Carpio v. Superior Court

Opinion

KINGSLEY, J.

On January 5, 1971, a Highway Patrol officer observed petitioner driving south on Highway 101 at a speed of approximately 75 miles per hour. The officer gave chase. When petitioner was aware of the officer he pulled onto the shoulder and then, when the officer was pulling in behind him, petitioner drove back onto the highway, causing the officer to pursue him further. Eventually, petitioner stopped and the officer interrogated him. Petitioner possessed only an expired temporary driver’s license. The officer wrote a citation for the traffic violation and, in the interim, radioed for a warrant check. Petitioner volunteered that he had an unpaid traffic ticket in Imperial County. After a 40-minute delay, the officer was advised that an Imperial County warrant was outstanding for petitioner’s arrest. The officer took petitioner to the jail in Santa Barbara, where he was put through the routine booking process during which he was required to put his personal property on the desk. Included in the property was a closed cigarette package. The booking officer, without petitioner’s consent, opened the package and found two marijuana cigarettes. Petitioner was then arrested for a violation of section 11530 of the Health and Safety Code. Petitioner’s car was then searched; disclosing additional contraband.

Petitioner’s motion to dismiss the information under section 995 of the Penal Code was denied and he has sought a writ of prohibition pursuant to section 999a of that Code. We conclude that the search of defendant’s person at the police station was illegal and, therefore, that the contraband there found and thereafter found in his car was illegally seized. Since the present prosecution rests on that evidence, it follows that the 995 motion should have been granted.

I

On the record before us, we cannot say that the magistrate erred in regarding the 40-minute delay incident to the warrant check as not unrea

[793]

sonable or illegal. Unlike

Willett

v.

Superior Court