People v. Scott

• Decision Date: 21 February 1968
• Docket Number: Cr. 6159
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Benjamin Franklin SCOTT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 257

66 Cal.Rptr. 257

259 Cal.App.2d 268

PEOPLE of the State of California, Plaintiff and Respondent, v. Benjamin Franklin SCOTT, Defendant and Appellant.

Cr. 6159.

Court of Appeal, First District, Division 4, California.

Feb. 21, 1968.

Rehearing Denied March 22, 1968.

Cary G. Branch, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., of California, John T. Murphy, John F. Henning, Jr., Deputy Attys. Gen., San Francisco, for respondent.

CHRISTIAN, Associate Justice.

This is an appeal from an order admitting defendant to probation upon conviction of violation of Health and Safety Code section 11530 (possession of marijuana). The order must be reversed because the court erroneously sustained an objection to a question as to the identity of an informer who was a material witness; therefore we shall deal only with those of appellant's further contentions which may come into question on retrial.

On May 28, 1965, Officer Olson of the Los Angeles Police Department made and presented to a magistrate an affidavit for issuance of a search warrant. The affidavit related that Officer Olson had received information from an untested informant, whose identity affiant wished to keep secret, that 'in the latter part of April, 1965, a male Negro, who he described as aged 22, five feet 6, 130 pounds, and known to informant as 'Ben,' delivered to him a one-half can of marijuana at the address of 1584 1/2 East 51st Street in the City of Los Angeles.' Affiant determined that appellant matched the description, had a prior narcotic arrest, and lived at 1584 1/2 East 51st Street. On May 17, 1965, affiant observed a 1958 Dodge, license IJV--633, being driven away from the premises. That license was found to be registered to a 1962 Buick. When the driver of the Dodge returned, he and appellant entered the residence. On May 18, 1965, affiant saw appellant seated in the Dodge.

The affidavit continued: Officers Paillet, Velasquez, and Landry told affiant that they too were investigating narcotic activities at 1584 1/2 East 51st Street. These officers related to affiant certain information they had received from a reliable informant. This informant had participated in over 50 cases and in each his information proved correct and led to a conviction. On May 10, 1965, the informant was with one Larry Weathers at a place one block from 1584 1/2 East 51st Street, where Weathers received some marijuana from an unnamed person. Eleven days later Officer Landry was present at 1584 1/2 East 51st Street and the same person who made the delivery on May 10 told the informant that he did not have any marijuana at the residence then, but would have some there on May 24, 1965. (The person who made the delivery on May 10 and the statement on May 21 was not identified.) Weathers was arrested on May 21, 1965, for sale of marijuana to a police officer. At the time of his arrest, he possessed a slip of paper bearing the telephone number of appellant's brother, Paul Scott.

A warrant was issued authorizing the search of appellant's person and of the premises and the automobile described in the affidavit. That evening (May 28) five officers went to the Scott residence armed with the search warrant. The Dodge automobile described in the warrant was parked in the driveway. As the officers arrived appellant came out of the house and got into the Dodge. One officer went immediately to the house, knocked and called out 'Sheriff's officers.' At about the same time the horn of the Dodge began to sound, and the officer who was about to enter the house saw appellant in the front seat of the car struggling with one of the officers. Believing that appellant was attempting to signal persons inside the house, the officer who had knocked immediately forced an entry. He announced his mission to appellant's father and mother, and to one Hollimon, who were all in the back bedroom. As the officer led them into the living room, appellant's other brother, Shelby, emerged from the front bedroom flailing his arms. After subduing Shelby, the officer searched the front bedroom and found more than one pound of marijuana. Meanwhile, another officer entered; as the search continued a further one-half pound of marijuana was found under a piece of furniture in the living room, a brown bag containing marijuana was found on the roof of the garage adjacent to the front bedroom, and marijuana debris and seeds were found in a shoebox under the bed in the front bedroom. Two marijuana cigarettes were found in the trunk of the car, and marijuana seeds and debris were found on the floor of the car.

Appellant and the others in the house were arrested and charged with violation of Health and Safety Code section 11530.5 (possession of marijuana for sale). Hollimon and the senior Scotts were not held to answer following the preliminary hearing.

At the trial of appellant and Shelby, an officer testified that all the occupants of the house admitted that they resided there. Mr. and Mrs. Scott, Sr. said they used the back bedroom. Mr. Hollimon occupied the center bedroom. Appellant said he stayed in the front bedroom. Shelby said he slept in the dining room and living room and used the front bedroom occasionally. At the trial both Shelby and appellant denied making any such statements.

The trial court sustained objections to defense questions regarding the identity of the 'reliable informant.' Appellant and Shelby Scott in their testimony denied possessing marijuana or having any knowledge of its presence in the house. Shelby was found not guilty and appellant, who had been charged with possessing marijuana for sale, was found guilty of the included offense of possession.

Having moved before the trial to quash the search warrant and suppress the evidence found in the search, appellant renews his attack on the sufficiency of the affidavit to support the issuance of a search warrant. Although the warrant purportedly authorized a search of appellant's person, the record does not show that any such search was actually made and the evidence upon which the conviction depends was produced chiefly in the search of the house. However, significant evidence was found in the car, and the validity of the warrant must therefore be determined as to both the house and the car. A search warrant may refer to designated contraband which there is probable cause to believe will be found at the place named. (Pen.Code, §§ 1524, 1528.) And where the object of the warrant is to search a place, there is no need to name or describe a person. (Williams v. Justice Court (1964) 230 Cal.App.2d 87, 101, 40 Cal.Rptr. 724.) Here the affidavit sought authorization for the search of two places: the Dodge automobile and the house.

Probable cause for the issuance of a search warrant is approximately the same as that which justifies an arrest without a warrant. (Williams v. Justice Court, supra, 230 Cal.App.2d 87, 94, 40 Cal.Rptr. 724; People v. Govea (1965) 235 Cal.App.2d 285, 296, 45 Cal.Rptr. 253.) Reasonable and probable cause exists if a man of ordinary care and prudence would be led to conscientiously entertain an honest and strong suspicion that the accused is guilty (or that contraband is present) (People v Cockrell (1965) 63 Cal.2d 659, 665, 47 Cal.Rptr. 788, 408, P.2d 116; People v. Alvarado (1967) 250 A.C.A. 655, 662, 58 Cal.Rptr. 822.) Reasonable cause may be established by information received from others and is not limited to evidence admissible at a trial. (Willson v. Superior Court (1956) 46 Cal.2d 291, 294, 294 P.2d 36.) Information provided by an anonymous or untested informant cannot alone establish a sufficient basis for a lawful search. (People v. Amos (1960) 181 Cal.App.2d 506, 508, 5 Cal.Rptr. 451.) However, if investigation or observation of the suspect corroborates the untested informant's report, a lawful search may be made if the combined information gives probable cause. (People v. Reeves (1964) 61 Cal.2d 268, 273--274, 38 Cal.Rptr. 1, 391 P.2d 393; People v. Amos, supra.) Probable cause for the issuance of a search warrant may be based solely on information furnished by a reliable informant if the affidavit is factual in nature rather than conclusionary and informs the magistrate of the basis from which the officer concluded that the informant was credible or his information reliable. (United States v. Ventresca (1965) 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684; People v. Keener (1961) 55 Cal.2d 714, 721, 12 Cal.Rptr. 859, 361 P.2d 587 (disapproved as to another point, People v. Butler (1966) 64 Cal.2d 842, 844--845, 52 Cal.Rptr. 4, 415 P.2d 819); People v. Tillman (1965) 238 Cal.App.2d 134, 138, 47 Cal.Rptr. 614.)

Because the informer was untested, the information given Officer Olson that on May 7, 1965, a male Negro, aged 22, 5 6 , 130 pounds, named Ben, delivered some marijuana to the informer at 1584 1/2 East 51st Street would be insufficient by itself to constitute probable cause for the issuance of a search warrant. The affidavit therefore shows an attempt to corroborate the informant's story. It recites that upon investigation the officer discovered that appellant matched the description, lived at the address, and had a narcotic arrest. On May 17, 1965, affiant also observed a maroon Dodge being driven away from the premises. The license on this car was registered to a 1962 Buick. Later that day, appellant entered the residence with the driver of the Dodge. The following day affiant saw appellant seated in the back seat of the Dodge. In People v. Amos, supra, 181 Cal.App.2d 506, 5 Cal.Rptr. 451, an untested informant told police he purchased marijuana from someone at a certain address. The prosecution contended that since the suspect was seen leaving that address, the informant's story was corroborated. But the officers observed no abnormal conduct indicative of any violation, therefore the story was not corroborated and probable cause did not exist. Thus information...