People v. O'Leary

• Decision Date: 02 June 1977
• Docket Number: Cr. 16074
• Citation: 138 Cal.Rptr. 667,70 Cal.App.3d 323
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Michael Vern O'LEARY et al., Defendants and Respondents.

Page 667

138 Cal.Rptr. 667

70 Cal.App.3d 323

PEOPLE of the State of California, Plaintiff and Appellant, v. Michael Vern O'LEARY et al., Defendants and Respondents.

Cr. 16074.

Court of Appeal, First District, Division 1, California.

June 2, 1977.

As Modified on Denial of Rehearing June 28, 1977.

Hearing Denied July 29, 1977.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

James C. Hooley, Public Defender, Anne Harris, Asst. Public Defender, County of Alameda, Oakland, for Arthur Martin.

Allan Hymer, Oakland, for Michael O'Leary.

ELKINGTON, Associate Justice.

Defendants Michael Vern O'Leary and Arthur Gene Martine were held to answer by a magistrate for trial in the superior court on charges of possession of marijuana for sale (Health & Saf.Code, § 11359) and possession of a tear gas container (Pen.Code, § 12420). Evidence essential to the holding and to any subsequent convictions had been seized by police upon the execution of a search warrant which had been found valid by the magistrate. Thereafter the superior court, on defendants' motion under Penal Code section 995, ordered the information which had been filed by the People set aside, for the reason that 'there was insufficient legal evidence to hold the defendants to answer; . . .'

The People, as permitted by Penal Code section 1238, subdivision (a)(1), have appealed from the order. The issue is whether a police officer's affidavit, upon which the subject search warrant was based, disclosed probable cause for its issuance according to Fourth Amendment standards.

The parties agree that the factual context alleged in the affidavit is such that the issue is one of first impression. We therefore look to applicable general rules.

'There is no exact formula for the determination of reasonableness (or probable cause). Each case must be decided on its own facts and circumstances . . . and on the total atmosphere of the case.' (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580 (cert. den., 36 U.S. 841, 81 S.Ct. 79, 5 L.Ed.2d 65).)

Probable cause for the issuance of a search warrant exists where the facts contained in the affidavit are such as would lead a person of ordinary caution or prudence to believe and and conscientiously entertain a strong suspicion of the existence of contraband in the premises sought to be searched. (Skelton v. Superior Court, 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485.) And 'when a search is based on a warrant (and therefore on a magistrate's rather than a police officer's determination of probable cause) the reviewing courts 'will accept evidence of a less 'judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant' . . .'' (Skelton v. Superior Court, supra, p. 150, 81 Cal.Rptr. p. 616, 460 P.2d p. 489; and see also United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684; Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697; People v. Mesa, 14 Cal.3d 466, 470, 121 Cal.Rptr. 473, 535 P.2d 337.)

It is fundamental that on a dismissal motion under Penal Code section 995 the superior court may not reweigh evidence, or draw inferences contrary to those reasonably drawn by the magistrate. This rule applies with equal effect where the issue resolved by the magistrate relates, as here, to the Fourth Amendment. Our function, then, is simply to determine if there is any substantial evidence in support of the Magistrate's conclusion, not that of the Superior court. (People v. Lovejoy, 12 Cal.App.3d 883, 885--886, 91 Cal.Rptr. 94, and see authority there collected.)

Pursuant to these rules we state the allegations of the police officer's affidavit, as they reasonably could have been, and therefore presumably were, found true by the magistrate.

At the San Francisco International Airport, suspicion of United States Customs officials and local police authorities had somehow centered upon a large cardboard carton wrapped with brown paper and tied with pink ribbon, which was en route by air freight from Thailand to a consignee whose address was 6466 Pinehaven Road, Oakland, California. Investigation discloed that Michael O'Leary, one of the instant defendants, was the subscriber for, and paid for, the gas and electric service at that address. Thereafter O'Leary produced an appropriate 'Air-Way Bill' and claimed the shipment. He was required to open the carton by customs officers. Inside it were found two pillows, one of which appeared much heavier than the other. Further inspection of the heavier pillow disclosed more than 400 'Thai-sticks,' a high potency form of marijuana and worth around $12,500. Upon being questioned O'Leary stated that he had recently returned after a 17-day visit to Thailand where he had an 'importing' (sic) business. He admitted shipping the carton but denied knowledge of its contraband contents, 'explaining that he felt that his business partner could have secreted the contraband.' He was unable to give an address for his Thailand business. O'Leary was then arrested.

About two weeks later another similarly wrapped...