Bailey

Defendant Russell Bailey pleaded not guilty to charges of possession of cocaine and denied allegations of prior convictions. His motion to suppress evidence under Penal Code section 1538.5 was granted and the case dismissed. The People appeal.

At issue is the validity of a consent to search given in the presence of an officer who has directed a red light toward appellant’s vehicle.

An officer in an unmarked police car saw a vehicle occupied by a single person in the parking lot of a Sears store which was closed. The area was one in which persons from a nearby establishment would come to their cars to ingest drugs. The officer pulled in behind the car and turned on his emergency lights, red and blue in front and amber to the rear. The officer approached the car to see what the person was doing. As he was a few feet from the car he smelled marijuana. He spoke to the occupant and asked for consent to search. Consent was given by the occupant. The officer searched and found contraband material. The officer testified that as he approached the car, the occupant was not free to leave.

Consent can be given to a search, but the consent must be unequivocal, specific, and freely…

I respectfully dissent. The evidence in this case was simply not the product of a detention, either lawful or unlawful. The magistrate correctly decided this issue at the preliminary hearing when he found that the contraband and gun were discovered independently of any detention.

The undisputed evidence discloses that San Jose Police Officer Saito parked the police vehicle behind and slightly to the left of defendant’s parked vehicle. He switched on red and blue lights affixed to the vehicle’s grill and a flashing amber light facing rearward. His partner, Officer New *407 man, walked to the right side of defendant’s vehicle and, on arriving at the rear quarter panel, detected a strong odor of marijuana coming through the open front passenger window, through which he told defendant he smelled marijuana. Defendant spontaneously replied, “[hjere, let me show you where it’s at.” Defendant exited the vehicle but then reentered it and retrieved a bag of marijuana from a pouch in the front seat. He handed this bag to the officer and was then arrested.

Officer Saito then asked defendant for permission to search the vehicle. Defendant replied, “[g]o ahead.” Officer Newman, with the aid…

Defendant Russell Bailey pleaded not guilty to charges of possession of cocaine and denied allegations of prior convictions. His motion to suppress evidence under Penal Code section 1538.5 was granted and the case dismissed. The People appeal.

At issue is the validity of a consent to search given in the presence of an officer who has directed a red light toward appellant's vehicle.

An officer in an unmarked police car saw a vehicle occupied by a single person in the parking lot of a Sears store which was closed. The area was one in which persons from a nearby establishment would come to their cars to ingest drugs. The officer pulled in behind the car and turned on his emergency lights, red and blue in front and amber to the rear. The officer approached the car to see what the person was doing. As he was a few feet from the car he smelled marijuana. He spoke to the occupant and asked for consent to search. Consent was given by the occupant. The officer searched and found contraband material. The officer testified that as he approached the car, the occupant was not free to leave.

(1) Consent can be given to a search, but the consent must be unequivocal,…