People v. Swayze

• Decision Date: 20 September 1963
• Docket Number: Cr. 4237
• Citation: 34 Cal.Rptr. 5,220 Cal.App.2d 476
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey Lee SWAYZE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 5

34 Cal.Rptr. 5

220 Cal.App.2d 476

PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey Lee SWAYZE, Defendant and Appellant.

Cr. 4237.

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

Sept. 20, 1963.

Robert N. Sanford, Jr., Richmond, for appellant (under appointment of District Court of Appeal).

Stanley Mosk, Atty. Gen. of State of California, Albert W. Harris, Jr., Eric Collins, Deputies Atty. Gen., San Francisco, for respondent.

MOLINARI, Justice.

On this appeal from a judgment after conviction by a jury for violation of section 11530 of the Health and Safety Code (possession of marijuana), defendant raises a number of questions. In the discussion of each question we shall allude to the particular facts pertinent thereto. Preliminarily, however, we set out the following basic facts.

On January 16, 1962, one Clifford Chambers gave information to Officer Troy Stewart of the Concord Police Department that he just purchased some marijuana from a person by the name of Harvey Lee Swayze. Chambers gave a description of Swayze, the clothes he was wearing and the automobile he was driving. The description of the automobile was that it was a white Thunderbird, having the liceuse number UDX 872 or UDX 782. The information also included a statement that a female would probably be observed riding with Swayze. This information was transmitted on the day it was received, through police channels, to Officer D. L. Bedsworth of the Concord Police Department, who, while partrolling an area in the City of Concord, shortly thereafter, observed a Thunderbird automobile fitting the aforementioned description in a service station. The said vehicle was occupied by two persons, a man and a woman. Bedsworth radioed for police assistance. Upon the arrival of Officer Christenson, the two passengers were asked to step out of the car. Thereafter, within an interval of one to five minutes, three other police officers (one of whom was Stewart) arrived on the scene. The automobile was thereupon searched by Officers Tamborski and Stewart. Tamborski found a plastic bag containing four brown paper bags under the seat. These bags contained a vegetable substance. The two occupants of the car were identified and ascertained to be defendant, Harvey Lee Swayze, and his sister. Defendant was placed under arrest and taken to the police station, where certain debris was removed from his shirt pocket. The aforementioned substance found in the paper bags was later chemically analyzed and found to consist of 292 grams of marijuana. A similar analysis of said debris likewise disclosed traces of marijuana.

The said search and arrest were both efected without a warrant. A motion by defendant to suppress evidence on the ground that it was illegally obtained was made prior to trial and the same was denied. Defendant was thereafter tried by a jury which returned a verdict finding defendant guilty of the crime of possessing marijuana.

Was Chambers a Reliable Informant?

Defendant contends that Chambers was not a reliable informant and that therefore the search and arrest could not be based on information secured from such informant. The rule asserted is well established and is stated as follows: In the absence of a pressing emergency, a search or arrest without a warrant may not be based on information secured from an informant not known to the arresting officers to be reliable. (Willson v. Superior Court, 46 Cal.2d 291, 294-295, 294 P.2d 36; People v. Dewson, 150 Cal.App.2d 119, 127, 310 P.2d 162; People v. Bates, 163 Cal.App.2d 847, 851, 330 P.2d 102; People v. Cedeno, 218 A.C.A. 229, 236, 32 Cal.Rptr. 246.) A valid search or arrest, however, may be made solely by reason of information conveyed by a single reliable informant. (People v. Prewitt, 52 Cal.2d 330, 337, 341 P.2d 1; Willson v. Superior Court, supra, 46 Cal.2d pp. 294-295, 294 P.2d p. 38; People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535; People v. Cedeno, supra, 218 A.C.A. p. 235, 32 Cal.Rptr. p. 250; People v. Roland, 183 Cal.App.2d 780, 784, 6 Cal.Rptr. 895; People v. Boyd, 162 Cal.App.2d 332, 334, 327 P.2d 913.) To justify reliance on the information received the informer must be known to the officer to be reliable, and must be a person whom the officer in good faith believes to be trustworthy. (People v. Bates, supra, 163 Cal.App.2d p. 851, 330 P.2d pp. 104-105; People v. Williams, 196 Cal.App.2d 845, 850, 16 Cal.Rptr. 842; People v. Cedeno, supra, 218 A.C.A. p. 235, 32 Cal.Rptr. p. 250.) The rule of justification for search or arrest without a warrant is stated thusly in Bates: 'In most cases the informant must not only be known to the officer, but the officer must have had sufficient dealings with the informant to give him reasonable cause to believe that the informant is reliable and that the information given by him is truthful. It is only in the case of a pressing emergency that an arrest or search without warrants may be justified based upon information secured from an anonymous informant, or from an informant not known to the officer to be reliable. [Citation.] It is also well settled that in the absence of a pressing emergency, the officer may not properly arrest or search a person based upon information gained from an informant not known to the arresting officer, or, if known, not known from past experience to have been a source of tested reliable information.' (P. 851 of 163 Cal.App.2d, pp. 104-105 of 330 P.2d.) The reliability of the informant may be shown not only by past experience with the informant, but also may be substantiated by the proven accuracy of the information given by the informant and which the officers from other sources know is accurate. This substantiation may be supplied by substantial corroborative facts known or discovered. (People v. Bates, supra, 163 Cal.App.2d p. 852, 330 P.2d p. 105; Willson v. Superior Court, supra, 46 Cal.2d p. 295, 294 P.2d pp. 38-39; People v. Holguin, 145 Cal.App.2d 520, 523, 302 P.2d 635; People v. Maddox, 46 Cal.2d 301, 304, 294 P.2d 6; People v. Diggs, 161 Cal.App.2d 167, 171, 326 P.2d 194; People v. Cedeno, supra, 218 A.C.A. p. 236, 32 Cal.Rptr. p. 251.) Accordingly, information which in the past has led the police to valid suspects has been regarded as tested reliable information. (People v. Dewson, supra, 150 Cal.App.2d p. 128, 310 P.2d p. 168; People v. Roland, supra, 183 Cal.App.2d p. 784, 6 Cal.Rptr. p. 898; People v. Cedeno, supra, 218 A.C.A. p. 236, 32 Cal.Rptr. p. 251.)

'A search without a warrant is proper where it is incident to a lawful arrest based on reasonable cause to believe that the accused has committed a felony. Such a search is not rendered unlawful merely because it precedes rather than follows the arrest. [Citations.] Reasonable or probable cause is shown if a man of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty.' (People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 496, 366 P.2d 823, 824.) As said in People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577: 'There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances [citations]--and on the total atmosphere of the case.' (P. 412 of 53 Cal.2d, p. 17 of 2 Cal.Rptr., p. 580 of 348 P.2d.) In making this determination, the applicable 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 police officer seek further information before making the arrest and conducting the search. (People v. Diggs, supra, 161 Cal.App.2d p. 171, 326 P.2d p. 196.) When the legality of the arrest or of a search and seizure is properly and timely raised, the defendant makes a prima facie case by establishing that an arrest or search without a warrant has been made. The burden then rests upon the prosecution to show that the officers had reasonable cause of the arrest or search. (People v. Haven, 59 A.C. 738, 742, 31 Cal.Rptr. 47, 381 P.2d 927; Tompkins v. Superior Court, 59 A.C. 75, 77, 27 Cal.Rptr. 889, 378 P.2d 102; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23; People v. Cedeno, supra, 218 A.C.A. pp. 236-237, 32 Cal.Rptr. pp. 251, 252.) The determination of the legality of the arrest or search is, however, a question involving the admissibility of evidence. Accordingly, it is a question of law for the trial court to be determined outside the presence of the jury. (People v. Gorg, 45 Cal.2d 776, 780-781, 291 P.2d 469; People v. Lawrence, 149 Cal.App.2d 435, 446-447, 308 P.2d 821; People v. Allen, 142 Cal.App.2d 267, 281, 298 P.2d 714.) When the question of the reasonableness or legality of an arrest or search or seizure becomes an issue at the trial, the proper procedure by which to determine such question is by way of voir dire examination. (People v. Gorg, supra, 45 Cal.2d pp. 780-781, 291 P.2d pp. 471-472; and see People v. Berger, 44 Cal.2d 459, 463-464, 282 P.2d 509.) When such determination is made by the trial court the only way it may be obviated is by a showing that there was no substantial evidence in support of it. (People v. Allen, supra, 142 Cal.App.2d p. 281, 298 P.2d p. 723; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Camargo, 130 Cal.App.2d 543, 549, 279 P.2d 194.)

In the case at bench the trial court followed the voir dire examination procedure outside the presence of the jury. This examination consisted of the testimony of Officer Stewart who testified that Chambers was known to him; that Chambers had given him information on previous occasions; that in the early part of 1960 he was told by Chambers that one Pedrico was taking narcotics intravenously; that Pedrico was subsequently arrested in March 1960 and later convicted of narcotic addiction; that Chambers had also given Stewart information that one Cecil Schaefer...