People v. Clifton

• Citation: 337 P.2d 871,169 Cal.App.2d 617
• Decision Date: 14 April 1959
• Docket Number: Cr. 6469
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James E. CLIFTON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 871

337 P.2d 871

169 Cal.App.2d 617

The PEOPLE of the State of California, Plaintiff and Respondent, v. James E. CLIFTON, Defendant and Appellant.

Cr. 6469.

District Court of Appeal, Second District, Division 3, California.

April 14, 1959.

Robert L. Gardner, Van Nuys, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Ernest E. Sanchez, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

The court, sitting without a jury, found defendant guilty of possessing marijuana. Health & Saf. Code, § 11500. He appeals from the judgment sentencing him to state prison.

On April 1, 1958 about 7:45 p. m. Officer Wiseman of the Los Angeles Police

Department and his partner observed defendant in a doorway at 416 East Fifth Street, Los Angeles. Wiseman had arrested defendant in 1957 for possession of marijuana and defendant had been acquitted of that charge. When Wiseman and his partner saw defendant on April 1, 1958, Wiseman approached defendant and detected a strong odor of marijuana about his person. Wiseman said to defendant, 'You have been blasting a little tea.' Defendant said, 'No, I haven't. I gave that up. I have a job now.' Wiseman told defendant he was going to look in his eyes. Defendant nodded and made no comment. Wiseman examined defendant's eyes with his flashlight and found they were dilated and failed to react to light. Wiseman had worked on the narcotics squad about two years. He formed the opinion that defendant had been smoking marijuana. Wiseman reached inside defendant's coat pocket and removed a small cellophane package containing three marijuana cigarettes. Defendant did not give Wiseman permission to search him.

As Wiseman removed the package from defendant's pocket, defendant lunged toward him in an attempt to grab the cigarettes out of his hand. A scuffle followed. Defendant was handcuffed, arrested, and taken to the police station. Defendant told Wiseman he had found four cigarettes in the street and had smoked one just before seeing the officers; he was not trying to run away; he was just trying to grab the cigarettes to get rid of them.

The officers had neither a search warrant nor a warrant for defendant's arrest.

Defendant moved to strike the testimony of Officer Wiseman on the ground the search and seizure were unreasonable. The motion was denied. Defendant objected to the reception in evidence of the three marijuana cigarettes on the same ground. The objection was overruled.

Defendant's sole contention is that the search and seizure was unreasonable and that the court erred in denying his motion to strike the testimony of Officer Wiseman and in overruling his objection to the reception of the cigarettes in evidence.

A search without a warrant is not unreasonable if the officer has reasonable cause to believe a person is carrying contraband. People v. Gale, 46 Cal.2d 253, 255, 294 P.2d 13. Reasonable cause is a suspicion founded on circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true. People v. Brite, 9 Cal.2d 666, 687, 72 P.2d 122. There is nothing unreasonable in an officer's questioning a person outdoors at night. People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531. An officer may use his sense of smell to afford him knowledge that an offense is being committed in his presence. People v. Cahill, 163 Cal.App.2d 15, 328 P.2d 995. Mr. Justice Dooling, in People v. Bock Leung Chew, 142 Cal.App.2d 400, at page 403, 298 P.2d 118, at page 120, wrote:

'The weight of authority, with which we are in agreement, is with the...