People v. Jackson

• Decision Date: 29 March 1966
• Docket Number: Cr. 11175
• Citation: 241 Cal.App.2d 189,50 Cal.Rptr. 437
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Robert JACKSON, Defendant and Respondent.

Page 437

50 Cal.Rptr. 437

241 Cal.App.2d 189

The PEOPLE of the State of California, Plaintiff and Appellant, v. Robert JACKSON, Defendant and Respondent.

Cr. 11175.

District Court of Appeal, Second District,

Division 3, California.

March 29, 1966.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Chief, Appellate Division, Robert Lederman, Deputy Dist. Atty., for appellant.

Erling J. Hovden, Public Defender, Marvin Schwartz, Deputy Public Defender, James L. McCormick, Deputy Public Defender, for respondent.

KAUS, Justice.

After a preliminary hearing defendant was bound over on a charge of possession of marijuana for sale. (Health & Saf. Code, § 11530.5.) The superior court set aside the information after a motion under Penal Code, section 995. The People appeal. (Pen.Code, § 1238, subd. 1.)

The evidence before the committing magistrate may be summarized as follows: Officers Barton and Schmidt of the Los Angeles Police Department were in a black and white patrol car at about 7:15 p.m. on May 6, 1965. They were northbound in a residential area. Defendant was observed southbound, driving a car with a defective windshield. It appeared as though a rock had been thrown at it. The officers turned their car around and stopped defendant about one block from where they had first seen him. The side windows of his car were up. Defendant stepped out of his car, leaving the door open. When Officer Barton approached the vehicle to check the windshield he noticed a strong oder which, based on adequate experience and training, he identified as the smell of marijuana coming from a smoked cigarette. Defendant's eyes were glassy, 'one of the symptoms of being intoxicated.' Barton's partner, Officer Schmidt testified as follows: 'Q Did you notice the condition of the defendant at that time? A The defendant appeared to be in the first stages of being under the influence of alcohol, which also resembles the same type of symptoms of the person who smokes marijuana. Q What are some of those symptoms? A Bloodshot or glassy eyes. He also appeared to be staggering like he was in a type of daze, I guess you would call it.' The interior of the car was searched, but nothing of any incriminating nature was found. On request, defendant gave the officers the key to the trunk of his car where, in a paper bag, Barton observed several rolls of newspaper. He removed one piece of newspaper, opened it and noticed it contained a substance resembling marijuana. It was stipulated for the purpose of the preliminary hearing that a police chemist would testify that the substance was marijuana and that the total weight of the weed found was 243 grams.

Sometime before the officers stopped defendant they had been advised by a fellow officer that defendant was selling marijuana from his car. They had in the past observed his car parked in front of a pool hall, but they were not specifically looking for him at the time when they first observed him that night.

It is evident that the officers were entitled to stop defendant's car for an apparent violation of Vehicle Code, section 26710. ¹ When he stepped from the car the smell of marijuana and his appearance entitled the officers to arrest him on an apparent violation of Vehicle Code, section 23105. ² It is immaterial whether the search of the automobile followed or preceded the arrest (People v. Cockrell, 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116), as long as it was 'substantially contemporaneous' therewith and at the time of the search the officers were justified in making the arrest. The search of the automobile was immediately made. It was not the type of search condemned in People v. Burke, 61 Cal.2d 575, 39 Cal.rptr. 531, 394 P.2d 67. More in point is People v. Robinson, 62 Cal.2d 889, 44 Cal.Rptr. 762, 402 P.2d 834, decided just five days before the order appealed from and evidently not published at the time. In that case police officers obtained information that two men in a car were drunk and that while at a gas station one of them had behaved suspiciously with reference to a possible credit card fraud. The officers found the car and when they turned their red light on it, defendant appeared to be hiding something. The car was stopped directly in front of the police station. Both occupants appeared intoxicated and were taken into the station. While defendant was being booked an officer was assigned to search the car. The search revealed certain evidence which was later used to convict defendant of forgery.

One of the defendant's contentions on appeal was that the officers had conducted an unreasonable search. The Supreme Court met it in the following fashion: 'As we have noted, moreover, defendant's contention lacks substance. Since defendant and the driver of the car were intoxicated, their arrests were lawful. (Veh.Code, § 23102; Pen.Code, § 647, subd. (f); Pen.Code, § 836, subd. 1.) As incident to such arrest the police officers, for the purpose of discovering evidence of the crime, could properly search not only defendant and the driver but the car as well. Thus the officers could lawfully examine the interior of the car for the possible presence of liquor containers. The abnormal position of the rear seat and defendant's attempt to hide something beneath the front seat constituted circumstances justifying search in these areas. Once they had commenced their search, and it remained reasonable in scope, the officers were not required to close their eyes to evidence of other crimes. (People v. Roberts (1956) 47 Cal.2d 374, 303 P.2d 721; cf. Yonchar v. Superior Court (1961) 193 Cal.App.2d 135, 14 Cal.Rptr. 93.)

'Preston v. United States (1964) 376 U.S. 364, 88 S.Ct. 881, 11 L.Ed.2d 777, and People v. Burke (1964) 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67, do not alter the above analysis. These cases, which were decided after the trial of the instant case, do not apply because here the search was not 'too remote in time or place to have been made as incidental to the arrest' (Preston v. United States, supra, at p. 368).

'In the case before us, the police conducted their search at the Place of arrest, i.e., in front of the police station, at a Time virtually contemporaneous to that of arrest. Viewing the matter realistically, we conclude that the officers, in taking defendant a few steps away to the interior of the police station, acted as reasonably as if they had ordered him to stand in front of his car while they conducted their search. Since the latter course would clearly be incidental to an arrest, the procedure actually employed must as its equivalent be accorded the same legal effect. (See People v. Burke, supra, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67, in which the court held Inter alia that a search of the interior of an automobile at the time and place of arrest constituted reasonable procedure when incident to a lawful arrest.)

'In Preston, the Supreme Court of the United States found the search of defendant's car unreasonable because it was not undertaken immediately after the arrest. Such search was not incidental to the arrest because the police officers...