People v. Lujan

141 Cal.App.2d 143 (1956) THE PEOPLE, Respondent,

v.

ROBERT GALLEGO LUJAN, Appellant.

Crim. No. 5518. California Court of Appeals. Second Dist., Div. Two.

Apr. 25, 1956. Robert Gallego Lujan, in pro. per., and Forno and Umann for Appellant.

Edmund G. Brown, Attorney General, and James L. Mamakos, Deputy Attorney General, for Respondent.

ASHBURN, J.

Having been convicted of possession of heroin (Health & Saf. Code, 11500), defendant appeals from the judgment and an order denying his motion for new trial. He does not claim innocence or lack of sufficiency of the evidence. His plaint is that there was too much evidence and it was obtained by an illegal search and seizure within the purview of the recent line of decisions which are the progeny of People v. Cahan, 44 Cal.2d 434 [282 P.2d 905].

On October 8, 1954, four officers attached to the sheriff's narcotic detail were cruising in an automobile on Olympic Boulevard in Los Angeles County when Sergeant Cook recognized defendant's car ahead of them; they passed it, within 12 feet, and he then identified defendant as the driver. Cook had known him since investigating a narcotics matter three years before; he himself had not arrested defendant, but another officer had done so and defendant was convicted of narcotic addiction. According to Cook's information defendant [145] was known as a narcotic addict; he had recently kept defendant's home under surveillance and had arrested for narcotics violations some of the people he had seen come out of that house but what he had found or whether the arrests resulted in pleas or convictions does not appear. When Cook saw defendant on the 8th of October the latter was behind the wheel and appeared to be under the influence of narcotics. The sergeant having had considerable experience in such matters, his car followed defendant to the intersection of Whittier Boulevard and Downey Road, where he stopped for a red signal. The officers came up beside him and he was seen to be in a lethargic condition; very slow in his actions; he dropped his head as he stopped at the intersection; his eyelids appeared to be half closed and he was in a drowsy state. Officers Stoops and Buchanan immediately approached defendant's car, Stoops on the passenger side where defendant's wife was sitting, and Buchanan went to the driver's side and opened the door; Buchanan had his badge in his hand, showed it to defendant and said "you are under arrest." There was a little scuffle; as defendant looked at Stoops he made a motion toward his right coat pocket but it had a flap on it and his hand went past the pocket. Stoops grabbed the hand but there appears to have been nothing in it. While this was going on defendant put his foot on the throttle and started forward; Stoops grabbed the gear shift lever and stopped the car. Cook and Buchanan pulled defendant out of his automobile and he dropped to the ground. As they picked him up Stoops made a search of his person, finding in his shirt pocket a rubber finger stall, a type of facility used in narcotic traffic, and in it were five gelatin capsules containing heroin. Defendant was asked how many capsules were in the finger stall and he first said that "a fix" was all that was in there; asked again how many capsules he said five.