People v. Simmons

California Court of Appeal Sep 8, 1971 No. 19001Published

Before: Lillie

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Holding. The court held that the evidence was sufficient to support a conviction for possession of heroin, finding that the defendant had actual physical possession of the contraband and that the quantity was a usable amount. The court further held that the officer's observation of the defendant dropping the items in plain view did not constitute an illegal search.

Issues

Whether the evidence was sufficient to establish that the defendant had possession, dominion, and control over the heroin.
Whether the evidence was sufficient to establish that the quantity of heroin possessed was a usable amount.
Whether the seizure of the heroin and needle constituted an illegal search.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence shows there was no search of either defendant's person or vehicle; that when the officer was within five feet of the door of defendant's vehicle he saw defendant exit and in doing so drop the balloon and the chrome needle”

19 Cal.App.3d 960 (1971) 97 Cal. Rptr. 283 THE PEOPLE, Plaintiff and Respondent,

DONALD RODNEY SIMMONS, Defendant and Appellant.

Docket No. 19001. Court of Appeals of California, Second District, Division One.

September 8, 1971. [963] COUNSEL

Beatrice H. Armstrong, under appointment by the Court of Appeal, for Defendant and Appellant.

Evelle J. Younger, Attorney General, William E. James, Assistant Attorney General, and Herbert A. Levin, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

LILLIE, Acting P.J.

Defendant was convicted of possession of heroin (§ 11500, Health & Saf. Code); he appeals from the judgment.

Around 2:20 a.m. on January 29, 1969, Officers Niles and Smith, in a patrol car, observed defendant, driving a blue 1967 Cadillac, make a U-turn in a business district (§ 22102, Veh. Code); they signaled him to pull up to the curb but instead of stopping defendant continued on, made a left turn, then a right turn into a gas station; they followed and stopped behind him. Officer Niles got out and approached defendant's vehicle; when he was within five feet of the door adjacent to the gas pumps he saw defendant step out of the vehicle and drop to the ground from his left hand a red balloon and chrome needle; the items fell next to the gas pumps; he picked them up, examined the balloon and needle, found the balloon to contain heroin and arrested defendant; he then told the attendant not to put gas in defendant's car. The lighting was excellent in the area and there was nothing on the ground around the needle and balloon. The officer advised defendant of his constitutional rights; asked if he understood them, defendant answered in the affirmative. Defendant then told the officers he had a $10-a-day habit and had "fixed" about two hours before. At headquarters defendant said to Officer Niles, "Don't book my kit."

Officer Smith, who was called as a witness by the defense, testified he stopped at the rear of defendant's vehicle in the gas station; from there he did not see defendant's left or right hand when he got out of the vehicle and did not see anything drop; Officer Niles immediately picked up what defendant had dropped and arrested him; he examined defendant and found needle marks, needle tracks and old scars on his arms; after he was advised of his constitutional rights defendant told Officer Niles that he had a $10-a-day habit. Two attendants at the gas station testified for defendant. Defendant told one of them he wanted $2 worth of ethyl; defendant was out of the car a minute or two standing by the pump and the attendant was about to

People v. Simmons

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OPINION

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