Ovalle v. Superior Court, Contra Costa County

• Decision Date: 25 April 1962
• Citation: 202 Cal.App.2d 760,21 Cal.Rptr. 385
• Court: California Court of Appeals
• Parties: John OVALLE, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF CONTRA COSTA, Respondent. Civ. 20466.

Page 385

21 Cal.Rptr. 385

202 Cal.App.2d 760

John OVALLE, Petitioner, v.SUPERIOR COURT of the State of California, COUNTY OF CONTRA COSTA, Respondent.

Civ. 20466.

District Court of Appeal, First District, Division 1, California.

April 25, 1962.

Thomas J. Sheahan, of Calfee & Westover, Richmond, for petitioner.

Stanley Mosk, Atty. Gen., John S. McInerny, John F. Foran, Deputy Attys.Gen., San Francisco, for respondents.

TOBRINER, Justice.

This petition for prohibition urges that an arrest without a warrant cannot be based upon the ground that, although the information prompting petitioner's arrest came from an unknown informer, the fact that the informer was in custody improved his reliability and afforded probable cause for the arrest.We shall set forth our reasons for concurring with this contention of petitioner; we must, however, deny the writ because petitioner himself, as we shall show, interposed objections to testimony which might have disclosed probable cause for the arrest.

On December 2, 1961, Agent McBee and Agent Woishnis of the State Bureau of Narcotics Enforcement and certain members of the Oakland Police Department arrested one Bernadino Flores, for the offense of possession of marijuana.At the time of arrest, the officers found approximately twelve cans of marijuana, plus marijuana cigarettes in his automobile.

Following his arrest, Flores engaged in a conversation with Agents McBee and Woishnis, informing them that he had obtained approximately a kilo of marijuana from petitioner in Richmond about two days prior to his arrest, and stating that petitioner came out of the garage of his residence and handed the marijuana to him wrapped in newspaper.Flores informed the officers that he obtained the marijuana on a consignment basis from petitioner at a cost of $180 and still owed an amount in excess of $100.The agents alleged that Flores supplied them with petitioner's telephone number.Flores could not recall petitioner's address but described the house in detail and gave its approximate location.Flores further informed the agents that he understood petitioner to have enough marijuana to last until Christmas and estimated the amount to be 20 kilos.Flores also said he had known petitioner in Texas and had been in prison with him.

In addition to the information supplied by Flores, Agent McBee attempted at the hearing to relate certain information that Agent Woishnis had given him, but petitioner prevented the introduction of the evidence.Thus Agent McBee testified: 'additionally prior to this time of having received this information from Mr. Flores I had been advised by Agent Woishnis,' at which point petitioner objected to further testimony.

The record shows that Agents McBee and Woishnis proceeded to Richmond and located the house that Flores had described to them.They ascertained the address to be 3827 Wall Street.They then proceeded to the Richmond Police Department to obtain assistance.While there they looked up in the reverse telephone directory the telephone number which Flores had given them and found the number listed to a J. Ovalleat 3857 Wall Street.Accompanied by a Richmond police officer, Agents McBee and Woishnis then proceeded to 3827 Wall Street, arriving at approximately 11 p. m.They noted that lights were on in the house and that a radio played loudly.They knocked but received no response.They staked out the residence.

The officers waited until after 3:30 a. m. of December 3, 1961, and then drove the Richmond police officer back to the station and returned to the stake out.They ascertained that at this time the house was occupied; they knocked on the door.In response petitioner answered.The agents identified themselves and informed him that they possessed information that 'he was involved in narcotics' and that marijuana was perhaps on the premises.Petitioner asked the agents whether they had a search warrant.Agent Woishnis answered, 'No.'The agents then requested petitioner's permission to search the house.Petitioner refused and informed the officers that they must leave the premises since they did not have a warrant for arrest or search.They then informed Ovalle he was under arrest.

The officers searched the premises.In the basement they found a quantity of vegetable material on three different shelves.A subsequent analysis of the substance disclosed that it was marijuana.

Petitioner was then held to answer for violation section 11530 of the California Health and Safety Code(possession of marijuana).On January 22, 1962, petitioner was arraigned in the Superior Court of Contra Costa County, at which time he moved for dismissal pursuant to section 995 of the Penal Code.The court denied the motion.Petitioner thereafter brought this writ of prohibition.

We shall first point out that reasonable cause to justify an arrest without a warrant cannot be based solely upon information obtained from a previously unknown informant and that the fact that the informent has been arrested and is in custody adds nothing to his reliability.We shall then show, however, that since petitioner blocked, by objection, the introduction of testimony which the officer sought to advance as grounds for probable cause, petitioner cannot coincidentally insist upon a lack of such probable cause.

The California cases clearly hold, and ...