People v. Hernandez

• Decision Date: 29 November 1974
• Docket Number: Cr. 25040
• Citation: 118 Cal.Rptr. 53,43 Cal.App.3d 581
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alfonsa L. HERNANDEZ, Defendant and Appellant.

Page 53

118 Cal.Rptr. 53

43 Cal.App.3d 581

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alfonsa L. HERNANDEZ, Defendant and Appellant.

Cr. 25040.

Court of Appeal, Second District, Division 5, California.

Nov. 29, 1974.

Rehearing Denied Dec. 23, 1974.

[43 Cal.App.3d 583] Simon Kornbrodt, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Lawrence P. Scherb, II, and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

Defendant Alphonsa Hernandez was charged with possession of heroin. (Health & Saf.Code, § 11350.) After motions to quash a search warrant and to suppress evidence were made and denied, she pleaded guilty. Proceedings were suspended and defendant was placed on probation on condition that she serve one year in jail.

The sole issue on appeal is the validity of a search warrant and the timeliness of its issuance and service.

FACTS

The affidavit in support of the warrant, executed by Sergeant Ginder, stated:

'On or about April 30, 1973, your affiant H. R. GINDER, Ser. #6044, met with an informant. The informant stated that a person he knew by the name of Ernest Ochoa was selling heroin from his apartment in El Sereno. The informant stated to your affiant that he has purchased heroin from Ernest Ochoa on numerous occasions, that he calls phone number 222--8840 and that either Ernest Ochoa or his sister Virgie answers the phone. On each occasion the informant then talked to Ernest Ochoa, told Ochoa that he wanted to purchase narcotics, and then Ochoa designated a location to meet for the exchange of the narcotics for cash. On each occasion informant met with Ochoa at the pre-arranged location, and purchased narcotics.

'Your affiant checked phone number 222--8840 through police department facilities and discovered that that phone number was registered to Apt. #9 at 4929 Lynnfield Avenue in the City of Los Angeles.

'On or about May 2, 1973 your affiant met with the informant and had the informant call phone number 222--8840 and asked to purchase heroin from Ernest Ochoa. The deal was made and overheard by your affiant and other officers who were present and who were engaged on the same investigation. Your affiant heard Ernest Ochoa designate a location to meet which was approximately six blocks from the apartment #9 at 4929 Lynnfield Avenue in the City of Los Angeles. . . . (Several officers went to the pre-arranged location. Other '. . . That object was an orange balloon containing a powdery substance. (The substance was heroin.)

officers went to a point where they could observe the apartment.) The latter officers reported via walkie-talkie that they observed Ernest Ochoa leave his apartment, get into a black Chevrolet 2-door, Lic. #GAC 830, and drive to the pre-arranged location. Your affiant observed Ochoa arrive at the pre-arranged location and enter. That location is a bar. . . . (Other officers already inside the bar observed Ernest Ochoa enter and hand something to the informant who left the bar. Keeping the informant in sight, the officers) approached the informant and obtained from him that which had been handed by Ernest Ochoa.

'. . . Th

'In your affiant's opinion, Ernest Ochoa is keeping a supply of narcotics, to wit: Heroin, in apartment #9 located at 4929 Lynnfield Avenue, in the City of Los Angeles. This opinion is based on the affiant's experience with narcotics dealers, and by the fact that Ernest Ochoa was observed continuously as he left apartment #9 located at 4929 Lynnfield Avenue, and traveled directly (without stopping) to the location where a narcotic transaction took place. . . .'

As noted, the initial information was furnished to Sergeant Ginder on April 30, and the first and only contact with Ochoa was made on May 2. The affidavit in support of the warrant was presented to the magistrate on May 14; the warrant was issued the next day, but was not executed until May 23. The address to be searched was not listed in Ochoa's name; rather, Sergeant Ginder learned that the apartment was in defendant's name.

Sergeant Ginder was not asked about the delay from May 2 to May 14 in applying for the warrant. To explain the delay from May 15 to May 23 in executing it, he testified: 'Well, we had three other major dope peddlers that we had stakeouts and investigations going on at that particular time, and we were still burdened with the administrative functions that we have to do daily, . . .'

DISCUSSION

Defendant contends that the warrant should have been quashed, because the affidavit alleged no information from which the magistrate could reasonably infer that the suspect Ochoa was keeping heroin at defendant's apartment; in any event, she claims that the information was stale when the affidavit was prepared and the warrant issued; and, finally, that the officers unduly delayed executing the warrant.

Although the issues overlap, it is relatively easy to separate the question of probable cause that Ochoa was storing heroin in defendant's apartment from the question of timeliness in obtaining and in executing the warrant.

Location to be Searched

The informant's information that the suspect Ochoa was selling heroin 'from his apartment' was amply corroborated by the officers' overhearing the conversation between the informer and Ochoa and their observation of the transaction. Ochoa went directly from the apartment to the bar, where the deal was consummated. This case, then, is not unlike People v. Flores, 68 Cal.2d 563, 565--566, 68 Cal.Rptr. 161, 440 P.2d 233, in which the fact that the defendant made 'several trips' without any stops from his apartment to the sales location justified the magistrate in concluding that the defendant was harboring contraband 'in his apartment.' True, in Flores the officers observed 'several trips'--not one--and the opinion suggests that the apartment was clearly the defendant's home. Nevertheless, we conclude that the inference that Ochoa was storing contraband at the apartment, even though it was listed in defendant's name, was not so unreasonable as to invalidate the warrant. ¹

Timeliness of Warrant

Defendant next contends that the information furnished the magistrate, some 12 days after the first and only observation of the suspect Ochoa, was stale.

The freshness of the information on the basis of which a warrant is sought and obtained, is one of the factors which determine whether there is probable cause to believe that the articles covered by the warrant will be found at the place that is to be searched. In People v. Scott, 259 Cal.App.2d 268, 277--278, 66 Cal.Rptr. 257, there was a 7-day delay between the last piece of information and the affidavit; however, there was only a 4-day delay from the date that the contraband was to be found at the location until the affidavit was prepared. Moreover, the warrant was directed at a residence known to be that of the suspect. (Id., at p. 272, 66 Cal.Rptr. 257.) Similarly, in People v. Wilson, 268 Cal.App.2d 581, 588--589, 74 Cal.Rptr. 131, the transaction was observed some 14 days before the affidavit was submitted; however, when the officer later phoned the residence--as here not listed to the suspect--he was told that the suspect was out of town and would return in a few days, thus justifying both the delay in applying for the warrant and the inference that the suspect would continue to be at an address not specifically known to be his home.

In People v. Nelson, 171 Cal.App.2d 356, 359, 340 P.2d 718 (disapproved on other grounds in People v. Butler, 64 Cal.2d 842, 845, 52 Cal.Rptr. 4, 415 P.2d 819), the delay was 14 days from the most recent observation by the police, but only six days from the most recent information about the suspect. (See also Brown v. Superior Court, 34 Cal.App.3d 539, 544, 110 Cal.Rptr. 107 (9-day delay); People v. Sheridan, 2 Cal.App.3d 483, 490--491, 82 Cal.Rptr. 695 (same).)

In this case even the inference that heroin would be on the premises on the day of the transaction was somewhat weak. There is no information in the affidavit concerning how long Ochoa had been dealing with the informant from the apartment. The informant had stated only that 'on numerous occasions' he had called the specified phone number and on 'each occasion' had managed to set up a deal. Moreover, the observed transaction occurred only two days after the information was furnished, providing few useful data to predict how long Ochoa would continue to sell from the Lynnfield Avenue apartment. The delay of 12 days, then, in the circumstances, was on the fringe of unreasonableness; however, absent abuse of discretion, the question was primarily for the issuing magistrate (Frazzini v. Superior Court, 7 Cal.App.3d 1005, 1013, 87 Cal.Rptr. 32; People v. Wilson, 256 Cal.App.2d 411, 417, 64 Cal.Rptr. 172.) We find no such abuse.

Defendant, however, contends further that the additional 8-day delay from May 15 until May 23, when the warrant was finally executed, invalidated the search.

The seminal case involving delayed executions of search warrants is Sgro v. United States (1932) 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260. There a warrant was first issued by a United States commissioner on July 6, 1926. The applicable statute porvided that the warrant has to be executed and returned within ten days, after which time it was void. The warrant in question was not executed within the ten-day period, but on July 27, 1926, the same commissioner who had originally issued it, reissued it without any further showing of probable cause. Under color of the reissued warrant, the challenged search was then made. (Id., at p. 208, 53 S.Ct. 138.)

In the course of its opinion which invalidated the search, the Supreme Court emphasized that the Fourth Amendment was the result of previous abuses of the search warrant procedure. Proof of probable cause which...