People v. Barrett

• Decision Date: 26 November 1969
• Docket Number: Cr. 5355
• Citation: 82 Cal.Rptr. 424,2 Cal.App.3d 142
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Michael Alan BARRETT, Joseph Henry Seidle, Jr., and David Michael Freeland, Defendants and Respondents.

Page 424

82 Cal.Rptr. 424

2 Cal.App.3d 142

The PEOPLE of the State of California, Plaintiff and Appellant, v. Michael Alan BARRETT, Joseph Henry Seidle, Jr., and David Michael Freeland, Defendants and Respondents.

Cr. 5355.

Court of Appeal, Third District, California.

Nov. 26, 1969.

Hearing Denied Jan. 21, 1970.

Thomas C. Lynch, Atty. Gen., by Charles P. Just, Deputy Atty. Gen., Sacramento, for plaintiff-appellant.

James H. Wolpman, Menlo Park, for defendants-respondents.

FRIEDMAN, Associate Justice.

On rehearing. In this case the three defendants moved successfully to set aside the information, claiming that at the preliminary examination the prosecution failed to establish probable cause for an arrest and search which revealed marijuana and hashish in the wheel well of their automobile, hence that the search violated the Fourth Amendment. The People appeal.

The information leading to defendants' arrest and the search of their car was supplied to Police Officer Ricketts by 16-year-old Ronald. At the preliminary examination Ronald testified that he was standing near a store when defendants drove up and asked if he wanted to buy 'hash' or opium. One defendant took off the car's right rear hub cap and displayed a bag in the wheel well. Ronald indicated lack of interest and defendants drove away. Soon after Ronald approached Officer Ricketts as he sat in his patrol car and told him of the incident. Ricketts testified that he had known Ronald 'quite well' for about 2 1/2 months. Ricketts himself had noticed the three defendants and their brown Chevrolet earlier that day. After receiving the information from Ronald, Ricketts notified the sheriff's department and drove out on the highway toward another community in order to overtake defendants. Approximately half an hour later he saw defendants' car and stopped them. After the arrival of assisting officers and a mobile phone conversation with Ronald confirming their identity, Ricketts arrested them. Removal of the right rear hub cap revealed the contraband. Ricketts had no arrest or search warrant.

In cross-examining Ricketts at the preliminary examination, defense counsel asked Ricketts 'how well' he knew Ronald and how long Ricketts had lived in the community. At that point the prosecutor objected. Although defendants' attorney told the magistrate that he was inquiring into Ronald's reliability as an informant, the magistrate sustained the objection. Subsequently the defense objected to introduction of the narcotics into evidence, as serting that the prosecution had failed to establish Ronald's reliability. The objection was overruled. The defense then called three of Ronald's contemporaries to the stand. Each gave testimony somewhat indicative of Ronald's lack of reliability. One testified that Ronald had tried to sell him mescaline.

If illegally obtained evidence is the sole basis of an indictment or information, the defendant is held without reasonable or probable cause, and the superior court should grant his motion to set aside the accusation. (People v. Scoma (1969) 71 A.C. 349, 352, 78 Cal.Rptr. 491, 455 P.2d 419.) The defense makes out a prima facie case of illegality by establishing that the arrest or search was made without a warrant; the burden then rests upon the prosecution to show justification. (People v. Edwards (1969) 71 A.C. 1141, 1144, 80 Cal.Rptr. 633, 458 P.2d 713; Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23.) The justification for a warrantless search usually consists of a showing that the search was incidental to a lawful arrest. A special rule applies to searches of automobiles believed to contain contraband. Whether or not an arrest is made, an officer may conduct a warrantless search of an automobile if he has probable cause to believe that it contains contraband and 'where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' (Carroll v. United States (1925) 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543, 541, quoted in Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, 694, fn. 9; see Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; People v. Terry (1964) 61 Cal.2d 137, 152, 37 Cal.Rptr. 605, 390 P.2d 381.)

Relative to warrantless arrests and searches, probable cause is said to exist when the circumstances within the officer's knowledge are sufficient to warrant a prudent man in believing that the defendant has committed an offense. (People v. Hogan (1969) 71 A.C. 927, 930, 80 Cal.Rptr. 28, 457 P.2d 868.) There is no exact formula for the determination of probable cause; each case must be decided on its own facts and 'total atmosphere.' (People v. Ingle (1960) 53 Cal.2d 407, 412--413, 2 Cal.Rptr. 14, 348 P.2d 577.) Nevertheless, the facts must be viewed in the light of Fourth Amendment purposes. (Chimel v. California supra, 395 U.S. at p. 764, 89 S.Ct. at p. 2040, 23 L.Ed.2d at p. 695.)

In this case defendants contend that Ronald's uncorroborated information did not supply Officer Ricketts with probable cause to stop and search their automobile. Defendants rely upon the principle that an informer's statement suffices to create probable cause only if the officer has some corroborating knowledge of the informant's or information's reliability. (People v. Lara (1967) 67 Cal.2d 365, 374, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Talley (1967) 65 Cal.2d 830, 835--836, 56 Cal.Rptr. 492, 423 P.2d 564.)

In examining Officer Ricketts, the prosecutor made no attempt to establish Ronald's reliability. Neither did he tinge Ronald's youthful past with the coloration of narcotics involvement. He simply portrayed Ronald as a neutral citizen who reported a law violation to the police. This prosecution tactic rested on the citizen-informer rule. According the that rule, probable cause may spring from information supplied by one whose reliability is unknown but who observes criminal activity and, by notifying the police, acts openly in aid of law enforcement. (People v. Gardner (1967) 252 Cal.App.2d 320, 324--325, 60 Cal.Rptr. 321; People v. Griffin (1967) 250 Cal.App.2d 545, 550--551, 58 Cal.Rptr. 707; People v. Lewis (1966) 240 Cal.App.2d 546, 550--551, 49 Cal.Rptr. 579; see also People v. Edwards, supra, 71 A.C. at p. 1150, 80 Cal.Rptr. 633, 458 P.2d 713; People v. Hogan, supra, 71 A.C. at p. 930, 80 Cal.Rptr. 28, 457 P.2d 868.) Where the rule applies, no corroboration of the informant's reliability is necessary. (People v. Sesser (1969) 269 A.C.A. 808, 812, 75 Cal.Rptr. 297.) Nevertheless, its 'rationale * * * has no application * * * where the informant was apparently himself involved in narcotics traffic.' (People v. Scoma, supra, 79 A.C. at p. 355, fn. 7, 78 Cal.Rptr. at p. 495, 455 P.2d at p. 423.)

Although the defense presented witnesses who testified to Ronald's unreliability and even a degree of narcotics involvement, none of their testimony was brought within Officer Ricketts' sphere of awareness. Probable cause must be tested by facts which, according to the record, were known to the officers. (People v. Talley, supra, 65 Cal.2d at p. 835, 56 Cal.Rptr. 492, 423 P.2d 564.) Thus there was no evidence to strip Ronald of the citizen-informer guise created by the prosecution. Whatever the nature of the prosecution's burden of showing justification for a warrantless search, whether a burden of persuasion or one of going forward with a prima facie case, the evidence before the magistrate satisfied the citizen-informer rule and permitted the conclusion that Officer Ricketts had probable cause for the search.

When defendants' motion to set aside the information laid this conclusion before the superior court, that court had no authority to substitute its judgment of evidentiary weight for the magistrate's. (Perry v. Superior Court (1962) 57 Cal.2d 276, 283, 19 Cal.Rptr. 1, 368 P.2d 529.) The only evidence bearing on the official frame of mind denominated 'probable cause' had emanated from the prosecution. '(U)nder these circumstances the court in ruling on a motion to set aside the information will frequently not be in a position to make a final determination as to the admissibility of the evidence. Accordingly, the information should not be set aside on the ground that essential evidence was...