People v. Martines

ROTH, J.

Appellant was convicted of violating Health and Safety Code, section 11530, possession of marijuana. No question of the sufficiency of the evidence is raised; appellant’s sole ground for reversal is the inadmissibility of the contraband because of an illegal search and seizure.

[246]

On July 21, 1963, at 1:15 a.m., Officers Germann and Rosenbroek, while patrolling a high-frequency burglary area, noticed appellant and two companions walking through an unlighted alley at the rear of a closed business area. The officers stopped and asked appellant for some identification. He stated that he had none. Officer Germann testified that he then made a cursory search, "due to the darkness in the alley and for my own safety, ...” This was a search merely of the outside of appellant’s clothing.

“As I ran my hands over his left pants pocket, left front pants pocket, I felt a hard object and an object below that, which felt like it was a knife. At that time I went into defendant Martinez’s

[sic]

pocket....”

The officer continued: “As I reached into the defendant [appellant] Martinez’s

[sic]

pocket, front pants pocket, in an effort to remove the knife I first removed what felt like a wad of paper. I removed this in order to reach the knife. Upon examining this paper wad, I found it to be nine hand-wrapped cigarettes. At that time I removed the knife from the defendant Martinez’s

[sic]

pocket and made further examination of these cigarettes.

“I unrolled one end of one and found inside a green leavy [sic] substance that appeared to be marijuana. I questioned the defendant [appellant] Martinez [sic] as to his reason for being in the alley, and he stated he was going to the Coral Room bar, which is located west of the location where the vehicle was parked.”

On cross, the officer, among other things, testified that he felt two hard objects and one felt like a knife. The object was about 3 inches long. He could feel no blade. The officer admitted appellant made no threatening moves and there was no testimony that the appellant made any offensive or aggressive statements. When asked directly whether he could determine from feeling the hard object that felt like a knife whether it was a “... pocket knife that one could legally possess?” the officer responded “No, I could not determine that at that time, no.”