
    Appellate Department, Superior Court, Los Angeles
    [Crim. A. No. 16692.
    May 25, 1979.]
    THE PEOPLE, Plaintiff and Respondent, v. CARLOS R. SOBERANES, Defendant and Appellant. THE PEOPLE, Plaintiff and Appellant, v. BRUCE LYN COOK, Defendant and Respondent.
    [Crim. A. No. 16852.
    May 25, 1979.]
    
      Counsel
    John A. Vander Lans, City Prosecutor, Gary J. Ferrari and Gerry L. Ensley, Deputy City Prosecutors, for Plaintiff and Appellant.
    Susan L. Wolk for Defendant and Appellant.
    
      Burt Pines, City Attorney, Rand Schrader and Jane Smith, Deputy City Attorneys, for Plaintiff and Respondent.
    Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, James E. Piper and Stephen F. Moeller, Deputy Public Defenders, for Defendant and Respondent.
   Opinion

DOWDS, J.

In each of these cases the defendant was subjected to a body search after being found arguably in possession of less than one ounce of marijuana. In each case a motion was made to suppress the evidence discovered as a result of such search. In People v. Soberanes the motion was denied and defendant appeals. In People v. Cook the motion was granted and the People appeal. We uphold each search, affirm the order denying the motion to suppress in Soberanes and reverse the order granting the motion to suppress in Cook.

Arrestees who are to be incarcerated may be searched to prevent the introduction of weapons and contraband into the jail facility, but when the arrest is to be disposed of by a citation, a search cannot be justified on that basis. (People v. Longwill (1975) 14 Cal.3d 943, 950-952 [123 Cal.Rptr. 297, 538 P.2d 753].) Health and Safety Code section 11357, subdivision (b) provides that a person arrested for possession of not more than one ounce of marijuana, unless he demands to be taken before a magistrate, shall be given a citation and shall not be booked. The search cannot be justified as a booking search.

Other bases for a search incident to an arrest are summarized in People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 812-813 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559] as follows: “It is now settled that as an incident to a lawful arrest, a warrantless search limited both as to time (Preston v. United States (1964) 376 U.S. 364, 367-368 [11 L.Ed.2d 777, 780-781, 84 S.Ct. 881]) and place (Chimel v. California (1969) 395 U.S. 752, 762-763 [23 L.Ed.2d 685, 693-694, 89 S.Ct. 2034]) may be made (1) for instrumentalities used to commit the crime, the fruits of that crime, and other evidence thereof which will aid in the apprehension or conviction of the criminal; (2) for articles the possession of which is itself unlawful, such as contraband or goods known to be stolen; and (3) for weapons which can be used to assault the arresting officer or to effect an escape. (See generally Warden v. Hayden (1967) 387 U.S. 294, 300-310 [18 L.Ed.2d 782, 788-794, 87 S.Ct. 1642].)”

Not every person undergoing arrest may be searched for weapons. “[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” (Terry v. Ohio (1968) 392 U.S. 1, 27 [20 L.Ed.2d 889, 909, 88 S.Ct. 1868].) There is no indication in the instant cases that the arresting officers harbored any such belief or that it was reasonable for them to do so. The searches cannot be justified as a search for weapons.

The People contend, however, that the search is justified either as a search for evidence of the crime or for contraband. “[T]o justify ... a search [of a person for contraband] there must ... be independent probable cause to believe that contraband is in fact secreted on his person.” (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 202 [101 Cal.Rptr. 837, 496 P.2d 1205].) In the Cook case, the defendant was walking on the ground floor of the Long Beach Arena at the time of a concert holding in his hand what appeared to be a partially smoked marijuana cigarette approximately one-half inch in length. He was observed asking his companions for a match, from which it might reasonably be inferred that he intended to smoke the remainder of the cigarette. Considering the normal duration of a concert, it was reasonable for the police officer to believe that defendant would possess on his person additional marijuana for smoking after the one-half inch cigarette was consumed. The search of Cook was justified as a search for contraband.

On the other hand, Soberanes was a passenger in the right rear seat of an automobile. A small envelope apparently containing marijuana was discovered in the middle of the back seat of the vehicle. Further search involved removing the right rear ashtray and a handrolled cigarette was found underneath such ashtray. An odor of marijuana had been noted coming from the automobile. While Soberanes might have been secreting contraband on his person, no facts were known to the officer which reasonably would give him probable cause to believe so. If in fact the marijuana found in the back seat of the automobile belonged to defendant, it would appear that he was keeping his reserve supply in the manila envelope rather than upon his person. The search of Soberanes cannot be justified as a search for contraband.

Finally, we must determine whether the search of Soberanes is justified as one “for instrumentalities used to commit the crime, the fruits of that crime, and other evidence thereof which will aid in the apprehension or conviction of the criminal. . . .” (People v. Superior Court (Kiefer), supra, 3 Cal.3d at p. 812.) It is obvious that the crime justifying the search must be one of such a nature that instrumentalities, fruits or evidence thereof may exist." Thus this justification may not be used for a search incident to an ordinary traffic violation (People v. Superior Court (Simon), supra, 7 Cal.3d 186), breach of an ordinance against having open campfires (People v. Brisendine (1975) 13 Cal.3d 528 [119 Cal.Rptr. 315, 531 P.2d 1099]) or for public intoxication by liquor (People v. Longwill (1975) 14 Cal.3d 943 [123 Cal.Rptr. 297, 538 P.2d 753]). On the other hand, a search for contraband or evidence or instrumentalities of the crime was upheld in People v. Knutson (1976) 60 Cal.App.3d 856 [131 Cal.Rptr. 846] in Tespect of one arrested on probable cause for being under the influence of a controlled drug. The Knutson court distinguished the cases involving noninstrumentality crimes as follows (60 Cal.App.3d at pp. 866-867): “. . . Longwill dealt only with the first concern of [Penal Code] section 647, subdivision (f), public intoxication. In such a case it may not reasonably be inferred that a search will disclose ‘contraband,’ or ‘evidence’ of the offense, or its ‘fruits,’ or the ‘instrumentalities’ used in its commission. Enlightened reason demands, with respect to searches, that such a subject be treated the same as the ordinary ‘traffic’ violator of People v. Superior Court (Simon), supra, 7 Cal.3d 186, or the ‘illegal campfire’ offender of People v. Brisendine, supra, 13 Cal.3d 528. This Longwill did.

“Different considerations attended the arrest in the case at bench. From the facts apparent to the officer he had probable cause to believe that Knutson possessed ‘contraband,’ ‘evidence’ of his offense, and the ‘instrumentalities’ of its commission. (See People v. Blatt, supra, 23 Cal.App.3d 148, 152 [99 Cal.Rptr. 855]; People v. Superior Court (Johnson), 22 Cal.App.3d 227, 230-231 [99 Cal.Rptr. 338]; People v. Munsey, 18 Cal.App.3d 440, 447-448 [95 Cal.Rptr. 811]; People v. Woods, 139 Cal.App.2d 515, 524-525 [293 P.2d 901] [cert. den., 352 U.S. 1006 (1 L.Ed.2d 550, 77 S.Ct. 566)].) Without a search there existed a probability that the substancé would be disposed of in some manner (see People v. Brown, 14 Cal.App.3d 507, 510-511 [92 Cal.Rptr. 473]), or worse, that the unfortunate possessor, in the ‘high’ state he had brought upon himself, might ingest the drugs remaining upon his person. And unlike the usual person arrested for public intoxication there was far less probability that Knutson would be released without jail or other incarceration.

“We find nothing in Longwill, or elsewhere in the law, which indicates that one arrested on probable cause to believe him to .be under the influence of a controlled proscribed drug, under the conditions of Penal Code section 647, subdivision (f), may not be subjected to a search as defined by People v. Superior Court (Kiefer), supra, 3 Cal.3d 807, 812-813.” (Fn. omitted.) It is true that the investigation of Soberanes related to possession of marijuana, not public intoxication. Possession of additional marijuana or implements for smoking marijuana would have been relevant evidence that Soberanes was in possession of the marijuana found in the car and was not merely a passenger in a vehicle containing items possessed by others. A contention can be made, however, that the crime proscribed by Health and Safety Code section 11357 subdivision (b), possession of not more than one ounce of marijuana, was complete when the packet containing less than an ounce was found and that there was no more evidence to search for. As noted above, however, the presence of other contraband or implements for the use of it would “aid in the . . . conviction of the criminal.” (People v. Superior Court (Kiefer), supra, 3 Cal.3d at p. 812.) Moreover, we have grave doubts that subdivision (b) of Health and Safety Code section 11357 (possession of not more than one ounce of marijuana) should be considered a separate crime from subdivision (c) of that section (possession of more than one ounce). The evil aimed at is the possession of marijuana; the two subdivisions provide for different punishments and treatment of offenders based upon the quantity involved. Perhaps, though, this is a bootless inquiry. The Fourth Amendment and California Constitution, article I, section 13 only prohibit unreasonable searches. We do not think it unreasonable or an undue invasion of personal liberty for one reasonably believed to be in possession of marijuana to be subjected to a search to determine whether the quantity he possesses is less than one ounce or a larger quantity.

Cook’s contention that the trial court’s determination must be upheld as supported by substantial evidence is unavailing. The evidence as to the officer’s expertise in recognizing marijuana and Cook’s holding the cigarette in his hand was uncontradicted. The application of the uncontested facts to the constitutional standard is a questibn of law which we must resolve. (People v. Manning (1973) 33 Cal.App.3d 586, 602 [109 Cal.Rptr. 531].)

The order granting defendant’s motion to suppress evidence in People v. Cook is reversed. The order denying defendant’s motion in People v. Soberanes is affirmed.

Cole, P. J., concurred.

SAETA, J.

I dissent. In my opinion neither search was constitutionally justified.

Both defendants were arrested for possession of marijuana, Health and Safety Code sectionl 1357. There were no arrest or search warrants. Their body searches were justifiable as incidents to their arrests only if (1) they were to be jailed and the search was to prevent weapons or contraband from being introduced into the jail; (2) they had concealed weapons on their persons which might be used to assault the arresting officers or useful to effect an escape; (3) there was probable cause to believe that they had instrumentalities used to commit the crime for which they were arrested, or fruits of that crime, or other evidence which would aid in their conviction; or (4) for contraband. The above rules are set forth in People v. Superior Court (Simon) (1972) 7 Cal.3d 186 at pages 201-202 [101 Cal.Rptr. 837, 496 P.2d 1205] as follows:

“We take as the point of departure our Kiefer decision (People v. Superior Court (1970) supra, 3 Cal.3d 807), in which we reiterated certain basic principles also bearing on the case at hand. Thus, Tt is now settled that as an incident to a lawful arrest, a warrantless search limited both as to time [citation] and place [citation] may be made (1) for instrumentalities used to commit the crime, the fruits of that crime, and other evidence thereof which will aid in the apprehension or conviction of the criminal; (2) for articles the possession of which is itself unlawful, such as contraband or goods known to be stolen; and (3) for weapons which can be used to assault the arresting officer or to effect an escape.’ (Id., at pp. 812-813.) A search may be incident to a lawful arrest, however, and yet be unlawful because it was ‘unreasonable in scope’: that scope must be ‘strictly tied to and justified by’ the particular circumstances which initially permitted the search. (Id. at pp. 813-814.)

“In applying these rules, the first two categories listed above present little difficulty. In the case of an ordinary traffic offense there are neither ‘instrumentalities’ used to commit the crime nor ‘fruits’ or ‘evidence’ thereof, so that a search for such items as an incident to the driver’s arrest is unreasonable per se, whether conducted in his vehicle (id. at p. 813) or on his person.12

“With respect to contraband, we said in Kiefer that ‘in the typical traffic violation case . . . the “circumstances justifying the arrest”—e.g., speeding, failing to stop, illegal turn, or defective lights—do not also furnish probable cause to search the interior of the car.’ (Id. at p. 814.) If the arresting officer ‘cannot reasonably expect to discover either instrumentalities or fruits or seizable evidence of the offense; still less does the arrest give him reasonable grounds to believe, without more, that the vehicle contains contraband. ... To justify that search, there must be independent probable cause to believe the vehicle does in fact contain contraband.’ (Id. at pp. 814-815.) This reasoning applies with equal force to a search of the driver, and to justify such a search there must likewise be independent probable cause to believe that contraband is in fact secreted on his person.” Simon and its predecessor, People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559], involved arrests for traffic violations. Subsequent Supreme Court cases have extended the above rules to ordinances involving public campfires (People v. Brisendine (1975) 13 Cal.3d 528 [119 Cal.Rptr. 315, 531 P.2d 1099]) and public intoxication under Penal Code section 647, subdivision (f); People v. Longwill (1975) supra, 14 Cal.3d 943 and People v. Maher (1976) supra, 17 Cal.3d 196). The crux of these decisions is that a mere arrest for a crime where the defendant is not likely to be jailed does not of itself give probable cause for a body search for contraband, instrumentalities of crime, fruits of crime or other evidence useful to obtain a conviction and that such a search must rest on independent evidence of probable cause to suspect the defendant of possessing such matter.

Cook and Soberanes, the defendants involved in our cases, were both arrested for violating Health and Safety Code section 11357 which provides, in subdivision (b) for citation release rather than jailing after arrest. Thus these cases fall squarely within the rationale of Kiefer, et al. People v. Knutson (1976) 60 Cal.App.3d 856 [131 Cal.Rptr. 846], cited by the majority, appears to establish a contrary line of authority to the Kiefer Supreme Court line. Knutson relies on several cases where the justification for the search was the imminent or actual jailing of the defendant, e.g., People v. Martin (1972) 23 Cal.App.3d 444, 447 [100 Cal.Rptr. 272] (arrest for possession of a kilo of marijuana); People v. Williams (1971) 17 Cal.App.3d 275, 278-279 [94 Cal.Rptr. 735] (auto theft); People v. Monreal (1968) 264 Cal.App.2d 263, 265 [70 Cal.Rptr. 256] (possession of marijuana prior to the amendment of the law requiring a citation release rather than jailing); People v. Woods (1956) 139 Cal.App.2d 515, 524-525 [293 P.2d 901] (where the search was made in jail by a jail doctor); and People v. Munsey (1971) 18 Cal.App.3d 440 [95 Cal.Rptr. 811] (Veh. Code, § 23105 arrest where the Court of Appeal specifically states that the search rationale is based on the jailing of the defendant). Further, the court in Knutson interprets an arrest under Penal Code section 647, subdivision (f) for drug intoxication as requiring jailing rather than release under Penal Code section 849. As has been seen, Health and Safety Code section 11357, subdivision (b) explicitly requires release and therefore Knutson would not seem to control the result in our cases. At a minimum, Knutson establishes an exception to the Kiefer line of authority in a situation where the defendant has been arrested for public intoxication on a drug other than alcohol where the officer has determined he will jail the defendant rather than release him. Such an exception is beyond the facts of our cases.

The search not having been justifiable as a “pre-jailing” search, the record must show independent probable cause to believe that the defendants possessed additional contraband on their persons. No such evidence appears to have been submitted to the magistrate. I do not believe it is reasonable to infer from the fact that Cook had a one-half inch marijuana cigarette that he had other contraband, instrumentalities, fruits or evidence on his person. Similarly, the cigaretté and envelope found in the automobile Soberanes occupied did not furnish probable cause to suspect that he had additional contraband on his person. None of the officers articulated any reasonable suspicion that the defendants had additional matter concealed to justify their warrantless body searches. Thus I can not agree that the officers were entitled to look for more marijuana to see if the one-ounce limitation applied. In my opinion, the fact that there is a one-ounce limitation in the law guiding the punishment for possession of marijuana does not of itself authorize an otherwise unreasonable search.

I would affirm the ruling in Cook and reverse that in Soberanes. 
      
       In the Cook case, defendant was arrested in an auditorium holding what appeared to be a marijuana cigarette in his hand, asking those around him for a match. In the Soberanes case, a one and one-half inch by two-inch manila envelope containing a green, leafy substance and a handrolled cigarette containing a substance resembling marijuana were found in an automobile in which defendant was a passenger.
     
      
       In his opening brief, Soberanes conceded the police officer had probable cause to arrest him for violating Health and Safety Code section 11357, subdivision (b).
     
      
       footnote 12 of Simon refers to the exception made in driving under the influence of alcohol and drug cases for search of autos and drivers for corroborating evidence. This exception to the general rule has not been expanded to public intoxication arrests, People v. Longwill (1975) 14 Cal.3d 943 [123 Cal.Rptr. 297, 538 P.2d 753] and People v. Maher (1976) 17 Cal.3d 196 [130 Cal.Rptr. 508, 550 P.2d 1044], and I see no reason to expand this exception to include arrests for possession of marijuana under Health and Safety Code section 11357.
     
      
      
         Knutson also relies on two cases called into question by People v. Longwill, supra, 14 Cal.3d 943 in footnote 2 at page 950; People v. Superior Court (Johnson) (1971) 22 Cal.App.3d 227 [99 Cal.Rptr. 338] and People v. Blatt (1972) 23 Cal.App.3d 148 [99 Cal.Rptr. 855].
     