People v. Harvey

DOOLING, J.

Defendant appeals from a judgment of conviction entered on a jury verdict finding him guilty of possessing marijuana in violation of Health and Safety Code, section 11500.

On the evening of October 28, 1954, Police Officers Aiello and Russo of the Pittsburg Police Department were instructed by their superiors, Inspectors Schillaee and Flynn to go on a “stake-out” in the vicinity of appellant Harvey’s residence.

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They were told that appellant had been under surveillance by the department for some time and that he was believed to be dealing in narcotics. They were to observe appellant’s residence and appellant if he should appear. If they believed that “something was wrong” they were instructed to place appellant under arrest.

About 8 :30 p. m. the police officers arrived at the stake-out. They concealed themselves across the street from appellant’s residence behind a tree. A few minutes later appellant arrived on the scene in a 1950 Cadillac. Appellant got out of the Cadillac and apparently stood by it a little while. A blue eoupé approached and parked just behind appellant’s car. Appellant walked up to the occupant of the coupé, who remained in his car, and talked with him several minutes. The eoupé then drove away. Appellant walked across the street toward his residence. He looked at something that was on the windshield of another car and then disappeared from the officers’ view.

A few minutes later the officers saw appellant coming down an outside flight of stairs from his upstairs apartment. Appellant stood for a few seconds at the foot of his stairs looking up and down the street with his hands in his overcoat pockets. He crossed the street to where the officers were standing behind the tree. Appellant looked up and down the street. The officers then decided to take him into custody. Officer Russo testified: “We thought something was wrong.”

The officers testified that they identified themselves as officers, showed their police badges and asked appellant to take his hands out of his pockets. Appellant did not comply but backed off from the officers. A struggle ensued. Three other officers arrived and appellant was subdued. All of the police officers were in civilian clothes. Officer Russo took a package from appellant’s hand which was later found to contain marijuana.