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

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.

Decided: February 21, 1975

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, 22 Cal.App.3d 972, 99 Cal.Rptr. 647. But Kaplan and Thomas merely held that probable cause could not be manufactured from circumstances which are as suggestive of innocent activity as they are of criminal behavior, nor could probable cause be found where an officer's conclusion that suspicious items are in fact contraband is not formed until after a search is made.

In the instant case, Moffett had concluded that the seeds were contraband before the search was initiated. He had reasoned that these seeds—which resembled marijuana—lying adjacent to a smoking pipe commonly used for the ingestion of marijuana, in a vehicle which had recently been operated in an erratic manner, were more likely than not marijuana seeds. In short, Moffett had more than a ‘hunch’ that these seeds were contraband; he had good reason to believe they were actually contraband. To require more certainty from officers in formulating their reasonable beliefs for the purposes of probable cause would be going too far.

Finally, defendants argue that even if Officer Moffett entertained a reasonable belief that the seeds were marijuana, he should have taken further steps to substantiate his suspicions. Defendants' suggestion that the officer should have interrogated them regarding the presence of the seeds is unrealistic. While Moffett could have chosen to inquire about the seeds, in all likelihood defendants' responses would have been evasive and his questions to them of little aid to him in determining whether he possessed probable cause to search.

Nor was it necessary for Moffett to seize the seeds and examine them with greater scrutiny before requesting to examine the pipe. Moffett stated he had a clear enough view of the seeds through the window to identify them as resembling marijuana. It is of no consequence that the officer was not an expert in the identification of marijuana seeds. All that is required is that he have sufficient knowledge of their general appearance to form a reasonable belief that the seeds he observed were in fact marijuana. He need not be able to distinguish them from similarly-shaped or colored grape seeds. Knowledge of the seeds' general characteristics, plus their proximity to an implement known to be used for marijuana smoking, is sufficient to permit a man of prudence to form the reasonable belief that the seeds were actually marijuana. Closer eyeballing would have added little strength to the determination of probable cause that the officer had already made. Hence, Moffett need not have preceded his request for defendants' pipe (and his inspection thereof) with any other request. His seizure and examination were predicated upon the strong probability that the pipe contained contraband or illicit residue.


Defendants next contend that the warrantless search of the trunk which uncovered several pounds of marijuana was constitutionally infirm since it was conducted without a warrant and (1) it was not incident to defendants' arrest; (2) no exigent circumstances were present to excuse the warrant requirement; and (3) no probable cause existed to search the trunk.

Searches conducted without a warrant are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.) One of the long-recognized exceptions to the Fourth Amendment's warrant requirement has been the search of vehicles upon the highway, wherein authorities have probable cause to believe contraband is secreted. This exception has been justified because an auto's mobility makes it likely that contraband will be carried from the jurisdiction if authorities pause long enough in their inquiry to secure a warrant. (Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.) An automobile's mobility must be a factor in initiating the warrantless search: some sort of exigency must be present in order to justify disregard of the Fourth Amendment's warrant requirement. (See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564; Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325.) Thus, the warrantless auto search conducted by the officers in the present case was constitutionally permissible if, and only if, an exigency existed at the outset of the search. (See also People v. Dumas, supra, 9 Cal.3d 871, 884, 109 Cal.Rptr. 304, 512 P.2d 1208.)

When Officer Moffett first formulated his reasonable belief that defendants' vehicle contained contraband, that vehicle was immediately mobile. At that point, neither defendant was under arrest, and (absent the search and discovery of the marijuana) either of the defendants could easily have removed the car from the jurisdiction had the officers attempted to secure a warrant. Thus, the search of the Oldsmobile was permissible under the auto exception to the Fourth Amendment's warrant requirement.

But defendants contend that once the officers found contraband in the car (e. g., the plastic bag of marijuana in the jacket pocket) they were entitled to arrest defendants and impound the vehicle. At this point, defendants claim the exigency which justified the warrantless intrusion ended, and, hence, the officers' continued search of the vehicle and its trunk were in violation of the Fourth Amendment since they were conducted without a warrant.

Defendants' is a novel argument and they have cited us to no precedential authority for it. But we are not persuaded for several reasons.

The Fourth Amendment protects citizens' privacy interests in things as well as their persons (see Katz v. United States, supra, 389 U.S. 347, 88 S.Ct. 507, 19 L.E.2d 576); hence, it protects defendants' right of privacy in the car. Normally, a search warrant issued by a magistrate on a finding of probable cause is required before authorities can intrude upon a citizens' privacy interest except where, as here, some exigency obviates the warrant requirement. When an exigency arises, a search may then be carried through to its completion, in whatever area the police may reasonably expect to find the object of their search. (See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.E.2d 889.) The defendants' suggestion that officers may conduct a warrantless search of an auto under exigent circumstances only until some contraband is found smacks of spuriousness. Having had the privacy interest in the vehicle already intruded upon, defendants cannot somehow recapture that interest by the mere cessation of the search. To require the police to terminate the search once some incriminating evidence has been found would only unnecessarily burden and inconvenience them, and would protect no constitutional interest of defendants. Absent constitutional compulsion, the police officers were under no legal duty to discontinue their search of the Oldsmobile once they had uncovered contraband.

Finally, defendants contend that no probable cause existed for the officers to carry their warrantless search to the vehicle's trunk. We respectfully disagree.

This same issue was recently considered by a California appellate court in People v. Gregg, supra, 43 Cal.App.3d 137, 117 Cal.Rptr. 496. In Gregg, the court held that the observation of a few seeds plus the odor of marijuana smoke in the interior of the car was not a sufficient quantity to give the police probable cause to conduct a warrantless search of the auto's trunk. The court seemed to reason, and defendants appear to argue, that a substantial quantity of marijuana must be found in the passenger compartment of a vehicle in order to permit a further warrantless intrusion into the trunk area. Were this court to adopt this reasoning, it is arguable that the presence of the seeds, pipe, and plastic bag of marijuana in the passenger compartment are substantial enough to provide probable cause for search of the trunk.

But we are troubled by the rationale of this approach. First, we see no necessary relationship between the amount of marijuana secreted in the passenger compartment of an auto and the other places in the vehicle where additional contraband might be hidden. Second, both the Gregg court and the defendants seem to argue that the presence of a small quantity of marijuana (seeds or debris) in the passenger compartment should only lead an officer to the conclusion that the vehicle's occupants were using marijuana, and not to the conclusion that they were transporting substantial quantities of the substance. But it is just as likely that small amounts of marijuana reached the car's interior because large quantities had previously been stored therein (and subsequently hidden elsewhere in the car) as it is that the debris only constituted a user's residue. Thus, this court must reject the rationale defendants advance.

The only reasonable inference that a police officer may be expected to draw from his observation of some amount of contraband in a vehicle is that that vehicle is likely to contain more of that same contraband. His search for that contraband should then take him to those places in and around the vehicle where he expects he is likely to find said contraband. (Cf., Terry v. Ohio, supra, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.) To limit the scope of the search of a vehicle any further will lead courts into areas of highly speculative inquiry which will provide citizens with little or no substantive Fourth Amendment protection and will burden police authorities unnecessarily. Though it be true that individuals may have greater privacy interests in the trunks or glove compartments of their cars than in the passenger area, these privacy interests are not so much greater that they cannot be overcome by the simple determination that an officer entertains a reasonable relief that a suspect's vehicle contains contraband. The Fourth Amendment demands no more.2


Finally, the defendants argue that they were deprived of significant defense evidence and due process of law when the officers commingled the seeds they found on the floor of the auto with the marijuana in the plastic bag retrieved from the jacket pocket. Defendants do not argue that the seeds themselves were destroyed (clearly they were not) but rather that the ‘separateness' of the seeds was destroyed. Defendants claim that the main issue is whether any seeds were present on the floorboard and that the commingling of the seeds destroyed the most significant evidence available on that issue. Though defendants' argument has merit, we have concluded that the commingling of these seeds did not, and will not, deprive them of due process of law.

Defendants predicate their argument on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, wherein the defendant had requested certain information from the prosecution which was withheld by the state; the court found that the suppression of the evidence (whether intentional or not) violated defendant's right to due process of law. But Brady is not dispositive of the case before us. The Brady court held that ‘suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment . . ..’ (P. 87, 83 S.Ct. p. 1197, emphasis supplied.) Here, neither guilt nor innocence is at issue, but rather a determination of probable cause for a warrantless search. Nor is the instant case one involving the suppression of evidence. At issue here in the destruction (non-preservation) of relevant evidence regarding the probable cause issue. Finally, the evidence suppressed in Brady way demonstrably helpful to the defense, whereas herein the helpful quality of the evidence destroyed is purely speculative. Thus, the present case is one to which the Brady doctrine does not extend.

But distinguishing Brady from the case at hand merely begs the real question posed by the defendants' argument. Obviously, defendants have been deprived of some evidence which might have been helpful in the presentation of their case, and the crucial question presented by defendants' argument is whether this deprivation was sufficiently prejudicial to deny defendants due process of law.

In People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, the police destroyed a reference ampoule used in a breathalyzer test to determine intoxication; defendant claimed the destruction of the ampoule deprived him of significant evidence for his defense to a drunk driving charge and requested that the trial court suppress the breathalyzer results; the court looked to federal case law for a standard by which to determine when a court should exercise suppression sanctions to remedy the prejudice injected into a criminal proceeding by the state's destruction of relevant evidence; from United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, the California court drew the following guidelines: the circumstances of the evidence's destruction are relevant to the determination of what sanctions should be imposed; judicial sanctions should be imposed whenever evidence is destroyed (or suppressed) in bad faith; however, a good faith loss of evidence requires the court to utilize a pragmatic balancing approach in determining whether to impose sanctions for the loss. (United States v. Bryant, supra, 439 F.2d 642, 651–652; United States v. Bryant, 145 U.S.App.D.C. 259, 448 F.2d 1182, 1184.)3

Under the circumstances present herein, the balancing of relevant considerations indicates that the court need not impose sanctions for the state's unintentional destruction of evidence; Officer Moffett clearly intended to preserve the seeds he found on the floor; he placed them in a plastic bag found in the car. Mere inadvertence on the officer's part—in not anticipating that the seeds' ‘separateness' might later arise as an issue in the case—is not sufficient reason for a court to impose the only sanction available under these circumstances: an invalidation of the auto search conducted by Moffett and Najera for lack of probable cause. Balancing the harm done to defendants by the destruction of this evidence against the way in which the evidence was effectively destroyed (inadvertently) and the single drastic sanction available to remedy the situation, it is apparent that the trial court's determination was proper.

While independent preservation of these seeds would have been helpful to the trial court in determining whether or not the officers' intrusion was a constitutionally permissible one, it was not essential. On balance, the commingling of the seeds was not sufficiently prejudicial to require suppression of the contraband. In other words, defendants have not been deprived of due process.


Inasmuch as the contraband was lawfully seized, the alternative writ is discharged; the stay order is vacated; and the petition for a peremptory writ of mandate is denied.


1.  Defendants also argue that in their case, as in Williams, the arresting officer had no knowledge of what the relationship of the defendants was to the car and its contraband contents. But herein, as distinguished from Williams, the police were confronted with two individuals who were in possession of and operating a contraband-carrying vehicle. In addition, Moffett's observations indicated to him that the car's occupants had recently smoked marijuana in the pipe found on the vehicle's floorboard. In this case, a strong basis to believe defendants knew of the contraband character of their cargo existed and Williams is thus inapposite.

2.  It should be noted that California's highest court has consistently upheld warrantless auto searches covering the entire vehicle—drawing no distinctions in regard to probable cause requirements needed to examine the constituent parts of the vehicle. (See People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Laursen, 8 Cal.3d 192, 104 Cal.Rptr. 425, 501 P.2d 1145, appl. dism., 412 U.S. 915, 93 S.Ct. 2738, 37 L.Ed.2d 142; Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, 484 P.2d 84.)

3.  Both the Hitch and Bryant courts noted that it is the duty of law enforcement agencies to establish and adhere in good faith to ‘rigorous and systematic procedures designed to preserve’ the evidence. (People v. Hitch, supra, 12 Cal.3d 641, 652–653, 117 Cal.Rptr. 9, 17, 527 P.2d 361, 369.) It appears from the record that it is the policy of the agency involved herein to preserve those items which have given rise to probable cause for a search.

KERRIGAN, Associate Justice.

GARDNER, P. J., and TAMURA, J., concur.

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Docket No: Civ. 13918.

Decided: February 21, 1975

Court: Court of Appeal, Fourth District, Division 2, California.

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