People v. Schulle
Decision Date | 30 September 1975 |
Docket Number | Cr. 13842 |
Citation | 124 Cal.Rptr. 585,51 Cal.App.3d 809 |
Court | California Court of Appeals Court of Appeals |
Parties | PEOPLE of the State of California, Plaintiff and Appellant, v. William Lee SCHULLE and Alice Edna Schulle, Defendants and Respondents. |
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and appellant.
Peter F. Windrem, Santa Rosa, for defendants and respondents.
The People appeal from an order dismissing a criminal action following the granting of defendants' motion to suppress evidence pursuant to Penal Code section 1538.5. The question presented is whether the motion to suppress was properly granted.
Lieutenant George D. Roxon of the Lake County Sheriff's office presented to the magistrate an affidavit for issuance of a search warrant which stated that on June 6, 1974, he was contacted by Kimberly M. Simmons, who gave him the statement attached to his affidavit and incorporated therein by reference. In his affidavit Roxon states that Miss Simmons told him 'that on a number of occasions she has seen marijuana, recognizes its appearance, has smoked it and recognizes its smell.'
The statement taken from Miss Simmons which was attached to Roxon's affidavit as Exhibit 'A' reads as follows:
'Statement of Kimberly R. Simmons (14) taken at Lower Lake High School, 2:15 P.M. 6/6/74.
'I have known by talking to my mother that she and my stepfather William Lee Schulle have been using marijuana since 1968.
'The first time I saw them with marijuana was during the summer of 1971. My mother, stepfather, little sister and I were riding in the car. My stepfather brought out a pipe and a baggie of marijuana. He and my mother smoked it in the pipe.
'That summer my mother planted and raise (sic) about six marijuana plants in pots on our front porch.
'Since about September 1973 I have continually seen my mother and stepfather with marijuana. Sometimes my stepfather smokes it before he goes to work and when he gets home. My mother smokes it with him.
'This morning 6/6/74 I saw about 1/2 lid in a plastic bag of marijuana in the house. It is in a Red Roi-Tan Cigar can on a dressing table in a small (sic) next to my mother's bed room. K.S 'At about 8:00 pm 6/4/74 my parents were gone. A person telephoned by the name of 'Dan.' He told me to tell my stepfather he was coming up that night.
'My parents came home and I gave them the message and left. I returned about 10:00 and Dan was there. He and my stepfather went into the bedroom and were talking about a card board box on the floor. They later shut the door. I wanted to get some clothes out but they wouldn't let me in.
'They also hid the marijuana under their bed in a Brown filing cabinet.'
G. D. Roxon'
The search warrant was issued by the magistrate. Pursuant to the search the officers discovered the Roi-Tan cigar can containing marijuana, two plastic baggies of marijuana, a quantity of LSD and amphetamines.
Lieutenant Roxon is a presumably reliable person. Accordingly, when he attested to the truth of the matters alleged in the affidavit, and the magistrate, in the exercise of his impartial function, determined that the affidavit was truthful and acted upon it, the burden of demonstrating the inaccuracy or falsity of the allegations in the affidavit for a search warrant fell upon defendants. (Theodor v. Superior Court, 8 Cal.3d 77, 101, 104 Cal.Rptr. 226, 501 P.2d 234; People v. Paris, 48 Cal.App.3d 766, 771--772, 122 Cal.Rptr. 272.) The defendants did not seek to controvert the allegations contained in the affidavit by proof or offer of proof showing that it contains inaccuracies (in which case the burden would shift back to the prosecution to show that the inaccuracies were included as a result of misapprehensions 1), but instead chose to attack the sufficiency of the affidavit as a matter of law. The challenge to the affidavit is that it does not meet the second requirement of the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, reiterated in Skelton v. Superior Court, 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485. It is conceded that the first requirement of Aguilar has been met.
Under Aguilar the two requirements to be met are: '(1) Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, (citation) the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, (citation) was 'credible' or his information 'reliable."
(Aguilar v. Texas, supra, 378 U.S. 108, 114--115, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723; Skelton v. Superior Court, supra, 1 Cal.3d 144, 152, 81 Cal.Rptr. 613, 460 P.2d 485.)
Adverting to the second prong of the test we observe that it is apparent from a reading of the affidavit that the person identified therein as Kimberly Simmons appeared to Roxon to be a 'citizeninformant.' It was reasonable for Roxon to conclude that Kimberly Simmons was a witness to a crime from the nature of the information given and the circumstances narrated by the informant. (People v. Paris, supra, 48 Cal.App.3d 766, 772, 122 Cal.Rptr. 272, 276.
Corroboration of information received from an informant is unnecessary for search warrant purposes where the informant's statements are made on his personal observation of the commission of a crime. (People v. Hill, 12 Cal.3d 731, 758, 761, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Paris, supra, 48 Cal.App.3d 766, 773, 122 Cal.Rptr. 272.) In such a case the informant is presumptively reliable as a 'citizen-informant' even though his reliability has not previously been tested. (People v. Hill, supra; People v. Hogan, 71 Cal.2d 888, 890, 80 Cal.Rptr. 28, 457 P.2d 868; People v. Paris, supra.)
In the present case the statements of the informant, identified as Kimberly Simmons, the daughter of defendant Alice Schulle and the stepdaughter of defendant William Schulle and a member of their household, not only gave information which was obviously based on her personal observation but set forth with specificity the facts and circumstances which lend credence to the belief that a substantial quantity of marijuana was located on the premises for which a search warrant was sought. Accordingly, if Kimberly Simmons is deemed to be a 'citizen-informant' she is presumptively reliable. (People v. Hill, supra, 12 Cal.3d 731, 761, 117 Cal.Rptr. 393, 528 P.2d 1.)
The immediate inquiry is whether Miss Simmons was a person who fell in the category of a 'citizen-informant' at the time of her statement to Roxon. A 'citizen-informant' is a citizen who purports to be the victim of or to have been the witness of a crime who is motivated by good citizenship and acts openly in aid of law enforcement. (People v. Guidry, 262 Cal.App.2d 495, 498, 68 Cal.Rptr. 794; People v. Gardner, 252 Cal.App.2d 320, 324--325, 60 Cal.Rptr. 321; People v. Griffin, 250 Cal.App.2d 545, 550--552, 58 Cal.Rptr. 707; People v. Lewis, 240 Cal.App.2d 546, 550, 49 Cal.Rptr. 579; see People v. Hill, supra, 12 Cal.3d 731, 761, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Hogan, supra, 71 Cal.2d 888, 890, 80 Cal.Rptr. 28, 457 P.2d 868.) It is reasonable for police officers to act upon the reports of such an observer of criminal activity. (People v. Gardner, supra, and cases there cited on p. 325 of 252 Cal.App.2d, 60 Cal.Rptr. 321; People v. Griffin, supra; People v. Lewis, supra.)
A 'citizen-informant' is distinguished from a mere informer who gives a tip to law enforcement officers that a person is engaged in the course of criminal conduct. (Krauss v. Superior Court, 5 Cal.3d 418, 421--422, 96 Cal.Rptr. 455, 487 P.2d 1023; People v. Hogan, supra, 71 Cal.2d 888, 891, 80 Cal.Rptr. 28, 457 P.2d 868; People v. Griffin, 250 Cal.App.2d 545, 551, 58 Cal.Rptr. 707; People v. Lewis, supra, 240 Cal.App.2d 546, 550, 49 Cal.Rptr. 579.) Thus, experienced stool pigeons or persons criminally involved or disposed are not regarded as 'citizen-informants' because they are generally motivated by something other than good citizenship. (People v. Griffin, supra; People v. Lewis, supra; see People v. Scoma, 71 Cal.2d 332, 338, fn. 7, 78 Cal.Rptr. 491, 455 P.2d 419.) (People v. Griffin, supra; People v. Lewis, supra.) Accordingly, in view of this distinction the courts have recognized that the tests of reliability that must be applied to experienced stool pigeons or to persons criminally involved or disposed do not necessarily apply to every private citizen who aids the police. (Krauss v. Superior Court, supra, 5 Cal.3d at pp. 421--422, 96 Cal.Rptr. 455, 487 P.2d 1023; People v. Guidry, supra, 262...
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