Higgason v. Superior Court

• Decision Date: 31 July 1985
• Citation: 170 Cal.App.3d 929,216 Cal.Rptr. 817
• Court: California Court of Appeals Court of Appeals
• Parties: John David HIGGASON, Petitioner & Defendant, v. SUPERIOR COURT, Orange County Respondent, PEOPLE of the State of California, Real Party in Interest and Plaintiff. G001589.

Page 817

216 Cal.Rptr. 817

170 Cal.App.3d 929

John David HIGGASON, Petitioner & Defendant, v. SUPERIOR COURT, Orange County Respondent PEOPLE of the State of California, Real Party in Interest and Plaintiff.

G001589.

Court of Appeal, Fourth District, Division 3, California.

July 31, 1985.

[170 Cal.App.3d 934] No appearance for respondent.

Cecil Hicks, Dist. Atty. (Orange), Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and Craig McKinnon, Deputy Dist. Attys., for real party in interest and plaintiff.

Ronald Y. Butler, Public Defender (Orange), Frank Scanlon, Asst. Public Defender, James Dean Allen and MacDonald Becket, Jr., Deputy Public Defenders, for petitioner and defendant.

OPINION

SONENSHINE, Acting Presiding Justice.

Petitioner John David Higgason seeks an extraordinary writ (Pen.Code, § 999a) to compel the dismissal of a felony information charging him with possession of cocaine for the purpose of sale (Health & Saf.Code, § 11351). He argues cocaine seized under the authority of a search warrant should be suppressed.

* * *

The search warrant affidavit was executed by an experienced narcotics investigator. He relied on information supplied by three anonymous telephone calls and a follow up investigation.

The first telephone call was received by the "WE TIP" organization during the early evening on September 21, 1983. The caller said David Higgason was selling cocaine and marijuana from the residence he occupied with his 15-year-old son, Robert, and a 12-year-old daughter. Higgason's vehicles were described--an older model blue and white Lincoln and a new Toyota or Datsun "4x4" pickup truck. It was said Higgason picked up the drugs in Tijuana, Mexico. Higgason was further "reported to be the manager of the apartment building...." The caller claimed firsthand knowledge of the illegal activity, saying it had been going on for approximately six months.

The next afternoon the affiant received a telephone call in his office at the police department. The caller was a man whose voice sounded like that of a person 50 to 60 years old. The affidavit states this caller gave the same information about marijuana and cocaine dealing as the "WE TIP" call of the previous day. The second caller gave the same residence address for Higgason, but said his first name was "John." The caller also described Higgason as 40 to 41 years old, 5'10"' to 5'11"', medium build and brown hair. The affidavit states, "[t]his is substantially the same description as given to 'WE TIP' by their anonymous caller."

The caller claimed Higgason's teenage son was beginning to sell drugs supplied by his father. There was foot traffic in and out of Higgason's apartment day and night, particularly on weekends. The caller said Higgason had a heavy iron gate at the top of the stairway to his apartment; a guest had to be "buzzed in" before he or she could reach the front door. According to the affidavit, "[i]t was reported ... this gate was installed by Higgason to prevent unknown subjects from gaining access to his front door and to keep the police from gaining entry, giving him time to dispose of his drugs."

This caller denied calling "WE TIP" the previous day. He was calling because he did not want young people to get involved in drug selling. He had used marijuana some ten years before, when it was not "fashionable," but came to believe drug use was wrong. The caller also said Higgason kept marijuana and cocaine in his bedroom and this informant had seen, within that past week, several baggies of marijuana and bindles of white powder Higgason said was cocaine. The caller described the quantities of these drugs in which Higgason dealt. This informant wished to remain anonymous.

On September 26, 1983, the affiant drove to the apartment described as Higgason's residence. There was a late model Datsun pickup truck with no license plates in the driveway, as well as a 1972 Lincoln "blue/white in color," registered to John David Higgason, parked in front. The affiant saw an iron gate at the top of the stairway to Apartment # 3. A Department of Motor Vehicles record check revealed the following description of John David Higgason: male, white, 5'11"', 170 pounds, brown hair, brown eyes, born on July 20, 1943. The affiant ran utility checks of the apartment and found them to be in the name of John Higgason.

During the morning of October 3, 1983, the affiant received another telephone call. The caller refused to identify herself, but the affiant believed the caller to be young and female. She said John Higgason and his teenage son were selling marijuana from their residence. Her boyfriend was buying marijuana from Higgason and she was tired of him spending all his money on drugs and "getting 'loaded' all the time. She stated she wanted her boyfriend's connection 'busted' and refused to supply anything additional, hanging up."

Based on this information, the affiant offered an expert opinion there was marijuana and cocaine, as well as other evidence of drug dealing, in the apartment. On October 5, 1983, a magistrate issued the search warrant and the police served it the next day. They recovered the contraband which led to the instant prosecution. Higgason's motion to quash the search warrant was denied by the preliminary hearing magistrate, as was his motion to set aside the information in superior court (Pen.Code, § 995). Higgason seeks an extraordinary writ to compel dismissal of the charge.

I

Recently, the California Supreme Court concluded Article I, section 28, subdivision (d) of the state constitution, the "Truth in Evidence" provision of the Victim's Bill of Rights (Proposition 8), abrogates "a defendant's right to object to and suppress evidence seized in violation of the California, but not the federal, Constitution." (In re Lance W. (1985) 37 Cal.3d 873, 879, 210 Cal.Rptr. 631, 694 P.2d 744.) From the outset, Higgason has argued the search warrant at issue is insufficient even under the relaxed federal constitutional guidelines enunciated by the United States Supreme Court in Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. He is correct.

In Gates, the court decided "it is wiser to abandon the 'two-pronged test' established by ... Aguilar and Spinelli ... [and] reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. [Citations.] The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ..., including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed. [Citation.]" (Illinois v. Gates, supra, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548, fn. omitted.)

At the same time, the court took care to indicate flexibility, not laxity, is the proper approach when reviewing a warrant's sufficiency. "In order to ensure ... an abdication of the magistrate's duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued. But when we move beyond ... 'bare bones' affidavits ..., this area simply does not lend itself to a prescribed set of rules, like that which had developed from Spinelli. Instead, [a] flexible, common-sense standard ... better serves the purposes of the Fourth Amendment's probable cause requirement." (Illinois v. Gates, supra, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332-2333, 76 L.Ed.2d 527, 549.) "Although Gates rejected the rigid application of the Aquilar-Spinelli 'two- pronged' test, the factors considered in that test remain highly relevant to the probable cause determination. [Citation.]" (United States v. Estrada (9th Cir.1984) 733 F.2d 683, 685.)

The facts of Gates and the court's analysis of them are helpful in resolving the present case. The police received an anonymous letter describing in some detail the manner in which Susan and Lance Gates shuttled drugs between Florida and Illinois. It also predicted such a shuttle on May 3. ¹ Surveillance by several law enforcement agencies revealed, as predicted, a trip by the Gates.

The court upheld the search warrant. As the phrase "totality of the circumstances" implies, the issues of "veracity," "reliability," and "basis of knowledge" are closely intertwined in making a probable cause determination. (See Illinois v. Gates, supra, 462 U.S. 213, 230, 103 S.Ct. 2317, 2327-2328, 76 L.Ed.2d 527, 543.) " '[V]eracity,' 'reliability,' and 'basis of knowledge' are weighed together with any other evidence that supports the finding of probable cause. They are viewed cumulatively, not as independent links in a chain. [Citation.]" (United States v. Estrada, supra, 733 F.2d 683, 685-686.)

Strong reliance was placed on the corroborative investigation by the police. "Our decisions applying the totality of circumstances analysis ... have consistently recognized the value of corroboration of details of an informant's tip by independent police work. In Jones v. United States [1960] 362 U.S. , 269, 80 S.Ct 735 , we held that an affidavit relying on hearsay 'is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented.' We went on to say that even in making a warrantless arrest an officer 'may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge.' [Citation.]" (Illinois v. Gates, supra, 462 U.S. 213, 242, 103 S.Ct. 2317, 2334, 76 L.Ed.2d 527, 550, emphasis added.)

The court found the law enforcement surveillance of the Gates...