People v. McVey

JANES, J.

Defendant was charged by information with unlawful possession of marijuana in violation of section 11530 of the Health and Safety Code. He moved first to set aside the information under section 995 of the Penal Code and then, under section 1538.5 subdivision (i) of the Penal Code, to

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suppress the evidence seized at the time of his arrest. In each instance the trial court ruled adversely to the defendant. He then entered a plea of guilty to the charge and appeals from the judgment, contending only that a search of his ear and the seizure of marijuana therein, without warrant, were unreasonable, and that the evidence should have been suppressed. (Pen. Code, § 1538.5 subd. (m).) The factual record before the trial court, and before us, is the reporter’s transcript of the preliminary examination.

At approximately 5 p.m. on December 15, 1967, Sergeant Johnson of the South Lake Tahoe Police Department and two detectives, in an unmarked car, were sitting and waiting in a parking lot adjacent to the Burger Bar, a hamburger drive-in. The officers had in their possession arrest warrants for six persons, each charged with violation of section 11556 of the Health and Safety Code (unlawful presence in a room or place where narcotics are being unlawfully smoked or used). The officers had no arrest or search warrant for the defendant or his car, but anticipated that some of the six suspects could be found at the Burger Bar at that hour. Although neither the defendant nor his ear was previously known to any of the officers on sight, Sergeant Johnson had information, from other officers on the force, that the defendant “was involved in the traffic of narcotics” and that he “was consorting with known narcotics offenders,” and one of the detectives had information that the defendant's vehicle was a “known narcotic traffic ear. ...”

As the officers sat in their car discussing the warrants and possible apprehension of the suspects, defendant drove his car into the parking lot, in a normal manner, and parked nearby. There were three or four passengers in the car, including two named in the arrest warrants. The officers eased the unmarked police vehicle up behind defendant’s car and, as all occupants except defendant alighted from the right side of the vehicle, the detectives arrested the two persons named in the warrants. Sergeant Johnson moved to the left side of the 2-door car and defendant opened the driver’s door and stepped out. Johnson, noting that the detectives had arrested two of the occupants, asked defendant for his driver’s license and identification. Defendant “. . . proceeded back to the left front door of the car and half-sat in the car. His right hand went to the area over the visor and his left hand withdrew from his pocket and placed something underneath the left front seat. ’ ’ He then stepped back to where Johnson was standing—about