People v. Superior Court (Meyer)

• Decision Date: 30 April 1981
• Citation: 173 Cal.Rptr. 544,118 Cal.App.3d 579
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, Roger Eugene MEYER, Real Party in Interest. Civ. 61126.

Page 544

173 Cal.Rptr. 544

118 Cal.App.3d 579

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Roger Eugene MEYER, Real Party in Interest.

Civ. 61126.

Court of Appeal, Second District, Division 4, California.

April 30, 1981.

John K. Van De Kamp, Dist. Atty., Los Angeles County, Donald J. Kaplan and Richard W. Gerry, Deputy Dist. Attys., for petitioner

Alan R. Baum, Beverly Hills, for real party in interest.

No appearance for respondent.

FILES, Presiding Justice.

This mandate proceeding was brought by the People pursuant to Penal Code section 1538.5, subdivision (o ) to review an order of the trial court granting defendant's motion to suppress as evidence marijuana found in plain view in defendant's vehicle on the basis that uncorroborated information provided by an unidentified and previously unproven informant did not justify the initial stop and detention of defendant's vehicle.

In the underlying action the defendant (real party in interest) is charged with possessing marijuana for purpose of sale and transporting marijuana in violation of sections 11359 and 11360(a) of the Health and Safety Code.

The motion to suppress was submitted upon the testimony of California Highway Patrol Officers Perkins and Balsavage received at the preliminary hearing and brief testimony of the defendant at the hearing on the motion, which did not dispute the material facts.

FACTS

Officer Perkins testified that at about 8:30 a. m. on May 21, 1980, he was stopped in his patrol vehicle along the center divider of the San Diego Freeway when a person dressed in civilian clothing drove up in a private car and identified himself as "a captain of a fire department." In an excited manner that person told the officer that he had just been driving northbound on that freeway and had observed a blue Chevrolet pickup truck with a white camper shell, California license number 598 RHT, traveling in the same direction on that freeway in a reckless manner and that one of Due to the exigency created by the threat of the brandishing of a gun, the officer immediately proceeded northbound on the freeway in an effort to overtake the suspected vehicle. In a short time he located the vehicle described by the informant. He called for back-up and continued to follow the pickup for three to four minutes in the heavy, slowing-moving traffic. The officer did not observe any erratic driving of the pickup during this time but he was able to view the occupants in the cab of the vehicle through the rear window of the vehicle's camper shell and the rear window of the cab compartment. He first saw only the driver, but then the passenger came into view as "his head just seemed to pop up from being in a down position." Officer Perkins activated his emergency lights to effect a stop. He saw the passenger appear to be hiding something by leaning forward with his shoulder and pushing something underneath the seat before the vehicle stopped on the shoulder of the freeway.

the occupants, apparently the driver, was "pointing a gun" at other cars. Officer Perkins wrote down the reported license number during the approximately two minute conversation with the informant, but did not obtain that person's name, address, car license number or any other identification.

Waiting for his requested back-up to arrive, Officer Perkins instructed the occupants to remain inside with their hands on the windshield. When the passenger started to get out, the officer approached the pickup with gun drawn and ordered him to get back inside. At this time Officer Balsavage arrived as back-up and the two officers, with guns drawn, removed defendant and the passenger from the pickup. They conducted a pat-down search, finding no weapon. Officer Perkins conducted a cursory search of the driver's compartment for a weapon, but found none. Instead he found two open beer containers beneath the seat. He also smelled the odor of alcohol on the defendant's breath. On this basis he administered a field sobriety test. During the test Officer Balsavage stood to the rear of the right side of the pickup to observe the passenger who had returned to the front seat. Toward the end of the test, which lasted five minutes or less, Officer Balsavage looked into the camper shell through its side window, which was approximately two feet long and one foot high, and observed in plain view what appeared to him to be marijuana packed in an open box. He had looked inside because Officer Perkins had told him there was a dog in the shell and he wanted to see what kind it was. He immediately approached the passenger and handcuffed him. He then directed Officer Perkins to arrest and handcuff the defendant. Officer Perkins had just concluded the test and, having determined that defendant was not under the influence, was citing him for the opened containers. The officers placed the suspects in a patrol car and return to the camper shell. Without warrant or consent, Balsavage opened the hatch-back door to the shell, releasing the odor of marijuana, which confirmed his original identification. He then seized the marijuana.

The trial court granted the motion to suppress on the grounds that the uncorroborated information supplied by the unidentified and previously unproven informant was insufficiently reliable to justify the initial stop and detention to investigate and that the immediate search of the passenger compartment of the vehicle after the occupants had been removed was unlawful. The police conduct following discovery of the open beer containers was found to have been lawful.

DISCUSSION

A. The stop and detention was justified.

We consider first the quality of the report of the unnamed "captain of a fire department" which started the investigation. That individual, in an automobile, stopped alongside a highway patrolman who was in a parked vehicle, and reported having seen a specifically described vehicle with a driver brandishing a weapon. In making this approach the "captain" exposed himself to identification. The highway patrolman might well have asked for personal identification, or at least might have noted the license plate of the informant so as to be able to find him if he was needed as a witness. The informant was acting voluntarily and openly and with no apparent reason to speak falsely.

In People v. Ramey (1976) 16 Cal.3d 263, 269, 127 Cal.Rptr. 629, 545 P.2d 1333, the court reviewed a number of "citizen informant" cases and summarized the law as follows: "It may therefore be stated as a general proposition that private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable. This does not, of course, dispense with the requirement that the informant whether citizen or otherwise furnish underlying facts sufficiently detailed to cause a reasonable person to believe that a crime had been committed and the named suspect was the perpetrator; and the rule also presupposes that the police be aware of the identity of the person providing the information and of his status as a true citizen informant. (People v. Abbott (1970) 3 Cal.App.3d 966, 970-971 (84 Cal.Rptr. 40).) In short, probable cause will not be provided by...