People v. Bigham

49 Cal. App. 3d 73, 122 Cal. Rptr. 252
California Court of Appeal·Decided June 12, 1975·No. 25920·Published·Cited by 19 cases

Opinion

49 Cal.App.3d 73 (1975)
122 Cal. Rptr. 252

THE PEOPLE, Plaintiff and Appellant,
v.
NICKEY JAY BIGHAM et al., Defendants and Respondents.

Docket No. 25920.

Court of Appeals of California, Second District, Division One.

June 12, 1975.

*75 COUNSEL

Joseph P. Busch, District Attorney, Harry B. Sondheim and Sterling S. Suga, Deputy District Attorneys, for Plaintiff and Appellant.

Belger & Courtney and Laurie R. Belger for Defendant and Respondent McVoy.

No appearance for Defendant and Respondent Bigham.

OPINION

LILLIE, J.

Defendants were charged with possession for sale of marijuana (§ 11359, Health & Saf. Code). Their motion pursuant to section 1538.5, Penal Code was granted, and the People appeal from order dismissing the information.

*76 The motion to suppress was heard de novo. In granting it the judge found that Deputy Reed was "a credible, honest witness" but stated, "my feeling is that the state of the law is such that I cannot approve of that kind of conduct." It is apparent, therefore, that he ruled as a matter of law that there was no probable cause to arrest Bigham (People v. Superior Court (Johnson) 15 Cal. App.3d 146, 151 [92 Cal. Rptr. 916]; People v. Superior Court (Thomas) 9 Cal. App.3d 203, 210-211 [88 Cal. Rptr. 21]), and this court "cannot presume that the facts were resolved against the People or that, contrary to its own indication, it disbelieved the testimony. [Citations.]" (People v. Manning, 33 Cal. App.3d 586, 603 [109 Cal. Rptr. 531].)

Probable cause has been defined as "that state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime." (People v. Terry, 2 Cal.3d 362, 393 [85 Cal. Rptr. 409, 466 P.2d 961]; People v. Fein, 4 Cal.3d 747, 752 [94 Cal. Rptr. 607, 484 P.2d 583]; People v. Martin, 9 Cal.3d 687, 692 [108 Cal. Rptr. 809, 511 P.2d 1161].) No exact formula exists for determining reasonable cause and each case must be determined on the facts and circumstances presented to the officer at the time he is required to act (Guidi v. Superior Court, 10 Cal.3d 1, 9 [109 Cal. Rptr. 684, 513 P.2d 908]; People v. Block, 6 Cal.3d 239, 244 [103 Cal. Rptr. 281, 499 P.2d 961]; People v. Fein, 4 Cal.3d 747, 752 [94 Cal. Rptr. 607, 484 P.2d 583]; People v. Terry, 2 Cal.3d 362, 393 [85 Cal. Rptr. 409, 466 P.2d 961]; People v. Ross, 67 Cal.2d 64, 69-70 [60 Cal. Rptr. 254, 429 P.2d 606]); and he must be able to point to "specific and articulable" facts and circumstances in support of his conduct. (Cunha v. Superior Court, 2 Cal.3d 352, 356 [85 Cal. Rptr. 160, 466 P.2d 704].) The following are those circumstances presented to the deputies at the time they determined to effect the arrest of Bigham.

(1) 1. Information given by Robert Nelson, an untested informant, to Deputy Reed (who had been assigned to Firestone station for six years and who had testified as an expert in the field of narcotics) that earlier that day he had bought eight kilos of marijuana from Nickey Bigham, describing him, at his residence (Nelson was then under arrest for this offense), Bigham was "dealing heavy" and had at least eight more kilos of marijuana which he (Nelson) had seen in a living room in a converted garage on 222d Street from which Bigham and one McVoy, who lived there with him, conducted narcotic activities, and Bigham had a gun. Although such information provided by an informant of unknown reliability justifies investigation, standing alone it is not sufficient to *77 provide probable cause for an arrest (Mann v. Superior Court, 3 Cal.3d 1, 6-7 [88 Cal. Rptr. 380, 472 P.2d 468]; People v. Lara, 67 Cal.2d 365, 374-375 [62 Cal. Rptr. 586, 432 P.2d 202]; People v. Talley, 65 Cal.2d 830, 835-836 [56 Cal. Rptr. 492, 423 P.2d 564]; Willson v. Superior Court, 46 Cal.2d 291, 294 [294 P.2d 36]); however it is sufficient if it is corroborated in essential respects by such other facts, sources or circumstances as would justify the conclusion that reliance on the information was reasonable. (People v. Fein, 4 Cal.3d 747, 752 [94 Cal. Rptr. 607, 484 P.2d 583]; People v. Lara, 67 Cal.2d 365, 374-375 [62 Cal. Rptr. 586, 432 P.2d 202]; People v. Talley, 65 Cal.2d 830, 835-836 [56 Cal. Rptr. 492, 423 P.2d 564]; People v. Sandoval, 65 Cal.2d 303, 308-309 [54 Cal. Rptr. 123, 419 P.2d 187].) The purpose of such corroboration is to provide the element of reliability missing when the police have had no prior experience with the informer, and it is enough if it gives reasonable ground to believe that the informant is telling the truth. (People v. Lara, 67 Cal.2d 365, 374-375 [62 Cal. Rptr. 586, 432 P.2d 202].)

2. Independent facts supplied by official records and personal observations of other deputies which corroborated Nelson's information and made Deputy Reed's reliance thereon reasonable.

Deputy Reed was acquainted with the name "Nickey Bigham" in the course of his official duties at Firestone station and conversations with other deputies. Three weeks earlier Deputy Damerski, who lived in the same block as Bigham, "alerted" Deputy Reed to Bigham's exact address and his personal observations of "suspicious activities" on Bigham's premises — at all hours of the night people who appeared to be "loaded" either entering or leaving the premises with packages indicative of "dealing going on there," and frequently Nickey Bigham about the premises in a "loaded" condition. While Deputy Damerski did not name either McVoy or Bigham he did describe Bigham which fairly well matched the description given by Nelson supplying an element of corroboration. (People v. West, 3 Cal. App.3d 253, 257 [83 Cal. Rptr. 223].) Deputy Madden, who patroled the general area of Bigham's residence, also advised Deputy Reed that he had personally observed Bigham in a "loaded" condition on a number of occasions. The source of the deputies' information was personal observation, and their statements to Deputy Reed were competent to establish the facts related. (United States v. Ventresca, 380 U.S. 102, 110 [13 L.Ed.2d 684, 690, 85 S.Ct. 741].)

Deputy Reed personally learned from a check of Firestone records that Bigham resided at 515 East 222d Street (which confirmed the *78 specific address given to him by Deputy Damerski and the general address on 222d Street given by Nelson), from a photograph in the police files what Bigham looked like and from the arrest records that he had numerous arrests, one for possession of marijuana while a juvenile and one for sale of marijuana.

3. Deputy Reed's own personal observation of Bigham's conduct

Free access — add to your briefcase to read the full text and ask questions with AI

People v. Bigham, 49 Cal. App. 3d 73, 122 Cal. Rptr. 252 (Cal. Ct. App. 1975).

49 Cal. App. 3d 73 (People v. Bigham) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. J.B. CA5
California Court of Appeal, 2021
People v. Huston
210 Cal. App. 3d 192 (California Court of Appeal, 1989)
People v. Enriquez
132 Cal. App. 3d 784 (California Court of Appeal, 1982)
People v. LaJocies
119 Cal. App. 3d 947 (California Court of Appeal, 1981)
People v. Suennen
114 Cal. App. 3d 192 (California Court of Appeal, 1980)
People v. Matthews
112 Cal. App. 3d 11 (California Court of Appeal, 1980)
People v. Kizzee
94 Cal. App. 3d 927 (California Court of Appeal, 1979)
People v. Sanchez
86 Cal. App. Supp. 3d 8 (Appellate Division of the Superior Court of California, 1978)
People v. Negrete
82 Cal. App. 3d 328 (California Court of Appeal, 1978)
In Re William C.
70 Cal. App. 3d 570 (California Court of Appeal, 1977)
Fare v. William C.
70 Cal. App. 3d 570 (California Court of Appeal, 1977)
People v. MacK
66 Cal. App. 3d 839 (California Court of Appeal, 1977)
People v. Superior Court (Bowden)
65 Cal. App. 3d 511 (California Court of Appeal, 1976)
People v. Baldwin
62 Cal. App. 3d 727 (California Court of Appeal, 1976)