People v. Perez

175 Cal.App.3d 1204 (1985) 221 Cal. Rptr. 776 THE PEOPLE, Plaintiff and Appellant,

v.

JOSE MANUEL PAEZ PEREZ, Defendant and Respondent.

Docket No. 72063. Court of Appeals of California, Appellate Department, Superior Court, San Diego.

August 26, 1985. COUNSEL

Edwin L. Miller, Jr., District Attorney, and Craig E. Fisher, Deputy District Attorney, for Plaintiff and Appellant.

Ray R. King for Defendant and Respondent.

OPINION

DUFFY, J.

The People appeal an order dismissing the case against defendant after granting a motion to suppress evidence pursuant to Penal Code section 1538.5. Page Supp. 10

FACTS OF THE CASE

At approximately 2:15 a.m. on May 31, 1984, Officer Alvernaz observed an orange Opel automobile driven by respondent eastbound on Interstate 8. The officer's attention was drawn to the vehicle because of a "pronounced weaving" within the lane. The officer described the drift as being two feet in each direction. The officer followed the vehicle while it was weaving for about three quarters of a mile. Due to the weaving observed by the officer the vehicle was stopped. The detention was predicated on the officer's belief that the driver was under the influence of alcohol.

The municipal court found that the detention was unlawful and that weaving alone within a marked lane was not sufficient cause to stop the vehicle.

DISCUSSION

(1a) The sole issue raised on appeal is whether pronounced weaving within a lane provides an officer with reasonable cause to stop the vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance, in this case for about three-quarters of a mile.

(2) It has been firmly established that when a police officer detains a citizen the Fourth Amendment is triggered. Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 859, 88 S.Ct. 1868]. A detention occurs "whenever a police officer accosts an individual and restrains his freedom to walk away," (People v. Aldridge (1984) 35 Cal.3d 473, 477 [198 Cal. Rptr. 538, 674 P.2d 240], relying on Terry v. Ohio, supra, 392 U.S. at p. 16 [20 L.Ed.2d at p. 903]) or when an officer stops an individual because that person "may be personally involved in some criminal activity." (In re Tony C. (1978) 21 Cal.3d 888, 892 [148 Cal. Rptr. 366, 582 P.2d 957].)