People v. Pellegrin

• Decision Date: 11 August 1977
• Docket Number: Cr. 8546
• Citation: 78 Cal.App.3d 913,144 Cal.Rptr. 421
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Mitchell PELLEGRIN, Defendant and Appellant.

Page 421

144 Cal.Rptr. 421

78 Cal.App.3d 913

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mitchell PELLEGRIN, Defendant and Appellant.

Cr. 8546.

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

Aug. 11, 1977.

Grimes & Warwick by Robert L. Grimes, San Diego, Cal., for defendant and appellant.

Evelle J. Younger, Atty. Gen., Sacramento, Cal., and Jay M. Bloom, Deputy Atty. Gen., San Diego, Cal., for plaintiff and respondent.

THE COURT. ^*

Defendant Mitchell Pellegrin appeals his court-tried conviction of possessing concentrated marijuana (Health & Saf.Code § 11357(a)).

Pellegrin contends:

(1) the trial judge erred in finding the search warrant affidavit was sufficient to establish probable cause; and

(2) the trial judge erred in failing to suppress the fruits of the search because the search warrant contained misstatements and omissions of which the affiant was aware.

We conclude the affidavit upon which the search warrant was based was insufficient and therefore do not reach Pellegrin's second contention.

The search warrant issued July 6, 1976 was based on the affidavit of Gregory Miller. The affidavit is in substance: Miller is employed as a police officer by the San Diego Police Department. He has received training and experience identifying marijuana. "On July 2, 1976 . . . (he) received information that stated there were several live marijuana plants growing in the backyard of (Pellegrin's house). At about 3:00 p. m. on July 2, 1976 . . . (he) went to the residence at the rear of (Pellegrin's house) and while there . . . (he) contacted the occupants and received their permission to view the backyard of (Pellegrin's house). (He) was able to view in plain sight one 3 foot marijuana plant growing next to a fence at the rear of (Pellegrin's) residence. (He) did not have to jump or otherwise remove any impediments in order to view (the) plants (sic) from the rear of the neighbor's residence. The plant was in (Pellegrin's backyard). Such plant did not appear to be growing wild." Miller then stated he knows individuals who cultivate marijuana, possess quantities of marijuana for personal use as well as other paraphernalia. These materials and contraband are often hidden within the residence, garages and outbuildings of the person cultivating marijuana. Based solely on this information, a warrant was issued to search Pellegrin's home.

The question is whether the affidavit presented in support of the search warrant for Pellegrin's home was adequate to support the magistrate's conclusion reasonable cause existed to believe marijuana could be found in Pellegrin's home.

The Fourth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment (Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726), provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . ." ¹

We recognize an affidavit is to be viewed as a whole in a common sense manner (People v. Superior Court (Johnson), 6 Cal.3d 704, 711, 100 Cal.Rptr. 319, 493 P.2d 1183) and doubtful or marginal cases may be determined by the preference to be accorded warrants (People v. Mesa, 14 Cal.3d 466, 469, 121 Cal.Rptr. 473, 535 P.2d 337). All reasonable legitimate inferences are to be indulged in to uphold the findings of the trial court (Leonard v. Rose, 65 Cal.2d 589, 593, 55 Cal.Rptr. 916, 422 P.2d 604). A magistrate's finding which is supported by competent and relevant evidence will not be disturbed on appeal (People v. Scoma, 71 Cal.2d 332, 78 Cal.Rptr. 491, 455 P.2d 419).

Nevertheless, we also recognize a warrant cannot stand, even with the aid of constructional guides, if the affidavit is not based on information from which the magistrate can make an independent determination of probable cause. An affidavit containing only opinions and conclusions will not support a finding of probable cause (People v. Castro, 249 Cal.App.2d 168, 171, 57 Cal.Rptr. 108). The magistrate must be presented facts and not conclusory statements if he is to perform his detached function and not become a rubber stamp for the police. "The goal is to require an informed and deliberate review . . ." by a magistrate. (Emphasis added; People v. Escamilla, 65 Cal.App.3d 558, 562, 135 Cal.Rptr. 446, 448.)

"In the search warrant context, the term 'probable cause' signifies a measurement of the likelihood that particularly described persons or things (3.10) are to be found at the place to be searched." (Krause, C.E.B., Search & Seizure, 2d, p. 98.)

The facts presented to the magistrate must be "such as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain, a strong suspicion" the objects sought are at the premises to be searched (People v. Stout, 66 Cal.2d 184, 193, 57 Cal.Rptr. 152, 158, 424 P.2d 704, 710.)

The sufficiency and competency of the evidence presented in support of a warrant are questions of law (People v. Scoma, supra, 71 Cal.2d 332, 336, 78 Cal.Rptr. 491, 455 P.2d 419).

"The trial court also has the duty to...