People v. Aviles

Opinion

FRANSON, J.

*

Appellant appeals from a judgment of conviction entered pursuant to a jury verdict finding him guilty of violation of Health and Safety Code section 11530, possession of marijuana.

On February 21, 1970, at approximately 10:30 p.m., California Highway Patrolmen Kaiser .and Spence were in Cutler at the intersection of Road 124 and Avenue 408, investigating a hit-and-run property damage accident. While parked at the side of Road 124, they observed a car coming from'their rear, traveling north on Road 124, with its headlights out of adjustment. Officer Kaiser stepped out of the patrol car and flagged down the approaching car with his flashlight. As it slowed to stop, Kaiser noticed the passenger “with his left hand appear to be hiding something

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or he was doing something with his left hand.” Kaiser could see the chest, shoulders and head of the passenger.

After the car stopped, Kaiser went to the passenger side of the automobile and asked appellant, who was the passenger, to bring his left hand into view. When he did not respond, Kaiser opened the door and asked him to step out of the car. Appellant, upon stepping from the car, did not immediately present his left hand for Kaiser’s inspection; however, he finally brought his left hand around in front of him and the officer saw that he had nothing in his hand. Appellant made no other gesture, statements or threats. Having ascertained that appellant had nothing in his left hand, the officer asked him what he was hiding and, simultaneously, reached forward and flipped open appellant’s coat. As testified to by Officer Kaiser: “Well, I asked him what he had in his—there, you know,'what he was hiding, and at the same time I reached forward and flicked the coat open—he had on a car coat—flicked the coat open and saw this plastic bag in his waistband, and then he made a motion to put it down further, and I reached for it at the same time and grabbed the bag and pulled it out.”

The bag subsequently proved to contain 10.6 grams of marijuana.

Appellant contends that the search was unlawful and that the marijuana found on his person was illegally obtained and should have been excluded from evidence. Having moved to suppress the evidence at the trial, appellant has standing to raise this point on appeal.