People v. Martin

• Decision Date: 30 March 1956
• Docket Number: Cr. 1051
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. David Jerome MARTIN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 33

295 P.2d 33

140 Cal.App.2d 387

PEOPLE of the State of California, Plaintiff and Respondent, v. David Jerome MARTIN, Defendant and Appellant.

Cr. 1051.

District Court of Appeal, Fourth District, California.

March 30, 1956.

Rehearing Denied April 12, 1956.

Richard E. Adams; Howard A. Muhleman, San Diego, for appellant.

Edmund G. Brown, Atty. Gen., Joan D. Gross, Deputy Atty. Gen., for respondent.

BARNARD, Presiding Justice.

The defendant was charged with the crime of possession of a narcotic in violation of Section 11500 of the Health & Safety Code. He was found guilty by a jury and his motion for a new trial and request for probation were denied. Since he was under 21 years of age he was committed to the Youth Authority for the term prescribed by law. He has appealed from the judgment, from the order denying a new trial, and from the order of commitment.

At 1:35 a. m. on June 24, two San Diego police officers in a patrol car were making a routine nightly check of a beach area in La Jolla. They saw an unlighted Chevrolet parked across a short road leading down to the beach, thus blocking access to the beach area. The car was occupied by three persons, one Switzer in the driver's seat, the defendant on the right side of the front seat, and a Miss Gutierrez between them. One of the officers walked up to the car on the driver's side for the purpose of determining why the vehicle was parked in that position. When he turned on his flashlight he saw that the entire front of Switzer's shirt was sprinkled with particles of a green botanical substance which appeared to him to be marijuana. The other officer approached, and also thought it was marijuana. Switzer was placed under arrest and ordered out of the car. Miss Gutierrez also got out of the car on the driver's side. The officer then noticed a brown paper package on the floor of the car between the defendant's bare heels. The officer asked the defendant to hand him the package, which the defendant did. The package contained a considerable quantity of what the officers believed to be marijuana. The defendant said he did not know what it was and did not know it was there, and that he had never used marijuana. He was placed under arrest, and Switzer said this was his stuff. An examination of the car disclosed marijuana debris on both the front and back floor boards, and on the rear floor board there was a burnt marijuana cigarette about 3/8"' in length, and brown 'roll your own' cigarette papers. There were numerous burnt matches on the ground on both sides of the vehicle below the front windows. The defendant explained this by saying that his cigarette kept going out and he had to relight it numerous times. Both officers testified to these general facts.

At the scene of the arrest the defendant was just 'patted down', in a routine search for weapons. At police headquarters, where he was taken, defendant's clothing was examined and marijuana debris was found in pockets of his pants and shirt. The substances found in the paper sack and in the defendant's pockets were examined and found to be marijuana. Miss Gutierrez testified that she was picked up by the boys about 10:30 that night; that the defendant and Switzer referred to narcotics after they arrived at the beach; that she had previously talked with the defendant about narcotics, and he had offered to give her narcotics when she wanted some; and that on this occasion the defendant noticed the police officers first and made the remark that the law was there and there was nothing to be done but just sit and wait. She first stated that when she got in the car the defendant had said he thought he saw 'grass on the car' and something about getting 'busted'. Later, she attributed this statement to Switzer and to another occasion. Her written statement made at the police station on June 24 was admitted in evidence. In this statement, among other things, she said that the defendant and Switzer both talked about getting 'high on grass'; that the defendant told Switzer when he got in the car that he saw 'grass' on the floor and it was enough to get 'busted' on; that when the defendant noticed the police car he said 'There's the heat and they're watching us'; that most of the defendant's conversation was about narcotics; that on previous occasions he had tried to get her to smoke marijuana and had shown some to her; and that she had seen him with marijuana on at least two previous occasions.

The defendant testified that he did not know there was any marijuana in the car that night; that he did not see the brown paper sack until the officer asked what it was; and that narcotics were never mentioned at any time when they were in the car. Switzer, who had pleaded guilty and who was brought back for the trial, testified for the defendant, saying that he had purchased this marijuana a day or two before; that he had placed the paper sack under the right-hand front seat of the car; that they did not smoke any marijuana while at the beach; that he did not tell the defendant that the sack of marijuana was in the car and nobody knew it; that the marijuana the officers saw on his shirt had been there since he rolled a marijuana cigarette early that evening; and that the marijuana butt they found on the floor of the car was put there by him the first night he had this marijuana.

Relying on People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, the appellant contends that illegally acquired evidence was admitted over his objection. It is argued that the exhibits containing the marijuana found in the car and in appellant's pockets, which were received in evidence, were illegally acquired as the result of an unlawful...