People v. Lamberson

[857]

JEFFERSON, J.

— In a trial by the court, after waiving a jury and admitting two prior felony convictions, defendant was convicted of possession of heroin (Health & Saf. Code, § 11500). He appeals from the judgment contending that the evidence which convicted him was the fruit of an illegal search and seizure.

On December 13, 1963, officers Austin and Allender of the Los Angeles County Sheriff’s Department Narcotic Detail, accompanied by a fellow officer and two officers from the West Covina Police Department, were conducting an investigation of suspected narcotics activity at a home on Merced Street in West Covina. They had a warrant to search the home. At approximately 4 p.m. they approached the residence and parked. Shortly thereafter they observed a pickup truck which was parked in front of the house, leave the area. The officers followed the pickup and arrested the driver for possession of narcotics paraphernalia.

They returned to the vicinity of the suspect house at approximately 5:30 p.m., and again parked. The officers were in two unmarked patrol cars. They observed a 1953 Oldsmobile parked in front of the residence. One person was seated in the driver’s seat. Shortly thereafter they saw a person leave the house and get into the Oldsmobile. The car then drove off. The officers followed. When the Oldsmobile stopped for a traffic light the officers stopped behind it. Officer Austin walked to the driver’s side of the Oldsmobile and Allender and one of the other officers approached the passenger side. Austin identified himself to the driver and requested that he step from the vehicle. The man complied. Austin observed defendant seated on the passenger side of the car.

The signal light by this time had changed and the Oldsmobile was observed to be blocking a heavy flow of traffic on the street. A number of cars had already backed up behind the vehicle. Officer Austin was asked by one of the other officers to move the car off the traveled portion of the roadway. Austin slid into the driver’s seat and started to drive the car over to the shoulder of the road. At this time Austin observed defendant, who was still sitting on the passenger side of the front seat, reach with his right hand into his right shirt pocket and throw a colored balloon to the floorboard of the car between his own feet. Officer Allender, who was standing outside of the car on the passenger side, also observed defendant reach into his pocket and drop the balloon.