People v. Superior Court

• Decision Date: 03 March 1972
• Citation: 493 P.2d 1145,100 Cal.Rptr. 281,6 Cal.3d 757
• Court: California Supreme Court
• Parties: , 493 P.2d 1145 The PEOPLE, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent; Allan Foster HAWKINS, Real Party in Interest. L.A. 29934. In Bank

Page 281

100 Cal.Rptr. 281

6 Cal.3d 757, 493 P.2d 1145

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent;

Allan Foster HAWKINS, Real Party in Interest.

L.A. 29934.

Supreme Court of California,

In Bank.

March 3, 1972.

Evelle J. Younger, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Jack R. Winkler, Deputy Atty. Gen., for petitioner.

No appearance for respondent.

Vizzard, Baker, Sullivan, McFarland & Long, and Richard M. Long, Bakersfield, for real party in interest.

SULLIVAN, Justice.

Defendant (real party in interest) Allan Foster Hawkins was charged by information with one count of vehicle manslaughter (Pen.Code, § 192, subd. (3) (a)) and one count of felony drunk driving (Veh.Conde, § 23101). He moved pursuant to section 1538.5 of the Penal Code to suppress as evidence the results of a blood-alcohol test on the ground that they were the product of an allegal search and seizure. Defendant's motion was granted and the People seek review by writ of mandate. (Pen.Code, § 1538.5, subd. (o).) ¹

The pertinent facts giving rise to the motion to suppress are as follows: On the evening of June 21, 1970, defendant, accompanied by his sister, was driving a pickup truck along Allen Road in Kern County. At the same time Robert Craig accompanied by his wife and children was driving his station wagon along Rosedale Highway, a through highway. (See Veh.Code, § 600.) Without stopping or slowing down at the stop sign, defendant drove his truck into the intersection and collided with the Craig vehicle. Defendant's sister was killed and Mrs. Craig was seriously injured.

Officers of the California Highway Patrol arrived upon the scene within 10 minutes. They found defendant standing near the station wagon in a dazed condition, eyes bloodshot, shirt off, back and head bloody from injuries. Officer Hernandez testified that defendant's breath smelled of alcoholic beverages and that there were three beer cans in defendant's truck, two full and one empty. Due to defendant's physical condition, he was not given a field sobriety test, but placed in an ambulance along with Mrs. Craig and sent to the Kern General Hospital for medical attention.

At the hospital defendant and Mrs. Craig were transferred to the emergency room. After completing their investigation at the scene of the accident, the two officers also proceeded to the hospital. While defendant was lying in the emergency room awaiting treatment, Officer Apsit approached defendant and asked that he consent to a blood-alcohol test for intoxication. Defendant apparently agreed and signed a written consent. A blood sample was thereupon taken in a medically approved manner. Several hours later defendant was released from the hospital. At no time was defendant placed under arrest.

The result of the blood-alcohol test showed that defendant's blood contained 203 milligrams percent alcohol. Several weeks after the accident a complaint was filed in the Bakersfield Municipal Court charging defendant with the above-mentioned felonies. Defendant voluntarily surrendered to the authorities. At the preliminary hearing, the magistrate, found that defendant had consented to the blood-alcohol test, denied his motion to suppress the results of the test and held him to answer.

Defendant renewed his motion to suppress in the superior court. (§ 1538.5, subd. (i).) ² At the special hearing his motion was submitted on the transcript of the preliminary hearing, supplemented by defendant's testimony. The People conceded that the only ground upon which they sought to justify the seizure of defendant's blood was his written consent. ³ The trial judge found that defendant's written consent was not free and voluntary and granted the motion to suppress. ⁴ The People thereupon filed the instant petition for a writ of mandate. (§ 1538.5, subd. (o).)

The People concede, as indeed they must, that there is substantial evidence in the record to support the trial court's finding that defendant's written consent to the blood-alcohol test was not freely and voluntarily given. They contend, however, that the taking of a blood sample in a medically approved manner but without the consent of the subject is not violative of his right to be secure against unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution where there is probable cause to arrest at the time the sample is taken, even though the taking of the sample is not pursuant to a search warrant or incident to an arrest. We disagree. Accordingly we deny the People's petition for the writ.

It is clear that the Fourth Amendment does not bar a compulsory seizure, without a warrant, of a person's blood for the purposes of a blood alcohol test to determine intoxication, provided that the taking of the sample is done in a medically approved manner, is incident to a lawful arrest, and, is based upon the reasonable belief that the person is intoxicated. (Schmerber v. California (1966) 384 U.S. 757, 766--772, 86 S.Ct. 1826, 16 L.Ed.2d 908; People v. Duroncelay (1957) 48 Cal.2d 766, 771--772, 312 P.2d 690.) As previously indicated, the People claim, without any citation of authority, that such a seizure of a person's blood is lawful even when it is Not incident to a lawful arrest. They argue that the real thrust of Schmerber and Duroncelay is that intrusion into the privacy of a person's body depends upon a clear indication of his intoxication and that his arrest is a mere formality. They point to the following language in Schmerber: 'The interests in human dignity and privacy which the Fourth Amendment protects forbids any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.' (Schmerber v. California, Supra, 384 U.S. 757, 769--770, 86 S.Ct. 1826, 1835.)

Contrary to the People's claim, Schmerber's approval of the compulsory seizure of blood is clearly grounded on the premise that it is incidental to a lawful arrest. 'In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these questions arise in the context of an arrest made by an officer without a warrant.' (Id. at [6 Cal.3d 762] 768, 86 S.Ct. at 1834.) 'While early cases suggest that there is an unrestricted 'right on the part of the government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime,' (citations) the mere fact of a lawful arrest does not end our inquiry.' (Id. at p. 769, 86 S.Ct. at p. 1835.) 'Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an Appropriate incident to petitioner's arrest.' (Id. at p. 771, 86 S.Ct. at p. 1836, italics added.) Similarly in Duroncelay, we made it perfectly clear that the seizure of the blood sample could only be justified as 'incident to the lawful arrest of one who is reasonably believed to have violated section 501 of the Vehicle Code.' (People v. Duroncelay, Supra, 48 Cal.2d 766, 772, 312 P.2d 690, 699.)

The People favor us with no authority supportive of their startling proposition that in this context a lawful arrest is but a mere formality. Indeed this proposition runs directly counter to the law on search and seizure developed by the United States Supreme Court. '(T)his Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Searches conducted without warrants have been held unlawful 'notwithstanding facts unquestionably showing probable cause,' Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145, for the Constitution requires 'that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . ..' Wong Sun v. United States, 371 U.S. 471, 481--482, 83 S.Ct. 407, 414, 9 L.Ed.2d 441. 'Over and over again this Court has emphasized that the mandate of the (Fourth) Amendment requires adherence to judicial processes,' United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59, and that searches conducted outside the judicial process, without prior approval by judge or magistrate are Per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' (Fns. omitted.) (Katz v. United States (1967) 389 U.S. 347, 356--357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.)

In Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, the United States Supreme Court reiterated the doctrine that searches and seizures without warrants are per se unreasonable under the Fourth Amendment even if there is probable cause to search, except in rare situations, and traced the history of one of these rare situations, namely searches incident to a lawful arrest. The Supreme Court pointed out that this exception emerged in dictum in Weeks v. United States (1914) 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 and gradually wound its way to the dignity of a holding. The legitimate extent of a search incident to a lawful arrest followed an unclear and apparently inconsistent path until Chimel where the court unequivocally defined the purpose and extent of searches incident to a lawful arrest. 'When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons the latter might seek to use in order to resist arrest or effect his escape. . . . In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's...