Krauss v. Superior Court

• Decision Date: 13 August 1971
• Citation: 487 P.2d 1023,96 Cal.Rptr. 455,5 Cal.3d 418
• Court: California Supreme Court
• Parties: , 487 P.2d 1023 Lance Wellington KRAUSS, Petitioner, v. The SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; The PEOPLE, Real Party in Interest. Sac. 7878. . In Bank

Page 455

96 Cal.Rptr. 455

5 Cal.3d 418, 487 P.2d 1023

Lance Wellington KRAUSS, Petitioner, v. The SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent;

The PEOPLE, Real Party in Interest.

Sac. 7878.

Supreme Court of California.

In Bank.

Aug. 13, 1971.

Hearing Denied Oct. 21, 1971.

Robert N. Chargin, Public Defender, and Ann M. Chargin, Asst. Public Defender, for petitioner.

No appearance for respondent.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws and Eddie T. Keller, Deputy Attys., Gen., for real party in interest.

WRIGHT, Chief Justice.

Petitioner seeks a writ of mandate to compel the Superior Court of San Joaquin County to grant his motion pursuant to section 1538.5 of the Penal Code to suppress as evidence marijuana claimed to be the fruit of an illegal search. We conclude that although a law enforcement officer at the invitation of a motel manager made an illegal entry into a room occupied by petitioner prior to securing a search warrant, such action did not vitiate a search made pursuant to a valid warrant.

Petitioner was registered at a Tracy motel. While cleaning his room a maid, Mrs. Hernandez, saw what appeared to be an empty cigarette package on a nightstand. She opened it to see if it was in fact empty and should be discarded and discovered a plastic sandwich bag containing a green leafy substance. She had previously attended a drug demonstration class conducted by the police department at which she saw and smelled marijuana. On the basis of that experience she believed that she had discovered marijuana. She replaced the bag in the cigarette package, put the package back on the nightstand, and told the motel manager, Mrs. Jacobs, of her discovery. Mrs. Jacobs inspected the items and then telephoned the police.

Sergeant Guevara of the Tracy Police Department went to the motel in response to the call, and Mrs. Hernandez and Mrs. Jacobs told him that they believed there was marijuana in petitioner's room. With the manager's permission Officer Guevara entered the room with the two women. He inspected the cigarette package and the plastic bag and saw the substance, which was later identified as marijuana. He then put the cigarette package and its contents back on the nightstand as he had found them.

That afternoon Sergeant Guevara obtained a warrant to search petitioner's room. In the affidavit in support of the warrant he recited in detail the facts told to him by Mrs. Hernandez, including the facts showing her familiarity with marijuana. He omitted any reference, however, to his own entry without a warrant. He also stated that he knew that petitioner was reputed to be 'on the fringes of the drug traffic' in Tracy and that he had been told by other police officers that they had information that petitioner was involved in drug traffic. Sergeant Guevara returned to the motel that evening with the search warrant and properly served it upon petitioner, who was then in his room, and seized the marijuana and arrested petitioner.

Petitioner contends (1) that Sergeant Guevara's affidavit was insufficient to provide probable cause for the issuance of a search warrant; and (2) that the marijuana should be excluded from evidence as the product of an illegal search.

Sufficiency of the Affidavit

The test for the constitutional sufficiency of an affidavit for a search warrant was set forth by the United States Supreme Court in Aguilar v. Texas (1964) 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, as follows: '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 * * * was * * * 'reliable."

Sergeant Guevara's affidavit satisfies both prongs of this test. Although his conclusionary statements as to petitioner's reputation in the drug traffic in Tracy as well as information allegedly received from other police officers do not constitute the detailed, factual statements required by the Fourth Amendment (People v. Scoma (1969) 71 Cal.2d 332, 337, 78 Cal.Rptr. 491, 455 P.2d 419; Spinelli v. United States (1968) 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637), the information supplied by Mrs. Hernandez was factual, not conclusionary, in nature, and showed that she spoke from personal knowledge. (People v. Hamilton (1969) 71 Cal.2d 176, 179--180, 77 Cal.Rptr. 785, 454 P.2d 681.) This information alone was sufficient to support the magistrate's determination that probable cause existed for the issuance of the warrant. It established not only that Mrs. Hernandez spoke from personal knowledge but also that her information was reliable. As a citizen who observed the commission of a crime, she was more than a mere informer. '(T)ests of reliability that must be applied to experienced stool pigeons do not necessarily apply to every private citizen who aids the police.' (People v. Guidry (1968) 262 Cal.App.2d 495, 497--498, 68 Cal.Rptr. 794, 796; see also, People v. Griffin (1967) 250 Cal.App.2d 545, 551, 58 Cal.Rptr. 707; People v. Lewis (1966) 240 Cal.App.2d 546, 549--550, 49 Cal.Rptr. 579.) Although her status as a citizen informer did not eliminate the necessity of establishing that her information was reliable, the circumstances of her discovery, the details of her information, and her prior experience in examining marijuana justified the magistrate in concluding that she was reliable.

Fruit of the Illegal Search

Petitioner contends that Sergeant Guevara's initial search was conducted in violation of the Fourth Amendment and that the marijuana which was seized in the subsequent search of the motel room should have been excluded as fruit of the original illegality.

By registering as a guest petitioner impliedly consented to motel employees entering his room in the performance of their duties. (United States v. Jeffers (1951) 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59.) He did not consent, however, impliedly or otherwise to those employees allowing police officers to enter his room to search for contraband (Stoner v. California (1963) 376 U.S. 483, 488--489, 84 S.Ct. 889, 11 L.Ed.2d 856; Chapman v. United States (1960) 365 U.S. 610, 616--617, 81 S.Ct. 776, 5 L.Ed.2d 828; Lustig v. United States (1948) 338 U.S. 74, 76--77, 69 S.Ct. 1372, 93 L.Ed. 1819; People v. Superior Court (1970) 3 Cal.App.3d 648, 654, 83 Cal.Rptr. 732), and Sergeant Guevara had no reason to believe otherwise (Stoner v. California, supra, 376 U.S. at p. 488, 84 S.Ct. 889; cf. People v. Gorg (1955) 45 Cal.2d 776, 783, 291 P.2d 469). Since the prosecution also failed to show any other basis for a search of petitioner's room without a warrant the initial entry and search by Officer Guevara was illegal.

It does not follow, however, that the marijuana must be suppressed. Only that evidence which is the fruit of an illegal search must be excluded. The appropriate question to be answered is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." (Wong Sun v. United States (1963) 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, quoting Maguire, Evidence of Guilt (1959) p. 221.) We find no exploitation of the illegal entry in this case.

Before that entry Sergeant Guevara had lawfully acquired information from the motel employees that was sufficient to support the issuance of a search warrant. It was not unlawful for him to use that information to obtain the warrant. The magistrate's independent decision to issue the warrant was in no way tainted by the officer's illegal personal observations, for the magistrate was wholly unaware of such observations. Although those observations may have contributed to Officer Guevara's decision to secure the warrant, he did not thereby exploit them within the meaning of Wong Sun. Thus in Mann v. Superior Court (1970) 3 Cal.3d 1, 7, 88 Cal.Rptr. 380, 472 P.2d 468, we held that an occupant's subsequent consent to an entry motivated by an asserted prior illegal observation dispelled any taint flowing from that observation. Similarly the magistrate's independent evaluation of Officer Guevara's affidavit dispelled any taint flowing from his original entry. To hold otherwise would go beyond excluding evidence unlawfully obtained and in effect grant petitioner immunity from prosecution because of the officer's collateral wrong. (See People v. Valenti (1957) 49 Cal.2d 199, 203, 316 P.2d 633.)

People v. Edwards (1969) 71 Cal.2d 1096, 1106, 80 Cal.Rptr. 633, 458 P.2d 713, is not to the contrary. In that case the officer's decision to make an arrest without a warrant was based on both legally and illegally obtained evidence, and we held that it could not be sustained in the absence of a showing that the officer could lawfully have made the arrest and would have done so on the basis of the legally obtained evidence alone. In the present case the magistrate issued the warrant solely on the basis of sufficient legally obtained evidence. The marijuana found in petitioner's room is thus the product of a search sanctioned by a warrant issued upon knowledge lawfully obtained by means distinguishable from the unlawful search and is not come at by exploitation of that illegality. (See, People v. Garay (1967) 247 Cal.App.2d 833, 837--838, 56 Cal.Rptr. 55; Howell v. Cupp (9th Cir. 1970) 427 F.2d 36, 38; Wayne v. United States (1963) 115 U.S.App.D.C. 234, 318 F.2d 205, 209; Rouda v. United States (2 Cir. 1926) 10 F.2d 916.)

The petition for a peremptory writ of mandate is denied.

McCOMB, MOSK and BURKE, JJ., concur.

PETERS, Justice (dissenting).

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