Krauss v. Superior Court for San Joaquin County
| Decision Date | 21 July 1970 |
| Citation | 88 Cal.Rptr. 612,9 Cal.App.3d 793 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Lance Wellington KRAUSS, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF SAN JOAQUIN, Respondents; The PEOPLE of the State of California by Their Attorney Joseph Baker, District Attorney FOR the COUNTY OF SAN JOAQUIN, Real Party in Interest. Civ. 12462. |
Robert Chargin, Public Defender, by Ann M. Chargin, Deputy Public Defender, Stockton, for petitioner.
Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Eddie T Keller, Deputy Atty. Gen., Sacramento, for real party in interest.
Petitioner is defendant in a criminal action now pending in the Superior Court for the County of San Joaquin, in which he is charged with possession of marijuana in violation of section 11530 of the Health and Safety Code. Upon denial by the superior court of his motion suppress evidence, petitioner sought review of that order by filing the petition now before us for a writ of prohibition to restrain the respondent court from further proceedings in the criminal matter. (Pen.Code, § 1538.5 (i).) 1 Petitioner contends that a warrrantless police entry, without his consent and in his absence, of a motel room occupied by him, was unlawful and that the later seizure of a quantity of marijuana, under the authority of a search warrant obtained subsequent to the entry, was also illegal.
Connie Hernandez, a cleaning maid at a Tracy motel, was regularly assigned to clean the room in which petitioner was registered. At about midday in the course of her regular cleaning chores, she observed on a nightstand next to petitioner's bed what she thought was an empty cigarette package. Before routinely discarding it with other refuse, she opened the package to make certain it was empty. Inside the package she discovered a sandwich bag containing crushed leaves, greenish-grey in color. Mrs. Hernandez had attended a drug demonstration class conducted by police officers, at which she observed and smelled different types of narcotic substances, including marijuanna. Based on this prior experience, she believed she had found marijuana. She replaced the sandwich bag and its contents in the cigarette package, returned the package to its original location, and reported the incident to Mrs. Jacobs, the motel manager. Mrs. Jacobs went to the room with the maid, observed the items, and then telephoned the police.
Sergeant Guevara of the Tracy Police Department arrived at the motel in response to the manager's call, and both Mrs. Hernandez and Mrs. Jacobs told the officer they believed there was marijuana in petitioner's room. With the manager's permission, and in the company of the two women, the officer entered petitioner's room where he removed the sandwich bag from the cigarette package and observed in the bag a vegetable matter which proved to be marijuana. Guevara then restored the articles to their original position and departed, leaving the contraband undisturbed.
That afternoon, Sergeant Guevara obtained a warrant to search petitioner's room. The affidavit in support of the search warrant recited that Guevara was told by Mrs. Hernandez, a maid at the motel--and a reputable person--that she had that morning, in the course of her cleaning duties, gone into the descrbed motel room. The affidavit further recited--as she detailed it to Guevara--the chronology of the maid's observations of the cigarette package and its contents, her subsequent actions and those of the motel manager, in much the same manner as we have set them out above, but with one exception. Omitted from the affidavit is any mention of the officer's clandestine entry into petitioner's motel room. Included in the information given Guevara and recited in the affidavit are the circumstances of Mrs. Hernandez' attendance at the drug demonstation class.
The affidavit further recites Guevara's awareness over a period of time of 'the reputation of Lance Krauss as being a person who is on the fringes of the drug traffic in the City of Tracy;' and that Guevara had 'been advised by other officers of the Tracy Police Department, known to [Guevara] to be reliable that they have information that he [Krauss] is involved in the drug traffic in the City of Tracy.'
That evening Sergeant Guevara returned to petitioner's room at the motel. When petitioner answered his knock on the door, Guevara properly identified himself, presented the search warrant, searched the room, and found and seized a wax sandwich bag containing marijuana.
Petitioner contends that there was an insufficient showing by Sergeant Guevaras's affidavit to provide probable cause for issuance of the search warrant. The guidelines for judging the validity of a search warrant are spelled out in Aguilar v. Texas (1964) 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729: 'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible' or his information 'reliable." (See, also Spinelli v. United States (1969) 393 U.S. 410, 413, 89 S.Ct. 584, 21 L.Ed.2d 637, 641-642; People v. Scoma (1969) 71 A.C. 349, 353-354, 78 Cal.Rptr. 491, 455 P.2d 419; People v. Tillman (1965) 238 Cal.App.2d 134, 138, 47 Cal.Rptr. 614.)
The affidavit of Sergeant Guevara satisfied both requirements set forth in Aguilar, and provided a sufficient and reasonable showing to support the issuing magistrate's judgment that probable cause for its issuance existed. The information conveyed to the officer by Mrs. Hernandez was both factual in nature and clerly indicated her personal knowledge of the reported facts. Moreover, this information, from an observing and concerned citizen, was based factually on her prior familiarity with marijuana.
Petitioner's contention that there was an insufficient showing of Mrs. Hernandez' reliability as an 'informant' is without merit. It is fundamental that adequate information from a citizen who purports to have been either the victim of a crime or to have observed illegal activity is sufficient to establish probable cause, even though his reliability as an informer has not been previusly tested. (People v. Hogan (1969) 71 A.C. 927, 930, 80 Cal.Rptr. 28, 457 P.2d 868; People v. Scoma, supra, 71 A.C. 349, 355, fn. 7, 78 Cal.Rptr. 491, 455 P.2d 419; People v. Gardner (1967) 252 Cal.App.2d 320, 324-325, 60 Cal.Rptr. 321; People v. Lewis (1966) 240 Cal.App.2d 546, 549-551, 49 Cal.Rptr. 579.) As a citizeninformer, Mrs. Hernandez--on the facts shown--was thus elevated to the status of reliable informant. 2
The same dignity cannot be accorded the averments by Sergeant Guevara as to his awareness of petitioner's reputation in the drug traffic, and as to the information Guevara had received from his fellow officers. Such information alone would not provide the requisite probable cause for issuance of a search warrant. A strong line of California cases holds that, to justify a warrant on the basis of what police officers know without requiring a sworn statement by someone that the information was actually received into police channels would permit the manufacture of reasonable grounds for arrest within a police department. (People v. Adkins (1969) 273 A.C.A. 211, 213-214, 78 Cal.Rptr. 397; People v. Cox (1968) 263 Cal.App.2d 176, 185-186, 60 Cal.Rptr. 410; People v. Pease (1966) 242 Cal.App.2d 442, 446, 448-449, 51 Cal.Rptr. 448; see, People v. Lara (1967) 67 Cal.2d 365, 374, 62 Cal.Rptr. 586, 432 P.2d 202.) Sergeant Guevara's recital as to his awareness of defendant's reputation in the drug traffic and the unauthenticated information passed to him by other officers are circumstances, however, for consideration by an issuing magistate along with all other facts presented. (People v. Melchor (1965) 237 Cal.App.2d 685, 690, 47 Cal.Rptr. 235; People v. McVey (1969) 269 Cal.App.2d 240, 243, 74 Cal.Rptr. 648.)
Ample competent evidence existed, therefore, on the basis of all the information recited in Guevara's affidavit, to support the magistrate's determination that probable cause was shown for issuance of the search warrant.
Our inquiry does not end, however, with examination of the showing made in support of the search warrant, but extends to the propriety of Guevara's initial search of petitioner's motel room. The legality of that entry to confirm the existence of contraband depends on the right of the maid or the manager to consent to the entry of the police officer. There is no question but that the maid had the right to enter the room to clean it. When a person engages a hotel room he undoubtedly gives permission, either express or implied, to personnel of the establishment to enter his room in the performance of their duties. (United States v. Jeffers (1951) 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59, 64.) However, the constitutional right which is waived belongs to the occupant or tenant and not the maid, manager, or motel owner. (Stoner v. State of Califoria (1964) 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, 860.) In Chapman v. United States (1961) 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, the court held that the owner of a house had no authority to consent to a search of a tenant's house. In Stoner, the court stated, ...
To continue reading
Request your trial
-
People v. Baker
...guest's rooms." (243 Cal.App.2d at p. 669, 52 Cal.Rptr. at p. 658.)In Krauss v. Superior Court (1970) 9 Cal.App.3d (Adv.) 793, 802, 88 Cal.Rptr. 612, 617 (hearing in Supreme Court granted on petition of People, October 15. 1970, Sac. 7878) the court pointed out "that to permit police office......