Montgomery v. Superior Court In and For Alameda County

• Decision Date: 05 December 1956
• Citation: Montgomery v. Superior Court In and For Alameda County, 304 P.2d 206, 146 Cal.App.2d 622 (Cal. App. 1956)
• Parties: Earl MONTGOMERY, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY of ALAMEDA, and the Honorable William J. McGuiness, Judge pro tem. thereof, Respondents. Civ. 17411.
• Court: California Court of Appeals

Page 206

304 P.2d 206

146 Cal.App.2d 622

Earl MONTGOMERY, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY of ALAMEDA, and the Honorable William J. McGuiness, Judge pro tem. thereof, Respondents.

Civ. 17411.

District Court of Appeal, First District, Division 2, California.

Dec. 5, 1956.

George Nye, Public Defender of Alameda County, R. Donald Chapman, Asst. Public Defender, Oakland, for petitioner.

J. F. Coakley, Dist. Atty., of Alameda County, R. Robert Hunter, Chief Asst. Dist. Atty., Robert H. McCreary, Asst. Dist. Atty., Albert E. Hederman, Jr., Deputy Dist. Atty., Oakland, for respondents.

DOOLING, Acting Presiding Justice.

The petitioner has been charged with possession of marijuana. Health and Safety Code, section 11500. He seeks to prohibit further proceedings in his trial on the ground that the marijuana in questions was found on his person as a result of an illegal search.

Officer Ingram, who conducted the search, testified that he and other officers were directed by Sergeant Hilliard to go to a public lavatory in a park at 11th and Jefferson Streets. The sergeant told him that another officer had just telephoned to the sergeant from the residence of one J. D. Kirk, a known peddler of narcotics, and had said that he had just had a conversation on Kirk's telephone with one Charles Brown in which Brown had asked for the delivery to him of some heroin near this lavatory. The officers went immediately to the place of rendezvous and in approximately six or seven minutes an automobile stopped at the corner of 11th and Jefferson Streets and a man, whom Ingram recognized as Brown from a description furnished by Hilliard, got out and walked over to the lavatory 'and was hanging around the lavatory for a couple of minutes.' Tow other men, one of whom was the petitioner Montgomery, remained seated in the parked automobile from which Brown had alighted. While other officers approached Brown, Ingram and a partner went to the parked automobile and after a conversation in which petitioner denied any connection with narcotics Ingram made a search of his person and found a partly smoked marijuana cigarette in the pocket of his jacket.

Petitioner relies upon such cases as People v. Simon, 45 Cal.2d 645, 290 P.2d 531, and People v. Schraier, 141 Cal.App. 600, 297 P.2d 81, to support his contention that the officer had no reasonable ground to search his person. Without detailing the facts of those cases they may be...