People v. One 1955 Ford Victoria

• Decision Date: 20 June 1961
• Docket Number: No. KBK,D,No. U5LV102300,KBK,U5LV102300
• Citation: 193 Cal.App.2d 213,13 Cal.Rptr. 910
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. ONE 1955 FORD VICTORIA, License684, Serialefendant, Othello W. Fortune, Registered Owner and Appellant. Civ. 24806.

Page 910

13 Cal.Rptr. 910

193 Cal.App.2d 213

PEOPLE of the State of California, Plaintiff and Respondent, v. ONE 1955 FORD VICTORIA, License No. KBK 684, Serial No. U5LV102300, Defendant Othello W. Fortune, Registered Owner and Appellant.

Civ. 24806.

District Court of Appeal, Second District, Division 3, California.

June 20, 1961.

Harold J. Ackerman, Gerald D. Lenoir, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

BISHOP, Justice pro tem.

The judgment of forfeiture in this proceeding, brought under sections 11610-11629, Health and Safety Code, is based upon a finding that a narcotic had been transported in the offending vehicle. The finding, in turn, depends upon evidence which, the appealing defendant contends, should have been stricken, as he requested, because it was obtained as the result of an illegal search and seizure. We have concluded that the trial court was warranted in denying the motion to strike and are affirming the judgment.

The arresting officer, Brown, was the only witness called at the trial, and the picture as seen by the trial judge was created by his testimony. Brown was on duty in a felony car detail in 'a high frequency crime area,' at 8:40 p. m. on October 22nd. He noticed a car parked on the wrong side of the street, at an angle, and went over to investigate. The passenger in the car 'scooted over under the steering wheel, and got out on the lefthand side' leaving the door, next to the curb, open. Officer Brown asked him for some identification, which he produced, but he was quite nervous and had trouble getting it out of his wallet. He advised the officer that the owner was in the house and would be right out. The owner came out to the car, a moment later, and identified himself. He, too, was quite nervous.

After the owner came out, Officer Brown looked into the car, through the open door, and saw two brown paper sacks, the tops rolled around them, each enclosed in a rubber band. One of these was on the floor of the car, on the driver's side, and made visible by a light from under the dashboard. A portion of the other package protruded from under the seat, on the driver's side. Officer Brown had made hundreds of narcotic arrests, and knew from his experience that marijuana is often packaged in a paper bag, the top rolled and folded around the bottom, with a band around it. He had seen it packaged this way more than twenty times.

Officer Brown reached into the car, picked up the bag that was in plain sight on the floor and 'asked the owner of the vehicle if this was what I thought it was.' At first the owner didn't say anything; then he denied knowing what it was, or how it got in his vehicle. In about five minutes he said that it was marijuana, explained where he had picked it up and stated that he had left the bags on the seat of the car. The bags were received into evidence and it was stipulated that if the chemist were called he would testify that the contents of the bags were marijuana.

Officer Brown did not make any kind of a search of the car in letting his...