People v. Johnson, Cr. 5940
| Decision Date | 20 November 1957 |
| Docket Number | Cr. 5940 |
| Citation | 155 Cal.App.2d 369,317 P.2d 1000 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Samuel Pittman JOHNSON, Defendant and Respondent. |
Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., William B. McKesson, Dist. Atty., Jere J. Sullivan, Fred N. Whichello, Robert Lederman, Deputy Dist. Attys., Los Angeles, for appellant.
No appearance for respondent.
Samuel Pittman Johnson was charged by information with a violation of section 11500 of the Health and Safety Code, in that he willfully, unlawfully and feloniously had in his possession a preparation of heroin. It was also alleged that he had previously been convicted of a violation of section 11721 of the Health and Safety Code, a misdemeanor. Upon the preliminary hearing he was committed for trial. He made a motion to set aside the information under section 995 of the Penal Code on the ground that he had been committed without reasonable or probable cause. The motion was granted and the People appeal. No brief has been filed by or on behalf of defendant.
The evidence at the preliminary hearing established the following facts. D. W. Beckman is a police officer for the City of Los Angeles assigned to the Georgia Juvenile Division. Early in the evening of January 27, 1957, and also several days previously, Beckman received information that a man named Wilson was 'dealing heroin' in the Rose Room, which is a bar and cafe located west of the lobby of the Morris Hotel on East Fifth Street in Los Angeles. Beckman and his partner, Officer Evans, went to the Rose Room at approximately 11:30 p. m.; they entered the cafe part of the establishment, walked to the back of the room, and turned to go into the bar. As they did so, Beckman saw defendant walking toward him in the company of another man known as 'Too Sweet', whom the officer knew to be a narcotics user. Beckman did not know defendant and had never seen him before.
As defendant passed by him, the officer observed that the pupils of Johnson's eyes appeared to be pinpointed. In the officer's opinion, contraction of the pupils of the eye is a characteristic of narcotics addicts. Beckman then stopped defendant, identified himself as a police officer, and after ascertaining defendant's name, he asked Johnson 'if he was using stuff'. Defendant replied that 'he used to use it, but he wasn't using it regularly any more, he chippied a little bit now and then.' During the conversation, Beckman noticed that Johnson's eyes appeared to be unusually red and that his clothing gave off a strong and distinctive odor, which, from the officer's previous experience, he identified as possibly or probably the odor of marijuana.
The officer then asked defendant if he had been 'blasting any pot' (i. e. smoking marijuana) that evening. Johnson replied that he had not blasted any pot that evening, but that he did blast a little pot the day before. Upon being asked whether he was using heroin, defendant said that he had not fixed that evening but that he had fixed on the afternoon of the previous day. The officer testified that the expression 'fixed' signified the taking of heroin by injection. Beckman then asked defendant whether he had any weapons on his person and attempted to feel Johnson's pockets. Defendant said: 'Man, keep your hands away from my pockets.' The officer asked: 'Do you have a knife in your pocket?' Defendant replied that he had, and removed a knife from his pocket and handed it to the officer.
Upon being asked whether he had any marks defendant said that he did not have any marks and said: Defendant took off his coat and exhibited his left arm. Beckman examined defendant's arm and noticed a red mark on the inside of the left elbow; the mark was about one inch in diameter and had a spot of blood in the center. Johnson denied having injected a narcotic into the mark that evening; he said he had 'fixed there' five days previously.
The officer told defendant that he was sure he was under the influence of marijuana and placed him under arrest for illegal use of narcotics. Officer Evans then made a search of defendant and extracted from defendant's right coat pocket a paper bindle which was proved to contain heroin. The narcotic was received in evidence over defendant's objection that it had been obtained by means of an unlawful search and seizure.
The question is whether the evidence disclosed probable...
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