People v. Coleman

• Decision Date: 01 February 1968
• Docket Number: Cr. 13748
• Citation: 258 Cal.App.2d 560,65 Cal.Rptr. 732
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Carol Ann COLEMAN, Defendant and Respondent.

Page 732

65 Cal.Rptr. 732

258 Cal.App.2d 560

The PEOPLE, Plaintiff and Appellant, v. Carol Ann COLEMAN, Defendant and Respondent.

Cr. 13748.

Court of Appeal, Second District, Division 5, California.

Feb. 1, 1968.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Woodruff J. Deem, Dist. Atty., Ronald H. Gill, Chief Appeals Deputy, and Richard W. Hanawalt, Deputy Dist. Atty., for plaintiff and appellant.

Richard Erwin, Public Defender, and Kenneth Cleaver, Deputy Public Defender, for defendant and respondent.

STEPHENS, Associate Justice.

Defendant was charged by information with violation of Health and Safety Code section 11530 (possession of marijuana) after a preliminary hearing. Her motion pursuant to section 995 of the Penal Code to set aside the information was granted on the ground that the marijuana had been illegally seized. The appeal is from this ruling.

The facts surrounding the arrest are as follows. At 2:30 a.m. on January 14, 1967, two highway patrolmen while on duty observed a Buick automobile on a freeway in Ventura County. The automobile was moving at approximately 25 to 30 miles per hour in a highway zone of 65 miles per hour. The car appeared to be moving erratically, weaving and crossing over the lane markers. The officers followed the vehicle for from one-quarter to one-half a mile, and then Officer Rhodes flashed his red light on the rear of the vehicle. When the occupants of the vehicle did not respond, the white light was turned on the car. Shortly thereafter, the car pulled over. Officer Rhodes noticed physical activity within the car during the time of the car's slowing to a stop; the passengers were seen to bend forward from their previous positions in their seats. Ultimately, the Buick came to a stop. The occupants were two males in the front seat, and the defendant, a young female, in the rear. An open beer can containing a liquid that smelled like beer was found at the feet of the defendant, and another opened can of beer was found on the floorboard in front of the front seat of the car. These were taken into custody. All of the occupants were asked to step from the vehicle. Both officers examined the eyes of the defendant, and found them to be dilated to an extreme degree. The driver was given a sobriety test, which he passed. During a time when the defendant was with Officer Rhodes near the rear door of the Buick, the driver of that car spoke to Officer Reid. At this time Officer Reid and the driver were behind the Buick. The driver said, 'She's got weed. Check her pockets.' Reid motioned for Rhodes to return to the area behind the Buick, which he did, in the company of defendant. Reid did not tell Rhodes what the driver had said, nor did Rhodes tel Reid about the furtive movements in the car. Officer Reid asked defendant to empty her pockets; she took some of the items out of her pockets, but a bulge still remained. The officer then requested that she take out the rest of the items, but she stated that all the items had been removed. At that point the officer reached into her pocket and took out a lozenge-container which contained marijuana. The males were cited for having the opened containers containing alcohol in the car, in violation of the Vehicle Code, and the defendant was placed under arrest for possession of marijuana.

Defendant contended on review of the evidence in the superior court under section 995 of the Penal Code, after the preliminary hearing, that there was a lack of probable cause for the arrest. The superior court finding was based on a review of the evidence independent of the statement by the driver that the defendant possessed marijuana, as the District Attorney has argued that there was enough probable cause without the statement. On appeal, the District Attorney presents a number of theories which would sustain the search without the evidence as to the statement, along with an analysis of the import of the statement. We feel that the only analysis which accords with the realities of the situation before us is one that takes into account this statement. Up until the point the statement was made, it is unlikely that the search would have occurred. After the statement, it would have been unreasonable for the officers to ignore it and not to investigate further, given the pattern of circumstances that surrounded the encounter. The entire purpose for allowing police officers to investigate a pattern of suspicious circumstances is to give them an opportunity to protect the public, and to do so with a minimal interference with the individual's right of privacy. When a further investigation reveals that illegal activity is probably involved, the police could then make an arrest. (People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658.)

The public defender concedes, correctly, that the driving pattern of the vehicle was such as to warrant the stopping of the car. While the investigation proceeded, the driver accused the defendant of possessing contraband.

It is to the knowledge had by Officer Reid at the time of the search to which we must look to ascertain reasonable cause therefor. Officer Reid had knowledge of the erratic driving of the vehicle. He knew there had been two passengers in the vehicle as well as the driver, and that the defendant was one of those passengers. He knew that the defendant, as sole passenger in the rear seat of the car, had an open can of beer in her possession. He knew the eyes of defendant were dilated to an extreme degree. ¹ He knew that the driver had accused defendant of possession of contraband. ² He knew of the bulging condition of defendant's pocket prior to his directive for it to be emptied, but it could not have been of any significance before the demand. The defendant contends that, conceding Officer Reid had all of the facts in his knowledge as we have stated them, without the accusatory statement, there is no reason to conclude that the...