People v. Superior Court

• Citation: 92 Cal.Rptr. 545,14 Cal.App.3d 935
• Court: California Court of Appeals
• Decision Date: 06 January 1971
• Parties: PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF MARIN, Respondent, Robert Doyle FULLER, Real Party in Interest. Civ. 28731.

Page 545

92 Cal.Rptr. 545

14 Cal.App.3d 935

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF MARIN, Respondent Robert Doyle FULLER, Real Party in Interest.

Civ. 28731.

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

Jan. 6, 1971.

Rehearing Denied Feb. 4, 1971.

Thomas C. Lynch, Atty Gen., Derald E. Granberg, Karl J. Uebel, Deputy Attys. Gen., San Francisco, for plaintiff.

Trumbull & Rush, by John A. Trumbull, Novato, for real party in interest.

SIMS, Associate Justice.

The People by petition for writ of mandate (Pen.Code, § 1538.5, subd. (o)) seek appellate review of an order of the trial court which granted a motion to suppress evidence consisting of a plastic bag allegedly containing marijuana. The motion was interposed on behalf of a defendant who is accused by an information of possession of marijuana in violation of section 11530 of the Health and Safety Code, and possession of an alcoholic beverage by a minor in violation of section 25662 of the Business and Professions Code. The evidence in question ¹ was secured from the defendant when he was subjected to a strip search in connection with his being placed in custody in the county jail following his arrest for possession of alcohol by a minor ², and for contributing to the delinquency of a minor (see Pen. Code, § 272).

An alternative writ of mandate has been issued commanding respondent superior court to vacate and set aside its order granting defendant's motion, or to show cause why it has not done so. Following return to the alternative writ the matter has been reviewed on a record consisting of the petition, the return, the clerk's transcript in respondent court, the transcript of the preliminary examination which led to the filing of the information, and a transcript of the hearing on the motion at which the defendant and the passenger in his vehicle testified.

The People urge that there was reasonable cause to arrest the defendant, and that the search was a proper incident of that arrest. The defendant, as real party in interest, has not pursued his original argument which attempted to limit the scope of the arresting officer's activities to the issuance of a traffic citation for a mechanical violation. He concedes that on the basis of proper observations the officer could properly detain and cite the defendant for a defective license plate lamp in violation of section 24601 of the Vehicle Code, for keeping an opened beverage container in a vehicle in violation of section 23123 of that code, and for possession of an alcoholic beverage in violation of the provisions of section 23123.5 of the Vehicle Code (see fn. 2 above). He asserts, and it is herein concluded, that the last cited section governs the circumstances of defendant's arrest to the exclusion of the general law governing possession of an alcoholic beverage by a minor under which he has been charged; that under the arrest provisions of the Vehicle Code he should either have been merely cited, or, in any event, should have been given an opportunity to post bail; and that the trial court was warranted in finding that there was no reasonable cause to arrest, incarcerate and search the defendant for the offense of contributing to the delinquency of his companion.

The facts as revealed by the record are as follows:

On the evening of March 30, 1970, at about 9:30 p.m. according to the arresting officer, or an hour or an hour and a half later according to the defendant, the officer observed a Triumph automobile proceeding westbound on San Marin Drive in Novato without any illumination of its license plate light (see Veh.Code, § 24601). The officer initiated a traffic stop by using his emergency equipment. The officer testified that the vehicle operated by the defendant continued its forward progress for approximately three-quarters of a mile through San Marin Drive to its intersection with Novato Boulevard, where it then turned to the right and proceeded approximately 40 feet before the driver pulled the vehicle to the curb and stopped. The defendant testified that he first noticed the red light of the police car as he was stopped for the stop sign at Novato Boulevard, and that he then promptly pulled around the corner and parked at the edge of the roadway.

The officer observed no furtive action in the car while he was following it, but as the vehicle came to a stop he saw the passenger duck down for a moment and then come up. The officer got out of the patrol car, and the defendant, who proved to be the driver of the other vehicle, alighted leaving his passenger behind, and walked toward the officer. As they met the officer noticed the odor of alcohol about the defendant's person. The officer advised the defendant he was stopped for an equipment violation, but did not tell him that he was under arrest. At the request of the officer, the defendant who was known to the officer to be a minor, produced a driver's license which showed him to be 20 years old. (He was born January 12, 1950.)

According to the officer, a couple of months previously he had observed the defendant kick someone in the head, and because he did not trust him, he requested the defendant to precede him on the left as he walked to the passenger side of the vehicle. The defendant testified that he remained between the two cars watching the officer as he went to the defendant's car. There the officer observed an open can of what appeared to be Coor's beer between the legs of the passenger, who was known to the officer as a youth in his teens. (According to the defendant the passenger was 17 years old at the time.) In the baggage compartment, directly to the rear of the seat, an unopened can of beer lay on some clothing.

The officer had broadcast that he was making a traffic stop and he awaited a backup officer. On the latter's arrival, a minute later, he requested the passenger to alight and he announced to both the passenger and the driver that they were under arrest for possession of alcohol by minors. At the hearing on the motion to suppress the defendant and his passenger admitted that the passenger had an open can of beer in the front seat. The former contested the ability of the officer to observe it because of the nature of the construction of the car, and the latter testified that his arrest was contemporaneous with or after he left the car at the officer's command.

The officer ordered the youths to proceed around the opposite side of the vehicle and to place their hands on top of the car. While complying, the passenger dropped a rolled-up match box cover which appeared to be what is commonly called a 'crutch.' It was retrieved by the officer who noted that it had burn marks on it. He thereupon advised the passenger that he was also under arrest for an additional charge of possession of paraphernalia (see Health & Saf.Code, § 11555). A search of the defendant's pockets and clothing produced nothing incriminating.

The defendant was informed that he was charged with possession of alcohol by a minor, and contributing to the delinquency of a minor. He and his passenger, who was charged as outlined above, were transported to the county jail by the arresting officer. The other officer, who had been searching the inside of the defendant's car (see fn. 1 above), was left at the scene to inventory the contents of the vehicle.

The defendant was given a body search at the sheriff's office in conformance with normal booking procedure. After taking off his shirt and shoes he unbuckled his pants and removed a cellophane bag from inside the crotch of his pants. He handed the bag, which contained a material which proved to be marijuana, to the officer and said, 'You didn't think I'd hold anything back from you.'

I

Upon observing the equipment failure the officer had the unquestioned right to stop the offending vehicle. (See, People v. Villafuerte (1969) 275 Cal.App.2d 531, 534--535, 80 Cal.Rptr. 279; People v. Brown (1969) 272 Cal.App.2d 448, 450, 77 Cal.Rptr. 438; People v. Bordwine (1968) 268 Cal.App.2d 290, 292, 74 Cal.Rptr. 1; People v. Cacioppo (1968) 264 Cal.App.2d 392, 396--397, 70 Cal.Rptr. 356; People v. Shapiro (1963) 213 Cal.App.2d 618, 620, 28 Cal.Rptr. 907; and People v. Sanson (1957) 156 Cal.App.2d 250, 253, 319 P.2d 422.)

When a person is arrested for a violation of the Vehicle Code other than a felony (Veh.Code, § 40301), he must be given a citation (§ 40500) unless appearance before a magistrate is mandatory (§ 40302), or is optional, and the officer elects to take the offender before a magistrate (§ 40303). (See, Morel v. Superior Court (1970) 10 Cal.App.3d 913, 916--917, 89 Cal.Rptr. 297; People v. Mercurio (1970) 10 Cal.App.3d 426, 430--431, 88 Cal.Rptr. 750; People v. Weitzer (1969) 269 Cal.App.2d 274, 294, 75 Cal.Rptr. 318; People v. Van Sanden (1968) 267 Cal.App.2d 662, 665, 73 Cal.Rptr. 359; People v. Wohlleben (1968) 261 Cal.App.2d 461, 463--465, 67 Cal.Rptr. 826; and People v. Shapiro (1963) 213 Cal.App.2d 618, 621, 28 Cal.Rptr. 907.)

Although a traffic violator is technically under arrest during the period immediately preceding his execution of a promise to appear, neither he nor his vehicle may be searched on that ground alone. (People v. Weitzer, supra, 269 Cal.App.2d 274, 290 and 294, 75 Cal.Rptr. 318; and see, Morel v. Superior Court, supra, 10 Cal.App.3d 913, 917, 89 Cal.Rptr. 297; People v. Mercurio, supra, 10 Cal.App.3d 426, 429, 88 Cal.Rptr. 750; Martinez v. Superior Court (1970) 7 Cal.App.3d 569, 577, 87 Cal.Rptr. 6; Bergeron v. Superior Court (1969) 2 Cal.App.3d 433, 435, 82 Cal.Rptr. 711; People v. Van Sanden, supra, 267 Cal.App.2d 662, 665, 73 Cal.Rptr. 359; People v. Shapiro, supra, 213 Cal.App.2d 618, 621, 28 Cal.Rptr. 907; and People v. Sanson, supra, 156 Cal.App.2d 250, 253, 319 P.2d 422.) The right to search must depend on other circumstances. ³ If the offense is one where the accused is to...