People v. Knight

Opinion

Defendant was charged with possession of marijuana (§ 11530, Health & Saf. Code); his motion to suppress the evidence under section 1538.5, Penal Code, was denied. A jury found defendant guilty as charged; he appeals from the judgment.

The evidence on the 1538.5 motion establishes the following. Around 9:10 p.m. on April 23, 1969, Deputies Kusch and Wilber, riding in a marked sheriff’s vehicle on Foster Bridge, observed a 1957 Pontiac being driven by defendant in which one Dunlap was a passenger, approaching; as the Pontiac passed the sheriff’s vehicle it turned onto Priam Drive and accelerated rapidly to 40 miles per hour in a 25-mile per hour residential zone; they stopped the Pontiac for a speeding violation. Deputy Kusch approached the passenger side and Deputy Wilber the driver’s side; the occupants appeared to be 18 or 20 years of age. The stop of defendant’s car was different from the normal stop of a vehicle for a traffic violation because of its rapid acceleration and' excessive speed on Priam—it was not a typical slow acceleration to 40 miles per hour—there had been numerous gang activities in the area and the vehicle had come from the area where

Defendant testified that he was driving 35 miles per hour when stopped; when the deputies approached they asked him and Dunlap to step out where they were each patted down and placed under arrest; the jacket found in the vehicle bélonged to Dunlap; there was no marijuana smoke in the car but there may have been the smell of burning oil caused by an oil leak; he did not see the deputy recover a small bag from under the front seat but he did see him with a small bag of something that appeared to resemble marijuana; both of the windows were down.

At the jury trial both deputies testified. Deputies Wilber and Kusch were driving on Foster Bridge when they saw a 1957 Pontiac coming from the opposite direction; as it passed it accelerated rapidly and in excess of the speed limit; Deputy Wilber then made a U-turn, followed the car which turned left on Priam and clocked it at 40 miles per hour in a 25-mile zone; the Pontiac appeared to be evading them; they stopped the Pontiac about three blocks north of Foster Bridge. Deputy Wilber approached defendant, whose window was down, and advised him to alight from the vehicle; Dunlap also got out of the vehicle at the request of Deputy Kusch; as they did so both deputies detected the odor of marijuana smoke coming from inside the vehicle. Deputy Wilber also noticed the odor of marijuana when he talked to defendant; Deputy Kusch, who had retrieved the cigarette from and arrested Dunlap advised Deputy Wilber Dunlap was under arrest for possession of marijuana, then Deputy Wilber searched the interior of the vehicle finding the contraband whereupon he arrested defendant; during booking he removed Zigzag papers from defendant’s person. Deputy Kusch’s testimony was the same as that given by him at the preliminary hearing.

Defendant testified that Dunlap was arrested first; subsequently he saw

In support of his contention that recovery of the contraband was the result of an unreasonable search and seizure, appellant relies on People v. Superior Court (Kiefer) 3 Cal.3d 807 [ 91 Cal.Rptr. 729 , 478 P.2d 449 ], and argues that the action of Deputy Kusch in opening the door of the passenger side of the Pontiac and his observations resulting therefrom constituted a search.

People v. Superior Court (Kiefer) 3 Cal.3d 807 [ 91 Cal.Rptr. 729 , 478 P.2d 449 ], does not govern the disposition of this case, for the facts in Kiefer are far different. As a highway patrol officer stopped Kiefer for speeding he saw Mrs. Kiefer engage in a series of movements which made it appear to him that she was hiding something. Defendant alighted from the vehicle first, walked toward the officer and acknowledged he had been speeding. The officer then approached the passenger side on which the window was rolled up; he “made no attempt to communicate with Mrs. Kiefer, but immediately opened the car door next to her and looked inside. As he later testified, ‘My purpose was . . . several. One was to talk to the passenger and see what had been hidden and I was also concerned about my own safety.’ ” (P. 811.) He observed marijuana on the floor mat and seat cushion, ordered Mrs. Kiefer out and searched the car. The court held that in the circumstances shown the officer’s act of opening the door and looking inside was an unreasonable search within the meaning of the Fourth Amendment. (P. 812.) These circumstances differ from those in the instant case.

First, the court in Kiefer doubted that the officer was truly concerned that Mrs. Kiefer might be armed and found that the search was exploratory in nature prompted by general curiosity (pp. 830-831). Deputy Kusch testified that immediately after stopping the Pontiac he asked Dunlap to get out because “there were things that gave me reason to believe that my safety may be in danger.” Those “things,” he explained, were: it was dark, about 9:10 p.m.; as soon as defendant passed the sheriff’s vehicle he rapidly accelerated to 40 miles per hour and his speed became excessive in a residential area (leaving the inference [as concluded by Deputy Wilber]

First, the evidence overwhelmingly points to defendant’s guilt. The rapid acceleration and excessive speed of defendant’s vehicle after observing the deputies supports the inference that defendant was trying to evade them; when the doors were opened they smelled a “very strong” odor of marijuana smoke and observed smoke rolling out of the car; as Deputy Wilber talked to defendant he also noticed the odor of marijuana on him; a bag containing marijuana and a hand-rolled marijuana cigarette were found under the driver’s seat; and Zigzag cigarette papers were found on his person. Defendant was the owner and driver of and had direct control over the Pontiac and had constructive ownership and possession of its contents. (Caughlin v. Superior Court, 4 Cal.3d 461 , 465 [ 93 Cal.Rptr. 587 , 482 P.2d 211 ].) Knowledge of the presence of the contraband in the vehicle and of its narcotic character may be shown by circumstantial evidence. (Rideout v. Superior Court, 67 Cal.2d 471 , 474-475 [ 62 Cal.Rptr. 581 , 432 P.2d 197 ].) The contraband was secreted under the seat on which defendant had been sitting; defendant had Zigzag papers on his person; he smelled of marijuana smoke and he could not have been in his car in which marijuana smoke rolled out without being aware of it.

Second, while the prosecutor’s stated purpose of questioning defendant was to elicit relevant facts and test his credibility, it does not appear from his prior questions and defendant’s own testimony that he embarked on a calculated effort to convert defendant’s silence into a tacit admission of guilt. The questioning was brief and the court sustained the objection at the first poiilt the proper grounds were brought to its attention. Any inference adverse to defendant the jury might have drawn from the fact defendant did not volunteer information to the officers was not strong. There was no evidence that the deputies questioned him at the time of his arrest and there was no particular reason for him to volunteer any information

The judgment is affirmed.

Wood, P. J., and Thompson, J., concurred.