People v. Cedeno

After a nonjury trial, defendant was convicted of possession of marijuana, with a prior felony conviction for possession of narcotics, in violation of section 11530 of the Health and Safety Code of the State of Cali

The Reliability of the Informer

Defendant’s main contention on appeal is that the informant, Louise Friend, was an unreliable informer, and that therefore the police, acting upon information received from her, did not possess the requisite reasonable and probable cause to justify the search of defendant’s premises without a search warrant or his arrest without a warrant of arrest. The basic rule is stated in People v. Torres, 56 Cal.2d 864 [ 17 Cal.Rptr. 495 , 366 P.2d 823 ], as follows: “A search without a warrant is proper where it is incident to a lawful arrest based on reasonable cause to believe that the accused has committed a felony. Such a search is not rendered unlawful merely because it precedes rather than follows the

The reliability of the informer goes to the very heart of the concept of reasonable cause. Whether or not a police officer acts upon reasonable cause, where he relies upon information given by an informer, depends, in each instance, upon whether the reliance on the information was reasonable. (See Willson v. Superior Court, supra, p. 294.) Accordingly, to justify reliance on the information received it is now firmly established in this state that the information must come from a reliable informant. (People v. Prewitt, supra; People v. Roland, 183 Cal.App.2d 780 , 784 [ 6 Cal.Rptr. 895 ]; People v. Amos, supra, pp. 508-509; People v. Dewson, 150 Cal.App.2d 119 , 128 [ 310 P.2d 162 ]; Ovalle v. Superior Court, supra; People v. Williams, 196 Cal.App.2d 845 , 850 [ 16 Cal.Rptr. 842 ]; People v. Bates, 163 Cal.App.2d 847 , 851 [ 330 P.2d 102 ].) The informer must be known to the officer to be reliable, and must be a person whom the officer in good faith believes to be trustworthy. (People v. Bates, supra; People v. Williams, supra; People v. Rixner, 157 Cal.App.2d 387 , 390-391 [ 321 P.2d 91 ].) Accordingly, an arrest and search may be made solely on the basis of information received from a single reliable informant. (People v. Roland, supra; People v. Boyd, 162 Cal.App.2d 332 , 334 [ 327 P.2d 913 ].) The essence of this rule of justification for search or arrest without a warrant based upon information from an informer is stated thusly in People v. Bates, supra: “In most

“There is no exact formula for the determination of reasonableness. Bach case must be decided on its own facts and circumstances [citations]—and on the total atmosphere of the case.” (People v. Ingle, 53 Cal.2d 407 , 412 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ].) In making this determination the applicable test is: Considering all the information in the hands of the police, would a reasonable police officer act on that information or would a reasonable police officer seek further information before making the arrest and conducting the search? (People v. Diggs, supra, p. 171.) Moreover, when the question of the legality of an arrest or of a search and seizure is properly and timely raised, the defendant makes a prima facie case when he establishes that

In the present case Louise Friend was not shown to be a reliable informant. Miss Friend first became known to the police in August 1961, and the only information furnished by her which led to a valid suspect was that which led to the arrest of defendant on October 17th. There was no evidence that either Wettstein or any of the police officers involved in the search and arrest in question had any previous experience with Miss Friend, nor was there any showing that she had previously given any information to the police which led to any valid suspects. While the record discloses that the prosecution at one stage of the proceedings attempted to show that Miss Friend has given Officer Wettstein information relative to one James Lucas who was being investigated on a burglary charge, the inquiry was abandoned after merely showing that Miss Friend knew Lucas and that she gave some information regarding him to the police. The character of the information, whether it was acted upon or whether it resulted in the arrest of Lucas, was not sufficiently revealed to permit evaluation. While it is true that defendant’s counsel attempted to block the inquiry concerning the Lucas matter by objections, these were overruled by the trial court. The prosecution, therefore, was not prevented from establishing that Miss Friend was a reliable informer based upon the Lucas incident. Accordingly, the rule announced in Ovalle v. Superior Court, supra, 202 Cal.App.2d 760 , that an accused who objects to the introduction of hearsay testimony that may establish that there was probable cause for his arrest may not successfully and simultaneously complain of the alleged lack of such cause, is not applicable. (See People v. Boyles, supra, 45 Cal.2d 652 , 656.)

The People contend that Miss Friend’s reliability is established because her information was sufficiently corroborated to establish reasonable cause to justify the search of defendant’s premises and his arrest. They assert these corroborative facts consist of the following: (1) the occur

Corroboration by Furtive or Suspicious Conduct

In People v. Vegazo, supra, the appellate court cited and reviewed a number of recent cases in California where it was held that furtive or suspicious conduct satisfied the requirement of reasonable cause justifying arrest without a warrant. (See People v. Blodgett, 46 Cal.2d 114 [ 293 P.2d 57 ] (officers questioned occupants of cab at late hour of night and saw the defendant withdraw hand from between seat and cushion); People v. Hernandez, 188 Cal.App.2d 248 [ 10 Cal.Rptr. 267 ] (the defendant, who was found in an area where addicts were known to administer narcotics, with eyes dilated, moved his hand toward his shirt pocket); People v. Escoto, 185 Cal.App.2d 599 [ 8 Cal.Rptr. 488 ] (when officers identified themselves the defendant dropped newspaper from which narcotics paraphernalia fell and the defendant moved his hand to his mouth); People v. Robles, 183 Cal.App.2d 212 [ 6 Cal.Rptr. 748 ] (officers saw the defendant standing in yard, observed scar tissue plus fresh puncture wounds, and the defendant threw object in next yard); People v. Williams, 175 Cal.App.2d 774 [ 1 Cal.Rptr. 44 ] (known addicts coming and going from the defendant’s residence; knock on door; officers heard rush to bathroom); People v. Poole, 174 Cal.App.2d 57 [ 344 P.2d 30 ] (the defendant on parole for narcotics conviction stopped and questioned made a movement of his hand to his mouth); People v. Taylor, 174 Cal.App.2d 448 [ 344 P.2d 837 ] (the defendant with two users in front of narcotics “hangout” ran through alley into “hangout” and started to put his hand in pocket); People v. Anders, 167 Cal.App.2d 65 [ 333 P.2d 854 ] (police stopped ear weaving back and forth on highway and saw a brown package leave right side of car); People v. Cisneros, 166 Cal.App.2d 100 [ 332 P.2d 376 ] (police approached the defendant who ran, dropping newspaper containing heroin); People v. Cantley, 163 Cal.App.2d 762 [ 329 P.2d 993 ] (the defendant made U-turn at night in area where robberies had' been committed; the defendant fitted description of robber; officer stopped to question and saw the defendant reach under seat); People v. Sanson, 156 Cal.App.2d 250 [ 319 P.2d 422 ] (police saw car driving very slowly with no light on license plate; stopped ear to investigate; two passengers hid something under front seat); People v. McMurray, 171 Cal.App.2d 178 [ 340 P.2d

The reviewing court, in Vegazo, reasoned that if, as held by the foregoing decisions, definite movements to conceal or destroy contraband, in the background of prior suspicious circumstances, constituted sufficient probable cause to justify arrest, information supplied by an unreliable informer plus the defendant’s conduct in furtively attempting to conceal or destroy contraband should likewise be deemed sufficient to form a combination of elements that supplies the ground for probable cause for an arrest.

In Vegazo the officers had received a previous statement by an informer that the defendant was smoking a marijuana cigarette in the informant’s apartment. When the police officers were admitted to the apartment they saw the defendant move his left hand to his side and roll a cigarette into a ball. It was there held that the information, plus the observation by the police of this furtive attempt to conceal or destroy the cigarette, constituted sufficient probable cause to justify the arrest. Vegazo also takes note of Willson v. Superior Court, supra, 46 Cal.2d 291 ; People v. Amado, 167 Cal.App.2d 345 , 347 [ 334 P.2d 254 ]; and People v. Hurst, 183 Cal.App.2d 379 [ 6 Cal.Rptr. 483 ], In Willson the police, acting on information from an unknown informer that the defendant was engaged in a bookmaking operation, entered a cocktail lounge and saw the defendant, a waitress, standing next to the bar with slips of paper in her hand. A telephone, a pad of paper and a pencil were on the bar. When the police asked her what these slips were the defendant attempted to crumple them, and extended her hand to her side and back. This conduct was held sufficient to justify the officers’ reliance on the information received from the informer of the defendant’s bookmaking and thus to warrant a search and arrest without a warrant. Similarly, in Amado, the police, acting on information from undisclosed informers approached a house where narcotics were said to be in use. They observed the defendant through a screen door. When the defendant saw the officers he made a movement toward his pocket, stepped backwards, and put in his mouth

It is apparent that the California cases clearly hold that information supplied by an informant who has not proven reliable may, when coupled with a defendant’s furtive or suspicious conduct, form a combination of elements that supplies the grounds for probable cause for a search or arrest without a warrant. Do we have such conduct here? Or, to be specific, does the act of defendant in pushing the door closed constitute such conduct? At first blush it would appear that there is an aura of suspicion attached to a person’s closing a door in the face of police officers who have identified themselves as such. A closer scrutiny, however, compels the conclusion that such conduct is a circumstance concomitant to and contemporaneous with the entry.

It is not unreasonable for police officers to seek interviews with suspects or witnesses or to call upon them at their homes for such purposes. (People v. Michael, 45 Cal.2d 751 , 754 [ 290 P.2d 852 ]; People v. Martin, 45 Cal.2d 755 , 761 [ 290 P.2d 855 ].) But the right to seek interviews with suspects or witnesses at their homes does not, in the absence of a search warrant or warrant of arrest, or in the absence of reasonable or probable cause for such search or arrest, include the right to walk in uninvited or to enter such home without the suspect’s consent. (People v. Haven, supra, 59 Cal.2d

In the instant case the officers gained entry by pushing the door open against defendant’s opposing force. The entry was therefore unlawful. Accordingly, the search, the resulting discovery of marijuana and the arrest were ail the products of the officers’ unlawful entry. Nor can any inference of consent after the entry be drawn. “A search and seizure made pursuant to consent secured immediately following an illegal entry or arrest, however, is inextricably bound up with the illegal conduct and cannot be segregated therefrom.” (People v. Haven, supra, p. 719.) It is well established, of course, that a search cannot be justified-by what it turns up. (People v. Brown, 45 Cal.2d 640 , 643-645 [ 290 P.2d 528 ]; Tompkins v. Superior Court, supra, 59 Cal.2d 65 , 68; People v. Haven, supra.) Moreover, the, search could not be justified as incidental to the

In Tompkins v. Superior Court, supra, the officers arrested one Nieman for possession" of marijuana. The officers learned that Nieman had two telephone listings, one at a Folsom Street address and another at 700 Shotwell Street. The latter was also listed in Tompkins’ name. Nieman first denied living at the Shotwell Street address, but then stated that he did live there in apartment No. 3. He denied that there was any contraband there and gave the officers his keys so that they could confirm his statement for themselves. Without a search warrant or warrant of arrest Officer Martin went to the Shotwell Street apartment. While he was attempting to open the door with the wrong key, Tompkins opened the door on the chain. Martin identified himself as a police officer. Tompkins looked, made a motion with his arm to the left and slammed the door shut. The officer kicked the door in and found Tompkins in the middle of the room. A search disclosed the presence of marijuana and Tompkins was arrested. In holding that the consent of one joint occupant does not justify entering and searching over the objection of another joint occupant present on the premises at the time, the Supreme Court declared that there was no evidence that the possession of contraband, if any, by Nieman at said address was shared by Tompkins, and that accordingly Tompkins’ apparent motioning of someone away from the door and closing it in the officer’s face did not provide the missing elements of reasonable cause to believe that Tompkins was guilty of a felony. The court made this significant statement: “There are many reasons other than guilt of a felony why an occupant of an apartment may not wish himself or others present exposed to the immediate view of a stranger, even if the stranger is a police officer. If refusal of permission to enter could convert mere suspicion of crime into probable cause to arrest the occupant and search his home, such suspicion alone would become the test of the right to enter, and the right to be free from unreasonable police intrusions would be vitiated by its mere assertion.” (P. 68.)

Likewise, in People v. O’Neill, 187 Cal.App.2d 732 [ 10 Cal.Rptr. 114 ], a police officer who had no knowledge of the reliability of the informant who stated that a tall, dark-complexioned man with a moustache named Gato and his brother, who had moved into an apartment house at a given address, were users of narcotics and were possibly in posses

The People rely upon People v. Lawton, 186 Cal.App.2d 834 [ 9 Cal.Rptr. 122 ], The factual situation there is not only distinguishable from Tompkins and O’Neill, but it was such as to warrant the conclusion that at the time of the entry into the defendant’s apartment the officers had reasonable cause for the defendant’s arrest and subsequent search of the apartment. There, two informers and a narcotic user told the police that a person known as Cadillac Willie or Black Willie was selling or dealing in narcotics in large amounts in a certain locality. The officers cheeked the area and saw a blue Cadillac automobile bearing a certain license number parked in front of a certain building. They checked with other police officers and were told that Cadillac Willie or Black Willie was William Lawton (the defendant). They also cheeked the police record of said person and found he had a narcotic record. They also observed him driving the aforesaid Cadillac in the said general area and observed him talking to two known narcotic users. They were also given his address by an unidentified informer. The officers went to the address, an apartment house, where they observed Lawton standing in the entrance. As Lawton was about to enter his apartment an officer approached him and identified himself as a police officer. Lawton pushed the door open, slammed it shut and locked it. The officers forced the door, entered the apartment, placed Lawton under arrest, and then proceeded to search the apartment where they found some heroiu in the bathroom. The reviewing court held that the evidence was enough to arouse in the minds of the officers a suspicion

Was There a Pressing Emergency?

The factual setting in the instant case does not give rise to a “pressing emergency” so as to bring into play the exception that where such emergency exists information from an unreliable informer may justify a search or arrest without a warrant. The record discloses that Officer Wettstein did not consider the arrest or search a matter of pressing emergency, because, upon receiving the information that A1 had sold Miss Friend a marijuana cigarette he allowed approximately one month to elapse before he did anything more on the ease. Moreover, when, a month later, he was informed by Miss Friend that defendant had a substantial quantity of marijuana in his room, Wettstein went “off duty” and did not do anything until 16 hours later when he made the arrest and search in question.

Having concluded that the search and arrest in the present ease were all the products of the officers’ unlawful entry and therefore cannot be relied upon to sustain the judgment, we need not discuss the other items of error claimed by defendant-appellant.

The judgment is reversed.

Bray, P. J., and Sullivan, J., concurred.