Morel

This petition is one in which the issue is that of search of the person of the driver of a motor vehicle who has been arrested for an offense which justified the arresting officer to bring him before a magistrate. The search of petitioner, Morel, produced a bottle of 77 capsules of Secobarbital, a drug which it is forbidden to possess without a physician’s prescription. (Health & Saf. Code, § 11910.) Petitioner’s motion, under Penal Code section 1538.5, to suppress the evidence was denied and this petition for writ of mandate followed. We granted an alternative writ.

Facts

At about 1:30 a.m. on August 20, 1969, a police officer of the City of Atherton stopped Morel after observing that he had been engaged in a speed contest of his motorcycle with an automobile, in violation of Vehicle Code section 23109, subdivision (a). The officer called for another unit to stop the other vehicle, demanded and was shown Morel’s license, and proceeded to arrest him for safety reasons, rather than citing him to appear before a magistrate. The officer had the right to make this choice under Vehicle Code section 40303. The officer advised Morel of his constitutional rights. He then…