People v. Laiwa

• Decision Date: 06 October 1983
• Docket Number: No. 22259,22259
• Citation: 34 Cal.3d 711,669 P.2d 1278,195 Cal.Rptr. 503
• Court: California Supreme Court
• Parties: , 669 P.2d 1278 The PEOPLE, Plaintiff and Appellant, v. Raymond LAIWA III, Defendant and Respondent. Crim.

Page 503

195 Cal.Rptr. 503

34 Cal.3d 711, 669 P.2d 1278

The PEOPLE, Plaintiff and Appellant, v. Raymond LAIWA III, Defendant and Respondent.

Crim. No. 22259.

Supreme Court of California,

In Bank.

Oct. 6, 1983.

Rehearing Denied Dec. 1, 1983.

Sheldon Portman, Public Defender, Barbara B. Fargo, Rosemary S. Morrison and Jeffrey A. Kroeber, Deputy Public Defenders, for defendant and respondent.

Quin Denvir, State Public Defender, and George L. Schraer and Ralph H. Goldsen, Deputy Public Defenders, amici curiae for defendant and respondent.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein and Edward P. O'Brien, Asst. Attys. Gen., Herbert F. Wilkinson, John T. Murphy, Gloria F. DeHart and Ronald E Niver, Deputy Attys. Gen., for plaintiff and appellant.

John J. Meehan, Dist. Atty. (Alameda), William M. Baldwin, Asst. Dist. Atty., and William McKinstry, Deputy Dist. Atty., amici curiae for plaintiff and appellant.

MOSK, Justice.

While on patrol at midday in July 1979, a police officer saw defendant in a parking lot making stiff, "robot-like" movements. From his training and experience the officer formed the opinion that defendant was under the influence of phencyclidine (PCP). He detained defendant and tested him for certain distinctive eye movements that are seen in persons under the influence of PCP. When the test proved positive, the officer arrested defendant, took from him a closed tote bag he had been carrying, and put him in handcuffs; he may also have placed defendant in the patrol car at that time.

The officer then opened and searched the tote bag; he subsequently testified that he did so "for inventory purposes." Inside the bag he found a single cigarette containing PCP. After this discovery, defendant was transported to the police station, booked, and charged with the crime of possession of PCP. (Health & Saf. Code, § 11377, subd. (a).)

At the preliminary hearing the foregoing evidence was introduced and defendant stipulated that the officer had probable cause to arrest him for being under the influence of a narcotic. (Pen.Code, § 647, subd. (f).) ¹ He moved, however, to suppress the evidence of the cigarette on the ground that the warrantless search of his tote bag was unlawful. (§ 1538.5, subd. (f).) He contended that the intrusion could not be justified as an incident to the narcotics arrest because at the time of the search the bag was no longer under his immediate control: it had been taken away from him and he was in handcuffs. The prosecution sought to justify the intrusion on a different theory, contending that it should be upheld as an "accelerated booking search." To support that theory with facts, the prosecution reopened its case over defendant's objection and recalled the arresting officer to the stand. He testified that it was his department's practice to book and "strip-search" all persons arrested on a charge of being under the influence of narcotics, and that before he looked inside defendant's bag he intended to book him on such a charge. On this testimony the magistrate found that defendant would in fact have been subjected to the booking and booking-search process, and therefore ruled that the search of the bag at the scene of the arrest was justified as an "accelerated booking search." The motion to suppress was denied, and defendant was held to answer.

In superior court defendant filed a compound motion to suppress the evidence (§ 1538.5, subd. (i)) and to "dismiss" the information pursuant to section 995 "on the ground that evidence necessary to support the Information was erroneously admitted over proper defense objection at the preliminary examination." No evidence was introduced at the hearing, which was devoted to arguing whether the case was controlled by People v. Pace (1979) 92 Cal.App.3d 199, 154 Cal.Rptr. 811, or by three decisions relied on by the People involving booking searches. The court took the matter under submission, and thereafter issued a memorandum of decision ruling that "the motion" was granted "for the reasons stated in People v. Pace." The People took this appeal.

I

We begin by addressing a procedural problem that has troubled our courts and practitioners since the enactment of the statutory motion to suppress (§ 1538.5) in 1967. Prior to that date a defendant had two methods of challenging before trial the admissibility of evidence obtained by a warrantless search and seizure: i.e., a nonstatutory motion to suppress (People v. Gershenhorn (1964) 225 Cal.App.2d 122, 124, 37 Cal.Rptr. 176) and a statutory motion to set aside the accusatory pleading (§ 995) on the ground that it rested entirely on evidence obtained by an illegal search and seizure (Badillo v. Superior Court (1956) 46 Cal.2d 269, 271, 294 P.2d 23). (See generally, Note, Methods of Challenging Searches and Seizures in California (1966) 54 Cal.L.Rev. 1070, 1071-1077; Cal. Criminal Law Practice (Cont.Ed. Bar 1964) pp. 190-196.) There were a number of significant differences between the two procedures, however, and one of those differences was in the opportunity for immediate review. Each party was accorded an immediate review of a ruling on a motion to set aside an accusatory pleading: the People could take a direct appeal (former § 1238, subd. 1; now § 1238, subd. (a)(1)), and the defendant could petition for a writ of prohibition (§ 999a). But there was no such review of a ruling on a motion to suppress: that ruling would support neither an appeal (People v. Gershenhorn, supra) nor a petition for writ (People v. Justice Court (1960) 185 Cal.App.2d 256, 8 Cal.Rptr. 176). This omission tended to work a greater hardship on the People than on the defendant, as the latter had the right to obtain appellate review of the ruling after any ensuing conviction.

Section 1538.5 was enacted in part to remedy the omission. (See 22 Assem. Interim Com.Rep. (1965-1967) No. 12, Crim. Procedure, Search & Seizure, pp. 15-16.) It now provides multiple opportunities for immediate review by both parties of rulings on motions to supress. In misdemeanor cases, either the People or the defendant can appeal to the superior court. (§ 1538.5, subd. (j).) In felony cases, the People can petition for writ if the prosecution has not been dismissed on motion of the superior court pursuant to section 1385 ² (§ 1538.5, subd. (o )), and can appeal if it has (§ 1238, subd. (a)(7)); the defendant can petition for writ (§ 1538.5, subd. (i)). (See generally Cal. Search and Seizure Practice (Cont.Ed.Bar 2d ed. 1977) pp. 59-88.)

The difficulty we address here stems from the fact that when the Legislature codified, expanded, and regulated the motion to suppress evidence on the ground of unreasonable search and seizure in the elaborate provisions of section 1538.5, it left intact the motion to set aside the accusatory pleading on the same ground under section 995. That this was not an oversight is shown by section 1538.5 itself, which declares that "Nothing in this section shall be construed as altering ... the procedure and law relating to a motion made pursuant to Section ... 995" (id., subd. (n)), and expressly includes section 995 in a list of "the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure" (id., subd. (m)). The oversight, rather, appears in the failure of the Legislature to coordinate the two procedures in light of the significant differences remaining between them.

The principal differences lie in the functions of the courts when ruling on these motions, and in the scope of appellate review. Section 1538.5, of course, repeatedly refers to superior court proceedings on a motion to suppress as a hearing "de novo." (Id., subds. (i) and (j).) Accordingly, it is settled that in ruling on a motion under section 1538.5 the superior court sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences, and hence that on review of its ruling by appeal or writ all presumptions are drawn in favor of the factual determinations of the superior court and the appellate court must uphold the superior court's express or implied findings if they are supported by substantial evidence. (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.) By contrast, in proceedings under section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoing powers, and sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. (People v. Hall (1971) 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664, and cases cited.) On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer. (People v. Maltz (1971) 14 Cal.App.3d 381, 389, 92 Cal.Rptr. 216; see generally People v. Sanchez (1972) 24 Cal.App.3d 664, 690, fn. 15, 101 Cal.Rptr. 193.)

These differences cause no mischief when the defendant makes only one of the two motions at a time: following the foregoing rules, both the superior court and the appellate court know what to do. (See, e.g., People v. Norman (1975) 14 Cal.3d 929, 931, 939, 123 Cal.Rptr. 109, 538 P.2d 237 [§ 1538.5 motion at preliminary examination; § 995 motion after filing of information; People's appeal from order setting aside information].) The problems arise when, as here, the defendant makes a compound motion invoking both statutes at once. If, as often occurs, that motion is heard by stipulation in whole or in part on the transcript of the preliminary examination, the superior court may be called on to perform the mental gymnastics of viewing one and the same testimony both as a trier of fact under section 1538.5 and as a...