People v. Smith

• Decision Date: 31 August 1976
• Docket Number: Cr. 19170
• Citation: 553 P.2d 557,132 Cal.Rptr. 397,17 Cal.3d 845
• Parties: , 553 P.2d 557 The PEOPLE, Plaintiff and Respondent, v. Gregory Donald SMITH, Defendant and Appellant.
• Court: California Supreme Court

Page 397

132 Cal.Rptr. 397

17 Cal.3d 845, 553 P.2d 557

The PEOPLE, Plaintiff and Respondent, v. Gregory Donald SMITH, Defendant and Appellant.

Cr. 19170.

Supreme Court of California In Bank.

Aug. 31, 1976.

Rehearing Denied Sept. 29, 1976.

Benson Schaffer, Sante Fe Springs, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Russell Iungerich, Shunji Asari, Frederick R. Millar, Jr., and John R. Gorey, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Gregory Donald Smith was convicted by a jury of possession of marijuana (Health & Saf.Code, § 11357) and possession of marijuana for sale (Health & Saf.Code, § 11359). Prior to trial he moved pursuant to Penal Code section 1538.5 to suppress certain evidence, which motion was granted in part and denied in part. He appeals from the judgment of conviction.

Defendant contends that contraband introduced in evidence should have been suppressed as the fruit of an illegal search and seizure. He makes a number of additional contentions regarding trial proceedings. We conclude that a warrant authorizing the search of an automobile and an apartment was invalid and that contraband seized pursuant to the execution of the warrant should have been suppressed. As there is insufficient other evidence to support a finding of defendant's guilt the error was necessarily prejudicial and we reverse the judgment.

At trial, the evidence disclosed that on January 18, 1974, defendant invited Derek Dolson, then 17 years old, to a party at an apartment. Six other persons were present when defendant and Dolson arrived at the location later that evening. Sometime during the course of the evening Dolson noticed defendant with an empty blue suitcase and later that weekend Dolson saw marijuana in the suitcase and elsewhere in the apartment. He also observed defendant and others weighing, packaging and smoking marijuana. Dolson also smoked marijuana, rolled marijuana cigarettes and helped sort bricks of marijuana.

Early Sunday morning a brick of marijuana was sold and Dolson was suspected of taking $20 from the receipts of the sale. He left the apartment and about 4 a.m. got in touch with Police Officer Lord who was investigating a burglary about six blocks from the apartment. Dolson related to Lord that marijuana was being packaged and used in the apartment he had left. In addition he described an automobile in which he stated there had been marijuana and a shopping bag which he claimed contained the wrappings from bricks of marijuana and debris from take-out fried chicken dinners. The bag, he said, had subsequently been placed in a trash receptacle in the parking area of the apartment building.

Lord had never before seen or had any communication with Dolson. The officer drove Dolson to the vicinity of the apartment building where he observed and verified the description of the automobile. He did not approach near enough to determine if contraband was visible within the vehicle. Lord and Dolson then went into the apartment's parking area where a trash receptacle serving the eight-to-fifteen unit building was located. The commercial-sized receptacle was full, but not overflowing, and a shopping bag similar to that described by Dolson was found on top of other trash. The bag was opened and marijuana wrappings, marijuana debris and fried chicken containers were found inside the bag. ¹ Dolson pointed out to the officer a specific spartment as the one occupied by defendant.

The automobile and apartment were placed under surveillance while a warrant to search them was obtained later Sunday morning. The warrant was issued pursuant to an affidavit based on the contents of the shopping bag and the information furnished by Dolson. Defendant and other persons departed in the automobile, with defendant driving, before the warrant was signed and delivered to the officers conducting the surveillance. The car was stopped almost immediately and the occupants were detained about 30 minutes until the warrant was brought to the scene. A thorough search of the automobile was conducted. Over four pounds of marijuana were found in the trunk in a sleeping bag which defendant had brought with him from the apartment. The apartment was then searched and several pounds of marijuana in bulk and a number of marijuana cigarettes were seized.

Defendant's motion to suppress pursuant to Penal Code section 1538.5 was granted as to evidence found in the automobile and denied as to evidence found in the apartment. The trial court ruled that there was no probable cause articulated in the affidavit in support of the warrant for the search of the car and that the officers making the stop did not independently have probable cause to detain the automobile and its occupants. The People do not challenge the propriety of the trial court's ruling as to the contraband seized in the vehicle.

The central issue herein is whether the affidavit in support of the search warrant alleges sufficient facts to establish Dolson's reliability as a citizen-informant or to corroborate the information volunteered by him. The affidavit, to be constitutionally sufficient, must comport with the requirements of the Fourth and Fourteenth Amendments as explained in Aguilar v. Texas (1964) 378 U.S. 108, 114--115, 84 S.Ct. 1509, 12 L.Ed.2d 723. Because we conclude that the affidavit is not legally sufficient, we do not reach the question of whether People v. Krivda (1971) 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262 (vacated and remanded, 409 U.S. 33, 93 S.Ct. 549, 34 L.Ed.2d 520, reiterated (1973) 8 Cal.3d 623, 105 Cal.Rptr. 521, 504 P.2d 457) applies in the instant circumstances to invalidate the seizure of the debris found in the trash receptacle or whether Officer Lord's presence near the trash container itself amounted to an impermissible entry into a constitutionally protected area.

Aguilar v. Texas, supra, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, established the controlling test for the determination of when a magistrate may constitutionally rely on hearsay in an affidavit in support of a search warrant. We have restated the test as follows: '(F)or 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 warring can reasonably conclude that the informant was credible or his information reliable.' (People v. Hamilton (1969) 71 Cal.2d 176, 179--180, 77 Cal.Rptr. 785, 787, 454 P.2d 681, 683; People v. Hill (1974) 12 Cal.3d 731, 760--761, 117 Cal.Rptr. 393, 528 P.2d 1.)

The affidavit, sworn by Officer Lord's superior, contains the hearsay statements of Lord and the informant Dolson. Defendant does not challenge the affidavit for failing to satisfy the first prong of Aguilar, but contends that the second requirement has not been met.

The second prong would be met if Dolson were a citizen-informant or if his information were otherwise corroborated. 'A 'citizen-informant' is a citizen who purports to be the victim of or to have been the witness of a crime who is motivated by good citizenship and acts openly in aid of law enforcement. (Citations.) It is reasonable for police officers to act upon the reports of such an observer of criminal activity. (Citations.) ( ) A 'citizeninformant' is distinguished from a mere informer who gives a tip to law enforcement officers that a person is engaged in the course of criminal conduct. (Citations.) Thus, experienced stool pigeons or persons criminally involved or disposed are not regarded as 'citizen-informants' because they are generally motivated by something other than good citizenship. (Citations.)' (People v. Schulle (1975) 51 Cal.App.3d 809, 814--815, 124 Cal.Rptr. 585, 588.) The designation 'citizen-informant' is just as conclusionary as the designation 'reliable-informant.' In either case the conclusion must be supported by facts stated in the affidavit. (Aguilar v. Texas, supra, 378 U.S. 108, 114--115, 84 S.Ct. 1509, 12 L.Ed.2d 723; People v. Hill, supra, 12 Cal.3d 731, 760--761, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Hamilton, supra, 71 Cal.2d 176, 179--180, 77 Cal.Rptr. 785, 454 P.2d 681.)

The question of Dolson's status as a citizen-informant, like all other matters relative to probable cause for issuance of the warrant, was presented to the magistrate for determination solely on the affidavit and attachments thereto. An attachment entitled 'Observations of Affiant' recites Dolson's viewing of the contraband and activities in the apartment, and relates the discovery of the shopping bag and its contents. ² All that appears bearing on the question of Dolson's status as a citizen-informant are statements that he approached and identified himself to Officer Lord early one morning after having spent 12 hours at the apartment in question; that he had had prior contact with marijuana and was familiar with its appearance and odor; that while in the apartment he had observed seven or eight 'kilo' bricks of marijuana being used, refined and packaged for sale by five or six persons; that he also observed quantities of 'reds' (seconal) and 'acid' (L.S.D.) in the apartment; that the persons in the apartment were under the influence of marijuana and other drugs; and that he was on parole and wished to remain anonymous for reasons of personal safety. A second attachment entitled 'Reliable Informant' recites again Dolson's parole status and concern for his personal safety, and concludes with the affiant's opinion that the...