Thomas v. Superior Court

• Decision Date: 18 January 1972
• Citation: 99 Cal.Rptr. 647,22 Cal.App.3d 972
• Court: California Court of Appeals Court of Appeals
• Parties: Joyce Velma THOMAS, Petitioner, v. The SUPERIOR COURT FOR the COUNTY OF SAN JOAQUIN, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 13201.

Page 647

99 Cal.Rptr. 647

22 Cal.App.3d 972

Joyce Velma THOMAS, Petitioner, v. The SUPERIOR COURT FOR the COUNTY OF SAN JOAQUIN, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 13201.

Court of Appeal, Third District, California.

Jan. 18, 1972.

Hearing Denied March 16, 1972.

Robert N. Chargin, Public Defender by Ann M. Chargin, Asst. Public Defender, Stockton, for petitioner.

Evelle J. Younger, Atty. Gen. by Daniel J. Kremer and A. Wells Petersen, Deputy Attys. Gen., Sacramento, for real party in interest.

JANES, Associate Justice.

Petitioner, charged by information with violation of Health and Safety Code section 11530 (possession of marijuana), seeks a writ of mandate to compel respondent court to suppress as evidence a marijuana cigarette which is the basis of that prosecution. (Pen.Code, § 1538.5, subd. (i).)

Respondent court denied petitioner's pretrial motion to suppress after the motion was submitted on the reporter's transscript of the preliminary examination and on evidence received at the hearing of the motion. Viewed in the light most favorable to the People (People v. Harrington (1970) 2 Cal.3d 991, 996--997, 88 Cal.Rptr. 161, 471 P.2d 961), that record shows the following:

At approximately 10:00 p.m. on February 12, 1971, Officers Pricola and Jackson of the Stockton Police Department were parked in that city in an unmarked police vehicle about 100 yards from a house occupied by one Clarence Surrell. The officers had 'approximately $60,000.00 worth of warrants' for Surrell, and they were trying to apprehend him by watching 'traffic' in and out of the house. (The record does not disclose the charge or charges underlying the warrants.)

Looking through field glasses, the officers saw a man fitting Surrell's description come out of the house. There was not enough light to identify him positively. The man paced back and forth in front of the house. Every time a car came by, he would move back into the shadows.

The man had been in front of the house four or five minutes when a station wagon drove up and parked there. (The evidence does not mention the man after this point.) Two persons--apparently a man and a woman--got out of the rear seat of the station wagon. A third person, who appeared to be male, got out of the right front seat. All three went into the house. Then, as Pricola testified, 'several people came from the house back to the car. There was a number of trips back and forth between the car and the subject that got out on the right or the passenger side, rear, entered the passenger side, front, and the driver remained in the vehicle at all times while it was there.' Pricola testified flatly that no one else entered the car. ¹ (Officer Jackson did not testify.)

Five minutes after it arrived, the station wagon pulled away from the house, carrying the driver and the passenger who had entered the right front seat. The station wagon turned at an intersection forty yards from the officers' car, but Pricola was unable to tell whether the two persons in the station wagon were male or female.

The officers followed the station wagon for two blocks and then stopped it. According to Pricola, the only reason the vehicle was stopped was to ascertain the identity of the persons in it.

Pricola walked up to the driver's side of the station wagon. Before the officer reached the door, the driver had stepped from the car. The driver was petitioner. Another female was in the right front seat. As petitioner opened the car door, the dome light went on inside the vehicle. The light stayed on, since petitioner did not close the door. Pricola was standing by the rear door, and he looked into the rear seat. At that time, as the officer later testified, 'I observed lying in the back seat in plain view A hand-rolled cigarette in white paper lying right on the seat and my partner (Jackson) was on the other side on the passenger side and . . . I believe I told him, 'There's an 11530 lying on the seat. " (Emphasis added.) The cigarette was about halfway between the front of the seat and the backrest, and approximately 18 inches 'from the passenger door.'

Pricola next asked petitioner for an operator's license. She replied that she did not have one. The officer then arrested petitioner and her female passenger for possession of marijuana. ² Petitioner began cursing and screaming at the officers. When a third policeman arrived, she kicked him below the knee, and threatened to kill the officers. She was handcuffed and forcibly placed in a police car. ³

After petitioner was handcuffed, Pricola entered the station wagon and picked up the cigarette and put it in his pocket. At a time and place not shown by the record, Pricola untucked one end of the cigarette and smelled the vegetable matter which it contained. In his opinion, it had the odor of marijuana. Although he testified that he was 'not qualified,' he also testified that he had Smelled marijuana 'previously.'

At the preliminary examination, Pricola could not remember what identification petitioner had in her possession when arrested but he believed it may have been a social security card. The vehicle petitioner was driving was later ascertained to be 'hers or her sister's. . . .'

The additional evidence received at the section 1538.5 hearing added nothing of substance to the foregoing, except that petitioner introduced some cigarette paper and two hand-rolled tobacco cigarettes which the superior court judge described as not having 'the roundness or firmness of a cigarette, even a handrolled tobacco cigarette.'

THE HAND-ROLLED CIGARETTE IN PLAIN VIEW DID NOT FURNISH PROBABLE CAUSE FOR THE ARREST AND SEIZURE

The fact that petitioner did not have a driver's license could not serve as a basis for the particular arrest or for Pricola's seizure of the cigarette. (See, People v. Van Sanden (1968) 267 Cal.App.2d 662, 664, 73 Cal.Rptr. 359.) ⁴ However, the officer's observation of the cigarette, in plain sight within the car, did not constitute a search (People v. Sullivan (1966) 242 Cal.App.2d 767, 770, 51 Cal.Rptr. 778; People v. Davis (1961) 188 Cal.App.2d 718, 723, 10 Cal.Rptr. 610); and Pricola could lawfully seize the cigarette without a warrant if he had probable cause to believe it was contraband (see, Coolidge v. New Hampshire (1971) 403 U.S. 443, 458--460, 91 S.Ct. 2022, 2033--2035, 29 L.Ed.2d 564, 578--579; Chambers v. Maroney (1970) 399 U.S. 42, 48--52, 90 S.Ct. 1975, 1979--1981, 26 L.Ed.2d 419, 426--428; People v. Terry (1964) 61 Cal.2d 137, 152, 37 Cal.Rptr. 605, 390 P.2d 381; People v. Baird (1971) 18 Cal.App.3d 450, 454, 95 Cal.Rptr. 700; People v. Barrett (1969) 2 Cal.App.3d 142, 146--147, 82 Cal.Rptr. 424).

Petitioner asserts that Pricola's view of the cigarette did not constitute probable cause for its seizure and the examination of its contents (nor, inferentially, for the antecedent arrest). The contention must be sustained.

As heretofore noted, the officer testified that on the back seat he saw 'a hand-rolled cigarette in white paper' and that he concluded the cigarette was 'an 11530'--i.e., a cigarette evidencing violation of section 11530 of the Health and Safety Code. There was no evidence concerning the circumstances or prior Visual experience, if any, which caused Pricola to form this on-the-spot opinion. Pricola gave no testimonial comparison between the appearance of hand-rolled tobacco cigarettes and handrolled marijuana cigarettes. Indeed, the lack of any evidence concerning the customary appearance of marijuana cigarettes left respondent court with no standard with which it could compare the seized cigarette to determine whether the latter looked distinctively like contraband. For all that the record shows, petitioner was arrested for possession and the car was entered by the police simply because there was a handrolled cigarette visible inside it.

It is a matter of common knowledge that hand-rolled tobacco cigarettes have found a new popularity reflecting current individualistic attitudes, changing styles, the availability of new 'do-it-yourself' supplies, and increases in the price of factory-mades. Hand-rolled cigarettes 'in white paper' are not unusual, and it would be unjust to automatically subject possessors of them to arrest on marijuana charges or their cars to search.

'It is inherently impossible for the contents of a closed opaque container to be in plain view regardless of the size of the container or the material it is made of.' (People v. Marshall (1968) 69 Cal.2d 51, 59, 69 Cal.Rptr. 585, 589, 442 P.2d 665, 669.) Where, as here, there is no evidence that the contents of a cigarette were visible, those contents (even if contraband) were not 'in plain view.' Standing alone, '(t)he plain view of a simply suspicious-looking or unusual object which itself is not contraband, does not justify its seizure without a warrant.' (People v. Nickles (1970)9 Cal.App.3d 986, 992, 88 Cal.Rptr. 763, 767.)

We have not been referred to--nor has our own research disclosed--any appellate case in the United States which holds that the mere presence of a hand-rolled cigarette furnishes probable cause for an arrest, search, or seizure on the theory that the cigarette indicates contraband. Under analogous circumstances, as the following cases show, the courts have invalidated police conduct.

In Remers v. Superior Court (1970) 2 Cal.3d 659, 87 Cal.Rptr. 202, 470 P.2d 11, where the defendant had displayed a tinfoil package, the court said: 'The People's reliance on the special knowledge and experience of the arresting officers is . . . misplaced. . . . The People rely on the Officers' knowledge that dangerous drugs are often packaged in tinfoil. However, even if dangerous drugs are often packaged in tinfoil, so many other, legitimate items--such as foods or tobacco--are packaged in tinfoil that a tinfoil package is not a suspicious circumstance, and a man of reasonable caution who possesses the...