Mestas v. Superior Court of Santa Clara County

• Decision Date: 07 January 1972
• Citation: 22 Cal.App.3d 736,99 Cal.Rptr. 581
• Court: California Court of Appeals Court of Appeals
• Parties: Jack Galiegos MESTAS, Petitioner, v. The SUPERIOR COURT of the State of California In and For the COUNTY OF SANTA CLARA, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 29313.

Page 581

99 Cal.Rptr. 581

22 Cal.App.3d 736

Jack Galiegos MESTAS, Petitioner, v. The SUPERIOR COURT of the State of California In and For the COUNTY OF SANTA CLARA, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 29313.

Court of Appeal, First District, Division 1, California.

Jan. 7, 1972.

For Opinion on Hearing, see 102 Cal.Rptr. 729, 498 P.2d 977.

Sheldon Portman, Rose Elizabeth Bird, San Jose, for petitioner.

Evelle J. Younger, Atty. Gen., Edward P. O'Brien, Eric Collins, Don Jacobson, Deputy Attys. Gen., San Francisco, for real party in interest.

SIMS, Associate Justice.

Following the grant of an alternative writ of mandate by the Supreme Court (S.F. No. 22807) petitioner's petition for writ of mandate, in which he seeks review of an order denying his motion to suppress evidence (see Pen.Code, § 1538.5(i)), was transferred to this court for reconsideration in the light of Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84. ¹

The evidence which petitioner seeks to suppress consisted of a woman's purse, and two wallets contained therein, all found in the unlocked truck of petitioner's car subsequent to his arrest on November 2, 1970. The property was identified as having been stolen from an apartment on October 18, 1070. The articles furnished the basis for a charge of burglary on October 18, 1970, and a charge of receiving stolen property on the date of petitioner's arrest. Petitioner was held to answer on both charges, despite objections to the introduction of the evidence at his preliminary hearing. Following his arraignment on an information filed in the superior court, he interposed his motion to suppress.

The opinion in the Mozzetti case was filed April 30, 1971, 16 days after the Supreme Court granted a hearing in this case and ordered the issuance of an alternative writ. (See fn. 1 above.) In his return to the alternative writ the Attorney General contended that the police properly impounded the petitioner's automobile pursuant to the provisions of subdivision (h) of section 22651 of the Vehicle Code. ² He conceded 'that under the ruling of Mozzetti the purse found in petitioner's [automobile] trunk pursuant to the inventory should not have been opened.' He urged that the ruling pronounced in Mozzetti should have no application to this case because it should not have retroactive application.

Petitioner in his reply accepted the People's concession, but does not rely on Mozzetti, because, he asserts, there was no right in the first place to impound his automobile. He does point out that the cases upon which the court relied in Mozzetti make it clear that it was always the rule that impounding and inventory did not include the right to search and inventory articles not plain sight. The fact that the Supreme Court ordered reconsideration of this case in the light of Mozzetti is itself a ruling that it should be applied retroactively. Any doubt in the matter has been resolved for practical purposes by a remark in a footnote in Gallik v. Superior Court (1971) 5 Cal.3d 855, 97 Cal.Rptr. 693, 489 P.2d 573 in which it is stated, 'Accordingly, the 'Mozzetti rule' like Kiefer [People v. Superior Court (1970) 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, which was the rule under review in the body of the opinion], does not represent a substantial change in the law and hence is not merely prospective in effect. (Accord, People v. Heredia (1971) 20 Cal.App.3d 194, 97 Cal.Rptr. 488.)' (Id., p. 860, fn. 4, 97 Cal.Rptr. p. 696, 489 P.2d 576.)

It is concluded that insofar as the validity of the seizure of the evidence in question was predicated on the right to search and make an inventory of articles not in plain sight, the trial court erred in failing to grant the motion to suppress. At the argument on the motion to suppress the prosecutor stated, 'It is the People's position that it was a reasonable inventory of the vehicle that was impounded. . . .' The court took the matter under submission on the transcript of the preliminary hearing and subsequently announced its decision, as follows: 'The motion of the defendant pursuant to Penal Code Section 1538.5, having been heard and considered by the Court, is ordered denied.'

The petitioner's pre-Mozzetti argument to this court was predicated upon two propositions: first, that the police had no right to impound the car, and that therefore any search predicated upon the impound was illegal; and second, that the search could not be justified as a search incident to an arrest. Mozzetti renders it unnecessary to consider whether the removal and storage of petitioner's car was justified under the provisions of subdivision (h) of section 22651 and section 22850 of the Vehicle Code. ³ In Mozzetti, however the petitioner was not arrested but had been taken to a hospital after an accident, and the car impounded under the authority of other provisions of section 22651 (see Veh.Code, § 22651, subds. (b) and (g); 4 Cal.3d at p. 702, 94 Cal.Rptr. 412, 484 P.2d 84, fn. 1 and accompanying text). The court expressly pointed out, 'The search was not incident to a lawful arrest, based on probable cause to believe the vehicle contained contraband, or justified by the peculiar nature of the police custody involved. Nor were there exigent circumstances which made the search reasonable and necessary.' (4 Cal.3d at pp. 711-712, 94 Cal.Rptr. at p. 420, 484 P.2d at p. 92.)

If the trial court's order may be sustained under one of the exceptions noted in Mozzetti it will affect the relief to be given petitioner, that is, whether the trial court should be ordered to set aside the denial of petitioner's motion and grant the relief he requested, or merely be ordered to set aside its order and hear the matter. Five days after the decision in Mozzetti the court reiterated the general rule applicable to a search of an automobile, as follows: '. . . unlike a house search, a car may be searched without a warrant if the officer has probable cause to believe that it contains contraband. (Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 . . .; People v. Superior Court, supra, 3 Cal.3d 807, 816-817, 91 Cal.Rptr. 729, 478 P.2d 449; People v. Webb, 66 Cal.2d 107, 114-115, 56 Cal.Rptr. 902, 424 P.2d 342 . . .; People v. Burke, 61 Cal.2d 575, 578-579, 39 Cal.Rptr. 531, 394 P.2d 67 . . .; People v. Terry, 61 Cal.2d 137, 152-153, 37 Cal.Rptr. 605, 390 P.2d 381 . . .)' (People v. Fein (1971) 4 Cal.3d 747, 755, 94 Cal.Rptr. 607, 612, 484 P.2d 583, 588.) An examination of the cases cited by the court and related cases reveals the following principles: ⁴

'It is now settled that as an incident to a lawful arrest, a warrantless search limited both as to time (Preston v. United States (1964) 376 U.S. 364, 367-368, 84 S.Ct. 881, 11 L.Ed.2d 777 . . .) and place (Chimel v. California (1969) 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed.2d 685 . . .) may be made (1) for instrumentalities used to commit the crime, the fruits of that crime, and other evidence thereof which will aid in the apprehension or conviction of the criminal; (2) for articles the possession of which is itself unlawful, such as contraband or goods known to be stolen; and (3) for weapons which can be used to assault the arresting officer or to effect an escape. (See generally Warden v. Hayden (1967) 387 U.S. 294, 300-310, 87 S.Ct. 1642, 18 L.Ed.2d 782 . . .)' (People v. Superior Court [Kiefer] (1970) 3 Cal.3d 807, 812-813, 91 Cal.Rptr. 729, 731, 478 P.2d 449, 451. See also Coolidge v. New Hampshire (1971) 403 U.S. 455-456, 91 S.Ct. 2022 at pp. 2032-2033, Stewart, J., part IA joined by Douglas J. Brennan, J. and Marshall, J.; but cf. pp. 502-504, 91 S.Ct., pp. 2056-2057, Black, J. concurring and dissenting, part IIIA, joined by Blackman, J. and as to this part by Burger, C. J., and pp. 510-511, 91 S.Ct., pp. 2060-2061, White, J. concurring and dissenting, joined by Burger, C. J.; and note p. 493, 91 S.Ct. at p. 2051, fn.*, Harlan, J., concurring but for other reasons; Caughlin v. Superior Court (1971) 4 Cal.3d 461, 465, 93 Cal.Rptr. 587, 482 P.2d 211; People v. Williams (1967) 67 Cal.2d 226, 229, 60 Cal.Rptr. 472, 430 P.2d 30; People v. Webb (1967) 66 Cal.2d 107, 111-112, 56 Cal.Rptr. 902, 424 P.2d 342; People v. Robinson (1965) 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Burke (1964) 61 Cal.2d 575, 580, 39 Cal.Rptr. 531, 394 P.2d 67; People v. Lovejoy, (1970) 12 Cal.App.3d 883, 887, 91 Cal.Rptr. 94; Martinez v. Superior Court (1970) 7 Cal.App.3d 569, 577, 87 Cal.Rptr. 6 [disapproved on inventory search issue in Mozzetti v. Superior Court, supra, 4 Cal.3d 699, 703 and 712, 94 Cal.Rptr. 412, 484 P.2d 84]; People v. Andrews (1970) 6 Cal.App.3d 428, 85 Cal.Rptr. 908 [disapproved on inventory search issue in Mozzetti v. Superior Court, supra], but see 6 Cal.App.3d p. 439, 85 Cal.Rptr. 908, Molinari, P. J. concurring; People v. Taylor (1969) 2 Cal.App.3d 979, 984, 83 Cal.Rptr. 119; People v. Cox (1969) 269 Cal.App.2d 579, 585, 75 Cal.Rptr. 147; People v. McBride (1969) 268 Cal.App.2d 824, 829, 74 Cal.Rptr. 375; People v. Upton (1968) 257 Cal.App.2d 677, 683-684, 65 Cal.Rptr. 103; People v. Fritz (1967) 253 Cal.App.2d 7, 15, 61 Cal.Rptr. 247; People v. Green (1965) 235 Cal.App.2d 506, 512-513, 45 Cal.Rptr. 371; People v. Loomis (1965) 231 Cal.App.2d 594, 598-599, 42 Cal.Rptr. 124; and People v. Koelzer (1963) 222 Cal.App.2d 20, 29, 34 Cal.Rptr. 718.

In Preston v. United States, supra, the court categorically stated, 'Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. [Citation.]' (376 U.S. at p. 367, 84 S.Ct. at p. 883.) The opinion concludes, 'We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car [in police custody at a garage] without a warrant failed to...