Alexander v. Superior Court

• Decision Date: 26 April 1973
• Citation: 9 Cal.3d 387,508 P.2d 1131,107 Cal.Rptr. 483
• Court: California Supreme Court
• Parties: , 508 P.2d 1131 Belinda Jewell ALEXANDER, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30034. In Bank

Page 483

107 Cal.Rptr. 483

9 Cal.3d 387, 508 P.2d 1131

Belinda Jewell ALEXANDER, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 30034.

Supreme Court of California,

In Bank.

April 26, 1973.

Marks, Sherman & Schwartz, Burton Marks, Beverly Hills, Roger S. Hanson, Woodland Hills, and Jonathan K. Golden, Beverly Hills, for petitioner.

No appearance for respondent.

Joseph P. Busch, Dist. Atty., Harry Wood and Donald J. Kaplan, Deputy Dist. Attys., for real party in interest.

TOBRINER, Justice.

Defendant petitions under Penal Code section 1538.5 for an order compelling the superior court to quash a search warrant, to suppress evidence seized pursuant to that warrant, and to dismiss the charges against her. For the reasons discussed below, we conclude that a writ of mandate should issue compelling the quashing of the warrant and suppression of the evidence.

The facts may be summarized briefly. The police obtained a warrant to search defendant's apartment at 1155 N. La Cienega, apartment 1100, Los Angeles. The search resulted in the seizure of less than one gram of heroin and a large quantity of plastic bags--the evidence defendant seeks to suppress.

The relevant details of the affidavit executed by Police Officer McKnight in support of the search warrant are as follows:

(1) Informant No. One told affiant that he saw William Freedman in possession of at least two kilos of heroin;

(2) Penny Smith told affiant that she purchased two to three ounces of heroin per week from Freedman and stated that the heroin in her possession when she was arrested was so purchased;

(3) Affiant, while keeping Freedman under surveillance, observed him entering the apartment building at 1155 N. La Cienega (4) At an interview conducted by affiant's fellow officer, Sergeant Sakoda, affiant witnessed the manager of that apartment builidng identity freeman from a photograph as the person who visted apartment 1100 at 1155 N. La Cienega almost every day, staying from fifteen minutes to two hours;

(5) At the same interview, the manager told affiant that he knew the occupant of apartment 1100 as Belinda J. Alexander (defendant). The manager showed affiant a lease indicating defendant as the tenant of that apartment starting October 31, 1969;

(6) The Department of Motor Vehicles informed affiant that the car parked in the stall assigned to apartment 1100 was registered to defendant at 8804 Wonderland Avenue;

(7) Informant No. Two stated to affiant that Freedman kept large quantities of narcotics at a Wonderland Avenue residence where a female known as Belinda 'sat' on the stash of narcotics.

The issue for decision is whether the affidavit is sufficient to support the issuance of a warrant for the search of apartment 1100, 1155 N. La Cienege.

A search warrant should only be issued on probable cause. (U.S.Const., Amend. IV; Cal.Const., art, I, § 19; Pen.Code, § 1525.) The requirement of probable cause interposes the magistrate between the police officer's zealous pursuit of suspects and evidence and the citizen's pursuit of privacy and freedom from unreasonable inference. The magistrate's function in this scheme is to render a neutral and detached judgment, not to serve as a perfunctory rubber stamp for the police. (Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.) To promote the meaningful performance of that function the Supreme Court in Aguilar established a two-pronged test requiring that the affidavit set forth (1) 'some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were,' and (2) 'some of the underlying circumstances from which the offier concluded that the informant . . . was 'credible' or his information 'reliable'.' (Aguilar v. Texas, Supra, at p. 114, 84 S.Ct. at p. 1514.)

The instant affidavit provides two components of information about the defendant: (a) Informant No. Two told the officers that Freedman used defendant's former residence on Wonderland Avenue to store large quantities of narcotics, ¹ and (b) police surveillance indicated that Freedman, who was heavily implicated in illegal narcotics activity, regularly visited defendant in her apartment at 1155 N. La Cienega. An examination of these components compels the conclusion that the instant affidavit failed to support the issuance of a warrant to search defendant's apartment.

There can be no question that the information secured from Informant No. Two constituted the fundamental basis for the issuance of the warrant for defendant's residence. Aside from this information, the affidavit reveals only that defendant had frequent visits from a known narcotics dealer; no connection was made between such visits and any criminal conduct. As we discuss below, however, Informant No. Two's statement that Freedman kept large quantities of narcotics at defendant's former residence does not meet either prong of the Aguilar test, and, consequently, that tip, in itself, is inadequate to provide probable cause to believe that narcotics were present in defendant's La Cienega apartment. ²

In People v. Hamilton (1969) 71 Cal.2d 176, 77 Cal.Rptr. 785, 454 P.2d 681, this court articulated the first prong of the Aguilar test, requiring that 'the affidavit . . . allege the informant's statement in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such statement.' (Id. at pp. 179--180, 77 Cal.Rptr. at p. 787, 454 P.2d at p. 683.) Hamilton involved an affidavit which stated that the 'affiant was informed on July 13, 1967, by (a) confidential reliable informant,' that defendants had illegal drugs in their possession at a specified address. (Id. at p. 179, 77 Cal.Rptr. at p. 787, 454 P.2d at p. 683.) We held, 'It is the first 'prong' of the Aguilar test which strikes the affidavit now before us: that document undertakes absolutely no effort to set forth any of 'the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were. . . .' (Aguilar v. Texas, Supra, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, 728.)' (Id. at p. 180, 77 Cal.Rptr. at p. 787, 454 P.2d at p. 683.) Furthermore, even though the informant alleged that the drugs were kept in approximately 300 rolls of 10 pills each, we held that this detail was insufficient to permit an inference that the informer. 'had personal knowledge' of the matter. (Id. at p. 181, 77 Cal.Rptr. 785, 454 P.2d 681.)

The first prong of the Aguilar test as articulated in Hamilton was recently applied in Halpin v. Superior Court (1972) 6 Cal.3d 885, 101 Cal.Rptr. 375, 495 P.2d 1295. In Halpin, the police officer made an oral application for a search warrant, testifying that he had been informed that a well-described person arriving on a flight from San Diego to San Bernardino would take possession of an equally well-described camper truck containing a large quantity of marijuana. We held that this testimony did not satisfy the requirements of Aguilar and Hamilton since 'The magistrate was not provided with a sufficient statement of the underlying circumstances from which he could evaluate the validity of the informer's conclusion that (defendant) was handling, transporting or selling marijuana.' (Halpin v. Superior Court, Supra, 6 Cal.3d at p. 893, 101 Cal.Rptr. at p. 380, 495 P.2d at p. 1300.) The court illustrated the fatal omission as follows: 'For example, it is not alleged that the informant personally observed Halpin or others handling or transporting marijuana, or that the informant had had dealings with (defendant) or any other person in connection with the camper. . . .' (Id.)

In the instant affidavit, Informant No. Two was quoted as stating that narcotics, 'after being prepared (were) kept at a stashed (sic) where a female negro known as Belinda 'sat' on the stash of narcotics, . . . that the last time he had contact with this female negro known as Belinda she was living on Wonderland Avenue. . . .' This statement does not inform the magistrate of underlying circumstances from which he could evaluate the validity of Informant No. Two's conclusion that Belinda 'sat on a stash of narcotics' at Wonderland Avenue. Nor does the affidavit set forth a scintilla of showing that the informant saw Freedom bring narcotics to defendant's apartment at 1155 N. La Cienega. Freedman may have been a dealer in narcotics but we have not an iota of showing that he visited Belinda at the La Cienega address to 'stash' narcotics or that narcotics were 'stashed' at that place. The affidavit does not allege that the informant personally observed narcotics in defendant's apartment at either La Cienega or Wonderland Avenue. Nor does the statement set forth details as to the type or quantity of narcotics or the manner of concealment, if any, utilized at either place. We find even less detail here than the description which the court in People v. Hamilton (1969) 71 Cal.2d 176, 77 Cal.Rptr. 785, 454 P.2d 681, held insufficient to support an inference that the informant spoke from personal knowledge; we conclude that Informant No. Two's statement does not satisfy the first prong of the Aguilar test.

Furthermore, Informant No. Two's statements regarding Belinda's 'stash' were stale. The affidavit discloses that Informant No. Two last had contact with Belinda when she lived on Wonderland Avenue and that she took occupancy of apartment 1100 at 1155 N. La Cienega on October 31, 1969. From these facts, it can be inferred that Informant No. Two's information concerning Belinda was at least one year old when presented to the magistrate on November 12, 1970.

As a general rule, information is stale, and hence unworthy of weight in the magistrate's consideration of an affidavit, unless the information consists of 'facts so closely related to the time of the issue...