Ming v. Superior Court

• Decision Date: 02 December 1970
• Citation: 91 Cal.Rptr. 477,13 Cal.App.3d 206
• Court: California Court of Appeals Court of Appeals
• Parties: Harry MING, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SANTA BARBARA, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 37028.

Page 477

91 Cal.Rptr. 477

13 Cal.App.3d 206

Harry MING, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SANTA BARBARA, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 37028.

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

Dec. 2, 1970.

Jerry D. Whatley, Santa Barbara, for petitioner.

No appearance for respondent.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Russell Iungerich, Deputy Atty. Gen., for real party in interest.

ALARCON, ^* Associate Justice.

Procedural History

An indictment was filed against petitioner, Harry Ming, and codefendants Wildenhus, Stout, Ryan, Layton and Brown, charging them in Count I with possession of marijuana for sale (Health & Safety Code, § 11530.5); in Count II with conspiracy to sell marijuana (Penal Code, § 182); and in Count III with sale of marijuana (Health & Safety Code, § 11531). Pursuant to motions to set aside the indictment under Penal Code, section 995 Count III of the indictment was dismissed as to petitioner Ming and codefendant Brown, but the motions were denied as to Counts I and II. Upon petition by Ming and Brown, pursuant to Penal Code, section 999a, this court granted a writ restraining further proceedings under the indictment as to Brown, but denied the petition of Ming. No questions of illegal arrest or search were raised in these petitions.

Petitioner Ming then initiated a motion to suppress evidence pursuant to Penal Code, section 1538.5, and now seeks relief by way of mandate from the order of respondent court denying the motion.

Factual Background

A hearing de novo was held in respondent court upon the motion to suppress. It was stipulated that there was no warrant for arrest or search. On the issue of probable cause the testimony of witness Comstock provides the following pertinent facts:

On January 27, 1970, Agent Rodger Comstock of the Bureau of Narcotic Enforcement was involved in undercover investigation of large scale sales of marijuana, hashish and dangerous drugs in the Santa Barbara area. On said date he met defendant Wildenhus in the vicinity of the Bank of America, on Embarcadero Del Norte, in the Isla Vista area. Comstock at this time was in an unmarked state vehicle with Agent Scotland. Wildenhus entered the vehicle and had a conversation with the agents regarding their purchase of 25 kilos of marijuana for $150 per kilo from Wildenhus and 'associates'. The agents and Wildenhus proceeded from this location to 219 West Arrellaga Street in the City of Santa Barbara. As they proceeded to said address Comstock asked Wildenhus who they would be meeting at the Arrellaga location. Wildenhus described his 'partner' and also described the subject known as 'Harry the Chinaman', stating that the latter had come down with him from San Francisco and was 'helping them deal.' He described another person named 'Rick' as being their contact in Santa Barbara who would 'deal kilos for them.'

As they arrived at the Arrellaga Street address they observed a brown and white Toyota land cruiser pulling away from the curb into the street, followed by a brown Volkswagen sedan which was directly behind the Toyota. Both cars stopped as the state car pulled up alongside these vehicles, and Wildenhus said 'That's Deming' or 'That's him', referring to the driver of the Toyota. Wildenhus inquired of this person where he was going. Deming stated 'Let's go up to the other place to deal.' The state car then followed the Toyota to 4135 State Street. The Volkswagen also drove away and entered the 101 freeway northbound. There was no conversation of any kind with the occupants of the Volkswagen and no one had referred to them by name. Comstock testified that there were two men in the Volkswagen; that the driver was a Caucasian and the passenger appeared to be of Chinese descent. On cross-examination, Comstock stated that at this time he did not have positive proof that the passenger was Harry the Chinaman but that he 'believed it was.'

Comstock entered the residence at 4135 State Street, leaving Agent Scotland in the state vehicle parked at a nearby service station. Present in the residence were Wildenhus, Deming Stout, the driver of the Toyota, and two other men identified as Ryan and Layton. In plain view Comstock observed a plastic bag containing two smaller plastic bags. One of these plastic bags contained nine lumps of a brown resinous substance which was represented to Agent Comstock as being hashish, and which appeared to be hashish. He also observed approximately 11 other plastic bags, each containing a powdery substance represented to him as being mescaline. Also, upon entering the residence Comstock observed a suitcase, marked with the name 'Ryan', from which emanated a strong odor of wet, pungent marijuana. Stout and Wildenhus each told him that there were 15 kilos of marijuana in the suitcase. Ryan, as well as Layton, stated that they could not get the kilos out of the suitcase because they did not have a key at that time. Ryan said that Harry had the key. Stout apologized to Comstock for not having 25 kilos for him as originally agreed. He said that Rick and Harry had taken 10 kilos to sell in the Isla Vista area and that he (Stout) had told them to be back within a half hour and to bring the marijuana back if they did not sell it. Stout stated that Comstock could also have these 10 kilos if they had not been sold. In the meantime, discussions had resulted in an arrangement whereby Comstock was to purchase the 15 kilos represented to be in the suitcase and other narcotics on hand for a total of $3,645.

At this point Comstock left the house to speak to Agent Scotland. The foregoing information was transmitted to Scotland and to officers of the Santa Barbara Sheriff's office who were waiting nearby. They were told of the agreed purchase for $3,645, but that he (Comstock) had only $400 or $600 in state funds, and that the 'rush should be fast'; that the officers should approach the residence in approximately five minutes, knock and make the arrest. Comstock also related the information he had received concerning Rick and Harry, stating that they were involved in the conspiracy and that upon their return they should be placed under arrest. Comstock testified: 'I gave them the name of Rick, the name of Harry and described the Oriental subject that I had seen. I described Rick as I had seen him. * * * I advised particularly Detective Prince now that this subject I described as being Rick was in fact a subject known to them as being Richard Brown. Q. Well, you are telling us that Detective Prince has a certain state of mind; is that it? A. * * * I described the subjects in the vehicle. Prince stated to me, 'In a brown volkswagen?' I said, 'Yes. A brown Volkswagen,' and he stated, 'Well, that will be Richard Brown,' and evidently he had had contact in the past with this subject. Q. So you told Prince among the other officers to arrest anyone who came up there who was an Oriental, is that right, and in a brown Volkswagen? A. No. I told him--I described the subject and the appearance of the smaller subject, about five foot approximately, of small features. Described Mr. Brown as having long hair with a mustache driving the brown Volkswagen. I knew the Oriental subject's first name was Harry, and I knew that the other subject was going by the name of Rick.'

Comstock and Scotland then entered the residence and in about five minutes officers from the Sheriff's department knocked on the front door. Stout opened the door and all occupants (including the two agents) were placed under arrest.

Approximately 15 minutes later a brown Volkswagen sedan arrived at the residence. This was the same Volkswagen Comstock had observed at the Arrellaga Street location. The two occupants thereof were placed under arrest as they entered the residence. These two subjects, later identified as 'Rick' Brown and Harry Ming, petitioner herein, were then searched. Petitioner Ming had $1,250 in his possession. The officers also recovered from Ming's pocket a set of keys, one of which appeared to be a key to a suitcase. This key fit the suitcase which Comstock had observed, and upon being opened the officers found the suitcase to contain 14 kilos of a green leafy substance which appeared to be marijuana.

It is petitioner's contention that the evidence is insufficient to establish probable cause to arrest him without a warrant and, accordingly, the search of his person and of the suitcase was illegal.

Problem

The sole issue presented under these facts is whether it is reasonable to arrest and search a person identified as an accomplice by a narcotics peddler in a conversation with an undercover law enforcement officer during an illegal narcotics transaction?

Discussion

In analyzing the constitutionality of the search of a person we must look to the record to determine if the officer's conduct was reasonable. If no warrant was obtained in advance of search, it is unreasonable unless the circumstances support a finding of the existence of one of the judicially created exceptions to the requirement of a search warrant. Under the facts before us no warrant was obtained nor did the petitioner consent to the search of his person. Accordingly, the search can be justified as reasonable only if the evidence supports a finding that probable cause existed for the arrest of the petitioner or that sufficient exceptional circumstances were proved to justify the failure to obtain a warrant (People v. McGrew, 1 Cal.3d 404, 409, 82 Cal.Rptr. 473, 462 P.2d 1).

In this case the petitioner was arrested prior to being searched. The information concerning the petitioner which was relied upon by the officers in making the arrest came from statements made by Wildenhus and Stout, prior to their arrest, and before they were aware that Comstock was a law enforcement officer, and personal observations by the officers....