People v. Bennett
Citation | 189 Cal.Rptr. 77,139 Cal.App.3d 767 |
Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Calvin E. BENNETT, Defendant and Appellant. A017183. |
Decision Date | 09 February 1983 |
Court | California Court of Appeals |
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., William D. Stein, Asst. Atty. Gen., Thomas A. Brady, Mark S. Howell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
LeRue Grim, San Francisco, for defendant and appellant.
Defendant Bennett pleaded guilty to charges of possession of cocaine (Health & Saf.Code, § 11350), a felony, and driving a motor vehicle while under the influence of alcohol and drugs (Veh.Code, § 23102, subd. (a)), a misdemeanor. Imposition of judgment was suspended and he was placed upon conditional probation. He appeals from the order granting probation, which he terms "judgment" in his notice of appeal. His only appellate contention is that the trial court erroneously denied his motion to suppress certain evidence, claimed to be the fruit of his unlawful detention and arrest, on his Penal Code section 1538.5 suppression hearing.
For reasons as follow we find no merit in the contention and affirm the judgment.
A highway patrol officer at about 2:30 o'clock one morning observed an automobile traveling upon a freeway in such a manner as to swing "into the south guard rail and [swing] back to prevent the vehicle from striking the wall." The car then "crossed three lanes accelerating to 70 miles per hour"; and passed many other automobiles. As it continued, it was "weaving" on both sides of a lane marker. It continued to be so driven for about one and a half miles, whereupon its driver was ordered to, and did, turn onto an off ramp. Upon being stopped a short distance beyond that point the car's driver, who was defendant Bennett, emerged from it. As he "stood up he stumbled back into the open car door." Asking for his driver's license, the officer observed a strong odor of alcohol, bloodshot watery eyes, and slurred speech. The officer "explained" Bennett's violation to him and told him why he had been stopped. And a field sobriety test was then conducted.
The field sobriety test, as explained by the officer consisted of the following:
Bennett "flunked" all but the first of the five tests. He was not until then placed under arrest, for driving a motor vehicle while under the influence of alcohol, in violation of Vehicle Code section 23102, subdivision (a).
Bennett makes no contention that he was arrested, following the field sobriety tests, on less than probable cause. He argues instead that the highway patrol officer's detention of him and administration of the tests, before his arrest on probable cause, was proscribed by the Fourth Amendment.
Closely apposite to the contention, we think, is the wise and timely comment of Chief Justice Traynor in People v. Sudduth, 65 Cal.2d 543, 546, 55 Cal.Rptr. 393, 421 P.2d 401:
A like contention was made by the defendant in Whalen v. Municipal Court, 274 Cal.App.2d 809, 79 Cal.Rptr. 523. We quote at length from the Court of Appeal's opinion (pp. 811-812, 79 Cal.Rptr. 523) of that case:
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