Bergeron v. Superior Court

[435]

Opinion

TAMURA, J.

Defendant seeks a writ of prohibition to enjoin respondent court from taking further proceedings in the trial of defendant on an information charging him with possession of marijuana. Defendant’s motion under section 1538.5 of the Penal Code to suppress the use of the contraband as evidence was denied.

The motion to suppress was submitted on the transcript of the preliminary hearing. The facts may be summarized as follows: About 12:40 a.m. Officer Turner of the Highway Patrol observed defendant’s Volkswagen southbound on the San Diego Freeway traveling at high speed. Defendant was in lane 2, the lane next to the inside lane of the five southbound lanes of the freeway. After pacing defendant for about one mile at 75 miles per hour and noting that defendant was gradually pulling away, Turner got behind defendant and turned on his red light. Defendant slowed down to 65 miles per hour and pulled over to the third lane. At this time Turner’s partner flashed a white spotloght on the rear window of defendant’s vehicle. Defendant continued in the third lane at a speed of approximately 65 miles per hour for about one-quarter mile before he applied his brakes. During this period Turner observed defendant’s right arm go to the area of his face and then noted his right shoulder go down four or five inches. He also noted lateral body movement of five or six inches. After traveling the one-quarter mile in the third lane defendant applied his brakes, yielded to the right and came to a stop. The traffic was described as light to moderate.

Pursuant to Turner’s request defendant alighted and went to the rear of the vehicle. Turner then examined the area under the front seat of the Volkswagen. He testified that from the movements of defendant’s arm and body and his delay in stopping he suspected that defendant may have concealed a can of beer or some other alcoholic beverage. Turner found nothing under the seat but did find lumps of damp greenish substance on the right side of the driver’s seat. It was. stipulated that the substance consisted of 1.5 grams of marijuana and hashish. Defendant did not testify at the preliminary hearing or at the 1538.5 hearing.

There was neither a search warrant nor consent to search. While a stop for a minor traffic violation, without more, does not justify a search of a vehicle