PEOPLE v. SILVEY (1984)

After a preliminary examination, defendant Albert Raymond Silvey, Jr., was held to answer in superior court and was charged by information with possession of phencyclidine (PCP) for sale in violation of Health and Safety Code section 11378.5.   He moved for an order setting aside the information pursuant to Penal Code section 995, contending that PCP received in evidence at the preliminary examination had been unlawfully seized by a police officer.   The court granted his motion and made an order dismissing the information.   The People appealed from the order of dismissal.

A panel of this appellate court filed an opinion affirming the order of dismissal on the ground that the evidence was obtained from an unlawful search and seizure.  (Reported as People v. Silvey (1980) 110 Cal.App.3d 67, 167 Cal.Rptr. 566.)

The Attorney General filed a petition for writ of certiorari in the United States Supreme Court on behalf of the People.   The United States Supreme Court granted certiorari and issued its order and judgment that “[j]udgment vacated and case remanded to the Court of Appeal to consider whether its judgment is based upon federal or state constitutional grounds, or both.   California v. Krivda, 409 U.S. 33 [93 S.Ct. 32, 34 L.Ed.2d 45] (1972).”  (California v. Silvey (1981) 453 U.S. 918, 101 S.Ct. 3153, 69 L.Ed.2d 1000.)

Pursuant to this mandate, we have reexamined the opinion and conclude that the judgment was based improperly upon United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, and the Fourth Amendment.  (See People v. Silvey, supra, 110 Cal.App.3d 67, 167 Cal.Rptr. 566.)   Inasmuch as our original opinion was “vacated” and the cause “remanded” to us, we are now authorized to enter a “new judgment”.  (See Dixon v. Duffy (1952) 344 U.S. 143, 146, 73 S.Ct. 193, 194, 97 L.Ed. 153;  People v. Teresinski (1982) 30 Cal.3d 822, 826–827, 180 Cal.Rptr. 617, 640 P.2d 753;  People v. Braeseke (1980) 28 Cal.3d 86, 87, 168 Cal.Rptr. 603, 618 P.2d 149.)

In light of the United States Supreme Court's recent decision in New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, we now conclude that the PCP received in evidence was not obtained in violation of the Fourth Amendment.   Accordingly, we reverse the order dismissing the information.

Evidence

Alameda County Deputy Sheriff Barnhill stopped defendant on a highway for speeding and driving erratically.   When he approached defendant's automobile, the officer saw a marijuana cigarette holder protruding from the dashboard.   Defendant had difficulty removing his driver's license from his wallet, his movements were very slow and jerky, his eyes were droopy and bloodshot, and saliva was caked at the corners of his mouth.   Deputy Barnhill determined that defendant was under the influence of PCP and asked him to step out of the car.   The officer “was going to place him under arrest.”

Defendant leaned back in the seat and removed “something” from the center armrest.   He “stuck it” in the back of his pants and got out of the automobile.

Deputy Barnhill “retrieved the object” ¹ because he “didn't know what it was.”   He “thought it may have been a weapon.”   But he stated that after he had removed it from defendant's pants it did not “appear” to him to be a weapon.

After continuing “to pat search,” Deputy Barnhill arrested and handcuffed defendant and placed him in the back seat of the police vehicle.   He then “returned to the front seat” of the vehicle and “opened up the container.”   He found 2.53 grams of PCP.

Scope of Review

 An information will not be set aside if there is “ ‘some rational ground for assuming the possibility that an offense has been committed and [that] the accused is guilty of it.’ ”  (People v. Murray (1971) 21 Cal.App.3d 864, 867, 99 Cal.Rptr. 55, quoting Rideout v. Superior Court (1967) 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 432 P.2d 197.)  “ ‘Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.’ ”  (People v. Murray, supra, 21 Cal.App.3d 864 at p. 868, 99 Cal.Rptr. 55.)

 Neither a superior court, upon a motion to set aside the information, nor a reviewing court, on an appeal therefrom, may “reweigh evidence, or draw inferences contrary to those reasonably drawn by the magistrate.”  (People v. O'Leary (1977) 70 Cal.App.3d 323, 328, 138 Cal.Rptr. 667.)   This rule applies with equal force where the issue resolved by the magistrate is the legality of a search and seizure.  (Ibid.;  and see Badillo v. Superior Court (1956) 46 Cal.2d 269, 271–272, 294 P.2d 23.)   Our function, then, is to determine whether there is substantial evidence in the record to support the magistrate's conclusion that the warrantless search of the metal container was lawful.²  Apparently, the magistrate validated the search, as incident to defendant's arrest, because “․ [the officer] has a right to search the [arrested] individual, not only for weapons, but for evidence incident to the crime of being under the influence, what would be in this case, PCP, or the evidence of the drug PCP.”

Warrantless Search of Metal Container

In New York v. Belton, supra, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, the high court made clear that during a search incident to arrest the police may examine all containers within the reach of or on the person of the arrestee:  “ ‘The authority to search the person incident to a lawful custodial arrest, while based on the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.   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.’ ”  (Id., at p. 461, 101 S.Ct. at p. 2864, quoting United States v. Robinson (1973) 414 U.S. 218, 235, 94 S.Ct. 467, 476, 38 L.Ed.2d 427.)

 Applying that rule to the instant case, Deputy Barnhill could properly search the closed container found on defendant's person even if the sole justification offered by the police officer was that he originally thought that it was a weapon.

The only remaining question is whether the search in the instant case can be governed by Belton in that it was conducted prior to that decision.   The answer comes from the Second Circuit:  “Here, refusal to uphold searches later found constitutional would not serve the purposes underlying the exclusionary rule either.   Because the Supreme Court has declared searches such as those involved here to be constitutional, no police misconduct has in fact occurred.   Hence, there is no misbehavior to be deterred, and the interest in maintaining judicial integrity is not implicated, ․”  (United States v. Burns (2d Cir.1982) 684 F.2d 1066, 1074, cert. den., 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019;  accord United States v. Johns (9th Cir.1983) 707 F.2d 1093, 1097.)   Accordingly, we now conclude that the search of the container on defendant's person was a proper search incident to arrest and did not offend the Fourth Amendment.³

The order dismissing the information is reversed.

FOOTNOTES

FOOTNOTE.  

1.   There is no detailed description of the object in the record.   It was introduced into evidence as a “metal container” and later referred to as “the green apple candy can” during cross-examination.

2.   No claim is made that the metal container itself is evidence of any criminal conduct and, as such, may be seized and its contents lawfully searched.  (See People v. Norman (1975) 14 Cal.3d 929, 933, 123 Cal.Rptr. 109, 538 P.2d 237.)

3.   We are aware of no decision by the California Supreme Court which compels us to find the search invalid under our Constitution.   (Cal. Const., art. I, § 13.)   We decline the request to reach that result here.

THE COURT: ** FN** Before CALDECOTT, P.J., and POCHÈ and PANELLI, JJ.