People v. Love

• Court: California Court of Appeals
• Writing for the Court: FRANSON; HAMLIN; PAULINE DAVIS HANSON
• Citation: People v. Love, 168 Cal.App.3d 104, 214 Cal.Rptr. 483 (Cal. App. 1985)
• Decision Date: 13 May 1985
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dale Edward LOVE, Defendant and Appellant. Crim. F003546.

Page 483

214 Cal.Rptr. 483

168 Cal.App.3d 104

The PEOPLE, Plaintiff and Respondent, v. Dale Edward LOVE, Defendant and Appellant.

Crim. F003546.

Court of Appeal, Fifth District, California.

May 13, 1985.

Certified for Partial Publication ^*

Review Denied July 18, 1985.

[168 Cal.App.3d 105] William Arthur Miller, Modesto, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

FRANSON, Acting Presiding Justice.

Appellant appeals from a judgment of conviction of possession of methamphetamine for sale. (Health & Saf.Code, § 11378.) He was admitted to three years' probation on various conditions, including county jail time. Appellant challenges the conviction on two grounds: (1) the trial court erred in denying his motion to suppress because the affidavit failed to show probable cause to support the search warrant, and (2) appellant's trial attorney was ineffective for not seeking discovery of the identity of the confidential informant's source of information. We reject both contentions and affirm the judgment.

FACTS

Agent James Johnson and other members of the Stanislaus County Drug Enforcement Unit (SCDEU) executed a search warrant at 808 Kerr Avenue in Modesto on May 27, 1983. Appellant answered the door and was given a copy of the warrant. The officers found methamphetamine, scales, bindles, a cutting agent and other contraband inside the residence. This evidence was the basis of the criminal charge filed against appellant.

The affidavit was drafted and signed May 20, 1983, by Modesto City Police Officer Bob Finley, who was present at the search and assigned as a narcotics detective with SCDEU. Finley stated he personally had observed the exterior of the residence located at 808 Kerr Avenue and described the house in some detail.

Finley had received information within 72 hours of May 20, 1983, from a confidential reliable informant referred to as "X." Finley alleged X had once informed agents of the Stanislaus County Drug Enforcement Unit that specific persons at specific locations were dealing in specific controlled substances. A search warrant issued on this information, and the specified substances were seized and suspects were arrested. On one other occasion, X told members of SCDEU that he could introduce an undercover agent to specific persons who were dealing with specific controlled substances in order to make a purchase. An SCDEU agent purchased controlled substances from the persons named by X. The substances seized were tested and on each occasion were found to be the controlled substance named by X; each of the cases was still pending litigation.

Finley also alleged that to his knowledge, X had never been convicted of a felony and was not under criminal investigation by law enforcement. X had never, to Finley's knowledge, provided SCDEU agents with false information. X was a former user of methamphetamine and was familiar with its appearance and usual manner of packaging for use and for sale. Finley believed it was necessary for X's personal safety to keep X's identity confidential, and X provided the following information on assurance that his identity would not be revealed.

X told Finley that X was with another individual, designated "Y." X told Finley that "Y does not know that X is an informant with any law enforcement agency." X said Y told him that Y could purchase "go fast" at 808 Kerr Avenue. X accompanied Y to the residence at that address, where Y asked X to wait outside while Y made the purchase. X saw Y enter the residence and later return with a clear plastic baggie containing an off-white powder which Y called "go fast." Y told X that he had purchased the "go fast" from "persons inside the residence," and showed the baggie to X; X examined the baggie and told Finley the substance was methamphetamine. X said that Y told him the "person inside the residence" said he had quantities of "go fast" for sale "anytime Y wanted to purchase."

Finley stated that in his experience, the description of the powder and baggie provided by X was consistent with methamphetamine and the usual manner of its packaging. Also, Finley was aware that "go fast" is a common street name for methamphetamine. Finley indicated it was necessary to keep the identity of Y confidential in order to insure X's safety.

Finally, Finley alleged the records of the Modesto Irrigation District "were checked" and revealed the utilities at 808 Kerr Avenue were in the name of Dale Love.

Based on the foregoing information, Finley requested authority to search the residence, grounds and outbuildings located at 808 Kerr Avenue, all persons residing at that residence, any vehicles registered to the residents, and any closed or locked containers on the premises for methamphetamine and paraphernalia associated with the use and sale of methamphetamine and for any documents identifying the occupants of the residence. A warrant was issued, as requested, by a judge of the superior court.

DISCUSSION

I.

The affidavit supports the magistrate's finding of probable cause when viewed under the "totality of the circumstances" standard of the United States Supreme Court.

In In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 294 P.2d 744, the California Supreme Court ruled that Proposition 8 abrogated a defendant's right to object to and suppress evidence seized in violation of the California, but not the federal Constitution. (Id., at pp. 885-889, 210 Cal.Rptr. 631, 694 P.2d 744.) Accordingly, we must apply federal law to determine the sufficiency of an affidavit supporting a search warrant.

In Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, the United States Supreme Court abandoned the "rigid" "two-pronged test" of Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 ¹ and Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 and substituted in its place the "totality of the circumstances" approach that "traditionally has informed probable cause determinations." (Illinois v. Gates, supra, 103 S.Ct. at p. 2332.) Although the high court held that the Aguilar-Spinelli elements concerning the informant's "veracity," "reliability" and "basis of knowledge" are all highly relevant in the determination of probable cause, these elements should not be regarded as "independent requirements to be rigidly exacted in every case...." (Id., at pp. 2327-2328.) Instead, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." (Id., at p. 2332, emphasis added.)

Illinois v. Gates specifically reiterated the basic limits beyond which a magistrate may not go in finding probable cause: "A sworn statement of an affiant that 'he has cause to suspect and does believe that' [contraband] is located on certain premises will not do." (Illinois v. Gates, supra, 103 S.Ct. at p. 2332, citing Nathanson v. United States (1933) 290 U.S. 41, [54 S.Ct. 11, 78 L.Ed. 159]. Nor will an "officer's statement that 'affiants have received reliable information from a credible person and believe' that heroin is stored in a home...." (Ibid., citing Aguilar v. Texas, supra, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723].) "[A] mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause" is inadequate to support a warrant. (Ibid.) "But when we move beyond the 'bare bones' affidavits present in cases such as Nathanson and Aguilar, this area simply does not lend itself to a prescribed set of rules...." (Id., at pp. 2332-2333.) Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision. It is clear "that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause...." (Emphasis added, Spinelli v. United States, supra, 393 U.S. at p. 419 [89 S.Ct. at p. 590].)

Gates also quotes Locke v. United States (1813) 11 U.S. 339, 7 Cranch 339, 3 L.Ed. 364 where Chief Justice Marshall observed that "the term 'probable cause' according to its usual acceptation, means less than evidence which would justify condemnation.... It imports a seizure made under circumstances which warrant suspicion." (Id., at p. 348, 3 L.Ed. 364, emphasis added.) The central teaching of the "probable cause" standard is:

" 'In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " (Illinois v. Gates, supra 103 S.Ct. at p. 2328, quoting Brinegar v. United States (1949) 338 U.S. 160, 176 [69 S.Ct. 1302, 1311, 93 L.Ed. 1879].)

" 'The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.' " (Ibid., quoting United States v. Cortez (1981) 449 U.S. 411, 418 [101 S.Ct. 690, 695, 66 L.Ed.2d 621].)

Gates also reminded reviewing courts that they should give "great deference" to a magistrate's determination of probable cause. To...