Petition for a Writ of Certiorari — California v. Foreman

LAPD LL ELDON AE TDI EAL ET SOS OILS NL

TOPICAL INDEX

Opinions Below

Jurisdiction

Questions Presented

Constitutional Provisions Involved

Statement of the Case

A. History of the Case

B. Statement of Facts

C. How the Federal Questions Are

Presented

Reasons for Granting Writ

I The Police Practice of Obtaining a

Blood Sample From Drivers Reason-

ably Believed to be Under the

Influence of Alcohol and Injured

in an Accident Without Arresting

the Drivers Involves a Constitu-

tional Issue of Vital Importance

to Society

II Appellate Courts Throughout the

Nation Have Rendered Conflicting

Decisions Regarding the Applica-

bility of Schmerber v. California

When the Suspecte river

Is not Arrested

III The Admissibility of Evidence

Inadvertently Obtained in

Violation of the Constitution

Is a Matter of Great Concern to

the Nation

Conclusion

Appendix A

Appendix B

Appendix C

3 GT Sh al Sete TIT IOUS SP eraet ig temas)

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ii

LIST OF AUTHORITIES

Pages

Cases

California v. Hills, Oct. 1972 Tern,

72-560 14

Commonwealth v. Murray, 271 A.2d 500 13

Fleischhacker v. State Farm Mutual

Auto Ins. Co., 79 N.W.2d 817 13

Perry v. Oklahoma City, 470 P.2d 974 14

People v. Kokesh, 486 P.2d 429 14

People v. Superior Court (Hawkins)

6 Cal.3d 757 254,5,6,7,14,15,16

People v. Young, 248 NYS 2d 287 13

Schmerber v. California, 384 U.S.

757 11,13,14,15,17

State v. Cruz, 446 P.2d 307 13

State v. Davis, 266 A.2d 873 12,13

State v. Dresher, 489 P.2d 1290 14

State v. Findlay, 145 N.W.2d 650 14

State v. Gillespie, 241 A.2d 239 14

State v. McMaster, 288 A.2d 583 14

State v. Mitchell 245 So.2d 618 14

State v. Turner, 494 P.2d 650 14

State v. Towry, 210 A.2d 455 13

State v. Wolf, 164 A.2d 865 13

Washington Township Hosp. Dist v.

County of Alameda, 263 Cal.App.2d

272 9

Statutes

California Penal Code section 1538.5(3) 5

California Rules of Court, Rule 62(@ 2

California Rules of Court, Rule 63

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California Rules of Court, Rule 107(b)

A California Rules of Court, Rule 191(c)

) California Vehicle Code section 11353

California Vehicle Code section 23102

4 California Vehicle Code section 40300.5

4,4 United States Code, Title 28, section

1253(3) 2

;| United States Constitution,

Amendment IV 3 &§

United States Constitution,

Amendment XIV 3,4

Other Authorities

Arrest Requirements for Administering

Blood Tests, 1971 Duke Law J. 601 12

Commission on Public Works, 90th Cong.

2d Sess., 1968 Alcohol and Highway

Safety Report--A Study Transmitted by

the Secretary of the Dept. of Trans-

portation to the Cong. Caen. Print 1968) 9

Report of the President's Commission on

Law Enforcement and the Administration

of Justice: The Challenge of Crime in a

Free Society, 140 (1967) 16

; Standards Relating to Criminal Appeals

(American Bar Association), section :

1.4(a)(iii) (1969) 16,17 4

9} Traffic Accidents Involving Alcohol in

the U.S.A. Second-Stage Aspects of a .

Social Problem, Quarterly Journal of :

; Studies on Alcohol, Supp. No. 4 (May é

SP WEAR Clipe sn tN age

HES

i A i | ol

TORDASPN Sara ete

SS

See ET TE COE

| 1968) 9 |

_§ Whatever Happened to Implied Consent? ;

33 Mo.L.Rev. 323 10

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r POLI AA AAT AIA LO RAO TTR

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1972 | i

ss .. _ .

sTATE OF CALIFORNIA,

3 Petitioner,

Ve }

'‘ESLIE FOREMAN , '

Respondent. 5

ON WRIT OF CERTIORARI TO THE APPELLATE

DEPARTMENT OF THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

PETITION FOR WRIT OF CERTIORARI

IL AEE DORIAN 11a a ea 9 Ae ts:

Petitioner State of California respectfully

prays that a writ of certiorari issue to review

the judgment of the Appellate Department of the

Superior Court of the State of California for

the County of Los Angeles entered in this pro-

ceeding on September 26, 1972, affirming an

der granting a motion to suppress evidence prior

to trial, whereby the petitioner must forego use ;

of the results of a test for alcohol in the blood

of respondent who is charged with driving a ve-

hicle under the influence of alcohol.

Ce er

Misi : od

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OPINIONS BELOW

A copy of the memorandum opinion of the

Appellate Department, unreported, is set forth

as Appendix A to this Petition. A copy of a

portion of the minutes of the trial court setting

forth its ruling herein is set forth as Appendix

B. A copy of People v. Superior Court (Hawkins),

reported in 6 Cal.3d 757 [100 Cal.Rptr. 281, 493

P.2d 1145] and referred to in both the ruling of

the trial court and the memorandum opinion of

the Appellate Department, is set forth as Appendix

C.

_ amd

JURISDICTION

The judgment of the Appellate Department was

filed on September 26, 1972, and, being neither

published nor certified to the Court of Appeal

(see California Rules of Court, Rules 62(a) and

63), became final on October 2, 1972. California

Rules of Court, Rule 107(b). On October 2, 1972,

pursuant to Rule 191(c) of the California Rules of

Court, the Appellate Department stayed issuance

of its remittitur for 30 days to allow the filing

of this petition which is being filed within that

time. The jurisdiction of this Court is invoked

under Title 28, United States Code section 1257(3).

QUESTIONS PRESENTED |

1. Whether the Fourth and Fourteenth Amend-

ments to the United States Constitution are vi-

olated solely because of the failure to arrest

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, person from whom a blood sample is taken after

that person is injured in an automobile accident

and removed to a hospital and after a police

officer (a) has reasonable cause to believe that

aperson was the driver of an automobile involved

in that accident, (b) has reasonable cause to

lieve that person was under the influence of

alcohol at the time he was driving the auto-

nbile, and (c) has probable cause to arrest

that person.

2. Whether in any event application of the

exclusionary rule is constitutionally compelled

uder the circumstances of the present case.

CONSTITUTIONAL PROVISIONS

INVOLVED

United States Constitution, Amendment IV:

"The right of the people to be

secure in their persons, houses, papers,

and effects, against unreasonable

searches and seizures, shall not be vi-

olated, and no warrants shall issue,

but upon probable cause, supported by

Oath or affirmation, and particularly

describing the place to be searched,

% and the persons or things to be seized."

| United States Constitution, Amendment XIV:

"No State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

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States; nor shall any State deprive any

person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws."

STATEMENT OF THE CASE

A. History of the Case

On March 23, 1972, a complaint was filed

charging respondent with having driven under the

influence of alcohol on February 14, 1972, in

violation of California Vehicle Code section

23102(a). ([En.St. p. 1. }2/

Respondent thereafter made a motion to sup-

press as evidence the results of a blood alcohol

test. [En.St. pp. 1-2.] After hearing the testi-

mony of witnesses, this motion was granted by the

judge of the municipal court because the respond-

ent "was not placed under arrest prior to blood

being taken in accordance with the opinion in

ople v. Hawkins (LA 29934) .2/ {[En.St. p. 4

and Appendix B. ]

1. Reference is to the Engrossed Statement

on Appeal, a certified copy of which has been

filed with this Court. The facts set forth in

that statement were certified by the trial judge

as being true and correct [see p. 5 of Engrossed

Statement) and were accepted as the facts by the

Appellate Department. (See Appendix A.)

2. Reference is to People v. S rior Court

Hawkins), which bore the case number Lh 29934."

See Appendix C.)

Se 5S @

3s 8s: Fs”

2

IS BERBE

ent

and

is

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The People, in accordance with California

penal Code section 1538.5, subdivision (3),

appealed to the Appellate Department of the

california Superior Court for the County of

los Angeles. That court affirmed the suppres-

sion Of evidence on the basis of People v.

superior Court (Hawkins). (See Appendix A.)

B. Statement of Facts

On February 14, 1972, Officer William B.

inight of the California Highway Patrol observed

respondent walking about the scene of an acci-

ent involving an overturned vehicle. (En.St.

» 2.) Two other witnesses at the scene indi-

sated that respondent was the driver. (En.St.

> 2.) After smelling respondent's breath, de-

tecting a distinct odor of alcohol emanating

from him, observing the defendant's gait and

nwaring his speech, Officer Knight formed the

pinion that he was under the influence of al-

cohol. ([En.St. p. 2.] Although under normal

circumstances Officer Knight would have arrested

respondent at the scene of the accident, because

wf his injuries and in view of the California

lighway Patrol policies dictating against arrests

wider such circumstances, Officer Knight did not

wrest respondent. ([En.St. 3. ]

3. Pursuant to this statute the People are

mtitled to seek appellate review prior to trial

wd are then bound at trial by whatever decision

is finally obtained.

eh eee

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Ue ger rw: one

| ey) VOT +, i ake. Pi ee ee a ee PLAT ODE em ve

abn

Later when Officer Knight and respondent

were at a hospital, respondent, after being

advised by the officer of his rights and duties

under California Vehicle Code section 13353,

agreed to take a blood test and a sample of his

blood was thereafter extracted for purposes of

testing the amount of alcohol therein. [m.

St. 2-3.]

C. How the Federal Questions

Are Presented

After the presentation of evidence, the

respondent urged that the extraction of blood

was an unreasonable search and seizure because

he was not under arrest and did not voluntarily

consent. [En.St. p. 4.] Respondent did not

attack the use of a blood test itself (for

example, as a violation of his religious be-

liefs) nor did he claim that the blood was not

extracted in a medically approved manner. [mm.

St. p. 4.] The People urged that respondent

had consented and that, under the facts of this

case, an arrest was not required as a prerequisite

to the admissibility of the results of the blood

test. ([En.St. p. 4.]

The trial court ruled that respondent had

not voluntarily consented and that solely because

of the failure to arrest respondent the evidence

should be suppressed on the basis of People v.

Superior Court (Hawkins) even though, prior to

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the withdrawal of the blood sample, Officer Knight

ad probable cause to arrest respondent since he

yd reasonable cause to believe respondent was

the driver of a vehicle involved in a traffic

cident while under the influence of alcohol.

(m.St. 4-5 and Appendix B. }+

The People appealed from this suppression

of evidence to the Appellate Department and,

wile recognizing that the Appellate Department

ws bound by the California Supreme Court, noted

in their brief (a certified copy of which has

yen filed with this Court), the contentions

that People v. Superior Court was wrongly de-

ded insofar as it makes an arrest a prerequisite

for the admissibility of the intoxication test

md that even if the Fourth and Fourteenth

iendments were violated, under the circumstances

ff this case such violation should not result in

the exclusion of evidence.

4. Under California law, a person, wher

involved in a traffic accident, may be arrested

for violating California Vehicle Code section

23102(a) even though the offense is not committed

in the presence of the officer. (See California

Vehicle Code section 40300.5.)

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REASONS FOR GRANTING WRIT

I

THE POLICE PRACTICE OF OBTAINING A BLOOD

SAMPLE FROM DRIVERS REASONABLY BELIEVED

TO BE UNDER THE INFLUENCE OF ALCOHOL AND

INJURED IN AN ACCIDENT WITHOUT ARRESTING

THE DRIVERS INVOLVES A CONSTITUTIONAL

ISSUE OF VITAL IMPORTANCE TO SOCIETY

Reduced to its simplest and most practical

terms, this case involves the propriety of the

police practice of not arresting persons injured

in automobile accidents who are reasonably be-

lieved to have driven a vehicle while under the

influence of alcohol. Under such circumstances,

as indicated by Officer Knight, it has been the

practice of the California Highway Patrol (and

indeed of many police agencies in California and

other states) not to arrest persons who are taken

to the hospital for treatment of their injuries.

The reasons underlying this policy would appear

to be two-fold.

First, if injured persons are placed under

arrest, they are customarily removed to the prison

section of a public hospital and are there kept

under the guard of the police, the same as they

would be in a local jail. In such cases society,

since it has a legal obligation to provide ade-

quate care for its prisoners, must bear the

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expense of medical treatment2/ (which may be sub-

stantial due to the nature of the injuries), as

well as providing sufficient police personnel

to guard these arrestees at the hospital. While

the police may deem it appropriate to arrest

persons charged with crimes such as robbery or

murder who may have been injured in a shoot-out

with the police, police agencies have, in the

past 2 refrained from arresting suspected drunk

drivers since the cost to the taxpayer for the

custody and care of such persons would necessar-

ily be quite high due to the large number of

drivers who, while drinking, are injurea.l/

5. See, for example, Washington Township Ho

Dist. v. County of Alameda, al.App. °

6. While there appear to be no studies indi-

cating the number of agencies which have adopted

the policy, the number of reported appellate deci-

sions (see Part II of the Argument, infra) is some

evidence of the extensive nature of this policy

throughout various parts of the United States.

7. See Commission on Public Works, 90 Cong.

2d Sess., 1968 Alcohol and Highway Safety Report--

A Study Transmitted by the Secretary of the Dept.

of Transportation to the Cong., pp. 14-15, 27

(Comm. Print 1968) for some indication of the larg

number of drivers who, while drinking, are serious

ly injured. See also Bacon, Traffic Accidents In-

volving Alcohol in the U.S.A. Second-Stage Aspects

of a SOCial Problem, Guarterly Journal oP Stuties

on Alcohol, Supp. No. 4, p. 11 (May 1968), indi-

cating that each year between one and two million

people are seriously injured in traffic accidents

and that in 25 to 40% of such accidents a signifi-

cant amount of alcohol is found in the driver or

victim.

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Second, because of the nature of the injuries,

e symptoms relating to the Vehicle Code viola-

ion of some of the people whom the police reason-

ly believe are under the influence of alcohol may

ve been caused by the injuries rather than by

e alcohol and as a consequence, if the police

re compelled to make an arrest before making the

lood alcohol analysis, a number of innocent per-

sons may unnecessarily have drunk driving arrests

on their record depending upon the policies adopt-

ed by the police in making arrests. See Hunvald

d Zimring, Whatever Happened to Implied Consent?

Sounding, 33 Mo.L.Rev.. 323 (1968), for a dis-

ussion of different policies utilized by differ-

nt police agencies in making drunk driving

rrests as well as a comparison of these arrests

ith the results of intoxication tests given to

e suspected drunk driver. In light of probable

ause existing at the time blood alcohol is with-

wn, under the circumstances of the present

ase, the formal incantation of the words "under

rrest" would hardly seem to be of benefit to the

itizen especially when considered in connection

ith the consequences which would flow to that

itizen from an arrest, such as the necessity of

sting bail and having his name appear upon po-

ice records as a drunk driver, albeit later the

toxication test indicates that although his

lood did have some degree of alcohol in it,

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his lack of coordination, for example, was more

likely due to his injuries than to the alcohol

in light of the small percentage of alcohol

present.

II

APPELLATE COURTS THROUGHOUT THE NATION

HAVE RENDERED CONFLICTING DECISIONS

REGARDING THE APPLICABILITY OF

SCHMERBER v. CALIFORNIA WHEN THE

SUSPECTED DRUNK DRIVER IS NOT ARRESTED

Turning now to the legal implications of

cases such as this, it must be apparent that by

failing to permit the police to obtain a blood

sample when they have probable cause to believe

they have a drunk driver, the judicial system

will necessarily focus on issues which should

really not be at the crux of the admissibility

of such evidence. The courts will consider

whether the arrest was valid or whether the

consent was valid as the factors determinative

of whether the intoxication test is admissible

in evidence. Yet Schmerber v. California, 384

U.S. 757, has already made it clear that consent

is not the key to the admissibility of evidence

and, we submit, neither should arrest be the keyé

The reasonableness of an arrest under state law |

will often involve factors that bear no relation

ship whatsoever to the propriety of the police

conduct in obtaining a blood sample. For exampl

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e validity of an arrest for drunk driving may

depend upon whether in the particular jurisdic-

ion an officer can make an arrest, without a

arrant, for misdemeanor offenses not committed

in his presence.2/ As a consequence, in such

jurisdictions, whenever the police arrive after

accident in which a driver is suspected of

misdemeanor drunk driving, the police, in order

o utilize an intoxication test, will either

have to obtain the consent of the driver or seek

a search warrant, if such jurisdictions have

terpreted the existence of an arrest in

8. See, for example, State v. Davis, 266 A,

2d 873 (N.H.3, involving a jurisdiction in which

misdemeanor arrests, without a warrant, can be

made only for offenses committed in the presence

of the officer and, consequently, the blood sample

obtained therein was held inadmissible.

It should be noted that the implied con-

sent law noted in State v. Davis, supra, and en-

acted in many other jurisdictions (see Comment,

Arrest Requirement for Administering Blood Tests,

1971 Duke L.J. 601, 603, n. 15, for a listing of

ese implied consent statutes) is not of any

elp with respect to the problem presented by

his case since all of these statutes require an

arrest as a condition precedent to the operative

effect of the statute and, in any event, such

statutes do not permit an intoxication test with-

put the consent of a conscious driver. Although

unconscious driver is presumed to consent, the

efusal of the conscious driver may result in a

evocation of his license but his refusal can still

elp thwart any criminal prosecution if the

prosecution does lawfully obtain the results of

an intoxication test.

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Schmerber as a condition precedent to the admis-

" 2/

sibility of the evidence. Yet the use of neither

of these factors appears to be very apropos since

the ability to obtain consent is not within the

control of the police and the time required to ob-

tain a search warrant, as noted in Schmerber, re-

sults in a diminution of the value of the

9. The following jurisdictions have held

the fact of arrest to have been a crucial under-

pinning of Schmerber and have therefore rejected

the admissibility of an intoxication test even

if the police had probable cause to arrest for

drunk driving: New Hampshire: State v. Davis, 226

A,2d 873 (1967) ; Pennsylvania: Commonwealth v.

Murray, 441 Pa. 22, 271 A.2d 500 (1970); Utah:

State v. Cruz, 21 Uteh 2d 406, 446 P.2d 307 (1968.

Even prior to Schmerber, the following

jurisdictions had held that an arrest was required

for the admissibility of an intoxication test even

if the police had probable cause to arrest for

drunk driving: Connecticut: State v. Towry, 26

Conn.Super.Ct. 35, 210 A.2da 455 (1965); laware:

State v. Wolf, 164 A.2d 865 (1960); New York:

People v. Young, 42 Misc.2a 540, 248 NYS 2a 287

(Weschester County Ct. 1964); Wisconsin:

es v. State Farm Mutual Auto Ins. Co.,

74 Wisc. 215, 79 N.W.cod 617 (1950). —"

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toxication test. (384 U.S. at 770.)42/accora-

gly, the overwhelming majority of jurisdictions,

ontrary to California, have rejected this narrow

terpretation of Schmerber and sustained the

admissibility of the evidence in accord with the

alysis which we urge be adopted and which is

et forth in the concurring opinion of Justice

urke in People v. Superior Court (Hawkins), see

ppendix C, pp. xii-xvi.t+ Indeed, the existence

f conflict among state jurisdictions concerning

he proper interpretation of Schmerber would

ppear to warrant further consideration of this

10. It should be noted that even in those few

urisdictions (such as California, see n. 4, supra)

hich permit a misdemeanor drunk driving arrest

o be made without a warrant when the offense did

ot occur in the presence of the arresting officer,

he difficulties encountered in utilizing intoxi-

ation tests are still substantial because of

ssues relating not to whether there was probable

ause to arrest (which would also arise if peti-

jioner's contentions herein are adopted) but be-

ause of additional issues relating to what actu-

lly constitutes an "arrest." See California v.

ills, Oct. 1972 Term, 72-560, in which the peti-

joner herein also seeks certiorari in a related

ase.

11. These jurisdictions are: Colorado: People

. Kokesh, 486 P.2d 429 (1971); Florida: State v.

itchell, 245 So.2d 618 (1971); Idaho: State v.

rer, 94 Idaho 548, 494 P.2d 146 On ; Lowa:

Fate v. Findlay, 145 N.W.2d 650 (1966); Montana:

tate v. Dresher, 489 P.2d 1290 (1971); New Jersey:

Fate v. McMaster, 118 N.J.Super. 476, 288 A.2d

(1972), and State v. Gillespie, 100 N.J.Super.

1, 241 A.2d 239 ); Oklahoma: Perry v.

klahoma City, 470 P.2d 974 (1970).

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matter by this Court in light of the importance

of this problem to the judicial systen.

III

THE ADMISSIBILITY OF EVIDENCE

INADVERTENTLY OBTAINED IN VIOLATION

OF THE CONSTITUTION IS A MATTER OF GREAT

CONCERN TO THE NATION

Finally, even if it be concluded that an

arrest is one of the factual underpinnings of

Schmerber, we would urge that police officers f

ms

j

who have failed to recognize this requirement of

the Fourth Amendment should not be penalized by

precluding the use of the blood sample recovered

Bad a

om

was obviously not so flagrant and willful as to :

require the exclusion of the blood sample. As i

=

in this case since the failure to make the arrest a

BS

noted by the California Supreme Court in its

opinion in People v. Superior Court (Hawkins)

(see Appendix C, p. xi, cases cited inn. 7), up

until the time of that decision the appellate cas

in California would appear to have established

the lawfulness of such conduct by the police.

Furthermore, the technicality of an arrest does §

nothing to further the purposes of excluding

evidence pursuant to the Fourth Amendment under

the circumstances presented herein where an

officer, believing he has consent to obtain bloodg

later discovers that the consent was invalid and

has failed to make an arrest because of the

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injuries of the suspect. It is submitted that

under these circumstances neither theoretically

aggrieved suspects nor society are benefitted

by the exclusion of the evidence upon a minor

technicality.

CONCLUSION °

Unless this Court undertakes a consideration

mof the holding in People v. Superior Court

(Hawkins), one of the practices presently

utilized by law enforcement will have to be

abandoned. This case presents a particularly

appropriate instance for dealing with this prob-

lem because only rarely is this Court given an

opportunity to determine whether limitations

imposed upon law enforcement by lower courts

ave improperly restricted the right of the

public to the proper enforcement of the law.

This case comes before this Court by way of

appeal by the People, a right granted to them

by California in response to the need for review

by the prosecution of restrictive lower court

lecisions which was noted in the Report of the

President's Commission on Law Enforcement and

he Administration of Justice: The Challenge of

rime in a Free Society, 140 (1967). This pro-

bosal was thereafter incorporated by the American

bar Association into its Standards Relating to

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Criminal Appeals, section 1.4(a) (iii) (1969) .22/

Yet California does not stand alone in the

need for review by this Court since there is a

substantial conflict among the states with respect

to the proper interpretation of Schmerber v.

California, a conflict which can eventually be

resolved only by this Court.

Accordingly, petitioner submits that a writ

of certiorari should issue to review the decision

i2. With reference to the Presidential

Commission's Report, the A.B.A. study remarked:

"The Commission reasoned that the

law of search and seizure and of confessions

is-uncertain, that the issue of admissi-

bility of such evidence is of great signifi-&

cance to both prosecution and defense, and

that therefore lower court decisions re-

stricting police conduct should be open to

testing on appeal. If such restrictive

ecisions are not appealable, the Commission

ound, prosecution officials would either

Have to abandon the practice without an

authoritative appellate ruling or hive to

continue the practice despite the lower

court's decision in the hope of a future

trial court's decision sustaining the

practice from which a defense appeal might

produce an'appellate court ruling." Id., 38.

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f the Appellate Department of the Superior Court

or the County of Los Angeles.

Respectfully submitted,

JOSEPH P. BUSCH

District Attorney

By

HARRY WOOD

Head, Appellate Division

HARRY B. SONDHEIM

Deputy District Attorney

Attorney for Petitioner

APPENDIX A

IN THE APPELLATE DEPARTMENT OF THE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

Superior Court No. CRA 1l Trial Court No.

CR-T-10416

PEOPLE OF THE STATE | ON APPEAL

OF CALIFORNIA, from the

Plaintiff and Appellant, MUNICIPAL COURT

of the

vs. f Newhall

LESLIE FOREMAN, Judicial District,

Defendant and Respondent. | County of Los

Angeles, State of

California.

Adrian W. Adams,

Judge (23102[a] vc)

FILED

SEP 26 1972

WILLIAM G. SHARP, County

Clerk

/s/ L. Swart

By L. Swart, Deputy

This cause having been argued and submitte

and fully considered, judgment is ordered as

follows:

It is ORDERED and ADJUDGED that the order

granting motion suppressing evidence pursuant

to Penal Code section 1538.5 made and entered

in the Municipal Court of the Newhall Judicial

District, County of Los Angeles, State of

California, in the above entitled cause be and

the same is hereby affirmed.

MEMO

Accepting the facts as stated in the

Engrossed Statement, we affirm the order grant-

ing motion suppressing evidence pursuant to

Penal Code section 1538.5 under People v.

Superior Court (Hawkins) [1972 | al.3d 757

Tide CelcRete 281, 493 P.2da 1145 J,

BY THE COURT SEP 26 1972

/s/Wong

Acting Presiding Judge.

/s/Zack

Judge.

ee

il

APPENDIX B

PARTIAL COPY OF MINUTES OF THE NEWHALL

MUNICIPAL JUDICIAL DISTRICT, COUNTY OF

LOS ANGELES, STATE OF CALIFORNIA, FOR

JUNE 1, 1972

Defendant's motion under 1538.5 is granted.

Motion to suppress the blood test and results

is granted as the Defendant was not placed

under arrest prior to blood being taken in

accordance with the opinion in People vs.

Hawkins (LA 29934) Court however does find:

1. The officer had reasonable cause to be-

lieve that the defendant was the driver of

the vehicle involved in the traffic accident.

2. The officer had reasonable cause to believe

that the defendant was under the influence of

alcohol at the time he was driving the vehicle.

3. The officer had probable cause to arrest

the defendant at the time he admonished him

concerning Section 13353.

4. No valid consent to draw blood was given

by the defendant, in as much as the defendant

was advised concerning section 13353 of the

Vehicle Code.

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ARO ee one er ro

iii

APPENDIX C

vy. SUPERIOR CouRT 757

6c 757 —_— Cal.Rptr. > P.2d

a

LA. No. 29934, In Bank. Mar. 3, 1972.)

THE PEOPLE, Petitioner, v.

THE SUPERIOR. COURT OF KERN COUNTY, Respondent,

ALLAN FOSTER HAWKINS, Real Party in Interest.

—

WMMARY

While defendant, who had been in an automobile accident but had not

twen arrested, was awaiting emergency treatment in a hospital, he signed,

io arrest, even though the taking is not pursuant to a search warrant or

incident to a lawful arrest. The Court disapproved several Court of Appeal

officer

concluding that the People were not entitled to a writ, the Court noted

the burden of justifying the taking without a search warrant had not

met, since evidence sustained the trial court’s determination that the

J., concurring. Separate concurring and dissenting

Burke, J., with McComb, J., concurring therein.)

ter

“

R

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om - Dee BS Tee ote

738 PEOPLE v. SUPERIOR Court P

6 C.3d 757; —— Cal.Rptr. ——, —— p.2g___ 6

HEzapNores

Ctassified to McKinney's Digest

(1) Searches and Seizures § 36—Without Warrant—Seizure of Eviden.

_ tiary Matter—Blood Sample—The Fourth Amendment does not bar

& compulsory seizure, without a warrant, of a person's blood for the

purposes of a blood-alcohol test to determine intoxication, provided y

that the taking of the sample is done in a medically approved manner, R

is incident to a lawful arrest, and is based on the reasonable belief

that the person is intoxicated. -

[See Cal.Jur.2d, Rev., Searches and Seizures, § 33.] (

(@) Searches and Seizures § 19—Without Warrant—Burden to Show Jus-

tification—The People have a burden to show an overwhelming need

that would justify a search without a warrant.

(3) Automobiles § 387.5—Offenses and Prosecutions—Alcohol Tests—

implied Consent Law—The taking of a blood sample pursuant to

Veh. Code, § 13353, the “implied consent” law, is conditioned on

a lawful arrest for driving under the influence of intoxicating liquor

and on the reasonable belief of the peace officer that the arrestee

was, in fact, so driving. (Disapproving, to the extent that they are

inconsistent with the instant opinion, People v. Pack (1962) 199

Cal App.2d 857; People v. Huber (1965) 232 CaLApp.2d 663;

People v. Bustos (1966) 247 Cal.App.2d 422; McDonald v. Justice

Court (1967) 249 Cal.App.2d 960; and People v. Glass (1968) 266

Cal App.2d 222.)

_ moe Se x 2 Cee

—e oo Ae OcoeelUclCUC lO

(® Criminal Law § 413.5(3)—Evidence Obtained by Unlawful Seizure

—Obdjection to Admission—Motion to Suppress—Blood Sample.— |

In @ prosecution for vehicle manslaughter in violation of Pen. Code, |

§ 192, subd. (3a), and felony drunk driving in violation of Veh. |

Code, § 23101, it was proper to grant defendant’s motion to suppress |

evidence, in the form of the sample of his blood, on the ground that |

it was the result of an unlawful search and seizure, where the only

justification offered by the People for taking the sample without a

search warrant was defendant's written consent, and where the court

had found, on substantial evidence, that the consent had not been

freely and voluntarily given.

COPY BOL

psoPLE v. SUPERIOR COURT 759

60.34 757; —— Cal.Rptr. . P.2d

CouNSEL

Evelle J. Younger, Attomey General, Doris H. Maier, Assistant Attorney

General, and Jack R. Winkler, Deputy Attorney Generel, for Petitioner.

No appearance for Respondent.

Vizard, Baker, Sullivan, McFarland & Long and Richard M. Long for

Real Party in Interest,

OPINION

SULLIVAN, J.—Defendant (real party in interest) Allan Foster Hawkins

vas charged by. informant with one count of vehicle manslaughter (Pen.

Code, § 192, subd. (3)(a)) and one count of felony drunk driving (Veh.

Code, § 23101). He moved pursuant to section 1538.5 of the Penal Code

tp suppress as evidence the results of a blood-alcohol test on the ground

tut they were the product of an illegal search and seizure. Defendant's

notion was granted and the People seek review by writ of mandate. (Pen.

Code, § 1538.5, subd. (0).)*

The pertinent facts giving rise to the motion to suppress are as follows:

On the evening of June 21, 1970, defendant, accompanied by his sister,

was driving a pickup truck along Allen Road in Kern County. At the same

time Robert Craig accompanied by his wife and children was driving his

gation wagon along Rosedale Highway, a through highway. (See Veh.

Code, § 600.) Without stopping or slowing down at the stop sign, defend-

ant drove his truck into the intersection and collided with the Craig vehicle.

Defendant’s sister was killed and Mrs. Craig was seriously injured.

Officers of the California Highway Patrol arrived upon the scene within

10 minutes. They found defendant standing near the station wagon in a

dazed condition, eyes bloodshot, shirt off, back and head bloody from

injuries. Officer Hernandez testified that defendant’s breath smelled of

acoholic beverages and that there were three beer cans in defendant's

track, two full and one empty. Due to defendant's physical condition, he

was not given a field sobriety test, but placed in an ambulance along with

Mrs. Craig and sent to the Kern General Hospital for medical attention.

At the hospital defendant and Mrs. Craig were transferred to the emer-

gency room. After completing their investigation at the scene of the

| unless otherwise indicated, all section references are to the Penal Code.

RIESE TLE EINE PETE MeO IE MTGE RIE ST —

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760 i= PEOPLE v. SUPERIOR Court

6 C.3d 757; —— Cal.Rptr. —, —— P.24___

ee

accident, the two officers also proceeded to the hospital. While defendant

was lying in the emergency room awaiting treatment, Officer Apsit ap.

proached defendant and asked that he consent to a blood-alcohol test for

intoxication. Defendant apparently agreed and signed a written consent

A blood sample was thereupon taken in a medically approved manner.

Several hours later defendant was released from the hospital. At no time

was defendant placed under arrest.

The result of the blood-alcohol test showed that defendant’s blood

contained 203 milligrams percent alcohol. Several weeks after the accident

a complaint was filed in the Bakersfield Municipal Court charging de-

fendant with the above-mentioned felonies. Defendant voluntarily sur-

rendered to the authorities. At the preliminary hearing, the magistrate

found that defendant had consented to the blood-alcohol test, denied his

motion to suppress the results of the test and held him to answer.

Defendant renewed his motion to suppress in the superior court

(§ 1538.5, subd. (i).)? At the special hearing his motion was submitted

on the transcript of the preliminary hearing, supplemented by defendant's

testimony. The People conceded that the only ground upon which they

sought to justify the seizure of defendant’s blood was his written consent.*

The trial judge found that defendant’s written consent was not free and

voluntary and granted the motion to suppress.‘ The People thereupon

filed the instant petition for a writ of mandate. (§ 1538.5, subd. (0).)

“*Defendant also moved to dismiss the count of vehicle manslaughter on the ground

that there was insufficient evidence to support a finding of gross negli and

moved in the alternative that the felony-manslaughter proceedings be ' toa

*“Mr. Vander Noor [Prosecutor]: Your Honor, I can shorten this up considerably.

I will concede that when you take a blood test you are intruding into that body and,

therefore, you are seizing evidence. So, we have a search and seizure problem. . . -

\ Je h Mr. Hawkins at no time a guare under arrest .

scene or at hospital. Consequently, justification for admissibility

not rest on the search warrant {there being none] mat it don

incident to lawful arrest. . . . [Par.] The basis under which we are

as a product of a legal search and seizure is simp! that according to

the evidence adduced at the imi hearing, this man was asked to take a b

test. He said he would and he si a consent slip to that effect. . . . Since in

i

s

F

|

i

*The judge stated: “The defendant was in the emergency room being administered

from a severe accident which caused the death of his sister, as well as others.

Coe his stomach with blood all over and had just regained Consciousness.

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_0PLE v. SUPERIOR COURT 761

(34 757; —— Cal.Rptr. ——, —— P.2d ——

OE

The People concede, as indeed they must, that there is substantial evi-

ence in the record to support the trial court’s findings that defendant's

mitten consent to the blood-alcohol test was not freely and voluntarily

yen. They contend, however, that the taking of a blood sample in a

ydically approved manner but without the consent of the subject is not

lative of his right to be secure against unreasonable searches and

ures under the Fourth and Fourteenth Amendments to the United

sates Constitution where there is probable cause to arrest at the time the

ample is taken, even though the taking of the sample is not pursuant to

, earch warrant or incident to an arrest. We disagree. Accordingly we

ny the People’s petition for the writ.

(1) It is clear that the Fourth Amendment does not bar a compulsory

sire, without a warrant, of a person’s blood for the purposes of a blood

johol test to determine intoxication, provided that the taking of the

ample is done in a medically approved manner, is incident to a lawful

wrest, and is based upon the reasonable belief that the person is intoxi-

ated. (Schmerber v. California (1966) 384 U.S. 757, 766-772 [16 L.Ed.2d

"8, 917-920, 86 S.Ct. 1826]; People v. Duroncelay (1957) 48 Cal.2d

166, 771-772 [312 P.2d 690].) As previously indicated, the People claim,

vithout any citation of authority, that such a seizure of a person’s blood

s lawful even when it is not incident to a lawful arrest. They argue that

he real thrust of Schmerber and Duroncelay is that intrusion into the

privacy of a person’s body depends upon a clear indication of his intoxi-

sation and that his arrest is a mere formality. They point to the following

language in Schmerber: “The interests in human dignity and privacy which

te Fourth Amendment protects forbids any such intrusion on the mere

chance that desired evidence might be obtained. In the absence of a clear

indication that in fact such evidence will be found, these fundamental

human interests require law officers to suffer the risk that such evidence

my disappear unless there is an immediate search.” (Schmerber v. Cali-

jonia, supra, 384 U.S. 757, 769-770 [16 L.Ed.2d 908, 919}.)

Contrary to the People’s claim, Schmerber’s approval of the compulsory

sizure of blood is clearly grounded on the premise that it is incidental

toa lawful arrest. “In this case, as will often be true when charges of

driving under the influence of alcohol are pressed, these questions arise

in the context of an arrest made by an officer without a warrant.” (/d. at

ing from shock and injury, he does not remember even signing the paper or who

tlked to him, although he does admit seeing an officer leave the room. Under the

facts adduced at the evidentiary hearing in Superior Court, this court finds it as a

fact that this was not a free and voluntary consent and, therefore, the motion to

a insofar as the results of the blood test are concerned, is hereby

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762 PEOPLE. v. SUPERIOR Court

6 C.3d 757; —— Cal.Rptr. ——, —— P.2g—_

———

Pp. 768 [16 L.Ed.2d at p. 918].) “While early cases suggest that there is an

unrestricted ‘right on the part of the Government, always recognized under

English and American law, to search the person of the accused when

legally arrested to discover and seize the fruits or evidences of crime,’

[citations] the mere fact of a lawful arrest does not end our inquiry.” (Id.

at p. 769 [16 L.Ed.2d at p. 919].) “Given these special facts, we conclude

that the attempt to secure evidence of blood-alcohol content in this case

was an appropriate incident to petitioner's arrest.” (Id. at p. 771 [16 L.Ed.

2d at p. 920), italics added.) Similarly in Duroncelay, we made it per-

fectly clear that the seizure of the blood sample could only be justified as

“incident to the lawful arrest of one who is reasonably believed to have

violated section 501 of the Vehicle Code.” (People v. Duroncelay, supra,

48 Cal.2d 766, 772.) ;

The People favor us with no authority supportive of their Startling

proposition that in this context a lawful arrest is but a mere formality.

Indeed this proposition runs directly counter to the law on search and

seizure developed by the United States Supreme Court. “[T]his Court has

never sustained a search upon the sole ground that officers reasonably

expected to find evidence of a particular crime and voluntarily confined

their activities to the least intrusive means consistent with that end.

Searches conducted without warrants have been held unlawful ‘notwith-

standing facts unquestionably showing probable cause,’ Agnello v. United

States, 269 U.S. 20, 33, for the Constitution requires ‘that the deliberate,

impartial judgment of a judicial officer . . . be interposed between the

citizen and the police . . . .’ Wong Sun v. United States, 371 U.S. 471,

481-482. ‘Over and over again this Court has emphasized that the man-

date of the [Fourth] Amendment requires adherence to judicial processes,’

United States v. Jeffers, 342 U.S. 48, 51, and that searches conducted

outside the judicial process, without prior approval by judge or magistrate,

are per se unreasonable under the Fourth Amendment—subject only to a

few specifically established and well-delineated exceptions.” (Fns. omitted.)

(Katz v. United States (1967) 389 U.S. 347, 356-357 [19 L.Ed.2d 576,

585, 88 S.Ct. 507].)

In Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct.

2034], the United States Supreme Court reiterated the doctrine that

searches and seizures without warrants are per se unreasonable under the

Fourth Amendment even if there is probable cause to search, except in

rare situations, and traced the history of one of these rare situations,

namely searches incident to a lawful arrest. The Supreme Court pointed

out that this exception emerged in dictum in Weeks v. United States (1914)

232 U.S. 383 [58 L.Ed. 652] and gradually wound its way to the

dignity of a holding. The legitimate extent of a search incident to a

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PEOPLE v. SUPERIOR COURT 763

6C.3d 757; —— Cal.Rptr. ——, —— P.2d

ae

yrest followed an unclear and apparently inconsistent path until Chimel

where the court unequivocally defined the purpose and extent of searches

inident to a lawful arrest. “When an arrest is made, it is reasonable for

te arresting officer to search the person arrested in order to remove any

weapons the latter might seek to use in order to resist arrest or effect his

. . - In addition, it is entirely reasonable for the arresting officer

io search for and seize any evidence on the arrestee’s person in order to

prevent its concealment or destruction. . . . There is ample justification,

terefore, for a search of the arrestee’s person and the area within his

immediate control’—construing that phrase to mean the area from within

vhich he might gain possession of a weapon or destructible evidence.”

(Chimel v. California, supra, 395 U.S. 752, 762-763 [23 L.Ed.2d 685,

694).)

In Schmerber, the Supreme Court unequivocally stated that even a

kwful arrest would not in itself justify a seizure of blood without a warrant,

unless there was in addition a “clear indication” that a blood-alcohol test

will reveal intoxication. The court indicated that a more stringent test was

wplicable because of the great interest in protecting the human body

tom intrusion. In the light of the clear and consistent holdings of the high

gut in this area, it would indeed be incongruous to say that absent

gent circumstances an intrusion without a warrant into a person’s home

sper se unreasonable even though the authorities have probable cause

w believe it contains contraband or evidence of crime, and to reason at

the same time from the same legal premises that such an intrusion into

tis physical body is constitutionally permissible merely if they have

probable cause to believe it contains evidence of his intoxication.

(2) The Supreme Court has made it abundantly clear that the burden

son the People to show an overwhelming need that would justify a search

without a warrant. “The exceptions [to the requirement of a warrant] are

jalously and carefully drawn,’ [Jones v. United States, 357 U.S. 493,

499] and there must be ‘a showing by those who seek exemption. . .

that the exigencies of the situation made that course imperative.’ [McDon-

dd v. United States, 335 U.S. 451, 456.] ‘[Tlhe burden is on those

weking the exemption to show the need for it.’ [United States v. Jeffers,

42 U.S. 48, 51.]” (Coolidge v. New Hampshire (1971) 403 U.S. 443,

455 [29 L.Ed.2d 564, 576, 91 S.Ct. 2022].)

As we previously stated, the People attempt to meet this burden, by

chiming that arrest is merely a formality, a ritualistic incantation of words,

wit were, that in no way goes to the substance of the situation. At the same

time the People argue that out of a humane consideration for the condition

the injured motorist, it is normal and proper police procedure not to

until after the results of the blood-alcohol test are received.

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164 PEOPLE v. SUPERIOR Court PEO

6 C.3d 757; —— Cal. Rptr. —,——P.24—_ ff cc:

We are at a loss to determine how a meaningless ritual of words is at the H

same time so great a burden that it is inhumane to inflict this ritual upon caus

an injured person. At any rate, the burden was never inflicted in the case inf

at bench, since defendant was never arrested.® devi

We find it instructive at this point to consider the legislative purpose | {ot

underlying the California “implied consent” law. (Veh. Code, § 13353,)* | such

Although it is clear under Schmerber that a person who has been lawfully j moe

arrested may have a blood sample forcibly removed without his consent, | o

provided it is done in a reasonable, medically approved manner and pro § men

vided further that the arresting officer had probable cause to believe the the

arrestee was intoxicated, nevertheless such an episode remains an un | Mtiv

pleasant, undignified and undesirable one. belie

®The People also urge, though not very strongly, that the seizure in this case can

be justified as incident to lawful “arrest,” which 4 equate with defendant's volup- T

tary ance in the municipal court, several weeks after the seizure. The United sam,

Staten Supreme Court has constantly reiterated the doctrine that “a search .... §f well

remote in time org from the arrest” (Preston v. United States (1964) 376 US. that

364, 367 [11 L.Ed.2d 777, 780, 84 S.Ct. 881]) cannot be justified as incident to a ,

lawful afrest. (Chimel v. California, supra, 395 U.S. 752.) “A search may be incident § YY

to an arrest ‘ “only if it is substantially contemporaneous with the arrest... .”'" men

(Vale v. Louisiana (1970) 399 U.S. 30, 33 [26 L.Ed.2d 409, 413, 90 S.Ct. 1969). LE

The People rely upon language in People v. Duroncelay, supra, 48 Cal.2d 766 to 57

the effect that a search, even if it precedes the arrest, may be lawfully incident 3

thereto. However, it is clear from subsequent California cases that such a rule is exce

clearly subject to the overriding principle that a search to be lawfully incident to an

arrest must be substantially contemporaneous therewith. (People v. Henry (1967)

65 Cal.2d 842, 846 [56 Cal.Rptr. 485, 423 P.2d 557]; People v. Williams (1967)

67 Cal.2d 226, 229 [60 Cal.Rptr. 472, 430 P.2d 30).) the s

Section 13353, subdivision (a) provides: “(a) Any person who drives a motor Marc

vehicle upon a highway shall be deemed to have given his consent to a chemical purst

test of his blood, breath or urine for the purpose of determining the alcoholic content [18 L

of his blood if lawfully arrested for any offense allegedly committed while the person & x in

was driving a motor vehicle under the influence of intoxicating liquor. The test shall este

be incidental to a lawful arrest and administered at the direction of a peace officer warrs

having reasonable cause to believe such person was driving a motor vehicle upon unde!

a highway while under the influence of intoxicating liquor. Such person shall be tion”

told that his failure to submit to or complete such a chemical test will result in the the d

suspension of his privilege to ipernte a motor vehicle for a period of six months. cated

“The person arrested shall have the choice of whether the test shall be of his enige

blood, breath or urine, and he shall be advised by the officer that he has such choice. suspe

If the person arrested either is incapable, or states that he is incapable, of completing warre

any chosen test,-he shall then have the choice of submitting to and completing an obtaii

of the remaining tests or test, and he shall be advised by the officer that he has patio

choice. arres'

“Such person shall also be advised by the officer that he does not have the right

to have an attorney present before stating whether he will submit to a test, before

deciding which test to take, or during administration of the test chosen.

“Any person who is dead, unconscious, or otherwise in a condition rendering him

incapable of refusal shall be deemed not to have withdrawn his consent and such

tests may be administered whether or not such person is told that his failure to subm

to or complete the test will result in the suspension of his privilege to operate

(en

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PBOPLE v. SUPERIOR COURT 765

6C.3d 757; —— Cal.Rptr. ——, —— P.2d ——

a

However, the shocking number of injuries and deaths on the highways

caused by drunk drivers has compelled society to adopt extreme measures

in response. By its enactment in 1966 of section 13353, the Legislature

devised an additional or alternative method of compelling a person arrested

for drunk driving to submit to a test for intoxication, by providing that

sich person will lose his automobile driver’s license for a period of six

months if he refuses to submit to a test for intoxication. (3) The effect

of this legislation is to equip peace officers with an instrument of enforce-

ment not involving physical compulsion. It is noteworthy that in so doing,

the Legislature took pains to condition its use upon a lawful arrest for

driving under the influence of intoxicating liquor and upon the reasonable

belief of the peace officer that the arrestee was in fact so driving.

The People have not even attempted to justify the taking of a blood

sample from defendant under any of the “few specifically established and

well-delineated exceptions” to the “basic constitutional rule in this area

that ‘searches conducted outside the judicial process, without prior approval

by judge or magistrate, are per sé unreasonable under the Fourth Amend-

ment’” (Coolidge v. New Hampshire, supra, 403 U.S. 443, 454-455 [29

LEd.2d 564, 576), quoting Katz v. United States, supra, 389 U.S. 347,

357 [19 L.Ed.2d 576, 585])," other than the “incident to lawful arrest”

exception discussed earlier in this opinion.

"Indeed it is clear that the factual situation in the instant case does not involve

the search for contraband in an automobile as in Carroll v. United States (1925)

267 U.S. 132, 153-159 [69 L.Ed. 543, 551-554, 45 S.Ct. 280] or Chambers v.

Maroney (1959) 399 U.S. 42 [26 L.Ed.2d 419, 90 S.Ct. 1975]; or involve the hot

pursuit of a fleeing felon as in Warden v. Hayden (1966) 387 U.S. 294, 298-300

(18 L.Ed.2d 782, 787-788, 87 S.Ct. 1642]; or the need to stop and frisk for weapons

win Terry v. Ohio (1967) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868]. Our

esteemed colleague in dissent urges a theory, not presented by the People, that a

warrantless, unconsented to seizure of blood not incident to an arrest may be upheld

under United States Supreme Court decisions on the basis of an “emergency excep-

tion” because the alcohol dissipates rapidly from the blood thereby rapidly reducing

the degree of intoxication. Schmerber itself, answers this contention. Since the intoxi-

cated person is of necessity present when the blood is seized, there are ordinarily no

exigent circumstances to prevent hig arrest. Schmerber recognizes that once the

suspect is arrested, a seizure incident thereto may be properly conducted without a

warrant, since the rapid dissipation of the alcohol would make the delay involved in

obtaining a search warrant unnecessary and unjustifiable. However, the rapid dissi-

pation of the alcohol in the blood would in no way create an “emergency” rendering

ee since the person containing the alcohol is not fleeing nor otherwise

unavailable.

The following cases have been brought to our attention: People v. Pack (1962)

199 Cal.App.2d 857 [19 Cal.Rptr. 186]; People v. Huber (1965) 232 Cal.App.2d

663 [43 Cal.Rptr. 65); People v. Bustos (1966) 247 Cal.App.2d 422 [55 Cal.Rptr.

003); McDonald v. Justice Court (1967) 249 Cal.App.2d (S8 Cal.Rptr. 29);

pple v. Glass (1968) 266 Cal.App.2d 222 [71 Cal.Rptr. 858]. None of these cases,

s exception of Huber, were relied upon or even cited by the People. The

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xiii

porte v. SUPERIOR CouRT

(C34 757; —— Cal. Retr. ——, —— P.24 ——

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6 C.34 757; —— Cal Row. ——, —— P24 —

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in the absence of an arrest may be justified. (See, e.g. Vale

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eers

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evidence of his own to rebut the

People. (See Giordenello v. United States, 35

1503, 1510-1511, 78 S.Ct. 1245

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Rptr. 263]; People v. Adam,

Cal App.3d 36, 42 [82 Cal

Cal Rptr. 738).)

Court, 2

at a special hearing in the

occur in cases such as the instant one

[8

486, 489

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PEOPLE v. SUPERIOR Court

6 C.3d 757; —— Cal.Rptr. ——, —— P.24 —

It is for these reasons that I join in the judgment.

McComb, J.,

case, it it shall be binding upon them.” (Pen. Code, § 1538.5, subd. (j).)* ©

(Italics added. )

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F j ees zi 3 e 4 aes

EH vee elit

lita 8 f if Hagelin

eH aie (a

fia 1h a9 ie ee Hy : g

wii Be (ete alu

itu alle ileal if

lui ial i ii it ibis 2 ,

iH AH al fit stidie ATR

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