People v. Sheridan

• Decision Date: 09 December 1969
• Docket Number: Cr. 7671
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Patrick Ray SHERIDAN, Defendant and Appellant.

Page 695

82 Cal.Rptr. 695

2 Cal.App.3d 483

PEOPLE of the State of California, Plaintiff and Respondent, v. Patrick Ray SHERIDAN, Defendant and Appellant.

Cr. 7671.

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

Dec. 9, 1969.

David L. Kelly, Napa, for appellant.

Thomas C. Lynch, Atty. Gen., of the State of California, Eric Collins, George R. Nock, Deputy Attys. Gen., San Francisco, for respondent.

ELKINGTON, Associate Justice.

The appeal here is from a judgment entered upon defendant Sheridan's plea of guilty to a violation of Health and Safety Code section 11530 (possession of marijuana).

His claims of error result from a ruling of the superior court in special proceedings taken under Penal Code section 1538.5, to suppress the essential evidence upon which the charge to which he later pleaded guilty was based. The contentions on those proceedings apparently were that the seizure of the subject evidence on a search warrant was unreasonable because (1) the warrant was insufficient on its face (§ 1538.5, subd. (2), subsec. (i)); (2) there was in fact no probable cause for the issuance of the warrant (§ 1538.5, subd. (2), subsec. (iii)); and (3) the method of execution of the warrant violated federal or state constitutional standards (§ 1538.5, subd. (2), subsec. (iv)).

We shall first discuss the contention that there was in fact, as distinguished from the proof of the declaration supporting the search warrant, no probable cause for its issuance.

The evidence produced in the superior court special proceedings appears to have been based upon that found in the transcript of Sheridan's preliminary examination, and the earlier declaration of sheriff's investigator Harold K. Snook given in support of the search warrant. From these documents, as pertinent, it appears that the following information was known to Napa County sheriff's officers whom on May 22, 1968 they obtained the subject warrant.

David W. Jones was a citizen of Napa County who was married, gainfully employed, and a nephew of an investigator of the county district attorney's office. He had been a user of marijuana, as a result of which he had knowledge of 'the basic characteristics' of that material and was able 'to tentatively identify' it. On or after May 2, 1968, Jones related to Investigator Snook that on May 2, 1968, at a residence known as 1184 White Lane, St. Helena, he had observed (1) a quantity of green vegetable matter in a transparent glass jar which he believed to be marijuana; (2) a large transparent glass bottle containing a quantity of what he believed to be marijuana seeds; and (3) a 'male subject exit a vehicle (with license VYJ 538), at 1184 White Lane and hand a package of unknown substance to another male subject also at this location in exchange for which he received an undetermined amount of currency.' The vehicle with license VYJ 538 was registered to a person who had been convicted of selling restricted dangerous drugs. One Roy Alan Burch had previously been arrested for a narcotics violation. On May 13, 1968, he advised officers of the sheriff's office that within the previous 30 days he had observed occupants of the 1184 White Lane residence in possession of marijuana, and that he was familiar with the general characteristics of that substance. The respective reports of Jones and Burch appear to be in no way related or made in concert.

Our first task is to determine if the information set forth above and known to the sheriff's officers was sufficient to establish probable cause for the search of the 1184 White Lane premises. In making this determination we are, of course, bound by the now well known Aguilar 'two-pronged test.' (See Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 413, 89 S.Ct. 584, 21 L.Ed.2d 637.)

Following Aguilar, California courts have held 'that for an affidavit based on an informant's hearsay statement to be legally sufficient to support the issuance of a search warrant, two requirements must be met: (1) the affidavit must allege the informant's statement in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such statement; and (2) the affidavit must contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable.' (People v. Hamilton, 71 A.C. 189, 192--193, 77 Cal.Rptr. 785, 454 P.2d 681.) The first 'prong' of the Aguilar test is blunted here; each of the informants related that he personally had seen contraband narcotics on the subject premises. The remaining tine poses the question: Could a magistrate reasonably conclude from the totality of information that the statements of one or both of the informants was credible?

Neither informer may be considered a so-called 'citizen informer' whose information needs no corroboration, since each had previously involved himself in illicit narcotics traffic. (See People v. Scoma, 71 A.C. 349, 355, fn. 7, 78 Cal.Rptr. 491, 455 P.2d 419.) Obviously then, neither informant standing alone had furnished probable cause. So our inquiry becomes narrowed to the question whether there is corroboration of a sort which would reasonably justify a magistrate in concluding the imparted narcotics information to be credible.

As indicated, the proof made to the magistrate consisted of reports of two persons, each of whom stated that he personally had seen marijuana on the subject premises. The allegations that Jones was married and employed, and a conclusion that he was 'responsible' do nothing to enhance his credibility. Nor does his additional statement that he observed suspicious actions which could have constituted a narcotic sale, assist us. As we stated in Ovalle v. Superior Court, 202 Cal.App.2d 760, 763, 21 Cal.Rptr. 385, 387, 'The quantification of the information does not necessarily improve its quality; the information does not rise above its doubtful source because there is more of it.' (See also Saunders v. Municipal Court, 240 Cal.App.2d 563, 567, 49 Cal.Rptr. 763.) There remains only the question whether the corroborative effect of each informer's statement upon the report of the other, was sufficient to impel the magistrate reasonably to conclude that probable cause existed.

In Galena v. Municipal Court, 237 Cal.App.2d 581, 588, 47 Cal.Rptr. 88, 92--93, we referred to the earlier case of People v. Diggs, 161 Cal.App.2d 167, 171, 326 P.2d 194, which stated: '(T)his court, speaking through Justice Peters, said: 'It is true that an arrest and search is not based on reasonable and probable cause when the only information in the possession of the police is secured from an informant not known by the police to be reliable. (Citation.) But if information is received from such an informant, and There are substantial corroborating facts known or discovered, the arrest and search are proper. (Citations.) Each case must be determined on its own facts. The test is, Considering all the information in the hands of the police, would a reasonable police officer act on that information or would a reasonable officer seek further information before making the arrest and conducting the search.' (Italics added.) While a person whose information has in the past led the police to valid suspects may be a reliable informant (citations) the converse is not true, namely, that Only those persons furnishing tested information in the past are reliable informants.' Though Diggs referred to a police officer the same rule, of course, would apply to a magistrate in determining the existence of probable cause.

It appears to be established that the corroboration of an untested informer, required by Galena, supra, and Diggs, supra, and the authorities there cited, may be supplied by similar information from other untested informers.

The Supreme Court in Willson v. Superior Court, 46 Cal.2d 291, 294--295, 294 P.2d 36, 38, anticipating the subsequently announced Aguilar test, stated, 'Although information provided by an anonymous informer is relevant on the issue of reasonable cause, * * *...