Opinion

Miller v. Superior Court

  • 127 Cal. App. 3d 494
  • 179 Cal. Rptr. 783
  • 1981 Cal. App. LEXIS 2537
Court
California Court of Appeal
Filed
Nov 6, 1981
Status
Published
Author
Barry-Deal
On the bench
Barry-Deal, White
Cited by
2 cases
Authority
More cited than 9.5%

The opinion

BARRY-DEAL, J.

I respectfully dissent.

I have previously set out in detail my analysis of what the majority accurately describes as the “seemingly endlessly recurring” issue pre *512 sented in this case. (People v. Laiwa (Cal.App.), hg. granted Oct. 2, 1981.) Since our Supreme Court has granted a hearing in Laiwa, we may reasonably hope that the court will, in the not too distant future, resolve the state of law in California on the scope of a warrantless search incident to a lawful custodial arrest. In the interim, we have no choice but to add one more written decision and dissent to those which have come before. I write briefly merely to reiterate my position with Scott, J., concurring, in Laiwa, as follows.

Searches conducted without warrant violate the Fourth Amendment of the United States Constitution and are per se unreasonable, subject only to a few specifically established and well-delineated 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, 416 [ 153 Cal.Rptr. 224 , 591 P.2d 514 ].) Among these exceptions is the warrantless search incident to arrest (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 812-813 [ 91 Cal.Rptr. 729 , 478 P.2d 449 , 45 A.L.R.3d 559 ], citing generally Warden v. Hayden (1967) 387 U.S. 294, 300-310 [ 18 L.Ed.2d 782, 788-794 , 37 S.Ct. 1642 ], and Chimel v. California (1969) 395 U.S. 752, 762-763 [ 23 L.Ed.2d 685, 693-694 , 89 S.Ct. 2034 ]) which is a reasonable search under the Fourth Amendment. (N ew York v. Belton (1981) 453 U.S. 454 [ 69 L.Ed.2d 768 , 101 S.Ct. 2860 ].)

Belton has clarified that United States v. Chadwick (1977) 433 U.S. 1 [ 53 L.Ed.2d 538 , 97 S.Ct. 2476 ] does not apply to the issue here under consideration. To the extent that they held or indicated otherwise, People v. Pace (1979) 92 Cal.App.3d 199 [ 154 Cal.Rptr. 811 ] and People v. Minjares, supra, 24 Cal.3d 410 , were incorrect and should not be followed. Although Belton involved a search of an automobile, its holding applies to all custodial arrest searches. The search in the case before us did not offend federal constitutional provisions.

Nor does the search in the instant case violate article I, section 13 of the Constitution of the State of California. Our Supreme Court in People v. Brisendine (1975) 13 Cal.3d 528 [ 119 Cal.Rptr. 315 , 531 P.2d 1099 ] did not address the question of searches incident to a lawful custodial arrest, and thus Brisendine does not qualify the authority of the police to search such an arrestee. I conclude that, incident to a lawful arrest for an offense for which an individual is to be booked and incarcerated, California law, like federal law, permits the warrantless search both of the person of the arrestee and of containers carried on his per *513 son or within the area of his immediate control for weapons and for evidence of contraband or instrumentalities of the crime.

The search in this case was also justified as an accelerated booking search. (People v. Longwill (1975) 14 Cal.3d 943 [ 123 Cal.Rptr. 297 , 538 P.2d 753 ]; People v. Bundesen (1980) 106 Cal.App.3d 508 [ 165 Cal.Rptr. 174 ]; People v. Bullwinkle (1980) 105 Cal.App.3d 82 [ 164 Cal.Rptr. 163 ].)

I would deny the writ.

A petition for a rehearing was denied December 4, 1981, and the petition of real party in interest for a hearing by the Supreme Court was denied January 20, 1982. Kaus, J., and Broussard, J., were of the opinion that the petition should be granted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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