PEOPLE v. McMANUS

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

The PEOPLE of the State of California, Plaintiff and Appellant, v. Kevin Francis McMANUS, Defendant and Respondent.

Cr. 26569.

Decided: November 25, 1975

Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Head, Appellate Division, and Philip J. McCarthy, Asst. Dist. Attys., for plaintiff and appellant. H. George Taylor, Pomona, for defendant and respondent.

The People appeal from an order of the superior court dismissing the case against defendant pursuant to Penal Code section 1385, which order was based upon the granting of defendant's motion to suppress under Penal Code section 1538.5. Such appeal is authorized by Penal Code section 1238(a)(7).

Defendant was charged in an information with violation of Health and Safety Code section 11357 (possession of marijuana) and Health and Safety Code section 11359 (possession of marijuana for sale). The evidence which formed the basis for the charge, and which was suppressed, consisted of 22 one-ounce bags of marijuana which a police officer removed from the trunk of defendant's Volkswagen.

A special hearing was conducted in superior court pursuant to Penal Code section 1538.5(i), at which the circumstances leading to the seizure of the evidence were outlined in considerable detail. The testimony at that hearing, however, generated no significant factual dispute, thus the reasonableness of the officer's conduct which preceded the seizure of the evidence and the correctness of the trial court's ruling in suppressing the evidence are questions of law. (People v. Manning, 33 Cal.App.3d 586, 109 Cal.Rptr. 531; People v. Kanos, 70 Cal.2d 381, 74 Cal.Rptr. 902, 450 P.2d 278.)

At approximately 10:00 a. m. on December 12, 1973, Officer Todd of the West Covina Police Department, drove his police vehicle into the parking lot adjacent to a public park in the City of West Covina. As he did so he observed a Volkswagen and a Toyota automobile parked side by side. Three persons who were seen standing between the two cars moved off into the area of the park. The two cars were parked in a manner that occupied or blocked four parking spaces in violation of a city ordinance.

Officer Todd approached the two vehicles to examine them for registration so he could contact the owners and advise them of the violation. In so doing, he observed from his position outside the cars that a ‘hash pipe'1 was laying on the floor of the Toyota and several marijuana seeds were laying on the driver's seat and floor of the Volkswagen.

Another officer, Mueller, also was patrolling the parking lot and Todd asked him to summon the three persons that he, Todd, had previously seen standing by the car. Mueller brought defendant, his brother and one Giambastiami to the vehicle. Giambastiani claimed ownership of the Toyota and defendant claimed ownership of the Volkswagen. Mueller advised Todd that Giambastiani was known to him as a narcotic violator who was currently on parole for possession of marijuana for sale.

Officer Todd removed the ‘hash pipe’ form the Toyota and found it to contain what appeared to be marijuana debris. He also removed the marijuana seeds from the Volkswagen. Thereafter the trunk of the Volkswagen was opened and the 22 bags of additional marijuana were recovered.

THE TRIAL COURT'S RULING

In announcing its ruling the trial court stated that there was no indication that Officer Tadd was falsifying his testimony and that at the time Officer Todd first made his observation of the seeds and the hash pipe he was lawfully situated and made a lawful observation.

The court, however, stated that ‘his [the officer's] observation was such that he saw a circumstance which could be interpreted two ways, could be interpreted as illegal activity, or could be interpreted as legal activity.’ This observation was based upon the fact that although the officer possessed established expertise in the recognition of marijuana seeds, accurately described them for the court and testified that he was certain that when he first saw the seeds that they were marijuana, when asked by the judge ‘How did you know they weren't marigold seeds?’ he replied ‘I don't know what a marigold seed is.’

In further enlarging on the basis of its ruling the court stated ‘Officer Todd does not know what other seeds look like. So he doesn't know whether or not the seeds that he saw in the Volkswagen resemble closely or are identical to, in appearance, other type of seeds.’

DISCUSSION

The statement by the court that what the officer observed was consistent with illegality as well as legality was of course a determination that the seeds reasonably could be thought to be marijuana (they were in fact marijuana). The fact that there may be other seeds in the world which have a similar appearance is beside the point. Further, the court apparently overlooked the fact that defendant was in company with a person previously connected with possession of marijuana and that present in that individual's car was a ‘hash pipe’ containing debris about which there appears to be no question but what it was marijuana.

Under the circumstances it appears to us that the officer's belief that the seeds were marijuana was a reasonable one and would remain so even if it turned out that they were in fact ‘marigold’ seeds.

Reasonable cause is such a state of facts that would lead a reasonable person in the position of the officer seeing what the officer saw and knowing what the officer knew, to believe that contraband was present in the vehicle. (See People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Dumas, 9 Cal.3d 871, 109 Cal.Rptr. 304, 512 P.2d 1208; Burke v. Superior Court, 39 Cal.App.3d 28, 113 Cal.Rptr. 801.)

The test which the court should have applied was whether the officer's belief and his conduct based thereon was reasonable under the circumstances and not whether the officer's conclusions were factually correct and certain beyond all peradventure.

In Krauss v. Superior Count, 5 Cal.3d 418, 96 Cal.Rptr. 455, 487 P.2d 1023, it was held to be reasonable for a magistrate in issuing a search warrant to rely on the statement of a motel maid that she had observed marijuana in a defendant's room when her only familiarity with the substance was observing a display in a police station at some time in the past. When that situation is contrasted with the observations of an experienced officer with numerous past contacts with the substance, the error of the court's ruling here becomes obvious. (See People v. Poole, 48 Cal.App.3d 881, 122 Cal.Rptr. 87.)

The next reasonable deduction which the officer could make under the circumstances was that because the seeds were on the driver's side and defendant was the driver of the car that the defendant had fairly recently possessed a larger quantity of the contraband. Here again it could be suggested that there are other possible explanations for the presence of the seeds, but under the totality of the circumstances, as previously recounted, the officer's suspicion was reasonable and justified an arrest of defendant and an accompanying search of the defendant's person and the immediate surroundings for evidence of such possession. The scope of those immediate surroundings would include the interior of the car including the trunk. (People v. Schultz, 263 Cal.App.2d 110, 69 Cal.Rptr. 293; People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1.)

People v. Fein, 4 Cal.3d 747, 94 Cal.Rptr. 607, 484 P.2d 583, which involved the search of a private residence, is distinguishable form the case at bar which involved the search of an automobile. (See People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1.)

People v. Gregg, 43 Cal.App.3d 137, 117 Cal.Rptr. 496, appears to us to be out of harmony with People v. Schultz, 263 Cal.App.2d 110, 69 Cal.Rptr. 293 and People v. Hill, supra. Thus we decline to follow it. The fact that the quantity of marijuana observed in the vehicle in People v. Hill was larger than that observed in the case at bar is not significant. As a practical matter it could be argued that the greater the amount of contraband found in the passenger portion of the vehicle, the less is the likelihood that more contraband would be found elsewhere.

The order of dismissal is reversed.

FOOTNOTES

1.  The officer testified a ‘hash pipe’ is a pipe used for smoking Hashish or marijuana.

COMPTON, Associate Justice.

FLEMING, Acting P. J., and BEACH, J., concur.