People v. Almond

KINGSLEY, J.

Plaintiff was charged, by information, with a violation of section 11530 of the Health and Safety Code (possession of marijuana), with two prior felony convictions. He pled not guilty, trial by jury was duly waived and the matter was submitted on the transcript of the preliminary examination. He was found guilty as charged, the priors were stricken on motion of the People, probation was denied and a state prison sentence was imposed. He has appealed.

Two deputy sheriffs were advised, by a citizen,

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that a man was asleep in a parked car. At about 7:30 p.m., on July 4, 1964—it still being light—the officers arrived at the scene. The car was legally parked, and defendant was sleeping on

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the front seat, leaning against the right front door, the window of which was open. One officer touched him and spoke to him. Defendant awoke. In the officer’s words, “When I woke him up he looked at me and moved to the other side of the car very fast, to the driver’s side; then back to my side, and then back to the driver’s side again, and began reaching under the seat. ’ ’

Defendant was ordered out of the car and a cursory search for weapons was made. His face was flushed and he staggered and stumbled as he tried to get out, although the officer detected no odor of alcohol on his breath. The officer asked if he could look under the front seat, to which the defendant replied: “Sure, go ahead.” A search under the front seat disclosed “. . . three packages joined together with a rubber band, a yellow Whitman’s Sampler candy box, a package of Zig Zag cigarette papers and a plastic bag containing seeds resembling marijuana.” Defendant was then placed under restraint in the sheriff’s car; a search of the back seat of defendant’s car disclosed a package containing pills. While defendant was being booked at the station, a search of his person disclosed a cigarette in his shirt pocket. Thereafter, in conversations with the officers, defendant admitted that the cigarette was his and that it was marijuana.

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The sole point urged on us by defense counsel on this appeal is that the evidence against defendant was the product of an unlawful search. We do not agree. Under the circumstances, the officers clearly were entitled to awaken defendant and question him and, as an incident to that questioning, to ask, him to get out of the car and submit to a weapon search. Although defendant was, at that time, in at least temporary custody, the question of whether or not his consent to the search of the car was or was not voluntary was a question of fact to be decided in the first instance by the trial court. With no testimony by the defendant, we cannot say that, as a matter of law, the trial court ivas in error in making its finding that the consent was effective.