People v. Gallardo

• Citation: 52 Cal.Rptr. 777,244 Cal.App.2d 105
• Decision Date: 08 August 1966
• Docket Number: Cr. 11332
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Julian GALLARDO, Defendant and Appellant.

Page 777

52 Cal.Rptr. 777

244 Cal.App.2d 105

The PEOPLE of the State of California, Plaintiff and Respondent, v. Julian GALLARDO, Defendant and Appellant.

Cr. 11332.

District Court of Appeal, Second District,

Division 2, California.

Aug. 8, 1966.

Rehearing Denied Aug. 18, 1966.

Gershan & Castillo and Martin G. Castillo, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., for plaintiff and respondent.

ROTH, Presiding Justice.

Appellant, having waived a jury, was found guilty by the court of possession of heroin for the purpose of sale in violation of Health & Safety Code, § 11500.5. He appeals from the judgment of conviction solely on the ground that the heroin found in his possession at the time of arrest was unlawfully seized and therefore inadmissible at trial. We do not agree.

The evidence in dispute, consisting of a number of various sized balloons of heroin, was obtained pursuant to a search warrant issued by a magistrate to the municipal court on the showing made in an affidavit therefor. Appellant contends that the affidavit does not justify a finding of probable cause, citing Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

In Aguilar, it was held that the Fourth Amendment requirement that '* * * no (search) Warrants shall issue, but upon probable cause, supported by Oath or affirmation * * *' (U.S.Const., Amend. IV) applied to the states through the due process clause of the Fourteenth Amendment and that federal standards relating to the adequacy of a supporting affidavit are required (Aguilar v. State of Texas, supra, 378 U.S. at p. 110, 84 S.Ct. 1509). The affidavit in Aguilar was cursory and obviously inadequate. It recited that 'Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.' (Id. p. 109, 84 S.Ct. p. 1511.) The Supreme Court pointed out that the magistrate could not have made any independent assessment from the quoted averments of probable cause for the search which he authorized. The magistrate, the court said, would necessarily have had to rely solely on the affiant's judgment and not his own. The court then said:

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible' or his information 'reliable. " (Aguilar v. State of Texas, supra, 378 U.S. at pp. 114--115, 84 S.Ct. at p. 1514.)

In the case at bench, the affidavit, which is set out in full in the margin, ¹ alleged essentially as follows:

1. Affiant, a seasoned police officer, with 12 years' experience in the narcotics field, received information from an informant with a proven record of reliability that on afternoons between 4:00 and 5:00 p.m. appellant habitually went to the Grand Central Market at Third and Broadway in Los Angeles; that he drove a car which he parked nearby in which he kept heroin which he sold in the market area.

2. A second informer, also of proved reliability, told the affiant that during the last two weeks, appellant has been selling heroin at the said market.

3. Affiant's independent investigations show that appellant had been previously convicted for narcotics offenses.

4. John Weatherby, a parking lot attendant, at a lot approximately two blocks from the market, who was independently interviewed by affiant, told affiant that a man answering appellant's description parked his car in the lot on afternoons, approximately between 4:00 and 5:00 p.m. and that thereafter he walked in the direction of the market.

Appellant concedes the reliability of the informers. He also admits that the affiant police officer was not required to disclose the names of the informers. (Aguilar v. State of Texas, supra, 378 U.S. at p. 114, 84 S.Ct. 1509; People v. Govea, 235 Cal.App.2d 285, 298, 45 Cal.Rptr. 253.) He argues, however, that the affidavit failed to supply the issuing magistrate sufficient facts upon which to make an independent determination of the existence of probable cause.

In People v. West, 237 Cal.App.2d 801, 47 Cal.Rptr. 341, this court determined that an affidavit which recited that a reliable informant told the affiant that the defendant possessed marijuana in a certain apartment where he lived with a girl named Lou Ann, did not comply with the requirements of the Aguilar case. West points out that the source of the informant's knowledge was not stated in the affidavit nor was the information of such specific detail that personal knowledge could be implied. It was noted, however, that: 'It is, of course, possible for an informant's bare conclusion to be buttressed by secondary information, which itself does not amount to probable cause but which fortifies the first, and for the two in combination to provide sufficient cause for the issue of a search warrant.' (People v. West, supra, 237 Cal.App.2d at p. 807, 47 Cal.Rptr. at p. 346.) In West, the corroboration consisted of the facts that the apartment was registered to someone named Lou Ann, and that the defendant had a prior narcotics record. The first fact did not imply criminal conduct, and the second could not be used for that purpose.

At bench, there is more than the bald conclusion of the informant that appellant was going to the Grand Central Market daily in the afternoon and was selling heroin at that location. The affiant police officer had personally verified that appellant, or at least a man answering that description, drove a car to a lot nearby, as the informant had stated. He further verified that appellant came daily in the afternoon at approximately 4:00 to 5:00 p.m. and after parking his car, headed in the direction of the market. This personal verification corroborates the information received.

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, a federal narcotics agent named Marsh had...