People v. Dennis

Opinion

RINGER, J.

*

Following denial of his motion to suppress, appellant pleaded guilty to possessing cocaine for sale and was sentenced to prison for the low term of two years. He appeals from the judgment contending that the contraband was unlawfully seized during an “accelerated booking search” condemned in

People

v.

Laiwa

(1983) 34 Cal.3d 711 [195 Cal.Rptr. 503, 669 P.2d 1278], as a violation of California Constitution, article I, section 13. However, this post-Proposition 8 case is governed by federal constitutional law

(In re Lance W.

(1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744]). Finding no violation of federal constitutional law in the manner the contraband was acquired, we accordingly affirm the judgment.

[289]

The Attorney General agrees that the testimony taken upon the suppression motion is accurately stated in appellant’s brief. We concur and incorporate appellant’s statement of facts with one footnote addition as follows: “At about 5:45 p.m. on September 25, 1983, Officer Edward Tolley was on patrol in the area of the 1400 block of Chestnut in the City of Long Beach. He and his partner Officer Steven Nottingham were in uniform in their police vehicle. As they were driving, Officer Tolley observed some unusual activity which attracted his attention. According to the officer, appellant was staggering while he was walking in the roadway and was having difficulty maintaining his balance. Appellant was observed walking from the corner of 14th and Cedar until he entered the alley west of Cedar and north of 14th. It was probably a distance of 100 to 150 feet.

“Based upon his training and experience, Officer Tolley formed the opinion appellant might have been under the influence of some type of substance. At the rear of 1432 Chestnut, the officers stopped appellant in a public alley to talk to him. As appellant was standing, Officer Tolley observed him to sway. When the officer came closer to him, he smelled a strong odor of alcohol emanating from appellant’s breath. Officer Tolley also noticed appellant’s eyes were bloodshot and watery. His speech was slurred when he spoke. At this point, it was the officer’s intention to arrest appellant for being under the influence of alcohol or drugs. As Officer Tolley began to arrest him for being under the influence of alcohol in a public place and unable to care for his safety or the safety of others in violation of section 647(f) of the Penal Code,[1] he conducted a pat-down search of appellant.