People v. Kershaw

• Decision Date: 03 October 1983
• Docket Number: Cr. 43548
• Citation: 147 Cal.App.3d 750,195 Cal.Rptr. 311
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. James Francis KERSHAW, Defendant and Respondent.
• Court: California Court of Appeals

Page 311

195 Cal.Rptr. 311

147 Cal.App.3d 750

PEOPLE of the State of California, Plaintiff and Appellant, v. James Francis KERSHAW, Defendant and Respondent.

Cr. 43548.

Court of Appeal, Second District, Division 7, California.

Oct. 3, 1983.

Hearing Denied Dec. 14, 1983.

Arthur Lewis, Los Angeles, for defendant and respondent.

Robert H. Philibosian, Dist. Atty. of Los Angeles County, Donald J. Kaplan and Roderick W. Leonard, Deputy District Attys., for plaintiff and appellant.

JOHNSON, Associate Justice.

This is an appeal by the People from orders suppressing evidence and dismissing the case against the defendant who was charged with possession of cocaine for sale. The only issue is whether a police officer's affidavit established probable cause for the issuance of a warrant to search defendant's residence. We find an anonymous informant's detailed statement coupled with detailed activities observed at defendant's home and defendant's arrest record were sufficient to support the warrant. We therefore reverse.

I. FACTS AND PROCEEDINGS BELOW.

Glendale police began surveillance of defendant's home after receiving information from an anonymous telephone caller that defendant was selling cocaine. Most of the surveillance occurred in the evening. (Ibid.) The surveillance showed an unusual amount of traffic to and from defendant's home. On one evening, defendant had six separate visitors in just a little over an hour. On another, defendant had eight in about an hour. The visits usually lasted ten to twenty minutes. In three evenings of surveillance, totalling 16 hours, the police observed 22 individuals entering and leaving defendant's home.

Further investigation by the Glendale police disclosed defendant had been arrested in the previous year for possession of cocaine for sale and there was an outstanding arrest warrant for defendant on that same charge.

The information from the anonymous informer was based on statements allegedly made by a relative of the informer who claimed to be regularly purchasing cocaine from the defendant. The informer supplied police the defendant's name, nickname, the street on which defendant lived, his telephone number, and the type of car he drove. This information was corroborated by the police. The informer also told the police that defendant dealt in kilos of cocaine wrapped in newspapers, carried a .45 caliber pistol and kept the cocaine at his home and at another location. None of this information was corroborated. The informer explained anonymity was important because he/she ¹ feared the defendant. Finally, he/she told the police the call was motivated by the informer's concern over the relative's use of cocaine.

The foregoing was placed in an affidavit by a Glendale police officer and presented to a magistrate. The magistrate issued a search warrant for defendant's home and automobile. Upon executing the warrant, police officers found cocaine in both locations. Defendant was arrested and charged with possession of cocaine for sale.

Defendant moved for an order suppressing the evidence seized under the warrant on the ground that the affidavit failed to establish probable cause for the search. The superior court granted the motion.

II. THE INFORMATION FROM THE ANONYMOUS INFORMER WAS RELEVANT TO THE DETERMINATION OF PROBABLE CAUSE.

We recognize an allegation by an informer cannot by itself supply probable cause for a warrant unless it meets the requirements of Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 as refined in Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. ² Under the Aguilar-Spinelli test, hearsay information of criminal activity will support a search warrant only if affidavits establish that the informant spoke with personal knowledge and that his information was reliable. (See, e.g., People v. Hamilton (1969) 71 Cal.2d 176, 179-180, 77 Cal.Rptr. 785, 454 P.2d 681.)

A. This Informant Did Not Qualify As A "Citizen Informant."

The officer's affidavit identifies the source of this information about defendant's cocaine trafficking as a citizen informant. This allegation is potentially significant since citizen informants, in contrast to criminal informants, are assumed to supply reliable information. Thus, they require little if any corroboration. However, despite the officer's characterization, the informant in this case fails to qualify as a "citizen informant."

1. This informant's statement fell short of satisfying the personal knowledge requirement.

The protypical citizen informer is a victim reporting a crime that happened to him or a witness who personally observed the crime occur.

In the case at bar, the informant did not claim to possess personal knowledge defendant was selling cocaine. He/she did, however, describe the source of his/her information. This was a relative who allegedly did have personal knowledge obtained through purchasing cocaine from defendant.

There is case law supporting the proposition that an informant, even a citizen informant, need not have personally observed the crime or evidence to be seized if the informant identifies the person who does possess that personal knowledge and explains how the informant acquired the other's knowledge. (People v. Mardian (1975) 47 Cal.App.3d 16, 32, 121 Cal.Rptr. 269 [named citizen informant recited observations by her daughter and a named friend]; see also People v. Superior Court (Bingham ) (1979) 91 Cal.App.3d 463, 475, 154 Cal.Rptr. 157; Caligari v. Superior Court (1979) 98 Cal.App.3d 725, 732, 159 Cal.Rptr. 534.) Those cases are distinguishable, however, because in each one the person holding the personal knowledge was identified by name and could, if necessary, be questioned. Moreover, in each of those cases the informant satisfied the reliability requirement of Aguilar-Spinelli. Here, the person alleged to possess the requisite personal knowledge, like the informer, was anonymous. Furthermore, as we will discuss below, the anonymity of the informant made it impossible for the police to verify his/her reliability. Therefore, the officer had no way of judging whether the informer's relative even existed. For these reasons the personal knowledge requirement is not met in this case.

2. This informant's anonymity meant he/she was not entitled to the presumptive reliability of a citizen informer.

The courts have distinguished between sources who volunteer information to promote their own special interests and informers who volunteer information out of a sense of civic responsibility. The former class includes informants who are themselves criminals, drug addicts or professional "stool pigeons." The factors motivating these informants include offers of immunity or sentence reduction, money payments, revenge or the hope of eliminating criminal competition. (Rebell, "The Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards" (1972) 81 Yale L.J. 703, 712-713.) The latter class consists of ordinary citizens who are the victims of, or witnesses, to a crime. (People v. Schulle (1975) 51 Cal.App.3d 809, 814, 124 Cal.Rptr. 585 and cases cited therein.) These informers act openly in aid of law enforcement motivated by good citizenship. (People v. Smith (1976) 17 Cal.3d 845, 850-851, 132 Cal.Rptr. 397, 553 P.2d 557.) Because of their differences in character and motivation, "the requisite showing of reliability in the case of a citizen informant is significantly less than that demanded of a police informer." (People v. Ramey (1976) 16 Cal.3d 263, 269, 127 Cal.Rptr. 629, 545 P.2d 1333.) Information coming from private citizens who are witnesses to or victims of a criminal act is presumed reliable. (Ibid.)

In order for the presumption of reliability to apply, however, the affidavit must affirmatively set forth the circumstances from which the existence of citizen-informer status can reasonably be inferred by a neutral and detached magistrate. (People v. Smith, supra, 17 Cal.3d at p. 852, 132 Cal.Rptr. 397, 553 P.2d 557.) Nothing in the record here suggests the police were ever aware of the identity or background of the informant. Therefore, the presumption of reliability that attaches to information from ordinary citizen informants is not applicable here. That rule "presupposes that the police be aware of the identity of the person providing the information and his status as a true citizen informant. [Citation omitted.] ... In short, probable cause will not be provided by conclusionary information or anonymous informants ...." (People v. Ramey, supra, 16 Cal.3d at p. 269, 127 Cal.Rptr. 629, 545 P.2d 1333.)

This is not a case like People v. Cohn (1973) 30 Cal.App.3d 738, 106 Cal.Rptr. 579, in which the identity of the informant was known to the police but omitted from the affidavit for the informer's protection. ³ There are significant differences relevant to credibility between an informer who is known to the police but unidentified, what might be termed the confidential citizen informer, and one who is unknown to the police, the anonymous informer.

In the case of confidential citizen informers, the mere fact that they make their identity known to the police is, itself, some indication of their honesty. (See United States v. Harris (1971) 403 U.S. 573, 599, 91 S.Ct. 2075, 2089-90, 29 L.Ed.2d 723 [Harlan, J. dissenting].) A further indication of reliability is that by identifying themselves to the police they expose themselves to potential liability for malicious prosecution or false reporting of a crime if their information proves to be false. (People v. Mardian, supra, 47 Cal.App.3d at p. 32, 121 Cal.Rptr. 269.) Furthermore, by identifying themselves, these citizen informers afford the police the opportunity to check on matters affecting their credibility such as the existence of a criminal record and whether they had previously supplied information to the police.

In contrast, information from anonymous...