McClellan v. Superior Court

Opinion

KINGSLEY, J.—

Petitioner is charged in respondent court by an information containing five counts: count I, possession of marijuana for sale, in

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violation of section 11530.5 of the Health and Safety Code; count II, transportation and offer to sell marijuana, in violation of section 11531 of that code; count HI, possession for sale of a restricted drug, in violation of section 11911 of said code; count IV, illegal possession of narcotic paraphernalia, in violation of section 11555 of said code; and, count V, possession of paraphernalia for injection of a restricted drug, in violation of section 11915 of said code.

He moved, pursuant to section 995 of the Penal Code, to dismiss the information. That motion was denied and his petition for a writ of prohibition, pursuant to section 999a of the Penal Code was denied by this court without opinion. (McClellan v. Superior Court, 2d Civ. No. 38175.) Petitioner then moved, pursuant to section 1538.5 of the Penal Code, to suppress certain evidence obtained at the time of his arrest. That motion was also denied and the present petition followed. We issued an order to show cause why relief should not be granted. The matter has been briefed and argued. We grant a peremptory writ directing the suppression of the evidence involved in the motion made in the trial court; we deny the other relief sought.

The motion to suppress was submitted on the transcript of the testimony at the preliminary examination, together with extensive testimony which amplified and clarified the earlier record. We state the facts as gleaned from all the evidence thus before the trial court on the 1538.5 motion.

At approximately 12:30 a.m., a blue and white Oldsmobile, containing two men and one woman, entered a gasoline service station on the northern edge of the City of Paso Robles. One of the passengers offered to sell “a lid” to the station attendant. The offer was refused and the car drove out of the station, heading southerly on Highway 101. The attendant phoned the local police, reporting the incident, giving a description of- the car and a license number (PGR 926). That information was transmitted by radio to local sheriff units and was heard by the local office of the Highway Patrol. Officers in a Highway Patrol car saw a vehicle, matching the physical description of the car so reported, but with a minor difference in the license number. They stopped the car and ordered the occupants (defendant, another man, and a girl) to alight and they were subjected to a pat-down search, which revealed neither weapons nor contraband. Identification was then demanded, resulting in the discovery that the girl was a minor living in Los Angeles. She was taken into custody as a person possibly subject to section 601 of the Welfare and Institutions Code and the men were arrested on a charge of contributing to the delinquency of a minor (Pen. Code, § 272). A search of the car and its trunk, followed, disclosing the presence of a large quantity of narcotics and narcotic paraphernalia.