People v. Herdan

• Decision Date: 03 October 1974
• Docket Number: Cr. 24036
• Citation: 116 Cal.Rptr. 641,42 Cal.App.3d 300
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Gerald HERDAN, Defendant and Appellant.

Page 641

116 Cal.Rptr. 641

42 Cal.App.3d 300

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Gerald HERDAN, Defendant and Appellant.

Cr. 24036.

Court of Appeal, Second District, Division 3, California.

Oct. 3, 1974.

Hearing Denied Nov. 27, 1974.

[42 Cal.App.3d 302] Alan Fenster, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Jack T. Kerry and Stephen M. Kaufman, Deputy Attys. Gen., for plaintiff and respondent.

COBEY, Acting Presiding Justice.

Michael Gerald Herdan appeals from a judgment, entered upon a plea of nolo contendere of violation of Health and Safety Code section 11530.5 (now § 11359), possession for sale of marijuana, after the trial court denied his motion to suppress certain evidence as having been obtained pursuant to an allegedly unreasonable search and seizure. (Pen.Code, § 1538.5.) The appeal lies. (Pen.Code, § 1538.5, subd. (m); Cal. Rules of Court, Rule 31, subd. (d).)

The sole issue on appeal is the propriety of the trial court's denial of appellant's motion to suppress.

FACTS ¹

On May 31, 1972, Los Angeles Police Officer Richard Cron, one Sergeant Klein, and four other police units conducted a surveillance of an automobile body shop which, according to information obtained by Officer Cron from an informant, J. Losh, ² would be the site of the delivery Officer Cron observed appellant arrive at the site in a Mercedes Benz, driven by one Clifford Guttersrud. The two men and Losh then went to the trunk of the vehicle, opened it, and Losh apparently looked inside the trunk before the trunk was closed. Losh then gave a prearranged signal to the police which indicated that he had seen contraband. From Officer Cron's position, however, he could see nothing in the trunk.

by appellant to Losh of 50 pounds of hashish oil.

Appellant and Losh then walked away and were out of Officer Cron's sight for 3 to 5 minutes. They returned in appellant's automobile, a Pontiac. Again, Losh was shown something in the trunk of that vehicle, whereupon Losh gave another prearranged signal to Officer Cron, which indicated that the presence of all of the narcotics that were to be delivered had been verified. Losh and appellant then drove to Losh's residence, with Guttersrud following behind in his vehicle. When they arrived, Losh went into the house while appellant and Guttersrud remained outside. Officer Cron and Sergeant Klein then rushed over and accosted appellant and Guttersrud. Officer Cron identified himself and asked appellant if he had any narcotics in the vehicle, ³ to which appellant replied that he did. ⁴ Thereupon Officer Cron, who felt that appellant was subject to arrest prior to the question, and Who would have arrested appellant regardless of the answer appellant gave to the question, then arrested appellant. ⁵ The officer then searched both vehicles and found a green suitcase in the trunk of the Pontiac and a brown suitcase in the trunk of the nearby Mercedes Benz. The green suitcase was opened by Officer Cron at that time, and 34 pounds of marijuana, rather than hashish oil, was found therein. The brown suitcase was opened at the police station without a warrant. It contained 16 additional pounds of marijuana.

DISCUSSION

Appellant contends that the trial court erroneously denied his motion to suppress the 50 pounds of marijuana found in the trunks of the two vehicles. Specifically, he contends that: (1) probable cause did not exist to arrest him or to search the cars before he was questioned about the narcotics; (2) Officer Cron was constitutionally required, but failed, to inform him of his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 684), and that his answer, therefore, may not be used to justify the subsequent search; ⁶ and (3) in any case, it was constitutionally necessary for Officer Cron to obtain a search warrant before he searched the suitcases found in the car trunks. We agree with appellant's first two subcontentions, and we, therefore, reverse.

Both the arrest of appellant and the searches of the two vehicles were conducted without a warrant. As such, the burden was on the People at the hearing to prove that the arrest and subsequent searches were constitutional. (Evid.Code, § 664; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) The People failed to meet that burden in various respects.

It is clear that Officer Cron lacked probable cause to arrest appellant or to search the vehicles at the time that Officer Cron appeared upon the scene and accosted appellant. In order for probable cause then to exist, it was necessary, among other things, for the People to prove that Losh was a reliable informant. (See Aguilar v. Texas (1964) 378 U.S. 108, 114--115, 84 S.Ct. 1509, 12 L.Ed.2d 723, 729.) This was not done. There was absolutely no evidence offered regarding his reliability.

The Attorney General contends, however, that Losh was a 'citizen-informer,' and that as such he is deemed automatically reliable. The People, however, failed to meet their burden of showing that Losh was a 'citizen-informer,' as distinguished from a paid informer. (People v. Guidry, 262 Cal.App.2d 495, 498, 68 Cal.Rptr. 794.) There is no evidence of solid value to indicate that Losh was one rather than the other. Officer Cron failed even to identify his information. It was appellant who identified the informant by name and occupation. Even assuming that information to be accurate, such meager information does not prove that Losh was a citizen-informer. There is a very real possibility that Losh was a regularly used police information who also happened to have a regular occupation. In fact, Losh's active involvement in setting up appellant for the arrest tends to cast doubt on his being merely a citizen-informer. Losh's conduct went far beyond the type of conduct usually, but not always, performed by the typical citizen-informer who, unexpectedly witnessing or suffering a crime, informs law enforcement officials regarding his observations but does nothing more. (See, e.g., Krauss v. Superior Court, 5 Cal.3d 418, 420, 96 Cal.Rptr. 455, 487 P.2d 1023 (maid spotted marijuana and informed police); People v. Hogan, 71 Cal.2d 888, 889, 80 Cal.Rptr. 28, 457 P.2d 868 (citizen-victim of robbery reports his robbery to police); People v. Gardner, 252 Cal.App.2d 320, 322, 60 Cal.Rptr. 321 (robbery victim reported crime and license number of get-away car); People v. Lewis, 240 Cal.App.2d 546, 547--548, 49 Cal.Rptr. 579 (eyewitness to burglary pointed out defendant as burglar to police), but see People v. Lopez, 271 Cal.App.2d 754, 77 Cal.Rptr. 59.) Stripped of the citizen-informer label there was no evidence from which it could reasonably be inferred that Losh was reliable. The information he transmitted to Officer Cron, therefore, did not constitute probable cause.

Even assuming Arguendo, however, that Losh was a citizen-informer, probable cause to arrest and/or search appellant and his car was still lacking. Although the test of reliability that must be applied when a tip is received from an experienced informer is not necessarily the test applied when a private citizen aids the police as a good citizen, our Supreme Court has noted that the label 'citizen-informer' does not eliminate the necessity of the People establishing To some degree that the information obtained was reliable. (Krauss v. Superior Court, Supra, 5 Cal.3d 418, 422, 96 Cal.Rptr. 455, 487 P.2d 1023; People v. Balassy, 30 Cal.App.3d 614, 621, 106 Cal.Rptr. 461.) In the instant case there was no evidence to confirm the reliability of the information. Officer Cron could see no narcotics from his vantage point, nor could he hear any conversation. In short, he knew nothing independent of Losh's information to substantiate Losh's or his information's reliability. (Cf. Krauss v. Superior Court, Supra, 5 Cal.3d at p. 422, 96 Cal.Rptr. 455, 487 P.2d 1023; People v. Lopez, Supra,271 Cal.App.2d 754, 759--760, 77 Cal.Rptr. 59.) Officer Cron, therefore, lacked probable cause to arrest appellant or to search the cars.

We also believe that Miranda warnings were required when Officer Cron asked appellant whether narcotics were in the Pontiac. A suspect must be given his Miranda warnings--that he has a right to remain silent, that he is entitled to an attorney, appointed if necessary, and that anything he says may be used against him--whenever he is interrogated by law enforcement officials while in custody. Custody occurs if the suspect is physically deprived of his freedom of action in any significant way (Miranda v. Arizona, Supra (1966) 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694, 706) or is led to believe reasonably that he is so deprived. (People v. Arnold, 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515.)

In the instant case, we do not believe that the People met their burden (People v. White, 69 Cal.2d 751, 761, 72 Cal.Rptr. 873, 446 P.2d 993) of proving that appellant was not in custody when the interrogation took place.

Custody is an objective condition. (People v. Morse, 70 Cal.2d 711, 722, 76 Cal.Rptr. 391, 452 P.2d 607.) The subjective intent of the interrogator to arrest the suspect is not, In itself, a sufficient basis upon which to conclude that custody exists. ⁷ (People v. Kelley, 66 Cal.2d 232, 246, 57 Cal.Rptr. 363, 424 P.2d 947.) When an arrest has not yet taken place, the factors considered in deciding whether custody has attached are many. ⁸ Among the most important are: (1) the site of the interrogation; ⁹ (2) whether the investigation has focused on the suspect; ¹⁰ (3) whether the objective indicia of arrest are present; ¹¹ and (4) the length and form of questioning. ¹²

In the instant case we conclude that applying these factors appellant was deprived of his freedom in a significant way, and that in any case he reasonably could so believe. ¹³ ...