People v. Amos

• Decision Date: 31 May 1960
• Docket Number: Cr. 7063
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Henry AMOS, Defendant and Respondent.

Page 451

5 Cal.Rptr. 451

181 Cal.App.2d 506

PEOPLE of the State of California, Plaintiff and Appellant, v. Henry AMOS, Defendant and Respondent.

Cr. 7063.

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

May 31, 1960.

Hearing Denied July 27, 1960.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., County of Los Angeles, Harry Wood and Harry B. Sondheim, Deputy Dist. Attys., Los Angeles, for appellant.

Ellery E. Cuff, Public Defender, Kazuo Shibata, Deputy Public Defender, and Richard W. Erskine, Deputy Public Defender, Los Angeles, for respondent.

FOX, Presiding Justice.

The sole question on this appeal is: Did the officers have sufficient information to satisfy the requirement of probable cause for the search of the defendant?

Some time prior to October 7, 1959, Officer Ward of the Los Angeles Police Department had a conversation with one Clarence Oldrow at the Wilshire Police Station. Oldrow had been arrested for possession of marijuana. Officer Ward inquired where he had obtained the contraband. Oldrow stated that he had obtained it from Henry Amos, at 3226 West 27th Street, a short time prior to his arrest. At approximately 9:20 on the evening of October 7th, Ward and another officer arrived at the above address, parked a short distance from the house and started walking toward it. At that time defendant came out of the house and walked to the street. He did not do anything other than walk this distance. The officers saw nothing in his hands. They identified themselves and asked him his name. He replied that it was Henry Amos. The oficers then proceeded to search him. In his upper lefthand coat pocket they found a soap box containing a quantity of green, leafy material which proved to be marijuana; in his trouser pockets were three packages of cigarette papers and a small, waxed-paper bag containing a small amount of marijuana fragments.

Oldrow had never before given information concerning narcotics to the police. The officers had neither a search warrant nor a warrant for defendant's arrest when they stopped and searched him. Counsel for defendant moved to strike the officer's testimony and objected to receiving the contraband in evidence on the ground that the evidence had been secured through illegal search and seizure. The motion was denied and the objection overruled. Defendant was held to answer.

Following defendant's arraignment in the superior court, he made a motion under section 995, Penal Code, to set aside the information. The motion was granted. The People have appealed.

Since Oldrow had not previously furnished information to the police, he could not be considered a reliable informant. See People v. Dewson, 150 Cal.App.2d 119, 128, 310 P.2d 162. Hence his information alone could not be a sufficient basis for a lawful search. Willson v. Superior Court, 46 Cal.2d 291, 294, 294 P.2d 36. Furthermore it is settled that a search cannot be justified by what it produces. People v. Brown, 45 Cal.2d 640, 643, 290 P.2d 528.

But, argue the People, Oldrow's information was sufficiently corroborated to establish reasonable cause to justify the search of the defendant. The People say Oldrow told the police three things: (1) That he had purchased marijuana; (2) a short time prior to his arrest; and (3) that he made the purchase from Henry Amos at 3226 West 27th Street. They say item (3) was corroborated by the fact that defendant was observed leaving the address in question and that he admitted prior to the search that his name was Henry Amos.

Defendant points out that items (1) and (2) do not tend to indicate the source of the marijuana. Nor does item (3) tend to show that Amos was the source of Oldrow's supply. It only shows that Oldrow knew a person by that name at that address.

Information such as here provided simply serves to point the finger of suspicion at a particular person and ordinarily results in surveillance or investigation of the suspect. If the investigation or observation of the suspect tends to confirm the report of the informant whose reliability has not been established a lawful search or arrest may me made provided...