People v. Murphy
| Decision Date | 05 September 1974 |
| Docket Number | Cr. 24565 |
| Citation | 116 Cal.Rptr. 889,42 Cal.App.3d 81 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. James William MURPHY, Defendant and Appellant. |
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Donald F. Roeschke and Joel Levine, Deputy Attys. Gen., for respondent.
James William Murphy appeals the judgment of conviction after a jury trial for possession of heroin for sale. (Health & Saf.Code, § 11351.)
On the afternoon of 4 April 1973 police narcotics officers executed a warrant to search Murphy's house on Aztec Street in Sylmar for narcotics and narcotics paraphernalia. On their first search of the house the officers discovered several packages of balloons in Murphy's bedroom closet and a container of lactose in a bathroom. As the officers prepared to search the house again, Murphy said, 'It's not in the house.' On a search of the garage, the officers found two plastic bags and two balloons, together totaling thirty grams of heroin powder, concealed behind the transmission cover of a motorcycle for which Murphy had the registration slip in his wallet. When confronted with the contraband, Murphy said he was using but not selling it. In the opinion of two experienced narcotics officers, the amount of heroin and of packaging paraphernalia showed the heroin was possessed for purposes of sale.
1. Prior Adjudication. Based on the same charge of possession of heroin for sale, the prosecution filed a complaint against Murphy in an earlier proceeding. On Murphy's motion, the magistrate, not the same magistrate who authorized the warrant, granted Murphy's motion to 'quash' the warrant, in effect suppressing the evidence seized pursuant to the warrant. Since the prosecution could not proceed without the suppressed evidence, the magistrate granted Murphy's motion to dismiss. The prosecution then refiled the same charge in the proceedings at bench. Murphy contends the decision of magistrate in the first proceeding to quash the warrant precluded readjudication of the validity of the same warrant in these proceedings.
This contention is without merit. Murphy's motion to quash the warrant was authorized by Penal Code section 1538.5, subdivision (a): 'A defendant may move for the return of property Or to suppress as evidence . . ..' (Italics added.) Section 1538.5, subdivision (j) provides: 'If the property or evidence relates to a felony offense initiated by complaint and the defendant's motion for the return of the property or suppression of the evidence at the preliminary hearing is granted, and if the defendant is not held to answer at the preliminary hearing, the people may file a new complaint or seek an indictment after the preliminary hearing, and the ruling at the prior hearing shall not be binding in any subsequent proceeding. . . .'
Murphy argues that he made his motion to suppress pursuant to Penal Code section 1539 and 1540, 1 not section 1538.5 and therefore the prosecution could not invoke the refiling provisions of 1538.5. By their terms, however, sections 1539 and 1540 do not apply to Murphy's motion to suppress evidence. Before the enactment of section 1538.5, the courts, in default of any better procedure, traditionally permitted defendants to use sections 1539 and 1540 as the basis for pretrial motions to suppress evidence, but with the adoption of section 1538.5 the need for such a tortured reading of the older sections disappeared. Theodor v. Superior Court, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234 points out that by the enactment of section 1538.5 the Legislature created 'a comprehensive scheme for challenging the introduction into evidence, and for the return, of items unlawfully seized.' (8 Cal.3d at 91, 104 Cal.Rptr. at 236, 510 P.2d at 244.) Whether Murphy's motion came technically before or during the preliminary hearing, the provisions of section 1538.5 were controlling.
Nor can Murphy invoke the doctrine of res judicata. The Supreme Court has ruled that res judicata does not apply to orders dismissing felony proceedings at preliminary hearings. (People v. Uhlemann, 9 Cal.3d 662, 108 Cal.Rptr. 657, 511 P.2d 609.) We do not condone a policy of repeated attempts by the prosecution to obtain a favorable ruling by presenting the same facts over again in different proceedings, but absent harassment or clear abuse of discretion (see Kellett v. Superior Court, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206) the prosecution is not foreclosed by unfavorable rulings from filing further actions up to the time jeopardy has attached. (People v. Uhlemann, Supra, at 668, fn. 4, 108 Cal.Rptr. 657, 511 P.2d 609; see In re Crow, 4 Cal.3d 613, 622 94 Cal.Rptr. 254, 483 P.2d 1206.)
2. Probable Cause. Murphy contends the affidavit in support of the search warrant failed to set out probable cause for a search of his house.
The affidavit of Police Lt. Sherwood states that at 2:00 p.m. on 4 April 1973 a confidential informant, a narcotics user, told Sherwood that Murphy was dealing heroin from his house and that during the previous week the informant had purchased heroin from Murphy at his house. Murphy said he always had heroin at his house and could take care of the informant's future heroin needs. Lt. Sherwood considered the informant reliable because he had known him over ten years, found him truthful at all times, and on numerous occasions had received information from him which had led to arrests for narcotics violations. In addition to this information, Sherwood had been told by Police Sgt. Olson that a different informant said he purchased heroin from Murphy at his house within the previous three weeks. Furthermore, Sherwood was told by Police Investigator Welsch that an informant reported Muphy as dealing in heroin at the intersection of Kalisher and Kewen Streets in San Fernando. Welsch had seen Murphy talking to a known narcotics user at that intersection and Lt. Sherwood himself saw Murphy at the same intersection engaged in what appeared to be a transaction with a known narcotics user. Finally, Sherwood learned from utility and motor vehicle records that Murphy listed his residence as the Aztec Street address, and from police records he discovered that Murphy had a prior narcotics arrest.
We do not accept Murphy's argument that Lt. Sherwood's affidavit failed to state sufficient underlying circumstances to establish the reliability of the informant. (See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.) Sherwood's statement clearly met the requirements for reliability as set forth in United States v. Harris, 403 U.S. 573, 91 S.Ct 2075, 29 L.Ed.2d 723, and as noted in Alexander v. Superior Court, 9 Cal.3d 387, 394, fn. 3, 107 Cal.Rptr. 483, 488, 508 P.2d 1131, 1136. '(W)here the affiant police officer attests in conclusionary terms that the information is reliable, the informant's statement contains detailed factual allegations indicating that he was speaking from personal knowledge, and the informant's statements represent admissions against interest, the reliability of the informant is sufficiently established to support the issuance of a search warrant.' Even if Sherwood's statement alone did not establish the reliability of the informant, extensive corroborating evidence (official records, eyewitness accounts by police officers, another informant) established the reliability of the informant's information. (People v. Sheridan, 2 Cal.App.3d 483, 487, 82 Cal.Rptr. 695, People v. Balassy, 30 Cal.App.3d 614, 620, 106 Cal.Rptr. 461.)
Nor do we accept Murphy's argument that the affidavit failed to provide probable cause to believe narcotics would be found currently at Murphy's house. Sherwood's information indicated a continuous course of conduct in the sale of heroin at Murphy's house, and it implied that heroin could still be found at that location. (People v. Tillman, 238 Cal.App.2d 134, 139, 47 Cal.Rptr. 614.)
Murphy also argues that Lt. Sherwood could not have reasonably believed his informant to be reliable since Sherwood had obtained at least nine other search warrants based on identical information from the same informant and only one other search had uncovered heroin. However, it does not follow that the informant was untruthful because his information did not always pay off. As Murphy concedes, on at least one other occasion the search was fruitful....
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