People v. McCarter

• Decision Date: 19 March 1981
• Docket Number: Cr. 10749
• Citation: 173 Cal.Rptr. 188,117 Cal.App.3d 894
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Thomas McCARTER, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Marvin Dean NOOR, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 188

173 Cal.Rptr. 188

117 Cal.App.3d 894

The PEOPLE, Plaintiff and Respondent, v. James Thomas McCARTER, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Marvin Dean NOOR, Defendant and Appellant.

Cr. 10749.

Court of Appeal, Third District, California.

March 19, 1981.

As Modified on Denial of Rehearing April 15, 1981.

Hearing Denied June 17, 1981.

Richard Keith Corbin and Kenneth R. O'Brien, Sacramento, for defendants and appellants.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and W. Scott Thorpe, Deputy Attys. Gen., for plaintiff and respondent.

PUGLIA, Presiding Justice.

After motions to suppress evidence were denied, defendants James Thomas McCarter and Marvin Dean Noor entered negotiated pleas of guilty to first-degree murder (Pen. Code §§ 187, 189). In consolidated appeals, defendants attack only the denial of their motions to suppress (Pen. Code § 1538.5, subd. (m)). Issues raised on appeal relate to the validity and manner of execution of two search warrants, the validity of the warrantless arrests of McCarter and Dani Shope (an accomplice), and the admissibility of statements made by Shope, Noor and McCarter. We shall affirm.

The Search Warrants

The contested search warrants were based on the following sworn information:

Between 10:30 and 11:30 p. m. on January 13, 1979, Jimmy Lee Campbell, a black, was shot and killed by what appeared to be a large caliber weapon. His body, a bullet wound in the shoulder, was found in Chico between a city street and nearby railroad tracks.

At about 2:20 p. m. on January 14, 1979, Police Officer Bragdon received a telephone call from a woman identified as Linda. Linda stated that she lived in an Oroville apartment adjoining one occupied by a woman named Paula and the brother of Noor. Sometime between 11 p. m., January 13 and 2 a. m., January 14, Noor and Shope came to Paula's apartment. Linda overheard their conversation through the wall. Linda heard Noor and Shope brag to Paula about killing "niggers," specifically, a black male and female; ¹ while driving on a Chico street, Noor and Shope had pulled up beside a black male and shot him; Shope expressed satisfaction in seeing both shootings and said it would be her turn next. Linda told Officer Bragdon the full names of Shope and Noor, their physical descriptions, and the color and shape of their vehicle. Linda said that Shope and Noor lived together in Apartment 2 at a new apartment building on Nelson Avenue in Oroville. She described another male who had been with Shope and Noor during the evening of the shooting but she did not know his name or address. Linda also stated that the weapon used in the shootings belonged to Noor's mother, who lived on Southview Drive in Oroville.

Prior to calling Officer Bragdon, Linda had heard a news report that a man had been shot along a road in Chico. However, the news report did not include the race of the victim nor mention a female victim.

After Linda finished talking on the telephone, Paula talked to Officer Bragdon. She identified herself by her first name and said her boyfriend David worked at the A & A Body Shop in Oroville and was Noor's brother. On January 13, Noor had come to the body shop and Paula had heard him ask David to go with him to his mother's house to get a .30-.30 Winchester rifle so Noor could go "hunting." Later that evening, Paula saw Shope and Noor with another male. At about 12:30 a. m. on January 14, Noor and Shope came to her apartment. They bragged to her and David about having killed "niggers." Shope said, "It's my turn now. I'm going to get one." Noor had a rifle with him. Paula believed that Noor took the rifle back to his mother's house at 33 Southview Drive in Oroville later that morning. His mother's name was Micki Croft. Paula provided Officer Bragdon with a description of Noor's vehicle, told him how to get to Shope's apartment on Nelson Avenue, and indicated that Noor previously had been in jail and on probation. She also provided Officer Bragdon with a telephone number where Linda could be contacted.

In corroboration of the information supplied by Linda and Paula, police officers contacted Linda by telephone, confirmed that the news reports had not mentioned that the homicide victim was a black adult male, and discovered that Noor had a prior arrest and that a traffic collision report listed him as living at 33 Southview Drive, Oroville, and listed Shope as a witness living at 425 Nelson Avenue, Apartment 2, Oroville. The officers then found the 33 Southview address, a mailbox bearing Shope's name at 425 Nelson Avenue, and a vehicle (California license AUR 858) parked at the Nelson Avenue apartment which matched the description given by Linda and Paula.

In further corroboration, police officers were contacted at about 5:40 p. m. on January 14 by a sheriff's officer, who had received a call from a male citizen informant identified by name, address, and telephone number. The citizen informant had said that a close friend of his had been with Noor the night before and that Noor had boasted to the friend of driving with Shope in Chico and shooting a hitchhiking black male in the shoulder with a .30-.30 rifle; the victim ran to some railroad tracks and fell to the ground. He also boasted of later killing a black female in Oroville. At about 6:20 p. m., police officers received a follow-up call from the same citizen informant who gave confirmatory information regarding the description of Noor's vehicle and the ownership of the murder weapon by Noor's mother. He also said Noor lived on Nelson Avenue.

Based on the foregoing information, the magistrate found probable cause to support the issuance of search warrants (1) for the apartment of Dani Shope at 425 Nelson Avenue, Oroville, and a 1961 Pontiac, and (2) for the residence of Noor's mother at 33 Southview Drive, Oroville. The warrants authorized the officers to search for any pistol, revolver, or rifle larger than .22 caliber, any ammunition or spent shell casing larger than .22 caliber, and any documents which would establish that Noor or Shope were in the Chico area on January 13, 1979. The magistrate authorized service at any time of day or night because of the fact "that it's now approximately 9:20 PM." He signed the warrants at about 9:30 p. m.

Both defendants contend that the search warrants are invalid because no probable cause existed for their issuance. On appeal defendants have the burden of establishing that the magistrate's finding of probable cause is unsupported by competent evidence as a matter of law. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 101, 104 Cal.Rptr. 226, 501 P.2d 234; Skelton v. Superior Court (1969) 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485.) Here, we find ample information in the sworn affidavit in support of the search warrants to meet the test of substantial probability that the murder weapon and/or ammunition would be located in Noor's vehicle used during the shooting, in the apartment where Noor lived, or in his mother's house where Noor obtained the murder weapon. (People v. Cook (1978) 22 Cal.3d 67, 84, fn. 6, 148 Cal.Rptr. 605, 583 P.2d 130.) ²

Nevertheless, defendants insist the "untested" hearsay information given by the two "unidentified" female informants who telephoned the police is not competent evidence under the two-prong test of Aguilar v. Texas (1964) 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1513-14, 12 L.Ed.2d 723, 728-729. The two requirements of Aguilar are: "(1) the affidavit must allege the informant's statement in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such statement; and (2) the affidavit must contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable." (People v. Smith (1976) 17 Cal.3d 845, 850, 132 Cal.Rptr. 397, 553 P.2d 557.)

The first prong of the Aguilar test obviously is satisfied here. Each of the female informants, whose tape-recorded statements were heard by the magistrate, personally heard Noor's and Shope's statements "against penal interest" (Evid. Code, § 1230; People v. Mardian (1975) 47 Cal.App.3d 16, 31, 121 Cal.Rptr. 269) and each observed Noor's and Shope's conduct and appearance. Although neither knew exactly where the murder weapon was, each detailed what she knew of her own knowledge with respect to the whereabouts and appearance of the murder weapon.

As to the second prong of Aguilar, we are satisfied that the affiant supplied sufficient corroborative factual information from which the magistrate could reasonably conclude that the female informants were credible and their information reliable. The officers corroborated the information given by the female informants by establishing who lived at the residences to be searched and by locating the described vehicle at Shope's apartment. In particular, they had independent information as to a crime detail not reported by the news media, i. e., that the murder victim was black. (People v. Fein (1971) 4 Cal.3d 747, 752-753, 94 Cal.Rptr. 607, 484 P.2d 583; People v. Magana (1979) 95 Cal.App.3d 453, 463, 157 Cal.Rptr. 173.) While Linda and Paula did not disclose their full identity to the police, they were not completely anonymous. They provided a telephone number where Linda could be reached and the police recontacted Linda to establish its accuracy. Paula also disclosed the place where her living partner, Noor's brother, worked. Furthermore, another fully identified citizen informant independently told the officer, at a different time and place, that Noor had claimed shooting a black male and female with a .30-.30 rifle belonging to Noor's mother. This independent informant also described Noor's vehicle and...