a narrower and more specialized meaning from that in common usage. The United States Supreme Court held, in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, that compulsory administration of a blood test comes within the ambit of the Fourth Amendment proscription against unreasonable search and seizure. It is settled that one may consent to waive his constitutional rights and, in particular, his Fourth Amendment right against unreasonable search. (Zap v. United States, 328 U.S. 624, 628, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477.) But, here, the trial court found that consent was not given knowingly and intelligently and we cannot go behind that finding. (People v. Stroud, 273 Cal.App.2d 670, 674–677, 78 Cal.Rptr. 270.) Thus the question that emerges is whether, absent consent, there can be a valid search and seizure where there is no warrant and no arrest.

It is significant that at the scene of the accident the officers had reasonable and probable cause to believe that Hawkins had been driving while intoxicated. They were informed that he had run a stop sign, there were two full cans of beer and one empty in the pickup, his breath smelled of alcohol, his speech was a little slow, his eyes were bloodshot, and he appeared to be somewhat disoriented. However, because of back injuries suffered in the accident, Hawkins was sent to the hospital without being give a roadside sobriety test. In following up their investigation, Officer Apsit went to the hospital to obtain a blood sample in order to determine the amount of alcohol in Hawkins' blood; he was confronted with an emergency in which delay necessary to obtain a search warrant threatened the destruction of the evidence through dissipation (Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409; Schmerber v. California, supra). Thus the officer faced a dilemma: he had reasonable cause to arrest Hawkins and obtain a sample of his blood pursuant to Vehicle Code, section 13353, or he could obtain Hawkins' express consent and defer the arrest in order to permit him to be treated unhampered by being in custody. Rather than arrest him or seek a warrant, the officer selected the alternative procedure and asked Hawkins if he would consent to a chemical test of his blood; when he gave his consent, Officer Apsit prepared a written authorization which Hawkins signed. The blood sample was taken in the hospital, using approved medical procedures under sanitary conditions; no force was used, and the officer did nothing to offend the sense of justice, as occurred in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (see also Schmerber v. California, supra). The officer acted in utmost good faith in that he obtained what he believed was a valid express consent to take a blood sample.

Had the officer arrested Hawkins, the taking of the blood sample would have been incidental to a lawful arrest made upon reasonable and probable cause, removing all doubt. (Schmerber v. California, supra.) Moreover, Vehicle Code, section 13353 provides implied consent as a matter of law where the driver ‘is dead, unconscious, or otherwise in a condition rendering him incapable of refusal,’ which would include Hawkins' condition as the trial court viewed it. But since no arrest was made, the critical question is whether there can be a valid seizure, absent either a search warrant or an arrest, where there is reasonable or probable cause to seize evidence. Specifically, can the seizure stand even though the arrest is not made at or about the time of the search or, as here, defendant's attorney surrenders him by voluntary appearance in a committing court?

We find no California case directly in point. However, in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, we find discussion by the United States Supreme Court that appears to be pertinent. In Chambers, the court traced the history of warrantless searches based upon probable cause to search and seize evidence, quite aside from reasonable or probable cause to arrest. The court relied heavily upon an earlier United States Supreme Court case, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and quoted therefrom as follows:

“The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.' 267 U.S., at 158–159, 45 S.Ct. at 287.'

The court then summarized 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.’

(Cf. People v. Ball, 162 Cal.App.2d 465, 467, 328 P.2d 276; People v. Gonzales, 182 Cal.App.2d 276, 5 Cal.Rptr. 920.)

The circumstances known to Officer Apsit gave reasonable and probable cause to make an arrest. He did not make the arrest, but nevertheless those same circumstances gave reasonable and probable cause to take the blood sample.

In view of the language quoted from Chambers v. Maroney, the validity or reasonableness of a search and the validity of seizure of evidence are not necessarily dependent upon the officer making an arrest. ‘Reasonableness' being a relative term, we go no further than the facts of this case dictate in holding that taking the blood sample in the instant case was based upon reasonable and probable cause, and did not violate Hawkins' rights under the Fourth and Fourteenth Amendments. We are not constrained to suppress the evidence under compulsion of the exclusionary rule since its purpose is to balance the desirability of deterring objectionable police conduct against the undesirability of excluding relevant and reliable evidence. There was nothing objectionable about the police conduct in this case.

Let the writ issue as prayed.

I concur in the reasoning and judgment of the majority opinion and add a few additional comments thereto.

This case does not involve aggravated police illegality or obnoxious or offensive law enforcement conduct or brutal or shocking activity such as may have been involved in People v. Irvine, 113 Cal.App.2d 460, 248 P.2d 502 (affirmed Irvine v. People (1954) 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561) or People v. Rochin, 101 Cal.App.2d 140, 225 P.2d 1, 913 (reversed Rochin v. California (1952) 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183) or People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905, or Mapp v. Ohio (1961) 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and has been involved in a host of other cases wherein the application of the exclusionary rule may find some justification on the ground that it deters that type of illegal police conduct. Many authorities have concluded that the operation of the rule in practice has done no more than bear out the prediction of Mr. Justice Spence in the Cahan case to the effect that the rule would lead to interminable delays, excessive expense, and great uncertainty. I have no doubt that it has led to a glut of cases in the courts caused by a multiplicity of challenges to the methods by which evidence was obtained at every stage of most criminal proceedings. While most of these challenges are unsuccessful, I am convinced that the amount of court time consumed in the consideration and disposition of such contentions is so large as to be one of the principal causes of our current case backlog and our overworked courts.

That the exclusionary rule is undergoing a severe period of reconsideration in our United States Supreme Court is demonstrated by the multiplicity of concurring and dissenting opinions recently filed in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 [filed June 21, 1971], and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 [filed June 21, 1971]. Because I am of the firm opinion that the cogent and forceful statements of Mr. Chief Justice Burger in his dissent in the latter case are correct and are indicative of a trend away from a strict application of the exclusionary rule and toward the adoption of some alternative to deter unlawful police conduct and, therefore, they will be helpful in arriving at the correct conclusion in the case at bench, I set forth some of those statements in the appendix attached to this concurring opinion.

But whatever the merits of the rule, it is currently the law and we are bound by it not only by reason of its application to the states through the Fourteenth Amendment, pursuant to the six to three decision in Mapp v. Ohio, supra, 367 U.S. 643, 81 S.Ct. 1684, but our own Supreme Court in 1955 in the case of People v. Cahan, supra, 44 Cal.2d 434, 282 P.2d 905. However, our own Supreme Court has recently indicated that the application of the exclusionary rule should be no broader than is required to accomplish its alleged purpose, and that is to deter unlawful police conduct. (Lockridge v. Superior Court, 3 Cal.3d 166, 171, 89 Cal.Rptr. 731, 474 P.2d 683.)

As Professor Anthony Amsterdam has noted:

‘As it serves this function, * * * the rule [is a] grudgingly taken medicament; no more should be swallowed than is needed to combat the disease. Granted that so many criminals must go free as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity inflicts gratuitous harm on the public interest. * * *’

(Amsterdam, Search, Seizure and Section 255: A Comment (1964) 112 U.P.L.Rev. 378, 389.)

In the case at bench, a mechanical application of the rule to exclude the evidence of intoxication will in no way serve to deter illegal police conduct, but, to the utter incredulity, consternation and amazement of the citizenry, will do nothing but exclude the most reliable probative form of evidence against a person who has killed a human being operating a vehicle while drunk. Excluding the evidence, if it has any effect at all on future police conduct, which I seriously doubt (see appendix) would tend to cause police to be less humane and solicitous of a person in the medical and psychological position of the real party in interest in this case, by impelling the police, out of an abundance of caution, to cause his immediate arrest and incarceration.

Very clearly, the officer herein had probable cause to arrest the real party in interest and did not do so, solely because he had obtained the written consent to have the blood drawn and undoubtedly felt some compassionate concern for his condition and did not want to add to his problems by the additional traumatic shock of being taken into custody. Had the officer said the ‘magic word’ of ‘arrest,’ it is conceded by all that the taking of the blood sample would have been authorized as an incident thereto. (People v. Duroncelay, 48 Cal.2d 766, 771, 312 P.2d 690; Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.) Had the arrest followed the taking of the sample, the taking would have been authorized. (Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36.) Herein, there was never an arrest, because the real party in interest's counsel surrendered him to the authorities upon the filing of the information charging him with vehicle manslaughter (Pen.Code, § 192, subd. 3(a)) and felony drunk driving (Veh.Code, § 23101).

The minute order of the superior court suppressing the evidence based upon the holding that the signed consent was invalid, states in part:

‘The defendant was in the emergency room being administered first aid from a severe accident which caused the death of his sister, as well as others. He was lying on his stomach with blood all over and had just regained consciousness. He couldn't even read the paper because he had blood in his eyes. * * * Suffering from shock and injury, he does not remember even signing the paper or who talked to him, although he does admit seeing an officer leave the room.’

It is interesting to note that if, under Vehicle Code, section 13353, a person is unconscious, dead, or in such medical condition from injuries that he cannot sign a valid consent (as the court i this instance found) no arrest need be made in order to legally take the blood. The last paragraph of subdivision (a) of Vehicle Code, section 13353 states:

‘Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent and such tests may be administered whether or not such person is told that his failure to submit to or complete the test will result in the suspension of his privilege to operate a motor vehicle.’

It is true that the first paragraph of that section provides in part:

‘* * * if lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor. * * *’

Since the police do not arrest a dead or unconscious person, the last paragraph must necessarily constitute an exception to the first paragrpah requiring an arrest. (See Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448.)

As recently stated by our own Supreme Court, the true test as to whether a search is unreasonable or not under the Fourth Amendment should be whether the person has exhibited a reasonable expectancy of privacy. (People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713.) It has also been said that privacy is not an absolute concept, but it depends upon the circumstances, and the issue is the reasonable expectancy that privacy will be preserved from the intensive scrutiny of others. (People v. McGrew, 1 Cal.3d 404, 412, 82 Cal.Rptr. 473, 462 P.2d 1.) The real party in interest in this instance, having been injured in the accident and then taken to the hospital for treatment, could not have any reasonable expectancy that blood would not be withdrawn by the hospital for some purpose.

Granting that the exclusionary rule is still with us, I am of the opinion that the particular facts in this case require other than a mechanically inflexible response by thinking channelized in cement.


Excerpts from Mr. Chief Justice Burger's dissent in the case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 [filed June 21, 1971].

‘This case has significance far beyond its facts and its holding. For more than 55 years this Court has enforced a rule under which evidence of undoubted reliability and probative value has been suppressed and excluded from criminal cases whenever it was obtained in violation of the Fourth Amendment. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Boyd v. United States, 116 U.S. 616, 633, 6 S.Ct. 524, 533, 29 L.Ed. 746 (1886) (dictum). This rule was extended to the States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The rule has rested on a theory that suppression of evidence in these circumstances was imperative to deter law enforcement authorities from using improper methods to obtain evidence. ‘The deterrence theory underlying the Suppression Doctrine, or Exclusionary Rule, has a certain appeal in spite of the high price society pays for such a drastic remedy. Notwithstanding its plausibility many judges and lawyers and some of our most distinguished legal scholars have never quite been able to escape the force of Cardozo's statement of the doctrine's anomalous result:

‘The criminal is to go free because the constable has blundered. * * * A room is searched against the law, and the body of a murdered man is found. * * * The privacy of the home has been infringed, and the murderer goes free.’ People v. DeFore, 242 N.Y. 13, 21, 23–24, 150 N.E. 585, 587–588 (1926).

‘The plurality opinion in Irvine v. California, 347 U.S. 128, 136, 74 S.Ct. 381, 385, 98 L.Ed. 561 (1954), catalogued the doctrine's defects:

‘Rejection of the evidence does nothing to punish the wrongdoing official, while it may, and likely will, release the wrongdoing defendant. It deprives society of its remedy against one lawbreaker because he has pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches.’

‘* * *

‘* * * But the Exclusionary Rule does not ineluctably flow from a desire to ensure that government plays the ‘game’ according to the rules. If an effective alternative remedy is available, concern for official observance of the law does not require adherence to the Exclusionary Rule. Nor is it easy to understand how a court can be thought to endorse a violation of the Fourth Amendment by allowing illegally seized evidence to be introduced against a defendant if an effective remedy is provided against the government.

‘* * *

‘* * * Rather the Exclusionary Rule has rested on the deterrent rationale—the hope that law enforcement officials would be deterred from unlawful searches and seizures if the illegally seized, albeit trustworthy, evidence was suppressed often enough and the courts persistently enough deprived them of any benefits they might have gained from their illegal conduct.

‘This evidentiary rule is unique to American jurisprudence. Although the English and Canadian legal systems are highly regarded, neither has adopted our rule. See Martin, The Exclusionary Rule Under Foreign Law—Canada, 52 J.Crim.L.C. & P.S. 271, 272 (1961); Williams, The Exclusionary Rule Under Foreign Law—England, 52 J.Crim.L.C. & P.S. 272 (1961).

‘I do not question the need for some remedy to give meaning and teeth to the constitutional guarantees against unlawful conduct by government officials. Without some effective sanction, these protections would constitute little more than rhetoric. Beyond doubt the conduct of some officials requires sanctions as cases like Irvine indicate. But the hope that this objective could be accomplished by the exclusion of reliable evidence from criminal trials was hardly more than a wistful dream. Although , would hesitate to abandon is until some meaningful substitute is developed, the history of the Suppression Doctrine demonstrates that it is both conceptually sterile and practically ineffective in accomplishing its stated objective. This is illustrated by the paradox that an unlawful act against a totally innocent person—such as petitioner claims to be—has been left without an effective remedy, and hence the Court finds it necessary now—55 years later—to construct a remedy of its own.

‘Some clear demonstration of the benefits and effectiveness of the Exclusionary Rule is required to justify it in view of the high price it extracts from society—the release of countless guilty criminals. See Allen, Federalism and the Fourth Amendment: A Requiem for Wolf, 1961 Sup.Ct.Rev. 1, 33 n. 172. But there is no empirical evidence to support the claim that the rule actually deters illegal conduct of law enforcement officials. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 667 (1970).

‘There are several reasons for the failure. The rule does not apply any direct sanction to the individual official whose illegal conduct results in the exclusion of evidence in a criminal trial. With rare exceptions law enforcement agencies do not impose direct sanctions on the individual officer responsible for a particular judicial application of the Suppression Doctrine. Id., at 710. Thus there is virtually nothing done to bring about a change in his practices. The immediate sanction triggered by the application of the rule is visited upon the prosecutor whose case against a criminal is either weakened or destroyed. The doctrine deprives the police in no real sense; except that apprehending wrongdoers is their business, police have no more stake in successful prosecutions than prosecutors of the public. ‘The Suppression Doctrine vaguely assumes that law enforcement is a monolithic governmental enterprise. For example, the dissenters in Wolf v. Colorado, supra, 338 U.S. [25] at 44, 69 S.Ct. [1359] at 1370 [93 L.Ed. 1782], argued that

‘Only by exclusion can we impress upon the zealous prosecutor that violation of the Constitution will do him no good. And only when that point is driven home can the prosecutor be expected to emphasize the importance of observing the constitutional demands in his instructions to the police.’ (Emphasis added.)

‘But the prosecutor who loses his case because of police department; he can rarely set in motion any corrective action or administrative penalties. Moreover, he does not have control or direction over police procedures or police action that lead to the exclusion of evidence. It is the rare exception when as prosecutor takes part in arrests, searches, or seizures so that he can guide police action.

‘Whatever educational effect the rule conceivably might have in theory is greatly diminished in fact by the realities of law enforcement work. Policemen do not have the time, inclination, or training to read and grasp the nuances of the appellate opinions that ultimately define the standards of conduct they are to follow. The issues which these decisions resolve often admit of neither easy nor obvious answers, as sharply divided courts on what is or is not ‘reasonable’ amply demonstrate. Nor can judges, in all candor, forget that opinions sometimes lack helpful clarity.

‘The presumed educational effect of judicial opinions is also reduced by the long time lapse—often several years—between the original police action and its final judicial evaluation. Given a policeman's pressing responsibilities, it would be surprising if he ever becomes aware of the final result after such a delay. Finally the Exclusionary Rule's deterrent impact is diluted by the fact that there are large areas of police activity which do not result in criminal prosecutions—hence the rule has virtually no applicability and no effect in such situations. Oaks, supra, at 720–724.

‘Today's holding seeks to fill one of the gaps of the Suppression Doctrine—at the price of impinging on the legislative and policy functions which the Constitution vests in Congress. Nevertheless, the holding serves the useful purpose of exposing the fundamental weaknesses of the Suppression Doctrine. Suppressing unchallenged truth has set guilty criminals free but demonstrably has neither deterred deliberate violations of the Fourth Amendment nor decreased those errors in judgment which will inevitably occur given the pressure inherent in police work having to do with serious crimes.

‘Although unfortunately ineffective, the Exclusionary Rule has increasingly been characterized by a single, monolithic, and drastic judicial response to all official violations of legal norms. Inadvertent errors of judgment that do not work any grave injustice will inevitably occur under the pressure of police work. These honest mistakes have been treated in the same way as deliberate and flagrant Irvine-type violations of the Fourth Amendment. For example, in Miller v. United States, 357 U.S. 301, 309–310, 78 S.Ct. 1190, 1195–1196, 2 L.Ed.2d 1332 (1958), reliable evidence was suppressed because of a police officer's failure to say a ‘few more words' during the arrest and search of a known narcotics peddler.

‘* * *

‘* * * Yet for over 55 years, and with increasing scope and intensity as today's Coolidge holding shows, our legal system has treated vastly dissimilar cases as if they were the same. Our adherence to the Exclusionary Rule, our resistance to change, and our refusal even to acknowledge the need for effective enforcement mechanisms brings to mind Holmes' well-known statement:

‘It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.’ Holmes, The Path of the Law, 10 Harv. L.Rev. 457, 469 (1897).

‘In characterizing the Suppression Doctrine as an anomalous and ineffective mechanism with which to regulate law enforcement, I intend no reflection on the motivation of those members of this Court who hoped it would be a means of enforcing the Fourth Amendment. Judges cannot be faulted for being offended by arrests, searches, and seizures that violate the Bill of Rights or statutes intended to regulate public officials. But we can and should be faulted for clinging to an unworkable and irrational concept of law. My criticism is that we have taken so long to find better ways to accomplish these desired objectives. And there are better ways.

‘Instead of continuing to enforce the Suppression Doctrine, inflexibly, rigidly, and mechanically, we should view it as one of the experimental steps in the great tradition of the Common Law and acknowledge its shortcomings. But in the same spirit we should be prepared to discontinue what the experience of over half a century has shown neither deters errant officers nor affords a remedy to the totally innocent victims of official misconduct.’

Mr. Chief Justice Burger then proceeds to suggest specific legislation to provide a meaningful and effective remedy against unlawful conduct by government officials in lieu of the exclusionary rule.

STONE, Presiding Justice.

GARGANO, J., concurs.