People v. Gutierrez

Opinion

SCOTT, J.

Joel Victor Gutierrez appeals from a judgment of conviction for burglary. He contends that the trial court erred in denying his motion to suppress certain evidence found on his person at the time of his arrest for driving under the influence of an alcoholic beverage or drug. We affirm the judgment.

At about 2:40 a.m. on January 1, 1983, Pinole Police Officer Mark Farnsworth observed a moving vehicle with several apparent mechanical violations of the Vehicle Code (broken headlight and taillight, bald tires). As he followed the car, he noticed that it was weaving from side to side within its lane of traffic. Officer Farnsworth stopped the car and asked the driver,

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appellant Gutierrez, to perform several field sobriety tests. From the tests and statements made by appellant, the officer determined that appellant was under the influence of either alcohol or drugs. Farnsworth placed appellant under arrest.

The officer noticed that while appellant was performing the sobriety tests, he repeatedly put his right hand into his right front pants pocket. Appellant continued to do this even after being asked to stop. After placing appellant under arrest, Farnsworth conducted a custodial search of appellant. In appellant’s right front pants pocket, the officer discovered a plastic baggie of marijuana; he also found a small cardboard box which appeared to be a pillbox. Believing it to contain more contraband, the officer opened it and discovered several pieces of jewelry, some evidently of high value. At first, appellant said that the jewelry belonged to his wife. As he was being put into the patrol car, appellant started to cry and said, “Okay, I’ll give them back.” After completion of booking at the police station, Farnsworth advised appellant of his

Miranda

rights. Appellant waived his rights and admitted entering Jean Wrightman’s house and stealing the jewelry. Thereafter, the jewelry was identified as having been stolen from Wrightman.

Appellant argues that the warrantless search of the closed cardboard box found on his person at the time of his arrest was illegal and that the trial court erred in refusing to suppress the evidence discovered inside the box. We disagree. This case is governed by article I, section 28, subdivision (d) of the state Constitution, since it arises out of facts occurring after the passage by the electorate of Proposition 8.