People v. West

[177]

Opinion

STEPHENS, J.

By information, defendant was charged with possession of marijuana. (Health & Saf. Code, § 11530.) Defendant pleaded not guilty and moved to set aside the information (Pen. Code, § 995). The motion was granted, and the People appeal.

At defendant’s preliminary hearing, Los Angeles City Police Officer Melvin Cunningham testified that on September 15, 1971, he and his partner drove to the vicinity of 147 East 56th Street, Los Angeles, in response to a “radio call that there was a 415 or a disturbance at that location due to a group fight.” Upon their arrival, Cunningham did not observe any fighting, but did observe defendant in a vacant lot. Defendant appeared to be having difficulty standing and was “steadying” himself on another man. Defendant and the other man approached the police officers, and Cunningham saw that defendant’s face was cut and bleeding. Defendant’s brother, who was also present, told the policemen that he and defendant had been fighting. Defendant “acknowledged” having fought with his brother. Defendant had “a strong alcoholic odor, and when he walked, he walked very unsteady, his speech was very thick and heavy to the point of becoming incoherent. . . . His eyes were red and watery.” Cunningham then placed defendant under arrest for being intoxicated in public. (Pen. Code, § 647, subd. (f).) Cunningham did not “believe that [defendant] had contraband on his person,” but, nonetheless, immediately placed his hand into defendant’s front pant’s pocket and found “Zig-Zag papers.” Cunningham said to his partner: “He’s got Zig-Zag papers, he has probably got some grass.” Defendant then said: “Yes, I do. It is in the pocket in the bag.” Cunningham thereupon took a quantity of marijuana from defendant’s pocket.

Cunningham testified that his purpose for the initial search was to “discover if he had any weapons, number one; and, number two, to prevent him from taking any contraband into the police car and subsequently into the station.” Cunningham further testified that at the time of defendant’s arrest, defendant “would [not] qualify for immediate bail” because the “department requires a four hour sobering up period before they release anyone on bail who has been arrested for intoxication.”

At the hearing on defendant’s Penal Code section 995 motion, the judge stated that “under the facts of . . . this case . . . the officer had the right to make a pat-down search, but he did not make the pat-down search. He went directly into the defendant’s pocket. I think, under the circumstances of the defendant’s arrest for being intoxicated, that he did not have