People v. Superior Court

Opinion

FILES, P. J. This is a mandate proceeding brought by the People to review an order of the respondent court under Penal Code section 1538.5 suppressing the contents of a plastic baggie which had been taken from the closed engine compartment of an automobile.

In the underlying superior court action the defendant (real party in interest here) was charged with possession of phencyclidine, commonly known as PCP, for sale in violation of Health and Safety Code section 11378.5. The motion to suppress was submitted upon the testimony of Deputy Sheriff McCann received at the preliminary examination. The material facts are simple and undisputed. The trial judge stated that he fully credited the testimony of the People’s witness.

[453]Deputy McCann testified that, at 5 a.m. on October 27, 1979, he and his partner in uniform were patrolling in a marked sheriff’s vehicle looking for a stolen car which had been reported to be in the area. They saw a 1964 Chevrolet parked on private property with the engine compartment hood up. Defendant was standing in front of the Chevrolet and “numerous” persons were standing to the rear of it. McCann stopped his vehicle about 15 or 20 feet away from the Chevrolet and switched on his alley light, which illuminated the defendant and the car. At that time he detected the odor of phencyclidine. Officer McCann then saw defendant place what appeared to be a plastic baggie in the engine compartment of the Chevrolet and close the hood. Officer McCann then requested assistance. While waiting for the backup unit he stepped out of his vehicle and approached defendant and asked him “to stay around the area.” The odor of PCP seemed to be coming from the engine compartment of the Chevrolet.

When the backup unit of two officers arrived, McCann asked one of them to look in the engine compartment. That officer reached into the compartment, picked up the plastic baggie and gave it to McCann. The bag had the odor of phencyclidine. McCann approached defendant and found that the same odor was about him. Defendant was then arrested.

The plastic baggie contained a bottle of liquid containing PCP and five bindles of plant material treated with PCP.

At least three reported decisions have upheld a seizure from the engine compartment of an automobile upon a showing of probable cause to believe contraband would be found there. In People v. Doherty (1967) 67 Cal.2d 9, 22 [59 Cal.Rptr. 857, 429 P.2d 177], the seizure was upheld as incident to an arrest. In People v. Mendez (1973) 35 Cal.App.3d 606, 609 [110 Cal.Rptr. 894], the court observed that the vehicle was mobile and that it was impractical to obtain a warrant. In People v. Green (1971) 15 Cal.App.3d 766 [93 Cal.Rptr. 433], the court upheld the seizure of a shotgun concealed under the hood, which otherwise might have been used against the officers and others.