People v. Schraier

MOORE, P. J.

Convicted of having had possession of marijuana cigarettes (Health & Saf. Code, § 11500) defendant appeals from the order granting him probation,

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and from the order denying his motion for a new trial.

Officers Naylor and McMahan of the Long Beach Police Department had for two hours been watching a cottage on Cherry Avenue, Long Beach, prior to the arrival of appellant

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and his companions in an automobile. The cottage was the residence of one Ray Anderson. It had been under surveillance by the police for several months by reason of their knowledge of certain undisclosed activities at the house during that time. On the evening in question, they were making a routine check on the house and particularly were looking for Messrs. Dement and Woods who were under bail for prior possession of marijuana. They had not been convicted. About 8:15 p. m. Dement emerged from the cottage, but was not arrested. When one Fowler later came out, Officer Naylor arrested him. But what, if anything, the officer found on him does not appear. At some time and for some reason the officers had also arrested one O’Donnell, but it does not appear that he came out of the Cherry Street house or that he had any marijuana on him. At 9:55 while Officer Naylor and his partner sat in their police car with Fowler and O’Donnell, Naylor observed a car with three occupants enter the driveway of the Anderson cottage. All three left the conveyance and entered the house. The officer had never seen defendant Schraier before. For about 15 minutes Naylor and McMahan observed the cottage from different positions. Their attempts to see the interior were frustrated by the drawn shades. The three men who came out of the front door about 10:15 were Almond, appellant, and Ord. The latter was also a stranger to the police, but they recognized Almond. While Naylor was about 35 feet away, Almond and Ord entered the conveyance on the passenger side. Then as Naylor for the first time observed Schraier standing near the driver’s seat, Almond suddenly left the vehicle, and as promptly reentered it. There was some conversation that the police could not hear, but as soon as Almond had entered it for the second time, Officer Naylor, with neither a search warrant nor a warrant for arrest, said to appellant, “I am a police officer.” Whereupon appellant placed his right hand in his right outside coat pocket; the officer grabbed his right wrist and held his hand in that pocket. When it was finally withdrawn from the pocket, the hand was empty. Schraier’s resistance was only casual, indeed he was cooperative. While Naylor was holding appellant, he saw Almond insert a white cigarette into his mouth and swallow it and at the same time lock the door on the passenger’s side, thereby preventing McMahan from entering the car. Naylor searched defendant’s person and brought forth the contents from his pockets, among which