People v. Melchor

• Decision Date: 26 October 1965
• Docket Number: Cr. 5023
• Citation: 237 Cal.App.2d 685,47 Cal.Rptr. 235
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Tomas A. MELCHOR, Defendant and Respondent.

Page 235

47 Cal.Rptr. 235

237 Cal.App.2d 685

PEOPLE of the State of California, Plaintiff and Appellant, v. Tomas A. MELCHOR, Defendant and Respondent.

Cr. 5023.

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

Oct. 26, 1965.

Rehearing Denied Nov. 22, 1965.

Thomas C. Lynch, Atty. Gen. of State of California, Robert R. Granucci, John T. Murphy, Deputy Attys. Gen., San Francisco, for appellant.

Edward T. Mancuso, Public Defender, Claude D. Perasso, Deputy Public Defender, San Francisco, for respondent.

MOLINARI, Justice.

The People appeal from the trial court's order dismissing the information which charged defendant with the unlawful possession of narcotics in violation of Health and Safety Code, section 11530. The sole question presented on this appeal is whether the officer who arrested defendant had reasonable and probable cause to do so thus justifying the incident search of defendant's person which disclosed narcotics.

The evidence concerning the arrest and search of defendant consists of the testimony at the preliminary hearing of Inspectors Yasinitsky and Rajewski of the San Francisco Police Department as follows: Yasinitsky testified that on the evening of December 4, 1964 information was given to Inspectors Panelli and Rajewski by a special police officer that a young man of medium height with dark hair and dark complexion had exhibited marijuana on the premises of the Hot Dog Palace located on Columbus Avenue in San Francisco; that on the basis of this information, which Panelli related to Yasinitsky, Inspectors Panelli, Rajewski, Webb, and Yasinitsky went to the Hot Dog Palace; that Panelli and Rajewski entered the premises on Columbus Avenue while Webb and Yasinitsky stationed themselves at the Grant Avenue exit and observed the interior of the restaurant through a window; that Yasinitsky saw Panelli and Rajewski approach a person other than defendant on the premises; that defendant, who was about 8 feet from the person confronted, hastily left the premises through the Grant Avenue exit accompanied by two other persons; that since defendant fit the description of the suspect, Yasinitsky stopped these three persons, asked their identity and commenced a pat search of each for weapons and narcotics; that a search of defendant produced two matchboxes which were taped up and in which, through a small aperture, Yasinitsky was able to see green vegetation; and that upon opening the boxes Yasinitsky found vegetation resembling marijuana.

Rajewski testified that he and Panelli were walking down Columbus Avenue on the evening of December 4, 1964 when a special police officer approached them and said "Some guy at the Hot Dog Palace is waving marijuana around. It's in matchboxes"; that the special police officer described the suspect as dark complected with dark-rimmed glasses and dark brown hair; that Rajewski then went across the street to the Hot Dog Palace; that once inside he saw a man fitting the special officer's description standing at the back of the premises talking to someone; that Rajewski approached a man other than defendant in order to see what defendant was going to do; that while questioning two other persons who were within a few feet of defendant, he saw defendant leave with another person; that the special officer who furnished the information concerning defendant was named 'Bossie' or 'Browsie,' had been in the area at least 9 or 10 years, and on the evening in question was going 'around on his beat'; that Rajewski did not request the special officer to accompany him to the Hot Dog Palace; and that he had never before received information from this special officer.

Both Yasinitsky and Rajewski testified that on the evening in question they did not have arrest or search warrants for anyone and that they did not see defendant violating any laws at the time of his arrest. Both the matchboxes and the greenishbrown vegetable substance were introduced into evidence, and it was stipulated that if the prosecution called a forensic chemist as a witness he would identify the vegetable substance as marijuana. Upon the basis of the foregoing evidence adduced before the committing magistrate defendant was held to answer for the offense of unlawfully possessing narcotics.

Defendant's position both before the superior court and on this appeal is that Yasinitsky did not possess the requisite reasonable and probable cause to justify the search of defendant without a search warrant or his arrest without an arrest warrant. The basic rule is stated in People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 497, 366 P.2d 823, 824, as follows: 'A search without a warrant is proper where it is incident to a lawful arrest based on reasonable cause to believe that the accused has committed a felony. Such a search is not rendered unlawful merely because it precedes rather than follows the arrest. [Citations.] Reasonable or probable cause is shown if a man of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty.' Reasonable cause to justify an arrest and search may consist of information supplied by a reliable informant (People v. Prewitt, 52 Cal.2d 330, 337, 341 P.2d 1; Willson v. Superior Court, 46 Cal.2d 291, 294-295, 294 P.2d 36; People v. Cedeno, 218 Cal.App.2d 213, 219, 32 Cal.Rptr. 246), and an arrest and search may be made solely on the basis of information received from a single reliable informant. (People v. Cedeno, supra, p. 219, 32 Cal.Rptr. 246; People v. Roland, 183 Cal.App.2d 780, 784, 6 Cal.Rptr. 895; People v. Boyd, 162 Cal.App.2d 332, 334, 327 P.2d 913.)

'Whether or not a police officer acts upon reasonable cause, where he relies upon information given by an informer, depends, in each instance, upon whether the reliance on the information was reasonable.' (People v. Cedeno, supra, 218 Cal.App.2d p. 219, 32 Cal.Rptr. p. 250; see Willson v. Superior Court, supra, 46 Cal.2d p. 294, 294 P.2d 36.) In determining reasonableness there is no exact formula, but 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, 348 P.2d 577.) 'In making this determination the applicable test is: Considering all the information in the hands of the police, would a reasonable police officer act on that information or whould a reasonable police officer seek further information before making the arrest and conducting the search?' (People v. Cedeno, supra, 218 Cal.App.2d p. 220, 32 Cal.Rptr. p. 251; People v. Diggs, 161 Cal.App.2d 167, 171, 326 P.2d 194.)

With particular regard to the reliability of an informant in determining reasonableness it is established as a fundamental principle that the informant must be known to the police officer to be reliable and must be a person whom the officer in good faith believes to be trustworthy. (People v. Cedeno, supra, 218 Cal.App.2d p. 219, 32 Cal.Rptr. 246; People v. Bates, 163 Cal.App.2d 847, 851, 330 P.2d 102.) Accordingly, in most cases the informant must not only be known to the officer, but the officer must have had sufficient dealings with the informant to give him reasonable cause to believe that the informant is reliable and that the information given by him is truthful. (People v. Bates, supra, p. 851, 330 P.2d 102; People v. Goodo, 147 Cal.App.2d 7, 8-9, 304 P.2d 776.) Reliability of the informant, however, is not necessarily limited to the officer's past experience with the informant, but also may be substantiated by the proven accuracy of the information given by the informant. Such substantiation may be supplied by corroborative facts known or discovered by the police officer. (People v. Cedeno, supra, 218 Cal.App.2d p. 220, 32 Cal.Rptr. 246; People v. Bates, supra, 163 Cal.App.2d p. 852, 330 P.2d 102; Willson v. Superior Court, supra, 46 Cal.2d pp. 294-295, 294 P.2d 36; People v. Prewitt, supra, 52 Cal.2d p. 337, 341 P.2d 1.)

Before proceeding to consider the present case in light of the foregoing principles, it should be pointed out that a committing magistrate, in reaching his decision as to whether to hold a defendant to answer, is empowered to weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, but that such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order. (Perry v. Superior Court, 57 Cal.2d 276, 283-284, 19 Cal.Rptr. 1, 368 P.2d 529; People v. Jackson, 146 Cal.App.2d 553, 556, 303 P.2d 767.)

Adverting to the instant case, we first point out the fact that the information given by the special officer did not come directly to Yasinitsky, the arresting officer, does not prevent reliance on its trustworthiness since it reached him through official police channels. (See People v. Hood, 150 Cal.App.2d 197, 201, 309 P.2d 856; People v. Bates, supra, 163 Cal.App.2d p. 852, 330 P.2d 102; People v. Valdez, 188 Cal.App.2d 750, 757, 10 Cal.Rptr. 664; People v. Stewart, 189 Cal.App.2d 176, 178, 10 Cal.Rptr. 879; People v. Jackson, 202 Cal.App.2d 569, 574, 21 Cal.Rptr. 44; People v. Schellin, 227 Cal.App.2d 245, 251, 38 Cal.Rptr. 593.) Information which comes from an official source is presumed reliable unless it is manifestly shown to be otherwise. (People v. Schellin, supra, p. 251, 38 Cal.Rptr. 593.) Accordingly, since the subject information first came into police channels when it was communicated to Rajewski and Panelli, our inquiry, at the threshold, is directed to whether these officers were reasonably entitled to rely upon the informant. Although the special officer had been known to Rajewski for a considerable period of time prior to the instant arrest, Rajewski had not received any information from him in the past. However, while in most cases an officer must have had sufficient dealings with the informant to give him reasonable cause to believe that the information...