18 Cal. App. 3d 38 | Cal. Ct. App. | 1971
STONE, P. J.
Appellant was convicted on his plea of guilty to violation of section 11910 of the Health and Safety Code (possession of a restricted dangerous drug, barbiturate). On this, appeal, he seeks review of an order denying his motion to suppress evidence. (Pen. Code, § 1538.5, subd. (m).)
It is obvious from the transcript that the consumption of beer and the four pills, and the afternoon cruising, occurred on November 14, because it was about noon on November 15 when Officer Simpson received a call from the police dispatcher to go to the Faircourt Motel in Tulare, where he found Mrs. Shahan seated in the back of thé patrol car of an officer who preceded him to the motel. Appellant was standing inside the open door of one of the motel units. Officer Simpson testified that Mrs. Shahan appeared to be drugged or intoxicated, although he did not smell alcohol. He was “pretty certain” that her condition was caused by drugs. He further testified:
“I talked to the girl. I asked if she had been drinking, when she had been drinking last, and she said, ‘Last night,’ and I asked if she had been smoking marijuana or taking pills and she s,aid she didn’t smoke marijuana but she had taken some ‘reds’ and some ‘whites.’ I asked where she had gotten the pills and she said, ‘Allen and that other guy,’ and she pointed to the cabin.”
Simpson went to the motel room to which Mrs. Shahan pointed, entered, and “informed the other officer of what the girl had told” him. He then arrested appellant and another man who was also in the motel room. Simpson took appellant outside and searched him; a vial found in his left front pocket contained 12 red barbiturate capsules. Mrs. Shahan was arrested for “public intoxication.”
Although appellant was the movant in the section 1538.5 motion to suppress, the burden of proof of legality for his search without a warrant is upon the prosecution. (People v. Stuart, 272 Cal.App.2d 653, 662 [77 Cal.Rptr. 531].)
Appellant points , out that prior to his arrest and search the only information Officer Simpson had was the statement of Mrs. Shahan that he had furnished her restricted dangerous drugs. The matrix of his appeal
The cited cases seem to hold also that the fact the informer was a participant in the criminal activity, standing alone, does not establish his reliability as an informer or justify either the issuance of a search warrant or an arrest and search incident thereto with no further investigation. (People v. Scoma, supra; People v. Gallegos, 62 Cal.2d 176 [41 Cal.Rptr. 590, 397 P.2d 174]; People v. Amos, 181 Cal.App.2d 506 [5 Cal.Rptr. 451].)
The courts have expressed the foregoing general principles as guidelines, not as inflexible rules to be given procrustean application regardless of the circumstances surrounding an arrest and search. The basic question to be determined is whether the officer, as a reasonable man, was justified in relying upon the informer’s statement in the light of the circumstances facing him at the moment of arrest and search. As said in People v. Diggs, 161 Cal.App.2d 167, at page 171 [326 P.2d 194]: “Each case must be determined on its own facts. The test is, considering all the information in the hands of the police, would a reasonable police officer act on that information or would a reasonable officer seek further information before making the arrest and conducting the search.” (See also People v. Fein, 4 Cal. 3d 747, 752 [94 Cal.Rptr. 607, 484 P.2d 583]; People V. Livingston, 252 Cal.App.2d 630, 635 [60 Cal.Rptr. 728].)
In applying the reasonable man test to the facts and circumstances of Officer Simpson’s decision to arrest and search appellant, we note the holding in People v. Scoma, supra, that being both a minor and a victim
A reasonable officer is a practical officer, and it would seem highly impractical and unreasonable for Officer Simpson to investigate the reliability of the victim-informer before arresting appellant. Police services are designed to protect the public by making “on the scene” arrests where the victim points out the perpetrator of the crime.
Victims have been held to be reliable informants, or at least their information has been held to furnish reasonable cause for arrest, in cases of rape (People v. Nash, 261 Cal.App.2d 216, 225 [67 Cal.Rptr. 621]) and robbery (People v. Hogan, 71 Cal.2d 888, 890 [80 Cal.Rptr. 28, 457 P.2d 868]). We see no reason to distinguish this case on the basis of the kind of crime the victim accused the arrestee of committing.
We conclude that a reasonable man would have made an arrest and conducted a search incident thereto, under the circumstances which were known to Officer Simpson at the moment he decided to arrest appellant.
The argument that the informant in this case was a “not so innocent” victim, as she was 15 years old, married, and the mother of a child, are after-discovered facts that do not alter the facts and circumstances known to the officer at the time the victim pointed to appellant and accused him of giving her drugs. Reasonableness must be judged under the circumstances as they existed at the time the officer made the decision to act upon the basis
The judgment is affirmed.
Gargano, J., and Brown (G. A.), J., concurred.