Theodor v. Superior Court (8 Cal. 3d 77, 1972)

Opinion

MOSK, J.

This case illustrates some of the procedural barriers confronting criminal defendants when a search warrant is issued primarily on information supplied by an unidentified informant. On February 4, 1971, the Municipal Court for the South Judicial District of Orange County issued a warrant authorizing a search of a house at 1267 Fairywood Lane, Laguna Beach. The warrant was issued on the basis of affidavits by Officer Celmer of the Los Angeles Police Department and by an undisclosed informant, and an in-chambers examination of the informant by the issuing magistrate.

Under the authority of the search warrant, several officers entered the unlocked house and discovered no one inside. During the search for occupants, one of the officers observed a room secured by two padlocks and one standard bolt affixed to the door. Peering through a window into the room, the officers saw what they believed to be contraband. They remained in the house “to see if any of the occupants showed up.” Shortly thereafter, three boys, between 9 and 11 years of age, entered the house and were placed in a bathroom by the officers. A few minutes later defendant entered the house by using a key to the front door. A search of defendant produced three keys which fit the locks to the closed room. Subsequent search of the closed room resulted in the seizure of, among other items, 10 kilograms of marijuana and 1,708 pieces of paper, each of which was impregnated with approximately 10 dots of LSD.

Defendant was charged with violating Health and Safety Code sections 11530 (possession of marijuana), 11530.5 (possession of marijuana for the purpose of sale), 11910 (possession of restricted dangerous drugs), and 11911 (possession of restricted dangerous drugs for the purpose of sale). At a combined preliminary examination and hearing under Penal Code section 1538.5, subdivision (f), defendant moved both to quash the warrant on the ground it was issued in reliance, in part, on unreported, oral testimony, and to require disclosure of the identity of the informant on the ground he would be a material witness on the issue of defendant’s guilt. Both motions were denied.

Defendant also sought to inquire into the truth of the matters contained in the affidavits which supported issuance of the search warrant. Although witnesses were present for that purpose pursuant to defendant’s subpoena, the magistrate refused to allow defendant to question them. The magistrate further ruled that Officer Celmer could not be called for an examination into the truth of the contents of his affidavit.

After defendant was held to answer in superior court, his motions under Penal Code sections 995 and 1538.5 were denied. He now seeks a writ of mandate or prohibition. (Pen. Code, §§ 999a, 1538.5, subd. (i).) In support thereof, defendant urges the following contentions: (1) the magistrate improperly relied, in part, on unsworn and unreported statements in issuing the search warrant; (2) the magistrate erroneously failed to order the prosecution to disclose the identity of the confidential informant; (3) defendant should have been permitted to controvert the factual allegations contained in the affidavits of the officer and the informant; and (4) inquiry into the legality of the informant’s arrest should have been permitted.

The Affidavit and Issuance of the Warrant

The warrant was issued on the basis of affidavits submitted by the undisclosed informant and by Officer Celmer, the latter essentially repeating the statements of the former. The informant’s affidavit in substance is as follows: On or about February 3, 1971, he went to 1267 Fairywood Lane, a white single-story plaster house with red trim and redwood siding, surrounded on three sides by a six-foot wood fence. He was taken to the west bedroom of the house and there observed a pile of marijuana bricks, two feet high by three feet wide by one foot (one brick) deep, containing 20 to 50 bricks. A white male, 22 to 27 years of age, 5 feet 11 inches in height, weighing 170 pounds, with dark curly hair, whose name he did not know, gave him two and a half bricks weighing approximately five pounds. The informant was to return to Laguna Beach within two weeks with $300 for the marijuana. He was also given three pills by the described subject and was told one of the pills was LSD.

The affidavit further relates that the informant took the bricks to the Los Angeles airport, that he was arrested by a federal marshal and the bricks and pills seized; that he had never been convicted of a crime of moral turpitude but had been convicted of minor traffic violations; and that he had smoked marijuana on numerous occasions and knows its appearance and smell.

Both affidavits were subscribed and sworn to in the presence of the issuing magistrate. The magistrate also examined the confidential informant before the warrant was issued; this examination was not, however, recorded and transcribed. During the examination, the magistrate took handwritten notes. After he issued the search warrant, he sealed the signed affidavit of the informant and his notes in an envelope which was to be opened only on order of court.

At the preliminary hearing, the magistrate read the contents of his handwritten notes into the record:

“Then I will relate to you the gist of the conversation as I reported it in my handwriting, handwritten notes, and I am going to exclude therefrom anything that I think would indicate in detail the identity of the informant.

“ . . . The first thing is, ‘lived in,’ and then, ‘blank’ as a city, which was given to me. Then comes the statement about where he sleeps. The next question and answer have to do with his place of birth. The next question had to do with his father’s occupation, To all of these, he responded to them.

“The next one had to do with the place he last worked for and where.

“The place he last worked or the persons he last worked for and where. And next his marital status.

“For the record, those were considered by me as preliminary questions so that I could watch him and see his reactions. Questions were asked and answers given to determine his honesty or lack thereof, or competence or lack thereof.

“Then he was sworn in to speak only the truth.

“Then he described a meeting with a person he named and identified. Then he related to me, in response to my question, that he had been made no promise, except that he wanted to co-operate.

“That is the gist of two or three questions and answers.

“Then the question was asked and answered by him as to when and where he first smoked marijuana.

“Then questions and answers of his medical history and questions concerning his personal history. And then the questions concerning—the questions and answers concerning any credit sale of marijuana kilos.

“Now, all of those questions and answers for your information or for the record, whatever you wish, were asked by me and the answers were recorded by me to show what happened. But the purpose in asking the questions was to determine from the nature and kind of response he was making not whether those things were true or important, but generally what his demeanor was. And I considered none of those things as having any importance on the affidavit which he signed or having any importance on the issuance of a warrant, save and except they aided me in determining that he was—I am trying to think of an appropriate word. He was reasonably straight-forward and reasonably honest insofar as that is capable of being done in a ten to 15 minute interview. ..."

The Magistrates Examination of the Informant

Defendant’s first contention is that the magistrate issued the search warrant without complying with the mandatory provisions of Penal Code section 1526. Section 1525 of the code makes clear that a search warrant cannot be issued other than on affidavit.* * Section 1526, subdivision (a), permits a magistrate to examine orally and under oath the person seeking the warrant and any witnesses who might be produced. It does require, however, that an affidavit or affidavits be taken. Under section 1526, subdivision (b), an oral statement, if properly recorded and transcribed, is deemed to be an affidavit. Here, the magistrate conducted an oral examination of the undisclosed informer; more importantly, the informer and Officer Celmer each submitted to the court a written affidavit. Defendant has not urged that the affidavits on their face are defective. Thus, Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 873-874 [34 Cal.Rptr. 251] is not helpful. There the court held that the affidavit in question was insufficient and that the oral examination of the witness was also insufficient to support the issuance of the warrant.

Likewise, Powelson v. Superior Court (1970) 9 Cal.App.3d 357, 360-362 [88 Cal.Rptr. 8], also relied upon by defendant, is inapposite. There, in order to establish probable cause, the magistrate “took extensive sworn testimony from said officers in the presence of a court reporter,” but no affidavits were subscribed. The court, in voiding the three search warrants involved, traced the history of section 1526, which prior to 1957 required the magistrate to take the deposition of the “complainant, and any witnesses he may produce” before issuing a warrant. (Stats. 1851, ch. 29, § 645, at p. 284.)

“The 1957 amendment replaced the word deposition with the word affidavit to make clear that a sworn statement of facts contained in an affidavit (not a question and answer type of proceeding) was required. This amendment indicates that the Legislature placed importance on the requirement that a written signed document containing facts tending to establish probable cause be available before the magistrate could issue the warrant. The 1957 amendment also placed within the discretion of the magistrate the question of whether also to examine, under oath, the person seeking the warrant. Prior to this amendment, the magistrate was required to examine the person under oath. The problem here presented is not one of ‘technicalities without substance’ but one of clear legislative command.” (9 Cal.App.3d at p. 361; first italics added.)

In the case at bar, the magistrate exercised his discretion to examine the undisclosed informant orally. This examination did not produce an oral statement properly recorded and transcribed within the meaning of section 1526, subdivision (b). Hence, the fruits of the examination cannot be considered an affidavit. However, the magistrate did in fact take affidavits of the informant and Officer Celmer. We are not, therefore, presented with a situation in which, for example, an affidavit fails to comply with the second prong of the test enunciated in Aguilar v. Texas (1964) 378 U.S. 108, 114 [12 L.Ed.2d 723, 729, 84 S.Ct. 1509], requiring the affidavit to contain underlying facts from which the magistrate can reasonably conclude that the informant was reliable, and instead the magistrate seeks to gather such information by unreported and unsubscribed questioning of the informant.

Here, the affidavits are valid on their face. The magistrate, notwithstanding the fact that he had before him two properly subscribed affidavits, opted in addition to conduct an oral examination of the informant pursuant to the discretion afforded to him by section 1526, subdivision (a). As part of his observations, he took handwritten notes. There is no policy which bars magistrates from taking additional measures to ensure that probable cause exists even when an affidavit on its face supports the issuance of a warrant. Indeed such a procedure indicates a thoroughness which merits approbation.

Disclosure of Identity of the Informant

Defendant moved at the preliminary hearing and at the combined sections 995 and 1538.5 motion to compel disclosure of the confidential informant. It is manifest from counsel’s argument below that defendant seeks disclosure both to challenge the probable cause of his arrest and to use the informant as a material witness to his guilt or innocence.

It is well settled that California does not require disclosure of the identity of an informant who has supplied probable cause for the issuance of a search warrant where disclosure is sought merely to aid in attacking probable cause. (People v. Keener (1961) 55 Cal.2d 714, 723 [12 Cal.Rptr. 859, 361 P.2d 587]; see also McCray v. Illinois (1967) 386 U.S. 300 [18 L.Ed.2d 62, 87 S.Ct. 1056].) It is equally well settled that when the defendant makes an adequate showing that the informer may be a material witness on the issue of guilt or innocence, disclosure should be compelled or the case dismissed. (Price v. Superior Court (1970) 1 Cal.3d 836 [83 Cal.Rptr. 369, 463 P.2d 721]; Honore v. Superior Court (1969) 70 Cal.2d 162 [74 Cal.Rptr. 233, 449 P.2d 169]; People v. Garcia (1967) 67 Cal.2d 830 [64 Cal.Rptr. 110, 434 P.2d 366]; People v. McShann (1958) 50 Cal.2d 802 [330 P.2d 33]; see also Roviaro v. United States (1957) 353 U.S. 53 [1 L.Ed.2d 639, 77 S.Ct. 623].)

To establish that the informer may be a material witness on the issue of defendant’s guilt or innocence, the defendant has the burden of meeting the standard originally set forth in People v. Garcia, supra, and often repeated in the more recent decisions of this court (see, e.g., Price v. Superior Court, supra, 1 Cal.3d at p. 843; Honore v. Superior Court, supra, 70 Cal.2d at p. 168): “We emphasize that a defendant seeking to discover the identity of an informant bears the burden of demonstrating that ‘in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial.’ [Citations.] That burden is discharged, however, when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant’s exoneration. ‘No one knows what the undisclosed informer, if produced, might testify. He might contradict or persuasively explain away the prosecution’s evidence. It is the deprival of the defendants of the opportunity of producing evidence which might . . . result in their exoneration which constitutes the error in this case, and we cannot assume because the prosecution evidence may seem strong that the undisclosed evidence might not prove sufficient to overcome it in the minds of the jurors.’ [Citations.]” (People v. Garcia, supra, 67 Cal.2d 830, 839-840; italics omitted.)

As we stated most recently in Price v. Superior Court, supra'. “In light of the difficult problem of a defendant who is unaware of the information which might be supplied by the unnamed informer, the defendant’s burden of showing that the informer is a material witness on the issue of guilt does not require proof of that fact but only some evidence of a ‘possibility’ that the unnamed informer is a material witness.” (1 Cal.3d at p. 843.)

Unlike the presentation by counsel in People v. Sewell (1970) 3 Cal.App.3d 1035, 1038 [83 Cal.Rptr. 895], a case cited by the People, defense counsel here has not argued in conclusory fashion but with specificity: “I don’t want to put the defendant on the stand at this time, but apparently his weight is fluctuating to about 130 pounds at this time rather than 170 pounds as indicated by the affidavit. It indicates that he has dark, curly hair. He has rather straight hair. There is no reference to a beard and the like, so that the only way we can controvert those facts here is to have the person that is supposed to have made them here ....[