Bethune v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: KAUS; AISO, J., and SELBER
• Citation: Bethune v. Superior Court, 11 Cal.App.3d 249, 89 Cal.Rptr. 690 (Cal. App. 1970)
• Decision Date: 17 September 1970
• Parties: Linda Marie BETHUNE, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent, PEOPLE of the State of California, Real Party in Interest. Civ. 36223.

Page 690

89 Cal.Rptr. 690

11 Cal.App.3d 249

Linda Marie BETHUNE, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 36223.

Court of Appeal, Second District, Division 5, California.

Sept. 17, 1970.

Harry E. Weiss, Los Angeles, for petitioner.

No appearance for respondent.

Evelle J. Younger, Dist. Atty., Harry Wood, Head, Appellate Division, Daniel L. Lieberman, Deputy Dist. Atty., for real party in interest.

KAUS, Presiding Justice.

Petitioner seeks a writ of mandate to suppress certain evidence found in her purse after her arrest on July 15, 1969, which evidence forms the basis of a two count information pending against her in the respondent court.

FACTS

On July 14, 1969, Officer Tingirides obtained a search warrant from a magistrate permitting him to search apartment B at 4067 Abourne Avenue, apartment 9 at 4024 Gelber Place, single family residences at 4830 Macot Street and 2517 Alsace Street, the garage in the rear of the Alsace Street address, the 'front house' at 2035 Harcourt Avenue, a 1968 Cadillac convertible, license number ZBP--887, a 1964 Oldsmobile convertible, license number MUZ--056, and the persons of Gustav Marchand, John Joseph Marchand and Glen Marchand. The warrant permitted search for narcotics and paraphernalia. It was issued on the basis of a lengthy affidavit prepared by Tingirides, the relevant portions of which we will summarize.

On May 1, 1969, an informant told Tingirides that Gus Marchand was dealing in heroin which he obtained from his brother John Joseph. One got in touch with Gus by calling the number 296--8183. On July 8 Tingirides, who was in the company of the informer, dialed that number. The informer said to whoever answered the call, 'I want to try one of those $25 things.' After he had hung up the informer told Tingirides that 'the buy was set up for the Crenshaw Shopping Center.' Tingirides gave the informer $25.00 and they drove to the shopping center where Gus 'emerged' from a 1968 Cadillac, license number ZBP 887, walked directly to the informer and appeared to shake hands with him. Gus then left. The informer and Tingirides met at an undisclosed location and the informer handed Tingirides a balloon containing heroin and told him that he had received it from Gus.

Tingirides and the informer went through the identical procedure on July 9. This time Gus appeared in a 1964 Oldsmobile, license number MUZ 056. Again, after meeting Gus, the informer met with Tingirides and handed him a balloon of heroin which he had supposedly received from Gus in exchange for money furnished by Tingirides. During these two transactions the informer was at all times 'within the visual sight' of Tingirides. ¹ Before the two calls to the number 296--8183 were made, Tingirides checked it 'with the telephone company and the number came back registered to an address at 4067 Abourne Avenue, Los Angeles, apartment B.' A fellow officer, Sergeant Kissenger, had that location under surveillance at the time of the July 9 transaction and later told Tingirides that at about the time when the telephone call was placed, Gus left the Abourne Avenue address and drove directly to the Crenshaw Shopping Center.

Between about noon on July 10 and late at night on July 13 Tingirides and other officers had Gus under more or less continuous surveillance. On July 10 Gus drove to the shopping center, where he met an unknown person with whom he appeared to exchange something. He then went to an apartment complex at 4024 Gelber Place where he stayed for one hour and twenty minutes. From there he drove to 2035 Harcourt Avenue for a thirty-five minute stay, to 4830 Macot Street for a ten minute sojourn, back to 2035 Harcourt for a five minutes stopover and finally to an apparently empty house at 2517 Alsace Street. After a few minutes at that address, Gus drove back to 2035 Harcourt and from there he took himself to 4830 Macot Street where he finally came to rest until 6:30 p.m. when he drove to the Crenshaw Shopping Center. There he exchanged something with three females, one of whom was recognized by a fellow officer as a narcotic addict. That business completed, Gus returned to 4067 Abourne Avenue.

On July 12 Tingirides and other officers followed Gus--who on that day drove the Cadillac and was accompanied by his brother Glen--to various locations, one of which was 4024 Gelber Place. From there Gus drove to the Crenshaw Shopping Center where he had a conversation with an unknown male. At times Gus had performed certain maneuvers which the officer interpreted as a technique 'used by people that suspect that they are being trailed and in the language of the streets is known trying to 'shake a tail. " After leaving the shopping center, Gus drove to 4839 Macot Street where two females, one of whom was petitioner, got into the car, which then drove to Disneyland. In the Disneyland parking lot 'the vehicle made many random turns and appeared to be doubling back over prior routes as if attempting to lose any vehicle that may have been following' it. Eventually the party of four checked in at the Disneyland Hotel. They left at 8:00 p.m. and drove back to 4067 Abourne Avenue. After staying there for a few minutes they drove 'in an evasive circuitous route' to 2127 Nadeau Street. Glen went into the house at that address for a few minutes and returned to the car, which left, driving the first fifty feet with its lights out. It proceeded to 4067 Abourne Avenue where the party stayed for fifteen minutes. Thence they proceeded to 4024 Gelber Place (ten minutes) and finally drove back to Disneyland.

At 8:30 p.m. on July 13, a security man at the Disneyland Hotel told Tingirides that at some undisclosed time, when Gus and his companions were not in, an unknown called had left the following message: 'They needed delivery, you should take care of an old man and an old lady.' The four then left Disneyland at 11:30 p.m. that night. They drove to 4067 Abourne Avenue, where Gus entered the apartment house for five minutes. The car then proceeded to a residence on Gibraltar Street where Gus and Glen entered the home. The two females drove to 4024 Gelber Place. There they waited for the men who arrived in an unknown vehicle twenty minutes later. When Tingirides arrived at the Gelber Place address, he saw two men sitting in a car. After Gus and Glen had arrived they went into the Gelber Place apartment house and were soon followed by these two men who stayed inside for a short time, emerged and left in their own car. Gus and Glen then came out, joined the ladies, and all four drove back to Disneyland.

Tingirides' affidavit then sets forth his substantial qualificiations as a police officer substantial qualifications as a police officer his conclusion, from all that he had observed, that 'Gus Marchand is traffiking (sic), dealing, and selling heroin; that he is being aided and assisted by Glen Marchand and John Joseph Marchand; that he is storing and hiding narcotics in at least five separate locations.'

As noted earlier, the search warrant was issued on July 14. On July 15 Tingirides, who was in the company of other officers, arrested Gus, Glen and petitioner in the Cadillac at the intersection of Santa Barbara and Coliseum, which was a short distance from the Abourne Avenue address. The charge was 'conspiracy to possess heroin for sale.' No search of the car was conducted at that time because traffic was heavy, a crowd had started to gather and an atmosphere of commotion had begun. The arrestees were therefore taken to 4067 Abourne, apparently in a police vehicle. An officer drove the Cadillac to that address. Petitioner had left her purse in the car. It was taken into the apartment and searched. It was found to contain cocaine, a narcotic (Health & Saf.Code § 11500) and benzedrine, a restricted dangerous drug (Health & Saf. Code § 11910).

We now digress to discuss certain procedural aspects of the case. A preliminary hearing was held on October 2, 1969, before the same magistrate who had issued the search warrant. It appeared at that time that at some point,' before the search,' Tingirides had altered the warrant to correct what he called a typographical error. One of the places which the warrant ordered to be searched was 'apartment 9 of 4024 Gelber Place.' Tingirides crossed out the '9' and the last two figures of '4024' and substituted the figures '15' and '48' in their place. On the basis of Tingirides' action, certain items which were discovered during a search of the Gelber Place address were suppressed by the magistrate and the criminal proceedings with respect to the Marchand brothers and certain other codefendants were dismissed. All that the People were left with after this rather massive investigative effort were, therefore, the charges against petitioner. The magistrate did not stop to determine whether the alteration of the warrant invalidated the seizure of the items found in petitioner's purse, since she agreed with the prosecutor who specifically set out to prove that petitioner's arrest was valid based on probable cause and that the search of the purpose should be upheld as incident to that arrest. It therefore need not matter whether the search warrant's command to search the Cadillac conferred authority to search the purse found in the vehicle or whether, if it did, the alteration of the warrant voided any authority to act pursuant thereto.

Other features of the preliminary hearing should be noted: In attempting to justify the seizure of the contends of petitioner's purse as being incidental to a valid arrest, the People examined Tingirides as their witness. We hold that one way or another the magistrate became entitled to consider the statements in his affidavit in support of the search warrant on the issue of probable cause to arrest petitioner. ² In addition he testified that h...