Opinion
Page __
__ Cal.App.2d __ 299 P.2d 436 Beverly Joy TROWBRIDGE, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF LOS ANGELES, Respondent. Civ. 21788. California Court of Appeals, Second District, First Division July 3, 1956Rehearing Granted July 31, 1956.
Opinion vacated 300 P.2d 222.
[299 P.2d 437] Sydney M. Williams, Los Angeles, and Morton R. Goodman, Beverly Hills, for petitioner.
S. Ernest Roll, Dist. Atty., Jere J. Sullivan, and Lewis Watnick, Deputy Dist. Attys., Los Angeles, for respondent.
NOURSE, Justice pro tem.
Petitioner's motion made pursuant to the provisions of section 995 of the Penal Code to set aside an information charging her with violation of section 11500 of the Health and Safety Code having been denied by the respondent court, she seeks a writ of prohibition to arrest further proceedings in the respondent court upon that information.
It is petitioner's contention that the marijuana which was seized in the search of her home and which was received in evidence by the committing magistrate was illegally obtained and therefore inadmissible against her under the rule laid down in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905.
The facts as shown by the evidence produced by the People are: Petitioner resides in an apartment house. On the night of February 17, 1956, she was arrested on the porch of that apartment house, when she was about to enter her apartment. The arresting officer stated to her that she was charged with possession of narcotics. At this time petitioner denied any knowledge of narcotics, and then entered her apartment. The arresting officers, according to their testimony, requested permission to enter, which petitioner gave. After entering, the following conversation occurred between one of the arresting officers and petitioner. The arresting officer asked, 'Do you have any marijuana in the house?' Petitioner: 'I don't know anything about any marijuana.' The officer: 'Well, we are going to look around anyway.' Petitioner: 'Go ahead. You won't find anything.' After this conversation the arresting officers ransacked the apartment. In certain articles of clothing they found the debris of marijuana; in a trash basket in the kitchen they found further debris of this plant; in a spice bottle they found marijuana; and in the garage which was beneath petitioner's apartment they found a bag containing marijuana.
The officers did not have a warrant for the arrest of petitioner, nor a search warrant.
Apparently, although this is not entirely clear from the testimony given, the porch where the arrest occurred was one used in common by petitioner and others who rented apartments.
The facts here present the following clear-cut questions: (1) Is information given by a known informant sufficient in itself to constitute probable cause for a police officer to believe that a person has [299 P.2d 438] committed a felony, and thus justify the arrest of that person? (2) May the home of a person arrested outside the home but adjacent to it be searched when at the time of the search the officers do not have knowledge of any fact or circumstance that would indicate that the person arrested has committed a felony, other than the information given by a known informer?
Neither of these questions has been passed upon by out Supreme Court either before or since its decision in People v. Cahan, supra, in a case where it was necessary to decide the question.
In People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535, 537, the Supreme Court said: 'It is settled, however, that reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt.' This statement, however, was not necessary to the decision, inasmuch as the defendant had prevented the prosecution from establishing the facts which led the officers to the belief that the defendant had committed the felony. In none of the cases cited by the Supreme Court in support of the statement we have quoted was the arrest based solely upon information given by a single informant.
The first case cited by the court is Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. No question of action by the arresting officers on information given by an informer was involved, but the officers had acted upon knowledge that Brinegar was engaged in the unlawful trade of transporting from Missouri to Oklahoma and selling liquor in Oklahoma, upon personal observation made by them of his activities both in Missouri and Oklahoma, and upon his actions, the condition of his automobile in being overloaded, and his admission at the time of his arrest.
The second case cited is that of United States v. Li Fat Tong, 2 Cir., 152 F.2d 650. In this case Tong was known by the government agents to have been engaged in the illegal transportation and sale of narcotics. The arresting officers were advised by government officers in Chicago that Tong and a companion would leave Chicago on a certain airplane and that they were bringing with them a considerable amount of opium. When Tong alighted from the plane he was asked by the officers to come with them to their car so they could talk, and at this time Tong dropped a bottle which still contained a small amount of Yen Shee Suey, a solution of opium in wine. Thereupon he was arrested and his baggage searched, and a large amount of opium and some Yen Shee Suey found. It is evident that this case does not uphold the proposition that the statement of one informer is sufficient to constitute probable cause, for here the arresting officers not only knew that Tong had a prior criminal record for narcotics as well as other criminal charges, but were advised that the defendant then had narcotics in his possession and at the time of the arrest knew of his present possession of the bottle of Yen Shee Suey which he had attempted to dispose of; although Judge Learned Hand in his opinion does say that hearsay evidence derived from an informer is competent evidence on the issue of probable cause. This, however, was said in connection with his holding that it was not error for the court to decline to require the government to disclose the names of its informants.
See Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36.
The case of Aitken v. White, 93 Cal.App.2d 134, 208 P.2d 788, which was cited by the court, is not authority for the proposition that information given by a single informer, without knowledge of any other facts, is sufficient to constitute probable cause. In that action, which was one for false arrest and imprisonment, the court held it error to refuse to receive into evidence the report of a detective agency concerning the plaintiff, and which had been received by the defendant prior to his placing the plaintiff under arrest, holding that [299 P.2d 439] hearsay evidence was admissible upon the question of probable cause--not to establish the truth of the statements made, but as evidence bearing upon the question as to whether the defendant had reasonable cause to make the arrest. In that case, however, the defendants had, prior to the arrest, made a very thorough and exhaustive investigation, and the arrest was not based upon the information given by a single informer but upon the investigation made and the report of the detective agency. The case stands only for the proposition that hearsay evidence is relevant to a decision by the court as to the existence or nonexistence of probable cause.
The last case cited by the court is Cook v. Singer Sewing Machine Co., 138 Cal.App. 418, 32 P.2d 430, which was also an action for damages for false arrest. This case did not involve any question of arrest made solely upon the basis of information given by a single informer. It stands solely for the proposition that suspicion itself is not sufficient to establish reasonable cause to make an arrest, but that it must appear that the officer's suspicion of the guilt of the person proposed to be arrested, and his belief in the assumed fact that the person to be arrested has committed a felony, is properly founded upon relevant facts or circumstances or credible information conveyed to him.
In the case at bar the officers did not have independent knowledge of any fact or circumstance which could give rise to even a mere suspicion that the defendant had committed a felony. They had only the statement of an informer who had 'usually' been reliable that she had, some days before, committed a felony.
The dictum which we have quoted from the Boyles decision is a part of the workable rules governing searches and seizures formulated by the Supreme Court under its pronouncement so to do in the Cahan case. We therefore feel bound by that dictum, and hold that the committing magistrate was entitled to believe the testimony of the arresting officers that they had been given the information to which they testified and that their informer was reliable, and that he was therefore justified in holding that the arresting officers had reasonable cause to believe that petitioner had committed a felony.
This brings us to the question as to whether or not the search made of petitioner's home was a reasonable one.
It is established that law enforcement officers have a right to conduct a reasonable search and seizure incident to a valid arrest, People v. Winston, 46 Cal.2d 151, 293 P.2d 40, but that the legality of an arrest is not necessarily determinative of the lawfulness of the search incident thereto, People v. Brown, 45 Cal.2d 640, 643, 290 P.2d 528.
In the present case, as we have heretofore pointed out, the officers at the time of their search did not have knowledge of any fact upon which to found a belief that the petitioner had concealed in her home any marijuana, other than the information given them by their informant.
It could not be contended that on the basis of this information they could have, without an arrest, searched petitioner's home, Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 149; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. Therefore unless the pronouncement by the officer of the words 'you are under arrest' had some magic to increase his power and to confer the right to invade and ransack petitioner's home, it cannot be said that the search made here was a reasonable one incident to the arrest. In fact, it can better be said that the arrest was made in order to supply a pretext for the search than that the search was made as an incident to the arrest. Henderson v. United States, 4 Cir., 12 F.,2d 528, 51 A.L.R. 420, 421-423.
If a belief based solely upon information given by an informant who had 'usually' been found reliable makes a search such as that involved here a reasonable one incident to the arrest, the provisions of section 19 of article 1 of the Constitution of this state, and of the Fourth Amendment to the Constitution [299 P.2d 440] of the United States, mean little or nothing.
If the information given by the informer is correct, then the search results in the discovery of evidence without which the person whose home is searched could not be convicted; yet the search cannot be justified by the discovery of that evidence, People v. Berger, 44 Cal.2d 459, 282 P.2d 509. If the information proves to be incorrect and no contraband is found, the person the privacy of whose home has been invaded is without recourse; for if the information given by the informer is sufficient to constitute probable cause for the arrest and search, it constitutes a complete defense to any civil action that may be brought by the injured person founded upon that arrest and search. If law enforcement officers may search a citizen's home on the sole basis of information which they claim they received from an informer whose name they need not divulge, People v. Gonzales, 141 Cal.App.2d 604, 297 P.2d 50, and cases there cited, then such information is equivalent to a search warrant, and the safeguards of the constitutional provisions are by-passed and rendered ineffectual.
What we have here said is not in conflict with the decision of Division Two of this court in People v. Gonzales, supra. There the arrest was made on the basis of information given by a known informant, but the search of the defendant's person made simultaneously with the arrest revealed narcotics and instruments for administering them, and the defendant then freely admitted the purchase of narcotics and his use of them. These additional facts clearly made the search of the immediate premises which followed a reasonable one.
Under the facts shown by the record here the officers had ample time to place the facts which they had before a magistrate and attempt to secure a search warrant; and while it is true that our Supreme Court in People v. Winston, supra, 46 Cal.2d at page 151, 293 P.2d 40, held that the test of the reasonableness of a search did not depend upon the practicability of procuring a search warrant, we do not believe that it intended to hold that under facts such as exist here a search such as was made here could be made without a warrant.
The Supreme Court, in the case just mentioned, cites and relies upon the decision of the U. S. Supreme Court in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. In that case the search made was of a room open to the public in Rabinowitz' place of business. The officers were armed with a valid warrant for his arrest and had actual knowledge that at that place he had sold altered obligations of the United States and that forged postage stamps had been delivered to him at that address. It is in the light of these facts that the court's holding that the search made at the time of the arrest was not unreasonable, even though the officers might have procured a search warrant at the same time they secured the warrant of the arrest, must be read.
The language and reasoning of the Supreme Court of the United States in United States v. Jeffers, supra, seem applicable here. The court there said at page 51 of 342 U.S., at page 95 of 72 S.Ct. at page 64 of 96 L.Ed.: 'The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both 'houses' and 'effects.' Over and again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. [Citations.] Only where incident to a valid arrest, [citation] or in 'exceptional circumstances,' [citation] may an exemption lie, and then the burden is on those seeking the exemption to show the need for it, [citation]. In so doing the Amendment does not place an unduly oppressive weight on law enforcement officers but merely interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended. [Citation.] Officers instead of obeying this mendate have too often, as shown by [299 P.2d 441] the numerous cases in this Court, taken matters into their own hands and invaded the security of the people against unreasonable search and seizure. [emphasis added.]
'* * * There was no question of violence, no movable vehicle was involved, nor was there an arrest or imminent destruction, removal, or concealment of the property intended to be seized. In fact, the officers admit they could have easily prevented any such destruction or removal by merely guarding the door. Instead, in entering the room and making the search for the sole purpose of seizing respondent's narcotics, the officers not only proceeded without a warrant or other legal authority but their intrustion was conducted surreptitiously and by means denounced as criminal.'
In cases such as the one here, no great burden is placed upon the officers by requiring them to seek a search warrant and to disclose to the magistrate the facts upon which they seek the warrant, so that the question of probable cause may be determined under 'the aegis of judicial impartiality'.
The respondent contends that the petitioner consented to the search made by the arresting officers and that therefore she cannot contend that it was unreasonable. We do not believe that the facts here show a consent by the petitioner, but rather show merely a compliance with the assertion of authority by the arresting officers. (See People v. Gorg, 45 Cal.2d 776, 782, 291 P.2d 469; United States v. Rembert, D.C., 284 F. 996, 998-999.) The only evidence to which the People point as showing consent by petitioner to the search made by the officers was the colloquy between the arresting officer and the petitioner wherein the officer said 'Do you have any marijuana in the house?'; petitioner replied 'I don't know anything about any marijuana'; the officer said 'Well, we are going to look around onyway'; and the petitioner replied 'Go ahead'. [Emphasis added.] Certainly the officer's statement 'Well, we are going to look around anyway,' considered in the light of the fact that he had already placed the petitioner under arrest, was an assertion of authority by him which petitioner could not well resist; and her statement 'Go ahead' cannot be deemed to be a consent.
We hold that the search and seizure here made were unreasonable and in violation of petitioner's constitutional rights.
Let a peremptory writ of prohibition issue as prayed.
WHITE, P. J., and FOURT, J., concur.