PEOPLE v. LEWIS (1988)

On the People's appeal from the dismissal of an action following the granting of a suppression motion (Pen.Code, § 1538.5), we decide the issue whether evidence discovered as a result of a booking search must be excluded when the statute under which the arrest is made prohibits actual incarceration of the arrestee.   We will affirm for the reasons discussed herein.

Factual Background

The essential facts are undisputed.   On July 28, 1986, between the hours of 4 and 5 p.m., Officer Joseph Curtin of the Richmond Police Department observed respondent Byron Keith Lewis driving a white Pontiac Fiero traveling at approximately 35 miles per hour in a 25–mile per hour zone.   The officer also noted that the car had dealer's paper license plates.   He followed respondent and soon activated his overhead lights.   The vehicle slowed down and turned a corner.   At this point the officer activated his siren, but respondent continued to drive, made additional turns, and did not stop until a second officer pulled in front of his vehicle.

Officer Curtin, who knew respondent, placed him under arrest for flight from a peace officer, a misdemeanor.  (Veh.Code, § 2800.1.)   Respondent was taken to the police station, at which time a “routine booking search” was performed by Jailer Robinson in the presence of Officer Curtin.   Robinson removed $2,649 in currency from respondent's pockets.   Pursuant to Robinson's instruction, respondent removed his shoes and Robinson found a plastic bag containing a white powder later determined to be cocaine.   Officer Curtin then advised respondent he was under arrest for possession of a controlled substance.   Respondent stated:  “What is that?   Just three-tenths of coke and a bag of weed.   It's terrible I have to sell this bad shit.”

Procedural Background

On May 29, 1987, an information was filed charging possession of cocaine for sale, a prior drug conviction, and ineligibility for probation.   On June 1, respondent entered a plea of not guilty.   On June 30, he filed a motion to dismiss the information pursuant to Penal Code section 995, and a motion to suppress evidence pursuant to Penal Code section 1538.5.   On July 17, 1987, the court granted the motion to suppress, and dismissed the action for lack of evidence.   On July 24, 1987, the People filed a notice of appeal.

Discussion

We review search and seizure issues under dual standards.  (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221.)   The trial court's determination of the historical facts of the case is reviewed under the traditional substantial evidence standard.   The determination of the applicable law and its proper application to the facts is subject to an appellate court's independent review.  (Ibid.)  At the outset, we note that this matter is governed by federal constitutional law as a result of section 28 of article I of the California Constitution (Proposition 8).  (In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.)

Respondent's suppression motion focused on the provisions of Vehicle Code sections 40303 through 40307.   Under the relevant statutory scheme a person arrested for attempting to evade arrest “shall, in the judgment of the arresting officer, either be given a 10 days' notice to appear as provided in this section or be taken without unnecessary delay before a [local] magistrate․”  (Veh.Code. § 40303.)   The magistrate must then release the person on bail or on his or her own recognizance.  (Veh.Code, § 40306, subd. (c).)  If a magistrate is not available, the clerk of the magistrate or the officer in charge of the jail must release the person pursuant to a posted bail schedule.  (Veh.Code, § 40307.)

Respondent argues that the statutes mandated his immediate release by posting bail, and that the booking search was impermissible and the fruits of the search illegally obtained.   The prosecutor maintained that the search was proper as being incident to a lawful arrest.   Thus, the issue expressly presented is whether the police may lawfully search an arrestee after transportation to the police station if the arrestee will not be incarcerated.

Validity of the Search as a Booking Search

 Officer Curtin testified that the police station search was a routine booking search which was conducted by the jailer as a standard operating policy.   At no time did Officer Curtin advise respondent of his right to be released on bail, nor did he hear the jailer so advise respondent.

One commentator, in discussing the validity of purported booking searches where no incarceration is authorized, has observed that “when there could not conceivably be any evidence of the crime on the person because of the nature of the offense involved, as is often the case as to minor offenses for which station house release is possible, it is a perversion of Robinson [United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427] to speak of an unlimited right to search for evidence.”  (2 LaFave, Search and Seizure (2d ed. 1987) § 5.3(d), p. 514.)   In Illinois v. Lafayette (1983) 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65, the Supreme Court held that a search conducted as part of the “routine procedure incident to incarcerating an arrested person” is not unreasonable.  (Id., at p. 648, 103 S.Ct. at p. 2611.)   However, the court noted that the record in that case was unclear as to whether the defendant was actually going to be incarcerated, an appropriate inquiry on remand.  (Id., at p. 648, fn. 3, 103 S.Ct. at p. 2611, fn. 3.)   In United States v. Mills (D.C.Cir.1972) 472 F.2d 1231, a predetention inventory search was invalidated where the police were required to release the defendant on bail.   The footnote in Lafayette and the result in Mills underscore the federal requirement of actual incarceration in order to constitutionally justify a routine booking search.   Since the federal requirement accords with related California law, no Proposition 8 issue is presented.¹

Thus, in People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 199, 101 Cal.Rptr. 837, 496 P.2d 1205, our Supreme Court analyzed the validity of a booking search in the context of arrests subject to Vehicle Code sections 40300–40604.   The court explicitly stated that this exclusive statutory procedure must be followed in traffic arrests authorizing an arrestee to be cited or allowed the opportunity to post bail prior to any incarceration.   The Simon court concluded that in cases governed by these sections of the Vehicle Code, the person arrested may not be lawfully subjected to the routine booking process or searched as an incident of that process, “either in the field or at a police station.”  (Id., at p. 209, 101 Cal.Rptr. 837, 496 P.2d 1205;  accord, In re John C. (1978) 80 Cal.App.3d 814, 145 Cal.Rptr. 228 [invalid booking search of minor arrested for possession of less than an ounce of marijuana].)

In view of such relevant authorities, we are impelled to conclude that the police station search was not a valid routine booking search.   However, our determination does not conclude our analysis.   We next turn to the People's contention that the search was valid as being incident to the arrest.

Validity of Search as Incident to Arrest

 The People correctly note that pursuant to United States v. Robinson, supra, 414 U.S. 218, 94 S.Ct. 467, and New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, a lawful custodial arrest generally provides ample justification for a full search of the arrested person and the area within his or her control.  (Robinson, supra, 414 U.S. at p. 235, 94 S.Ct. at p. 477.)   However, neither of these cases involved a delayed search after the arrest had taken place.   In Robinson, the officer arrested the defendant for driving without a license and conducted a search of defendant's person prior to transporting him.   In Belton, the arresting officer detected an odor of marijuana when he stopped defendant for speeding and immediately searched the vehicle and its contents.   The Robinson court articulated a dual justification for a search incident to a custodial arrest:  (1) the need to preserve evidence for trial, and (2) the danger to the officer in transporting an arrestee to the station.  (Robinson, supra, at pp. 234–235, 94 S.Ct. at pp. 476–477.)   As to the latter circumstance, the court determined that no reason need be shown in court after the fact in order to justify a search incident to a valid custodial arrest.

But it must be noted that in cases involving traffic offenses the justification of preserving evidence normally is not present.  (See 2 LaFave, Search and Seizure, supra, at p. 514.)   Moreover, where the offender has already been transported to the police station and turned over to a booking officer, any danger associated with transportation no longer exists.

The People's reliance on this court's decision (Div. Three) in People v. Gutierrez (1984) 163 Cal.App.3d 332, 209 Cal.Rptr. 376, is misplaced.   In Gutierrez, defendant was stopped for erratic driving and mechanical violations.   While performing sobriety tests, defendant repeatedly placed his hand in his pocket, even after being instructed to stop.  (Id., at p. 334, 209 Cal.Rptr. 376.)   Following his arrest on suspicion of being under the influence of alcohol or drugs, defendant was subjected to a “custodial search” disclosing a plastic baggie of marijuana and a small cardboard pillbox.   The box was then opened and found to contain stolen jewelry.   Finding New York v. Belton, supra, controlling, the court upheld the search as incident to a lawful custodial arrest.  (Gutierrez, supra, at p. 335, 209 Cal.Rptr. 376.)   But neither Gutierrez, Robinson, supra, nor Belton are relevant to the issue in this case since none involved a search conducted after the defendant had already been transported to the police station.

While Robinson sanctions a general right to search incident to a lawful custodial arrest, it does not provide a standardless right to search at any time thereafter or, more specifically, as an incident to an unlawful booking process.   In concluding that police may search the arrested person and the area within the person's control, the Robinson court implicitly incorporated the time and space limitations of Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.  (New York v. Belton, supra, 453 U.S. 454, 459–462, 101 S.Ct. 2860, 2863–2865 [stating that Chimel limits a search incident to arrest to the area within the arrestee's immediate control];  see also, United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 [disapproving warrantless search of a foot locker over an hour after the suspects were in custody and agents had gained exclusive control of the foot locker];  People v. Adams (1985) 175 Cal.App.3d 855, 861, 221 Cal.Rptr. 298 [search incident to arrest must be “substantially contemporaneous” with arrest].)  Contrary to the People's cursory assertion, Robinson cannot be rationally interpreted to validate searches occurring after the arrested person has been transported to the police station.²

We emphatically reject the People's contention that a field arrest, transportation, booking, and incarceration are all stages of a single process of arrest so as to justify a full search at any stage.   When an officer arrests a citizen for violation of a law which clearly prohibits incarceration, we cannot agree that booking and incarceration are automatically a part of the arrest process.   Neither do we accept the argument that sections 40303 through 40307 constitute state statutes overridden by the passage of Proposition 8.   Exclusion of the evidence herein is not mandated by section 40303, nor by the fact that the search at the time of the impermissible booking was illegal under state law.   The evidence must be excluded solely by virtue of controlling principles of federal law.   Although Robinson holds that a custodial arrest based on probable cause is a reasonable intrusion itself justifying a contemporaneous incidental search, it does not support the proposition that a later search incident to an illegal booking process is somehow lawfully sanitized by the fact of the earlier arrest.   Obviously, at some temporal point, a search is no longer incident to the arrest.   We believe that point is reached when the detention becomes illegal.   A warrantless search which is not incident to an arrest and which has no other justification is unreasonable under the Fourth Amendment and suppression of the resulting evidence is federally compelled.  (Chimel v. California, supra, 395 U.S. 752, 763, 765, 89 S.Ct. 2034, 2040, 2041.)

In the area of delayed searches of vehicles, the Supreme Court has 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.’ ”   (Chambers v. Maroney (1970) 399 U.S. 42, 47, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419, citing Preston v. United States (1964) 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777.)  “[T]he reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house.”  (Chambers, supra, 399 U.S. at p. 47, 90 S.Ct. at p. 1979.)   The result is different when the police have probable cause to believe that a search would disclose the presence of contraband.  (United States v. Johns (1985) 469 U.S. 478, 484–485, 105 S.Ct. 881, 885–886, 83 L.Ed.2d 890.)

In United States v. Edwards (1974) 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771, the Supreme Court validated a delayed search of the person but did not grant a broad license for all such searches.   In Edwards defendant was arrested after 11 p.m. on suspicion of attempting to break into a post office.   Contemporaneous investigation at the scene disclosed a pried wooden window which left paint chips on the sill.   Although, at or near the time of arrest, the police had probable cause to believe paint chips would be found on defendant's clothing, no substitute clothing was available for defendant at the time of his incarceration.   The following morning, defendant was given new clothes and the police then took his old clothing and discovered paint chips matching those taken from the post office window.  (Id., at pp. 801–802, 94 S.Ct. at p. 1236.)   The court analyzed the search as being incident to the lawful custodial arrest, stating:  “It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.   If need be, Abel v. United States, 362 U.S. 217 [80 S.Ct. 683, 4 L.Ed.2d 668] (1960), settled this question.”  (Edwards, supra, at p. 803, 94 S.Ct. at p. 1237.) ³  The court specified that, in addition to the general right to search at the time of the arrest, the police had actual probable cause to believe that defendant's clothing contained evidence of the crime for which he was arrested.

The court's reference to Abel v. United States, supra, 362 U.S. 217, 80 S.Ct. 683, clarifies the basis for its statement in Edwards regarding the justification for a search after the arrest and incarceration.  Abel involved the deportation arrest of an illegal alien in his hotel room.   An initial search of his room disclosed a false birth certificate.   While packing his belongings, defendant attempted to hide a paper containing a coded message, which was seized.   Defendant's baggage was later searched at the offices of Immigration and Naturalization, where defendant was detained.   This search disclosed further evidence which supported his eventual conviction on espionage charges.  (Id., at p. 224, 80 S.Ct. at p. 689.)   With reference to the pertinent luggage search, the court reasoned that the property was subject to search at the place of arrest and it was of no consequence that the federal agents elected to search it later at the place of detention.   The court elaborated that the fact of detention provided additional justification for a more elaborate search, “similar to those which justify a search of the person of one who is arrested.”  (Id., at p. 239, 80 S.Ct. at p. 697.)

A close reading of Edwards and Abel in relevant context does not signal a universal rule justifying postarrest searches of anyone or anything that might have been searched at the time of arrest.   In each case, the defendants were subject to incarceration.   And in each case, the police possessed, at the time of arrest, probable cause to believe that evidence would be found on the defendant's person or in his belongings.   This probable cause survived the initial arrest and transportation of the defendant justifying the subsequent station house search.   Unlike the probable cause to believe that evidence will be found, the additional Robinson justification of transport danger does not survive the actual transportation to the police station.   Absent some surviving probable cause or the new justification of actual incarceration, a search at the station house is constitutionally impermissible under the facts of the instant case.⁴

Cases in which delayed searches were upheld involved the existence of probable cause to believe material evidence would be found, aside from the general factor of danger to the officer, supporting a search incident to the arrest and transportation.  (See, e.g., People v. Decker (1986) 176 Cal.App.3d 1247, 222 Cal.Rptr. 689 [driver arrested for being under the influence of a drug;  purse removed from van for “safekeeping” inventoried at police station disclosed contraband;  held:  valid booking search incident to defendant's incarceration, and valid search incident to arrest because probable cause to search at scene existed];  United States v. Johns, supra, 469 U.S. 478, 105 S.Ct. 881 [probable cause for delayed search of marijuana transport survived the seizure and transportation of the vehicle].)

We find no support for the People's contention that the ability to search a person incident to a custodial arrest, without more, extends beyond the time that can reasonably be said to be incident to the arrest:  in this case, the arrest itself and transportation to the police station.⁵  In a case such as this, where the offense does not involve other evidence or other independent justification for a search, it is totally unreasonable to search after the routine transportation of the arrestee when neither booking nor incarceration was authorized.⁶

Since there was no independent evidence supporting the existence of probable cause to search, the challenged order of suppression must be upheld.

JUDGMENT AFFIRMED.

FOOTNOTES

1.   Parenthetically, the People's concluding discussion in their brief of respondent's civil remedy for the “violation” implicitly concedes the illegality of the search.

2.   Gustafson v. Florida (1973) 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456, Harris v. United States (1947) 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (overruled in Chimel v. California, supra, 395 U.S. 752, 768, 89 S.Ct. 2034, 2042), Warden v. Hayden (1967) 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, Adams v. Williams (1972) 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, cited by appellant, all involve searches undertaken at the precise time of the arrest and are not dispositive herein.

3.   The court also validated the search as a booking search, noting “that the normal processes incident to arrest and custody had not been completed when Edwards was placed in his cell on the night of May 31.   With or without probable cause, the authorities were entitled at that point not only to search Edwards' clothing but also to take it from him and keep it in official custody.”  (Id., at p. 804, 94 S.Ct. at pp. 1237–1238.)   This portion of the Edwards case has no application here, as the actual incarceration in Edwards validated that booking search.

4.   People v. Lopez (Sept. 16, 1988, HOO3785), the subject of supplemental briefing in the instant case, was ordered decertified by the Supreme Court on December 1, 1988.

5.   We do not believe that People v. Boren (1987) 188 Cal.App.3d 1171, 233 Cal.Rptr. 859 compels a different result.   In Boren, defendant was arrested for violation of Penal Code section 647, subdivision (f) (intoxicated in public).   Rather than transporting defendant for civil detention to a detoxification center for 72 hours pursuant to Penal Code section 647, subdivision (ff), the officer took her to the women's jail to be booked, detained, and released when sober.   A booking search uncovered PCP in her pockets.   Although the court cited Robinson, supra, and Gustafson, supra, as justification for the search, we believe that the search was a valid booking search incident to detention.   Although the place of detention was not authorized by the statute, the fact of detention was, and serves to justify the search.   In so far that Boren holds the delayed search was incident to the arrest, we agree only to the extent that it means incident to the arrest and the permissible detention procedure.

6.   It is undisputed that defendant had sufficient funds to post bail.

RACANELLI, Presiding Justice.

NEWSOM and HOLMDAHL, JJ., concur.