People v. Wells

• Decision Date: 26 September 1966
• Docket Number: Cr. 10850
• Citation: 245 Cal.App.2d 203,53 Cal.Rptr. 762
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Richard WELLS, Defendant and Appellant.

Page 762

53 Cal.Rptr. 762

245 Cal.App.2d 203

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Richard WELLS, Defendant and Appellant.

Cr. 10850.

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

Sept. 26, 1966.

Rehearing denied Oct. 17, 1966

Hearing Denied Nov. 23, 1966.

Marshall K. Gordon, Canoga Park, under appointment by the District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Edward J. Hanessian, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Justice.

Defendant, a previously convicted felon, appeals from the judgment entered following a nonjury trial convicting him of possessing a concealable weapon in violation of section 12021 of the Penal Code. ¹

On September 25, 1964, two Los Angeles Police Officers and a State Narcotic Agent entered and searched an apartment in Los Angeles pursuant to the authority of a search warrant. The affidavit upon which the warrant was issued set forth sources of information to the effect that appellant was engaged in selling heroin at said apartment which was identified by its number and street address. The search failed to produce any heroin although the officers "found a lot of paraphernalia used in packaging heroin, found a considerable quantity of balloons, milk, sugar, measuring spoons, all the paraphernalia used in packaging."

However, during the course of the search the officers did find and seize $1,000 in cash and a loaded .38 caliber revolver. ² The revolver was found in a dresser drawer containing men's and women's clothing and located a few feet from the bed in which appellant was found sleeping when the officers entered.

Appellant contends that the affidavit for issuance of the search warrant failed to set forth facts showing probable cause for the issuance of said warrant and therefore the revolver seized during the search was the product of an illegal search and not admissible into evidence. Appellant further contends that the facts upon which the warrant was issued, as revealed by the testimony received at the hearing on the motion to quash the search warrant, do not show probable cause for the issuance of said warrant. The affidavit upon which the warrant was issued reads as follows:

"Your affiant has been a member of the Los ANgeles Police Department for the past eighteen and a half years and during the past nine years has been assigned to the narcotics squad and has testified in Municipal and Superior Courts as an expert on the subject of narcotic law enforcement.

"Affiant has information from an informant whose identity he wishes to keep secret to preserve his safety and usefulness to law enforcement. In the opinion of affiant, this informant is reliable since the informant has never given your affiant information which has proved in any way untrue and on July 23, 1963, informant gave your affiant information which resulted in the arrest and conviction of a person for a narcotic offense. Your affiant has also talked to Sergeant George Horskotte, L.A.P.D., on September 14, 1964, who told your affiant that in October, 1962, he had received information from this same informant which he relied upon and which enabled him to make an arrest of a person for a narcotic offense which resulted in the conviction of said person.

"On about September 8, 1964, this said informant told your affiant that the said person, James Richard Wells, who informant identified by a police photograph, was known to informant as 'Skip', was currently dealing in heroin at Apartment 3 in the apartment house at 2130, Sixth Avenue, Los Angeles. The term 'dealing heroin" in the parlance of the narcotic underworld means to possess for sale and sell heroin.

"On September 14, 1964, another informant, whose identity affiant wishes to keep secret, told affiant that James Richard Wells, who he identified by a photograph as the person known to him as 'Skip' was dealing in heroin at the Apartment 3 at 2130 Sixth Avenue, Los Angeles. This informant is untried, as said informant has never given similar information to police officers previously.

"On September 5, 1964, a fellow officer, Walter E. Burke, LAPD, told affiant that two different untried informants have told him within the last two weeks that said 'Skip' at said address was dealing in heroin.

"Affiant checked the utilities and found James R. Wells registered as the person responsible therefor at the said address of 2130 Sixth Avenue, Apartment 3, for water, power and telephone.

"The police files show that the record of the said James Richard Wells is that he was sentenced to State Prison on November 17, 1960, for Grand Theft. He was released on parole, but parole was canceled on August 2, 1962 and he was returned to State Prison. He was thereafter released, but the record shows that as of July 13, 1964 he has been and still is wanted for a further parole violation. He was arrested for sale of heroin on May 30, 1964, but was later released on this charge.

"Experience of your affiant indicates that dealing in heroin continues day and night and therefore request is made that this warrant be useable day or night."

Initially it should be noted that the fact that appellant was wanted for parole violation at the time of the search herein is not without moment. Unquestionably the police might have effected appellant's arrest and an appropriate search of his residence even without the aid of a search warrant. (Cf. People v. Carrillo, 64 A.C. 402, 50 Cal.Rptr. 185, 412 P.2d 377; People v. Hernandez, 229 Cal.App.2d 143, 40 Cal.Rptr. 100, and cases cited therein.)

However, in view of the questions involving ownership of the premises, manner of entry therein, scope and nature of the search conducted, etc. that frequently arise in connection with the arrest and search of parole violators (People v. Carrillo, supra, 64 A.C. 402, 50 Cal.Rptr. 185, 412 P.2d 377; People v. Arellano, 239 A.C.A. 411, 48 Cal.Rptr. 686), we believe the police are to be commended for their decision to seek authorization from a magistrate before proceeding unilaterally to take appropriate action herein.

Certainly in such a case any problems of interpretation involved in testing the sufficiency of the affidavit supporting the issuance of a search warrant "are properly laid to rest by considering the affidavit free of any 'grudging or negative attitude' (United States v. Ventresca, supra, 380 U.S. 102 , 85 S.Ct. 741, 13 L.Ed.2d 684, 689) and by giving it * * * a fair nontechnical reading as a whole." (Galena v. Municipal Court, 237 Cal.App.2d 581, 590, 47 Cal.Rptr. 88, 94.)

Of course, as appellant accurately observes, it has been held in both the state and federal courts that even a tested and reliable informant's bald conclusional statement without any supporting facts is insufficient to sustain the issuance of a search warrant unless such information is otherwise corroborated. (People v....