People v. Superior Court

• Court: United States State Supreme Court (California)
• Writing for the Court: MOSK; WRIGHT; BURKE; McCOMB
• Citation: 496 P.2d 1205,7 Cal.3d 186,101 Cal.Rptr. 837
• Parties: , 496 P.2d 1205 The PEOPLE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Gary Steven SIMON, Real Party in Interest. L.A. 29881. In Bank
• Decision Date: 19 May 1972

Page 837

101 Cal.Rptr. 837 7 Cal.3d 186, 496 P.2d 1205 The PEOPLE, Petitioner,
v.
The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;
Gary Steven SIMON, Real Party in Interest. L.A. 29881. Supreme Court of California, In Bank. May 19, 1972.

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[496 P.2d 1208] [7 Cal.3d 190] Evelle J. Younger and Joseph P. Busch, Attys. Gen., Harry Wood and Eugene D. Tavris, Deputy Attys. Gen., for petitioner.

No appearance for respondent.

Richard S. Buckley, Public Defender,

James L. McCormick, Benjamin D. Avan and Dennis A. Fischer, Deputy Public Defenders, for real party in interest.

MOSK, Justice.

Defendant, real party in interest herein, was charged with possession of marijuana. (Health & Saf.Code, § 11530.) His motion to [7 Cal.3d 191] suppress the evidence on the ground of illegal search and seizure was granted, and the People seek review by statutory writ of mandate. (Pen.Code, § 1538.5, subd. (o).)

In People v. Superior Court (1970) 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449 (hereinafter called Kiefer ), we determined the constitutionally permissible scope of a warrantless search of a vehicle as an incident to the arrest of its driver for an ordinary

Page 841

[496 P.2d 1209] traffic violation. In the case at bar we are called upon to apply the reasoning of Kiefer to a similar search of the person of the driver or a fellow passenger. As will appear, we conclude the search here conducted cannot be justified as an incident to defendant's arrest, and hence the trial court correctly granted the motion to suppress.

The motion was heard on the transcript of the preliminary examination, together with additional testimony by defendant. The evidence bearing on the circumstances surrounding the search and seizure was in considerable conflict.

Police Officer Erickson, the sole witness for the People, testified he was on routine vehicular patrol with his partner Officer Amic at 7:30 p.m. on March 9, 1970, when he saw a car 'driving without headlights or taillights.' He stopped the vehicle and defendant, its driver and sole occupant, 'got out of the car voluntarily' and 'started to play around under the dash.' The officer asked defendant for his identification, and 'He stated he had no identification, no registration for the car. I placed him under arrest for his traffic violation under authority of (section) 40302(a) of the Vehicle Code.' ¹ The officer then searched defendant's person and found in his right front pants pocket a soft plastic bag containing 7.6 grams of marijuana.

On cross-examination counsel asked Officer Erickson, 'Did you at any time fear for your life, thinking that (defendant) had a weapon on him?' The officer replied he did not, and further acknowledged that in his pat-down search of defendant he found no evidence of any weapon whatever.

Defendant took the stand and testified that his car was a 1957 MG convertible. ² On the evening in question defendant was driving on the [7 Cal.3d 192] street when the ignition caught fire, the car's lights went out, and smoke began issuing from under the dashboard. He promptly stopped the vehicle to deal with the problem. The police arrived on the scene a few moments later, but defendant was already standing outside his car with the driver's door open, waving his hands under the dashboard in an effort to clear the smoke. In short, according to defendant, he stopped his car because of the emergency and not because of any order of the police officers.

Defendant testified that before he was asked for identification the officers ordered him to stand spreadeagled against the police car for the purpose of a pat search. ³ In the course of the search Officer Erickson felt a soft lump in defendant's pants pocket and asked what it was; when defendant failed to answer, the officer told him to remove it. Defendant did so, and handed the marijuana to the police. ⁴

The trial court found that the officers did stop defendant's vehicle and had 'just cause' to do so inasmuch as 'the officers told the truth when they asked the defendant for his identification and registration

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[496 P.2d 1210] and that he stated that he had no registration or identification, and that it was a lawful arrest under 40302(a) of the Vehicle Code.'

Nevertheless the court granted the motion to suppress, finding that 'the search, if one was conducted by the officers at that time was not incident to the arrest because it didn't pertain to the arrest. It would appear that there is no relationship between a search under those circum stances and an arrest. What were they looking for? The cases all hold that the search has to be related to the arrest.'

I

Having made no showing that Officer Erickson had a warrant for the arrest or search of defendant, the burden to demonstrate justification for the police conduct rested on the prosecution. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23.)

It is first contended that Officer Erickson had probable cause to arrest defendant on a charge of automobile theft (Veh. Code, § 10851), [7 Cal.3d 193] and hence that the search of defendant's person was justified as an incident to such an arrest. The facts which the People assert gave Officer Erickson probable cause to believe the car was stolen are, as found by the trial court, (1) that defendant was unable to produce a vehicle registration card or other proof of ownership, and (2) that defendant was unable to produce a driver's license or other personal identification.

Upon registering a vehicle in this state the Department of Motor Vehicles issues a 'registration card' to the owner thereof, containing such information as the name and address of the owner, the assigned registration number, and a description of the vehicle. (Veh.Code, §§ 4450, 4453.) Section 4454, subdivision (a), requires that the owner maintain this card or its facsimile 'with the vehicle.' ⁵ Our first question is whether a violation of section 4454 gives an officer probable cause to believe the vehicle he has stopped is stolen.

It would not be unreasonable for a thief to remove or destroy the registration card of an automobile he has taken; his purpose in so doing might be to prevent the true owner from being traced, to eliminate the discrepancy between the owner's name and his own, or to facilitate substitution of a forged card. Since the 1967 amendment to section 4454 (fn. 5, Ante), it is also true that being a stranger to the vehicle he might not be able to present the card to an officer simply because he did not know where to find it.

On the other hand, a motorist's failure to have or produce the registration card for his vehicle could equally well be entirely innocent. A common instance is contemplated by the statute itself: subdivision (b) of section 4454 declares the statute inapplicable 'when a registration card is necessarily removed from the vehicle for the purpose of application for renewal or transfer of registration.' Renewal, of course is an annual event (Veh.Code, § 4601), and in contemporary American society automobiles are bought and sold--and titles thereto transferred--with considerable frequency. Moreover, it is not only a thief who may not immediately be able to find the registration card for presentation to an officer; the same difficulty could be experienced by a friend or relative to whom the car had been lent, or even a teenage child or spouse of the owner.

Finally, it bears remembering that section 4454 is essentially a regulatory[7 Cal.3d 194] measure and does not protect the public from either dangerous driving or unsafe equipment.

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[496 P.2d 1211] A violation of its terms is treated by the Legislature as the most minor of offenses: neither a felony nor a misdemeanor, it is a simple 'infraction' (Veh. Code, § 40000) punishable upon a first conviction by a fine not exceeding $50 (§ 42001, subd. (a)). It would grossly distort this legislative plan to permit a police officer to magnify such an infraction into grounds to arrest the driver on the serious charge of grand theft of an automobile. ⁶ We conclude that a motorist's failure to have or produce the registration card for his vehicle, without more, cannot reasonably give rise to the belief that the vehicle is stolen.

A series of Court of Appeal decisions has found such probable cause, however, when a violation of section 4454 was coupled with certain other 'suspicious circumstances.' ⁷ First, the opinions emphasize the circumstance--also relied on here by the People--that defendant was unable to produce a driver's license upon the officer's demand (Galceran, Myles, Odegard, Jones, Ceccone, James, Mermuys). Vehicle Code section 12500 requires that all drivers be licensed, and section 12951 requires that every driver have his license 'in his immediate possession' while operating a vehicle on the highway (subd. (a)) and present it for examination upon demand of a peace officer enforcing the provisions of the code (subd. (b)). Thus our second question is whether a violation of section 12951, in conjunction with a violation of section 4454 (discussed Ante), gives the officer probable cause to believe the motorist guilty of automobile theft.

On its face, of course, the presence or absence of a driver's license has no bearing whatever on the matter of title to the vehicle. The only explanation thus far offered in the California cases of the relevance of this circumstance appears in Galceran: 'To a certain extent, the fact that the driver [7 Cal.3d 195] of a car not registered in his name was also unlicensed might be additional evidence that he did not own the car in question, since few automobile owners are not licensed as operators.' (People v. Galceran (1960) supra, 178 Cal.App.2d 312, 316, 2 Cal.Rptr. 901, 903.) But this reasoning assumes that the driver is actually unlicensed (Veh.Code, § 12500) rather than simply not in physical possession of his license (§ 12951, subd. (a)). The latter alternative however,...