People v. Andrews

¶1I concur that the judgments as to each defendant must be affirmed and agree with the views expressed by the majority, excepting the rationale that because the police have a right to impound a vehicle they also have the right to inventory its contents without the benefit of a search warrant.

¶2The search of the vehicle’s trunk in the instant case was a reasonable search not because the police had a right to impound the vehicle, but because the search was closely related to the reason defendants were arrested and the reason the car had been impounded. (Cooper v. California, 386 U.S. 58, 61 [17 L.Ed.2d 730, 733, 87 S.Ct. 788].) As observed in Cooperthe custody of the vehicle must be related to the charge for which the person in charge or in control of the vehicle was arrested. (P. 61; see Veh. Code, § 22651, subd. (h).) Here, the search in question was similar to that held to be reasonable in People v. Webb, 66 Cal.2d 107 [56 Cal.Rptr. 902, 424 P.2d 342, 19 A.L.R.3d 708]. There, as here, the officers lawfully began to search the vehicle at the scene of the arrest and thereafter continued the search of the vehicle after it had been towed to a police parking lot. In Webbthe subsequent search was deemed to be a continuation of the search lawfully begun at the time and place of the arrest and the entire search process was held to be incident to that arrest. (Pp. 124-126.)

¶3In Cooperit was particularly observed that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case. (386 U.S. at p. 59 [17 L.Ed.2d at p. 732].) The instant search is a reasonable one under the facts and circumstances of this case. Its reasonableness does not depend on the rationale that lawful arrest and the right to take a vehicle into custody equals the right to take an inventory and, therefore, equals the right to search. (See Virgil v. Superior Court, 268 Cal.App.2d 127,131-132 [73 Cal.Rptr. 793]; People v. Upton, 257 Cal.App.2d 677, 682 [65 Cal.Rptr. 103].) Under the broad principle announced by the majority the contents of any automobile legally impounded may be inventoried. Thus under this rationale an inventory of the contents of an automobile may be made where the automobile was left standing upon a highway in such a position as to obstruct the normal movement of traffic, such as a car parked in a “towaway zone” (see Veh. Code, § 22651, subd. (b)), or where the vehicle could not be removed be*440cause the person in charge of it was unable to provide for its custody or removal by reason of physical injuries or illness. (See Veh. Code, § 22651, subd. (g).)

¶4I am not persuaded that merely bécause the police have a right to impound a vehicle they have a right to inventory its contents for their own protection. As the California Supreme Court observed in People v. Burke, 61 Cal.2d 575, 580 [39 Cal.Rptr. 531, 394 P.2d 67], neither Vehicle Code section 22651 authorizing the removal by the police authorities of vehicles from the highway under certain circumstances, nor Vehicle Code section 22850 which allows them to store such a vehicle in a garage, or place of safety, purport to authorize the making of a search. I am not unmindful that in People v. Roth, 261 Cal.App.2d 430, 435-436 [68 Cal.Rptr. 49],1 it is stated that when the police legally impound a vehicle they become involuntary bailees responsible for the vehicle and its contents and therefore entitled to inventory the contents in order to provide safe storage for them until the owner is able to take charge.

¶5In Copelin v. Berlin Dye Works etc. Co., 168 Cal. 715, 718 [144 P. 961, it was held that a clothes cleaning company was not an involuntary or a gratuitous bailee of jewelry left in the pockets of clothes delivered to it for cleaning and that a search of the clothes was not a part of the contract between the company and the customer. The rationale of Copelinappears to be applicable here. The primary and sole purpose of the statutes authorizing the removal of a vehicle from the public highways is the removal of the vehicle itself so that it will not obstruct the highway or become a nuisance thereon. The contents of the vehicle are incidental to the removal of the vehicle. In any event, the police authorities are, at best, gratuitous bailees of the vehicle and its contents with a duty of exercising only slight care for their preservation. (Civ. Code, §§ 1845, 1846.) A gratuitous bailee is responsible only for loss which results from gross negligence, during his possession, and not at all if the loss occurred without his fault. (Roselip v. Raisch, 73 Cal.App.2d 125, 133 [166 P.2d 340]; Davis v. National Lumber Co., 22 Cal.App. Ill, 113 [133 P. 509].)

¶6I am also not unmindful of the holding in People v. Gonzales, 182 Cal. App.2d 276, 279 [5 Cal.Rptr. 920], and People v. Posada, 198 Cal.App. 2d 535, 539 [17 Cal.Rptr. 858],2 that a hospital becomes an involuntary bailee of the property carried on the person of an unconscious patient brought to it under conditions of emergency entitling the hospital to take such property from the patient’s clothing, to make an inventory of such property, and to put it in a safe place for preservation. The rationale of *441these cases is that such conduct constitutes a normal and reasonable act for the protection of the hospital and the patient in the light of the circumstances.

¶7It must be observed here that Coopermakes clear that the question in' each instance is whether the search was reasonable under all the circumstances. That question is whether the search was reasonable under the Fourth Amendment, and not whether the search was authorized by state law. (Coopery. California, supra,386 U.S. 58, 61 [17.L.Ed.2d 730, 733].) Under the rationale of Cooper, a search of an impounded vehicle without a warrant is reasonable when the custody of the vehicle is related to the charge for which the driver or person in control of the vehicle was arrested. Accordingly, where the vehicle has been impounded following an arrest of the person driving or in control of the vehicle for an offense not related to the custody of the car, or where the vehicle has been impounded because the authorities had a right to remove it from the highway but no arrest of the driver or the person in control of the vehicle has been made, a search of the vehicle without a warrant is unreasonable.

¶8The conclusion I have reached is buttressed, I believe by the recent decision in Chimel v. California, 395 U.S. 752 [23. L.Ed.2d 685, 89 S.Ct. 2034]. There, the United States Supreme Court held that a warrantless search, even incident to a lawful arrest, must be confined to an area within the immediate control of the accused. (At pp. 763-764 [23 L.Ed.2d at pp. 694-695].) The court observed, at page 761, that Fourth Amendment rights áre not mere formalities. Rather, they serve the salutary function of interposing an objective mind between police and criminal. The court concluded by observing that a warrantless search is justified only where exigencies of the situátion make such course imperative. (At p. 761 [23 L.Ed.2d at p. 692].)

¶9The majority attempts to show the Chimeldictates inapposite by observing that in a footnote (fn. 9, at p. 764 [23 L.Ed.2d at p. 694]) the Supreme Court held their decision to be inapplicable to automobiles. However, it is appropriate to note that such exception purported to apply where “assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants ‘where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction ....’” Thus, the circumstances under which the majority’s opinion, as I read it, allows for warrantless search, are not those within the exception noted in the Chimelfootnote. Taken to its logical conclusion, the majority opinion would allow the warrantless search which they have labeled “inventory” even where there was no probable cause or any possibility of removal of the vehicle from the jurisdiction. As I read Chimel, such a search is proscribed.

¶10The majority seems to depart from our earlier decision of People v. *442Upton, supra,257 Cal.App.2d 677, 682, where we held that a search without a warrant was unjustified merely because the car wa.s impounded pursuant to Vehicle Code sections 22650 and 22651, Although we found the search in Uptonto be valid because based on probable cause, still the proscription mentioned directly above should, I feel, be followed. As announced in People v. Burke, supra,61 Cal.2d 575, 580, Vehicle Code sections 22651, 22650, and 22850, although authorizing impounding of a vehicle, do not warrant a search without a search warrant. This was and still is the applicable California rule.3

¶11Concluding, it seems to me that the majority would have the court sacrifice a constitutional right to a mere semantic distinction. Where an officer is “inventorying” rather than “searching,” they suggest regular Fourth Amendment prohibitions are not applicable. This distinction appears to me to be tenuous. Label it what you will, in any event the officer is “searching,” i.e., looking and taking note without a warrant. It seems to me that in balancing the Fourth Amendment rights against the right of the police to protect themselves against claimed conversion, the protection of constitutional rights must take precedence. This seems particularly true when one considers that the police could accomplish both simply by locking the vehicle.

¶12Appellants’ petition for a hearing by the Supreme Court was denied June 5,1970. Peters, J., was of the opinion that the petition should be granted.