PEOPLE v. ALVAREZ (1979)

Charged with possession of heroin for the purpose of sale (former Health & Saf.Code § 11351(a), now § 11351), defendant was found guilty of simple possession (former Health & Saf.Code § 11350(a), now § 11350). Probation was denied and defendant was sentenced to prison.

On appeal defendant contends: (1) the search warrant that yielded the contraband was issued without probable cause; (2) the police made an illegal “inchoate seizure” of defendant's property before executing the warrant; (3) certain weapons found along with the contraband should not have been received in evidence; and (4) by instructing the jury in the words of CALJIC 1.24 the trial court permitted the jury to leapfrog to a conviction without finding that defendant had knowledge of the narcotic character of the contraband.

FACTS

On May 24, 1977, the affiant, Deputy Sheriff Bouslaugh, signed an affidavit which is, in relevant part, reproduced below.¹ The person referred to as “Nevarez” is, in fact, defendant Alvarez.

Based on this affidavit a search warrant for the residence at 4028 Orcutt was issued. The warrant was, however, permitted to become stale because the officers hoped to be able to seize the heroin which, according to the informant, defendant was expecting “later in the week.” A few days before June 9, Bouslaugh received information that the heroin shipment had, in fact, arrived and was at the 4028 Orcutt residence. An addendum to the May 24 affidavit was prepared. On June 9 it was submitted to a magistrate who determined that it was not worded properly. When Bouslaugh and other officers were returning to the sheriff's station to rewrite it, they saw defendant driving his pickup truck. They followed him to the parking lot at the Builder's Emporium where they arrested him. They then returned to the Orcutt residence where they advised “the lady that was at the house” that defendant has been arrested and that the residence would be secured pending the obtaining of a search warrant. Three officers were left at the residence for about 50 minutes while a new search warrant was obtained on the basis of the following addendum to the original affidavit:

“The search warrant was not served because agents were unable to determine if the narcotics shipment had arrived. All the above information contained in the search warrant affidavit still exists supplemented by the following. Between the dates June 6, 1977, and June 9, 1977, a confidential reliable informant made contact with Daniel Navarez. Nevarez stated that he did get his supply of heroin in and had plenty left.

Your affiant now believes that the heroin is in the residence.”

The warrant was then executed. Found and seized were four baggies of heroin containing 23.49, 28.18, 23.44 and 23.55 grams, respectively. The baggies were found in a light fixture in the hallway. Another light fixture contained over $7,000 in cash. A loaded .32 caliber pistol was found on the dresser in the master bedroom and a loaded rifle in a closet in another bedroom. Three of nine fingerprints lifted from the light fixture where the heroin was found were determined to be defendant's.

The defense was that defendant, an undocumented worker, was living rent free at 4028 Orcutt. In exchange he helped the owner of the premises, one Tommy Lopez, repair cars and took care of his yard. He also worked in the fields and did some construction work. Some of the money he earned he used to pay off debts to Lopez. Lopez came in and out of the house frequently and would not permit defendant to use one of the rooms. Lopez had a key and often brought other people along, sometimes in the middle of the night. Defendant, therefore, did not really consider the house his own. He was “living there forcibly, so to speak.” One day appellant saw the light fixture containing the baggies sitting in an open closet in the hallway. He put it back in its proper place. Certain narcotics paraphernalia which had also been found were kept by Lopez in the room he had reserved for himself. The $7,000 in cash had been given defendant by Lopez in order to conceal the money from Mrs. Lopez. Lopez also gave defendant the pistol and the rifle, which were already loaded.

Additional facts will be related where appropriate.

DISCUSSION

Validity of the Search Warrant. Without beating about the bush, there are two major problems with the search warrant: As far as the original affidavit is concerned (see fn. 1, supra), it tells us nothing about the premises to be searched—the residence at 4028 Orcutt—except that this happened to be a residence where between May 21 and 24, 1977 defendant sold heroin to a reliable informant and that it was a residence. We are not expressly told who resided there, what if any connection defendant had with the residence, whether he brought the heroin to the residence or whether he removed it from a stash that he kept there. For all that appears from the affidavit 4028 Orcutt was an abandoned home which defendant and the informant had picked as a convenient place for a one-shot exchange of money for heroin.²

The addendum of June 9 has a different flaw: since it does not allege that the “confidential reliable informant” to whom defendant stated that he had received “his supply of heroin” was the same informant who had made the earlier purchase and whose reliability was supported in some detail, we are told nothing about his reliability.

United States v. Ventresca (1965) 380 U.S. 102, 108-109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 teaches that affidavits for search warrants “must be tested and interpreted … in a commonsense and realistic fashion․ A grudging or negative attitude … will tend to discourage police officers from submitting their evidence to a judicial officer before acting. [¶] … [T]he courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner … [T]he resolution of doubtful or marginal cases … should be largely determined by the preference to be accorded to warrants.” (See also United States v. Harris (1971) 403 U.S. 573, 577, 91 S.Ct. 2075, 29 L.Ed.2d 723.) These liberal precepts appear to have been fully embraced by our own Supreme Court. (People v. Ruster (1976) 16 Cal.3d 690, 702, 129 Cal.Rptr. 153, 548 P.2d 353; People v. Mesa (1975) 14 Cal.3d 466, 469, 121 Cal.Rptr. 473, 535 P.2d 337; People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 711, 100 Cal.Rptr. 319, 493 P.2d 1183.)

Remembering that it is our duty to save the warrant if we can in good conscience to do, we believe that tested under the benign Ventresca-Harris-Ruster auspices the affidavit survives judicial scrutiny.

As far as the May 24 affidavit is concerned there is, as noted, no express statement that defendant, the seller in the heroin transaction which took place at 4028 Orcutt, had any other connection with those premises. On the other hand the affiant sought judicial permission for a search of that very residence and states, inter alia, that “persons who sell heroin also use and keep the heroin secreted … inside their residences ․” Therefore, the affiant sought permission to search “drawers, cupboards, attics or any area within this residence to be searched for the hidden contraband.”

While there are more direct ways of stating that the affiant knew that defendant resided at 4028 Orcutt, the clear implication from the statements just quoted is that the residence at 4028 Orcutt was the residence of a heroin seller. Since the only such seller identified in the affidavit was defendant, the magistrate was—in roundabout fashion, to be sure—informed that the sale to the informant had taken place at defendant's residence.

The defect in the June 9 addendum is of a different sort: read by itself the addendum is clearly insufficient to authorize a search of defendant's residence, the obvious defect being that it contains no “underlying factual information from which the magistrate issuing the warrant [could] reasonably conclude that the informant was credible or his information reliable.” (People v. Hamilton (1969) 71 Cal.2d 176, 179-180, 77 Cal.Rptr. 785, 787, 454 P.2d 681, 683.) On the other hand the addendum does incorporate the facts recited in the May 24 affidavit on the basis of which it can certainly be concluded that defendant dealt in heroin and expected to get a new supply in the future. These facts then corroborate the person who furnished the additional information that sometime between June 6 and June 9 defendant had announced that his supply had arrived.³ Thus the case is really much like United States v. Harris, supra, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723. There an allegation in the affidavit that the informant was “prudent” was, in itself, insufficient to qualify him as a reliable informant. Coupled, however, with other information known to the affiant which corroborated the information obtained from the “prudent” informant, the affidavit was held to be sufficient.

We therefore find the affidavit in support of the search warrant to meet minimal constitutional standards.

The Inchoate Seizure of Defendant's Residence.

When the officers set forth on June 9 they had information that defendant kept arms inside of his residence. Their plan was, therefore, first to obtain a search warrant, then to wait for an opportunity to arrest defendant outside of his residence and, finally, to execute the warrant.⁴ These plans were delayed when the magistrate found something wrong with the paper-work submitted to him. As noted, on their way back to the station the officers found defendant headed away from his home. They then effected an arrest at the Builder's Emporium, “seized” the home while the magistrate was being satisfied and then executed the search warrant. The record contains no articulated reason for the abandonment of the original plan not to arrest until after the search warrant was secured.

Defendant does not object to the legality of the arrest as such—the May transaction was ample justification. He does, however, object to the seizure of his home citing, of course, People v. Shuey (1975) 13 Cal.3d 835, 847-850, 120 Cal.Rptr. 83, 533 P.2d 211, and Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 106 Cal.Rptr. 452. The People take the position that once they had arrested defendant, they really had no choice because “[i]f word had gotten back to the residence that we had arrested Mr. [Alvarez] prior to us getting there with the search warrant, there is no doubt … that evidence would have been destroyed before we could get it.”

There can be no question that once defendant had been arrested, seizure of any heroin in the residence was in jeopardy because of his right to make two completed telephone calls after being booked. (Pen.Code § 851.5(a).) The real question is whether this emergency was, in the words of Shuey v. Superior Court, supra, 30 Cal.App.3d 535, 541, 106 Cal.Rptr. 452, 455 “of the do-it-yourself variety” or whether it was thrust on the police by events triggered by reasonable police conduct. (Cf., People v. Freeny (1974) 37 Cal.App.3d 20, 32, 112 Cal.Rptr. 33.)

The answer is: we don't know. The record is quite compatible with a finding that defendant was arrested on an impulse and that the officers only realized afterwards that, having no warrant at the time of arrest as had been originally planned, they now had blundered into an emergency situation which made it necessary to secure defendant's home while they made another attempt to satisfy the magistrate. If those were the facts, Shuey seems right in point.⁵ On the other hand it is equally possible that the emergency engendered by defendant's arrest was the result of carefully considered reasonable police work. The officers' determination not to arrest him in his “fortress” seems entirely admirable. It may also be that to the officers' knowledge defendant so rarely left his home that if they did not arrest him at the first opportunity, they might not get another chance to arrest him on the street until the search warrant had again become stale or his inventory was substantially disposed of or otherwise depleted. The problem is that the record contains no evidence to that effect.

Warrantless occupations of people's homes are presumptively illegal. The burden of showing justification was therefore on the People. They have not met it. Since, however, this is a well encapsulated error, the retrial can be confined to exploring the narrow issue posed by the Shuey-Freeny dichotomy. (See Pen.Code § 1260; People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 405-407, 132 Cal.Rptr. 30.)

Two other issues remain to be discussed. First defendant claims prejudice from the admission of the handgun and the rifle. The matter was carefully weighed by the trial court. It found that in view of the lack of direct evidence that defendant was aware of the presence of heroin—which, incidentially, was shown to have a “street value” of $34,560—the presence of the weapons was important circumstantial evidence the probative value of which out-weighed any prejudicial effect. The ruling was strictly within the trial court's discretion.⁶

Finally defendant claims that the giving of CALJIC 1.24⁷ permitted the jury to convict him of possession of heroin without first finding that he had knowledge of its narcotic character. The court cannot, however, embody all of the law in a single instruction. It did instruct the jury in the terms of CALJIC 12.00 and 12.01 which, as defendant admits, expressly require knowledge of the contraband's nature as a controlled substance. There was no error.

DISPOSITION

The case is remanded with directions to take evidence on all of the circumstances surrounding the arrest of defendant and the inchoate seizure of his residence and to make findings thereon. If the court determines that the seizure of the home violated the law as set forth in People v. Shuey (1975) 13 Cal.3d 835, 847-850, 120 Cal.Rptr. 83, 533 P.2d 211 and Shuey v. Superior Court (1973) 30 Cal.App.3d 535, 106 Cal.Rptr. 452, it shall order the proceedings dismissed. If the court determines that there was no such violation, it shall rearraign defendant for judgment and repronounce judgment on the jury's verdict.

FOOTNOTES

1.  “Your affiant has been a … deputy sheriff for the past 7 1/212 years, employed in such capacity by the California/Santa Barbara County Sheriff's Department and has acted and received the information set forth in this affidavit in that capacity. The facts supporting the foregoing grounds for issuing a search warrant are as follows: …“Between May 21 and May 24, 1977, a confidential reliable informant made contact with your affiant and under your affiant's direction for the purpose of attempting to purchase illicit narcotics, to wit heroin, your affiant searched the informant and his vehicle for the presence of money and/or contraband, said search proving negative.“Your affiant then gave the informant task force recorded funds with which to make the purchase. Your affiant also equipped the informant with a transmitting device to enable your affiant to overhear the conversations, however, no recordings were made of the conversation. The informant, driving his own vehicle, and under the surveillance of narcotic task force agents went to the residence at 4028 Orcutt Rd. Your affiant overheard via the transmitting device the informant exit the vehicle and make contact with the subject he called ‘Daniel.’ Most of the conversation was in Spanish and your affiant was able to pick out parts of the conversation in regard to money. Approximately 15 minutes later the informant left the residence and met at a pre-arranged location with your affiant. The informant handed your affiant a container containing approximately 3/4 of a gram of suspected heroin. Your affiant performed a Marquis Reagent test on the suspected heroin for the presence of opiate alkaloids, said test proving positive. Your affiant again searched the informant for money and/or contraband, said search proving negative. The informant stated that he had purchased the suspected heroin from Daniel Nevarez and had given Nevarez the task force recorded funds. Nevarez told the informant that he would be getting more heroin later in the week.“The confidential reliable informant has made purchases of narcotics for your affiant on one other occasion. The confidential reliable informant has supplied your affiant with information that has led to sources of supply for narcotics in Santa Barbara County and in other counties in the state of California. The confidential reliable informant has supplied your affiant with information that assisted your affiant in making seven arrests and seizure of approximately 20 grams of heroin in Lompoc. The confidential reliable informant has supplied your affiant with information in regard to narcotics activity that has been verified through unrelated sources.“Your affiant has received formal training from Allan Hancock Law Enforcement Academy, has attended seminars on the identification of narcotics and drugs from the State Bureau of Narcotics Enforcement, Department of Justice Narcotic Investigators Course, Narcotics Seminars from the Orange County Sheriff's Training Facility, has attended seminars on the identification of narcotics and drugs from Santa Barbara County Sheriff's Narcotics Division and also the Santa Barbara Police Department Narcotic Detail. Your affiant has been actively investigating narcotics and drug investigations with the Santa Barbara County Sheriff's Department for a total of 7 1/212 years. During this period your affiant has investigated or assisted in the investigation of over 500 cases involving narcotics, dangerous drugs or controlled substances. Your affiant has worked at times as an undercover agent utilizing the jargon and actions for purchasing illicit controlled substances which resulted in the apprehension and conviction of persons engaged in illegal sales of narcotics, dangerous drugs and other controlled substances. Your affiant has further testified in Santa Barbara Municipal Court, Solvang Justice Court, Santa Maria Superior Court, U. S. Federal Court in Los Angeles and Oakland Municipal Court as an expert on identification of people under the influence of narcotics and packaging and sales of narcotics.“It has been your affiant's experience that persons who sell heroin also use and keep the heroin secreted on their person, vehicles or inside their residences. It has also been your affiant's experience that those persons who engage in the sales of heroin also secret this heroin in small places in order not to be detected. Therefore, your affiant requests that all areas to include drawers, cupboards, attics or any area within this residence to be searched for the hidden contraband.“Based on the aforementioned information and your affiant's experience, your affiant prays that reasonable and probable cause does exist for the issuance of a search warrant for the residence located at 4028 Orcutt Rd., Santa Maria, and the person of Daniel Nevarez. …”

2.  We know from the testimony at the preliminary hearing that the officers knew perfectly well that 4028 Orcutt was defendant's residence. They just failed to mention that fact in the affidavit.

3.  While the defect in the May 24 portion of the affidavit—the failure to allege that 4028 Orcutt was defendant's residence—was obviously just an oversight, we cannot assume that Deputy Bouslaugh, on June 9, really meant to say that the informant referred to in the June 9 addendum and the informant who made the purchase in May were one and the same person. In fact, at the preliminary hearing Bouslaugh refused to be specific as to the June date when the informant talked to defendant so that defendant could not “figure out who the informant was.” Since defendant presumably knew his May customer, one has to assume a different informant.

4.  The reason for an arrest away from the home was stated to be: “… because we had information that he was—or had weapons inside the house and there—a woman and two children that we knew of in the house. Also for officers' safety, we wanted the defendant away from the residence prior to serving the search warrant.”

5.  In Shuey the abortive attempt to search the defendant's home by consent was made five days after the police acquired reason to believe that such a search would be successful. Here defendant's arrest was made more than two weeks after the May heroin sale.

6.  We note that no one suggested to the jury that possession of either weapon was a crime.

7.  CALJIC 1.24 reads as follows:“Within the meaning of the law, a person is in possession of an article, object or thing when it is under his dominion and control and to his knowledge either is carried on his person or is in his presence and custody, or, if not on his person or in his presence, the dominion and control thereof is immediate, accessible, and exclusive to him [, provided, however, that two or more persons may have joint possession of an article, object or thing if jointly and knowingly they have the exclusive dominion and control I have described].”

KAUS, Presiding Justice.

ASHBY and HASTINGS, JJ., concur.