THOMPSON, J. I concur in the result and reasoning of the majority opinion. That opinion is a skillful analysis of existing precedent and its result is compelled by the more persuasive decisional law dealing with the problem here presented to us. 1
My quarrel is with much of the recent rash of appellate court opinions dealing with searches incident to arrests without a warrant covered by specific provisions of law as well as by Penal Code section 836. In my personal opinion, those decisions are both an unnecessary expenditure of already strained judicial resources and confusing to trial courts and law enforcement agencies that must govern their action by them. The judicial process would be much better served if in cases such as that considered here we followed the lead of our Supreme Court in In re Martinez, 1 Cal.3d 641 [83 Cal.Rptr. 382, 463 P.2d 734], and focused on the rationale of the exclusionary rule. By attempting to- pick fly specks out of the pepper of the law of arrest, the propriety of “booking” and the definition of “jailable offenses,” Courts of Appeal have needlessly obscured the judicable controversy before them—the determination of whether a defendant was properly found guilty after a fair trial.
While earlier decisional law sometimes expressed the concept that the Fourth Amendment guarantee against unreasonable search by its terms included protection from the consequences of the search, recent high court opinion has abandoned that rationale in favor of a concept of deterrence of conduct violating the Fourth Amendment. (In re Martinez, supra, 1 Cal.3d 641, 648.) The deterrent effect is sought by punishing society for the sins of its police agents. Thus the public is denied its interest in the conviction of those who- violate its laws where evidence establishing the violation is obtained illegally. The punishment is judicially imposed in the hope that the public will be deterred from countenancing future illegal methods of gathering evidence. It is not the purpose of the [262]exclusionary rule to permit a guilty defendant to escape punishment where to do so does not achieve the theoretical deterrent function of the rule.
In the context of cases of the type here considered, the purpose of the exclusionary rule is adequately served by the application of a much more direct and simpler test than has been used in recent Court of Appeal decisions. Where, as here, a suspect is arrested for a minor offense, the validity of a search incident to the arrest should be tested by two criteria: (1) was the arrest bona fide rather than merely a pretext for an exploratory search; and (2) was the search one reasonably designed to disclose evidence of the offense for which the suspect was arrested (People v. Yniguez, 15 Cal.App.3d 669 [93 Cal.Rptr. 444]) or in any way reasonably related to detention of the suspect (see majority opinion). If the arrest is bona fide and the search a reasonable one for evidence of the crime or in any manner reasonably related to the purpose of detention, evidence obtained in the search should be held admissible regardless of the fact that it may disclose guilt of a more serious crime than the one which prompted the arrest. The issue should be treated as one of fact.
Recent Court of Appeal decisions have unnecessarily complicated the problem by emphasizing statutory requirements governing ultimate disposition of the suspect after he is legally arrested and detained. The judicial venture through the looking glass seems to have commenced late in 1969. On November 12, 1969, the Court of Appeal of the First District filed its opinion in People v. James, 1 Cal.App.3d 645 [81 Cal.Rptr. 845]. It considered the admissibility of seconal tablets obtained in the search of a suspect stopped for speeding who could produce no driver’s license or other identification. The court held that the evidence was legally obtained stating: “[B]ecause the respondent was unable to identify himself, the police officer could lawfully arrest him in order to- take him before a magistrate as provided in Vehicle Code section 40302, subdivision (a). As the arrest was lawful a search of the respondent was also lawful.” (1 Cal.App.3d 645, 648.)
One week later, the Court of Appeal of the Fourth District filed a directly contrary opinion in People v. Dukes, 1 Cal.App.3d 913 [82 Cal. Rptr. 218]. The court dealt with the admissibility of marijuana obtained in a search of a suspect detained for the traffic offenses of following too closely and permitting an open container of alcoholic beverage in an automobile who was unable to produce a driver’s license or other evidence of identification. It held the evidence illegally obtained stating: “That the officers were warranted in taking [the suspect] into custody for the [263]traffic offenses because of their unsatisfactory identification does not expand the scope of search permissible under the Fourth Amendment to the United States Constitution. Conceding a person arrested for a jailable offense might be searched for contraband in the field (since he may be thoroughly searched when booked to prevent contraband from being introduced into the jail), the custody allowed Vehicle Code section 40302, subdivision (a), is limited to taking the arrestee before a magistrate. If the magistrate is unavailable, the officer must take the arrestee before the clerk of the magistrate or the officer in charge of the jail so he may be admitted to bail. ...” (1 Cal.App.3d 913, 916.) Having introduced the concepts of “jailable offense” and propriety of “booking,” the court concluded that the permissible scope of search in the case of a Vehicle Code arrest could not exceed a cursory pat down for weapons.
Thus James and Dukes reached opposite results on almost identical facts calling for interpretation of Vehicle Code section 40302, subdivision (a). Unfortunately, a petition for hearing by the Supreme Court was not filed in either case. More unfortunately, James and Dukes each became the progenitor of its own line of appellate court decisions.
In People v. Tennessee, 4 Cal.App.3d 788 [84 Cal.Rptr. 697], the Fifth Division of the Second District of the Court of Appeal followed the reasoning of James to validate evidence of seconal obtained in the course of booking a suspect arrested for violation of Vehicle Code section 23102 (misdemeanor drunk driving). Tennessee, however, cites neither James with which it is in accord nor Dukes to which it is contra in its rationale.
In People v. Mercurio, 10 Cal.App.3d 426 [88 Cal.Rptr. 750], the Fourth Division of the Second District of the Court of Appeal followed Dukes and invalidated evidence of marijuana found in a search incident to the arrest of a jaywalking suspect unable to produce identification and therefore detained pursuant to Vehicle Code section 40302, subdivision (a). While citing Dukes, Mercurio makes no reference to James or Tennessee.
Eighteen days after Mercurio, the Fourth Division of the Court of Appeal for the First District validated the search of a suspect detained for transportation to a magistrate because of a violation of the Vehicle Code’s proscription upon speed contests. In Morel v. Superior Court, 10 Cal.App.3d 913 [89 Cal.Rptr. 297], the court discusses the rationale justifying the search. It states that prudence dictates a thorough search by the detaining officer of a suspect to be taken before a magistrate pursuant to the Vehicle Code to insure that he is not in possession of small weapons [264]not necessarily disclosed in a pat down, to obtain security from attack and safety of the suspect while he is being transported, and to prevent disposition of contraband in the transporting vehicle. Morel expressly declines to follow Dukes but does not mention Mercurio. It cites neither James nor Tennessee which are in accord with its holding. Our Supreme Court denied hearing in both Morel and Mercurio.
The James, Tennessee, Morel approach has since been followed to validate searches incident to traffic detentions pursuant to Vehicle Code sections 40302, subdivision (a) and 40303 in Pugh v. Superior Court, 12 Cal.App.3d 1184 [91 Cal.Rptr. 168], hearing denied; People v. Brown, 14 Cal.App.3d 507 [92 Cal.Rptr. 473]; People v. Superior Court (Simon r.p.i.) *(Cal.App.) 93 Cal.Rptr. 879; and People v. Munsey, 18 Cal.App.3d 440 [95 Cal.Rptr. 811]. The Dukes, Mercurio approach has since been followed to. invalidate similar searches in People v. Superior Court (Fuller r.p.i.) 14 Cal.App.3d 935 [92 Cal.Rptr. 545]; Carpio v. Superior Court, 19 Cal.App.3d 790 [97 Cal.Rptr. 186]; and Agar v. Superior Court, 21 Cal.App.3d 24 [98 Cal.Rptr. 148].
The conflict in Court of Appeal decisions dealing with searches incident to detention and transportation to a magistrate pursuant to Vehicle Code sections 40302, subdivision (a) and 40303 proved fertile as well as hardy. It has spawned a conflict in a related area. In People v. Yniguez supra, 15 Cal.App.3d 669, we faced a contention that the Dukes, Mercurio rule was applicable to bar evidence of drugs obtained in a search of a defendant arrested for a violation of Vehicle Code section 23102. Noting that section 23102 proscribes driving while under the influence of drugs or the combined influence of drugs and alcohol as well as under the influence of alcohol alone, we held the search valid as one for evidence of the crime for which the arrest was made. We thus did not reach the choice of which of the conflicting lines of cases to follow although stating the presence of the conflict. Yniguez was followed in People v. Wilken, 20 Cal.App.3d 872 [97 Cal.Rptr. 925]. The rare appearance of consistency thus resulting is dispelled by the fact that the rationale of Yniguez and Wilken has been rejected where the crime for which the arrest is made involves intoxication other than in the course of driving an automobile. Thus the Dukes, Mercurio approach was utilized in People v. Millard, 15 Cal.App.3d 759 [93 Cal.Rptr. 402], and People v. Smith, 17 Cal.App.3d 604 [95 Cal.Rptr. 229], to invalidate the search of a person arrested for drunk in a public place. The courts there reasoned that since one arrested for that offense may, at the option of the [265]police, be released without charges being filed, a thorough search of his person is not permitted.
The total disarray of the case law governing searches such as that involved in the case at bench is significant in itself. The exclusionary rule operates to bar evidence obtained because of police misconduct. If society is to punish itself for the misconduct of its police agents, the misconduct should be clear. Case law which bars evidence obtained in situations similar to that here considered finds clear police misconduct in violation of a rule so difficult to formulate that Courts of Appeal cannot agree upon its structure, rationale, or validity. It bars evidence based upon a rale so obscure that decisional law following the rule frequently ignores discussion of a contra group of cases and is itself ignored in the development of the contrary body of law.
Unless we accept the proposition that the exclusionary rule exists as a make-work project for the appellate judiciary, the basis of Dukes, Mercurio, and the cases following them, is untenable. The intrusion upon the rights of a person arrested for a traffic offense (or public drunkenness) changes its character when the detaining officer determines to proceed by way of Vehicle Code section 40302, subdivision (a) or 40303 (or their equivalent in the area of drunk arrests). At that point, the offender is not free to leave with a citation recording the charge against him. Rather, he is detained for an extended period to be taken to a magistrate, the magistrate’s clerk, or the clerk of a jail Once that extended detention commences, no bar of evidence of an unsuspected crime will deter a search which by happenstance discloses the evidence. No police officer possessed of his faculties will be convinced by rhetoric of judges, whose exposure to danger has been strictly vicarious, that he should not search beyond a pat down if he feels the person detained by him may conceivably have a weapon in his possession. No officer who risks proper discipline for permitting the introduction of contraband into a jail, police vehicle, magistrate’s court, or other public facility will be deterred from a search designed to prevent that occurrence. The bar of evidence in situations such as that here involved thus cannot serve the deterrent purpose of the exclusionary rule. Application of the rale becomes a form of societal masochism, self-punishment of society for the sake of punishment alone.
I thus concur in the result and reasoning of the majority opinion but would go further and adopt a specific set of principles which are not only contrary to the Dukes, Mercurio doctrine but which also are directly rationalized by the purposes of the exclusionary rale.
A petition for a rehearing was denied February 29, 1972.
A hearing in the Supreme Court was granted on May 19, 1971. The final opinion of that court is reported in 7 Cal.3d 186 [101 Cal.Rptr. 837, 496 P.2d 1205].