Opinion
Cr. 3381
2-13-1958
The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert McSHANN, Defendant and Appellant. *
Vaughns, Dixon & White, Clinton W. White, Oakland, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Robert McSHANN, Defendant and Appellant. *
Vaughns, Dixon & White, Clinton W. White, Oakland, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.
DOOLING, Justice.
Defendant appeals from the judgment of conviction upon two counts of violation of section 11500 of the Health and Safety Code. Count One charged a sale of heroin on November 26, 1956; Count Two charged possession of heroin on November 27, 1956.
The prosecution's evidence showed that on November 26, 1956, Inspector McBee of the State Division of Narcotic Enforcement and Sergeant Hilliard and Officers Leen and Goodrum of the Oakland Police Department met a confidential informant in the vicinity of Seventh and Clay in Oakland. McBee and Hilliard searched the informant and discovered no narcotics. The search was not complete, consisting of a check of his pockets and his stockings. Then the informer accompanied the officers to the Special Services Office of the Oakland Police Department where he made a telephone call. McBee dialed the number and a recording was made of the conversation. The number dialed was listed to 1910 Ashby Avenue in Berkeley, appellant's residence. McBee, Hilliard and Goodrum were present during the phone conversation and later listened to the recording. They identified the voice of the person talking to the informer as that of appellant.
The informer was given $35 (consisting of three bills: a $20, a $10 and a $5) that had been heavily dusted with fluorescent powder. The serial numbers of these bills was not noted. The informer was taken to the vicinity of Market and Grand and there was picked up by a man identified as appellant.
After the informer entered the automobile, McBee followed until he lost sight of it. Ten or fifteen minutes later the informer entered McBee's automobile where it was parked at 21st and Market. At this time the informer handed to McBee a small bindle containing a white powder later identified as heroin.
Officer Goodrum observed the informer enter the automobile identified as appellant's and he followed this automobile until the informer got out and entered McBee's car.
On November 27, 1956, the informer again made a telephone call to the same number. A recording was made of this conversation. After the conversation, McBee and the informer proceeded to the vicinity of the Ebony Plaza Bar where they were joined by Sergeant Hilliard. Hilliard, after listening to the recorded telephone conversation, obtained a warrant to search the premises at 1910 Ashby Avenue.
On November 27 Officers Reppas and Woishnis of the Berkeley Police, accompanied by Goodrum of the Oakland Police, were keeping appellant's residence (1910 Ashby Avenue) under surveillance. Pursuant to orders telephoned from Hilliard they followed appellant as he drove from his residence. At the intersection of Adeline and Market where appellant stopped for a traffic signal, they pulled their car in front of appellant's, blocking his way. Goodrum stated to appellant: 'You're under arrest.'
Appellant was instructed to get out of his car and place his hands on top of the car. As he started to comply, Woishnis observed a 'silvery flutter' and shouted: 'He dropped it.' Goodrum observed something shiny 'hit off of his [appellant's] shoe and land on the ground * * *' Reppas picked up four tinfoil packages and asked appellant: 'What about these?' to which appellant replied 'I don't know anything about it.' Appellant was then searched and a smaller package wrapped in cellophane was found in his coat pocket. All five packages contained heroin.
All the officers then proceeded to 1910 Ashby Avenue, and McBee and Goodrum entered the house with a search warrant. The sum of $1,058 was discovered in a drawer of the back bedroom and when a violet-ray or 'black light' was shone on this money, $35 of it was found to contain large amounts of fluorescent powder.
Appellant testified at the trial and denied that he was a party to the telephone calls. He denied meeting anyone on the corner of 23rd and Market on November 26. No other evidence connecting appellant with narcotics was found in his home.
During the cross-examination of Inspector McBee, he was asked the name of the confidential informant and refused to divulge the name claiming the information privileged (under section 1881, Code of Civil Procedure). His refusal was sustained by the trial court. Officer Hilliard was also asked to name the informant and his refusal was upheld by the court. In the hearing on reasonable cause for the arrest and search of November 27, held in the absence of the jury, Hilliard was again asked the name of the confidential informer and his claim of the privilege was sustained.
Appellant's only contention on appeal is that the trial court committed error during the hearing on reasonable cause and the trial before the jury in not requiring that the name of the informant be disclosed.
Insofar as Count One is concerned it involved an alleged sale to the unidentified informer. The informer was a participant in the sale, if one occurred, and was a material witness to the alleged crime--in fact in this particular case the informer was the only person other than the appellant who could furnish direct evidence on that subject since the proof of the alleged sale was entirely circumstantial. It is now settled that it is reversible error to refuse the disclosure of the informer's identity where the informer is a participant in the alleged crime. People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79; People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821; People v. Alvarez, 154 Cal.App.2d 694, 316 P.2d 1006; People v. Cox, 156 Cal.App.2d 472, 319 P.2d 681. Under such circumstances the informer is a material witness whose testimony might exonerate the defendant and the privilege against disclosure must give way to the fundamental right of the defendant to have the opportunity to produce an obviously material witness.
The People argue that because the recorded telephone conversation was played before the jury and the jury had the opportunity to compare the voice on the recording with appellant's on the stand this case is distinguishable from the cases above cited. Appellant denied participation in the telephone conversation and denied that the voice on the recording was his. What we said in Castiel, supra, 153 Cal.App.2d at page 659, 315 P.2d at page 82, is equally applicable to this argument: 'No one knows what the undisclosed informer, if produced, might testify. He might contradict or persuasively explain away the prosecution's evidence. It is the deprival of the defendants of the opportunity of producing evidence which might result in their exoneration which constitutes the error in this case, and we cannot assume because the prosecution evidence may seem strong that the undisclosed evidence might not prove sufficient to overcome it in the minds of the jurors. To do so is to reason that in no case can a defendant suffer prejudice from the suppression of evidence which may be favorable to him if the prosecution has produced what seems to be a strong eyewitness case of the defendant's guilt.'
It cannot reasonably be claimed that the evidence shows that appellant knew the informer's identity since appellant denied talking to him on the telephone and meeting him in the automobile. People v. Castiel, supra, 153 Cal.App.2d 653, 315 P.2d 79.
As to Count Two the question of whether reasonable grounds for appellant's arrest on November 27 existed is crucial since the arrest was without a warrant and the discovery of the narcotics followed the arrest. If the arrest was without probable cause the evidence of the narcotics thereafter discovered should have been excluded.
On the voir dire to determine whether the officers had reasonable grounds to believe that a felony was being committed, and hence to make an arrest without a warrant, the defendant is certainly entitled to produce evidence to rebut the showing of the officers. If the court must take the testimony of the officers as true on the question of reasonable cause the rights guaranteed by People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, would have little practical substance. So as we pointed out in People v. Lawrence, supra, 149 Cal.App.2d 435, 451, 308 P.2d 821, 831:
'We believe the same principle applies to a hearing on voir dire held out of the presence of the jury. Although the question of the guilt of the defendant is not before the court, nevertheless, the defendant has the same right to present his defense at the hearing to determine the reasonableness of an arrest or search as he does on the question of his guilt. The fact that the hearing is held before the court in the absence of the jury makes it no less a criminal proceeding. Due process applies and all the rights the defendant may have at the trial proper apply with equal force and dignity to the proceedings before the court sitting in the absence of a jury.'
It seems obvious that the same principles of fair play which require the disclosure of the identity of the informer when his testimony might be of material benefit to the defendant in defending the case against him on the merits should be equally applicable when the informer's testimony might be of material benefit in establishing that the officers did not have reasonable grounds to justify an arrest and search without a warrant. It is just as important to a defendant to have access to material witnesses who may satisfy the court that evidence against him should be excluded because it was obtained as a result of an illegal search and seizure as it is to have access to material witnesses who may give evidence which will result in overcoming in the eyes of the jury the prosecution's evidence against him on the merits of the charge. Unless the defendant is accorded this right the doctrine of the Cahan case may be easily circumvented and become little more than a pious platitude.
Court of other jurisdictions which apply an exclusionary rule similar to that which our Supreme Court adopted in the Cahan case have seen this clearly as the following quotations attest:
'So we think, when an officer seeks to justify an arrest upon 'a charge made upon reasonable cause,' the officer should be required to reveal the identify of the person making the charge as well as the nature of the charge. The court has to pass upon the officer's justification, and that justification is open to impeachment. A defendant should not be bound by the officer's statement that a charge had been made, and, unless the source of the charge was ascertained, neither its good faith nor reality could well be challenged.' Smith v. State, 169 Tenn. 633, 90 S.W.2d 523, 524.
'We think the defendant had a right to propound the question to the witness, and have it answered, as to where he obtained the information. * * * The immunity from unreasonable search, seizure, and arrest is one of the most valued liberties afforded and secured by our Bill of Rights under the state and federal Constitutions. * * * Where an officer acts without a warrant, he must, under the law, justify his action, and he cannot avoid doing so on the theory that to do so would violate any confidence or confidential communication. The rights of others are involved in such proceedings, and the court should obtain possession of all the information available, standing as nearly as possible in the place of the officer, and judging from the facts which the officer possessed, before it decides the sufficiency of the information to constitute probable cause.' Mapp v. State, 148 Miss. 739, 114 So. 825, 826.
'If the information of the informer was unreliable or he was unworthy of belief, the officer did not have probable cause to make either the search or the arrest. It follows that the court must have all the facts before it can properly determine whether the officer acted on reasonable grounds. If an officer should stop a peaceful, law-abiding citizen on the highway and search his car, subjecting him to humiliation and ridicule, and the offended citizen should seek redress by a suit for damages, surely no court would say the officer would be relieved of responsibility by an answer that he was informed by a reliable person that the citizen was engaged in the illicit liquor traffic, but he could not and would not disclose the name of his informer, thus preventing a fair and impartial investigation of his conduct. * * * We cannot have one law applicable to an identical state of facts for the innocent and another for the guilty. * * *
'Every accused person has the right to cross-examine on material facts every witness who testifies against him. * * *
'When the government calls a witness whose testimony is based in part on that of an informer, it subjects the witness to cross-examination and the informer to whatever peril may arise out of such cross-examination. It is a sound rule to keep secret information furnished to the state of violations of its laws, but this commendable public policy must yield to a higher, or at least an equal, right accorded to an accused to have a court investigate the facts material to his offense in a criminal prosecution * * *' United States v. Keown, D.C., 19 F.Supp. 639, 645-646, cited with approval in Roviaro v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, 1 L.Ed.2d 639.
'We then come to discuss that feature of the case which involves the refusal of the officer to give the name of his informant. * * * The only question here is as to whether or not, when the matter is presented to a court for the purpose of seeking a determination of whether, under all the circumstances, there was probable cause, this element of those circumstances may remain undisclosed. It is scarcely an answer to the proposition that an agent testifies that his informant was a reliable person, and that he believed the information so given, unless the court sitting in judgment may have the right to determine whether, under all the circumstances, such information was reliable and the agent was justified in having such belief. A belief must or should rest upon a substantial basis. It is not a question of impugning the motives or doubting the honest belief of the agent * * * It is simply requiring the witness to sustain his motives and his beliefs by all the evidence at his command. * * *
'* * * I am of the opinion that the only safe rule to adopt will be to require officers who presume to make search and seizures * * * without warrant, to disclose every element which goes to make up their case of probable cause, and that this rule reasonably includes the source of their information, so that the court may determine whether or not under all the circumstances a case of probable cause has been established * * *' United States v. Blich, D.C., 45 F.2d 627, 629.
Our case on this point involves a somewhat different set of facts than the typical case where the officer makes an arrest in reliance upon information narrated to the officer by an informer. Here the arrest was made in reliance upon information gained by overhearing a telephone conversation between the informer and another person said to have been the appellant. The informer was a participant in the conversation relied upon. The case in this respect approximates on the question of reasonable cause the participant-informer cases cited in the forepart of this opinion. Once granted the defendant's right to know the name of the informer on the voir dire to determine whether reasonable cause for an arrest and search existed, where his testimony may be of material aid to the defendant on that question, every reason that supports the rule that the informer's name must be furnished on the trial of the merits if he was a participant in the crime, supports the requirement that his name must be furnished if he was a participant in the conversation which is solely relied on by the officers to justify the arrest.
If the officers relied upon a conversation between two persons, neither of whom was an informer, to furnish reasonable cause for the arrest of one of them, who would question the right of the accused to know the name of the other with whom his conversation was alleged to have taken place? Being a party to the conversation relied upon his testimony would certainly be material and the accused would be entitled to call him as a witness. So the informant-participant in the conversation here relied on is an equally material witness and the appellant is equally entitled to call him. We need not speculate on what the informer's testimony might be and appellant is in no position to suggest its tenor because he has been deprived of the opportunity of interviewing the informer to ascertain his version of the facts. The appellant denied that he was a party to the conversation. The informer might corroborate him in this. But whatever his testimony might turn out to be, (to paraphrase the quotation above set out from People v. Castiel, supra, 153 Cal.App.2d 653, 659, 315 P.2d 79, 82) it is the deprival of the defendant of the opportunity of producing evidence which might result in a finding of want of reasonable cause which is the error here.
Judgment on both counts reversed.
KAUFMAN, P. J., and DRAPER, J., concur. --------------- * Opinion vacated 330 P.2d 33.