People v. Brown

Defendant was charged by information with possession of marijuana, in violation of Health and Safety Code section 11530. A prior burglary conviction was also alleged. Defendant pleaded not guilty to the charges and waived jury trial. The matter was submitted on the transcript of the preliminary hearing of June 20, 1966, with each side reserving the right to offer additional evidence. Defendant

On June 13, 1966, at approximately 10:45 p.m., two uniformed police officers on foot patrol observed defendant sitting behind the wheel of a car parked at the end of a supermarket parking lot. The motor was not running, the car windows were closed, and the car lights were off. The market had been closed for over an hour. The officers had been assigned to the area for some time and were aware of the complaints of persons drinking liquor on the lot, throwing bottles on the sidewalk, and “other criminal activity” in the area. The officers proceeded to walk through the lot towards the car. They noticed a whiskey bottle lying on the ground below and just outside the door of the car on the driver's side. When they were about 15 or 20 feet from the door, defendant turned his head and appeared to look at them. Defendant then suddenly bent down in the front seat, as though to hide a bottle, lying with his left side out of sight and in the darkness of the car for three or four seconds. The officers walked to the door, and the defendant was still bent over in the front seat. One of the officers then knocked on the door to attract defendant's attention. Defendant noticed the officer and sat up. The officer asked him to roll down the window of the car. As the window was electrically operated, the car key had to be used to turn on the ignition. Defendant fumbled for the key, and the officer shined his flashlight in the car so defendant could find the ignition. Defendant then turned the ignition on and lowered the window. When the window was down, the officer observed heavy smoke in the car and smelled the odor of burning marijuana. The officer testified that he had had previous experience in smelling this odor.

Next, the officer asked defendant to step outside the car, and defendant did so. When the car door opened, the inside car lights went on, and the vehicle’s interior was illuminated. The officer then observed numerous filter-type cigarettes in the car. He also observed a partially smoked, hand-rolled cigarette

The officer questioned defendant about the cigarette and then picked it up. (At trial it was proved to be marijuana.) At this time the second officer observed á slight amount of debris at the corner of defendant's mouth, and asked defendant to open Ms mouth, which he did. The officer testified he saw some greenish-brown leafy material inside, and to the officer, this meant that defendant had possibly eaten a marijuana cigarette. The officer was not able to examine the material, however, to ascertain its nature.

Defendant first contends that there was insufficient evidence to support the trial court’s finding that there was reasonable cause for the police officers to investigate, search, and detain defendant. We recognize the right of the police to investigate if the circumstances reasonably indicate investigation is necessary. In People v. Mickelson, 59 Cal.2d 448 , 450 [ 30 Cal.Rptr. 18 , 380 P.2d 658 ], our Supreme Court held “that circumstances short of probable cause to make any arrest may still justify an officer’s stopping pedestrians or motorists on the street for questioning. If the circumstances warrant it, he may in self-protection request a suspect to alight from an automobile or to submit to a superficial search for concealed weapons.” This ease recognizes that circumstances'short of probable cause may often necessitate immediate investigation, and confirmed the broad powers of police officers to investigate suspicious persons on the street. Further, the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 [ 20 L.Ed.2d 889 , 88 S.Ct. 1868 ] and our Supreme Court in People v. Curtis, 70 Cal.2d 347 , 358 [ 74 Cal.Rptr. 713 , 450 P.2d 33 ] have distinguished between the “reasonable cause” sufficient for an investigation or stop and frisk, and the “probable cause” required for an arrest.

The record in the present ease shows ample facts which would constitute “reasonable cause” to justify the initial investigation by the patrolmen. Defendant’s presence in a parked car late at night on the lot of a closed market in an area where the police had received complaints of criminal

Finally, defendant argues that the trial court abused its discretion when it denied defendant’s request for probation.

It is well established that the placing of defendant on probation rests in the discretion of the trial judge, and a heavy burden is imposed upon a defendant to show abuse of discretion in denial of a request for probation. (People v. Herd, 220 Cal.App.2d 847 [ 34 Cal.Rptr. 141 ].) Defendant’s only offering to support his request is a favorable report from his former probation officer. Considering the many material facts in evidence which were known and considered by the court tending to disfavor probation, it cannot be said that as a matter of law the court abused its discretion. Defendant here has failed to carry the burden of showing any abuse of discretion.

The judgment is affirmed.

Kaus, P. J., and Reppy, J., concurred.