People v. Weaver

• Decision Date: 15 June 1983
• Docket Number: Cr. 42748
• Citation: 192 Cal.Rptr. 436,143 Cal.App.3d 926
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Shari Lynn WEAVER, Defendant and Respondent.

Page 436

192 Cal.Rptr. 436

143 Cal.App.3d 926

PEOPLE of the State of California, Plaintiff and Appellant, v. Shari Lynn WEAVER, Defendant and Respondent.

Cr. 42748.

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

June 15, 1983.

Edward P. George, Jr., Inc. and George S. Zugsmith, Inc., Long Beach, for defendant and respondent.

John K. Van de Kamp and Robert H. Philibosian, Dist. Attys. of Los Angeles County, and Donald J. Kaplan and Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and appellant.

BEACH, Associate Justice.

NATURE OF APPEAL:

The People appeal an order setting aside one count of a two count information alleging possession of phencyclidine (hereinafter PCP) and driving while under the influence of alcohol and drugs. They contend that the court erred in setting aside the count alleging possession of PCP as probable cause was established to justify its warrantless seizure. We agree and reverse the order.

FACTS--FROM PRELIMINARY HEARING:

Two Sheriff's deputies on duty at night observed a Honda automobile creeping along at approximately five miles per hour, weaving between two lanes, its engine racing. As they watched, the vehicle paused for a traffic light, then resumed its weaving course of travel, again at five miles per hour. Respondent, the driver, and her male passenger were staring straight ahead and failed to respond to the deputies when they pulled abreast of them to inquire as to the manner of driving.

Thereafter, the deputies pulled to the rear of respondent's automobile, activated their warning and spot lights, then sounded the horn in an effort to gain her attention. Receiving no response, they again pulled abreast of the weaving vehicle and orally commanded the apparently stuperous occupants to stop. When these efforts proved unavailing, the deputies maneuvered to the rear and activated their siren, ultimately causing respondent to pull to the curb. This "pursuit" covered approximately three-fourths of a mile and the deputies intended to cite respondent for an infraction, as well as verify her sobriety.

One deputy approached and, upon receiving an incoherent response to a request for identification, asked that she exit the vehicle. Respondent fell to the pavement, stabilizing herself with her hand, as she complied. Simultaneously, that deputy detected the characteristic, malodorous scent of PCP emanating from respondent or the vehicle. The same deputy possessed extensive training and experience regarding PCP. After the passenger exited, the deputy continued to detect the odor and an inspection of the interior revealed that it emanated from a rear package tray. ¹ Upon learning from the other deputy that respondent might be employed by the sheriff's department, the deputy who had smelled the PCP opened the hatchback to assure himself that no firearms were present, as well as to locate the source of the PCP odor. He immediately observed a sheriff's department jacket and detected a much stronger odor of PCP. Upon lifting the jacket, he observed a small, brown bottle with a loosened cap, leaking liquid PCP onto a stack of uniforms. Subsequent analysis disclosed the bottle contained approximately four milliliters of PCP.

The magistrate expressly found the inspection of the rear package tray to be reasonable and based upon probable cause to believe contraband was present. He observed, in relevant part:

"The third finding I would make was that there was, in fact, probable cause to search the interior of the vehicle and justify that particular search of the vehicle.

"And the fourth finding would be that there was probable cause to open and search the trunk. I'm not referring to the containers within the trunk. But I'm talking about the trunk itself. And I would find that there are, and were, the specific articuable [sic] facts that seizable items may be contained, or found in the trunk.

"...

"So, what I am finding, finding there were specific articulable facts that specific items could be found in the trunk. That is based upon the apparent interior search. My recollection of the testimony that the smell was stronger in the back of the vehicle, although there was nothing discovered in the interior of the vehicle. I think the officer testified the area of the back seat, leaving only the area behind there."

ACTION BY SUPERIOR COURT:

In granting the motion to set aside the count alleging possession of PCP, the superior court observed:

".... With regards to what the officers put into their report as to the reasons for going into the trunk would seem to lead to an inference that the officers did go into the trunk for the purposes of ascertaining whether or not the defendant was a...