People v. Tillman

• Decision Date: 16 November 1965
• Docket Number: Cr. 5027
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip G. TILLMAN, Defendant and Appellant.

Page 614

47 Cal.Rptr. 614

238 Cal.App.2d 134

PEOPLE of the State of California, Plaintiff and Respondent, v. Phillip G. TILLMAN, Defendant and Appellant.

Cr. 5027.

District Court of Appeal, First District, Division 2, California.

Nov. 16, 1965.

Rehearing Denied Dec. 16, 1965.

Hearing Denied Feb. 2, 1966.

Joseph S. Lawry, Palo Alto, for appellant.

Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, Jackson L. Smith, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Justice.

On this appeal from a judgment of conviction rendered on a jury verdict finding him guilty of possession of narcotics (Health & Saf.Code, § 11500), defendant, Phillip G. Tillman, asserts that the following errors require a reversal of the judgment: (1) the insufficiency of the showing of probable cause in the affidavit upon which the search warrant was based; (2) lack of reasonable or probable cause for arrest in the absence of a valid search warrant; and (3) denial of his constitutional right to the effective aid of counsel.

Since no contentions are raised concerning the sufficiency of the evidence, a brief summary of the pertinent facts will suffice. About 11:15 p. m. on July 23, 1964, Officer Carreker of the narcotics detail of the Oakland police saw defendant, whom he knew, driving in his 1956 Buick in the vicinity of 7th Street. Carreker, knowing that his superior, Sgt. Hilliard, the supervisor of the narcotics detail, had a search warrant for defendant, made radio contact with Hilliard, who indicated that he had the warrant in his possession and that defendant should be stopped at the most convenient spot.

Carreker and his companion, Officer Alves, both in plain clothes and in their unmarked police car, followed defendant until he parked near his home in the vicinity of 8th and Chestnut Streets. As Carreker approached the Buick, defendant was in the driver's seat with one foot on the curb and the door open. After Carreker informed defendant that he was a police officer and had a search warrant and asked him to step out, defendant turned his back to the officer and put his closed right hand over the passenger seat of the car. Carreker leaned over, grabbed both of defendant's hands and handcuffed and pat-searched him.

Just then, Sgt. Hilliard arrived with the search warrant and placed a copy of it in defendant's pocket. Carreker and Alves then searched defendant and found a blue balloon and a loose leaf notebook, but left these items on defendant. Later when defendant was strip-searched at the vice control office, the officers again found the notebook but not the balloon. When the officers returned to the Buick, they found two paper bindles bound with a blue rubber band on the floor board at the edge of the driver's seat. Both bindles contained heroin and were made of paper similar to that in defendant's notebook. It is not necessary to relate defendant's contradictory version of the arrest and search to discuss the purely legal contentions raised.

The affidavit upon which the search warrant was issued recites that on or about July 22, 1964, affiant was notified by a reliable confidential informant that said informant 'has been purchasing' $10 papers of heroin and $25 balloons of heroin from the defendant at various locations in Oakland, the last purchase being a $10 paper on the corner of 16th and Market Streets; that the purchases were made both in the day and nighttime; that the informant had previously given accurate information to affiant concerning narcotic traffic in Oakland which had resulted in three arrests and convictions of narcotics offenders. It stated that contraband narcotics are easily disposed of and requested a warrant serviceable on defendant either day or night. The affidavit was sworn to on July 23, 1964, and the warrant issued and served the same day.

The information related in the affidavit constituted the commission of a felony, i. e., the sale of narcotics. We explore then whether the facts that the affidavit was based on hearsay and failed to specify the precise time of the alleged purchases invalidated the warrant.

The question of the sufficiency of the affidavit on its face is one of law (Dunn v. Municipal Court, 220 Cal.App.2d 858, 867, 34 Cal.Rptr. 251) and defendant is not precluded from raising this issue on appeal because of his failure to attack the truth of the statements contained therein under the remedies afforded by sections 1539 and 1540 of the Penal Code (People v. Govea, 235 A.C.A. 347, 359, fn. 14, 45 Cal.Rptr. 253; Dunn v. Municipal Court, supra; People v. Perez, 189 Cal.App.2d 526, 531-532, 11 Cal.Rptr. 456).

The Fourth Amendment of the United States Constitution, which has been incorporated in the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) provides in part that: '* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.' Similar provisions are laid down in the Constitution and Penal Code of this state (Cal.Const., art. I, § 19; Pen.Code, §§ 1523, 1525). Federal standards must be applied by the state courts in determining the sufficiency of the affidavit upon which a search warrant can issue (Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed. 1503; People v. Barthel, 231 Cal.App.2d 827, 830, 42 Cal.Rptr. 290). Before the question of probable cause can be resolved and a search warrant properly issued on an affidavit based primarily on hearsay, the federal cases prescribe the following two requirements.

First, the statement of the informer in the affidavit must be factual in nature rather than conclusionary and must indicate that the informer had personal knowledge of the facts related (Aguilar v. State of Texas, supra; Giordenello v. United States, supra). As the court noted in Aguilar in disapproving the warrant (378 U.S. at pp. 113-114, 84 S.Ct. at pp. 1513-1514), 'the 'mere conclusion' that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only 'contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an 'affirmative allegation' that the affiant's unidentified source 'spoke with personal knowledge.' For all that appears the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession. The magistrate here certainly could not 'judge for himself the persuasiveness of the facts relied on * * * to show probable cause.'' (Emphasis added.)

Secondly, the affidavit must contain some underlying factual information from which the issuing judge can reasonably conclude that the informant, whose identity need not be disclosed, was credible or his information reliable. ¹ In other words, the magistrate's finding of probable cause can be sustained only if the affidavit presents a substantial basis for crediting the hearsay (Aguilar, supra; Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, 690).

The affidavit in the instant case complied with the two requirements indicated above. It was clearly factual rather than conclusionary in nature. The confidential informant actually participated in the alleged violations and the narcotic substance and prices paid for the various purchases, as well as the location of the last transaction, were set forth with particularity. The affiant's unidentified source spoke with personal knowledge of the facts related. Additionally, the affidavit contained the necessary underlying information indicating the informant's reliability. He had on three previous occasions supplied similar information to the Oakland police which had proven accurate and resulted in convictions.

We are not impressed by defendant's contention that the affidavit did not sufficiently specify the time of the alleged violations. Of course, the possibility that the information was stale must be negated (Sgro v. United States, 287 U.S. 206, 211, 53 S.Ct. 138, 77 L.Ed. 260). However, the affidavit here complies in this respect. The allegation that the informant ...