People v. Terrones

• Citation: 260 Cal.Rptr. 355,212 Cal.App.3d 139
• Decision Date: 18 July 1989
• Docket Number: No. B037713,B037713
• Parties: The PEOPLE, Plaintiff and Appellant, v. Frank Jose TERRONES, Defendant and Respondent.
• Court: California Court of Appeals

Page 355

260 Cal.Rptr. 355

212 Cal.App.3d 139

The PEOPLE, Plaintiff and Appellant, v. Frank Jose TERRONES, Defendant and Respondent.

No. B037713.

Court of Appeal, Second District, Division 7, California.

July 18, 1989.

Review Denied Nov. 16, 1989.

Ira Reiner, Dist. Atty., Maurice H. Oppenheim, Eugene D. Tavris, and Donald J. Kaplan, Deputy Dist. Attys., for plaintiff and appellant.

Mark Borden, Long Beach, for defendant and respondent.

LILLIE, Presiding Justice.

Pursuant to Penal Code section 1238, subdivision (a)(7), the People appeal from order dismissing the within cause after the superior court granted defendant's pretrial motion to quash a search warrant and suppress evidence. (Pen.Code, § 1538.5.) The return to the residence for defendant's search warrant indicates that police seized, inter alia, 34 grams of cocaine. Subsequently, defendant was charged in an information with possession for sale of cocaine (Health & Saf.Code, § 11351), and possession for sale of more than 28.5 grams of cocaine or 57 grams or more of a substance containing cocaine (Pen.Code, § 1203.073, subd. (b)(1)).

The People contend (1) the trial court erred in granting the motion to quash the warrant and suppress evidence because there was sufficient probable cause to justify issuance of the warrant and (2) assuming there was no probable cause to issue the warrant, the good faith exception to the Fourth Amendment exclusionary rule applies.

FACTS

A. Search Warrant

On December 18, 1987, a search warrant was issued by a magistrate upon an affidavit of Officer Mark Scott, a narcotics investigator. The warrant authorized the search of defendant's residence, car, and person for, inter alia, cocaine and narcotic paraphernalia. On the day it was issued, the warrant was executed by Officer Scott.

Officer Scott's affidavit set forth the following: That he has been a police officer for the City of Whittier for over seven years, and is currently assigned as a narcotics investigator; he has participated in the arrest of numerous persons for possession and sale of narcotics and has testified as an expert in the field of narcotics on numerous occasions; in the first week of November 1987 he was contacted by a confidential citizen informant (CI # 1), who informed him that there is constant traffic to the residence at 8318 California Avenue, vehicles pull up to the residence and persons get out and stay for five minutes at a time, on some occasions Frank Terrones will walk over to a yellow Chevrolet Camaro parked in the driveway and remove a cap from the hub of the front wheel of the car and he (CI # 1) has observed Terrones take something out and put the cap back on; during the second week of November, CI # 1 again contacted Scott and told him that he (CI # 1) had seen a man at 8318 California Avenue remove the hubcap from a small red and white pickup truck and place something into it.

Officer Scott further asserted that during the first week of November 1987, he spoke with a second confidential informant (CI # 2), who told him that he (CI # 2) had been regularly purchasing cocaine from a person known as Frank T. at 8318 California Avenue; CI # 2 had seen large amounts of cocaine at the residence, had used the cocaine purchased from Frank T., and knew it was cocaine based on the symptoms experienced and recognized from prior use of cocaine.

The affidavit continued that during the second week of December 1987, Officer Scott was contacted by a third confidential citizen informant (CI # 3) who told him that he (CI # 3) had seen a man leave the front door at 8318 California Avenue and walk down the driveway carrying two clear plastic bags containing a white powdery substance; when the man saw him (CI # 3), the man immediately tucked his hands beneath his armpits, hiding the two plastic bags, and he (CI # 3) lives in the area and has seen constant traffic to the residence at 8318 California Avenue, people staying at the residence for short periods of time.

Officer Scott's affidavit concluded that Deputy Nunez of the Los Angeles County Sheriff's Department--Norwalk Station told him that he (Nunez) had a confidential informant (CI # 4) who had been at the residence at 8318 California Avenue within the past five days, and that CI # 4 had purchased cocaine from Frank Terrones at the residence and had used the cocaine

after purchasing it. Based on the above, as well as his training and [212 Cal.App.3d 145] experience, Officer Scott was of the opinion that cocaine could be found at defendant's residence.

B. Motion to Quash

Prior to the preliminary hearing in the municipal court, defendant moved to quash the warrant pursuant to Penal Code section 1538.5 on the ground that the face of the warrant was insufficient to establish probable cause because there were no foundational facts to show reliability or to support the conclusions in the affidavits that two of the informants were citizen informants, thus relegating them to the status of anonymous or untested informants, whose information requires corroboration and who cannot corroborate each other. The magistrate denied the motion, stating that it "will view the 'citizen informant' as one who is known to the police department and which rises above the level of a paid informant and anonymous informant." After the preliminary hearing, defendant was held to answer to the charge of possession for sale of cocaine.

In the superior court defendant renewed his motion to quash, making the same argument as in the first motion. ¹ The superior court concluded that the search warrant affidavit was insufficient to demonstrate probable cause because the conclusory phrase "confidential citizen informant" was not substantiated by any foundational facts to enable the magistrate to draw that conclusion. The court further found that the officer was not acting in good faith, even though Officer Scott testified at the hearing that prior to executing the affidavit to the search warrant he had met the two citizen informants face to face, had been to their homes, and knew their names and addresses. ² In finding that the officer did not act in good faith, the court relied upon United States v. Fuccillo (1st Cir.1987) 808 F.2d 173, and stated the officer was "reckless in not including in the affidavit information which was known or easily accessible to [him]. The [officer] here did ... not take every step that could reasonably be expected of [him]. So I'm going to suppress the evidence."

After the court granted the motion to quash and suppress evidence, the People stated they were unable to proceed. Defense counsel moved to dismiss; the court granted the motion.

I PROBABLE CAUSE FOR ISSUANCE OF SEARCH WARRANT

California Constitution article I, section 28, subdivision (d) (Proposition 8), requires us to apply federal constitutional law to determine whether evidence should be excluded for offenses committed after June 9, 1982. (People v. Long (1987) 189 Cal.App.3d 77, 83, 234 Cal.Rptr. 271.)

The standard by which a magistrate must determine whether an affidavit is sufficient to establish probable cause for issuance of a search warrant is explained in Illinois v. Gates (1983) 462 U.S. 213, 238-239, 103 S.Ct. 2317, 2332-2333, 76 L.Ed.2d 527, 548: "The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis This test was adopted "so that, for example, an informant's clear basis of knowledge could be balanced against, rather than automatically overruled by, that informant's lack of a 'track record' of reliability." (United States v. Reivich (8th Cir.1986) 793 F.2d 957, 959.) ³

                of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.  And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed."   While an informant's veracity, reliability, and basis of knowledge are all highly relevant in determining the value of his report, these elements should not be understood as entirely separate and independent requirements to be rigidly exacted in every case, but understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question of whether there is probable cause to believe that contraband or evidence is located in a particular place.  (Id., at p. 230, 103 S.Ct. at p. 2328, 76 L.Ed.2d at p. 543.)
                

"An informant's veracity or trustworthiness may be established in a number of ways. If the informant has provided accurate information on past occasions, he may be presumed trustworthy on subsequent occasions. [Citation.] ... Veracity also may be established through admissions against penal interest. [Citations.] Finally, an informant's reliability may be demonstrated through independent police corroboration of the information provided." (United States v. Angulo-Lopez (9th Cir.1986) 791 F.2d 1394, 1397.) The fact that two apparently unassociated persons make the same assertion increases the probability that it is true; the mutually-supporting nature of two tips is an important ingredient in the "probable-cause mix." (United States v. Laws (D.C.Cir.1986) 808 F.2d 92, 103; see also U.S. v. Yarbrough (9th Cir.1988) 852 F.2d 1522, 1533 [interlocking tips from different confidential informants enhance the credibility of each].)

II AFFIDAVIT PROVIDED SUBSTANTIAL BASIS FOR PROBABLE CAUSE DETERMINATION

Apparently relying on People v. Kershaw (1983) 147 Cal.App.3d 750, 195 Cal.Rptr. 311, the trial court noted that the affidavit did not set forth the facts supporting the officer's characterization of two of the informants as citizen informants, so the presumption of reliability that attaches to true citizen informants did not apply. (Id., at p. 755, 195 Cal.Rptr. 311.) The...