People v. Wright

JEFFERSON, J. This is an appeal from a judgment entered against defendant upon his conviction of possession of marijuana (Health and Safety Code § 11530).

We reverse the judgment because, in our view, it rests upon an illegal search and seizure.

The case was submitted to the trial court upon the testimony of the arresting officer as contained in the transcript of the preliminary hearing. No additional evidence was offered except a stipulation that defendant was deemed to have been called and to have testified that he did not consent to the search.

It was further stipulated that the trial court would decide the question of the legality of the search on the basis that no consent to it was given by defendant. We have no choice but to decide the matter on the same basis.

On the issue of probable cause, Police Officer John Givens testified that, at approximately 11:30 p.m. on January 20, 1963, he observed defendant standing with another man on the northeast corner of the intersection of Highland and Sunset Boulevard. They appeared to be hitchhiking. The officer, who at the time was driving in a police vehicle with a fellow officer, pulled over to talk with them. After his partner made a cursory search for weapons and found none, Givens noted that the pupils of defendant’s eyes were “very dilated. ’ ’

The officer testified as follows: “I observed the defendant’s eyes, the pupils of his eyes to be very dilated. This was [737]brought to my attention primarily because he was standing in a well-lighted area on the street there.

“At this time I compared the pupils of my partner’s eyes with the use of a flashlight and found my partner’s eyes to be considerably smaller than the defendant’s.

“During the entire conversation with the defendant I noticed no evidence of alcohol on his breath. ’ ’

After making his observation of the condition of defendant’s eyes, Officer Givens asked defendant if he had anything on his person that he should not have, and defendant answered negatively. Although Givens further testified that he then asked if defendant minded if he searched defendant’s pockets and that defendant replied “No, go right ahead,” the latter evidence, according to the stipulation referred to above, was not considered by the trial court in reaching its decision. The case was decided on the assumption that no consent was given.