Sims

David Alan Sims was convicted following a jury trial of possession and transportation of LSD (Health & Saf. Code, §§ 11377, subd. (a) and 11379, subd. (a).) The appeal is from the judgment. Prior to trial, his motions to dismiss the information (Pen. Code, § 995) and to suppress evidence (Pen. Code, § 1538.5) were denied.

At about 3 a.m. on December 3, 1977, Police Officers Gourley and Odom pulled behind appellant’s car which was stopped at a red light in the Town of Willits. When the light changed, appellant’s car failed to proceed for about 15 seconds, then moved forward very slowly, at perhaps 10 miles per hour, for approximately 100 yards. At that point the officers stopped appellant for investigation of drunk driving. From outside the car, they observed what they believed to be “flakes” of marijuana on appellant’s shirt and lap. Officer Odom inquired of appellant, “Where is the rest of the marijuana?”, to which he replied, “Oh, please officer.” When the officer repeated the question appellant replied that the rest of the marijuana was in the briefcase on the front seat of the car. Appellant started to reach for the briefcase, but was advised not to do so by the…

I respectfully dissent.

Independent of the statement that appellant alleges to have been the product of a Miranda violation, the marijuana flakes visible on appellant’s shirt and lap supplied sufficient probable cause to search for more contraband in the interior of his car and in the briefcase located therein. (See Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564 [ 128 Cal.Rptr. 641 , 547 P.2d 417 ].) It is thus unnecessary to consider the Miranda problem for purposes of determining probable cause. (Cf. People v. Herdan (1974) 42 Cal.App.3d 300, 309-310 [ 116 Cal.Rptr. 641 ].)

The warrantless search of the briefcase, however, required more than probable cause. Once closed luggage such as a briefcase is brought within the exclusive control of law enforcement officers, a warrantless search requires exigent circumstances as well. (United States v. Chadwick (1977) 433 U.S. 1, 15-16 [ 53 L.Ed.2d 538, 550-552 , 97 S.Ct. 2476 ]. Accord, Arkansas v. Sanders (1979) 442 U.S. 753, 766 [ 61 L.Ed.2d 235, 246 , 99 S.Ct. 2586 ]; United States v. Schleis (8th Cir. 1978) 582 F.2d 1166, 1170 ; People v. Dalton (1979) 24 Cal.3d 850, 860 [ 157 Cal.Rptr. 497 , 598 P.2d 467 ], cert. den. 445…

David Alan Sims was convicted following a jury trial of possession and transportation of LSD (Health & Saf. Code, §§ 11377, subd. (a) and 11379, subd. (a).) The appeal is from the judgment. Prior to trial, his motions to dismiss the information (Pen. Code, § 995) and to suppress evidence (Pen. Code, § 1538.5) were denied.

At about 3 a.m. on December 3, 1977, Police Officers Gourley and Odom pulled behind appellant's car which was stopped at a red light in the Town of Willits. When the light changed, appellant's car failed to proceed for about 15 seconds, then moved forward very slowly, at perhaps 10 miles per hour, for approximately 100 yards. At that point the officers stopped appellant for investigation of drunk driving. From outside the car, they observed what they believed to be "flakes" of marijuana on appellant's shirt and lap. Officer Odom inquired of appellant, "Where is the rest of the marijuana?", to which he replied, "Oh, please officer." When the officer repeated the question appellant replied that the rest of the marijuana was in the briefcase on the front seat of the car. Appellant started to reach for the briefcase, but was advised not to do so…