Opinion
Opinions on pages 1017-1037 omitted.
Rehearing Granted.
[178 Cal.Rptr. 487]George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Morris Lenk, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.
Penelope M. Cooper, Cooper, Hertz & Lyons, Berkeley, for defendant and respondent.
GRODIN, Associate Justice.
Robert Cuevas Moran was charged by information with possession of heroin for sale in violation of Health and Safety Code section 11351. Following arraignment he moved that the information be set aside pursuant to Penal Code section 995 on grounds that the only evidence against him was obtained from an unlawful search and seizure. The motion was granted and the People appeal pursuant to Penal Code section 1238, subdivision (a)(1).
In the course of a routine bar check in the early morning of January 8, 1980, Union City Police Detective Richard Alves observed respondent sitting at the bar of the Union City Pool Hall with his face down on the bar, his hands hanging by his side, and a bottle of beer in front of him. Respondent's speech was slurred, the words indistinguishable. On alighting from the bar stool he was unable to maintain his balance. Alves placed him under arrest for public intoxication in violation of Penal Code section 647, subdivision (f).
Because respondent was going to be transported to the Fremont jail, Alves pat-searched him for weapons. Although Alves felt nothing resembling a weapon on respondent's person, he did feel four round, oblong objects about half an inch in length [178 Cal.Rptr. 488] which had a slight "give" when squeezed. Alves concluded on the basis of his training and experience, as well as his personal knowledge of respondent, that the objects were heroin packaged in tightly rolled balloons. He handcuffed respondent with his hands behind his back, then reached into his vest pocket and removed the balloons.
Alves had arrested respondent at least three times before for possession or being under the influence of heroin and was aware that he had a daily heroin habit.
Explaining his failure to wait until some later time to retrieve the balloons, Alves testified that he believed that respondent might be able to destroy the "evidence" while en route to jail by ingesting it, secreting it in the patrol car, or dropping it. Furthermore, according to Alves, respondent was going to be strip-searched in any event on arrival at the Fremont jail in accordance with that facility's standard procedures.
When the question of the legality of a search and seizure is raised at the preliminary hearing, the defendant makes a prima facie case when he establishes the search was made without a warrant, and the burden then rests on the prosecution to show proper justification. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23. Accord, People v. Maher (1976) 17 Cal.3d 196, 203, 130 Cal.Rptr. 508, 550 P.2d 1044.)
Officer Alves' testimony that respondent might be able to destroy the "evidence" while en route to the jail does not provide justification for the search. While it is settled that as an incident to a lawful arrest a warrantless search may be made for instrumentalities, fruits and other evidence of the crime (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 812, 91 Cal.Rptr. 729, 478 P.2d 449), when the offense is one not involving instrumentalities, fruits or physical evidence thereof, a search for such items is unreasonable per se. (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 201, 101 Cal.Rptr. 837, 496 P.2d 1205; People v. Knutson (1976) 60 Cal.App.3d 856, 864, 131 Cal.Rptr. 846.) Public intoxication is such an offense. (See People v. Longwill (1975) 14 Cal.3d 943, 946, 123 Cal.Rptr. 297, 538 P.2d 753; People v. Knutson, supra, 60 Cal.App.3d at p. 865, 131 Cal.Rptr. 846.) As the court in People v. Knutson, supra, observed: "The beverage itself is not contraband, and its ordinary use is not unlawful. Its containers, if carried at all, are usually in plain sight.... In such a case it may not reasonably be inferred that a search will disclose 'contraband,' or 'evidence' of the offense, or its 'fruits,' or the 'instrumentalities' used in its commission." (60 Cal.App.3d at pp. 865-866, 131 Cal.Rptr. 846.)
The search thus is not supportable as a valid search incident to respondent's arrest.
Nor is the search sustainable as a search for evidence of respondent's suspected possession of heroin. The sole justification of a search founded on circumstances short of probable cause is the protection of the police officers and others nearby; such a search must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, or other hidden instruments usable to assault a police officer. (People v. Collins (1970) 1 Cal.3d 658, 661, 83 Cal.Rptr. 179, 463 P.2d 403, and cases cited.)
The People's further argument that reasonableness dictated that Alves remove the suspected heroin from respondent to prevent his swallowing or otherwise concealing it has been rejected by the Supreme Court in comparable circumstances. (People v. Maher, supra, 17 Cal.3d at pp. 201-202 and fn. 1, 130 Cal.Rptr. 508, 550 P.2d 1044.)
The remaining question is whether the search was justifiable as an accelerated booking search. Seeking to distinguish People v. Longwill, supra, 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753, the People assert that Officer Alves' testimony that respondent was going to be transported to the Fremont jail, where he would be subjected to a strip-search and placed in a holding cell, satisfied the Longwill requirement that to justify an accelerated booking search the People demonstrate that the individual [178 Cal.Rptr. 489] would in fact be subjected to the booking process. This argument presupposes that under Longwill it is open to the People to justify an accelerated in-field booking search of a Penal Code section 647, subdivision (f) alcohol arrestee by showing that the individual would in fact be subjected to the booking process.
There is language in Longwill supportive of this assumption. (See also People v. Bullwinkle (1980) 105 Cal.App.3d 82, 87-88, 164 Cal.Rptr. 163 (dictum); cf. People v. Barajas (1978) 81 Cal.App.3d 999, 1009, 147 Cal.Rptr. 195 (accelerated booking search permissible in case of felony arrest).) Nevertheless, we conclude that under Longwill in-field full body searches of persons arrested for public intoxication are impermissible. We reach this conclusion by examining the rationale and holding of Longwill.
In Longwill the Supreme Court reiterated the lessons of previous cases (People v. Norman (1975) 14 Cal.3d 929, 123 Cal.Rptr. 109, 538 P.2d 237; People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099; People v. Superior Court (Simon), supra, 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205), that full body searches are impermissible when the arrest could be disposed of by a mere citation or the arrestee is to be transported to the stationhouse in the police vehicle and there given the opportunity to post bond. (People v. Longwill, supra, 14 Cal.3d at p. 946, 123 Cal.Rptr. 297, 538 P.2d 753.) In all these situations, the court observed, the same factors are operative: "(T)he potential harm to the officer if the arrestee is armed justifies a limited weapons search, but a full booking search is 'inappropriate in the context of an arrestee who will never be subjected to that process.' " (Id., at p. 950, 123 Cal.Rptr. 297, 538 P.2d 753.) The court held that these same considerations govern in the case of a public intoxication arrest "and forbid full body field searches of persons arrested for the offense of public intoxication." (Id., at p. 946, 123 Cal.Rptr. 297, 538 P.2d 753; emphasis added.)
The court rejected the People's suggestion in Longwill that the search was justifiable as a form of accelerated booking search. Stating that "(w)e have no quarrel with this rationale if in fact the individual is to be subjected to the booking process," the court observed: "But our recent decisions raise serious objections to a rule which would permit unrestricted searches of all public intoxication arrestees regardless of whether they are ultimately to be incarcerated, which intrusions mysteriously ripen into 'accelerated booking searches' in those few instances in which contraband is discovered on the person of the arrestee." (14 Cal.3d at p. 948, 123 Cal.Rptr. 297, 538 P.2d 753.)
The court's decision reflects recognition that there is a significant probability that a given public intoxication arrest may never reach the point at which the individual is actually incarcerated. This "significant probability" stems from the legislative scheme giving four separate officials-the arresting officer, his superior, the booking officer, and his superior-authority to intervene and divert the arrestee prior to incarceration (14 Cal.3d at p. 947, 123 Cal.Rptr. 297, 538 P.2d 753, citing Penal Code sections 853.6 and 849, subdivision (b)(2)), and the fact that release pursuant to Penal Code section 849, subdivision (b)(2), is often standard practice for disposing of arrests for public intoxication (id., at pp. 947-948, 123 Cal.Rptr. 297, 538 P.2d 753).
The court expressly recognized that an officer arresting an individual for public intoxication retains "broad discretion to effect a number of dispositional alternatives," and that one such alternative is to book and incarcerate the misdemeanant. "(I)n that event," the court stated, "we agree with the People that a full body search may be conducted immediately prior to incarceration to prevent the entry of contraband into the jail facility." (14 Cal.3d at p. 946, 123 Cal.Rptr. 297, 538 P.2d 753; emphasis added.)
In conclusion the court stated: "For the foregoing reasons we adhere to the lessons of Simon, Brisendine, and Norman ... and thus forbid full body searches of individuals [178 Cal.Rptr. 490] arrested for public intoxication until such time as they are actually to be incarcerated." (14 Cal.3d at p. 952, 123 Cal.Rptr. 297, 538 P.2d 753; emphasis added.)
We take the court's language to mean that the probability that a particular public intoxication arrestee would in fact be jailed, is not sufficient to justify a prebooking or "accelerated" booking search in the field.
Evidence that in Fremont public inebriates who are not released by the arresting officer are uniformly strip-searched and incarcerated does not require a different conclusion. The potential for the exercise of discretion by various public officials to release the inebriate without booking exists as a matter of law. (See Pen.Code, §§ 849, subd. (b)(2), 853.6.)
This view finds support in the Longwill court's footnote reference to People v. Markin (1973) 34 Cal.App.3d 58, 109 Cal.Rptr. 609 and People v. Superior Court (Colon) (1972) 29 Cal.App.3d 397, 105 Cal.Rptr. 695. The court observed that "both (of these cases) involved searches conducted at the stationhouse immediately prior to booking and thus are not inconsistent with the views expressed herein." (14 Cal.3d at p. 952, fn. 5, 123 Cal.Rptr. 297, 538 P.2d 753.) Further support is found in People v. Maher, supra, 17 Cal.3d 196, 130 Cal.Rptr. 508, 550 P.2d 1044, involving the pretransportation search of a "staggering" public inebriate. The court found Longwill dispositive and characterized its holding to be "that a full search was forbidden until such time as the arrestee was actually to be incarcerated in a jail or committed to a civil detoxification center. Noting the various dispositional alternatives available to the arresting officer, we observed that such an arrestee is often not incarcerated. It was therefore concluded that a full body search at the time of arrest could not be justified as an 'accelerated booking search.' " (17 Cal.3d at p. 199, 130 Cal.Rptr. 508, 550 P.2d 1044; emphasis added.)
Thus, absent independent probable cause, in-field full body searches (i. e., "accelerated booking searches") of public intoxication arrestees are impermissible.
The court's purpose and perceived achievement in Longwill was to strike "a proper balance between the needs of law enforcement and the rights of the California citizen, and equally (to serve) the salutary purpose of safeguarding the officer and the security of the jail facility." (14 Cal.3d at p. 952, 123 Cal.Rptr. 297, 538 P.2d 753.)
In our view a rule restricting full body searches of public intoxication arrestees to those conducted at the stationhouse or detention facility immediately prior to the defendant's incarceration preserves this "proper balance." Such rule obviates the risk that an in-field intrusion will "mysteriously ripen" into an "accelerated booking search" when contraband is discovered on the person of the arrestee (14 Cal.3d at p. 948, 123 Cal.Rptr. 297, 538 P.2d 753), yet continues to serve the booking-search purpose of preventing the entry of contraband into the jail facility (id., at p. 946, 123 Cal.Rptr. 297, 538 P.2d 753).
We conclude, therefore, that the evidence offered at the preliminary hearing offers no justification for the full body search of respondent. Accordingly, the evidence recovered in that search was illegally seized in violation of article I, section 13 of the California Constitution. Because there is no other competent evidence sufficient to hold respondent to answer to the crime charged, he was committed without probable cause, as the trial court properly ruled. (Pen.Code, § 995; People v. Maher, supra, 17 Cal.3d at p. 203, 130 Cal.Rptr. 508, 550 P.2d 1044.)
The order appealed from is affirmed.
RACANELLI, P. J., concurs.
NEWSOM, Associate Justice, dissenting.
I respectfully dissent.
In my view the police conduct at issue here does no violence to the important constitutional principles limiting searches and seizures of citizens.
The pat-down, which was undisputably justified as a "weapon search," disclosed objects which the officer-given his expertise-reasonably believed to be heroin. Under [178 Cal.Rptr. 491] these circumstances, I think seizure was necessitated by the common interest of both Moran and Officer Alves: specifically, in the interest of the former's physical safety, since it was now clear that he had overdosed, and of the latter's insulation from liability for negligence were he to fail to confiscate a substance which under the circumstances arguably posed a threat to Moran's physical safety. (Cf. Gov.Code, § 844.6, subd. (d); Larson v. City of Oakland (1971) 17 Cal.App.3d 91, 94 Cal.Rptr. 466; People v. Maher (1976) 17 Cal.3d 196, 201-202, 130 Cal.Rptr. 508, 550 P.2d 1044.)