Biehl

Defendant moved the superior court under section 995 of the Penal Code to set aside the information on the ground that the marijuana which he is charged with possessing was obtained by illegal search and seizure. The motion was granted and the People appeal from the order of dismissal.

The only witness who testified for the People at the preliminary hearing was state narcotic agent Noel. It was stipulated that the state chemist, if called, would testify that the 15 cigarettes found in defendant’s apartment contained marijuana.

Noel’s testimony that the defendant consented to the search was contradicted by the testimony of defendant and his wife. The committing magistrate stated that he was resolving this conflict in favor of the People and he thereupon held the defendant to answer. (Pen. Code, § 872.)

The superior court placed its own independent interpretation upon the evidence adduced at the preliminary hearing and concluded (1) that the agents had obtained admittance into defendant’s apartment by a subterfuge and (2) that they had then so conducted themselves that defendant’s consent to the search of his apartment was in submission to an implied assertion of authority.

It…