People v. Mercurio, Cr. 17330

• Decision Date: 10 August 1970
• Docket Number: Cr. 17330
• Citation: 88 Cal.Rptr. 750,10 Cal.App.3d 426
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eugene Paul MERCURIO, Defendant and Appellant.

Page 750

88 Cal.Rptr. 750

10 Cal.App.3d 426

The PEOPLE, Plaintiff and Respondent, v. Eugene Paul MERCURIO, Defendant and Appellant.

Cr. 17330.

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

Aug. 10, 1970.

Rehearing Denied Aug. 28, 1970.

Hearing Denied Oct. 22, 1970.

Richard S. Buckley, Public Defender, and James P. McGarry, James L. McCormick, and Richard A. Curtis, Deputy Public Defenders, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jimmie E. Tinsley, Deputy Atty. Gen., for plaintiff and respondent.

DUNN, Associate Justice.

On Sunday night, March 16, 1969 at approximately 11:30 p.m., appellant was walking eastbound on Hollywood Boulevard in Los Angeles. He started across the intersection of Las Palmas Avenue, against a traffic signal which showed 'Don't Walk.' He walked eastbound halfway across the intersection, then turned to his companion and motioned for him to follow. When his companion did not do so, appellant turned completely around and continued across the intersection, walking backwards. A police officer observing all of this placed him under arrest for violating Veh.Code § 21456(b), I.e.: starting to cross against the signal.

Appellant was unable to produce any identification on request, so was arrested and transported to the police station pursuant to Veh.Code § 40302(a). ¹ Before any actual booking (Pen.Code § 7) took place, he was ordered to remove his clothes which were then searched. A vial of marijuana and a package of 'Zig Zag' brand straw papers were found in his pants pockets and he thereupon was placed under arrest for violation of Health & Saf.Code § 11530 (possession of marijuana).

An information was filed charging appellant with violation of Health & Saf.Code § 11530, a felony. He pled 'not guilty' and, on the day set for trial, made a motion to suppress the contraband under Pen.Code § 1538.5. The motion was denied. Appellant then withdrew his plea and pled 'guilty.' The court, exercising its discretion to declare the crime a misdemeanor, imposed a six months' suspended sentence and placed appellant on probation for one year, fining him $100 as one condition therefor.

Appellant's appeal from the conviction requires a review of his motion to suppress, under Pen.Code § 1538.5(m). He raises two contentions: (1) the police exceeded the authority granted them under Veh.Code §§ 40300--40307 when they transported him to the police station, searched and booked him, without first attempting to take him before a magistrate; (2) Veh.Code § 40302 requiring the production of identification, does not apply to pedestrians.

If the police lawfully could have made a complete search of appellant at the moment of his arrest, the problem would be closer to solution since, if appellant could be searched initially, it would seem he could be searched later on while still in custody. (See E.g.: People v. Weitzer (1969) 269 Cal.App.2d 274, 291, fn. 7, 75 Cal.Rptr. 318.) However, violation of a simple traffic regulation, standing alone, ordinarily does not justify a generalized search of the person. A traffic violation ordinarily involves no tangible property; hence no implement or truit of the crime or infraction will be found and any search beyond that required for protection against violence is an unjustifiable intrusion. People v. Weitzer, Supra, 269 Cal.App.2d at p. 290, 75 Cal.Rptr. 318; People v. Nunn, 264 Cal.App.2d 919, 923--924, 70 Cal.Rptr. 869 (1968); People v. Jones, 255 Cal.App.2d 163, 168--169, 62 Cal.Rptr. 848 (1967). Though an arresting officer, reasonably fearing possible violence may search for weapons, in the case before us there is no evidence of suspected harm or of a weapon pat-down. Accordingly, the police, having no right to make a general search of appellant at the time of his arrest, had no continuing right based upon that arrest to make one later.

Another basis for a search arises at the time of a lawful booking for an intended incarceration. Thus, when a prisoner is booked at a police station, ordinarily he may be searched '* * * in order to prevent weapons and contraband from being brought into the jail, and to remove his personal effects from him.' People v. Rogers, 241 Cal.App.2d 384, 389, 50 Cal.Rptr. 559, 562 (1966). For a jailhouse search to be valid, however, the prisoner first must be brought lawfully to the jail for booking. This reaches the heart of appellant's contention, namely, that the intended booking and the related search did not come about lawfully.

Appellant distinguishes arrests made pursuant to Veh.Code §§ 40300--40311, inclusive, from arrests made pursuant to Pen.Code § 849 under which the ordinary misdemeant is immediately booked and jailed. We agree there is such a distinction (People v. Wohlleben, 261 Cal.App.2d 461, 463, 67 Cal.Rptr. 826 (1968)) and the procedures set forth in the Vehicle Code are here governing. We note Pen.Code § 849 contains no provision for release without incarceration similar to that contained in Veh.Code § 40307, hereinafter discussed.

Vehicle Code section 40302 provides that a person arrested for a code violation, other than a felony, must be brought 'without unnecessary delay' before a magistrate whenever such person fails to supply satisfactory identification. Respondent, noting that appellant was arrested at 11:30 p.m. on a Sunday night, contends it would be a 'necessary', not an 'unnecessary', delay to wait until the next morning to take appellant before a magistrate. In the meanwhile, argues respondent, common sense dictates that officers not be required to keep a culprit with them on beat or patrol but permits his incarceration, pending appearance before a magistrate the next morning.

The statute obviously is designed to insure that the violator will be held personally responsible for a Vehicle Code violation. On apprehending a violator, an officer has no assurance the violator will submit his correct name and address. When reliable identification is not supplied, a written promise to appear signifies little. For that reason, failure to submit identification subjects a violator to procedures which will insure either his appearance before a magistrate or his financial response to the violation charged.

This returns us to appellant's argument that Veh.Code § 40307 ² governs the situation. Appellant contends that if, as respondent insists, no magistrate was 'available' at 11:30 p.m. on a Sunday night, the officers then were required to take him to one of the persons designated in the statute, who would admit him to bail in accordance with a bail schedule, ³ further urging that there is no right first to book and search.

This appears to us to be the more...