People v. West

The question is one of probable cause for issue of a search warrant.

George West, Jr., was convicted of possession of marijuana (Health & Saf. Code, § 11530) and possession of cocaine (Health & Saf. Code, § 11500). The principal evidence against him was obtained through use of a warrant which authorized a search for marijuana of Apartment 3, at a designated address, and of the persons of George West, Jr., and Lou Ann Douglas. Officer William Caskey located West outside the apartment building, gave him a copy of the search warrant, removed a key from West’s pocket, and used the key to enter Apartment 3. He found Lou Ann Douglas in bed and a large, brown-paper bag on the floor next to the bed. The bag’s contents included a .38 caliber revolver, 70 grams of marijuana, eight marijuana cigarettes, and 9 grams of cocaine.

West’s basic contention is that the search warrant was issued without a showing of probable cause, and therefore narcotics obtained through its use were seized in violation of the federal and state Constitutions, and should not have been received in evidence against him.

. The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ’ ’

Did Caskey’s affidavit contain sufficient information to satisfy the requirement of probable cause under the Fourth Amendment to the United States Constitution and thus allow a magistrate to issue the search warrant? Since the time of Ker v. California, 374 U.S. 23 [ 83 S.Ct. 1623 , 10 L.Ed.2d 726 ], the reasonableness of a search under state law has been measured by the same constitutional standard as that which governs the reasonableness of a search under federal law, and the decisions of the United States Supreme Court interpreting the Fourth Amendment now apply to California procedure by virtue of the Fourteenth Amendment. (Mapp v. Ohio, 367 U.S. 643 [ 81 S.Ct. 1684 , 6 L.Ed.2d 1081 , 84 A.L.R.2d 933 ].)

The affidavit on which the warrant was issued sets forth a police officer’s belief that probable cause to search exists, based on (1) information from a reliable, confidential informant that West was using, selling, and possessing narcotics at Apartment 3 with a girl named Lou Ann; (2) registration of the utilities at Apartment 3 to Lou Ann Douglas; and (3) a record of prior narcotics convictions for West and Lou Ann Douglas.

Is this enough to establish probable cause? We think not. In our view the specific question is controlled by the decision of the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108 [ 84 S.Ct. 1509 , 12 L.Ed.2d 723 ], a case reversing a narcotics conviction in a state court because of the insufficiency of the affidavit supporting the search warrant. In Aguilar, the supporting affidavit set forth a police officer’s belief that petitioner kept narcotics for sale at a particular address, a belief based on unspecified information from a reliable informant and on unspecified observations of the premises by the police. In holding that the affidavit did not

Nothing in the subsequent case of United States v. Ventresca, 380 U.S. 102 [ 85 S.Ct. 741 , 13 L.Ed.2d 684 ], altered these basic requirements. Although the validity of the search warrant in question was upheld, the Supreme Court there pointed out: “This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the ‘underlying circumstances’ upon which that belief is based. See Aguilar v. Texas, supra. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.” (380 U.S. at pp. 108-109.)

Aguilar makes clear that a petition for a search warrant based solely on information from a reliable informant must set forth sufficient data in the supporting affidavit (1) to show that the informant is in fact reliable, and (2) to disclose the source of the informant’s knowledge so that the examining magistrate can himself determine whether probable cause exists for the issue of the warrant.

However, the informant’s source of knowledge remained a secret. We do not know whether he himself had seen marijuana in the apartment, or had recently purchased it from West, or had otherwise personally obtained reliable and persuasive information ; or whether, on the other hand, he was merely peddling second-hand gossip overheard in a barroom. Had information disclosing the informant’s source of knowledge been included in the supporting affidavit, the magistrate could have exercised his own judgment as to the persuasiveness of the facts showing probable cause rather than been forced to rely on the judgment of the police. Under our Constitution the inferences from the facts must be drawn by a neutral and detached magistrate rather than by a police officer engaged in the often competitive enterprise of ferreting out crime, (Johnson v. United States, 333 U.S. 10 , 14 [ 68 S.Ct. 367 , 92 L.Ed. 436 ].)

Other United States Supreme Court cases reflect this same requirement: Draper v. United States, 358 U.S. 307 [ 79 S.Ct. 329 , 3 L.Ed.2d 327 ]; Jones v. United States, 362 U.S. 257 [ 80 S.Ct. 725 , 4 L.Ed.2d 697 , 78 A.L.R2d 233 ]; Rugendorf v. United States, 376 U.S. 528 [ 84 S.Ct. 825 , 11 L.Ed.2d 887 ]. In these eases either an affidavit disclosed the source of knowledge of the informant (Jones—the informant had purchased narcotics from the suspects at the given address many times, most recently the day before; Rugendorf—the informant the previous week had seen 75 to 80 furs without labels on the premises and been told they were stolen), or the police had been given specific, detailed information of such a nature as to fairly imply personal knowledge of the facts by the informant (Draper—suspect would arrive from Chicago at the Denver railroad station at a particular time dressed in a particular manner). The historic maxim that the mere word of an informant does not justify an arrest has been summarized by Douglas, J., dissenting in Draper v. United States: “Hale, who traced the evolution of arrests without warrants in The History of the Pleas of the Crown (1st Am. ed. 1847), states that while officers need at times to act on information from others, they must make that information, so far as they can, their own. He puts a ease where A, suspecting B ‘on reasonable grounds’ of being a felon, asks an officer to arrest B. The duty of the officer was stated as follows: ‘He ought to inquire and examine the circumstances and causes of

Is there in this case sufficient other information corroborating that of the informant to establish probable cause? It is, of course, possible for an informant’s bare conclusion to be buttressed by secondary information, which itself does not amount to probable cause but which fortifies the first, and for the two in combination to provide sufficient cause for the issue of a search warrant. The difficulty with the case at bar is that the supporting affidavit contains no other probative information from which to infer that West was selling marijuana or keeping it in Apartment 3. A record of prior narcotics convictions does not corroborate a charge of present narcotics violations. (People v. Reeves, 61 Cal.2d 268 , 274 [ 38 Cal.Rptr. 1 , 391 P.2d 393 ]; People v. Privett, 55 Cal.2d 698 , 702 [ 12 Cal.Rptr. 874 , 361 P.2d 602 ].) The critical fact is present violation of law, not past violation. The registration of the utilities in the name of Lou Ann Douglas contributes nothing to any inference of criminal conduct. In our view, the corroboration relied upon does not corroborate. The validity of the search warrant rests on the naked supposition that the conclusion of a reliable informant provides probable cause to issue a warrant, a supposition which the United States Supreme Court has rejected.

Additionally, we find that the supporting affidavit did not furnish sufficient probable cause for the issue of a search warrant under article I, section 19, of the California Constitution. Under the rulings of the California Supreme Court, a valid affidavit must disclose the source of the information on which reliance is placed, or must set forth some of the underlying circumstances which make the informants’ tale more probable than not, or in some other fashion, corroborate an essential fact of the charge. (People v. Gallegos, 62 Cal. 2d 176 [ 41 Cal.Rptr. 590 , 397 P.2d 174 ].)

In holding the search warrant invalid because of deficiencies in the supporting affidavit, we fully appreciate that disclosure of specific information about the informant’s source of knowledge may go far to reveal his identity and thus further reduce the already-shortened life expectancy of police informants in narcotics cases—to the detriment of public order and of effective law enforcement. Indeed in this very case the tape-recorded conversation between the two persons arrested

Since the judgment must be reversed we do not reach the question of the validity of police questioning after arrest under the restrictions outlined in People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ],

Court-appointed counsel for appellant in this case submitted briefs of the highest quality on difficult questions of law. We commend him for the excellence of his presentation.

Judgment reversed.

Roth, P. J., and Herndon, J., concurred.

A petition for a rehearing was denied November 19, 1965, and respondent’s petition for a hearing by the Supreme Court was denied December 22, 1965. Mosk, J., and Burke, J., were of the opinion that the petition should be granted.