Theodor v. Superior Court, Orange County

• Citation: 21 Cal.App.3d 474,98 Cal.Rptr. 486
• Court: California Court of Appeals
• Decision Date: 23 November 1971
• Parties: Michael Paul THEODOR, Petitioner, v. SUPERIOR COURT, ORANGE COUNTY, State of California, Respondent, The PEOPLE of the State of California, Real Party in Interest. Civ. 11559.

Page 486

98 Cal.Rptr. 486

21 Cal.App.3d 474

Michael Paul THEODOR, Petitioner, v. SUPERIOR COURT, ORANGE COUNTY, State of California, Respondent, The PEOPLE of the State of California, Real Party in Interest.

Civ. 11559.

Court of Appeal, Fourth District, Division 2, California.

Nov. 23, 1971.

Hearing Granted Feb. 3, 1972.

George H. Chula, Costa Mesa, and Keith C. Monroe, Santa Ana, for petitioner.

Cecil Hicks, Dist. Atty., and Oretta D. Sears, Deputy Dist. Atty., for respondent and real party in interest.

OPINION

GABBERT, Associate Justice.

On February 4, 1971, the Municipal Court of Orange County issued a search warrant authorizing a search of a house at 1267 Fairywood Lane, Laguna Beach. The warrant was issued on the basis of affidavits filed by Officer Celmer of the Los Angeles Police Department and by an undisclosed informant, as well as on the basis of an examination by the issuing magistrate in his chambers of the undisclosed informant. Under the authority of the search warrant, the officers entered the Fairywood Lane address and found no one inside, but discovered an inner door with three separate locks on it. Looking through a window into the locked room, the officers saw what they believed to be contraband. After waiting a short period, the officers arrested petitioner as he entered the house by using a key in the front door. A search of petitioner disclosed three keys which fit the locks to the closed room. A search of the room resulted in the seizure of, among other items, ten kilograms of marijuana and 1708 pieces of paper, each piece of which was impregnated with approximately ten dots of LSD.

Subsequently, a complaint was filed charging petitioner with violations of Health and Safety Code, sections 11530 (possession of marijuana), 11530.5 (possession of marijuana for the purpose of sale), 11910 (possession of restricted dangerous drugs), and 11911 (possession of restricted dangerous drugs for the purpose of sale). At a combination preliminary examination and hearing under Penal Code, section 1538.4, subd. (f), defendant moved both to quash the warrant on the ground it was issued in reliance, in part, on unreported oral testimony, and to require disclosure of the identity of the informant on the ground he would be a material witness on the issue of petitioner's guilt or innocence. Both motions were denied.

Petitioner also sought to inquire into the truth of the matters stated in the affidavits on which the search warrant was issued. Although witnesses were present under petitioner's subpoena for that purpose, the magistrate refused to allow the petitioner to call them. The magistrate further ruled Officer Celmer could not be called by petitioner for examination as to the truth of the contents of his affidavit in support of the search warrant.

After petitioner was held to answer in superior court, his motions under Penal Code, sections 995 and 1538.5 were denied. He now seeks a writ of prohibition or mandate. (Penal Code, §§ 999a and 1538.5, subd. (i))

Petitioner raises three points:

(1) The search warrant was statutorily and constitutionally invalid;

(2) The magistrate erroneously refused to disclose the identity of the informant upon whose affidavit the search warrant was, in part, issued; and

(3) The magistrate erroneously refused to allow him to call either Officer Celmer or several other witnesses in order to controvert the truth of the matters asserted in the affidavits supporting the search warrant.

As we shall discuss below, we conclude the search warrant was properly issued and satisfies the applicable statutory and constitutional requirements. On the record before us, we also conclude the magistrate did not err in denying petitioner's request for disclosure of the identity of the confidential informant. Finally, as we shall discuss, we are persuaded the magistrate did not err in refusing to allow petitioner to call witnesses to controvert the truth of the matters asserted in the affidavits in support of the search warrants. Accordingly, we deny the writ of prohibition or mandate.

I

The warrant was issued on the basis of affidavits offered by Officer Celmer and the undisclosed informant. The affidavit of Officer Celmer merely restates that of the informant. The informant's affidavit, in substance, is as follows: That on or about February 3, 1971, he was taken to the Fairywood Lane address which was a white single story plaster house with red trim and redwood siding, surrounded on three sides by a six-foot wood fence; that he was taken into the west bedroom of the house and there observed a pile of marijuana bricks, 2 feet high by 3 feet wide, by one foot (one brick) deep, containing 20-50 bricks; that a white male, 22-27 years of age, 5' 11"' in height, weighing 170 pounds, with dark curly hair, whose name he did not know, gave him two and one-half bricks weighing approximately five pounds from the pile of marijuana bricks; that he was to return to Laguna Beach within two weeks with $300 for the marijuana; and that he was given three pills by the described subject and told one of the pills was LSD.

The affidavit further states the informant took the bricks to the Los Angeles airport; that he was there arrested by a Federal Marshal and the bricks and pills seized; that he had never been convicted of a crime of moral turpitude but had been convicted of minor traffic violations; and that he had smoked marijuana on numerous occasions and knows what it looks and smells like.

Both affidavits were subscribed and sworn to in the presence of the issuing magistrate. Thus both Officer Celmer and the undisclosed affiant upon whose information the warrant rests personally appeared before the issuing magistrate. The magistrate also examined the confidential informant before the warrant issued; the examination was not, however, recorded and transcribed.

During the examination, the magistrate took handwritten notes. After he issued the search warrant, he sealed the signed affidavit of the informant and his handwritten notes in an envelope which was to be opened only on order of the court. ¹

At the preliminary examination, the magistrate read the contents of his handwritten notes into the record:

'Then I will relate to you the gist of the conversation as I reported it in my handwriting, handwritten notes, and I am going to exclude therefrom anything that I think would indicate in detail the identity of the informant.

'The first thing is, 'lived in', and then, 'blank' as a city, which was given to me. Then comes the statement about where he sleeps. The next question and answer have to do with his place of birth. The next question had to do with his father's occupation. To all of these, he responded to them. The next one had to do with the place he last worked for and where.

'The place he last worked or the persons he last worked for and where. And next his marital status.

'For the record, those were considered by me as preliminary questions so that I could watch him and see his reactions. Questions were asked and answers given to determine his honesty or lack thereof, or competence or lack thereof.

'Then he was sworn in to speak only the truth.

'Then he described a meeting with a person he named and identified. Then he related to me, in response to my question, that he had been made no promise, except that he wanted to co-operate.

'That is the gist of two or three questions and answers.

'Then the question was asked and answered by him as to when and where he first smoked marijuana.

'Then questions and answers of his medical history and questions concerning his personal history. And then the questions concerning--the questions and answers concerning any credit sale of marijuana kilos.

'Now, all of those questions and answers for your information or for the record, whatever you wish, were asked by me and the answers were recorded by me to show what happened. But the purpose in asking the questions was to determine from the nature and kind of response he was making not whether those things were true or important, but generally what his demeanor was. And I considered none of those things as having any importance on the affidavit which he signed or having any importance on the issuance of a warrant, save and except they aided me in determining that he was--I am trying to think of an appropriate word. He was reasonably straight-forward and reasonably honest insofar as that is capable of being done in a ten to 15 minute interview. All of this took place within the affidavit and et cetera.'

Petitioner suggests the procedure under which the warrant was issued fails to satisfy the statutory requirements for the issuance of a warrant. We disagree. Although a search warrant must be supported by affidavit (Penal Code, § 1525; Powelson v. Superior Court, 9 Cal.App.3d 357, 360-361, 88 Cal.Rptr. 8), or, in the alternative by an oral statement which is recorded and transcribed (Penal Code, § 1526, subd. (b)), the issuing magistrate may also examine on oath the person seeking the warrant and any witnesses he may produce. (Penal Code, § 1526, subd. (a)) Such examination is within the discretion of the magistrate from whom the warrant is sought. (Powelson v. Superior Court, supra.) When the magistrate makes such further examination, he need not record and transcribe it as he would if the examination were to serve as the only basis for the search warrant (see Penal Code, § 1526, subd. (b)), he need only take an affidavit, subscribed by the person examined, and the affidavit need not contain the totality of the examination. (Penal Code, § 1526, subd. (a)) The failure of the magistrate to record and transcribe the examination thus did not violate the statutory requirements for the issuance of a warrant.

Petitioner also contends the affidavits fail to provide a constitutionally sufficient basis for the issuance of the search warrant. Under the circumstances here present, petitioner's argument is...