People v. McBride

GARGANO, J.

Defendant appeals from a judgment on a verdict finding him guilty of illegal possession of marijuana in violation of Health and Safety Code section 11530.

On July 17, 1967, at about 1p.m., California Highway Patrol Officers Wendell Frazier and James R. Herfurth were traveling north on Highway 99 to investigate an automobile accident when they noticed a set of headlights rapidly overtaking their patrol car. The officers estimated the speed of the approaching vehicle at 90 miles per hour and therefore stopped it as it came along side. The vehicle, a 1962 Cadillac, stopped off the highway resting partially on dirt and partially on the improved shoulder.

Officer Herfurth approached the Cadillac from the driver’s side and asked defendant (the sole occupant) for his driver’s license. However, when he detected the smell of alcohol he asked defendant to alight from the vehicle to perform certain coordination tests. In the meantime Officer Frazier, who had approached the vehicle from the passenger side, made a cursory search for weapons through the windows with the aid of a flashlight. He found a flask containing alcohol on the front seat in plain view.

Both officers observed defendant attempt the coordination tests. They then decided that defendant was under the.influence of intoxicants and placed him under arrest. Officer Herfurth advised defendant of his constitutional rights and put him in the patrol car. Officer Frazier made another brief search of defendant’s automobile and locked it. The officers then proceeded to the scene of the automobile accident with the defendant seated in the back seat of the patrol car.

When the officers arrived at the scene of the automobile accident, they requested Deputy Sheriff George J. Lee of the Tulare County sheriff’s office, who was already there, to take custody of defendant while they investigated the accident. ’ Lee placed the defendant in the rear seat of his own patrol car and transported him to the county jail. Afterwards the. deputy searched the rear seat of his patrol car. He found a cigarette rolled in brown paper which appeared to contain marijuana. Lee radioed Herfurth and Frazier and informed them of his discovery.

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The highway patrol officers completed their accident investigation, and then they met Deputy Sheriff Lee at defendant’s automobile. The automobile was unlocked by Officer Frazier and a second search was made of the vehicle; Deputy Lee did most of the searching while Officers Frazier and Herfurth completed a thorough inventory. Partially smoked cigarette butts were removed from an ash tray on the driver’s side of the vehicle, and a cellophane envelope was removed from a leather shaving kit found in the trunk.