People v. Gott

Opinion

KINGSLEY, Acting P. J.

Defendants were jointly charged with: (count I) transportation of marijuana, in violation of section 11360 of the Health and Safety Code; (c^unt II) possession of marijuana for the

[3]

purpose of sale, in violation of section 11359 of that code; and (count III), possession of a controlled substance, in violation of subdivision (a) of section 11357 of that code. After their motions to suppress, made under section 1538.5 of the Penal Code, were denied, defendant Morisse pled guilty to count I and defendant Gott pled guilty to count II. Both defendants were granted probation; they have appealed; we reverse.

Early in the evening of June 8, 1978, police officers on routine patrol, saw a car parked at a filling station. One of the officers saw one of the occupants drinking beer from a bottle. He approached the car and told that man it was illegal to have an open container of liquor while driving; the man exited the car, leaving the car door open, and threw away the bottle. The officer smelled the odor of marijuana coming from the car and, using his flashlight, saw two marijuana roaches in the car ashtray. Search of the interior of the car disclosed additional marijuana and some hashish. After the officer had removed the contraband from the passenger portion of the car, he still noticed a strong odor of marijuana coming from the trunk. He asked, and was refused, permission to search the trunk. Using a key obtained from the pocket of defendant Gott, he opened the trunk to discover 7 large bags containing about 134 pounds of marijuana.

It is not here contended that the officers did not have probable cause to search the passenger compartment nor that the contraband discovered in that search was not lawfully obtained. The sole contention made on this appeal is directed to the warrantless and nonconsensual search of the automobile trunk.

We think it clear that, except for one matter, the search of the trunk was proper under the reasoning of

Wimberly

v.

Superior Court

(1976) 16 Cal.3d 557 [128 Cal.Rptr. 641, 547 P.2d 417]. Here, the officers, unlike the officers in