Opinion
Hearing Granted Nov. 4, 1971.
Opinion on pages 247 to 250 omitted
HEARING GRANTED
Proceeding transferred to Court of Appeal on November 24, 1971; that court denied the petition on November 26, 1971, without opinion.
Evelle J. Younger, Atty. Gen., of State of California, Gloria F. DeHart, H. F. Wilkinson, Deputy Attys. Gen., San Francisco, for petitioner.
Stephen Abbott, Mill Valley, for real party in interest.
KANE, Associate Justice.
Real party defendant Willison was driving his truck with a defective tail light. A police officer, after stopping defendant [97 Cal.Rptr. 549] and obtaining radio confirmation of outstanding traffic warrants, arrested him. In a pat search for weapons the officer felt a long narrow hard object in defendant's right front jacket pocket. The officer thought this might be a knife. From the pocket he removed a tooth brush, a tube of tooth paste and two bags of green vegetable matter. Defendant was thereupon advised that he was also under arrest for possession of marijuana. (Health & Saf. Code, § 11530.)
The arresting officer, before transporting defendant to jail, directed another officer to inventory defendant's vehicle which was then partially blocking one lane of traffic. In the course of the inventory the officer found a brass pipe containing a green vegetable matter and dark residue in the glove compartment of the pickup truck. In the bed of the truck, he found two closed shopping bags, which he opened. The bags contained packages of green vegetable matter stipulated to be marijuana. This evidence resulted in the further charges of violation of Health and Safety Code, section 11530.5 (possession of marijuana for sale) and Health and Safety Code, section 11531 (transportation of marijuana).
Following a special suppression hearing pursuant to Penal Code, section 1538.5, the court denied the motion as to the contraband found during the pat search, but granted the motion with respect to the contraband obtained during the vehicle inventory search.
The matter is before us upon a petition by the People for a writ of mandate, seeking to set aside the order which suppressed the evidence obtained during the vehicle inventory.
The defendant has not petitioned for review of the order denying his motion to suppress the pat search evidence. However, he requests in his reply to the People's petition, that this court consider those issues also. We reject this request for the reason that defendant waived his right for pretrial appellate review by failing to seek same within the 30-day period prescribed by Penal Code, section 1538.5, subdivision(i).
We note that the Legislature has made separate provisions under Penal Code, section 1538.5 for review of motions to suppress, subdivision (i) for defendants and subdivision (o) for the People. There is no provision for extensions of the 30-day limit for any reason. Thus the time limits are jurisdictional.
The sole issue which we decide, therefore, is whether the rule of Mozzetti v. Superior Court (April 30, 1971) 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84, is to be applied retroactively or only prospectively.
In the case at bench, the arrest and inventory took place on August 24, 1970. Eight months later, our Supreme Court in Mozzetti, supra, upset a long series of cases which upheld inventory searches whenever the police were authorized to remove and store vehicles (4 Cal.3d at p. 703, 94 Cal.Rptr. 412, 484 P.2d 84).
In People v. Edwards (1969) 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, our Supreme Court was faced with the question of whether Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, a decision which limited the scope of a search incident to arrest, should be applied retroactively. The court followed the guidelines set forth in Stovall v. Denno (1967) 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199: 'The criteria guiding resolution of [this] question implicates (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.'
After examining each criteria, the court concluded that Chimel was to apply only to cases in which the search was conducted after the date of that decision. The same result, based on the same criteria, was reached in Williams v. United States (April 5, 1971) 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388.
[97 Cal.Rptr. 550] In applying the Stovall criteria to Mozzetti, we conclude that (a) the purpose to be served is to strike a balance between an individual's right of privacy and permissible governmental intrusion upon that privacy. That purpose will not be enhanced or vindicated by a retroactive application of the new standard. (b) As shown by the long line of cases overruled by Mozzetti, law enforcement authorities were clearly entitled to rely on the old inventory-search standards and did so extensively. Mozzetti itself characterized the inventory of vehicles prior to storage as routine and a 'common police practice.' (P. 702 of 4 Cal.3d, 94 Cal.Rptr. 412, 484 P.2d 84.) (c) Retroactive application would have an onerous effect on the administration of justice since every case involving an inventory search would have to be reconsidered.
While our decision is consonant with the existing guidelines of both the federal and state Supreme Courts, we observe that it is also bolstered by the hopeful prospect that the Suppression Doctrine, or Exclusionary Rule itself may soon be laid to rest. Its continued validity has come under attack in the United States Supreme Court where it has been accurately characterized as an 'unworkable and irrational concept of law,' which the 'experience of over half a century has shown neither deters errant officers nor affords a remedy to the totally innocent victims of official misconduct.' (See dissent of Chief Justice Burger in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics (June 21, 1971) 403 U.S. 388, 420, 91 S.Ct. 1999, 2017, 29 L.Ed.2d 619.)
Thus, while we are compelled at the moment to uphold the Exclusionary Rule of Mozzetti as to its prospective application, we see no basis in either precedent or common sense to apply it retroactively.
Let a peremptory writ of mandate issue directing the trial court to vacate its order granting the motion to suppress.
SHOEMAKER, P. J., and TAYLOR, J., concur.