Leach v. Marshall K.

Opinion

STONE, P. J. Marshall K., a minor, was brought before the juvenile court by petition alleging him to be within the provisions of section 602 of the Welfare and Institutions Code, in that he possessed marijuana in violation of section 11530 of the Health and Safety Code. The allegations of the petition were found to be true, and he was released to the custody of his parents. He has appealed upon three grounds: first, that the search of his automobile was made without probable cause, from which it follows that the products of the search were illegally seized; second, that an occupant of the car, a minor, whom he called as a defense witness, was improperly permitted to invoke his right under the Fifth Amendment not to answer certain questions; third, that the record does not reflect that the juvenile court judge found the allegations of the petition to be true beyond a reasonable doubt as required by the United States Supreme Court in In re Winship, 397 U.S. 358 [25 L.Ed.2d 368, 90 S.Ct. 1068].

The Attorney General concedes Winship error, but the other two grounds of appeal are sharply contested.

The facts surrounding the search and seizure are as follows: About 8:05 p.m. on October 20,1969, an officer in the City of Exeter observed a Falcon automobile occupied by the driver and three passengers. Appellant was the driver, a girl was in the middle of the front seat, Timothy Gentry was on the passenger side, and John Gauntt was alone in the rear seat. The officer noticed that the light over the license plate was out, so he drove his car in behind appellant’s car, turned his headlights to high beam, switched on the red light, and followed the car until it stopped. While the driver was slowing to a stop, the officer observed Gentry turn around, look out the back window, turn back toward the front and bend over, wriggling his shoulders, then raise up and put his right hand to the top of the sun visor, which he pulled down part way, pushed it back up, and removed his hand. To the officer it appeared as though Gentry might be hiding liquor, a weapon, or contraband material.

The officer walked to the driver’s side of the car and asked the driver [98]for his license, which he produced. The officer leaned down, shined his flashlight into the car, and recognized Gentry, whom he had seen before and who, he had heard, was involved in the traffic of narcotics. He recognized Marshall’s name, and recalled that he had allegedly been involved in narcotics by two written statements given by third parties who were charged with possession of marijuana. The officer asked Gentry if he had hidden anything on the sun visor, and Gentry replied, “No.” When the officer asked why he had bent over and then put his hand on top of the sun visor, Gentry replied, “I didn’t even touch the sun visor.” Appellant volunteered, “That’s right, he didn’t touch it.” The officer walked around the vehicle, asked Gentry to step out of the car, and pulled down the sun visor, from which plastic bags containing marijuana, a package of cigarette papers and a matchbox bearing the legend “smoke pot” fell down. The other occupants were ordered out of the car, and all four were placed under arrest.