People v. Ross

FILES, J.

Defendant was found guilty after a court trial of possessing marijuana in violation of Health and Safety Code, section 11530. The question raised by this appeal is whether the narcotic found on defendant’s person just prior to his arrest was the product of an unlawful search.

The only evidence of the circumstances surrounding de

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fendant’s search and arrest was the testimony of one of the arresting officers. Officer Portney testified that on April 5, 1962, about 6:17 p.m., he and his officer companion learned over their patrol ear radio that there had been a robbery and shooting at a paint store on Florence and Hooper in Los Angeles. The broadcast described the suspects as two male Negroes, 5 feet 9 inches to 6 feet, approximately 25 years old, one wearing a red sweater and the other a black and white sweater with dark pants. About 6:20 p.m., while driving on Hooper Avenue about three-quarters of a mile from the scene of the robbery, Officer Portney observed a car parked on the east side of Hooper. Two men were seated in the ear. The man behind the driver’s wheel wore a black and white sweater; another, seated in the back of the ear, was clad in a red sweater. A third man, the defendant, was observed getting into the car. It does not appear in the record, but we assume in favor of the judgment that the men wearing sweaters were Negroes. The men were ordered to get out of the car, which they did willingly. They were then searched for weapons. None was found. The officer testified that the man in the black and white sweater was 5 feet 9 inches tall and 24 years old.

The other events preceding the search were described by the officer in the following testimony: “Q. Were you speaking to the driver or the man seated behind the steering wheel? A. Yes, who stated that he had been out driving around since five o’clock with the suspect in the back seat and that they saw the defendant on the corner and decided to give him a ride. The person in the back seat stated that they were supposed to meet him there at the location. Q. All right. Then did you go ahead and continue to search the three men? A. Well, then, because of conflicting stories, we gave them a further search. We searched the ear and we searched them, looking for evidence of the robbery, and we found in the right front jacket pocket of the defendant two brown paper cigarettes which resembled marijuana.” Upon questioning, defendant admitted that these cigarettes contained marijuana and that he had purchased them from an unknown person at 68th Street and Central about a half hour earlier. The three men were then placed under arrest “for suspicion of robbery, and... for narcotics.”