People v. Chilton

WHELAN, J.

Defendant appeals from a judgment of conviction of possessing marijuana (Health & Saf. Code, § 11530), by which he was sentenced to prison for the term prescribed by law.

For more than 30 days prior to October 2, 1964, defendant had been living in the City of Garden Grove in Orange County. He was subject to the requirements of section 11850, Health and Safety Code, for a prior offense involving the use

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or possession of narcotics but had not registered with the chief of police as required by that section. He was living in a two-story apartment building which had been under prior occasional observation by the police since September 24.

Officer Nourse obtained a warrant for the arrest of defendant for violation of section 11850, Health and Safety Code, on October 2; the warrant was endorsed for service at night; in the evening Officer Nourse and his partner, Roth, went to defendant’s apartment where they observed about 50 people between the ages of 17 and 25 years going into and coming out of the apartment and congregating on the front lawn and steps; the outside door of the apartment was open. Many of the crowd, most of whom were of high school age, held bottles and cans of beer; one of those who had beer appeared to be a minor. Because he feared possible interference from the crowd in making the arrest, Nourse called for assistance; about 11 o’clock at night the amount of activity in and about the apartment had lessened and four police investigators had arrived to reinforce Nourse. Nourse, having recognized the defendant through the open door from photographs, then walked in, announced his identity, displayed and read the warrant to defendant, and declared defendant under arrest. Nourse told defendant he had a right to counsel and a right to remain silent. Nourse then asked the defendant to submit to a search, and started to make a search of defendant’s person; defendant struck at Nourse. A scuffle ensued in which defendant went to the floor but continued to strike out with his arms and legs until subdued by Nourse and Roth.

Roth then searched the person of defendant and found in a trouser pocket what was recognized by Nourse, who had some expertise on the subject, as a partially-smoked marijuana cigarette, 1 to 1½ inches in length. Upon seeing the cigarette, the defendant said, “Hey, man, I have been planted.’’