People v. Rodriguez

PIERCE, P. J.

The State of California appeals (under Pen. Code, § 1238, subd. 1) from an order granting a motion to set aside an indictment charging defendant with violation of Health and Safety Code section 11530 (possession of marijuana). (In a previous proceeding a motion to quash the information regarding the same offense was granted.) Incriminating evidence at the preliminary hearing and later before the grand jury was marijuana found in a search of defendant’s motel room. The basis of the judge’s order was that the search, admittedly without a warrant, was illegal.

The search resulting in the subsequent discovery of marijuana was made by one Cozzalio, an agent for the State Bureau of Narcotics. He was accompanied by Lieutenant Harvey Dodge of the United States Air Force. The latter had obtained a master key to defendant’s room from the motel operator.

[746]

Dodge was the executive officer of Detachment 1, 82d Fighter, Air Defense Command, Disbursal Base. Defendant was an enlisted man attached to that unit. The unit was stationed at Montague Air Force Base, Siskiyou County, but had no barracks and the Air Force had been renting various facilities as quarters for unmarried enlisted men in Yreka. These men were required to live in these rented quarters. The motel room occupied by defendant was one of them. It was located in a privately-owned motel. The only -actual control exercised by the Air Force over that room and other quarters so rented was that twice-monthly inspections were held; otherwise the motel management operated this room as it did others of the motel, including the furnishing of maid service. The search in question was made July 20, 1965. It appeared from the evidence that an undersheriff had advised Dodge he had information that defendant was involved in narcotic traffic. There was no testimony as to what that information was. The sole justification for the search was the information related plus the fact that Dodge had authorized Cozzalio to enter and search the room.

While the two were conducting the search and had been so engaged for approximately 15 minutes defendant arrived. Cozzalio identified himself. He also advised defendant of his right to remain silent and of his right to counsel. Then he continued his search. Defendant appeared nervous. Cozzalio, noting that fact, asked defendant if he wanted to talk to him outside. Having received a negative reply the search was continued. Defendant then asked for a few minutes to think. Finally he suggested that the officers look in a brown coat hanging in the closet where they might find what they were looking for, but, he added, the items being sought did not belong to him. The officers, in a pocket of the coat indicated, found a package containing 20 marijuana cigarettes and a “roach” (i.e., a partly smoked marijuana cigarette). Debris containing marijuana was removed from a shirt and sport coat hanging in the closet.