People v. Silvey

110 Cal. App. 3d 67, 167 Cal. Rptr. 566, 1980 Cal. App. LEXIS 2226

• Court: California Court of Appeal
• Decided: September 5, 1980
• Docket: Crim. 20111
• Status: Published

Opinions

Opinion

RATTIGAN, Acting P. J.

After he had been held to answer at a preliminary examination, respondent Albert Raymond Silvey, Jr., was charged by information with possession of phencyclidine (PCP) for sale in violation of Health and Safety Code section 11378.5. He moved for an order setting aside the information, pursuant to Penal Code section 995, contending that PCP received in evidence at the preliminary examination had been unlawfully seized by a police officer. The court granted his motion and made an order dismissing the information. The People appeal from the order of dismissal.

The record of the preliminary examination supports the following recitals; Alameda County Deputy Sheriff Barnhill stopped respondent on a highway for speeding and driving erratically. When the officer approached respondent’s automobile, he saw a marijuana cigarette holder protruding from the dashboard. Respondent had difficulty removing his driver’s license from his wallet, his movements were very slow and jerky, his eyes were droopy and bloodshot, and saliva was caked at the corners of his mouth. Deputy Barnhill inferred from respondent’s appearance that he was under the influence of PCP and asked him to step out of the car.

Respondent leaned back in the seat, removed a metal container from the center armrest, and put it in the back of his pants. When he emerged from the car, Deputy Barnhill “retrieved” the container and handed it to his partner. The officer then arrested and handcuffed respondent, placed him in the back seat of the police vehicle, returned to the front seat of the vehicle, and opened the container. It contained 2.53 grams of PCP.

In moving to dismiss the information, respondent argued that the search of the metal container was unlawful because the search was warrantless and lacked probable cause. The Attorney General contends that the court erred when it granted the motion because Deputy Barnhill was authorized to search the container incident to respondent’s arrest.

The United States Supreme Court narrowed the scope of a lawful warrantless search incident to arrest in United States v. Chadwick (1977) 433 U.S. 1 [53 L.Ed.2d 538, 97 S.Ct. 2476], in which officers searched a 200-pound locked footlocker taken from the trunk of an automobile after the defendants arrest and seizure of the vehicle. (Id., at pp. 4-5 [53 L.Ed.2d at pp. 543-544].) The court held that “.. .warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest’ [citation], or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” (Id., at p. 15 [53 L.Ed.2d at pp. 550-551] [italics added; fn. omitted].)

The Attorney General argues that Chadwick does not proscribe the warrantless search of property “immediately associated” with the arrestee at the time of his arrest. Respondent contends that Chadwick and its progeny¹ proscribe a warrantless search of a closed container which has been brought within the exclusive control of the police.

The Chadwick court distinguished between searches of the person incident to arrest and searches of “personal property not immediately associated with the person of the arrestee.” The court held that, absent exigent circumstances, a search of the latter type requires a warrant. The rationale for this holding is equally applicable to a search incident to an arrest. The purpose of a search incident to an arrest is to deprive a suspect of access to a weapon and prevent concealment or destruction of evidence. (United States v. Chadwick, supra, 433 U.S. 1 at p. 14 [53 L.Ed.2d 538 at p. 550].) If property immediately associated with the arrestee’s person is safely reduced to the officers’ exclusive control, the danger that justifies the warrantless search no longer exists. The justification for warrantless searches of property immediately associated with the person, as well as of property not immediately associated with the person, is the danger that the arrestee may gain access to a weapon or contraband. If safe reduction of the latter type of property to the exclusive control of police officers necessitates the obtaining of a warrant by eliminating the justification for a warrantless search, no logical reason exists for treating the former type of property any differently.

In People v. Minjares (1979) 24 Cal.3d 410 [153 Cal.Rptr. 224, 591 P.2d 514], the California Supreme Court held that the warrantless search of a zippered tote bag found in the trunk of the defendant’s automobile, after his arrest, was unlawful for want of justifying exigent circumstances. The court also quoted the two sentences from Chadwick discussed above and stated: “It is clear from Chadwick itself that the tote bag would not have been subject to a warrantless search if appellant had been arrested on the street and the bag taken from his possession.” (People v. Minjares, supra, at pp. 419-420.) It is unclear whether the court construed Chadwick as implicitly proscribing warrantless searches of closed containers immediately associated with the person of an arrestee in the absence of exigent circumstances, or whether the court considered the zippered tote bag not to be immediately associated with the defendant. The former construction, however, would appear to be inevitable by way of consistent reasoning. ,

The warrantless search of respondent’s metal container was accordingly unlawful, regardless of its relationship to respondent’s person, because Deputy Barnhill had safely reduced it to his exclusive control.² The trial court did not err in granting respondent’s motion.

The order of dismissal is affirmed.

Poché, J., concurred.

1 See Arkansas v. Sanders (1979) 442 U.S. 753 [61 L.Ed.2d 235, 99 S.Ct. 2586]; People v. Dalton (1979) 24 Cal.3d 850 [157 Cal.Rptr. 497, 598 P.2d 467], cert. den. 445 U.S. 946 [63 L.Ed.2d 781, 100 S.Ct. 1345]; People v. Minjares (1979) 24 Cal.3d [153 Cal.Rptr. 224, 591 P.2d 514], cert. den. 444 U.S. 887 [62 L.Ed.2d 117, 100 S.Ct. 181].

2 The “accelerated booking search” theory advanced in the dissent was not raised below, the People have not urged it on their appeal, and the record does not support its application in any event.