People v. Bigham, Cr. 25920

CourtCalifornia Court of Appeals
Citation122 Cal.Rptr. 252,49 Cal.App.3d 73
Decision Date12 June 1975
Docket NumberCr. 25920
PartiesThe PEOPLE, Plaintiff and Appellant, v. Nickey Jay BIGHAM and Harry Edward McVoy, Defendants and Respondents.

Joseph P. Busch, Dist. Atty., Los Angeles County, Harry B. Sondheim, Head, Appellate Div., and Sterling S. Suga, Deputy Dist. Attys., for plaintiff and appellant.

Belger & Courtney and Laurie R. Belger, Redondo Beach, for defendant and respondent Harry Edward McVoy.

No appearance for defendant Nickey Jay Bigham.

LILLIE, Associate Justice.

Defendants were charged with possession for sale of marijuana (§ 11359, Health & Saf.Code). Their motion pursuant to section 1538.5, Penal Code was granted, and the People appeal from order dismissing the information.

The motion to suppress was heard de novo. In granting it the judge found that Deputy Reed was 'a credible, honest witness' but stated, 'my feeling is that the state of the law is such that 1 cannot approve of that kind of conduct.' It is apparent, therefore, that he ruled as a matter of law that there was no probable cause to arrest Bigham (People v. Superior Court (Johnson) 15 Cal.App.3d 146, 151, 92 Cal.Rptr. 916; People v. Superior Court (Thomas) 9 Cal.App.3d 203, 210--211, 88 Cal.Rptr. 21), and this court 'cannot presume that the facts were resolved against the People or that, contrary to its own indication, it disbelieved the testimony. (Citations.)' (People v. Manning, 33 Cal.App.3d 586, 603, 109 Cal.Rptr. 531, 543.)

Probable cause has been defined as 'that state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' (People v. Terry, 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 428, 466 P.2d 961, 980; People v. Fein, 4 Cal.3d 747, 752, 94 Cal.Rptr. 607, 484 P.2d 583; People v. Martin, 9 Cal.3d 687, 692, 108 Cal.Rptr. 809, 511 P.2d 1161.) No exact formula exists for determining reasonable cause and each case must be determined on the facts and circumstances presented to the officer at the time he is required to act (Guidi v. Superior Court, 10 Cal.3d 1, 9, 109 Cal.Rptr. 684, 513 P.2d 908; People v. Block, 6 Cal.3d 239, 244, 103 Cal.Rptr. 281, 499 P.2d 961; People v. Fein, 4 Cal.3d 747, 752, 94 Cal.Rptr. 607, 484 P.2d 583; People v. Terry, 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Ross, 67 Cal.2d 64, 69--70, 60 Cal.Rptr. 254, 429 P.2d 606); and he must be able to point to 'specific and articulable' facts and circumstances in support of his conduct. (Cunha v. Superior Court, 2 Cal.3d 352, 356, 85 Cal.Rptr. 160, 466 P.2d 704.) The following are those circumstances presented to the deputies at the time they determined to effect the arrest of Bigham.

1. Information given by Robert Nelson, an untested informant, to Deputy Reed (who had been assigned to Firestone station for six years and who had testified as an expert in the field of narcotics) that earlier that day he had bought 8 kilos of marijuana from Nickey Bigham, describing him, at his residence (Nelson was then under arrest for this offense), Bigham was 'dealing heavy' and had at least 8 more kilos of marijuana which he (Nelson) had seen in a living room in a converted garage on 222nd Street from which Bigham and one McVoy, who lived there with him, conducted narcotic activities, and Bigham had a gun. Although such information provided by an informant of unknown reliability justifies investigation, standing alone it is not sufficient to provide probable cause for an arrest (Mann v. Superior Court, 3 Cal.3d 1, 6--7, 88 Cal.Rptr. 380, 472 P.2d 468; People v. Lara, 67 Cal.2d 365, 374--375, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Talley, 65 Cal.2d 830, 835--836, 56 Cal.Rptr. 492, 423 P.2d 564; Willson v. Superior Court, 46 Cal.2d 291, 294, 294 P.2d 36); however it is sufficient if it is corroborated in essential respects by such other facts, sources or circumstances as would justify the conclusion that reliance on the information was reasonable. (People v. Fein, 4 Cal.3d 747, 752, 94 Cal.Rptr. 607, 484 P.2d 583; People v. Lara, 67 Cal.2d 365, 374--375, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Talley, 65 Cal.2d 830, 835--836, 56 Cal.Rptr. 492, 423 P.2d 564; People v. Sandoval, 65 Cal.2d 303, 308--309, 54 Cal.Rptr. 123, 419 P.2d 187.) The purpose of such corroboration is to provide the element of reliability missing when the police have had no prior experience with the informer, and it is enough if it gives reasonable grounds to believe that the informant is telling the truth. (People v. Lara, 67 Cal.2d 365, 374--375, 62 Cal.Rptr. 586, 432 P.2d 202.)

2. Independent facts supplied by official records and personal observations of other deputies which corroborated Nelson's information and made Deputy Reed's reliance thereon reasonable.

Deputy Reed was acquainted with the name 'Nickey Bigham' in the course of his official duties at Firestone station and conversations with other deputies. Three weeks earlier Deputy Damerski, who lived in the same block as Bigham, 'alerted' Deputy Reed to Bigham's exact address and his personal observations of 'suspicious activities' on Bigham's premises--at all hours of the night people who appeared to be 'loaded' either entering or leaving the premises with packages indicative of 'dealing going on there,' and frequently Nickey Bigham about the premises in a 'loaded' condition. While Deputy Damerski did not name either McVoy or Bigham he did describe Bigham which fairly well matched the description given by Nelson supplying an element of corroboration. (People v. West, 3 Cal.App.3d 253, 257, 83 Cal.Rptr. 223.) Deputy Madden, who patroled the general area of Bigham's residence, also advised Deputy Reed that he had personally observed Bigham in a 'loaded' condition on a number of occasions. The source of the deputies information was personal observation, and their statements to Deputy Reed were competent to establish the facts related. (United States v. Ventresca, 380 U.S. 102, 110, 85 S.Ct. 741, 13 L.Ed.2d 684, 690.)

Deputy Reed personally learned from a check of Firestone records that Bigham resided at 515 East 222nd Street (which confirmed the specific address given to him by Deputy Damerski and the general address on 222nd Street given by Nelson), from a photograph in the police files what Bigham looked like and from the arrest records that he had numerous arrests, one for possession of marijuana while a juvenile and one for sale of marijuana.

3. Deputy Reed's own personal observation of Bigham's conduct on the premises. Around 1 a.m. Deputy Reed and eight other deputies some in uniform, armed with the sum of the foregoing information went to 515 East 222nd Street with the sole intention of talking to Bigham and his parents with the hope of obtaining consent to search the premises and if that failed, intending to stake out the location in hopes that 'something might move'; he did not go there with the intention of arresting Bigham. When they approached the house Deputy Reed saw Bigham, whom he recognized from police photographs, walking from the rear of the residence through the gate toward the street; at that time Bigham looked in their direction, 'spun around' and ran through the gate toward the garage yelling 'Jesus Christ, the cops.' Bigham's flight when confronted by uniformed police, and his spontaneous exclamatory statement (particularly under circumstances that earlier in the day he had sold Nelson 8 kilos of marijuana for which Nelson was under arrest) were indicative of consciousness of criminal involvement (People v. Levy, 16 Cal.App.3d 327, 333--335, 94 Cal.Rptr. 25, 28 (defendant retreated yelling 'Bobby, Bobby, run. It's the men, it's the narcs, run.'); People v. Satterfield, 252 Cal.App.2d 270, 271--273, 60 Cal.Rptr. 733 (defendant ran into the house saying, 'The law. It's the law.'); People v. Landry, 230 Cal.App.2d 775, 777--780, 41 Cal.Rptr. 202 (defendant upon opening door said, 'Jesus Christ, the _ _ cops!' and dashed back into the room)). The totality of the facts and circumstances in the possession of Deputy Reed at that time was sufficient as a matter of law to constitute probable cause to arrest Bigham. It was then the officers took up pursuit and Deputy Reed yelled, 'Halt, you're under arrest.' This was sufficient notice to Bigham that he was accused of a crime and had been arrested. 1 Knowing full well they were law enforcement officers, he was under arrest and their purpose in pursuing him was to perfect the arrest, Bigham continued to run toward the garage; he fled into the garage, the door closed and someone tried to bar the door on the inside whereupon the pursing deputies forced entry, took Bigham into custody and arrested McVoy.

The notice requirements of section 844, Penal Code provide that before breaking into a home to effect an arrest a police officer must identify himself, announce his purpose and demand entry. (People v. Hill, 12 Cal.3d 731, 758, 117 Cal.Rptr. 393, 528 P.2d 1.) The basis for the requirements is found in the individual's right to privacy, the protection of innocent persons in the home and the policy of discouraging confrontations conducive to violence which might injure both occupants and the police. (People v. King, 5 Cal.3d 458, 464, fn. 3, 96 Cal.Rptr. 464, 487 P.2d 1032; Duke v. Superior Court, 1 Cal.3d 314, 321, 82 Cal.Rptr. 348, 461 P.2d 628; Greven v. Superior Court, 71 Cal.2d 287, 292, 78 Cal.Rptr. 504, 455 P.2d 432; People v. Rosales, 68 Cal.2d 299, 302, 66 Cal.Rptr. 1, 437 P.2d 489.)

Excused noncompliance with the requirements of section 844 can occur when the attempt to comply falls short of substantial compliance, or there has been no attempt to comply. (People v. Hall, 3 Cal.3d 992, 998, fn. 3, 92 Cal.Rptr. 304, 479 P.2d 664.) Noncompliance may be excused when specific facts known to the officer before his entry are...

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