People v. McShann

Decision Date01 October 1958
Docket NumberCr. 6243
CourtCalifornia Supreme Court
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Robert McSHANN, Defendant and Appellant.

Vaughns, Dixon & White and Clinton W. White, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Victor Griffith, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Defendant appeals from a judgment of conviction on two counts of violation of section 11500 of the Health and Safety Code. Count one charged a sale of heroin on November 26, 1956. Count two charged possession of heroin on November 27, 1956.

The prosecution's evidence showed that on November 26, 1956, Police Officers McBee, Hilliard, Leen, and Goodrum met a confidential informer in Oakland. Officers McBee and Hilliard searched the informer and found no narcotics on him. The informer, accompanied by the four officers, then went to the Oakland Police Department where he made an appointment by telephone for the purchase of narcotics from defendant. Officer McBee dialed the number listed for the residence of defendant, and a recording was made of the conversation. Officers McBee, Hilliard, and Goodrum were present during the telephone conversation and later listened to the recording. The recording was played before the jury, and the officers identified the voice talking to the informer as defendant's.

The officers gave the informer a $20 bill, a $10 bill and a $5 bill, each dusted with fluorescent powder. They took him to the vicinity of Market and Grand Streets where he entered an automobile driven by defendant. Officer McBee followed the automobile until he lost sight of it. Ten or fifteen minutes later the informer entered Officer McBee's automobile at 21st and Market Streets and gave Officer McBee a small bindle containing a white powder later identified as heroin. Officer Goodrum saw the informer enter the automobile identified as defendant's and followed it until the informer got out and entered Officer McBee's automobile.

On November 27, 1956, the informer again made a telephone call to defendant, which was also recorded (and later played to the jury), and arranged to purchase heroin from him at a bar. Officer McBee and the informer then went to the vicinity of the bar. Later Officer Hilliard joined them, and after listening to the recorded conversation he obtained a warrant to search defendant's residence.

On November 27th Officers Goodrum, Reppas, and Woishnis kept defendant's residence under surveillance. Officer Hilliard instructed them to follow defendant when he left his residence and arrest him at the first opportunity. Thereafter defendant left his residence in an automobile. He stopped at the intersection of Adeline and Market Streets for a traffic signal, and the officers drove their automobile in front of his and told him that he was under arrest. They told him to back his car into a gas station and to get out and place his hands on top of the car. As he got out of the car, Officer Woishnis observed a 'silvery flutter' and said: 'He dropped it.' Officer Goodrum saw something shiny 'hit off of his (defendant's) shoe and land on the ground * * * .' Officer Reppas picked up four tinfoil packages and asked defendant: 'What about these?' Defendant said he didn't know anything about them. A smaller package wrapped in cellophane was found in defendant's pocket. All five packages contained heroin. The officers, together with Officers Hilliard and McBee, then went to defendant's residence and searched it. They found $1,058, including a $20 bill, a $10 bill and a $5 bill on which an ultraviolet light disclosed a large amount of fluorescent power. The prosecution's evidence also showed that defendant made certain admissions after he arrest. denied the alleged meeting with the party to the alleged telephone conversations, denied the alleged meetung with the informer, and denied that he had possession of narcotics on November 27th.

During the cross-examination of Officers McBee and Hilliard before the jury and of Officer Hilliard on the hearing on probable cause in the absence of the jury, the trial court sustained on the ground of privilege (Code Civ.Proc. § 1881, subd. 5) the prosecution's objections to questions by the defense seeking to obtain the name of the informer. Defendant contends that the trial court committed prejudicial error in sustaining these objections. 1

Count One: The Sale of Heroin on November 26, 1956

Since the alleged sale by the defendant was to the informer, defendant was clearly entitled to disclosure of his identity. Roviaro v. United States, 353 U.S. 53, 58, 77 S.Ct. 623, 1 L.Ed.2d 639; People v. Alvarez, 154 Cal.App.2d 694, 696, 316 P.2d 1006; People v. Castiel, 153 Cal.App.2d 653, 656-659, 315 P.2d 79; People v. Lawrence, 149 Cal.App.2d 435, 451, 308 P.2d 821. The People contend, however, that defendant was not prejudiced invoking the evidence that defendant received two telephone calls from the informer and that he made a sale to the informer to establish that the defendant knew the informer's identity. That very evidence was in issue, however, for defendant denied that he received such calls or that he made such a sale. There was no finding that the defendant knew the informer and it cannot be assumed that he did. Such an assumption would in effect assume his guilt. See Roviaro v. United States, supra, 353 U.S. at page 60, 77 S.Ct. at page 627.

Count Two: The Possession of Heroin on November 27, 1956

The People seek to uphold the conviction on count two on the grounds that the informer's identity has no bearing on that charge and that in any event there is a privilege of nondisclosure of informers.

The common-law privilege of nondisclosure is based on public policy. 'The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.' Roviaro v. United States, supra, 353 U.S. at page 59, 77 S.Ct. at page 627. The informer is thus assured of some protection against reprisals. The use of informers in particularly effective in the enforcement of sumptuary laws such as those directed against gambling, prostitution, or the sale and use of liquor and narcotics. Disclosure of the informer's identity ordinarily destroys his usefulness in obtaining information thereafter. See Donnelly, Judicial Control of Informants, Spies, Stool Pigeons, and Agent Provocateurs, 60 Yale L.J. 1091, 1093; 1 U.C.L.A.L.Rev. 405, 512.

Section 1881, subd. 5 of the Code of Civil Procedure encompasses the privilege of nondisclosure of informers: 'A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.' There is a divergence of opinion as to whether the common-law privilege covers only the identity of the informer or also includes the contents of the communication. See McCormick, Evidence (1954), pp. 309-311; Donnelly, supra, 60 Yale L.J. at 1094-1095; 98 U. of Pa.L.Rev. 719, 730. Since the reason for the privilege relate primarily to the identity of the informer, some authorities take the position that the privilege does not extend to the communications unless the contents wojld disclose or tend to disclose the identity of the informer. See Wigmore, Evidence, 3d Ed., vol. 8, p. 755; McCormick, supra, p. 310. Under section 1881, subd. 5, it extends to the communications 'when the public interest would suffer by the disclosure.'

It is for the court to determine whether the public interest will suffer by disclosure. See Dwelly v. McReynolds, 6 Cal.2d 128, 131, 56 P.2d 1232; Wigmore, supra, vo. 8 at 798-801; 22 Cal.L.Rev. 667, 676. At common law the privilege could not be invoked if the identity of the informer was known to those who had cause to resent the communication. See Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639. Under section 1881, subd. 5, the test is whether the public interest would suffer by the disclosure. Conceivably, even when the informer may be known to persons who have cause to resent the communication, disclosure in open court might still be against the public interest. A defendant who knows the identity of the informer, however, will ordinarily not be prejudiced by a refusal to disclose that identity.

There is general agreement that there is no privilege of nondisclosure if disclosure 'is relevant and helpful to the defense of the accused, or is essential to a fair determination of a cause * * * .' Roviaro v. United States, supra, 353 U.S. at pages 60-61, 77 S.Ct. at page 628, see People v. Castiel, supra, 153 Cal.App.2d at page 659, 315 P.2d at page 82; People v. Lawrence, supra, 149 Cal.App.2d at page 451, 308 P.2d at page 830; Portomene v. United States, 5 Cir., 221 F.2d 582, 583-584; United States v. Conforti, 7 Cir., 200 F.2d 365, 367; Sorrentino v. United States, 9 Cir., 163 F.2d 627, 628-629; United States v. Li Fat Tong, 2 Cir., 152 F.2d 650, 651-652; Wilson v. United States, 3 Cir., 59 F.2d 390, 392; Marks v. Beyfus, L.R. 25 Q.B.D. 494, 498; Centoamore v. Atate, 105 Neb. 452, 181 N.W. 182, 183; McCormick, supra, p. 310; Morgan, Basic Problems of Evidence (1954), p. 119; Wharton, Criminal Evidence, 12th Ed., vol. 3, pp. 136-137; Wigmore, supra, vol. 8, p. 756; Underhill, Criminal Evidence, vol. 2, pp. 820-821; 22 Cal.L.Rev. 667, 670; 98 U. of Pa.L.Rev. 719, 730-731; 1945 Wisc.L.Rev. 239, 244-245; Uniform Rules of Evidence, Rule 36.

Disclosure is not limited to the informer who participates in the crime alleged. The information elicited from an informer may be 'relevant and helpful to the defense of the accused or essential to a fair...

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