Chapter 14: Booking Searches

[1] QUOTE FROM: Pen. Code§ 7.21.
CAL: P v. Williams (1980) 114 CA3 67, 76,
fn.1 [“The booking process is usually a predominately clerical
procedure, performed immediately or soon after the suspect has
been delivered to the precinct or district station” Quoting from
LaFave, Arrest, The Decision to Take a Suspect Into Custody (1965)
pp. 379-80]. NOTE:
When does an “arrestee” become a “prisoner?” There is a
split of authority as to whether an “arrestee” technically becomes
a “prisoner” when the booking process is completed.
Zeilman v. County of Kern (1985) 168 CA3
1174, 1181; Reed v.
County of Santa Cruz (1995) 37 CA4 1274, 1279;
Terzian v. County of Ventura (1994) 24 CA4
78, 85.

[2] CAL: P v.
Superior Court (Logue) (1973) 35 CA3 1, 6.

[3] USSC: Maryland v. King (2013)
569 US 425, 461 [“there can be little reason to question the
legitimate interest of the government in knowing for an absolute
certainty the identity of the person arrested, in knowing whether
he is wanted elsewhere, and in ensuring his identification in the
event he flees prosecution”].

[4] CAL: Pen. Code§ 4030(e);
P v. Superior Court (Fuller) (1971) 14 CA3 935, 945
[“It is well established that persons about to enter jails or
penal institutions may be searched for the purpose of preventing
the introduction of weapons or contraband into the premises, and
for the purpose of inventorying the accused’s property.”].
ALSO SEE: P v. Harris (1980) 105 CA3
204, 213-16.

[5] CAL: P v.
Panfili (1983) 145 CA3 387, 393-94.

[6] NOTE: The rule permitting
pre-booking searches should not be affected by Proposition 47
because pre-booking searches are necessary whenever an arrestee is
taken to a secure area of the jail or police station—regardless of
whether he had been arrested for a felony or misdemeanor, Note,
however, that a pre-booking search must be limited to a search for
weapons and contraband—not, for example, a strip search.

[7] CAL: Pen. Code§ 4030(e).

[8] CAL: Pen. Code§ 4030(e).

[9] USSC: US v.
Edwards (1974) 415 US 800, 807-808.

[10] USSC: Illinois v.
Lafayette (1983) 462 US 640. CAL: P v.
Benz (1984) 156 CA3 483, 487-89. OTHER:
Cottrell v. Kaysville City (10C 1993) 994 F2 730,
735 [“Courts have consistently recognized a distinction between
detainees awaiting bail and those entering the jail population
when evaluating the necessity of a strip search”];
Archuleta v. Wagner (10C 2008) 523 F3 1278,
1284 [one “primary concern” is “whether a detainee is to be placed
in the general prison population”]. ALSO SEE: P v.
Panfili (1983) 145 CA3 387, 393 [“Police have not merely a
right but an affirmative duty, statutorily defined, to safeguard
the property of a prisoner.” Citing Pen. Code§ 1412];
Cooper v. California (1967) 386 US 58, 61-62
[“It would be unreasonable to hold that the police having to
retain the car in their custody for such a length of time, had no
right, even for their own protection, to search it.”].

[11] USSC: US v.
Edwards (1974) 415 US 800, 803-4. ALSO SEE:
Chimel v. California (1969) 395 US 752, 763;
US v. Robinson (1973) 414 US 218, 235. CAL:
P v. Aguilar (1985) 165 CA3 221, 225; P v.
Garcia (1981) 115 CA3 85, 103; P v.
Superior Court (Irwin) (1973) 33 CA3 475, 479; P v.
Guiterrez (1984) 163 CA3 332; Miller v.
Superior Court (1981) 127 CA3 494, 509.

[12] USSC: US v.
Edwards (1974) 415 US 800, 805.

[13] QUOTE FROM: US v.
Robinson (1973) 414 US 218, 236.

[14] USSC: Illinois v.
Lafayette (1983) 462 US 640, 646 [officers may take
“reasonable measures” to “limit these risks”]; US
v. Edwards (1974) 415 US 800, 804 [“the authorities
were entitled at that point not only to search Edwards’ clothing
but also to take it from him and keep it in official custody”].

[15] QUOTE FROM: Illinois
v. Lafayette (1983) 462 US 640, 646. USSC:
US v. Edwards (1974) 415 US 800, 804.

[16] USSC:
Florence v. Board of Chosen Freeholders of Burlington County,
et al.
(2012) 566 US 318.

[17] 9th CIR: US v. Fowlkes (9C
2015) 804 F3 954, 961 [“The LBPD’s warrantless visual strip search
of Fowlkes during the jail intake process was not unreasonable.”];
Bull v. San Francisco (9C 2010) 595 F3 964,
980-81 [“the rights of arrestees placed in custodial housing with
the general jail population are not violated by a policy or
practice of strip searching each one of them as part of the
booking process”]. OTHER: Florence v.
County of Burlington (3C 2010) 621 F3 296, 308 [concurs
with Ninth Circuit’s decision in Bull].

[18] 9th CIR: Bull v.
San Francisco (9C 2010) 595 F3 964, 981 [search must not be
conducted “in an abusive manner”]. OTHER:
Robinson v. Hawkins (8C 2019) 937 F3 1128, 1137-38
[“clearly established law holds that strip searches are to be
conducted by an officer of the same sex as the suspect in an area
as removed from public view as possible without compromising
legitimate security concerns and to be performed in a hygienic
fashion and not in a degrading, humiliating or abusive fashion”].

[19] CAL: Pen. Code§ 4030(c).
9th CIR: US v. Palmer (9C 1978) 575 F2
721, 723. NOTE: California’s broad definition of “strip
search” as including mere rearrangement of a suspect’s clothing is
contrary to common sense and common usage. See P v.
Smith (2009) 172 CA4 1354, 1363 [a “reach in” search was
not a strip search]. While the Florida statute governing strip
searches employs essentially the same definition as California,
its Supreme Court ruled in a “reach in” case that, “in our view
nothing equivalent to a strip search occurred in the instant case.
Rather, the search here qualifies as a ‘reach-in’ search, where
the suspect remains clothed during the search and the suspect’s
genitals are not visible to onlookers.” Jenkins v.
State (Fla. 2008) 978 S2 116, 127.

[20] CAL: Pen. Code§ 4030(f);
P v. Wade (1989) 208 CA3 304. 9th CIR:
Fuller v. M.G. Jewelry (9C 1991) 950 F2 1437,
1447 [strip searches may be conducted “based on reasonable
suspicion … that a particular detainee harbors weapons or
dangerous contraband”]; Way v.
County of Ventura (9C 2006) 445 F3 1157, 1162 [“We cannot
see how the charge of being under the influence of a drug [no
evidence of possession] necessarily poses a threat of concealing
(and thereby using or trafficking) additional drugs in jail during
the limited time between booking and bail, or booking and
placement in the general population.”]; Arpin v.
Santa Clara Valley Transportation Agency (9C 2001) 261 F3
912, 922. OTHER: US v. Barnes (1C
2007) 506 F3 58; Archuleta v. Wagner (10C
2008) 523 F3 1278 [no reasonable suspicion based on domestic
violence arrest]. NOTE: Additional requirements concerning
the manner in which such a search may be conducted are set forth
in Pen. Code§§ 4030(i), (j), (l), (m). NOTE: A
violation of Pen. Code§ 4030 may result in a civil lawsuit
against the officers involved but evidence will not be suppressed
unless the officers’ conduct was such that it “shocks the
conscience.” P v. Wade (1989) 208 CA3 304, 308-9;
Rochin v. California (1952) 342 US 165;
Winston v. Lee (1985) 470 US 753.

[21] CAL: Pen. Code§ 4030.

[22] USSC: US v.
Edwards (1974) 415 US 800, 806 [“When it became apparent
that the articles of clothing were evidence of the crime for which
Edwards was being held, the police were entitled to take, examine,
and preserve them for use as evidence, just as they are normally
permitted to seize evidence of crime when it is lawfully
encountered.”]; Illinois v. Lafayette (1983)
462 US 640, 648 [“it is not unreasonable for police, as part of
the routine procedure incident to incarcerating an arrested
person, to search any container or article in his possession, in
accordance with established inventory procedures”].
9th CIR: US v. Oaxaca (9C 1978) 569 F2
518, 524 [“Both the defendants and their shoes remained in lawful
custody until the time when the shoes were taken for use as
evidence. To require a warrant under these circumstances would be
to require a useless and meaningless formality.”]; US
v. Turner (9C 1994) 28 F3 981, 983 [“if an initial
seizure of clothing of the defendant is incident to a lawful
arrest and therefore proper, once the clothes were properly in the
custody of the sheriff’s office, the clothing could be removed or
transferred without benefit of official process”].

[23] EXAMPLES: The following are
examples of valid “second look” searches:

Robber’s ring: After the defendant was arrested for robbing
a cab driver, investigators learned from the victim that the
perpetrator was wearing a certain kind of ring. A booking
inventory showed that the defendant was wearing a ring when he was
arrested and that the ring was in property. Investigators
retrieved it and showed it to the victim, who identified it. The
ring, said the court, “did not have, nor can it acquire after
booking, a vestige of privacy requiring a search warrant.”
P v. Bradley (1981) 115 CA3 744, 751. Also see
P v. Rivard (Mich. App. 1975) 230 NW2 6, 8
[“Once the ring had been exposed to police view under
unobjectionable circumstances and lawfully taken by the police for
safekeeping, any expectation of privacy with respect to that item
had at least partially dissipated so that no reasonable
expectation of privacy was breached by [the detective] taking a
‘second look.'”].

Robber’s ring: A Sacramento bank teller noticed that the
man who was robbing her was wearing a “gold nugget ring.” When the
robber, Davis, was arrested a few days later, he had two rings in
his possession. During booking, the rings and his other property
were stored in a nylon bag. An inventory sheet showed the bag
contained, among other things, two rings. When an FBI agent
learned that the teller had noticed the robber was wearing a gold
ring, he asked a police detective to see if there were any rings
in Davis’s property. Checking the inventory sheet, the detective
saw that the bag contained two rings, so he opened it and seized
the rings—one of which was identified by the teller. The court
ruled the warrantless seizure was lawful because the detective
“did not conduct a search but merely retrieved items, lawfully
obtained, that law enforcement knew were in its possession.”
P v. Davis (2000) 84 CA4 390, 394-95.

Rapist’s shoes: After Cheatham was arrested for rape, his
clothes and shoes were “inventoried and stored in the jail’s
property room.” Cheatham was also a suspect in another rape in
which investigators had recovered shoe prints at the scene. When
they learned he was in custody, they obtained the shoes from the
property room without a warrant, examined the tread, and
determined they matched. In rejecting Cheatham’s argument that the
shoes should have been suppressed because the officer did not
obtain a warrant, the Washington Supreme Court said, “once an
inmate’s personal effects have been exposed to police view in a
lawful inventory search and stored in the continuous custody of
the police, the inmate no longer has a legitimate expectation of
privacy in the items free of further government intrusion.”
State v. Cheatham (Wash. 2003) 81 P3 830,
836. ALSO SEE: State v.
Jellison (Mont. 1989) 769 P2 711 [robbery suspect’s shoes
that were booked into property were taken to robbery scene and
compared with a shoe print on the counter].

Bait money: After arresting Westover, detectives in Kansas
City searched him and found $621 which was later put into an
envelope and stored in the police property room. Because Westover
was also a suspect in two Sacramento bank robberies, officers
later examined the serial numbers without a warrant and determined
that some of the bills had been taken in the Sacramento robbery.
In ruling a warrant was not required, the Ninth Circuit observed,
“In taking the money, no one would suggest that at that instant a
search warrant would be required to list the numbers on the bills.
Thus, a search warrant to again look at the money already in
police custody does not make sense.” US v.
Westover (9C 1968) 394 F2 164, 165. Also see
US v. Johnson (9C 1987) 820 F2 1065, 1072
[bait money]; US v. Burnette (9C 1983) 698 F2
1038, 1049 [bait money]; Evalt v.
US (9C 1967) 382 F2 424, 427 [bait money]; P v.
Panfili (1983) 145 CA3 387, 393-94 [bait money].

Keys: Thompson was arrested in Texas on drug charges.
During booking, officers seized, among other things, some keys.
Several days later, an FBI agent went to the jail and arrested
Thompson for stealing dynamite. The agent was aware that some keys
had been booked into property, so he inspected them and, as a
result, determined they opened a storage unit in which the
dynamite had been found. The court ruled agent did not need a
warrant to inspect the keys, noting, “[The FBI agent was] not
searching personal effects based on mere hunches that something of
evidentiary value might be found. The police officer who had
arrested Thompson had already informed the federal agent about the
keys. The agent’s particularized search for the keys did not
require a warrant.” US v. Thompson (5C 1988)
837 F2 673 [a key taken from Thompson at booking was later seized
without a warrant and inserted into a lock that was used to secure
a bag containing cocaine]. ALSO SEE: US
v. Grill (5C 1973) 484 F2 990.

Keys: Symbionese Liberation Army members Little and Remiro
were arrested by Concord police for the murder of the Oakland
Schools Superintendent. During booking, officers removed a set of
keys from each of them. Later that day, the keys were given to an
Oakland officer who was able to match them with the locks to some
buildings connected to the SLA. In ruling the keys were seized
lawfully, the Court of Appeal noted that an arrestee’s personal
effects “like his person itself, are subject to reasonable
inspection, examination, and test.” P v.
Remiro (1979) 89 CA3 809, 835 [quoting from P v.
Rogers (1966) 241 CA2 384, 389-90.

Robber’s clothes: Earls was arrested on a Vehicle Code
violation and booked into jail. During booking, his clothing “was
confiscated.” Several days later, FBI agents determined that Earls
was a suspect in a Sacramento back robbery. An agent obtained
Earls’ clothing and sent it to the FBI lab for analysis. The lab
found fibers that linked Earls to the robbery. Court: “During
their period of police custody an arrested person’s personal
effects, like the person itself, are subject to reasonable
inspection, examination, and test.” P v.
Earls (1980) 109 CA3 1009, 1012.

Murderer’s ring: LAPD detectives had probable cause to
arrest Phillip Gunn for murder. When they learned that a man named
Phillip Gunn was in jail on a cocaine possession charge they went
there to see if he was the Gunn they were looking for. Gunn’s
property had been stored in a transparent plastic bag. Inside the
bag, they could see a ring which they apparently realized was
similar to the ring worn by the murder victim. Before confirming
that the prisoner was the murder suspect, they opened the bag and
seized the ring. Later, they showed it to the victim’s wife who
positively identified it. Said the court: “What the homicide
investigators did in this case cannot be classified as either a
search or a seizure within the meaning of the Fourth Amendment.
The ring was lawfully in the custody of the police. Its storage in
the plastic property bag was purely for convenience and
safekeeping. No expectation of privacy was involved. The ring was
no more in a place of privacy than if the booking officer had left
it on the counter of the booking desk.” P v.
Superior Court (Gunn) (1981) 112 CA3 970, 977. Also see
P v. Richards (Ill. 1983) 445 NE2 319 [officers
lawfully seized necklace, having probable cause to believe the
defendant had taken it in a burglary].

[24] USSC: US v.
Edwards (1974) 415 US 800, 807 [“most cases in the courts
of appeals have long since concluded that once the accused is
lawfully arrested and is in custody, the effects in his possession
at the place of detention that were subject to search at
the time and place of his arrest may lawfully be searched and
seized without a warrant even though a substantial period of time
has elapsed between the arrest and subsequent administrative
processing, on the one hand, and the taking of the property for
use as evidence, on the other,” edited]; US v.
Jacobsen (1984) 466 US 109, 117 [“Once frustration of the
original expectation of privacy occurs, the Fourth Amendment does
not prohibit governmental use of the non-private information.”];
Illinois v. Andreas (1983) 463 US 765, 771
[“once police are lawfully in a position to observe
an item first-hand, its owner’s privacy interest in that item is
lost,” emphasis added]; Minnesota v.
Dickerson (1993) 508 US 366, 377 [“The seizure of an item
whose identity is already known occasions no further invasion of
privacy.”]. 9th CIR: US v. Holzman (9C
1989) 871 F2 1496, 1505 [“the arresting officer legitimately
examined the address book during the valid arrest of Holzman, and
determined that it contained ‘a bunch of names and numbers.’ At
that point appellant’s expectation of privacy in the contents of
the book was significantly diminished”]; Westover
v. US (9C 1968) 394 F2 164, 165 [“In taking the
money [from the prisoner and putting it into the property room],
no one would suggest that at that instant a search warrant would
be required to list the numbers on the bills. Thus, a search
warrant to again look at the money already in police custody does
not make sense.”]; US v. Johnson (9C 1987)
820 F2 1065, 1072 [“Even though the officer did not in fact at
first record the serial numbers of the bills, he could have done
so legitimately without a warrant. Accordingly, we find that
appellant’s expectation of privacy was significantly reduced, and
that the information obtained during the second search was
admissible.”]; US v. Burnette (9C 1983) 698
F2 1038, 1049 [“The contents of the purse had been fully exposed
to the police and, consequently, her expectation of privacy in the
purse was necessarily reduced by a significant degree [so that]
the subsequent warrantless search at the police station was
valid.”]. NOTE: Elsewhere in US v.
Edwards, the Court applied the “subject to search”
principle when it noted, “Edwards was no more imposed upon than he
could have been at the time and place of the arrest
or immediately upon arrival at the place of detention.” At p. 805.
Emphasis added. The Court also observed that “it is difficult to
perceive what is unreasonable about the police’s examining and
holding as evidence those personal effects of the accused that
they already have in their lawful custody as a result of a lawful
arrest.” At p. 806. The Court also noted that although a warrant
is not required, officers are subject to the Fourth Amendment’s
requirement of “reasonableness. At p. 808, fn.9. NOTE:
Ironically, the “subject to search” test is more protective
of the prisoners’ privacy than a rule permitting a second look
only if officers actually saw the item during booking or arrest.
This is because such a rule would give officers a perverse
incentive to conduct highly intensive booking searches and
searches incident to arrest to make sure that of the prisoner’s
property is subject to a second look. As the Ninth Circuit noted
in US v. Burnette, “It is likely that, were
we to require warrants for subsequent searches, police officers
would routinely remove all items from containers seized at the
time of the initial search and thereby insure that all items were
discovered at that time. Thus, requiring a warrant for subsequent
searches would be unlikely to provide any additional protection
for individual privacy.” (9C 1983) 698 F2 1038, 1049, fn.25.

[25] USSC: US v.
Edwards (1974) 415 US 800, 806 [clothing]; Illinois
v. Andreas (1983) 463 US 765, 771 [“It is obvious
that the privacy interest in the contents of a container
diminishes with respect to a container that law enforcement
authorities have already lawfully opened and found to contain
illicit drugs.”]; Minnesota v.
Dickerson (1993) 508 US 366, 377 [“The seizure of an item
whose identity is already known occasions no further invasion of
privacy.”]; Arizona v. Hicks (1987) 480 US
321, 325 [“Merely inspecting those parts of the turntable that
came into view during the latter search would not have constituted
an independent search, because it would have produced no
additional invasion of respondent’s privacy interest.”].
CAL: P v. Davis (2000) 84 CA4 390
[ring]; P v. Bradley (1981) 115 CA3 744, 750-51;
P v. Remiro (1979) 89 CA3 809, 835; P v.
Superior Court (Gunn) (1980) 112 CA3 970, 977-78.
9th CIR: US v. Turner (9C 1994) 28 F3
981, 983 [“We have held that if an initial seizure of clothing of
the defendant is incident to a lawful arrest and therefore proper,
once the clothes were properly in the custody of the sheriff’s
office, the clothing could be removed or transferred without
benefit of official process.”]; US v. Burnette (9C 1983)
698 F2 1038, 1049 [“once an item in an individual’s possession has
been lawfully seized and searched, subsequent searches of that
item, so long as it remains in the legitimate uninterrupted
possession of the police, may be conducted without a warrant”];
Hell’s Angels Motorcycle Corp. v.
McKinley (9C 2004) 360 F3 930, 933 [“personal items
seized and examined by police during searches incident to a
lawful arrest are not protected from further warrantless searches
by police,” emphasis added]; US v. Oaxaca (9C
1978) 569 F2 518, 524 [“Both the defendants and their shoes
remained in lawful custody until the time when the shoes were
taken for use as evidence. To require a warrant under these
circumstances would be to require a useless and meaningless
formality.”]. OTHER: US v. Aldaco (8C
2007) 477 F3 1008, 1015 [“no warrant was required when the police
searched Lockhart’s property envelope [and viewed his wallet]. The
police had earlier, at the time of inventory, lawfully viewed the
wallet”]; US v. Caruso (2C 1966) 358 F2 184;
US v. Bomengo (5C 1978) 580 F2 173, 175;
US v. Thompson (5C 1988) 837 F2 673, 675-76.

[26] NOTE: See cases cited in section
entitled “If no probable cause” (Item was subject to search),
supra. NOTE: Defense attorneys often cite two cases
which they contend prohibit a warrantless second look unless
officers took a first look. One of the cases, US v.
Brett (5C 1969) 412 F2 401, 405-6 can be disposed of
quickly—it is a pre-Edwards case that is contrary to
Edwards. The other case is P v. Smith (1980)
103 CA3 840. Although Smith is still occasionally cited by
defendants, we are not aware of any case in which it was followed.
There are two good reasons for this. First, the court did not
engage in any meaningful analysis of the central issue; i.e.,
whether prisoners enjoy a reasonable expectation of privacy as to
items that have been taken from them and stored in a property room
for safekeeping. Second, if Smith were the law, officers
could, as discussed above, avoid the ruling by simply conducting
highly intensive booking searches of all property—looking at
everything. This would not only result in a waste of police
resources, it would result in less privacy for the
prisoners. Consequently, Smith is usually either
distinguished or ignored. P v. Bradley (1981) 115
CA3 744, 751; P v. Davis (2000) 84 CA4 390,
394 [“Smith does not stand for the broad proposition that
jail inmates retain a Fourth Amendment privacy interest in
property seized upon arrest and stored in the jail property room.
On the contrary, [Smith] was based on the fact that the
officers searched through a purse and wallet in the defendant’s
mother’s property for items which had not previously been noted or
whose evidentiary value had not previously been appreciated.”];
P v. Superior Court (Gunn)(1981) 112 CA3 970, 978,
fn.2 [court noted that Smith was inconsistent with
Edwards]; P v. Panfili (1983) 145 CA3 387,
383 [unlike Smith, officers isolated the defendant’s
property—they did not complete the booking process].

[27] 9th CIR:
Hell’s Angeles Motorcycle Corp. v.
McKinley (9C 2004) 360 F3 930, 934 [“the Hell’s Angels’
reasonable expectation of privacy in the documents were
substantially reduced by the lawful seizure of the documents by
the Monterey police officials”]; US v.
Holzman (9C 1989) 871 F2 1496, 1501.