People v. Longwill

• Decision Date: 07 August 1975
• Docket Number: Cr. 17773
• Citation: 538 P.2d 753,14 Cal.3d 943,123 Cal.Rptr. 297
• Parties: , 538 P.2d 753 The PEOPLE, Plaintiff and Respondent, v. Randolph Lee LONGWILL, Defendant and Appellant.
• Court: California Supreme Court

Page 297

123 Cal.Rptr. 297

14 Cal.3d 943, 538 P.2d 753

The PEOPLE, Plaintiff and Respondent, v. Randolph Lee LONGWILL, Defendant and Appellant.

Cr. 17773.

Supreme Court of California In Bank.

Aug. 7, 1975.

Kenneth A. Wilson, Sr., Colusa, under appointment by the Supreme Court, for defendant and appellant.

Rose Elizabeth Bird, Palo Alto, and Michael P. Thorman, Oakland, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler and Edward A. Hinz, Jr., Chief Asst. Attys. Gen., William E. James, Asst. Atty. Gen., Arnold O. Overoye, Willard F. Jones, Rick McClendon, Marjory Winston Parker and William G. Prahl, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

In the early morning hours of March 25, 1973, Deputy Sheriff Dufresne of the Sutter County Sheriff's Department stopped an automobile which had been proceeding in excess of 100 miles an hour. Defendant was a passenger in the vehicle. Deputy Sheriff Terry arrived in a backup unit, and after the driver had been placed under arrest for reckless driving, Officer Terry approached defendant and requested identification. From defendant's slurred responses, uncoordinated movements, and emission of the odor of alcohol, Officer Terry concluded defendant was inebriated and placed him under arrest for the misdemeanor offense of public intoxication. (Pen.Code, § 647, subd. (f).)

The officer then conducted a pretransportation search of defendant's person. He began with a pat-down, and felt nothing which resembled a weapon. He then conducted a full body search, and seized one marijuana cigarette, one hashish pipe, and one package of Zig-Zag papers from defendant's left shirt pocket.

Defendant's motion to suppress this evidence was denied, and he thereafter pleaded guilty to possession of marijuana and possession of narcotics paraphernalia. He appeals from the judgment (Pen.Code, § 1538.5, subd. (m)), contending that under the California Constitution (Cal.Const., art. 1, § 13) the evidence seized was the product of an unlawful search. We agree, and conclude the judgment must be reversed.

The full body search of defendant was invalid under settled principles of law developed painstakingly by this court in the recent past. (People v. Superior Court (Simon) (1927) 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205; People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099; People v. Norman (1975) Cal., 123 Cal.Rptr. 109, 538 P.2d 237.) As we have been careful to explain on these occasions, the permissible scope of a search of the person incident to a valid arrest is dependent not on the single fact of the existence of a 'custodial arrest,' but rather on the relative danger to the officer associated with each particular arrest. More specifically, Simon, Brisendine, and Norman teach that full body searches or impermissible when the arrest will be disposed of by a mere citation, or when the arrestee is to be transported to the stationhouse in the police vehicle and there given the opportunity to post bond. As we shall explain herein, these same considerations govern the present case and forbid full body field searches of persons arrested for the offense of public intoxication.

In order to determine the precise nature of defendant's arrest a brief review of the relevant legislation is necessary. Defendant was arrested for violation of Penal Code section 647, subdivision (f). This section simply provides, inter alia, that it is a misdemeanor to be 'found in any public place under the influence of intoxicating liquor.' An officer arresting an individual under this section retains broad discretion to effect a number of dispositional alternatives. He may, of course, book and incarcerate the misdemeanant, and in that event we agree with the People that a full body search may be conducted immediately prior to incarceration to prevent the entry of contraband into the jail facility. ¹

Alternatively, the individual may be given a citation and released either at the scene of the arrest or at the stationhouse, and thus be spared the process of booking and incarceration. Penal Code section 853.6 provides: 'In any case in which a person is arrested for an offense declared to be a misdemeanor and does not demand to be taken before a magistrate, such person may, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter. If The arresting officer or his superior determines that the person should be released, such officer or superior shall prepare (a citation and notice to appear) . . .. If the person is not released prior to being booked and The officer in charge of the booking or his superior determines that the person should be released, such officer or superior shall prepare such written notice to appear in court.' (Italics added.) Accordingly, under section 853.6 there are four separate officials--the arresting officer, his superior, the booking officer, and his superior--who may intervene and divert the arrestee piror to actual incarceration.

A third and frequently utilized alternative specifically designed for the public inebriate is release pursuant to Penal Code section 849, subdivision (b) (2) (hereinafter referred to as section 849(b)(2)). The statute provides: 'Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever: . . . (2) The person arrested was arrested for intoxication only, and no further proceedings are desirable.'

The People contend on the authority of People v. Markin (1973) 34 Cal.App.3d 58, 109 Cal.Rptr. 609, that 'once the officer arrests a person for public intoxication, it is likely that the suspect will be incarcerated.' This conclusion appears to adopt a presumption in favor of the prosecution and ignores the established rule that it is the People, rather than the defendant, who bear the burden of justifying a warrantless seizure. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23.) In fact, there is ample reason for believing the arrest herein would have been disposed of without the necessity for incarceration; that reason lies in the frequency with which section 849(b)(2) is used as an alternative to invoking the traditional mechanisms of the criminal process.

In a recent empirical study of law enforcement practices in six target counties it was found that release pursuant to section 849(b)(2) is a readily available, and in some instances, standard practice for disposing of arrests for public intoxication. (Moss, Taking the Public Inebriate Out of California's Criminal Justice System (1974) 7 U.C.Davis L.Rev. 539--567.) In 1972, for example, there were 4,958 arrests in Stockton under section 647, subdivision (f), of which 4,234 or 85.4 percent resulted in release pursuant to section 849(b)(2); in Lodi 286 of 393 arrestees, or 72.8 percent, were released; in Fresno 6,795 or 52.5 percent of the public intoxication arrests were disposed of by release under section 849(b)(2); and in San Francisco 6,475 or 41.7 percent were so diverted. But as impressive as these figures are, the trend after 1972 is even more striking. The author notes that 'a major increase in § 849(b)(2) releases started in 1973' and that 'the use of Penal Code section 849(b)(2) releases has become the prevalent mode for handling the public inebriate in most of the larger jurisdictions.' (Id. at p. 549.) This conclusion is demonstrated by the fact that in 1973 Fresno had a 90 percent drop in public intoxication convictions when compared to the same period in 1972, which the author attributes not to 'a lowered rate of making § 647(f) arrests within the City of Fresno, which have remained at a high level, but from the greatly increased use of § 849(b)(2).' (Ibid., fn. 57.)

The conclusion to be drawn from these data is that when the arrestees released pursuant to section 849(b)(2) are added to those cited and released under section 853.6, there exists a significant probability that a given public intoxication arrest may never reach the point at which the individual is actually incarcerated.

The People, however, seek to justify the instant search as a form of 'accelerated booking search.' The reasoning proceeds from the premise that a full custody search is permissible at the stationhouse prior to booking, and therefore it is not a significantly greater intrusion into the sanctity of the person of the arrestee if the search is conducted in the field. We have no quarrel with this rationale if in fact the individual is to be subjected to the booking process. But our recent decisions raise serious objections to a rule which would permit unrestricted searches of all public intoxication arrestees regardless of whether they are ultimately to be incarcerated, which intrusions mysteriously ripen into 'accelerated booking searches' in those few instances in which contraband is discovered on the person of the arrestee.

Considerations comparable to the foregoing have been invoked on numerous occasions by our Courts of Appeal to invalidate full custody searches of those arrested for public intoxication. In People v. West (1973) 31 Cal.App.3d 175, 178--179, 107 Cal.Rptr. 127, 129, the court stated: 'Finally, the search could not have been upheld as a prelude to a jailhouse search because legally, there was no assurance that there would be a jailhouse search. After a suspect is arrested for public intoxication, but before he is incarcerated, it is possible for him to be released by the arresting officer (Pen.Code, § 849, subd. (b) (2)), or by the arresting officer's superior, by the booking officer, or by the booking officer's superior (Pen.Code, § 853.6). Although (the officer's) testimony is susceptible to the interpretation that he did not intend to release defendant prior to defendant's being incarcerated, it was certainly possible that (the officer's) superiors,...