People v. Sullivan

JEFFERSON, J.

Following a preliminary hearing, defendant was held to answer to the charge of possession of marijuana. (Health & Saf. Code, § 11530.) An information was subsequently filed charging this offense. Defendant moved, under section 995 of the Penal Code, to set aside the information on the ground evidence against him was illegally obtained. The motion was granted and the People appeal pursuant to Penal Code section 1238, subdivision 1.

Deputy Sheriff Villahermosa testified at the preliminary hearing. On May 28, 1965, at about 7:10 p.m., he and three fellow officers were in an unmarked patrol car which had stopped for a signal light at Hooper and Nadeau Streets in Los Angeles County. They were in plainclothes. Officer Villahermosa observed that defendant, who was driving the car stopped next to the patrol car, appeared to be smoking a marijuana cigarette. He could see the cigarette because it was still light outside. Villahermosa was assigned to the narcotics detail and had in the past observed marijuana cigarettes on more than 500 occasions. He estimated the distance between himself and where defendant was sitting to be about 8 feet. He noted that the cigarette—about one-half to three-fourths of an inch in length—was hand-rolled, brown in color and that defendant —who appeared to be quite young—was smoking it in the peculiar fashion usually found only in marijuana smoking. After making these observations the officers attempted to pull defendant over using a red light and siren but defendant drove north on Hooper for approximately 6 or 7 blocks before stopping his vehicle in a parking lot. The patrol ear pulled up behind. As defendant stopped the car Officer Villahermosa observed that he leaned back in the seat and appeared to make a motion with his arms in the area of his midseetion. There was another person in the ear seated on the passenger side of the front seat. As the officers alighted from the patrol ear and approached defendant’s ear, defendant also got out of his car. When Villahermosa arrived at the driver’s door of the vehicle defendant was standing between the driver’s door and the back door. At this point the officer looked inside the vehicle

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and observed a partially burned, hand-rolled cigarette lying in the center of the driver’s seat where defendant had been seated. It appeared to be marijuana. The officer picked it up and examined it. The cigarette was still warm and had the smell of marijuana.