People v. Superior Court

WOOD, P. J.

Defendants were accused of violating section 11530 of the Health and Safety Code (unlawful possession of marijuana). Their motions to suppress evidence (Pen. Code, §1538.5) and to dismiss the information (Pen. Code, §995) were granted by a minute order dated September 23, 1968. The People petitioned this court (2d Civ. 33804) for a writ of mandate compelling the superior court to vacate the order granting the motion to suppress evidence, and the People appealed (2d Grim. 15805) from the order suppressing evidence and from the order setting aside the information and dismissing the case. This court ordered that the hearing on the petition be deferred until the hearing of the appeal.

Appellant-petitioner (People) contends that the seizure of marijuana was reasonable, and that the court erred in suppressing that evidence; and that the court erred in setting aside the information.

At the preliminary examination, defendants’ motion to suppress evidence was denied, and the magistrate found that there was reasonable cause to believe that defendants were guilty of violating section 11530 of the Health and Safety Code. The evidence at the preliminary examination may be summarized as follows:

On July 20, 1968, about 2 or 3 a.m., Officers Vanderplas and Mercer were in uniform (California Highway Patrol) in a “marked” police car on Woods Avenue near First Street in Bast Los Angeles. They saw a Chevrolet automobile traveling northbound on Woods Avenue “without any lights at all on” ■—the car was “entirely dark.” The officers “pulled in behind” the Chevrolet and displayed the red lights on the police car. When the red lights came on, the driver (Vega) of the Chevrolet appeared to shuffle the upper portion of his body abnormally, as though he were grabbing something on the front seat. The Chevrolet turned right on First Street and stopped. Defendant Vega was driving the Chevrolet, and defendant Pitts was in the front seat next to him. Officer Vanderplas got out of the police car and ran, with a lighted flashlight, toward the Chevrolet. He saw defendant Vega make a “furtive movement” by “leaning over slightly to the right and forward” and he saw defendant Pitts “leaning

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slightly to her left and bending forward.” When he (officer) was next to the Chevrolet, he saw Vega pushing a white box under the front seat and Pitts putting a “metallic tin” under the front seat by the box. At that time, the beam of the officer’s flashlight was shining through a window of the Chevrolet. There were also fluorescent overhead street lights; and the headlights of the police ear, which was parked half a earlength behind the Chevrolet, were on “high beam.” Vega got out of the Chevrolet at the officer’s request and Pitts said that she was very ill and was on the way to the hospital. The officer “secured” Vega to the back of the Chevrolet and took the white box, which was protruding 2 or 3 inches, from under the front seat. The box contained cigarette wrapping papers and a brown leafy substance resembling marijuana. Defendants were arrested, and Officer Vanderplas searched the Chevrolet and found the tin can which Pitts had put under the front seat. (It is not clear from the record what, if anything, was in the can.)