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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Emile MOUTON, Defendant and Appellant.

Cr. 32621.

Decided: July 13, 1979

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Roger W. Boren and Elizabeth A. Baron, Deputy Attys. Gen., for plaintiff and respondent. Myron I. Anderson, Los Angeles, for defendant and appellant.

Defendant, convicted by a jury of possession of heroin for sale (Health & Saf. Code, § 11351) and sentenced to state prison concurrently with the sentence in another case, asserts two principal claims of error on appeal: (1) nondisclosure of the identity of the informer whose information initiated the investigation that led to his arrest; (2) failure to suppress evidence of his admission of ownership of a blue suede jacket, an admission obtained in violation of the privilege against self-incrimination. (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Facts. Four days before defendant's arrest, a confidential informer told the police that three days earlier he, with the help of an unidentified friend, had bought heroin at a house at 1112 South Sycamore Street, Los Angeles. The informer and his friend had gone to that address together, the friend had entered the house, and the friend had come out with heroin. On November 11, 1976, a week after the informer's reported purchase, police officers went to the South Sycamore address to investigate. After their knock on the front door, a toilet flushed, a man's face appeared at the front-door peephole, and within a few minutes Ms. Jones, the tenant, came to the door. The police told her they were conducting a narcotics investigation and asked if they could come in. “Sure,” replied Ms. Jones, “Come on in.” Inside, Officer Gilbert saw defendant, a lodger who rented a room upstairs, come down the stairs with a woman. Defendant was wiping his right hand on his shirt as though trying to dry it. Officer Gilbert announced the police had received information about narcotics activity at that address, and he asked those present if they were dealing in narcotics. He received a negative reply. He then asked permission to search the house, and both Ms. Jones and defendant consented. Defendant showed Officer Gilbert into his upstairs bedroom, then went downstairs for a drink of water. In a blue suede jacket hanging in the closet the officer found a wet pink sock enclosing a plastic bag containing water and 23 tinfoil bindles of heroin. Gilbert took the pink sock and the blue jacket downstairs and told defendant he was under arrest. Defendant wanted to know why. Officer Gilbert showed defendant the items he had found and then asked defendant to try on the jacket. Defendant said he didn't need to try it on because the jacket was his. Officer Gilbert told him to try it on anyway, and when he did so the jacket, according to Gilbert, fitted like a glove.

Identity of Informer. Four people resided in the house—the defendant, Ms. Jones, her 4-year-old child, and her 23-year-old nephew—and two visitors were present at the time of the search. Defendant argues that the identity of the confidential informer should have been disclosed, because disclosure could have led to discovery of the identity of the informer's friend, who might have testified that somebody other than the defendant sold him the heroin a week earlier. Such testimony, according to defendant, would have been evidence to rebut the presumption that the heroin in the blue suede jacket was his. The gist of defendant's argument is that disclosure of the identities of the informer and his friend might have led to evidence which could support an inference that the heroin in defendant's jacket belonged to someone else.

We think defendant misconceives the rules that govern disclosure of the identity of an informer. The specific and narrow issue at bench is who possessed the packaged-for-sale heroin found in defendant's jacket on November 11. Events that might have occurred a week earlier are not germane to this specific issue. Even if it could be proved that some other person had been trafficking in narcotics on the premises a week earlier, proof of that fact would bear only tangentially on the issue of possession of the 23 bindles of heroin on November 11.

Defendant cites two situations of required disclosure as his authority to compel disclosure here. The first is when the informer's information is used to authorize an arrest. Because authorization for arrest requires probable cause, disclosure of the identity of a confidential informer may become necessary to test the reliability of the information used to establish probable cause. (Priestly v. Superior Court (1958) 50 Cal.2d 812, 819, 330 P.2d 39.) In these instances the judge must balance the need for disclosure against the need for confidentiality. (Evid. Code, § 1042(c).) Such a situation is wholly inapposite here, in that no issue of probable cause was present and neither arrest nor search nor seizure was effected on the strength of the informer's information.

The second situation of required disclosure arises when the informer is a percipient witness to the crime charged and thus possesses the capacity to provide direct evidence to prove or disprove the charge. The prototypical example is the informer who purchases contraband from the defendant at the behest of the police. Because the informer is a participant in the transaction and a percipient witness to the crime charged, his identity must ordinarily be disclosed. (People v. Goliday (1973) 8 Cal.3d 771, 777, 106 Cal.Rptr. 113, 505 P.2d 537.) A closely-related instance is the informer on the scene of the crime at the moment of the crime who does not himself directly participate in the transaction. (People v. Borunda (1974) 11 Cal.3d 523, 527, 113 Cal.Rptr. 825, 522 P.2d 1.) For example, the informer may be outside the room or house where the sale of contraband is taking place. (People v. Williams (1958) 51 Cal.2d 355, 357-359, 333 P.2d 19.) Nevertheless, he remains a percipient witness. A somewhat more remote instance of percipiency may arise when the informer neither participates in nor is present at the scene of the crime but nevertheless plays a part in activating the crime, for example by making the telephone call that led to the sale. (People v. McShann (1958) 50 Cal.2d 802, 809-810, 330 P.2d 33; Theodor v. Superior Court (1972) 8 Cal.3d 77, 89-90, 104 Cal.Rptr. 226, 501 P.2d 234.) In each of these instances the informer's connection with the crime and his potential for providing direct testimony relevant to the crime are sufficiently strong to overcome the general privilege against disclosure of an informer's identity. (Evid. Code, § 1041.) But the informer does not become a percipient witness merely on the speculative hypothesis that his supposed knowledge of crimes other than the one charged could prove helpful to the defense. The fact that a confidential informer, or his friend, may have been a percipient witness to some other crime committed at some other time is insufficient reason to require disclosure of his identity in the prosecution of the crime charged. Disclosure is not required for an informant “who is not a material witness to the guilt or innocence of the accused of the offense charged.” (Evid. Code, §§ 1041, 1042(c); People v. McShann, supra (1958) 50 Cal.2d 802, at p. 808, 330 P.2d 33; People v. Wilks (1978) 21 Cal.3d 460, 468-469, 146 Cal.Rptr. 364, 578 P.2d 1369.)

To sum up, the identity of an informer is of consequence only when his information is used to establish probable cause for search, seizure, or arrest, or when he is a percipient witness to the crime charged.

The facts at bench encompass neither of these situations. What is involved is a tip or lead, which, if true, identifies particular premises as the scene of criminal activity, and provides information to the police for further inquiry, but does not furnish the police with proof of crime and does not justify police activity other than investigatory. As the court said in People v. McShann, supra (1958) 50 Cal.2d 802, at page 808, 330 P.2d 33, at page 36:

“A mere informer has a limited role. ‘When such a person is truly an informant he simply points the finger of suspicion toward a person who has violated the law. He puts the wheels in motion which cause the defendant to be suspected and perhaps arrested, but he plays no part in the criminal act with which the defendant is later charged.’ [Citation.] His identity is ordinarily not necessary to the defendant's case, and the privilege against disclosure properly applies.”

At bench, the trial court, in denying the defendant's motion for disclosure of the identity of the informer, correctly observed: “It seems like a classic case of where the informant simply pointed the finger of suspicion at a particular location, and they were not intending to rely on anything the informant said for the purpose of securing entry or conducting a search, and he is not a material witness to the innocence or guilt of the defendant. [¶] He is not percipient to anything.” Defendant's argument that disclosure of the identity of the informer should have been required because it might have helped him establish a prior sale of narcotics at that location by someone else proves too much, in that the same argument could be made in each instance of informant reports about prior sales of narcotics at particular locations. Defendant's argument, if accepted, would require disclosure of the identity of all informers who claim to have made prior purchases at particular locations and would in large part destroy any guaranty of confidentiality given to prospective informers as an inducement to report the commission of crime.

The cases relied on by defendant to compel disclosure are not in point. Williams v. Superior Court (1974) 38 Cal.App.3d 412, 112 Cal.Rptr. 485, involved disclosure of the identity of an informer who had been on premises shortly before narcotics were seized there the same day and who had seen defendant in possession of the narcotics with whose possession she was charged. People v. Tolliver (1975) 53 Cal.App.3d 1036, 125 Cal.Rptr. 905, involved disclosure of the identity of a percipient witness who had purchased contraband from defendants under the direction of the police an hour or two before the arrests which resulted in the seizure of the contraband with whose possession defendants were charged. In both these cases the informer qualified as a percipient witness. The facts at bench are quite different, in that neither the informer nor his unidentified friend possessed any current or timely information that could have assisted the defendant in rebutting the charge of possession of heroin for sale on November 11. Because the public interest in the protection of the identity of a confidential informer outweighs the defendant's ephemeral suggestion that disclosure of the informer's identity might cause something favorable to his cause to turn up, the trial court's refusal to compel disclosure was correct. (People v. Keener (1961) 55 Cal.2d 714, 723, 12 Cal.Rptr. 859, 361 P.2d 587; People v. Goliday, supra (1973) 8 Cal.3d 771, 782, 106 Cal.Rptr. 113, 505 P.2d 537.)

Miranda Warnings. After Officer Gilbert found heroin in defendant's blue suede jacket, he took the heroin and the jacket downstairs and told defendant he was under arrest. Defendant asked what for. The officer showed him the items he had found and requested defendant to try on the jacket. Defendant said he didn't need to try on the jacket because it was his. Officer Gilbert told him to try it on anyway, because he wanted to see if it fitted, which it did. Defendant argues this evidence should have been suppressed because prior to this conversation he had not been given the Miranda warnings against self-in-crimination. (Miranda v. Arizona, supra (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

We think defendant's argument does not apply, in that no interrogation took place, and the entire conversation related to the demonstrative evidence of the jacket and its fit. The officer's statements consisted, first, of an explanation of the reason for defendant's arrest, an explanation which not only did not violate Miranda, supra, but which was required on arrest. (Pen. Code, § 841.) Part of the explanation consisted in showing defendant the contraband and the jacket and asking him to try the jacket on. This does not amount to interrogation designed to produce a verbal admission or confession but is an order to the defendant to engage in specific physical activity, viz. to put on the jacket. It is well-established that arrested persons may be asked to perform physical acts, such as trying on clothes, walking, breathing, giving fingerprints, talking, or standing in lineups, and that such requests do not involve impermissible self-incrimination and do not invade the constitutional privilege against self-incrimination. (People v. White (1968) 69 Cal.2d 751, 758, 72 Cal.Rptr. 873, 446 P.2d 993; People v. Sudduth (1966) 65 Cal.2d 543, 545-546, 55 Cal.Rptr. 393, 421 P.2d 401; People v. Williams (1969) 71 Cal.2d 614, 625, 79 Cal.Rptr. 65, 456 P.2d 633; People v. Ellis (1966) 65 Cal.2d 529, 533-534, 55 Cal.Rptr. 385, 421 P.2d 393; People v. Lopez (1963) 60 Cal.2d 223, 244, 32 Cal.Rptr. 424, 384 P.2d 16.) Defendant's reply to this request—that it wasn't necessary to put on the jacket because it was his—was not a response to interrogation but a statement volunteered in response to an order. Its use as evidence did not violate the Miranda rule. (Miranda v. Arizona, supra (1966) 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Dorado (1965) 62 Cal.2d 338, 354, 42 Cal.Rptr. 169, 398 P.2d 361; People v. Siegenthaler (1972) 7 Cal.3d 465, 470, 103 Cal.Rptr. 243, 499 P.2d 499.) The trial court correctly refused to suppress evidence of the fit and of the defendant's statement that the jacket was his.

Other points on appeal are without merit and require no discussion.

The judgment of conviction is affirmed.

I dissent. In this case, an informer, well known to the police, advised authorities illicit drugs were being sold at a certain address in Los Angeles. His information, he said, was derived from a “friend” who recently had effected a purchase of drugs ostensibly for the benefit of the informer, while the latter waited in a nearby parked car. The friend would not divulge to the informer the name of the person who sold the drugs to him. Neither the informer nor the police were otherwise aware of the seller's identity nor did the police ever learn the identity of the friend.

Those present at the time of the arrest described in the majority opinion were appellant, one Hilma Jones, a Mr. Holt, an unidentified adult female and possibly “a child or two.” Appellant and Ms. Jones were rental residents of the house, together with Ms. Jones' child and her nephew. Holt was appellant's visitor that day and the unidentified female was apparently a person appellant had brought to the house for illegal sexual purposes.

We are thus called upon to decide whether on the facts present the police can avoid the obligation to reveal the name of an informer, when they have acted upon information received by that informer from a witness whose name the informer did not reveal and whom the police did not know.

In my view, it is clear that if the informer himself had consummated the purchase described, his name would be required to be disclosed or in the absence of that disclosure that the case would be dismissed.1

“By judicial interpretation founded upon due process principles of the federal and state Constitutions, the rules relating to the privilege for nondisclosure of an informant's identity set forth in Evidence Code sections 1041-1042 have become fairly fixed and standardized. Thus, the most important principle that emerges from the decisional law is that the prosecution cannot successfully invoke the privilege for nondisclosure of an informant's identity if the defendant demonstrates a reasonable possibility that the informer could give evidence on the issue of guilt that might result in defendant's exoneration. This rule of evidence is founded on the principle that nondisclosure in this situation would result in a denial of a fair trial to defendant. (Honore v. Superior Court (1969) 70 Cal.2d 162, 74 Cal.Rptr. 233, 449 P.2d 169; People v. Garcia (1967) 67 Cal.2d 830, 64 Cal.Rptr. 110, 434 P.2d 366; People v. Borunda (1974) 11 Cal.3d 523, 113 Cal.Rptr. 825, 522 P.2d 1.)

Factually, the case at bench is not unlike the facts of the Williams case. [Williams v. Superior Court (1974) 38 Cal. App.3d 412, 112 Cal.Rptr. 485.] There, the court held that defendant was entitled to disclosure of the informer's identity on penalty of dismissal if disclosure was not forthcoming. In Williams, defendant and another person were reported by an informer to have been engaged in selling narcotics from a certain address and that the informer had been present at the residence in the past and had seen defendant and the other person selling heroin from the residence and the informer had been present when both were preparing heroin in packages in order to sell the same. As in the instant case, when a search warrant was secured and a search was made of the premises, defendant and a young man were in the residence. There were two bedrooms and a search of defendant's bedroom uncovered heroin found in a dresser drawer among her underclothing.

The Williams court pointed out that the elements of the crime of possession of heroin for sale, which was the charged crime against defendant, were four in number: (1) actual or constructive possession of the narcotics, (2) for the purpose or intent of selling it, (3) with knowledge of its presence, and (4) with knowledge of its narcotic character. The Williams court pointed out that proof of defendant's possession was circumstantial in the sense that it was imputed from the evidence of heroin in her dresser drawer. In similar fashion, the evidence of possession in the case at bench is circumstantial and no stronger in nature than that found in Williams.

Williams also pointed out that there was a reasonable theory and possibility that the informer might testify that defendant was merely present when the informer was at the residence; that the informer's testimony might show that the heroin was sold, packaged, and controlled solely by the second person indicated by the informer; and that from such testimony the trier of fact might infer that defendant had no control or right to control the heroin later found in her dresser and that she herself had no intent to sell contraband. In the case at bench, as in Williams, the undisclosed informer might have given testimony in favor of defendant Calep or in favor of defendant Tolliver, which would throw the onus of control or right to control the narcotics found in the premises on the other defendant or on some third person present in the residence when the informer was there.” (People v. Tolliver (1975) 53 Cal.App.3d 1036, 1043, 1049-50, 125 Cal.Rptr. 905, 910, 914. Hearing denied February 18, 1976. Clark, J. was of the opinion that the petition should be granted.)

Nothing which appears in the majority opinion persuades me of the inapplicability of this rationale to the case at bench nor that the source of that rationale supports the conclusion of my colleagues that “The identity of an informer is of consequence only when his information is used to establish probable cause for search, seizure, or arrest, or when he is a percipient witness to the crime charged.” Rather, it seems to me, the holding in Honore v. Superior Court, supra, 70 Cal.2d 162, 74 Cal.Rptr. 233, 449 P.2d 169 that:

“Defendants need not prove that the informer could give testimony favorable to them in order to compel disclosure of his identity nor need they show that he was a participant in or an eyewitness to the crime. (People v. Garcia, supra, 67 Cal.2d 830, 837, 64 Cal.Rptr. 110, 434 P.2d 366.) Their burden extends only to a showing that ‘in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial.’ (People v. Williams (1958) 51 Cal.2d 355, 359, 333 P.2d 19, 22.”

makes fallacious any attempt to require that an informer be a “percipient witness” in any way at all, since what is necessary is no more than that he be a material witness on the issue of a defendant's guilt. (See also People v. Garcia, supra, 67 Cal.2d 830, 64 Cal.Rptr. 110, 434 P.2d 366.)

Moreover, I wish to set out my own view respecting the contention made by respondent herein that the informer did no more than “point the finger of suspicion” at appellant's house and that, accordingly, he was not a material witness respecting appellant's guilt. (See People v. McShann (1958) 50 Cal.2d 802, 330 P.2d 33; People v. Thomas (1975) 45 Cal.App.3d 749, 119 Cal.Rptr. 739; People v. Rand (1972) 23 Cal.App.3d 579, 100 Cal.Rptr. 473.) The suggestion seemingly is that the only person in this regard who might have been of assistance to appellant's defense was the informer's friend, that the friend was not himself an informer as that term must be understood in this context and that therefore there was no duty to disclose the identity either of the informer or his friend. That argument, I think, is untenable. The information supplied police and which occasioned their involvement with appellant stemmed solely from the informer's friend, whose identity they did not know. The fact that the latter did not directly convey it is of importance only on the question whether his identity was privileged. (See Evid. Code, § 1041.) Had the police known who the friend was, his identity could not have been protected. That they did not is insufficient reason to shield from appellant's knowledge the name of the person who did. If nothing more, the informer could have supplied the identity of his friend, if such there were, who in turn might reasonably have provided testimony on the question of appellant's guilt. To deny appellant knowledge of the informer's identity only because he obtained his information from an undisclosed third party ignores the fact it is not how the informer himself became advised that is at the heart of the matter, but whether nondisclosure of the informer's identity would deprive appellant of a fair trial through his inability to marshal otherwise available information relevant and potentially beneficial to his defense. (See Honore v. Superior Court, supra, 70 Cal.2d 162, 74 Cal.Rptr. 233, 449 P.2d 169; People v. McShann, supra, 50 Cal.2d 802, 330 P.2d 33; Williams v. Superior Court, supra, 38 Cal.App.3d 412, 112 Cal.Rptr. 485.) Such was the case here.2


1.  I assume in so saying that the informer thus being cast as a hypothetical participant would have conveyed to the police no more nor less than that which they received, namely, that someone was dealing in contraband at a particular location.

2.  To thus conclude satisfies in my view not only the requirements of reason and established authority but provides as well a deterrent to subterfuge in other instances where ignorance by the police of the identity of a material witness might prove beneficial to continuing investigatory efforts while proving fatal to the defense of an accused.

FLEMING, Associate Justice.

BEACH, J., concurs. ROTH, Presiding Justice, dissenting.