People v. One 1949 Plymouth Sedan

SHINN, P. J.

The proceeding is one for the forfeiture of an automobile pursuant to the provisions of section 11610 of the Health and Safety Code, the ground of the claimed forfeiture being that the vehicle was one in which a narcotic was unlawfully possessed by an occupant thereof or which was used to facilitate the unlawful possession of a narcotic by an occupant thereof. The proceeding was against John Harold Wagner, the owner of the car. Wagner was arrested while seated in the car and was taken to the police station where he was found to have some 32 marijuana cigarettes and

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a bindle of heroin. The only witness was Vernon C. Dossey, a police officer for the City of Los Angeles. Upon conclusion of the receipt of evidence defendant moved that the testimony of Dossey be excluded upon the ground that the evidence of the possesison of narcotics had been illegally obtained as the result of an unlawful arrest and an illegal search. The motion was granted, judgment was entered for the restoration of the car to Wagner and the People appeal.

The only question presented to the trial court for decision was whether the fact that Wagner possessed narcotics was ascertained in an illegal manner, namely, whether his arrest was unlawful and the subsequent search illegal. That is the only question for our consideration. We are of the opinion that there was no illegality involved and that the court was in error in granting the motion of the defendant.

There was evidence of the following facts: Officer Dossey, three or four months prior to the date of the arrest, was informed by a man he knew to be a user of narcotics that Wagner was selling narcotics in the vicinity of the Eed Hut Drive-In; that he possessed a car such as he was using on the night of the arrest; that he usually would be found in the vicinity of the drive-in between 11 o’clock p.m. and 4 or 5 o’clock a.m., where he was selling marijuana. About two months, and again about four days prior to the arrest, Dossey received information from another informant, also a narcotic user, and further information from the first informant that Wagner was still selling marijuana in the same location; that he kept the marijuana in his undershorts and was using heroin. Following the receipt of the first information Dossey and his partner made a practice of watching the defendant in the location of the drive-in. They had been informed that the most likely time for them to find Wagner in the possession of narcotics would be on Friday nights when there were many people gathered at the location. Between the time they had received the first information and the night of the arrest they had observed Wagner at the location approximately 40 or 50 times. During this period Dossey had become acquainted with the defendant and with the fact that he was unemployed. Wagner would come to the location about 11 o’clock p.m. and was under observation by the officers on the nights when they did watch him until about 3 o’clock a.m. Wagner never entered the drive-in for food or drink. He “hung around” on the lot and contacted a great many people