People v. Shapiro, Cr. 23755

• Decision Date: 18 March 1974
• Docket Number: Cr. 23755
• Citation: 37 Cal.App.3d 1038,113 Cal.Rptr. 54
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael SHAPIRO, Defendant and Appellant.

Page 54

113 Cal.Rptr. 54

37 Cal.App.3d 1038

The PEOPLE, Plaintiff and Respondent, v. Michael SHAPIRO, Defendant and Appellant.

Cr. 23755.

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

March 18, 1974.

Hearing Denied May 16, 1974.

Allen King, Beverly Hills, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., and Shunji Asari, Deputy Attys. Gen., for plaintiff and respondent.

JEFFERSON, Acting Presiding Justice.

By information, defendant was charged in count I with transportation of marijuana in violation of then Health & Safety Code section 11531 and in count II with possession of marijuana for sale in violation of then Health & Safety Code section 11530.5. Defendant's motions pursuant to Penal Code sections 995 and 1538.5 were denied.

The cause was submitted to the court after a jury waiver and pursuant to a stipulation by defendant, with each side reserving the right to put on additional evidence.

The court found defendant guilty on count I, transportation of marijuana in violation of section 11531 of the Health & Safety Code. Proceedings were suspended and defendant was granted probation for a period of two years on the condition among other things, that he spend the first 90 days in the county jail. Count II was dismissed on motion of the People. Defendant appeals from the judgment (order granting probation).

On November 3, 1971, John Donovan, Special Agent, U.S. Customs, Treasury Department, received from a fellow customs officer a newspaper addressed to a Dr. Stoner, in care of Mr. Shapiro and addressed to 1911 North Beverly Glen Drive, Los Angeles County. The newspaper bore a return address in London indicating the return addressee as Michael Shapiro. Inside the newspaper was a package which Mr. Donovan had tested for narcotic content. A Narcoban test indicated that the package contained a quantity of marijuana in the form of hashish. After the package had been tested and it was revealed that a quantity of narcotics were contained therein, it was returned to the U.S. postal authorities for delivery.

On November 19, 1971, Mark Kroeker, a Los Angeles Police Department officer, went to 1911 North Beverly Glen Drive with a search warrant. He was admitted to the residence of Michael Boyt. The officer arrested Boyt and the two other individuals who were present in the front room of the location. He then showed a copy of the warrant to Boyt and read it aloud, after which he conducted a search of the premises.

After the premises were searched, the following items were found and recovered for evidence: 13 1/2 kilo bricks of marijuana, a cube of hashish weighing approximately 27 1/2 grams, two foil-wrapped cubes of hashish weighing approximately 30 grams; a brown paper bag containing three bags of marijuana and one cigarette, a white plastic bag containing four smaller bags of marijuana, a purse containing two bags of marijuana, a bag of hashish weighing approximately five grams, a plastic bag containing marijuana, a glass jar containing marijuana seeds, an aspirin bottle containing 33 white pills and 34 red pills, a pink and clear container containing numerous capsules and pills, a green suitcase, a newspaper addressed to 1911 North Beverly Glen Drive, inside of which hashish had been found, numerous items of personal effects with the names of Michael Shapiro and Michael Boyt and the address of 1911 North Beverly Glen Drive, keys to the residence at 1911 North Beverly Glen Drive, a coin envelope containing $944 and a coin envelope containing $13.

Other items recovered in the search were rent receipts, utilities bills, letters addressed to Michael Boyt and Michael Shapiro at 1911 North Beverly Glen Drive and photographs of defendant seated with his feet propped up by approximately 12 packages wrapped in paper having dimensions of 8--10 inches by 3--4 inches by six inches.

Joseph V. Amore, a Los Angeles Police Department officer, qualified as an expert regarding the manner in which marijuana and dangerous restricted drugs and narcotics are possessed and packaged for sale in Los Angeles County. He testified it was his opinion that the 13 1/2 kilos of marijuana were possessed for sale and the hashish was not possessed for sale.

Defendant testified in his own behalf: he resided at 1911 North Beverly Glen Drive; he left for Europe on October 12, returning on December 26; he was aware the police officers discovered several kilos of marijuana and other narcotics at his address on November 19, but he did not know how the narcotics arrived at his residence. The narcotics had not been at his residence on October 12, 1971, when he left for Europe.

He admitted that he was aware a mailing wrapper containing a newspaper and some hashish was recovered from his residence during a police search on November 19th. He also admitted that he had mailed the package to the location but denied that he ever possessed the package in the United States.

It was stipulated that the handwriting on the mailing wrapper that enclosed the newspaper which in turn contained the hashish was compared with handwriting exemplars furnished by the defendant and that the comparison indicated they belonged to one and the same person.

Defendant contends that the search warrant, pursuant to which the contraband in question was discovered, was issued without probable cause. Defendant argues that the search warant issued upon the affidavit of Sergeant Kroeker was premature. We find no merit in defendant's contention nor his argument.

Sergeant Kroeker's affidavit of November 19, 1971, in support of the search warrant indicated that a package, addressed to defendant's residence, had been intercepted by officials of the U.S. Customs Office, and it was discovered to contain hashish. The affidavit further alleged that the package would be delivered through the U.S. mails later that day.

Defendant is in error when he argues that, since the affidavit in support of the warrant did not establish probable cause to conduct an immediate search at the time the warrant was sought, the warrant was improperly issued. The warrant was not invalid because it was based upon an affidavit which established a future, rather than a present, probable cause to search.

This exact and identical issue was raised and resolved against a defendant in Alvidres v. Superior Court, 12 Cal.App.3d, 575, 580--581, 90 Cal.Rptr. 682. In the Alvidres case, the affidavit recited, as in the instant case, that the officer had received information from a special agent of the Federal Bureau of Customs that a parcel addressed to the defendant Gabriel Alvidres had been opened at the Federal Bureau of Customs and the parcel contained marijuana. The parcel was placed back in the mails for delivery to defendant and a search warrant was issued to be served at a later date when the package would arrive. The court held that the affidavit, asserting a future mail delivery of narcotics, sufficiently established probable cause to support the issuance of a search warrant. In so holding, the court said, at page 581, 90 Cal.Rptr. at page 686: 'We must ask ourselves whether the objective of the rule is better served by permitting officers under circumstances similar to the case at bar to obtain a warrant in advance of the delivery of the narcotic or by forcing them to go to the scene without a warrant and there make a decision at the risk of being second-guessed by the judiciary if they are successful in recovering evidence or contraband. We believe that achievement of the goals which our high court had in mind in adopting the exclusionary evidence rule is best attained by...