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District Court of Appeal, Second District, Division 3, California.

Bruce Harry MARTIN et al., Petitioners, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent, and The PEOPLE of the State of California by Their Attorney, Evelle J. Younger, District Attorney for the County of Los Angeles, Real Party in interest.

Civ. 30308.

Decided: May 26, 1966

Erling J. Hovden, Public Defender, Los Angeles County, William V. Larsen, James L. McCormick, Deputy Public Defenders, for petitioner Bruce Harry Martin. Melvin La Valley, Los Angeles, for petitioner Jean Elaine Massey. No appearance for respondent. Evelle J. Younger, Dist. Atty., Los Angeles County, Harry Wood, Chief, App. Div., Robert J. Lord, Deputy Dist. Atty., for real party in interest.

Petitioners were arrested on November 17, 1965, together with one Sam John Mendola, at an apartment house situated at 4716 Melrose Avenue in the City of Los Angeles. The three were thereafter jointly charged by a complaint filed on November 19, 1965, in the Municipal Court of the Los Angeles Judicial District with the crime of violation of section 11530.5 of the Health and Safety Code (possession of marijuana for sale).

After a preliminary examination before a magistrate the petitioners were bound over for trial in the superior court and on December 30, 1965, they were jointly charged with Mendola, by information filed by the District Attorney of Los Angeles County with the crime above mentioned.

Petitioners entered pleas of not guilty and their trial was set for February 25, 1966. On January 25, 1966, Martin filed a notice of motion for pretrial discovery to compel the prosecution to disclose the names of the persons alleged to have informed against them. Massey and Mendola joined in this motion. After hearing, the motion was denied, the trial judge stating that in order to grant disclosure under the circumstances would require a holding that section 1881.1 of the Code of Civil Procedure1 is unconstitutional. On February 7, 1966, the petitioners were granted leave to and did withdraw their pleas of not guilty theretofore entered, whereupon they moved under the provisions of section 995 of the Penal Code, to set aside the information upon the ground that they had been committed without reasonable or probable cause, in that the evidence produced and used against them at the preliminary hearing was obtained as the result of an unlawful search and seizure. The motions to set aside the information were denied as were motions to dismiss the action predicated upon the same grounds as the motions to set aside.

Petitioners were again arraigned upon the information, entered pleas of not guilty to the charge therein contained, and their trial was reset for February 25, 1966.

On February 18 and 21, 1966, respectively, Martin and Massey each filed a petition in this court for a writ of prohibition to restrain the respondent court from taking any further proceedings against them in the pending action, or mandate to compel the dismissal of such action. The petitions were consolidated for hearing and disposition in this court.

The facts leading up to the arrest and prosecution of the petitioners as disclosed by the transcript of the oral proceedings taken upon the preliminary hearing before the magistrate, are in substance as follows: Michael D. Seybert, testified that he was a police officer for the City of Los Angeles assigned to the Narcotics Division; that sometime in late September or early October, 1965, he had contacted an informant known to him to be reliable, who told him that one Sam Mendola lived in an apartment above a laundromat on Melrose Avenue by the Freeway; it was the apartment to the east. This informant further told Seybert that Mendola was selling marijuana out of the apartment and in other places in the Hollywood and San Fernando Valley areas.

Officer Seybert testified further that he had also talked to an informant, not considered reliable, who told him that a person known to the informant as Sam Mendola was living in an apartment over a laundromat on Melrose Avenue just west of the Freeway on the south side of the street, that it was the apartment to the left or east side as you were looking at it from the front; that this informant told him that there were large open blocks of marijuana lining the walls of the bathroom in the apartment, and there were also large quantities of marijuana throughout the apartment, in the process of being dried out.

Seybert testified further that on the day before the arrest he had talked to a fellow police officer who had told him that he had been in contact with the reliable informant and that such informant had stated that Sam Mendola was ‘dealing marijuana out of his apartment,’ that there was a quantity of marijuana in the apartment and that Mendola was involved in some type of transaction for the purchase of a large quantity of marijuana to be disposed of in the Los Angeles area and that Mendola still lived in the apartment. Seybert testified further that on the day of the arrest he overheard a telephone conversation between his brother officer and the unreliable informant wherein he heard his brother officer say, referring to Mendola, ‘He's still living in the apartment? Well, that's good. He's still there.’

Seybert testified that on November 17, 1965, he and two brother officers went to the address at 4716 Melrose Avenue, one of them knocked on the door and a female voice (Massey) answered ‘Who's there?’ and Sergeant Mullens said ‘Hi. Is Sam home?’ At this juncture the petitioner Massey opened the door of the apartment approximately 18 to 24 inches, whereupon the officers identified themselves as police officers, displayed their badges, and said they wanted to talk to Sam Mendola. He testified further that from his position outside he saw a man, later identified as Martin, in the middle of the front room about 8 to 10 feet from the door, that ‘He looked directly at me and appeared to get a different facial expression or shock or surprised look. Then he ran very quickly towards the rear of the house or the north.’

Seybert testified further that from his past experience as a police officer in the enforcement of the laws relating to narcotics, he felt that this person could have been Sam Mendola, that he had recognized us as police officers, and was attempting to run to the bathroom of the apartment in order to destroy the contraband and I was going to place him under arrest. He testified that at this point one of the officers pushed the door open and one of them chased Martin. Officer Seybert observed Sergeant Mullens enter the bathroom and as Seybert ran from the front door through the apartment he heard a door slam and heard the sound of a flushing toilet and felt that the person who had run was in the bathroom and had just flushed some contraband down the toilet in order to destroy it.

Officer Seybert testified further that when he and his brother officers identified themselves as police officers, Massey ‘at tempted to slam the door in our face and we pushed it aside.’ He testified further that he heard some shuffling noises in the back of the apartment and upon looking into a bedroom he observed Mendola leaning over an army type footlocker clawing through some articles therein. He felt that Mendola was attempting to find some narcotics in order to dispose of them. Seybert called Massey into the bedroom and in the presence of Mendola advised both of them of their right to remain silent and of their right to the advice of an attorney. He then observed a jewelry box on the top of a dresser in the bedroom in which he found three cigarettes which resembled marijuana cigarettes. At this point he placed both Mendola and Massey under arrest. Martin was also placed under arrest.

In the search of the apartment they found various pills and capsules on the shelf in a bedroom closet. On a shelf in the hallway closet they found marijuana in plastic bags and in a closet in the kitchen area more marijuana was found. Seybert testified that in his opinion the marijuana was kept in the bags preparatory to packaging it for sale. No narcotics were found in the bathroom and Seybert never saw any narcotics in the hands of Martin.

Officer Seybert testified that Massey stated, in answer to questions, that Mendola had been there for quite a while, that Martin had permission to stay there but was not living there.

The record discloses that when the police went to the apartment on November 17, 1965, they were not armed with a search warrant authorizing them to search the premises nor did they have a warrant of arrest for any of the occupants found there. It was their intention in going to the apartment ‘To investigate the marijuana trafficking of Sam Mendola and his alleged girl friend,’ based upon the information that they had received from the unidentified reliable information and the unidentified unreliable informant.

At the preliminary hearing Officer Seybert was asked by petitioners' counsel to identify his informants and he declined to do so claiming the privilege granted under the provisions of section 1881.1 of the Code of Civil Procedure embodied in section 1042 of the Evidence Code, the latter to become effective on January 1, 1967. At the conclusion of such hearing petitioners' counsel moved to strike the testimony of Officer Seybert upon the grounds that he had refused to identify his informants and further moved the court to dismiss the action upon the grounds that the narcotics received in evidence against them was the product of an unlawful search and seizure. Both motions were denied.

‘It is settled that ‘a ‘defendant has been held to answer without reasonable or probable cause if his commitment is based entirely on incompetent evidence’, and accordingly, in such a case the trial court should grant a motion to set aside the information, Penal Code, § 995, and if it does not do so, a peremptory writ of prohibition will issue to prohibit further proceedings. Penal Code, § 999a.' [Citations.]' (Priestly v. Superior Court, 50 Cal.2d 812, 815, 330 P.2d 39, 41.)

The narcotics received in evidence at the preliminary hearing, over the petitioners' objection, constituted essential evidence of their guilt, and if obtained as the result of an unlawful search and seizure, were not competent to show reasonable or probable cause of their guilt. (Priestly v. Superior Court, supra, p. 815, 330 P.2d 39; Rogers v. Superior Court, 46 Cal.2d 3, 8, 291 P.2d 929.)

In a situation where an arrest and search was made without the benefit of a warrant and the officer acted solely upon information received from two informants, the court said: ‘If testimony of communication from a confidential informer is necessary to establish the legality of a search, the defendant must be given a fair opportunity to rebut that testimony. He must therefore be permitted to ascertain the identity of the informer, since the legality of the officer's action depends upon the credibility of the information, not upon facts that he directly witnessed and upon which he could be cross-examined. If an officer were allowed to establish unimpeachably the lawfulness of a search merely by testifying that he received justifying information from a reliable person whose identity cannot be revealed, he would become the sole judge of what is probable cause to make the search. Such a holding would destroy the exclusionary rule. Only by requiring disclosure and giving the defendant an opportunity to present contrary or impeaching evidence as to the truth of the officer's testimony and the reasonableness of his reliance on the informer can the court make a fair determination of the issue. Such a requirement does not unreasonably discourage the free flow of information to law enforcement officers or otherwise impede law enforcement. Actually its effect is to compel independent investigations to verify information given by an informer or to uncover other facts that establish reasonable cause to make an arrest or search. Such a practice would ordinarily make it unnecessary to rely on the communications from the informer to establish reasonable cause. When the prosecution relies instead on communications from an informer to show reasonable cause and has itself elicited testimony as to those communications on direct examination, it is essential to a fair trial that the defendant have the right to cross-examine as to the source of those communications. If the prosecution refuses to disclose the identity of the informer, the court should not order disclosure, but on proper motion of the defendant should strike the testimony as to communications from the informer.

‘In sum, when the prosecution seeks to show reasonable cause for a search by testimony as to communications from an informer, either the identity of the informer must be disclosed when the defendant seeks disclosure or such testimony must be struck on proper motion of the defendant.’ (Priestly v. Superior Court, supra, 50 Cal.2d pp. 818, 819, 330 P.2d p. 43.)

The holding in Priestly is in accord with the federal rule on disclosure of an informant's identity which is expressed as follows: ‘Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.’ (Roviaro v. United States, 353 U.S. 53, 60, 61, 77 S.Ct. 623, 1 L.Ed.2d 639, 645.) ‘What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.’ (Roviaro v. United States, supra, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 644.)

In Priestly the court had before it the scope and effect of the privilege as set forth in section 1881, subdivision 5,2 of the Code of Civil Procedure, to withhold from disclosure, communications made to a public officer in official confidence, when the public interest would suffer by the disclosure. In applying the provisions of this section to a situation where an arrest and search was made without a warrant, the unidentified informants were not percipient witnesses to the transaction upon which the arrest was made, and where the police officers relied solely upon facts furnished to them by the unidentified informants as the basis for probable cause to make the arrest and search, the court said: ‘In the present case the communications of the informers are material to the issue of reasonable cause to make the arrest and search, and the policy conflict is between the encouragement of the free flow of information to law enforcement officers and the policy to discourage lawless enforcement of the law.’ (Priestly v. Superior Court, supra, 50 Cal.2d p. 816, 330 P.2d p. 41.)

In the case at bench we are dealing with the scope and effect of section 1881.1 of the Code of Civil Procedure. The provisions of this section focus attention upon certain sections of the Health and Safety Code dealing with the unlawful traffic in narcotics, and it vests discretion in the judge or magistrate under certain circumstances as to whether disclosure of the name of the informant shall or shall not be required.

‘Reasonable or probable cause for an arrest has been the subject of much judicial scrutiny and decision. There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances [citations]—and on the total atmosphere of the case. [Citations.]’ (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580.) ‘When, however, the question of the legality of an arrest or of a search and seizure is raised either at the preliminary hearing or at the trial, the defendant makes a prima facie case when he establishes that an arrest was made without a warrant or that private premises were entered or a search made without a search warrant, and the burden then rests on the prosecution to show proper justification. [Citations.]’ (Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23, 25.)

‘* * * an arrest without a warrant can only be made if the facts known to the officer before making the arrest would justify the officer in making the arrest, and * * * such an arrest cannot be justified by what a search following the arrest turns up. People v. Brown, 45 CaL.2d 640, 643, 290 P.2d 528.’ (People v. Privett, 55 Cal.2d 698, 702, 12 Cal.Rptr. 874, 877, 361 P.2d 602, 605.)

In the case at bench if the information furnished to the police officers by the two unidentified informants is eliminated from consideration, then the officers had no reason whatsoever to call at the premises at 4716 Melrose Avenue to investigate or question the occupations of such premises concerning any criminal activities that might be carried on there. The record discloses that the officers proceeded to the apartment occupied by the petitioners for no reason independent of the information furnished them by the unidentified informants. The incidents which occurred immediately upon the police officers making their identity known after the door was opened, standing alone and unsupported by the information which they possessed and which was furnished to them by the two unidentified informants, was not sufficient to give them reasonable cause to believe that the occupants of the apartment were committing or had committed a felony. (People v. O'Neill, 187 Cal.App.2d 732, 10 Cal.Rptr. 114; People v. Tyler, 193 Cal.App.2d 728, 732, 14 Cal.Rptr. 610; People v. Cedeno, 218 Cal.App.2d 213, 224 et seq., 32 Cal.Rptr. 246.) The prosecution, therefore, must rely upon the information given the police by the unidentified informants to provide reasonable cause for them to have made the arrest. Without this the arrest was without reasonable cause and the resulting search and seizure were unlawful.

Under the circumstances here shown it is reasonable to assume that, based upon the information provided by the two unidentified informants, the police could have placed the premises or the occupants thereof under surveillance and thus provided themselves with sufficient evidence, independent of the information given them by the two unidentified informants, to have given them probable cause to make the arrest or they could have applied for and obtained a search warrant authorizing them to search the premises and the persons of the occupants of the premises. (People v. Keener, 55 Cal.2d 714, 12 Cal.Rptr. 859, 361 P.2d 587.) They did neither.

A lawful search may be made pursuant to a search warrant issued upon the affidavit of a police officer wherein it appears that probable cause for the issuance of the warrant rests upon the officer's belief in information furnished to him by an informant, shown to be reliable, and whose identity is undisclosed. In this connection it is said, ‘If a search is made pursuant to a warrant valid on its face and the only objection is that it was based on information given to a police officer by an unnamed informant, there is substantial protection against unlawful search and the necessity of applying the exclusionary rule in order to remove the incentive to engage in unlawful searches is not present. The warrant, of course, is issued by a magistrate, not by a police officer, and will be issued only when the magistrate is satisfied by the supporting affidavit that there is probable cause. He may, if he sees fit, require disclosure of the identity of the informant before issuing the warrant or require that the informant be brought to him. The requirement that an affidavit be presented to the magistrate and his control over the issuance of the warrant diminish the danger of illegal action, and it does not appear that there has been frequent abuse of the search warrant procedure. One of the purposes of the adoption of the exclusionary rule was to further the use of warrants, and it obviously is not desirable to place unnecessary burdens upon their use. The additional protection which would result from application of the Priestly rule in situations such as the one involved here would not offset the disadvantages of excluding probative evidence of crime and obstructing the flow of information to police.’ (People v. Keener, supra, pp. 722, 723, 12 Cal.Rptr. pp. 863, 864, 361 P.2d pp. 591, 592.)

‘In the words of the United States Supreme Court in the recent decision of Elkins v. United States, 1960, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669, [1677], the purpose of such an exclusionary rule ‘is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.’' (People v. Keener, supra, p. 722, 12 Cal.Rptr. p. 853, 361 P.2d p. 591.)

The petitioners' remedy by motion for disclosure and, upon denial thereof, their motion to dismiss was properly presented at the preliminary hearing and again in the trial court, and the prosecution having elected to refuse to disclose the identity of the informants, the testimony of Officer Seybert concerning the communications made to him by the two unidentified informants, should have been stricken. Without this testimony there was no probable cause to arrest petitioners and the resulting search and seizure were unlawful.

It is settled that an improper denial of the right of cross-examination constitutes a denial of the constitutional right to due process. (Argonaut Ins. Exch. v. Ind. Acc. Com., 120 Cal.App.2d 145, 152–153, 260 P.2d 817; Pence v. Industrial Accident Com., 63 Cal.2d 48, 50, 45 Cal.Rptr. 12, 403 P.2d 140.)

The Legislature by the enactment of section 1881.1 of the Code of Civil Procedure, has provided that a defendant's right of disclosure under the circumstances shown in the case at bench, may be granted or withheld in the exercise of the discretion of a judge or magistrate. This in effect deprives a defendant of his constitutional right to due process of law, on the question of probable cause.

The Legislature is without the power to emasculate this constitutional guaranty by statutory enactment, and section 1881.1 of the Code of Civil Procedure, now section 1042 of the Evidence Code, is therefore unconstitutional.

Let the peremptory writ of prohibition issue restraining the respondent court from taking any further proceedings against the petitioners in the action entitled ‘The People of the State of California, Plaintiff, vs. Sam John Mendola, Bruce Harry Martin, and Jean Elaine Massey, defendants,’ being number Criminal 315707 in said court, other than to dismiss the action as to the petitioners herein.



1.  ‘Text of section until Jan. 1, 1967‘In any preliminary hearing, criminal trial, or other criminal proceeding, for violation of any provision of Division 10 (commencing with Section 11000) of the Health and Safety Code, evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, shall be admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does nor require such disclosure. (Added Stats. 1965, c. 937, p. 2549, § 1.)’

2.  ‘Privileged communications‘There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: * * *‘5. Public officers. A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.’

FRAMPTON, Justice pro tem.* FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

SHINN, P. J., and FORD, J., concur.

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