People v. West

Decision Date01 November 1965
Docket NumberCr. 10069
Citation237 Cal.App.2d 801,47 Cal.Rptr. 341
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. George WEST, Jr., Defendant and Appellant.

Albert C. Garber, Los Angeles, for

Albert C. Garber, Los Angeles, for appellant.*

Thomas C Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Bradley A. Stoutt, Deputy Atty. Gen., for respondent.

FLEMING, Justice.

The question is one of probable cause for issue of a search warrant.

George West, Jr. was convicted of possession of marijuana (Health and Safety Code, § 11530) and possession of cocaine (Health and Safety Code, § 11500). The principal evidence against him was obtained through use of a warrant which authorized a search for marijuana of Apartment 3, at a designated address, and of the persons of George West, Jr. and Lou Ann Douglas. Officer William Caskey located West outside the apartment building, gave him a copy of the search warrant, removed a key from West's pocket, and used the key to enter Apartment 3. He found Lou Ann Douglas in bed and a large, brown-paper bag on the floor next to the bed. The bag's contents included a 38 caliber revolver, 70 grams of marijuana, eight marijuana cigarettes, and nine grams of cocaine.

West's basic contention is that the search warrant was issued without a showing of probable cause, and therefore narcotics obtained through its use were seized in violation of the federal and state constitutions, and should not have been received in evidence against him.

The search warrant was issued on the petition and supporting affidavit of Officer Caskey, the text of which is set forth below. 1 In essence, Officer Caskey swore he had received information from a reliable informant that West was using and selling marijuana and keeping it in Apartment 3, where he lived with a girl named Lou Ann; that Caskey on two previous occasions had received correct information from this informant, which had led to arrests for possession of marijuana, and had never received incorrect information from him; that the utilities in Apartment 3 were registered to Lou Ann Douglas; and that both West and Lou Ann Douglas had been convicted of narcotics violations.

The Fourth Amendment to the United States Constitution provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Did Caskey's affidavit contain sufficient information to satisfy the requirement of probable cause under the Fourth Amendment to the United States Constitution and thus allow a magistrate to issue the search warrant? Since the time of Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, the reasonableness of a search under state law has been measured by the same constitutional standard as that which governs the reasonableness of a search under federal law, and the decisions of the United States Supreme Court interpreting the Fourth Amendment now apply to California procedure by virtue of the Fourteenth Amendment. (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.)

The affidavit on which the warrant was issued sets forth a police officer's belief that probable cause to search exists, based on (1) information from a reliable, confidential informant that West was using, selling, and possessing narcotics at Apartment 3 with a girl named Lou Ann; (2) registration of the utilities at Apartment 3 to Lou Ann Douglas; and (3) a record of prior narcotics convictions for West and Lou Ann Douglas.

Is this enough to establish probable cause? We think not. In our view the specific question is controlled by the decision of the United States Supreme Court in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, a case reversing a narcotics conviction in a state court because of the insufficiency of the affidavit supporting the search warrant. In Aguilar, the supporting affidavit set forth a police officer's belief that petitioner kept narcotics for sale at a particular address, a belief based on unspecified information from a reliable informant and on unspecified observations of the premises by the police. In holding that the affidavit did not establish probable cause, the Supreme Court said that the unamplified conclusion of a reliable, confidential informant was an inadequate foundation from which to launch a search warrant. The facts supporting the informant's conclusion must be sufficiently developed in the affidavit to enable the issuing magistrate to judge for himself the persuasiveness of the information relied upon for probable cause. The affidavit in Aguilar failed to show that the police officer or his source had any personal knowledge of the matters set forth in the affidavit. For all that appeared, said the court, the source may have merely suspected the presence of narcotics in petitioner's possession. The Supreme Court then summarized the applicable rule: 'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825 , was 'credible' or his information 'reliable." (378 U.S. at 114, 84 S.Ct. at 1514.)

Nothing in the subsequent case of United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, altered these basic requirements. Although the validity of the search warrant in question was upheld, the Supreme Court there pointed out: 'This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. See Aguilar v. State of Texas, supra. Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.' (380 U.S. at 108-109, 85 S.Ct. at 746.)

Aguilar makes clear that a petition for a search warrant based solely on information from a reliable informant must set forth sufficient data in the supporting affidavit (1) to show that the informant is in fact reliable, and (2) to disclose the source of the informant's knowledge so that the examining magistrate can himself determine whether probable cause exists for the issue of the warrant.

In the present case the affidavit adequately disclosed the basis for the informant's reliability.

However, the informant's source of knowledge remained a secret. We do not know whether he himself had seen marijuana in the apartment, or had recently purchased it from West, or had otherwise personally obtained reliable and persuasive information; or whether, on the other hand, he was merely peddling second-hand gossip overheard in a barroom. Had information disclosing the informant's source of knowledge been included in the supporting affidavit, the magistrate could have exercised his own judgment as to the persuasiveness of the facts showing probable cause rather than been forced to rely on the judgment of the police. Under our Constitution the inferences from the facts must be drawn by a neutral and detached magistrate rather than by a police officer engaged in the often competitive enterprise of ferreting out crime. (Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 82 L.Ed. 436.)

Other United States Supreme Court cases reflect this same requirement: Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887. In these cases either an affidavit disclosed the source of knowledge of the informant (Jones--the informant had purchased narcotics from the suspects at the given address many times, most recently the day before; Rugendorf--the informant the previous week had seen 75 to 80 furs without labels on the premises and been told they were stolen), or the police had been given specific, detailed information of such a nature as...

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