People v. Cressey

• Decision Date: 08 July 1970
• Docket Number: Cr. 13933
• Citation: 2 Cal.3d 836,471 P.2d 19,87 Cal.Rptr. 699
• Court: California Supreme Court
• Parties: , 471 P.2d 19 The PEOPLE, Plaintiff and Respondent, v. Jesse CRESSEY, Sr., Defendant and Appellant.

Page 699

87 Cal.Rptr. 699

2 Cal.3d 836, 471 P.2d 19

The PEOPLE, Plaintiff and Respondent, v. Jesse CRESSEY, Sr., Defendant and Appellant.

Cr. 13933.

Supreme Court of California,

In Bank.

July 8, 1970.

Richard H. Levin, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Lola M. McAlpin, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

The District Attorney of Los Angeles County jointly charged defendant Cressey and one Phillips by an amended information with possession of marijuana (Health & Saf.Code, § 11530) and with being present in an apartment where with their knowledge marijuana was being unlawfully used. (Health & Saf.Code, § 11556.) The parties submitted the matter on the transcript of the preliminary hearing and the court acquitted Phillips but found Cressey guilty of possession. Having denied his motion for a new trial, the court on September 24, 1968, pursuant to Penal Code section 1181, subdivision 6, reduced the offense to a violation of Health and Safety Code section 11556, imposed a fine and six-month jail sentence, suspended the sentence, and placed defendant on probation for two years.

For the reasons discussed below, we conclude that defendant's conviction must be affirmed. His arrest and the subsequent search rested solely upon an affidavit; the affidavit, however, set forth sufficient underlying facts for the magistrate independently to find probable cause to arrest for the offense charged. (See Giordenello v. United States (1958) 357 U.S. 480, 484, 78 S.Ct. 1245, 2 L.Ed.2d 1503; People v. Sesslin (1968) 68 Cal.2d 418, 421, 67 Cal.Rptr. 409, 439 P.2d 321.) Furthermore, the magistrate properly indorsed defendant's arrest warrant for nighttime service, as then required by Penal Code section 840. Finally, we hold that the conviction of defendant under Health and Safety Code section 11556 does not involve a violation of his constitutional rights.

I. The facts

Jesse and Isaura Cressey, a married couple, lived together in Los Angeles. The couple separated, and Mrs. Cressey filed for divorce. Mrs. Cressey charged her husband with failing to support their daughter and signed a verified complaint at the Failure to Provide Section of the Los Angeles District Attorney's office. ¹ The only accompanying document in the record before this court is identified by the caption 'Defendant's Case History--Failure to Provide.' ² This document is unsigned and undated; it contains a description of the defendant, defendant's present and pre-addresses, the name of defendant's present and previous employer, occupational information regarding defendant, vehicle and driver's license data, and two unexplained references to dates subsequent to the date of the complaint.

A judge of the municipal court issued a warrant for the arrest of defendant for nonsupport. ³ (Pen.Code, § 270; a misdemeanor.) On the face of the warrant appeared the following stamp: 'This warrant may be served in the night time.' On March 1, 1968, a Los Angeles police officer proceeded at night to an apartment where he believed defendant to be residing. About 9:55 p.m. the officer orally verified that an arrest warrant for defendant remained on file and was active, and that it permitted nighttime service. Although the officer possessed no warrant for defendant's arrest, he believed that there were two warrants on file:one for Penal Code section 270 nonsupport and the other for an unspecified traffic offense. The prosecution at no time in these proceedings produced the traffic warrant and only the misdemeanor nonsupport warrant remains at issue in his case. (See fn. 2, supra.)

The officer arrived at the apartment about 10 p.m. and knocked at the door. The defendant answered the door by opening a 5- by 7-inch screened viewport located in the center of the door. The officer inquired, 'Jesse Cressey?' and defendant responded, 'Yes.' Properly explaining his purpose, the officer said, 'I have two warrants for your arrest charging you with failure to provide, and a traffic warrant. Open the door. You're under arrest.' The defendant answered, 'I'm not going to open the door. You don't have any failure to provide warrant for me. I sent my exwife one hundred dollars last week.' Although the officer did not at that time possess the warrant, he informed the defendant again that the police had such a warrant and ordered defendant to submit to arrest and open the door or he would force entry. ⁴ Defendant declared: 'Go ahead because I'm not going to open the door. If you break it down, I'll sue the City.'

The officer immediately broke into the apartment and viewed defendant Cressey standing close to the door and another man, Phillips, sitting on a couch facing the door and 10 or 15 feet away. In front of Phillips stood a low coffee table, and the officer saw a blue steel revolver within reach of Phillips. Proceeding immediately into the apartment past defendant Cressey, who remained by the door, the officer picked the weapon up off the table and also noticed on the table a smoldering pipe and an open envelope containing a green, leafy substance. The officer had previously made approximately 300 arrests for marijuana possession and at that moment identified the substance in the envelope and the pipe as marijuana. The officer placed both Cressey and Phillips under arrest for possession of marijuana.

The officer discovered a small plastic bag of marijuana, a cigarette case containing one partially burned marijuana cigarette, some scattered marijuana debris and seeds, and two packages of paper for hand-rolling cigarettes in the same room of defendant's apartment. By stipulation the parties agreed that the officer found approximately 8 1/2 grams, or less than 3/10 of an ounce, of marijuana in the apartment. ⁵

On May 27, 1968, somewhat more than a month after the filing of this court's decision in People v. Sesslin, supra (April 10, 1968) 68 Cal.2d 418, 67 Cal.Rptr. 409, 439 P.2d 321, the marijuana possession case of People v. Cressey and Phillips came to preliminary hearing and the parties argued whether the then recently filed Sesslin decision would render the arrest warrant void in this case because the complaint did not 'allege underlying facts upon which the magistrate can independently find probable cause to arrest the accused.' (68 Cal.2d at p. 421, 67 Cal.Rptr. at p. 411, 439 P.2d at p. 323.) The People indicated that the only cause for arrest lay in the warrant. ⁶ The trial court denied the defendants' motion to exclude any testimony or evidence found as a result of issuance of the warrant, but permitted a continuing objection to all such evidence. As related above, the trial court eventually found defendant Cressey guilty of being present in an apartment where with his knowledge marijuana was being unlawfully used. (Health & Saf.Code, § 11556.) He appeals from that conviction.

II. The arrest warrant was properly issued

The Fourth Amendment of the United States Constitution insures that: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' (Italics added.) The due process clause of the Fourteenth Amendment wholly incorporates the Fourth Amendment and thus forbids state intrusions upon the right to privacy. (See Aguilar v. Texas, supra, 378 U.S. 108, 110, 84 S.Ct. 1509; Ker v. California (1963) 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726; Mapp v. Ohio (1961) 367 U.S. 643, 656--657, 81 S.Ct. 1684, 6 L.Ed.2d 1081.) State constitutional and statutory provisions similarly protect the right to privacy. (Cal.Const., art. I, § 19; Pen.Code, § 813.) In interpreting the Fourth Amendment the United States Supreme Court has held that neither a search nor an arrest warrant may issue without probable cause based upon oath or affirmation (Ex parte Burford (1806) 7 U.S. (3 Cranch) 448, 451, 2 L.Ed. 495). In recent years the Supreme Court has encouraged police officers to seek warrants and established minimum standards for permitting 'a neutral and detached magistrate' to determine whether the 'probable cause' required to support a warrant exists. (Johnson v. United States (1948) 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436. In order that an arrest warrant satisfy the Fourth Amendment's requirement of 'probable cause' the affidavit must recite competent facts that would lead a man of ordinary caution and prudence conscientiously to entertain a strong suspicion of the guilt of the accused. (Skelton v. Superior Court (1969) 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485; see Beck v. Ohio (1964) 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142.) ⁷ The United States Supreme Court has repeatedly reiterated its steadfast insistence that the record indicate specific and articulable facts to justify any intrusion upon an individual's privacy. (See Terry v. Ohio (1968) 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 and cases cited therein.)

In Giordenello v. United States, supra, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503, the Supreme Court held that a complaint which merely stated the affiant's conclusion could not support a valid arrest warrant. The court reasoned that the magistrate who is authorized to issue the warrant must judge for himself the persuasiveness of the facts upon which the complaint relies. In Aguilar v. Texas, supra, 378 U.S. 108, 112--113, 116, 84 S.Ct. 1509, 12 L.Ed.2d 723, the court clearly indicated that Giordenello enunciated constitutional standards under the Fourth Amendment for the issuance of an arrest warrant. (See Beck v. Ohio, supra, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 fn. 5.)

In People v. Sesslin, supra, 68...