People v. Powell

Opinion

ASHBY, J. This is a People’s appeal, pursuant to Penal Code section 1238, subdivision (a) (1), from an order of the superior court granting defendant Powell’s motion under Penal Code section 995 to dismiss the information against him. The trial court’s order was based on the ground that the initial detention of the vehicle in which defendant was riding was unlawful and that therefore the evidence seized subsequent to that detention was inadmissible, and that without such evidence there was insufficient cause to hold defendant to answer.

The facts as adduced at the preliminary hearing were as tollows: At approximately 1:45 a.m., on November 18, 1972, Officers Biller and Writer, on patrol in a marked police vehicle, observed a 1967 Pontiac stopped at the intersection of Hill and Venice in Los Angeles. The traffic light facing the Pontiac turned green, but the Pontiac remained stopped for approximately one minute before proceeding through the intersection with the green light. The officers activated their emergency equipment and stopped the Pontiac, with the intention of issuing a citation for “[f]ailing to go on green.” The officers alighted from their vehicle, as did the driver of the Pontiac, Mr. Robinson.

Standing at the right side of the Pontiac, whose windows were down, Officer Biller smelled a strong odor of marijuana emitting from the vehicle. Officer Biller patted down Mr. Robinson for weapons, and smelled the odor of burnt marijuana lingering about Mr. Robinson’s person. Biller asked Mr. Robinson for the registration of the vehicle and was informed by Robinson that it was in the glove box. The officer feared that if Mr. Robinson, a large person, reached to the glove box to obtain the vehicle registration he would hide from the officer’s view the defendant, who was sitting in the right front passenger seat. Therefore he requested defendant to get out of the car.

When defendant alighted from the vehicle Officer Biller gave him a cursory search for weapons. During this search defendant became hysterical, spoke rapidly, jumped up and down, and appeared to cry and to be very excited. Officer Biller smelled the odor of marijuana about defend[805]ant’s person and heard rattling sounds, like pills shaking in a bottle, as defendant moved about.

No weapon was found and defendant was temporarily removed to a wall about 10 feet away, while other occupants of the car were given a cursory search. Officer Biller then discussed with Officer Writer the fact that from his smell of marijuana he suspected that there were narcotics on the person of these individuals, particularly defendant, or in the vehicle. From the rattling sound that he had heard, Officer Biller also suspected that defendant had some pills. Biller again approached defendant and placed his hands in defendant’s waistband, whereupon he felt a round tubular plastic object resembling a pill bottle wrapped in a paper bag. Defendant became hysterical and broke away from the officer’s grasp. During this scuffle two plastic vials containing pills and one baggie containing marijuana dropped to the ground. Defendant ran away, but the officer chased and captured him. Defendant was placed under arrest for possession of dangerous drugs.