People v. Callandret

• Decision Date: 01 July 1969
• Docket Number: Cr. 15837
• Citation: 78 Cal.Rptr. 917,274 Cal.App.2d 505
• Parties: The PEOPLE, Plaintiff and Appellant, v. Elvino Daniel CALLANDRET, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 917

78 Cal.Rptr. 917

274 Cal.App.2d 505

The PEOPLE, Plaintiff and Appellant, v. Elvino Daniel CALLANDRET, Defendant and Respondent.

Cr. 15837.

Court of Appeal, Second District, Division 4, California.

July 1, 1969.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Head Appellate Division, and Eugene D. Tavris, Deputy Dist. Atty., for plaintiff and appellant.

Richard S. Buckley, Public Defender, Alan H. Simon, James Franks, II and James L. McCormick, Deputies Public Defender, for defendant and respondent.

JEFFERSON, Associate Justice.

This is an appeal by the People from an order of the superior court suppressing evidence against defendant (pursuant to Pen. Code, § 1538.5) and from an order dismissing the action against him (pursuant to Pen. Code, § 1385). He was charged with grand theft and receiving stolen property.

The court's rulings were based upon the evidence adduced at a De novo hearing on the section 1538.5 motion to suppress. The single witness who testified was Officer George Moelle. He had been a member of the police force for 19 years, about half of that time assigned to the auto theft detail. At about 1:30 p.m. Officer Moelle was driving on the freeway, on an assignment unrelated to this case, when the unmarked police car in which he was riding with a fellow officer, approached a Chevrolet pickup truck proceeding in the same direction. In the bed of the truck Moelle observed portions of a Volkswagen engine and 'hub.' The automobile parts were covered by a piece of carpeting weighted down on three sides but loose and flapping on the fourth side, thus enabling the officer to see part of the cargo.

Officer Moelle was aware that Volkswagen parts were frequently stolen and employed in the construction of 'dune buggies.' The pickup truck carried commercial license plates and Moelle did not recall ever having seen it before. When the police car came alongside and Moelle was able to see the two occupants of the truck, he recalled having 'handled' the man in the passenger seat at some time in the past but did not specifically 'tie him in with automobiles.' Although there was nothing about the parts in the back of the truck which would indicate that they were not legitimately owned, he was suspicious and decided to stop the truck to ascertain if the parts were stolen.

Upon his command, the truck immediately pulled over and stopped. Officer Moelle approached the vehicle on the passenger side and his partner went to the driver's side. Defendant was the passenger. While his partner talked to the driver, Moelle asked defendant for some identification. As he talked to defendant, Moelle remembered that he had 'handled' defendant back in 1962 when defendant had been arrested for robbery; that, as it turned out, no complaint had been filed against him.

While he was talking to defendant,...