Martinez v. Superior Court

• Decision Date: 13 May 1970
• Citation: 7 Cal.App.3d 569,87 Cal.Rptr. 6
• Court: California Court of Appeals Court of Appeals
• Parties: Jesse E. MARTINEZ, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 35526.

Page 6

87 Cal.Rptr. 6

7 Cal.App.3d 569

Jesse E. MARTINEZ, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 35526.

Court of Appeal, Second District, Division 4, California.

May 13, 1970.

Morgan, Wenzel, Lynberg & McNicholas and Donald S. White, Los Angeles, for petitioner.

No appearance for respondent court.

Evelle J. Younger, Dist. Atty. of Los Angeles County, Harry Wood, Maurice H. Oppenheim and Harry B. Sondheim, Deputy Dist. Attys., for real party in interest.

ALARCON, Associate Justice pro tem. ^*

The petitioner, Jesse E. Martinez, seeks a writ of mandate to require the respondent superior court to vacate its order denying his motion to suppress photographs of evidence observed in the trunk of an automobile he was driving prior to his arrest.

FACTUAL BACKGROUND

An information was filed against the petitioner and Ruben Montez charging each of them with one count of burglary and one count of receiving stolen property.

Upon a motion pursuant to Penal Code section 995 the information was dismissed as to Ruben Montez.

Upon stipulation, the motion to suppress was based on the testimony contained in the transcript of the preliminary hearing and additional evidence presented by the People and by the petitioner. At the time the motion to suppress was denied the trial court made oral findings of fact in support of its conclusion that there was no unreasonable search or seizure under the facts presented to it.

There was no conflict in the evidence as to the facts leading up to the arrest of the petitioner. On June 29, 1969, at approximately 5 a.m., Officer Macquarrie, a Los Angeles County Deputy Sheriff, on patrol duty with a fellow officer, observed a 1962 Chevrolet drive over the curb and strike a telephone pole at the northwest corner of the intersection of State and 4th Streets. The vehicle then backed into the street and drove on. The officers followed the vehicle which drove into an alley north of the intersection. The vehicle was stopped in the center of the alley, blocking traffic in either direction. Both occupants alighted from the vehicle. Officer Macquarrie formed the opinion that the driver, the petitioner Jesse E. Martinez, was under the influence of intoxicating liquor because of the odor of alcohol on his breath, his slow and slurred speech, his bloodshot eyes, and his inability to stand without support from leaning on the vehicle. The passenger (Ruben Montez) appeared to be drunk and was holding an open can of beer. The petitioner was arrested for 'driving under the influence of alcohol' and Ruben Montez was arrested for 'plain drunk.'

The evidence is in conflict as to what occurred following the arrest of the petitioner.

The People's Evidence

Officer Macquarrie testified that he asked the petitioner to produce his driver's license. The petitioner did not have a valid California driver's license in his possession. The officer was unable to determine the ownership of the automobile because it did not contain a vehicle registration certificate.

During the time Officer Macquarrie was at the scene of the arrest someone approached the officers and stated he was 'related to the defendant.' Officer Macquarrie could not recall if this person came to the scene of the arrest before or after the trunk of the car was opened. After the arrest of the petitioner, Officer Macquarrie determined that, since the vehicle was blocking the alley, it should be impounded because 'under 22651(h) of the Vehicle Code in that the defendant was being arrested, there was no competent party to release the vehicle to.' He did not release the vehicle to the person who had appeared after the arrest of the petitioner for the reason that 'He didn't have any identification to show who he was particularly, and at that point I had not established the ownership definitely of the vehicle to give me grounds to release it to him.' Officer Macquarrie made an inventory of the contents of the vehicle. He opened the trunk and discovered an adding machine and a typewriter with 'L. A. City Schools' stenciled on the side. Because the arrest occurred within the City of Los Angeles, Officer Macquarrie requested that a Los Angeles Police Department unit come to the scene to take custody of the petitioner and the vehicle. Officer Vernon Childs of the Los Angeles Police Department testified that he arrived at the scene in response to Officer Macquarrie's request for assistance. Officer Childs inventoried the contents of the vehicle on a standard L.A.P.D. impound sheet and summoned a tow truck to impound the automobile.

The Defense Evidence

The petitioner testified that when he stopped the vehicle in the alley, he was about 25 to 30 feet from the residence of Ruben Montez. Mr. Montez' father came out of the Montez residence. The petitioner testified that he gave this man the keys to his car so that he could 'park it some place.' When a police officer asked the petitioner for the keys to the car, the petitioner told him that he had given the keys to Montez' father. On cross-examination the petitioner stated he did not have a driver's license in his possession nor was there a registration certificate in the automobile at the time he was arrested.

Ruben Montez was called as a witness by the petitioner. Mr. Montez was a passenger in the petitioner's vehicle immediately prior to the arrest. Mr. Montez testified that his father came out of the house. Mr. Montez also testified that the petitioner tried to give the automobile keys to witness' father but was unable to do so. The petitioner told Mr. Montez' father to part the car or 'Take care of it.' Mr. Montez' father asked the officers 'Could I do anything?' He was told, 'No, you can't do nothing.'

Counsel for the petitioner argued to the trial court that it was unnecessary to inventory the contents of the vehicle as a prelude to impounding since Mr. Montez' father was available to take charge of the vehicle and remove it from the alley to a place of safety.

The People argued that, since the police could not establish that the car was registered to the petitioner, they had a duty to impound the vehicle. In denying the motion to suppress the trial court commented: 'THE COURT: I would agree with you counsel, except for the fact, as indicated by the District Attorney, that the ownership of this car had not yet been established. I don't think the officer could reasonably give it to some stranger, even though he might identify himself. And I am not satisfied that Mr. Montez' father sufficiently identified himself or demonstrated his ability to drive the car. The fact that the defendants knew Montez was capable of driving the car and they were satisfied of his identification does not demonstrate to this Court this was knowledge that the officers had. Accordingly, the motion under Section 1538.5 will be denied.'

Issues Raised by the Petitioner Under These Facts:

1. Did the police have lawful authority to inventory the contents of the vehicle prior to impounding it?

2. Was there reasonable cause to search the automobile as an incident to the arrest of the petitioner?

DISCUSSION

California law authorizes a deputy sheriff or police officer to order the removal of a vehicle from the streets upon the arrest of the driver where the person arrested is required to be taken before a magistrate without unnecessary delay. Vehicle Code section 22651 provides in pertinent part: 'Any * * * regularly employed * * * deputy of the sheriff's office * * * in which a vehicle is located or any regularly employed and salaried officer of a police department in a city in which a vehicle is located, * * * may remove a vehicle from a highway under the following circumstances: * * * (h) When an officer arrests any person driving or in control of a vehicle for an alleged offense and the officer is by this code or other law required or permitted to take and does take the person arrested before a magistrate without unnecessary delay.' A person arrested for a violation of Vehicle Code section 23102 must be taken before a magistrate without unnecessary delay. (Veh.Code, § 40302.) In removing a vehicle from the place of the arrest pursuant to Vehicle Code section 22651, the officer 'shall take the vehicle to the nearest garage or other place of safety or to a garage designated or maintained by the governmental agency of which the officer or employee is a member, where the vehicle shall be placed in storage.' (Veh.Code, § 22850.)

In the matter before us, the officers were authorized to remove the vehicle from the place of arrest because the petitioner was arrested for a violation of Vehicle Code section 23102. Relying heavily on Virgil v. Superior Court, 268 Cal.App.2d 127, 73 Cal.Rptr. 793 (Hear. den. Feb. 5, 1969), the petitioner contends that it was unnecessary to impound the vehicle in the instant case since it could have been removed to a place of safety by the person who told the officers 'he was related to the defendant.' The People contend that Virgil v. Superior Court, Supra, is factually distinguishable from the instant matter and ask us instead to decide this matter in conformity with the opinion in PEOPLE V. SUPERIOR COURT, 275 CAL.APP.2D ---, 80 CAL.RPTR. 209,^A a decision from the same court which rendered the decision in Virgil.

In Virgil v. Superior Court, Supra, 268 Cal.App.2d 127, 73 Cal.Rptr. 793, the driver of the vehicle was arrested for reckless driving (Veh.Code, § 23103). After the driver and two passengers were removed from the vehicle, the arresting officer commenced an examination of the inside of the vehicle for the purpose of 'inventorying the contents' incident to its removal from the highway pursuant to Vehicle Code section 22651. He found marijuana which petitioners contended was illegally seized. The court stated (pp. 132--133, 73 Cal.Rptr. p. 796): '* * * We hold...