Reset A A Font size: Print

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Thomas MAHER, Defendant and Appellant.

Cr. 24860.

Decided: November 26, 1975

Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Head, Appellate Division, and Jay J. Becker, Deputy Dist. Atty., for plaintiff and respondent. Richard S. Buckley, Public Defender, Harold E. Shabo, Robert J. Levy, and Martin Stein, Deputy Public Defenders, for defendant and appellant.

Defendant was held to answer to the superior court following a preliminary hearing at which the magistrate found probable cause to believe that defendant had violated Health and Safety Code section 11357 (possession of marijuana). An information filed by the district attorney charging defendant with that offense was set aside by the superior court pursuant to Penal Code section 995 upon a determination that the evidence offered against the defendant was the product of an unreasonable search and seizure. The superior court in ruling on a motion under Penal Code section 995 and this court in reviewing such ruling must view the evidence in the light most favorable to the magistrate's conclusion and indulge in all reasonable inferences which will support such conclusions. (Rideout v. Superior Court, 67 Cal.2d 471, 62 Cal.Rptr. 581, 432 P.2d 197.) The only testimony at the preliminary hearing came from the arresting and searching officer whose credibility was accepted by the magistrate. Thus there is no factual dispute.

In the early morning hours of August 13, 1973, Officer Shirah was walking a beat on east Fifth Street in the City of Los Angeles when he came upon defendant. Defendant was staggering and leaning against the buildings and lamp posts for support. He smelled of alcohol, his eyes were bloodshot and his clothing was disheveled. Officer Shirah concluded that defendant was intoxicated to the extent that he could not safely care for himself and placed him under arrest.1

Since the officer was on foot patrol he summoned a ‘B—Wagon’ which is a bus type vehicle used to collect and transport drunks from various locations on the streets to a centrally located detention facility. When the ‘B—Wagon’ arrived, Officer Shirah searched defendant before putting him on board. According to the officer the primary purpose of the search was to check for weapons, especially razor blades ‘that people take with them on the wagon.’ In the course of the search the officer discovered in defendant's jacket pocket a cellophane bag containing marijuana. There was no testimony that the officer subjectively believed that defendant had any weapons of contraband. The arrest was clearly lawful. At issue is the permissible scope of a search under these circumstances.

In an opinion filed August 16, 1974, we upheld the search in this case relying in part on the decision of the U.S. Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, which authorized a full body search of a person subjected to a lawful custodial arrest.

Subsequently the California Supreme Court granted a hearing in this case, following which that court issued its opinion in People v. Longwill, 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753. In that case the rule of Robinson was rejected as inapplicable to California and instead it was held that in this state there will be no ‘. . . full body searches of individuals arrested for public intoxication until such time as they are actually to be incarcerated.’ (Emphasis added.) (People v. Longwill, supra, at p. 952, 123 Cal.Rptr. at p. 302, 538 P.2d at p. 758.) The Supreme Court has returned this case to our court for reconsideration in light of People v. Longwill.

The court in Longwill, expressing concern for the safety of the arresting officers, approved of a ‘limited weapon search’ of persons arrested for intoxication prior to placing such persons in the ‘patrol vehicle’ for transportation to the stationhouse. There, however, the court was addressing a situation of an officer transporting the arrestee in the typical police vehicle.

Longwill is distinguishable form the case at bench on the basis of the use here of the so-called ‘B—Wagon.’ That vehicle, unlike the ordinary patrol car, is in reality an extension of the detention facility.

It is simply a mobile holding tank to which the same concern over introduction of weapons or contraband would apply as applies to the stationary facility. The officer here not only had the right but the duty to insulate other arrestees from any weapons or contraband that defendant might have had in his possession.2

The negligent failure of a police officer to take reasonable precautions to protect persons in his custody from injury or death or to protect other persons from injury or death at the hands of persons in his custody could give rise to civil liability. (Gov.Code §§ 820.8, 844.6; Azcona v. Tibbs, 190 Cal.App.2d 425, 12 Cal.Rptr. 232; Garcia v. State of California, 247 Cal.App.2d 814, 56 Cal.Rptr. 80. Also see Legislative Committee Comment to § 844.6, 4 Witkin, Summary of California Law. 8th Ed., p. 2443.)

To place a person such as defendant, who is not in control of his faculties, in direct contact with other persons in the confined area of a police vehicle without thoroughly searching him could amount to such a negligent failure. It therefore was entirely reasonable for the officer to do what he did, for no other reason than to protect himself against possible liability.

The order setting aside the information is reversed.

I concur:

The problem here is not the safety of the arresting officer but the safety of other captives who are forceably confined in a patrol wagon with a defendant observably not in control of his faculties. Unlike police officers, such persons are unable to take precautions to protect themselves. As captives, they are entitled to as complete a protection against their fellow inmates as the police are able to provide, and this protection can only come with full search.


1.  Penal Code section 647 provides in part:‘Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . .‘(f) Who is found in any public place under the influence of intoxicating liquor, any drug, toluene, any substance defined as a poison in Schedule D of Section 4160 of the Business and Professions Code, or any combination of any intoxicating liquor, drug, toluene, or any such poison, is such a condition that he is unable to exercise care for his own safety or the safety of others, or by reason of his being under the influence of intoxicating liquor, any drug, toluene, any substance defined as a poison is Schedule D of Section 4160 of the Business and Professions Code, or any combination of any intoxicating liquor, drug, toluene, or any such poison, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.’

2.  We observe that dangerous devices such as razor blades and other small cutting or stabbing instruments are not easily detected by the so called ‘pat-down’ search. Such devices in possession of a handcuffed prisoner might present no danger to a police officer in a patrol vehicle but could constitute a danger to other arrestees when an arrestee in possession of such an instrument is co-mingled, unhandcuffed with other arrestees in the back of a police van.

COMPTON, Associate Justice.

BEACH, J., concurs.