People v. Villalva, Cr. N

• Decision Date: 09 July 1973
• Docket Number: Cr. N
• Citation: 109 Cal.Rptr. 16,33 Cal.App.3d 362
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Leonard Mario VILLALVA and Gregory Kent Moon, Defendants and Respondents. o. 18311.

Page 16

109 Cal.Rptr. 16

33 Cal.App.3d 362

The PEOPLE of the State of California, Plaintiff and Appellant, v. Leonard Mario VILLALVA and Gregory Kent Moon, Defendants and Respondents.

Cr. No. 18311.

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

July 9, 1973.

Hearing Denied Sept. 6, 1973.

Joseph P. Busch, Dist. Atty., Harry Wood and Donald J. Kaplan, Deputy Dist. Attys., for plaintiff and appellant.

Richard S. Buckley, Public Defender, Harold E. Shabo, Leon Salter and Martin Stein, Deputy Public Defenders, for defendant and respondent Moon.

Hank Di Roma, Los Angeles, for defendant and respondent Villalva.

LILLIE, Associate Justice.

Villalva was charged with possession of a restricted dangerous drug (§ 11910, Health & Saf.Code) and he and Moon with transportation of marijuana (§ 11531, Health & Saf.Code). Motion to suppress the evidence pursuant to section 1538.5, Penal Code, was granted. The People appeal from order dismissing the case.

On November 25, 1969, pursuant to a call to police by Mr. Taylor, superintendent, United Air Lines air express office, Omaha, Nebraska, a police radio dispatcher ordered Officer Reubsam, Omaha Vice Detail, to go to the airport. There he talked with Taylor and two clerks, then saw a green suitcase which was open; therein he observed several packages wrapped in newspaper from which emanated the peculiar odor of marijuana, and enough loose marijuana to make two marijuana cigatettes. He then opened the corner of one of the packages and found marijuana therein. After placing his initials, time and date inside the suitcase and on the packages, checking the names and addresses of sender and addressee in Los Angeles and finding the purported address of the sender in Omaha to be fictitious, he allowed the suitcase to proceed to Los Angeles and immediately telephoned Officer Haldi, Los Angeles Police Department, Narcotics Division, informing him of the foregoing.

While on duty on November 25, Officer Haldi answered the telephone and was informed by the caller that his name was Officer Reubsam, Omaha Police Department, Vice Unit, and of his telephone number and area code; Reubsam told him the following--upon arrival at the Omaha airport he was shown an open suitcase containing seven pounds of marijuana in three packages; he initialed each package and the inside of the suitcase with his initials and date; the suitcase was green, regular normal size, and the airbill on it bore the name David Jackson, 3301 Curtis Street, Omaha, Nebraska, as sender, and Christopher J. Ballew, 12710 Gibson Street, Compton, California, as addressee; the person who shipped the suitcase was a male Caucasian in his early twenties, about 5 foot 9 inches, 166--175 pounds, bleached blond long hair with a pock-marked or pimply face; the suitcase was being shipped on United Air Lines flight number 367, leaving Omaha at 1555 hours or 3:55 p.m., arriving Los Angeles International Airport at 1755 or 5:55 p.m.

Officer Haldi immediately contacted United Air Lines verifying the flight number and arrival time--five minutes to six. He then went to the airport and gave Reubsam's information to the air freight supervisor; at 6:20 p.m. when the baggage was brought in from the flight he saw on the baggage car a green suitcase bearing an airbill showing the addressee to be Christopher Ballew, 12710 Gibson Street, Compton, and the sender, David Jackson, Omaha, Nebraska. At 11:15 the next morning, defendants called for the suitcase. Officer Haldi observed defendant Moon sign a piece of paper for the suitcase, pick it up, leave, put in it in the trunk of a car and drive away. The officers followed the vehicle to 12710 Gibson Street, Compton, and from a half a block away with the aid of binoculars Officer Haldi saw both defendants get out of the vehicle, defendant Villalva open the trunk, Moon take something out of his pocket and do something at the locks of the suitcase, open it and both defendants examine the contents. At this time Officer Haldi approached defendants and saw Moon take a piece of paper out of his pocket and drop it to the curb; the paper was the customer's copy of air freight bill which matched the air freight bill and information he had from Officer Reubsam; both defendants were arrested. When he approached the vehicle Officer Haldi could see inside the open suitcase in the trunk of the vehicle; he observed therein several paper wrapped packages and several plastic bags, one of which was open and in it he could see green plant material which smelled and looked like marijuana. Villalva was the registered owner of the vehicle; under the driver's seat on the extreme left hand side next to the door the officers found a vial of pills.

The court granted the motion to suppress the evidence on the authority of People v. McGrew, 1 Cal.3d 404, 82 Cal.Rptr. 473, 462 P.2d 1, and Abt v. Superior Court, 1 Cal.3d 418, 82 Cal.Rptr. 481, 462 P.2d 10. The order was made before People v. McKinnon, 7 Cal.3d 899, 103 Cal.Rptr. 897, 500 P.2d 1097.

The dispositive question is whether there was probable cause to arrest the defendants. In support of the trial court's order respondents argue that inasmuch as it was stipulated that neither officer had a search warrant the People had the burden to show that whoever initially opened the suitcase in Omaha was not acting in concert with or as agent of the police, and no evidence thereof was offered. Such argument misconceives the nature of the 1538.5 motion. It is the burden of the defendant in a criminal case to raise the issue of illegally obtained evidence (People v. Prewitt, 52 Cal.2d 330, 335, 341 P.2d 1), and when he raises the question of the legality of an arrest or of a search and seizure he makes a prima facie case when he establishes that the arrest was made without a warrant or that the search was made without a search warrant, then the burden rests on the People to show justification. (People v. Lanthier, 5 Cal.3d 751, 755, 97 Cal.Rptr. 297, 488 P.2d 625; Abt v. Superior Court, 1 Cal.3d 418, 420, 82 Cal.Rptr. 481, 462 P.2d 10; People v. Kanos, 70 Cal.2d 381, 384, 74 Cal.Rptr. 902, 450 P.2d 278; People v. Marshall, 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 442 P.2d 665; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) The foregoing governs the order of proof on hearings on 1538.5 motions. (People v. Carson, 4 Cal.App.3d 782, 785--787, 84 Cal.Rptr. 699.

Defendants made a prima facie case of illegal search warrant when it was stipulated that neither officer had a search warrant; thus the burden was on the People to show justification. However, the People's burden was sustained by a compelling showing of facts that no search warrant was necessary and Officer Haldi had probable cause to arrest defendants. (People v. Lanthier, 5 Cal.3d 751, 755, 97 Cal.Rptr. 297, 488 P.2d 625.) Officer Reubsam, well versed in the detection and identification of illegal narcotics, first saw loose debris which he immediately identified as marijuana in an open suitcase at the Omaha airport; it was substantial enough in quantity to make two marijuana cigarettes. His observation was of that which was 'in plain sight, which 'is, in fact, no search for evidence.' (People v. Marshall, Supra, 69 Cal.2d 51, 56--57, 61, 69 Cal.Rptr. 585, 591, 588, 442 P.2d 665, 671, 668.)' (People v. McGrew, 1 Cal.3d 404, 409, 82 Cal.Rptr. 473, 476, 462 P.2d 1, 4; Abt v. Superior Court, 1 Cal.3d 418, 421, 82 Cal.Rptr. 481, 462 P.2d 10.) Objects falling in the plain sight of an officer who has a right to be in the position to have that view are subject to seizure and admissible. (People v. Sirhan, 7 Cal.3d 710, 742, 102 Cal.Rptr. 385, 497 P.2d 1121; People v. Roberts, 47 Cal.2d 374, 379, 303 P.2d 721; People v. Superior Court (Evans) 11 Cal.App.3d 887, 891, 90 Cal.Rptr. 123.) Having thus observed the contraband, Officer Reubsam was not only authorized but duty bound to seize it. (Miramontes v. Superior Court, 25 Cal.App.3d 877, 885, 102 Cal.Rptr. 182.) However, instead of effecting a permanent seizure, he opened one of the packages revealing marijuana, closed the suitcase, placed it in transit to Los Angeles, then called Haldi.

Officer Haldi had probable cause to arrest defendants--first, he had a right to rely on Officer Reubsam's information; and second, the information corroborated by his own investigation and personal observations was more than sufficient to furnish probable cause for defendants' arrest. He did not call Omaha to verify Reubsam's official position, but the information Reubsam gave him was of the type relayed by law enforcement officers and sufficiently detailed as to make it reasonable for Haldi to believe he was in fact speaking to a police officer and that the latter had personal knowledge of the information he imparted. The caller identified himself by name as an officer of the Omaha Police Department, Vice Unit, and gave his telephone number and area code; he, as well as Officer Haldi, knew that this and the information he was about to give could be quickly verified by Haldi even while he was conversing with him; therefore, it was reasonable for Haldi to believe that it was unlikely that one pretending to be a police officer would give information that could be so readily verified. Reubsam told him he had initialed and dated each package and the inside of the suitcase, a method of identifying evidence used by law enforcement agencies of which the public generally is not aware; gave the name, address and complete description of the sender of the suitcase in the manner used by law enforcement agencies, and the name and address of the consignee; and said he had checked the sender's address and found it to be fictitious, a type of investigation a police officer would reasonably conduct.

While the information and the manner in which it was imparted was sufficient to justify the reasonable belief that he had received it through official channels from another officer and was...