People v. Evans

GRIFFIN, P. J.

Defendant was charged by information with the unlawful possession of a narcotic, to wit, marijuana. The trial court dismissed the information under section 995, Penal Code, on the grounds that the only evidence against defendant was the product of an illegal search conducted incident to an arrest unauthorized by law.

The evidence presented at the preliminary examination in, the municipal court showed that on April 18, 1959, at about 1:45 a.m., Police Officer Kennedy observed the defendant and another person crossing Third Avenue at “E” Street against a red light and in front of approaching traffic. Officer Kennedy, who was sitting in his police car at the time, stated that possibly the light facing defendant was yellow when he stepped off the curb but it immediately turned red. The officer was seated in his car which was stopped near the crosswalk in the second lane of traffic. He parked his car nearby and requested defendant and his companion to recross the street to the vehicle, which they immediately did. When the defendant came up to him the officer observed that he was staggering. A closer and more careful examination of defendant by flashlight revealed that his eyes were bloodshot. The pupils were dilated and insensitive to light. There was an odor of alcohol on his breath. When asked for identification, defendant handed Officer Kennedy his Navy ID card which disclosed that defendant was 19 years old. Defendant was arrested by the officer for “drunk minor,” and he was so informed. During the immediately ensuing search of defendant’s person, a package was found in his right front trouser pocket which the officer could not identify by feel, so he removed it and

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found it to be marijuana. The defendant appeared nervous after this discovery and later explained to the officer that a stranger had given him this package just before the arrest, saying, “Here, you can have this.” The defendant also stated that he did not know that the package contained marijuana. The officer asked him where he obtained the liquor he was drinking and he said an older sailor had purchased it for him. They were taken to jail in the police car.

It is now well settled that on hearing a motion to dismiss the case under Penal Code, section 995, the superior court may not reweigh the evidence or substitute its judgment as to the credibility of witnesses for that of the committing magistrate.