People v. Murrietta

[1003]

FLEMING, J.

Manuel Murrietta was convicted of possession of marijuana in violation of Health and Safety Code, section 11530, and committed to the Youth Authority. This appeal is from the judgment.

During daylight hours of May 2, 1965, California Highway Patrolman Norman White answered an accident call, and on his arrival at the scene he saw appellant alongside the driver’s side of a ear with a broken windshield. The pupils of appellant’s eyes were dilated, his speech was slurred, and he was swaying unsteadily on his feet, unable to maintain his balance. His breath did not smell of alcohol. Appellant had sustained a cut above his right eye and a contusion on his forehead, and at the time of Officer White’s arrival the blood on appellant’s face was congealing. Appellant refused to accept aid or go to the hospital.

After sizing up Murrietta’s condition, Officer White concluded that he was under the influence of alcohol or drugs and that because of this he was unable to care for himself. White testified he had investigated 1,000 to 2,000 traffic accidents in which there had been injuries, that 200 of these had involved head injuries, and that as a patrol officer he had observed 500 people who were drunk. Officer White arrested Murrietta for violation of Penal Code, section 647 subdivision (f), which makes it a misdemeanor to be “found in any public place under the influence of intoxicating liquor, or any drug ... in such a condition that he is unable to exercise care for his own safety. . . .’’Appellant was taken by ambulance to the jail section of Los Angeles County General Hospital to have his injuries checked, and at the hospital he was booked by Officer White and searched in the routine course of booking. The search uncovered a marijuana cigarette in the left breast pocket of his shirt.

Testifying on his own behalf Murrietta denied having the cigarette in his shirt pocket at the time of his arrest, and, alternatively, claimed that he did not know it was there. He obtained the shirt from a friend and had been wearing it for two days. He did not remember being with the officer at any time after the accident, or having been booked and searched at the hospital.

On appeal, Murrietta contends there was no reasonable cause to justify his arrest under section 647 subdivision (f), and, therefore, his arrest was unlawful. Since his arrest was unlawful, his search incident to that arrest was unlawful; since the search was unlawful, the product of that search, the