Theodor v. Superior Court

• Decision Date: 28 September 1972
• Citation: 8 Cal.3d 77,501 P.2d 234,104 Cal.Rptr. 226
• Court: California Supreme Court
• Parties: , 501 P.2d 234 Michael Paul THEODOR, Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29966. In Bank

Page 226

104 Cal.Rptr. 226

8 Cal.3d 77, 501 P.2d 234

Michael Paul THEODOR, Petitioner, v.The SUPERIOR COURT OF ORANGE COUNTY, RespondentThe PEOPLE, Real Party in Interest.

L.A. 29966.

Supreme Court of California,

In Bank.

Sept. 28, 1972.

As Modified on Denial of Rehearing Nov. 16, 1972.

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

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

MOSK, Justice.

This case illustrates some of the procedural barriers confronting criminal defendants when a search warrant is issued primarily on information supplied by an unidentified informant.On February 4, 1971, the Municipal Court for the South Judicial District of Orange County issued a warrant authorizing a search of a house at 1267 Fairywood Lane, Laguna Beach.The warrant was issued on the basis of affidavits by Officer Celmer of the Los Angeles Police Department and by an undisclosed informant, and an in-chambers examination of the informant by the issuing magistrate.

Under the authority of the search warrant, several officers entered the unlocked house and discovered no one inside.During the search for occupants, one of the officers observed a room secured by two padlocks and one standard bolt affixed to the door.Peering through a window into the room, the officers saw what they believed to be contraband.They remained in the house 'to see if any of the occupants showed up.'Shortly thereafter, three boys, between 9 and 11 years of age, entered the house and were placed in a bathroom by the officers.A few minutes later defendant entered the house by using a key to the front door.A search of defendant produced three keys which fit the locks to the closed room.Subsequent search of the closed room resulted in the seizure of, among other items, 10 kilograms of marijuana and 1,708 pieces of paper, each of which was impregnated with approximately 10 dots of LSD.

Defendant was charged with violating 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 combined preliminary examination and hearing under Penal Code section 1538.5, subdivision (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 defendant's guilt.Both motions were denied.

Defendant also sought to inquire into the truth of the matters contained in the affidavits which supported issuance of the search warrant.Although witnesses were present for that purpose pursuant to defendant's subpoena, the magistrate refused to allow defendant to question them.The magistrate further ruled that Officer Celmer could not be called for an examination into the truth of the contents of his affidavit.

After defendant was held to answer in superior court, his motions under Penal Code sections 995and1538.5 were denied.He now seeks a writ of mandate or prohibition.(Pen.Code, §§ 999a,1538.5, subd. (i).)In support thereof, defendant urges the following contentions: (1) the magistrate improperly relied, in part, on unsworn and unreported statements in issuing the search warrant; (2) the magistrate erroneously failed to order the prosecution to disclose the identity of the confidential informant; (3)defendant should have been permitted to controvert the factual allegations contained in the affidavits of the officer and the informant; and (4) inquiry into the legality of the informant's arrest should have been permitted.

The Affidavit and Issuance of the Warrant

The warrant was issued on the basis of affidavits submitted by the undisclosed informant and by Officer Celmer, the latter essentially repeating the statements of the former.The informant's affidavit in substance is as follows: On or about February 3, 1971, he went to 1267 Fairywood Lane, a white single-story plaster house with red trim and redwood siding, surrounded on three sides by a six-foot wood fence.He was taken to the west bedroom of the house and there observed a pile of marijuana bricks, two feet high by three feet wide by one foot (one brick) deep, containing twenty of fifty bricks.A white male, 22 to 27 years of age, 5 feet 11 inches in height, weighing 170 pounds, with dark curly hair, whose name he did not know, gave him 2 1/2 bricks weighing approximately five pounds.The informant was to return to Laguna Beach within two weeks with $300 for the marijuana.He was also given three pills by the described subject and was told one of the pills was LSD.

The affidavit further relates that the informant took the bricks to the Los Angeles airport, that he was 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 its appearance and smell.

Both affidavits were subscribed and sworn to in the presence of the issuing magistrate.The magistrate also examined the confidential informant before the warrant was issued; this 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 notes in an envelope which was to be opened only on order of court.¹

At the preliminary hearing, 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. . . ."

The Magistrate's Examination of the Informant

Defendant's first contention is that the magistrate issued the search warrant without complying with the mandatory provisions of Penal Code section 1526.²Section 1525 of the code makes clear that a search warrant cannot be issued other than on affidavit.³Section 1526, subdivision (a), permits a magistrate to examine orally and under oath the person seeking the warrant and any witnesses who might be produced.It does require, however, that an affidavit or affidavits be taken.Under section 1526, subdivision (b), an oral statement, if properly recorded and transcribed, is deemed to be an affidavit.Here, the magistrate conducted an oral examination of the undisclosed informer; more importantly, the informer and Officer Celmer each submitted to the court a written affidavit.Defendant has not urged that the affidavits on their face are defective.⁴Thus, Dunn v. Municipal Court(1963)220 Cal.App.2d 858, 873--874, 34 Cal.Rptr. 251 is not helpful.There the court held that the affidavit in question was insufficient and that the oral examination of the witness was also insufficient to support the issuance of the warrant.

Likewise, Powelson v. Superior Court(1970)9 Cal.App.3d 357, 360--362, 88 Cal.Rptr. 8, 9, also relied upon by defendant, is inapposite.There, in order to establish probable cause, the magistrate 'took extensive sworn testimony from said officers in the presence of a court reporter,' but no affidavits were subscribed.The court, in voiding the three search warrants involved, traced the history of section 1526, which prior to 1957 required the magistrate to take the Deposition of the 'complainant, and any witnesses he may produce' before issuing a warrant.(Stats.1851, ch. 29, § 645, at p. 284.)

'The 1957amendment replaced the word deposition with...