People v. Superior Court (Galbreath)

Opinion

STEPHENS, J.

This is a proceeding in mandamus, brought by the People pursuant to Penal Code section 1538.5, subdivision (o), challenging respondent court’s order granting real party in interest’s motion to suppress evidence.

The facts testified to by the arresting officers are these: At about 9:15 p.m., March 19, 1979, Deputy Tamayo of the Los Angeles Sheriff’s Department and his partner, Deputy Bowler, were on patrol in a black and white sheriffs car when they observed a Cadillac straddling two traffic lanes and weaving back and forth for a distance of approximately two blocks. Tamayo activated his red light and, after continuing another block, the Cadillac stopped. Tamayo approached the Cadillac and found real party in the driver’s seat. Tamayo recognized real party

[990]

as a former trusty at county jail whom Tamayo had known some five or six years earlier when he worked at the jail.

Upon recognizing real party, Tamayo said to him, “Hey, Rod, what’s happening? What have you been doing?” Real party got out of his car and he and Tamayo started a casual conversation relating to real party’s family and whether he was working. Because they were standing in the path of traffic, Tamayo said to real party, “Let’s step over to the curb so we don’t get run over by a car.” The two men walked back toward the police car which was parked behind real party’s car. When they were between the two cars, Tamayo observed real party make a tossing motion with his left hand. He did not see anything leave real party’s hand or land on the ground. Deputy Bowler, however, who was by the fender of the police car, near the curb, saw real party Joss a small glass vial from his hand. It landed in the gutter. Bowler retrieved it, opened it and discovered that it contained a white powder resembling cocaine. After this, real party was arrested.

Real party testified that he was not lane straddling before he was stopped by the deputies, that he was ordered from his car by Tamayo, that he was searched after he got out of the car, that his car was also searched and that Tamayo had the glass vial in his hands when he finished searching the car. Real party admitted having worked with Tamayo at the jail several years earlier when real party was a trusty and Tamayo was a truck driver and food handler. Adrienne Whaley, who had been a passenger in real party’s car at the time of his arrest, corroborated his testimony as to the events of that night.