People v. McFarren

California Court of Appeal

People v. McFarren

317 P.2d 998, 155 Cal. App. 2d 383, 1957 Cal. App. LEXIS 1298

CourtCalifornia Court of Appeal

DecidedNovember 21, 1957

DocketCrim. 3416

StatusPublished

Cited by11 cases

This text of 317 P.2d 998 (People v. McFarren) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. McFarren, 317 P.2d 998, 155 Cal. App. 2d 383, 1957 Cal. App. LEXIS 1298 (Cal. Ct. App. 1957).

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Opinion

DRAPER, J.

The People appeal from an order dismissing the information. Respondent was charged with possession and transportation of marijuana. The motion to dismiss (Pen. Code, § 995) was based wholly upon the ground that the marijuana introduced at the preliminary examination was found in a search of respondent’s automobile made without reasonable or probable cause.

No objection of any kind was made to the introduction *384 of this marijuana in evidence. Thus respondent waived his right to assert that the narcotic was inadmissible because illegally obtained (Robison v. Superior Court, 49 Cal.2d 186 [316 P.2d 1], and eases cited therein). In fairness to the trial court, we point out that this decisive issue was not raised on argument of the motion. It is not even mentioned in appellant’s brief in this court.

Upon trial, the objection may well be made, and we feel required to comment upon the merits. Respondent went through a stop sign at 4 a. m., and was stopped by an officer in a patrol car. When one officer checked the registration slip, he saw a pistol under the front seat of respondent’s car. Respondent was then arrested for violation of Penal Code, section 12025, the glove compartment of his car was searched, and marijuana was found. If in fact the weapon was concealed, so as to be within the proscription of section 12025, but was in fact seen by the officer without a search and solely in the course of his checking of the registration slip, we consider that a search of the glove compartment for further weapons was justified. If such facts were found, they would distinguish People v. Molarius, 146 Cal.App.2d 129 [303 P.2d 350].

The order dismissing the information is reversed.

Kaufman, P. J., and Dooling, J., concurred.

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DRAPER, J.

The People appeal from an order dismissing the information. Respondent was charged with possession and transportation of marijuana. The motion to dismiss (Pen. Code, § 995) was based wholly upon the ground that the marijuana introduced at the preliminary examination was found in a search of respondent’s automobile made without reasonable or probable cause.

No objection of any kind was made to the introduction *384 of this marijuana in evidence. Thus respondent waived his right to assert that the narcotic was inadmissible because illegally obtained (Robison v. Superior Court, 49 Cal.2d 186 [316 P.2d 1], and eases cited therein). In fairness to the trial court, we point out that this decisive issue was not raised on argument of the motion. It is not even mentioned in appellant’s brief in this court.

Upon trial, the objection may well be made, and we feel required to comment upon the merits. Respondent went through a stop sign at 4 a. m., and was stopped by an officer in a patrol car. When one officer checked the registration slip, he saw a pistol under the front seat of respondent’s car. Respondent was then arrested for violation of Penal Code, section 12025, the glove compartment of his car was searched, and marijuana was found. If in fact the weapon was concealed, so as to be within the proscription of section 12025, but was in fact seen by the officer without a search and solely in the course of his checking of the registration slip, we consider that a search of the glove compartment for further weapons was justified. If such facts were found, they would distinguish People v. Molarius, 146 Cal.App.2d 129 [303 P.2d 350].

The order dismissing the information is reversed.

Kaufman, P. J., and Dooling, J., concurred.

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317 P.2d 998, 155 Cal. App. 2d 383, 1957 Cal. App. LEXIS 1298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcfarren-calctapp-1957.

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