People v. Johnson

JEFFERSON, J.

Defendant appeals from the judgment entered upon his conviction of possession of marijuana. He contends that the conviction was the result of an illegal search and seizure.

Thomas Harvey and Officer David Bailey testified for the

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prosecution. At about 1:45 a.m., Mr. Harvey was driving home when he stopped at an intersection for a red signal light. While he was waiting for the light to change another automobile entered the intersection and skidded broadside into his car. The man driving the other car immediately backed off and drove away from the scene of the accident. Harvey managed to get his car over to the side of the road and telephoned the police. Officer Bailey arrived about 45 minutes later and took a report. Harvey then called his wife. After she picked him up in their other car, they began to drive around the area looking for the hit-run ear. Harvey did not believe it could' have been driven far because of the way it was damaged. About six or eight blocks from where the accident occurred Harvey spotted the ear. It was parked by the side of the road. They found a police car, told the officers in it what had happened and the officers followed them back to where the hit-run ear was parked. Harvey pulled in front of the car and watched as the officers approached it on foot. They opened the door and discovered a man lying on the front seat, apparently asleep. The officers got the man out of the car and Harvey recognized him as the person who was driving the car when it struck his car. The man was defendant.

Harvey did not approach defendant but remained with his wife at their ear about 20 or 30 feet away. After informing the officers that defendant was the hit-run driver, Harvey asked them if they were going to arrest him. They responded that, since Harvey was not hurt in the accident, the offense committed by defendant was a misdemeanor, and they could not arrest defendant for a misdemeanor. Harvey told the officers that he wanted defendant arrested. The officers then handcuffed defendant and placed him in the back seat of their police car.

About 20 minutes later Officer Bailey (the officer who had taken the initial accident report) drove up. Bailey was informed that defendant had been placed under arrest; that it was a citizen’s arrest for misdemeanor hit and run which had been effected by the citizen with the assistance of the two officers. Bailey then removed defendant from the police car and, preparatory to putting him in his own vehicle, conducted a patdown of his person. He felt a round, hard object in defendant’s right front pants’ pocket which he thought might be a knife. He withdrew the object. It was a tightly wrapped paper bag containing marijuana (which was subsequently introduced against defendant). After making this