People v. Hill

• Decision Date: 06 January 1970
• Docket Number: Cr. 750
• Citation: 83 Cal.Rptr. 305,3 Cal.App.3d 294
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Herbert Larry HILL, Defendant and Appellant.

Page 305

83 Cal.Rptr. 305

3 Cal.App.3d 294

PEOPLE of the State of California, Plaintiff and Respondent, v. Herbert Larry HILL, Defendant and Appellant.

Cr. 750.

Court of Appeal, Fifth District, California.

Jan. 6, 1970.

William S. Gregory, Sacramento, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Jack R. Winkler, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

GARGANO, Associate Justice.

On March 16, 1968, several police officers of the Yuba City Police Department entered appellant's apartment at 357 Ainsley Avenue, Yuba City, California, with a search warrant and found a usable quantity of marijuana and 13 LSD capsules. Appellant was arrested and charged with possession of marijuana in violation of Health and Safety Code, section 11530, and possession of restricted dangerous drugs in violation of Health and Safety Code, section 11910.

After several unsuccessful efforts to suppress the evidence seized in his apartment, appellant pleaded guilty to the charge of unlawful possession of marijuana. The second charge, possession of restricted dangerous drugs, was dismissed. Appellant appeals from the judgment entered on his guilty plea, pursuant to the provisions of Penal Code, section 1538.5(m). He challenges both the sufficiency of the affidavit upon which the search warrant was issued and the manner in which the warrant was executed.

The challenged affidavit was prepared by Detective Roy D. Whiteaker of the Yuba City Police Department, largely on information furnished by a police informant, James Ronald Brooks. Brooks contacted Detective Whiteaker on March 16, 1968, and told him that certain parties residing in an apartment house at 357 Ainsley Avenue were planning to transport two kilograms of marijuana from San Francisco to their apartment, at about 3 o'clock that afternoon. The informer, at Whiteaker's direction, then went to the Ainsley Avenue apartment house to obtain more information if possible. Later, Brooks told the detective that upon his arrival at the apartment house he was invited into an apartment belonging to four airmen from Beale Air Force Base. One of the airmen was under the influence of narcotics; his eyes were glazed and dilated. After a few minutes, two airmen went to appellant's apartment next door and returned with appellant. Appellant asked what Brooks wanted, and Brooks answered 'grass.' Appellant looked at an airman named Vern and said, 'I don't want to,' and returned to his apartment alone. Brooks stated that appellant was also under the influence of narcotics, and that Vern had referred to him as an 'acid freak.'

After acquiring the search warrant, Detective Whiteaker, Detective Sergeant Smith, and several other officers of the Yuba City Police Department, the Sutter County District Attorney and the Assistant District Attorney, all went to the apartment house at 357 Ainsley Avenue to conduct the search. On their arrival, several officers entered the apartment belonging to four airmen and searched it; nothing was found in that apartment. Meanwhile, the rest for the party proceeded to appellant's apartment door. Detective Sergeant Smith knocked on the door and announced, 'Police officers, and we have a search warrant.' He asked the occupants to open the door. After a few moments, appellant pulled the window curtains apart from inside and looked out; he stared at Mr. Teja, the District Attorney, for 'three or four seconds' and disappeared from view. Then the officers heard a shuffling of feet and the sound of people moving quickly about the apartment. Detective Sergeant Smith ordered a police officer to break the door and the officers entered the apartment. A search uncovered partially smoked marijuana cigarettes, marijuana seeds, a 'usable quantity' of marijuana and 13 LSD capsules.

The first question we must decide in this appeal is whether the information furnished by the informant Brooks to Detective Whiteaker as set forth in Whiteaker's affidavit meets the 'two-pronged test' of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct 1509, 12 L.Ed.2d 723. ¹ We believe that it does. Brooks spoke with personal knowledge, and his information was 'factual rather than conclusionary.' Moreover, the affidavit alleges facts from which a magistrate could reasonably conclude that the informant was 'credible' and his information reliable; Brooks had previously supplied information to Whiteaker leading to an arrest for narcotics violations. In addition, Whiteaker watched Brooks enter the airmen's apartment and then saw appellant go into the apartment with two airmen and leave alone a few minutes later, as Brooks recounted.

The second question is whether the affidavit contains sufficient factual information to lead a man of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that appellant had marijuana in his apartment at the Ainsley Avenue address. (See People v. Stout, 66 Cal.2d 184, 193, 57 Cal.Rptr. 152, 424 P.2d 704.) We conclude that the answer to this question is also in the affirmative. Detective Whiteaker not only received the critical information to which we have referred from a reliable informant, but this information was corroborated by other independent evidence. The affidavit alleged that the Office of Special Investigation at Beale Air Force Base informed Detective Sergeant Smith that one of the suspect airmen had told a follow serviceman that he had taken $100 from his bank account to buy part of two kilograms of marijuana. The affidavit also alleged that appellant had been convicted of a narcotics offense and that the Sutter County Sheriff's Officer had received confidential information that he was again using narcotics. ²

In rebuttal, appellant argues that no showing was made to indicate that Brooks was qualified to judge whether a...