People v. Golden

20 Cal. App. 3d 211, 97 Cal. Rptr. 476, 1971 Cal. App. LEXIS 1167

Opinions

Opinion

STEPHENS, J.

By information, defendant was charged with burglary (Pen. Code, § 459), receiving stolen property (Pen. Code, § 496), and possession of obscene matter with intent to distribute (Pen. Code, § 311.2). After a court trial, he was acquitted on all counts except the last. He was sentenced to 60 days in the county jail, and appealed.

On March 13, 1968, a search warrant was issued on the basis of an affidavit by Sergeant Shaidell, a 14-year veteran with the Los Angeles Police Department. Three and one-half of those years were spent in the administrative vice division of the department. In February 1968, Shaidell received information from the Federal Bureau of Investigation that it had been told by a reliable informant that defendant was selling obscene films and possibly “Tijuana Bibles”¹ from the back of his car. Officer Shaidell was also informed that these sales were taking place on Main Street, or in the area surrounding Main Street, in downtown Los Angeles and also in various other locations throughout the City of Los Angeles, and that defendant was living at 508 North Orange Drive, Los Angeles. On March 12, 1968, after procuring a photograph of defendant, Shaidell placed the residence at 508 North Orange Drive under surveillance. He saw defendant enter and leave the premises several times. A 1961 Lincoln was parked in the driveway. At 8:45 p.m., defendant came out of the house carrying a box, which he put in the trunk of the Lincoln. He then drove to a gas station at 8873 Sunset Boulevard and purchased gas from Ray, an attendant. He had a conversation with Ray, after which he moved the car from the gas pump to the entrance to the lubrication rack. Defendant opened the trunk of the Lincoln. Ray reached inside and rummaged through a box in the trunk; he left to wait on customers, and then returned to the Lincoln and removed four reels of eight millimeter film from the trunk. (We now quote verbatim from Sergeant Shaidell’s affidavit): “At this time Officer Monnett stationed himself approximately five feet from the rear of the vehicle and next to a Coke machine, from where he overheard a conversation between Golden and Ray. The conversation was not heard in its entirety; however, the substance of it is as follows: Golden—‘We’ll have to jack these guys up to get 20 to 30 different films although these films are good. They show a lot of fuck action. Ray, ,1 will see you later.’ ” The next event was witnessed by Shaidell personally. It consisted of Ray handing some money to defendant and saying: “All right.” Defendant then got into his car and left the location. He was followed by Monnett. Shaidell remained at the station and saw Ray walk into the interior-storage area, where he put the four reels of film into a box and covered them with rags. According to another statement in Shaidell’s affidavit, Monnett followed defendant to a restaurant in the 8600 block of Sunset Boulevard, where he had a short conversation with a waitress; defendant then returned to 508 North Orange Drive, where he remained until Monnett terminated the surveillance at 12:30 a.m.

Based on these facts, Sergeant Shaidell stated in his affidavit for warrant that he had reasonable and probable cause to believe that in defendant’s automobile and at his home there were “. . . motion picture films depicting acts of sexual intercourse, masturbation, sodomy, beastiality [szc], and oral copulation; booklets, commonly known to your affiant as “Tijuana Bibles, which depict in writing and photograph and drawing acts of sexual intercourse, sodomy, masturbation, beastiality [sic], and oral copulation.” The warrant itself: used identical phraseology. It was executed at defendant’s home the next day.

During the trial, defendant, after having first denied his intent to distribute or sell the films and other items, subsequently recanted his testimony and stated that he did, in fact, intend to sell some of the films.

Defendant makes two contentions on appeal: (1) Penal Code section 311.2 is unconstitutional on its face and as applied herein; (2) the search warrant was issued in violation of defendant’s constitutional rights.²

Defendant’s first contention has been answered in United States v. Reidel, 402 U.S. 351 [28 L.Ed.2d 813, 91 S.Ct. 1410] and People v. Luros, 4 Cal.3d 84 [92 Cal.Rptr. 833, 480 P.2d 633], Reidel, in essence, provides that the constitutional right of a person to possess obscene material in the privacy of his own home does not confer on another a First Amendment right to sell and deliver such material. The states retain broad powers to regulate obscenity. In Luros (at p. 93), which preceded Reidel, our State Supreme Court found that "Stanley [v. Georgia, 394 U.S. 557 (22 L.Ed.2d 542, 89 S.Ct. 1243)], as the Supreme Court expressly stated, does not impair Roth [v. United States, 354 U.S. 476, 477 (1 L.Ed.2d 1498, 77 S.Ct. 1304)] and the cases following it. States retain broad power to regulate obscenity, and regulation of the public distribution of obscenity falls well within the broad scope of that power.” Defendant’s contention therefore fails.

Defendant’s second contention, which is presented as the more substantial problem before us, attacks the validity of the search warrant. He bases his claim on the lack of prior adversary hearing and upon the legal insufficiency of the affidavit supporting the warrant due to an alleged absence of probable cause. It is true that there was no adversary hearing prior to the issuance of the search warrant. However, we believe that in the instant case no prior adversary hearing was required. (People v. Luros, supra; Monica Theatre v. Municipal Court, 9 Cal.App.3d 1 [88 Cal.Rptr. 71].) We have no argument with the fact that when the First Amendment is involved, more restrictive rules prevail with respect to a search (see Flack v. Municipal Court, 66 Cal.2d 981, 991 [59 Cal.Rptr. 873, 429 P.2d 192]), “and the ordinary rules of search and seizure are inapplicable.” (Flack, at p. 989.) Defendant relies on Quantity of Books v. Kansas, 378 U.S. 205 [12 L.Ed.2d 809, 84 S.Ct. 1723] and Demich, Inc. v. Ferdon (9th Cir. 1970) 426 F.2d 643³ for the proposition that a prior adversary hearing is an absolute requirement. The argument misses the point, for here the obscenity factor was established by defendant’s out of court admission. Even a prior adversary hearing before the issuing magistrate does no more than establish the factor of probable cause for the warrant. It does not establish the fact of obscenity itself, or there would be no need for the trial. The admission of defendant, in the light of the other known facts, established the necessary element as clearly as would have the adversary hearing. The cases relied upon by defendant are concerned with the means of establishing the factor of obscenity and the identification of the items to be seized. In our understanding (and obviously in the understanding of the officer and the magistrate) of defendant’s statement, neither factor is left in issue. More to the crux of the problem is the fact that the United States Supreme Court, after Demich, in Reidel, supra, reaffirmed Roth, supra and the fact that obscenity is not within the area of constitutionally protected speech or press. Reidel (402 U.S. 351, 356 [28 L.Ed.2d 813, 817]) went on to say: “It [Stanley v. Georgia, supra] does not require that we fashion or recognize a constitutional right in people like Reidel to distribute or sell obscene materials.” At 402 U.S. 351, 356 [28 L.Ed.2d 813, 818], the court reiterated: “Roth has squarely placed obscenity and its distribution outside the reach of the First Amendment and they remain there today.” We therefore conclude that in the instant case involving distribution and sale of obscenity, the First Amendment is not involved. If we were to assume that the First Amendment is indeed involved, the ordinary rules of search and seizure are not applicable. But this does not mean that a search warrant will only issue when there has been a prior adversary hearing. We believe that what is required is merely a stronger showing of probable cause before a magistrate may issue the search warrant. One method for establishing probable cause is obviously by way of a prior adversary hearing, but this need not be the only method. In the recent case of People v. Luros, supra, 4 Cal.3d 84, 88, our Supreme Court reiterated: “ ‘Where, as here, the seizure occurs under a warrant, an ex parte determination of the issue of obscenity, so far as probable cause is concerned, has taken place before issuance of the warrant, and immediately after the seizure a determination of the issue to that extent can be obtained in adversary proceedings by controverting the warrant under sections 1539 and 1540 of the Penal Code. In the event the owner is unsuccessful in that proceeding, a final determination as to obscenity will be had in the criminal action which will ordinarily follow within a reasonable time, or other remedies such as mandamus will be available to secure return of the property.’ (Aday v. Superior Court, supra, 55 Cal.2d at p. 799 [13 Cal.Rptr. 415, 362 P.2d 47].)” (Italics added.) And at pages 88-89: “A determination of obscenity may therefore be made by a grand jury, insofar as the issue of probable cause is concerned, without the necessity of receiving evidence as to [contemporary community] standards.” (Italics added.) If a grand jury may determine the issue of probable cause and an indictment subsequently issues, we see no reason why a magistrate may not issue a warrant upon the determination of probable cause. Certainly it is not contended that a grand jury proceeding is an “adversary proceeding.”

We therefore are directly confronted with the question of the establishment of probable cause for issuance of the warrant. The warrant issued upon statements that: (1) the FBI informed Sergeant Shaidell that a reliable informant had informed them that defendant was selling obscene films and possibly Tijuana Bibles from his car and that the sales were taking place in various locations throughout the city; (2) Shaidell placed defendant’s residence under surveillance and Shaidell observed defendant bring material (which was soon found to be films) from his house and place it in his Lincoln automobile; (3) defendant was followed to a service station, where a clandestine transaction involving four reels of film took place; (4) the purchaser of the films then attempted to hide them; (5) during the course of the transaction, defendant was overheard by Officer Monnett⁴ to say: “We’ll have to jack these guys up to get 20 to 30 different films although these films are good. They show a lot of fuck action. Ray, I will see you later.” A reasonable interpretation of these words is that the films there in the trunk showed obscene matter, so were “good”; that although this was so, defendant and his cohort should try to get some different, perhaps even more salacious, films from his source of supply.

The information supplied by the FBI cannot, obviously be considered as reliable since the “reliable” informant was not named, nor were the circumstances enumerated upon which his information was given. But the police may use an untested informant’s information to supply probable cause if through an independent investigation they find corroborating evidence. (People v. Gallegos, 62 Cal.2d 176, 179 [41 Cal.Rptr. 590, 397 P.2d 174]; People v. West, 3 Cal.App.3d 253, 256 [83 Cal.Rptr. 223].) “Such corroboration need not itself amount to reasonable cause to arrest; its only purpose is to provide the element of ‘reliability’ missing when the police have had no prior experience with the informant. Accordingly, it is enough if it gives the officers reasonable grounds to believe the informant is telling the truth, for in this type of case the issue is ‘not whether the information obtained by the officers emanated from a reliable source, but whether the officers could reasonably rely upon that information under the circumstances.’ [Citations.]” (People v. Lara, 67 Cal.2d 365, 374-375 [62 Cal.Rptr. 586, 432 P.2d 202]; see also, People v. Davis, 2 Cal.App.3d 230, 235-236 [82 Cal.Rptr. 561].)

We believe that probable cause existed for the issuance of the warrant. Probable cause exists if a man of ordinary care and prudence would be led to conscientiously entertain an honest and strong suspicion that the accused is guilty, or that contraband was present. (People v. Scott, supra, 259 Cal.App.2d 268, 275.) The circumstances involved in the clandestine transaction, plus the conversation that was overheard, which, by reasonable inference in the setting, amounts to an admission that the films were obscene, plus the house as the source of the films, in combination with the FBI information, supply the requisite probable cause for issuance of the search warrant. These circumstances, combined with the admission, not only provided a strong suspicion that the films were obscene, but the ordinary prudent man would certainly entertain an honest and clear con elusion that the films were obscene. Having been informed that defendant was selling obscene material, and having independently corroborated that information with the admission contained in the conversation which was overheard, and by presenting these facts to a magistrate to obtain a search warrant, we believe that the' higher standard required by the First Amendment for a search has been met and that the warrant legally issued.

The judgment is affirmed.

Reppy, J., concurred.

Footnotes

1

See infra for explanation.

2

On appeal, defendant has not seen fit to challenge either the breadth of the warrant or the manner of its execution.

3

On March 29, 1971, the United States Supreme Court vacated the Ninth Circuit Court of Appeals affirmance of the Demich case.

4

Defendant at no time argued that the magistrate could not properly consider the hearsay contained in Sergeant Shaidell’s affidavit. We therefore express no opinion concerning its propriety. (People v. Scott, 259 Cal.App.2d 268, 278-279 [66 Cal.Rptr. 257]; cf. People v. Madden, 2 Cal.3d 1017, 1021 [88 Cal.Rptr. 171, 471 P.2d 971]; Remers v. Superior Court, 2 Cal.3d 659, 666-667 [87 Cal.Rptr. 202, 470 P.2d 11].)