People v. Yniguez

[671]

Opinion

THOMPSON, J.

This is a People’s appeal from a dismissal of a criminal action after the granting of a motion to suppress evidence pursuant to Penal Code section 1538.5. We reverse the judgment of dismissal.

At about 2:15 a.m., on April 15, 1970, appellant was lawfully arrested for driving an automobile while under the influence of alcohol in violation of Vehicle Code section 23102. He was unsteady on his feet, his eyelids were “droopy” and his eyes bloodshot. He had the odor of alcohol on his breath. Appellant was transported to the Los Angeles County jail where a breathalyzer test was administered. The test disclosed a blood alcohol content of .19 percent. Appellant was delivered to the custody of jail personnel to be incarcerated. Preliminary to incarceration, he was required to empty the contents of his pockets. Appellant did so, revealing a “tin foil object” in which there were four amphetamine tablets.

Appellant was charged with possession of a restricted dangerous drug in violation of Health and Safety Code section 11910. He moved, pursuant to Penal Code section 1538.5, to suppress evidence of the amphetamine on the ground that it had been obtained in an illegal search. The motion was granted and the charge dismissed. The appeal by the People, which brings the case at bench to this court, followed.

Issue on Appeal

Respondent concedes the validity of his arrest. The sole issue on appeal is thus the validity of the police station search which preceded respondent’s incarceration after his arrest for violation of Vehicle Code section 23102.

Validity of Search

The general rule is settled that a warrantless search, proper in scope and incident to a lawful arrest, does not violate any constitutional guarantee and that a search of a suspect conducted while he is booked for detention in jail pending release on bail is treated as incident to the arrest of the suspect.

(People

v.

Ross,