People v. Senkir

• Decision Date: 26 June 1972
• Docket Number: Cr. 4667
• Citation: 103 Cal.Rptr. 138,26 Cal.App.3d 411
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Patrick SENKIR, Defendant and Appellant.

Page 138

103 Cal.Rptr. 138

26 Cal.App.3d 411

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Patrick SENKIR, Defendant and Appellant.

Cr. 4667.

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

June 26, 1972.

[26 Cal.App.3d 413] Thomas & Parker and Richard A. Thomas, San Diego, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and Derald E. Granberg and Alan S. Meth, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

Joseph Patrick Senkir (defendant) appeals from a judgment based upon verdicts imposing sentences for possession of restricted dangerous drugs for sale (Health & Saf.Code § 11911), possession of narcotics for sale (Health & Saf.Code § 11500.5), and possession of marijuana (Health & Saf.Code § 11530).

The contraband of whose possession defendant was found guilty was found and seized in the execution of a search warrant.

The contentions on appeal consist of an attack upon the sufficiency of the affidavit upon which the search warrant was issued, the legality of the search warrant itself, and the refusal of the trial court at the time of trial to receive evidence intended to show that false information had been given to and recited by the officer who made the affidavit for issuance of the warrant.

The warrant, issued November 13, 1970, was based upon the affidavit of Howard Rhoads, Jr., made November 13, 1970.

The affidavit set forth the following: Rhoads was an officer of California Bureau of Narcotic Enforcement (BNE), assigned to its office in San Diego for 2 1/2 years investigating narcotics and drug traffic in the area, who had made numberous arrests based upon his familiarity with the techniques of narcotics and drug violators; he had worked with Agent Comstock, a fellow officer of BNE, for over two years and knew Comstock had been such agent for over four years; Rhoads had the highest regard for Comstock's veracity; Comstock had told Rhoads of a certain informer, whom Comstock designated as 'XX,' who had been known to Comstock for several months during which time 'XX' had furnished information to Comstock regarding narcotics offenses which Comstick had investigated and which had resulted in at least five felony convictions for marijuana offenses; 'XX', had never given Comstock false or misleading information and had correctly identified marijuana in Comstock's presence; because of that Comstock had reason to and did believe 'XX' was reliable and credible; 'XX' had now informed Comstock that 'XX' had been at premises known as 1155 Monserate Avenue in Chula Vista on at least one occasion on or about October 31, 1970, and on each occasion 'XX' had seen at said premises several kilos of green vegetable material which 'XX' recognized as manicured marijuana, and on each occasion 'XX' had been with a person known to 'XX' as 'Little Joe' and to be the resident of the premises; Rhoads had learned from telephone company officials they had checked their records which showed telephone service at the premises was in the name of Joe Senkir; Rhoads had discovered from law enforcement officials Joseph Senkir had been sent to California Youth Authority in 1960 for possession of narcotics, was discharged from parole in 1963, was convicted on October 23, 1967 in San Diego of possession of marijuana, sent to Chino, and was now on parole to San Diego County on that conviction; Senkir had given the Monserate Avenue address in recent law enforcement contracts; his nickname was 'Little Joe'; he has a tattoo reading 'Hell's Angels' on his upper left arm; because of the foregoing, Rhoads had reason to believe there were on the Monserate Avenue premises manicured marijuana, paraphernalia for the transfer, sale or consumption of marijuana, including but not limited to butcher paper, scales, alligator clips and written articles on the use and consumption of narcotics; and papers, documents and effects which show possession, dominion and control of said premises, including but not limited to probation and parole orders, rent receipts, cancelled mail envelopes, monogrammed clothing and keys.

The warrant authorized a search for those described articles.

The execution of the search warrant on November 18, 1970 did not discover any marijuana in brick form; it did discover marijuana, heroin and restricted dangerous drugs, a jacket with 'Little Joe' lettered across the back hanging in the garage, two water pipes, several other pipes, weapons and ammunition, and personal identification papers.

A motion to traverse the search warrant and to exclude the evidence seized was made in the course of the preliminary hearing and denied. The motion was based upon the cross-examination of Rhoads as to what information he had received from Comstock and when he had received it. The testimony of Rhoads fairly supported the statements he made in the affidavit.

A motion to suppress the seized evidence under Penal Code section 1538.5 and a motion under Penal Code section 995 were made in the superior court and denied. ¹

Although Comstock was not present at the preliminary hearing, he appeared and testified at the hearing of the motion to suppress evidence in the superior court on February 23, 1971, when his testimony verified that he knew an informer by the name of Reynaldo whose residence so far as known to Comstock had been with the informer's parents in Oxnard and who was the 'XX' whom Comstock told Rhoads about; the informer had given him information in not less than five cases that had resulted in arrests for narcotics violations and had never given him false information. Comstock gave the names of two persons who had been convicted on the basis of such information; others had not yet been tried; Reynaldo had identified marijuana in a kilo-sized package to Comstock; he had given Comstock the information Comstock was quoted in the affidavit of Rhoads as having been given to Rhoads by Comstock, and Comstock had given that information to Rhoads substantially in the form in which Rhoads stated he had received it; Reynaldo had been killed in a vehicle accident in January 1971.

On the opening day of trial defendant's attorney requested leave to present evidence in support of a motion to suppress. He offered to present the testimony of the mother and wife of Reynaldo that the latter had never been in San Diego, and on October 31 had been on a trick-or-treat expedition with the children, and the testimony of defendant that he had not been at the Chula Vista premises on October 31.

The questions presented are these:

1. Does the information contained in the affidavit support the reasonable inference that anything other than marijuana in brick form was on the premises?

2. Is the description 'paraphernalia for the transfer, sale or consumption of marijuana,' followed by the designation of specific objects, sufficiently definite and specific to meet the constitutional requirements?

3. Did the description 'papers, document and effects which show possession, dominion and control of said premises, including but not limited to probation and parole orders, rent receipts, cancelled mail envelopes, monogrammed clothing and keys' meet the constitutional requirements?

4. Did the trial court err in not allowing defendant to present evidence at the time of trial to traverse the warrant and suppress the evidence?

A search warrant may be issued by a magistrate only upon probable cause. (U.S.Const., 4th Amend., Cal.Const., art. I, § 19; Pen.Code §§ 1523, 1525.) That test is met if the affidavit avers competent evidence sufficient to lead a reasonably prudent man to believe there is a basis for the search. (People v. Prieto, 191 Cal.App.2d 62, 68, 12 Cal.Rptr. 577.) Law enforcement officers are in a more favorable position when a warrant is obtained (People v. Keener, 55 Cal.2d 714, 723, 12 Cal.Rptr. 859, 361 P.2d 587), and doubtful or marginal cases may largely be determined by this preference accorded to warrants (United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684). We are to view the affidavit in a commonsense way rather than technically (United States v. Ventresca, Supra, 380 U.S. 102, 106, 85 S.Ct. 741). (People v. Kesey, 250 Cal.App.2d 669, 671, 58 Cal.Rptr. 625.)

The affidavit in the case at bench showed in the form of an objective statement by the primary informer to Comstock what the informer had seen, where and when he had seen it and in whose company; it showed by a recital of facts the reasons why Comstock, the ultimate informer, believed the primary informer to be reliable and credible; it showed that all of such information had been received by Rhoads.

The affidavit, therefore, met the two-pronged test of Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, if the issuing magistrate might reasonably find the affiant could rely upon the statement of a fellow officer as to information given the fellow officer by an informer, proven reliable by the fellow officer, of what the informer had personally observed.

A recent statement of the governing rules is found in People v. Superior Court, 6 Cal.3d 704, 711--712, 100 Cal.Rptr. 319, 324, 493 P.2d 1183, 1188:

"Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, The courts should not invalidate the warrant by interpreting the affidavit is a hypertechnical, rather than a commonsense manner. . . . (Italics added.) (See also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723.)

'In order for an affidavit based on an informant's hearsay statement to be legally sufficient to...