People v. Superior Court

California Court of Appeal Dec 21, 1971 No. Crim. 39059Published

Before: Lillie

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Holding. A warrantless search of a defendant's person incident to a lawful arrest for public intoxication is reasonable and legal when the officer has probable cause to believe the intoxication is caused by drugs rather than alcohol.

Issues

Whether a warrantless search of a person arrested for public intoxication is lawful when the officer suspects the intoxication is drug-induced due to the absence of an alcohol odor.

Disposition. Petition for writ of mandate granted.

Quotations verified verbatim against the opinion

“We conclude, therefore, that as a matter of law the search of defendant’s person was legal as a search reasonable in scope and incident to a lawful arrest.”

“no constitutional inhibition compels an officer who has arrested one in a public place who obviously is under the influence, to ignore the always present possibility that the impairment may be due to the action of drugs.”

[229]

Opinion

LILLIE, J.

An information charged defendant with unlawful possession of restricted dangerous drugs (§ 11910, Health & Saf. Code) and alleged a prior felony conviction (§ 11910, Health & Saf. Code). Defendant moved to suppress the evidence under section 1538.5, Penal Code; the matter was submitted on the transcript of the prehminary hearing and after further testimony of Officer First and defendant the motion was granted. Thereafter the People filed petition for writ of mandate (§ 1538.5, subd. (o), Pen. Code) and this court issued the alternative writ. After a full and fair consideration of the merits we grant the petition for writ of mandate and order issuance of the peremptory writ.

Around 11:25 p.m. on Sunday, May 8, 1971, Officer First was patrolling on Pacific Coast Highway when he observed defendant and a woman, both of whom were on the sidewalk in front of the “Little Dickens Bar.” His attention was attracted to them because the woman appeared to be “very intoxicated” and was falling against a parked automobile. Officer First’s partner arrested the woman for being intoxicated in a public place. Defendant, too, appeared to be intoxicated and when Officer First approached him, he observed that his speech was thick and slurred, his coordination was poor and he had difficulty standing up. The officer concluded defendant was intoxicated and asked him to submit to a field balance and coordination test; defendant was unable to complete any phase of the test without assistance. Officer First could detect no odor of alcohol on defendant although he appeared to be very intoxicated and unable to care for himself; he placed him under arrest for being intoxicated in a public place under section 647, subdivision (f), Penal Code,

and intended to book him therefor.

The officer then searched defendant’s person and recovered from the pocket of his coat 57 capsules of seconal and 15 capsules of benzedrine. At the station a breathalyzer test was given to defendant, the results of which are not known.

Defendant testified he had consumed two or three beers during a 30-

People v. Superior Court

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LILLIE, J.

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