People v. Bryant

• Decision Date: 18 March 1970
• Docket Number: Cr. 16725
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Cleveland BRYANT, Defendant and Appellant.

Page 388

85 Cal.Rptr. 388

5 Cal.App.3d 563

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Cleveland BRYANT, Defendant and Appellant.

Cr. 16725.

Court of Appeal, Second District, Division 1, California.

March 18, 1970.

Hearing Denied May 15, 1970.

Al Matthews, Arthur Garrett and Arthur Shivell, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

LILLIE, Acting Presiding Justice.

Defendant was convicted of possession of heroin (§ 11500.5, Health & Saf. Code); he appeals from the judgment. Before trial he moved to suppress the evidence (§ 1538.5, Pen.Code); the motion was submitted on the transcript of the testimony taken at the preliminary hearing and denied. At the outset of the trial the judge refused to permit defendant to renew his motion (§ 1538.5(h), Pen.Code) but at the conclusion of the People's case defendant moved 'to strike all exhibits' on the same ground--unlawful search and seizure; the motion was denied. Thus, on appellant's argument here that the arrest and search were unlawful, our examination of the evidence also includes, as it should, that taken at the trial. Only Officer McClain testified at the preliminary hearing and trial; defendant did not take the stand and offered no defense.

An unquestionably reliable ¹ informant, previously known to them, talked to Officer McClain and his partner around 1:35 a.m. He told them that a man, Terry Gibson, a narcotic user, and a woman (Vera Fields), residing in an apartment at 842 East Colden, were selling heroin; that another person by the name of Little Joe or Joe Bryant (defendant) was staying there with them because of a quarrel with his wife; that Little Joe was a heroin user and seller and carried the 'stash' either on himself or in his car; that defendant 'carried a gun at all times with him'--while in his Buick Riviera he kept the gun and 'stash' (heroin) underneath the glove compartment in a console between the bucket seats but while away from his car 'he would carry the gun and the heroin on him'; that when outside of his vehicle Little Joe carried the gun in his waistband, at all times it was loaded and '(h)e (informer) had seen the actual gun'; and that Little Joe's car was a Buick Riviera 'black over gold, black over tan.' Twenty minutes later, around 1:55 a.m., Officer McClain drove the informer past 842 East Colden where the informer pointed out an Austin-Healey which he said was Terry Gibson's car; the informer did not see Little Joe's car and suggested 'Why don't you drive around through the alley and we'll check. There is a parking facility for the apartment house at the rear of the apartment house and through an alley * * * drive through there and we'll see if his car is there'; at the rear in this facility, 'a carport-type thing,' they found 'the vehicle (the informer) had described as Joe Bryant's vehicle,' and the informer said, 'There's Little Joe's car,' and 'When you get him make sure you check underneath the glove box. That is where he keeps the stash and the gun, or he will have it with him.' The vehicle was locked and they did not check the interior (after defendant's arrest his gun was found in the car; no heroin was found in the vehicle). They drove out of the alley onto Colden where the informant got out of the car and left on foot; Officer McClain then parked several doors from 842 East Colden and with his partner went to the apartment, effected forcible entry, arrested the occupants and searched the premises.

In addition to the foregoing the informant told Officer McClain that he personally knew the people--Terry Gibson, the woman (Vera) and Little Joe or Joe Bryant (defendant)--in the apartment, and upon arriving at the address pointed out to Officer McClain the apartment in which defendant was staying ('This was the apartment pointed out to me by the informant, yes'); that the people in 'this' apartment had narcotics for sale--they 'kept it real close by the bedroom, and it was all heroin; they didn't have anything else * * *' (the only narcotic found in the apartment was heroin; it was found in the bed); that Little Joe 'would be carrying the stuff (heroin)'; that the people in the apartment had guns and he had seen those guns himself (two rifles, one loaded, were found in the apartment) and he had seen 'the actual gun' carried by defendant in his waistband and knew it to be loaded at all times. While the officer testified that the informer did not tell him he had been in the apartment, ² he did not testify that the informer told him he had not been there and it is apparent from the foregoing that he had; it is also apparent that the informer personally knew defendant, had seen him carry heroin on his person and knew defendant had heroin with him that morning.

For appellant's position that there existed no probable cause to arrest him, he cites Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and PEOPLE V. HAMILTON, 71 CAL.2D ---, 77 CAL.RPTR. 785, 454 P.2D 681,^A to support the argument that the information possessed by Officer McClain immediately prior to his entry into the apartment would not have enabled him to obtain a valid arrest warrant. It cannot be disputed that Officer McClain had no personal knowledge of defendant and his activities or of the other people in the apartment, thus any affidavit by him in support of an arrest warrant would have been based on hearsay, viz., the information given to him by the informant. Appellant says that this is insufficient because the officer's testimony fails to disclose the source of the informant's information; that Officer McClain did not expressly testify that the informant had personal knowledge that defendant had heroin in his possession.

'Following Aguilar (Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723), California courts have held that 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 that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such 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. HAMILTON, 71 CAL.2D ---, -------,^B 77 Cal.Rptr. 785, 454 P.2d 681.) We think it clear from the foregoing testimony of Officer McClain that 'the informant spoke with personal knowledge' of defendant's possession of heroin and that the source of his information that defendant carried the narcotic on his person when not in his car was the informant's personal observation. 'In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.' (Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637.) Despite the lack of direct statement by Officer McClain that the informer had personal knowledge of defendant's possession of heroin, the danger of reliance on casual rumor is not here evident for the record establishes that the informant was reliable and that the incriminating facts concerning the contraband, its location and the criminal activities of defendant and the other occupants of the apartment were sufficiently described by him, detailed and accurate as to permit the inference of personal observation and that the informant had personal knowledge of defendant's possession of heroin. (PEOPLE V. HAMILTON, 71 CAL.2D ---, -------,^C 77 Cal.Rptr. 785, 454 P.2d 681.) There was probable cause and the arrest was lawful; a search incidental thereto is valid. (Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, 742--744; People v. Cockrell, 63 Cal.2d 659, 667, 47 Cal.Rptr. 788, 408 P.2d 116.)

About 2:00 a.m., without knocking or announcing their presence or their identities as police officers, his partner forced the apartment door open while Officer McClain ran in with gun in hand. They found defendant lying on a couch in the living room and Terry and Vera in bed in the bedroom. A plastic container of heroin belonging to Terry and Vera was found under the sheet in the bed down about three-quarters of the way where Officer McClain saw Vera 'push her hand under the sheets, pushing down'; narcotic paraphernalia was found on the night table near the bed and on top of the dresser. At the head of the couch on which defendant was lying were a stack of clothes and a hat; of them defendant said, 'They are mine'; when the officer picked up his hat a piece of folded plastic containing heroin fell off the brim; there were numerous puncture marks on defendant's arms. Questioned about the marks defendant said he was just 'chipping' and 'didn't have a habit'; of the heroin he told the officers 'he bought three spoons from a friend that cost $75.'

Appellant's claim that the entry constituted a violation of section 844, Penal Code, and is reversible error, is without substance. Noncompliance with section 844 may be excused in cases in which the officer before his entry possessed information which led him reasonably to believe that compliance would have increased his peril or frustrated the arrest. (Duke v. Superior Court, 1 Cal.3d 314, 323, 82 Cal.Rptr. 348, 461 P.2d 628; People v. Kanos, 70 Cal.2d 381, 384--385, 74 Cal.Rptr. 902, 450 P.2d 278; People v. Rosales, 68 Cal.2d 299, 305, 66 Cal.Rptr. 1, 437 P.2d 489; ...