People v. Manning

• Citation: 33 Cal.App.3d 586,109 Cal.Rptr. 531
• Decision Date: 17 July 1973
• Docket Number: Cr. 23119
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Rodney Stenvey MANNING, Defendant and Respondent.

Page 531

109 Cal.Rptr. 531

33 Cal.App.3d 586

The PEOPLE of the State of California, Plaintiff and Appellant, v. Rodney Stenvey MANNING, Defendant and Respondent.

Cr. 23119.

Court of Appeal, Second District, Division 2, California.

July 17, 1973.

As Modified July 24, 1973.

Rehearing Denied Aug. 8, 1973.

Hearing Denied Oct. 10, 1973.

Roger Arneberg, City Atty., David M. Schacter and David L. Margulies, Deputy City Attys., for plaintiff and appellant.

Richard S. Buckley, Public Defender of Los Angeles County, Michael M. Crain and Harold E. Shabo, Deputy Public Defenders, for defendant and respondent.

Joseph P. Busch, Dist. Atty., of Los Angeles County, and Harry B. Sondheim, Deputy Dist. Atty., as amicus curiae on behalf of plaintiff and appellant.

COMPTON, Associate Justice.

Defendant was charged by complaint in the municipal court with violation of former Health and Safety Code section 11910 (possession of barbiturates; see now Health and Safety Code section 11377). Pursuant to subdivision (g) of Penal Code section 1538.5, defendant's motion to suppress the contraband was heard at a special hearing held immediately before the time scheduled for the trial. Only the arresting officer testified. At the conclusion of the special hearing the court granted a motion to suppress and, for that reason, dismissed the complaint.

As authorized by subdivision (j) of Penal Code section 1538.5, the People appealed from the suppression order to the appellate department of the Superior Court of Los Angeles County. In a written opinion, that department reversed the suppression order and remanded the cause to the municipal court for further proceedings. However, on its own motion and pursuant to Rule 63, California Rules of Court, the department certified transfer of the appeal to this court as doing so appeared 'necessary to settle important questions of law.' The department set forth those questions as follows:

'What formal requirements are there for a motion under Penal Code section 1538.5? What are the penalties for noncompliance with the requirements?

'What standards are to be used by an appellate court in passing upon the action of the trial court in granting such a motion to suppress evidence?'

The department added, 'We feel an expression by a higher court would be of assistance not only to the trial courts in considering the many motions filed under this section but to us in reviewing their decisions.'

We certified transfer of the appeal and such transfer being for 'hearing and decision' of the appeal from the municipal court (Rule 62(a)), we received additional briefs (Rule 65) and heard argument. We reverse the order suppressing evidence and, consequently, the order dismissing the complaint and remand the case to the municipal court for further proceedings. Although we conclude that the evidence received on hearing of the motion to suppress warranted only the denial of that motion, in keeping with the certification we discuss the formal requisites of such motions and the standards for reviewing rulings upon them.

To illuminate the contentions of these parties, it is necessary to recite both the procedure and facts of the case in some detail. At arraignment on August 22, 1972, the cause was assigned to a trial department and trial was set for September 11. Apparently counsel for defendant mentioned a motion to suppress and, with reference to the trial date, the court's order read, '1538.5 motion to serve and file 10 days prior.' However, no notice of such a motion was ever filed or served on behalf of defendant.

On the trial date (trailed to September 12), defendant was represented by a deputy public defender other than the one who represented him at arraignment and the People were represented by another deputy city attorney. On counsel's announcing of his motion to suppress, no specific objection was made by either the court or counsel for the People to the lack of notice. However, the court asked counsel 'to state the grounds for your motion and the matters you seek to have suppressed.' Counsel replied: 'We seek to have suppressed any and all contraband which was seized by the arresting officers in connection with this case, specifically but not limited to four capsules containing a substance resembling Seconal, on the ground that it was seized in violation of (defendant's) Fourth Amendment rights with regard to search and seizure.'

On the court's urging to elaborate, counsel professed his inability to do so and the court admonished, 'Counsel, if you want to be strict about it, the 1538.5 hearing is supposed to be initiated by the filing of a written notice of motion and points and authorities specifying the particular authority upon which the legal grounds are based and the objection is founded and the particular items sought to be suppressed. . . .

'It's a matter of discretion which this court and most courts don't insist upon.'

Further discussion of the problem proved unfruitful, although counsel for the People stated his objection that: 'I don't know upon what grounds the suppression is being sought, what the legal argument is. I think defense counsel is forcing me to put on my case from the very beginning to the very end, because I don't know what he is claiming and, in effect, it's a complete trial prior to having a jury trial.'

The special hearing on the motion proceeded, the People called Los Angeles Police Officer Rodney Sieg as their only witness, and he was briefly examined and cross-examined. The defense offered no evidence. In the interest of fidelity to the record, we quote extensively from the transcript in reciting the testimony and the ruling.

At about 8:25 on the morning of August 19, 1972, Officer Sieg and his partner, both in uniform and on regular patrol in a police vehicle, were patrolling in the area of Cahuenga and Selma Avenues. Officer Sieg 'noticed the defendant slumped over in the back seat of a 1965 T-Bird parked in the corner parking lot at that location.' The officers parked their vehicle behind the 'T-Bird' and Officer Sieg approached it on the right-hand side, his partner following some distance behind. After Officer Sieg had walked up to the 'T-Bird,' he observed that defendant 'was seated in the right back seat slumped over as if unconscious.' There was no one else in the car and the right front window was down.

Officer Sieg spoke to defendant through the open window and 'asked the defendant if he was okay. He mumbled something. I couldn't understand what he said. I asked him to exit the vehicle.' Because of its apparent significance in the court's ruling, we refer at this point to the later cross-examination as to the initial words that may have passed between Officer Sieg and the defendant. As a random question, the officer was asked, 'What was it you first said to (defendant) prior to the time you told him to exit the car? Did you say something prior to that time?' The officer answered, 'I believe I asked him if he was sick or all right.' The questioning then abruptly turned to an unconnected matter. In response to the officer's request for him to exit the vehicle, the defendant 'mumbled something,' the officer opened the front door, and 'defendant pushed the right front seat forward and got out.' The seat remained pushed forward, the door remained open, and the officer 'glanced into the automobile, and on the floor where the defendant--in front of where the defendant was sitting on the right hand side, I saw four capsules that contained a white substance resembling Seconal.' At this time the officer was standing at the end of the opened door.

On defendant's getting out of the car, Officer Sieg observed that his 'speech and actions were extremely slow. His eyes were watering. His eyes were dilated. He had saliva running from both corners of his mouth and no alcoholic beverage on his breath.'

Officer Sieg concluded that 'he was under some type of drug, not alcohol.' However, this detailed observation of his symptoms was not made until defendant had exited the vehicle and Officer Sieg had seen the four capsules. The capsules were taken from the car and became the basis for the arrest and charge.

Turning to the court's ruling and the grounds for it, the court initially stated:

'What troubles the Court is this.

'There's no question in the Court's mind that the officer did have probable cause to arrest the defendant in this case once the officer had observed the various symptoms, including the defendant's speech, his actions, the appearance of his eyes and his mouth.

'There's also no doubt on the Court's mind that the officer could properly seize those Seconal pills which he observed as the result of the defendant's leaving the vehicle, once the defendant had left the vehicle, assuming that it was proper to make the defendant leave the vehicle.

'The question is this . . . whether the officer had a right to require the defendant to alight from the vehicle.

'Now, admittedly, the circumstances of a person being slouched in his vehicle is a suspicious circumstance and perhaps should warrant investigation so as to require a defendant to exit under some circumstances. However, the Court notes here the fact that it was morning And the defendant did indicate that he was all right. (Emphasis added.)

'Once the defendant's exit is established as a lawful command of the officer, then there's no problem. . . .

'Of course, you are faced here with The fact that the evidence says that the defendant said that he was all right before exiting. (Emphasis added.)

'Tell me this, Mr. (counsel for the People). Under the case law that exists today, if you had been driving and you decided you would stop and go into a parking lot, which is also a consideration here, the fact that it is a parking lot and not on the street, and decide that you would curl up in the back seat and take a snooze, and then an officer camp up to you and asked you if you were all right, And let's...