People v. Tennyson

PETERS, P. J.

Defendant was charged with the unlawful possession of heroin, in violation of section 11500 of the Health and Safety Code, and with two prior convictions. He admitted the two priors, and pleaded not guilty to the main charge. He was represented at the time of his arraignment and trial by an assistant public defender of Alameda County. In propria persona he appeals from the judgment of conviction and from the order denying* his motion for a new trial.

The evidence supports the judgment. On the night of October 7, 1953, three members of the Oakland Police Department vice squad, Myall, Coleman and Childers, by name, were assigned a four-door police sedan for their use. Before starting on their duties they took the automobile to the police garage and there cleaned out its interior with an air hose. In particular, they removed the back seat cushion and thoroughly air-hosed the area under it, removing all accumulated debris. Sometime after midnight the three officers were directed to investigate certain patrons of a café in Oakland. Prom the time that the car had been cleaned until the officers arrived at the café, no one, in addition to the officers, had been in the automobile, and at no time during the evening had the automobile been left unattended. Upon arriving at the café the officers took into custody the defendant and one Charles Percy. A search of the two men failed to disclose any weapons, or other illegal contraband. Defendant was then ordered into the back seat of the police car and told to keep his hands clasped in front of him. Officer Myall got in with defendant, and Percy got in the front seat with the other two officers. Myall testified that as defendant got into the ear he observed defendant unclasp his hands, place

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his left hand to the back of the rear cushion, shake his arm, and then shove what appeared to be a piece of cellophane behind the cushion. There was evidence that possessors of narcotics frequently carry such narcotics in packets up their sleeves or under their arms, which packets can be released by a shake of the arm. Myall made no immediate comment about what he had just observed, but told defendant that the officers had information that he was selling narcotics, and asked him if he had any in his possession. Defendant denied any such possession. Both Myall and Coleman testified that when the automobile arrived at the police station all got out, and, with the defendant standing beside the car, the two officers removed the rear seat cushion. Where defendant had been seated they discovered a cellophane packet containing three bindles of what, at the trial, was identified as heroin. Defendant denied that he had placed the packet behind the seat.