People v. Aguilar

• Decision Date: 01 March 1966
• Docket Number: Cr. 11135
• Citation: 49 Cal.Rptr. 584,240 Cal.App.2d 502
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Vidal Hernandez AGUILAR, Defendant and Appellant.

Page 584

49 Cal.Rptr. 584

240 Cal.App.2d 502

The PEOPLE, Plaintiff and Respondent, v. Vidal Hernandez AGUILAR, Defendant and Appellant.

Cr. 11135.

District Court of Appeal, Second District, Division 4, California.

March 1, 1966.

[240 Cal.App.2d 503] T. Anthony Sanfilippo, Los Angeles, under appointment by District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., and Robert R. Granucci, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Justice.

Defendant was charged with possession of narcotics for sale (Health & Saf.Code § 11500.5). Trial by jury was waived, and the case was submitted on the transcript of the preliminary examination. He was found guilty, a motion for new trial was made and denied, probation was denied, and a sentence of imprisonment in state prison was imposed. He has appealed.

The only issues raised on appeal, or in the trial court, relate to the validity of the search warrant used to secure evidence against defendant and to the conduct of the officers in connection with the execution of that warrant. These points were duly raised by a traverse to the warrant and by objections made at the preliminary examination, ¹ and they were renewed thereafter at the subsequent stages of the case. It is not questioned that they are properly before us on this appeal.

On October 14, 1964, Officer Cook, a sergeant in the Sheriff's Department of Los Angeles County, presented to a magistrate an affidavit for a search warrant and, on that date, the magistrate issued a warrant for the search of certain described premises, a described automobile, and of defendant's person. ² The warrant expressly authorized service 'at any time of the day or night.' The warrant was served at about 7:50 p. m. on the same day (admittedly 'at night'). As defendant was about to enter his automobile (the same vehicle as that described in the affidavit and in the warrant), he was arrested and searched, the search disclosing his possession, on his person, of a hypodermic needle and a package of condoms containing heroin. Defendant was then advised of the existence of the search warrant, the premises described therein were searched, resulting in the discovery of more heroin, milk sugar, and other narcotic paraphernalia.

It is not here contended that the evidence so discovered, if lawfully obtained, was insufficient to support the finding of possession for sale. As above indicated, the appeal is based solely on the claim that the warrant was void and that the arrest of defendant was without probable cause.

I

We think that the objection to the manner of arrest of defendant is without merit. The contention is that the arrest was not justified by the warrant, since the warrant authorized only search and not arrest, and that there was insufficient probable cause to justify an arrest without warrant.

Even if this contention were sound it would not avail defendant. The search of his home (which, as later discussed, we find to have been lawful) produced more than enough evidence to support the conviction; the articles found on defendant's person added nothing of significance to the case against him.

However, we think that there was no error. The warrant did authorize a search of defendant's person. Since it is an obvious impossibility to search the person of an individual without first taking him into custody, the warrant impliedly authorized an arrest as a step in the authorized search. And it is the product of the search which was used against defendant and of which he complains. The search being lawful, the evidence thereby obtained was admissible.

The Attorney General argues that the arrest of defendant was a lawful non-warrant arrest, based on informa- tion possessed by the officers which amounted to reasonable cause to believe defendant guilty of a narcotic offense. Although, as we dis- cuss below, the information known to the officers and set forth in the affidavit was sufficient to support the warrant, it is settled that more information is necessary to justify a non-warrant arrest than is required to sustain a magisterial decision to issue a warrant. ³ Clearly, without the informant's data, the officers lacked reasonable grounds. Since, for reasons discussed in the next paragraph, the informant's data cannot here be considered on the issue of reasonable cause for a non-warrant arrest, we need not decide whether or not the data, including that information, was sufficient, lacking the magistrate's imprimatur.

While the name of an informant need not be disclosed to a magistrate in connection with an application for a search warrant, unless the magistrate requests it, ⁴ it is, of course, now well settled that, where an officer relies on data from an informant to show probable cause for a non-warrant arrest, the name of the informant must, on timely demand, be disclosed, on penalty of having the informant's data stricken and disregarded. (Priestly v. Superior Court (1958) 50 Cal.2d 812, 330 P.2d 39.) Here, defendant duly demanded the name of the informant at the preliminary examination and the demand was peremptorily refused; the point was followed up by a motion to strike, made in the superior court. At no stage of the proceedings was the name of the informant divulged. For lack of disclosure, the informant's data cannot be relied on to show probable cause. As we said above, without that data, the other information was insufficient.

Since the evidence disclosed by the search of his person showed that the commission of the crime of possession of heroin, in violation of section 11500 of the Health and Safety Code, was then being committed in the officers' presence, the detention of defendant thereafter was clearly lawful.

II

We turn, then, to the principal points urged by defendant: (a) that the search warrant was void because not based on a sufficient affidavit; and (b) that (assuming the validity of the warrant as such) the authorization therein contained for service at night was void because 'good cause' for such action did not appear on the face of the affidavit, as section 1533 of the Penal Code requires.

The latter contention is now determined, adversely to defendant, by the recent decision of the Supreme Court in SOLIS V. SUPERIOR COURT (1966) 63 CAL.2D 774, 48 CAL.RPTR. 169, 408 P.2D 945^A. In the Solis case, a warrant had authorized search at night, although based on an affidavit which was entirely silent as to any nighttime activity of defendant and which did not pray for the special permission. The Supreme Court held that the affidavit, nevertheless, was sufficient to show 'good cause' for a night search. The court said at page ___, ^b 48 Cal.Rptr. at page 170, 408 P.2d at page 946:

'It is common knowledge, at least to those engaged in law enforcement, that 'Accordingly, in view of the nature of the contraband, the affidavit shows good cause for issuance of a warrant that could be served during either the daytime or the nighttime, and in issuing such a warrant the magistrate did not abuse his discretion.'

heroin is the most dangerous of the illicit drugs; that heroin pushers are among the most dangerous of drug peddlers; and that heroin pushers are as active at night as during the day and probably more so.

In the case at bench, as in Solis, the affidavit showed that the premises involved were used by the suspect as the base of his operations and that he came from, and returned to, those premises on the occasion of each contact with a suspected customer. In addition, here there is an allegation, missing in Solis, that '* * * your affiant believes, on the basis of his observation, that sales are being made at nighttime, and heroin, marijuana, and other narcotic paraphernalia are likely to be kept on said premises during the nighttime.' Since, if the premises were used by defendant as his base from which sales were made, an inference that the premises contained a constant supply was not unreasonable, the acceptance by the magistrate of the affiant's conclusion, thus supported, was well within his discretion.

We conclude, also, that the warrant was validly issued. The determination to issue, or not to issue, a search warrant is primarily for the magistrate to whom application is made, and a court is authorized to set the warrant aside only if, as a matter of law, the affidavit or deposition on which it is based shows, on its face, that the probable cause required by the Constitution and by section 1525 of the Penal Code is lacking. (People v. Govea (1965) 235 Cal.App.2d 285, 45 Cal.Rptr. 253; Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 34 Cal.Rptr. 251; People v. Prieto (1961) 191 Cal.App.2d 62, 12 Cal.Rptr. 577; Arata v. Superior Court (1957) 153 Cal.App.2d 767, 315 P.2d 473.)

In the present case, the affidavit alleged that the affiant had been informed 'by a reliable confidential informant whose reliability has been established by virtue of three cases in which he gave information that resulted in the arrest and conviction of persons for violating the State Narcotic Laws,' that defendant was engaged in the possession and sale of heroin. The affidavit further alleged that the affiant 'has made visual contact with Vidal Aguilar and ascertained that the premises located at 629 South Sydney [the premises described in the warrant] are occupied by Mr. Aguilar, and that the gas bill at this location is made out to Mr. Aguilar. Your affiant on two occasions has observed Mr. Aguilar at this location.'

Although in cases where a search is based on an arrest without a warrant, the officer, if he relies for probable cause on information obtained from an informant, must, on request of defendant, disclose the name of the informant or the testimony will be stricken (Priestly v. Superior Court, supra (1958) 50 Cal.2d 812, 330 P.2d 39), the rule is different in cases where the search is made under a warrant. In warrant cases, it is the issuing magistrate who must be convinced of...