People v. Smith

Opinion

HAMLIN, J.^*

Defendant appeals from a judgment by the court convicting him of possession of marijuana for sale (Health & Saf. Code, § 11359). The contraband was discovered in appellant’s motel room during a search conducted pursuant to a search warrant. Appellant contends the affidavit in support of the search warrant failed to provide probable cause to believe the marijuana was still in appellant’s motel room at the time the warrant was sought. We disagree.

Before examining this contention, we set forth the applicable legal principles and factual circumstances. It is established law that a search warrant affidavit must provide probable cause to believe the material to be seized is still on the premises to be searched when the warrant is sought. (People v. Mesa (1975) 14 Cal.3d 466, 470 [121 Cal.Rptr. 473, 535 P.2d 337]; Alexander v. Superior Court (1973) 9 Cal.3d 387, 393 [107 Cal.Rptr. 483, 508 P.2d 1131].)

The standards for reviewing search warrant affidavits were stated in United States v. Ventresca (1965) 380 U.S. 102 [13 L.Ed.2d 684, 85 S.Ct. 741]. That statement was quoted with approval by the California Supreme Court in People v. Mesa, supra, 14 Cal.3d 466, at page 469 as follows: “‘If the teachings of the [United States Supreme] Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants. . .must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts 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. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’ (Id., at pp. 108-109. ..; see People v. Superior Court (Johnson) (1972) 6 Cal.3d 704, 711....)”

The standards of review of the trial court’s determination on this issue in a suppression proceeding under Penal Code section 1538.5 are stated in People v. Lawler (1973) 9 Cal.3d 156, at page 160 [107 Cal.Rptr. 13, 507 P.2d 621]: ““‘A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact.” (People v. Heard (1968) 266 Cal.App.2d 747, 749. ...)’ (People v. West (1970) 3 Cal.3d 595, 602....) (Italics added.) In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence. The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution. Although that issue is a question of law, the trial court’s conclusion on the point should not lightly be challenged by appeal or by petition for extraordinary writ. Of course, if such review is nevertheless sought, it becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.” (Fn. omitted.) (See also People v. Caffott (1980) 105 Cal.App.3d 775, 781 [164 Cal.Rptr. 499].)

The affidavit which appellant attacks is that of Stanislaus County Sheriff’s Deputy Thomas Ford. The contents of that affidavit are quoted in part and summarized in part below.

“I, Thomas Ford, am a Deputy Sheriff with the Stanislaus County Sheriff’s Department, and I have been a Deputy Sheriff for six years. For the past one year I have been assigned exclusively as a narcotics detective with the Stanislaus County Drug Enforcement Unit, approximately six months of which were spent in an undercover capacity. I have attended approximately twelve hours of narcotics training in Basic Police Training. I have also attended an eighty hour course in narcotics investigation in Sacramento, California. I have attended an eight hour course as provided by the Valtox Laboratories in Davis, California, on the identification and analysis of controlled substances. I have also attended a twenty-four hour course in Orange County California on the identification and examination of subjects under the influence of narcotics and dangerous drugs. I have also testified in the Municipal and Superior Courts of Stanislaus County as an expert on the identification of marijuana.

“I have reasonable cause to believe, and I do believe, that there can now be found at Room Number One of an old Motel on East Barnhart Road next to Highway 99 north of Turlock, California, evidence which will tend to establish violations of Sections 11357 and 11359 of the California Health and Safety Code.

“I have observed the Room Number One of an old Motel located on East Barnhart Road, next to Highway 99, north of Turlock, California, and I describe it as follows:. . . . ”

At this point affiant gives a detailed description of the motel and the location of room number one. The affidavit then continues: “I have received information from a confidential reliable informant whom I shall hereafter refer to as X.” [The facts underlying affiant’s characterization of X as reliable and explaining the need to keep the informant’s identity confidential then follow].

“This confidential reliable informant has provided me with the following information:

“Within the past seventy-two hours of today’s date, October 12, 1977, X advised me that X had been to a residence of a subject known to X as Gary Smith. [Emphasis added.] X described Gary Smith as a young white male adult approximately twenty years of age, having light brown hair. X also advised that the subject Gary Smith drives a green Dodge Charger with mag wheels. X advised that the residence where Gary Smith was living is an old motel next to the highway between' Taylor Road and Keyes Road. X further advised that the room which Gary Smith was occupying was the room at the north end of the motel, however X did not know what the number of the room was. X advised that while at the residence of Gary Smith X had observed approximately two pounds of marijuana which had been packaged in plastic ziplock bags. X also advised that X was told by the subject Gary Smith he was attempting to sell the marijuana. X has used marijuana in the past and is familiar with its appearance and the way it is uded [sz'c] and packaged for sale.

“As an experienced narcotics officer I can state that marijuana is frequently packaged in plastic bags for sale.

“I have gone by the location described by X and found it to be exactly as described by X. I also observed in front of Room Number One, the northern most room on the motel, a green Dodge Charger bearing California License XAA 331. Upon running a registration check with the Department of Motor Vehicles on this vehicle it did come back registered to a 1968 Dodge with the registered owner a Gary Oran Smith, 534 Sunnyside, Turlock, California. In checking the microfiche index at the Drug Enforcement Unit I find a listing in there of a Gary Oran Smith with a birthday of October 17, 1957, this being the same age as described by X.

“As an experienced narcotics officer I can also state that narcotics and drugs are frequently transported and concealed in motor vehicles.

“Therefore, I ask the Court to authorize a search of the residence and grounds of Room Number One at the old Motel located at the southeast corner of East Barnhart Road on Highway 99 just north of Turlock, California, and of the person of Gary Oran Smith, and of a 1968 Dodge Charger bearing California License XAA 331, for marijuana and paraphernalia associated with the use and sale of marijuana, and for documents identifying the occupants of Room Number One at the old Motel located at the southeast corner of East Barnhart Road on Highway 99 just north of Turlock, California, which documents shall include, but not be limited to, such items as rental receipts, utility bills and receipts and letters addressed to the occupants of Room Number One at the Old Motel located at the southeast corner of East Barnhart Road on Highway 99 just north of Turlock, California, and for any records or documents showing sales of marijuana.”

We believe a common sense reading of this entire affidavit reveals facts from which the magistrate could reasonably determine there was probable cause to believe marijuana was still in appellant’s motel room. A grammarian’s interpretation of the underscored sentence in the affidavit directly stating the time frame “within the past seventy-two hours of today’s date” would undoubtedly be the interpretation which appellant urges. The placement of the quoted prepositional phrase does suggest that it modifies only the verb of the main sentence “X advised me that...” and not the dependent clause of the sentence “that X had been to a residence of a subject known to X as Gary Smith.” But that interpretation is unrealistic in view of the contents of the entire affidavit. Even though the affidavit is inartfully drawn, we believe the affiant’s meaning becomes clear when this sentence is viewed in the context of the entire affidavit.

The first reference to the receipt of information from the informant makes no mention of a time frame. It is only when the affiant zeros in on the contents of the “tip” that the time frame is mentioned. This suggests the phrase “within the past seventy-two hours” was not just inserted to explain when the information was received by the affiant, but rather to modify the new matter in the sentence—namely, the time X had been to the residence.

It is also important to note that the time reference appears for the first time after the phrase: “This confidential reliable informant has provided me with the following information:” We believe the phrase “within the past seventy-two hours” must have been intended to explain the time X went to the premises rather than the time X spoke to the affiant. It is not a common sense interpretation to conclude that the informant would tell the affiant when their conversation took place.

In deciding what the magistrate reasonably assumed, it is proper to consider affiant’s statement in the affidavit that “I have reasonable cause to believe, and I do believe, that there can now be found [evidence of marijuana in appellant’s motel room]” (italics added). (See People v. Wachter (1976) 58 Cal.App.3d 911, 918, 920 [130 Cal.Rptr. 279].) The magistrate was entitled to arrive at any reasonable interpretation of the affidavit which is consistent with the trained law enforcement officer’s statement that he had reasonable cause to believe the marijuana can now be found in appellant’s motel room. Such a conclusion is not inconsistent with the established rule that an affidavit containing only opinions and conclusions does not support a finding of probable cause. (See People v. Pellegrin (1977) 78 Cal.App.3d 913, 917 [144 Cal.Rptr. 421]; People v. Castro (1967) 249 Cal.App.2d 168, 171 [57 Cal.Rptr. 108].) Here, the underlying facts are stated in the affidavit. The magistrate’s problem, and the problem of this court, is the common sense interpretation of that statement. Such an interpretation of the entire affidavit provides probable cause to believe marijuana was in appellant’s motel room at the time the search warrant was issued.

An alternative basis sustains the determination of the trial court that the supporting affidavit for the search warrant contains facts sufficient to establish probable cause that marijuana was in appellant’s motel room at the time of issuance. At most, the grammatical construction of the sole direct statement of the time frame for the informant’s observation of marijuana creates an ambiguity. The affidavit read as contended by the People, i.e., that the phrase “within the past seventy-two hours of today’s date” explains both the time of the advice by the informant and the time of observation, is sufficient on its face to establish probable cause. Accordingly, the prosecution had the right to produce evidence of the intended meaning of the language in the affidavit. The meaning asserted is consistent with one to which the affidavit is reasonably susceptible even though the technical grammatical interpretation asserted by appellant is the more likely one if the sentence in question is viewed in isolation. (See People v. Christian (1972) 27 Cal.App.3d 554, 560-561 [103 Cal.Rptr. 740], cert. den. (1973) 411 U.S. 937 [36 L.Ed.2d 398, 93 S.Ct. 1915].) The reasons for admitting rehabilitative evidence in that case apply equally to this case. The Christian court stated its reasons as follows: “We recognize that in adopting the principle of the admissibility of rehabilitative evidence, which we here apply, we are choosing between inherently conflicting policy considerations. The purpose of appellate review of the sufficiency of the affidavit to support the search warrant is to insure that the affidavit supplies facts of cause to search so that the magistrate issuing the warrant decides upon the existence of cause with judicial detachment and does not act as a rubber stamp. (Halpin v. Superior Court, 6 Cal.3d 885, 890. ..; People v. Superior Court (Johnson), 6 Cal.3d 704...; United States v. Ventresca, 380 U.S. 102, 108-109. ..; United States v. Harris, 403 U.S. 573... .) Consideration by another court of evidence sustaining probable cause that was not before the magistrate detracts from that purpose. Conversely, it is the purpose of the rule which excludes illegally obtained evidence to deter illegal police conduct, not deficient police draftsmanship in the preparation of affidavits. (See Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L.Rev. 825, 831.) There is also a strong policy encouraging search by warrant rather than on another permissible basis. (United States v. Ventresca, supra, 380 U.S. 102, 108-109.) If the reviewing judiciary treats the affidavit too strictly, the result reached tends not to serve the purpose of the exclusionary rule and to encourage warrantless searches. That consideration dictates that the normal presumption of correctness of the magistrate’s determination be applied where a possible construction of the affidavit supports the determination.” (People v. Christian, supra, at p. 561.)

In the lower court hearing on appellant’s suppression motion, affiant Thomas Ford testified that X told him that within 72 hours of the time X was then talking to Ford, X had been to appellant’s residence. That evidence was properly admitted by the lower court to establish that the magistrate’s interpretation of the supporting affidavit was reasonable.

Ordinary rules of grammatical construction should not be lightly disregarded, but those rules do not prevail over a common sense and realistic interpretation of the entire supporting affidavit.

Since Officer Ford’s affidavit reasonably supported the finding of probable cause to issue the search warrant, appellant’s motion to suppress evidence of marijuana and his admissions to Officer Ford was properly denied.

The judgment is affirmed.

Brown (G. A.), P. J., concurred.

* Assigned by the Chairperson of the Judicial Council.