ALEXANDER v. PEOPLE (1972)

Petitioner seeks a writ of prohibition pursuant to Penal Code section 1538.5(i) to review an order of the superior court refusing to suppress certain evidence obtained under a search warrant.

On January 28, 1972, we declined to issue an a alternative writ. Subsequently, on a petition to the Supreme Court, that court granted a hearing and retransferred the matter to his this court with directions to issue an alternative writ of mandate. The Supreme Court in its order of transfer directed our attention to Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; and People v. Hamilton, 71 Cal.2d 176, 77 Cal.Rptr. 785, 454 P.2d 681.

We have reviewed the briefs of the parties and particularly the search warrant involved, listened to the oral arguments and have concluded that the superior court was correct in refusing to suppress the evidence.

In the hearing on the motion to suppress and in her petition before us, petitioner assails the search warrant on two grounds: (1) that the affidavit in support of the warrant failed as a matter of law to establish probable cause for the magistrate's issuance thereof, and (2) that part of the information set out the affidavit was itself the product of an unreasonable search.

The hearing in the superior court at which the defendant and three police officers testified, produced nothing which significantly added to or detracted from the affidavit in support of the search warrant. Petitioner attempted by her own testimony to impeach one assertion of the affiant officer concerning his ability to observe the door to her apartment from a particular vantage point. This particular matter was of little moment and in any event was resolved against petitioner by the finder of fact, a finding which we cannot disturb.

Thus we our attention to the face of the affidavit to determine whether the superior court was required as a matter of law to find that the magistrate acted unreasonably in concluding that there was probable cause to issue the warrant.

In reviewing the affidavit in support of a search warrant the superior court, and indeed this court, is required to give deference to the authority of the magistrate as a finder of fact and weigher of the evidence presented to him. (People v. Superior Court (Johnson), 6 Cal.3d 704, 100 Cal.Rptr. 319, 493 P.2d 1165.)

In the case at bar the evidence sought to be suppressed consists of, among other things, a small amount of heroin recovered from a food mixer and 5000 polyethylene bags. These items were seized in an apartment occupied by petitioner ar 1155 North La Cienega in Los Angeles.

It appears that petitioner misconceives the office of a search warrant and the issue involved in attacking it when she recites in her petition that the warrant as applied to her is invalid and that the evidence is insufficient to suppcient to support her arrest.

The warrant directed the search of a place and the issue is whether the magistrate had probable cause to believe that contraband would be found at that place. The identity of the petitioner and her connection with the place to be searched is only relevant insofar as it contributes to the total factual picture as presented to the magistrate on the issue of the presence of the seized items at the described location.

A greater showing of probable cause is required to justify an arrest without a warrant than to justify a search pursuant to a warrant. (Spinelli v. United States, suprai.)

The allegations in the affidavit, and the reasonable inferences to be drawn therefrom established the following facts:

(1) On December 17, 1968, one William Freedman was arrested by United State custom agents and charged with conspiracy to smuggle narcotics. He was subsequently convicted in Federal Court in October of 1970 but was at liberty on bond before and after said conviction. These facts were known to the Los Angeles police officer who subsequently became the affiant in this case.

(2) On October 15, 1969, Officers McKnight and Sakoda of the Los Angeles Police Department Narcotic Division arrested one Harry Gonick in possession of 200 lbs. of marijuana and a quantity of cocaine.

(3) During the investigation of Gonick prior to his arrest, these officers observed William Freedman to be a frequent visitor to Gonick's residence. At the time Freedman drove a Ford Ranchero.

(4) On December 26, 1969, an informant of established reliability told the Los Angeles Police Department officers that Freedman was actively trafficking in large quantities of heroin and cocaine.

(5) This informant advised that Freedman was living with one Christy Freedman at 4782 La Villa Marina, Apartment H, and drove a black Porsche convertible.

(6) On September 11, 1970, an officer of the Los Angeles Police Department arrested one Penny Smith in possession of a large quantity of heroin. Penny told the officers that she had obtained the heroin from a William Freedman who lived in the Marina Del Ray and who drove a black porsche. She further stated that she had been purchasing 2 to 3 ounces of heroin per week from Freedmat. She stated that she had been employed by Freedmant as a runner transporting heroin to San Francisco.

(7) On October 6, 1970, a third informant whose previous reliability was not established, advised the Los Angeles Police Department officers that he had in the last engaged in narcotic activity with Freedman and that Freedman was still trafficking in large quantities of cocaine and heroin. He stated that Freedman sent narcotics to San Francisco with runners who flew on commercial aircraft.

(8) This third informant stated that Freedman lived with a Caucasian woman known as Christy or Christine at 4782 La Villa Marina, Apartment H. This informent also described the Ranchero and the Porsche automobiles. Additionally, he indicated that Freedmant sometimes rode a motorcycle.

(9) This informant stated that he had personally seen as much as a kilo of heroin in Freedman's Maring apartmewnt and that Freedman's selling of narcotics had continued until at least September of 1970.

(10) This informant told the officer that Freedman normally did not keep a large quantity of narcotics at the Marina but instead ‘stashed’ it elsewhere.

(11) According to the informant, a female Negro known as ‘Belinda’, had in the past ‘sat’ on the ‘stash’ for Freedman. The last place that this informant knew Belinda to live was on Wonderland Avenue in the Laurel Canyon area.

(12) The offiecrs made a utility check of 4782 La Villa Marina, Apartment H, and found that the utilities were registered to Christy Freedman, the date of registration having been April 3, 1969. The telephone was listed to Christine McDonald.

(13) In November 1970, informant No. 1 who had maintained regular contact with the officers advised them that defendant's narcotic activities were continuing.

(14) With the foregoing information in mind the officers in November 1970 began a surveillance of Freedman.

(15) During the course of this surveillance the officers on November 10, 1970 observed Freedman enter the apartment at 4782 La Villa Marina. They also observed Freedman in the Porsche in company with a person fitting the description of Christy. This same person was also observed at another time driving the Ranchero. A check of both vehicles showed them to be registerd to Freedman at an address in Burbank.

(16) On November 11, 1970, the officers followed Freedman to an address in Los Angeles which was the residence of a person known to the officers as another narcotic peddler. At that location, Freedman was observed to enter and exit from the house and to converse with said narcotic peddler and another known peddler.

(17) From the preeding location, the officers followed Freedman to an apartment house at 1155 North La Cienega where he was observed to enter apartment 1100 (the location in question in this case).

(18) The manager of the above mentioned apartment house advised the officers that the apartment was rented to a female Negro by the name of Belinda Alexander (petitioner here). Her tenancy had commenced October 31, 1969.

(19) The manager identified a photograph of Freedman as a man who visited Belinda daily and remained anywhere from 15 minutes to 2 hours.

(20) A check of the car parked in the parking stall assigned to Belinda revealed that it was registered to Belinda Alexander with an address of 8804 Wonderland.

(21) On November 12, 1970, the officers followed Freedman and Christy, who were on this day riding a motorcycle, from the Marina apartment to a location in Los Angeles where they met the previously mentioned Gonick.

(22) Freedman was observed to get into Gonick's parked car, remain for about 5 minuted and leave, after which Gonick was observed to get out of the car, place a package in the trunk, and then re-enter the car and drive to the parking area at Los Angeles International Airport.

(23) The officers being of the opinion that narcotic transactions had taken place, followed and arrested Gonickk. They recovered the package which was found to contain cocaine. They also recovered eight plastic bags of cocaine from inside Gonick's boots.

In conclusion the affiant officer, who was eminently qualified as an expert in the field, opined that the location at 1155 North La Cienege was being used by Freedman as a place to ‘stash’ narcotics. This opinion was in itself probative. (See People v. Johnsoon, 21 Cal.App.3d 235, 98 Cal.Rptr. 393).

Thus the affidavit established beyond peradventure that Freedman was a narcotic trafficker and actively engaged in plying his trade.

To dispose of one of petitioner's contentions, we are of the opinion that none of the information contained in the affidavit was tainted with any illegality. More specifically, the arrest of Gonick and the seizure of the cocaine was itself based upon an abundance of probable cause to believe him guility of a felony. Even if, for the sake of argument, we were to exclude from consideration the actual seizure of the cocaine from Gonick's possesion, such exclusion would diminish the efficacy of the affidavit in pointing to Freedman as a narcotic peddler. Given the information which the officers had concerning both Gonick and Freedman, their observation of the very suspicious circumstance of the meeting between the two followed by Gonick's immediate repqiring to the airport would have weighed heavily in the magistrate's reasonable cause to suspect Freedman.

Directing our attention to the petitioner's apartment, it is admitted that informant No. 3 was not established to have been previously reliable.

Informant No. 3 clearly met the ‘first prong’ of Aguilar because he purported to speak with first hand knowledge of the matter. He was personally invollved with Freedman in narcotics activity, and had personally seen narcotics in Freedman's possession. He was personally familiar with Freedman's ‘modus operandi’ and had had personal contact with Belinda.

The second question is whether there were sufficient circumstances set out in the affidavit upon which the magistrate could reasonably conclude that informant No. 3 was credible or more precisely whether the officers, and more importantly the magistrate, were justified in relying upon his information. (People v. Hamilton, supra, 71 Cal.2d 176, 77 Cal.Rptr. 785, 454 P.2d 681.)

The need go no further than to refer to the facts enumerated above to demonstrate that this informant was corroborated in every major detail by either a separate reliable informant, or other independent sources of information or personal observation and investigation by the officers. (See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Willson v. Superior Court, 46 Cal.2d 291, P.2d 36; Skelton v. Superior Court, 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485; People v. Superior Court (Johnson), 6 Cal.3d 704, 100 Cal.Rptr. 319, 493 P.2d 1183.)

The account given by the arrestee Penny, especially as to her delivering narcotics to San Francisco for Freedman, was significant in assessing informant No. 3's statement in that same regard.

Petitioner's final contention that the information concerning Belinda was ‘stale’ is totally lacking in merit. While it is true that petitioner had apparently moved from the Wonderland address where the informant had last contact with her, some 12 months before the issuance of this warrant, the fact that Freedman led the officers to Belinda at the new address, breathed new vitality into the information. It was entirely reasonable for the officers, upon learning of Freedman's daily visits to Belinda, to conclude that Freedman had not changed his modus operandi, but only the locale.

Petitioner, as is so often the case, points to the fact Freedman's visits to her apartment could admit of an innocent explanation. Such an argument is unavailing in determining whether in light of all the known facts a reasonable magistrate could suspicion felonious activity.

We have rarely seen a set of circumstances set out an affidavit for a search warrant in a narcotic case that was more persuasive than this one.

The officers' conduct appears to have been a model of what is sought to be achieved by the exclusionary evidence rule.

The officers, upon first receiving information concerning Freedman's activities, did not act precipitously. They let the information rest but all the while they accumulated more and more information pointing to Freedman.

Finally after about 2 years of information gathering they undertook a direct surveillance of Freedman which established his modus operandi and tied together all of the previously known information.

Next they careful presented their findings and observations to a magistrate for his exercise of that ‘deliberate determination’ which is to be preferred over the hurried actions of the officers. (People v. Madden, 2 Cal.3d 1017, 88 Cal.Rptr. 171, 471 P.2d 971.)

The magistrate concluded, and correctly so, that there was reasonable cause to believe that Freedman's daily visits to petitioner's apartment were connected with his illegal narcotic activity and that evidence of that activity would be found there.

The alternative writ is discharged.

The petition for a peremptory writ is denied.

DOMPTON, Associate Justice.

HERNDON, Acting P. J., and FLEMING, J., concur.