Weber v. Superior Court

• Decision Date: 26 February 1973
• Citation: 30 Cal.App.3d 810,106 Cal.Rptr. 593
• Parties: Joseph Lynn WEBER and Marie Dalia Lopez, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SANTA CLARA, Respondent; The PEOPLE of the State of California by their Attorney, Louis P. BERGNA, District Attorney for the County of Santa Clara, Real Party in Interest. Civ. 31801.
• Court: California Court of Appeals Court of Appeals

Page 593

106 Cal.Rptr. 593

30 Cal.App.3d 810

Joseph Lynn WEBER and Marie Dalia Lopez, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SANTA CLARA, Respondent The PEOPLE of the State of California by their Attorney, Louis P. BERGNA, District Attorney for the County of Santa Clara, Real Party in Interest.

Civ. 31801.

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

Feb. 26, 1973.

Rehearing Denied March 26, 1973.

Hearing Denied April 25, 1973.

Morgan, Beauzay & Hammer, San Jose, for petitioners.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim Div., Doris H. Maier, Asst. Atty. Gen., Writs Section, Robert R. Granucci, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for respondent and real party in interest.

MOLINARI, Presiding Judge.

An alternative writ of prohibition was granted by this court upon petitions for writ of prohibition and mandamus following the denial of motions made pursuant to Penal Code sections 995 and 1538.5.

Pursuant to a search warrant issued by the United States District Court, law enforcement officers entered the premises at 320 University Avenue, San Jose. The warrant described the premises to be searched and the property to be searched for at the residence as '1) one mail parcel containing hashish addressed to Nancy King c/o Joe Weber, 320 University, San Jose, Calif. from James Hall, Divine Life Mission, Hardwar U.P., India. 2) Other narcotics, hashish, marijuana or narcotic paraphernalia. 3) Correspondence relating to smuggling of hashish, marijuana or narcotics. 4) Or, the means and instruments used in violation of 21 USC 952, which are the fruits and instrumentalities of a violation of 21 USC 952.'

Upon a search of the entire premises the officers found certain contraband including two packages containing hashish. One of these packages was addressed to 'Nancy King c/o Joe Weber, 320 University, San Jose, Calif.' and the other was addressed to 'Sherry King, c/o Joe Weber, 320 University, San Jose, California.' Prior to delivery, these two packages had been found to contain hashish by the United States Customs Department. They were delivered under controlled conditions and the subject warrant was executed 36 minutes after delivery. In the affidavit for the issuance of the search warrant setting forth the discovery of the hashish by customs officers, Charles Young, a customs officer, stated that it was his experience that in cases where smuggled goods were delivered other contraband was often found on the premises.

The only attempt made by the officers to ascertain whether the persons to whom the packages were addressed actually existed or, if they did exist, were persons in control of any part of the subject premises, consisted of checking the telephone directory and the registration of vehicles parked in front of said premises. The telephone directory disclosed that a telephone was listed for said premises in the name of Marie Lopez. The record is silent as to what, if anything, was disclosed by the automobile registrations. There was no surveillance on the house to ascertain whether 'Nancy King' or 'Sherry King' resided on the premises.

At the time of the search, the subject premises were occupied by petitioners Joseph Lynn Weber and Marie Dalia Lopez. When the officers first encountered Weber and told him they were serving a search warrant, Weber stated 'Is it because of the packages?'

One of the officers who had observed the two packages previous to the controlled delivery testified that when the officers found the two packages in the residence one of them had been opened and bore indications that it had been retied.

Petitioners were charged with violating Health and Safety Code sections 11910 (possession of an amphetamine), 11530 (possession of marijuana), 11530.5 (possession for sale of marijuana) and 11555 (possession of narcotics paraphernalia). They were also charged with violating Penal Code section 12020 (possession of a sawed-off shotgun).

1] This case is similar in every respect to People v. Superior Court (Marcil) 27 Cal.App.3d 404, 103 Cal.Rptr. 874, ¹ recently decided by this court, with the one exception that in the case not before us the persons named as consignees were not on the premises when the search was made. The packages were consigned respectively to 'Nancy King' and 'Sherry King' in care of petitioner Weber. This factual distinction does not require a result different from that reached by us in Marcil. As in Marcil, the affidavit for the search warrant set forth reasonable cause to believe that the mail parcel addressed to 'Nancy King' in care of Joe Weber would be located at the premises designated in the warrant. This circumstance justified the issuance of the search warrant for the seizure of the contraband contained in the package whether or not 'Nancy King' was present on the premises.

In Marcil it was held that a warrant, issued pursuant to an affidavit such as that in the present case, authorized the search for other narcotics and narcotic paraphernalia on the premises to which the warrant is directed upon statements in the affidavit that additional narcotics and narcotic paraphernalia are often found in or on premises where controlled deliveries of smuggled marijuana or narcotics have been made. (27 Cal.App.3d at pp. 411-- 414, 103 Cal.Rptr. 874). This conclusion finds its rationale in the fact, established by other allegations, that the consignee is to receive contraband at the address to which it is consigned. This fact, in turn, furnishes probable cause to believe that other contraband is present. (27 Cal.App.3d at p. 411, 103 Cal.Rptr. 874.)

As observed in Marcil, 'A reasonable and prudent magistrate could infer that the consignee of contraband mailed from outside the United States would know that he was party to an illegal transaction and that, branded with such knowledge, it is reasonable to infer that the consignee possesses other contraband of foreign or domestic origin.' (27 Cal.App.3d at p. 411, 103 Cal.Rptr. at p. 879.)

The circumstance that Weber was not the consignee but a person who received the package as an agent for the consignee does not militate against the right to seize the contraband pursuant to the warrant. Having permitted the consignee to use his premises as the place for the receipt of the contraband, the recipient cannot frustrate the seizure of the contraband by claiming that he is not a knowledgeable party to the shipment. Moreover, such permission cannot frustrate the search for additional contraband if the consignee using the recipient's premises as a place of delivery is the type of consignee whose actions furnish the inference that there is probable cause to believe other contraband under the control of the consignee will be present on the premises.

3] The possibility that the recipient is an innocent party has no relevancy to the seizure of the contraband but has relevancy only to the issue of the sufficiency of the evidence to hold the recipient to answer upon the charge of knowingly possessing the contraband, if he is so charged. We point out here that there is a strong suspicion that Weber was a knowledgeable party to the shipment in view of his spontaneous statement, 'Is it because of the packages?' made to the officers executing the warrant.

Accordingly, since the officers were justified in...