People v. Love

Opinion

FRANSON, Acting P. J.

Appellant appeals from a judgment of conviction of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) He was admitted to three years’ probation on various conditions, including county jail time. Appellant challenges the conviction on two grounds: (1) the trial court erred in denying his motion to suppress because the affidavit failed to show probable cause to support the search warrant, and (2) appellant’s trial attorney was ineffective for not seeking discovery of the identity of the confidential informant’s source of information. We reject both contentions and affirm the judgment.

Facts

Agent James Johnson and other members of the Stanislaus County Drug Enforcement Unit (SCDEU) executed a search warrant at 808 Kerr Avenue in Modesto on May 27, 1983. Appellant answered the door and was given a copy of the warrant. The officers found methamphetamine, scales, bindles, a cutting agent and other contraband inside the residence. This evidence was the basis of the criminal charge filed against appellant.

The affidavit was drafted and signed May 20, 1983, by Modesto City Police Officer Bob Finley, who was present at the search and assigned as a narcotics detective with SCDEU. Finley stated he personally had observed the exterior of the residence located at 808 Kerr Avenue and described the house in some detail.

Finley had received information within 72 hours of May 20, 1983, from a confidential reliable informant referred to as “X.” Finley alleged X had once informed agents of the Stanislaus County Drug Enforcement Unit that specific persons at specific locations were dealing in specific controlled substances. A search warrant issued on this information, and the specified substances were seized and suspects were arrested. On one other occasion, X told members of SCDEU that he could introduce an undercover agent to specific persons who were dealing with specific controlled substances in order to make a purchase. An SCDEU agent purchased controlled substances from the persons named by X. The substances seized were tested and on each occasion were found to be the controlled substance named by X; each of the cases was still pending litigation.

Finley also alleged that to his knowledge, X had never been convicted of a felony and was not under criminal investigation by law enforcement. X had never, to Finley’s knowledge, provided SCDEU agents with false information. X was a former user of methamphetamine and was familiar with its appearance and usual manner of packaging for use and for sale. Finley believed it was necessary for X’s personal safety to keep X’s identity confidential, and X provided the following information on assurance that his identity would not be revealed.

X told Finley that X was with another individual, designated “Y.” X told Finley that “Y does not know that X is an informant with any law enforcement agency.” X said Y told him that Y could purchase “go fast” at 808 Kerr Avenue. X accompanied Y to the residence at that address, where Y asked X to wait outside while Y made the purchase. X saw Y enter the residence and later return with a clear plastic baggie containing an off-white powder which Y called “go fast.” Y told X that he had purchased the “go fast” from “persons inside the residence,” and showed the baggie to X; X examined the baggie and told Finley the substance was methamphetamine. X said that Y told him the “person inside the residence” said he had quantities of “go fast” for sale “anytime Y wanted to purchase.”

Finley stated that in his experience, the description of the powder and baggie provided by X was consistent with methamphetamine and the usual manner of its packaging. Also, Finley was aware that “go fast” is a common street name for methamphetamine. Finley indicated it was necessary to keep the identity of Y confidential in order to insure X’s safety.

Finally, Finley alleged the records of the Modesto Irrigation District “were checked” and revealed the utilities at 808 Kerr Avenue were in the name of Dale Love.

Based on the foregoing information, Finley requested authority to search the residence, grounds and outbuildings located at 808 Kerr Avenue, all persons residing at that residence, any vehicles registered to the residents, and any closed or locked containers on the premises for methamphetamine and paraphernalia associated with the use and sale of methamphetamine and for any documents identifying the occupants of the residence. A warrant was issued, as requested, by a judge of the superior court.

Discussion

I.

The affidavit supports the magistrate’s finding of probable cause when viewed under the “totality of the circumstances” standard of the United States Supreme Court.

In In re Lance W. (1985) 37 Cal.3d 873 [210 Cal.Rptr. 631, 694 P.2d 744], the California Supreme Court ruled that Proposition 8 abrogated a defendant’s right to object to and suppress evidence seized in violation of the California, but not the federal Constitution. (Id., at pp. 885-889.) Accordingly, we must apply federal law to determine the sufficiency of an affidavit supporting a search warrant.

In Illinois v. Gates (1983) 462 U.S. 213 [76 L.Ed.2d 527, 103 S.Ct. 2317], the United States Supreme Court abandoned the “rigid” “two-pronged test” of Aguilar v. Texas (1964) 378 U.S. 108 [12 L.Ed.2d 723, 84 S.Ct. 1509]¹ and Spinelli v. United States (1969) 393 U.S. 410 [21 L.Ed.2d 637, 89 S.Ct. 584] and substituted in its place the “totality of the circumstances” approach that “traditionally has informed probable cause determinations.” (Illinois v. Gates, supra, 462 U.S. at p. 238 [76 L.Ed.2d at p. 548, 103 S.Ct. at p. 2332].) Although the high court held that the Aguilar-Spinelli elements concerning the informant’s “veracity,” “reliability” and “basis of knowledge” are all highly relevant in the determination of probable cause, these elements should not be regarded as “independent requirements to be rigidly exacted in every case . . . .” (Id., at p. 230 [76 L.Ed.2d at p. 543, 103 S.Ct. at pp. 2327-2328].) Instead, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding] that probable cause existed.” (Id., at pp. 238-239 [76 L.Ed.2d at p. 548, 103 S.Ct. 2332], italics added.)

Illinois v. Gates specifically reiterated the basic limits beyond which a magistrate may not go in finding probable cause: “A sworn statement of an affiant that ‘he has cause to suspect and does believe that’ [contraband] is located on certain premises will not do.” (Illinois v. Gates, supra, 462 U.S. at p. 239 [76 L.Ed.2d at pp. 548-549, 103 S.Ct. at p. 2332, citing Nathanson v. United States (1933) 290 U.S. 41 [78 L.Ed. 159, 54 S.Ct. 11].) Nor will an “officer’s statement that ‘affiants have received reliable information from a credible person and believe’ that heroin is stored in a home . . . .” (Ibid., citing Aguilar v. Texas, supra, 378 U.S. 108.) “[A] mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause” is inadequate to support a warrant. (Ibid.) “But when we move beyond the ‘bare bones’ affidavits present in cases such as Nathanson and Aguilar, this area simply does not lend itself to a prescribed set of rules . . . .” (Id., at p. 239 [76 L.Ed.2d at p. 549, 103 S.Ct. at pp. 2332-2333].) Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision. It is clear “that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause . . . .” (Italics added, Spinelli v. United States, supra, 393 U.S. at p. 419 [21 L.Ed.2d at p. 645, 89 S.Ct. at p. 590].)

Gates also quotes Locke v. United States (1813) 11 U.S. 339 [3 L.Ed. 364] where Chief Justice Marshall observed that “the term ‘probable cause’ according to its usual acceptation, means less than evidence which would justify condemnation .... It imports a seizure made under circumstances which warrant suspicion. ” (Id., at p. 348 [3 L.Ed. at p. 367], italics added.) The central teaching of the “probable cause” standard is: “‘In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” (Illinois v. Gates, supra, 462 U.S. at p. 231 [76 L.Ed.2d at p. 544, 103 S.Ct. at p. 2328, quoting Brinegar v. United States (1949) 338 U.S. 160, 176 [93 L.Ed. 1879, 1891, 69 S.Ct. 1302].) “ ‘The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.’” (Ibid., quoting United States v. Cortez (1981) 449 U.S. 411, 418 [66 L.Ed.2d 621, 629, 101 S.Ct. 690].)

Gates also reminded reviewing courts that they should give “great deference” to a magistrate’s determination of probable cause. To hold otherwise would engender uncertainty regarding the magistrate’s determinations and would encourage law enforcement officers to forego obtaining a warrant.

Although Gates abandoned the Aguilar-Spinelli standard for determining probable cause, it did not abandon the fundamental rule that if hearsay declarations are used to establish probable cause, the affidavit must provide a “substantial basis” for crediting the hearsay declarations. (Jones v. United States (1960) 362 U.S. 257, 270 [4 L.Ed.2d 697, 707-708, 80 S.Ct. 725, 78 A.L.R.2d 233]; United States v. Ventresca (1965) 380 U.S. 102 [13 L.Ed.2d 684, 85 S.Ct. 741]; see also federal cases cited in People v. Superior Court (Bingham) (1979) 91 Cal.App.3d 463, 472-475 [154 Cal.Rptr. 157].) A chain is only as strong as its weakest link, so a “substantial basis” for crediting the hearsay statements must be provided for each level of hearsay, i.e., at the secondary source level as well as the primary source level. As explained by Professor La Pave, “in the hearsay-upon-hearsay situation, as where an informant of established reliability tells police what someone else has told him, there is a need to establish veracity with respect to each person in the hearsay chain.” (La Pave, Search and Seizure, A Treatise on the Fourth Amendment (1978) § 3.3, p. 530; see also Price v. Superior Court (1970) 1 Cal.3d 836, 841 [83 Cal.Rptr. 369, 463 P.2d 721]; People v. Superior Court (Bingham), supra, 91 Cal.App.3d 463, 472-473; but see In re Jean M. (1971) 16 Cal.App.3d 96, 103-104 [93 Cal.Rptr. 679]; People v. Christian (1972) 27 Cal.App.3d 554, 560 [95 Cal.Rptr. 234], where participants in a crime were not tested like ordinary informants.)

The affidavit provides a substantial basis for believing Y’s declarations to X. Y made the declarations and then took X to the house. While X waited outside, Y went in and came back out carrying methamphetamine. Although X did not search Y’s person before he went in and could not see the actual transaction, Y’s declaration that he bought the drugs in the house was supported by these events. These corroborative circumstances do not prove guilt but they do provide a substantial basis for Y’s credibility and the overall probable cause determination.

X was a known confidential reliable informant who was knowledgeable and experienced in the purchase and sale of drugs. Several reasonable inferences may be drawn from this: first, when X stated that Y did not know that X was a police informant, the statement is credible because X would know better than anyone else who was aware of his police activity. Second, Y probably would not have shown him illegal drugs if Y had known he was a police informant. Common sense tells us that this would be the last thing that Y would do. While there obviously was a possibility that Y or perhaps Y and X together were conspiring to frame appellant by falsely accusing him of illegal drug activity, this possibility does not negate the “fair probability” that Y did purchase the drugs from inside appellant’s apartment (Illinois v. Gates, supra, 462 U.S. at p. 238 [76 L.Ed.2d at p. 548, 103 S.Ct. at p. 2332]). In sum, under all of the circumstances, there is a ring of truth to Y’s declarations that he purchased the drugs inside the house.

Y’s conduct in showing the drugs to X upon exiting the house along with his statement that he had just purchased them inside the house also qualifies as a declaration against penal interest. (United States v. Harris (1971) 403 U.S. 573, 583-584 [29 L.Ed.2d 723, 734, 91 S.Ct. 2075],)² Harris notes that the declaration by the informant was plainly a declaration against interest since it could readily warrant a prosecution and could sustain a conviction against the informant himself. The critical fact is that the informant was known to the police. {Ibid.) In the present case, an inference arises that Officer Finley knew Y’s identity because he alleged in his affidavit that it was necessary to keep Y’s identity confidential in order to assure X’s safety. Furthermore, as explained in La Fave, “[i]t should not be assumed . . . that an admission against penal interest can be used to establish reliability only when that admission is made directly to a law enforcement officer . . . .” (La Fave, Search and Seizure, op. cit. supra, at p. 530.) In the hearsay upon hearsay situation, as where an informant of established reliability (in this case, X) tells the police what someone else (Y) has told him, the veracity of the secondary source can be established by showing that he made admissions against penal interests. “Indeed, as a general proposition there is more reason to rely upon such admissions than admissions made directly to the police, for in the latter situation there is always the chance that the informer is a stoolie who perceives he can admit to criminality without significant risk.” (La Fave, Search and Seizure, op. cit. supra, at p. 530 citing Comi v. State (1975) 26 Md.App. 511 [338 A.2d 918].)

Under all the circumstances, Y’s declarations to X were reliable. First, he told X that he could buy “go fast” at appellant’s home. If nothing more happened, this would not justify a search. But then he took X with him to the premises, went inside, showed the drugs to X when he came outside and restated his claim that he bought them inside. Showing the drugs to X was against Y’s penal interest and was not done to exculpate himself from a greater crime or to divert police interest. (Contrast People v. Campa, supra, 36 Cal.3d 870, 882-883.) X’s observations during the process lend credence to Y’s declaration. X’s known reliability provides an adequate chain of communication to the affiant, presenting the magistrate with a substantial basis for decision.

This highly believable chain of events gave the magistrate a substantial independent basis for finding there was probable cause to believe that methamphetamine would be found in the house. Although someone might disagree, and it is possible that X, Y or even Officer Finley did not tell the truth, the affidavit hangs together and supports the common sense determination made by the magistrate. That is all that is required to uphold the warrant. (Illinois v. Gates, supra, 462 U.S. 213.) We must defer to the issuing magistrate’s determination of this issue whenever there is a substantial basis for his decision. (Ibid.)³

II.^*

The judgment is affirmed.

Hamlin, J., concurred.

1 The Aguilar test of the sufficiency of hearsay in an affidavit was frequently stated as follows: “(1) the affidavit must allege the informant’s statement in language that is factual rather than conclusionary and must establish that the informant spoke with personal knowledge of the matters contained in such statement; and (2) the affidavit must contain some underlying factual information from which the magistrate issuing the warrant can reasonably conclude that the informant was credible or his information reliable.” (People v. Hamilton (1969) 71 Cal.2d 176, 179-180 [77 L.Ed.2d 785, 454 P.2d 681].)

2 The California Supreme Court has limited Harris ’ application when the informant is in custody and makes a declaration against penal interest as a way of avoiding criminal liability for greater crimes. (People v. Campa (1984) 36 Cal.3d 870, 881-882 [206 Cal.Rptr. 114, 686 P.2d 634].) But it has not rejected Harris altogether, and it is doubtful whether it could do so after In re Lance W., supra, 37 Cal.3d 873 recognized the abrogation of state law bases for the suppression of evidence.

3 Since we conclude that there was a substantial basis for the issuing magistrate’s determination of probable cause, we need not consider the officer’s good faith reliance on the warrant. (United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405].)

* See footnote on page 104, ante.