THE PEOPLE, Plaintiff and Respondent, v. SCOTT MONTGOMERY FLEMING, Defendant and Appellant.
Crim. No. 21524
Supreme Court of California
July 20, 1981.
29 Cal. 3d 698
Jack R. Becker, Maria Tortorelli, Lascher & Wilner and Edward L. Lascher for Defendant and Appellant.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Robert F. Katz, Gary R. Hahn and Stephen M. Kaufman, Deputy Attorneys General, for Plaintiff and Respondent.
Stanley M. Roden, District Attorney (Santa Barbara), and Gerald McC. Franklin, Deputy District Attorney, as Amici Curiae on behalf of Plaintiff and Respondent.
OPINION
TOBRINER, J.-Defendant Scott Fleming pled guilty to one count of sale of cocaine (
Defendant presents two issues. First, he asserts that the Santa Barbara County magistrate lacked jurisdiction to issue a search warrant to be executed in Los Angeles County. We conclude, however, that a magistrate should have jurisdiction to issue an out-of-county warrant if the magistrate finds that the search relates to a crime committed in the magistrate‘s county, and thus pertains to a present or future prosecution in that county. The issuance of an out-of-county warrant, we explain, will not unduly inconvenience a defendant in a criminal case since in most instances his motion attacking the warrant must be filed in the county of prosecution. We recognize that a stranger to the criminal investigation whose property is seized under an out-of-county warrant may be entitled to bring proceedings attacking the warrant in the county of the property‘s location. Defendant, however, was no stranger to the criminal investigation; the affidavits established probable cause for the magistrate‘s belief that the search relates to a crime defendant committed within Santa Barbara County and pertains to present or future prosecution there. Accordingly, we find the Santa Barbara County magistrate acted within his jurisdiction in issuing the warrant in question.
Second, defendant claims that no probable cause justified the search of his home. We find, however, that although the persons supplying information were participants in the criminal activities, the circumstances in which the information was obtained, and the corroboration by other individuals and independent evidence, could have led a reasonable magistrate to believe that the defendant had regularly supplied cocaine for sale in Santa Barbara County. Thus, the search was likely to lead to evidence located in the defendant‘s home that would substantiate a connection between defendant and the two cocaine sales to a Santa Barbara peace officer.
1. Statement of Facts.
After receiving information that Bryan Scott Edwards was selling cocaine, Deputy Sheriff Nelson, an undercover narcotics agent in Santa Barbara County, contacted him. Edwards told Nelson that Bryn Martin and he obtained cocaine from a source in Claremont, Los Angeles
Further contact led to an agreement to purchase an additional ounce, and on June 29 Martin furnished Nelson with a map and directions to Claremont. Nelson followed Martin to the Plum Tree Apartments at 272 Carnegie Avenue in Claremont. After the officers supplied Martin with the contemplated purchase price, he entered an apartment at that address and returned shortly thereafter with the cocaine and a dinner plate on which the cocaine was cut and examined.
On July 18 Martin told Nelson over the phone that the cocaine had been supplied by “Scott.” Scott was a former schoolmate of Martin‘s who lived in the Claremont hills. Martin also mentioned that Scott had left the cocaine at the Carnegie Avenue apartment because he could not be present at the time of the sale.
Narcotics officers searched Martin‘s residence pursuant to a Santa Barbara County search warrant on July 20. They seized a personal address book which contained the name and number of Jeff Phillips, who lived at the Carnegie Avenue apartment where the second transaction occurred. Thereafter officers searched the Carnegie Avenue apartment pursuant to a search warrant issued in Los Angeles County on July 27.
Two persons, Phillips and Melinda Pastor, were present at the July 27 search. Phillips told the officers that defendant, Scott Fleming, had stopped by the apartment the day of the second sale and mentioned that Martin would come and leave a sum of money for him. Phillips said that when Martin later arrived and did leave a sum of money, Martin borrowed a dinner plate. Pastor told the officers that Martin had picked up “coke” from Phillip‘s bedroom, and likewise stated that Martin had borrowed a plate and left the house. A phone register at the apartment listed defendant‘s phone number. Phillips and Pastor drew maps to the home in the Claremont hills where defendant lived with his remarried mother.
Pursuant to a search warrant issued by Judge Lodge of the Santa Barbara-Goleta Judicial District on August 2 Santa Barbara County officers searched defendant‘s home. Items seized included: (1) a quantity of hashish, (2) vials containing cocaine residue, (3) a knife with cocaine residue which was lying on a magazine containing cut-up pages,
Defendant was charged in Santa Barbara County with sale of cocaine. After the preliminary hearing judge denied defendant‘s suppression motion, defendant pled guilty and was sentenced to 180 days in the county jail and 3 years probation. Defendant now appeals from that conviction.
2. The Santa Barbara County magistrate had jurisdiction to issue the warrant for the search of defendant‘s Los Angeles County residence.
We first examine the statutes governing the issuance of search warrants to determine whether they limit a magistrate‘s jurisdiction to issue an out-of-county warrant in connection with the investigation of a crime committed in the magistrate‘s county.3
Contrary to defendant‘s claim, the statutory provisions for attacking the validity of a warrant also fail to impose an absolute territorial restriction on the magistrate‘s jurisdiction. A defendant seeking to suppress evidence under
property may file a motion under
We finally note, by way of analogy, the statutory provisions governing the issuance of arrest warrants: the magistrate has jurisdiction to issue the warrant if the defendant is in the magistrate‘s county (see
Concluding that the relevant statutes do not prohibit the out-of-county warrant in the circumstances of the present case, we turn to the cases cited by the parties. Defendant relies on the Court of Appeal decision in People v. Grant (1969) 1 Cal.App.3d 563 [89 Cal.Rptr. 784]; both parties rely upon, but interpret differently, our later decision in People v. Ruster (1976) 16 Cal.3d 690 [129 Cal.Rptr. 153, 548 P.2d 353, 80 A.L.R.3d 1269].
In Grant, a San Mateo County magistrate issued a warrant to San Mateo County officers authorizing the search of defendant‘s person. The officers pursued defendant across the county line into San Francisco, detained him, and searched him. The court stated in dicta that “We find little authority, but nevertheless considerable reason, supporting
In People v. Ruster, supra, 16 Cal.3d 690, a Santa Clara County magistrate issued a warrant for the search of defendant‘s San Mateo County residence. We rejected defendant‘s claim that Grant compelled a ruling invalidating the warrant. Our opinion acknowledged that “‘The person offended should have a ready forum in which to attack the validity of the search or seizure, and not be subjected to following his property across county lines, or conceivably to the opposite end of the state.‘” (P. 702, quoting People v. Grant, supra, 1 Cal.App.3d at p. 569.) Thus, we observed, “If the property of a stranger to a criminal investigation were seized in one county pursuant to a warrant issued by a magistrate in another county, it might well be inconvenient for him to contest the validity of the search or seizure in the county issuing the warrant. But that is not the case here. Defendant had already been arrested and admitted to bail in Santa Clara County when the warrant issued; the charges to which the evidence pertained were triable in Santa Clara County. Therefore, Santa Clara County was the most convenient forum in which to resolve the validity of the search and seizure. The Santa Clara County magistrate had jurisdiction to issue the warrant.” (P. 702; italics added.)
Defendant interprets Ruster to uphold the validity of an out-of-county warrant only if a criminal prosecution had already commenced in the issuing county when the warrant issued. We think this interpretation focuses on the wrong point in the proceedings. Ruster was concerned with guaranteeing to the person whose property was seized a convenient forum in which to contest the validity of the warrant; for a criminal defendant the county of trial is usually a convenient, and often the exclusive, forum in which to raise that contest (see
We interpret Ruster to permit an out-of-county warrant whenever the magistrate finds probable cause to believe that defendant has committed a crime within the issuing county and consequently will probably face trial in that county. This interpretation, we believe, will accommodate the interests at issue in this proceeding. Both the state‘s
Defendant raises the question of inconvenience to a true “stranger to the criminal investigation” (People v. Ruster, supra, 16 Cal.3d 690, 702), a third party whose property is seized as evidence. As Ruster recognized, it may well be inconvenient for such a person to travel to the county of issuance to seek the return of his property. That concern, however, does not require that we limit the magistrate‘s jurisdiction to issue an out-of-county warrant for crimes committed within his county and where prosecution will probably take place; it requires only that we recognize the stranger‘s right, implicit in
In summary, we conclude, in accord with the controlling statutes and our decision in People v. Ruster, supra, 16 Cal.3d 690, that a magistrate has jurisdiction to issue an out-of-county warrant when he has probable cause to believe that the evidence sought relates to a crime committed within his county and thus pertains to a present or future prosecution in that county.8 Dictum to the contrary in People v. Grant, supra, 1 Cal.App.3d 563, is disapproved.
The magistrate‘s conclusion that probable cause supported the suspicion that cocaine would be found in defendant‘s Claremont hills residence rests on the statements by Martin to an undercover officer in Santa Barbara and on the statements by Phillips after he was arrested for sale of cocaine. Defendant urges the insufficiency of the affidavits because they fail to present reasonable grounds for believing that Martin and Phillips were reliable informants. (See Aguilar v. Texas (1964) 378 U.S. 108, 114 [12 L.Ed.2d 723, 728-729, 84 S.Ct. 1509]; People v. Scoma (1969) 71 Cal.2d 332, 338 [78 Cal.Rptr. 491, 455 P.2d 419].)
Although the reliability of Phillip‘s statements may be questioned, Martin‘s statements must be presumed reliable since they were unwittingly made to an undercover police officer. As recognized in Ming v. Superior Court (1970) 13 Cal.App.3d 206 [91 Cal.Rptr. 477], utterances by a suspected accomplice can be presumed to be reliable in these circumstances since they “were not made for the selfish purpose of currying favor with law enforcement to mitigate the punishment of [the individual‘s] own criminal acts, or with the ulterior motive of causing the arrest of the petitioner upon a false accusation.” (13 Cal.App.3d at p. 214.) Consequently, since Martin spoke from personal knowledge of defendant‘s identity and activities and his information that defendant resided in the Claremont hills was corroborated by both Phillips and Pastor, a reasonable magistrate could conclude that evidence connecting defendant with the conspiracy to sell cocaine could be located in his home.
For the foregoing reasons we conclude that the Santa Barbara County magistrate had jurisdiction to issue a warrant for the search of defendant‘s residence in the Claremont hills, that probable cause supported the warrant, and that the search was therefore valid.
The judgment is affirmed.
Richardson, J., Newman, J., Caldecott, J.,* and Smith, J.,* concurred.
*Assigned by the Chairperson of the Judicial Council.
I do not find statutory or case law authority for a magistrate in one county to direct a search of premises in another county. If, as a matter of policy or law enforcement efficiency, it is desirable to provide such authority to magistrates, the determination is properly a legislative rather than judicial prerogative.
It is significant that the Legislature has never seen fit to bestow upon magistrates, most of whom serve a limited constituency in one county, the awesome power to authorize the search of a home, business or office in any of the other 57 counties of California. Yet since 1969 the Legislature has been aware of the prevailing authority that there is “considerable reason, supporting the theory that the effect of a search warrant should be limited at least to the county of its origin.” (People v. Grant (1969) 1 Cal.App.3d 563, 568 [81 Cal.Rptr. 812], hg. den.) While finding “hot pursuit” in the facts of the case, the Grant court discussed at length the “general territorial limitation on the jurisdiction to issue a search warrant.” (Id., p. 569.)
People v. Ruster (1976) 16 Cal.3d 690 [129 Cal.Rptr. 153, 548 P.2d 353, 80 A.L.R.3d 1269], did not overrule nor in any way criticize the prevailing rule confirmed in Grant. We merely observed that Ruster had already been arrested and admitted to bail when the warrant issued and therefore the county of issuance “was the most convenient forum in which to resolve the validity of the search and seizure.” (Id., p. 702.)
By contrast, the defendant in the instant case, while undoubtedly under suspicion, had not been arrested and no charges against him were pending in the county in which the warrant was issued.
The territorial limitation on a magistrate‘s power would appear to be fortified by a reading of
As Justice Kingsley observed for a unanimous Court of Appeal in this case: “We point out that the rule which we here recognize and enforce imposes no serious impediment to law enforcement. As the
If such procedure were deemed to be too cumbersome, the Legislature would have provided additional powers to magistrates and specified the rules for the exercise of those powers. No such amendments have been adopted since Grant was decided 12 years ago. It is presumptuous for this court to now undertake the task.
I also have reservations about the dictum in the majority opinion concerning the remedy of a stranger to the litigation whose home, business or office is invaded, and property seized, by officers from a distant county. Attempting to judicially fashion a new remedy, the majority purport to permit the property owner to attack the warrant in the county in which it was served. Yet
In any event, by the time the property owner can consult an attorney and bring an action for the return of property, the officers who seized it will have been long gone, returned to the distant magistrate who dispatched them. Thus the majority‘s gesture to the stranger in allowing him to seek redress in his home county is likely to be fruitless.
I would reverse the judgment.
Bird, C. J., concurred.