People v. Evans
| Decision Date | 05 September 1973 |
| Docket Number | Cr. 22254 |
| Citation | 109 Cal.Rptr. 719,34 Cal.App.3d 175 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Jay Fredrick EVANS, and Richard Joseph Garvas, Defendants and Appellants. |
Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Appeals Section; William E. James, Asst. Atty. Gen., Appeals Section; Norman H. Sokolow, Ellen Birnbaum Kehr, Deputy Attys. Gen., for plaintiff and respondent.
Defendants appeal from a conviction of possession of marijuana for sale. (Health & Saf.Code, § 11530.5.)
Shortly before midnight on May 24, 1971, Sheriff Deputies Varro and Smith saw a van traveling at about 55 to 60 miles an hour in a zone with a posted speed limit of 35 miles per hour. They stopped the van. It appeared that Garvas was the driver and Evans the only passenger. Deputy Smith approached Garvas, while Varro went to the passenger side. As he approached Evans, he saw him faced 'toward the rear . . . and moving about.' Evans' back was turned toward him. Varro tapped on the rolled-up window on the passenger side. Evans rolled it down. Varro asked him for identification. At that time he noticed an 'extremely strong smell of alcoholic beverage.' It smelled like wine. There was no alcohol on his breath. Varro believed the smell of alcohol was too strong to be coming from one or two persons. 1 He asked Evans to step out of the vehicle. He suspected that there was an open container of an alcoholic beverage in the van. (Veh.Code, § 23123.) Apparently at about the same time as Varro asked Evans to step out of the vehicle, he also requested him to pull back a curtain which separated the area of the two front seats from the back of the van. Evans complied. Using a flashlight Varro determined that no other person was in the back. From where he was standing, Varro could not see whether there was an open container in the front part of the vehicle. Both Evans and Garvas then stepped out of the van and were taken to the rear where they remained with Deputy Smith for the time being. Varro then reentered the van to look for the open container which he suspected to be inside. He noticed a large brown paper sack on the console between the seats. Thinking that it might contain a bottle he opened it. Instead of a bottle, he saw a large quantity of money which appeared to consist of many twenty dollar bills. 2 At that point his thoughts shifted from open containers to armed robbery and counterfeiting. He took the bag to Deputy Smith and informed him of his suspicions. Garvas and Evans were asked how much money was in the bag. Both said that they had no idea.
Varro reentered the van. As he climbed across the console to the back he noticed several canvas bags scattered about on the floor. He slipped on one of them and fell against another which was partially open. With his flashlight he 'peered into the opening, into the bag, and observed numerous square packages resembling kilos of marijuana.' 3 The marijuana was soaked in wine. Eventually it developed that the several canvas bags in the back of the van contained '50 compressed bricks of plant material, 35,026 grams total weight marijuana.'
On appeal defendants contend: 1. the marijuana was illegally seized; and 2. the People failed to establish that Evans was in knowing possession of contraband.
1. The Seizure: Defendants attack every single step which led to the discovery of the contraband. None of their contentions has merit.
They first impugn the stopping of the van, pointing to the fact that it was not being driven erratically and that there was no other traffic on the road.
The speed of the van exceeded the posted limit by 20 to 25 miles per hour. (Veh.Code, § 22362.) While there was no moving traffic at the time, there were vehicles parked along the side of the street and there were two bars in the area. Certainly the officers had 'reasonable cause to believe' that a public offense had been committed in their presence. (Pen.Code, § 836.)
Defendants claim that Varro had no right to order Evans to leave the vehicle. In the circumstances, Varro was entitled to ask Evans to roll down the window to talk to him. (People v. Superior Court (Kiefer), 3 Cal.3d 807, 830, 91 Cal.Rptr. 729, 478 P.2d 449.) At this point, when Varro smelled an overpowering odor of alcohol that could not have been coming from one or two people, he was entitled to investigate further. It was not unreasonable to order Evans out of the car. (People v. Figueroa, 268 Cal.App.2d 721, 726--727, 74 Cal.Rptr. 74.) We cannot say that the request violated any substantial right of Evans.
The discovery of the large amount of cash in the brown paper bag is attacked on the ground that it was not necessary for Varro to open the bag in order to ascertain whether it contained an open beverage container. In making this argument defendants equate brown paper bags with people, claiming, in effect, that in searching for a container Varro was bound to use the least intrusive means of accomplishing his purpose. Thus, they argue he could have determined that the bag contained neither a bottle or can by squeezing it. (Cf. Terry v. Ohio, 392 U.S. 1, 25--26, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Mickelson, 59 Cal.2d 448, 452--454, 30 Cal.Rptr. 18, 380 P.2d 658.)
We know of no rule of law to the effect that although the police are entitled to search, they must disprove, with respect to every stage of the search, that their objective could have been attained by less intrusive methods. There is no suggestion in this case that Varro peeked rather than pinched because he was not really looking for a bottle or a can. He simply employed one reasonable means of ascertaining what was inside the bag instead of another. That he was entitled to look for a container, admits of no doubt. Whether or not a suspicion that such a container was in the rear of the van--which had no trunk--would have pointed to a violation of section 23123 of the Vehicle Code is not terribly important. The brown paper bag was within easy reach of the driver.
Once the unusual amount of cash, genuine or contraband, 4 was found, the focus of the search shifted. The officers reasonably suspected that the money was the fruit of a robbery or counterfeit and searched for further contraband or evidence. In view of the mobility of the vehicle they were entitled to do so. (Brinegar v. United States, 338 U.S. 160, 164, 69 S.Ct. 1302, 93 L.Ed. 1879; Carroll v. United States, 267 U.S. 132, 153--154, 45 S.Ct. 280, 69 L.Ed. 543.) The right to search did not depend on the right to arrest. (Carroll v. United States, Supra, 267 U.S. at p. 156, 45 S.Ct. 280.) In the course of the clearly permissible search, Varro then literally stumbled onto contraband. (Cf. People v. Superior Court (Kiefer), Supra, 3 Cal.3d 807, 816--817, 91 Cal.Rptr. 729, 478 P.2d 449.)
Defendants raise an additional issue which is surely Sui generis: that 'the prosecution gave away the evidence which the Court relied upon to justify the search of the rear portion of the van where the contraband was found.' They refer to the money, genuine or counterfeit, which was found in the paper bag.
We leave aside the question whether the discovery of the money was essential to justify searching that portion of the van within reach of the driver. We also assume, but do not decide, that a perversely technical application of the best evidence rule (Evid.Code, §§ 250, 1500) would--on proper and timely objection--preclude the receipt of secondary evidence concerning 'the contents' of the pieces of paper found in the bag. We find simply that the way the problem arose below precludes its consideration here.
At defendants' preliminary hearing Varro's evidence concerning his discovery of the money, his questioning of defendants with respect thereto and his suspicions as to its significance was received without objection. After a motion to dismiss had been extensively argued and denied, counsel for Garvas requested that the money 'be sequestered by the District Attorney and the bills kept available.' The prosecutor announced that the money had been turned over to the 'Federal Government.' The magistrate suggested that defense counsel should take steps to obtain the evidence. Counsel, however, had a better idea: he moved--belatedly and, of course, unsuccessfully--to strike all testimony 'with reference to the $21,000 themselves on the ground that the dollar bills would be the best evidence.' The court then repeated its ruling denying the motion to dismiss.
In the superior court motions under section 995 and 1538.5 of the Penal Code were argued and submitted, one right after the other, on the transcript of the preliminary hearing. During the argument on the...
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