*1 Dist., Mar. 1970.] Second Div. One. No. 16725. [Crim. PEOPLE, Plaintiff and Respondent,
THE BRYANT, CLEVELAND Defendant and
JOSEPH Appellant.
Counsel Matthews, A1 Arthur Garrett and Arthur Shivell for Defendant and Appellant. General,
Thomas C. Lynch, James, Attorney William E. Assistant Attorney General, Kline, and James H. General, Deputy for Attorney Plaintiff and Respondent.
Opinion LILLIE, P. Acting J. Defendant was convicted of of heroin possession (§ 11500.5, Code); Health & he Saf. from the Before appeals judgment. trial he to (§ 1538.5, moved Code); evidence Pen. the motion suppress was submitted on the taken at transcript preliminary denied. At outset trial the refused to hearing judge permit renew (§ (h), Code) to his motion at the 1538.5 subd. Pen. but conclusion of the case defendant “to all moved stike exhibits” People’s seizure; the same search and denied. the motion was ground —unlawful Thus, on here that the and search were unlaw- argument arrest appellant’s ful, includes, should, our examination of the taken evidence also as it at the trial. Officer McClain testified at the Only hearing preliminary trial; defendant did not take the stand and offered no defense. them, informant, talked known reliable1
An previously unquestionably them that a around a.m. He told 1:35 Officer McClain and his partner Fields), in Gibson, user, (Vera and a woman man, a narcotic residing Terry heroin; Golden, that another were 842 East selling apartment there with (defendant) Joe the name of Little Joe or staying Bryant wife; Joe was a heroin user with his that Little them because of quarrel car; the “stash” either on himself and seller and carried in his Buick Riviera at all times with him”—while defendant “carried gun (heroin) underneath the and “stash” glove compartment kept gun car “he while from his a console between the bucket seats but away him”; ve- that when outside of his and the heroin on would carry gun waistband, at it was loaded in his all times hicle Little Joe carried that Little Joe’s car the actual had seen gun”; “[h]e [informer] tan.” minutes over black over was a Buick Riviera “black Twenty gold, *4 842 East later, a.m., drove the informer around Officer McClain 1:55 past which he said out an Golden the where informer Austin-Healey pointed car and car; did see Little Joe’s the informer not was Gibson’s sug- Terry we’ll check. the and drive around don’t alley through gested “Why you at the rear of the house for the There is apart- facility apartment parking we’ll see there and . . . drive ment house and an alley through through there”; “a at the rear in this if his car is thing,” they carport-type facility, vehicle,” descrbied as Joe had found “the vehicle Bryant’s informer] [the him car,” “When said, and Little Joe’s the “There’s you get informer the is where he the box. That sure check underneath make keeps glove you was locked him.” The vehicle have it with stash and the will gun, (after arrest his defendant’s the interior did not check they vehicle). drove out the car; was found in the no heroin found in They on the car /and left out of the informant the onto Golden where got alley East Golden doors from 842 several foot; then Officer McClain parked arrested effected forcible the went to and with his entry, apartment, partner and searched premises. occupants that he Officer McClain told the informant to the In foregoing addition Gibson, (Vera) and Little the woman knew people Terry personally — at (defendant) arriving Joe upon Joe or apartment, Bryant —in in which McClain out to Officer address apartment pointed informant, out to me (“This was by pointed apartment staying narcotics for had “this” -they “kept in apartment yes”); people sale— which given information to Officer McClain had informer prior 1On occasions the convictions; were narcotics these seven occasions on and five to seven arrests had led Saturday died the be The informant given by this informant. found all locations court’s ample support the trial hearing. evidence to There is preliminary fore Aguilar, (People Cal.App.2d 508 [49 240 reliability. v. implied finding of Cal.Rptr. 567 bedroom, it heroin; real close and was by it all didn’t have they any- (the else ...” narcotic found heroin; in the it thing only apartment bed); was found that Little [heroin]”; Joe “would be the stuff carrying that the in the and he had seen those people guns apartment guns rifles, (two loaded, himself one were found in the and he had apartment) seen “the actual carried defendant in his waistband and knew it gun” by to be loaded at all times. While the officer testified that the informer did not tell him he had been in the he did not that the in- apartment,2 testify told him former he had not been there and it is from the apparent foregoing had; that he it is also that the informer defendant, knew apparent personally had seen him heroin and knew defendant had heroin carry with him that morning. For that there existed no cause to arrest appellant’s position probable
him, Texas, he cites v. U.S. L.Ed.2d Aguilar 84 S.Ct. [12 Hamilton, 71 Cal.2d 1509] 681],
P.2d
that the information
Offi-
support
argument
by
possessed
cer McClain
to his
immediately
into the
entry
would not
prior
apartment
have enabled him to
obtain
valid arrest warrant. -It cannot be disputed
that Officer McClain had no
of defendant and his
personal knowledge
activities or of the other
in the
thus
affidavit
him
people
apartment,
any
of an arrest
viz.,
warrant would have been based on
support
hearsay,
the information
to him the
given
informant.
this
says
Appellant
*5
insufficient because the officer’s
fails to disclose the source of
information;
the informant’s
that Officer
did
McClain
not expressly testify
that the
had
informant
that defendant had heroin in his
personal knowledge
possession.
(1964)
v. Texas
(12
“Following [Aguilar 723, 1509)], 84 S.Ct. California courts have held that for an affidavit based on an informant’s statement to be sufficient to the hearsay legally support issuance warrant, of search (1) two met: must be the requirements affidavit must the informant’s statement in that is factual allege language rather than and must conclusionary establish that the informant with spoké statement; of personal the matters contained in knowledge (2) such the affidavit must contain some factual information from which underlying the the warrant can conclude that the inform- magistrate issuing reasonably ant was credible or his information reliable. v. Hamil- [Citations.]” (People ton, 176, 785, 71 Cal.2d 681].) 179-180 454 P.2d We Cal.Rptr. [77 2“Q. Did you this informant tell that he apartment? had been in the [by “A. Officer McClain] No.” Later, cross-examination, asked, “Q. on you say your Officer McClain was Did building answered, informant had been in the before?" and he He did “No. not.”
568 “the Officer McClain that think it clear from of foreging testimony of with of defendant’s informant knowledge” possession personal spoke carried the that defendant heroin that the source of his information his narcotic on his when not in car was informant’s personal which of a the manner in observation. “In absence statement detailing describe that the was it is information gathered, important tip especially that the criminal in sufficient detail accused’s may activity magistrate than a casual rumor know that he is on more substantial relying something individ merely an accusation based on an underworld or circulating States, 410, ual’s v. United 393 U.S. 416 [21 general (Spinelli reputation.” 637, 644, 584.) lack state of direct L.Ed.2d 89 S.Ct. Despite of ment had Officer McClain that the informer knowledge personal heroin, casual rumor of of reliance on defendant’s danger possession is not evident for the that the informant was reliable here record establishes contraband, and that facts its location the incriminating concerning the other criminal activities of defendant and occupants him, as to detailed and accurate were described by apartment sufficiently and that the observation informant inference permit personal heroin. v. Hamil of defendant’s (People knowledge personal ton, possession and the supra, 176, 181-182.) cause Cal.2d There 71 probable California, lawful; (Ker v. arrest a search incidental thereto is valid. Cockrell, 742-744, 1623]; U.S. 83 S.Ct. L.Ed.2d [10 408 P.2d Cal.2d their a.m., their or About 2 without knocking announcing presence officers, door identities as forced open apartment police partner while McClain with in hand. found Officer ran in They bed- and Vera in bed in the a couch in the room lying living Terry room. A of heroin and Vera Terry container belonging plastic down found the sheet the bed about under three-quarters way sheets, under the where Officer saw Vera her hand McClain “push pushing *6 down”; was found the table near the bed narcotic night paraphernalia and oh of the dresser. At the head of the couch on which top hat; said, a were a stack of and of them defendant clothes “They lying mine”; are his con- when the officer hat a of folded picked up piece plastic brim; fell off the there marks on heroin were numerous taining puncture Questioned the defendant said he was defendant’s arms. about marks just ahabit”; told “he and “didn’-t-have of the heroin he the officers “chipping” $75.” a friend that three from cost bought spoons 844, claim that the constituted a violation section entry of Appellant’s error, Code, Penal and is is without substance. Noncom- reversible
569 with be excused in which officer before section 844 cases in may pliance which led to believe that his information him reasonably entry possessed (Duke frustrated the arrest. would have increased peril compliance Court, 348, 314, 628]; 323 461 P.2d v. 1 Cal.3d [82 Superior Cal.Rptr. Kanos, 381, 902, v. 384-385 450 P.2d 70 Cal.2d [74 Cal.Rptr. People Rosales, 299, 1, 278]; v. Cal.2d P.2d 68 305 437 People [66 Cal.Rptr. Smith, 779, 797; 382, 489]; v. P.2d 63 Cal.2d 409 People [48 Cal.Rptr. Gilbert, 222]; 690, 909, People v. 63 Cal.2d 706-707 Cal.Rptr. [47 Hammond, 365]; 846, 233, v. 54 Cal.2d P.2d 854 [9 People Cal.Rptr. Carswell, 602, 289]; 99].) P.2d v. 51 Cal.2d P.2d People that a The record establishes Officer McClain acted on faith good that increase his him in belief would compliance peril place danger. that because “I had told that the defend He testified forced been they entry “I had ant would be ... on his made Bryant carrying person”; that on the conclusion if I had knocked door and announced my presence, . . . .” to him the that I be shot The information might given possibly informant of that before the reasonableness immediately entry supports belief sufficient to excuse with the statute. noncompliance informer, that he did not for the
Conceding press identity appel- lant not argues that he would have been a the issue material witness on but that refusal of “the guilt,3 generally facts divulge People informer, witness, to the relating who resulted obviously important facts, asserts, in fundamental unfairness.” One of those is what he hap- to the informant that that pened morning. Officer McClain testified when foot; he drove out of the onto Colden the the vehicle on informant left alley out,” he “I let further just him that he was not interested explained, in the However, informer that clear it from the record morning. is particular informant was at not the time either or arrest. entry present appellant successfully could only 3Nor do so for he had not failed but had made anonymous effort possibility no demonstrate “a reasonable informant identity sought give guilt might whose could evidence on the issue of which result Court, (Honore Superior 162, Cal.App.2d in defendant’s exoneration.” Cal.Rptr. v. 168 [74 169]; Garcia, 449 P.2d 67 Cal.2d 839-840 [64 434 P.2d The was dead informant could have been no Moreover, expected of him. defendant neither offered a defense nor took the witness stand; he made brought no someone .’apart assertion that else narcotic into hat, and laid it ment on the brim of his fact he told that he bought the officers friend; from a heroin he apartment, made no claim in the informer was to the contrary throughout his brief claims the record shows the informant never (this truly shows); been there is not what the evidence he does not claim that present entry informer suggestion time of or at arrest he makes no time of *7 any of possibility the give informant could evidence on the issue of guilt. Appellant vaguely argues that testimony the to informant’s material probable establish cause and illegal entry whether there was but he has not shown knowledge time, how of the deceased place informant’s name and and the manner of might his death possibly assist him now. were the disclosed have been claims should facts Other appellant to manner, death. As and of his the time and place identity the informant’s this but to establish tried latter, that the the record shows prosecutor the died informant that the officer testified defendant. The was prevented then the following questions hearing, before the Saturday preliminary answered thusly: were asked
“Q. died? know how he Do district attorney] you [deputy “A. Yes.
“Q. that? How was
“A. Bullet wounds. Honor, the last two I to object Your “Mr. [defense counsel] Acosta objec- answers on the ground immateriality,” two questions the court tion sustained. As at the identity, hearing preliminary McClain, do view the demise of the informant you asked Officer “In his withholding still to maintain as a officer wish your privilege police answered, “Yes, I do.” the officer Continuing, deputy identity?” asked, wish to reveal district there reason don’t “Is some attorney why you asked, answered, “Yes”; name of informant?” and officer your record estab- is that?” the “He has a The family.” officer “Why replied, of the informant that defendant neither asked the officer identity lishes reveal his At identity. nor court to the officer to preliminary require the court called attention but it is this to defendant’s hearing apparent did defendant ask not want the name.4 Nor at the trial did informant’s claims that there should of the informant. identity Finally, appellant been in- have been disclosure of actual cases in which the informant had volved, he has not here but this to the issue of which goes reliability raised. for 267
Based on his that he was incarcerated continuously complaint trial, case there were a the cause to number of days, delays bringing 4, 1968, was continued and his motion to over his on November objection for denied November dismiss failure to within 60 days prosecute identity what You didn’t ask 4“The Court : You didn’t ask the officer his was. identity, divulge you He said require the court officer to if were interested. secret; identity deceased remain that doesn’t he wished to have the informant (cid:127) — n you you mean that ask him and he refused can’t ask him. Unless Honor, necessarily we Acosta Your don’t want counsel]: “Mr. [defense informer, identity testimony. want his lf'tFie’informer dead. We right. testimony “The want the Court: All You because he is dead? Is that it? saying going testimony “Mr. Acosta: No. I am that we are to need his to estab- cause, probable illegal entry. lish to establish whether or not there was an We there- fore suppress move to the evidence and to strike the of the officer on these grounds.”
571 6, 1968, that contends the cause to trial appellant delay bringing while incarcerated at “unreasonable” bail was being prejudicial.
The of bail a matter within the trial court’s discretion setting is (§ 3, manifest in a record Code) 1272 subd. Pen. no abuse thereof is $4,000 then, after twice shows defendant’s bail was set at he only failed to bail was forfeited and a bench warrant ordered appear, 22, 1968, 13, 1968. April August issued— Code, 2,
Section 1382 subdivision Penal a dismissal un requires cause is less shown defendant is not trial good to within why brought information; after the of an days filing when such an issue arises before trial, will be a a prejudice from defendant’s to trial presumed right speedy unless meet their burden of cause for People successfully showing good Wilson, v. (People 44, delay. 60 Cal.2d P.2d [32 Cal.Rptr. “Good cause” is established a clear delay showing was the result defendant’s acts. Here bail twice own forfeited because of defendants’ to failure he made con six successful motions for appear; counsel; tinuance to him to obtain when the defender permit private public motion; was continued on defendants own appointed plea 2, 1968, request codefendants the trial was continued from July 13, 1968, August 13, 1968, with defendant’s consent but he on August failed to 1538.5, Code, a later made motion under section Penal appear; and the hearing thereon was continued at his due the absence of request; defense 4, 1968; counsel the trial was continued to November over his the trial objection on that was continued to and day commenced on Novem ber 1968. matter, The cause trailed another and the three-day was the result of delay calendar; court congested this last continuance for good cause and did not constitute abuse the trial court’s discretion.
The judgment affirmed. J.,
Thompson, concurred.
GUSTAFSON, J. I dissent.
Since an officer cannot make a warrantless arrest on less information
than that which he would
(Wong
need to obtain
an arrest warrant
Sun
407],
United
(1963)
States
that
spoke
personal knowledge”
pos-
(1969)
v. Hamilton
(People
session of heroin.
The court concludes from what the McClain informant told “that . knew informer . . had seen heroin on his carry person [defendant] defendant had heroin with him that I As I read the morning.” disagree. court’s those conclusions are based opinion, wholly upon unsupported that the informant had been in the Even the Attor- assumption apartment. General but rather admits in his ney does not in this indulge assumption, brief that the “informant told Officer McClain that he . . . had never been in the apartment.” here,
With to the defendant the informant’s knowl- respect only personal that he knew the that he the actual edge defendant and “had seen gun” far, which defendant is this allegedly Although stretching possessed.1 quite I to am infer that the informant saw the willing in gun possession defendant. But I cannot conclude that a because carries gun, person also narcotics. possesses
I do not the in- understand it be the law that knowledge personal formant of a criminal act of defendant be inferred from the fact may the information be what of the informant correct would proves after officers, otherwise have been an unlawful search has occurred. Here as verified a fact mentioned in the next not except single paragraph, told to McClain kicked did the informant before in door. they They not their who know from source or from own any knowledge independent lived at out by or to whom automobiles pointed apartment informant belonged.
Spinelli (1959) v. United States 358 U.S. Draper characterizes which, I under- L.Ed.2d benchmark” as 79 S.Ct. as “a suitable 329] it, stand must means the minimum amount of information which officer gun told significance was that the informant interesting 1It to note that away gun” “he was carry his when “would McClain defendant defendant arrested to be incorrect because when proved from his car.” That the apartment, was in the automobile. Draper before told without warrant. In the informant possess acting officer that the would disembark from a train on the 9th the officer a gave Denver with heroin in September possession, detailed of the defendant and he Would be of the clothes wear- description *10 said that ing, the defendant would be a tan said bag zipper carrying that the defendant would be fast. officer at train The walking man, station at the when time “he saw a the exact designated having physi- cal attributes and the tan wearing precise clothing carrying zipper described, that bag had from one of the trains alight very [the informant] from the stated and start to at a very by walk ‘fast’ place [the informant] toward the station exit.” the officer “had verified pace Thus personally facet of every the information him given by by except informant] [the whether his mission and had the three ounces accomplished [defendant] heroin or in his Because else to the person told bag.” everything officer arrest, informant was by verified officer by before court concluded that the officer had reasonable “to believe that the ground remaining unverified bit of de- information —that [the [the informant’s] would have the heroin fendant] with him—was likewise true.” In the case bench, the only information the informant which was veri- by supplied fied officer before he acted was that a Buick Riviera would be parked near the The apartment. officer did not even that the automobile verify to defendant. belonged the fact Surely that an informant has de- correctly scribed an automobile which will be found near a house or an apartment does not afford the officer cause whatever the in- for probable believing formant tells the officer about the criminal activities of the occupants house correct, If apartment. this court’s a decision warrantless today arrest or search is authorized when an irrele- officer verifies a very meager vant and fact. nonincriminating (1969)
Since the California Court in v. Hamilton Supreme Cal.2d P.2d refused to infer personal 681] case, of the informant on the basis in I knowledge of the affidavit do not see how of the informant can be inferred from the personal knowledge officer in case at bench. Justice Mosk dissenting objected Hamilton for warrants be “affidavits drafted with requiring finesse Street contract” because such affidavits “are Montgomery circumstances, because of prepared, generally by laymen hurriedly exigent lie case with limited That does not in the of a legal objection background.” warrantless arrest. If the informant has fact told officer that he has whom of a crime committed the officer personal knowledge arrests, law, then skilled in the can elicit easily prosecutor, presumably this when the officer as a witness. examining
I think it the evidence and I was error to the motion to deny suppress would reverse judgment. denied Court was for a hearing by
Appellant’s petition Supreme J., Sullivan, J., that the Peters, were of the opinion 1970. May should be granted. petition