People v. Spelio

Opinion

ROTH, P. J.

Christopher Spelio appeals from a judgment of conviction (order granting probation) of a violation of Health and Safety Code section 11530, possession of marijuana. A jury found appellant guilty and his

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codefendant not guilty. Motions made under Penal Code sections 995 and 1538.5, prior to trial, were denied.

On January 7, 1969, at about 12:30 a.m. Officer Clements stopped the automobile appellant was driving. One of the headlights was out. Appelland and Stanley Lauritsen, a passenger, got out of the car and met the officer half way between the vehicles.

Officer Clements asked appellant for his driver’s license and vehicle registration. He showed the officer his driver’s license and the registration. The latter was for 1967. When asked for the 1968 registration, “He stated he didn’t think he had it.” After additional officers arrived, Officer Clements went to the driver’s side of the car to check the identification tag located on the door panel. As he knelt to check the numbers, he saw what he believed to be marijuana seeds along the door runner. He then found additional seeds, a handrolled marijuana cigarette and several remnants of marijuana cigarettes.

Appellant testified on his own behalf. He stated that he first produced a 1967 registration and then produced the 1968 registration from the glove compartment and that Officer Clements got into the back seat of his car and found a beer can and marijuana seeds followed by the marijuana cigarette and cigarette remnants.

Appellant further testified that he had never seen marijuana seeds, that he had never smoked marijuana, and that he might have seen “a few hippies” smoking marijuana. He also testified that about a week before the morning of January 7, he saw four strange people sitting in his car when it was parked at a friend’s house. Two additional witnesses testified that they had seen the four strangers in appellant’s car on that occasion.

Appellant first contends that the search made of his automobile was unlawful. “The mere observation of that which is in plain and open view does not constitute a search.”