People v. Medina

unreasonable searches and seizures and require warrants not be issued except upon a showing of probable cause. In addition, the United States Supreme Court and the California Supreme Court have held probable cause may be established on the basis of an affidavit of a law enforcement officer which relies entirely on an informant’s tip. Prior to the Supreme Court’s decision in Illinois v. Gates (1983) 462 U.S. 213 [ 76 L.Ed.2d 527 , 103 S.Ct. 2317 ], the Fourth Amendment standard for assessing such an affidavit was set forth in Aguilar v. Texas (1964) 378 U.S. 108 [ 12 L.Ed.2d 723 , 84 S.Ct. 1509 ] and Spinelli v. United States (1969) 393 U.S. 410 [ 21 L.Ed.2d 637 , 89 S.Ct. 584 ]. Under these latter cases, a hearsay affidavit had to meet a two-pronged test before it would be deemed sufficient to establish probable cause. First, the magistrate had to be informed of some of the underlying circumstances from which the informant concluded the items subject to the search were where he claimed they were. (This had been designated the “basis of the knowledge” prong.)^[1] Second, the magistrate had to be informed of some of the underlying circumstances from which the officer concluded the informant was credible or his information reliable. (This had been designated the “veracity” prong.) (Aguilar v. Texas, supra, 378 U.S. at pp. 114-115 [12 L.Ed.2d at pp. 728-729]; Spinelli v. United States, supra, at p. 413 [21 L.Ed.2d at p. 729].)

In Gates, the United States Supreme Court abandoned the two-pronged test. Instead, it adopted a totality of the circumstances analysis. As the court stated: “The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding]’ that probable cause existed. Jones v. United States, supra, 362 U.S., at 271, 80 S.Ct., at 736.” (Illinois v. Gates, supra, 462 U.S. at pp. 238-239 [76 L.Ed.2d at p. 548, 103 S.Ct. at p. 2332].) (See also Massachusetts v. Upton (1984) 466 U.S. 727 , 732 [ 80 L.Ed.2d 721 , 727, 104 S.Ct. 2085 , 2087-2088].)

In assessing an affidavit based on hearsay, California courts had articulated a standard which in essential respects corresponded to the standard established in Aguilar and Spinelli. However, this standard had not been derived solely from the courts’ interpretation of the Fourth Amendment but also from the state Constitution, article I, section 13. (People v. Campa (1984) 36 Cal.3d 870 , 880-881 [ 206 Cal.Rptr. 114 , 686 P.2d 634 ].) As the

Supreme Court stated in Campa, “. . . ‘Aguilar's two-pronged test’ (Spi nelli, supra, 393 U.S. at p. 413 [21 L.Ed.2d at p. 642]) has provided a convenient shorthand articulation of previously established principles of California law in the area of hearsay affidavits.” (Id., at p. 880.) It was recognized that this standard was a higher standard than the recently established standard in Illinois v. Gates and thus permitted the suppression of evidence which was no longer permitted in federal court. (See People v. Kershaw (1983) 147 Cal.App.3d 750 , 754-755, fn. 2 [ 195 Cal.Rptr. 311 ].) However, in the very recent California Supreme Court decision In re Lance (1985) 37 Cal.3d 873 [ 210 Cal.Rptr. 631 , 694 P.2d 744 ], the court held Proposition 8 abrogated a defendant’s right to object to and suppress evidence which has been seized in violation of the California Constitution but has not been seized in violation of the United States Constitution. Thus, although under prior California law the search warrant at issue would have been subject to more exacting scrutiny, we must now confine our analysis to a determination whether the warrant was proper under federal constitutional principles.

III. The Affidavit Established Probable Cause to Search the Respondent’s House.

As discussed above, the United Supreme Court in Illinois v. Gates eliminated the “two-pronged test” established in Aguilar and Spinelli and replaced it with a totality of the circumstances analysis.^[2] As the court stated, “. . . the ‘two-pronged test’ has encouraged an excessively technical dissection of informant’s tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.” (Illinois v. Gates, supra, 462 U.S. at pp. 234-235 [76 L.Ed.2d at pp. 545-546, 103 S.Ct. at p. 2330]; see Massachusetts v. Upton, supra, 466 U.S. at p. 732 [80 L.Ed.2d at p. 727, 104 S.Ct. at p. 2087].) However, while abandoning the “two-pronged test,” the court continued to recognize the key role which the corroboration of details of an informant’s tip by independent police work can serve. Under the old test, adequate corroboration of some of the elements of the tip had been held to satisfy the veracity prong when the past reliability of the informant had not been established. (See Spinelli v. United States, supra, 393 U.S. at pp. 417-418 [21 L.Ed.2d at p. 644]; United States v. Bush (3d Cir. 1981) 647 F.2d

357 , 362-363; United States v. Spach (7th Cir. 1975) 518 F.2d 866 , 870-871; United States v. Ward (8th Cir. 1983) 703 F.2d 1058 , 1061.) As explained in United States v. Spach, supra, “The second type of corroboration [corroboration of information to establish the veracity of the informer] is based on the premise that if it can be shown that part of the information provided by an informer is correct, this gives credibility to the remainder of the information.” (Id., at p. 871; see also 1 LaFave, Search & Seizure (1978) § 3.3 subd. (f), p. 556; Hignut v. State (1973) 17 Md.App. 399 [ 303 A.2d 173 , 179.]) Thus the objective of independent corroboration was to demonstrate that the informant was not “fabricating his report out of whole cloth.” (Spinelli v. United States, supra, 393 U.S. at p. 417 [21 L.Ed.2d at p. 644]; see also United States v. Bush, supra, 647 F.2d at p. 363.) This currently remains the objective. As the court in Gates stated, “It is enough, for purposes of assessing probable cause, that ‘corroboration through other sources of information reduced the chances of a reckless or prevaricating tale,’ thus providing ‘a substantial basis for crediting the hearsay.’” (Citation omitted.) (Illinois v. Gates, supra, 462 U.S. at pp. 244-245 [76 L.Ed.2d at p. 552, 103 S.Ct. at p. 2335].)

Medina argues there was insufficient corroboration of the informant’s information to support the issuance of the search warrant in the case at bar. We disagree. Numerous details provided by the informant were corroborated. Importantly, this corroboration verified in significant part the modus operandi that had been described by the informant. For instance, the informant participated in a controlled sale. To arrange this sale, the informant called “Oscar” and “Oscar” told him to meet him at a location away from his residence. The affiant monitored this phone call. The telephone number was confirmed by the affiant to be listed to “Oscar” at the address previously given by the informant. The affiant followed the informant to the designated location. During this time, a person later identified by the informant as “Oscar” was seen to leave the address confirmed to be his residence. He subsequently met with the informant, exchanged a small object for money, and returned to his home. The item given to the informant was later tested and found to be heroin.^[3] As further corroboration, the affiant observed the two residences during the week prior to the issuance of the search warrant. On three occasions during that week, the affiant saw “Oscar” leave 11250 Virginia Avenue, go to 11252, then get in a car, drive to a nearby corner and make what the affiant determined, based on his expertise, was a drug transaction. The affiant also observed activity between the

two houses thus further corroborating the modus operandi described by the informant. On three occasions, the affiant observed foot traffic going to both houses, usually going first to 11250, then going on to 11252 without entering 11250. They would stay at 11252 for less than five minutes and leave. All of these observations when examined together provided significant corroboration of the information provided by the informant. Furthermore, this corroboration was clearly not of wholly innocent activities.^[4] Finally, under the Gates totality of the circumstances analysis, the affiant’s substantial corroboration of the informant’s information was not the only consideration which supported the issuance of the warrant. The informant’s personal knowledge of the information provided also supported its issuance.

The municipal court, in ruling on Medina’s motion to suppress, isolated the corroboration of the informant’s tip with respect to “Oscar” from the corroboration with respect to “Tony.” Thus the court stated: “Basically, what they [the police] have is an untested, uncorroborated statement from an informant that someone, named Tony, is dealing. They see people, some foot traffic, and that is it. You see Oscar go over there a couple of times and leave, and apparently he’s supposed to have made a sale. They did not bust any of these people that he allegedly sold to, as defense counsel correctly points out.

“In the Gates case, they go much more into surveillance, corroboration and all these things. This case here—you have a great case on Oscar, and I don’t know where Oscar is. He should be in custody or in prison. But as far as Tony is concerned, I do not believe that the People have met their burden, even under Illinois versus Gates. ” (Italics added.)

The superior court, in reviewing the decision of the lower court, stated since it wouldn’t have issued the warrant in the first place, it agreed there wasn’t sufficient corroboration to issue the warrant as to 1252.^[5]

We cannot support the isolation of the elements of corroboration in this manner. As discussed earlier, the Gates court rejected the Aguilar-Spinelli

test because of “excessively technical dissection of informants’ tips.” Yet this is exactly what the court seems to have done. In the case before us, the informant’s statements were corroborated in a number of key respects. It was inappropriate to conduct a piecemeal examination of these corroborative elements when the informant’s information linked these suspects and their houses together and this link was also corroborated.

It is important to emphasize what the case before us is not. This is not a case where no connection was established between the suspects and locations described by the informant, i.e., a case in which an informant provides information about two individuals and two separate premises with no shared relationship. The foot traffic thus must be viewed in light of all the information provided by the informant and the other corroborative elements. When viewed together, these corroborative elements provided a substantial basis for crediting the hearsay.

Furthermore, we don’t believe the result would have been different under the earlier Aguilar-Spinelli test because the purpose served by corroboration was substantially the same as under the current test—to establish that the information provided by the informant did not constitute a made-up story, one fabricated out of whole cloth. Corroboration of part of the information provided by the informant was said to give credibility to the remainder of the information. Such a rationale provided little support for the piecemeal approach taken in this case.^[6]

Finally, Medina also contends even if the informant is deemed reliable, the information supplied by the affidavit was too stale to support issuance of a search warrant. We reject this contention. According to the informant, he had purchased heroin at the 2 houses 20 to 30 times during the 2 months preceding his contact with the affiant. Subsequent observations by the affiant confirmed such activity was still continuing up to the time of the issuance of the warrant. Given the ongoing nature of the activity on the premises, the magistrate was justified in concluding heroin was currently

on the premises. (See People v. Thompson (1979) 89 Cal.App.3d 425 , 429-430 [ 152 Cal.Rptr. 495 ]; People v. Reed (1981) 121 Cal.App.3d Supp. 26 , 33-34 [ 176 Cal.Rptr. 98 ]; cf. Hemler v. Superior Court (1975) 44 Cal.App.3d 430 , 433-434 [ 118 Cal.Rptr. 564 ].)

We conclude the police officer’s affidavit established probable cause for the issuance of a warrant to search Medina’s residence. The information provided by the anonymous, confidential informant was sufficiently corroborated to establish the informant’s reliability, and thus the affidavit was legally sufficient to support the issuance of the search warrant.^[7]

Disposition

The ruling of the superior court in denying the appellant’s motion to reinstate the complaint is reversed. The case is remanded for further proceedings consistent with this opinion.

Lillie, P. J., and Thompson, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied April 25, 1985.