Schulle

The People appeal from an order dismissing a criminal action following the granting of defendants’ motion to suppress evidence pursuant to Penal Code section 1538.5. The question presented is whether the motion to suppress was properly granted.

Lieutenant George D. Roxon of the Lake County Sheriff’s office presented to the magistrate an affidavit for issuance of a search warrant which stated that on June 6, 1974, he was contacted by Kimberly M. Simmons, who gave him the statement attached to his affidavit and incorporated therein by reference. In his affidavit Roxon states that Miss Simmons told him “that on a number of occasions she has seen marijuana, recognizes its appearance, has smoked it and recognizes its smell.”

The statement taken from Miss Sfmmons which was attached to Roxon’s affidavit as Exhibit “A” reads as follows:

The search warrant was issued by the magistrate. Pursuant to the search the officers discovered the Roi-Tan cigar can containing marijuana, two plastic baggies of marijuana, a quantity of LSD and amphetamines.

Lieutenant Roxon is a presumably reliable person. Accordingly, when he attested to the truth of the matters alleged in the affidavit,…