Markham v. Superior Court

VALLÉE, J. Proceeding for a writ of prohibition to prevent the trial of a criminal action in which we issued an alternative writ.

Petitioner and one Duarte were held to answer for violation of Health and Safety Code, section 11500, possessing marijuana. An information was filed charging them with that offense. The information was amended to charge them with that offense in count I and to add count II, charging petitioner with giving marijuana to a minor of the age of 14 years in violation of section 11714.

Petitioner’s motion to set aside the amended information on the ground he had been committed without reasonable or probable cause in that the evidence presented against him was obtained by an illegal search and seizure was denied.

The evidence at the preliminary hearing showed that Officer Birr of the Redondo Beach Police Department on reporting for duty about 4 p.m. on July 20, 1958 read a note in the log sheet maintained at the police station which recited that an informer had been in the station and had stated that petitioner, Duarte and another person were supposed to be making a trip to Tijuana (sometimes called Tia Juana) to get marijuana and bring it back to Redondo Beach. Birr [388]testified that, on his inquiry, other officers told him the name of the informer.

About 9:15 p.m., Birr saw petitioner and Duarte get out of their automobile and walk toward the sidewalk. Birr and a shore patrolman, who was with him, stopped petitioner and Duarte, placed them under arrest, and searched their persons and the automobile. Nothing was found on the bodies of the suspects. A brown paper sack containing marijuana was found in the glove compartment of the automobile.

On cross-examination Birr testified he had neither an arrest nor a search warrant; he had not seen or made any surveillance of the suspects prior to the arrest and search; the only reason for his action in stopping petitioner and Duarte was because he had read the log sheet at the police station earlier in the day; and neither petitioner nor Duarte gave consent to the search of the vehicle.

During the cross-examination of Birr he was asked to state the name of the informer. The magistrate sustained the prosecution’s objection, and denied petitioner disclosure of the name on the ground of privilege. (Code Civ. Proc., § 1881, subd. 5.)