THE PEOPLE, Plaintiff and Appellant, v. JOHN CHARLES GALE, Defendant and Respondent, 9 Cal. 3d 788

Opinion BURKE, J. Defendant was charged with possession of marijuana for sale (former Health & Saf. Code, § 11530.5) and possession of cocaine (former Health & Saf. Code, § 11500). He moved for suppression of the evidence on the ground of illegal search and seizure. (Pen. Code, § 1538.5.) The trial court ordered the evidence suppressed, and on its own motion dismissed the indictment (Pen. Code, § 1385). The People appeal. (Pen.

Code, § 1238, subd. (a), subsecs. (1) and (7).) Between 8 and 9 p.m. on March 11, 1971, Police Officer Aumond noticed a man, subsequently identified as defendant, in a dimly lighted parking lot adjacent to a group of businesses, some of which were known by the officer to have been burglarized in recent months. After Officer Aumond drove partially around the block and into the lot defendant, who had been standing near the right side of a Pontiac, walked to his left past the front of the vehicle, moved towards the police unit, but then veered away and headed in the direction of the street.

The officer called to defendant, approached him, and requested identification. Defendant produced his driver’s license, which appeared to be in order, and said he was waiting for a friend. In response to additional questions, defendant stated that he did not own the Pontiac and that “he thought the car belonged to the person he was waiting for but upon checking he found it wasn’t.” Defendant also stated that other friends were waiting for him at a cafe located approximately one block from the parking lot.

At some time during this conversation Officer Aumond patted defendant down, but found no weapons. (The legality of the pat-down search is not at issue.) A second police officer, James Gardiner, arrived to assist. Officer Gar-diner took over the field interrogation of defendant, while Officer Aumond went fo the Pontiac to determine if it had been burglarized. Officer Aumond testified he first approached the driver’s side of the vehicle, a two-door hardtop, and examined the windows and interior with his flashlight.

During this initial scrutiny he noticed “dust disturbances” which looked to him like handprints on the driver’s door and rear side window. Observing that the front window on the passenger side was lowered and that unprotected items of personal property were visible on the front and back seats, Officer Aumond assertedly entered the vehicle on the passenger side to ascertain if it had been burglarized or tampered with, to look for registration papers, and to secure the items of property inside. Once inside the vehicle Aumond smelled the strong odor of bulk marijuana.

Officer Aumond then left the Pontiac and went to a Porsche automobile parked approximately 10 feet away, on the other side of a delivery van. He shone his flashlight on the car and noticed “dust disturbances” on the driver’s door similar to those he had seen on the Pontiac. He then opened the door and entered the Porsche. He found no evidence of tampering, but removed the car’s registration papers. While inside, he again smelled an odor of marijuana.

Officer Aumond returned to Officer, Gardiner, and the latter said that defendant’s clothing also smelled strongly of marijuana After personally verifying this fact, Officer Aumond placed defendant under arrest on suspicion of possession of marijuana. A search of defendant’s person disclosed $1,400 in cash in his shirt pocket, but no marijuana or other contraband. The two cars, however, were then thoroughly searched and substantial quantities of marijuana were found in both, together with a small amount of cocaine in the Porsche.

In granting defendant’s motion to suppress the foregoing evidence, the trial court ruled there were no circumstances giving a reasonable person cause to believe the cars had been tampered with. The officer “has to have some cause to get in the car,” said the court, and none was shown here. We turn to a consideration of the order appealed from under appropriate standards of review. Recently we stated “In such a proceeding [a Pen.

Code, § 1538.5 motion to suppress evidence] the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence. The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.

Although that issue is a question of law, the trial court’s conclusion on the point should not lightly be challenged by appeal or by petition for extraordinary writ. [Fn. omitted.] Of course, if such review is nevertheless sought, it becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.” (Italics added; People v.

Lawler, 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621].) In assuming the responsibility announced above, we have concluded, as a matter of law, that the facts and circumstances found by the trial court warranted the officer’s initial entry into the Pontiac, but not the subsequent entry into the Porsche. However, at the outset of our analysis it may be useful to explain what is not involved in this proceeding.

First, we need not determine whether the prosecution made a sufficient showing at the hearing to connect this defendant with the contents of the Pontiac and the Porsche—i.e., to establish that defendant had dominion and control over the contraband found therein. Whether there were reasonable grounds to suspect this defendant—rather than someone else—to be guilty of possessing the contraband found in the two cars is not an issue cognizable on a motion under Penal Code

section 1538.5. It is a matter to be litigated at the trial, or, if pretrial relief is desired, by a motion under

section 995 to set aside the indictment or information for lack of probable cause. By contrast, a motion under

section 1538.5 is directed not to the identity of the culprit but to the legality of specific items of evidence obtained by a search and seizure. It is, in a sense, in the nature of a proceeding in rem against the evidence itself. The only connection that need be shown between the evidence and the moving party, accordingly, is a sufficient interest to give the latter standing to make the motion.

In the case at bar standing is provided by the rule in this state that a defendant against whom incriminating evidence is offered in a criminal prosecution, as here, has standing to seek its suppression on the ground of illegal search and seizure. (Kaplan v. Superior Court, 6 Cal.3d 150, 156-157 [98 Cal.Rptr. 649, 491 P.2d 1], and cases cited.) Second, for present purposes the lawfulness of defendant’s arrest is also irrelevant. We may assume arguendo that the arrest was legal. But it does not follow that the search of the Pontiac and the Porsche can be upheld as an incident to that arrest.

It may be fairly inferred from the record that at the time defendant was placed under arrest he was immediately adjacent to the patrol car. The patrol car, however, was parked 25 or 30 feet from the place where the Pontiac and the Porsche were standing. At that distance the interior of the latter cars was manifestly not an “area into which an arrestee might reach in order to grab a weapon or evidentiary items” (Chimel v. California, 395 U.S. 752, 763 [23 L.Ed. 2d 685, 694, 89 S.Ct. 2034]), and hence could not lawfully have been searched as an incident to the arrest.

On the other hand, even if the arrest had been invalid the search of the Pontiac and the Porsche would be permissible if Officer Aumond’s initial entry into each vehicle was lawful. This is so because in each instance the strong odor of fresh marijuana which Officer Aumond smelled after entering would have given him “probable cause to believe . . . that contraband may be present.” (People v.

Marshall, supra, 69 Cal.2d 51, 57, fn. 2.) Inasmuch as the contraband was apparently located not in a dwelling but in an automobile parked in a public lot—unlocked, accessible, and readily movable—the same probable cause would have justified the subsequent search of each vehicle under the rationale of Carroll v. United States, 267 U.S. 132 [69 L.Ed. 543, 45 S.Ct. 280, 39 A.L.R. 790], and its progeny. It follows that the dispositive question in this proceeding is whether Officer Aumond’s initial entry into the Pontiac and the Porsche was lawful.

His observation while outside each vehicle—whether of the exterior or the portion of the interior visible from that vantage point—was not a “search” in the constitutional sense. (Harris v. United States, 390 U.S. 234, 236 [19 L.Ed.2d 1067, 1069, 88 S.Ct. 992].) But his ensuing entry into each car was, under numerous cases, a search within the meaning of the Fourth Amendment to the United States Constitution and

article I,

section 19, of the California Constitution. (See, e.g., People v. Superior Court (Kiefer) 3 Cal.3d 807, 830-831 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559].) As it was stipulated that Officer Aumond did not have a warrant to search either car, the burden to show proper justification for these searches rested on the prosecution. (Badillo v. Superior Court, 46 Cal.2d 269, 272 [294 P.2d 23].) We begin with the entry into the Pontiac. On the basis of the aforementioned facts the trial court held Officer Aumond’s entry into the Pontiac was unwarranted and suppressed the subsequently discovered contraband.

However, we have concluded that an examination of the totality of the circumstances, from the officer’s initial observance of defendant in the area to the exterior inspection of the Pontiac, commands the contrary result. Since Officer Aumond’s external inspection of the Pontiac produced no observable evidence of “tampering” other than the dust disturbances, the trial court concluded that there were no circumstances sufficient to give a reasonable person cause to believe the vehicle had been tampered with or burglarized, and thus, there was no reason to enter the vehicle. We disagree.

It appears that the trial court failed to consider the reasonable inference, drawn from the suspicious circumstances preceding Aumond’s entry into the vehicle, that a crime was being, or had been, perpetrated in or about the Pontiac. In retrospect, we might agree that Officer Aumond could have pursued alternate courses of conduct in attempting to inspect the vehicle, such as attempting to locate the owner by a radio license check.

However, knowledge acquired through hindsight is an improper gauge by which to judge an officer’s actions. “The question of the reasonableness of the officers’ conduct is determined on the basis of the information possessed by the officer at the time a decision to act is made. [Citations.]” (People v. Superior Court (English) 266 Cal.App.2d 685, 688 [72 Cal.Rptr. 261]; italics added. ) Thus; in light of the knowledge available at the time the entry into the Pontiac was made, Officer Aumond’s actions appear lawful and reasonable.

Significantly, we note that “[e]xperienced police officers naturally develop an ability to perceive the unusual and suspicious which is of enormous value in the difficult tasks of protecting the security and safety of law-abiding citizens. The benefit thereof should not be lost because the cold record before a reviewing court does not contain all the particularized perceptions which may have been so meaningful at the scene.” (People v. Cowman, 223 Cal.App.2d 109, 117-118 [35 Cal.Rptr. 528].) The Supreme Court of the United States in Terry v.

Ohio, 392 U.S. 1, 21-22 [20 L.Ed.2d 889, 905-906, 88 S.Ct. 1868], said “The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. [Fn. omitted.] And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate? [Citation, fn. omitted.] Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. [Citation.]” As previously stated, we have concluded as a matter of law that Officer Aumond’s entry into the Pontiac, based on the articulable facts available to him, was entirely reasonable and appropriate.

The California cases support that conclusion. For example, in People v. Drake, 243 Cal.App.2d 560 [52 Cal.Rptr. 589], two police officers on patrol at 6:30 a.m. noticed a vehicle parked approximately three feet from the curb; both doors were unlocked and one was slightly ajar. One officer entered to find the registration which showed the owner lived two miles from the scene.

Suspecting that the vehicle might have been stolen, the officer then examined the ignition to determine whether it had been “hot wired.” In affirming the legality of the discovery of marijuana under the ignition upon entry into the vehicle the court stated (p. 564), “To examine the wiring of the ignition to see if it had been ‘hot wired’ was a proper step to ascertain whether the vehicle had been stolen in view of the other circumstances under which the vehicle was found.

In doing so the officers were not engaged in the search for contraband nor were they attempting to make an arrest, and they were not obligated under the law to ignore the contraband which came to their attention accidentally while they were engaged in a lawful investigation of the vehicle in which it was found. [Citations.]” The Drake case is virtually indistinguishable from the instant case and its rationale would permit officers to enter an unoccupied vehicle whenever the circumstances surrounding the entry reasonably indicate the possibility of burglary or tampering.

Considering both the relatively minor nature of the intrusion in this case and the circumstances surrounding Officer Aumond’s decision to enter the vehicle, we uphold the entry into the Pontiac as a reasonable, on-the-scene investigation. However, the search of the Porsche presents a different factual situation. The factors which we deemed significant in giving rise to reasonable cause to enter the Pontiac fail to support the entry into the Porsche. Defendant was not observed near or about the Porsche, that vehicle did not appear unsecured, and there was no visible personal property on the seats open to theft.

Thus, in the absence of any suspicious circumstances or other factors connecting defendant with the Porsche, we view Officer Aumond’s entry into the Porsche as unreasonable and hold that the evidence of the contraband discovered in the Porsche should be suppressed. Defendant also maintains that his detention by the officers should have ceased once he furnished satisfactory identification and responded in a reasonable manner to the officers’ questions.

An analysis of the factual setting in which the detention occurred, coupled with applicable legal principles leads us to conclude, however, that the detention was not unduly extensive. Officer Aumond testified that approximately three minutes elapsed from the time he initially stopped defendant to the arrival of Officer Gardiner. After conversing with the second officer, Aumond proceeded to examine the vehicles while Gardiner continued to fill out a field interrogation card with defendant.

Although the record fails to disclose the length of time it took Aumond to inspect the vehicles, inform Gardiner of the marijuana odor in the vehicles, be told of the smell of marijuana on defendant’s clothes, and make the arrest, the actual duration of the detention appears to have been minimal. Defendant does not contend otherwise. Thus, on the basis of the foregoing sequence of events, it appears that either officer would have been remiss in permitting defendant to leave prior to informing the other of the particular knowledge acquired by each independently.

Defendant does not challenge the legality of his initial detention. It has been stated that “While a detention of a citizen by a police officer based on a ‘mere hunch’ is unlawful, if there is a rational suspicion that some activity out of the ordinary is taking place, and some suggestion that the activity is related to crime, a detention is permissible. [Citation.]” (People v.

Gravatt, 22 Cal.App.3d 133, 136-137 [99 Cal.Rptr. 287]; italics in original.) Many of the factors which we have deemed significant in sustaining the reasonableness of Officer Aumond’s entry into the Pontiac also serve to sustain defendant’s detention. People v. Rosenfeld, 16 Cal.App.3d 619 [94 Cal.Rptr. 380], aids us in determining that defendant’s detention was not unreasonable in extent. In that case two officers were patrolling an alley behind apartments with open garages in an area where there had been a number of auto burglaries. The officers spotted defendant and asked his reason for being there.

Defendant responded that he was looking for a friend, but that he did not know where the friend resided. One officer continued the interrogation of defendant while the other sought to find the friend as well as to check nearby buildings and vehicles. In discussing the legality of the detention the court stated “it is apparent that, what the officers were attempting to do was carry out an on-the-scene investigation in a high crime rate area of the activities of a person who they suspected might be breaking into parked vehicles.

It is a reasonable inference that the officers were attempting to prevent the commission of a crime by a timely investigation of [a] brief duration. [Citation.]” (P. 623; italics in original.) The court additionally remarked (p. 623), “The duration of the further investigation was admittedly short, and the extent of the additional temporary detention was minimal. On the facts before us we believe the officers acted within their authority. Unlike People v. Lingo, 3 Cal.App.3d 661 .. . and Pendergraft v.

Superior Court, 15 Cal.App.3d 237 . . . where a lawfully initiated detention was unlawfully extended, the officers at bench had not completed their initial on-the-scene investigation. Prudence dictated that at a minimum the police examine the nearby vehicles and buildings for signs of unlawful entry or attempted unlawful entry.” (Italics added.) In the instant proceeding it appears that Officer Aumond’s examination of the vehicles was merely the logical consequence of his initial detention of defendant.

By the time Officers Aumond and Gardiner completed the on-the-scene- investigation, they possessed sufficient knowledge to warrant defendant’s arrest. In view of the circumstances giving rise to defendant’s detention, and the reasonableness of the subsequent inspection and entry into the vehicles, the extended detention was a necessary concomitant of a thorough investigation. Finally, defendant contends that submission of previously suppressed evidence to a grand jury for consideration amounts to a denial of due process unless the grand jury is informed of the prior judicial action.

However, without passing on the merits of this contention, it is evident that the question was not properly before the trial court under Penal Code

section 1538.5, which (as pointed out above) is limited by its terms to a consideration of the admissibility of evidence allegedly obtained through an illegal search and seizure. (See People v. Superior Court (Redd) 275 Cal.App.2d 49, 50-52 [79 Cal.Rptr. 704]; cf. People v. Superior Court (Smith) 70 Cal.2d 123, 127-130 [74 Cal.Rptr. 294, 449 P.2d 230].) Accordingly, we do not reach the matter on this appeal from the granting of defendant’s motion under that section. The portion of the order of the trial court suppressing the evidence found in the Pontiac and dismissing the indictment is reversed.

The remainder of the order suppressing the evidence discovered in the Porsche is affirmed. Wright, C. J., McComb, J., and Wood, J., concurred. The cited sections of the Health and Safety Code, together with all sections of former division 10 of that code, were repealed and reenacted with different numbering by

chapter 1407 of the Statutes of 1972. This was actually the second time the evidence had been suppressed and the charges dismissed. Defendant was originally charged in a complaint filed on March 25, 1971. At the preliminary hearing he made a motion under

section 1538.5, subdivision (f), for suppression of the evidence, and on July 30, 1971, the motion was granted and the charges dismissed. On August 18, 1971, however, the prosecution presented the same evidence to a grand jury (Pen. Code, § 1538.5, subd. (j)), which returned an indictment. On January 12, 1972, a second motion was successfully made by defendant for suppression of the evidence. It is the order granting that motion which the People now challenge on appeal. In the case at bar a motion under

section 995 was in fact made and denied prior to the hearing on the present motion to suppress. Penal Code

section 836, subdivision 3, authorizes an arrest without a warrant whenever an officer “has reasonable cause to believe that the person to be arrested has committed a felony, . . .” In determining whether such cause exists “an officer may rely upon all of his senses,” including the sense of smell. (People v. Marshall, 69 Cal.2d 51, 57, fn. 2 [69 Cal.Rptr. 585, 442 P.2d 665].) Here both officers testified they detected a strong odor of fresh marijuana apparently emanating from defendant’s person.

The observation thus gave them reasonable cause to believe defendant guilty of the offense of possessing marijuana, and hence to arrest him on that charge. (Mann v.

Superior Court, 3 Cal.3d 1, 7 [88 Cal.Rptr. 380, 472 P.2d 468].) It is of course irrelevant in this connection that no marijuana was actually found on defendant in the post-arrest search of his person, as the code authorizes such an arrest “whether or not a felony has in fact been committed.” After returning from his first entry into the Pontiac and the Porsche, Officer Aumond placed defendant in the rear seat of his patrol car while he told Officer Gardiner of the marijuana odor he had detected in those vehicles.

Upon learning from Officer Gardiner that defendant also smelled of marijuana, Officer Aumond removed him from the patrol car, verified the presence of the odor, and arrested him forthwith. See pages 791-792, ante.

Among the facts which, in combination, would justify entry into the vehicle are (1) defendant’s presence in the parking lot at night, (2) nearby business establishments, some which had been recently burglarized, (3) defendant’s elaborate explanation for his presence, (4) the dust disturbances on the door and window, (5) the unsecured condition of the vehicle, and (6) the visible personal property on the front and rear seats of the vehicle.

The trial court, in granting suppression, stated “Well, number one, after interrogating the defendant, getting his ID and his reasonable explanation for where he was and why, they should have sent him on his way.” See pages 791-792, ante; footnote 5. The record also fails to disclose whether Officer Gardiner had completed the field interrogation card before Officer Aumond returned. See also Irwin v. Superior Court, 1 Cal.3d 423, 426 [82 Cal.Rptr. 484, 462 P.2d 12], “In People v.

One 1960 Cadillac Coupe, 62 Cal.2d 92, 94-96 . . . , we held that, although ‘a police officer . . . may detain and question a person when the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of [his] duties,’ the circumstances must be such as to distinguish the activity of the detained person from that of any other citizen and must be based on an objective perception of events rather than the subjective feelings of the detaining officers. [Citation.]” The pertinent factors are:

(1) Defendant’s presence in the parking lot at night, (2) nearby business establishments, some of which had been recently burglarized, (3) defendant’s explanation for his presence, (4) and his close proximity to the Pontiac when Officer Aumond entered the parking lot. Assigned by the Chairman of the Judicial Council.