People v. Sesslin

Decision Date10 April 1968
Docket NumberCr. 11519
Citation68 Cal.2d 418,67 Cal.Rptr. 409
CourtCalifornia Supreme Court
Parties, 439 P.2d 321 The PEOPLE, Plaintiff and Respondent, v. Gerald SESSLIN, Defendant and Appellant.

Hollopeter & Terry and Don H. Terry, Pasadena, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and August J. Ginocchio, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

An information charged defendant and Frank Harper with seven counts of forgery and two counts of grand theft. Defendant and Harper waived trial by jury and stipulated that the trial judge decide the case on the transcript of the preliminary hearing. The trial court found defendant guilty of one count of forgery and dismissed the other eight counts against defendant. Defendant appeals.

We hold that (1) an arrest warrant issued solely upon the complainant's 'information and belief' cannot stand if the complaint or an accompanying affidavit does not allege underlying facts upon which the magistrate can independently find probable cause to arrest the accused; (2) sections 806, 813, and 952 of the Penal Code do not authorize the issuance of warrants of arrest based solely upon complaints couched in the language of the charged offense and therefore do not violate the Fourth Amendment; (3) handwriting exemplars taken incidental to an illegal arrest are inadmissible; (4) the admission of defendant's handwriting exemplars constituted prejudicial error.

On January 12, 1966, Police Officer Hargraves signed a nine-page felony complaint. 1 On the same day, a judge of the municipal court issued a warrant for the arrest of defendant and Harper. On the next day Officer Hargraves, acting pursuant to the warrant, arrested defendant in his office. Hargraves advised defendant of his right to counsel and his right to remain silent and further informed him that he did not have to give any handwriting exemplars. At Hargraves' request, however, defendant wrote out an exemplar. Later, at the police station, he gave further exemplars.

An expert witness testified that the handwriting on the exemplars and the handwriting on the forged $5,800 check were executed by the same person. This testimony comprised the only evidence establishing that defendant signed the fictitious name on the check. Although defendant offered timely objections to the admissibility of the exemplars, the trial court permitted their introduction on the ground that the prosecution obtained them as an incident to a valid arrest and during defendant's legal detention.


The Fourth Amendment requires that 'no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.' 2 In Giordenello v. United States (1958) 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, the United States Supreme Court held that a complaint which merely stated the affiant's conclusions couched in the words of the statute 3 cannot support a valid arrest warrant. Justice Harlan said: 'The purpose of the complaint, then, is to enable the appropriate magistrate, * * * to determine whether the 'probable cause' required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime. * * * (Here) the complaint contains no affirmative allegation that the affiant Spoke with personal knowledge of the matters contained therein; it does not Indicate any sources for the complainant's belief; and it does not set forth Any other sufficient basis upon which a finding of probable cause could be made.' (Italics added.) (Id. at 486, 78 S.Ct. at 1250.)

Although the Attorney General correctly points out that Giordenello rested on the federal rules of criminal procedure applicable to a federal prosecution, Aguilar v. State of Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, grounded these rights in the Constitution. In that case, which involved a search warrant issued by a Texas justice of the peace, the United States Supreme Court said, 'The principles announced in Giordenello derived, therefore, from the Fourth Amendment, and not from our supervisory power.' (Id. at 112 fn. 3, 84 S.Ct. at 1513.) The court also determined that Ker v. State of California (1963) 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, which stated that 'the standard of reasonableness is the same under the Fourth and the Fourteenth Amendments,' (374 U.S. at 33, 83 S.Ct. at 1630) 'must certainly be read as holding that the standard for obtaining a search warrant is likewise 'the same under the Fourth and Fourteenth Amendments.'""' (378 U.S. at 110, 84 S.Ct. at 1512.)

Aguilar held that, 'although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, * * * the magistrate must be informed of (1) 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, * * * was 'credible' or his information was 'reliable.' Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime,' Giordenello v. United States.' (Id. at 114--115, 84 S.Ct. at 1514.)

In Barnes v. Texas (1965) 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818, in a case involving an arrest warrant, the Supreme Court in a per curiam opinion cited Giordenello and Aguilar as the sole basis for reversal of the conviction. 4 Barnes demonstrates that Giordenello and Aguilar must be read together as formulating the requirements of the Fourth Amendment for valid arrest as well as search warrants, and that the standards set forth in Giordenello, as clarified in Aguilar, United States v. Ventresca (1965) 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 and Jaben v. United States (1965) 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345, apply to the states through the Fourteenth Amendment. (Ker v. State of California, supra, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.)

In Jaben the United States Supreme Court classified the types of factual show ing required to meet the constitutional standards. In that case, which involved a summons ordering the defendant to oppear at a preliminary hearing, the Supreme Court said that 'Information in a complaint alleging the commission of a crime falls into two categories: (1) that information which, if true, would directly indicate commission of the crime charged, and (2) that which relates to the source of the directly incriminating information.' (381 U.S. at 223, 85 S.Ct. at 1370.) This classification directly parallels and clarifies the two types of underlying circumstances which Aguilar held that a complaint must state in order to support a valid search warrant under the Fourth Amendment.

If such a complaint, supporting an arrest warrant, does not allege the two types of facts delineated by Aguilar and Jaben, the warrant fails and an arrest made pursuant to it is illegal. (Barnes v. Texas, supra, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818.) 5 Here the complaint did not state (1) any facts which would support the complainant's belief that defendant had committed any felonies as alleged, or (2) any facts relating to the identity or credibility of the source of the complainant's information.

The Attorney General's attempt to distinguish this complaint from those held insufficient to support a valid arrest warrant in Giordenello and Barnes on the basis that the complaint concludes with a list of 'Witnesses' thus misses the mark. The complaint did not allege that any of the listed persons were the source of the information upon which the complainant relied in seeking a warrant for defendant's arrest, or allege any facts connecting defendant with the charged forgeries as to which the 'witnesses' could testify. That a number of persons can testify to the crimes alleged in a complaint does not constitute the type of allegation which enables a 'neutral and detached' magistrate Independently to determine on the basis of the evidence before him that probable cause supports the arrest of the person charged in the complaint. (Aguilar v. State of Texas, supra, 378 U.S. at 109 fn. 1, 111--115, 84 S.Ct. 1509; Giordenello v. United States, supra, 357 U.S. at 486--487, 78 S.Ct. 1245.)


California's statutory scheme authorizing the issuance of arrest warrants does not violate the Fourth Amendment. When the relevant provisions (Pen.Code, §§ 806, 813, and 952) 6 are read together and construed in light of Giordenello-Aguilar, they meet the constitutional test. A complaint based on 'information and belief' and couched in the statutory language of the alleged offense may support a valid arrest warrant If the complaint alleges sufficient facts for the magistrate to conclude that probable cause supports the warrant in that the allegations indicate (1) the commission of the crime by the person whose arrest is sought, and (2) that reliability of the information and credibility of its source.

Section 813 of the Penal Code provides that the magistrate Must issue an arrest warrant if he 'is satisfied from the complaint' that 'there is reasonable ground' to arrest the defendant. Giordenello-Aguilar requires that the magistrate may issue an arrest warrant Only if he is satisfied from the complaint that there is probable cause to arrest the defendant. The statutory mandate does not conflict with the constitutional standard; the former must be construed in light of the latter. So interpreted, section 813 provides in effect that an arrest...

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