People v. Richardson

• Decision Date: 27 March 1970
• Docket Number: Cr. 15976
• Citation: 85 Cal.Rptr. 607,6 Cal.App.3d 70
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Gaston RICHARDSON, Defendant and Appellant.

Page 607

85 Cal.Rptr. 607

6 Cal.App.3d 70

The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Gaston RICHARDSON, Defendant and Appellant.

Cr. 15976.

Court of Appeal, Second District, Division 5, California.

March 27, 1970.

Hearing Denied June 17, 1970.

Lloyd, Bradley, Burrell & Nelson and Charles E. Lloyd, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Gordon J. Rose, Deputy Atty. Gen., for plaintiff and respondent.

REPPY, Associate Justice.

By information defendant was charged with violations of Health and Safety Code, section 11500 (count I--possession of heroin) and section 11501 (count II--transporting a narcotic). A motion to set aside the information under Penal Code section 995 was denied, and two motions to suppress evidence under Penal Code section 1538.5 were denied. By stipulation the case was tried before the court on the transcript of the preliminary hearing. ¹ During the trial another motion to suppress was made and denied. ² Defendant was sentenced on both counts to the state prison for the term prescribed by law. The appeal is from the judgment of conviction, and purportedly from the order denying motion for new trial.

Officer Welsch, of the Narcotics Division of the Los Angeles Police Department, over the past five years had known defendant (under his middle name 'Gaston') as a seller of narcotics. ³ Officer Welsch received information from an informant, with whom he had just become acquainted, that defendant and two others were involved in criminal activity. As to the latter, one was said to be selling narcotics; the other to be in possession of stolen property.

As to defendant, the informant gave Officer Welsch defendant's address and telephone number, advised that he was known as 'Gaston' and had an off-white 1963 Chevrolet automobile with a dented right rear door, and identified him in a photograph. He stated to Officer Welsch that defendant was engaged in the sale of heroin; that defendant would leave his house between 6 a.m. and 8 a.m. to make deliveries; that if defendant did not have sufficient heroin, he would go to a large brown building with green trim at 42nd and San Pedro Place to obtain an additional supply.

Two days before he made contact with defendant, Officer Welsch arrested the other two persons who had been informed upon and learned that the information about them had been accurate. The validity of these arrests was not attacked by defendant. One arrestee had possession of three-fourths of an ounce of heroin; the other, 30 admittedly stolen Cashmere coats.

Officer Welsch verified the address and telephone number given by the informant as those of defendant. At 7 a.m. of the day chosen to check on defendant, Officer Welsch, in an unmarked car driven by Sergeant Sanderson, went to defendant's residence. Officer Welsch saw defendant enter an off-white 1963 Chevrolet with a dented right rear door and drive away. The officers followed defendant to the location on San Pedro Place specified by the informant and saw defendant stop, enter a large brown house with green trim, come out, reenter his automobile and drive away. The officers continued to follow, and after a short distance, pulled alongside defendant. Officer Welsch, from the passenger's side, identified himself as a policeman and had defendant stop. Defendant remained in his car. When Officer Welsch got out and approached defendant's car, he observed defendant make a quick movement with his right arm away from his body, either downward or upward, or both. Officer Welsch had defendant step from his vehicle and then asked him if he minded if they searched his car. Defendant said, 'No, you don't have to ask me. Go ahead. Go right ahead.' ⁴

Officer Welsch looked on the floor boards under the driver's section and found two balloons containing a powdery substance which he considered to be, and which later proved to be, heroin. Defendant then was formally arrested. Shortly thereafter, following full advice as to his rights and his statement that he understood them, and would answer questions, defendant, when queried about his use of heroin, said, 'Well, I horn a little bit' (meaning he ingested it by sniffing it through his nose).

CONTENTIONS

Defendant makes two main contentions. The first is in two segments: (1) that the evidence is insufficient to establish that Officer Welsch had probable cause to arrest defendant and to make a prior search of his car incident to the later arrest; and (2) that if there were proper grounds for an investigative detention of defendant, the evidence was insufficient to establish that defendant, in the course of that detention, consented to the search. The second main contention is that there was insufficient evidence to support the implied finding that defendant had knowledge of the presence of the heroin and of its narcotic character.

DISCUSSION

I.

It is clear from the remarks of the trial judge, made when denying the motion for new trial, that he did find that the informant was reliable. This was supported by the testimony that the information concerning the other two persons informed upon turned out to be accurate. This is the conventional measuring device for reliability. (McCray v. Illinois, 386 U.S. 300, 303, 87 S.Ct. 1056, 18 L.Ed.2d 62; People v. Prewitt, 52 Cal.2d 330, 337, 341 P.2d 1; People v. Sanders, 250 Cal.App.2d 123, 130, 58 Cal.Rptr. 259.) The mere fact that confirmation of informer reliability materialized only a few days before the information given as to defendant was acted upon should not detract from its value.

The defendant appears to urge, however, that granted the informant was reliable, his explanation to the officers gave only a Modus operandi for criminal activities and did not purport to recount actual occurrences seen by the informant. However, a strong inference was available from the nature and detail of the explanation that it was based on observations of numerous instances of the procedure. Moreover, it is not essential that the informant's material be obtained from first-hand observation, if he gives an adequate explanation of the manner in which the information was gathered or if he describes the criminal activity in considerable detail, and the details are corroborated by police investigation so that the tip appears as trustworthy to a magistrate as a tip passing the test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, without independent corroboration. (Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637.) Spinelli says that its facts did not meet this standard. The tip was that Spinelli was using two specified telephone numbers for a gambling operation. Investigation revealed that an apartment that Spinelli was seen entering contained the two telephones which had these numbers. Spinelli points out though that the circumstances in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, were adequate. There the tip related that Draper had gone to Chicago and would return with heroin to Denver by train on one of two specified mornings and gave a description of his clothing. The officers saw the man in question at the train on the second morning specified with attire which corresponded to the description. It is clear that the circumstances in the instant case are much closer to those in Draper than to those in Spinelli. Details were given concerning times, locations and the vehicle being used, and what the officers saw matched quite precisely with the information received: The informant's statement in the instant case did 'describe the accused's criminal activity in sufficient detail that the * * * (officer might) know that he * * * (was) relying on something more substantial than a casual rumor circulating in the underworld * * *.' (Spinelli v. United States, Supra, 393 U.S. at page 416, 89 S.Ct. at p. 589.) The detail which the informer provided, corroborated in every respect by the officer's observations, indicated that the informer had an intimate familiarity with the activities of defendant and that he gained his information in a reliable way. ⁵ Officer Welsch's awareness over a five-year period of defendant's selling habits made the informant's tip particularly meaningful. This factual situation should be contrasted with what we pointed out in People v. Escollias, 264 Cal.App.2d 16, 19--20, 70 Cal.Rptr. 65, 67, to be a situation 'totally devoid of anything that would indicate any criminal activity was involved.'

When he observed defendant go into and come out of the big brown house with the green trim and return to his car and drive off, Officer Welsch, based on the informant's revelation that defendant did this to obtain heroin for his projected deliveries, had reason to entertain a strong suspicion that defendant possessed heroin in the vehicle. Officer Welsch's observation of defendant furtively moving his right arm at the time he was being stopped, was confirmatory of the presence of contraband. The totality of this information gave Officer Welsch probable cause to arrest defendant. (Cf. Draper v. United States, Supra, 358 U.S. 307, 312--314, 79 S.Ct. 329, 3 L.Ed.2d 327; People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967; see Witkin, California Criminal Procedure (1963) Proceedings Before Trial, § 103, pp. 102--103.)

With probable cause to arrest, the officer had the right, coincidentally, even though preceding formal arrest (People v. Terry, 70 Cal.2d 410, 428, 77 Cal.Rptr. 460, 454 P.2d 36; People v. Cockrell, 63 Cal.2d 659, 666--667, 47 Cal.Rptr. 788, 408 P.2d 116), ⁶ to search the front seat of the car. (See People v. Bauer, 1 Cal.3d 368, 374--375, 82 Cal.Rptr. 357, 461 P.2d 637.) ⁷

Defendant suggests that whatever probable cause to arrest may have existed in law, Officer Welsch himself did not believe that he had such probable cause at the time he made the search. This argument...