People v. Superior Court (Bingham)

• Decision Date: 03 April 1979
• Citation: 91 Cal.App.3d 463,154 Cal.Rptr. 157
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; Ward Allen BINGHAM, Real Party in Interest. Civ. 45392.

Page 157

154 Cal.Rptr. 157

91 Cal.App.3d 463

PEOPLE of the State of California, Petitioner, v.The SUPERIOR COURT OF SANTA CLARA COUNTY, RespondentWardAllen BINGHAM, Real Party in Interest.

Civ. 45392.

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

April 3, 1979.

Hearing Denied May 30, 1979.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Richard G. Tullis, Deputy Attys.Gen., San Francisco, for petitioner.

Steven R. Manchester, San Jose, for real party in interest.

ELKINGTON, Associate Justice.

A magistrate issued a warrant authorizing search of the premises of the real party in interest of these proceedings, Ward Allen Bingham, for specified, insured, personal property claimed by him to have been destroyed by fire.Upon execution of the search warrant the property was found in the possession of Bingham, undamaged.He was charged with several insurance-related felonies in the superior court.That court granted his Penal Code section 1538.5 motion to suppress evidence of the subject property.The court, concluding that the search warrant was grounded on "hearsay upon hearsay" had held, for that reason And as a matter of law, that the fire marshal's affidavit did not establish probable cause according to Fourth Amendment requirements.

Upon the People's petition we issued an alternative writ of mandate for the purpose of inquiring into the validity of the superior court's ruling.

The affidavit before the magistrate was that of Deputy Fire Marshal John R. Stafford of Santa Clara County.It related the following.

The affiant had earned an academic degree in "fire science" and in the course of his duties as fire marshal had investigated the origin of more than 350 fires.He had investigated a fire of a suspicious nature which occurred June 30, 1976, on the premises occupied by Bingham Aviation & Electronics, Inc., which was owned, principally or entirely, by Bingham.During the course of his investigation he learned that, about two weeks before the fire, Bingham had purchased a $250,000 fire insurance policy for coverage of the personal property of his business.He described at length and in detail, his initial 13-day investigation as a result of which (we think reasonably)he formed an "opinion that the fire . . . was intentionally set by human hands."

Bingham made claim under the insurance policy for the value of personal property purportedly destroyed in the fire, in the amount of $168,373.90.Among the items claimed to have been so destroyed were three valuable devices described as a "vello-bind system," a "blue ray machine," and a "faces (or phases) 3 editing system" of the claimed value of $15,000.Referring to the "faces 3 editing system," in a sworn statement accompanying his claim (which was incorporated in the affidavit), Bingham had declared that it was built in part by one John Mason, an engineer, and the rest of it "was handled through a firm called Johnston Associates. . . .They went out and acquired six engineers to do the job."

Also investigating the fire in collaboration with the fire marshal was a Mr. McPherson of the Insurance Crime Prevention Institute.That private corporation, in cooperation with law enforcement officers, "investigates for its members (including Bingham's insurance carrier) suspicious insurance claims."McPherson had reported to the fire marshal, the following information.

McPherson had discussed the case with the engineer, John Mason, who according to Bingham had initially worked on the "faces 3 editing system."Mason told McPherson that he had seen the same device in Bingham's possession after the fire.Additionally, McPherson informed the fire marshal of the following: He"learned from Mr. Mason that on or about the month of February, 1977(eight months after the fire), Mr. Mason personally observed Mr. Ward Bingham remove the serial numbers from a velo-bind (Sic ) system.Mr. Mason said that he observed this occur at 374 West Washington, Sunnyvale.Mr. Mason also told Mr. McPherson that on December 29, 1977, he observed in the place where Mr. Ward Bingham now works, Industrial Telephone System Company, the faces 3 editing system that he constructed for Mr. Bingham, the blue ray machine and the velo-bind, . . . Mr. Mason personally knows that the faces 3 editing system that he observed at ITS was the same faces 3 editing system that Johnston Associates . . . also partially constructed."McPherson had also interviewed three of the six Johnston Associates engineers mentioned by Bingham.They told him that the faces 3 editing system was being worked on in the Johnston Associates premises at the time of the fire, and that Bingham had "personally picked the Faces 3 editing system (upon which they had worked) up from Johnston Associates approximately four months after the fire at Bingham Aviation and Electronics."

It will be seen that the information imparted by the four engineers to McPherson was the primary hearsay of the fire marshal's affidavit.And the relaying of that information by McPherson to the fire marshal affiant constituted the "hearsay upon hearsay" found by the superior court to have invalidated the search warrant.

We have concluded that such hearsay upon hearsay does Not necessarily, or as a matter of law, impose a Fourth Amendment taint upon a search warrant based, in whole or in part, upon it.The error of this case was that of the superior court, not of the magistrate whose determination that the fire marshal's affidavit was reasonably supportive of the search warrant, we affirm.Our reasons follow.

Probable cause is, of course, reasonable cause." 'There is no exact formula for the determination of reasonableness.Each case must be decided on its own facts and circumstances . . . .' "(People v. Superior Court(Kiefer)(1970)3 Cal.3d 807, 827, 91 Cal.Rptr. 729, 742, 478 P.2d 449, 462;People v. Ingle(1960)53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577, cert. den., 364 U.S. 841, 81 S.Ct. 79, 5 L.Ed.2d 65.)In respect of affidavits for search warrants, whether they reasonably justify a search "must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. . . .Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area."(United States v. Ventresca(1965)380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684;People v. Mesa(1975)14 Cal.3d 466, 469, 121 Cal.Rptr. 473, 535 P.2d 337.)

The guiding authority on the requirements of a search warrant's probable cause is found in Aguilar v. Texas(1964)378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723andSpinelli v. United States(1969)393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.California's courts have stated the rule of those cases in this manner: "(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."(Price v. Superior Court(1970)1 Cal.3d 836, 840, 83 Cal.Rptr. 369, 371, 463 P.2d 721, 723;People v. Hamilton(1969)71 Cal.2d 176, 179-180, 77 Cal.Rptr. 785, 454 P.2d 681.)

In the application of these criteria a magistrate will first determine from the affidavit whether the informant himself may reasonably be deemed reliable.If not, his information will not, at least alone, support a search warrant.When, and if, from the affidavit the informant is reasonably found reliable, the magistrate will then look to the information itself.If it is stated as a matter of the informant's personal knowledge, "in language that is factual rather than conclusionary," it may reasonably be accepted by the magistrate as supportive of the requested search warrant.

In passing upon such a determination of the magistrate, a reviewing court(here the superior court and this court) will be bound by this well-known rule that: "(T)he warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony."(Skelton v. Superior Court(1969)1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 617, 460 P.2d 485, 489;emphasis added.)

The law has long recognized a rational and practical distinction between informants upon whose information search warrants are sought.Roughly they may be classed on the one hand as "citizen-informants" acting openly in aid of law enforcement and, on the other, criminally involved or disposed "police-informers," or "mere informers," or "stool pigeons," who for compensation, or revenge, or other reasons of personal advantage, surreptitiously give tips to law enforcement agents about real or imagined criminal activity.

"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. . . .It is reasonable for police officers to act upon the reports of such an observer of criminal activity. . . .(P) A 'citizen-informant' 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. . . .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. . . .Accordingly, in view of this distinction the courts have recognized that the tests of reliability...