People v. Brown

BURKE, P. J.

The People appeal from an order of the superior court of August 16, 1961, granting defendant’s motion, under section 995 of the Penal Code, to set aside an information charging defendant with one count of violating section 11530 of the Health and Safety Code, to wit, possession of marijuana, a narcotic.

On November 17, 1961, the People filed an opening brief and on March 29,1962, defendant was given notice as specified in rule 17(b), California Rules of Court.

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Defendant has not filed a brief or a request for hearing as provided in the rules. After decision by this court on June 6, 1962, a rehearing was granted on June 21, 1962, and the matter was resubmitted upon the record and briefs on file.

At approximately 11:50 p. m. on June 18, 1961, Police Officer Lamoreaux was in a police vehicle with his partner. He recognized the driver of another vehicle as being Samuel Twitty, who was wanted for assault with a deadly weapon. He had received information concerning Twitty from the files in the detective bureau, which also gave the name of a female suspect, Gladys Donaldson.

The police car proceeded to turn behind the other vehicle and stopped it. At the preliminary hearing the officer stated that prior to stopping the vehicle he “observed there were three ladies in the back seat and you could see some arms and movement in the back seat that didn’t seem to appear normal.” By “normal” he explained he meant “it was not usual.” After stopping the vehicle the officers had Twitty get out and made a cursory search of him for a weapon. In the assault with a deadly weapon charge the weapon used was a large pocket knife. The officers were unable to find the knife either on Twitty or in the vehicle. The officer then asked the three ladies to step out of the car and asked them “if they would mind opening their purses.” He also asked them for identification. He did not recall at what point he found out which of the three ladies was Gladys Donaldson. His purpose in asking

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them to open their purses was to see if any one of them contained a large switchblade knife.

The officer said defendant “just opened her purse and then stated, ' There is nothing in here, ’ or something, and moved her hand back and forth, and moved the articles around in the purse.” He did not see any knife in the purse, but on the bottom he stated he saw ‘‘ a red capsule which had some silver foil wrapped around it. This appeared to be a seeonal, which is commonly known as a red devil.”