People v. Williams

Opinion

FILES, P. J.

Defendant was charged with possession of marijuana in violation of section 11530 of the Health and Safety Code. He moved under section 1538.5 to suppress the evidence but withdrew that motion on the stipulation that the issue could be presented at the trial. Trial by jury was waived, defendant stipulated that a commissioner could sit as judge pro tempore, and following the trial defendant was found guilty as charged.

Proceedings were suspended and defendant was granted probation for three years on condition that he spend the first 90 days in the county jail. The court determined that the time defendant had already served would count toward the 90 days and since he had already been in custody more than 90 days he was forthwith released.

Defendant appeals from “the judgment and order granting probation.” The latter is the judgment for purposes of appeal.

At approximately 2:30 a.m. on November 7, 1967, officers of the Los Angeles Police Department observed the vehicle in which defendant was

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riding as a passenger fail to stop at a stop sign, and halted the car to issue a citation. One of the officers asked the driver for a registration, but none was presented. There was no identification in the vehicle. A record check disclosed that the license plate on the car had been issued to a vehicle which had been stolen. The officers then arrested both occupants and took them to the station.

While defendant was being booked he was “skin searched,” a routine booking procedure requiring the arrestee to remove all of his clothing. As defendant unbuckled his trousers a wax paper bag containing a green leafy substance “resembling marijuana” fell to the floor. The defendant was then booked on the charge of possession of marijuana instead of auto theft.

At the trial it was stipulated that a chemist would testify that the “green leafy substance” was marijuana.

I

The admissibility in evidence of the marijuana which dropped from defendant’s clothing during the course of his booking depends upon the legality of his arrest, since it is proper to search a lawfully arrested person for the purpose of keeping contraband out of the jail.