People v. Superior Court

WAPNER, J. pro tem.

*

This is a petition for writ of mandate under section 1538.5 of the Penal Code.

An officer testified that he arrived at a certain location at 10:30 a.m. after a phone call by a citizen that a man was sleeping in a car.

The officer found the defendant sleeping on the front seat of a vehicle, observed no wrongdoing. He knocked on the window of the automobile and aroused the defendant and asked him to step from the vehicle. He did not recall whether the defendant had rolled the window down. While talking to the defendant outside of the automobile the officer then observed a red capsule on the front seat, picked it up, had his partner admonish the defendant as to his constitutional rights, after which he asked the defendant what it was. The defendant said: “It is a red.” The officer asked him if he had a prescription for the “red” and the defendant said he did not, whereupon the defendant was placed under arrest.

The witness had on prior occasions made arrests in the course of which he had seen what appeared to be Seconal and

[365]

the red capsule he saw on the seat of defendant’s automobile resembled Seconal.

The officer testified that he asked the defendant to leave the automobile because he wanted to talk to him regarding his presence in the area and why he was sleeping in his car. After defendant stepped out of the automobile he asked the defendant why he was in the area. Defendant replied that he had had a disagreement with his mother regarding a party he had had at his mother’s house and that they weren’t getting along, so he took his belongings and moved out. The officer did observe suitcases in the car. All this was before the defendant was placed under arrest.

The officer did not see anything with respect to the defendant that would indicate to him that the defendant was either drunk or under the influence of anything.

It is well established that one who is in an automobile which is parked upon a street is in a public place.

(People

v.