People v. Montes

MOORE, P. J.

Convicted of having possession of marijuana (Health & Saf. Code, § 11500) and of a prior conviction, a misdemeanor, defendant appeals from the judgment and from the order denying his motion for a new trial.

The narcotics detail of the sheriff’s office having been informed by a reliable, confidential person that appellant was dealing in and using heroin and marijuana, placed the latter’s home under surveillance on January 11, 1956, about 6 :30 in the evening. He was on his premises. Officer Vega observed a coupé arrive at the home; saw appellant enter his back door, return to the car, contact its occupant and give him a package. At 7:10 p. m. appellant contacted parties

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in a sedan. He entered his house, returned and gave some object to the occupants of that car also.

The officers recessed from their watch and pursued both automobiles. As they approached the coupé, a package containing marijuana was thrown from that vehicle. When they searched the sedan, two brown paper bags of marijuana were found. The officers returned at 7:45 p. m. At that time as appellant arrived in a station wagon, they placed him under arrest and searched the house and the premises outside. They found no narcotics in abundance, but in a box, within a drawer of a kitchen cabinet they found a druggist’s scale containing fragments of marijuana. About 20 feet from the back door they found a vial containing the same narcotic. The officers had twice observed appellant near the spot where the vial was found, to wit, when the coupé and the sedan separately entered his premises. Appellant admitted the scale belonged to him and testified that no one had used it except his 13-year-old son.

Appellant contends that the vial and the scale were not properly admissible for the reason that they were fruits of an illegal search; also, that if properly received, the evidence was insufficient.

The search of appellant’s premises and the seizure of the scale and vial were not illegal. They were incidental to a lawful arrest. Officer Vega knew appellant as a narcotic addict. His informant concerning Montes’ recent activities was known to the officer to be reliable. Previous arrests had been justifiably made after acting upon this informant’s advice. Before they had watched appellant’s home an hour, two callers had driven into appellant’s driveway and the occupants of both conveyances contacted him under suspicious circumstances. Each visiting car was followed by the officers. From one a package of marijuana was thrown to the ground; in the other on the front seat were two packages of the same leafy substance.