People v. Fahrner , 28 Cal. Rptr. 926 ( 1963 )

213 Cal.App.2d 535 (1963)

THE PEOPLE, Plaintiff and Respondent,
v.
RICHARD FAHRNER, Defendant and Appellant.

Crim. No. 4083.

California Court of Appeals. First Dist., Div. Three.

Mar. 4, 1963.

H. Theodore Craig III, under appointment by the District Court of Appeal, for Defendant and Appellant.

Stanley Mosk, Attorney General, John S. McInerny, Robert R. Granucci and Eric Collins, Deputy Attorneys General, for Plaintiff and Respondent.

DEVINE, J.

[1] Appellant, who was charged with violation of section 11530 of the Health and Safety Code, by unlawful possession of marijuana, contends that the search of his person, which produced a marijuana cigarette from his pocket, was illegal. Officers had arranged a meeting between appellant and a decoy for the officers, to take place in a school where the decoy was employed as a janitor. The officers did not see a meeting between the decoy and appellant, but were told by the former that the two had met and that appellant had marijuana on his person. Shortly after appellant had emerged from the school, one of the officers called to him, "Just a minute." Appellant stopped, both hands being in his pants' pockets. The officer "asked him would he please take his hands out slowly," and appellant complied. The officer then asked him if he minded being searched and he said, "No, I have nothing against you searching me. I have nothing on me at all." The officer proceeded to search appellant, and in his pocket found a marijuana cigarette within a tightly compressed roll of currency. This is the officer's testimony, and although it was flatly contradicted by appellant, the factual determination was for the trial court. (People v. Cunningham, 188 Cal.App.2d 606, 609 [10 Cal.Rptr. 604].)

[2] It is not necessary for the People to show that the search was reasonable as incident to a proper arrest when the search is made with defendant's consent. (People v. Burke, 47 Cal.2d 45, 49 [301 P.2d 241]; People v. Silvers, 196 Cal.App.2d 331, 335 [16 Cal.Rptr. 489]; People v. Valdez, 188 Cal.App.2d 750, 755 [10 Cal.Rptr. 664].)

Judgment affirmed.

Draper, P. J., and Salsman, J., concurred.