People v. Evans
Decision Date | 24 July 1969 |
Docket Number | Cr. 15835 |
Citation | 79 Cal.Rptr. 714,275 Cal.App.2d 78 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Nathan EVANS, Defendant and Respondent. |
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, and Robert J. Lord, Deputy Dist. Atty., for appellant.
Richard S. Buckley, Public Defender, Charles Boags, Jo Kathleen Kaplan and James L. McCormick, Deputy Public Defenders, for respondent.
This is an appeal by the People from the trial court's order suppressing evidence and dismissing the case. The dismissal was ordered incident to the order granting defendant's oral motion to suppress evidence pursuant to Penal Code, section 1538.5.
The order must be reversed for several reasons. In the first place, the order suppressing the evidence is erroneous in that it is based upon the mistaken premise that the arresting officer's observation of marijuana seeds and debris on the automobile seat cushion upon which defendant had been seated immediately before he alighted from the vehicle did not provide probable cause for the further search which led to the discovery of additional and usable quantities of marijuana concealed on defendant's person. In the second place, the order of dismissal fails to comply with the requirement of Penal Code, section 1385 that 'The reasons of the dismissal must be set forth in an order entered upon the minutes.'
Respondent contends, however, that we may not reach the merits of the instant order because an appeal from a dismissal under Penal Code, section 1385, unlike an appeal from every other form of 'final judgment,' does not authorize a review of all precedent orders, and particularly the order suppressing evidence under Penal Code, section 1538.5 upon which the instant order of dismissal is based. He relies on the decision in People v. Sheahan, Cal.App., 79 Cal.Rptr. 299, filed June 27, 1969, by Division Four of the First Appellate District. We find the reasoning of this decision unpersuasive and inconsistent with the clear language and intent of Penal Code, sections 1538.5 and 1238, subdivision 7. We adhere to the decisions of this court in People v. Superior Court, 271 A.C.A. 395, 402, 76 Cal.Rptr. 712, and People v. Superior Court, 272 A.C.A. 463, 466, 77 Cal.Rptr. 646 (hearing denied). Subdivision (j) of Penal Code, section 1538.5 in pertinent part expressly provides:
(Emphasis added.)
It appears self-evident that the Legislature, in authorizing an appeal to be taken from a dismissal based upon the results of a 1538.5 hearing (Pen.Code, § 1238, subd. 7, and § 1538.5, subd. (j), quoted Supra), would not have provided that such 'review by appeal * * * shall be binding upon them' as to the admissibility of the evidence unless the appellate court on such appeal has the right to reach the merits of the order suppressing evidence.
Defendant's motion to suppress was submitted on the transcript of the preliminary hearing. The only indication of the court's reason for granting the motion to suppress and for ordering a dismissal is to be found in the following colloquy between court and counsel at the conclusion of the hearing:
1
The minute order reads as follows: A reading of the transcript of the preliminary hearing discloses evidence which we shall summarize briefly.
Los Angeles Police Officer Belding testified that shortly after midnight on June 9, 1968, he and Officer Hollingshead were on patrol duty when they observed a vehicle with both tail lights broken. They stopped the vehicle which was occupied by four adults, two seated on the front seat and two in the rear.
Officer Belding testified that 'We had exchanged words, my partner and I, as we approached the vehicle, that these could be four suspects who were involved in a robbery just prior to our stopping the vehicle.' Officer Hollingshead approached the driver and asked for his operator's license. The driver responded that he had none in...
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People v. Beasley
...the minutes, the order dismissing may not be considered a dismissal under section 1385.' (Emphasis added.) (See also People v. Evans, 275 A.C.A. 87, 89, 79 Cal.Rptr. 714; People v. Superior Court, 240 Cal.App.2d 90, 92, 49 Cal.Rptr. 365; People v. Shaffer, 182 Cal.App.2d 39, 45, 5 Cal.Rptr.......
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Wimberly v. Superior Court
...quantity of marijuana has been deemed sufficient to justify the search of a vehicle for additional contraband. (People v. Evans (1969) 275 Cal.App.2d 78, 82--83, 79 Cal.Rptr. 714 (seeds and debris observed on seat of vehicle); People v. Schultz (1968) 263 Cal.App.2d 110, 114, 69 Cal.Rptr. 2......
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Wimberly v. Superior Court for San Bernardino County
...been deemed sufficient to justify a thorough search of an automobile. (People v. Schultz, 263 Cal.App.2d 110; see also People v. Evans, 275 Cal.App.2d 78, 79 Cal.Rptr. 714.) And in recent decision, in finding the observation of a single hand-rolled marijuana-like cigarette alone to be insuf......
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People v. Fein
...69 Cal.Rptr. 585, 442 P.2d 665; People v. Burke, Supra, 61 Cal.2d 575, 579, 39 Cal.Rptr. 531, 394 P.2d 67; but see People v. Evans, 275 Cal.App.2d 78, 82--83, 79 Cal.Rptr. 714.) Therefore, even if the presence of two burnt marijuana seeds could, under the circumstances in the instant case, ......