Wimberly v. Superior Court for San Bernardino County
| Decision Date | 21 February 1975 |
| Citation | 45 Cal.App.3d 486,119 Cal.Rptr. 514 |
| Parties | Steven Brian WIMBERLY and Richard Michael Harris, Petitioners, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF SAN BERNARDINO, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 13918. |
| Court | California Court of Appeals Court of Appeals |
For Opinion on Hearing, see 128 Cal.Rptr, 641, 547 P.2d 417.
Keith C. Monroe, Santa Ana, for petitioners.
Lowell E. Lathrop, Dist. Atty., and Joseph A. Burns, Deputy Dist. Atty., for real party in interest.
No appearance for respondent.
Steven Wimberly and Richard Harris were charged with possession of marijuans for the purpose of sale and transportation of marijuana (Health & Saf.Code, §§ 11359, 11360). They made a motion to suppress the contraband (Pen.Code, § 1538.5(i) and the motion was denied.
They petitioned this court for a writ of mandate to require the superior court to vacate its ruling and to suppress the narcotics. We stayed the trial of the action and issued an alternative writ directing the superior court to show cause why its order denying the motion to suppress evidence should not be annulled, vacated and set aside.
After careful consideration of the constitutional issues raised, we have concluded that the superior court acted with propriety in denying suppression of the marijuana inasmuch as it was lawfully seized.
At approximately 2:30 a. m. on June 16, 1974, California Highway Patrol Officers Moffett and Najera entered Interstate 15 at the Lenwood on-ramp near Barstow and observed a northbound 1974 Oldsmobile some distance in front of them. With Moffett driving, the officers closed to within less than three-tenths (3/10) of a mile of the Olds and observed it weaving from lane to lane. They followed the car for three-quarters (3/4) of a mile, clocking it at excessive speeds ranging from 64-69 m. p. h.
Suspecting that the driver might be intoxicated or drowsy, the officers stopped the Olds near the Barstow Road off-ramp. Officer Najera approached the driver's side where Wimberly ('Defendant') was seated. Officer Moffett simultaneously approached the passenger's side where Harris ('Defendant') was seated. As Najera questioned Wimberly, Moffett peered through the window. With the aid of his flashlight, he was able to discern a jacket, paper bag, water jug and pipe on the floorboard near Harris' feet.
As Moffett continued to look into the interior, Harris aided Wimberly in retrieving some vehicle registration papers from the glove compartment. Afterwards, he lifted the jug from the floor and took a drink. As Harris picked up the jug, Moffett's attention was drawn to 6-12 round, dark seeds on the floorboard next to the pipe and other articles. The general characteristics of these seeds, coupled with their proximity to the smoking pipe, led Moffett to believe they were marijuana seeds. Desiring to verify his conclusion regarding the nature of the seeds, Moffett requested Harris to hand him the pipe. Moffett's first request was apparently misunderstood, but its repetition resulted in Harris handing him the pipe. Moffett observed what he believed to be burnt marijuana residue in the bowl and detected an odor resembling burnt marijuana.
Moffett notified Najera of his findings and the defendants were ordered out of the car. (After they had exited the Oldsmobile, both officers noticed a slight odor of burnt marijuana inside the auto.) Moffett then entered the passenger side of the vehicle and searched the floor area where he had observed the seeds, pipe, jacket, water jug and paper sack. Secreted in a pocket of the jacket he found a plastic bag containing a small quantity of marijuana. No additional contraband was discovered in the search of the interior. However, the officers demanded the car keys and searched the trunk. In a suitcase therein, they found several pounds of marijuana in both vegetable and hashish form. Defendants were placed under arrest.
In their petition for extraordinary relief, the defendants challenge the search and seizure on three distinct grounds: (1) no probable cause existed to seize and inspect the pipe; (2) the search of the trunk was constitutionally impermissible; and (3) by commingling the seeds from the auto floorboard with the other contraband found in the vehicle, the defendants were deprived of essential evidence and were thereby denied due process of law. These claims will be categorically considered.
Defendants' first argument is their most vigorous. It is claimed that the circumstances under which Officer Moffett observed the suspicioned marijuana seeds on the floor of defendants' auto did not furnish him with sufficient probable cause to believe the Olds contained contraband and, thus, Moffett's seizure of the smoking pipe and subsequent search of the vehicle were illegal under the Fourth Amendment. Defendants contend that Moffett entertained no more than a mere 'hunch' that these seeds were marijuana; that he should have first seized the seeds (rather than the pipe) to substantiate this 'hunch'; and that the officer should have questioned defendants regarding the nature of the seeds before concluding they were contraband.
Where a magistrate (at a preliminary hearing) or a judge (at a de novo hearing) has determined that sufficient probable cause existed for a search prior to its commencement, the appellate court must affirm the constitutionality of that search if the determination is supported by substantial evidence. (People v. Superior Court [Casebeer], 71 Cal.2d 265, 274, 78 Cal.Rptr. 210, 455 P.2d 146, Bower v. Superior Court, 37 Cal.App.3d 151, 160, 111 Cal.Rptr. 628, 112 Cal.Rptr. 266.) Observations by a police officer are sufficient probable cause for a search if they would lead a man of reasonable caution and prudence to believe that contraband, or evidence of criminal activity, is present in a particular place. (People v. Dumas, 9 Cal.3d 871, 885, 109 Cal.Rptr. 304, 512 P.2d 1208; People v. Gregg, 43 Cal.App.3d 137, 141, 117 Cal.Rptr. 496.)
In determining whether the observation of approximately 6-12 seeds resembling marijuana lying adjacent to a smoking pipe constitutes probable cause to believe that marijuana is secreted in proximity thereto, we first note that the observation of a single seed, plus a few strands of marijuana debris, has been deemed sufficient to justify a thorough search of an automobile. (People v. Schultz, 263 Cal.App.2d 110; see also People v. Evans, 275 Cal.App.2d 78, 79 Cal.Rptr. 714.) And in recent decision, in finding the observation of a single hand-rolled marijuana-like cigarette alone to be insufficient probable cause to justify an auto search, the court distinguished cases in which the presence of a pipe (used to smoke, marijuana), plus other suspicious circumstances, might constitute probable cause to search for contraband. (Thomas v. Superior Court, 22 Cal.App.3d 972, 980, 99 Cal.Rptr. 647.)
Here, Moffett observed what he believed to be marijuana seeds adjacent to a smoking pipe. Consequently, the belief on his part that defendants had been using and were in possession of marijuana was not unreasonable and constituted probable cause for the initial search.
Defendants cite a number of cases which they claim to be authority for their proposition that probable cause was lacking in this case. All are inapposite.
People v. Fein, 4 Cal.3d 747, 94 Cal.Rptr. 607, 484 P.2d 583, held that the observation of a few burnt marijuana seeds in an ashtray in a house was not sufficient probable cause to justify the warrantless arrest of the defendant for possession of contraband. Defendants argue that Fein is closely analogous to the present case. The argument is not well taken for two reasons: First, since an arrest is a significantly greater intrusion on one's privacy than a search of one's effects, a greater showing of probable cause must be made before the first can be constitutionally effected than meed be made for the second; and next, the Fein court cited Schultz, supra, with approval in noting that there is a fundamental difference in the degree of protection the Fourth Amendment affords citizens in regard to their houses as opposed to their automobiles. The Fein court suggested that the observation in an auto of a small amount of marijuana could provide probable cause for the warrantless search of an auto--where it would not justify one of a house. (4 Cal.3d p. 755, 94 Cal.Rptr. 607, 484 P.2d 583.)
Defendants also cite People v. Williams, 5 Cal.3d 211, 95 Cal.Rptr. 530, 485 P.2d 1146, in support of the proposition that probable cause to search was lacking in the present case. Williams was interrogated while seated in an automobile registered to a third party; during the interrogation, the officer spotted a single white pill in the interior of the car and thought it might be contraband; a search of the vehicle revealed two bags of illicit drugs; Williams was convicted of possession and the conviction was reversed; however, the reviewing court did not invalidate the warrantless search of the auto, probable cause for which was grounded upon the observation of that single pill; rather the court rightly held that it had not been shown at trial that Williams had sufficient knowledge of the contraband character of the pills hidden in the auto to warrant the conviction. Thus, Williams is not in point in regard to the probable cause determination here in issue. 1
Next, defendants argue that Officer Moffett possessed no more than a 'hunch' that the seeds he observed were marijuana and claim that this guess-work on the officer's part was insufficient to support a finding of probable cause. As authority for this proposition, defendants rely on Kaplan v. Superior Court, 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1, appl. dism., 407 U.S. 917, 92 S.Ct. 2452, 32 L.Ed.2d 803, and Thomas v. Superior Court, supra, ...
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