People v. Todd

[391]

Opinion

LILLIE, J.

The trial court found Hughes and Todd (known as Maureen Bayle) guilty on separate counts of possession of marijuana (§ 11530, Health & Saf. Code) and jointly guilty of possession of restricted dangerous drugs (§ 11910, Health & Saf. Code), suspended the proceedings and granted them probation for five years. Both defendants appeal from the judgments (order granting probation).

Around 9:15 a.m. on February 19, 1968, while parked on his motorcycle with Officer Teague, Officer Sherlock observed Hughes drive past in a 1955 Mercury proceeding northbound on Vermont; with Hughes in the front seat were Todd and one Stone. He noticed the muffller and tail pipe bouncing up and down hitting the ground and no 1967 or 1968 tabs on the rear license plate; he turned on his red light and finally Hughes pulled over. As he walked to the driver’s side the car kept rolling backwards; he asked Hughes what was wrong and if his emergency brake worked; Hughes replied there is “no emergency brake at all,” and that the car did not belong to him. As Hughes reached over to turn off the ignition, Officer Sherlock noticed that the car did not have a standard type ignition—it was makeshift—the wind wing on the driver’s side was broken and the rear seat was pulled out as though someone had broken into the trunk area. Asked for his driver’s license, Hughes produced a Florida operator’s license in the name of John Steward; when asked whose car it was, Hughes said it was a loan he was using while his was being fixed. There was no registration in the car, and Hughes said there was none; on the windshield was a red, faded emergency operation permit that had expired in September of 1967. Officer Sherlock testified, “I told him why I had stopped him and I then—in my own mind I thought this was a stolen car at that time”; he then motioned to Officer Teague that “there was something wrong.”

In response to Officer Sherlock’s motion Officer Teague, positioned to the right rear of the vehicle, walked up to the right front windshield and looked at the red faded, expired emergency permit when he noticed on the floor on the driver’s side between the seat and the brake pedal a needle in a clear glass holder; he was approximately four feet away. He walked back to his motorcycle, picked up the radio and requested a “want” on the license plate, returned to the driver’s side and retrieved the object which was a disposable-type needle. Meanwhile Officer Sherlock asked Todd and Stone to get out of the vehicle and for their identification, then proceeded to search for weapons. By then Officer Teague started to make “a cursory search” of Hughes. In order to do so he lifted up the back of a jacket which extended below Hughes’ waist; he saw a black leather wallet in the left rear pocket of his tight-fitting blue levis and a bulge in the right rear pocket;