People v. Barger

• Decision Date: 08 July 1974
• Docket Number: Cr. 12093
• Citation: 40 Cal.App.3d 662,115 Cal.Rptr. 298
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ralph A. BARGER, Jr., Defendant and Appellant.

Page 298

115 Cal.Rptr. 298

40 Cal.App.3d 662

PEOPLE of the State of California, Plaintiff and Respondent, v. Ralph A. BARGER, Jr., Defendant and Appellant.

Cr. 12093.

Court of Appeal, First District, Division 3, California.

July 8, 1974.

James L. Crew, Hayward, for appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for respondent.

HAROLD C. BROWN, Associate Justice.

This is an appeal from a judgment of conviction, after trial by jury, of violation of Health and Safety Code section 11351 (possession of heroin for sale); Health and Safety Code section 11350 (possession of cocaine); Health and Safety Code section 11910 (possession of Secobarbital); and Health and Safety Code section 11530 (possession of marijuana). These counts had been severed from charges of murder and arson of which appellant was acquitted prior to the trial herein reviewed.

Appellant was sentenced to terms of imprisonment to run concurrently for the violation of possession of cocaine, Secobarbital and marijuana. These terms were to be consecutive to the sentence of appellant for possession of heroin for sale.

Appellant challenges the search warrant affidavit leading to the discovery of the drugs and also claims error in the conduct of his trial and error in the imposition of the sentences. We believe that none of appellant's contentions has merit.

The affidavit for the search warrant in substance stated that Sgt. Simonson, an Oakland Police Officer, received information from an informant that he was present in a house in Oakland where he observed one Servio Agero in possession of heroin and cocaine; that he was also present when Agero was murdered; that appellant at that time had a handgun in his possession which had a silencer on the barrel; that he observed appellant and others place the body of Agero in a bathtub; and that he thereafter observed appellant set fire to the house. He also observed appellant carrying the blue molded suitcase which contained the heroin and cocaine in the Barger residence. The affidavit further stated that appellant's residence was 9508 Golf Links Road in Oakland. On the basis of this affidavit, the search warrant was issued. The search pursuant to the warrant resulted in the discovery of a quantity of heroin, cocaine, marijuana and Secobarbital in appellant's residence.

Appellant testified in his own behalf on December 19, 1972, during the course of his murder trial. He admitted that he had hidden the narcotics and dangerous drugs in his residence. He explained that he was a narcotics dealer and that part of the $2,000 found in his bedroom may have been received through the sale of narcotics. Appellant further stated that one Richard Ivaldi had brought the heroin to his residence the week before it was seized and that he had intended to sell the heroin or to trade it for guns.

Appellant again testified in the case at bar. He claimed that he traded contraband for automatic weapons which he would then surrender to law enforcement agencies.

Appellant first contends that the affidavit of Sgt. Simonson did not contain factual information from which the magistrate could reasonably conclude that the informant Ivaldi was reliable.

It is well settled that 'In order for an affidavit based on an informant's hearsay statement to be legally sufficient to support the issuance of a search warrant, two requirements must be met: (1) The affidavit must allege the informant's statement in language which is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in the statement; and (2) the affidavit must contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable. (Citations.)' (People v. Superior Court (1972) 6 Cal.3d 704, 711, 100 Cal.Rptr. 319, 324, 493 P.2d 1183, 1188.)

The affidavit clearly satisfies the first test of what is often referred to as the 'two-prong Aguilar test'; nor does appellant contend otherwise. Rather, appellant's complaint is that the face of the affidavit does not contain sufficient factual information to permit the magistrate to conclude that the informant was reliable.

Reliability of an informer is commonly established by evidence that the informer has been reliable in the past and by corroboration of the informer's information. (People v. Scoma (1969) 71 Cal.2d 332, 338, 78 Cal.Rptr. 491, 455 P.2d 419.) Appellant likens this case to Scoma where the Supreme Court held that corroborative evidence was not sufficient to establish reliability where criminal activity on the part of the suspect was not corroborated. Here, as in Scoma, observations of the police established that the criminal activity described by the informant did occur but did not corroborate the suspect's participation.

The instant case is distinguishable from Scoma in two respects. First, the court in Scoma emphasized that the affidavit stated, 'no facts indicating Past police experience with the informant.' (71 Cal.2d at p. 338, 78 Cal.Rptr. at p. 495, 455 P.2d at p. 423.) Reliability, therefore, had to be established by corroborative evidence alone. Here, however, the affidavit stated facts showing that the informant had provided accurate information concerning another murder. The informant had previously told police that three named individuals had told informant that they had killed a woman on May 16, 1972, and had placed her body in the trunk of a 1955 blue Ford parked in Oakland between Lincoln and 35th Avenue above MacArthur Boulevard. The police found both the car and body and determined that the car had been parked at that location since approximately May 16. No charges could be brought against the three named individuals because they were shot to death on May 26. Nevertheless, the information was accurate insofar as it could be verified.

Secondly, Scoma was a case in which the magistrate found that the reliability of the informant was not established. The Supreme Court's role was thus to determine if the evidence supported this finding. The task of this court is to decide if the evidence supports a finding of reliability. (See People v. Superior Court, supra, 6 Cal.3d 704, 715, 100 Cal.Rptr. 319, 493 P.2d 1183, dissenting opinion, and cases cited.)

In the case at hand, the magistrate could reasonably have inferred that informant's accusations were reliable, partly from the fact that other information supplied by Ivaldi had been reliable and partly from the corroboration of many details of the information supplied. (See People v. Dumas (1973) 9 Cal.3d 871, 876, 109 Cal.Rptr. 304, 512 P.2d 1208; People v. Webb (1973) 36 Cal.App.3d 460, 469, 111 Cal.Rptr. 524.)

Appellant also argues that the magistrate's finding of reliability cannot be upheld because facts relevant to reliability were withheld from the magistrate. At the hearing pursuant to Penal Code section 1538.5, counsel for defendant Smith offered to prove that three days prior to the date of the affidavit, Sheriff's Detective Madsen had obtained a recorded statement from Ivaldi, the informant, in which the informant stated that he was not at the scene of the murder and knew nothing about it. The court sustained an objection on the ground that Madsen had not reported this to the affiant, Officer Simonson, and, therefore, he could not relate them to the magistrate. The court concluded that only the facts in the affidavit could be used to test reliability.

In Theodor v. Superior Court (1972) 8 Cal.3d 77, 90, 100--101, 104 Cal.Rptr. 226, 501 P.2d 234, the Supreme Court decided that a defendant may go behind the face of the affidavit in an effort to prove there was no probable cause for the issuance of the warrant. Although Theodor was concerned with factual inaccuracies in the affidavit not omissins, the principle upon which the holding rests is the same in either situation. The Supreme Court pointed out that false or inaccurate information in an application for a warrant adversely affects the normal inference-drawing process of the magistrate. (8 Cal.3d at p. 96, 104 Cal.Rptr. 226, 501 P.2d 234.) The magistrate's inference-drawing process would also be hindered if the affiant were permitted to 'edit' his informant's allegations by omitting unfavorable facts. This court has itself noted that '(a)ny facts which bear on the reliability of the citizen who has furnished the information should . . . be revealed in the affidavit. . . . Only by consideration of facts relevant to reliability, can the magistrate make the independent determination of reliability required by the rule of Aguilar.' (People v. Legard (1970) 12 Cal.App.3d 1006, 1010, 91 Cal.Rptr. 257, 260.)

The requirement that relevant information may not be withheld from the magistrate is consistent with the duties imposed upon the prosecution in presenting evidence either at preliminary hearings or before grand juries. In these instances, the prosecution is under a duty not to conceal or suppress evidence negating guilt. (See Johnson v. Superior Court (1974) 38 Cal.App.3d 977, 990, 113 Cal.Rptr. 740, citing cases.)

In Theodor, the court decided that if the affiant acted unreasonably in making factual mistakes, those errors must be excised from the affidavit before testing the existence of probable cause. If the affiant did not act unreasonably, the affidavit would be judged with the erroneous information retained. The court did not reach the issue of whether the use of intentional misstatements should result in automatically quashing the warrant. (8 Cal.3d at p. 101, fn. 14, 104 Cal.Rptr. 226, 501 P.2d 234.) Using this approach, the affidavit in the instant case should be tested by including the omitted information regarding reliability, reasoning that...