Temple

The People appeal from an order dismissing several drug charges against the defendant, Jed William Temple. The court dismissed the charges on its own motion after granting, in part, Temple’s motion to suppress evidence on the ground the police lacked probable cause under the circumstances to search him.

*1222 The Facts

In the early morning hours of August 25, 1993, Sergeant Steve Smith of the Madera County Sheriff’s Department stopped a van in Oakhurst after noticing it had a broken taillight and was weaving. The driver got out and met Smith at the rear of the vehicle while the four passengers remained inside. When he smelled the odor of burnt marijuana on the driver, Smith decided to search the vehicle and its occupants. He directed the driver to get back in the van while he (Smith) radioed for assistance. According to the officer, “I knew there was marijuana in the vehicle, and I wanted a backup there so that I could individually search everyone in it and the vehicle.”

Deputy Lynn Fullmer soon responded to the call and took up a position at the right side of the van as Smith approached the driver’s window. Although all five occupants were smoking cigarettes, Smith…

Although my heart agrees with the dissent, my head, and thus my signature, dictate otherwise. I write briefly to explain why in my opinion the dissent erroneously relies on the testimony of Officer Smith to establish suspicious circumstances in order to take the case out of the “mere presence” holding of U.S. v. Soyland (9th Cir. 1993) 3 F.3d 1312, 1314 .

The dissent emphasizes Smith’s testimony “that all the occupants of the van ‘lit up cigarettes when [Smith] approached the vehicle.’ ” That testimony, however, occurred at the preliminary hearing. At the preliminary hearing the defense did not make a motion to suppress, nor did the magistrate proceed as if such a motion had been made. Defense counsel did not argue that any evidence should have been suppressed or that any evidence was inadmissible. Rather, the only issue raised at the conclusion of the preliminary hearing was whether the marijuana discovered was possessed for the purpose of sale. The prosecution contended possession for sale was established by the opinion of Officer Smith, and he based his opinion on the five baggies in which the marijuana was found. Defense counsel contended the use of baggies is not sufficient…

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…

MARTIN, Acting P.J.

The People appeal from an order dismissing several drug charges against the defendant, Jed William Temple. The court dismissed the charges on its own motion after granting, in part, Temple's motion to suppress evidence on the ground the police lacked probable cause under the circumstances to search him.

In the early morning hours of August 25, 1993, Sergeant Steve Smith of the Madera County Sheriff's Department stopped a van in Oakhurst after noticing it had a broken taillight and was weaving. The driver got out and met Smith at the rear of the vehicle while the four passengers remained inside. When he smelled the odor of burnt marijuana on the driver, Smith decided to search the vehicle and its occupants. He directed the driver to get back in the van while he (Smith) radioed for assistance. According to the officer, "I knew there was marijuana in the vehicle, and I wanted a backup there so that I could individually search everyone in it and the vehicle."

Deputy Lynn Fullmer soon responded to the call and took up a position at the right side of the van as Smith approached the driver's window. Although all five occupants were smoking cigarettes,…