People v. Mosqueda

Opinion

By information filed September 8, 1980, appellant Bennie Buddy Mosqueda was charged with two violations of Health and

Appellant’s contentions are the following: (1) the accelerated booking search exception to the warrant requirement does not extend to closed containers, (2) the full body search of appellant at the time of arrest violates the rule of People v. Longwill (1975) 14 Cal.3d 943 [ 123 Cal.Rptr. 297 , 538 P.2d 753 ], and (3) the detention and arrest were a pretext to search appellant.

Facts

On May 31, 1980, around 11:15 p.m., Sergeant Vincent and Officer Cardin were on patrol in the vicinity of Sixth and Jackson in San Jose. At that time, Sergeant Vincent noticed four individuals walk to a car, open the door and huddle around one particular individual who appeared to be bending over showing them something. One of the individuals observed the officers and appellant hurriedly shut the vehicle door and the “individual” started to walk away from the vehicle. All four started walking toward a bar on the southwest corner of Sixth and Jackson. Three of the group walked very fast while appellant walked slowly and deliberately behind them. The officers observed he was unsteady, had a slight stagger and could not keep up with the others. Officer Cardin yelled at appellant to stop. Appellant turned around and said, “Who, me?” Cardin said yes and approached him. Appellant was clutching his vest tightly with his right hand. He refused to release his hold on his vest and Cardin grabbed it and pulled it away to see if he had any weapons “or anything” there. There were no weapons. The officers asked appellant his name and he responded “Bennie.” He was very slow in responding to questions, had an odor of alcohol about him and was still unsteady on his feet. He eventually gave his full name and address but had no identification. At this point a crowd began to gather at

Discussion

Because we believe People v. Longwill (1975) 14 Cal.3d 943 [ 123 Cal.Rptr. 297 , 538 P.2d 753 ] is dispositive of this case we will take appellant’s contentions out of order.

I. There was probable cause to arrest appellant.

We agree with the trial court’s finding that the initial detention was valid and that there was sufficient evidence to give the officers probable cause to arrest appellant for violation of Penal Code section 647, subdivision (f).

II. The full body search of appellant at the time of arrest violates the rule of People v. Longwill.

Searches conducted without a warrant are per se unreasonable and violative of the Fourth Amendment subject only to a few specified and well-established exceptions. (Mincey v. Arizona (1978) 437 U.S. 385 , 390 [ 57 L.Ed.2d 290 , 298-299, 98 S.Ct. 2408 ]; People v. Minjares (1979) 24 Cal.3d 410 [ 153 Cal.Rptr. 224 , 591 P.2d 514 ].) One such exception, the warrantless search incident to a lawful arrest, allows for the search of an arrested person for instrumentalities used to commit the

However, just as in People v. Longwill, supra, 14 Cal.3d 943 , respondent seeks to justify the search by another exception, i.e. the concept of the “accelerated booking search.” In cases where a defendant is actually being booked a full body search is permissible to maintain jail security, to discover evidence of the crime and to safeguard the prisoner’s belongings. (People v. Maher (1976) 17 Cal.3d 196 , 200 [ 130 Cal.Rptr. 508 , 550 P.2d 1044 ].) Courts have allowed such full body booking searches to be done in the field since it is not a significantly greater intrusion into the fights of the arrestee. (People v. Barajas (1978) 81 Cal.App.3d 999 , 1009 [ 147 Cal.Rptr. 195 ].) The court in People v. Longwill, supra, 14 Cal.3d 943 , approved the practice in dicta provided “in fact the individual is to be subjected to the booking process.” (P. 948.) However, it rejected the accelerated booking search justification in relation to the arrest for violation of Penal Code section 647, subdivision (f) (alcohol) since it found that significant probability existed that any given public intoxication arrest may never reach actual incarceration. The court referred to a study of law enforcement practices which found that a high percentage of public intoxication arrestees are released either at the scene or at the station house prior to the booking process. (People v. Longwill, supra, at pp. 947-948.) Penal Code sections 849, subdivision (b)(2) and 853.6 specifically allow such alternative procedures. Penal Code section 853.6, subdivision (a) provides: “In any case in which a person is arrested for an offense declared to be a misdemeanor and does not demand to be taken before a magistrate, such person may, instead

Respondent maintains that the preseñt case is distinguishable from Longwill since the evidence shows that appellant was actually going to be incarcerated. Sergeant Vincent testified that his superiors were off duty therefore his decision was controlling. There were no alternatives since the detoxification center was closed. Lieutenant Becker, the commander of the main jail and apparently in charge of booking testified that it was their policy to accept all Penal Code section 647, subdivision (f) cases. When asked if there were any practices with regard to releasing these types of cases independent of the arresting agency his answer was “Very seldom.” Therefore, the People argue the “accelerated booking search” was valid.

The issue presented is whether a factual likelihood that an arrestee for public intoxication will not have a chance to be released because of local policies and practices is sufficient to allow the “accelerated booking search.” We think not. As set forth above, the possibility of release without booking exists as a matter of law.

The Supreme Court foresaw in Longwill that unrestricted searches of all public intoxication arrestees would occur regardless of whether they were actually to be incarcerated. Should contraband be discovered such intrusions would “mysteriously ripen into ‘accelerated booking searches.’” (People v. Longwill, supra, 14 Cal.3d at p. 948.) To prevent such a serious intrusion of privacy rights, the Longwill court forbade full body searches of individuals arrested for public intoxication “until such time as they are actually to be incarcerated.” (P. 952; italics added.) We take this last phrase to mean at the station house or the detention facility immediately prior to incarceration.

Accordingly, since the contraband was illegally seized in violation of article I, section 13 of the California Constitution, it was erroneously received into evidence. (People v. Cahan (1955) 44 Cal.2d 434 [ 282 P.2d 905 , 50 A.L.R.2d 513 ].)

III. Appellant’s contention that the accelerated booking search does not extend to closed containers.

Because of our decision under section II of this opinion we need not discuss appellant’s argument on this issue.

The judgment is reversed.

Rouse, Acting P. J., and Smith, J., concurred.

A petition for a rehearing was denied March 19, 1982, and respondent’s petition for a hearing by the Supreme Court was denied April 15, 1982. Richardson, J., was of the opinion that the petition should be granted.