People v. Markin

Opinion

FILES, P. J.

Defendant was charged with possession of hashish in violation of Health and Safety Code section 11530 (now § 11357). The People appeal from an order setting aside the information under Penal Code section 995.

Defendant was picked up by police as he was in Manhattan Beach Boulevard attempting to hitchhike at about 2:20 a.m. on October 23, 1972. “He was stumbling, having great difficulty just maintaining his balance”; his speech was slurred; his eyes were red and watery; and he smelled of alcohol. His shoes had not been pulled all the way on. The arresting officer concluded that defendant was “under the influence of an intoxicant and

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unable to care for Ms own safety or that of others,” a violation of Penal Code section 647, subdivision (f).

The officer testified that he transported defendant to the police station where he carried out “a booking search on his person.” Inside the wrapper of a cigaret package the officer found a plastic bag containing a brown substance. Upon testing, the material was found to be one and a half grams of hashish.

At the preliminary hearing, defense counsel objected to introduction of the cigaret package and the plastic bag with its contents, saying “they [the police] could have given him the opportunity to sober up, since he was simply under the influence.” The municipal court overruled the objection and afterward denied a motion to dismiss made on the same ground.

The superior court, hearing defendant’s motion to set aside the information, took judicial notice that there are several detoxification centers in Los Angeles County, where láw enforcement agencies take people found under intoxication. The court stated “I think there is a duty of the police to. take Mm to detoxification center. Now, whether they have power to search or deny taking him in or not is something I’m not acquainted with and don’t know what the practice is.”

The court then dismissed the information.

That ruling can only be interpreted as a holding that the search of defendant at the police station was unlawful,, precluding the use of the hasMsh in evidence over objection at the preliminary examination. Defendant’s attorneys seek to uphold that decision in this court upon the theory that subdivision (ff) of Penal Code section 647 required the arresting officer to deliver defendant to a treatment facility without searching his person.