PEOPLE v. TOWNSEND

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. Richard Wayne TOWNSEND and Michael H. Doppen, Defendants and Respondents.

Crim. 39593.

Decided: March 25, 1982

John K. Van de Kamp, Dist. Atty. of Los Angeles County, Donald J. Kaplan and Arnold T. Guminski, Deputy Dist. Attys., for plaintiff and appellant. Wilbur F. Littlefield, Public Defender of Los Angeles County, Laurence M. Sarnoff, Paul Enright and Ronald B. Davey, Deputy Public Defenders, for Richard Wayne Townsend, defendant and respondent. Philip A. Center, Hollywood, for Michael H. Doppen, defendant and respondent.

The People appeal from an order dismissing an information after respondents' suppression motions were granted based upon the quashing of a search warrant.   Respondent Richard Wayne Townsend was originally charged with possessing marijuana and cocaine for sale (Health & Safe Code, §§ 11359 [erroneously cited as 11359(a)], 11351 [erroneously cited as 11351(a)]).  Respondent Michael H. Doppen was charged with simple possession of cocaine (Health & Saf.Code, § 11350 [erroneously cited as 11350(a)]).

In pertinent part the search warrant's affidavit provides:

“On the basis of his personal knowledge, as set forth in the attachments hereto, and on the basis of the information contained in those attachments, Officer R. L. Pierce # 07267 being duly sworn deposes and says ․ and requests the issuance of a warrant to SEARCH the premises located at 10216 La Canada Way, in the city of Sunland, County of Los Angeles, State of California.   Said premises is located on the south side of La Canada Way.   On the northeast portion of the property is located a double mailbox on a single post.   One of the mailboxes is painted white with the numbers 10216 and words La Canada Way painted in black.   The front of the property is bordered by a dark wood rail fence.   The front door is wood, dark in color and faces north.   A metal screen door is in front of the front door.   The residence is a one story, wood frame, stucco structure, yellow in color with dark wood trim.   The porch is covered from an extension from the roof, supported by dark wood beams, but the porch is not enclosed.   The garage is attached to the main structure, on the west side of the residence.   A vehicle parked in the residence's driveway, Calif. Lic. # ZDL129, is registered to a Marion or W. E. Townsend.   A DMV driving history of Richard Townsend shows that on 12–5–78, he received a citation while driving a vehicle with Calif. Lic. # ZDL129.   A second vehicle parked in the residence's driveway, Calif. Lic # PBK840, shows a notice of transfer on 12–19–79 to Mike L. Doppen.   Also to be searched is the person of John Robert Townsend, a male, five feet six inches tall, one hundred and fifty pounds, brown hair and blue eyes with a date of birth of 7–31–58.   Also to be searched is the person of Richard Wayne Townsend, a male, five feet two, one hundred and ten pounds, brown hair, blue eyes with a date of birth of 4–5–61.   Also to be searched is the person of Michael Doppen, a male, six feet tall, one hundred and fifty pounds, brown hair, brown eyes, with a date of birth of 11–11–58.”

“Your affiant, a peace officer ․ has obtained information from the following official sources which he believes to be reliable:  Department of Motor Vehicles, City of Los Angeles Department of Water and Power and the General Telephone Company.

“The sources supplied the following information:  A check with the Department of Motor Vehicles records reveals that John Robert Townsend owns a vehicle, California Lic # UPW260, which is registered at 10216 La Canada Way, Sunland.   DMV records also show that John Robert Townsend has a driver's Lic # N7593861 and is a male, five feet six inches tall, one hundred and fifty pounds, brown hair and blue eyes with a date of birth of 7–31–58.   The utilities at 10216 La Canada Way, Sunland, according to the L.A. DWP, are in the name of John R. Townsend and have been since July of 1979.   A check with the General Telephone Company revealed that the phone # 352–3895 was in the name of Richard Wayne Townsend, with an address of 10216 La Canada Way, Sunland.   The phone service began on July 16, 1979.   The Department of Motor Vehicles records reveals that Richard Wayne Townsend's driver's license number is N7310908 and that he is a male, five feet two, one hundred and ten pounds, brown hair, blue eyes, and a date of birth of 4–5–61.”

“Your affiant ․ states that he has been a peace officer for four years, and that his present assignment is the Vice/Narcotics Bureau.

“That on 2–5–80 to 2–19–80 ․ your affiant observed the following:  received information from a confidential, reliable informant that a John Townsend, Richard Townsend and a Michael Doppen, all residing at 10216 La Canada Way, Sunland, were actively selling marijuana from the La Canada Way residence.   The informant agreed to make a controlled buy of marijuana from the location.   Sometime between 2–5–80 and 2–19–80, in the evening hours, under the supervision of your affiant, the informant was furnished with a total of seventy dollars of city advanced funds for the purpose of purchasing marijuana.   Prior to the buy, a complete search of the informant was made for any possible contraband with negative results.   Your affiant and the confidential informant then proceeded to 10216 La Canada Way, Sunland.   Upon arrival, the informant was observed by your affiant to enter the residence via the front door.   Approximately ten minutes later the informant was observed to exit the residence.   The informant immediately contacted Ofc. DePompa and handed Ofc. DePompa a clear plastic baggie which appeared to contain marijuana.   The informant stated that the baggie and its contents had been sold by Mike Doppen.   A complete search of the informant was again made for any possible contraband with negative results.   Your affiant believes that the contents of the plastic bag is marijuana.”

Based upon these events, Officer Pierce believed that additional contraband would be found on the persons of John Townsend, Richard Townsend, and Doppen, their automobiles, and the 10216 La Canada Way residence.   Consequently, he prepared an affidavit and obtained a search warrant on February 19, 1980.   It was served on February 20, 1980, and the contraband which forms the evidentiary basis for the dismissed information was discovered.1

In granting the suppression motion, the trial court said,

“I am going to quash the warrant overall because the information was stale.   And, secondarily, if the information is not stale, there is no probable cause to issue this warrant as to any car or as to either of the Townsends since there was no allegation corroborated or supported by this person who supposedly is a confidential, reliable information [sic].

“There is nothing in the warrant to indicate that the informant is reliable;  nothing in the affidavits to show that he was ever used before.   So, the word reliable being internal art is not properly used to describe this particular informant.

“This information, whatever information he has—and even if he is a reliable informant, he has to speak with personal knowledge.   He says that these people ‘have been selling,’ but he doesn't say how he knows that.   He makes an offer to go make a controlled buy, which apparently he does.   But he buys from Doppen.

“And that is all the information we have about any crime being committed, is Doppen allegedly selling him some marijuana.   Nothing about any of the Townsends other than the fact he said the Townsends are there and supposedly engaging.   But that may be a common street rumor.   There is nothing to support it, nothing to show that he ever saw either of the Townsends in possession of anything in the way of contraband;  nothing to show they were transporting it in their cars.

“The officers said they had seen the cars in the driveway and they're registered to the Townsends.   So, that would eliminate the marijuana that came out of the trunk of the car.

“I realize there was a consent supposedly obtained from Townsend to search his car.   That is after he has been arrested and surrounded by officers and assume that the consent was the product of the tension of the arrest situation and vitiated by that.

“․

“One other thing, too, with respect to what came out of the person of Townsend, of course, that would necessarily follow from the remarks I already made went to the bedroom and whatever it was that was discovered on his person, be no search for that, no probable cause to search for that.”

 We have concluded that the superior court misconceived its function in reviewing the magistrate's determination that probable cause existed for the search.   We quickly observe that the comments of the superior court appear the paradigm of the “grudging or negative attitude by reviewing courts” condemned by both the United States and California Supreme Courts.  (United States v. Ventresca (1965) 380 U.S. 102, 108–109, 85 S.Ct. 741, 745, 13 L.Ed.2d 684;  People v. Mesa (1975) 14 Cal.3d 466, 469, 121 Cal.Rptr. 473, 535 P.2d 337.)   Our function, as well as that of a superior court, is to view the warrant's affidavit in a common sense, as opposed to a hypertechnical, manner.  (People v. Mesa, supra, at p. 469, 121 Cal.Rptr. 473, 535 P.2d 337.)   We “․ simply ․ determine if there is any substantial evidence in support of the magistrate's conclusion, not that of the superior court.   [Citations.]”  (People v. O'Leary (1977) 70 Cal.App.3d 323, 328, 138 Cal.Rptr. 667, emphasis in original;  see also People v. Thompson (1979) 89 Cal.App.3d 425, 429, 152 Cal.Rptr. 495.) 2

 The superior court's indication that “the information was stale” was mistaken.   In authorizing the search on February 19, 1980, the magistrate determined that evidence obtained and corroborated by the officer's personal observation “sometime” within the previous fourteen days was not so remote in time as to preclude the determination it was reasonable to expect that further contraband might be found either at the subject residence, upon the persons of those designated sellers, or their automobiles.   The superior court expressed its belief that it was required to appraise the timeliness of the evidence based upon its having been obtained on February 5, 1980,3 although it is obvious the affidavit was, as is usual, written in this manner in order to protect the life of the party cooperating with the authorities.   That is to say, pinpointing the day of a “controlled buy” very probably would permit a determination of the informant's identity.   Moreover, even if a reviewing court, as was the superior court, were to assume that all the evidence was developed on February 5, 1980, no “staleness” would have been demonstrated as a matter of law.   The magistrate was justified in concluding from the report of respondents' retail narcotics enterprise that it was probable that additional stock in trade would still be on the premises even if 15 days had elapsed from the date of the last observed sale.  (See People v. Thompson, supra, 89 Cal.App.3d at pp. 429–430, 152 Cal.Rptr. 495.)

 Similarly, the superior court's indication that “․ there is no probable cause to issue this warrant as to any car or as to either of the Townsends since there was no allegation corroborated or supported by this person who supposedly is a confidential, reliable information [sic, informant],” is also erroneous as a matter of law.   In so concluding the court seems to have regarded the controlled buy which established the informant's overall reliability as somehow restricted by the fact that on that particular occasion the informant had said that that particular sale had been made by one of the three joint entrepreneurs he previously had identified.   In this the court was mistaken.   The controlled buy not only established that the informant was speaking from personal knowledge, rather than peddling “a common street rumor,” it also rendered police reliance upon the information he had earlier supplied entirely reasonable.  (People v. Lara (1967) 67 Cal.2d 365, 374–375, 62 Cal.Rptr. 586, 432 P.2d 202.)   A controlled buy, of course, is not conducted to establish probable cause, per se;  it is but one approved method for testing a previously untested informant.4  (People v. Hall (1971) 3 Cal.3d 992, 996–997, 92 Cal.Rptr. 304, 479 P.2d 664.)

In the present instance, after the informant had been tested, reliance upon his earlier report was reasonable, and it was proper for the magistrate to authorize a search of all the reported sellers' persons and vehicles for the contraband that formed the basis for their on-going business.  (People v. O'Leary, supra, 70 Cal.3d 323, 329, 138 Cal.Rptr. 667.) 5

The order quashing the subject search warrant and the dismissal of the information predicated thereon, are each reversed.

FOOTNOTES

1.   Marijuana was found in Richard Townsend's car and cocaine was found on the persons of both Richard Townsend and Doppen.   In addition to the search warrant, Richard Townsend gave written consent to search his automobile, license No. ZDL119, which was described in the search warrant.

2.   To penalize a police officer, who concededly attempted to fully comply with the law, by retroactively declaring that he had been sent on a potentially dangerous fool's errand by a judicial officer, is a consequence any court should be most hesitant to impose.

3.   When the prosecutor argued that the information was not stale, the court said, “Why isn't it?   Why isn't the 14-day-old information stale?  [¶] Sixteen by the time it was executed.  [¶] MR. SPENCE [Dep.Dist.Atty.]:  If the last date is—let's assume, Your Honor, that the 19th is the very last date.  [¶] THE COURT:  You have to assume the 5th was the date.”  (Emphasis added.)

4.   We note the inherent irony in the limitation the court placed on the tested informant's credibility here, i.e., the court's belief that Doppen was the sole supplier on the occasion of the controlled buy could only have resulted from its reliance upon the informant's veracity.

5.   Having so determined, we need not address the propriety of the People's request to litigate the legality of Townsend's consent to search.

L. THAXTON HANSON, Associate Justice.

SPENCER, P. J., and LILLIE, J., concur. Hearing denied;  BIRD, C. J., dissenting.

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