PEOPLE v. WILLIAMS (1976)

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

In the information, defendant was charged with violation of Health and Safety Code section 11359 (possession of marijuana for purpose of sale). The evidence that formed the basis of the charge was fourteen baggies containing marijuana weighing 238.6 grams, that were removed from the trunk of defendant's car.

At approximately 7:00 p. m., on June 30, 1974, while on routine patrol, Officer Inguemunson observed a 1969 Cadillac parked in a red zone. A male juvenile entered the passenger side and the car began to move. The officer immediately pulled the car over with the intention of issuing a citation.

The defendant got out of the car. He was unable to produce a driver's license whereupon the officer asked for the car's registration. At this time the officer saw a measuring spoon containing cotton and residue lying on the floor of the car. The bottom of the spoon was charred black. The officer, as a result of his training and previous experience, recognized the objects as narcotics paraphernalia. He then searched the interior of the car and found a syringe and a bloodstained kleenex.

Defendant's movements were slow, his speech deliberate and his arms bore needle marks. He was arrested for being under the influence of heroin. Another officer then searched the trunk of the car and found the marijuana.

On October 15, 1974, the defendant made a motion in the superior court pursuant to Penal Code section 1538.5 to suppress the evidence. The motion was heard on January 10, 1975.

During the course of the hearing the trial judge expressed his opinion that People v. Gregg, 43 Cal.App.3d 137, 117 Cal.Rptr. 496, appeared to be controlling. He expressed his disagreement with the holding in Gregg, however, and declared that because the Attorney General had petitioned the California Supreme Court for a hearing, the decision was neither final nor binding. Defendant's motion to suppress was denied. Trial was set for February 28, 1975.

On February 28, 1975, defendant made a motion for a rehearing of the 1538.5 motion. On April 2, 1975, a rehearing was held. The motion was granted and the case was dismissed.¹

The People contend that (1) the trial judge had no jurisdiction to reconsider the suppression motion, and (2) the search was valid in any event.

In Madril v. Superior Court, 15 Cal.3d 73, 123 Cal.Rptr. 465, 539 P.2d 33, defendant moved to suppress evidence pursuant to section 1538.5 of the Penal Code. After a hearing the motion was granted. One week later the prosecutor moved for reconsideration. The motion to reconsider was granted and the motion to suppress was denied. On appeal our Supreme Court held that the determination of a 1538.5 motion at a special hearing in superior court, whether in favor of the defendant or the People, deprives the court of jurisdiction to reconsider the matter unless the People seek to reopen the matter at trial on a showing of good cause pursuant to subsection (j) of Penal Code section 1538.5.

People v. Superior Court (Green), 10 Cal.App.3d 477, 89 Cal.Rptr. 223, held that the defendant is entitled to make one pretrial motion to suppress and if it is denied, his only remedy is within 30 days to seek a writ of mandate or prohibition from this court If his writ is denied and the evidence is used against him at trial he may appeal from the judgment of conviction. Defendant is entitled to only one pretrial motion to suppress. A second one is in excess of the court's jurisdiction. (People v. Dubose, 17 Cal.App.3d 43, 94 Cal.Rptr. 376.) The trial court erred in reconsidering its previous denial of the motion. Since the order of suppression which followed the reconsideration was beyond the court's jurisdiction, we treat it as a nullity and reinstate the prior order denying the motion to suppress.

The latter order was proper. Both the search and seizure were lawful. The officer, upon observing the paraphernalia in the car and the physical condition of the defendant, had probable cause to believe that heroin would be found in the car. The trunk of the vehicle was within the permissible scope of the search conducted in conjunction with the arrest. (People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Schultz, 263 Cal.App.2d 110, 69 Cal.Rptr. 293.)

Defendant, on this appeal, urges us to follow Gregg, supra. In that case officers stopped a car for speeding and arrested the occupants when they smelled burnt marijuana in the car and observed ten seeds of marijuana on the front seat. A search of the trunk produced six pounds of marijuana. The Court of Appeal in the Fifth District found the search of the trunk to be unreasonable. That court, however, did state that each case must be decided on its own facts.

We are of the opinion that in light of the decision of the California Supreme Court in People v. Hill, supra, Gregg has little precedential value. In Hill it was held that the presence of marijuana in the passenger portion of a car would justify, in connection with the arrest of the occupant, a thorough search of the entire vehicle for additional contraband.

The order of suppression is vacated, the previous order denying suppression is affirmed and the matter is remanded to the superior court for further proceedings.

FOOTNOTES

1.  The Supreme Court had in the interim deniad a hearing in Gregg.

COMPTON, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.