People v. Bullwinkle

105 Cal. App. 3d 82, 164 Cal. Rptr. 163
California Court of Appeal·Decided April 24, 1980·No. Docket Nos. 33763, 34931·Published·Cited by 26 cases

Opinion

105 Cal.App.3d 82 (1980)
164 Cal. Rptr. 163

THE PEOPLE, Plaintiff and Respondent,
v.
LISA BULLWINKLE, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
v.
EDWARD JOHN BULLWINKLE, JR., Defendant and Appellant.

Docket Nos. 33763, 34931.

Court of Appeals of California, Second District, Division Five.

April 24, 1980.

*85 COUNSEL

Michael J. Treman, under appointment by the Court of Appeal, Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Assistant State Public Defender, and Robert P. App, Deputy State Public Defender, for Defendants and Appellants.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, John R. Gorey and Sandy R. Kriegler, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ASHBY, J.

Appellants Lisa and Edward Bullwinkle were charged jointly and individually on a total of 15 counts of burglary, receiving stolen property, and writing checks with insufficient funds. (Pen. Code, §§ 459, 496, 476a.) Following denial of their motions under Penal Code sections 995 and 1538.5, Lisa pled guilty to four counts of receiving stolen property and was sentenced to state prison. Edward pled guilty to two counts of receiving stolen property and by jury trial was convicted of two additional counts of receiving stolen property and one count of burglary, and was sentenced to state prison.

The primary issue on both appeals is the legality of a search of Lisa's purse after she was arrested for writing checks with insufficient funds, which search led to the obtaining of the evidence of stolen property involved in both appellants' convictions. Edward separately raises issues as to his motion for new trial and his sentence.

The motion under Penal Code section 1538.5 was based on the transcript of the preliminary hearing and additional testimony. (1) On appeal we must view the evidence at the preliminary hearing and section 1538.5 hearing in the light most favorable to the trial court's ruling, resolving all conflicts in the evidence in favor of the judgment. (People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal. Rptr. 13, 507 P.2d 621]; People v. West (1970) 3 Cal.3d 595, 602 [91 Cal. Rptr. 385, 477 P.2d 409].) Stated in this light, the facts surrounding the search are as follows: On March 3, 1978, Santa Barbara Police Officers Watson *86 and Alpert arrested appellants at their home on an arrest warrant for writing checks with insufficient funds. Appellants were arrested in the living room. Lisa desired to go upstairs to the bedroom to get some clothing to take with her to jail, and was permitted to do so. Upon being asked whether she wished to take her purse, she reached down to the floor and picked it up. Then she handed it to Officer Watson or he took it from her. Watson handed the purse to Alpert. Officer Alpert checked the purse for weapons and happened to observe checkbooks inside, but did not otherwise search it at this time. The officers kept the purse in their possession while appellants were transported to the police department.

After arriving at the police department, Officer Alpert emptied the purse onto his desk and searched through the contents. He was looking for evidence relevant to the check writing charges for which appellants were arrested, such as checks, checkbooks, and identification papers.

At that moment, Officer Rogers of the burglary detail passed by, and upon observing a photograph of Edward among the contents of the purse, recognized Edward as resembling an artist's composite drawing of a suspect he was investigating for burglary of a photographic equipment store, as well as other crimes. He commented on this to Officer Alpert, who then pointed out that the purse contained papers with lists of cameras and their serial numbers. Upon verifying that the listed items were among the property stolen from the photographic equipment store and comparing the artist's composite drawing of the burglary suspect, Officer Rogers obtained a search warrant for the search of appellants' house, which resulted in the seizure of numerous items of stolen property leading to the convictions in the instant case.

SEARCH OF PURSE

(2a) Appellants contend that the search of the contents of Lisa's purse at the police station was unlawful because it was conducted without a warrant. Appellants point out that the police took custody of the purse at appellants' house, and they argue that once the purse had been reduced to the exclusive control of the police there was no danger that Lisa could destroy evidence in it or seize a weapon from it and that therefore no justification existed for dispensing with the requirement of a warrant. They cite such cases as United States v. Chadwick (1977) 433 U.S. 1, 15 [53 L.Ed.2d 538, 550, 97 S.Ct. 2476]; Arkansas v. *87 Sanders (1979) 442 U.S. 753, 763-764 [61 L.Ed.2d 235, 245, 99 S.Ct. 2586]; People v. Minjares (1979) 24 Cal.3d 410, 420-423 [153 Cal. Rptr. 224, 591 P.2d 514]; People v. Dalton (1979) 24 Cal.3d 850, 855-856 [157 Cal. Rptr. 497, 598 P.2d 467]; and People v. Pace (1979) 92 Cal. App.3d 199, 202-204 [154 Cal. Rptr. 811].

These cases are inapplicable here, because Lisa was under arrest for a felony and her purse would properly have been subject to search in the course of booking her into the jail. It has long been the rule that the police may search the person and the effects of a prisoner who is to be booked into jail, in order to prevent the introduction of contraband or weapons into the jail and in order to account for and safeguard the property taken from the prisoner. (United States v. Edwards (1974) 415 U.S. 800, 804-805 & fn. 6, 807 [39 L.Ed.2d 771, 776-777, 94 S.Ct. 1234]; People v. Ross (1967) 67 Cal.2d 64, 70 [60 Cal. Rptr. 254, 429 P.2d 606] [revd. on other grounds sub nom. Ross v. California (1968) 391 U.S. 470 (20 L.Ed.2d 750, 88 S.Ct. 1850)]; People v. Maher (1976) 17 Cal.3d 196, 200-201 [130 Cal. Rptr. 508, 550 P.2d 1044]; People v. Rogers (1966) 241 Cal. App.2d 384, 389 [50 Cal. Rptr. 559]; People v. Superior Court (Murray) (1973) 30 Cal. App.3d 257, 263 [106 Cal. Rptr. 211]; People v. Balassy (1973) 30 Cal. App.3d 614, 623 [106 Cal. Rptr. 461]; People v. Gilliam (1974) 41 Cal. App.3d 181, 189 [116 Cal. Rptr. 317]; People v. Remiro (1979) 89 Cal. App.3d 809, 835 [153 Cal. Rptr. 89]; Pen. Code, § 1412; Gov. Code, § 26640.)

Where it is shown that a suspect would have been jailed and thus subject to a booking search, the fact that a thorough search of the booking type occurs prior to the actual booking process d

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People v. Bullwinkle, 105 Cal. App. 3d 82, 164 Cal. Rptr. 163 (Cal. Ct. App. 1980).

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