Morel v. Superior Court

• Decision Date: 28 August 1970
• Citation: 89 Cal.Rptr. 297,10 Cal.App.3d 913
• Court: California Court of Appeals Court of Appeals
• Parties: Joseph Albert MOREL, Petitioner, v. The SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 27922.

Page 297

89 Cal.Rptr. 297

10 Cal.App.3d 913

Joseph Albert MOREL, Petitioner, v. The SUPERIOR COURT OF SAN MATEO COUNTY, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 27922.

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

Aug. 28, 1970.

Hearing Denied Oct. 22, 1970.

Spaeth, Blase, Valentine & Klein, P.C., Palo Alto, for petitioner.

Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for respondent.

DEVINE, Presiding Justice.

This petition is one in which the issue is that of search of the person of the driver of a motor vehicle who has been arrested for an offense which justified the arresting officer to bring him before a magistrate. The search of petitioner, Morel, produced a bottle of 77 capsules of Secobarbital, a drug which it is forbidden to possess without a physician's prescription. (Health & Saf.Code, § 11910.) Petitioner's motion, under Penal Code, section 1538.5, to suppress the evidence was denied and this petition for writ of mandate followed. We granted an alternative writ.

Facts

At about 1:30 a.m. on August 20, 1969, a police officer of the City of Atherton stopped Morel after observing that he had been engaged in a speed contest of his motorcycle with an automobile, in violation of Vehicle Code, section 23109, subdivision (a). The officer called for another unit to stop the other vehicle, demanded and was shown Morel's license, and proceeded to arrest him for safety reasons, rather than citing him to appear before a magistrate. The officer had the right to make this choice under Vehicle Code, section 40303. The officer advised Morel of his constitutional rights. He then proceeded to search his person. The upper left-hand pocket of petitioner's jaket contained something which to the officer's touch was a 'rather hard firm item.' The officer thought that the item 'could probably have been a weapon.' He took it out and found it to be a plastic bag containing capsules. The capsules, upon later analysis, were found to contain the forbidden drug. Petitioner had made no move toward disposing of the packet, nor had he attempted to interfere with the officer's actions.

Pat-Down Search

It is doubtful that if there had not been an arrest the discovery of the packet of capsules would have been lawful as the culmination of a pat-down search. Although the officer did testify that the object was rather hard and firm and might have been a weapon, he also testified that upon his feeling it he placed his hand immediately into petitioner's pocket. He testified, too, that he was making a thorough search. In the course of a frisk or pat down, soft bulges, and in particular plastic or cellophane bags containing pills or the like, ordinarily do not feel like weapons, as has been remarked in People v. Mosher, 1 Cal.3d 379, 394, 82 Cal.Rptr. 379, 461 P.2d 659, and People v. Hubbard, 9 Cal.App.3d 827, 831, 88 Cal.Rptr. 411. See also People v. Collins, 1 Cal.3d 658, 662, 663--665, 83 Cal.Rptr. 179, 463 P.2d 403; Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917.

The Search as an Incident to an Arrest

The general principle is that the search of a person which is incidental to a lawful arrest is valid. (People v. Ross, 67 Cal.2d 64, 69, 60 Cal.Rptr. 254, 429 P.2d 606; Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145; People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531; In re Dixon, 41 Cal.2d 756, 761--762, 264 P.2d 513; Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777.) In the case before us, there is no doubt that an arrest was made promptly and firmly. In fact, petitioner was given the full Miranda warning before any search was made. There is no suggestion in the record that the arrest was a mere pretext for a search. The officer had made up his mind to take the petitioner into custody. Nor is there anything in the record to suggest that the officer had arrested petitioner on a charge more serious than that which the petitioner would later have to face. The whole record at this stage indicates that the arrest was entirely in good faith.

There is, however, the question of the permissible scope of the incidental search. In the case of misdemeanor traffic offenses as distinguished from most other misdemeanors, there is difficulty in applying the law of search because, as has been noted in People v. Weitzer, 269 Cal.App.2d 274, 297--298, 75 Cal.Rptr. 318, since in general we use a common system both to regulate traffic and to apprehend, punish and rehabilitate those who commit offenses against persons and property, we are bound to find differences of feeling about the manner in which those quite different sorts of offenses should be dealt with. We find, however, that the Legislature has created distinctions among the kinds of traffic offenses, and those distinctions are helpful in judicial determination of the reasonableness of search of an arrestee.

There are three classes of statutes relating to arrests by peace officers other than highway patrolmen in misdemeanor vehicle cases. The first class, described in Vehicle Code section 40302, comprises those offenses wherein the arrested person Shall be taken before a magistrate. These are: a) when the arrestee fails to present his driver's license or other satisfactory evidence of identity; b) when he refuses to give his written promise to appear in court; c) when he demands an immediate appearance before a magistrate; and d) when he is charged with violating Vehicle Code section 23102 (misdemeanor drunk driving), section 23102.5 (misdemeanor driving under the influence of poison), or section 23106 (misdemeanor driving under the influence of drugs). The second class is contained in Vehicle Code section 40303. Besides several provisions relating to refusals to submit to lawful tests, failure to stop after an accident, attempting to evade arrest, and driving while a license is suspended or revoked, section 40303 lists other offenses which have an element of considerable wilfulness about them, namely, violation of sections 10852 or 10853, relating to injuring or tampering with a vehicle; sections 23103 or 23104, relating to reckless driving; section 23332, relating to trespassing on a vehicular crossing (a toll bridge); and the one involved in the case before us, section 23109, relating to participating in speed contests or exhibitions of speed. In cases of arrests covered by section 40303, the arrested person shall, in the judgment of the arresting officer, either be given a ten-day notice to appear or be taken without unnecessary delay before a magistrate. The third class of cases comprises the large number of other misdemeanors under the Vehicle Code. Here, the arresting officer must issue a citation under section 40500. Technically, a traffic violator is, during the period immediately preceding his execution of a promise to appear, under arrest. (People v. Hubbard, Supra, 9 Cal.App.3d at p. 833, 88 Cal.Rptr. 411; People v. Weitzer, Supra, 269 Cal.App.2d at p. 294, 75 Cal.Rptr. 318; People v. Valdez, 239 Cal.App.2d 459, 462, 48 Cal.Rptr. 840.) A person under this kind of arrest only may not be searched because he cannot be taken into actual custody.

In the case before us, which involved a speed contest, the officer was entitled to bring the arrested person before a magistrate under the provisions of section 40303. It is obvious that a contest of speed, the concentration of the drivers of the vehicles being on defeating an opponent rather than on the safety of users of the highway, is one of the most serious of traffic offenses even though it is a misdemeanor.

We believe it is not necessary in order to justify the thorough search of one who has been arrested for such an offense as engaging in a speed contest to decide whether or not his violation of law was a 'jailable offense,' which would allow a jailhouse search and, therefore, by anticipation a search in the field. We hold that when the officer has taken an alleged offender into custody and is about to transport him, whether to a magistrate only (if the arrestee is able to make bail) or to some place of detention until he shall have made bail, the officer may search the person of the arrestee. (In the argument in the superior court, reference was made to the 'patrol car,' and at the preliminary hearing there was testimony that petitioner was 'transported' to the station.) Our reasons are these:

1) A more thorough search for weapons, perhaps smaller ones and less typical than those looked for in the pat down, and also for any instruments which might facilitate escape, is allowable when the person is in custody.

2) The officer assumes new duties when the arrestee is placed in the police vehicle and the officer has new actions to perform. The officer must prevent escape; he is responsible for the safety of the arrestee; he must attend to driving and cannot give complete attention to the person under his custody; and even if he is relieved from certain other duties while transporting the arrestee, the officer may come upon events in the apprehension of criminals or in other emergencies which require action on his part.

3) The officer may be transporting more than one arrestee and he must give protection to each.

4) Finally, there is the important matter of contraband. There is a natural inclination of the possessor of contraband to dispose of it when he is taken into custody if he has not been able to get rid of it earlier. It is not by any means a speculation that contraband may be deposited in a police vehicle. As an example, there is the recent case of People v. Peterson, 9 Cal.App.3d 627, 88 Cal.Rptr. 597, in which a bag of hashish was discovered under the seat where the defendant had been sitting in the police car. The defendant had been handcuffed, with his hands behind him. There were two other prisoners in the automobile and Peterson had contended...