People v. Munsey

• Decision Date: 24 June 1971
• Docket Number: Cr. 4251
• Citation: 18 Cal.App.3d 440,95 Cal.Rptr. 811
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Virginia Alice MUNSEY, Defendant and Appellant.

Page 811

95 Cal.Rptr. 811

18 Cal.App.3d 440

The PEOPLE of the State of California, Plaintiff and Respondent, v. Virginia Alice MUNSEY, Defendant and Appellant.

Cr. 4251.

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

June 24, 1971.

[18 Cal.App.3d 442] Roger C. Crobarger, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Diana C. Woodward, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

Virginia Alice Munsey (defendant) appeals from an order granting probation upon her plea of guilty to the possession of restricted dangerous drugs, in violation of Health and Safety Code, section 11910, after her motion under Penal Code, section 1538.5 had been denied.

A second charge of violating Vehicle Code, section 23106 was dismissed when she pleaded guilty to the first count.

At approximately 2:35 a.m. on August 17, 1969, as a California Highway Patrol vehicle was being driven southerly on Interstate 5 by Officer McDermott (McDermott), who was accompanied by Officer Roger Leon Nezet (Nezet), the vehicle was passed by a southbound car driven by defendant in the traffic lane to the left of the patrol vehicle.

In passing the patrol vehicle, defendant's car traveled at a speed of 70 miles per hour. Defendant's car, drawing up behind another car in the same lane, moved therefrom into the same lane as the patrol vehicle and continued on, gaining speed until it was going at 75 to 78 miles per hour; it also weaved from one side to another of the traffic lane from two to five times.

The prima facie speed limit in that section of the freeway was 65 miles per hour.

McDermott started to pick up speed to overtake defendant's car, which then slowed to 70 miles per hour, and then was brought to a gradual stop in response to McDermott's signalling for a halt.

The two officers alighted and approached defendant's car, McDermott on the right, Nezet on the driver's side.

Nezet saw that defendant's eyes were very bloodshot. He asked her to get out and had her walk a short distance; her gait was unsteady. Her speech was blurred and difficult to understand; she was hesitant in speaking. He administered several coordination and reaction tests, in all of which she did poorly, and in two of which she did very badly. ¹

Nezet was unable to detect any odor of alcohol about defendant's person. The only passenger in defendant's car had 'no odor of alcohol, was extremely lethargic, his speech was almost mumbling * * *' Nezet said he seemed to be under the extreme influence of a narcotic or something similar. A radio exchange from the scene brought information there was a warrant out for the passenger's arrest on a charge of violating '11910.' ² He was placed under arrest.

Nezet had been a highway patrol officer for five years and had administered sobriety tests between one hundred and two hundred times.

He formed the opinion that defendant was under the influence of some intoxicant other than alcohol.

Nezet's only special training in the area of recognizing a person under the influence of narcotics was limited to a few hours relating to narcotics at the California Highway Patrol Academy, and training at the Sheriff's Academy.

He had had no information prior to arresting defendant that she was addicted to or a user of narcotics.

Nezet would have interrogated defendant but was told by her something about wanting to talk to her three lawyers, and did not question her other than to ask which of three chemical tests she would submit to. She expressed a preference.

She was then placed under arrest for a violation of Vehicle Code, section 23105, carried to a hospital where the test was administered, and then taken to jail where she was booked on the charge for which she had been arrested. There she was searched by jail matrons and three plastic bags were removed from her brassiere. One contained 40 capsules of Seconal, a barbiturate; the second contained 34 1/2 amphetamine pills; the third contained one large amphetamine pill and three unidentified pills.

Defendant contends there was no probable cause to arrest her for a violation of section 23105 ³ or section 23106 ⁴ of the Vehicle Code; that there might have been cause to arrest for a violation of section 23102(a) ⁵ of the Vehicle Code, but that if there was probable cause to arrest for a violation of either section 23102(a) or section 23106, defendant could not lawfully have been subjected to a search of her person on a charge of either of such violations.

The core of defendant's argument as to lack of probable cause to arrest is the claimed lack of evidence of Nezet's competency to form an opinion defendant was under the influence of a narcotic or of an amphetamine or any other drug.

Defendant places much reliance upon Reinert v. Superior Court, 2 Cal.App.3d 36, 82 Cal.Rptr. 263, in which the Court of Appeal directed the superior court to set aside an information based upon the reception into evidence of marijuana found in a search incident to an arrest for a violation of Penal Code, section 647(f), which was held to have been made without probable cause because the arrest was based upon the defendant's condition when found in bed in his own home. ⁶

We find no difficulty in distinguishing the facts in this case from those in Reinert in another respect.

The arresting officer in Reinert went to the apartment on his own initiative after receiving information that Reinert had been trafficking in marijuana.

In the case at bench the police had no preconceived idea about defendant. She was stopped because of a speeding violation, attended by circumstances suggesting a lack of control over the vehicle. The phenomena exhibited by defendant to Nezet were those of an intoxicated person, and no doubt the most common cause in the experience of police was alcoholic intoxication.

Nezet was competent to form an opinion as to whether defendant was intoxicated.

Opinion evidence as to intoxication is not limited to expert testimony, but is a matter about which any witness may express an opinion. (People v. Ravey, 122 Cal.App.2d 699, 703, 265 P.2d 154; People v. Clark, 106 Cal.App.2d 271, 279, 235 P.2d 56; People v. Hernandez, 70 Cal.App.2d 190, 192, 160 P.2d 564; People v. Monteith, 73 Cal. 7, 9, 14 P. 373.)

Nezet's opinion that defendant was under the influence of something (Nezet did not know what) reasonably envisaged the possibility defendant was under the influence of intoxicating liquor, a matter concerning which he was competent to testify, without experiential training. Defendant, however, had no odor of alcohol about her and Nezet thought questioning her as to what she had been taking would have been improper after her mention of her attorneys.

The probability that defendant's condition was produced by alcohol having been tentatively eliminated, it became reasonable to entertain and hold a strong suspicion that defendant was under the influence of a narcotic.

In People v. Ingle, 53 Cal.2d 407, 412, 414, 2 Cal.Rptr. 14, 17, 18, 348 P.2d 577, 580, 581, the court declared:

'Each case must be decided on its own facts and circumstances (citations)--and on the total atmosphere of the case. (Citations.) Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. (Citations.) * * *

'* * *bel

'Unless it can be said that prudent men in the position of these officers knowing what they knew and seeing what they did would not have had reasonable cause to believe and to conscientiously entertain a strong suspicion that Ingle was violating or had violated the law, the arrest should be held lawful.'

Upon the theory the evidence was insufficient to show probable cause to arrest for a violation of Vehicle Code, section 23105, punishable as a felony, defendant bases her claim the search of her person was unreasonable and unlawful, and her incarceration unauthorized.

This court, in People v. Dukes, 1 Cal.App.3d 913, 82 Cal.Rptr. 218, held a search of the person incident to an arrest for a misdemeanor traffic violation was unreasonable, because a person arrested for such an offense might legally be detained only long enough to have bail fixed and to furnish such bail (Veh.Code, § 40302(d)), eliminating the necessity for a search at the jail. ⁷ In Dukes, the search was at the scene of an arrest made because the driver of a vehicle engaged in a minor traffic violation lacked satisfactory identification. The search disclosed marijuana.

The search in the case at bench was made of the person of one arrested on a felony charge, so that the Dukes rule has no application if there was probable cause to arrest on that charge.

Another point of distinction is that although defendant here was stopped originally on a traffic violation, which by itself would not have justified an arrest, the subsequent observations of Nezet led him to believe that she had been driving under the influence of a narcotic.

Under such circumstances a search may be reasonable for the purpose of obtaining possible evidence of the very crime for which the arrest is made. (See People v. Woods, 139 Cal.App.2d 515, 525, 293 P.2d 901; see also People v. Yniguez, 15 Cal.App.3d 669, 673, 93 Cal.Rptr. 444.)

Alcoholic intoxication on the part of a defendant may justify his detention in jail until its effects disappear even when he is able to give bail. (Evans v. Municipal Court, 207 Cal.App.2d 633, 636, 24 Cal.Rptr. 633; People v. Yniguez, Supra, 15 Cal.App.3d 669, 673, 93 Cal.Rptr. 444.) Intoxication caused by a drug likewise might justify such detention.

Our decision is not based upon such a holding, but upon the ground Nezet had probable cause to arrest for a violation of Vehicle Code section 23105. Persons about...