Brewer

—As originally enacted, Oakland Municipal Ordinance section 3-4.21 (hereafter the Ordinance) provided in pertinent part: “No person shall drink or have in his possession an open container of any alcoholic beverage: (1) On any public street, sidewalk, or other public way; (2) within 50 feet of any public way while on private property open to public view without the express permission of the owner, his agent, or the person in lawful possession thereof.”

On the evening of April 17, 1988, Oakland Police Officer Timothy Sanchez observed defendant George Brewer standing in front of a liquor store and apparently drinking from a container enveloped in a brown paper bag. Seeing Sanchez, defendant set down the bag and began walking away. Sanchez checked the bag and found it contained a partially consumed can of beer. Believing that he had observed a violation of the Ordinance, Officer Sanchez initiated a detention that led to his discovery of cocaine on defendant’s person.

Based upon this incident, defendant was charged with possessing cocaine base in violation of Health and Safety Code section 11350. The magistrate who conducted the preliminary examination denied defendant’s…