People v. Moray

• Decision Date: 02 December 1963
• Docket Number: Cr. 9006
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Bob MORAY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 432

35 Cal.Rptr. 432

222 Cal.App.2d 743

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bob MORAY, Defendant and Appellant.

Cr. 9006.

District Court of Appeal, Second District, Division 1, California.

Dec. 2, 1963.

Apple & Cohen, by Irving D. Apple, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Charles A. Collins, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment of conviction of possessing marijuana.

In an information filed in Los Angeles County on June 11, 1962, defendant was charged with possessing marijuana on May 21, 1962. A plea of not guilty was entered and a jury trial was waived and defendant found guilty as charged. Proceedings were suspended and probation was granted for three years, a part of the terms of probation being that defendant pay a fine of $500 plus a penalty assessment.

A resume of some of the pertinent facts is as follows:

Officer Weisehart of the Los Angeles Police Department attached to traffic enforcement was on duty on March 21, 1962. On that date the officer saw the defendant driving an automobile westbound on Franklin Avenue in the curb lane approaching the intersection of La Brea Street. There is a posted boulevard stop at the mentioned intersection and defendant failed to stop for the stop sign and made a left turn around another left turning vehicle. The defendant proceeded southbound on La Brea and made a right turn at the intersection of Franklin (there was an offset in Franklin Street at that time and place). As the defendant started to make his right turn the officer turned on the red light on his motorcycle, made a U-turn and drove his motorcycle slightly to the left and rear of defendant's automobile and, while both vehicles were in motion, the officer asked the defendant to pull over to the curb. The defendant 'drove toward the curb and parked at the first available parking space.'

The officer testified: 'As we approached the curb, I observed him to raise his right shoulder as if he were reaching in his pocket, and then lean towards the right hand seat. He appeared to make an effort to keep his head pointed straight ahead at this time.' The officer estimated that the movement referred to was made when he was 'approximately 15 to 20 feet behind his (defendant's) vehicle.' The officer stated: 'I couldn't see his (defendant's) hand, no, sir, I just saw the general motion.' He didn't know whether the defendant's hand went under the seat or not. The officer parked his motorcycle to the rear of defendant's car, approached the driver's window and asked defendant for his operator's license. The officer testified, 'I believe he got an operator's license out of the glove compartment or some receptacle in the vehicle and handed it to me.' Thereupon the officer asked the defendant 'what he had hidden underneath the seat' and the defendant answered 'nothing.' The defendant was directed to get out of his car and stand to the rear of the vehicle. The officer commenced a search of the automobile and testified that he found a small package under the front seat. The package contained marijuana. At the time and later the defendant denied any knowledge of what the package contained or how it got there.

The officer further stated that the traffic violation of the defendant consisted of failing to stop at a posted boulevard stop sign and making a left turn from the wrong lane. Other than the vehicular violations mentioned the defendant was not driving erratically, he was not speeding, he had no difficulty in applying his brakes when the officer directed him to pull into the curb and park. The officer did not examine the defendant's eyes and apparently did not smell any liquor upon the breath of defendant for the officer stated he did not recall smelling the defendant's breath. The officer further stated that to his knowledge he had never seen the defendant before nor to his knowledge had he ever seen the defendant's automobile before. The officer had no warrant of arrest nor did he have a warrant to search the defendant's car. The officer also testified that throughout the years of his service he had issued many citations and that he had seen motorists make an arm movement after he had signalled them to pull over to the curb. It was stipulated that there was marijuana in the container which the officer found as a result of the search. A proper motion to exclude the evidence was timely made.

Appellant now asserts that the search and seizure was unreasonable under the law and that the contraband should not have been admitted into evidence.

There is no testimony as to what occurred prior to the search (or when it was), which made the officer believe that the defendant was committing a felony in the presence of the officer. There is no testimony that any of the movements which the defendant made were furtive or unusual in character, there is no testimony of any haste upon the...