People v. Fitzpatrick

Opinion

DRAPER, P. J.

In a case submitted to the trial judge upon the transcript of the preliminary examination, defendant was convicted of possession of marijuana (Health & Saf. Code, § 11530). He had moved to suppress the marijuana as evidence (Pen. Code § 1538.5). That motion was denied. The court declared the offense to be a misdemeanor, and admitted defendant to probation for three years on condition that he pay a fine. He appeals.

At about 10 p.m., an officer saw a moving automobile with one headlight out. He stopped the car and asked the driver for identification. Defendant opened the window to hand his driver’s license to the officer. As the latter leaned forward to accept the document the officer (experiencd in the detection of marijuana) smelled the odor of burned marijuana. He asked the operator to step out. The odor was most distinctive on the person of defendant, rather than in the car itself or on the person of the other passengers. The officer informed defendant that it would be necessary to search his person and the automobile. He first reached into a pocket of defendant’s sport jacket, found a plastic bag of marijuana, arrested defendant, and found another bag of marijuana in the other coat pocket.

Appellant argues that the officer’s sense of smell, alone, cannot be the basis of probable cause for arrest or search

(People

v.

Marshall,

69 Cal.2d 51 [69 Cal.Rptr. 585, 442 P.2d 665]).

Marshall

but emphasizes (p. 56) the rule that entry of fixed premises authorized by a specifically limited

[826]

purpose, can justify seizure only of such objects, unrelated to the limited purpose, as are “in plain view”

(People

v.

Roberts,

47 Cal.2d 374 [303 P.2d 721];