People v. Superior Court

• Decision Date: 24 August 1972
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SANTA CLARA, Respondent. Raymond MARCIL, Real Party in Interest. Civ. 30840.

Page 874

103 Cal.Rptr. 874

27 Cal.App.3d 404

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SANTA CLARA, Respondent Raymond MARCIL, Real Party in Interest.

Civ. 30840.

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

Aug. 24, 1972.

Hearing Denied Oct. 18, 1972.

Louis P. Bergna, Dist. Atty., County of Santa Clara, State of California, Ulysses C. Beasley, Deputy Dist. Atty., for petitioner.

Mannina & Tambling, San Jose, for respondent.

SIMS, Associate Justice.

The People of the State of California petitioned for a writ of mandate directed to respondent court to set aside its order suppressing certain evidence pursuant to Penal Code section 1538.5. An alternative writ of mandate was issued by this court directing respondent to show cause why it should not be compelled to set aside its order. The People contend that all eight items set forth in an inventory of property taken pursuant to a search warrant were properly seized under that warrant. In defense of the ruling of the trial court, the real party in interest asserts that the five items suppressed ¹, in response to his motion to suppress all of the evidence received, were illegally seized because the affidavit in support of the search warrant did not furnish probable cause for the insertion in the search warrant of provisions which are relied upon to justify the search for and seizure of such items, and because that search and seizure cannot be upheld as ancillary to any search properly authorized by the warrant.

It is concluded that the magistrate's power to draw proper inferences from the facts before him warrants the conclusion that there is probable cause to believe that a person to whom almost four pounds of contraband is shipped from abroad may have other contraband in his possession, and that the shipment itself gave probable cause to believe that the consignee would have in his possession correspondence and other evidence which would reflect the part played by the consignor and the consignee in the illegal transaction. The discovery of the other contraband may therefore be also warranted as part of a proper search for such evidence, even though the warrant was otherwise deemed overbroad. The ruling of the trial court also raises questions of conflict between federal ans state interpretation of the Fourth Amendment which the upholding of the search renders it unnecessary to pursue. ² It also suggests that the principle of Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 restricts the scope of what may be particularly described in a search warrant, or, alternatively, restricts the scope of the search for that which is properly particularly described. Chimel, however, suggests that when the accused is found in possession of contraband and arrested a further search may be warranted 'under the authority of a search warrant.' (395 U.S. at p. 762, 89 S.Ct. at p. 2040, 23 L.Ed.2d 685.)

A United States magistrate issued a search warrant on July 16, 1971, upon the affidavit of Charles L. Deatrick, a special agent of the United States Customs, in which the affiant stated that he had reason to believe that certain property, which is 'the fruits and instrumentalities of a violation of 21 U.S.C. 952,' . . . 'will be concealed' in a 'single story, single family residence, being of stucco construction, green in color, having a detached garage, lying on the west side of Raymond Avenue between the intersections of Scott Street and Basile Avenue, in the County of Santa Clara, State of California, including all outbuildings and appurtenances.' The said property was described as follows: '1. One mile parcel addressed to Mr. Raymond Marcil, 523 Raymond St., San Jose, California, 95128 and containing approximately three pounds fourteen ounces of marihuana. 2. Other hashish, marihuana, narcotics or narcotic paraphenalia (sic). 3. Correspondence relating to smuggling hashish, marihuana or narcotics. 4. Or the means and instruments used in violation of 21 U.S.C. § 952.' ³

The said affidavit stated, further, that a customs employee, Juan Guerrero, discovered a mail parcel arriving from outside the continental United States and containing approximately three pounds fourteen ounces of a substance resembling marijuana; that Guerrero transmitted this information to affiant; that the parcel was addressed to Mr. Raymond Marcil, 523 Raymond Ave., San Jose, California, 95128, and 'bore the return address of Jeff Marcil, TM 96 Drac Engineers, APO SF 96215'; that a sample of the substance taken from the parcel was chemically analyzed to be marijuana by David Chia, the customs chemist who submitted a laboratory report; that the parcel was forwarded to the postal authorities for delivery to the address 'under controlled conditions'; and that the search warrant would not be executed until confirmation was received that the parcel had been delivered to the designated address.

The affidavit also contained the following statement: 'It had been Customs experience and my personal experience in a number of similar investigations in which I have participated that additional types and quantities of narcotics, narcotics paraphenalia (sic) and correspondence are often found in or on the premises where controlled deliveries of smuggled marihuana or narcotics have been made.'

The search warrant issued pursuant to said affidavit described the premises to be searched and the property to be seized in language identical to that contained in the affidavit.

On the same day that the search warrant was issued, at about 4:15 p.m., Deatrick and three deputy sheriffs of Santa Clara County went to the premises at 523 Raymond Avenue in San Jose together with a postal carrier. The carrier delivered the aforementioned parcel to Raymond Marcil, real party in interest. Subsequently, at about 5:40 p.m., the officers went to said premises. Upon being admitted into the residence they served Marcil with a copy of the search warrant. Marcil read it and stated: 'I know what you are here for, I know what you are looking for . . . I will show you where it is in the closet.' Deputy Perovich then followed Marcil into a bedroom where he observed on the floor of a closet the parcel that had been previously delivered to Marcil by the postal carrier. The package had been opened. It contained approximately one pound of loose marijuana.

Marcil was then placed under arrest and taken to the kitchen area where he was advised of his rights. Perovich advised Marcil that he was going to search the bedroom. The officers then proceeded to search the bedroom where deputy Breen found a wooden box near the headstand of the bed. The headstand was approximately 5 to 10 feet from the bedroom closet. Breen opened the box. It contained four plastic bags each containing a substance identified as marijuana and some orange pills. The officers also found $160 in the room and certain letters addressed to Marcil by his brother who was in the Army in Vietnam.

The return to the search warrant described the items seized in the search as follows: 1. Piece of broken Buddha. 2. Mail parcel described on warrant, containing marihuana. 3. (9) letters. 4. Money order receipts & (1) shipping receipt. 5. Plastic bag containing clay & vegetable matter. 6. Small wooden box with 4 baggies, cigarette hand roller, package of zig zag papers, box of prophylactics. 7. Green box containing (3) package of orange tablets. 8. Money--(2) $50.00 & (3) $20.00 = total $160.00.'

Real party's motion to suppress pursuant to section 1538.5 was submitted on the testimony adduced and exhibits introduced in evidence at the preliminary examination in the course of which real party's counsel stipulated that the substance contained in the mail parcel was marijuana and that the orange pills found in the wooden box were LSD. Although there was no stipulation as to the nature of the substance found in the plastic bags, deputy Perovich testified without objection that the substance in each of the bags was marijuana. The motion to suppress was denied by respondent court as to items numbered 1, 2 and 3 in the return to the search warrant and was granted as to items numbered 4, 5, 6, 7 and 8 in said return.

I

In United States v. Ventresca (1964) 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 the prevailing opinion states: '. . . the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

'This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. (Citation.) Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common-sense, manner. Although in a particular case it may not be easy to determine...