People v. Wright
| Decision Date | 20 August 1965 |
| Docket Number | Cr. 9168 |
| Citation | 46 Cal.Rptr. 360,236 Cal.App.2d 735 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Richard George WRIGHT, Defendant and Appellant. |
Jess Whitehill, Los Angeles, under appointment by the District Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Calvin W. Torrance, Deputy Atty. Gen., for plaintiff and respondent.
This is an appeal from a judgment entered against defendant upon his conviction of possession of marijuana (Health and Safety Code § 11530).
We reverse the judgment because, in our view, it rests upon an illegal search and seizure.
The case was submitted to the trial court upon the testimony of the arresting officer as contained in the transcript of the preliminary hearing. No additional evidence was offered except a stipulation that defendant was deemed to have been called and to have testified that he did not consent to the search.
It was further stipulated that the trial court would decide the question of the legality of the search on the basis that no consent to it was given by defendant. We have no choice but to decide the matter on the same basis.
On the issue of probable cause, Police Officer John Givens testified that, at approximately 11:30 p. m. on January 20, 1963, he observed defendant standing with another man on the northeast corner of the intersection of Highland and Sunset Boulevard. They appeared to be hitchhiking. The officer, who at the time was driving in a police vehicle with a fellow officer, pulled over to talk with them. After his partner made a cursory search for weapons and found none, Givens noted that the pupils of defendant's eyes were 'very dilated.'
The officer testified as follows:
'At this time I compared the pupils of my partner's eyes with the use of a flashlight and found my partner's eyes to be considerably smaller than the defendant's.
'During the entire conversation with the defendant I noticed no evidence of alcohol on his breath.'
After making his observation of the condition of defendant's eyes, Officer Givens asked defendant if he had anything on his person that he should not have, and defendant answered negatively. Although Givens further testified that he then asked if defendant minded if he searched defendant's pockets and that defendant replied 'No, go right ahead,' the latter evidence, according to the stipulation referred to above, was not considered by the trial court in reaching its decision. The case was decided on the assumption that no consent was given.
The officer then searched defendant and found eight 'yellow brownish' paper wrapped cigarettes (People's Exhibit 1) in defendant's pockets. (It was stipulated that a forensic chemist found the cigarettes to contain marijuana.)
On cross-examination Officer Givens stated that he did not arrest defendant for the offense of hitchhiking. Defense counsel then asked the officer if he had any special training in the field of narcotics. An objection by the prosecution to this line of questioning on the ground that 'the officer has testified as a layman, not as an expert,' was sustained by the court.
The prosecution had the burden of showing proper justification for the warrantless arrest and search. (People v. Haven, 59 Cal.2d 713, 717, 31 Cal.Rptr. 47, 381 P.2d 927.) In the instant case the prosecution sought to show that the arresting officer had probable cause to arrest defendant because he was then under the influence of narcotics; that the search of his person was reasonable...
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