People v. Di Bernardo (1978)

[Crim. A. No. 15743. Feb. 23, 1978.]

THE PEOPLE, Plaintiff and Appellant, v. CARMEN Di BERNARDO, Defendant and Respondent.

(Opinion by Cole, P. J., with Pacht and Ibanez, JJ., concurring.)

COUNSEL

Burt Pines, City Attorney, and Ward G. McConnell, Assistant City Attorney, and Timothy A. Hogan, Deputy City Attorney, for Plaintiff and Appellant.

McLaughlin & Irvin and Thomas S. Kerrigan for Defendant and Respondent.

OPINION

COLE, P. J.

This is a People's appeal from a dismissal of a complaint, following the granting of a motion pursuant to section 1538.5 of the Penal Code. The subject matter of the motion was a load of fish on board a vessel in the Los Angeles harbor which was alleged to contain more than 18 percent Pacific mackerel, in violation of Fish and Game Code section 8388. The trial court ruled that a warrant to search the vessel should have been obtained. We do not agree.

Preliminarily, Fish and Game Code section 7702 states: "The department may enter and examine ... any fishing boat ... and ascertain the amount of fish received, or kind and amount of fishery products packed or manufactured and the number and size of containers or cans for fishery products purchased, received, used, or on hand and may examine any books and records containing any account of fish caught, bought, canned, packed, stored, or sold." [79 Cal. App. 3d Supp. 7]

[1] Respondent argues that See v. City of Seattle (1967) 387 U.S. 541, 545 [18 L. Ed. 2d 943, 947, 87 S. Ct. 1737], and Camara v. Municipal Court (1967) 387 U.S. 523, 533 [18 L. Ed. 2d 930, 938, 87 S. Ct. 1727], prohibit the search of business premises without a warrant. He then argues that his fishing boat is his place of business.

The flaw in this argument is that the Fourth Amendment does not absolutely prohibit all administrative searches without a warrant. It is true that as a general rule such searches require warrants. However, the United States Supreme Court recognized, in United States v. Biswell (1972) 406 U.S. 311, 316 [32 L. Ed. 2d 87, 92-93, 92 S. Ct. 1593], that the interest in restricting the unlawful sale of guns was so paramount, and the possibility that the goods would be removed was so real, that the federal law permitting the search of a pawn shop without a warrant was constitutional.

Further, other cases which have held unconstitutional statutes that permitted administrative searches without a warrant base their holding, at least in part, on the fact that the statutes refer to buildings, or documents kept as business records, which are less likely to disappear while someone obtains a warrant. (See Parrish v. Civil Service Commission (1967) 66 Cal. 2d 260 [57 Cal. Rptr. 623, 425 P.2d 223]; People v. Hutchings (1977) 69 Cal. App. 3d Supp. 33 [138 Cal. Rptr. 584]; See and Camara, supra.) We would appear to be confronted with a situation more closely analogous to Biswell, supra. The warden stated that it was impractical to take samples of the fish that had been unloaded, and there is no indication that the court disbelieved this testimony. The mobile and temporal nature of the evidence is obvious. Therefore, given the circumstances of this case, the search without a warrant was justified. (People v. Maxwell (1969) 275 Cal. App. 2d Supp. 1026 [80 Cal. Rptr. 86].)

In light of our conclusion we need not consider whether the search was also justified on the basis of probable cause to search a movable vessel.

The order appealed from is reversed with directions to deny the motion to suppress.

Pacht, J., and Ibanez, J., concurred.