People v. Ortiz

• Decision Date: 27 December 1956
• Docket Number: Cr. 5779
• Citation: People v. Ortiz, 147 Cal.App.2d 248, 305 P.2d 145 (Cal. App. 1956)
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Charles Phillipe ORTIZ, Defendant and Respondent.

Page 145

305 P.2d 145

147 Cal.App.2d 248

The PEOPLE of the State of California, Plaintiff and Appellant, v.Charles Phillipe ORTIZ, Defendant and Respondent.

Cr. 5779.

District Court of Appeal, Second District, Division 2, California.

Dec. 27, 1956.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Lewis Watnick, Deputy Dist. Attys., Los Angeles, for appellant.

Cadoo & Tretheway, Los Angeles, for respondent.

FOX, Justice.

Defendant was charged with possession of marijuana.Health & Safety Code, sec. 11500.His motion to set aside the information, Pen.Code, sec. 995, was granted.The People appeal.

Defendant was arrested at approximately 5:00 o'clock in the morning on July 10, 1956, in the 900 block on Pier Avenue, Hermosa Beach.Just prior to the arrest Police Officer Hopkins observed a car parked some eight feet from the curb.Upon investigation, the officer discovered defendant lying on the front seat asleep with his head at the passenger side; his belt was loose, and 'his trousers were down near his hips.'The officer reached in the window, shook the defendant, and 'finally got him awake.'His breath was alcoholic and he'staggered badly, as he walked to the rear of his car.'He told the officer he had had a quart of beer and a pint of whiskey the previous evening.The officer concluded he was intoxicated and arrested him for 'drunk auto.'City OrdinanceNo. 508.Officer Hopkins turned defendant over to the watch sergeant for incarceration.

Hopkins immediately began making an inventory of the items of personal property in the car preliminary to impounding it.In the course of his search, Hopkins found a small, brown paper bag containing marijuana in the glove compartment.The sergeant having departed with defendant for the jail, Officer Hopkins called them back.Upon being asked where the bag came from, defendant stated he did know anything about it and refused to answer any more questions.Defendant does not appear to have made any statement then nor previously that the car was not his.

The officer also found in the glove compartment 'two wallets containing numerous check stubs with defendant's name.'The registration certificate for the car was in the glove compartment too.

It was the officer's custom always to make inventory of the contents of a car that he impounded.Such practice was deemed necessary to defeat dishonest claims by the owner of theft of the car's contents and to protect the temporary storage bailee against false charges.

At about noon on the day of defendant's arrest he was transported from the Hermosa Beach jail to the sheriff's station at Lenox by Deputy Sheriff Hatfield.In the course of that trip the deputy asked defendant how long he had been 'fooling round with the weed,' to which he replied 'about three months.'The deputy also asked the defendant'where he had obtained the marijuana that was found in his car.'Defendant stated that 'he had bought the marijuana on Main Street from an unknown, male Negro approximately a week prior to his arrest.'He further stated 'he had paid $5.00 for a half can' and that 'the contents of the brown paper bag found in the glove compartment was the remainder of that half a can. * * *'

Defendant did not take the witness stand.

Defendant does not question the validity of his arrest.His thesis is that the search was unreasonable and therefore illegal.Hence the contraband that was found was inadmissible in evidence.

From defendant's position in the car, his physical condition, the manner in which the car was parked, and the earliness of the morning hour, the officer could reasonably conclude that defendant was 'in control of' the vehicle, ¹ and not just a passenger, at the time of the arrest.Hence the officer was entitled to impound the car, Veh.Code, secs. 585(b)(5)and585.2;Pen.Code, sec. 849, and thus take possession of it.

In the circumstances of this case it was not unreasonable for the police officer to make an inventory of the contents of the automobile prior to impounding it.Such inventory was a protection to the owner of the vehicle, the garage owner, and the officer.Since the marijuana was found during the course of making the inventory, it was not discovered as a result of an unreasonable search and therefore it was not inadmissible in evidence.

This result may be reached by another approach.Defendant's car was legally in Officer Hopkins' possession as an incident of its impounding.Its contents also were legally in his possession.Therefore possession of the marijuana was legally obtained by the officer.Where an automobile is lawfully in the custody of a peace officer, such contraband articles as are contained in it are legally in the possession of such officer, People v. Baker, 135 Cal.App.2d 1, 5, 286 P.2d 510andPeople v. Cahan, 44 Cal.2d 434, 282 P.2d 905, has no application.

Defendant also argues that the marijuana was illegally seized and therefore inadmissible in evidence because it 'was not related to the crime for which the defendant had been placed in custody. * * *' An effective answer to this contention is found in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.In that case federal officers, armed with an arrest warrant, arrested the defendant for one crime and while searching his apartment found evidence which implicated him in a wholly different and distinct offense.Upon conviction of the second charge, defendant...