People v. Ahern

• Decision Date: 11 June 1984
• Citation: 157 Cal.App.3d 27,204 Cal.Rptr. 11
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Joseph AHERN, Royce Bell & Suellyn Jayne Rumachik, Defendants and Appellants. AO11520.

Page 11

204 Cal.Rptr. 11

157 Cal.App.3d 27

The PEOPLE, Plaintiff and Respondent, v. William Joseph AHERN, Royce Bell & Suellyn Jayne Rumachik, Defendants and Appellants.

AO11520.

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

June 11, 1984.

As Modified on Denial of Rehearing July 5, 1984.

As Modified July 11, 1984.

Certified for Partial Publication. ¹

Hearing Denied Sept. 19, 1984.

John K. Van de Kamp, Atty. Gen., John A. Gordnier, Asst. Atty. Gen., Michael D. Whelan, Deputy Atty. Gen., Special Prosecutions Unit, San Francisco, for plaintiff and respondent.

CALDECOTT, ^* Associate Justice.

Appellant Suellyn Jayne Rumachik pleaded guilty to conspiracy to manufacture and sell methaqualone and to manufacture of methaqualone. Appellant Royce Bell pleaded guilty to conspiracy to manufacture and sell methaqualone. Appellant William Joseph Ahern pleaded guilty to manufacture of methaqualone.

Prior to entry of the guilty pleas appellant Rumachik moved to suppress evidence pursuant to Penal Code section 1538.5; appellant Ahern moved to suppress the officers' testimony and quash the warrant because of the destruction of the original surveillance notes and appellant Bell moved to set aside the information pursuant to Penal Code section 995 on the ground of insufficient evidence to connect him to the charged offenses. The record does not show that either Ahern or Bell filed a section 1538.5 motion. However, the minutes show that a hearing was held on the 1538.5 motion and the 995 motion. At the hearing two defendants, not parties to this appeal, asked to join in the motions. The minutes state, "Court rules that the cause is joined in by all defendants, except for the 995 P.C." It is not clear whether this included Ahern and Bell but at the time of plea Ahern, Bell and Rumachik moved to withdraw their 1538.5 motions and this was granted by the court.

The appeals are from the judgments and each notice of appeal mentions section 1538.5.

In May of 1980 agents for the State of California Bureau of Narcotics Enforcement (hereafter BNE) undertook an extensive investigation of illicit methaqualone manufacturing in San Francisco. Surveillance was conducted on suspects in the following locations: a warehouse at 237 Clara, and at houses at 612 La Grande Avenue and 2336 Lake Street, San Francisco.

Over fifty law enforcement agents participated in the investigation of this methaqualone (aka quaalude) manufacturing case. From July 25, 1980, to August 5, 1980, an intensive surveillance was conducted of various persons and locations, and the results of that surveillance were incorporated into a 55-page master surveillance log. The master surveillance log was designed to fairly, accurately, and in chronological sequence depict what had been seen by surveillance personnel at different times and places. The master surveillance log was, in fact, a compilation in final form of the surveillance agents' raw notes. Many of the events depicted in the log were also memorialized in photographs that were retained; and a number of the photographs were received in evidence.

The master surveillance log was compiled as follows: Agents on surveillance took notes of their personal observations, what they heard over the law enforcement radio, and what other agents said they had observed. A bin was kept in the office for the agents' handwritten notes to be deposited at the end of the different shifts.

An agent was assigned to compile all of the notes of the other agents, collate the data, and put the data in usable form. The assigned agent started his task by making sure that he had all of the notes. Typically, he started on a day's notes the day after they were written; on occasion, however, he fell behind. Sometimes he had to go out into the field and get an agent's notes. He xeroxed the handwritten notes that had been turned in to him. If a note was sufficiently spelled out, as opposed to abbreviated, he taped the xerox copy of that note into his rough master surveillance log. If a note was written in abbreviations, he entered it into his rough master surveillance log by writing it out in full.

As the notes were compiled in an ongoing, rough master surveillance log, the assigned agent stated that he checked with each surveillance agent to make sure his log was correct. It was his task to check with the agents and differentiate what they had personally observed from what they had heard over the law enforcement radio or what another agent had told them. When the agents approved how an event was depicted, a day's events were turned in to be typed for the master surveillance log.

An entry in the master surveillance log was written in chronological order under a particular date, had a time listed for it, and had the names of agents who saw all or part of the event in question. If an agent's name was recorded next to an event observed during the surveillance, that meant that the agent had seen all or part of the event.

Normal BNE procedure called for rough notes, including surveillance notes, to be discarded or destroyed after they had been embodied in an official report. Pursuant to this procedure, the agents' handwritten surveillance notes were disposed of since that information was embodied in the master surveillance log.

State law enforcement personnel originally became suspicious of the illicit drug manufacturing when Mr. David Newsom, President of Center Hardware in San Francisco, reported to the State Department of Justice that a Mr. Robert Wilhite had ordered 40 3-kg bottles of O-toluidine from Center Hardware in early May 1980. O-toluidine is one of the primary chemicals used for the manufacture of quaalude.

State law requires that every chemical supply or distribution house which sells or supplies N-acetylanthranilic acid report the transfer to the California Department of Justice. In an interview with Mr. Newsom by an agent from the Department of Justice, the agent learned Mr. Wilhite had bought 1500 pounds of anthranilic acid from Newsom in the past, and had it delivered to a house on the 2300 block of Lake Street. Forty more gallons of O-toluidine were in the store on order for Mr. Wilhite on May 9, 1980, and Mr. Newsom informed the agent that Mr. Wilhite had expressed interest in purchasing 1000 pounds of N-acetylanthranilic acid (which the agent estimated would produce at least 1000 pounds of quaalude). The agent traced Wilhite's telephone number which he had left with Mr. Newsom to a house located at 2336 Lake Street, San Francisco.

A warrant for the authorization of an electronic tracking device in the bottom of an "Explotab" drum which Wilhite had ordered was issued on July 24, 1980. Following the placement of the electronic tracking device in the drum, surveillance was started in what was observed as the procurement of chemicals, the use of chemicals in the manufacture of methaqualone (quaalude), and the ultimate distribution of methaqualone. Each agent was responsible for maintaining a log on what occurred at each location under surveillance.

Appellants Ahern, Bell and Rumachik were among the principal perpetrators of, and showed continuous involvement in the illegal activities conducted on the premises located at 237 Clara Street, 612 La Grande Avenue and 2336 Lake Street, San Francisco.

The fifty agents involved in the surveillance observed heavy packages leaving certain locations and going to other locations, and detected chemical smells at various times throughout the surveillance at 237 Clara Street.

Robert Wilhite's cover story to Mr. Newsom that he needed the chemicals for the manufacture of light bulbs (Wilhite worked for Westinghouse in the Lamp Division and a sign bearing "Central Lighting" was in front of the building at 237 Clara Street) was determined to be untrue when a General Electric expert advised the Department of Justice that none of the chemicals were used in the manufacture of light bulbs.

Based on the continuous surveillance by the California Department of Justice agents, search warrants were issued for the premises located at 2336 Lake Street, 237 Clara Street, and at 612 La Grande Avenue, all in San Francisco. The warrants were executed on the morning of August 5, 1980 and appellants were arrested. Chemicals, equipment, packaging supplies, property tending to establish and document sales of methaqualone (quaalude), buyer lists, seller lists, recordation of sales, and paraphernalia used in the preparation, manufacture, use, distribution and packaging of methaqualone were found at the premises upon execution of the search warrant.

I

Appellants' Hitch motion was properly denied.

Appellants challenge judgments of conviction following pleas of guilty without having obtained certificates of probable cause as required by Penal Code section 1237. They allege that compliance with section 1237 is not required inasmuch as the appeal involves a search and seizure issue, the validity of which was contested pursuant to Penal Code section 1538.5. A question exists as to whether appellants' guilty pleas have foreclosed appellate review of the alleged Hitch error. We believe they do.

At the hearing on Penal Code 1538.5 motion, appellants' attempt to quash the search warrant was not based on any alleged lack of probable cause. Rather, the challenge to the warrant was based on the "failure" to preserve rough surveillance notes made by individual agents even though those notes were translated into a master surveillance log, which was incorporated by reference into the challenged search warrant affidavit. Appellants contended below, and contend here, that the destruction of the rough surveillance notes compelled the trial court to quash the warrant and to suppress the evidence which was discovered upon service of the warrant. In short, appellants made a Hitch motion (People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361) at the 1538.5 hearing.

Appellants contend that the...