People v. Gil

• Decision Date: 27 January 1967
• Docket Number: Cr. 12446
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Celestino Tapia GIL, Defendant and Respondent.

Page 88

56 Cal.Rptr. 88

248 Cal.App.2d 189

The PEOPLE, Plaintiff and Appellant, v. Celestino Tapia GIL, Defendant and Respondent.

Cr. 12446.

Court of Appeal, Second District, Division 3, California.

Jan. 27, 1967.

Hearing Denied March 22, 1967.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., of Los Angeles County; Harry Wood, Chief, Appellate Division, Robert J. Lord, Deputy Dist. Atty., for appellant.

Erling J. Hovden, Public Defender of Los Angeles County, James L. McCormick, Deputy Public Defender, for respondent.

COBEY, Justice.

This is an appeal by the People pursuant to Penal Code, section 1238(1) from an order setting aside an information charging possession of marijuana in violation of Health and Safety Code, section 11530, a felony, on motion by the respondent under Penal Code, section 995, on the ground that the search of his car by two deputy sheriffs, which was made incident to his lawful arrest for drunk driving, was constitutionally unreasonable. (U.S.Const., 4th Amend.; Calif.Const., art. I, sec. 19.)

The pertinent facts follow. Two deputy sheriffs stopped respondent in his car after observing erratic and illegal driving on his part. Just after they had turned on the red light of their patrol car, honked its horn and turned its spot light into the rear window of respondent's car, respondent turned around and looked at their patrol car. Respondent then drove 30 to 40 feet farther before turning into the driveway at the rear of a hamburger stand, crossing the rear of a parking lot and parking in the parking area. Immediately after stopping he was observed by one of the officers to 'lean forward out of view and come directly back to a sitting position.'

One of the officers then asked respondent to get out of his car and produce his driver's license. At this time his partner smelled a strong odor of alcoholic beverage on respondent's person. Respondent had trouble standing without weaving from side to side and two or three times he had to hold on to the door on the driver's side of the vehicle. His speech in answering questions was slightly slurred. He was then placed under arrest for driving under the influence of alcoholic beverage, advised of his constitutional rights and placed, seated and handcuffed, in the back of the patrol car which was parked directly behind his car.

One of the officers, sitting in the front seat of the patrol car, then started to fill out the CHP storage form on respondent's vehicle. Respondent started protesting violently about having his car stored and requested that instead it be left there so that a friend of his could pick it up. The officers did not ask respondent in response to this protest, whether or not he was protesting the proposed storage of his car because of the expense to him.

In spite of respondent's protest the two officers went together over to respondent's car to inventory its contents. A cap, like the cap of a whiskey bottle, was observed on the front seat and an empty beer can was found on the floor board behind the driver's seat. Believing that there might be whiskey or beer under the front seat, due to respondent's bending over on being stopped, as related above, and for inventory purposes as well, one of the officers looked under the front seat of respondent's car.

As he was getting up, this officer lifted up the small rubber floor mat of approximately mately 16 to 18 inches by 8 to 12 inches provided for the driver's feet and discovered there 'a white hand-rolled cigarette,' which subsequently was proven to be a marijuana cigarette.

According to his partner, the officer picked up this floor mat from force of habit. It was not done for inventory purposes poses but on a 'hunch' due to respondent's violent protest against the storage of his car, his nervousness during the making of the inventory and due to his leaning over and going out of sight just after he stopped his car. The officer's partner further testified that the floor mat was looked under because respondent could have been driving either under the influence of alcohol or drugs.

The two officers then went back to the patrol car and arrested respondent for possession of marijuana. They then returned to respondent's car for a further search and found nine marijuana seeds on the two seats, the rear floor boards and under the rear seat of respondent's car.

The search, which is here attacked as being constitutionally unreasonable, was made incident to a lawful arrest, (Veh.Code, § 23102(a)) and to a customary and well-justified procedure--the inventorying of the contents of respondent's car (see People v. Ortiz, 147 Cal.App.2d 248, 250, 305 P.2d 145), preliminary to its lawful impounding. (Veh.Code, § 22651(h)). Therefore, there can be no question about the constitutionality of the search in terms of its having been properly occasioned. (People v. Nebbitt, 183 CalApp.2d 452, 459, 461, 7 Cal.Rptr. 8, hear. denied.)

Of course, the search under attack cannot be constitutionally justified by the fact that it did uncover marijuana. (People v. Brown, 45 Cal.2d 640, 643, 290 P.2d 528.) On the other hand it is not necessarily constitutionally vulnerable because it turned up evidence of a crime different from the one which occasioned the search. (People v. Galceran, 178 Cal.App.2d 312, 317, 2 Cal.Rptr. 901.)

What is challenged in this case in reality is the scope of the search. In view of the nature of the offense for which respondent was arrested, namely, drunk driving, it was proper for the officers to search his car for additional evidence related to this offense and particularly for liquor containers. (People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834.) As related above, they found this type of evidence in what appeared to be a cap to a whiskey bottle and in the empty beer can. However, such containers could not have been under the small...