People v. Marchese

LILLIE, J. The People appeal from order dismissing an information on defendant’s motion under section 995, Penal Code. Defendant was charged with one count of possession of marijuana and two counts of possession for sale of dangerous drugs.

Around 4:40 a.m. on September 8, 1968, defendant, driving a 1967 Mercury Cougar, ran into a building; Officer [1008]Gibson arrived on the scene at about the same time. He saw the car on the wrong side of the street resting against the building; defendant, the sole occupant, was seated behind the wheel; the Cougar had major front end damage. The officer asked him if he was hurt; defendant said he was not but that he was drunk; the officer told him to get out of the vehicle but he was unable to do so unassisted. Defendant seemed to be unsteady and in a dazed 'condition, his eyes appeared to be watery and glassy and a strong odor of alcohol emanated from his breath; the officer concluded that he was intoxicated. Defendant was arrested for' drunk driving (§ 23102, subd. (a), Veh. Code) and advised of “applied [sic] consent,” and his constitutional rights; defendant chose a blood analysis and Officer Gibson took him to St. Luke’s Hospital for a blood test and then booked him.

Officer Scanned, who arrived at about the same time as Officer Gibson, saw defendant seated behind the steering wheel and observed that he seemed dazed; defendant had a slurred accent and his balance was such that Sergeant Teal had to assist him in getting out of the vehicle; the officer was present when defendant was arrested and knew that Officer Gibson was taking him to the hospital for a blood alcohol test. After defendant was removed Officer Scanned remained at the scene to make out the accident report and impound the vehicle; as a check list he used the Highway Patrol Check Sheet Form 180 to record anything of value found in the vehicle; he proceeded to inventory the contents of the interior of the ear; when he came to the spare tire he was to check, he discovered the trunk was locked and the key to it was not in the car; he passed over this item and continued with the inventory; before he completed it the tow truck arrived and while the driver, Mr. Clark, was sweeping the debris off the street, Clark found in the debris the key to the trunk. Officer Scanned then opened the trunk and saw a closed duffel bag which he unzipped and in which he found several plastic bags containing miscellaneous cigarettes and leafy material, measuring spoon with a burned bottom, corn cob pipe and pill containers containing capsules and pills; in the trunk he also found a colander, sifter with marijuana residue, plastic container and Zig Zag papers. It was established that the duffel bag contained marijuana and dangerous drugs—-8 hand-rolled marijuana cigarettes, 6 grams marijuana, 1 gram hashish, 400 amphetamine tablets and 135 sodium secobarbital capsules.