Priestly v. Superior Court of City and County of San Francisco

• Decision Date: 01 October 1958
• Court: California Supreme Court
• Parties: Clyde M. PRIESTLY, Petitioner, v. The SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO, Respondent. S. F. 19911.

Page 39

330 P.2d 39

50 Cal.2d 812

Clyde M. PRIESTLY, Petitioner, v. The SUPERIOR COURT OF CITY AND COUNTY OF SAN FRANCISCO, Respondent.

S. F. 19911.

Supreme Court of California, In Bank.

Oct. 1, 1958.

Rehearing Denied Oct. 28, 1958.

Arthur D. Klang, San Francisco, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and Arlo E. Smith, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Two counts of an information charged defendant with prossessing narcotics in violation of Health and Safety Code, section 11500. His motion to set aside the information on the ground that the evidence against him was obtained by an illegal search and seizure was denied, and he now seeks a writ of prohibition to prevent his trial.

The evidence at the preliminary hearing showed that at approximately 3 p. m. on April 18, 1957, Officer McKinley of the San Francisco Police Department received information from an informer that defendant had heroin in his apartment and that the informer had been there previously and obtained narcotics from defendant. The informer also said that there were narcotics in an apartment occupied by Cecil Thomas. At about 3:30 p. m. Officer McKinley and another officer went to the apartment occupied by Cecil Thomas, arrested him there, and found narcotics in his apartment. At that time, the officers received information from a second informer that defendant prossessed narcotics.

Acting solely on the information from the two informers, Officer McKinley and the other officer went to defendant's apartment and knocked on the door. After about ten minutes defendant opend it, and they then placed him under arrest and searched his person and the apartment. They found heroin on his person and dolophine, a narcotic, in a dresser drawer. The arrest and search were made without a warrant.

It is settled that 'a 'defendant has been held to answer without reasonable or probable cause if his commitment is based entirely on incompetent evidence', and accordingly, in such a case the trial court should grant a motion to set aside the information, Penal Code, § 995, and if it does not do so, a peremptory writ of prohibition will issue to prohibit further proceedings. Penal Code, § 999a.' Badillo v. Superior Court, 46 Cal.2d 269, 271, 294 P.2d 23, 24; People v. Valenti, 49 Cal.2d 199, 203, 316 P.2d 633; Willson v. Superior Court, 46 Cal.2d 291, 292, 294 P.2d 36; Rogers v. Superior Court, 46 Cal.2d 3, 7, 291 P.2d 929; People v. Jablon, 153 Cal.App.2d 456, 459, 314 P.2d 824; see, People v. Schuber, 71 Cal.App.2d 773, 775, 163 P.2d 498; In re Martinez, 36 Cal.App.2d 687, 689, 98 P.2d 528.

The narcotics, introduced over defendant's objections constituted essential evidence of defendant's guilt. If illegally obtained, it was not competent to show reasonable cause to believe the defendant guilty of a public offense, for "(t)he proof which will authorize a magistrate in holding an accused person for trial must consist of legal, competent evidence. No other type of evidence may be considered by the magistrate. The rules of evidence require the 'production of legal evidence' and the exclusion of 'Whatever is not legal' * * *'.' Rogers v. Superior Court, supra, 46 Cal.2d at page 8, 291 P.2d at page 932; People v. Schuber, supra, 71 Cal.App.2d at page 775, 163 P.2d at page 499. Accordingly, if the only evidence of guilt was illegally obtained, defendant is held without reasonable or probable cause, and a peremptory writ of prohibition should issue to prohibit further proceedings. Pen.Code, § 999a.

Defendant made a prima facie case by showing that his arrest and the search of his person and apartment were made without a warrant. The burden was then on the prosecution to show proper justification. Badilo v. Superior Court, supra, 46 Cal.2d at page 272, 294 P.2d at page 25. The People contend that they met that burden by the officer's testimony of the communications from the two informers. Defendant contends that this testimony is not competent since he objected to it, demanding that the identity of the informers be disclosed or the officer's testimony be struck.

The People contend that defendant was not entitled to the disclosure of the informers' identities invoking section 1881, subd. 5 of the Code of Civil Procedure: 'A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.' In People v. McShann, Cal.Sup., 330 P.2d 33, the informer was a material witness on the facts relating directly to the question of guilt. The policy conflict there involved was between the encouragement of the free flow of information to law enforcement officials and the right of the defendant to make a full and fair defense on the issue of guilt. In the present case the communications of the informers are material to the issue of reasonable cause to make the arrest and search, and the policy conflict is between the encouragement of the free flow of information to law enforcement officers and the policy to discourage lawless enforcement of the law. See People v. Cahan, 44 Cal.2d 434, 445, 282 P.2d 905, 50 A.L.R.2d 513.

The federal rule under such circumstances is set forth in Roviaro v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639: 'Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.' ¹

The foregoing rule requiring disclosure of the identity of an informer whose communications are relied upon to establish probable cause to make a search is sound and workable. See People v. Wasco, 153 Cal.App.2d 485, 488, 314 P.2d 558; People v. Lundy, 151 Cal.App.2d 244, 249, 311 P.2d 601; People v. Dewson, 150 Cal.App.2d 119, 136, 310 P.2d 162; People v. Alaniz (dissent), 149 Cal.App.2d 560, 570, 309 P.2d 71; Wilson v. United States, 3 Cir., 59 F.2d 390, 392; Hill v. State, 151 Miss. 518, 118 So 539, 540; Smith v. State, 169 Tenn. 633, 90 S.W.2d 523, 524; 13 N.Y.U.Intra.L.Rev. 141, 147-152; 83 L.Ed. 155, 157. If testimony of communications from a confidential informer is necessary to establish the legality of a search, the defendant must be given a fair opportunity to rebut that testimony. He must therefore be permitted to ascertain the identity of the informer, since the legality of the officer's action depends upon the credibility of the information, not upon facts that he directly witnessed and upon which he could be cross-examined. If an officer were allowed to establish unimpeachably the lawfulness of a search merely by testifying that he received justifying information from a reliable person whose identity cannot be revealed, he would become the sole judge of what is probable cause to make the search. Such a holding would destroy the exclusionary rule. Only by requiring disclosure and giving the defendant an opportunity to present contrary or impeaching evidence as to the truth of the officer's testimony and the reasonableness of his reliance on the informer can the court make a fair determination of the issue. Such a requirement does not unreasonably discourage the free flow of information to law enforcement officers or otherwise impede law enforcement. Actually its effect is to compel indendent investigations to verify information given by an informer or to uncover other facts that establish reasonable cause to make an arrest or search. Such a practice would ordinarily make it unnecessary to rely on the communications from the informer to establish reasonable cause. When the prosecution relies instead on communications from an informer to show reasonable cause and has itself elicited testimony as to those communications on direct examination, it is essential to a fair trial that the defendant have the right to cross-examine as to the source of those communications. If the prosecution refuses to disclose the identity of the informer, the court should not order disclosure, but on proper motion of the defendant should strike the testimony as to communications from the informer.

In sum, when the prosecution seeks to show reasonable cause for a search by testimony as to communications from an informer, either the identity of the informer must be disclosed when the defendant seeks disclosure or such testimony must be struck on proper motion of the defendant. Any holdings or implications to the contrary in People v. Johnson, 157 Cal.App.2d 555, 321 P.2d 35; People v. Salcido, 154 Cal.App.2d 520, 522, 316 P.2d 639; People v. Moore, 154 Cal.App.2d 43, 46-47, 315 P.2d 357; People v. Merino, 151 Cal.App.2d 594, 597, 312 P.2d 48; People v. Alaniz, 149 Cal.App.2d 560, 567, 309 P.2d 71; and People v. Gonzales, 141 Cal.App.2d 604, 606-607, 297 P.2d 50, are disapproved.

The People contend that even if disclosure is required at the trial, it should not be required at the preliminary hearing. Since the purpose of the preliminary hearing, however, is to determine whether there is competent evidence to commit the defendant for trial, disclosure at that time is necessary to determine whether the evidence acquired by the search is competent. The defendant may not be committed for trial when there is no competent evidence to support a belief that he is guilty of a public offense. Moreover, disclosure at the preliminary hearing will ordinarily obviate the necessity of a continuance during the trial to permit the defendant to locate and interview the informer. Defendant was therefore entitled either to disclosure of the informers' identities or to the striking on proper motion of the testimony of the officer as to the communications of the informer offered to establish the...