Galena v. Municipal Court

This is an appeal from an order of the superior court denying appellants’ petition for a writ of mandate sought by them to compel the above entitled municipal court to quash a search warrant and to suppress evidence. The principal question which we must determine is whether the search warrant was issued upon probable cause and with the requisite showing of good cause for a direction therein that it might be served at any time of the day or night. We have concluded that the warrant was lawfully issued and served and that other contentions raised by appellants are without merit. We therefore affirm the trial court’s order.

On January 9, 1964, at 9 p.m. a search warrant was issued to state narcotics Agent Stephen Woishnis by the Honorable Homer W. Buckley, Judge of the Municipal Court for the Oakland-Piedmont Judicial District, County of Alameda, commanding the immediate search in the day or nighttime “on the person of John Doe” and of the premises, later determined to be those of appellants, described as a basement apartment at 2845 East 10th Street in Oakland for narcotics and narcotic paraphernalia.

Agent Woishnis’ affidavit for the warrant, after stating that a violation of Health and Safety Code section 11500 (possession of narcotics) had been committed by “John Doe” in Oakland on or about January 1, 1964, and that affiant had reasonable cause to believe that narcotics and narcotic paraphernalia were in the possession of John Doe and upon the above-mentioned premises, set forth the following facts as establishing probable cause for the issuance of the search warrant: “Ronald Lee Choate notified the affiant on 9 Jan 64 that the dexedrine he had in his possession was a portion of the dangerous drugs and narcotics acquired in a burglary of a drugstore in Kingsburg, Calif. On this date Donald Wetzel was arrested in possession of a large amount of narcotics and dangerous drugs in Alameda and it was ascertained by the affiant by contacting Chief of Police in Kingsburg that these

The record of the above proceedings in the municipal court shows that no evidence was introduced to controvert the statement made in the affidavit for the search warrant that Choatehad given Woishnis information as to the source of the dexedrine in Choate’s possession and as to the presence of narcotics and dangerous drugs in the apartment at 2845' East-10th Street. Woishnis testified however that before he executed the affidavit Choate gave him information which he was able to verify as being reliable based on his experience in the narcotics field.

Woishnis further testified that at about 8 p.m. .on January. 9 he went with Choate to the address on East 10th Street where Choate pointed out the premises to him but that he noticed nothing unusual about the place at that time. Neither he nor Choate knew the names of the people living there. The two men were in the vicinity just long enough to park their car down the street and walk by the house. Woishnis then returned to the Oakland Police Department, prepared the affidavit and search warrant and took them to Judge Buckley’s residence where the latter issued the warrant just prior to 9 p.m. Woishnis testified that he was moving rapidly in order to prevent a loss or other disposition of evidence. He could not recall whether he discussed the contents of the affidavit with the judge.

The agent then returned to the East 10th Street premises where other agents had “staked out” the house while Woishniswas obtaining the search warrant. He handed the search warrant to Agent Lopez and the two agents went to the door. Lopez knocked on the door while Woishnis kept himself out of sight. Mrs. Galena opened the door, although she kept the chain on it, and when Lopez asked to see her husband, she, replied that her husband was in bed. Lopez asked Mrs. Galena to awaken him. She refused and started to close the door.

It is settled law that the requisite probable cause “may be based on information furnished by an informant if the supporting' affidavit also recites facts indicating that reliance on the information is reasonable. [Citations.] ” (People v. Keener, supra, 55 Cal.2d 714 , 721; Williams v. Justice Court, supra, 230 Cal.App.2d 87 , 95-96; Dunn v. Municipal Court, supra, 220 Cal.App.2d 858 , 871; People v. Prieto (1961) 191 Cal.App.2d 62 , 69 [ 12 Cal.Rptr. 577 ] ; People v. Perez (1961) 189 Cal.App.2d 526 , 532 [ 11 Cal.Rptr. 456 ].) In other words, the magistrate’s finding of probable cause may rest upon the hearsay statement of the informant “so long as a substantial basis for crediting the hearsay is presented.” (Jones v. United States (1960) 362 U.S. 257 , 269 [ 80 S.Ct. 725 , 4 L.Ed.2d 697 , 707, 78 A.L.R.2d 233 ]; Rugendorf v. United States (1964) 376 U.S. 528 , 533 [ 84 S.Ct. 825 , 11 L.Ed.2d 887 , 891]; Aguilar v. Texas (1964) 378 U.S. 108 , 114 [ 84 S.Ct. 1509 , 12 L.Ed.2d 723 , 729]; United States v. Ventresca (1965) 380 U.S. 102 , 107-108 [ 85 S.Ct. 741 , 745-746, 13 L.Ed.2d 684 , 688-689].) Nevertheless although the affidavit may be based on hearsay, the magistrate must be informed of some of the underlying circumstances from which the officer-affiant concluded, that the informant was credible or his information reliable. (Aguilar v. Texas, supra.) In short, probable cause for the issuance of a search warrant may be based on the hearsay statement of an informant provided he is a reliable informant. (People v. Prewitt (1959) 52 Cal.2d 330 , 337 [ 341 P.2d 1 ]; Willson v. Superior Court (1956) 46 Cal.2d 291 , 294-295 [ 294 P.2d 36 ]; People v. Boyles (1955) 45 Cal.2d 652 , 656 [ 290 P.2d 535 ].)

In Willson, supra, the Supreme Court was called upon to determine whether information obtained by the police from an unidentified informant was sufficient in the light of other evidence to establish reasonable cause for making an arrest without a warrant. Relying upon its earlier opinion in Boyles, supra, the court stated that "evidence must be presented to the court that would justify, the conclusion that reliance on the information was reasonable. [Citation.] In some cases the identity of, or past experience with, the informer may provide such evidence [citation], [fn. omitted] and in others it may be supplied by similar information from other sources or by the personal observations of the police.” (46 Cal.2d at pp.

Applying the above rules to the instant case, we are of the opinion that the affidavit for the warrant contained sufficient facts to support the magistrate’s finding of probable cause and to justify his conclusion as a reasonable man that narcotics .and drugs were probably in appellants’ apartment. It is to be noted that the agent does not claim in the affidavit that he had any direct personal knowledge that there were narcotics on the premises. His affidavit states that on January 9 Wetzel “was arrested in possession of a large amount of narcotics and .dangerous drugs in Alameda” and that on the sainé day Choate had dexedrine in his possession. It further states that on January 9 Choate informed Woishnis that the dexedrine he had in his possession “was a portion of the dangerous drugs and narcotics acquired in a burglary of a drugstore in Kingsburg, Calif.” (italics added) and also informed Woishnis that on January 6, Choate and Wetzel went to the premises .in question “where Wetzel took a portion of the drugs ... to a male in the basement apt., . . . for disposal in the illicit market.” (Italics added.)

, Interpreting these allegations in a commonsense way (United States v. Ventresca, supra, 380 U.S. 102 , 108-109 [ 85 S.Ct, 741 , 746, 13 L.Ed.2d 684 , 689]), it is clear to, us that,

Was it reasonable to rely on the hearsay statements of Choate, a theretofore “untested” informant? Woishnis had personal knowledge that Wetzel was arrested on January 9 in possession of a large amount of narcotics and dangerous drugs and in addition thereto had ascertained by contacting the Chief of Police in Kingsburg “that these drugs were possibly those acquired in the Kingsburg burglary.” A fair interpretation of this allegation is that Woishnis, upon making inquiry of the chief, had received information from this official source not only as to the fact of the burglary but as to the nature of the stolen property. Woishnis’ knowledge of Wetzel’s contraband and the information which he received from the Kings-burg police constituted “substantial corroborating facts known or discovered” by him (People v. Diggs, supra, 161 Cal. App.2d 167 , 171; Willson v. Superior Court, supra, 46 Cal.2d 291 , 294-295) so that Choate’s story “was corroborated by other sources of information.” (Jones v. United States, supra, 362 U.S. 257 , 271 [ 80 S.Ct. 725 , 4 L.Ed.2d 697 , 708].) In the light of this additional information, it was reasonable for the magistrate to infer that Choate was speaking the truth and had some connection with, and reliable knowledge of, the local disposition of the drugs and narcotics from the Kings-

Additionally, we do not lose sight of the concluding allegations of the affidavit dealing with Woishnis’ receipt from Choate of further information “regarding other matters and other persons in the narcotic traffic” which Woishnis found to be correct. While the pertinent allegations lack factual specificity, they are not without probative value in showing that Choate, some of whose story had been independently corroborated, was speaking the truth. (See People v. Swayze, supra, 220 Cal.App.2d 476 , 490.) We conclude that the affidavit was sufficient to justify issuance of the warrant. If, as we have noted, its imprecision of language in some places may appear to raise problems of interpretation, we believe that they are properly laid to rest by considering the affidavit free of any “grudging or negative attitude” (United States v. Ventresca, supra, 380 U.S. 102 , 108 [ 85 S.Ct. 741 , 13 L.Ed. 684 , 689]) and by giving it, as we are, a fair nontechnical reading as a whole.

Our above analysis disposes of appellants’ argument that Choate was not a reliable informant since he had never given reliable information in the past and his statements to the agent were never corroborated. Appellants arbitrarily brush aside all corroboration in the affidavit, taking the position that “the corroboration of an unreliable informant must be corroboration about the suspects in question, not corroboration. that the informant is a criminal.” People v. Cedeno (1963) 218 Cal.App.2d 213 [ 32 Cal.Rptr. 246 ], which is cited for this proposition, does not so hold and at oral argument appellants ’. counsel conceded that he could furnish us with no authority to support such statement. As we have explained in detail, Choate’s statements were independently corroborated. Appellants’ reliance on People v. Gallegos (1964) 62 Cal.2d 176 [ 41 Cal.Rptr. 590 , 397 P.2d 174 ], and People v. Cedeno, supra, 218 Cal.App.2d 213 , is misplaced. Those eases are distinguishable from the instant one since there it was determined that there was no other independent evidence corroborative of the statements of interested informers. (See