People v. Silvey

Decision Date05 September 1980
Docket NumberCr. 20111
Citation167 Cal.Rptr. 566,110 Cal.App.3d 67
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Appellant, v. Albert Raymond SILVEY, Jr., Defendant and Respondent.

George Deukmejian, Atty. Gen., State of California, Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., John T. Murphy, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

James C. Hooley, Public Defender, County of Alameda, Charles Scott Spear, Asst. Public Defender, Oakland, for defendant and respondent.

RATTIGAN, Acting Presiding Justice.

After he had been held to answer at a preliminary examination, respondent Albert Raymond Silvey, Jr., was charged by information with possession of phencyclidine (PCP) for sale in violation of Health and Safety Code section 11378.5. He moved for an order setting aside the information, pursuant to Penal Code section 995, contending that PCP received in evidence at the preliminary examination had been unlawfully seized by a police officer. The court granted his motion and made an order dismissing the information. The People appeal from the order of dismissal.

The record of the preliminary examination supports the following recitals:

Alameda County Deputy Sheriff Barnhill stopped respondent on a highway for speeding and driving erratically. When the officer approached respondent's automobile, he saw a marijuana cigarette holder protruding from the dashboard. Respondent had difficulty removing his driver's license from his wallet, his movements were very slow and jerky, his eyes were droopy and bloodshot, and saliva was caked at the corners of his mouth. Deputy Barnhill inferred from respondent's appearance that he was under the influence of PCP and asked him to step out of the car.

Respondent leaned back in the seat, removed a metal container from the center armrest, and put it in the back of his pants. When he emerged from the car, Deputy Barnhill "retrieved" the container and handed it to his partner. The officer then arrested and handcuffed respondent, placed him in the back seat of the police vehicle, returned to the front seat of the vehicle, and opened the container. It contained 2.53 grams of PCP.

In moving to dismiss the information, respondent argued that the search of the metal container was unlawful because the search was warrantless and lacked probable cause. The Attorney General contends that the court erred when it granted the motion because Deputy Barnhill was authorized to search the container incident to respondent's arrest.

The United States Supreme Court narrowed the scope of a lawful warrantless search incident to arrest in United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, in which officers searched a 200-pound locked footlocker taken from the trunk of an automobile after the defendants arrest and seizure of the vehicle. (Id., at pp. 4-5, 97 S.Ct., at pp. 2479-2480.) The court held that ". . . warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the 'search is remote in time or place from the arrest' (citation), or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest." (Id., at p. 15, 97 S.Ct., at p. 2485 (emphasis added; fn. omitted).)

The Attorney General argues that Chadwick does not proscribe the warrantless search of property "immediately associated" with the arrestee at the time of his arrest. Respondent contends that Chadwick and its progeny 1 proscribe a warrantless search of a closed container which has been brought within the exclusive control of the police.

The Chadwick court distinguished between searches of the person incident to arrest and searches of "personal property not immediately associated with the person of the arrestee." The court held that, absent exigent circumstances, a search of the latter type requires a warrant. The rationale for this holding is equally applicable to a search incident to an arrest. The purpose of a search incident to an arrest is to deprive a suspect of access to a weapon and prevent concealment or destruction of evidence. (United States v. Chadwick, supra, 433 U.S. 1 at p. 14, 97 S.Ct. 2476 at p. 2485, 53 L.Ed.2d 538.) If property immediately associated with the arrestee's person is safely reduced to the officers' exclusive control, the danger that justifies the warrantless search no longer exists. The justification for warrantless searches of property immediately associated with the person, as well as of property not immediately associated with the person, is the danger that the arrestee may gain access to a weapon or contraband. If safe reduction of the latter type of property to the exclusive control of police officers necessitates the obtaining of a warrant by eliminating the justification for a warrantless search, no logical reason exists for treating the former type of property any differently.

In People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, the California Supreme Court held that the warrantless search of a zippered tote bag found in the trunk of the defendant's automobile, after his arrest, was unlawful for want of justifying exigent circumstances. The court also quoted the two sentences from Chadwick discussed above and stated: "It is clear from Chadwick itself that the tote bag would not have been subject to a warrantless search if appellant had been arrested on the street and the bag taken from his possession." (People v. Minjares, supra, at pp. 419-420, 153 Cal.Rptr., at p. 229, 591 P.2d, at p. 519.) It is unclear whether the court construed Chadwick as implicitly proscribing warrantless searches of closed containers immediately associated with the person of an arrestee in the absence of exigent circumstances, or whether the court considered the zippered tote bag not to be immediately associated with the defendant. The former construction, however, would appear to be inevitable by way of consistent reasoning.

The warrantless search of respondent's metal container was accordingly unlawful, regardless of its relationship to respondent's person, because Deputy Barnhill had safely reduced it to his exclusive control. 2 The trial court did not err in granting respondent's motion.

The order of dismissal is affirmed.

POCHeE, J., concurs.

CHRISTIAN, Associate Justice, dissenting.

I dissent.

Application of the doctrines discussed by the majority is somewhat clouded by the statement in United States v. Chadwick (1977) 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538, that "warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to arrest either if the 'search is remote in time or place from the arrest,' (citation) or no exigency exists." Taken out of context, this statement does suggest that any property seized from an arrestee and safely reduced to the exclusive control of police officers is outside the scope of a lawful warrantless incidental search. The context in which this statement appears, however, makes clear that the holding of Chadwick is not to be so broadly construed. The above quoted sentence is followed and explained by the statement that "luggage or other personal property not immediately associated with the person of the arrestee " is outside the scope of a search incident to arrest if safely reduced to the officer's exclusive control. (Id.; emphasis added.) Additionally, in the same paragraph the court stated the federal rule that warrantless searches of an arrestee's person and the area within his immediate control may be conducted without additional justification. (Id., at pp. 14-15, 97 S.Ct., at p. 2485, citing United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.)

The rule of Chadwick and its progeny is thus limited to searches of personal property not immediately associated with the person of the arrestee. The court in Chadwick reaffirmed the viability of existing standards for searches of personal property that is immediately associated with the arrestee's person, i. e., searches of the person incident to arrest. Consistent with this view, the California Supreme Court in People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, cert. den. 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 117, holding that the warrantless search of a zippered tote bag found in the defendant's car trunk after his arrest was unlawful for want to justifying exigent circumstances, quoted the two sentences from Chadwick discussed above and stated in dictum: "It is clear from Chadwick itself that the tote bag would not have been subject to a warrantless search if appellant had been arrested on the street and the bag taken from his possession." (Id., at pp. 419-420, 153 Cal.Rptr., at p. 229, 591 P.2d, at p. 519.) The court perhaps considered that the zippered tote bag would not have been immediately associated with the defendant. The key question in the present case is thus whether respondent's metal container was immediately associated with his person at the time it was seized.

In fact, the metal container was removed from respondent's clothing; therefore it was without doubt immediately associated with his person. As one authority states, "A search is deemed to be 'of a person' if it involves an exploration into an individual's clothing, including a further search within small containers, such as wallets, cigarette boxes and the like, which are found in or about such clothing." (La Fave,...

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3 cases
  • Miller v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • November 6, 1981
    ...591 P.2d 514.) Thus Minjares is not entirely dispositive of the issue in the case at bench. Petitioner also cites People v. Silvey (1980) 110 Cal.App.3d 67, 167 Cal.Rptr. 566, a decision rendered by Division Four of this court, and People v. Pace (1979) 92 Cal.App.3d 199, 154 Cal.Rptr. 811,......
  • People v. Barnett
    • United States
    • California Court of Appeals Court of Appeals
    • December 19, 1980
    ... ...         Defendant's contention concerning the unreasonableness of the booking search of her purse, which revealed Ms. Gitlitz' wallet, is untenable. People v. Sims, 109 Cal.App.3d 900, 167 Cal.Rptr. 506 and People ... Page 262 ... v. Silvey, 110 Cal.App.3d 67, 167 Cal.Rptr. 566, are inapposite, as the searches there were not booking searches but searches after arrest or apprehension without exigent circumstances. This court (Division Three) in People v. Bundesen, 106 Cal.App.3d 508, pointed out, at page 515, 165 Cal.Rptr. 174, that ... ...
  • People v. Silvey
    • United States
    • California Court of Appeals Court of Appeals
    • April 3, 1984
    ...the order of dismissal on the ground that the evidence was obtained from an unlawful search and seizure. (Reported as People v. Silvey (1980) 110 Cal.App.3d 67, 167 Cal.Rptr. 566.) The Attorney General filed a petition for writ of certiorari in the United States Supreme Court on behalf of t......

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