*1 the date the indictment was returned. November, 1952, to question initially he used the words judge asked the When the preceding para- period” quoted in the “the in the context graph. pro- understood the matter and Ehrlich said he Mr. give ceeded to court reply. an affirmative The however re- quired personal acknowledgment defendant and suggested The court that Mr. Ehrlich so advise the defendant. repeated question then but used the article “a” instead “period.” “the” before the Mr. Ehrlich advised the word The defendant, ‘Yes,’ “The answer is . . .” defendant then answered In the there no affirmative. context reason- believing for the defendant or able basis either attorney was either At the time of the misled confused. probation hearing pronouncement of sentence there was suggestion no that defendant had not been absent from the period question. state judgment and order are affirmed. Moore, J., Ashburn, P. J., concurred.
Appellant’s petition hearing by for a Supreme Court May was denied 22, 1957. No. 5689. Dist., 29, 1957.] Second Div.
[Crim. Three. Mar. THE PEOPLE, Respondent, v. T. ALANIZ, JUAN
Appellant. *2 Appellant. for
Louis Romero Attorney Brown, General, Edmund and Norman H. G. Attorney Deputy General, Respondent. Sokolow, (Parker), charged viola- J. Defendant waswith WOOD Safety in that tion of section 11500 of the Health and Code unlawfully possession. he heroin in He admitted had allegations he convicted of of the information that had been 11500). jury trial, In a (violations two said felonies § judgment and the appeals he was He from convicted. denying order trial. his motion for a new
Appellant no cause contends that there was arrest, subsequent for the search and seizure were unlawful. January 20, 1956,
Officer about Smith testified that on p. m., 7:55 he in front of 24102 stop saw an Fries automobile Avenue in he Officer DeLeon Wilmington; at time address, (Officer were in an automobile near that Smith) drove their automobile to the automobile which had stopped; Officer got DeLeon out of their automobile and went to automobile; driver’s side other Officer got Smith also driv- automobile, out which he had been ing, and went to the automobile, driver’s side of the other arriving there about or 20 seconds after Officer DeLeon there; arrived defendant seat of other driver’s automobile; boys, ages two whose 14 and 11 also were in the other automobile. Officer Smith testified further that he arrested the defendant; and DeLeon that Officer arrested the defendant.
After the testimony above given, had been counsel for de- requested fendant the court to hear evidence out of the presence jury of the respect with cause for the arrest. Thereupon, presence out of the jury, of the Officer Smith testified that days about 10 before the arrest an informer (referred to A) gave herein as informer him information to a location where being narcotics were distributed; the information included regarding directions streets to travel in get order to to the location—no address given; he had known the informer more year, than a and information he had previously received from him had been reliable. He testified further January that on (re- 19 another informer ferred to as B) informer stated that being narcotics were dispensed “from (the this location” same given by location A), informer the car was described as a 2-door black Chevrolet which was “lowered in back,” that the fellow was described as a Mexican with a mustache, and his name was Johnny; (officer) he had known the informer more than year, a and information which he had previously received from him had been reliable. He testified further than on January p. about 6 m., another (referred informer to as C) by telephone called him gave and him “the block where in the center was about and located stated house was persons were that two informer also said block”; Zacci, them was and of one of the name involved in- (officer) he knew the Chevrolet; 1950 black car was a previ- by telephone, and had voice recognized his former, him. testified information from He reliable ously received p. January 20, m., 6 :30 another in- on about than further D) him and DeLeon that to as told Officer (referred former “from he being dispensed place,” this narcotics were a black house, and that car involved was the exact knew the informer more (officer) he had known than Chevrolet; year. January 20, testified further than on about Smith Officer location, concerning he which he had p. m., went information, received and he previously saw black Chevrolet January the house. He testified further that on front of he 20, just prior arrest, Chevrolet, saw a which had he in front previously house, seen make a U-turn park house; driving front the man who description fitted the that had given previ- Chevrolet been ously the went to the ; Chevrolet within a seconds few stopped; man therein after it said that his name was (officer) Johnny; flashlight he turned his on the man’s arm he had and noticed that numerous scab formations over a vein, appeared and some of them fresh; response questions, the man he said that was not a user but he had (officer) been; flashlight car, through turned into the door, open and observed bindle on board, the floor which appeared to be a of heroin; bindle bindle the conversation might with defendant have taken or 20 seconds; Officer asked DeLeon if Smith Officer he had defendant arrest, under DeLeon “Yes,” and Officer said and Officer said, Smith you “If haven’t he’s under arrest now.” He also testified given by that information the informers was confidential that the interest would if give suffer he were to names of the informers.
Also, presence out of the jury, Officer DeLeon testi- January fied p. m., about 6:30 he had a conversa- *4 D, tion with informer whom he had known about years; three after that conversation he and that informer went to the vicinity of 24102 Avenue, Fries pointed and the informer out place house at that address as the where purchased he had narcotics; pointed he also out a 1949 black Chevrolet auto- mobile which was then front of the house; the informer stayed minutes,
went to the house, about return- ing that stated narcotics in the automobile which were was house; then in front of (officer) he communicated said Smith; defendant, information to Officer after the arrest Officer DeLeon (witness) house, per- searched the with the mission of Jiminez, Mrs. who house; lived he found needle, spoon, dropper cotton, wrapped and wet which were together and were in a linen cabinet in bathroom; son of Mrs. Jiminez known as Zacei.
Also, presence out of the jury, Mrs. Jiminez testified that she lived at 24102 Pries Avenue; her son Zaeci lived also; January there on 20, 1956, when there on was a knock the door, she girl open told a the door; person the door police said he was a officer and he had to search her house; she told him that it was all right; defendant had been in her bathroom on day. that The court ruled to the effect that there was cause
for the arrest and search. Thereupon, proceeded the trial presence jury. Officer Smith testified further, repeating testimony he given had (out of presence of the jury) regarding: marks on arm; defendant’s the statement of defendant that he had been a user; and the bindle which was on the floor board. He testified further that raining prior had been to and soon after the arrest; that packages he found two ground near the Chevrolet; packages those dry.
Officer DeLeon testified that participated he in the arrest of defendant in front of 24102 Pries Avenue; he saw small bindle on the floor of the Chevrolet, and he saw Officer pick Smith it up; (witness) he also saw two bindles street the side of the Chevrolet, he saw Officer Smith pick them up; (witness) went into the house at said address and needle, dropper found the spoon, and cotton (Exhibit 3) in a response linen cabinet in bathroom; questions, (Exhibit defendant said the “outfit” 3) was his, put morning he had it in the (January house 20), using and he “caps” one one-half of heroin a day. packages
The three bindles or contained heroin. Jiminez, Mrs. called as a witness defendant, testified Seferino, her son who is known as Zaeci, lived at her (24102 house Avenue) Pries and he was January there on said 20; Johnny, Juan the defendant, was at her house on January 20 and he went into the bathroom; he had taken *5 ride. grandchildren, Medina, her Henry and Richard arrested.) defendant was when (They the were in Chevrolet testified by defendant, a witness Medina, Concha called as and Richard, Henry and boys that she is mother of the the January 20 de- ; on daughter she the Mrs. Jiminez working automobile; her on had at her house fendant been to her house came p. day, about of that defendant 7:20 m. and take Jiminez, Henry Mrs. grandmother to his take grandmother. Richard to his other the Defendant testified that he owned Chevrolet involved here; p. day about m. on the of the arrest he drove a 1:30 truck to Mrs. he had left his Chevrolet house; Jiminez’s night gone there and had in the truck previously, he home; house, his soon after he arrived at Mrs. Jiminez’s he and in the house, Zacci went to Concha Medina’s Chevrolet (defendant) repaired automobile; where he her he and Zacci place p. left about her 6 m. and returned Mrs. Jiminez’s arriving p. m.; (defendant) there 6 :15
house, about he went into hands; the bathroom that house and washed oil off his during he minutes that was house about 15 time Zacci Chevrolet; used the when Zacci returned the Chev- got rolet, drove it to the two house, boys, defendant Concha’s in place back to the front Mrs. Jiminez’s house drove he was he did bindle arrested; where not know was on packages street; the automobile or that the two the first time he saw the bindles was when officers called them; did not his attention to he know what was not his; he told the officers that bindles were bindles; (Exhibit 3) spoon “outfit” into he did not take the (Exhibit things that those house; told Officer DeLeon during (defendant’s); evening there had not his 3) were but at the light drizzles, time been intermittent showers dry; the bindles which the officers arrest the street was dry, dry; and the was also the street were street found on arm (defendant’s) which were caused scars on there were years ago. punctures he used heroin by when participated that he had testified DeLeon, who Officer and he a witness defendant was called as arrest, ‘ ‘ defendant how soon after the about DeLeon, Officer asked: you place did Jiminez’s stopped the car in front Mrs. say im- “I would almost answered: arrest?” He effect the mediately.” testified that he defendant, a witness called as
Zacci, did not p. day use the Chevrolet about 6 :30 m on the go to arrest, to the store.
Appellant
stated,
arresting
contends, as above
probable
arresting
officers did not have
cause for
him. He
argues
given by
that the
informers
information
was not
Trowbridge
sufficient to constitute
cause.
In
Superior Court,
Cal.App.2d
P.2d
arrest
made
information furnished
informer,
arresting
whom
supplied
officer knew and
had
who
officer with reliable
two or three occasions.
(p. 17)
was held
ease
that the arrest was lawful.
*6
may
solely
“A
arrest
valid
be made
of informa-
reason
People
tion communicated
a reliable
Montes,
informant.”
v.
Cal.App.2d 530,
People
146
P.2d 1064];
Penson,
532
v.
[303
148 Cal.App.2d
People
In
24].)
539
P.2d
page
v. Boyles,
Appellant also contends that search of the the house by Officer had DeLeon was unlawful. The officers informa tion from the the informers to effect that narcotics were being just distributed from the house. The had ar officers person rested a in house front of the and had found bindles apparently which heroin; person contained and the arrested appeared description person of to fit the referred to, dispensed one of informers, person the as a who narcotics person appeared from that location; the arrested to be a user of narcotics. officer When the knocked on the door of the house, opened. the door was When the officer identified himself and said that he had search house, lady the the right. who lived told him it was all there that The evidence legally prove sufficient to the search the house was not unlawful.
Appellant further that contends the trial court abused denying its in motion that discretion his the witnesses, ex cept the be excluded from the testifying, one courtroom. Such a is within the discretion of the trial motion court. Cal.App.2d (People Boyden, 773].) P.2d Apparently pertained principally po- to the motion two deputy made, lice officers. the motion was district When attorney the pre- had testified at said the two officers liminary hearing. appear not It does there was abuse of discretion. proc contends that he was denied due also
Appellant require police did not trial court because ess of law identity informers. Section disclose officers provides: Procedure 5, of Code Civil 1881, subdivision as not be examined to communications public officer can “A confidence, public when the interest him in official made to by the testified that disclosure.” Officer Smith suffer would given by the informers was confidential and if the interest would suffer names the in People Gonzales, Cal.App. disclosed. In formers were (pp. 607-608) that, it was held under P.2d 2d 604 [297 therein, refusing did court not err circumstances police defendant to cross-examine the to allow informant. It was in that name of their case to the said as “The officer’s information must have page come 608: good and the must source officer act faith from a reliable had that he received information from testifying good pass scrutiny faith must and such person, reliable having abuse of discretion been judge. shown, the trial No ruling the present was correct.” In case, the court’s objections sustaining questions err court did *7 identity of the informers. to the denying order a and the the motion for judgment, The affirmed. trial, are new judgment. in the As I read the
SHINN, P. J. I concur they defendant before dis- the officers arrested the record objects any scars on his any in his car or observed covered they had They acted the information received arms. defendant’s plus own observations of informers, their from surroundings. my opinion that is actions as related to by the nor their information the received neither standing alone, conduct, would of defendant’s observations cause for the arrest. reasonable have furnished may opinion be our of the Whatever character of informers general reliability, and we must they in their realize necessary part against the fight have a the traffic in nar- of which we are cotics. cases with familiar Scores establish this fact. I do not that all informers are venal. I do imply not doubt that unwilling there are addicts and former ad- they dicts who duty join believe have fight against a criminal and vicious alarming activities that have assumed proportions. But I do not believe that even those who are completely blind to illegal the evils of and dishonorable methods of go law enforcement would say so far as to one citizen can cause the by merely pointing arrest of another finger him him calling a law breaker. Accusations coming from an regarded merely informer should be starting point investigation. of an If investigation the does develop not facts which furnish substantial corroboration of statements the informers there is no reasonable cause for an There can arrest. be no formula for determin- ing sufficiency the of the corroborative circumstances. Pur- veyors cunning. They “ways of narcotics are that are dark and tricks that are vain.” of those under Conduct suspicion handling major significance of narcotics be of although to a trained officer other connection it would suspicion. It is even arouse within the discretion of the hearing properly in a court, trial conducted in the absence whether the jury, information, to determine corroborating justify presentation circumstances relevant jury concerning the entire to the evidence arrest discovery of contraband. I do not doubt that evi- legality present case established the of the ar- dence officers as The observations of the location rest. identity (defendant Zaeei and house, Johnnie by the in which Juan), the car described informants named shortly that one informant seated, fact defendant stating the house and came back the arrest entered before plain sight on narcotics were he had learned that the and that there were “a hell of of the ear the front seat parking of car in front of the house them,” the lot of fact that defendant answered and the separate occasions, furnished sufficient description men, one of the veri- previously the officershad received. the information fication of by the the one described house under surveillance out to be house. and it turned informers incriminating there would In the absence or the for the surveillance whatever no reason have been arrest. Vallée that agree People with Mr. Justice when the
I *8 proof statements informers as of the of reason- make use to conceal they right waive the grounds able for arrest names the name or from court the accused the every case the not follow informers, but does if the names de- compel the disclosure court must and not court, matter for the it. It is a fendant demands decide. If concealment prosecutor the or witness probably would defendant—if nondisclosure unfair to the might relevant furnish or disclosure hamper his defense if ought not to available, concealment not otherwise evidence de- permitted. be resolved in favor Doubts should mistakes. from court’s should not suffer fendant. He States, 353 U.S. In Roviaro United court, quoted by Vallée, Mr. Justice L.Ed.2d spoke as “We believe through Burton, follows: Mr. Justice justifiable. respect to disclosure is fixed rule with no balancing public in for problem is one that calls against the in protecting of information the flow terest in proper prepare his defense. Whether dividual’s depend on must erroneous balance renders nondisclosure taking into considera particular case, circumstances of each possible possible defenses, charged, tion the crime testimony, and other relevant significance informer’s factors. . . . a case
“This is where the informer was the Government’s together participant, sole accused, with the trans- charged. the only action The informer was in a witness position amplify testimony govern- or contradict ment witness Moreover, witnesses. Government testified having knowing petitioner that Doe denied seen him ever these circumstances, conclude under that, before. We prejudicial permitting error trial court committed identity of undercover em- Government to withhold the its ployee by the accused repeated in the face of demands his disclosure.”
I see that permitting cannot concealment of the names of the informers was an abuse discretion or that it re- any prejudice sulted to the defendant. If the informers had called as testimony been witnesses their would any tended to establish affirmative most, defense. At de- they hoped deny having given fendant could have would the officers. But when the entire evidence was before the court and it was established that the con- corresponded ditions observed the officers with the facts by stated informants there would have remained no rea- *9 son to that believe given officers had not been the in- fight formation. In the against the narcotic traffic there are advantages clear encouraging cooperation of addicts and others in the detection of criminal activities. Much of this would be if given lost information could not be con- fidence. The names of informers need not be disclosed when there is no reason to believe that concealment would be unfair to the defendant might because disclosures in some strengthen manner his defense.
The court did not preserving abuse its discretion in anonymity prej- of the informers and defendant suffered no udice.
VALLÉE,
J.
I dissent. The evidence is without con
flict
solely
that the arrest
made
on
was
information received
from one or more so-called informers.
attorney
The
general
so
argument.
conceded at
IAs
read the prevailing
opinion,
may
that an
holds
arrest
solely
made
on such
Supreme
information.
Until
Court in unequivocal lan
guage says it is the law that
information given by one or
more informers is sufficient in itself to
probable
constitute
police
cause for a
person
officer to believe a
has committed a
felony
justify
and thus
the arrest of
person,
I cannot con
cur in
holding.
Supreme
such a
The
Court has not done so.
Supreme
Court of the United States characterizes the
“dirty
use
informers
(On
business.”
Lee v. United
States,
The arrest, consequently the search, was made in vio- lation of rights. Despite my defendant’s constitutional ut- most abhorrence and detestation of peddlers, narcotics I give cannot prosecution sanction to a for crime which involves commission of wrongs another crime. Unless two make a right, prosecutions and only convictions which can be obtained graver by any violations of law should not be countenanced public policy. reject consideration of sound I the odious justifies reprehensible doctrine that the end means. majority As I read the cases view is received from an informer is insufficient in itself to con- People Moore, In stitute cause for an arrest. v. Cal.App.2d (p. 89): P.2d this court stated “Information, anonymous is rele- provided an informer but in the absence of cause, of reasonable on the issue vant solely emergency an arrest not be based pressing some Superior Court, (Willson 46 Cal.2d on such information. 36].)” P.2d 291, 294 [294 pressing emergency in the record of
There is no evidence nothing testified emergency. The officers there or of ordinary driving in defendant’s suspicious or out of the or in his conduct. of the automobile Kind, (2 Cir.) 87 F.2d a case in In United States an arrest and search was made information received which anonymous informer, (p. 316): the court stated from received from the unnamed and “The information un- person not sufficient to show known the crime charged suppress A motion made to was committed. this *10 previous to the trial. was denied It was renewed evidence clearly at the trial denied. The search seizure was (U. a Constitution). of the Fourth Amendment S. violation thereby And the obtained evidence was im- [Citations.] properly received.” Lee, (2 Cir.) 195, prosecution
In United
v.
83 F.2d
States
smoking opium,
(p.
it is
196)
stated
:
was there
“Nor
cause to believe that an offense
being
presence
committed
in the
of the
that
officers so
lawfully
an arrest could be
made without a warrant. Ac
cording to the
and testimony
affidavit
government
of the
they proceeded
agents,
first
advice of an
informer
opium
upon the smell
at a crack in the door. The
inadequate to
(To
first was
secure warrant.”
the same
v.
effect,
States,
(U.S.App.
Contee
United
D.C.) 215 F.2d
Worthington
324, 326-327;
(6 Cir.)
v. United States,
166
565-566;
F.2d
United
557,
States v. Baldocci,
567;
42 F.2d
Yu, F.Supp.
Tom
United States v.
1
357, 360; United States
F.Supp.
Castle,
436,
v.
138
439;
Commonwealth,
Smallwood v.
Ky.
945, 947];
Zupan,
305
520
S.W.2d
State v.
155
[204
671,
; People
80
P.
v. Guertins,
Wash.
224
8Mich.
674]
[283
561,
; Eldredge Mitchell,
N.W.
v.
214
480
Mass.
562]
[194
-
69];
State,-
N.E.
Merwin v.
Okla.Crim.
[102
[277
;
P.2d
State v.
208,
Arregui,
788,
Reasonable must exist Brown, (People time of the arrest. v. 45 640 Cal.2d [290 justified by 528].) search, An arrest cannot be what a P.2d produces. (People Gale, 253, v. 46 Cal.2d follows, which 255-256 13].) P.2d And a search, whether incidental to an arrest or not, justified cannot be up. what it turns (People Brown, supra, 643.) I am further opinion of the sustaining the court erred in objections prosecution of the questions directed to the police seeking the identity of the informers. “Since protection against privileged communications often leads to a suppression of truth and to a defeat of justice, tendency of the courts is toward a strict construction of (Samish such statutes.” Superior Court, Cal.App.2d 685, 695 P.2d 305].) Supreme Court of the holding United States, prejudicial error to objections sustain prose of the questions cution to directed agents to federal narcotic seek
ing
identity
of an informer in
States,
Roviaro v. United
“Petitioner contends that up- the trial court erred holding identity Government to withhold the argues John Doe. He participant Doe was active illegal activity charged and that, therefore, Gov- ernment could not withhold his identity, whereabouts, and whether he was alive or dead at the of trial. The time Government does not defend the nondisclosure of Doe’s identity respect with charged Count which sale of heroin attempts judgment to John but it Doe, to sustain the on the charging illegal basis of the conviction on Count transportation argues of narcotics. the conviction may properly upheld identity Count since the informer, circumstances of this real ease, has no bear- ing charge privileged. on that and is therefore *11 usually privilege
“What referred to as the informer’s reality privilege is in to withhold from Government’s identity persons disclosure the of who furnish information charged of of violations law with enforcement of that law. States, Scher v. United 305 254 251, U.S. S.Ct. Quarles 174, In; Butler, 83 L.Ed. re 158 532 U.S. 151] 959, Vogel ; Gruaz, S.Ct. 39 L.Ed. 110 U.S. 1080] 311, 12, purpose L.Ed. of the privilege protection public in- is the furtherance and of the privilege recognizes terest in enforcement. The effective law knowledge obligation of citizens to communicate their of Week, March 1The United States Law vol. No. 1957. of and, commission crimes to law-enforcement officials by preserving encourages anonymity, perform their them to obligation. scope privilege underlying
“The is limited its purpose. Thus, where the disclosure of the contents of a identity will not tend to communication reveal of an privileged. informer, the contents are not Likewise, once identity of the informer has been disclosed to those who privilege cause to resent the communication, would have longer applicable. is no applicability
“A further limitation on the privilege requirements arises from the fundamental of fairness. Where the disclosure of an informer’s or of the identity, contents helpful is relevant and communication, his to the defense or to a fair accused, is essential determination aof way. cause, privilege give In these must situations the may require and, trial court disclosure if the Government information, dismiss the withholds action. Most of the involving scope this limitation federal cases on the privilege legality informer’s have arisen where the of a search without warrant is in issue and the communications of an informer are claimed to establish cause. In required been these cases Government has to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication. Appeals
“Three recent cases the Courts have in- problem here—the the identical raised volved Government’s identity helped to withhold the of an informer who present up the crime and who was set the commission of States, 582; 221 F.2d its occurrence. Portomene v. United United Conforti, 365; United 200 F.2d Sorrentino v. States v. States, F.2d In each case it was stated 627.
identity disclosed whenever the of such an informer must be helpful testimony may informer’s be relevant accused’s defense. with the burden petitioner was faced
“The fact that here possession of the heroin alleged explaining justifying any material witness. emphasizes his vital need for access un- might become going forward burden of Otherwise, duly heavy.” court reasoned 627, Blich, 45 F.2d
In United States (p.629) : then come to discuss that feature of the case which
“We *12 involves the give refusal of the officer to the name of his upon informant. point, Counsel have cited no cases the exact although language there is in the case of United States v. Allen, (D.C.) States, F.2d and Emite v. United (C.C.A.) 15 F.2d an would indicate that such which might element enter of the court in into the consideration probable determination of whether or not a cause existed. only question not, . .. The is to whether or when here presented purpose seeking the matter is to a court for the a circumstances, determination of under all the whether, probable there was this element of those circumstances cause, may scarcely remain an answer to the undisclosed. It is proposition agent that an testifies that his informant was a reliable person, and that he believed the information so given, sitting judgment unless the court may have the to whether, determine under all the circumstances, in- such agent justified formation was reliable and the having such upon belief. A belief must or should rest a substantial question impugning basis. It is not a the motives or doubt- ing agent regard honest belief of the to the informa- may tion simply which he have received. requiring and witness sustain his motives his beliefs all the prohibition evidence at his command. It is conceivable that a agent eagerness performing and earnestness his duty might adopt very shadowy greater leads. But what is of consequence person might give an is that ill-intentioned many officer information which would instances lead to humiliation and of the innocent automobile driver vexation upon highway, yet, with the failure to dis- informant, prohibition agent close the name of would testimony safely his blanket that he ensconced behind person. . . informed reliable . go say far
“I will not so as to testimony hearing informer presented of this kind must be probable establish the cause, opinion but I am of the only adopt safe rule to will require be to officers who presume to search and make seizures of automobiles public highway, warrant, every without disclose element goes up probable which to make their case of cause, reasonably that this rule includes the source of their informa- tion, so that the court determine whether or not under all the circumstances case of has cause been estab- perhaps lished, as well to restrict informers to a sin- cerity purpose.” In State, Smith v. Tenn. S.W.2d (90
court stated
524):
S.W.2d
think,
we
when an
“So
justify
officer seeks
an arrest
*13
upon
charge
upon
‘a
made
cause,’
reasonable
the officer
required
should be
to
making
reveal
identity
person
of the
charge
as well as the
charge.
nature of the
The court
pass upon
has to
justifica-
officer’s
and that
justification,
open
impeachment.
tion is
to
A
be
defendant should not
bound
the officer’s statement that a charge
made,
had been
and, unless the
of the charge
source
ascertained,
neither
good
its
faith nor reality could
challenged.
well be
un-
An
scrupulous
upon
officer,
story
fictitious
charge made,’
of ‘a
might
any arrest,
vindicate
unlawful,
however
if there could
inquiry.”
be no further
Mapp
State,
In
stated So. assignments of the “One of error is that the court erred refusing permit to the defendant to ask the and witness, him answer, from whom he obtained his information. above, ruling As stated the court’s was to the effect that the required witness would to answer as gave to who whisky him the information that the was to be manufactured place . at the described. . .
“We think the defendant had a to propound the question and witness, to the have it answered, as to where he inquiry This might obtained information. have been up by eliciting exactly followed others what was said and the person giving character of the the information; and other pertinent questions showing the nature of the information might also have led to communicated the examination of the might who informant, have contradicted the officerwith refer- given. immunity ence the information from unreason- seizure, and arrest is one of search, able the most valued and our Rights liberties afforded secured Bill of under the state and federal Constitutions. And these liberties promote peace and secured tend order—consequently, the prosperity and of the whole welfare state. While communi- knowledge cating officers of a commis- commendable, person a citizen is sion crime such mak- and officer ing acting upon ought the communication such it willing resulting upon issue from acting to be to face the such warrant, information. Where an officer acts without a justify must, law, action, under he cannot avoid theory doing on the that to do so would so violate con- rights of communication. The others fidence or confidential obtain proceedings, the court should are involved such available, standing nearly possession the information as of all place officer, judging from the possible possessed, officer before decides the suffi- facts which the probable to constitute cause.” ciency of the information says (118 539): Miss. 518 State, 151 So. So. Hill v. might have been shown to be a notorious informant “The person unquestionable or a in community, in that liar have, must in order to de tegrity. facts the court These truth the officer’s belief termine whether state warranted, and order to allow the defendant an ment was statement which the officer opportunity show unworthy of belief and that no cause acted was for such existed search.” F.Supp. ap Keown, cited with
United States
Superior Court,
“In the ease here reputation knew the of one of the de- and arrest the search *14 that of a dealer in liquor, to be illicit but fendants arrested the defendant would be or what kind of did not know where day using on the but for arrest, be facts car he would by him the informer. furnished of informer was unreliable or he
“If officer did not unworthy belief, of have or the make either search arrest. follows that cause to properly all facts before it can have de- the court must on grounds. officer acted reasonable If termine whether law-abiding stop peaceful, a citizen on the officer should an subjecting him car, his to humiliation highway and search by the offended citizen should seek ridicule, and redress and surely say no court damages, would the officer for a suit by responsibility an answer that of he was would be relieved person that engaged the citizen was a reliable informed he could not and liquor traffic, but would not dis- the illicit preventing thus fair informer, of a the name close certainty his conduct. The of investigation of impartial greatest attributes. We cannot have one law one of its law is of identical state facts the innocent and applicable to an guilty may escape guilty. The sometimes for the another need not follow if the but this officer be rule, under such may kept in- the secrets state likewise diligent, in- may use the facts furnished officer The violate. investigation for bis suffi- former as basis own discover disclosing to or the source cient facts search arrest without of his information.
“In here, the case officers could pursued have until, automobile from the conduct of the or driver a dis- car, closure of the contents sufficient facts could have legally been ascertained made the search and arrest. a state of it would facts, Under such have been immaterial or was, as to who the informer from what source the officer obtained his information. “Every person accused has the on cross-examine every against
material facts witness who testifies him. This rule has been the ever since the law became certain and stabilized, part and is a of due process, which found ex- its Fifth pression and Sixth Amendments to the Constitu- History tion. Hale’s See Common Law, page 145; (2d ed.) 1, page on Evidence vol. Starkie 160. government
“When the calls a testimony witness whose part informer, subjects on that an based the witness and the peril to cross-examination informer to whatever out of arise such cross-examination. It is keep a sound rule to information furnished to secret the state of violations of its but this commendable laws, policy yield must higher, equal, right or least accorded to an accused to investigate have a court the facts material to his offense in a prosecution, criminal and sometimes departments put government will be to a choice of foregoing either a crim- prosecution disclosing inal the source of material informa- necessary of orderly judicial tion to the conduct procedure.” Appeals of People New York in Ramistella, Court 2d 566], (118 306 NY. 379 N.E. stated 568) N.E.2d : prevented “A error occurred when the Judge second Trial the location of the cross-examination so-called ‘con motor fidential number’ the stolen automobile after evi People. dence of that number had been introduced *15 motor stamped We told that the number of is are automobiles in places, plain view, in one the other in a two secret location only representatives car manufacturers, known to certain of companies police squads insurance and the auto theft auto larger prosecution cities. The offered evidence to show motor number on Sims car when it that the was stolen was 486214163; that on the car sold to Ramistella the La number, with, which had tampered the visible been Perlas 486220032; and that the number in the read secret location 578 registration. of Mrs. Sims’ as that
was 486214163—the same
conclusively established
believed,
This
if
rather
testimony,
the stolen
La Perlas was
the ear sold
Ramistella
weight
way
knowing
question.
in
of
what
car
We
no
car.
jury gave
identifying the
the other evidence
argument
People
“The
that this
must
kept
protect
aid in
secret in order to
and to
penal
persuasive. Even
justice
is not
administration
compelling
companies
less
is the assertion that
insurance
writing
will cease
auto
insurance if
theft
the confidential
location is
the interests of the insurance
revealed. Neither
companies
agencies
nor the convenience of law enforcement
right
justify depriving
can
this accused of his constitutional
prosecution’s
important
to cross-examine the
witnesses
so
against
a link in the case
him.
‘ ‘
right
judicial
in our
to cross-examine is basic
system,
282
States,
218,
v. United
75 L.Ed.
U.S. 687
S.Ct.
[51
Alford
People
Becker,
274,
210
624];
v.
N.Y.
304-305
N.E.
[104
Cole,
; People
508,
v.
N.Y.
512-513,
43
has
407]
times,
Regents
from earliest
Friedel v. Board
Uni
been
versity
York, 296
352
N.E.2d
New
N.Y.
[73
548].
right
Although
the last-cited case we held that ‘once the
accorded,
has been
the extent of cross-examination rests
thereof
largely
tribunal,
discretion
whose exercise
abused’,
unless
such
denial or limitation
is not reviewable
upheld only
has been
where
has
of cross-examination
matters,
right
where the
itself
related to collateral
has
Surely
Judge
a Trial
cannot de
abused,
been
[citations].
inquire
of his constitutional
prive
where,
defendant
directly
principal
relevant
issues
matter
here,
Becker,
against him, People
supra;
v.
of the case
v.
Alford
People
supra.
Cole,
States, supra;
v.
United
question
any
if
information in
sense
“Even
People
privilege
such
ad
abandoned
privileged, the
discrepancy
between the
ducing on direct examination
Andolschek, Cir.,
v.
2
United
142
numbers,
motor
States
two
Beekman, Cir.,
2
155 F.2d
States v.
503, 506; United
F.2d
Keown, D.C.,
F.Supp. 639;
v.
19
States
580, 584; United
Coplon,
629, 638,
2
F.2d
certiorari
Cir., v.
United States
People
; see
362, 96 L.Ed.
S.Ct.
688]
denied
U.S.
;
N.E.2d
Gordon v.
579 page at 638; see also, Reynolds, United States 345 v. U.S. 12 727], S.Ct. 528, 97 L.Ed.
“Of companies police course the insurance the are to free use such conducting confidential motor numbers in investigations. their auto justice theft But court of they either employ must some of identifying other method the stolen they car—as could confined indeed themselves to in this if the number case—or, confidential is used as against they permit evidence the their defendant, must wit- nesses to be respect cross-examined with thereto, including prosecution may its confidential location. A witness not have immunity from defendant’s fundamental of cross- upon examination so matter as identification on vital the ground impenetrable (To that his is an evidence secret.” the effect, Riley State, same Okla.Crim. 380 P. 391.) Dissenting in Nugent, United States U.S. Douglas (97 97 L.Ed. wrote Mr. Justice 1426): L.Ed.
“The use of who need statements informers not con- person investigation front the under or accusation has such history an infamous that it should be rooted out from our procedure. people hearing A which these faceless are present whispered yet allowed to escape their rumors test and hearing the torture cross-examination is not a of Anglo-American sense. be done with We should the practice—whether stake, repu- the life of man is at or his touching tation, rights. or or his matter his status judicial reports If FBI or are disclosed administrative underground proceedings, it be that valuable sources If dry up. is not choice. the aim is will But the report FBI protect underground informers, of the need requires used, If then fairness not used. it is identity be disclosed. Without names the accusers person investigated the informer accused stands helpless. prejudices, credibility, passions, the perjury they of the informer are never If known. were charge might exposed, wither under the whole the cross- examination.” only why speculate
I can
informers were
called
they
prosecution.
If
had the information the they
they
material
them,
received from
were
witnesses
said
unlikely assumption
not an
against defendant.
It seems
jury
have led a
of character would
blemishes and defects
testimony.
from the
distrust
their
evidence
appears
they
probably
Apparently they
were
narcotic users.
enough to
close
to serve as
underworld
bait.
present
following procedure
pursued:
In the
case the
police
.
officers],
Mr. Smith [one
“The
Court:
.
.
you
gives you
privilege
I will instruct
that the
law
you
refusing
divulge
name
the informant
if
so
given
you
confidence,
desire if
by revealing
interest would suffer
the name of
*17
to
the
I am
informed as whether or not that
informant.
not
do
the
: It is a fact.
I
not wish to
is
fact.
The
Witness
divulge the confidential information. The Court
: Was it
by
given
you
the informer? The
to
in confidence
Witness:
public
you tell me whether or not the
Yes. The
Could
:
Court
given
if
the informer
interest would
the name of
?
suffer
it
I
used
Yes,
:
:
the
would.
The
The Court
Witness
singular.
you
in
I believe
said there
word ‘informant’
the
Yes,
four.
were four. The
there were
Witness:
The Court:
four?
apply
Yes,
that
to each of the
The Witness:
Does
ruling
will
the
that
it
I
sustain
I
does.
Court: Then
The
question.”
objection
the
the last
The witness
made on
pro-
informants were
The same
the
reliable.
also testified
procedure
This
pursued
cedure
with Officer DeLeon.
was
was
legion
are
it is
manifestly wrong. The authorities
for
whether the
witness,
not the
determine
com-
court,
the
confidence and whether
made in official
munications were
There
public interest would suffer
disclosure.2
the
public
suffer—only
interest would
as to how the
no evidence
Testimony
police
a
opinions
of
officer
of the officers.
the
pure
of
person is
conclusion
the
reliable is
that such
practically
in
all the
strange
cases
It is
indeed
officer.
reviewing
involving
recent
months
reaching the
courts
the
of
search,
or of a
basis
the
the arrest
the
of
lawfulness
large part
wholly or in
informa-
either
arrest or search
As
anonymous informers.
counsel for
from
tion received
exclusionary rule
“since the
came
put
below,
it
defendant
escaped
2Wigmore says:
that a Court which
which
“The truth cannot be
upon
determining the
of
facts
its
function
abdicates
the
inherent
admissibility
depends
furnish to bureaucratic officials
will
of evidence
abusing
privilege.
ample opportunities
The lawful limits of
for
the
too
beyond any control,
applicability
privilege
if its
is
are
extensible
very
whose interest
be to
determination
official
left
principle
policy
wrongdoing
privilege. Both
under
de
shield
mand that
and this has
Court;
privilege
be
shall
for the
the determination of
personages
highest
judicial
been insisted
both
Wigmore
Evidence,
ed.,
(8
England
on
3d
United States.”
2379.)
799, §
pattern
an identical
into effect there has been almost
mating
testimony
police officers as to their reasons for
if
If it is the law that an arrest is lawful made
the arrest.”
from informers and that
solely on information received
People
not
disclosed,
names of the informers need
might just as well not
Cahan,
Defendant they they claimed testify to information had received them any prosecution right waived to fore- informers, from the ascertaining the close the defendant from names the in- prevailing opinion The does formers on cross-examination. point, nor was it considered the cases cited discuss opinion. point good. an officer testi- Where fies he obtained information from informer and what that thereby was, right waives to refuse to dis- close the name informer. On disclosure the defendant subpoena person named and has ascertain version of the facts. grounds privilege exists, public
“The
policy which
purpose
known,
keeping
are well
from
which come within
those matters
the law of confidential com
munications.
would seem that one who might otherwise
*18
privilege
object
ground
estopped
on the
is
to do so when
he has introduced evidence which
very
discloses the
intelli
privileged.
gence
he claims
appears
which
There
to
to us
point
analogy between this
be a close
and another which has
frequently been decided. Where one introduces evidence of
object
he waives the
to
certain facts
to the offer of
opponent (South
of the same facts
evidence
St. Louis
Ry.
The Court 1270], 96 L.Ed. this States, 343 747 has U.S. 1277) : say (96 to L.Ed. accomplices, accessories, false informers,
“The use ‘dirty betrayals are busi- which friends, or of the other credibility. To the questions of may raise serious ness’ they is entitled broad latitude do, extent that a defendant the issues probe credibility by cross-examination and ’’ jury with careful instructions. submitted to the Hoben, Supreme Court of Utah State v. 36 Utah (102 1005) : P. said P. purpose “Though- be conceded for the of this it should inquired privileged the matters about were decision that 1881(5) to section under this subdivision statute similar [a Procedure], ruling wrong, Code Civil still government testimony sought because the itself invited the opened It the door and entered disclosure. concerning very privileged. claimed to inquiry matters be may . . There is no doubt that there . communications public prosecutor privileged; though made to a which are such, it should be conceded that these communications were yet state, here, disclosure, where the invites a and itself inquires about the privileged, per- matters claimed to be or acquiesces in, mits, inquiry, objection, may or such without part not of a have a disclosure truth, then be ‘public heard to assert that interests’ will suffer if the whole words, truth is disclosed. In other permit, state acquiesce in, long the disclosure so as the matters disclosed against defendant, put stop make and then to it when they advantage.” are to the defendant’s Guck,
State v. Yee says Ore. P. 363], (195 365) P. :
“Among the contentions of the point state this is one based on the clause in last section L., reading Ore. thus: “ public ‘A officer shall not be examined as to communica- to him in tions made official confidence when the inter- est would suffer the disclosure.’ “Assuming, deciding, without that the conversation between attorney the witnesses and the district was privileged, it is a privilege of officer—in this case the one in control of the prosecution. prerogative is within his exemp- waive the tion quoted. embodied the clause In offering the whole jury’s document for the consideration exemp- waived the *19 tion, and, moreover, clearly opinion of the that the by not submitting interest would suffer the transcription to the ’ ’ jury. This section therefore must be laid out of the case.
583 F.Supp. 731, 106 states Schneiderman, States v. United 738) (p. : prosecution bar, at conducted
“Accordingly, since Attorney of the General supervision U.S.C. under [28 subject ‘touching the matter 507(b) ], has adduced evidence § reports, privi it be held that communicated’ in the must inspection lege withholding from use the defense authority under 729, exhibits 730 731 ‘De sealed partment of No. 3229’ has been waived. Justice Order See Touhy Ragen, supra, 340, pages 468, 469, v. U.S. at 472-473 City (Cf. County 416, 95 L.Ed. & San [71 417].”3 Court, Superior Francisco v. 37 Cal.2d 233 P.2d People King, Cal.App. 122 1418]; 25 A.L.R.2d 56- In 89]; Strand, Cal.App. 170, P.2d re 89].) P.2d My position respect in this is the prosecution, having that called the to whom the communications are said to required have been made and them state what the com- were, thereby privilege subjected munications waived the subject-matter the officers to cross-examination on the communications, including persons names whom they prosecution were could require made. The not 3Wigmore English quotes refers to an ease and therefrom as follows: "1863, Richardson, 693; by poison; policeman, R. testified to F. & F. murder having finding poison premises on a search of defendant’s consequence give received, police regulations in of information refused under ‘ C. J., the names of informants. ordered him im Cockburn, mediately question, observing to answer the that this ease it was justice stated’; most material then to the ends of that it should be and it appeared girls that the informants were ‘two who not called ’ prosecution. as witnesses for the The Chief Justice afterwards com strongly menting produce them, Reporters on the failure to add: ‘Though particular so, yet might in this it ease was not it inbe similar given really guilty cases that the or derived from the party suspicion with view divert fix from himself and it on an person; again, might (and so) innocent it this it case was the information was derived from the accused herself and was accom panied by showing applying a statement her . . . innocence. The effect of supposed cases, manifest, prose in such the cutors or rule it is would be to enable policemen produce portions they might might such evidence please, and to withhold the witnesses the whole of whose evidence extraordinary demonstrate the innocence of the is accused. it supposed (in ordinary events) should ever have been cases all rule; subject, may there ever was such a and the writer latest on the Mr. entirely Best, ignores political except it cases. And deserve applies question consideration whether ever in such eases it where asked, merely purposes instance) with a view to elicit name for of observa (as credit, etc., present party tion or who but when gave position the information must have been in a to disclose some ’ ” thing (8 Wigmore Evidence, further as to the facts of the case. 756.) ed., 3d
584 helpful as officers to much of the matter disclose as any inquiry by further the it, and then the door shut Having required relating to the communications. defendant substantially covering the partial or one disclosure, a rather defendant privilege, entire it waived the matter, its became to full entitled a disclosure. they were communications, given,
The to the extent were they important prosecution; for the were evidence fact only bearing legality of arrest, i.e., the on the the evidence probable making the arrest whether officers had cause the the —a vital evidence which issue the case. The may may gave may may truthful; they or not have been they communications; not and if received have received the worthy from them, they may persons not have been obtained persons worthy of credit; they not from if received credit, it without could have been found that officers acted if making arrest; the names cause had been characters to have the communications said made given and had been a witness one or more them called as reasonably making communication, might and denied made, have been found the communications were not only In probable cause for the arrest did not exist. Cali- my case attention in which the al- fornia which has come to leged by officer, (the alleged informer was identified by he had not informer) was called testified defendant given (People Lunbeck, the officer v. 146 information. Cal.App.2d 1082].) Certainly defendant 539 P.2d a [303 precluded rebutting from in a action should not be criminal testimony of officer and thus let court determine puts “It Wigmore, referring privilege, it, to the fact. As (8 Wigmore not to both sword shield.” is and a Evidence, ed., 830, 2388.) 3d § privilege
The of a defendant in a criminal action to con against presence him in frontation the witnesses protected process the court clause of the federal is due (Snyder Massachusetts, v. 291 and state U.S. Constitutions. 575].) 330, 674, 678, 106 78 A.L.R L.Ed. 90 [54 denial is denial of due cross-examination Agricultural process. (Olive Proration etc. Committee v. People Committee, 918]; P.2d v. 17 Cal.2d 210 etc. [109 Langendorf Valdez, Cal.App.2d 744, 74]; 82 P.2d 749 [187 Cal.App.2d Com., Industrial 104 etc. Bakeries v. Acc. 87 Acc. 887]; P.2d Columbia Div. Industrial etc. Steel [195 Com., Cal.App.2d 862, 115 P.2d In re Shackel- 45]; 865 [253 610]; Argonaut Ins. Cal.App.2d 864, 867 P.2d ford, Cal.App.2d 145, 146- Com., 120 Industrial Acc. Exchange deprivation constitutional “It 817].) P.2d opportunity without evidence to receive process due ’’ (Columbia Steel v. Indus etc. Div. rebut and cross-examine. Cal.App.2d 45].) 862, 865 P.2d Com., 115 trial Acc. Cal.App.2d Shackelford, in In re 864 [254 This court 867) (p. : P.2d said to be confronted (defendant) was entitled petitioner
“The opportunity to cross-examine witnesses, to have documentary examine the evidence. It does and to them, rights. Receiving those . . . such appear he was accorded *21 petitioner according without such evidence additional rights and of confrontation examination was above-mentioned hearing, a fair and amounted to a denial due a denial of of process of law.”
Concurring
Hobby,
Peters
“Dr. some of whom were known even to the Board that condemned of him. these informers were not even Some under oath. None of them had to submit to had cross-examination. None far know, they face Dr. Peters. as we or the Board So psychopaths or people, be venal like Titus Oates, who being They may revel in informers. bear old grudges. Under might disappear cross-examination their stories like bubbles. whispered might Their confidences turn out to yarns be con- twisted people ceived minds who, though sincere, poor faculties of memory. observation and “Confrontation and cross-examination under oath are essen- of tial, process if the American ideal due is to remain a vital force in our We life. deal here reputation with the of men their work—things precious more than property system itself. We have here a government where power authority with all its condemns a suspect man to a darlmess, outer class and the without the rudiments of a fair practice using trial. The of faceless informers apparently has spread through a vast domain. It is only used not get rid of employees Government, but employees also who work private having firms contracts with the Government. It has touched countless hundreds of men and women and ruined many. practice It is an un-American which we should con- deprives ‘liberty’ demn. men within meaning precious of man’s most liber- for one Amendment, Fifth deprived a man is of that right to When his work. ties is process. denied due trial, fair he is . . . ‘liberty’ without position by saying of this counter the force who “Those see pro- of information must be sources that the Government’s against is to campaign subversives be successful. if the tected, pro- If the information need plain. sources The answer is kept they But once be secret. are used they should tection, deprive reputation and him of destroy ‘liberty,’ man’s process due put to the test of law. The use they must be wholly concept. at war with that informers faceless to accommodate relax our standards the faceless When we guarantees our basic constitutional we violate informer, ’’ despise. we ape of those whom the tactics deprived process of due of law when Defendant he was right to ascertain the names of the informers. denied I would reverse. hearing by for a
Appellant’s petition Supreme Court May 22, Carter, J., opinion 1957. was of the was denied granted. petition should 29, 1957.] 8986. Third Dist. Mar. No. [Civ. al., Appellants, v. MARVIN et E. J. NORTON BRAXTON Respondents. al., et FUTRELL