Halpin v. Superior Court

• Citation: 495 P.2d 1295,101 Cal.Rptr. 375,6 Cal.3d 885
• Court: United States State Supreme Court (California)
• Decision Date: 24 April 1972
• Parties: , 495 P.2d 1295 Thomas HALPIN et al., Petitioners, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29949. In Bank

Page 375

101 Cal.Rptr. 375

6 Cal.3d 885, 495 P.2d 1295

Thomas HALPIN et al., Petitioners, v. The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 29949.

Supreme Court of California,

In Bank.

April 24, 1972.

Rehearing Denied May 23, 1972.

Paul G. Sloan, Friedman & Sloan, San Francisco, Miller, Glassman & Browning and Anthony Michael Glassman, Beverly Hills, for petitioners.

No appearance for respondent.

Lowell E. Lathrop, Dist. Atty., and Joseph D. Canty, Jr., Deputy Dist. Atty., for real party in interest.

Paul N. Halvonik, Charles C. Marson, San Francisco, A. L. Wirin, Fred Okrand, Lawrence R. Sperber, Los Angeles, Karlton, Blease, Sacramento, as amici curiae on behalf of petitioners. half of petitioners.

WRIGHT, Chief Justice.

On February 3, 1971, petitioners Thomas and Rebecca Halpin, husband and wife, and Martin Silva were charged by indictment with conspiracy to transport marijuana (Pen.Code, § 182, subd. 1; Health & Saf.Code, § 11531), transportation of marijuana (Health & Saf.Code, § 11531) and possession of marijuana for sale (Health & Saf.Code, § 11530.5). The trial court denied their motions to set aside the indictment (Pen.Code, § 995) and to suppress evidence (Pen.Code, § 1538.5) which consisted of over 500 pounds of marijuana seized pursuant to an allegedly invalid search warrant and an incriminating tape recording made by police officers who eavesdropped on a conversation initiated by Halpin to his wife from a telephone located within the jail facility. Petitioners now seek a statutory writ of mandate (Pen.Code, § 1538.5, subd. (i)) to compel the trial court to suppress the aforementioned evidence. For reasons hereinafter set forth, we hold that the marijuana and the tape recording must be suppressed as evidence and that a peremptory writ of mandate must issue.

At the outset we deem it appropriate to state that we are compelled to declare invalid the warrant which was issued in connection with the search of the vehicle and the subsequent seizure of the marijuana since the magistrate failed to follow the basic requirements for the issuance of such a warrant enunciated in 1964 by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. The two-pronged test spelled out in that decision is not difficult to comprehend or follow. ¹ Magistrates and law enforcement agencies, however, continue to manifest confusion. Some, while expressing a threshold knowledge of the requirements of Aguilar, treat them with unwarranted perfunctoriness. An example of such is illustrated by the colloquy between the magistrate who issued the search warrant and the deputy district attorney in the instant case. ²

Courts do not require that an affidavit in support of a search warrant be drafted with the precision of a model legal instrument nor interpreted in a hypertechnical manner. ³ However, once it is determined that a search without a warrant cannot be conducted under any of the well-recognized exceptions, Aguilar must be followed. '(T)he court must still insist that the magistrate perform his 'neutral and detached' function and not serve merely as a rubber stamp for the police.' (Aguilar v. Texas, supra, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723.)

On December 14, 1970, between 2:30 and 3 p.m., police officers, including Detective Cole of the Ontario Police Department, stopped a white and green 1971 Ford Sport Custom camper truck in the City of Ontario. Previously Cole had received information that a camper of the same description contained marijuana reputedly worth $100,000. After the truck pulled over to the curb the driver 'jumped out of the truck, and as he did so he locked (it).' He was immediately placed under arrest and a search of his person produced a driver's license bearing the name of 'Thomas Allon Halpin.' Halpin declined to permit a search of the camper.

Cole then left the truck and Halpin in the custody of the other officers and proceeding to the chambers of the local magistrate to testify in support of an oral application for a search warrant. ⁴ Cole testified before the magistrate that 'Captain Mooney (of the Pomona Police Department) called me (at 8:05 a.m. this morning), informing me that at a Havasu Trailer Company at 1515 West Holt I would find a 1971 Ford Sport Custom truck, white color with a dark green roof, and on this truck would be a ten and a half foot Havasu camper, cream color, with a darker wood--simulated wood--panel. He informed me that the truck would have a temporary license in the rear window, giving me a number of 1291208. He stated that this camper body would have a false type body and contained approximately $100,000 worth of marijuana. He stated that a white male known to him only as Tom (who apparently would be driving the camper) would be arriving in San Bernardino on a flight from San Diego. He described this male as being approximately six foot and weighing 160 to 170 pounds. He stated he had sandy hair, a mustache and wore horn-rimmed glasses. . . . At this time he did state that this truck would be parked next to a blue Chevrolet. . . . I asked him about (the informant's) reliability, and he stated that on November 30 he had received similar information from this informant which he gave to the San Francisco Police Department, which resulted in an arrest. At this time a Havasu camper was loaded similar to the one he described here and contained (a very large haul) of marijuana.'

Cole further testified before the magistrate that after receiving this information he drove to the Havasu Trailer Company and, about 8:40 a.m., observed in the company's lot the truck which Captain Mooney had described to him. Cole called the sheriff's narcotic division for assistance and the officers began a surveillance of the truck about 9:30 a.m. At 11:30 a Volkswagen automobile drove into the parking lot. The frame around the license plate bore the name of a San Diego car dealer and the man (petitioner Halpin) in the car fit the description earlier given to Cole. Halpin left the automobile and went into the trailer company office. He remained there a short while then returned to the Volkswagen and drove away. Officers followed Halpin for a while but determined that if they continued they might breach the integrity of their surveillance and they thereupon returned to their positions near the Havasu Trailer Company. About 2:30 p.m. the Volkswagen returned to the camper lot. Halpin went into the company office, remained there a short while, and thereafter entered the camper and drove off. Cole and other officers followed for a short distance before Cole pulled up alongside, showed Halpin his badge and motioned to him to pull over to the curb.

The search warrant was issued solely on the foregoing testimony. The subsequent search of the camper produced over 500 pounds of marijuana.

Halpin was removed to the San Bernardino County jail and, after being booked, was granted permission to make a telephone call using the telephone within the custodial facilities. Halpin informed Deputy Sheriff Warren Hockanson of the number--but not of the name--of the party he wished to call, and Hockanson dialed it for him. (It was later determined that Halpin was calling his wife in San Diego.) Hockanson apparently left the room shortly after the conversation began and before incriminating statements were made by Halpin and his wife. ⁵ Unknown to either of them, their conversation--in which they incriminated themselves and petitioner Silva--was monitored and tape recorded and later replayed before the grand jury.

I. The Search Warrant

Petitioners initially contend that the testimony offered by Cole in support of the search warrant was constitutionally inadequate since it failed to reflect the underlying circumstances from which the issuing judge could conclude that the informant had personal knowledge of the information which he supplied to the police and that the informant was credible or his information reliable. Petitioners thus argue that the testimony failed to satisfy the test which the Supreme Court announced in Aguilar v. Texas, supra, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, for the determination of the sufficiency of affidavits based upon the hearsay statements of an informant. We agree.

The first prong of Aguilar's two-pronged test requires that the magistrate be informed of some of the underlying circumstances from which the informant concluded that the items to be seized were where he claimed they were. In accordance with Aguilar, this court in People v. Hamilton (1969) 71 Cal.2d 176, 179--180, 77 Cal.Rptr. 785, 787, 454 P.2d 681, 683 required 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.'

In Hamilton the affidavit offered in support of the search warrant contained in relevant part the following allegations: 'That said affiant was informed on July 13, 1967, by confidential reliable informant that Jane Doe Nora also known as Nora Mae Hamilton and John Doe Tony have in their possession at a white single story one family dwelling located at 822 W. Alpine Street, Upland, Calif approximately three hundred (300) rolls of dangerous drugs wrapped in tin foil in groups of ten pills per roll. ( ) That further your affiant reviewed San Bernardino County Sheriff Office report No. D.R. 112302 which indicated Nora Mae Hamilton and Raymond David Padilla were arrested at 822 W. Alpine Street, Upland, California, on April 14, 1967 for Possession of Marijuana and Possession of dangerous drugs found there. The pills found in the April 14, 1967 arrest were amphetamine, wrapped in tin foil in groups of 10. ( ) That said confidential reliable informant has furnished information in the past which has lead (sic) to eight (8) a...