People v. Cook
| Decision Date | 30 November 1976 |
| Docket Number | Cr. 27379 |
| Citation | 134 Cal.Rptr. 484,64 Cal.App.3d 354 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel Gary COOK, Defendant and Appellant. |
Carsel & Carsel and Richard A. Carsel, San Luis Obispo, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda and Michael Nash, Deputy Attys. Gen., for plaintiff and respondent.
Defendant Daniel Gary Cook was charged in a six-count indictment with violations of Health and Safety Code sections 11357 (possession of marijuana), 11377 (possession of chloral hydrate), 11383 (possession of mathylamine and phenyl-2-propanone with intent to manufacture methamphetamine), 11379 (manufacture of amphetamines), and 11378 (possession of a restricted dangerous drug for sale). Defendant initially pled not guilty; following denial of his Penal Code section 1538.5 motion to suppress evidence and return property, defendant pled guilty as charged. Criminal proceedings were suspended. Probation was granted for a period of five years upon terms and conditions prescribed by the court. 1 This appeal followed.
On June 25, 1974, pursuant to a warrant, law enforcement officers conducted an extensive search of defendant's residence. The warrant was issued on the basis of an affidavit submitted by Detective Gregory of the San Luis Obispo Police Department, the substance of which is as follows: On two separate occasions named, federal narcotic agents requested that the affiant investigate a business organization called 'Cen-Coast Scientific,' which had ordered chemicals primarily used in the production of dangerous drugs. On June 25, 1974, the date of the second such request, the affiant received a phone call from the manager of rental units, Mr. H. E. Smith, who advised the affiant that he had visited defendant Cook's residence for the purpose of evicting him because of his failure to pay rent. Defendant was not home when Smith arrived, and Smith used his passkey to enter. Once inside, Smith 'observed several large pieces of chemical apparatus' which were 'apparently operating.' The affidavit provided detailed measurements of the 'chemical apparatus' observed by Smith. Smith advised the affiant that he also observed a pill-making machine and several guns. The affiant, together with Detective Osteyee, immediately proceeded to defendant's residence. Upon their arrival, the two detectives found Smith inside the residence, 'the front door to which was fully opened.' Through the open door and in the adjoining room, the affiant observed the aforementioned chemical apparatus. The affiant also recited the names of chemicals which he 'observed' on large, labeled bottles in the adjoining room, and the two noticed 'an unusual odor similar to a compound of ether, acetone and stale urine.' They also observed a marijuana 'roach' in plain sight (on the floor of the residence, approximately 18 inches inside the front door), which they seized. The affidavit included the information that defendant was an ex-chemistry major at 'Cal Poly University' and a copy of a business license application filed by defendant Cook with the clerk of the City of San Luis Obispo. The application, for 'Cen-Coast Scientific,' lists the business purpose as 'mail order biological supplies and equipment.' The affidavit concludes by relating opinions which the affiant obtained from Charles Hall, a Federal Drug Enforcement Administration chemist, who informed the affiant that the apparatus, odor and chemical indicated the manufacture of amphetamines.
The search which was conducted pursuant to the warrant resulted in an arrest warrant being issued for defendant Cook. On June 28, 1974, defendant surrendered to officers; he was arrested and subsequently released on bail. On September 26 the instant indictment was returned and arraignment was scheduled before Judge James A. Madden on September 30, 1974. Prior to his appearance, defendant filed a peremptory disqualification motion under Code of Civil Procedure section 170.6. The arraignment was continued to October 15. Judge Carter heard the arraignment and set defendant's motion to suppress evidence under section 1538.5 for hearing on October 31, 1974. During the arraignment, defendant learned that Judge Madden had died earlier that day. He thereafter filed a motion to withdraw his previous disqualification of Judge Madden.
On October 30, 1974, defendant filed his declaration in support of the 1538.5 motion. In his declaration he alleged that the affidavit submitted by Detective Gregory in support of the issuance of the search warrant contained a number of intentional, factual misstatements and omissions, including the following:
1. Many of the affidavit's allegations 'were based upon information or observations obtained by law enforcement officers as the direct result of at least two (2) prior illegal and warrantless searches of Defendant's home on the day the search warrant was obtained.' (Emphasis in original.)
2. The deputy district attorney and the affiant who drafted the affidavit and the warrant had participated in at least one of those illegal searches.
3. Contrary to the affidavit's implications, Smith did not measure the chemical apparatus. In addition, Smith did not provide the law enforcement officers with any measurements or approximations.
4. There was no pill-making machine in defendant's residence; and the affiant, who had unlawfully entered the defendant's residence on that day, should have been aware of this fact.
5. It was physically impossible for the affiant to read the chemical labels from his alleged station outside the front door.
6. The front door to defendant's residence was not fully opened when the police arrived. In addition, Smith was standing in the doorway, obstructing the affiant's view inside the residence.
7. Smith, pursuant to the officer's directions, went into an unobservable interior room, and brought suspected marijuana into the officers' plain sight.
8. The affidavit was intentionally drafted so as to mislead the issuing magistrate.
At the commencement of the hearing on October 31, defendant's motion to withdraw his disqualification of Judge Madden was denied by Judge Timothy O'Reilly. Defendant then attempted to call Detective Gregory as a witness in the 1538.5 hearing. The deputy district attorney objected to the taking of testimony on the defense motion on the ground that the defendant is limited to his declaration on the ground stated in the motion, and that under Theodor v. Superior Court, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234, if the prosecution is unable to establish that the police were reasonable in believing the facts stated to be true, the court is obliged to excise those statements and test the affidavit on the remaining facts to determine if probable cause is established. The prosecution then moved to voluntarily excise those portions of the search warrant affidavit which had been challenged by defendant. In making this motion, the prosecution contended that the excise rules of Theodor v. Superior Court, supra, were controlling. The deputy district attorney stated his position as follows:
Over defendant's objection, the trial court accepted the prosecution's interpretation of Theodor, and allowed the prosecution to voluntarily excise the objectionable facts from the affidavit. 2 Accordingly, the court refused to permit the defendant (1) to call the affiant to the stand; (2) to call any witnesses for the purpose of attacking the affidavit's allegations; or (3) to call any witnesses to attack the credibility of the affiant. A chart containing the remaining unobjectionable facts was then introduced into evidence by the prosecution. 3 The following information was contained in the chart:
1. Single family residence;
2. Two orders of phenylaceti acid;
3. Defendant is an ex-chemisty major;
4. Business license, biological supplies plus equipment.
5. Landlord observes:
(a) unusual odor
(b) large pieces of chemical apparatus
(c) fan
(e) guns in residence 4
6. From front door, police see:
(a) chemical apparatus
(b) Osteyee smells odor of acetone, ether, or stale urine.
The trial court limited the subject matter of the hearing which followed to the material contained in the chart and the testimony of Charles Hall, the Federal Drug Enforcement Administration chemist. The trial court held that the 'excised' affidavit was legally sufficient to support the issuance of the search warrant, and denied defendant's 1538.5 motion.
On November 20, 1974, defendant changed his plea to guilty on all counts charged in the indictment.
Defendant's primary contentions can be summarized follows:
1. The refusal of the trial court to allow defendant to litigate any factual issues regarding alleged intentionally false allegations contained in the search warrant affidavit deprived him of due process.
2. Defendant was entitled to litigate his allegation that facts unfavorable to the police should have been included in the search warrant affidavit.
3. The refusal of the trial court to allow defendant to examine the chemist as to statements allegedly made...
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