People v. Havenstein

Opinion

STONE, P. J.

Defendant was convicted by a jury of possessing marijuana, a violation of Health and Safety Code section 11530. His primary contentions on appeal are that the marijuana received in evidence was the product of an illegal search of an automobile he was driving at the time of his arrest, and that the district attorney was guilty of misconduct in his opening statement to the jury.

The arrest and search occurred as follows: About 2:30 a.m. on June 27, 1967, two California highway patrolmen were questioning a drunk driving suspect whom they had stopped on Belmont Avenue, east of its intersection with Willow Avenue, in the County of Fresno. Their attention was called to the car defendant was driving east on Belmont Avenue, by the squeal of tires as he brought his vehicle to an abrupt stop. His motor stalled, he restarted the engine, raced it, shifted into reverse gear and, with tires squealing, backed to about the center of the intersection at Willow, and either again stalled the motor or stopped the car. One of the patrolmen, Bennett, remarked to his fellow officer, Fulton, “We have another one,” walked to the car and ordered defendant to drive to the curb. He thought defendant was intoxicated but because he could not detect the odor of alcohol, he asked Officer Fulton to “check the subject out.”

Defendant was unsteady on his feet and his “knees were wobbly.” He was given a standard roadside sobriety test by Officer Fulton, and later by Officer Bennett. The officers concluded that he was intoxicated, arrested him and placed him in the back seat of the patrol car. They then turned their attention to the other passenger in the car, a woman, who it developed was too intoxicated to drive. She was arrested and placed in the front seat of the patrol car.

As there was no one present to take care of the vehicle, the officers decided to have it towed from the street and stored. While defendant and the woman waited in the patrol car at the scene of the arrests, the officers inventoried the contents of the vehicle. They found a Sucrets box under

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the right bucket seat inside of which was a wax paper bag containing 3.60 grams of marijuana (enough to make 12 cigarettes), two white-paper, hand-rolled cigarettes containing .84 grams of marijuana, and four Seconal capsules. A state narcotics agent arrived at the scene and found a packet of white cigarette papers in the glove compartment.