Schunk

—Respondent, Robert Henry Schunk, was charged with possession of marijuana for sale (Health & Saf. Code, § 11359). On *1336 April 18, 1990, through counsel, respondent filed a motion to suppress evidence pursuant to Penal Code section 1538.5. After several continuances because of respondent’s failure to appear at the suppression motion, the motion was denied by the trial court “without prejudice.”

On July 23, 1990, after a change of counsel, respondent filed a second motion to dismiss under Penal Code section 1538.5. After an evidentiary hearing on August 2, 1990, the trial court granted respondent’s suppression motion and dismissed the information. Appellant filed a timely notice of appeal.

Facts

On November 3,1989, respondent brought his Chevrolet Monte Carlo into B & D Tires & Service in Lake Isabella and requested a front end alignment. In the course of aligning the front end, a co-owner of the shop, Charles Orr, found a duffel bag between the inner left fender and the radiator. There was an odor coming from the bag. Based on his experience in the military police, Orr believed the odor to be that of marijuana. He felt the duffel bag. It felt like it contained…