People v. Upton

• Decision Date: 09 January 1968
• Docket Number: Cr. 6276
• Citation: 65 Cal.Rptr. 103,257 Cal.App.2d 677
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Garth Jon Brian UPTON, Defendant and Respondent.

Page 103

65 Cal.Rptr. 103

257 Cal.App.2d 677

PEOPLE of the State of California, Plaintiff and Appellant, v. Garth Jon Brian UPTON, Defendant and Respondent.

Cr. 6276.

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

Jan. 9, 1968.

Hearing Denied March 6, 1968.

Thomas C. Lynch, Atty. Gen., of State of California, Edward P. O'Brien, William D. Stein, Deputy Attys. Gen., San Francisco, for appellant.

Robert D. Carrow, Novato, for respondent.

MOLINARI, Presiding Justice.

The People appeal from an order setting aside the information charging defendant with possession of marijuana and possession for sale of marijuana (Health & Saf.Code, §§ 11530, 11530.5), following a motion by defendant under Penal Code, section 995.

The questions presented are, first, whether the marijuana found in the trunk of the automobile that defendant was driving was the product of an illegal search, and, second, whether there was sufficient cause to hold defendant to answer (Pen.Code, § 872). We hold that the marijuana was the product of a legal search; that there was sufficient cause to hold defendant to answer on the charge of possession; and, finally, that there was insufficient cause to hold defendant to answer on the charge of possession for sale.

On the evening of November 17, 1966, at about 11:25 p.m., Officer Conlin of the San Rafael Police Department observed defendant driving a vehicle containing two other occupants on the wrong side of the street. Conlin stopped the vehicle and asked defendant for his driver's license. Defendant produced an interim driver's license but could not produce registration for the automobile. Defendant said that the owner of the vehicle was a Mr. Ohaire, who lived on the 2200 block of Telegraph Avenue in Oakland, and that he and his two passengers had borrowed the car for a trip to Seattle.

Conlin made a warrant check and discovered that a bench warrant was outstanding for defendant's arrest on a charge of violating Vehicle Code, section 14601(a) (driving with a suspended or revoked license), with bail set in excess of $200. Conlin also ascertained by radio that the last registered owner of the car was a Marvin Handler of Atherton, California. Conlin then placed defendant under arrest on suspicion of auto theft and on the outstanding warrant.

The officer directed defendant to drive to the parking lot of the county sheriff's office, located approximately five blocks from the scene of the arrest. The trip took about one minute. On arriving at the parking lot, after defendant parked his vehicle Conlin frisked him for weapons and then, at about 11:55 p.m., took defendant into the county jail and booked him. While defendant was being booked, his vehicle remained, unobserved and unlocked, in the parking lot.

Between 12:05 and 12:10 Conlin commenced to search the automobile defendant had been driving. Conlin did not have a search warrant and defendant did not consent to the search. No physical threat to the officer nor danger of destruction of evidence existed at the time of the search. Defendant was in custody and had no control of the vehicle.

Conlin first testified that he searched the vehicle in order to make an inventory of its contents prior to impounding it. He stated that normal procedure, for impounding requires the officer to inventory all personal effects in the vehicle in order to protect the owner of the property as well as the officers. Subsequently he testified that a further reason for the search was to find any documents of registration of the vehicle.

Conlin first searched the interior of the car and found a small empty suitcase and a substance resembling marijuana under the seat in the left rear portion of the vehicle. Conlin then opened the unlocked trunk and saw two closed suitcases inside. Another officer, Haasfeld, opened one of the suitcases and in it Conlin observed several small, brick-shaped packages wrapped in coarse brown paper. Conlin had seen similar packages at the office of the Bureau of Narcotic Enforcement and the wrapping is known to narcotics officers as 'Mexican butcher paper.' On first seeing the packets, Conlin could not observe their contents but formed the opinion that they contained marijuana. Haasfeld tore off the corner of one of the packets and the officers found inside it a green material which Conlin believed to be marijuana.

Subsequent to the search the officers made unsuccessful efforts to locate the present owner of the automobile. The last registered owner had sold the car to a Bob O'Donovan. They were also unable to locate a Mr. Ohaire.

The trial judge, although stating that he considered the search of the car reasonable, held the search unconstitutional under the compulsion of People v. Webb, 243 Cal.App.2d 179, 52 Cal.Rptr. 85. That opinion has since been vacated and the holding reversed in People v. Webb, 66 A.C. 99, 56 Cal.Rptr. 902, 424 P.2d 342. Defendant nevertheless contends that the search was illegal within the doctrine of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, and People v. Burke, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67, as well as under People v. Webb, 66 A.C. 99, 56 Cal.Rptr. 902, 424 P.2d 342.

Preston appeared to hold that once an accused is arrested and is in custody, a warrantless search of his car, not made at the scene of the arrest, is not incident to the arrest and is prima facie unreasonable. On the basis of Preston, the California Supreme Court in Burke held that absent an emergency there must be compelling reasons and exceptional circumstances to justify a search without a warrant made elsewhere than the scene of the arrest. The court in Burke invalidated a search of the defendant's car made after the defendant was taken to the police station and his car towed to a police impound lot.

Preston and Burke were discussed and analyzed in Webb, which interpreted the rule of Preston as not standing for the proposition that a warrantless search of a car is unreasonable simply because the car is searched at a time and place removed from the scene of the arrest without compelling justification. Webb holds that the rule is that the search must be reasonable under the totality of the circumstances present. Webb distinguished the factual situations in Preston and Burke, pointing out that delaying a search for reasons of convenience does not render the search necessarily unreasonable. In Preston and Burke, the court in Webb pointed out, the defendant was arrested without reasonable cause to believe him guilty of a serious felony, but simply on unsatisfactory circumstances; ¹ nothing incriminating was seen or found in the defendant's car at the scene of the arrest; the subsequent search of the car was general and exploratory; and the car could have been searched at the scene since no emergency existed. (See 66 A.C. pp. 116--118, 56 Cal.Rptr. 902, 424 P.2d 342.)

The factual situation in Webb was as follows: the defendant drove recklessly away to escape arrest, endangering an officer. The arresting officers knew the defendant and had a warrant for his arrest. The officers shot and wounded the defendant in the neck, and his car crashed. While waiting at the scene of the capture for an ambulance, an officer opened the front door of the defendant's car and saw a red balloon on the floor. Later, after defendant had been taken to a hospital and a crowd had gathered, the car was towed 20 blocks to a police lot. About 15 minutes later the car was searched and five more balloons and a small white bindle was found. Each of the balloons and the bindle contained heroin. The entire search was held reasonable.

The interpretation of Preston made by Webb has been confirmed in Cooper v. State of California, 386 U.S. 58, 59, 87 S.Ct. 788, 17 L.Ed.2d 730, where a search without a warrant was made after a car was impounded in order to institute forfeiture proceedings following defendant's arrest for a narcotic violation; has been followed in federal cases (see, e.g., Crawford v. Bannan, 6 Cir., 336 F.2d 505; Boyden v. United States, 9 Cir., 363 F.2d 551); and has been firmly established as California law in subsequent cases. (People v. Lozano, 250 A.C.A. 77, 79--80, 58 Cal.Rptr. 102; People v. Williams, 67 A.C. 167, 171--173, 60 Cal.Rptr. 472, 430 P.2d 30; People v. Prochnau, 251 A.C.A. 22, 29--30, 59 Cal.Rptr. 265; People v. Norman, 252 A.C.A. 408, 416--418, 60 Cal.Rptr. 609.)

Analyzing the instant case in the light of the holding in Webb, we first note that, since the search took place in the police station parking lot five blocks from the scene of the arrest and within fifteen minutes of the arrest, it was substantially contemporaneous with the arrest. (See People v. Cockrell, 63 Cal.2d 659, 666--667, 47 Cal.Rptr. 788, 408 P.2d 116.) This factor, however, does not in and of itself render the search reasonable if the totality of the circumstances did not warrant the search. Thus, the police could not search defendant's car simply on the basis of an arrest for a traffic violation (People v. Blodgett, 46 Cal.2d 114, 116--117, 293 P.2d 57; People v. Anders, 167 Cal.App.2d 65, 67--68, 333 P.2d 854 (reversed and remanded on other grounds, Anders v. State of California (1967) 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493); People v. Sanson, 156 Cal.App.2d 250, 253, 319 P.2d 422); nor do we think that the Constitution permits an otherwise unreasonable search of a car simply because the police have statutory authority to impound it under Vehicle Code, sections 22650 and 22651. We are not unmindful that a number of cases appear to hold that the police may always inventory the contents of a car prior to impounding it, regardless of the reason for the arrest (e.g., People v. Baker, 135 Cal.App.2d 1, 5, 286 P.2d 510; People v. Ortiz, 147 Cal.App.2d 248, 250, 305 P.2d 145; People v. Myles, 189 Cal.App.2d 42, 46, 10 Cal.Rptr. 733; People v. Nebbitt, 183 Cal.App.2d 452, 459, 7 Cal.Rptr. 8; People v. Odegard, 203...