Miller v. Superior Court

This petition challenges denial of a motion to suppress the contents of a “Grodin’s” bag taken from petitioner after his street arrest for auto burglary.

Petitioner, Rickey Gene Miller, by information filed in Contra Costa County is charged with burglary (Pen. Code, § 459) and receiving stolen property (Pen. Code, § 496).

Following arraignment in the superior court, petitioner moved (Pen. Code, § 1538.5) to suppress the contents of a “Grodin’s” bag that he was carrying “tucked” or “rolled up” under his arm at the time of his arrest. The trial court, Honorable Coleman Fannin, judge, denied the motion to suppress. This petition for a writ of prohibition and/or mandate followed. Petitioner submitted his motion entirely upon the testimony elicited at the preliminary hearing (Honorable Robert G. McGrath, judge, presiding). Petitioner’s trial was stayed by order of this court. On May 28, 1981, we issued the alternative writ after receiving requested opposition. At oral argument we permitted the parties to submit supplemental briefing in light of the recent United States Supreme Court decisions of New York v. Belton (1981) 453 U.S. 454 [ 69 L.Ed.2d 768 , 101 S.Ct. 2860 ] and…

I respectfully dissent.

I have previously set out in detail my analysis of what the majority accurately describes as the “seemingly endlessly recurring” issue pre *512 sented in this case. (People v. Laiwa (Cal.App.), hg. granted Oct. 2, 1981.) Since our Supreme Court has granted a hearing in Laiwa, we may reasonably hope that the court will, in the not too distant future, resolve the state of law in California on the scope of a warrantless search incident to a lawful custodial arrest. In the interim, we have no choice but to add one more written decision and dissent to those which have come before. I write briefly merely to reiterate my position with Scott, J., concurring, in Laiwa, as follows.

Searches conducted without warrant violate the Fourth Amendment of the United States Constitution and are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. (Mincey v. Arizona (1978) 437 U.S. 385, 390 [ 57 L.Ed.2d 290, 298-299 , 98 S.Ct. 2408 ]; People v. Minjares (1979) 24 Cal.3d 410, 416 [ 153 Cal.Rptr. 224 , 591 P.2d 514 ].) Among these exceptions is the warrantless search incident to arrest (People v. Superior Court (Kiefer) (1970) 3…

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein, Assistant Attorney General, John T. Murphy, Robert R. Granucci and Ronald E. Niver, Deputy Attorneys General, for Real Party in Interest.

OPINION

WHITE, P.J.

This petition challenges denial of a motion to suppress the contents of a "Grodin's" bag taken from petitioner after his street arrest for auto burglary.

Petitioner, Rickey Gene Miller, by information filed in Contra Costa County is charged with burglary (Pen. Code, § 459) and receiving stolen property (Pen. Code, § 496).

Following arraignment in the superior court, petitioner moved (Pen. Code, § 1538.5) to suppress the contents of a "Grodin's" bag that he was carrying "tucked" or "rolled up" under his arm at the time of his arrest. The trial court, Honorable Coleman Fannin, judge, denied the motion to suppress. This petition for a writ of prohibition and/or mandate followed. Petitioner submitted his motion entirely upon the testimony elicited at the preliminary hearing (Honorable Robert G. McGrath, judge, presiding). Petitioner's trial was stayed by order of this court. On May 28, 1981, we issued the…