189 Cal.App.2d 526, 7134, People v. Perez

Docket Nº:7134
Citation:189 Cal.App.2d 526, 11 Cal.Rptr. 456
Opinion Judge:[10] Ford
Party Name:People v. Perez
Attorney:[7] Robert J. North, under appointment by the District Court of Appeal, for Appellant. [8] Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, Roy A. Gustafson, District Attorney, and Stanley E. Cohen, Deputy District Attorney, for Respondent.
Case Date:February 28, 1961
Court:California Court of Appeals
 
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Page 526

189 Cal.App.2d 526

11 Cal.Rptr. 456

PEOPLE of the State of California, Plaintiff and Respondent,

v.

Antonio Colin PEREZ, Defendant and Appellant.

Cr. No. 7134.

California Court of Appeal, Second District, Third Division

Feb. 28, 1961.

Rehearing Denied March 27, 1961.

Hearing Denied April 26, 1961.

Page 527

[Copyrighted Material Omitted]

Page 528

Robert J. North, Camarillo, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Roy A. Gustafson, Dist. Atty., Ventura County, and Stanley E. Cohen, Deputy Dist. Atty., Oxnard, for respondent.

FORD, Justice.

This is an appeal from a judgment of conviction of possession of heroin (Health & Saf. Code, § 11500) and from an order denying a motion for a new trial. At the time of trial, defendant admitted that, as alleged in the information, in 1952 he had been convicted of the crime of possession of narcotics, a felony, and had served a term therefor in the California State Prison.

The issues raised on this appeal relate to the validity of the search warrant under which the officers proceeded and to the propriety of the ruling of the trial court as to the admissibility of a tape recording of a statement made by another person. Such facts as are pertinent to those matters will be stated.

On June 30, 1959, Captain Patton of the Oxnard Police Department presented an affidavit to a judge of the Municipal Court of the Oxnard-Port Hueneme Judicial District in support of his application for a search warrant. The body of that affidavit is set out in the margin. 1 A search warrant was

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issued as requested. At approximately 9:15 p. m. of that day, Captain Patton and other officers went to the premises therein described. Captain Patton testified that when he knocked on the front door of the residence, the appellant Antonio Colin Perez pulled the curtain back and looked through the window at him. The appellant then 'turned hurriedly away, heading in the opposite direction.' Patton had seen the appellant more than 50 times and had talked to him over 20 times before this occasion. The front door was locked. Patton entered the house through the back door. He placed both the appellant and his brother, Elias Perez, under arrest for the illegal use of narcotics because in his opinion they both were under the influence of narcotics. Then he gave them copies of the search warrant and read the original to them.

Raymond R. Higgins, a deputy sheriff of Ventura County, one of the officers present, testified that he searched the bathroom and found 'a clear plastic-type bottle containing approximately 50 capsules that contained a white powder.' 2 The bottle was in the pocket of a sports jacket or coat which was hanging on a clothes rack. He also found in the jacket a small package which contained an eye-dropper and a needle.

Arnold Miller, another police officer, testified that he had a

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conversation with the appellant's brother John about the jacket in the presence of the appellant. When John said that the jacket belonged to him and the appellant and that the appellant wore it most of the time, the appellant made no response. Both Captain Patton and Officer Miller testified that they had seen the jacket on the appellant on prior occasions. There was also evidence that the appellant attempted to dispose of the capsules which the afficers had found by grabbing the bottle and trying to flush the capsules down the toilet.

On behalf of the appellant, his brother John testified that the sports jacket was his but that both he and the appellant had worn it. However, the witness had not worn it for over a year and the appellant had not worn it for three of four months before his arrest. It 'was just laying there.' On the night of the arrest, the officers called the appellant and Elias into the bathroom. The witness told an officer that the jacket was his when he was asked as to whom it belonged. In his own defense, the appellant testified that he had never seen the plastic bottle before the officers showed it to him. The eye-dropper and hypodermic needle were not his; he had never seen them before and did not know they were in the house. He was not under the influence of narcotics on that night. He had not worn the jacket for over six months; he told the officers it was not his. He denied that he had attempted to dispose of the capsules and gave a different version of the incident than that offered by the prosecution. He did not use narcotics on the day of the arrest. On cross-examination, he said that he last used narcotics in 1958. He had been convicted of possession of narcotics, a felony, in 1952. He admitted knowing what heroin is.

Before setting forth portions of the record specifically bearing upon the question raised as to the use of the tape recording, we turn to the issue as to the validity of the search warrant. On July 2, 1959, Captain Patton made his return of the warrant to the masistrate and delivered to him a written inventory of the property taken. Pen.Code, § 1537. Thereafter, the appellant instituted an attack upon the warrant pursuant to the provisions of sections 1539 and 1540 of the Penal Code. 3 warrant to the magistrate and delivered to

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transcript of such proceedings is part of the record on this appeal. At that hearing the appellant asserted that Captain Patton was required to reveal the identity of the informer to whom reference was made in the affidavit. He took the same position at the preliminary hearing and at the trial in the superior court. In each instance, such disclosure was not required to be made by Captain Patton. In addition, prior to the trial he made a motion under the provisions of section 995 of the Penal Code, which motion was denied. It is the appellant's position that he should have been permitted to ascertain the identity of the informer so that he could have rebutted the reliability of the information received from him and contained in the affidavit. He asserts that 'an examination of the affidavit, after striking out the references to the undisclosed informer, shows it to be wholly lacking in facts sufficient to constitute probable cause.'

It is, of course, clear that if the search warrant was void because issued without probable cause, the search and seizure pursuant to it were illegal and the articles obtained as a result thereof were not admissible as evidence against the appellant. See People v. Berger, 44 Cal.2d 459, 461. The issuance of the search warrant was a judicial act and such act was subject to review under sections 1539 and 1540 of the Penal Code, to which the appellant had recourse. People v. Dosier, 180 Cal.App.2d 436, 440, 4 Cal.Rptr. 309. Since at every stage of the proceedings against him the appellant raised his objection to the use of the evidence seized under the search warrant in alleged violation of constitutional safeguards afforded him, it would appear that he is entitled to urge the invalidity of the warrant on this appeal as a ground of reversal. See People v. Elliot, 54 Cal.2d 498, 505, 6 Cal.Rptr. 753. But, in any event, even if proceedings under sections 1539 and 1540 of the Penal Code had not been had in this case, the matter would properly be before this court because, under the contention of the appellant as stated above, the problem here presented is the sufficiency of the affidavit on its face insofar as the question of probable cause is concerned. As said in Arata v. Superior Court, 153 Cal.App.2d 767, at page 770, at page 476: 'When, as in this case, the defendants fail to pursue

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this remedy, they should be and, under the circumstances of this case, are precluded from controverting the facts stated in the affidavit upon which the search warrant was based. * * * This, of course, does not preclude a review of the decision of the magistrate by...

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