People v. Lozano

Opinion

HASTINGS, J.

Defendant was convicted by a jury of possession of heroin (Health & Saf. Code, § 11350). No finding was made as to two prior felony convictions. Proceedings were suspended. Defendant was placed on five years’ probation on various terms and conditions, including the service of nine months in jail, concurrently with jail time being served in an unrelated matter. Defendant appeals from the judgment (order granting probation).

Defendant challenges the validity of the seizure of the contraband and the sufficiency of the evidence to establish that he was in possession of the contraband.

[493]

On March 1, 1974, two plainclothes officers observed defendant driving erratically. Defendant’s vehicle stopped in the roadway. Officer Carreon approached it on foot to investigate. He exhibited his badge. Defendant looked at the officer, who recognized him from prior contacts. Defendant pulled his vehicle into a driveway, backed out causing Carreon to jump out of the way, then started forward heading toward Carreon. The officer pulled his revolver and ordered defendant to stop. Defendant did so. Carreon opened the door and removed defendant from the vehicle. Officer Minor, Carreon’s partner, passed the open door of defendant’s vehicle and observed a yellow balloon lying on the floor. Minor pointed the balloon out to Carreon and then, believing it to contain heroin, Minor removed it from the vehicle.

There is no merit to defendant’s contention that the officers lacked probable cause' to detain him or that they overreached their authority in seizing the balloon. Thus the trial court did not err in denying defendant’s motion to suppress. (Pen. Code, § 1538.5.)

1

The challenge to the sufficiency of the evidence arises because the evidence envelope (People’s exhibit 1), when opened at the preliminary hearing, contained both the yellow balloon seized from defendant’s truck and a portion of a green balloon which neither of the arresting officers accounted for. The evidence with respect to what happened to the yellow balloon from the time the officers seized it until it arrived at the preliminary hearing was as follows: Upon arriving at the police station, Officer Minor punctured the yellow balloon with a paper clip and performed a narcoban test on a small portion of powder contained therein. He obtained a positive result. He did not unravel the balloon, open it, or otherwise examine its contents in any other fashion. Minor placed a piece of scotch tape over the puncture in the balloon and marked the balloon with the letter “M.” He then sealed the balloon in a small envelope, sealed the small envelope inside a large manila envelope, and signed his name and the date on the outside of the second envelope. He left the envelope with the police property officer.