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

Decision Date19 December 1957
Citation319 P.2d 796
PartiesClyde M. PRIESTLY, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR CITY AND COUNTY OF SAN FRANCISCO, Respondent. * Civ. 17858.
CourtCalifornia Court of Appeals Court of Appeals

Arthur D. Klang, San Francisco, for petitioner.

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

PETERS, Presiding Justice.

By a two count information petitioner was charged with the illegal possession of heroin and dolophine in violation of section 11500 of the Health and Safety Code. Under section 995 of the Penal Code he moved to set the information aside on the ground that all the evidence of the crimes involved was secured by an illegal search and seizure and was therefore inadmissible under the rule of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513. The motion was denied. Thereupon petitioner filed the present application for a writ of prohibition.

The facts are not substantially in dispute. On April 18, 1957, Priestly was arrested without a warrant of arrest, and his premises were searched, also without a warrant. Heroin was found on his person, and dolophine found in the drawer of a dresser located in a room occupied by petitioner and several other persons. In order to justify the arrest and search without a warrant the arresting officer, at the preliminary hearing, testified that he had received information from an unidentified informer, believed to be reliable, that Priestly had narcotics in his possession at his residence. The officer had no other information about Priestly except that received from the informer. The arresting officer testified that on April 18, 1957, at about 2:30 p. m. he received information from an informer, believed to be reliable, that Priestly had heroin in his home at 1060 Ellis Street, apartment 3, San Francisco. The informer described the container in which the heroin was kept. She also stated that she had been at Priestly's apartment that day and picked up some heroin. The informer also told the police witness about another person residing at 1030 Fell Street who was supposed to be in possession of heroin. She described that occupant's automobile, and gave the license number. The police proceeded to 1030 Fell Street and found the occupant in possession of heroin. This occupant then implicated Priestly, stating that Priestly was in possession of heroin. The reliability of the first informer as to Priestly was based on the fact that her information had proven reliable as to the premises at 1030 Fell Street. As to the second informer the police had had no prior experience with him.

The petitioner strenuously objected to this evidence, and frequently demanded to know the identity of the informer. The objections and demands were overruled. The trial court ruled that the identity of the informer was confidential and privileged. The court did permit some cross-examination of the officer. He stated that the first informer was a woman, and that he believed her to be reliable. He based this belief upon the fact that she had worked for the police department for two weeks prior to April 18, 1957. He admitted that the informer was an addict and that when the police first saw her on April 4, 1957, they secured her cooperation by promising not to arrest her. There was no attempt on the part of the police to determine her general reputation in the community, or whether she had ever been convicted of perjury or subornation of perjury. Apparently the only time the police had used information given by this informer, so far as this witness knew, was when she informed on the occupant at 1030 Fell Street. Objections to all questions that might have revealed the identity of the informer were sustained. The court even sustained an objection to the direct question as to whether the second informer, the man arrested at 1030 Fell Street, was named Cecil Thomas.

On the sole basis of this informer information the police proceeded to 1060 Ellis Street, a three-story apartment building. The front door of the apartment was unlocked. The police entered and stationed themselves where they could observe the door to Priestly's second-floor apartment. In about 10 minutes Priestly came out of the apartment accompanied by another man. He was immediately told by the police that he was 'under arrest for violation of narcotic laws,' but was not told of what specific violation he was accused. At the time of his arrest the only information the police had about any violation of the law was that secured from the informers. The police entered Priestly's apartment. Without permission or consent of Priestly, they searched him and found in his pocket a metal box containing what later was determined to be four bindles of heroin. The police then, without permission or consent of Priestly, searched his apartment. In a dresser drawer, under towels and bidding, they found a metal box containing what later turned out to be dolophine. Priestly denied ownership, claiming that this container and its contents belonged to others using the apartment. His wife and daughter occupied the apartment with him.

If the information secured from the informers was subject to a motion to strike, then there was no admissible evidence to show that the police had reasonable grounds to make the arrest and search without a warrant. In such event, the arrest and search were illegal, and the articles secured in such search were not admissible in evidence. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905. Where no admissible evidence has been introduced at the preliminary hearing to connect an accused with the offense charged, and he is held to answer, a writ of prohibition will lie.

The basic question presented is whether at the preliminary examination, upon proper objection and request, the name of the confidential informer must be disclosed or the evidence stricken. On this question there is considerable confusion in the cases, none of which offers a conclusive answer.

It is certainly true that law enforcement officials may properly use informers and, in a proper case, may protect the identities of the informers from disclosure. This privilege of withholding the name of the informer has long been recognized in this country and in England. The purpose of this privilege is, of course, the furtherance of the public interest in effective law enforcement. It is aimed at encouraging members of the community to communicate to proper officials any and all information they may have about any law violation without unnecessary notoriety. Such informers play an important and proper place in the enforcement of criminal, civil and administrative law. They are used by many departments of government. Certainly, without their aid, in the field of criminal law, many criminals would not be apprehended.

Because of the vital function they perform, the law confers on the government the protection of not unnecessarily disclosing their identity. In California, the name of a confidential informer may be protected, in a proper case, by virtue of the provisions of section 1881, subd. 5, of the Code of Civil Procedure. It provides:

'A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.'

The precise extent of this privilege has not been determined in this state. It is obvious that such a privilege necessarily results in the suppression of evidence. Great difficulties are encountered when the informer information is sought to be used in a criminal proceeding. Then the public policy of permitting an accused to be confronted by his accusers and to cross-examine them and to prepare his defense, runs head on into the public policy of protecting the identity of informers. For this and other reasons it is settled that such statutes as section 1881 must be strictly construed. Samish v. Superior Court, 28 Cal.App.2d 685, 86 P.2d 305.

In the present case the question involved is whether the police had probable cause for the arrest so as to justify the arrest and search without a warrant, when the sole information they had was from an informer whose identity they refused to divulge. This depends upon whether the facts told to the police were sufficient to warrant the police in believing a felony had been committed by the accused, and whether the police believed, and had the right to believe, the information. In the present case the information received was that defendant that day was in possession of narcotics. This was certainly information that a felony had been committed and, if believe, warranted the arrest. It will be noted that what the informant told the police when testified to by the police is hearsay, but it is admissible hearsay. People v. King, 140 Cal.App.2d 1, 294 P.2d 972. The question is not whether the facts told the police by the informer were true, but whether the police reasonably believed them to be true. The police attempted to meet that requirement by testifying that they believed the informer because as a result of past experience they had found the informer to be 'reliable.' In the instant case the past experience with the informer was extremely limited, but it can be accepted that it was sufficient to warrant the police in acting upon it. Thus, the police were told that a felony was being committed by defendant, and reasonably believed the information. This means that prima facie the police had probable cause to make the arrest and search without a warrant.

But upon proper request the police refused to divulge the name of this informant. How could the accused meet the prima facie case? The federal and state Constitutions guarantee him freedom from illegal searches and seizures. Since the Cahan case, illegally secured evidence cannot be introduced against him. The police were relying...

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2 cases
  • McCoy v. State
    • United States
    • Maryland Court of Appeals
    • April 21, 1958
    ...1957, 153 Cal.App.2d 653, 315 P.2d 79. And see also Mitchell v. Superior Court, Cal.App.1958, 321 P.2d 106 and Priestly v. Superior Court, Cal.App.1957, 319 P.2d 796. In the case now before us, the defendant never requested the identity of the informer, and was, in fact, actually aware of h......
  • People v. Justice
    • United States
    • California Court of Appeals Court of Appeals
    • February 5, 1959
    ...rights.' In support of this claim, appellant cites extensively from the District Court of Appeal opinion in Priestly v. Superior Court, Cal.App., 319 P.2d 796, since affirmed by the Supreme Court in 50 Cal.2d 812, 330 P.2d 39, and for the first time makes reference to a page and line of a r......

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