Saunders v. Municipal Court of Vallejo Judicial Dist., Solano County

• Decision Date: 04 March 1966
• Citation: 49 Cal.Rptr. 763,240 Cal.App.2d 563
• Court: California Court of Appeals Court of Appeals
• Parties: Robin Eugene SAUNDERS, Plaintiff and Appellant, v. MUNICIPAL COURT OF the VALLEJO JUDICIAL DISTRICT, COUNTY OF SOLANO, Defendant and Respondent; PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 22954.

Page 763

49 Cal.Rptr. 763

240 Cal.App.2d 563

Robin Eugene SAUNDERS, Plaintiff and Appellant, v. MUNICIPAL COURT OF the VALLEJO JUDICIAL DISTRICT, COUNTY OF SOLANO, Defendant and Respondent PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 22954.

District Court of Appeal, First District, Division 1, California.

March 4, 1966.

Garry, Dreyfus & McTernan, Charles R. Garry, Donald L. A. Kerson, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen. of State of California, Robert R. Granucci, Deputy Atty. Gen., San Francisco, for respondent.

MOLINARI, Justice.

Appellant, Robin Eugene Saunders, appeals from a judgment of the Solano County Superior Court denying his application for a writ of mandate directing the municipal court to quash a search warrant on the ground that it was invalidly issued. Appellant's sole contention is that the affidavit supporting the search warrant is insufficient on its face to establish probable cause.

On April 13, 1965, based on an affidavit of Sergeant Raymond Allbritton of the Vallejo Police Department, the Municipal Court of the Vallejo Judicial District, County of Solano, issued a search warrant authorizing a search of appellant's house for containers of marijuana. Pursuant to this warrant, a search was made of appellant's house; incriminating evidence was discovered; and appellant was arrested and charged with violations of Health and Safety Code, sections 11500 (possession of a narcotic other than marijuana) and 11530 (possession of marijuana). On April 29, 1965, prior to the preliminary hearing, appellant moved the municipal court to quash the search warrant on the ground that the affidavit was insufficient on its face to establish probable cause for the issuance of the warrant. ¹ This motion was denied, following which appellant brought the instant action seeking a writ of mandate to compel the municipal court to quash the search warrant.

In determining the sufficiency of the subject affidavit we must be guided by the following principles: Penal Code, section 1525, consonant with article I, section 19 of the California Constitution, provides that a search warrant may be issued by a magistrate only upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property to be seized and the place to be searched. (People v. Keener, 55 Cal.2d 714, 719, 12 Cal.Rptr. 859, 361 P.2d 857; Galena v. Municipal Court, 237 A.C.A. 684, 689, 47 Cal.Rptr. 88.) 'The affidavit for the warrant 'must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they they exist.' (Pen.Code § 1527.) The magistrate must issue the warrant only if he is satisfied of the existence of the grounds of the application or 'that there is probable cause to believe their existence, * * *' (Pen.Code § 1528.)' (Galena v. Municipal Court, supra, p. 689, 47 Cal.Rptr. p. 91.) '[T]he standard or test of probable cause is approximately the same as that applicable to an arrest without a warrant, a commitment by a magistrate or an indictment by a grand jury [citations], namely, 'such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused.' [Citations.] Facts stated in the affidavit are relevant on the issue of probable cause, irrespective of whether they are stated positively or on information and belief. [Citations.]' (People v. Govea, 235 Cal.App.2d 285, 296, 45 Cal.Rptr. 253, 260.)

It is also well settled that a reviewing court cannot hold that a search warrant must be quashed unless the affidavit upon which it is based is insufficient, as a matter of law, to establish probable cause since 'It is the function of the trier of the facts, not that of a reviewing court, to appraise and weigh the evidence when presented by affidavit as well as when presented by oral testimony.' (Arata v. Superior Court, 153 Cal.App.2d 767, fn. p. 772, 315 P.2d 473, p. 477, and cases cited therein; Dunn v. Municipal Court, 220 Cal.App.2d 858, 869, 34 Cal.Rptr. 251; People v. Prieto, 191 Cal.App.2d 62, 68, 12 Cal.Rptr. 577.)

Turning to the affidavit in the instant case in the light of the foregoing principles, we note that the affiant, after stating that he 'has been connected with the investigation of one Robin Eugene Saunders, Jr., regarding the possession of Marijuana,' avers that he had reasonable cause to believe that containers of marijuana were located at 819-A Kentucky Street in the City of Vallejo upon information received from one Algene Garcia and one Diana Moore that they personally observed marijuana on said premises and were given marijuana by said Robin Eugene Saunders, Jr. As to that portion of the affidavit which states that Allbritton relied upon information procured from Algene Garcia and Diana Moore, such information cannot alone constitute probable cause for the issuance of a warrant without a further showing of the reasonableness of police reliance upon it. (Dunn v. Municipal Court, supra, 220 Cal.App.2d p. 870, 34 Cal.Rptr. 251; People v. Prieto, supra, 191 Cal.App.2d p. 69, 12 Cal.Rptr. 577; Willson v. Superior Court, 46 Cal.2d 291, 294-295, 294 P.2d 36.) As the Supreme Court stated in the Willison case, 'evidence must be presented to the court that would justify the conclusion that reliance on the information was reasonable. [Citation.] In some cases the identity of, or past experience with, the informer may provide such evidence [citation] and in others it may be supplied by similar information from other sources or by the personal observations of the police.' (Pp. 294-295, 294 P.2d p. 38.) In People v. Cedeno, 218 Cal.App.2d 213, 220, 32 Cal.Rptr. 246, 251, we noted that 'the reliability of the informant may be shown not only be past experience with the informant, but also may be substantiated by the proven accuracy of the information given by the informant and which the officers from other sources know is accurate. This substantiation may be supplied by substantial corroborative facts known or discovered. [Citations.]' In any event, in determining reasonableness, there is no exact formula by which a court may be guided; rather each case must be decided on its own facts and circumstances and on the total atmosphere of the case. (Dunn v. Municipal Court, supra, 220 Cal.App.2d pp. 870-871, 34 Cal.Rptr. 251; People v. Cedeno, supra, 218 Cal.App.2d p. 220, 32 Cal.Rptr. 246; People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.)

In the instant case there are no facts stated in Allbritton's affidavit to show that he knew either of the informants or that he had had any past dealings with them upon which to base a belief that the information which they provided him was reliable. Respondents, however, argue that the reliability of the informants is sufficiently substantiated by the police investigation referred to in the affidavit and also by the fact that 'there were two informers, not one, and their reports obviously corroborated one another.' As to the latter argument, we note that while the information received from either Algene Garcia or Diana Moore might have been corroborated by information independently received from the other so as to clothe the first informant with the indicia of reliability, Allbritton's affidavit does not indicate that the information received from the two informants was independently received. (See Dunn v. Municipal Court, supra, pp. 871-872, 34 Cal.Rptr. 251; People v. Prieto, supra, 191 Cal.App.2d p. 70, 12 Cal.Rptr. 577; People v. Tillman, 238 A.C.A. 155, 159, 47 Cal.Rptr. 614.) We do not perceive that because two nonreliable informants join in giving information to a police officer that joinder supplies the element of reliability. As pointed out by Justice Tobriner in Ovalle v. Superior Court, 202 Cal.App.2d 760, 763, 21 Cal.Rptr. 385, 387, 'The quantification of the information does not necessarily improve its quality; the information does not rise above its doubtful source because there is more of it.'

Respondents also rely on the cases of Willson v. Superior Court, supra, 46 Cal.2d 291, 294 P.2d 36, and People v. Gamboa, 235 Cal.App.2d 444, 45 Cal.Rptr. 393. In Willson, where the court was faced with the legality of an arrest without a warrant and a search made incident to that arrest, it was held that the arresting officer's observation of suspicious activities on the part of the petitioner immediately prior to her arrest corroborated the information related to the police by a single unknown informant. That case is clearly distinguishable from the facts of the instant case.

In Gamboa, the appellate court upheld the defendant's arrest...