People v. Podesto

• Decision Date: 12 October 1976
• Docket Number: Cr. 2292
• Citation: 133 Cal.Rptr. 409,62 Cal.App.3d 708
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alan Eugene PODESTO and Bruce Harvey Sproul, Defendants and Appellants.

Page 409

133 Cal.Rptr. 409

62 Cal.App.3d 708

The PEOPLE, Plaintiff and Respondent, v. Alan Eugene PODESTO and Bruce Harvey Sproul, Defendants and Appellants.

Cr. 2292.

Court of Appeal, Fifth District, California.

Oct. 12, 1976.

Taylor & Taylor, Modesto, and Donald C. Smaltz, Los Angeles, for sproul.

Edward L. Lascher, Ventura, for Podesto.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Vincent J. Scally, Jr., Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION AFTER HEARING GRANTED AND CAUSE RETRANSFERRED TO COURT OF APPEAL BY ORDER OF SUPREME COURT DATED JULY 21, 1976.

FRANSON, Associate Justice.

STATEMENT OF THE CASE

Appellants were jointly charged by information with violation of Health and Safety Code section 11359, possession of marijuana for sale. Appellant Podesto was also charged with violation of Health and Safety Code section 11360, transportation of marijuana. Following denial of their respective 1538.5 motions to suppress, Podesto pleaded guilty to possession of marijuana for sale, and the charge of transporting marijuana was dismissed in the interests of justice. Appellant Sproul pleaded guilty to violation of Health and Safety Code section 11357, unauthorized possession of marijuana, a felony, a lesser included offense of possession of marijuana for sale. Appellants' applications for probation were denied, and they were sentenced to prison. Timely notices of appeal were filed pursuant to Penal Code section 1538.5, subdivision (m).

FACTS

At approximately 1:30 a.m. on August 6, 1974, Deputy Sheriffs Bell and Parker of the Stanislaus County Sheriff's office observed a brown Mustang being driven by Podesto, with Sproul as the passenger, come to a stop at the intersection of Geer Road and Highway 132 in Stanislaus County. The officers were parked approximately 100 yards from the intersection which was lit by a large street lamp. They were able to see and hear the Mustang, and by the sound and rate of acceleration as it left the intersection the officers believed it would exceed the speed limit. They gave pursuit.

In less than one-eighth of a mile from the intersection, the Mustang was traveling faster than 55 miles-per-hour. Deputy Parker, who was driving, estimated that he had to drive at a speed of 100--110 miles-per-hour to catch up with the Mustang; he estimated its speed at 95--100 miles-per-hour during the pursuit.

After chasing the Mustang for about two and one-half miles, the officers observed the vehicle suddenly swerve to the right off the paved portion of the road and Deputy Bell observed 'several hundred pieces' of 'some type of paper substance' being thrown from the passenger side of the Mustang. Bell had no idea what the paper substance was when he made his observation, but he did not believe it was contraband.

The officers thereafter sounded their siren and the Mustang came to a stop. When the officers approached the vehicle they accused appellants of speeding and throwing something from the car. The officers requested and received identification from appellants, and also took the ignition key from the car.

Prior to coming to a stop, the officers had requested a backup unit so that they could go back along the highway to see what had been thrown from appellants' vehicle. The backup officers arrived shortly, and were placed in charge while Officers Bell and Parker left to search for the debris which Bell had seen thrown from the car. ¹ About five minutes after Bell and Parker had left, Deputy Johnson, who had arrived with the backup unit, was standing next to the Mustang and, through an open window, observed marijuana spread out on the rear seat. He was able to see into the Mustang because his patrol car had its spotlight and headlights shining into the rear of the Mustang. Johnson waited until Bell and Parker returned about 20 minutes later, and told them about his observations which Officer Bell verified by making his own observation of the marijuana from outside the Mustang.

The officers ordered Podesto and Sproul out of the car and entered the passenger compartment, finding approximately one-half of a baggie of marijuana on the rear seat and floorboard. They also noticed a strong smell of marijuana coming from the back portion of the car. They lifted the back seat off its brackets and pulled forward a section of cardboard and observed some gunnysacks which appeared to contain bricks of marijuana in the back of the trunk. The officers then opened the trunk finding two gunnysacks containing approximately

70 pounds of marijuana. NO ILLEGALITY IN THE DETENTION AND ARREST OF APPELLANTS AND THE SEARCH OF THE MUSTANG

Preliminarily, we note that in a suppression proceeding under section 1538.5, the power to judge the credibility of the witnesses, to resolve any conflicts in the testimony, to weigh the evidence, and to draw factual inferences is vested in the trial court. On appeal, all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence. (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.) Nonetheless, the constitutionality of a search and seizure is a question of law, and '. . . it becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.' (People v. Lawler, supra, 9 Cal.3d at p. 160, 107 Cal.Rptr. at p. 15, 507 P.2d at p. 623.)

The pursuit of a motorist to see if he exceeds the speed limit is a commonplace and legitimate police activity. Thus, the officers were fully justified in stopping appellants for speeding and littering, both of which were misdemeanors committed in their presence. (Pen.Code, § 836, subd. (1).)

The detention permitted to issue a citation for minor traffic violations, such as speeding and littering, however, is limited in scope. The officer may require the driver to identify himself, produce his driver's license and the registration certificate for the vehicle, and he may interrogate the driver with respect to the violations which he has observed. Absent other suspicious circumstances, the officer may not search the driver or the vehicle, nor may he detain the driver for investigation of matters unrelated to the traffic stop. (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 201--202, 101 Cal.Rptr. 837, 496 P.2d 1205; (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 815, 91 Cal.Rptr. 729, 478 P.2d 449.) Under these rules, the speeding and littering did not justify detaining appellants beyond the time necessary to issue citations for those offenses. ²

Whether the officers were justified in detaining appellants for a purpose other than citing them for speeding and littering is the critical question. For the reasons hereafter explained, we hold that they were so justified and that the detention was reasonable, both as to scope and duration.

It is well established that circumstances short of probable cause to make an arrest may warrant a temporary detention for purposes of investigating possible criminal activity. (Terry v. State of Ohio (1968) 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889.) Before such a detention may be undertaken, however, there must be a rational suspicion that something out of the ordinary has taken place, that the activity is related to a crime, and that the person detained is connected to the activity. (Irwin v. Superior Court (1969) 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 462 P.2d 12.) The test in determining the validity of a temporary detention is to inquire whether the circumstances 'are such as to indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of the officer's duties, . . .' (People v. Robles (1972) 28 Cal.App.3d 739, 744, 104 Cal.Rptr. 907, 910.) The circumstances must be such as to distinguish the activity of the detained person from that of any other citizen and must be based on an objective perception of events rather than the subjective feelings of the officers. (See Irwin v. Superior Court, supra, 1 Cal.3d at p. 426, 82 Cal.Rptr. 484, 462 P.2d 12; People v. Moore (1968) 69 Cal.2d 674, 683, 72 Cal.Rptr. 800, 446 P.2d 800; People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95--96, 41 Cal.Rptr. 290, 396 P.2d 706.) Moreover, where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. (Irwin v. Superior Court, supra, 1 Cal.3d at p. 427, 82 Cal.Rptr. 484, 462 P.2d 12; cf. People v. Superior Court (Acosta) (1971) 20 Cal.App.3d 1085, 1088, 98 Cal.Rptr. 161; People v. Higbee (1974) 37 Cal.App.3d 944, 950, 112 Cal.Rptr. 690.)

Here, the circumstances confronting the officers clearly gave rise to an objectively reasonable suspicion on their part that something out of the ordinary had taken place involving criminal activity other than the traffic violations. The lateness of the hour, the excessively high and dangerous rate of speed at which appellants' vehicle had traveled, the sudden swerving and throwing of a large amount of paper from the car, while perhaps not establishing probable cause to search the vehicle, or to arrest appellants for any crime other than the traffic violations, nonetheless sufficed to give the officers cause to suspect that other criminal activity was afoot. It cannot be said that appellants' conduct from the time they left the Geer Road intersection to the time of the stop was as consistent with innocent as guilty activity, as would be the case where a motorist exceeds the speed limit by 5 or 10 miles per-hour and throws a few pieces of paper out of his car.

A reasonable inference arises from appellants' conduct that they had observed the officers' patrol car at the Geer Road intersection and...