Tabb

The judgment of the trial court in this ease, made on April 6, 1961 (adjudging defendant guilty of unlawfully posessing heroin), was affirmed by this court in an opinion filed on October 16, 1962. (People v. Tabb, 208 Cal.App.2d 567 [ 25 Cal.Rptr. 541 .].) Thereafter, pursuant to direction of the Supreme Court of the United States, the remittitur herein was recalled and the judgment of this court was vacated in order to consider (in the light of Douglas v. California, 372 U.S. 353 [ 83 S.Ct. 814 , 9 L. Ed.2d 811 ]) the matter of appointment of counsel for defendant who had appeared in propria persona when this appeal was previously before this court.

This court appointed Mr. Justin M. Groshan as counsel for defendant.

The facts of the case were stated, in substance, in the *751 former opinion. The contentions of appellant, which were made when he was acting in propria persona, are discussed therein. The former opinion (People v. Tabb, 208 Cal.App.2d 567 [ 25 Cal.Rptr. 541 ]) is adopted by reference as a part of the present opinion.

Counsel for appellant asserts in effect that the court erred in receiving the heroin (Exhibit 1) in evidence, for the reason that the ofScers obtained it as a result of their illegal conduct in driving the police ear quickly and diagonally across the intersection toward appellant and thereby so intimidating him that he threw the heroin away.

Defendant was accused of unlawfully possessing heroin.

Some of the facts as stated in the former opinion were as follows:

As above indicated, counsel for appellant asserts that the officers’ conduct in driving the car constituted “investigation by fear and attempted intimidation.” Counsel for appellant cites cases wherein officers had illegally entered a house, or apartment, or hotel room, and as a result of such entry the defendants disposed of contraband. Some of those cases are: People v. Haven, 59 Cal.2d 713 [ 31 Cal.Rptr. 47 , 381 P.2d 927 ]; Badillo v. Superior Court, 46 Cal.2d 269 [ 294 P.2d 23 ]; People v. Reeves, 1 (Cal.App.) 34 Cal.Rptr. 815 ; Hood v. Superior Court, 220 Cal.App.2d 242 [ 33 Cal.Rptr. 782 ]. He also cites Gascon v. Superior Court, 169 Cal.App.2d 356 [ 337 P.2d 201 ], wherein the officers (without probable cause for arrest) while questioning defendant who was in an automobile told him they were going to search him, and there *753 upon the defendant attempted to flee but during his flight he threw marijuana away.

The present case is distinguishable from the cited cases in that in the present case there was no illegal entry into a house, apartment, or hotel room, or a threat to arrest or search. In the present case, defendant’s furtive conduct of throwing the balloon and putting something in his mouth occurred while the officers, in a marked car, were approaching and before they said anything to him. In the present ease the heroin was not obtained illegally. This contention is not sustainable.

The judgment is affirmed.

Fourt, J., and Lillie, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied September 24, 1964. Mosk, J., did not participate therein. Peters, J., was of the opinion that the petition should be granted.

A hearing was granted by the Supreme Court on December 23, 1963. The final opinion of that court is reported in 61 Cal.2d 268 [ 38 Cal.Rptr. 1 , 391 P.2d 393 ].