People v. Temple

DIBIASO, J.

I dissent. I agree that a person’s “mere presence” at a scene of suspected criminal activity does not give rise to probable cause to search him or her. (U.S. v. Soyland (9th Cir. 1993) 3 F.3d 1312, 1314.) I also agree that probable cause to search a bystander found at such a location must be “particularized with respect to that person.” (U.S. v. Robertson (9th Cir. 1987) 833 F.2d 111, 783.) However, as I read Ybarra v. Illinois (1979) 444 U.S. 85, 91 [62 L.Ed.2d 238, 245, 100 S.Ct. 338], probable cause will exist where the subject makes “gestures indicative of criminal conduct,” or “movements that might suggest an attempt to conceal contraband.” (Ibid.)

Sergeant Smith testified that all the occupants of the van “lit up cigarettes when [Smith] approached the vehicle” after he had completed his call for backup assistance. Smith said he smelled, as he walked up to the driver’s side of the van, a “strong odor” of raw marijuana emanating from inside the van. He also said there was a “lot of smoke” in the van from the several burning cigarettes.1 In my view these facts generated, as a matter of law, probable cause to believe that all the occupants, including Temple, knew there was marijuana in the van or on the person of one or more of the occupants, or both, and intentionally tried to hastily mask the smell of the drug with cigarette aroma in order to attempt to evade detection. After all, if Smith could smell the raw marijuana the van’s occupants undoubtedly could also. While there might be an innocent reason why all five people in a vehicle reeking of narcotics would, essentially simultaneously, light and start puffing on cigarettes as a police officer was approaching the vehicle, the inference is legitimate and compelling that these unified actions were an “attempt to conceal contraband.” (Ybarra v. Illinois, supra, 444 U.S. at p. 91 [62 L.Ed.2d at p. 245].)

Smith therefore had probable cause to search all five occupants, as well as the van, in order to determine whether in fact contraband was concealed in *1231the vehicle or on the person of any of the occupants.2 I would reverse the trial court’s order.3

It is obvious I do not agree with concurring Justice Stone that the preliminary hearing transcript was not evidence for purposes of the suppression hearing. In addition to the trial court’s statement, made in the presence of counsel and unchallenged by either, that it had read the preliminary hearing transcript, the parties’ moving papers disclose reliance on testimony contained in that transcript. The People expressly stated that their opposition to the motion to suppress was based in part upon the transcript, and the defendant’s argument in his points and authorities in support of the motion —as distinguished from his introductory recitation in those points and authorities of what he believed the evidence would show—cites, by page number, specific testimony found in the preliminary hearing transcript. In my estimation these facts justify an inference the transcript was “properly before the [superior] court and that the judge had access to and considered the transcript.” (People v. Cagle (1971) 21 Cal.App.3d 57, 61 [98 Cal.Rptr. 348].)

Although the subject is entirely irrelevant to this appeal, I cannot help but wonder aloud here why the People did not attempt to establish that the discovery of the marijuana and methamphetamine on Temple’s person was “inevitable.” (See, e.g., Nix v. Williams (1984) 467 U.S. 431 [81 L.Ed.2d 377, 104 S.Ct. 2501]; People v. Clark (1993) 5 Cal.4th 950, 993-994 [22 Cal.Rptr.2d 689, 857 P.2d 1099].) Regardless of whether Smith had probable cause to search Temple before searching the duffel bag, it would seem that the discovery of the marijuana in the duffel bag, in conjunction with Smith’s *1232observation of the earlier smoking frenzy, would have furnished Smith with probable cause to arrest and search all five occupants of the van.4 (See People v. Gorrostieta (1993) 19 Cal.App.4th 71, 83 [23 Cal.Rptr.2d 92].) The relevant offense with respect to Temple would have been possession (Health & Saf. Code, § 11357) or transportation of marijuana (Health & Saf. Code, § 11360) based upon constructive possession (See People v. Cirilli, supra, 265 Cal.App.2d at p. 612), or at the very minimum, conspiracy to possess marijuana for sale (Pen. Code, §§ 182, 184; Health & Saf. Code, § 11359; see People v. Consuegra (1994) 26 Cal.App.4th 1726, 1734 [32 Cal.Rptr.2d 288]; People v. Towery (1985) 174 Cal.App.3d 1114, 1131-1132 [220 Cal.Rptr. 475]; see also U.S. v. Penagos (9th Cir. 1987) 823 F.2d 346, 348; U.S. v. Taylor (9th Cir. 1986) 802 F.2d 1108, 1116). A search of Temple incident to such an arrest, which would necessarily have uncovered the contraband concealed on his person, would have been proper. (People v. Gorrostieta, supra, 19 Cal.App.4th at p. 83; People v. Gonzales, supra, 216 Cal.App.3d 1185, 1189.)

With respect to conspiracy to possess marijuana for sale, I believe the rational inferences which flow from (1) the presence of a saleable amount of marijuana in a duffel bag behind the driver’s seat of the van in which Temple was a passenger, (2) the powerful odor of the narcotic emanating from inside the van, and (3) the occupants’ concerted action in lighting up and smoking cigarettes as Smith approached the van, would have led a person of ‘“ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion’ ” (People v. Gonzales, supra, 216 Cal.App.3d at p. 1189) of both the existence of a conspiracy among the occupants of the van to possess marijuana for sale and Temple’s participation in it. (See People v. Consuegra, supra, 26 Cal.App.4th at p. 1734; People v. Towery, supra, 174 Cal.App.3d at pp. 1131-1132; see also U.S. v. Penagos, supra, 823 F.2d at p. 348.) However, because the People at the suppression hearing did not rely upon this theory to justify the search, the trial court had no basis upon which to consider it and neither can we. (4 Witkin & Epstein, Cal. Criminal Law, supra, Exclusion of Illegally Obtained Evidence, § 2270, pp. 2667-2668.)

A petition for a rehearing was denied August 9, 1995, and appellant’s petition for review by the Supreme Court was denied October 19, 1995.

The two police officers were the only witnesses called at both the preliminary hearing and the suppression hearing. There is nothing in the record which suggests that the trial court disbelieved or rejected any part of the testimony given at either proceeding by the officers. If anything, the record discloses that the trial court accepted as true all of the testimony of the officers but ruled that the facts presented did not as a matter of law give rise to the requisite probable cause.

The arguments made by the People in the trial court and on appeal are sufficient in my view to raise this theory in support of the legality of the search, although in neither instance is it fully developed. (See 4 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Exclusion of Illegally Obtained Evidence, § 2270, pp. 2667-2668.) In addition, Smith’s testimony does support a conclusion that the concerted smoking by the van’s occupants played some role in his decision to search the vehicle.

I also believe the facts—particularly the open nature of a van and the pervasiveness of the telltale odor—furnished Smith with probable cause to arrest all five occupants of the van at the moment he stood at the driver’s window of the van. At that point, Smith would have had a reason to believe that Temple, as well as the others, “had committed” or “was committing” an offense under state law (Ybarra v. Illinois, supra, 444 U.S. at p. 91 [62 L.Ed.2d at p. 245]), to wit, possession (Health & Saf. Code, § 11357) or transportation of marijuana (Health & Saf. Code, § 11360), based upon principles of constructive possession. (See People v. Johnson (1984) 158 Cal.App.3d 850, 854 [204 Cal.Rptr. 877]; People v. Cirilli (1968) 265 Cal.App.2d 607, 612 [71 Cal.Rptr. 604]; People v. Torres (1950) 98 Cal.App.2d 189,193 [219 P.2d 480].) A search of Temple incident to such arrest was thus proper, even if it preceded the arrest. (See People v. Gonzales (1989) 216 Cal.App.3d 1185, 1189 [265 Cal.Rptr. 507]; People v. Lee (1987) 194 Cal.App.3d 975, 984 [240 Cal.Rptr. 32].) In practical effect, the majority opinion holds that evidence which is sufficient to support a verdict of guilty, based upon the concept of constructive possession, is insufficient to support probable cause to arrest or search.

As stated in the majority opinion, defendant conceded in the trial court, as he does on appeal, that there existed probable cause to conduct the search of the vehicle which turned up the marijuana in the duffel bag.