People v. Castaneda

• Decision Date: 05 November 1969
• Docket Number: Cr. 15595
• Citation: 1 Cal.App.3d 477,82 Cal.Rptr. 205
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gabriel CASTANEDA, Defendant and Appellant.

Page 205

82 Cal.Rptr. 205

1 Cal.App.3d 477

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gabriel CASTANEDA, Defendant and Appellant.

Cr. 15595.

Court of Appeal, Second District, Division 5, California.

Nov. 5, 1969.

Hearing Denied Dec. 23, 1969.

Frank P. Rosen, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., for respondent.

KAUS, Presiding Justice.

Defendant was charged by information with one count of possession of heroin. (Health & Saf.Code § 11500.) Jury trial was waived and the cause submitted on the transcript of the preliminary hearing plus additional evidence introduced at trial. Defendant was found guilty. Criminal proceedings were adjourned and a petition, pursuant to section 3051 of the Welfare and Institutions Code, was filed in department 95 of the superior court. Defendant was returned to the trial court by the California Rehabilitation Center, having been found not a fit subject for the rehabilitation program. (Welf. & Inst.Code § 3053.) His petition for return to the Center was denied. Defendant was sentenced to state prison, the sentence to run concurrently with that imposed in superior court case number 223770, tried after the trial for the instant offense.

Defendant's sole contention on appeal is that his arrest was illegal and therefore the incidental search of his person which produced the heroin which resulted in his conviction was likewise illegal.

Officer Evans of the Los Angeles Police Department testified that in the latter part of April or early May 1967, he received information from a tested informer that a person named 'Sluggo,' also known as Gabriel Castaneda, residing at 6149 Piedmont Street, was engaged in the sale of narcotics, and that these sales took place in a park across the street from that address. Evans had previously received information from this informer that resulted in four arrests, two of which led to California Rehabilitation Center commitments and two of which resulted in the arrestees being held over for trial on burglary charges. These trials had not yet been held when the officer testified. Evans personally received the information regarding all four of these individuals from the informer, whose name he refused to disclose. ¹

Evans also had personal knowledge that defendant had used narcotics because Evans had arrested him in front of the Piedmont Street address in June or July of 1966. A conviction for being under the influence of narcotics resulted from that arrest. Evans had also received information from his watch commander that a private citizen had come to the police station and reported that narcotics were being sold at 6149 Piedmont.

On May 25, 1967, Evans saw defendant at a telephone booth across the street from the park the informer had mentioned and from defendant's alleged place of residence. At the time Evans and his partner, Officer Olson, were patrolling the area in plain clothes in an unmarked vehicle. Evans saw four individuals, three of whom had just left a vehicle. One of the three was known to Evans as a narcotics user. As the officers approached, the three persons who had left the car went in different directions. Two went into the park, the known user walked across the street and the driver left the scene. The driver was interrogated and found to be a 'parole violator for a narcotics violation.' ² The officers then returned to the park where they observed the defendant and another individual seated on a park bench. As the officers made a U-turn defendant and his companion left the bench was walked farther into the park. Olson left the police vehicle and went into the park on foot. Evans drove to the Piedmont Street entrance and walked into the park in an effort to cut off defendant who was walking away from Olson. Defendant's right hand went to his sweater pocket and 'fumbled' in it. Defendant attempted to avoid the officers but was caught in a rundown between them. He shouted: 'You can't search me. You don't have probable cause. You can't search me. You don't have probable cause.' He was arrested. A search of defendant's person produced three balloons stipuluated to contain heroin.

Defendant testified in his own behalf. He claimed that he had no heroin on his person at the time of the arrest. He denied that he lived at the Piedmont address. ³

The trial court found that there was probable cause to arrest, after specifically ruling that the informer was reliable. It made no other express finding.

Although it has been repeatedly held that information obtained from a reliable informer constitutes reasonable cause to make an arrest and search without a warrant (People v. De Santiago, 71 Cal.2d --- ---, ^a 76 Cal.Rptr. 809, 453 P.2d 353; People v. Prewitt, 52 Cal.2d 330, 337, 341 P.2d 1) recent developments in the law of search and seizure demonstrate that the problem is not quite as simple.

In view of the often expressed preference for the warrant procedure, (Chimel v. California, 395 U.S. 752, 761--762, 89 S.Ct. 2034, 23 L.Ed.2d 685; United States v. Ventresca, 380 U.S. 102, 105--107, 85 S.Ct. 741, 13 L.Ed.2d 684; Aguilar v. Texas, 378 U.S. 108, 110--111, 84 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Johnson v. United States, 333 U.S. 10, 13--14, 68 S.Ct. 367, 92 L.Ed. 436) it cannot be the law that where an arrest without a warrant is sought to be justified on information obtained from a reliable informer, the People can carry their burden with weaker proof than they would have to produce in support of a warrant before a magistrate. (Spinelli v. United States, 393 U.S. 410, 417, fn. 5, 89 S.Ct. 584, 21 L.Ed.2d 637.) It follows from this premise that the police testimony at a preliminary hearing, a motion under section 1538.5 of the Penal Code or at a trial must be at least as specific as an affidavit on the basis of which a warrant is sought. The testimony in the case at bar does not meet that test. ⁴

'Following Aguilar, 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. * * *' (People v. Hamilton, 71 Cal.2d ---, ---, ^b 77 Cal.Rptr. 785, 787, 454 P.2d 681, 683. Italics added.) (See also People v. Scoma, 71 Cal.2d ---, ---, ^c 78 Cal.Rptr. 491, 455 P.2d 419; and People v. Benjamin, 71 Cal.2d ---, ---, ^d 78 Cal.Rptr. 510, 455 P.2d 438.) The problem with the testimony below is not that it lacks enough information from which the court could reasonably conclude that the informer was reliable, but that it was never established that he spoke with personal knowledge when he told Officer Evans that defendant was selling heroin in the park across the street from his alleged residence. The entire testimony on that point is as follows: 'THE WITNESS: In the latter part of April, early May, I received information from an informant that a person named Sluggo, also known as Gabriel Castaneda, resided at 6149 Piedmont Street, and he was engaged in the sale of narcotics; That he would frequent the playground area located at Piedmont and Figueroa Street and sell narcotics to wit, heroin.' This is very similar to the defect found in Paople v. Hamilton, supra, 71 Cal.2d ---, ---, ^e 77 Cal.Rptr. 785, 454 P.2d 681. There is nothing to indicate 'that the informer had gained his information in a reliable way.' (Spinelli v. United States, supra, 393 U.S. at 417, 89 S.Ct. at 589.)

Thus the arrest and search cannot be justified by the reliable informer alone. There was, however, much more. First and foremost, there was the information given by the citizen informer to the watch commander. (People v. Scoma, supra, 71 Cal.2d ---, --- fn. 7 ^f , 78 Cal.Rptr. 491, 455 P.2d 419; People v. Hogan, 71 Cal.2d ---, --- ^g , 80 Cal.Rptr. 28, 457 P.2d 868.) ⁵ In addition there was the officer's personal knowledge derived from the 1966 arrest and conviction and defendant's company and behavior when observed in the park. ⁶

The only remaining problem is whether we can affirm on the basis of an analysis of the evidence relating to probable cause which may be different from that of the trial court, which, it will be recalled, only adverted to the reliability of the informer. The problem is raised by cases such as People v. Kanos, 70 Cal.2d 381, 74 Cal.Rptr. 902, 450 P.2d 278; and People v. Henry, 65 Cal.2d 842, 56 Cal.Rptr. 485, 423 P.2d 557. In Kanos the court excused a violation of section 844 of the Penal Code solely on the untenable ground that the defendant was a parolee. The People's argument that the evidence would have justified noncompliance with section 844 for other reasons was disposed of as follows: '* * * Even if we assume that the evidence may be sufficient to excuse compliance with section 844 on the basis of either or both of these rules, it is clear that the trial court sought to excuse compliance on the ground that Kanos was a parole violator and did not determine that the officers had a reasonable belief that evidence would be destroyed while the requisite demand was made or that their peril would be increased by compliance. In the absence of such express or implied determinations by the trial court, we cannot hold that as a matter of law compliance with section 844 was excused. The appellants were entitled to a factual determination on this issue. (Cf. People v. Sesslin, 68...