Stoehr v. Superior Court

• Decision Date: 07 September 1973
• Citation: 109 Cal.Rptr. 756,34 Cal.App.3d 197
• Court: California Court of Appeals Court of Appeals
• Parties: Corwin Karr STOEHR et al., Petitioners, v. The SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 12766.

Page 756

109 Cal.Rptr. 756

34 Cal.App.3d 197

Corwin Karr STOEHR et al., Petitioners, v. The SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent;

The PEOPLE of the State of California, Real Party in Interest.

Civ. 12766.

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

Sept. 7, 1973.

Hearing Denied Oct. 31, 1973.

[34 Cal.App.3d 198] Goldberg & Link and Frederic L. Link, San Diego, for petitioners.

Edwin L. Miller, Dist. Atty., Terry J. Knoepp and Hugh E. McManus, Deputy Dist. Attys., for respondent and real party in interest.

OPINION

GERALD BROWN, Presiding Justice.

Corwin and Albert Stoehr petition for a writ of prohibition and/or mandate following the denial of their motions under Penal Code sections 1538.5 and 995 and of their motion to disclose the identity of an informant. The motions were submitted on the transcript of the preliminary examination at which the Stoehrs were bound over to answer charges of possessing controlled substances, marijuana and narcotics paraphernalia in violation of Health and Safety Code sections 11350, 11357 and 11364, respectively. A writ of mandate should issue.

The police found and seized contraband upon which the charges against the Stoehrs are grounded in a search conducted under the authority of a search warrant. The only support for issuing the search warrant was an affidavit signed by a police officer which recited information learned from a confidential informant.

Absent the contraband seized in the search, there was insufficient evidence presented at the preliminary hearing upon which the defendants could be bound over for trial. Under these circumstances the validity of the lower court's orders denying defendants' motions to suppress and to vacate the information turns upon the sufficiency of the affidavit in support of the search warrant. There was no evidence, nor do the People contend, a warrantless search would have been justified.

In material part, the police officer's affidavit, dated March 22, 1973, alleges: He was an officer experienced in narcotic investigation; he had reasonable cause to believe a specified single family dwelling contained specified narcotics and paraphernalia; and he had information from an informant whose identity he wished to keep secret for stated reasons. Regarding the reliability of the confidential informer, the officer alleged:

'In the course of my duties, I have received information from an informant, hereinafter referred to as 'XX', whom I believe to be reliable for the following reasons. Since I have known XX, he has never given me false or misleading information and XX appears to be a truthful person. XX has given me information in the past that resulted in the arrest for narcotic violations of at least two individuals. Through my investigation and through information received from other law enforcement officers, I have verified that the information given by XX was correct. XX has in the past properly identified heroin to me.'

The entirety of the information supplied by the informer is contained in the allegations:

'On the 20th day of March, 1973, XX told me the following: That within the past five days XX has been in the above-described residence located at 6833 Central Avenue, County of San Diego, and while at the residence XX saw heroin in...