People v. Reed

ASHBURN, J. The People appeal from an order granting defendant’s motion under section 995, Penal Code, to set aside the information charging defendant with possession of marijuana in violation of section 11530, Health and Safety Code. The basis of the ruling seems to be that indispensable evidence was procured by an unreasonable search of defendant’s person and seizure of the proscribed marijuana found on him. The trial judge remarked that “it is a borderline case and we might as well stop it now if it can’t possibly result in a conviction,” and, “ [l]et’s get a new transcript.”

On August 12, 1961, at about 8:45 p.m., Police Officers Burke and Kofahl were driving west on 103d Street in Watts, Los Angeles County, and observed a 1950 Studebaker sedan coming east on the same street. It pulled into a parking lot, stopped, backed into and across 103d Street, causing several oncoming cars to stop rapidly to avoid hitting it. The Studebaker then went west on 103d Street to Success Street, where it turned north to 102d Street, at which point it was stopped by the officers. Kofahl asked defendant to step to the rear of the car and both officers there talked to him. Burke “asked him for identification and if he had a driver’s license,” to which he replied, “No, I’ve no identification.” Burke then make a “cursory search” of him and felt a packet of papers in his shirt pocket; removing it he noticed it was brown cigarette papers. Asked if “he smoked any weed—indicating marijuana”—Reed said, “I do”; also that he had none on him. To an inquiry as to where he got it he said, “I’m not about to tell you.” Asked if he had any weed he said, “No, but I bought a can approximately one week ago, but I don’t have any left.” The officers decided to arrest him and take him to Watts substation “for investigation due to the fact that he had no identification and he couldn’t even prove his true identity” (quoting Officer Burke’s testimony); this they did.

The officers had witnessed the commission of a misdemeanor by Reed—backing out of private property without yielding the right of way to oncoming traffic (Veh. Code, § 21804) and he was subject to arrest without a warrant under Penal Code section 836, subdivision 1 (5 Cal.Jur.2d, §8, p. 155). After the officers had talked with him he was also subject [578]to arrest under subdivision 3 of the same section—“reasonable cause to believe that the person to be arrested has committed a felony, ’ ’ through purchase and possession of a can of marijuana a week before. (See People v. Rios, 46 Cal.2d 297, 298 [294 P,2d 39]; People v. Handy, 200 Cal.App.2d 440, 444-445 [19 Cal.Rptr. 409].) Indeed, an arrest for the misdemeanor was imperative, for the officers had witnessed the commission of the offense (5 Cal.Jur.2d, §7, p. 155). Section 40302, Vehicle Code provides: “Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases: (a) When the person arrested fails to exhibit his driver’s license or other satisfactory evidence of his identity. . . ,”1 Officer Burke’s terming their taking him into custody as an arrest “for investigation” is unimportant, for the commission of the misdemeanor had been witnessed by the officers, the law impliedly commanded an arrest, and section 40302 required that the offender be taken before a magistrate promptly. People v. Knox, 178 Cal.App.2d 502, 513 [3 Cal.Rptr. 70] : “The knowledge and the information of the officer at that time was ample to meet the statutory test. It is true that at the trial of this cause the officer testified that he had been in doubt as to whether appellant was guilty of a violation of said section 501 of the Vehicle Code. It is not the actual state of the officer’s mind that is determinative. It is the circumstances that determine the right to arrest, and if they be such as to constitute reasonable cause for believing that a felony has been committed the officer may arrest, even though he has some doubt about the matter.”