PEOPLE v. EDWARDS (1983)

Defendant appeals from judgment entered on his pleas of guilty to two counts of burglary after denial of his motions under sections 995 and 1538.5, Penal Code. All appellate issues relate to defendant's arrest and search.

EVIDENCE ON MOTION TO SUPPRESS

In the early morning hours, Officers Armour and Byington were called to a convalescent home to investigate a prowler in the rooms of Bette Gibson and William Newhart. They left about 4 a.m. returning to patrol duty; at 4:25 a.m. they stopped defendant who was driving a vehicle with no license plate light; they asked him for his driver's license but he replied he had no license because he had just gotten out of the “joint”; asked for the registration certificate, defendant did not produce one; a check with the Department of Motor Vehicles showed the car to be registered to someone other than defendant. Officer Byington advised defendant he was under arrest for failure to produce the car registration certificate and for not having any proper means of identification such as a driver's license. After a pat-down for weapons, defendant was taken to the police station.

At the station defendant told the officers he had a prior arrest whereupon Officer Byington sought to verify defendant's identity through photographs and fingerprints. Officer Armour immediately asked the booking sergeant for the amount of bail for the offense of driving without a license, and advised defendant that his bail was $70.50 and he had the opportunity to post bail; when defendant responded he had no money and could not make bail for his release, he was informed he would be booked; defendant did not ask to make a telephone call. After waiting one-half to three-quarters of an hour and defendant's identity not having been verified, Officer Armour took charge of defendant and started to book him; in the process of filling out the booking form, part of which calls for a listing of his property, Officer Armour requested him to put his personal belongings on the counter so they could be inventoried; defendant removed from his pants pocket a wallet belonging to William Newhart claiming he found it in a phone booth; shortly after defendant was booked, Officer Armour learned defendant's identity from Officer Byington. An immediate check with Mr. Newhart disclosed that his wallet had been stolen; defendant was advised he was under arrest for residential burglary.

ARREST PROPER

Without merit is appellant's contention that the officers had no authority to arrest him because there is no evidence that he was asked for identification other than a driver's license, and the officers must demand from the detainee not only his driver's license, but any other identification. First, there is an inference in appellant's argument that while he was in the car he could have established his identity if only the officer had asked for other identification. We cannot believe that had defendant, an ex-con, other means of identifying himself he would not have readily presented it when unable to produce a driver's license and the car registration. Second, section 40302, Vehicle Code provides that whenever one is arrested for any Vehicle Code violation, not declared to be a felony, he shall be taken without unnecessary delay before a magistrate “(a) When the person arrested fails to present his driver's license or other satisfactory evidence of his identity for examination.” We find nothing in section 40302, subdivision (a) or any other provision of the Vehicle Code that requires an officer to demand that the driver produce means of identification; it is when the driver fails to “present” his driver's license or other satisfactory evidence of his identity that he shall be arrested under the statute. Third, with reference to the procedure for issuing a citation, the Supreme Court said in People v. Superior Court (Simon) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205, it “is essentially an honor system, requiring the good faith and cooperation of the person cited. At the very least, he must be able to convince the officer—either by exhibiting his driver's license or by ‘other satisfactory evidence’—that the name he is signing on the written promise to appear corresponds to his true identity … When he cannot do so the officer has no assurance the promise will be honored, and under those circumstances subdivision (a) prohibits the use of the citation procedure. [Citation.]” (P. 201, 101 Cal.Rptr. 837, 496 P.2d 1205.) Clearly it is incumbent upon the driver to convince the officer of his identity.

BOOKING SEARCH PROPER

At the outset, there was probable cause to stop defendant whom the officers observed driving a vehicle having no license plate light. (§ 24252, Veh.Code; People v. Powell, 33 Cal.App.3d 802, 805, 109 Cal.Rptr. 399; People v. Childs, 4 Cal.App.3d 702, 706, 84 Cal.Rptr. 378.) Asked to produce his driver's license, defendant did not do so (§§ 12500, subd. (a), 12950, Veh.Code); asked to produce the car registration, defendant failed to do so. (§ 4462, subd. (a), Veh.Code). According to Officer Armour, had defendant “some kind of identification with the name on it that he gave us and could have verified it, you know, with some other identification,” they would have issued a citation in the field and released him upon his written promise to appear. (§§ 40500, 40504, Veh.Code.) Thus Officer Byington advised defendant he was under arrest for failure to produce the car registration and for not having proper means of identification such as a driver's license. Under such circumstances, section 40302, subdivision (a) makes it mandatory for the officer to take the violator before a magistrate without unnecessary delay or, if one is not available, before the officer in charge of the most accessible jail (§ 40307). Taken into police custody for transportation before a magistrate or the proper official, he is “under arrest.” However, one cannot be arrested on the sole authority of section 40302 because it is not penal in nature and cannot form the basis for a lawful arrest. It assumes the violator has already been arrested under a substantive provision of the code and simply declares the procedure which is then to be followed. In this case, no magistrate having been available at 4:25 a.m., section 40307 required the officer to take defendant before the officer in charge of the jail who shall admit him to bail or may in lieu of bail, release him upon a written promise to appear. Thus upon being transported to the proper official, the arrestee then cannot be lawfully subjected to the routine booking process and search, but must be immediately released on bail or, in the officers' discretion, released on his written promise to appear. Upon arrival at the station defendant was immediately advised by Officer Armour that his bail was $70.50 and he would have the opportunity to post bail; defendant responded he had no money and could not make bail to be released; after one-half or three-quarters of an hour, defendant not having posted bail, Officer Armour took charge and booked him; in the process of filling out the booking form he asked defendant to place his personal belongings on the counter.

Section 40307, Vehicle Code¹ provides that the arresting officer shall take the arrestee without unnecessary delay before the officer in charge of the jail “who shall admit him to bail in accordance with a schedule fixed as provided in Section 1269b of the Penal Code or may, in lieu of bail, release the person on his written promise to appear ․”; the arrestee may be detained for a reasonable period of time not to exceed two hours in order to verify his identity. Appellant contends that the booking search was illegal because the officers had no right to conduct such a search in light of section 40307, subdivision (b), and People v. Superior Court (Simon) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205; that even though he was unable to establish his identity or make bail it was improper to book him because the two-hour detention provision creates a “new kind of custody: the unincarcerated individual at the police station awaiting identification.” The contention is without merit.

First, defendant was not detained in excess of two hours in an effort to verify his identity; he was detained at most, three-quarters of an hour before being booked. There is nothing in the statute (§ 40307, subd. (b), Veh.Code) that requires the officer to wait for two hours before booking the arrestee if he is unable to make bail and if the officer does not elect to release him on his promise to appear; the only prohibition is against keeping him in excess of two hours awaiting identification without giving him the opportunity to make bail or releasing him on his written promise to appear.

Second, appellant misapplies People v. Superior Court (Simon) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205. There defendant was stopped for driving after dark without lights; he produced no driver's license or other identification and no car registration thus he was arrested in the field and immediately searched. The court declared the search to be unlawful. In rejecting the contention that the search was justified as incident of defendant's custodial arrest for transportation to a magistrate, the Supreme Court alluded to the statutory schedule set up in sections 40300-40604, Vehicle Code, the import of which, “is that a person taken into custody pursuant to section 40302 must be transported directly to a magistrate or to one of the officials listed in section 40307, and must immediately be released on bail or written promise to appear. Accordingly, he cannot lawfully be subjected to the routine booking process used in the case of a nontraffic misdemeanant; nor can he be searched as an incident of that process, either in the field or at a police station.” (P. 209, 101 Cal.Rptr. 837, 496 P.2d 1205; original emphasis; fn. omitted.)

The foregoing simply stands for the proposition that the person taken into custody on a traffic infraction cannot be booked or subjected to a search at the station before being given the opportunity to post bail or before release on his written promise to appear. Section 40307, subdivision (b) provides that the officer in charge shall admit the person arrested to bail or may, in lieu of bail, release him on his written promise to appear. This vests in the officer discretion to release him if the arrestee cannot post bail. Here Officer Armour exercised his discretion in a reasonable manner—defendant could not post bail, his identity had not been verified, he said he had just gotten out of the “joint” and he had violated three sections of the Vehicle Code. Thus the only alternative was to book him. We agree with Chief Justice Wright in his concurring opinion in People v. Superior Court (Simon) 7 Cal.3d 186 at page 215, footnote 4, 101 Cal.Rptr. 837, 496 P.2d 1205: “The language of the majority that the traffic law violator ‘must immediately be released on bail or written promise to appear’ (ante, p. 209, 101 Cal.Rptr. 837, 496 P.2d 1205) cannot mean that if the magistrate feels bail is necessary and if the violator cannot meet bail, he must be released on a written promise to appear. Such a result would not only contravene the Legislature's purpose of receiving satisfactory assurance the violator will appear later, but would make senseless the statutory requirement that the violator be taken before a magistrate at all. The option as to whether the traffic law violator is to be released on bail or written promise is that of the magistrate, not of the traffic law violator, and the statutory provision is satisfied when the magistrate makes one or the other alternative available.”

Defendant having been given the opportunity to post bail and being unable to do so and the officer having elected not to release him on his written promise to appear, Officer Armour was obliged to hold him pending posting of bail. On the issue of what to do with defendant at this point, our attention is called to Chief Justice Wright's concurring opinion in People v. Superior Court (Simon) 7 Cal.3d 186, beginning at page 211, 101 Cal.Rptr. 837, 496 P.2d 1205. While we are not bound by a concurring opinion we nevertheless agree with the reasoning of the Chief Justice. In his view, and in ours, the extended detention of a traffic violator who is transported to the magistrate or other official and who is unable to post bail and is not released on his written promise to appear, demands certain precautionary measures for the safety of police personnel and others and the integrity of the detention facility. Where the traffic violator cannot meet bail requirements “within a relatively short period” of time (p. 214, 101 Cal.Rptr. 837, 496 P.2d 1205) and is not otherwise released, the officers must detain him in the jail until bail money or bond can be posted. Clearly in such circumstance the officers would be entitled to make a full search of his person prior to the detention. “It would be an unreasonable burden to require law enforcement officers to segregate the person detained in some remote area of the custodial facilities removed from the jail population or assign an officer to watch over the arrestee until the required bail is posted which may be hours or days later. The safety of those detaining him, the safety of others, and the prevention of the introduction of contraband into the custodial facility require that such person be subjected to a full search. (Citations.) The reasons for the rule apply to the detention of a traffic law violator who is unable to meet bail as well as to the detention of an arrestee who is booked on a criminal charge.” (7 Cal.3d at p. 215, 101 Cal.Rptr. 837, 496 P.2d 1205.)

Here, the officer had no alternative but to detain defendant² until he could meet the bail requirements which could be hours or several days. There are not so many police personnel available at the station as to permit an officer to serve as a private guard to defendant during such time. Should he then be allowed to roam the station unattended for an indeterminate period of time, possibly with a weapon or contraband on his person; should he be permitted to sit on a bench in the station until bail is posted, as suggested by appellant? The only reasonable solution is to take the precautionary measure of detaining him in the custodial facility, and we do not read People v. Superior Court (Simon) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205, as implying otherwise. The process of booking prior to being so held (§ 7, subd. 21, Pen.Code), among other things, is necessary as the recordation of an arrest in the official records and that someone by the arrestee's name is being held in the system. The safety of those detaining him and of others, the prevention of the introduction of contraband or weapons into the jail facility and the security of his property demand that he be subjected to a booking search and inventory of the property on his person. (See People v. Superior Court (Simon) 7 Cal.3d 186, 208, 101 Cal.Rptr. 837, 496 P.2d 1205.)

OPPORTUNITY TO MAKE BAIL AFFORDED DEFENDANT

Appellant's third contention that he was not given adequate opportunity to make bail is predicated on the argument he had 65 cents and could have made a telephone call had he been advised he could do so. This argument on this same record was made on defendant's motion pursuant to section 995, Penal Code, and rejected, but was not renewed on his 1538.5 motion; and it is the order denying this motion we here review. However, it is clear from the record that defendant was given an opportunity to make bail, and no evidence appears to the contrary.

When defendant was advised that his bail was $70.50, he told Officer Armour he had no money and could not post bail for his release. Defendant did not ask permission to make a telephone call, and he was not advised he could do so.³ There is no evidence that he would have called anyone to post bail for him or that by making a telephone call he could have arranged to meet bail requirements. To the defense argument that “He could have made a telephone call,” the judge responded “Now, wait a minute. It seems to me that a reasonable defendant, if he wanted to contact someone—I'm sure the officer would give him that opportunity, if he asked. I don't think it's the duty of the officers to make suggestions to him,” with which defense counsel agreed—“I think that's true. They don't have to make suggestions to him.” The record reflects not even a suggestion that defendant asked to call someone or made any effort to indicate he could make bail.

COMPLIANCE WITH SECTION 40307, SUBDIVISION (b)

Also without merit is appellant's claim that the search was not valid because he was not taken before the officer in charge of the jail facility in accord with section 40307, subdivision (b). On the record before us we can only conclude there was substantial compliance with the statute and we suspect defense counsel thought so too because he did not challenge the search on this ground in the trial court. To permit him now to inject this new issue would deprive the People of a fair opportunity to present an adequate record in response. (People v. Superior Court (Simon) 7 Cal.3d 186, 198, 101 Cal.Rptr. 837, 496 P.2d 1205.) However, in reviewing the officer's act of consulting the booking sergeant concerning bail for defendant, it is our view that such course constitutes substantial compliance with section 40307, subdivision (b). Defendant was taken to the station at 4:30 a.m.; in the absence of evidence to the contrary it is reasonable to assume that at that hour the officer in charge of the jail facility was the booking sergeant whose authority to make bail decisions is reflected in his possession of the bail schedule and Officer Armour's consultation⁴ with him about the amount of bail for defendant. This assumes his discussion with the booking sergeant concerning defendant and his violations, the amount of bail required under the schedule and his possible release. Had defendant been taken directly to the booking sergeant, and well he might have been, we cannot say that he would have been treated any differently.

The judgment is affirmed.

FOOTNOTES

1.  “When an arresting officer attempts to take a person arrested for a misdemeanor or infraction of this code before a magistrate and the magistrate or person authorized to act for him is not available, the arresting officer shall take the person arrested, without unnecessary delay, before: [¶] (a) The clerk of the magistrate who shall admit him to bail in accordance with a schedule fixed as provided in Section 1269b of the Penal Code, or [¶] (b) The officer in charge of the most accessible county or city jail or other place of detention within the county who shall admit him to bail in accordance with a schedule fixed as provided in Section 1269b of the Penal Code or may, in lieu of bail, release the person on his written promise to appear as provided in subdivisions (a) through (f) of Section 853.6 of the Penal Code. [¶] Whenever a person is taken into custody pursuant to subdivision (a) of Section 40302 and is arrested for a misdemeanor or infraction of this code pertaining to the operation of a motor vehicle, the officer in charge of the most accessible county or city jail or other place of detention within the county may detain the person arrested for a reasonable period of time, not to exceed two hours, in order to verify his identity.”

2.  Appellant argues that after he advised Officer Armour he could not post bail the officer should have waited a longer time before booking him to permit him to be identified so he could have been released on his promise to appear. This assumes he had a right to be released on his written promise to appear upon verification of his identity. This, of course, is not true for although section 40307, subdivision (b) requires the officer to release him on bail, it vests discretion in the officer to release him on his promise to appear in lieu of bail. The option is that of the officer not of the defendant.

3.  Section 851.5, Penal Code gives one arrested the right to make at least two completed telephone calls (subd. (a)) and requires the posting in a conspicuous place in the police facility, of a sign in bold block type containing information relative to this right and how it can be exercised (subd. (b)). Nothing in the statute or in any authority we have found requires the officer to personally advise an arrested person of his right to make telephone calls, and appellant has referred us to none. We note that defendant is not inexperienced in this area and has previously gone through the criminal justice system.

4.  According to Officer Armour “We asked the booking sergeant. There is a list of the bail schedules on bails that we're not familiar with.”

LILLIE, Acting Presiding Justice.

L. THAXTON HANSON and DALSIMER, JJ., concur.