*1 19170. Aug. No. [Crim. 1976.] PEOPLE,
THE Plaintiff and Respondent, SMITH,
GREGORY DONALD Defendant and Appellant.
Counsel Schaffer,
Benson Court, under for Defen- appointment by Supreme dant and Appellant.
Evelle General, J. Winkler, Jack R. Chief Assistant Younger, Attorney General, Moore, General, S. Clark Assistant Attorney Russell Attorney Asari, Millar, Jr., R. Frederick and John R. Iungerich, Shunji Gorey, General, for Plaintiff and Attorneys Deputy Respondent.
Opinion Gregory Donald WRIGHT, was convicted C. Smith jury J. Code, 11357) & Saf. § (Health possession possession Code, & to trial he moved 11359). Saf. Prior (Health for sale § evidence, 1538.5 certain Code section to Penal suppress pursuant and denied in He from which motion granted part part. appeals of conviction. the judgment should
Defendant contends that contraband introduced evidence He have been fruit an search seizure. illegal suppressed trial makes number additional contentions regarding proceedings. We conclude that a warrant the search of automobile and authorizing *4 was invalid and that contraband seized the pursuant apartment have there execution of the warrant should been As is suppressed. a of the insufficient other evidence defendant’s finding guilt support we error was and reverse the necessarily judgment. prejudicial 18, 1974, trial, defendant that on At the evidence disclosed January old, Six Dolson, a at an then invited Derek apartment. years party at the and Dolson arrived when defendant were other persons present the course of the Sometime later that evening location during evening. and later that blue suitcase with an Dolson noticed defendant empty in the and elsewhere in the suitcase Dolson saw weekend marijuana others defendant and He also observed weighing, packaging apartment. rolled mari- also smoked Dolson and marijuana, marijuana. smoking bricks of sort marijuana. juana cigarettes helped and Dolson was of was sold brick Early Sunday morning marijuana left sale. He the $20 from the the of taking receipts suspected Lord who in with Police Officer and about 4 a.m. touch got apartment from Dolson was about six blocks the apartment. burglary investigating in used the related to Lord that was marijuana being packaged in which In he an automobile he had left. addition described apartment which he he stated had and a there been marijuana shopping bag from and debris claimed contained the bricks marijuana wrappings said, had he from take-out fried chicken dinners. The subsequently bag, in a in area been trash apartment receptacle parking placed building. with Dolson. or had communication
Lord had never before seen any where to the building The officer drove Dolson vicinity apartment he observed and verified the of the automobile. He did not description near to determine if contraband was visible within the approach enough vehicle. Lord Dolson then went area into apartment’s parking where a trash was receptacle eight-to-fifteen-unit serving building full, located. The commercial-sized was but not receptacle overflowing, and a similar to that described Dolson was found on shopping bag by top of other trash. The bag opened marijuana wrappings, debris and fried chicken containers were found inside the Dolson bag.1 out to the officer a as the one pointed specific apartment occupied defendant.
The automobile and were under surveillance while a apartment placed warrant to search them was obtained later The warrant Sunday morning. was issued to an affidavit based on contents of pursuant shopping and the information furnished Dolson. Defendant and other bag automobile, with defendant before the persons departed driving, warrant was and delivered to the officers signed conducting surveillance. The car was almost and the stopped immediately occupants were detained about until minutes the warrant was to the brought scene. A search of the Over four automobile conducted. thorough which were found the trunk pounds sleeping bag *5 defendant had The was with him from the brought apartment. apartment then searched and in and of several bulk a number pounds were seized. marijuana cigarettes
Defendant’s motion to to Penal Code section 1538.5 pursuant suppress to in as to evidence found the automobile denied granted evidence found in the The that there was no trial court ruled apartment. cause articulated in the affidavit in warrant for the probable support the search of the car and that the officers the not did making stop have cause to the and its detain automobile independently probable The do not the of the trial court’s occupants. People challenge propriety toas the contraband seized in the vehicle. ruling The central issue herein is whether the affidavit in of the support search warrant sufficient facts to establish Dolson’s as a alleges reliability citizen-informant or to the corroborate information volunteered him. affidavit, sufficient, The to be must with the constitutionally comport Fourth the and Fourteenth Amendments as in requirements explained 108, 723, 728-729, v. Texas 378 U.S. 114-115 (1964) L.Ed.2d Aguilar [12 1It does not that a usable in appear found the quantity marijuana shopping bag or otherwise in trash the receptacle.
850
not
conclude that
the affidavit is
84 S.Ct.
Because we
legally
1509].
v.
sufficient,
of whether
Krivda
we do not reach the question
People
62,
(vacated
486
5
357
P.2d
Cal.3d
(1971)
Cal.Rptr.
1262]
[96
45,
(1973)
remanded,
32],
L.Ed.2d
93 S.Ct.
reiterated
409 U.S.
[34
521,
in the instant
Aguilar supra, on when constitutionally rely for the determination of magistrate may have warrant. We of a search an affidavit in in support hearsay informant’s on an an affidavit based test as follows: restated the “[F]or of a the issuance sufficient statement support legally hearsay affidavit must warrant, (1) must be met: search two requirements than is factual rather that the informant’s statement language allege with that the informant must establish personal spoke conclusionary statement; (2) of the contained such matters knowledge from which factual information some affidavit must contain underlying can conclude the warrant reasonably issuing magistrate v. Hamilton reliable.” informant was credible or his information 785, P.2d 176, 681]; 71 Cal.2d 179-180 P.2d 1].) 760-761 Hill Cal.3d affidavit, contains the sworn Officer Lord’s hearsay superior, not informant Dolson. Defendant does of Lord and the statements but first the affidavit for prong Aguilar, challenge failing satisfy has second not been met. contends requirement *6 or a citizen-informant met be if Dolson were The second would prong “A ‘citizen- corroborated. if were otherwise his information have been of or to to be the victim is a citizen who informant’ purports and acts who motivated of a crime is witness by citizenship good for It is reasonable in of law enforcement. aid police openly [Citations.] of criminal an observer to act such activity. officers reports upon a from mere A is ‘citizen-informant’ distinguished [Citations.] [If] is officers that who to law enforcement informer person gives tip Thus, in the course of criminal conduct. experienced engaged [Citations.] or are not stool or involved regarded criminally disposed pigeons persons some- are motivated as ‘citizen-informants’ because by they generally other v. than Schulle thing good citizenship. [Citations.]” 809, 814-815 The “citizen- 585].) Cal.App.3d designation informant” is as “reliable- just conclusionary designation In informant.” either case the conclusion must be facts supported by Texas, 108, stated in the affidavit. v. U.S. 114-115 (Aguilar supra, 731, Hill, 760-761; L.Ed.2d 728-729]; Cal.3d People supra, Hamilton, Cal.2d 179-180.) supra, citizen-informant, of Dolson’s status as a like all question warrant, other relative to cause matters for issuance of the probable to the for on affidavit and determination presented solely magistrate attachments thereto. An attachment entitled “Observations Affiant” recites Dolson’s of the and contraband activities in viewing apart ment, and relates the of the and its contents.2 All discovery shopping bag that on the of Dolson’s status as a citizen- appears bearing question informant are statements that he and identified himself to approached Officer Lord one after 12 hours at the early morning having spent in had that he had contact with apartment and question; prior was familiar with its odor; and that while in the appearance apartment he had observed seven or used, “kilo” bricks eight marijuana being refined and for sale five six he also packaged persons; observed of “reds” (seconal) “acid” in quantities (L.S.D.) that the were apartment; under the persons influence of apartment and other and that he on and wished to drugs; parole remain for reasons A second anonymous attachment personal safety. entitled “Reliable Informant” recites Dolson’s status and again parole concern for his with concludes the affiant’s personal safety, opinion that the informant is a “reliable because he volunteered the person” information, himself, identified officer the scene accompanied where, of the the statement illegal activity apparently, concerning of the was corroborated. disposal garbage are averred as 2Dolson’s observations of the contraband and activities the apartment a.m., 20, 1974, follows: “On or about at 6:30 affiant was contacted Officer January evidence he Lord of the Glendale information and
Jeffery Police Department regarding had advised secured an informant. Officer Lord related that this informant had him from Garfield, he, informant, East at the had been above listed premises, #4, his he had hours. this location apartment past stay previous During observed five related that or six He also people refining marijuana. using, packaging, bin at the evidence which would this fact could found the trash portion verify *7 rear of this location. Officer Lord returned the informant to 614 East Garfield and retrieved a and which and a of blue contained the residue plastic bag piece masking tape odor of dried was in Observation of the affiant verified that the residue marijuana plants. fact and that the known as was the used for marijuana sealing tape type large packages Central, ‘kilos’ or ‘bricks.’ Officer Lord contacted informant at South the 407 by 852 in 12-hour Dolson’s fails to
The affidavit presence explain noticeably as, the which establish him on would the appears Nothing apartment. hand, as, on the other hand, the activities or a one illegal participant the was innocent of there activity. an whose illegal observer presence or causes of the events Nor is there implied, any explanation, express to Officer and make his disclosures him which motivated to approach 809, Schulle, 814-815.) 51 v. (See Lord.3 Cal.App.3d supra, People the a is stated in the fact he was nor Neither Dolson’s juvenile age and not to on is named. To he said affidavit. is parole contrary, 766, 272]; Paris (See Cal.App.3d People 641].) v. Herdan (1974) Cal.App.3d An citizen-informant who has observed the untested personally Hill, commission of a crime is reliable supra, presumptively is Cal.3d but that status cannot attach if the affidavit silent 761), The forth the circumstances from thereon. affidavit must set affirmatively can be inferred neutral which the existence of the status reasonably thus insufficient and instant affidavit is detached The magistrate. establish Dolson as citizen-informant. is, informant,” not a citizen- a “mere Dolson as
Viewing Dolson was not an informant, fails. find that the warrant also we tested, thus been informant whose had specific reliability previously information, includ whether Dolson’s before us now becomes question contents, location, its and its his of ing bag, description with the in the corroborated receptacle discovery bag debris. described contents marijuana Glendale, hours, Officer at 1/20/74. informant approached approximately (informant) Lord information: That he without solicited and related following being #4, Garfield, had at that seven been at East and had observed location apartment (Seconal) (kilos ‘bricks’ He also observed 50 ‘reds’ eight approximately marijuana). (L.S.D.). at related that the parties
and an unknown of ‘acid’ He further quanity [s/c] He further stated were under the influence of other drugs. location of the of the parcels that he observed at the location disposing wrappings parties with had in a bag along and that the been brown disposed paper wrappings fried chicken. containers of Colonel Sander’s chicken bones and packaging [.w] bin into trash container to be a large receptacle, Informant observed trash emptied at the rear of the apartment building.” type, establish fairly trial heretofore noted 3Additional factual matters disclosed who, of internal because activity as illegal Dolson initially willing participant matters will such appear, informer. Although, broke became away disputes, would citizen-informant, those facts only status as a Dolson’s heavily against weigh of that review the determination be considered our can presented magistrate status. *8 In this court. addressed
A has been similar situation by previously 491, 455 P.2d 71 Cal.2d (1969) Scoma corrob- an informant’s information was we concluded 419], insufficiently informant was warrant because “the fact that the orated to support no credence to his assertion that he narcotics found gives possess he obtained such narcotics from a named obtained person; obviously someone, cannot constitute for but mere them from support possession rather than another.” claim that he obtained them from one his person had received from a related information he The affiant Scoma terms in factual informant named illegal activity describing juvenile (Id., at 337.) of the p. knowledge activity. indicating personal affidavit stated no facts citizen-informant4 and the was not a informant fn. at 338 and (Id, which bore on his his reliability. p. identity regarding facts5 in the affidavit that none of the 7.) provided Concluding amount we observed that corroborative merely “they support, affidavit contains reiteration of the accusation by informant; known indicate that additional facts absolutely nothing independently or discovered the accusation thereby imparting by police supported 339-340; italics.) credit to the informant.” at (Id, pp. original In the instant case there was no that the of trash found showing bag as would have related to receptacle intrinsically apartment been true had that address been found in receipts envelopes indicating be, it. The was found where the informant said it would and it did bag debris, contain the but the described trash and in addition marijuana in no established the informant’s on the critical discovery way reliability issue of the more of the material. The “corroboration” was no origin 4A view in Scoma that a minor who becomes involved in narcotic dissenting urged should be deemed a activity victim treated as a citizen-informant whose accordingly Scoma, 340.) disclosures need not be corroborated. 71 Cal.2d supra, case, however, Unlike the affidavit in that the affidavit in the instant case does not Dolson as a identify even under the view in juvenile. Scoma Accordingly, dissenting instant affidavit is deficient. facts in the affidavit which the only significant could have magistrate 5“[T]he upon that the informant’s was reliable are that certain report activity concluded illegal substances found in the informant’s were identified possession by laboratory analysis narcotics; (2) that the residence both confirmed that a man ‘Dewey’s’ landlady alleged address, matching lived at that ‘Dewey’s’ stated certain description papers discovered her indicated that a woman with the had lived with him at living suspect address; (3) ‘Dewey’s’ that certain lists of names and numbers alleged previous telephone obtained from the informant’s wallet contained the name and number of telephone others', that certain notes found in the informant’s wallet were ‘Dewey’ among ” identified him as narcotics which furnished to him lists had been by ‘Dewey.’ price 338-339; (Id., italics.) at pp. original *9 854 in the was found than in Scoma where the contraband
adequate from a and he said it had come informant’s person. possession particular warrant, to As the affidavit is insufficient constitutionally support been the contraband to its execution should have seized pursuant We it to address do not deem necessary productive suppressed. other contentions. defendant’s reversed, is judgment
Tobriner, J., Sullivan, J., concurred.
MOSK, J. in the I concur judgment. however, failure to because of the
I do so majority reluctantly, in v. this court’s face the created People opinion problem forthrightly 491, 455 Had 71 332 P.2d Cal.2d (1969) my Scoma Cal.Rptr. 419]. [78 law California 340) in been the Scoma (id., dissent p. prevailing need in his affidavit of been to the officer would have alerted police would to law the informer as boy juvenile pursuant identifying as a citizen-informer. have qualified that in
I dissent in Scoma: adhere to the advocated my position an informant not a minor’s role as these circumstances we should weigh sense; While classic a minor should be deemed victim. virtue, civic he had been in this case is a model of hardly 17-year-old boy extent and to that furnished contraband marijuana by persons dealing 51 Cal.2d v. (1958) was a victim of criminal offense. Poindexter (People 142, 256 (1967) 149-150 P.2d Chrisman 763]; v. Cal.App.2d People [330 425, 435 733].) Cal.Rptr. [64
A reliable citizen-informant. victim is deemed a Ramey (People 629, A 1333].) 545 P.2d 16 Cal.3d 268-269 (1976) [127 held of contraband has been his complaint against supplier juvenile’s arrest. cause for an Bishop sufficient (People provide probable (1958) v. Weathers 533]; CaLRptr. Cal.App.2d [45 been And his observations have P.2d 222].) Cal.App.2d [328 v. Schulle warrant of a search for the issuance deemed adequate 585]). (1975)51 Cal.App.3d but, officer, to the not facts known Aguilar The test is according factual 84 S.Ct. 1509], U.S. 108 L.Ed.2d v. Texas information related in the affidavit submitted Unfor- magistrate. the officer failed to disclose the informant’s Had he done so tunately age. the affidavit would be sufficient.
I
in the future that law enforcement officers will indicate in their
hope
*10
affidavits when
information obtained from
And
they rely upon
juveniles.
whenever we have a clear-cut
I trust this court will
opportunity
adopt
rule
in the Scoma dissent. It will “further the use of
urged
warrants” by
burdens
their use.”
v.
removing
Keener
“unnecessary
upon
(1961) Cal.2d
859,
“It
therefore be stated as a
may
that
general proposition
private
citizens who are witnesses to or
act,
victims of a criminal
absent some
circumstance that would cast
information,
doubt
their
should be
upon
considered
not,
reliable.
course,
This does
with the
dispense
require-
ment that the informant—whether citizen or otherwise—furnish underly-
facts
detailed to cause a
ing
reasonable
to believe
sufficiently
person
a crime had been committed and the named
was the
suspect
perpetrator;
and the rule also
that the
be aware of the
presupposes
police
identity
the information and of his status
person
true citizen
providing
short,
informant. In
cause will not be
conclusion-
probable
provided by
informants,
information or
but neither a
ary
anonymous
previous
issue,
1I
cause
dissented in
on another
that warrantless
Ramey
concluding
probable
(16
arrests within the home are
Cal.3d at
in the absence of
permissible
emergency.
277-281.)
pp.
corroboration is ordinarily
nor
subsequent
demonstration
reliability
their
activities
victims of criminal
witnesses to or
when
report
necessary
omitted.)
(Citations
to the authorities.”
in detail
observations
no reason to believe
the warrant Officer Lord had
When he sought
was
indication that Dolson was
was
There
no
informant.
Dolson
police
Nor
there
crimes he
any
witnessing.
reported
implicated
...
basis
“on
he had
indication that
recurring
supplied tips
police
for
or other
gain.”
pecuniary
personal
Dolson’s status as a
to be
of a
said
some evidence
parolee might
However,
criminal
there was no indication that his
disposition.
prior
conviction had been a
offense. Nor
there
that it
indication
drug
any
had been an offense
on his
(Cf.
bearing
People Beagle
veracity.
*11
Moreover,
Cal.3d
441
492 P.2d
court held
1].)
this
Cal.Rptr.
[99
informant,
a
a
that
was
citizen
“both as a victim
witness to
person
crime,”
the
the
he
even
his information concerned
that
had
fact
though
his
had
been robbed and
had been murdered while they
companion
to
Dolson did ask identity to disclosed his informant. He of an identity antithesis anonymous the future. how him in told the officer to contact Officer Lord and that Moreover, fact and did below. The was available to he testily does not citizen does not want his unnecessarily jeopardized safety his reflect reliability. adversely upon to lead a detailed Dolson’s information sufficiently
Finally, would be to seizure to believe that reasonable subject property person do not contend on to searched. The found the majority premises otherwise. desire not mention Dolson’s status his parole majority However, I not (Ante, his do 852.)
disclose unnecessarily. identity p. Dolson as a understand to hold that these facts disqualified majority Rather, to hold that the affidavit citizen informant. I understand them it set forth” facts from was deficient because failed “affirmatively was motivated which the could infer that Dolson by good magistrate (Id.) citizenship. in Hill on 2I dissented another harmless error doctrine is ground, concluding to an taken from a erroneous of a denial motion applicable appeal guilty plea following 770-771.) (12 Cal.3d evidence. suppress pp. motivation of our than the more
“Nothing [being] impenetrable actions,”3 would it is not clear what majority. satisfy showing been found However, would have it is clear that the made here showing Moreover, can be this under authority. proposition satisfactory previous to this case. with cases factual demonstrated similarity bearing striking In Krauss v. Court Cal.3d Superior informant, maid, a motel discovered in a room P.2d 1023], marijuana She had attended a demonstration she drug cleaning. previously conducted at which she saw and smelled class police department The maid informed motel of her marijuana. manager discovery informed the held to be a citizen The maid was manager police. informant. Cal.3d at (5 421-422.) pp.
In v. Chavez 701], Cal.App.2d two had man officers informed them he just approached police observed a to sell to one of the described suspect attempting friends; added that he had hide the informant’s he seen suspect address, officers secured the informant’s in his left sock. The could and determined satisfied themselves that he recognize marijuana, held to be a citizen in court. He was that he was to testify willing informant. *12 924],
In (1970) Cal.App.3d [90 Young People her she and officer that informant, told a a girl, police 13-year-old for which at the the defendant sister had visited premises 17-year-old asked the sister The informant’s warrant was later search sought. a out then The defendant defendant “Where is the brought grass?” it into to be rolled of what cigarettes, marijuana, bag appeared plastic Each third smoked and, with the sister and a cigarettes. person, along The were that it was of them told the informant smoking. “grass” they the officer satisfied of its odor appearance informants description a to be held that the substance was 13-year-old girl marijuana. citizen informant. 269],
In v. Marchan Cal.App.3d People a sheriff and told him her friend informant contacted deputy that A home. second admitted stored narcotics in her (the friend’s) having told the informant, later the first informant’s 13-year-old daughter, she had seen home that while day babysitting suspect’s deputy 3G. C. Reflections. Lichtenberg, with a white filled suitcase several small plastic bags containing son had told substance; she added the suspect’s 7-year-old
powdery Both the mother contained her that the suitcase daughter “dope.” 33.) citizen informants. (47 were held to be Cal.App.3d p. v. Schulle selection is off this
Rounding representative case made more 585], significant CaI.Rptr. Cal.App.3d of the law that the its restatement the fact concerning majority adopt Schulle, informant, a citizen informants. In {Ante, 850.) 14-year-old p. Simmons, and informed him contacted Roxon named Lieutenant girl had that her mother and smoked “continually,” marijuana stepfather in their had once raised plants, presently marijuana marijuana and odor home. She added that she not only recognized appearance had it In Miss Simmons to but also smoked herself. holding informant, a citizen the Court of recited the test adopted by Appeal it, and then “In the instant case Miss majority stating: applied show that Simmons was witness to a crime. There is nothing clearly she was an stool or that she was involved criminally experienced pigeon The statement Roxon that Simmons told him that Miss disposed. are not she has seen its and smell recognizes appearance criminal but with her observation at indicative of are consistent activity her home and in of defendants as narrated in her statement the presence has smoked to Roxon. Miss Simmons’ admission to Roxon that she does not establish an admission of criminal activity, marijuana, although involved or a matter of law that she was a criminally disposed person an innocent victim or the conclusion that she was not so as to compel than motivated other but a who was good by something bystander person 815.) (51 Cal.App.3d atp. citizenship.” I under
Dolson a citizen informant precedent, clearly applicable being would affirm the conviction.
McComb, J., Richardson, J., concurred. 29, 1976. for a was denied petition rehearing September Respondent’s Clark, J., was of that the should granted. opinion petition