Frazzini v. Superior Court

• Decision Date: 22 May 1970
• Citation: 7 Cal.App.3d 1005,87 Cal.Rptr. 32
• Court: California Court of Appeals Court of Appeals
• Parties: Carson Cameron FRAZZINI, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF INYO, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 10095.

Page 32

87 Cal.Rptr. 32

7 Cal.App.3d 1005

Carson Cameron FRAZZINI, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF INYO, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 10095.

Court of Appeal, Fourth District, Division 2, California.

May 22, 1970.

Vargas, Bartlett & Dixon and John C. Bartlett and Steven T. Walther, Reno, Nev., for petitioner.

Frank H. Fowles, Dist. Atty., and L. H. Gibbons, Jr., Deputy Dist. Atty., for real party in interest.

OPINION

KAUFMAN, Associate Justice.

Petitioner (hereinafter defendant) is charged by information with violation of section 11910 of the Health and Safety Code (unlawful possession of restricted dangerous drugs). His motion to set aside the information (Pen.Code, sec. 995), was denied and he seeks a writ of prohibition to restrain respondent court from proceeding further against him on the information. (Pen.Code, sec. 999a.)

Defendant contends (1) that the search of a cabin in which contraband was found was made pursuant to a search warrant issued upon an affidavit lacking sufficient facts to establish probable cause to support its issuance; and (2) that, in any event, insufficient evidence was presented at the preliminary hearing to prove that defendant had actual or constructive possession of the contraband.

The Facts

At approximately 9:00 p.m. on May 12, 1969 law enforcement personnel went to apartment #1 of McMurry's Apartments near Highway 395 in Bishop for the purpose of executing a search warrant issued that same day by the Northern Inyo Justice Court on the application of Raymond L. Riley, an investigator for the Inyo County District Attorney's office. The search warrant commanded an immediate search of the premises, the person of defendant, the person of Lizabeth Faley, a white Dodge pickup truck customarily used by the defendant, and a red, 1964 Buick automobile customarily used by Lizabeth Faley, for marijuana and restricted dangerous drugs as defined in the Health and Safety Code.

After ascertaining that the two vehicles described in the warrant were parked near the cabin and that there were persons inside the cabin, Mr. Riley went to the door and called out defendant's name. The front door was open but a screen door was closed. Defendant answered and came to the door, and Riley identified himself as a police officer and told defendant that he had a search warrant for defendant's residence, person and car. The officers then entered the cabin. Inside were defendant, Lizabeth Faley and a Mr. Summers. All were in the living room.

The search of the premises pursuant to the warrant disclosed several items constituting dangerous restricted drugs. ¹ In the kitchen, which, from the appearance of dishes and cooking vessels had recently been used, on a shelf above the refrigerator, one of the officers found a box containing a red capsule later identified as seconal or secobarbital. Investigator Riley also found four pills in a pocket of a blue and green striped wool shirt hanging in the closet of the only bedroom of the cabin. These pills were subsequently identified as amphetamine.

In the same closet was a suitcase containing clothes and miscellaneous items including a wallet and various papers bearing defendant's name. ² Riley directed a question, apparently to all persons present, asking to whom the striped wool shirt belonged. He received no response. There were also some dirty clothes on the floor of the closet. As Riley was looking through the dirty clothes, defendant stated to him, 'Don't get dirty; they are pretty cruddy.' Some other dirty clothing was found in a box in the bedroom at the foot of the bed. When Riley asked to whom these clothes belonged, Mr. Summers responded that they belonged to him.

Mr. McMurry, the owner of the cabin, testified at the preliminary hearing that he had never seen defendant before and that the cabin in question was rented by one Bob MacDonald. Riley did not communicate with McMurry prior to the search and arrest for fear that word of his investigative activities would get out.

The affidavit in support of the application for the search warrant was made by Investigator Riley and may be summarized as follows. It contains a description of the cabin, of defendant and the Dodge pickup habitually driven by him, and Lizabeth Faley and the Buick automobile habitually driven by her. It is stated that there is probable and reasonable cause to believe that marijuana and various dangerous restricted drugs are to be found upon said persons and in said vehicles and in the cabin. This conclusion is supported by the following facts.

Riley has had special training and considerable experience in narcotics investigation, and from his training and experience in the Inyo County area he knows that marijuana and dangerous drugs are not manufactured or harvested in that area but that they come to the area from the vicinity of Reno and Los Angeles. Riley had been investigating narcotics abuse in Inyo County for approximately ten months, and during the immediately preceding six months, his attention had been directed to the activities of defendant and Lizabeth Faley.

He had been told by a reliable informant (details supporting reliability included) that during the month of October 1968 defendant went to Reno, Nevada in order to buy drugs and that he and a confederate were transporting marijuana and dangerous drugs into Inyo County and the City of Bishop. He was further informed by the informant that she saw marijuana and dangerous drugs in plain view in defendant's apartment in October 1968. Said informant also indicated that Lizabeth Faley was selling restricted dangerous drugs while working as a cocktail waitress at a tavern in Bishop and that the informant, herself, had received restricted dangerous drugs from Lizabeth Faley at said establishment and had there seen Lizabeth Faley supply other persons with restricted dangerous drugs.

Riley personally observed defendant, during the months of February through April, 1969, make about three trips a month from the Reno-Tahoe area to the Bishop area, each stay in the Bishop area averaging about three days. His most recent visit to the Bishop area was, however, of longer duration. Riley had observed that, when in the Bishop area, defendant was in the almost constant company of Lizabeth Faley and that he frequently resided with her when in the Bishop area. Both defendant and Lizabeth Faley had frequently been seen associating with a number of known narcotics and dangerous-drug users in the Bishop area (names and supporting data included).

During his stays in the Bishop area, defendant frequently resided at the Mountain View Motel. During defendant's most recent stay in the Bishop area, he checked into said motel on April 26, 1969. Defendant was visited at said motel by numerous persons, including several of the known drug users aforementioned, to such an extent that the manager of the motel, Kenneth Slee, discussed the matter with defendant, as a result of which defendant checked out of said motel on May 6, 1969. Slee had given Riley an ash tray which he found in defendant's room while cleaning on April 28, 1969, which contained numerous marijuana seeds and the remains of a marijuana cigarette.

Following receipt of the information that defendant had moved out of the Mountain View Motel, Riley attempted to determine where defendant was then staying should he still be in the Bishop area. Five days later, on May 11, 1969, Riley observed defendant and Lizabeth Faley leave a local bar at 2:15 a.m. and observed them proceed to and enter cabin #1 of McMurry's Apartments. Neither had left when Riley discontinued his surveillance of the cabin at 4:00 a.m.

Riley was informed by one Gale Murphy, owner of a liquor store in the vicinity of the cabin, that the had observed numerous 'hippy' type visitors going in and out of the cabin at all hours of the day and night. Two of these visitors were identified as known or suspected narcotics violators.

Based on the foregoing information, Riley stated his belief that defendant and Lizabeth Faley '* * * are using the present residence above described * * * for the illegal consumption and transfer of marijuana * * * and restricted dangerous drugs * * *' and '* * * that the use of said marijuana and dangerous drugs and the transfer of the same has been transferred from the 'Mountain View Motel" to the cabin.

Substantially all of the facts set forth in the affidavit were introduced into evidence in one form or another at the preliminary hearing.

Validity of the Search Warrant

We turn first to defendant's contention that the facts in the affidavit were insufficient to justify the issuance of a warrant for the search of the cabin. It is urged that the facts are insufficient to establish probable cause to believe that the cabin was defendant's residence or that marijuana or dangerous restricted drugs would be found in the cabin.

Section 1524 of the Penal Code sets out the grounds upon which a search warrant may be issued. ³ Section 1527 of the Penal Code provides that the affidavit 'must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist,' and it is fundamental that the issuance of a search warrant must be based upon the facts showing probable cause. (U.S.Const. Amend. IV; Cal.Const. art. I, sec. 19; Pen.Code, sec. 1525.) In determining the sufficiency of an affidavit for the issuance of a search warrant, the test of probable cause is approximately the same as that applicable to an arrest without a warrant, a commitment by a magistrate or an indictment by a grand jury, that is, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe and conscientiously to entertain a strong suspicion of the guilt of the accused (Skelton v. Superior Court, 1 Cal.3d 144, 150,...