People v. Scott

Opinion

MOSK, J.

The issue on this appeal is whether a police officer who proposes to give a private citizen a lift in his patrol car can lawfully subject him to a nonconsensual pat-down search for weapons when the individual is not under arrest and the officer has no duty to transport him and no reason to believe he is armed and dangerous. As will appear, we conclude that a search in such circumstances is an unreasonable invasion of the right of privacy.

Defendant, charged with violating former Health and Safety Code sections 11910 (possession of LSD) and 11530 (possession of marijuana), moved to suppress the evidence on the ground of illegal search and seizure. (Pen. Code, § 1538.5). The trial court granted the motion, ruling that the challenged paLdown search was unlawful and the contraband discovered thereby inadmissible. The People sought review by statutory writ of mandate. (Pen. Code, § 1538.5, subd. (o).) In People v. Superior Court (Scott) (1973) 1 Civ. 33834 (hereinafter Scott I), the Court of Appeal vacated the suppression order, holding that a pretransportation weapons search is permissible even when there has been no arrest. We denied a hearing, but directed the Reporter of Decisions not to publish the opinion in the official reports.

On remand defendant unsuccessfully renewed his motion to suppress. He then entered a plea of guilty to the charge of possessing LSD, and appealed. (Pen. Code, § 1538.5, subd. (m).) The judgment was affirmed by a different division of the Court of Appeal (hereinafter Scott //), and we granted a hearing.

In the early morning hours of December 31, 1972, California Highway Patrol Officers Schultz and Ellis observed defendant and his three-year-old son standing on the traffic island formed by the Marin City off-ramp of Highway’ 101. The officers stopped to investigate. Officer Schultz believed that both defendant and his son were urinating. Defendant walked toward the officers, saying, “Oh, hell, we are going to be busted,” and his son began to cry. Defendant appeared to be intoxicated, and could furnish no identification. He explained he was returning his son to his ex-wife in San Francisco when they were ordered out of the car in which a friend had been giving them a ride.

The officers did not arrest defendant. Instead, they volunteered to drive the pair to their destination in San Francisco. The boy was placed in the patrol car, but before defendant could enter the vehicle Officer Schultz informed him that “for our own protection” it was necessary to pat him down for weapons. The officer told defendant to raise his arms; defendant complied, neither objecting nor consenting to the search. As he lifted his arms the right pocket of his peacoat partially opened, revealing a clear plastic baggie containing green matter which appeared to the officer to be marijuana. The officer squeezed the outside of the baggie, and its contents felt pliant and crunchy. He then placed defendant under arrest for possession of marijuana. Lastly he looked inside a brown paper bag on defendant’s nearby suitcase, and found two cans of beer and a tobacco tin containing white tablets later identified as LSD.

These facts, hardly momentous, do not warrant creating a new rule or an exception to well-accepted rules of constitutional construction, as we shall conclude, nor do they justify elevation to the cause celebre perceived by the dissent.

I

The People contend the procedural histoiy of the case precludes our inquiry into the legality of the pat-down search. It is argued that because this issue was previously decided by the Court of Appeal in Scott I, the doctrine of law of the case bars us from readdressing the matter. In the circumstances shown, however, the rule is inoperative.

In People v. Shuey (1975) 13 Cal.3d 835, 840-848 [120 Cal.Rptr. 83, 533 P.2d 211], we reviewed the doctrine of law of the case and the criteria necessary for its application. In essence the doctrine provides that when an appellate court has rendered a decision and states in its opinion a rule of law necessary to the decision, that rule is to be followed in all subsequent proceedings in the same action.¹ The People emphasize that in Scott I the pat-down search of defendant was held to be lawful, the determination was necessary to the decision, and the decision was by written opinion.

However, as we also reiterated in Shuey, courts should keep in mind that “the doctrine of the law of the case, which is merely a rule of procedure and does not go to the power of the court, has been recognized as being harsh, and it will not be adhered to where its application will result in an unjust decision.” (Id, at p. 845, quoting People v. Medina (1972) supra, 6 Cal.3d 484, 492; see also People v. Durbin (1966) 64 Cal.2d 474, 477 [50 Cal.Rptr. 657, 413 P.2d 433]; United Dredging Co. v. Industrial Acc. Com. (1930) 208 Cal. 705, 712 [284 P.2d 922).) In order to preserve the utility of the doctrine while maintaining its flexibility when the interests of justice so demand, we articulated a general guideline in Shuey (at p. 846 of 13 Cal.3d): “judiciál order demands there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice before an appellate court is free to disregard the legal determination made in a prior appellate proceeding.”

Such a showing is made in the case at bar. In ruling that the pat-down of defendant was justified as a pretransportation search even though he was not under arrest, the court in Scott I relied primarily on the concurring opinion in People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 211 [101 Cal.Rptr. 837, 496 P.2d 1205], As we shall demonstrate (Part II, infra), that holding was a manifest misapplication of the Simon opinion: the search is not justifiable on the stated ground. Moreover, in People v. Brisendine (1975) 13 Cal.3d 528, 537 [119 Cal.Rptr. 315, 531 P.2d 1099], decided in the interval between Scott I and Scott II, this court adopted the position taken in the concurring opinion in Simon; the intervening decision in Brisendine must thus be considered an additional factor in assessing the applicability of the doctrine of the law of the case. (See Ryan v. Mike-Ron Corp. (1968) 259 Cal.App.2d 91, 98-99 [66 Cal.Rptr. 224].)

In its original determination the trial court found that but for the pat-down no contraband would have been discovered. Similarly, but for the misapplication of Simon the arrest predicated on the unlawful pat-down and the search incident to that arrest would have come within the purview of the exclusionary rule and the evidence obtained thereby would have been inadmissible. (People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513].) As the illegally seized material was the only evidence against defendant, the misapplication of the law resulted in the guilty plea and a conviction which otherwise would not have occurred. Under these circumstances defendant’s conviction is an example of the “substantial injustice” described in Shuey, mandating a departure from the constraints of the doctrine of the law of the case.

II

We proceed to the substantive issue of the legality of the pat-down search. The People contend that the fact of proposed transportation in a police vehicle is a special circumstance which per se justifies a pat-down search any time an individual is to be so transported. Both the People and the Court of Appeal in Scott I have relied on the concurring opinion in Simon to justify this position. The reliance is misplaced.

In Simon the defendant was arrested for a traffic violation, and the officer was required by law to transport him before a magistrate because he was unable to present evidence of his identity. (Veh. Code, § 40302, subd. (a).) Prior to placing the defendant in his patrol car, however, the officer conducted a full body search and found a soft plastic bag containing a few grams of marijuana inside the defendant’s pants pocket. We refused to set aside an order suppressing that evidence, holding that a full body search is unreasonable in ordinary traffic violation cases. (7 Cal.3d at pp. 192-211.) The Chief Justice concurred, but stated that he would have approved a limited pat-down search of the defendant for weapons because of the danger to police inherent in the process of transporting traffic arrestees. {Id., at pp. 212-215.)²

The Simon concurrence emphasized that different standards are applicable in arrest and nonarrest situations: “In Terry v. Ohio [1968] 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868], the court held that before a pat-down search in nonarrest circumstances can be made, the officer must have reason to believe he may be dealing with an armed and dangerous individual. On the other hand, in the case of a search incident to a lawful nontraffic arrest a full body search can be made of the arrestee and a search of the immediate area under his control .... [Citation.]” (Second italics added.) (7 Cal.3d at pp. 212-213.) The opinion found that the circumstances of Simon—i.e., involving both the arrest and obligatory transportation of a traffic violator—did not fit into the Terry category: “The custody of a person who is to be transported to a magistrate is different from the ‘custody’ of the Terry ‘stop and frisk’ situation, and is indeed similar to the custody of someone who is searched incident to an arrest on a criminal charge before being transported to a detention facility. It is clear that the balance between the factors involved—the safety of the police officer required by law to transport the individual detained and the relatively minor intrusion on privacy of a pat-down search—weighs in favor of permitting pat-down searches in such circumstances.” {Id., at p. 213.)

The opinion explained that the intrusion would be relatively minor because (1) the defendant’s person had been “seized”—i.e., he had been arrested—and thus his privacy had already been invaded to a significant degree, and (2) the police were required by law to give him a “forced ride to the magistrate (generally in handcuffs).” (Id, at p. 214, fn. 3.) It is in this context that the opinion concluded, “The critical factor in these or similar situations is not the greater likelihood that a person taken into custody is armed, but rather the increased likelihood of danger to the officer if in fact the person is armed.” (Italics in original.) (Id., at p. 214.)

In the case at bar, by contrast, the trial court found that defendant was not under arrest at the time of the pat-down search; the offer to give him and his son a ride to San Francisco was a voluntary act; the officer had no reason to believe he was dealing with an armed and dangerous individual; and any consent given was in submission to authority. In the absence of a warrant, an arrest, or a consent to search, a heavy burden to show proper justification rested with the prosecution. (Cf. Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23].)

Because the defendant was not under arrest when the pat-down search took place, the fact that the officers arguably could have arrested him does not elevate the situation to the equivalent of one in which an arrest actually occurred. In order to justify the search in these circumstances Officer Schultz must have been able to meet the requirements delineated first in Terry and later by this court (see, e.g., People v. Lawler (1973) 9 Cal.3d 156, 161 [107 Cal.Rptr. 13, 507 P.2d 621]; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 829 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559]), i.e., he must have had “reason to believe that he [was] dealing with an armed and dangerous individual, regardless of whether he [had] probable cause to arrest the individual for a crime.” (Terry, at p. 27 of 392 U.S. [p. 909 of 20 L.Ed.2d].) But at no time has it been claimed Officer Schultz did in fact fear that defendant was “armed and dangerous.” Indeed, as the trial court found, nothing in the evidence could have led the officers to so believe. Short of such an articulable belief, according to the Supreme Court in Terry, the pat-down for weapons was an impermissible intrusion.

We are not oblivious to the dilemma faced by the conscientious officers under the circumstances of this case. The lateness of the hour, the dangers inherent to pedestrians on a freeway, the presence of a young child, the condition of the defendant, combined to suggest some remedial action was necessary. The officers could have found cause to place defendant under arrest and to take him into custody. A search before transporting the arrestee in the police vehicle would then have been proper. Instead they exercised discretion, perhaps compassion, to avoid arrest. Yet to justify a search in this deliberately chosen nonarrest situation would compel us to carve out a totally new exception to the universally accepted rule that only a lawful arrest establishes the authority to search incident thereto. Because of the potential ramifications of such an unprecedented exception we are reluctant to adopt it, despite our sympathetic understanding of the conduct of the police officers here.

The dilemma, however, is not insoluble. We are required to accommodate the state’s interest in the safety of police officers who volunteer to give rides not required by their duty, and the individual’s right to be secure from unreasonable invasions of his privacy. In our view the simple expedient of a warning and option will at once preserve both laudable objectives.³ Accordingly, in order for a pat-down search to be valid under these or similar circumstances the officer must' first inform the individual that he has a right to refuse the ride but if he accepts it he will be subjected to a pat-down search for weapons. Such a brief admonition will protect both the officer’s safety and the individual’s right to decide for himself whether he is willing to undergo a pat-down search in order to obtain the offered assistance of the police. No adverse inference may be drawn, of course, if he chooses to preserve his personal privacy.

Because defendant herein was not presented with any such option and according to the finding of the trial court did not consent to the search, we conclude the pat-down was an unreasonable invasion of defendant’s privacy in violation of article I, section 13, of the California Constitution and the Fourth Amendment to the United States Constitution. As the ultimate seizure of the contraband was inextricably bound up with this search, the contraband was inadmissible in evidence.⁴ Because defendant’s plea of guilty followed the erroneous determination to the contrary by the Court of Appeal, the judgment must be reversed. (See People v. Hill (1974) 12 Cal.3d 731, 767-770 [117 Cal.Rptr. 393, 528 P.2d 1].)

The judgment is reversed.

Wright, C. J., Tobriner, J., and Sullivan, J., concurred.

1 By contrast, in People v. Medina (1972) 6 Cal.3d 484, 491-492 [99 Cal.Rptr. 630, 492 P.2d 686]. we held that when the defendant’s application for writ of mandate after an unsuccessful motion to suppress was summarily denied without opinion by the Court of Appeal, the defendant was not precluded from later raising the same issue on a direct appeal from the conviction.

2 In Brisendine, in which we elevated the latter analysis to a holding, the defendants were likewise under arrest and the police were under a duty to “transport” them through a wilderness area to the patrol car. while remaining in close proximity throughout. (13 Cal.3d at pp. 536-537.) Succeeding decisions recognizing the rule also involved arrests and a legal basis for transportation. (People v. Norman (1975) 14 Cal.3d 929, 935-936, 939 [123 Cal.Rptr. 109, 538 P.2d 237]; People v. Longwill (1975) 14 Cal.3d 943, 949-950 [123 Cal.Rptr. 297, 538 P.2d 753].)

3 The dissent declares “the responsible options” of the police were either to gratuitously transport defendant and his son, or arrest defendant. (Post, pp. 256-257.) Since a volunteered, noncompulsory offer of a ride contemplates a willing and informed acceptance by the offeree, no basic conflict emerges at this point between the dissent and our proposed accommodation of principles.

4 The dissent reaches its conclusion that the exclusionary rule is “inapplicable” by a' rationale that overlooks historical realities. People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513], invoked the exclusionary rule in California six years before the United States Supreme Court applied the doctrine to the states, in Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933], The several hundred references to Cahan listed in Shepard’s California Citations is an eloquent testimonial to the fact that our California rule rests firmly upon that case and independent state grounds, rather than on deference to federal authority.

The failure of the dissent to consider the importance of the individual right of privacy is best illustrated by its criticism of Mozzetti v. Superior Court (1971) 4 Cal.3d 699 [94 Cal.Rptr. 412, 484 P.2d 84]. In its review of Mozzetti the dissent perceives no deterrent value in excluding evidence seized by police who. without warrant or probable cause, but pursuant to common practice, conducted an exploratory search into a closed suitcase in the interior of a motor vehicle involved in an accident after the driver, suspected of no crime, had been taken to the hospital.

The test proposed by the dissent—that the exclusionary rule should be inapplicable to police activity the purpose of which is “neither the prosecution nor prevention of crime” (post, p. 262)—would permit, even encourage, unregulated exploratory searches by police officers of the persons or into the personal effects of individuals who, being suspected of no crime, would normally have a reasonable expectation of privacy and a constitutional right to be free of invasion of that privacy. (Cal. Const., art. I. § 13.) Without citation of any authority, the dissent proposes an anomalous doctrine; to preserve the constitutional rights of persons suspected of crime, but not of those whose conduct has given rise to no such suspicion.