People v. Christensen

Opinion

BROWN (Gerald), P. J.

James Andrew Christensen pleaded guilty to possessing marijuana after the court denied his Penal Code section 1538.5 motion to suppress the marijuana evidence. He appeals the court’s order granting him probation (deemed a final judgment, Pen. Code § 1237) which imposed no time to be spent in custody, but did require payment of a $200 fine and adjudicated the crime a misdemeanor.

About 2:30 a.m., November 27, 1968, Christensen was a passenger in a car owned and operated by his non-appealing codefendant, Patrick Coyle Branin. San Diego Police Officer Harry Jourdan saw Branin’s car turn sharply onto the onramp of Nimitz Boulevard from Catalina, bump into the onramp’s curb and continue onto Nimitz. The officer noted Branin’s license

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plate light was out and suspected the driver might be intoxicated. He redlighted the car. Branin stopped his car, got out and walked rapidly to the police car.

Officer Jourdan suspected Branin might be trying to hide something. He took Branin back to his car, looked in to see who the passenger was and smelled an odor of burning marijuana through the open car window.

Officer Jourdan called for additional police help. Two more officers arrived, one of whom also smelled the odor of burning marijuana through the open car window. Jourdan asked Branin “if there was anything in the vehicle he wouldn’t want [Jourdan] to see.” Branin said no. Jourdan asked “Is it all right if I look?” Branin said “Yes, you may.” The court ruled Jourdan’s search of Branin’s car which followed, disclosing usable quantities of marijuana, exceeded the scope of Branin’s consent. The court further ruled, however, the police were justified in searching based upon the smell of burning marijuana emanating from the car.

The permissible scope of a search incident to stopping a car for a traffic offense is stated in

People

v.

Graves,

263 Cal.App.2d 719, 733-734 [70 Cal.Rptr. 509]: “[A] valid arrest for a traffic offense permits a search by the arresting officer of the arrestee’s person for weapons, but does not justify a complete search of his person for evidence of other unrelated crimes unless the officer has probable cause for believing . . . the traffic offender is guilty of a crime other than the traffic offense for which he is being arrested. In the latter instance, the arresting officer is entitled to conduct a contemporaneous search of the offender’s person not only for weapons, but also for the fruits of or the implements used to commit crime.”