People v. Rhodes

23 Cal. App. 3d 257, 100 Cal. Rptr. 487, 1972 Cal. App. LEXIS 1209

• Court: California Court of Appeal
• Decided: February 2, 1972
• Docket: Crim. 20467
• Status: Published

Opinions

Opinion

LILLIE, Acting P. J.

Defendant appeals from judgment of conviction on a plea of guilty to possession of dangerous drugs (§ 11910, Health & Saf. Code) after denial of her motion under section 1538.5, Penal Code.

On October 27, 1970, at 8:45 p.m. Officer Laughlin stopped defendant’s vehicle because three of four taillights were broken and it bore no license plate light. Because defendant could produce no acceptable identification and there was no registration in the vehicle, the officers ran a warrant check on her which indicated two outstanding warrants from the City of Los Angeles; thereupon she was placed under arrest, transported to the station and booked. During the booking procedure a search of her purse revealed seven LSD tablets and one sodium secobarbital capsule in her wallet. It was stipulated that the amount for which the warrants were issued was $127 and her wallet contained $6.23.

Appellant concedes that pursuant to section 40302, Vehicle Code, Officer Laughlin was obligated to take her into custody, and that a person may be “skin searched” when placed in jail, but contends that prior to being jailed she must have been given the opportunity to post bail thus, the search of her wallet was illegal. The first part of her contention is correct for both the traffic violation and the Los Angeles city warrants were matters entitling her to release on bail pursuant to a fixed bail schedule on the former, and the terms of the latter. (Agar v. Superior Court, 21 Cal.App.3d 24, 27-28 [98 Cal.Rptr. 148]; Carpio v. Superior Court, 19 Cal.App.3d 790, 793 [97 Cal.Rptr. 186]; People v. Mercurio, 10 Cal.App.3d 426, 429-430 [88 Cal.Rptr. 750].) However, unlike Agar v. Superior Court and Carpió V. Superior Court, in which the court under the evidence was entitled to and did assume that the accused would have been able to post the required bail,¹ the evidence introduced by way of stipulation here establishes that defendant could not have posted bail even had she been given the opportunity to do so.

Not having been released on her own recognizance, the only possible way defendant could have avoided being jailed on the warrants was to post bail or have someone do so for her. It is undisputed that she personally could not have posted bail on the traffic violation and on the warrants (the amount for which they were issued was $127), for her wallet contained but $6.23. Moreover, in light of the foregoing, there is no showing that defendant had relatives or friends who might have arranged for bail. In any event, assuming under all of the circumstances that she had been given the opportunity to post bail, the realities of the situation make the prospect of her ability to' do so within a reasonable time somewhat doubtful. For her release on bail she would have had to make one or more telephone calls. Whoever she contacted would have had to either bring in the money or contact a bail bondsman and arrange for the bond premium; if that person had not sufficient funds for either purpose it would have been necessary for him to make financial arrangements for such an undertaking which undoubtedly would have caused delay, in all probability a substantial one. Meanwhile it would be the responsibility of police to keep defendant under surveillance. Depending on the extent of the delay involved, the facilities at the station and the manpower available, it is likely that defendant, who was in police custody, would be placed in some kind of detention area in which undoubtedly others would be similarly detained. At this point and before being placed in detention, we are persuaded by the rationale of Morel v. Superior Court, 10 Cal.App.3d 913, 916 [89 Cal.Rptr. 297], that a search of defendant of the type made here, which was more than a “patdown” for weapons but failed to achieve the indignity of a skin or body search, would be reasonable and proper.

In Morel, after having been stopped by police for engaging in a speed contest and arrested pursuant to section 40302, Vehicle Code, defendant was searched prior to being placed in a police car to be transported to the station. The court held that “when the officer has taken an alleged offender into custody and is about to transport him, whether to a magistrate only (if the arrestee is able to make bail) or to some place of detention until he shall have made bail, the officer may search the person of the arrestee. . . . Our reasons are these: (1) A more thorough search for weapons . . . is allowable when the person is in custody. (2) The officer assumes new duties when the arrestee is. placed in the police vehicle and the officer has new actions to perform. The officer must prevent escape; he is responsible for the safety of the arrestee; he must attend to driving and cannot give complete attention to the person under his custody; and even if he is relieved from certain other duties while transporting the arrestee, the officer may come upon events in the apprehension of criminals or in other emergencies which require action on his part. (3) The officer may be transporting more than one arrestee and he must give protection to each. (4) Finally, there is the important matter of contraband. There is a natural inclination of the possessor of contraband to dispose of it when he is taken into custody if he has not been able to get rid of it earlier. It is not by any means a speculation that contraband may be deposited in a police vehicle. . . .” (Morel v. Superior Court, 10 Cal.App.3d 913, 917-918 [89 Cal.Rptr. 297]; People v. Carnesi, 16 Cal.App.3d 863, 868 [94 Cal.Rptr. 555]; People v. Superior Court [Simon]

*(Cal.App.) 93 Cal.Rptr. 879; Pugh v. Superior Court, 12 Cal.App.3d 1184, 1188 [91 Cal.Rptr. 168].) If the reasons stated in Morel justify a search of the person of the accused before he is placed in a patrol car for transportation to a magistrate (if he is able to make bail) “or to some place of detention until he shall have made bail” (Morel v. Superior Court, supra, 10 Cal.App.3d 913, 917), they are all the more persuasive in justification of a similar search of one who is in police custody and who is about to enter detention in a police station pending the arrival of a bail bondsman or other person. (See People v. Munsey, 18 Cal.App.3d 440, 448 [95 Cal.Rptr. 811].) The police have a responsibility not only to prevent harm to- one in their custody but to prevent any attempt to dispose of contraband either by personal consumption or by abandoning it so that it might be available to others similarly detained. Given the practicalities of the situation and the obvious responsibilities of the police under such a set of circumstances, it would be unrealistic to preclude the officers from making such a search. The search would have revealed and did reveal the contraband in defendant’s wallet.

The judgment is affirmed.

Clark, J., concurred.

1 In Agar v. Superior Court, 21 Cal.App.3d 24 [98 Cal.Rptr. 148], the court said: “No evidence was introduced to suggest that defendant could not have made bail and would have had to have been jailed.” (P. 28.)

In Carpio v. Superior Court, 19 Cal.App.3d 790 [97 Cal.Rptr. 186], the court said: “It is admitted that there was no reason to assume that petitioner would not have been able to post the required bail bond had he been given the opportunity to do so" (p. 793); and commented in footnote 1 at page 793: “Petitioner had $50 in cash on his person. At oral argument counsel admitted that this was more than enough to cover any potential bond premium and that there was no reason to believe that bond could not, and would not, have been posted promptly on the traffic offenses. In fact, such was the advice given by the arresting officer when he took petitioner to the police station.”

A hearing in the Supreme Court was granted on May 19, 1971. The final opinion of that court is reported in 7 Cal.3d 186 [101 Cal.Rptr. 837, 496 P.2d 1205],