People v. Gilliam

• Decision Date: 19 August 1974
• Docket Number: Cr. 11581
• Citation: 41 Cal.App.3d 181,116 Cal.Rptr. 317
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John L. GILLIAM, Defendant and Appellant.

Page 317

116 Cal.Rptr. 317

41 Cal.App.3d 181

PEOPLE of the State of California, Plaintiff and Respondent, v. John L. GILLIAM, Defendant and Appellant.

Cr. 11581.

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

Aug. 19, 1974.

Henry P. Schroerluke, Berkeley, for defendant and appellant (by appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Rebert R. Granucci, David Schneller, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

Defendant appeals from the judgment upon a verdict finding him guilty of first degree robbery (Pen.Code, § 211). He makes several assignments of alleged prejudicial error which we find to be without merit. Accordingly, the judgment must be affirmed.

We consider, first, defendant's contention that a booking search conducted after he was placed under arrest was an unreasonable search. The search disclosed a Mobil Oil credit card which defendant moved to suppress by motion made pursuant to Penal Code section 1538.5. ¹ The credit card had been taken from the victim of an armed robbery.

The record discloses that when defendant was stopped for a traffic violation a warrant check was run on defendant and it was ascertained that there was an outstanding traffic warrant for his arrest. The arresting officer advised defendant that he had the right to post bail and inquired of him if he had enough money to post bail. Defendant replied that he did not. The officer then advised defendant that he would have to be placed under arrest and booked on the warrant. Defendant was placed under arrest and taken to the police station. '(A) defendant arrested on a warrant for a traffic offense may not be booked or searched until he has been given an opportunity to post bail. . . . (W)hen he has been given that opportunity and it appears that he cannot post bail he then may be booked and searched since, in the absence of bail, he must be placed in the jail pursuant to the warrant. (Citation.) . . . (I)f the police are justified in jailing a defendant they are entitled to 'book' him and to conduct a search of his person for the purpose of preventing the introduction of weapons or contraband into the jail facility. (Citations.)' (People v. Collin, 35 Cal.App.3d 416, 423--424, 110 Cal.Rptr. 869, 874.) Whether such a defendant has been given an opportunity to post bail is a question of fact. (People v. Collin, supra.)

In the present case there was sufficient evidence warranting the inference that defendant was given a reasonable opportunity to post bail. We observe, moreover, that prior to the booking search the arresting officer was in possession of additional evidence giving him probable cause to arrest defendant for the commission of a liquor store robbery and that a booking search, following such arrest, was proper. (See People v. Superior Court (Simon) 7 Cal.3d 186, 208, 101 Cal.Rptr. 837, 496 P.2d 1205; People v. Collin, supra, 35 Cal.App.3d 416, 424, 110 Cal.Rptr. 869; People v. Mercurio, 10 Cal.App.3d 426, 430, 88 Cal.Rptr. 750; People v. Wohlleben, 261 Cal.App.2d 461, 462, 67 Cal.Rptr. 826.) Defendant was booked not only on the traffic warrant but also for armed robbery.

On arrival at the police station the officer received certain teletypes which list information concerning stolen vehicles and wanted persons. One teletype stated that a Negro male wearing a striped shirt was wanted for armed robbery. This description fitted defendant. A further check with the police station from which the description was relayed disclosed the license number of a vehicle reported to have been driven by the robber involved in the robbery of a liquor store. This was the same license number as that of the vehicle which the officer had stopped for the traffic violation and which defendant was driving. The officer then walked over to defendant, told him he was under arrest for armed robbery, advised him of his rights, and took him to the city prison where he was booked and searched.

Defendant also argues that it is improper for an officer, upon stopping a vehicle, to conduct a routine warrant search. If such a check had not been made defendant would not have been arrested since the traffic offense for which he was arrested was one for which he would have received a citation. Defendant principally relies on Willett v. Superior Court, 2 Cal.App.3d 555, 83 Cal.Rptr. 22. ² In Willett the defendant was stopped for a routine traffic violation (one of his taillights was out) at about 5:30 p.m. He was detained by the officer for 40 minutes or more while a record check was being conducted. (At p. 558, 83 Cal.Rptr. 22.) The court held it was impermissible to detain the defendant 40 minutes to make a record check absent any suspicious circumstances other than the equipment failure. (At p. 559, 83 Cal.Rptr. 22.)

In the instant case there is no showing that the detention for the purpose of running the warrant check was unreasonably long. In fact, there is no showing at all as to how long defendant was detained. There is ample authority holding that where an automobile is stopped for a traffic violation it is not unreasonable to detain the occupants for a short period of time for the purpose of determining whether there are outstanding traffic warrants against the driver or other information relating to him in police records. (People v. Bremmer, 30 Cal.App.3d 1058, 1061--1062, 106 Cal.Rptr. 797; People v. Brown, 272 Cal.App.2d 448, 450, 77 Cal.Rptr. 438; People v. Elliott, 186 Cal.App.2d 185, 189, 8 Cal.Rptr. 716; ³ see Carpio v. Superior Court, 19 Cal.App.3d 790, 792--793, 97 Cal.Rptr. 186; and see People v. Grace, 32 Cal.App.3d 447, 453, fn. 3, 108 Cal.Rptr. 66, 69, ⁴ where the court expressed 'strong doubt as to the propriety of what has seemingly become a standard police practice of running a 'record check' on all drivers stopped for minor traffic violations.') ⁵

Since there was no evidence in the present case that defendant was detained for an unreasonable length of time, the warrant check was permissible, particularly when considered with the additional circumstance that when stopped defendant did not have in his possession a driver's license. The ascertainment by a police officer whether a person driving without a license has outstanding traffic warrants against him is a reasonable police effort. (See Carpio v. Superior Court, supra, 19 Cal.App.3d 790, 793, 97 Cal.Rptr. 186.)

Finally, with respect to the search and seizure, defendant contends that the searching officer should not have looked at the name on the credit card when it was taken from his pocket. A similar contention was rejected in People v. Balassy, 30 Cal.App.3d 614, 623, 106 Cal.Rptr. 461. Although the primary purpose of a booking search is to keep contraband out of the jail facility, the jailer is also justified as part of the booking search to remove the prisoner's personal effects from him. (People v. Balassy, supra; People v. Superior Court, 30 Cal.App.3d 257, 263, 106 Cal.Rptr. 211; People v. Rogers, 241 Cal.App.2d 384, 389, 50 Cal.Rptr. 559; People v. Reed, 202 Cal.App.2d 575, 579--580, 20 Cal.Rptr. 911; see § 1412; Gov.Code, § 26640.) Aside from determining whether such effects constitute contraband warranting their seizure, the jailer is authorized by statute to take money or property from the prisoner for purposes of safekeeping. (§ 1412; Gov.Code, § 26640.) 'Once articles have lawfully fallen into the hands of the police they may examine them to see if they have been stolen, test them to see if they have been used in the commission of a crime, return them to the prisoner on his release, or preserve them for use as evidence at the time of trial. (Citation). During their period of police custody an arrested person's personal effects, like his person itself, are subject to reasonable inspection, examination, and test. (Citation.)' (People v. Rogers, supra, 241 Cal.App.2d at pp. 389--390, 50 Cal.Rptr. at p. 562.)

Moreover, there is nothing unreasonable in police efforts to determine by inspection and investigation the true ownership of articles in their custody which they suspect to be stolen, particularly since they are prevented by the Penal Code from giving back suspected stolen property except on order of the magistrate. (§§ 1407, 1409; People v. Rogers, supra, 241 Cal.App.2d 384, 390, 50 Cal.Rptr. 559.) In the instant case defendant was arrested and booked for robbery. Accordingly, the arresting and custodial officers could reasonably entertain a strong suspicion that fruits of the robbery were in defendant's possession.

When queried as to how he had obtained the credit card, defendant stated he did not know how it had gotten into his pocket. He contends that this statement was improperly admitted into evidence because the prosecution failed to affirmatively show that defendant knowingly and intentionally waived his Miranda (Miranda v. Arizona, 386 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) rights. As already noted, the officer testified that prior to the booking search he had read to defendant his Miranda rights.

At the hearing pursuant to section 1538.5 the officer testified he had asked defendant 'what is this?' and that defendant replied 'I don't even know how it got there.' Defense counsel made no objection to this line of questioning. In fact, on cross-examination, he sought to elicit further evidence as to the actual content of the statement. At the trial the same officer testified that defendant told him he did not know how the credit card got there. Defense counsel stipulated that defendant had been read his Miranda rights. Another officer who questioned defendant after the arrest testified that defendant told him he had found the credit card in a wallet on the corner of McAllister Street and Van Ness Avenue in San Francisco. This questioning took place...