People v. Shipstead, Cr. 8549

CourtCalifornia Court of Appeals
Writing for the CourtSIMS; MOLINARI, P.J., and ELKINGTON
Citation19 Cal.App.3d 58,96 Cal.Rptr. 513
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Larry Duane SHIPSTEAD, Defendant and Appellant.
Decision Date08 July 1971
Docket NumberCr. 8549

Page 513

96 Cal.Rptr. 513
19 Cal.App.3d 58
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Larry Duane SHIPSTEAD, Defendant and Appellant.
Cr. 8549.
Court of Appeal, First District, Division 1, California.
July 8, 1971.
As Modified on Denial of Rehearing July 30, 1971.

Page 514

[19 Cal.App.3d 63] Larry A. Jackson, Oakland, for appellant.

Evelle J. Younger, Atty. Gen., Gloria F. De Hart, Ira J. Ross, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment sentencing him to state prison for possession of a restricted dangerous drug for sale in violation of section 11911 of the Health and Safety Code, and suspending sentence for simple possession of such a drug in violation of section 11910. He was convicted of those offenses after a trial by the court, a jury trial having been waived, on the evidence adduced at his preliminary examination and at a hearing on his motion to suppress. He contends that the restricted dangerous drugs which he was convicted of possessing were seized from him and a companion as a result of an arrest without probable cause, and that the trial court erred in denying his motion to suppress that evidence; that the court erred in denying his motion for the disclosure of the identity of an informant; that there is insufficient evidence as a matter of law to find defendant guilty of possessing the drugs for sale; that he was denied the effective assistance of counsel because he and his codefendant were jointly represented by the same attorney; and that he was erroneously convicted of both possession for sale and simple possession

Page 515

of a restricted drug, because the latter offense is included in the former. It is concluded that the trial court erred in denying defendant's motion for the disclosure of the identity of the informant. Since there is no other error in connection with defendant's conviction of possession of a restricted drug for sale, and the evidence sought may or may not affect the ruling [19 Cal.App.3d 64] on the motion to suppress the evidence, the proceedings should be remanded with instructions to set aside the conviction for simple possession, which was concededly erroneous as a conviction of a lesser included offense, and to set aside the conviction for possession for sale, only if the evidence sought indicates that the information, upon which the officers acted, was secured as a result of a violation of defendant's constitutional rights.
I

Prior to May 4, 1969, the San Francisco Police Department had received information over a long period of time regarding a narcotics operation which was being conducted by the defendant, Larry Duane Shipstead, his codefendant, Tak Kusano, and one Larry Lee, between Portland, Oregon, San Francisco, and Los Angeles and Sacramento. Sergeant Christensen of that department testified that there were at least four informants who gave him information on different occasions, some of them just one time, some of them on more than one occasion. He indicated that he would rather not disclose the identity of those informants. It was brought out that the first informant who talked to the sergeant, who was designated as 'Informant A,' was a reliable informant who had previously furnished information which proved correct and accurate and had resulted in several arrests. Further inquiry along that lien was interrupted by the attorney for the defendants who requested that the prosecution proceed to the information which resulted in the action taken on May 4 when the defendants were arrested. He left the court's inquiry, 'You don't have any quarrel with the reliability of the informants in general?' unanswered, except for his request to proceed with respect to the information which the officer received on the day of the arrests.

The sergeant testified that between 7:30 and 8 p.m. on the evening of May 4, 1969, an informant, designated as 'Informant D,' advised him that of the three suspects, whose names were discussed with the informant, two, but which two the informant did not know, would be on a designated flight from Portland to San Francisco, arriving at a specified time, with an amount of narcotics and dangerous drugs which were to be delivered to San Francisco that evening. The informant stated that he had been asked to either pick them up at the airport, or furnish transportation for someone else who would meet them at the airport. He said he had heard that the suspects were supposed to be bringing 'a shipment of stuff' down from Portland. He was not to be the recipient of the drugs and did not know the quantity that would be bought. The sergeant, on the basis of his knowledge of the activities of the suspects, believed that it would be a large quantity--one pound, two pounds or three pounds. According to the officer the informant refused to furnish transportation for the suspects and was not at the airport that night.

[19 Cal.App.3d 65] 'Informant D' had never furnished any information prior to the time the sergeant received the foregoing telephone call, 1 and

Page 516

the prosecution did not contend that he or she, as the case might be, was an established reliable informant. On cross-examination the officer testified that to the best of his knowledge 'Informant D' was not employed, and more particularly that he was not employed at a hotel to which one of the suspects had admittedly made a telephone call.

The sergeant further testified that prior to May 4, he knew all three suspects and what they looked like, and that he had arrested Shipstead and Kusano on previous occasions. He recognized and identified them in court. He stated that on November 4, 1968, he arrested Shipstead and charged him with five offenses, four apparently relating to violations of the Health and Safety Code, and that he was ultimately convicted of violation of section 11910, possession of a restricted dangerous drug, and two other offenses; that he again arrested Shipstead on January 8, 1969 for two violations of the Health and Safety Code, and for contributing to the delinquency of a minor; and that those charges were thereafter dismissed; that on April 23, 1969 he arrested Shipstead for violation of Penal Code section 496 and for violation of a local ordinance prohibiting possession of a dangerous weapon, and that those charges were dismissed; that he had arrested Shipstead apparently on April 23, 1969, as he was leaving Kusano's apartment; and that 'he had in his possession a slip which indicated the sales of dangerous drugs amounting to twenty-four ounces over the previous three days, and also on this slip was the list of his expenses which included a plane ticket fare from Tak Kusano, to Portland, Oregon, and return, in addition to monies which he had given to Tak.' The defendant objected to the testimony last quoted because that arrest was allegedly illegal. The prosecutor withdrew the question, but it was never determined whether that arrest was illegal, and the sergeant's explanation of his prior knowledge concerning the relationship of Shipstead with Kusano was not stricken.

The officer testified that he had arrested Kusano about 3 a.m. on May 3, 1969 for possession of narcotic or dangerous drug paraphernalia, and possession of a laboratory (sic).

[19 Cal.App.3d 66] Armed with the foregoing information and pictures of Shipstead and Lee, on May 4, 1969, Sergeant Christensen and two other officers from San Francisco went to meet the designated flight at 9 p.m. at the San Francisco Airport in San Mateo County. There they were joined by San Mateo County Deputy Sheriff Franzoia and a second deputy. The officers, all in uniform, took a stand at the top of the movable ramp which ran from the concourse out to the plane. Shipstead disembarked first, followed by Kusano about two feet to his rear and to the left. When they were about 20 or 25 feet away Kusano stopped. Shipstead continued on toward the officers. Christensen observed Kusano quickly bend down until his head appeared to touch the floor of the ramp. Christensen stopped Shipstead and asked him if he could talk to him a minute, and they walked over to the side of the passageway. Meanwhile other officers ran down the ramp and appeared to be struggling with Kusano. According to Deputy Franzoia, Kusano appeared after Shipstead had been requested to step off to one side, and he was identified by the statement of a San Francisco officer; Kusano then with his left hand proceeded to push what appeared to be an airline or car rental company envelope through the bellows of the movable ramp; the officers ran to attempt to stop him, and after a slight struggle took him into custody. Franzoia continued through the ramp and the plane and descended to the ground. There he found an envelope which contained two plastic bags holding a white powder which proved to be 15.5 grams of desoxephedrine.

Franzoia returned with the envelope to where the other officers were holding Shipstead and Kusano, and the two suspects were placed under arrest and taken to the sheriff's office substation. There

Page 517

a pat search of Shipstead revealed a large bulge concealed in his left sock. Officer Christensen removed a bag containing white power which proved to be 29.65 grams of desoxephedrine.

The defendants, who testified in support of the motion to suppress, did not contradict the foregoing testimony concerning the events which transpired. Shipstead stated he observed Sergeant Christensen and continued to walk towards him; that Christensen stopped him and detained him; that he was not placed under arrest but that he was restrained by the presence of the officer. Kusano testified that he did not see Shipstead being arrested, that he saw the officers talking to Shipstead, and that he threw the envelope away because he feared he would be arrested, although he did not know whether or not the officers had a warrant.

The defendant contends that...

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25 practice notes
  • U.S. v. Hall, No. 73-2826
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 31, 1976
    ...of probable cause to search, seize, or arrest may not be predicated on illegally obtained evidence, see, e. g., People v. Shipstead, 19 Cal.App.3d 58, 73-74, 75-76, 96 Cal.Rptr. 513 (1971); and I venture that those courts would declare the instant arrest unlawful because no probable cause e......
  • People v. Cook, Cr. 17900
    • United States
    • United States State Supreme Court (California)
    • March 4, 1975
    ...that its appointment does not result in a denial of effective counsel because of some possible conflict. (People v. Shipstead (1971) 19 Cal.App.3d 58, 79, 96 Cal.Rptr. 513; People v. McGowan (1969) 269 Cal.App.2d 740, 745, 75 Cal.Rptr. 53.) On the other hand, when multiple defendants freely......
  • State v. Metcalf, No. 59871
    • United States
    • United States State Supreme Court of Iowa
    • December 21, 1977
    ...(Alaska); State v. Arce, 107 Ariz. 156, Page 862 483 P.2d 1395; State v. Aikins, 17 Ariz.App. 328, 497 P.2d 835; People v. Shipstead, 19 Cal.App.3d 58, 96 Cal.Rptr. 513; People v. Sotelo, 18 Cal.App.3d 9, 95 Cal.Rptr. 486; People v. Velasquez, 3 Cal.App.3d 776, 83 Cal.Rptr. 916; People v. M......
  • People v. Ingram
    • United States
    • California Court of Appeals
    • December 26, 1978
    ...later charged (possession of heroin), and therefore was not a material witness on the issue of guilt. (See People v. Shipstead (1971) 19 Cal.App.3d 58, 74, 96 Cal.Rptr. 513; People v. Rupar (1966) 244 Cal.App.2d 292, 300, 53 Cal.Rptr. 70; People v. Ortiz (1962) 208 Cal.App.2d 572, 580, 25 C......
  • Request a trial to view additional results
25 cases
  • U.S. v. Hall, No. 73-2826
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 31, 1976
    ...of probable cause to search, seize, or arrest may not be predicated on illegally obtained evidence, see, e. g., People v. Shipstead, 19 Cal.App.3d 58, 73-74, 75-76, 96 Cal.Rptr. 513 (1971); and I venture that those courts would declare the instant arrest unlawful because no probable cause e......
  • People v. Cook, Cr. 17900
    • United States
    • United States State Supreme Court (California)
    • March 4, 1975
    ...that its appointment does not result in a denial of effective counsel because of some possible conflict. (People v. Shipstead (1971) 19 Cal.App.3d 58, 79, 96 Cal.Rptr. 513; People v. McGowan (1969) 269 Cal.App.2d 740, 745, 75 Cal.Rptr. 53.) On the other hand, when multiple defendants freely......
  • State v. Metcalf, No. 59871
    • United States
    • United States State Supreme Court of Iowa
    • December 21, 1977
    ...(Alaska); State v. Arce, 107 Ariz. 156, Page 862 483 P.2d 1395; State v. Aikins, 17 Ariz.App. 328, 497 P.2d 835; People v. Shipstead, 19 Cal.App.3d 58, 96 Cal.Rptr. 513; People v. Sotelo, 18 Cal.App.3d 9, 95 Cal.Rptr. 486; People v. Velasquez, 3 Cal.App.3d 776, 83 Cal.Rptr. 916; People v. M......
  • People v. Ingram
    • United States
    • California Court of Appeals
    • December 26, 1978
    ...later charged (possession of heroin), and therefore was not a material witness on the issue of guilt. (See People v. Shipstead (1971) 19 Cal.App.3d 58, 74, 96 Cal.Rptr. 513; People v. Rupar (1966) 244 Cal.App.2d 292, 300, 53 Cal.Rptr. 70; People v. Ortiz (1962) 208 Cal.App.2d 572, 580, 25 C......
  • Request a trial to view additional results

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