Padilla

The People appeal from the order of the Superior Court of Alameda County dismissing the action against defendant and respondent Pedro Padilla entered after the trial court granted defendant’s motion to suppress evidence made pursuant to Penal Code section 1538.5. The People contend on appeal that as a matter of law the trial court erred in granting defendant’s motion to suppress.

At approximately 4:40 p.m. on January 13, 1981, Oakland Police Officer Silva was on duty in uniform and in a marked police car. In the area of 10th Avenue and East 12th Street, he noticed a yellow Buick Opel with no rear license plate and a broken taillight. He turned on his lights and siren. The Opel pulled to the side of the road and stopped. At about this time, Officer Emerson arrived in another police car and parked behind Officer Silva’s car.

Officer Silva got out of his car and walked up to the driver’s side of the Opel, told the driver the reasons for the traffic stop and asked to see his driver’s license and car registration. Defendant was the passenger in the Opel. Officer Silva testified that “At that time my attention was distracted over to the passenger by his hands in his pants…