People v. Wiley

FOX, P. J.

Defendant was charged, in an information filed by the district attorney, with violating section 11500 of the Health and Safety Code, in that on January 17, 1958, he had in his possession a narcotic, to wit, marijuana. He made a motion, under section 995 of the Penal Code, to set the information aside on the ground that he had been held to answer without reasonable or probable cause. His motion was granted. The People have appealed from the order. The theory upon which the information was set aside was that the incriminating evidence against defendant was obtained as a result of unlawful search and seizure.

Shortly before 8:00 o’clock in the evening, on December 18, 1957, Officers Hamner and Peterson, of the Los Angeles Police Department, were driving in the vicinity of 89th Street and Hobart Boulevard when they noticed a car parked southbound in front of 8901 Hobart. Defendant was sitting On the right front seat. Another young man was behind the wheel; three others were standing on the right side of the vehicle. Officer Hamner, who was driving, stopped his police car. When he did this, the three young men standing by the vehicle turned and “rapidly walked away” from it. Officer Peterson stepped from the police car and ordered the three departing men to stop, which they did. Officer Hamner walked to the left side of the car and ordered the defendant and the driver to get out of the car on the right side. When the defendant opened the door and started to get out of the ear, the officer 11 observed something drop from his left hand. ’ ’ After both men had stepped out of the ear, the offieér walked

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around to the right side of the vehicle and from the street, directly under the door, he “picked up two cigarettes," one of which was white and the other yellow. There were no other objects or debris in the immediate vicinity where the cigarettes were lying except a little grass. After picking up the cigarettes the officer arrested defendant on suspicion of possession of narcotics. He was transported to the police station for interrogation. There defendant was requested to remove his shoes, which he did. The officer “found a brown paper wrapped cigarette in the defendant’s right shoe between his sock and shoe," which, upon analysis, proved to be a marijuana cigarette.

In conversation with Officer Peterson defendant explained that he had gone to the above address to meet one of the other men there for the purpose of purchasing marijuana cigarettes; that “he had just received the marijuana cigarette" when the officers arrived on the scene; that he did not know what to do with it so he put it in his shoe, where it remained until he was searched.