People v. Castro, Cr. 11409

• Decision Date: 03 March 1967
• Docket Number: Cr. 11409
• Citation: 57 Cal.Rptr. 108,249 Cal.App.2d 168
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edward Espinosa CASTRO, Defendant and Appellant.

Page 108

57 Cal.Rptr. 108

249 Cal.App.2d 168

The PEOPLE, Plaintiff and Respondent, v. Edward Espinosa CASTRO, Defendant and Appellant.

Cr. 11409.

Court of Appeal, Second District, Division 4, California.

March 3, 1967.

Robert P. Mandler, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Stanton Price, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

Defendant was found guilty of possession of marijuana in violation of Health and Safety Code section 11530. He is appealing from the judgment.

The evidence shows that on January 15, 1965, deputy sheriffs went to the residence at 3550 1/2 Hunter Avenue, Los Angeles, with a warrant directing them to search the premises. Defendant, who was in the home, was served with the warrant, and he admitted the officers. They searched and found a quantity of marijuana cigarettes. Defendant was then arrested and charged with the offense.

The preliminary examination was conducted before the magistrate who had issued the warrant. Before commencing that examination defendant made a motion to quash the warrant, which motion was denied after a hearing at which oral testimony was taken. Again at the trial (which was conducted upon the transcript of the proceedings before the magistrate) defendant challenged the legality of the warrant, without avail.

There can be no doubt that the evidence, if admissible, supports the judgment. The only questions raised here go to the admissibility of that evidence, as affected by the was it was obtained.

The search warrant was issued upon an affidavit of Deputy Sheriff Guenther. ¹ The pertinent portions of the affidavit are as follows:

'(T)here is just, probable and reasonable cause to believe, and that he does believe, that there is now in the possession of Edward Castro on the premises located at and described as 3550--1/2 Hunter Ave. Los Angeles--a single family dwelling * * * and on the person(s) of Edward Castro the following personal property, to wit: marijuana, heroin and dangerous drugs.

'Facts in support of issuance of search warrant:

'Your Affiant is informed that the above mentioned Edward Castro is engaged in illegal sale and furnishing of narcotics as verified of arrest mentioned under File Y--094--368 on January 15, 1965, where Sheriff's Officers approached the suspect and the above mentioned narcotics were obtained and literally purchased by an under Sheriff's Officer; to wit: one half pound of marijuana. The investigation initiated in East Los Angeles; that during the investigation of this sale and observation of the movements of the defendant and conversations with the defendant caused the officers to believe to Wit: Edward Castro was involved in furnishing and sale of narcotics. It was decided that the above mentioned Edward Castro was the source of narcotics given to a person, later arrested for the sale of narcotics; that the above mentioned Edward Castro did furnish the narcotics to the defendant in File Y--094--368, later was arrested for the above mentioned sale of narcotics. That in light of observations made by several deputies and later conversation with the above mentioned arrested suspect, your affiant is of the opinion that at the above mentioned address, the above type contraband to be found at location, that a felony has been and is being committed to Wit: possession and furnishing of narcotics.'

At the hearing on the motion to quash, the magistrate stated for the record that as a basis for issuing the warrant he did not receive any information except what was set forth in this affidavit.

The Fourth Amendment to the Constitution of the United States 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.'

This limitation upon searches applies to the states as well as to the federal government. (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.)

Similar restrictions upon the issuance of search warrants are found in the California Constitution article I, section 19, and in California Penal Code sections 1525--1528.

It has long been established by the decisions of the United States Supreme Court that an affidavit containing only the opinions and conclusions of the affiant, without disclosure of the underlying facts, will not constitute 'probable cause, supported by Oath or affirmation' within the meaning of the Fourth Amendment.

In Nathanson v. United States (1933) 290 U.S. 41, at p. 47, 54 S.Ct. 11, at p. 13, 78 L.Ed. 159 the court said:

'Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough.'

In Aguilar v. State of Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 the court had before it a search warrant based upon an affidavit stating 'Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises * * *.' The court said (at pp. 114--115, 84 S.Ct. at p. 1514):

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (78 A.L.R.2d 233,) the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825 (11 L.Ed.2d 887), was 'credible' or his information 'reliable.' (Fn. omitted.) Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate', as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime,' Giordenello v. United States, supra, 357 U.S. (480,) at 486, 78 S.Ct. (1245,) at 1250 (2 L.Ed.2d 1503, at 1509); Johnson v. United States, supra, 333 U.S. (10,) at 14, 68 S.Ct. (367,) at 369 (92 L.Ed. 436, at 440,) or, as in this case, by an unidentified informant.

'We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner's trial.'

In United States v. Ventresca (1965) 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 the affidavit described in detail the observations made by the officers on seven different occasions, which, taken together, supported the inference that Ventresca was operating an illegal still. The Supreme Court held that this detailed affidavit met the standards laid down in the earlier decisions.

In reaching that conclusion, the court emphasized that the distinction between that case and Aguilar was in the kind of affidavits which the officers had presented. The opinion states (at pp. 108--109, 85 S.Ct. at p. 746):

'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. State of 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.'

In the case at bench the affidavit does not contain anything comparable to the detailed statement of facts which the officers presented to the court in Ventresca. The affidavit here states no more than that the affiant is informed that Castro is engaged in furnishing narcotics, that an official investigation has been made, and that the affiant believes that Castro was the source of the marijuana which someone sold to an undercover officer recently. The affidavit contains no information as to what was in File Y--094--368, or any statement of what was observed or otherwise learned in the investigation which cast suspicion on Castro. Nor does it give any other factual basis for the affiant's belief that Castro was the source of the marijuana. Castro's connection with narcotics is attested only by the affiant's conclusion as to the significance of unspecified information supplied by unidentified and unsworn persons. This affidavit is subject to the defect which was fatal in Nathanson and Aguilar. The warrant therefore cannot be relied upon to justify the search and seizure.

However, the record of the trial contains other evidence bearing upon the legality of the arrest and search. By stipulation the case was tried upon the transcript of the preliminary examination and the transcript of the proceedings before the magistrate in which the grounds of the warrant were challenged. At the time this procedure was agreed upon this exchange occurred:

'MR. FUKUTO: I would offer that testimony, also, in support of the search.

'MR. BUBRICK: Your Honor, I would be happy to...