202 Cal. App. 2d 575 | Cal. Ct. App. | 1962
The People appeal from an order granting defendant’s motion under section 995, Penal Code, to set aside the information charging defendant with possession of marijuana in violation of section 11530, Health and Safety Code. The basis of the ruling seems to be that indispensable evidence was procured by an unreasonable search of defendant’s person and seizure of the proscribed marijuana found on him. The trial judge remarked that “it is a borderline case and we might as well stop it now if it can’t possibly result in a conviction,” and, “ [l]et’s get a new transcript.”
On August 12, 1961, at about 8:45 p.m., Police Officers Burke and Kofahl were driving west on 103d Street in Watts, Los Angeles County, and observed a 1950 Studebaker sedan coming east on the same street. It pulled into a parking lot, stopped, backed into and across 103d Street, causing several oncoming cars to stop rapidly to avoid hitting it. The Studebaker then went west on 103d Street to Success Street, where it turned north to 102d Street, at which point it was stopped by the officers. Kofahl asked defendant to step to the rear of the car and both officers there talked to him. Burke “asked him for identification and if he had a driver’s license,” to which he replied, “No, I’ve no identification.” Burke then make a “cursory search” of him and felt a packet of papers in his shirt pocket; removing it he noticed it was brown cigarette papers. Asked if “he smoked any weed—indicating marijuana”—Reed said, “I do”; also that he had none on him. To an inquiry as to where he got it he said, “I’m not about to tell you.” Asked if he had any weed he said, “No, but I bought a can approximately one week ago, but I don’t have any left.” The officers decided to arrest him and take him to Watts substation “for investigation due to the fact that he had no identification and he couldn’t even prove his true identity” (quoting Officer Burke’s testimony); this they did.
The officers had witnessed the commission of a misdemeanor by Reed—backing out of private property without yielding the right of way to oncoming traffic (Veh. Code, § 21804) and he was subject to arrest without a warrant under Penal Code section 836, subdivision 1 (5 Cal.Jur.2d, §8, p. 155). After the officers had talked with him he was also subject
There was no impropriety in the questioning of defendant by the officers immediately after stopping him. His conduct had been quite unusual, a departure from normal activity suggesting that the selection in the middle of the block of another street upon which to travel in the same direction defendant was already going must have had some immediate cause. Was it the approach of police and a sense of guilt and a desire to avoid “the law”? Or was it intoxication or some other form of aberration? The police had a right to
This search revealed brown cigarette papers such as are used in making marijuana cigarettes. The police were not bound to ignore them. Their discovery prompted reasonable inquiry as to whether defendant “smoked the weed” and his statement that he had bought a can of it approximately a week before and had used it revealed a felony. At this point the officers had a right to make a thorough search on the basis of reasonable cause to believe a felony had been committed (Pen. Code, § 836, subd. 3) had they seen fit to do so. (People v. Jackson, 164 Cal.App.2d 759, 762 [331 P.2d 218].) The lapse of a week since the commission of the crime would not be important for the reason, among others, that it was a circumstance which suggested the probability of present possession even though denied by defendant (cf., People v. Rios, supra, 46 Cal.2d 297, 298; People v. Handy, supra, 200 Cal.App.2d 440, 443-444).
At the police station a thorough search of defendant’s person was made. Again there was no impropriety. Since 1872 section 1412, Penal Code, has provided: “When money or other property is taken from a defendant, arrested upon a
“The annotations found in the New York ease in A.L.R., supra, begin with the general statement, as follows: ‘The right, without a search warrant, to search the person of one lawfully arrested, and to seize articles found on him, or in his custody, such as weapons, evidence of crime charged, etc., is well established. ’ ” (Pp. 697-698.)
People v. Woods, 139 Cal.App.2d 515, 525 [293 P.2d 901] : “It must be recognized that persons about to enter jails or penal institutions may be examined by the custodian of such institutions for the purpose of preventing the bringing in of weapons and contraband. When this examination is reasonable and not conducted in a brutal or shocking manner, there is no constitutional inhibition. The right of peace officers to search persons lawfully arrested and to seize things connected with the crime is well established.” (See also People v. Hutson, 177 Cal.App.2d 595, 599 [2 Cal.Rptr. 438]; annotations in 32 A.L.R. 676, 680, and 82 A.L.R. 782, 783.)
Defendant was wearing a jacket; the officer felt
The trial court plainly erred in this instance. Order setting aside the information is reversed.
Fox, P. J., and Herndon, J., concurred.
Section. 40302, not 40303, or 40304, or 40305, or 40307, is applicable here.