People v. Terrones

212 Cal. App. 3d 139, 260 Cal. Rptr. 355, 1989 Cal. App. LEXIS 722

• Court: California Court of Appeal
• Decided: July 18, 1989
• Docket: B037713
• Status: Published

Opinions

Opinion

LILLIE, P. J.

Pursuant to Penal Code section 1238, subdivision (a)(7), the People appeal from an order dismissing the within cause after the superior court granted defendant’s pretrial motion to quash a search warrant and suppress evidence. (Pen. Code, § 1538.5.) The return to the search warrant for defendant’s residence indicates that police seized, inter alia, 34 grams of cocaine. Subsequently, defendant was charged in an information with possession for sale of cocaine (Health & Saf. Code, § 11351), and possession for sale of more than 28.5 grams of cocaine or 57 grams or more of a substance containing cocaine (Pen. Code, § 1203.073, subd. (b)(1)).

The People contend (1) the trial court erred in granting the motion to quash the warrant and suppress evidence because there was sufficient probable cause to justify issuance of the warrant and (2) assuming there was no probable cause to issue the warrant, the good faith exception to the Fourth Amendment exclusionary rule applies.

Facts

A. Search Warrant.

On December 18, 1987, a search warrant was issued by a magistrate upon an affidavit of Officer Mark Scott, a narcotics investigator. The warrant authorized the search of defendant’s residence, car, and person for, inter alia, cocaine and narcotic paraphernalia. On the day it was issued, the warrant was executed by Officer Scott.

Officer Scott’s affidavit set forth the following: That he has been a police officer for the City of Whittier for over seven years, and is currently assigned as a narcotics investigator; he has participated in the arrest of numerous persons for possession and sale of narcotics and has testified as an expert in the field of narcotics on numerous occasions; in the first week of November 1987 he was contacted by a confidential citizen informant (Cl #1), who informed him that there is constant traffic to the residence at 8318 California Avenue, vehicles pull up to the residence and persons get out and stay for five minutes at a time, on some occasions Frank Terrones will walk over to a yellow Chevrolet Camaro parked in the driveway and remove a cap from the hub of the front wheel of the car and he (Cl #1) has observed Terrones take something out and put the cap back on; during the second week of November, Cl # 1 again contacted Scott and told him that he (Cl #1) had seen a man at 8318 California Avenue remove the hubcap from a small red and white pickup truck and place something into it.

Officer Scott further asserted that during the first week of November 1987, he spoke with a second confidential informant (Cl #2), who told him that he (Cl #2) had been regularly purchasing cocaine from a person known as Frank T. at 8318 California Avenue; Cl #2 had seen large amounts of cocaine at the residence, had used the cocaine purchased from Frank T., and knew it was cocaine based on the symptoms experienced and recognized from prior use of cocaine.

The affidavit continued that during the second week of December 1987, Officer Scott was contacted by a third confidential citizen informant (Cl #3) who told him that he (Cl #3) had seen a man leave the front door at 8318 California Avenue and walk down the driveway carrying two clear plastic bags containing a white powdery substance; when the man saw him (Cl #3), the man immediately tucked his hands beneath his armpits, hiding the two plastic bags, and he (Cl #3) lives in the area and has seen constant traffic to the residence at 8318 California Avenue, people staying at the residence for short periods of time.

Officer Scott’s affidavit concluded that Deputy Nunez of the Los Angeles County Sheriff’s Department—Norwalk Station—told him that he (Nunez) had a confidential informant (Cl #4) who had been at the residence at 8318 California Avenue within the past five days, and that Cl #4 had purchased cocaine from Frank Terrones at the residence and had used the cocaine after purchasing it. Based on the above, as well as his training and experience, Officer Scott was of the opinion that cocaine could be found at defendant’s residence.

B. Motion to Quash.

Prior to the preliminary hearing in the municipal court, defendant moved to quash the warrant pursuant to Penal Code section 1538.5 on the ground that the face of the warrant was insufficient to establish probable cause because there were no foundational facts to show reliability or to support the conclusions in the affidavits that two of the informants were citizen informants, thus relegating them to the status of anonymous or untested informants, whose information requires corroboration and who cannot corroborate each other. The magistrate denied the motion, stating that it “will view the ‘citizen informant’ as one who is known to the police department and which rises above the level of a paid informant and anonymous informant.” After the preliminary hearing, defendant was held to answer to the charge of possession for sale of cocaine.

In the superior court defendant renewed his motion to quash, making the same argument as in the first motion.¹ The superior court concluded that the search warrant affidavit was insufficient to demonstrate probable cause because the conclusory phrase “confidential citizen informant” was not substantiated by any foundational facts to enable the magistrate to draw that conclusion. The court further found that the officer was not acting in good faith, even though Officer Scott testified at the hearing that prior to executing the affidavit to the search warrant he had met the two citizen informants face to face, had been to their homes, and knew their names and addresses.² In finding that the officer did not act in good faith, the court relied upon United States v. Fuccillo (1st Cir. 1987) 808 F.2d 173, and stated the officer was “reckless in not including in the affidavit information which was known or easily accessible to [him]. The [officer] here did . . . not take every step that could reasonably be expected of [him]. So I’m going to suppress the evidence.”

After the court granted the motion to quash and suppress evidence, the People stated they were unable to proceed. Defense counsel moved to dismiss; the court granted the motion.

I

Probable Cause for Issuance of Search Warrant

California Constitution article I, section 28, subdivision (d) (Proposition 8), requires us to apply federal constitutional law to determine whether evidence should be excluded for offenses committed after June 9, 1982. (People v. Long (1987) 189 Cal.App.3d 77, 83 [234 Cal.Rptr. 271].)

The standard by which a magistrate must determine whether an affidavit is sufficient to establish probable cause for issuance of a search warrant is explained in Illinois v. Gates (1983) 462 U.S. 213, 238-239 [76 L.Ed.2d 527, 548, 103 S.Ct. 2317]: “The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding]’ that probable cause existed.” While an informant’s veracity, reliability, and basis of knowledge are all highly relevant in determining the value of his report, these elements should not be understood as entirely separate and independent requirements to be rigidly exacted in every case, but understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question of whether there is probable cause to believe that contraband or evidence is located in a particular place. (Id., at p. 230 [76 L.Ed.2d at p. 543].)

This test was adopted “so that, for example, an informant’s clear basis of knowledge could be balanced against, rather than automatically overruled by, that informant’s lack of a ‘track record’ of reliability.” (United States v. Reivich (8th Cir. 1986) 793 F.2d 957, 959.)³

“An informant’s veracity or trustworthiness may be established in a number of ways. If the informant has provided accurate information on past occasions, he may be presumed trustworthy on subsequent occasions. [Citation.] . . . Veracity also may be established through admissions against penal interest. [Citations.] Finally, an informant’s reliability may be demonstrated through independent police corroboration of the information provided.” (United States v. Angulo-Lopez (9th Cir. 1986) 791 F.2d 1394, 1397.) The fact that two apparently unassociated persons make the same assertion increases the probability that it is true; the mutually-supporting nature of two tips is an important ingredient in the “probable-cause mix.” (United States v. Laws (D.C. Cir. 1986) 808 F.2d 92, 103; see also U.S. v. Yarbrough (9th Cir. 1988) 852 F.2d 1522, 1533 [interlocking tips from different confidential informants enhance the credibility of each].)

II

Affidavit Provided Substantial Basis for Probable Cause Determination

Apparently relying on People v. Kershaw (1983) 147 Cal.App.3d 750 [195 Cal.Rptr. 311], the trial court noted that the affidavit did not set forth the facts supporting the officer’s characterization of two of the informants as citizen informants, so the presumption of reliability that attaches to true citizen informants did not apply. (Id., at p. 755.) The trial court then found that the affidavit contained no facts to establish the informants’ reliability. Citing Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 938 [216 Cal.Rptr. 817], which held that three anonymous telephone calls, without more, do not corroborate each other, the trial court then concluded the affidavit in the instant case was insufficient as a matter of law, apparently deeming the informants unreliable and their information uncorroborated.

The trial court’s analysis typifies the “ ‘excessively technical dissection of informants’ tips’ and the ‘judging [of] bits and pieces of information in isolation against. . . artificial standards’ against which the Supreme Court cautioned in Gates and Upton. See Upton v. Massachusetts [(1984) 466 U.S. 727, 732, 80 L.Ed.2d 721, 104 S.Ct. 2085.]” (United States v. Reivich, supra, 793 F.2d at p. 960.)

Nothing in the affidavit suggests that the informants’ identities were unknown to the police. Rather, the reasonable implication is that the informants’ names were simply omitted from the affidavit because of their desire for confidentiality. Moreover, someone tried to conceal baggies containing a white powder from the view of one of the citizen informants, who was a neighbor of respondent, thus suggesting that this informant was not a participant in criminal activity or a potential cocaine purchaser, but was in fact a “prototypical citizen informer”—a victim reporting a crime that happened to him or a witness who personally observed the crime occur. (People v. Kershaw, supra, 147 Cal.App.3d at p. 754.) In addition, it is clear that the observations of the two citizen informants concerned activities outside of respondent’s residence and in his driveway, consistent with observations of concerned neighbors rather than participants in criminal activities.

The dissent assumes, and we believe unreasonably so, that the identities of the four informants were unknown to the affiant, and speculates that the informants were nothing more than “four anonymous and uncorroborated tipsters.” This is not what the affidavit states; and to so interpret the affidavit is to assume either naive, sloppy police work, or worse yet, a dishonest or dissembling affiant who characterizes anonymous telephone callers as “citizen informants.” The only reasonable interpretation of this affidavit, and the one adopted by the issuing magistrate, is that the officer knew the informants’ names and what a citizen informant is, and truthfully stated his conclusions. The only real issue is whether the affidavit contained sufficient facts to allow the magistrate to make an independent determination of the reliability and sufficiency of the information provided by the informants.

Although nothing suggests that the informants’ names were not known to the police, had Officer Scott not obtained the names of the informants, he would not have been precluded from relying on the information. “Unless the informant is a well known public figure whose reputation for probity is virtually synonymous with his name, determination of his name alone adds nothing to his reliability. Rather the police must have reason to believe, and in fact believe, the informant is truly a citizen informant as opposed to a police informant. This belief and its reasonableness must be gathered from the surrounding circumstances one of which, mere name alone, is rarely relevant.” (People v. Superior Court (Haflich) (1986) 180 Cal.App.3d 759, 768 [225 Cal.Rptr. 762].) In this case, sufficient circumstances were set out in the affidavit to justify Scott’s characterization of two of the informants as citizen informants.

Even if the status of citizen informer does not eliminate the necessity of a showing of some degree of reliability (People v. Mardian (1975) 47 Cal.App.3d 16, 32 [121 Cal.Rptr. 269], overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1123, fn. 1 [240 Cal.Rptr. 585, 742 P.2d 1306]), the affidavit contains sufficient facts to justify an inference that the citizen informants were reliable. Although the affidavit does not state that the two citizen informants have a “track record” of supplying reliable information, the fact that the basis of their knowledge was personal observation “may compensate for a less than conclusive demonstration of [their] credibility.” (United States v. Laws, supra, 808 F.2d 92, 102.) Even had there been doubts as to an informant’s motives, and there is no evidence of such doubts here, an explicit and detailed description of alleged wrongdoing along with a statement that the event was observed firsthand, entitles the tip to greater weight than might otherwise be the case. (People v. Rochen (1988) 203 Cal.App.3d 684, 688 [250 Cal.Rptr. 73].) Because both of the citizen informants made the same assertion of people making frequent brief visits to respondent’s residence, which visits are an indication of narcotic traffic (People v. Kershaw, supra, 147 Cal.App.3d at p. 759), and both informants saw suspicious and unusual activities in the driveway of respondent’s residence, their information is mutually supporting and increases the probability that such information is true.

Further supporting the existence of probable cause in this case is the information provided by the two admitted cocaine purchasers who told police they had purchased cocaine from appellant at his residence and then used the cocaine. Such statements are against their penal interests and are an indication of their veracity. (United States v. Angulo-Lopez, supra, 791 F.2d 1394, 1397.) Despite the fact that the affidavit in the instant case is silent as to the backgrounds of the purchaser informants, the concept of statements against penal interest should not be interpreted narrowly and grudgingly, but should be applied consistently with the underlying concern of determining the reliability of tips from informants. (United States v. Reivich, supra, 793 F.2d 957, 959-960.) That the informant may be paid or promised a “break” does not eliminate the residual risk and opprobrium of having admitted criminal conduct. (Id., at p. 959.) Officer Scott received the information of one of the purchaser informants from Deputy Nunez, who, as a police officer may be presumed reliable (United States v. Angulo-Lopez, supra, 791 F.2d 1394, 1397), and the statements against penal interest of this informant tend to establish his reliability.

Based on the totality of the circumstances provided by the four informants, whose interlocking information enhanced the credibility of each of them, there was a substantial basis for the magistrate’s probable cause determination that was an exercise of independent judgment and not just a rubber-stamping of conclusory police statements.

Since we conclude that there was a substantial basis for the issuing magistrate’s probable cause determination, we need not consider the issue of the officer’s good faith reliance on the search warrant under United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405]. Were we to address this issue, we would note that the trial court concluded that the officer in this case did not take every step that reasonably could be expected of him. The trial court thus implied that the officer did not undertake a reasonable investigation to corroborate the information he received. This is clearly not the case. The officer did not seek a search warrant after the first informant had come forward, but obtained four different, but mutually supporting, sources of information concerning narcotics activities at respondent’s residence. The officer cannot be faulted for not personally surveilling the residence in an attempt to obtain information because “firsthand observation—particularly of a crime like drug-trafficking, which usually is accomplished professionally and furtively—is well-nigh impossible, and the use of informants is imperative.” (United States v. Laws, supra, 808 F.2d 92, 104.)⁴

We conclude that the trial court improperly granted the defense motion to quash the warrant and suppress evidence and then improperly dismissed the case.

Disposition

The order of dismissal is reversed, and the trial court is directed to vacate its order granting defendant’s Penal Code section 1538.5 motion to suppress evidence and to enter a new order denying the motion.

Woods (Fred), J., concurred.

1 Although his first motion before the magistrate did not raise the issue of the failure of the officer executing the search warrant to follow the procedures in Penal Code section 1531, at the preliminary hearing defendant objected unsuccessfully to the admission into evidence of the cocaine on the ground that there was insufficient compliance with Penal Code section 1531. In his renewed motion to suppress in superior court, defendant stated that evidence supporting this claim would be presented at the special hearing, although no new evidence was offered. The court did not address the issue. Respondent does not raise the issue in his brief here.

2 With certain exceptions not applicable here, a court cannot resort to facts outside the affidavit to determine whether it furnishes probable cause for the issuance of a search warrant (see People v. Frank (1985) 38 Cal.3d 711, 729 [214 Cal.Rptr. 801, 700 P.2d 415]), and an affiant’s testimony at the hearing on the suppression motion cannot supply probable cause. (Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 1465 [245 Cal.Rptr. 617].)

3 Although California courts are not bound by the decisions of lower federal courts, even on federal questions, we may and do consider the cases cited herein as persuasive authority. (People v. Neer (1986) 177 Cal.App.3d 991, 1000-1001 [223 Cal.Rptr. 555].)

4 The dissent perceives our decision as creating a world in which anonymous pranksters or enemies can manipulate or fool the police and a magistrate in an attempt to have the authorities invade the sanctity of the homes of innocent people. While we are sensitive to such a problem, it is not presented in or even suggested by the instant case, which does not involve anonymous tipsters. Rather, the real societal questions that may be posed by this case are (1) how much police investigation is enough for a search warrant and (2) is a magistrate entitled to assume that the officer has prepared his affidavit in an intelligent and honest fashion. Assuming our disposition has any impact at all on these broader issues, its impact is simply to allow a magistrate to give an intelligent and honest police officer credit where credit is due and to allow the officer to seek a search warrant when he has credible information from four different sources.