People v. One 1941 Cadillac 4-Door Touring Sedan

BARNARD, P. J. This is a proceeding under the provisions of division 10, chapter 7 of the Health and Safety Code to establish that an automobile had been used to transport narcotics and to declare it forfeited to the state. The owner and driver of the car, one McKinney, was arrested in San Diego about 3 o’clock a. m. on June 8, 1942, on a charge [372]of driving while under the influence of liquor. He was booked at the city jail at 3:20 a. m. when he was searched. Shortly thereafter, two brown cigarettes which contained marihuana were found on a shelf with articles which had been taken from McKinney’s pockets. In this proceeding, which followed, the court found in favor of the defendant and entered a judgment ordering the ear released to McKinney. The People have appealed from the judgment upon the sole ground that there is no evidence whatsoever to support the findings and judgment, and that all of the evidence is clearly and directly contrary thereto.

It appears that in the booking office of this jail there was a counter on which were a number of things used for clerical purposes. About six inches above the counter was a shelf. There was grill work around the counter and the shelf with a small window therein, through which the shelf could be reached.

Sergeant Lynch testified that he was present when McKinney was brought in; that officers Weathers and Krause were also there; that he did not watch officer Weathers search McKinney; that he paid no attention to this search until his attention was called by officer Krause to two home-made cigarettes “laying on that shelf”; that there had been nothing on this shelf when McKinney was brought in; that Krause remarked that he believed these cigarettes were marihuana and that it would be wise to notify the proper officers; that this conversation was in the presence of McKinney and officers Krause and Weathers; that he did not discuss these cigarettes with McKinney; that the cigarettes were discovered when McKinney’s left-hand coat pocket had been emptied; and that officer Weathers then proceeded to search the right-hand pocket. He also testified that on that day he went to work at 3 o’clock in the afternoon and left the jail at 11 o’clock that night, and that McKinney was brought in and searched between those hours.

Officer Weathers testified that he searched McKinney on this occasion. To a question by the court as to whether he took these cigarettes from the man’s pocket he replied: “Well, sir, I don’t know. I searched the man. There was nothing on the counter at the time, on the ledge I placed his belongings on, and the cigarettes appeared there. However, I did not see them as I took them out of his pockets. I couldn’t swear that I took them directly from his pockets.” He further testified