Wimberly v. Superior Court

• Decision Date: 19 March 1976
• Citation: 16 Cal.3d 557,128 Cal.Rptr. 641,547 P.2d 417
• Parties: , 547 P.2d 417 Steven Brian WIMBERLY et al., Petitioners, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30458.
• Court: California Supreme Court

Page 641

128 Cal.Rptr. 641

16 Cal.3d 557, 547 P.2d 417

Steven Brian WIMBERLY et al., Petitioners, v.The SUPERIOR COURT OF SAN BERNARDINO COUNTY, RespondentThe PEOPLE, Real Party in Interest.

L.A. 30458.

Supreme Court of California In Bank.

March 19, 1976.

Keith C. Monroe, Santa Ana, for petitioners.

Gerald H. Murray, Azusa, as amicuscuriae on behalf of petitioners.

Lowell E. Lathrop, Dist. Atty., and Joseph A. Burns, Deputy Dist. Atty., for real party in interest.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Jay M. Bloom, Deputy Attys.Gen., as amici curiae on behalf of real party in interest.

WRIGHT, Chief Justice.

Petitioners are charged with possession of marijuana for sale and transportation of marijuana.(Health & Saf.Code, §§ 11359,11360.)Their motion to suppress contraband evidence was denied by the respondentcourt at a pretrial hearing.(Pen.Code, § 1538.5, subd. (i).)Petitioners now seek a writ mandating the respondent to vacate its ruling and to suppress the evidence.(Id.)

Petitioners contend that all contraband seized by the officers who arrested them must be suppressed because the officers lacked initial probable cause to search the passenger compartment of petitioner's vehicle.This search disclosed only a small quantity of marijuana.Petitioners also contend that in any event, the substantial quantity of marijuana found during a further search of the trunk compartment of the vehicle must be suppressed because the search of the trunk was constitutionally impermissible.(U.S.Const., 4th Amend.; cal.Const., art. I, § 13.)They additionally urge that they were denied due process of law and a fair hearing on their motion to suppress because of commingling of the marijuana found in different parts of the car.We conclude that although the search of the passenger compartment of the car was legally justified, the search of the trunk was not constitutionally permissible.The evidence thus found in the trunk must be suppressed.We further conclude that the commingling complained of did not result in a denial of due process of law.

At approximately 2:30 a.m., California Highway Patrol Officers Moffett and Najera observed a car as it swerved a couple of feet into an adjoining lane on a state highway.The officers followed the vehicle for about three-quarters of a mile, clocking it at speeds ranging as high as 14 m.p.h. above the lawful speed.The car continued weaving, moving several times over the dividing line between the two lanes.

It appeared to Moffett that the driver of the automobile was having some sort of problem, possibly drowsiness or intoxication.The officer activated his emergency lights and the car was stopped.Najera approached the driver's side of the vehicle and discussed the reason for the stop with the driver, petitionerSteven Brian Wimberly.Moffett approached the passenger's side where petitioner, Richard Michael Harrison, was seated.With the aid of his flashlight he peered into the vehicle and saw a jacket, a paper bag, a water jug, and a smoking pipe on the floor near Harrison's feet.

As Moffett continued to look into the car, Harrison aided Wimberly in retrieving some vehicle registration papers from the glove compartment.Moffett then observed about 12 round, dark seeds next to the pipe on the floor.The general characteristics of the seeds, coupled with their proximity to the pipe, led Moffett to believe them to be marijuana seeds.Moffett requested Harrison to hand him the pipe and Harrison complied.Moffett smelled the pipe and detected the odor of burnt marijuana.He also noticed a burnt residue which included some seeds and stems in the pipe.

Both petitioners responded to an order to leave the car.Both officers then detected a slight odor of burnt marijuana from inside the car.Moffett searched the interior of the car.Secreted in a pocket of the jacket he found a plastic bag containing a small quantity of marijuana.He placed the marijuana seeds which he had removed from the floor of the vehicle into that bag.No other contraband was found inside the passenger compartment.However, the officers used the car keys to open the trunk compartment of the car where they found several pounds of marijuana, in both vegetable and hashish form, in a suitcase.

WARRANTLESS SEARCH OF THE INTERIOR OF THE CAR

Petitioners first challenge the validity of the warrantless search of the passenger compartment of their car.¹They urge that Officer Moffett did not have probable cause to believe the vehicle contained contraband, and that his seizure of the pipe and the subsequent search of the vehicle were illegal.We disagree.Based on Moffett's past experience, the close proximity of the seeds to the pipe, and the previously observed erratic driving, he reasonably believed the seeds were marijuana.He was therefore justified in seizing and examining the pipe and in subsequently searching the passenger compartment of the car.

The Fourth Amendment to the United States Constitution and the essentially identical but independent guarantee of personal privacy of article I, section 13 of the California Constitution(seePeople v. Brisendine(1975)13 Cal.3d 528, 548--550, 119 Cal.Rptr. 315, 531 P.2d 1099;People v. Dumas(1973)9 Cal.3d 871, 879, 109 Cal.Rptr. 304, 512 P.2d 1208) have long been interpreted to require the impartial approval of a judicial officer before the undertaking of most searches.The warrant requirement of these provisions 'may be dispensed with in only 'a few specifically established and well-delineated' circumstances.(Katz v. United States(1967)389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576.)'(People v. Dumas, supra, 9 Cal.3d 871, 880, 109 Cal.Rptr. 304, 310, 512 P.2d 1208, 1214.)

'In People v. Dumas(1973)9 Cal.3d 871, 109 Cal.Rptr. 304, 512 P.2d 1208, we stated that officers are empowered under the Carroll (Carroll v. United States(1925)267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543) doctrine to search an automobile as 'long as it can be demonstrated that (1) exigent circumstances rendered the obtaining of a warrant an impossible or impractical alternative, and (2) probable cause existed for the search.'(Id., at p. 884, 109 Cal.Rptr. at pp. 313--314, 512 P.2d at pp. 1217--1218, see also concurring opn. by Sullivan J., at p. 886, fn. 1, 109 Cal.Rptr. 304, 512 P.2d 1208;see alsoChambers v. Maroney(1970)399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419;People v. Laursen(1972)8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145.)'(People v. Cook(1975)13 Cal.3d 663, 669, 119 Cal.Rptr. 500, 503, 532 P.2d 148, 151.)It is therefore manifest that 'when there is probable cause to believe that an automobile stopped on a highway contains contraband, evidence of a crime, or was itself an instrumentality of the commission of one, law enforcement officers need not obtain a warrant before conducting a search . . ..'(People v. Laursen, supra, 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 431, 501 P.2d 1145, 1151;see alsoPeople v. Superior Court(Kiefer), supra, 3 Cal.3d 807, 815, 91 Cal.Rptr. 729, 478 P.2d 449.)

We must, therefore, decide whether Officer Moffett had probable cause to seize the pipe ²and subsequently search the interior of the car for contraband.We have often stated that probable cause for a search exists where an officer is aware of facts that would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion that the object of the search is in the particular place to be searched.(See, e.g., People v. Hill, supra, 12 Cal.3d 731, 747--748, 117 Cal.Rptr. 393, 528 P.2d 1;People v. Dumas, supra, 9 Cal.3d 871, 885, 109 Cal.Rptr. 304, 512 P.2d 1208;People v. Superior Court(Kiefer), supra, 3 Cal.3d 807, 815--816, 91 Cal.Rptr. 729, 478 P.2d 449.)On review, the appellate court must uphold probable cause findings if supported by substantial evidence.(People v. Gale(1973)9 Cal.3d 788, 792--793, 108 Cal.Rptr. 852, 511 P.2d 1204;People v. Lawler(1973)9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

Here there is substantial evidence in support of the finding below that Moffett had probable cause.The observation of the seeds alone was sufficient to justify the search and seizure.In People v. Superior Court(Kiefer), supra, 3 Cal.3d 807, 816--817, 91 Cal.Rptr. 729, 478 P.2d 449, we held that the observation from outside the vehicle of contraband in plain view inside the vehicle may furnish probable cause to believe that additional contraband is secreted therein and to justify a search therefor.(See fn. 2, Ante.)Thus, the observation of even an unusable quantity of marijuana has been deemed sufficient to justify the search of a vehicle for additional contraband.(People v. Evans(1969)275 Cal.App.2d 78, 82--83, 79 Cal.Rptr. 714(seeds and debris observed on seat of vehicle);People v. Schultz(1968)263 Cal.App.2d 110, 114, 69 Cal.Rptr. 293, approved inPeople v. Fein(1971)4 Cal.3d 747, 754--755, 94 Cal.Rptr. 607, 484 P.2d 583(a single seed, plus a few strands of debris observed on left rear floor of vehicle);see alsoPeople v. Terry, supra, 70 Cal.2d 410, 428, 77 Cal.Rptr. 460, 454 P.2d 36(one marijuana cigarette on an open ashtray);People v. Spelio(1970)6 Cal.App.3d 685, 688, 86 Cal.Rptr. 113(seeds along door runner);but seeThomas v. Superior Court, supra, 22 Cal.App.3d 972, 976--977, 99 Cal.Rptr. 647(plain view of hand-rolled cigarettes does not furnish probable cause).)Additionally, the observation of the seeds adjacent to the smoking pipe on the floor of the vehicle which had been operated in an erratic manner further supported the reasonableness of Moffett's conclusion that the seeds were marijuana.

Petitioners cite People v. Fein, supra, 4 Cal.3d 747, 94 Cal.Rptr. 607, 484 P.2d 583 for the proposition that the observation of a few burnt marijuana seeds and the...