People v. West, Cr. 10069

• Court: California Court of Appeals
• Citation: 237 Cal.App.2d 801,47 Cal.Rptr. 341
• Decision Date: 01 November 1965
• Docket Number: Cr. 10069
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George WEST, Jr., Defendant and Appellant.

Page 341

47 Cal.Rptr. 341 237 Cal.App.2d 801 The PEOPLE of the State of California, Plaintiff and Respondent,
v.
George WEST, Jr., Defendant and Appellant. Cr. 10069. District Court of Appeal, Second District, Division 2, California. Nov. 1, 1965.
Rehearing Denied Nov. 19, 1965.
Hearing Denied Dec. 22, 1965.

Page 343

[237 Cal.App.2d 802] 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.

[237 Cal.App.2d 803] 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

Page 344

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 [237 Cal.App.2d 804] 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

Page 345

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 [237 Cal.App.2d 805] 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 [11 L.Ed.2d 887], was 'credible' or his information 'reliable." (378 U.S. at 114, 84 S.Ct. at 1514.)

Nothing in...