PEOPLE v. BARRETT (1969)

 If a police officer has probable cause to believe that an automobile contains contraband, he need not obtain a warrant in order to search it.   (People v. Terry (1964) 61 Cal.2d 137, 152, 37 Cal.Rptr. 605, 390 P.2d 381;  see also Chimel v. California (1969) 395 U.S. 752, 764, fn. 9, 89 S.Ct. 2034, 23 L.Ed.2d 685, 694, fn. 9.)   In this case the three defendants moved successfully to set aside the information, on the ground that at the preliminary examination the prosecution failed to establish probable cause for an arrest and search which revealed marijuana and hashish in the wheel well of their automobile.   The People appeal.

The information leading to defendants' arrest and the search of their car was supplied to police officer Ricketts by 16-year-old Ronald.   Ronald testified that he was standing near a store when defendants drove up and asked if he wanted to buy “hash” or opium.   One defendant took off the car's right rear hub cap and displayed a bag in the wheel well.   Ronald indicated lack of interest and defendants drove away.   Soon after Ronald saw Officer Ricketts and told him of the incident.   Ricketts located defendants, followed their car and stopped them.   After the arrival of assisting officers and a mobile phone conversation with Ronald confirming their identity, Ricketts arrested defendants.   Removal of the right rear hub cap revealed the contraband.   Ricketts had no arrest or search warrant.   He testified that he had known Ronald “quite well” for about 21/212 months.

At the preliminary examination the defense objected to evidence of the contraband, asserting that the prosecution had failed to establish reliability of Ronald, the informant.   The magistrate overruled the objection.   The defense then called three of Ronald's contemporaries to the stand.   Each gave testimony somewhat indicative of Ronald's lack of reliability.   One testified that Ronald had tried to sell him mescaline.

 If illegally obtained evidence is the sole basis of an indictment or information, the defendant is held without reasonable or probable cause, and the superior court should grant his motion to set aside the accusation.   (People v. Scoma (1969) 71 A.C. 349, 352, 78 Cal.Rptr. 491, 455 P.2d 419.)   The defense makes out a prima facie case of illegality by establishing that the arrest or search was made without a warrant;  the burden then rests upon the prosecution to show justification.  (Badillo v. Superior Court In and For City and County of San Francisco (1956) 46 Cal.2d 269, 272, 294 P.2d 23.)

 The justification usually consists of showing probable cause for the arrest and search, that is, “a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”  (People v. Ingle (1960) 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580.)   Probable cause may be supplied by information received from a “reliable informer,” usually a person who has previously given the police correct information, but also, conceivably, a person known to have a good reputation.   (People v. De Santiago (1969) 71 A.C. 18, 22, 76 Cal.Rptr. 809, 453 P.2d 353;  People v. Prewitt (1959) 52 Cal.2d 330, 337, 341 P.2d 1.)   Probable cause may also be supplied by a “citizen informer,” that is, one whose reliability is unknown but who observes criminal activity and, by notifying the police, acts openly in aid of law enforcement.  (People v. Gardner (1967) 252 Cal.App.2d 320, 324–325, 60 Cal.Rptr. 321;  People v. Griffin (1967) 250 Cal.2d 545, 550–551, 58 Cal.Rptr. 707;  People v. Lewis (1966) 240 Cal.App.2d 546, 550–551, 49 Cal.Rptr. 579;  see also, People v. Hogan (1969) 71 A.C. 927, 930, 80 Cal.Rptr. 28, 457 P.2d 868.)

The “citizen informer” rule was the subject of comment in People v. Scoma, supra.   A juvenile known to have had experience with narcotics gave the police information which supplied the basis of a search warrant affidavit.   In holding that the affidavit failed to establish probable cause, the majority opinion observed:  “The rationale of the so-called ‘citizen informer’ cases [citations] has no application * * * where the informant was apparently himself involved in narcotics traffic.”  (People v. Scoma, supra, 71 A.C. at p. 355, fn. 7, 78 Cal.Rptr. at p. 495, 455 P.2d at 423.)

 The superior court erred in setting aside the information.   Although the prosecution's burden of showing justification for a warrantless search has not been analyzed, it appears to be a burden of going forward with evidence, a burden which shifts to the defense once the prosecution established a prima facie case of legality.¹  Both Ronald's testimony and that of Officer Ricketts portrayed Ronald as a “citizen informer” who reported a law violation to the police.   At that point the prosecution had met its burden of justification and no corroborating evidence of Ronald's prior reliability was necessary.  (People v. Sesser (1969) 269 A.C.A. 808, 812, 75 Cal.Rptr. 297.)

 Defendants contend that they countered the prosecution's case by the testimony of the three boys tending to show Ronald's unreliability and his contact with narcotics.   The existence of probable cause must be tested by facts which, according to the record, were known to the officers at the time the arrest was made.  (People v. Talley (1967) 65 Cal.2d 830, 835, 56 Cal.Rptr. 492, 423 P.2d 564;  see People v. Hogan, supra, 71 A.C. at p. 931, 80 Cal.Rptr. 28, 457 P.2d 868;  People v. Ingle, supra, 53 Cal.2d at pp. 413–414, 2 Cal.Rptr. 14, 348 P.2d 577.)   On the record of the preliminary examination, none of the matters described by these witnesses were brought within Officer Ricketts' sphere of awareness.   The only evidence bearing upon the existence of probable cause was that produced by the prosecution.   It met the demands of the “citizen informer” rule and formed substantial evidence of a search supported by probable cause.   In passing on the motion to set aside the information, the superior court was not in a position to make a final ruling on admissibility of the evidence and should not have granted the motion.  (Badillo v. Superior Court In and For City and County of San Francisco, supra, 46 Cal.2d at pp. 271–272, 294 P.2d 23;  see especially People v. Heard (1968) 266 A.C.A. 812, 814–815, 72 Cal.Rptr. 374.)

 The problem on appeal has been somewhat compounded because the magistrate erroneously sustained a prosecution objection when, on cross-examination, defense counsel asked Officer Ricketts “how well' he knew Ronald.   The defense was entitled to rebut the prosecution evidence of probable cause by cross-examining the officer or otherwise showing unreasonableness of his reliance on Ronald.  (Jennings v. Superior Court of Contra Costa County (1967) 66 Cal.2d 867, 878, 59 Cal.Rptr. 440, 428 P.2d 304;  Priestly v. Superior Court of City and County of San Francisco, supra.)   The question before the superior court on the motion to set aside the information was adequacy of the evidence to support the commitment, not propriety of the magistrate's exclusionary ruling.  (Rogers v. Superior Court of Alameda County (1955) 46 Cal.2d 3, 6–7, 291 P.2d 929.)   No tribunal has yet heard all the conceivably available evidence bearing upon legality of the search, and no final determination of legality has been made.   Defendants, of course, have future opportunities for objection and inquiry.

The order is reversed with a direction to deny the motion.

FOOTNOTES

1.   See Evidence Code, §§ 110, 115;  Witkin, California Evidence (2d ed.1966) §§ 193, 194.   In presenting the new Evidence Code to the 1965 Legislature, the Assembly Committee on Judiciary referred to a “common law presumption” of illegality in warrantless arrest and search cases.  (See comment following Evidence Code, section 664 in the Annotated Codes.)   Such a presumption had been developed in tort actions for false arrest.  (See Coverstone v. Davies (1952) 38 Cal.2d 315, 319, 239 P.2d 876;  People v. Agnew (1940) 16 Cal.2d 655, 661–664, 107 P.2d 601;  cf. Dragna v. White (1955) 45 Cal.2d 469, 471–472, 289 P.2d 428.)   The committee's comment, we think, represents an unjustified transposition of a tort notion into the search and seizure field.In search and seizure cases the existence of probable cause is a question of “preliminary fact” preceding a ruling on evidence admissibility.   This question is addressed to the judge presiding at the inquiry.   (Evid.Code, § 405.)   The judge, not the police officer, must decide whether the latter's action is based upon probable cause.  (People v. Boyles (1955) 45 Cal.2d 652, 656, 290 P.2d 535.)   After the officer testifies to the information he received and his reasons for relying on it, the judge must assess his credibility and the soundness of his reliance.   (People v. Robinson (1958) 166 Cal.App.2d 416, 422, 333 P.2d 120.)   The defense, on the other hand, may rebut the officer's testimony by cross-examination or by contrary evidence.  (Priestly v. Superior Court of City and County of San Francisco (1958) 50 Cal.2d 812, 818, 330 P.2d 39.)   If the defense fails to do so, it takes the risk that he court may find the prosecution's evidence adequate.   Thus the burden of demonstrating justification of its lack is one which shifts after the party bearing the initial burden succeeds in meeting it.

FRIEDMAN, Associate Justice.

PIERCE, P.J., and JANES, J., concur.