PEOPLE v. MAHER (1974)

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 or contraband. The arrest was clearly lawful. At issue is the permissible scope of a search under these circumstances.

Since the exclusionary evidence rule has its roots in the Fourth Amendment to the United States Constitution, it follows that the most recent pronouncement on the subject from the United States Supreme Court is, to say the least, highly persuasive. Such a pronouncement is United States v. Robinson, 414 U.S. 218, at 224, 235–236, 94 S.Ct. 467, at 471, 476–477, 38 L.Ed.2d 427, at 434, 440–441, decided 12–73.

Robinson, like the case at bar, dealt with the scope of a permissible search incident to a lawful custodial arrest and specifically touched on the effect of the officer's subjective state of mind on the authority to conduct a search.

The Robinson court stated: ‘It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. . . . A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is [a reasonable search]. . . . Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the of ficer ] did not indicate any subjective fear of the [arrestee] or that he did not himself suspect that the [arrestee] was armed.’ (Also see Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456.)

Following that reasoning it is of no moment in our case that Officer Shirah did not subjectively suspect the defendant of carrying contraband or weapons. Having made an admittedly valid arrest, the officer's authority to search followed. Nothing would appear to us to be more reasonable than the searching of a person in defendant's condition before placing him in a police van where he would be mingled with other prisoners and detained until a state of sobriety and self-control was restored.

Of course it remains for our California Supreme Court to determine whether officers in this state will be afforded the authority which the full sweep of Robinson recognizes. At this time the California rule circumscribes that authority to the extent that simple traffic violators are not subject to a full search. (People v. Superior Court (Simon) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205.)

This holding in Simon is not necessarily inconsistent with the principle enunciated in Robinson sine Robinson referred to a ‘custodial arrest’ and in Simon the court noted at page 199, 101 Cal.Rptr. at page 847, 496 P.2d at page 1215 that as to ordinary traffic offenses in California ‘[T]he scheme in effect presumes that in the vast majority of cases the violator will not be taken into custody: . . .’ since ‘the officer must prepare a written notice to appear (i. e., a citation or ‘ticket’) and must release the violator ‘forthwith’ . . .'

Further, Simon specifically recognized that the rule was different when the motorist was arrested for driving under the influence of alcohol or other drug. (See Footnote 12, at p. 202, 101 Cal.Rptr. 837, 496 P.2d 1205 in Simon.) In such a situation the exigencies of the situation indicate the need for and the law authorizes a ‘custodial’ arrest. (Also see People v. Yniguez, 15 Cal.App.3d 669, 93 Cal.Rptr. 444; People v. Steeples, 22 Cal.App.3d 993, 99 Cal.Rptr. 883.)

It is well established that a person may be searched prior to booking into a custodial facility. (Simon, at pp. 214–215, 101 Cal.Rptr. 837, 496 P.2d 1205.) (Also see People v. Dukes, 1 Cal.App.3d 913, 82 Cal.Rptr. 218.) Defendant here contends that because Penal Code section 849(b)(2)² and Penal Code section 853.6³ authorize police officials to release persons arrested for intoxication without booking or formal arraignment, the search of defendant's pockets cannot be justified. He argues that before such a search is authorized there must be a showing that defendant would not have been so released citing People v. West, 31 Cal.App.3d 175, 107 Cal.Rptr. 127, which in turn relied on Simon and extended the Simon rationale to arrests for intoxication.

We are persuaded that the decision in West was an extension of the rule in Simon which, in light of Robinson shouldnot be controlling here. The Vehicle Code provisions for the use of citations in traffic cases and the right of a simple traffic offender to bail without booking is mandatory, (cf. Carpio v. Superior Court, 19 Cal.App.3d 790, 97 Cal.Rptr. 186) while the Penal Code provisions for release of persons arrested for intoxication and other non-traffic misdemeanors simply gives discretion to the police to shortcut more formal procedures. An arrestee in the latter situation does not have an absolute right to be so released.

Officer Shirah obviously had decided not to release the defendant and his right to conduct a search of the defendant should not hinge on his ability to predict how others in the police hierarchy may later exercise that discretion.

West is also distinguishable from 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.

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.

FOOTNOTES

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, in 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 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, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.’

2.  Penal Code section 849(b)(2) provides:‘Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever: . . . (2) The person arrested was arrested for intoxication only, and no further proceedings are desirable.’

3.  Penal Code section 853.6(a) provides:‘In any case in which a person is arrested for an offense declared to be a misdemeanor and does not demand to be taken before a magistrate, such person may, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter. If the arresting officer or his superior determines that the person should be released, such officer or superior shall prepare in duplicate a written notice to appear in court, containing the name and address of such person, the offense charged, and the time and place where and when such person shall appear in court. If the person is not released prior to being booked and the officer in charge of the booking or his superior determines that the person should be released, such officer or superior shall prepare such written notice to appear in court.’

COMPTON, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.