People v. Ball

DRAPER, J.

A jury found defendant guilty of possession of marijuana. He was admitted to probation on condition he serve 6 months in county jail. Defendant appeals, urging that the marijuana admitted in evidence was found in his home as the result of an illegal search.

An armed robbery occurred in San Jose at about 9 :30 a. m. The police secured information leading them to believe that one Conrad Mallory was one of the three robbers and that Mallory might be at the home of defendant. At about 10:30 a. m., police officers of the San Jose and Campbell departments went to appellant’s home in Campbell, seeking Mallory. A police sergeant from Campbell and one from San J ose knocked at appellant’s door, and announced that they were policemen. Appellant opened the door. They asked “if Conrad Mallory was there and if we could come in and look around, at which time he replied yes, we could.” The two officers entered the room. When appellant went back to bed, they asked him to arise and dress. They looked through the apartment and did not find Mallory. They, with appellant, went outside the house. About three minutes later, Sergeant Sims returned to the house and saw a plastic bag protruding from a blanket on a shelf in an open cupboard. He looked at the bag, which proved to contain marijuana cigarettes. He went outside and arrested appellant for possession of narcotics. Appellant himself testified that he consented to the officers’ search of his quarters and, that he had been with Mallory on the night preceding the holdup.

[467]

Appellant argues that he was arrested when the officers asked him to get out of bed. He appears to contend that this “arrest” was unlawful and that this made the search illegal, even though it was otherwise reasonable and justified. But the very decision relied upon by appellant negatives his view. “ [T]he legality of an arrest is not necessarily determinative of the lawfulness of a search incident thereto. . . . [S] ome searches may be reasonable and hence lawful in the absence of a warrant or an arrest ...”

(People

v.

Brown,

45 Cal.2d 640, 643 [290 P.2d 528].) A search or seizure may be justified even though it is in no way related to an arrest.