PEOPLE v. LAIWA III

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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Raymond LAIWA III, Defendant and Respondent.

Cr. 21900.

Decided: July 29, 1981

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., John T. Murphy, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff and appellant. Sheldon Portman, Public Defender, Barbara B. Fargo, Rosemary S. Morrison, Deputy Public Defenders, County of Santa Clara, San Jose, for defendant and respondent.

The People appeal the granting of a motion to suppress evidence pursuant to Penal Code section 1538.5, subdivision (o).

The facts are not in dispute. At approximately noon on July 8, 1980, San Jose Police Officer Harry Sanchez and his partner were on routine patrol southbound on South 2nd Street in San Jose when they saw respondent Raymond Laiwa in the parking lot. Respondent appeared to be under the influence of phencyclidine (PCP); his movements were very stiff and “robot like.” Officer Sanchez approached Laiwa and gave him a test for nystagmus (jerky eye movement) which confirmed his belief the respondent was under the influence of PCP. Officer Sanchez took respondent's handbag from him.

Laiwa was placed under arrest for violation of Penal Code section 647, subdivision (f), a misdemeanor, for being under the influence of PCP. He was handcuffed and placed in the patrol car. The officer's usual procedure in such an arrest was to book the arrestee, who would then be strip-searched and his belongings removed; the officer intended to book respondent. He then searched the handbag, and found one hand-rolled cigarette which he believed to be PCP. Laiwa was then transported to the police station, where he was booked and charged with possession of PCP. (Health & Saf. Code, s 11377, subd. (a).)

The trial court granted Laiwa's motion to suppress the evidence seized by the police in the warrantless search of his handbag at the scene of the arrest. The People contend that the search was an incident to a lawful arrest wherein respondent was to be taken into custody and as such no warrant was required. We agree and reverse the order.

I

We initially acknowledge that searches conducted without warrant violated the Fourth Amendment and are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. (Mincey v. Arizona (1978) 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290; People v. Minjares (1979) 24 Cal.3d 410, 416, 153 Cal.Rptr. 224, 591 P.2d 514.) Moreover, if a warrantless search is to be upheld, it is the People's burden to show that the search falls within one of those exceptions. (People v. Maher (1976) 17 Cal.3d 196, 203, 130 Cal.Rptr. 508, 550 P.2d 1044.)

Among those exceptions is the warrantless search incident to arrest. It is well settled that a warrantless search, limited both as to time and place, may be made (1) for instrumentalities of the crime, its fruits, and other evidence which will aid in the apprehension or conviction of the criminal; (2) for articles of contraband the possession of which is unlawful, such as controlled substances or goods known to be stolen; and (3) for weapons which can be used to assault the arresting officer or to effect an escape. (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 812-813, 91 Cal.Rptr. 729, 478 P.2d 449, citing generally Warden v. Hayden, (1967) 387 U.S. 294, 300-310, 87 S.Ct. 1642, 1646-52, 18 L.Ed.2d 782 and Chimel v. California (1969) 395 U.S. 752, 762-763, 89 S.Ct. 2034, 2039-40, 23 L.Ed.2d 685.)

In United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 the Supreme Court (hewed to a straightforward rule, easily applied, and predictably enforced: ‘(I)n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement, but it is also a “reasonable” search under (the Fourth) amendment.’ “ (New York v. Belton, (1981) — U.S. —, —, 101 S.Ct. 2860, 2863, 69 L.Ed.2d 728.)

In Belton the Supreme Court acknowledged that there existed confusion in the application of its holding articulated in Robinson. (See Belton, ibid. p. —, 101 S.Ct. p. 2863.) The court opined that no straightforward rule had in fact emerged after Robinson. In fact there had developed a series of conflicting federal cases based upon similar facts and furthermore “(t)he state court cases are in similar disarray.” (Id., p. —, fn. 1, 101 S.Ct. p. 2863, fn. 1.) To remedy that confusion, the court clarified what may be searched incident to a lawful custodial arrest other than the person of the arrestee. At issue was the proper scope of a search of the interior of an automobile incident to the lawful arrest of its occupants, in light of Chimel's directive that such a search may not stray beyond the area within the immediate control of the arrestee. Emphasizing the need for a standard workable rule, easily applied and predictably enforced, the court held that the arresting officer could search the car's passenger compartment and any containers within the passenger compartment, whether open or closed. The justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of that privacy interest. (Id., p. —, 101 S.Ct. p. 2864.)

We recognize that the decision of this division in People v. Pace (1979) 92 Cal.App.3d 199, 154 Cal.Rptr. 811, reflects that confusion. In this case the trial court relied on Pace in granting respondent's motion to suppress. The Pace panel relied on United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 to hold that after an individual was arrested for being under the influence of drugs, and the lunchbox which he carried was removed from his immediate control, the warrantless search of that container was unlawful. Chadwick involved the validity of the warrantless search of a padlocked footlocker seized at a train station. After arresting three individuals, federal officers took the locker to a government garage, where they searched it over an hour and a half later. Disapproving that search, the Supreme Court stated, “ warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ (citation), or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” (Id., p. 15, 97 S.Ct. p. 2485.) It was that language upon which this division relied in Pace to hold that after police seized the lunchbox, its warrantless search was unlawful. However, Belton points out that Chadwick does not involve a search incident to a lawful custodial arrest and makes clear that Chadwick simply does not prohibit the seizure and prompt search of a container within the immediate control of an arrestee incident to his lawful arrest. (Belton, supra, — U.S. at p. —, 101 S.Ct. at p. 2865.)1 For that reason, Pace can no longer be considered persuasive authority.

Other courts have apparently also read Chadwick too broadly. In People v. Minjares, supra, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, our Supreme Court considered the validity of the search of a tote bag seized from the trunk of a car. In dictum, the court stated, “It is clear from Chadwick itself that the tote bag would not have been subject to a warrantless search if appellant had been arrested on the street and the bag taken from his possession․” (At pp. 419-420, 153 Cal.Rptr. 224, 591 P.2d 514.) However, in light of Belton, it is apparent that Chadwick simply does not declare the standard against which to assess the validity of a search incident to a lawful arrest.

Although in Belton the search was of an automobile, the court made clear that its holding applied to all custodial arrest searches. The court cited Chimel v. California, supra, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 wherein it held that a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. In Belton the court clarified the application of that holding as it applied to automobile searches. It is clear therefore that the search here did not offend the federal constitutional provisions against warrantless searches.

II

We recognize, however, that the California Constitution is a document of independent force, which may require a more exacting standard for cases arising within the state. (People v. Disbrow (1976) 16 Cal.3d 101, 115, 127 Cal.Rptr. 360, 545 P.2d 272; People v. Brisendine (1975) 13 Cal.3d 528, 545, 119 Cal.Rptr. 315, 531 P.2d 1099.) Therefore, we must also consider whether this search violated article I, section 13 of the California Constitution.

As has been stated, in United States v. Robinson, supra, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 the Supreme Court held that because a custodial arrest based upon probable cause is a reasonable intrusion under the Fourth Amendment, a full search of the person for weapons and evidence incident to that arrest requires no additional justification and is a “reasonable” search under that Amendment. (Id., p. 235, 94 S.Ct. p. 477.)

In People v. Brisendine, supra, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099 the California Supreme Court disagreed with Robinson insofar as it declared a flat rule that the fact of an arrest justifies a search for weapons and evidence in every case. Relying on the California Constitution, the Brisendine court reiterated its earlier conclusion that if an arrestee is to be only cited for an offense which typically has neither instrumentalities nor fruits, no search is allowable unless there are particular facts present which would reasonably lead the officer to believe the subject was armed. (Id., p. 536, 119 Cal.Rptr. 315, 531 P.2d 1099; see People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 202-206, 101 Cal.Rptr. 837, 496 P.2d 1205; People v. Superior Court (Kiefer), supra, 3 Cal.3d at pp. 830-831, 91 Cal.Rptr. 729, 478 P.2d 449.) Nevertheless, the court cautioned that it was not assessing the merits of the Robinson rule as it might be applied to an individual who is to be booked and incarcerated, and we do not read in Brisendine any qualification on the authority of police to search such an individual. We conclude that incident to a lawful arrest for an offense for which an individual is to be booked and incarcerated, California law, like federal law, permits the warrantless search both of the person of the arrestee and of containers carried on his person or within the area of his immediate control for weapons, evidence, or instrumentalities of the crime. Here Laiwa was taken into custody and the police intended to take him to jail. No citation was contemplated. Therefore the search of Laiwa's handbag without a warrant did not violate the search and seizure provisions of the California Constitution.

In the instant case there is an additional ground upon which the warrantless search can be justified. It is well settled that police may search the person and the effects of a prisoner who is to be booked into jail, in order to prevent the introduction of contraband or weapons into the jail and in order to account for and safeguard the property taken from the prisoner. (People v. Bullwinkle (1980) 105 Cal.App.3d 82, 87, 164 Cal.Rptr. 163; People v. Bundesen (1980) 106 Cal.App.3d 508, 515, 165 Cal.Rptr. 174; see People v. Maher, supra, 17 Cal.3d 196, 200-201, 130 Cal.Rptr. 508, 550 P.2d 1044; People v. Longwill (1975) 14 Cal.3d 943, 948, 123 Cal.Rptr. 297, 538 P.2d 753.) When it is shown that a suspect would have been jailed and subject to a booking search, the fact that a thorough search of the booking type occurs prior to the actual booking does not make the search illegal, since no additional or greater intrusion on the privacy of the suspect is involved. (People v. Bundesen, supra, 106 Cal.App.3d at p. 515, fn. 3, 165 Cal.Rptr. 174; see People v. Longwill, supra, 14 Cal.3d at p. 948, 123 Cal.Rptr. 297, 538 P.2d 753.) The validity of such a search, termed an “accelerated booking search,” depends on a factual showing by the People that the suspect would have been subjected to the booking process (People v. Longwill, supra, at p. 952, 123 Cal.Rptr. 297, 538 P.2d 753; People v. Bullwinkle, supra, 105 Cal.App.3d at pp. 87-88, 164 Cal.Rptr. 163), not on a showing of particular facts leading the officer to believe the suspect is either armed or in possession of contraband. Here Laiwa was to be booked therefore the search of his belongings could be justified as an accelerated booking search.

Our conclusion here is consistent with decisions of numerous other California courts, which, relying on either the general principles articulated in Chimel, or on the additional rationale provided by the booking and accelerated booking search concepts, have upheld the search of a container carried on the person of or within the immediate vicinity of an arrestee. (People v. Bundesen, supra, 106 Cal.App.3d 508, 515-516, 165 Cal.Rptr. 174 (booking search: wallet); People v. Bullwinkle, supra, 105 Cal.App.3d 82, 90, 164 Cal.Rptr. 163 (accelerated booking search: purse); People v. Harris (1980) 105 Cal.App.3d 204, 164 Cal.Rptr. 296 (booking search: purse); People v. Flores (1979) 100 Cal.App.3d 221, 230, 160 Cal.Rptr. 839 (search incident to arrest: canvas shoulder bag); People v. Edwards (1971) 22 Cal.App.3d 598, 602, 99 Cal.Rptr. 516 (search incident to arrest: pocket of jacket on chair); People v. Superior Court (Manfredo) (1971) 17 Cal.App.3d 195, 202, 94 Cal.Rptr. 643 (search incident to arrest: open shopping bag on floor); People v. Belvin (1969) 275 Cal.App.2d 955, 959, 80 Cal.Rptr. 382 (search incident to arrest: purse on bedroom floor).)

III

Relying on People v. Longwill, supra, 14 Cal.3d 943, 949, 123 Cal.Rptr. 297, 538 P.2d 753, respondent argues that the warrantless search of his bag was unjustified because he was arrested for a citable misdemeanor offense, public intoxication, for which he was likely to be released pursuant to Penal Code sections 849, subdivision (b)(2), or 853.6.

With felony arrests, jailing is the normal result, and no further showing is necessary to justify an accelerated booking search. However, with offenses where the police have some statutory alternatives, the validity of the accelerated booking search depends on a factual showing by the People that the suspect would have been subjected to the booking process. (People v. Bullwinkle, supra, 105 Cal.App.3d 82, 87-88, 164 Cal.Rptr. 163.)

In Longwill the court held that the individual arrested pursuant to Penal Code section 647, subdivision (f), for being found in a public place under the influence of intoxicating liquor is not subject to an accelerated booking search, because of the significant probability that the arrest will be disposed of by a method other than incarceration. (Id., 14 Cal.3d pp. 947-948, 123 Cal.Rptr. 297, 538 P.2d 753.) However, respondent's reliance on Longwill is misplaced. Section 647, subdivision (f), also prohibits being in a public place under the influence of “any drug ․” and respondent was arrested for being under the influence of PCP, not alcohol. As explained in People v. Knutson (1976) 60 Cal.App.3d 856, 131 Cal.Rptr. 846, the law directs no quick release for one arrested under the influence of a controlled substance such as PCP. Moreover, it is probable that such an individual has contraband in his possession. “Without a search there (exists) a probability that the substance would be disposed of in some manner (citation), or worse, that the unfortunate possessor, in the ‘high’ state he had brought upon himself, might ingest the drugs remaining on his person.” Longwill does not prohibit an accelerated booking search of one arrested for being under the influence of PCP. (Id., at p. 867, 131 Cal.Rptr. 846.)

To justify an accelerated booking search, the officer's subjective conclusion that an individual is under the influence of a drug must be based on more objective evidence than just the mere absence of a detectable alcoholic odor. (People v. Longwill, supra, 14 Cal.3d at p.950, fn. 2, 123 Cal.Rptr. 297, 538 P.2d 753; People v. Knutson, supra, 60 Cal.App.3d at p. 867, 131 Cal.Rptr. 846.)

Here the officer testified without contradiction that he arrested respondent for being under the influence of PCP based on his observations that respondent's movements were stiff and “robot like,” and that his eye reaction during a nystagmus test was consistent with being under the influence of PCP.

In addition, the officer testified that respondent was to be transported to the San Jose Police Department, where he was to be booked, strip-searched, and his belongings taken, which was the officer's practice in all similar cases. Given that uncontradicted testimony, the fact that some individuals who are arrested for misdemeanor offenses are cited and released pursuant to Penal Code section 853.6 is irrelevant. Because respondent was arrested for being under the influence of PCP, not intoxicating liquor, he was not subject to release pursuant to Penal Code section 849, subdivision (b)(2), which applies to persons arrested for intoxication only. Since there was no evidence the officer considered delivering respondent to a facility or hospital for treatment, or even that such a facility exists, any theory that he could have been released pursuant to section 849, subdivision (b)(3) is mere speculation without evidentiary foundation.

The People's factual showing that respondent was to be booked was sufficient, and the warrantless search of his handbag offended neither the federal nor the California constitutions. Therefore the trial court erred in granting respondent's motion to suppress.

The order granting the motion to suppress is reversed.

I

A majority of this court concludes that People v. Pace (1979) 92 Cal.App.3d 199, 154 Cal.Rptr. 811 “can no longer be considered persuasive authority.” (See maj. opn. at p. 844.) Because I do not subscribe to their view, I respectfully dissent. I hasten to add that whatever else Pace may be fairly stated to reflect, it most assuredly does not reflect “confusion in the application of the holding in United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427. (See maj. opn. at p. 843.) Succinctly stated, the Pace panel acknowledged that Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, had ”reestablished the primacy of the warrant requirement.“ (See People v. Pace, supra, 92 Cal.App.3d at p. 207, 154 Cal.Rptr. 811.) In Pace, we reasoned that the Fourth Amendment (U.S.Const.) “․ warrant requirement must be satisfied in every case where exigent circumstances do not justify ignoring it.“ (See Pace, supra, at p. 204, 154 Cal.Rptr. 811.) United States v. Robinson, supra, involved the traditional exception to the warrant requirement of the Fourth Amendment, i. e., a search incident to a lawful arrest; but only the first historically formulated proposition thereof and not the second. Factually, Robinson involved a search of the person of the arrestee. Robinson did not involve the second proposition of ”search incident to a lawful arrest, “ i. e., ”the area within the control of the arrestee.“ The point is that Pace involved the ”second proposition,“ the ”area“ and not the ”first,“ the ” person. “ And so it is with Laiwa in the case at bench. The Pace panel recognized these historically distinctive ”propositions“ as set out by the United States Supreme Court in Robinson, supra, at page 224, 94 S.Ct. at p. 471. Indeed, in Pace the panel was required to recognize the propositions; the Attorney General argued that because Pace could not be heard to object to a search of his person, he could not be heard to object to the lunch box he was carrying for the reason that he justifiably had no greater ” expectation of privacy“ therein. In answering the Attorney General, the Pace panel expressed no doubt about the viability of the ”first“ proposition. (See Pace, supra, 92 Cal.App.3d at p. 204, 154 Cal.Rptr. 811.) However, as to the ”second “ proposition, we impliedly acknowledged that Pace's lunch box was in the area ”within his immediate control construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. “ (See Chimel v. California, supra, 395 U.S. 752, at page 763, 89 S.Ct. 2034, at page 2040, 23 L.Ed.2d 685.) We held, however, that once Pace's lunch box was in the exclusive custody and control of the police authorities thereby negating any risk or danger that he could seize a weapon or destroy evidence of a crime, justification for a warrantless search no longer existed.

Chief Justice Burger in United States v. Chadwick (1977) 433 U.S. 1, at page 16, footnote 10, 97 S.Ct. 2476, at page 2486, footnote 10, 53 L.Ed.2d 538, likewise distinguished searches of the person from searches of possessions within the arrestee's immediate control, opining that “(u)nlike searches of the person, United States v. Robinson, 414 U.S. 218 (94 S.Ct. 467, 38 L.Ed.2d 427), ․ (1973); United States v. Edwards, 415 U.S. 800 (94 S.Ct. 1234, 39 L.Ed.2d 771), ․ (1974), searches of possessions within an arrestee's immediate control cannot be justified by any reduced expectations of privacy caused by the arrest.” (See also United States v. Schleis (8 Cir. 1978) 582 F.2d 1166, at p. 1171.)

Pointedly then it most certainly was not out of any sense of “confusion” that we reasoned “(T)he warrant requirement must be satisfied in every case where exigent circumstances do not justify ignoring it.” (See Pace, supra, 92 Cal.App.3d, at p. 204, 154 Cal.Rptr. 811.)

Moreover, the Pace panel did not view Chadwick as a case involving “a search incident to a lawful custodial arrest” and consequently read Chadwick too broadly. (See maj. opn. at p. 843.)

A case of “no necessity” would be a more accurate assessment of the Pace panel's view of cases like Pace and Laiwa, at bench.

United States v. Chadwick, supra, 433 U.S. 1, at page 15, 97 S.Ct. 2476, at page 2485, 53 L.Ed.2d 538, facially makes it clear that a search, as in Chadwick, “․ remote in time or place from the arrest” is not a search incident to that arrest. However, Chadwick, at page 15, 97 S.Ct., at page 2485, also makes it equally clear that a seizure of a lunch box as in Pace or a blue and orange handbag as in the instant case cannot be justified as incident to that arrest either if no exigency exists. I quote in relevant part Chadwick, commencing at page 14, 97 S.Ct. at page 2485. “Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the ‘immediate control’ area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Terry v. Ohio, supra. However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ Preston v. United States, 376 U.S. (364), at 367 (84 S.Ct. 881, at 883, 11 L.Ed.2d 777) or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. (Footnote omitted; emphasis added.) (P) Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency. Even though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority. Respondents were therefore entitled to the protection of the Warrant Clause with the evaluation of a neutral magistrate, before their privacy interests in the contents of the footlocker were invaded.” (Emphasis added.)

Although Laiwa's handbag was opened and searched immediately after his arrest, at the time and place no exigency existed justifying the search. I would hold that the search of his property revealing his personal effects was not incident to his arrest and therefore unreasonable. I would affirm.

The reasoning in New York v. Belton (1981) — U.S. —, 101 S.Ct. 2860, 69 L.Ed.2d 768, does not dissuade me from the views I have expressed. I would, of course, not hesitate to follow Belton as Fourth Amendment controlling precedent if I was satisfied, as apparently my colleagues are, that Belton applied to all custodial arrest searches including those factually similar to the case at bench. (See maj. opn. at p. 844.) However, I am not satisfied that such is the case. Admittedly, Belton portends that the United States Supreme Court may soon “expand the scope of (all) searches incident to custodial arrests by permitting police officers to search areas and containers the arrestee could not possibly reach at the time of arrest.” (See Brennan, J. dissenting opinion in Belton, supra, at p. —, 101 S.Ct. at p. 2868.) However, in my view, contrary to that of the majority herein, Belton's holding is limited to the “articles inside the relatively narrow compass of the passenger compartment of an automobile ” Chimel ‘s fundamental principles “regarding the basic scope of searches incident to lawful custodial arrests” are specifically not altered and the opinion professes to do no more than determine the meaning of those principles in the particular and problematic context of a custodial arrest of automobile occupants and contemporaneous search of the passenger compartment of their automobile. (See Belton, supra, — U.S. p. —, fn. 3, 101 S.Ct. p. 2864, fn. 3.)

In light of the fact that Belton, at page —, 101 S.Ct. at page 2862, asserts that Chimel ‘s emphasized principle that “(T)he scope of (a) search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible' ” (see Chimel, supra, 395 U.S. at p. 762, 89 S.Ct. at p. 2039) remains in full force and effect, I am in no hurry to disavow or concede Pace. Even as all roads through Chimel v. California, supra, led back to Frankfurter, J.‘s dissent in United States v. Rabinowitz (1950) 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 perhaps the Supreme Court may decide to heed Brennan, J.‘s dissent in Belton, at page —, 101 S.Ct. at page 2870, as regards non-automobile custodial arrest and incidental searches in immediate control areas and remain “faithful to the Fourth Amendment.”

The Chimel court at page 760, 89 S.Ct. at page 2038, of course, subscribed to Justice Frankfurter's view expressed in his dissent in Rabinowitz that the Fourth Amendment's proscription against “unreasonable search and seizures” must be read in the light of this nation's history of abuses in colonial times that were a “potent” cause of the American Revolution. (See Rabinowtz, supra, 339 U.S. at p. 69, 70 S.Ct. at p. 436.) Justice Frankfurter understood, of course, and taught us that the “gloss of history” dictated that “a search is ‘unreasonable’ unless a warrant authorizes it barring only exceptions justified by absolute necessity” (id., at p. 70, 70 S.Ct. at p. 437); that to sanction a warrantless search merely because of the legality of the arrest was to make a mockery of the Fourth Amendment. (Id., at p. 70, 70 S.Ct. at p. 437.) For Frankfurter, justification for search of the person and his or her physical extension incident to arrest is vested in “necessity” (at p. 72, 70 S.Ct. at p. 437-38). Because the main “aim” of the Fourth Amendment is against invasion of the right of privacy as to one's “effects” and “papers” and because the amendment's “purpose” is to assure that probable cause to make a legal search be determined by a judicial officer before arrest subject only to exceptions dictated by necessity, Frankfurter cautioned against enthroning the exceptions into the rule. (At p. 80, 70 S.Ct. at p. 441-42.)

The search of Laiwa's handbag meets no criteria of reason that I can perceive. The personal “effects” he carried in his handbag were a part of his personality and his life in which he had a justifiable and legitimate expectation of privacy which should not have been invaded without judicial authorization, i. e., a search warrant. The result my colleagues reach enthrones the exception into the rule.

II

The majority opinion concludes that the search of Laiwa's handbag incident to his custodial arrest did not violate article I, section 13, search and seizure provisions of the California Constitution. I dissent from this view.

Our California Supreme Court has stated that article I, section 13 of the California Constitution requires a more exacting standard, with respect to searches and seizures, for cases arising in California than minimum standards required in order to satisfy the Fourth Amendment's proscriptions of unreasonable searches. (See People v. Brisendine (1975) 13 Cal.3d 528, 545, 119 Cal.Rptr. 315, 531 P.2d 1099.) Brisendine, of course, demonstrates that in one area interpreting “search incident to arrest” California has staged a significant departure from Fourth Amendment law.

As the California Supreme Court explained in detail in People v. Brisendine, supra, at pages 545-552, 119 Cal.Rptr. 315, 531 P.2d 1099, California does not subscribe to the rule of United States v. Robinson, supra, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, insofar as it permits full searches of any person under lawful custodial arrest without inquiry into whether the justifications for search incident to arrest apply to the particular arrestee. In California, only a pat-search for weapons is permitted when the arrest is for a crime without “instrumentalities” or “fruits” and for which the defendant may not be booked and incarcerated unless there are particular facts which would lead the officer to believe the subject possesses a weapon (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 202-206, 101 Cal.Rptr. 837, 496 P.2d 1205). Thus, in Brisendine though the officer was permitted to pat-down the defendant's pack before placing him in the patrol car and was even permitted to enter the pack because its rigid structure made the pat-down meaningless, he was not permitted to inspect the contents of a frosted plastic bottle in connection with an arrest for violation of a campfire ordinance. This was in direct and acknowledged contrast to the decision in Robinson, where the contents of a cigarette package were examined during a search incident to arrest for driving with a revoked license. This was an example of the California Supreme Court examining the justification for the rule before applying it to the particular case, not following the Robinson court's lead of applying a broad rule to all arrest situations without litigating in each case whether the reasons for the rule existed. (See also People v. Maher (1976) 17 Cal.3d 196, 130 Cal.Rptr. 508, 550 P.2d 1044; People v. Longwill (1975) 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753; People v. Norman (1975) 14 Cal.3d 929, 123 Cal.Rptr. 109, 538 P.2d 237.)

Brisendine and related cases establish that California has a different rule for who can be subjected to a full search incident to an arrest. In light of Chadwick, supra, there has been little or no occasion to establish a different California rule for what can be searched incident to arrest. However, dictum in People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, coupled with the California Supreme Court's penchant for looking to justification for the rule rather than relying only upon broad categorical rules, suggests a departure from Fourth Amendment law in this area as well.

In Minjares, a tote bag in the trunk of a car was searched after the driver had been arrested for robbery and taken to the police station. Relying upon United States v. Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, the Minjares court concluded that a warrant should have been obtained before searching once the tote bag came under the exclusive control of the police. The court went on to state, in dictum: “It is clear from Chadwick itself that the tote bag would not have been subject to a warrantless search if appellant had been arrested on the street and the bag taken from his possession.” (24 Cal.3d at pp. 419-420, 97 S.Ct. 2476, 53 L.Ed.2d 538.)

This dictum makes sense. Chadwick stated only that a warrant would be required to search luggage or other personal property not immediately associated with the person of the arrestee in circumstances when there was no longer any danger that the arrestee might gain access to the property (433 U.S. at p. 15, 97 S.Ct. at p. 2485.) Minjares interpreted Chadwick to apply to a tote bag carried by the arrestee. In my view this is not a misinterpretation of Chadwick but a statement that a tote bag would not be “immediately associated with” a person even if being carried by the person. In any view it suggests that the California Supreme Court will look to the justification for a rule before applying it to new circumstances and suggests in particular that it will take that approach when considering what might be searched incident to arrest.

The Belton court drew “bright” lines to guide officers in determining what they could search. The lines were physical, encompassing all items in the interior of the car and their contents. At least when applied to containers in the exclusive control of the police, these lines spread beyond any justifications. Aside from stating a desire for rules which could be easily applied by the police, the only justification for not excepting from warrantless search those items in the control of the police was given in footnote 5 to the Belton decision: “It seems to have been the theory of the Court of Appeals that the search and seizure in the present case could not have been incident to the respondent's arrest, because Trooper Nicot, by the very act of searching the respondent's jacket and seizing the contents of its pocket, had gained ‘exclusive control’ of them. (Citation.) But under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee's person, an officer may be said to have reduced that article to his ‘exclusive control.’ ” This is hardly a justification, and does not recognize the distinction between seizure of a container and search of contents, a distinction lying at the heart of the Chadwick decision.

California courts can protect the logic of both Chimel and Chadwick by walking a different line from that drawn by the Belton court, acknowledging that in a search incident to arrest the police have the right to search clothing, search surrounding areas and seize containers to prevent access to weapons or to evidence or contraband which might be destroyed. However, when containers have been reduced to the exclusive control of the officers, absent exigent circumstances or the accelerated booking search rationale, discussed below, they may not be searched without warrant. Such an approach is suggested by the dictum of Minjares and is more consistent with the California Supreme Court's approach to establishing rules than is the decision in Belton. Brisendine and related cases establish strong precedent for California's departure from Fourth Amendment law on searches incident to arrest. I would hold that the warrantless search of Laiwa's handbag did violate article I, section 13 of the California Constitution.

III

The Attorney General's sole contention on appeal is that “respondent's bag was properly subjected to an accelerated booking search.” Understandably respondent makes no other contention because in the Superior Court the matter was submitted on the basis of the preliminary transcript. Before the magistrate the officer testified that he opened and searched the bag in order to inventory its contents.

In People v. Bundesen (1980) 106 Cal.App.3d 508, 165 Cal.Rptr. 174, this court (White, P. J., with Scot, J. and Feinberg, J.) discussed the accelerated booking rule and how it related to Chadwick and Pace. In Bundesen, during the arrestee's transportation to the police department for booking an officer searched his wallet (which he had found under the seat of his car). Defendant contested the wallet search on the basis of Chadwick, Pace, and other decisions in the Chadwick line of authority. This court declined the defendant's suggestion that it rule that Chadwick and its progeny impliedly invalidated booking searches of all closed containers, finding instead that Chadwick did not apply to containers immediately associated with the person of the arrestee.

The courts of this District which have criticized Pace have done so in part because of its failure to consider the “accelerated booking search” rationale and to acknowledge Chadwick's exception for items immediately associated with the person. (See, e. g., People v. Harris (1980) 105 Cal.App.3d 204, 213-218, 164 Cal.Rptr. 296; People v. Flores (1979) 100 Cal.App.3d 221, 228-233, 160 Cal.Rptr. 839.) However, the People did not argue that theory to the Pace court.

Pace is consistent with Bundesen only if the lunch box carried by the defendant is not considered to be “immediately associated with the person of the arrestee.”

Consistent with the views hereinabove expressed, I find that Laiwa's handbag while in an area under his immediate control was not an item immediately associated with his person. As such it was not subject to an accelerated booking search. (See People v. Bundesen, supra, at p. 516, 165 Cal.Rptr. 174.)

Frankfurter 339 U.S. at page 78, 70 S.Ct. at page 441, in his Rabinowitz dissent points out that language like “possession” or “in his immediate control” are terms of “treacherous ambiguity.” As such in Fourth Amendment discussions, dictionary definitions are meaningless, only the gloss of history will unerringly instruct. “Necessity” remains the touchstone. We are a tote bag nation. You name it, we carry it. Personal luggage in which we store our personal effects are mobile and open to public view. Unlike wallets they are not a part of our person. In the absence of “necessity” occasioned by exigent circumstances, once they are seized by the police, the proscription against unreasonable seizures compels a judicial warrant authorizing their search.

I would affirm.

FOOTNOTES

1.  The court noted the Court of Appeals' theory that the police, by seizing an item from the arrestee, had reduced the item to their “exclusive control” and remarked that “under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee's person, an officer may be said to have reduced that article to his ‘exclusive control.’ ” (New York v. Belton, supra, — U.S. —, —, fn. 5, 101 S.Ct. 2860, 2865, fn. 5, 69 L.Ed.2d 768.)

BARRY-DEAL, Associate Justice.

SCOTT, J., concurs.