People v. Smith

The People appeal, pursuant to subdivision (7) of section 1238 of the Penal Code, from an order dismissing a prosecution after an order, pursuant to section 1538.5 of that code, suppressing certain evidence. We affirm the order.

Police officers, on routine patrol, in the early morning hours, observed defendant and a man named Brown engaged in a fight. They intervened and, concluding that defendant was intoxicated, they arrested him for a violation of subdivision (f) of section 647 of the Penal Code. He was handcuffed and placed in the patrol car. Allegedly because a person (thought to be defendant’s father) told the officers that “there was a gun,” a pat-down search was made. One officer felt, in defendant’s pants pocket, what he thought was a clip of ammunition; it was removed and turned out to be marijuana. Defendant was then .formally arrested for possession of marijuana, in violation of section 11530 of the Health and Safety Code. The present case grows out of his prosecution on that later charge.

In view of the holding we make in this case we need not discuss a large number of points briefed and argued before us. We assume, for the purpose of our decision: (1) that…