Agar v. Superior Court

• Decision Date: 15 October 1971
• Citation: 21 Cal.App.3d 24,98 Cal.Rptr. 148
• Court: California Court of Appeals Court of Appeals
• Parties: John Wayne AGAR, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; The PEOPLE, Real Party in Interest. Civ. 38493.

Page 148

98 Cal.Rptr. 148

21 Cal.App.3d 24

John Wayne AGAR, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent The PEOPLE, Real Party in Interest.

Civ. 38493.

Court of Appeal, Second District, Division 5, California.

Oct. 15, 1971.

As Modified on Denial of Rehearing Nov. 9, 1971.

Hearing Denied Dec. 9, 1971.

Richard S. Buckley, Public Defender, Harold E. Shabo, Damon R. Swank and David A. Sanders, Deputy Public Defenders, for petitioner.

No appearance for respondent.

Joseph P. Busch, Jr., Dist. Atty., Harry Wood, Head, Appellate Division, and Robert J. Lord, Deputy Dist. Atty., for real party in interest.

STEPHENS, Acting Presiding Justice.

Petitioner seeks a writ of mandate after denial of his motion under Penal Code section 1538.5 to suppress evidence (a marijuana cigarette) found by the police in an alleged illegal booking search which they conducted after petitioner's arrest for reckless driving, and petitions this court to compel the trial court to exclude this evidence in the prosecution of the charge against him (unlawful possession of marijuana, a violation of Health & Saf.Code § 11530).

On January 16, 1971, Los Angeles County Deputy Sheriff Munoz and his partner were driving on routine patrol westbound on Telegraph Road, approaching Norwalk Boulevard. At approximately 12:52 a.m., Munoz heard loud racing of engines and observed two vehicles traveling eastbound on Telegraph at what seemed to be a high rate of speed, in what appeared to be a speed contest of some sort. Munoz and his partner then turned their patrol car around so that they were then driving eastbound on Telegraph Road. The officers then clocked the vehicles at approximately 55 miles per hour in a 45 miles per hour zone, and Munoz observed the vehicles changing lanes quite rapidly. The two vehicles were a red Ford Fairlane and a red Chevrolet. The Chevrolet was following extremely close to the Ford, allowing for an unsafe distance between the two cars. The officers pulled the patrol car behind the Chevrolet and activated a spotlight and red lights in an attempt to stop the vehicle. The interior of the Chevrolet was illuminated by the spotlight. Just as it was pulling over to the right shoulder of the road, Munoz observed an arm clothed in a blue Pendleton shirtsleeve extend from the right passenger window and throw an object out the window. After observing this action, Sheriff Munoz alighted from the patrol car and immediately retrieved the object, which was a 'cellophane bag--a plastic bag--containing a green leafy substance resembling marijuana' (hereinafter referred to as 'the baggie'). Munoz 'removed' the passenger from the right front seat of the Chevrolet and placed him under arrest for possession of marijuana. The passenger was wearing a blue Pendleton shirt. Petitioner, the driver of the car, had stepped from the car and was given a pat-down search for weapons by Officer Munoz' partner; the result of the search was negative. There was no suggestion that a sobriety test might have been warranted, and a search of the automobile failed to produce any contraband. Petitioner was then 'placed under arrest for reckless driving (by Officer Munoz' partner and) was transported to Norwalk Station and booked (for) reckless driving.' At the time of his arrest, petitioner was wearing 'a dark brown jacket.' During the police procedure of booking petitioner, the police 'obtained one handrolled cigarette containing a green leafy substance resembling marijuana from (petitioner's) right front jacket pocket.'

On January 18, 1971, the complaint was filed charging petitioner with unlawful possession of marijuana on or about January 16, 1971. On February 3, 1971, a preliminary hearing was held. In that hearing, petitioner stipulated that both the substance contained in the baggie and the substance in the cigarette were marijuana. In the hearing, the court ruled that only the marijuana cigarette, and not the baggie, would be received in evidence in petitioner's case. On February 16, 1971, an information was filed charging petitioner with the unlawful possession of marijuana on or about January 16, 1971. Petitioner pleaded not guilty, and his motion to suppress the cigarette from evidence, contending that the cigarette was the product of an illegal search (Pen.Code § 1538.5), was heard and denied. This petition followed.

The record shows that '(petitioner) was placed under arrest for reckless driving,' and was 'transported to Norwalk Station and booked' on the charge of 'reckless driving'; also, that 'during the booking procedure (the police) obtained one hand-rolled cigarette containing a green leafy substance resembling marijuana from (petitioner's) right front pocket.'

Petitioner contends that the police did not have probable cause to arrest him for reckless driving. While it appears to us from the record that probable cause to arrest for reckless driving existed, it is unnecessary here to consider that contention since even though the arrest for reckless driving was based upon probable cause, the subsequent booking-search was illegal.

Vehicle Code section 40303 provides that when an officer makes a stop for reckless driving, the officer is given the option of either issuing the offender a '10 days' notice to appear' (a citation), or of taking the offender 'without unnecessary delay before a magistrate * * *.' If the arresting officer elects to take the offender before a magistrate, then '(t)he person taken before a magistrate shall thereupon be released from custody upon his own recognizance or upon such bail as the magistrate may fix.' (Veh.Code § 40306.) If the magistrate is unavailable, the arresting officer may take the offender before '(t)he clerk of the magistrate, who shall admit him to bail,' or before '(t)he 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 * * * or may, in lieu of bail, release the person on his written promise to appear * * *' (Veh.Code § 40307). As stated in People v. Mercurio, 10 Cal.App.3d 426, 431, 88 Cal.Rptr. 750, 752, 'Neither by direct statement nor by inference does (Veh.Code § 40306) provide for a booking prior to appearance before the magistrate.' It is clear, then, that even with a lawful arrest of petitioner for reckless driving, the 'sole right to take (him) into custody was for the purpose of taking the accused before a magistrate, or other officer authorized to admit him to bail, there is no right to conduct a body search.' (People v. Superior Court, 14 Cal.App.3d 935, 945, 92 Cal.Rptr. 545, 551.) The 'failure of the officers to take (petitioner) before a magistrate * * * deprived the subsequent jailhouse search of validity.' (People v. Mercurio, supra, 10 Cal.App.3d at p. 432, 88 Cal.Rptr. at p. 753; see also Carpio v. Superior Court, 97 Cal.Rptr. 186, filed August 30, 1971, Div. 4, 2d App.Dist., Ct. of Appeal; People v. Superior Court, 14 Cal.App.3d 935, 92 Cal.Rptr. 545; Morel v. Superior Court, 10 Cal.App.3d 913, 89 Cal.Rptr. 297.) No evidence was introduced to suggest that defendant could not have made bail and would have had to have been jailed.

In opposition to the petition, the People seem to make either one, or both, of the following contentions: first, the right to book existed because there would have been probable cause to support an arrest for possession of the baggie had such an arrest been made; second, notwithstanding the fact that petitioner was told he was being arrested for reckless driving, and notwithstanding the fact that petitioner was booked for reckless driving, petitioner was actually arrested and booked for possession of the baggie.

The People's first contention may be answered by focusing attention upon a fundamental prerequisite which the People seem to overlook: Probable cause, in the context of a warrantless arrest, has no other purpose than to impose legal limits upon the types of suspicions upon which the law will allow a valid arrest to be predicated. Therefore, Unless it is first established that the police officer Believed that the crime of possession of marijuana had been committed by the petitioner, the issue of probable cause does not arise, for it would be a logical absurdity for the courts to be asked to determine the reasonableness of an officer's belief that that particular crime had been committed unless it were first established that the officer did entertain such a belief. ¹ To express it in a somewhat different manner, a policeman may arrest without an arrest warrant whenever he has probable cause To believe that the person to be arrested has committed a public offense in his presence. (Pen.Code § 836.) Juridically, probable cause is a legal yardstick that is used to measure reasonableness of belief; probable cause sets legal minimums on the quantity and quality of belief that will support a lawful arrest.

There is no question but that Probable cause is measured by an objective standard and not by a subjective standard. Like any good yardstick, its length should not vary, and that length is established by an objective standard. Not so the Belief of the policeman, however, for this is personal to him, and must be established by a subjective standard. Therefore, it must first be established that the policeman Did entertain a belief that a particular crime had been committed. If it is established that he did entertain such a belief, it is the function of the courts to take the measure of that belief to determine its reasonableness, and in taking this measurement, the courts are unconcerned with the policeman's subjective opinion as to whether his belief had met the standard of probable cause. This is not a new concept. This court, in People v. Clark, 2 Cal.App.3d 510, 519, 82 Cal.Rptr. 682, and People v. Richardson, 6 Cal.App.3d 70, 76, 85 Cal.Rptr. 607, and the federal courts, in Klingler v. United States,...