People v. Gomez

Opinion

THOMPSON, J.

This is a People’s appeal from an order dismissing an information charging respondent with possession of secobarbital entered after respondent’s motion to suppress evidence of the contraband was granted. We reverse the order.

At 12:11 a.m., on April 30, 1971, respondent was arrested for misdemeanor drunk driving in violation of Vehicle Code section 23102. The arresting officer was of the opinion that respondent was driving his car while intoxicated by alcoholic beverages or a combination of alcoholic

[930]

beverages and drugs. Respondent concedes that the arrest was legal. Sometime “after midnight," respondent was transported to the Monterey Park police station by another officer. Immediately upon being booked at the jail in Monterey Park, respondent was searched. That search disclosed, in his pocket, the contraband which is the basis of the charge against respondent. On a motion pursuant to Penal Code section 1538.5, the trial court suppressed the evidence of contraband “on the law” holding that it was the product of an illegal search. It then dismissed the charge against respondent.

We conclude that the trial court erred in suppressing the evidence. While “in the typical traffic violation case . . . the ‘circumstances justifying the arrest’ ... do not also furnish probable cause to search the interior of the car”

(People

v.

Superior Court

[Kiefer] 3 Cal.3d 807, 814 [91 Cal.Rptr. 729, 478 P.2d 449]) or the person of the driver

(People

v.

Superior Court [Simon]

7 Cal.3d 186, 202 [101 Cal.Rptr. 837, 496 P.2d 1205]), the rule is different in the case of a suspect legally arrested for driving under the influence of alcohol or other drug. The suspect may, under those circumstances, be searched “for such substances" incident to the arrest.