People v. Cedeno

• Decision Date: 12 July 1963
• Docket Number: Cr. 4245
• Citation: 218 Cal.App.2d 213,32 Cal.Rptr. 246
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Albert CEDENO, Defendant and Appellant.

Page 246

32 Cal.Rptr. 246

218 Cal.App.2d 213

PEOPLE of the State of California, Plaintiff and Respondent, v. Albert CEDENO, Defendant and Appellant.

Cr. 4245.

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

July 12, 1963.

John W. Birchall, San Francisco, for appellant (under appointment of the District Court of Appeal).

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Michael J. Phelan, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

After a nonjury trial, defendant was convicted of possession of marijuana, with a prior felony conviction for possession of narcotics, in violation of section 11530 of the Health and Safety Code of the State of California. The conviction resulted upon the testimony of Police Officer Charles Wettstein, who testified substantially as follows: ¹

That during the month of August 1961 the Narcotics Division of the San Francisco Police Department received a narcotic complaint in which Louise Friend was named as a possible person who would help the narcotic detail in apprehending some narcotic violators in the Sixth and Mission Streets area in San Francisco. During the week of September 16th, Miss Friend came to the police and told them the names of people who had been dealing in forged prescriptions and also that she thought were dealing in marijuana. The police told her to be more definite about the names, and on September 16th Wettstein called her at her hotel, at which time she stated that a fellow she knew by the name of Al and who lived at 80 Ninth Street was dealing in marijuana. That evening the police escorted Miss Friend to 80 Ninth Street, gave her some money, and sent her into the hotel. Approximately five minutes later she came out of the hotel, entered the police vehicle and turned over to Wettstein one marijuana cigarette which she stated she had just gotten in Room 24 from the fellow named Al. The police had given her $10 with which to buy the marijuana which she returned to them at that time with the explanation that she could not buy any more than the one cigarette which cost her $1. Wettstein then gave her the $1.

On the following Monday, September 18th, Miss Friend was again contacted by the police and was asked to make another purchase. She went up to the hotel room but no one answered the door. Upon returning to the police car, Miss Friend identified the driver of a passing car with the statement "That's him now. * * *" ² Thereafter, and on October 17, 1961, Miss Friend was encountered at Sixth and Mission Streets at 1 o'clock in the morning just as Wettstein was going off duty. She got into the police car and was asked if she had seen 'Al' at the hotel in question. She answered that she had been up there that day and that he had marijuana in the room on the table, on the bed and 'every place in the room.' That evening Wettstein and three other police officers went up to Room 24 in the hotel located at 80 Ninth Street. The officers knocked to the door, which was opened by defendant. Wettstein identified himself as a police officer, whereupon defendant tried to push the door closed. The officers then pushed the door open and went into defendant's room. Defendant asked 'what this was all about,' and Wettstein informed him that he had information that defendant had marijuana in the room, to which defendant responded 'well, if you mean grass, * * * yes, I have, * * * 'What's wrong with it?" Upon being asked where the marijuana was he pointed to a closet where the substance which was later analyzed as marijuana was located. Other marijuana and marijuana cigarettes (also subsequently so analyzed) were found on a table in the room. Defendant was thereupon arrested. The arrest and search were made without warrants.

Wettstein testified further: that he did not make any other arrests as a result of information received from Louise Friend; that the arrest of defendant was the only arrest made upon information received from Miss Friend; that he had not known Miss Friend prior to the week of September 16th; that she had no narcotics record, but that she had a police record of some kind. When asked by counsel for defendant whether he had received any information from her with respect to narcotics prior to this incident, Wettstein replied '[w]e received information from her prior to this, yes,' but nothing more concerning this information was developed by said counsel, except that it was 'not about' defendant. When Wettstein was asked the same question by the prosecutor and had answered that at one time they were looking for a certain James Lucas about who '[w]e had information from other sources that he had pulled a burglary in a downtown department store,' an objection on the ground of incompetency, immateriality, and irrelevancy was interposed by counsel for defendant. The following colloquy between the trial court, the witness, and respective counsel, interspersed with some testimony by the witness, ensued. ³ Defendant's counsel objected to the reliability of Louise Friend during the course of Wettstein's testimony upon a voir dire examination of the officer upon the question of such reliability. Again, when the narcotics were offered in evidence after Wettstein's testimony, the admissibility was objected to by defendant on the grounds that they were 'the result of an illegal search.' An objection to the illegality of the search was again interposed upon the submission of the case for decision. In each instance the trial court ruled adversely to defendant.

The Reliability of the Informer

Defendant's main contention on appeal is that the informant, Louise Friend, was an unreliable informer, and that therefore the police, acting upon information received from her, did not possess the requisite reasonable and probable cause to justify the search of defendant's premises without a search warrant or his arrest without a warrant of arrest. The basic rule is stated in People v. Torres, 59 Cal.2d 864, 17 Cal.Rptr. 495, 366 P.2d 823, as follows: 'A search without a warrant is proper where it is incident to a lawful arrest based on reasonable cause to believe that the accused has committed a felony. Such a search is not rendered unlawful merely because it precedes rather than follows the arrest. [Citations.] Reasonable or probable cause is shown if a man of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty. The test if not whether the facts on which the officer relies are sufficient to convict, but only whether the person should stand trial. [Citations.]' (56 Cal.2d p. 866, 17 Cal.Rptr. p. 496, 366 P.2d p. 367) A valid search or arrest may be made solely by reason of information communicated by a reliable informant. (People v. Prewitt, 52 Cal.2d 330, 337, 341 P.2d 1; Willson v. Superior Court, 46 Cal.2d 291, 294-295, 294 P.2d 36; People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535.) On the other hand, information supplied by an unknown or unreliable informer will not in itself justify an arrest or search without a warrant. (Ovalle v. Superior Court, 202 Cal.App.2d 760, 763, 21 Cal.Rptr. 385; People v. Diggs, 161 Cal.App.2d 167, 171, 326 P.2d 194; People v. Goodo, 147 Cal.App.2d 7, 8-9, 304 P.2d 776; Willson v. Superior Court, supra; People v. Amos, 181 Cal.App.2d 506, 508, 5 Cal.Rptr. 451.)

The reliability of the informer goes to the very heart of the concept of reasonable cause. Whether or not a police officer acts upon reasonable cause, where he relies upon information given by an informer, depends, in each instance, upon whether the reliance on the information was reasonable. (See Willson v. Superior Court, supra, 46 Cal.2d p. 294, 294 P.2d p. 38). Accordingly, to justify reliance on the information received it is now firmly established in this state that the information must come from a reliable informant. (People v. Prewitt, supra; People v. Roland, 183 Cal.App.2d 780, 784, 6 Cal.Rptr. 895; People v. Amos, supra, 181 Cal.App.2d pp. 508-509, 5 Cal.Rptr. p. 453; People v. Dewson, 150 Cal.App.2d 119, 128, 310 P.2d 162; Ovalle v. Superior Court, supra; People v. Williams, 196 Cal.App.2d 845, 850, 16 Cal.Rptr. 842; People v. Bates, 163 Cal.App.2d 847, 851, 330 P.2d 102.) The informer must be known to the officer to be reliable, and must be a person whom the officer in good faith believes to be trustworthy. (People v. Bates, supra; People v. Williams, supra; People v. Rixner, 157 Cal.App.2d 387, 390-391, 321 P.2d 91.) Accordingly, an arrest and search may be made solely on the basis of information received from a single reliable informant. (People v. Roland, supra; People v. Boyd, 162 Cal.App.2d 332, 334, 327 P.2d 913.) The essence of this rule of justification for search or arrest without a warrant based upon information from an informer is stated thusly in People v. Bates, supra: 'In most cases the informant must not only be known to the officer, but the officer must have had sufficient dealings with the informant to give him reasonable cause to believe that the informant is reliable and that the information given by him is truthful. It is only in the case of a pressing emergency that an arrest or search without warrants may be justified based upon information secured from an anonymous informant, or from an informant not known to the officer to be reliable.' (163 Cal.App.2d p. 851, 330 P.2d p. 105; emphasis added; citing Willson v. Superior Court, supra; and see People v. Goodo, supra.) Again, in People v. Bates, supra, we find this language: 'It is also well settled that in the absence of a pressing emergency, the officer may not properly arrest or search a person based upon information gained from an informant not known to the arresting officer, or, if known, not known from past experience to have been a source of tested reliable information.' (163 Cal.App.2d p. 851, 330 P.2d p. 105; emphasis added; citing People v. Dewson, supra.) Th...