People v. Temple

• Decision Date: 19 July 1995
• Docket Number: No. F021054,F021054
• Citation: 36 Cal.App.4th 1219,42 Cal.Rptr.2d 888
• Parties: , 95 Cal. Daily Op. Serv. 5668, 95 Daily Journal D.A.R. 9600 The PEOPLE, Plaintiff and Appellant, v. Jed William TEMPLE, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 888

42 Cal.Rptr.2d 888

36 Cal.App.4th 1219, 95 Cal. Daily Op. Serv. 5668,

95 Daily Journal D.A.R. 9600

The PEOPLE, Plaintiff and Appellant, v. Jed William TEMPLE, Defendant and Respondent.

No. F021054.

Court of Appeal, Fifth District, California.

July 19, 1995.

Rehearing Denied Aug. 9, 1995.

Review Denied Oct. 19, 1995.

[36 Cal.App.4th 1221] Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Michael J. Weinberger and Joel Carey, Deputy Attys. Gen., for plaintiff and appellant.

Todd D. Riebe, under appointment by the Court of Appeal, Madera, for defendant and respondent.

OPINION

MARTIN, Acting Presiding Justice.

The People appeal from an order dismissing several drug charges against the defendant, Jed William Temple. The court dismissed the charges on its own motion after granting, in part, Temple's motion to suppress evidence on the ground the police lacked probable cause under the circumstances to search him.

THE FACTS

In the early-morning hours of August 25, 1993, Sergeant Steve Smith of the Madera County Sheriff's Department stopped a van in Oakhurst after noticing it had a broken taillight and was weaving. The driver got out and met Smith at the rear of the vehicle while the four passengers remained inside. When he smelled the odor of burnt marijuana on the driver, Smith decided to search the vehicle and its occupants. He directed the driver to get back in the van while he (Smith) radioed for assistance. According to the officer, "I knew there was marijuana in the vehicle, and I wanted a backup there so that I could individually search everyone in it and the vehicle."

Deputy Lynn Fullmer soon responded to the call and took up a position at the right side of the van as Smith approached the driver's window. Although all five occupants were smoking cigarettes, Smith detected the aroma of raw unburned marijuana from inside the van. He then asked for and received the driver's permission to search the van. He decided however to search the occupants first to avoid being "stiffed" by someone who otherwise might surreptitiously discard drugs during the vehicle search. He instructed Fullmer to search the front passenger, identified as the defendant Temple, while he (Smith) searched the driver. According to Smith, the decision to search Temple was based on "his presence in a vehicle where I smelled marijuana." The acknowledged object of the search was marijuana.

Fullmer began the search by patting down Temple's clothing. He felt and then removed from Temple's right front pocket what he believed to be a pipe for smoking marijuana. A further search uncovered a baggie of suspected marijuana in the same pocket, another in Temple's wallet, and a small packet also in his wallet containing a white powdery substance. Searches of the other occupants were unproductive.

Smith and Fullmer then searched the vehicle and its contents. When they came to assorted items of luggage, they held each up and asked to whom it belonged. In a duffel bag Temple identified as his, they found five more baggies of various sizes also containing what appeared to be marijuana. Underneath the duffel bag they found a box of empty baggies. The rest of the search failed to turn up any additional contraband. Smith then arrested Temple. Subsequent tests on the white powdery substance and on the contents of two of the baggies determined them to be methamphetamine and marijuana, respectively. Based upon his training and experience, Smith expressed an opinion the marijuana had been possessed for sale.

Temple was charged with three offenses stemming from the incident: in count 1 with possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)); in count 2 with possession of marijuana for sale (Health & Saf.Code, § 11359); and in count 3 with transportation of marijuana (Health & Saf.Code, § 11360, subd. (a)). He moved pursuant to PENAL CODE SECTION 1538.5¹ to suppress the physical evidence found on his person and in his duffel bag, as well as all statements he made during the search, on the ground the officers lacked probable cause to search him.

Following a hearing, the court held the officers had probable cause to search the van and its contents, including the duffel bag. But, relying largely on United States v. Soyland (9th Cir.1993) 3 F.3d 1312, the court further held events preceding the search of Temple had not established a sufficient connection between him and the odor of marijuana in the van to justify searching him personally. It therefore dismissed count 1.

The court, sitting as the trial court, then held a hearing pursuant to Evidence Code section 402, subdivision (b), to determine the admissibility of Temple's statement admitting ownership of the duffel bag. It held the statement was the product of the prior unlawful search and must therefore be excluded. When the prosecution conceded it had no other evidence of the bag's ownership, the court dismissed counts 2 and 3. The People have appealed from the "judgment" dismissing the three counts.

DISCUSSION

Initially we note the procedure adopted by the lower court--treating the physical evidence as the subject of the suppression motion and Temple's statement as the subject of an evidentiary motion--raises a question as to the scope of this appeal. The appeal was taken under section 1238, subdivision (a)(7) ² which by its terms is limited to dismissals based upon statutory suppression motions and thus to search and seizure issues. (People v. Campa (1984) 36 Cal.3d 870, 885, 886, 206 Cal.Rptr. 114, 686 P.2d 634.) Common law motions to suppress statements for reasons unrelated to the lawfulness of a search, such as statements elicited in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are appropriately the subject of an evidentiary motion under section 402, subdivision (b), of the Evidence Code. ³ As a general rule, such evidentiary rulings are not reviewable pretrial. (People v. Campa, supra, 36 Cal.3d at p. 885, 206 Cal.Rptr. 114, 686 P.2d 634; People v. Gazali (1991) 228 Cal.App.3d 1417, 1419-1420, 279 Cal.Rptr. 547.) Thus the question arises whether the court's dismissal of counts 2 and 3 may be raised by the People in this appeal.

Here, the court granted Temple's motion to suppress his statement on the ground it was the fruit of an unlawful search. Therefore, notwithstanding the procedure utilized to address it, the motion was properly brought under section 1538.5 and the court's ruling, and its dismissal of counts 2 and 3, are within the scope of our review. (People v. Campa, supra, 36 Cal.3d at p. 885, 206 Cal.Rptr. 114, 686 P.2d 634.)

The People contend the search of Temple's person was justified for two reasons. They argue as they did below that the police were entitled to search his clothing as part of a lawful vehicle search. They also claim the search was supported by probable cause to arrest Temple and therefore came within the rule permitting a search incident to a yet-to-be-executed arrest.

In reviewing these contentions, we accept the lower court's factual findings to the extent they are supported by substantial evidence but independently determine as a matter of law whether the search was reasonable. (People v. Williams (1988) 45 Cal.3d 1268, 1301, 248 Cal.Rptr. 834, 756 P.2d 221; People v. Loewen (1983) 35 Cal.3d 117, 123, 196 Cal.Rptr. 846, 672 P.2d 436.) We apply federal constitutional principles to reach our determination. (In re Lance W. (1985) 37 Cal.3d 873, 896, 210 Cal.Rptr. 631, 694 P.2d 744.)

1. Vehicle Search.

Just as a lawful search of fixed premises extends to the entire area where the thing sought might be located, "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." (United States v Ross (1982) 456 U.S. 798, 820-821, 825, 102 S.Ct. 2157, 2170-2171, 2173, 72 L.Ed.2d 572.) Thus, "[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained." (California v. Acevedo (1991) 500 U.S. 565, 580, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619.)

Temple concedes the police, at the time they searched him, had probable cause to search the van and its contents. The question before us is whether, as the People assert, the probable cause extended to Temple's clothing, i.e., whether his pockets were in effect "containers" within the scope of a lawful vehicle search. The People have not directed us to any case which supports this novel theory and argue the case upon which the lower court relied, United States v. Soyland, supra, 3 F.3d 1312, is distinguishable if not incorrect.

In Soyland the defendant was the passenger in a car stopped at an immigration checkpoint. An agent smelled methamphetamine when the driver got out to open the back. Upon completing his immigration inspection, the agent asked for and received the driver's permission to search the car. The search uncovered three marijuana cigarettes and a pipe containing marijuana residue, all evidently belonging to the driver. The agent then searched the defendant and found methamphetamine. The defendant sought to suppress the methamphetamine on the ground the agent lacked probable cause to search him. The Ninth Circuit agreed:

"Soyland, the passenger, was searched without probable cause. There was not a sufficient link between Soyland and the odor of methamphetamine or the marijuana cigarettes, and his 'mere presence' did not give rise to probable cause to arrest and search him." (Id. at p. 1314.)

The case cited by the court in support of this conclusion, United States v. Robertson (9th Cir.1987) 833 F.2d 777, is one of many which stand for the general proposition that a search warrant will not justify searching a person present at the premises to be searched unless there is probable...