People v. Wade

208 Cal. App. 3d 304, 256 Cal. Rptr. 189, 1989 Cal. App. LEXIS 160

• Court: California Court of Appeal
• Decided: February 28, 1989
• Docket: G005611
• Status: Published

Opinions

Opinion

CROSBY, J.

Donald Wade pleaded guilty to possession of heroin and being under the influence of a controlled substance after his motion to suppress evidence was denied. Although a body cavity search of his person did not strictly conform to California law as expressed in Penal Code section 4030, that statute contains no exclusionary remedy.¹ We find no basis for suppression under federal law and affirm accordingly.

I

On April 7, 1987, at approximately 8:30 p.m., Santa Ana Police Officers Wiist and Schweitzer observed a vehicle with expired registration stickers. Wiist activated the police car’s red spotlight while Schweitzer focused a white spotlight on the car’s interior. The officers followed the car for approximately one-half mile and noticed the passenger rise in his seat several times, touching the headliner; and his right shoulder dipped, as though he were trying to adjust something below his waist.

Once the car stopped, Schweitzer asked Wade, the passenger, routine questions and then ordered him out of the car and conducted a patdown search. No contraband or weapons were found. Wiist also spoke with Wade and noticed his movements were slow and deliberate. He also observed scratch marks on Wade’s face and that he had a dry mouth, droopy eyelids, and constricted pupils. Based on 10 years of experience and training as a narcotics evaluator, Wiist determined Wade was under the influence of an opiate and arrested him. The automobile was searched, but no contraband was found.

At the police station, Wade was escorted to an interview room. After receiving oral permission from the supervising lieutenant to conduct a visual body cavity search, Schweitzer told Wade to pull down his trousers and underwear and to bend over and spread his buttocks. Wiist saw a small plastic object protruding from Wade’s anus and believed the object was a bindle of tar heroin. The officers summoned Investigator Chaney to assist them. Wearing rubber gloves, Chaney spread Wade’s buttocks; and the bindle fell to the floor without any further physical invasion into the rectal cavity. Laboratory analysis confirmed Wiist’s suspicion as to the nature of the substance in the bindle.

II

Wade launches a three-pronged attack on the two visual body cavity searches.² He claims the heroin should have been suppressed because the searches were not supported by probable cause, the officers failed to first obtain a warrant, and the searches were conducted in an unreasonable manner.

We reject all three contentions. There was probable cause to conduct the first search. Wade’s appearance and suspicious behavior in the car gave the officers good reason to believe narcotics were hidden on his person. And the observation of the object in Wade’s anus obviously eliminated any question concerning probable cause to conduct the second rectal examination.

Despite Wade’s protestations, the law does not require a warrant before a visual cavity search may be conducted. (Pen. Code, § 4030, subd. (h).) As “[t]he human body is not, of course, a sanctuary in which evidence may be concealed with impunity[,] . . . [appropriate procedures to retrieve such evidence are neither ‘unreasonable’ per se under the Fourth Amendment, nor violations of ‘due process’ procedures guaranteed by the Fifth and Fourteenth Amendments. [Citations.]” (People v. Scott (1978) 21 Cal.3d 284, 293 [145 Cal.Rptr. 876, 578 P.2d 123].) Moreover, “[w]hen a person is lawfully arrested . . . post-arrest searches of the body to discover . . . controlled substances are generally permissible. [Citation.]” (Salinas v. Breier (1982) 695 F.2d 1073, 1083.) The rationale for this rule is several-fold: Retrieval of concealed contraband preserves evidence, prevents the import of illegal substances into a penal facility, and also guards against accidental overdosing by the individual ingesting or secreting the drugs. Given the circumstances of this arrest, a warrantless visual cavity search was legal under California law as codified in Penal Code section 4030. Federal law is in accord. (See, e.g., United States v. Cameron (1976) 538 F.2d 254, 259 [“We do not hold that a warrant must be obtained prior to all body cavity searches.”].)

Other provisions of Penal Code section 4030 were not met, however. (See, e.g., Pen. Code, § 4030, subds. (f) [written authorization from the “supervising officer on duty” is a prerequisite for a visual body cavity search], (j) [the “breast, buttocks, or genitalia of the person being searched” may not be touched in a visual body cavity search]). Nevertheless, Wade is not entitled to suppression of the contraband.

Penal Code section 4030 was expressly enacted “to protect the state and federal constitutional rights of the people of California by establishing a statewide policy strictly limiting strip and body cavity searches.” (Pen. Code, § 4030, subd. (a).) It is a misdemeanor to “knowingly and willfully authorize[] or conduct[] a body cavity search in violation of this section” (Pen. Code, § 4030, subd. (n)), and a person harmed by any such violation is accorded specific statutory civil remedies. (Pen. Code, § 4030, subd. (p).) But nowhere has the Legislature provided for suppression of evidence obtained without section 4030 compliance, although it certainly knows how to create an exclusionary rule when it so intends. (See, e.g., Pen. Code, § 631, subd. (c).) And in this post-Proposition 8 era, absent such a pronouncement by the Legislature, state courts are powerless to suppress evidence unless federal law so requires. (People v. West (1985) 170 Cal.App.3d 326, 330-331 [216 Cal.Rptr. 195].)

Use of the federal exclusionary rule has been discussed in scores of cases involving physical searches. For example, in Rochin v. California (1952) 342 U.S. 165 [96 L.Ed. 183, 72 S.Ct. 205, 25 A.L.R.2d 1396], the Supreme Court emphasized the importance of a case-by-case balancing test to determine whether an invasion into a suspect’s body “shocks the conscience” (id., at p. 172 [96 L.Ed. at p. 190]) or involves “methods too close to the rack and the screw to” be tolerated. (Ibid. [96 L.Ed. at p. 190].) There, officers forcibly entered the defendant’s bedroom, jumped on him in an unsuccessful effort to force expectoration of morphine capsules he swallowed, and finally retrieved the contraband by having his stomach pumped at a hospital. The court determined this episode offended “even hardened sensibilities” and suppressed the evidence. (Ibid. [96 L.Ed. at p. 190].) In Winston v. Lee (1985) 470 U.S. 753 [84 L.Ed.2d 662, 105 S.Ct. 1611], the court concluded a proposed surgery under general anesthesia to remove a bullet from the defendant’s chest without his consent would not be tolerated. The decision set forth various factors which should be considered, including “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity” and “the community’s interest in fairly and accurately determining guilt or innocence.” (Id., at pp. 761-762 [84 L.Ed.2d at pp. 669-670].)

This case pales by comparison with Rochin and Winston: The body search was brief, nonviolent, minimally intrusive, and not conducted in a grossly offensive manner. Such searches are routine for inmates of penal facilities across the country. When the relatively mild intrusion is balanced against the public’s strong interest in combating narcotics use and the fact the contraband was visible and retrieved without actual physical invasion of a body cavity, it is clear that federal law would not require suppression of the evidence. To the extent Penal Code section 4030 represents this state’s interpretation of the Fourth Amendment, there may have been a violation of the United States Constitution under the Legislature’s view of that amendment. But the Legislature did not enact an exclusionary remedy, and none exists under state law after Proposition 8 if suppression would not be required under federal law.

Judgment affirmed.

Scoville, P. J., concurred.

1 Penal Code section 4030 is important to the discussion following but is a lengthy statute. It is reproduced in full in appendix A attached.

2 These facts present a close question as to whether the second search was actually a physical body cavity search, as that term is defined in Penal Code section 4030, subdivision (d)(3). But, despite a bland reference in footnote 7 of his opening brief concerning the statutory need for a search warrant to conduct a physical body cavity search, Wade appears to concede both searches were only visual. The distinction will not be meaningful in light of our resolution of his appeal.