People v. Newman

Decision Date11 January 1971
Docket NumberCr. 8227
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Hollis Lee NEWMAN, Defendant and Appellant.

Michael J. Mandel, Anderson & Levine, San Francisco, for appellant (under order of Court of Appeal).

Thomas C. Lynch, Atty. Gen., of State of California, Robert R. Granucci, John F. Henning, Jr., Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from an order granting him probation 1 following a jury verdict finding him guilty of possessing a dangerous restricted drug for the purpose of sale as proscribed by Health and Safety Code section 11911. 2 Defendant contends that his conviction should be reversed because evidence obtained was the product of an illegal search, there was no substantial evidence to support the verdict, a specific intent instruction should have been given, he was denied the effective assistance of counsel, and the prosecutor was guilty of prejudicial misconduct. We have concluded that none of these contentions has merit and that the order appealed from must be affirmed.


In the early morning of April 11, 1969, Officers Olmstead and DeVaney of the Highway Patrol stopped defendant for speeding. Defendant exited his vehicle and came back to meet the officers. Upon request, defendant produced his driver's license and proceeded to the vehicle to secure the vehicle registration. DeVaney followed defendant to the vehicle and there detected the odor of what prior experience told him was burnt marijuana. Olmstead confirmed the suspicion. Accordingly, defendant and two co-occupants, Miss Carol Slaight and Miss Lynda Smith, were placed under arrest.

While standing adjacent the vehicle, Olmstead shined his flashlight inside. On the left rear floorboard he observed what appeared to be a marijuana seed. 3 Accordingly, defendant and his passengers were placed under arrest for possession of marijuana. Defendant was taken to the police car, where he was searched for weapons.

While awaiting the arrival of assistance from the sheriff's office, Olmstead sat in the driver's seat of the vehicle. While so seated, he noticed a sealed envelope placed on the tape deck below the dashboard. He observed a bulge in the envelope. Curious as to its contents, Olmstead withdrew the envelope and felt it. He then opened the envelope and found eight plastic bags of 'white powder,' which subsequent laboratory tests revealed to be methedrine, a dangerous restricted drug.

A toxicologist testified that the eight plastic bags contained 4.5 grams, or 450 milligrams, of methedrine. He testified, further, that the substance is usually dispensed in 5 to 10 milligram quantities and that the quantity of methedrine contained in the eight plastic bags was sufficient to produce 450 capsules.

One of the arresting officers testified that each of the plastic bags was commonly referred to as a 'bindle' and that each of these bags was a 'dime-bindle' which meant a $10 bindle. Another officer experienced with narcotics testified that his analysis had indicated that prior to testing there were 5.1 grams of a substance which proved to contain an amphetamine in the 8 bindles. He confirmed the going price of $10 per 'bindle,' and testified that each 'bindle' should take care of four injections of methedrine, so the total would be about 32 injections, and that ordinarily one injection is all that one person would take in a day. He further testified that of 200 cases that had gone through the Napa County Sheriff's office in the past year, the ordinary case involved one bindle, and the next largest case involved two or possibly three bindles, and that he did not recall another case involving that much methedrine. He concluded on the basis of his experience, training and judgment that the bindles 'were in possession for sale,' because of the quantity in one container. There was no cross-examination of the officer, nor was his testimony otherwise rebutted.

Testifying in his own behalf, defendant denied any knowledge regarding the presence of the envelope or its contents, and stated he was driving a borrowed car. He also stated that he had been with the two girls at sundry places during the time prior to his being stopped. Upon examination by his own counsel, defendant admitted that he had seen other plastic bags like the ones found by Olmstead and that he knew they contained 'some kind of drug.' On cross-examination he testified that he had been in the presence of persons who used drugs and that he was familiar with the smell of marijuana.

The Search

Defendant urges that the search which produced the plastic bags containing methedrine was an impermissible general search for the purpose of ferreting out evidence of unrelated crimes. In considering this contention we first observe that the stop for the traffic violation, without more, did not justify a search of the vehicle. (People v. Weitzer, 269 Cal.App.2d 274, 290, 75 Cal.Rptr. 318; People v. Van Sanden, 267 Cal.App.2d 662, 664, 73 Cal.Rptr. 359; Bergeron v. Superior Court, 2 Cal.App.3d 433, 435, 82 Cal.Rptr. 711; see People v. Graves, 263 Cal.App.2d 719, 732, 70 Cal.Rptr. 509.) But here we do have something more. The odor of burning marijuana recognized by the officers 4 afforded probable cause to believe that the car contained contraband, and that its occupants were the probable offenders. (People v. Christensen, 2 Cal.App.3d 546, 548, 83 Cal.Rptr. 17; People v. Nichols, 1 Cal.App.3d 173, 175-176, 81 Cal.Rptr. 481.) The officers thus had legal cause to arrest the offenders. (People v. Nichols, supra; People v. Layne, 235 Cal.App.2d 188, 193, 45 Cal.Rptr. 110; Vaillancourt v. Superior Court, 273 Cal.App.2d 791, 797, 78 Cal.Rptr. 615; People v. Gann, 267 Cal.App.2d 811, 812-813, 73 Cal.Rptr. 502.) Assuming however, that they did not, at that time, have cause to arrest the occupants of the car, the officers, having smelled the burning marijuana in the car, were justified in searching it since they had reasonable and probable cause to believe that the search would produce either the instrumentality of, or evidence of the crime. (Dyke v. Taylor Implement Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538; People v. Madero, 264 Cal.App.2d 107, 111, 70 Cal.Rptr. 159; People v. Legg, 258 Cal.App.2d 52, 55, 65 Cal.Rptr. 541; People v. Christensen, supra.) As observed in Dyke, 'Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office. [Citations.] * * * [where] the officers conducting the search have 'reasonable or probable cause' to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.' (391 U.S. at p. 221, 88 S.Ct. at p. 1475.)

Upon searching the vehicle and finding the marijuana seed the officers were clearly justified in placing defendant under arrest as the person in possession of the vehicle. (See Fraher v. Superior Court, 272 Cal.App.2d 155, 163, 77 Cal.Rptr. 366; People v. Schultz, 263 Cal.App.2d 110, 114, 69 Cal.Rptr. 293; People v. Nichols, supra, 1 Cal.App.3d 173, 176-177, 81 Cal.Rptr. 481; and see People v. White, 71 Cal.2d 80, 82-83, 75 Cal.Rptr. 208, 450 P.2d 600.) Having arrested him for possession of marijuana, the officers were clearly justified in continuing the search of the vehicle as an incident of that arrest. (People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Gil, 248 Cal.App.2d 189, 192, 56 Cal.Rptr. 88; People v. Webb, 66 Cal.2d 107, 124, 56 Cal.Rptr. 902, 424 P.2d 342.) The fact that evidence of a different crime was discovered in the course of the search for evidence of the crime for which he was arrested does not render the search constitutionally suspect. (People v. Gil, supra, 248 Cal.App.2d at p. 192, 56 Cal.Rptr. 88; People v. Galceran, 178 Cal.App.2d 312, 317, 2 Cal.Rptr. 901; People v. Robinson, supra; People v. Kraps, 238 Cal.App.2d 675, 680, 48 Cal.Rptr. 89.) Accordingly, the search which resulted in the finding of the envelope and in its being opened and was entirely justified, notwithstanding it may have been impelled by the officer's curiosity.

The conclusion herein reached is not inapposite to the holding in People v. Marshall, 69 Cal.2d 51, 56-57, 59, 69 Cal.Rptr. 585, 442 P.2d 665, and Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436. These cases are distinguishable on the basis that there it was held that a warrantless entry to seize contraband is not permissible on the probable cause that contraband is present supplied by the officer's sense of smell, while in the instant case the warrantless entry is permissible in order to make an arrest based on such probable cause. (See People v. Nichols, supra, 1 Cal.App.3d 173, 176-177, 81 Cal.Rptr. 481; People v. Christensen, supra, 2 Cal.App.3d 546, 548-549, 83 Cal.Rptr. 17; Vaillancourt v. Superior Court, supra, 273 Cal.App.2d 791, 796-797, 78 Cal.Rptr. 615; and see People v. Marshall, supra, 69 Cal.2d at p. 57, fn. 2, 69 Cal.Rptr. 585, 442 P.2d 665.) Here the smell of burnt marijuana in a vehicle in which three persons were visibly present told the officers that the crime of possessing marijuana was being committed by one or all of these persons in the officers' presence. (See People v. Nichols, supra, 1 Cal.App.3d at p. 177, 81 Cal.Rptr. 481; People v. Bock Leung Chew, 142 Cal.App.2d 400, 402-403, 298 P.2d 118; and see Vaillancourt v. Superior Court, supra.) 5

Substantial Evidence

The jury found defendant guilty of possession of a restricted dangerous drug (methedrine) for purposes of sale. Defendant contends that the evidence below adduced was legally insufficient to convict him. He asserts that the record fails to disclose any...

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2 cases
  • Gordon v. State, CR75--138
    • United States
    • Supreme Court of Arkansas
    • January 19, 1976
    ...suspicion and thus provide the underpinning for a showing of probable cause to conduct a search was recognized in People v. Newman, 14 Cal.App.3d 246, 92 Cal.Rptr. 205 (1971), vacated for other reasons, 5 Cal.3d 48, 95 Cal.Rptr. 12, 484 P.2d 1356 (1971). See also Moore, supra, and Anderson ......
  • People v. Olson, 25075
    • United States
    • Supreme Court of Colorado
    • June 14, 1971
    ...the offense of possession of marijuana had been recently committed. Fernandez v United States, 9 Cir., 321 F.2d 283; People v. Newman, 14 Cal.App.3d 246, 92 Cal.Rptr. 205; People v. Christensen, 2 Cal.App.3d 546, 83 Cal.Rptr. 17; People v. Erb, 128 Ill.App.2d 126, 261 N.E.2d 431. The search......

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