People v. Newberry

ASHBURN, J.

Appellant Max Ronald Newberry, Roy Mits Nitta and James Franklin Greene were charged by information with possession of marijuana in violation of section 11530, Health and Safety Code. Motion under Penal Code section 995 was granted as to defendant Greene. After a nonjury trial defendants Newberry and Nitta were convicted. Newberry was sentenced to imprisonment for one year in the county jail. He appeals. Represented below by counsel of his own choice, he appears here in propria persona.

His primary contention is unlawful search and seizure and use of narcotics thus obtained to procure a conviction. The point is not well taken.

On February 20, 1961, at about 10 a. m., Los Angeles Police Officers Conrad and Teague, who were in plain clothes but driving a “felony car” easterly on Pico Street in Los Angeles,

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passed defendant Greene who was walking on the sidewalk in the opposite direction; when he first saw the officers he looked startled; as they passed him he “fastly” looked back; Conrad, the driver, saw him in the rear view mirror as he looked back again and then ran diagonally across to the south side of the street, looked in the direction of the police once more and then disappeared from sight. The police car changed its course to south and Conrad again saw Greene walking fast and looking back in their direction. The police pulled over beside him and got out; Conrad showed his badge and said, “Police Officers.” He testified that Greene appeared to be “in a dazed or drunken condition” and “seemed mummified, stuporous,” with a slight stagger and his “eyes were dilated and watery”; there was no smell of alcohol on him and marijuana does not smell on the breath. In the officer’s opinion Greene was under the influence of narcotics. He gave his name as James Greene but his social security card bore the name James Bartha. This he explained by saying he had changed his name because “my real name has a bad record. . . . I have been in jail for narcotics, petty theft, and burglary.” Asked where he was going, he said, “to see a friend of mine named Max.” Conrad said: “Well, do you want to go down there with us? I would like to check out your story, and see if you are telling the truth. Things don’t look too good here, with you having this phony identification, and you have got a bad record; and we have had several burglaries in the area. We would like to check this out further.” Greene: “Sure. Come on along, and I will show you. ’ ’ He took them to a residence, number 1406 South Dewey Street, and knocked on the door. Defendant-appellant Newberry came to the door, pulled the glass curtain aside and looked through the window of the door with his nose against the glass, about a foot away from Conrad. He saw that appellant’s eyes were dilated and watery and formed the opinion that appellant was under the influence of marijuana at the time. The house was not darkened and the officer saw appellant’s face for about three seconds. He said, “Police officers, we’d like to talk to you.” Thereupon appellant dropped the curtain and the officer “heard thundering footsteps, running to the back of the house.” Newberry had on slippers and the running footsteps were very loud. Though they had no warrant the officers forced the door and ran after appellant who was found in the bedroom standing by the bed. On top of it were two marijuana cigarettes which he had