Summary
In Krauss v. Superior Court[*] (Cal.App.) 88 Cal.Rptr. 612, 617, the court pointed out "that to permit police officers to search illegally in order to 'check' and confirm information which they have received, which information would itself support a search warrant, would open the door to unrestricted police searches."
Summary of this case from People v. BakerOpinion
Hearing Granted Oct. 15, 1970.
Opinion on pages 793-802 omitted.
HEARING GRANTED
Robert Chargin, Public Defender, by Ann M. Chargin, Deputy Public Defender, Stockton, for petitioner.
Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Eddie T. [88 Cal.Rptr. 613]Keller, Deputy Atty. Gen., Sacramento, for real party in interest.
JANES, Associate Justice.
Petitioner is defendant in a criminal action now pending in the Superior Court for the County of San Joaquin, in which he is charged with possession of marijuana in violation of section 11530 of the Health and Safety Code. Upon denial by the superior court of his motion suppress evidence, petitioner sought review of that order by filing the petition now before us for a writ of prohibition to restrain the respondent court from further proceedings in the criminal matter. (Pen.Code, § 1538.5 (i).) Petitioner contends that a warrrantless police entry, without his consent and in his absence, of a motel room occupied by him, was unlawful and that the later seizure of a quantity of marijuana, under the authority of a search warrant obtained subsequent to the entry, was also illegal.
We dispose summarily of an initial but admittedly minor contention of the Attorney General: It appears that the transcript of the preliminary examination was not stipulated into evidence for purpose of the suppression hearing in superior court. It is suggested, therefore, that petitioner may not now predicate error upon any fact or issue developed at the preliminary examination. (Thompson v. Superior Court (1968) 262 Cal.App.2d 98, 103, 105, 68 Cal.Rptr. 530.) A reading of the transcript of the suppression hearidng discloses, however, that counsel for both sides referred in argument to the evidence produced before the magistrate, and permits a strong inference that the superior court judge, too, had access to an considered the preliminary transcript. (See, Amacher v. Superior Court (1969) 1 Cal.App.3d 150, 155, 81 Cal.Rptr. 558.)
FACTS
Connie Hernandez, a cleaning maid at a Tracy motel, was regularly assigned to clean the room in which petitioner was registered. At about midday in the course of her regular cleaning chores, she observed on a nightstand next to petitioner's bed what she thought was an empty cigarette package. Before routinely discarding it with other refuse, she opened the package to make certain it was empty. Inside the package she discovered a sandwich bag containing crushed leaves, greenish-grey in color. Mrs. Hernandez had attended a drug demonstration class conducted by police officers, at which she observed and smelled different types of narcotic substances, including marijuanna. Based on this prior experience, she believed she had found marijuana. She replaced the sandwich bag and its contents in the cigarette package, returned the package to its original location, and reported the incident to Mrs. Jacobs, the motel manager. Mrs. Jacobs went to the room with the maid, observed the items, and then telephoned the police.
Sergeant Guevara of the Tracy Police Department arrived at the motel in response to the manager's call, and both Mrs. Hernandez and Mrs. Jacobs told the officer they believed there was marijuana in petitioner's room. With the manager's permission, and in the company of the two women, the officer entered petitioner's room where he removed the sandwich bag from the cigarette package and observed in the bag a vegetable matter which proved to be marijuana. Guevara then restored the articles to their original position and departed, leaving the contraband undisturbed.
That afternoon, Sergeant Guevara obtained a warrant to search petitioner's room. The affidavit in support of the search warrant recited that Guevara was told by Mrs. Hernandez, a maid at the motel--and a reputable person--that she had that morning, in the course of her cleaning duties, gone into the descrbed motel room. The affidavit further recited--as she detailed it to Guevara--the chronology of the maid's observations of the cigarette package and its contents, her subsequent actions and those of the motel manager, in much the same manner as we have set them out above, but with one exception. Omitted from the affidavit is any mention of the officer's clandestine entry into petitioner's motel room. Included in the information given [88 Cal.Rptr. 614]Guevara and recited in the affidavit are the circumstances of Mrs. Hernandez' attendance at the drug demonstation class.
The affidavit further recites Guevara's awareness over a period of time of 'the reputation of Lance Krauss as being a person who is on the fringes of the drug traffic in the City of Tracy;' and that Guevara had 'been advised by other officers of the Tracy Police Department, known to [Guevara] to be reliable that they have information that he [Krauss] is involved in the drug traffic in the City of Tracy.'
That evening Sergeant Guevara returned to petitioner's room at the motel. When petitioner answered his knock on the door, Guevara properly identified himself, presented the search warrant, searched the room, and found and seized a wax sandwich bag containing marijuana.
I
Petitioner contends that there was an insufficient showing by Sergeant Guevaras's affidavit to provide probable cause for issuance of the search warrant. The guidelines for judging the validity of a search warrant are spelled out in Aguilar v. Texas (1964) 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729: 'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible' or his information 'reliable." (See, also Spinelli v. United States (1969) 393 U.S. 410, 413, 89 S.Ct. 584, 21 L.Ed.2d 637, 641-642; People v. Scoma (1969) 71 A.C. 349, 353-354, 78 Cal.Rptr. 491, 455 P.2d 419; People v. Tillman (1965) 238 Cal.App.2d 134, 138, 47 Cal.Rptr. 614.)
The affidavit of Sergeant Guevara satisfied both requirements set forth in Aguilar, and provided a sufficient and reasonable showing to support the issuing magistrate's judgment that probable cause for its issuance existed. The information conveyed to the officer by Mrs. Hernandez was both factual in nature and clerly indicated her personal knowledge of the reported facts. Moreover, this information, from an observing and concerned citizen, was based factually on her prior familiarity with marijuana.
Petitioner's contention that there was an insufficient showing of Mrs. Hernandez' reliability as an 'informant' is without merit. It is fundamental that adequate information from a citizen who purports to have been either the victim of a crime or to have observed illegal activity is sufficient to establish probable cause, even though his reliability as an informer has not been previusly tested. (People v. Hogan (1969) 71 A.C. 927, 930, 80 Cal.Rptr. 28, 457 P.2d 868; People v. Scoma, supra, 71 A.C. 349, 355, fn. 7, 78 Cal.Rptr. 491, 455 P.2d 419; People v. Gardner (1967) 252 Cal.App.2d 320, 324-325, 60 Cal.Rptr. 321; People v. Lewis (1966) 240 Cal.App.2d 546, 549-551, 49 Cal.Rptr. 579.) As a citizeninformer, Mrs. Hernandez--on the facts shown--was thus elevated to the status of reliable informant.
'[T]he situation in which a private citizen informs the police of criminal activities is different from information given by a mere informer. * * * [P]olice officers may act on the observations of private citizens who report crimes committed in their presence. Such a citizen who observes criminal activity is more than a mere informer and tests of reliability that must be applied to experienced stool pigeons do not necessarily apply to every private citizen who aids the police.' (People v. Guidry (1968) 262 Cal.App.2d 495, 497-498, 68 Cal.Rptr. 794, 796; see also, People v. Griffin (1967) 250 Cal.App.2d 545, 58 Cal.Rptr. 707; People v. Lewis, supra, 240 Cal.App.2d 546, 49 Cal.Rptr. 579.)
The same dignity cannot be accorded the averments by Sergeant Guevara as to his awareness of petitioner's reputation [88 Cal.Rptr. 615]in the drug traffic, and as to the information Guevara had received from his fellow officers. Such information alone would not provide the requisite probable cause for issuance of a search warrant. A strong line of California cases holds that, to justify a warrant on the basis of what police officers know without requiring a sworn statement by someone that the information was actually received into police channels would permit the manufacture of reasonable grounds for arrest within a police department. (People v. Adkins (1969) 273 A.C.A. 211, 213-214, 78 Cal.Rptr. 397; People v. Cox (1968) 263 Cal.App.2d 176, 185-186, 60 Cal.Rptr. 410; People v. Pease (1966) 242 Cal.App.2d 442, 446, 448-449, 51 Cal.Rptr. 448; see, People v. Lara (1967) 67 Cal.2d 365, 374, 62 Cal.Rptr. 586, 432 P.2d 202.) Sergeant Guevara's recital as to his awareness of defendant's reputation in the drug traffic and the unauthenticated information passed to him by other officers are circumstances, however, for consideration by an issuing magistate along with all other facts presented. (People v. Melchor (1965) 237 Cal.App.2d 685, 690, 47 Cal.Rptr. 235; People v. McVey (1969) 269 Cal.App.2d 240, 243, 74 Cal.Rptr. 648.)
Ample competent evidence existed, therefore, on the basis of all the information recited in Guevara's affidavit, to support the magistrate's determination that probable cause was shown for issuance of the search warrant.
II
Our inquiry does not end, however, with examination of the showing made in support of the search warrant, but extends to the propriety of Guevara's initial search of petitioner's motel room. The legality of that entry to confirm the existence of contraband depends on the right of the maid or the manager to consent to the entry of the police officer. There is no question but that the maid had the right to enter the room to clean it. When a person engages a hotel room he undoubtedly gives permission, either express or implied, to personnel of the establishment to enter his room in the performance of their duties. (United States v. Jeffers (1951) 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59, 64.) However, the constitutional right which is waived belongs to the occupant or tenant and not the maid, manager, or motel owner. (Stoner v. State of Califoria (1964) 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, 860.) In Chapman v. United States (1961) 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, the court held that the owner of a house had no authority to consent to a search of a tenant's house. In Stoner, the court stated, 'No less than a tenant of a house, or the occupant of a room in a boarding house [citation omitted], a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. [Citation omitted.] That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel. It follows that this search without a warrant was unlawful.' (84 S.Ct. at p. 893, 11 L.Ed.2d at p. 861.)
The Attorney General attempts to justify the search on the ground that 'the legitimate requirements of law enforcement * * * authorized the entry by Sgt. Guevara to confirm the lawful discovery by the maid.' The case on which primary weight is placed is People v. Plane (1969) 274 A.C.A. 1, 78 Cal.Rptr. 528. In that case, the landlord in an apartment building wished to enter and check the defendant's apartment. The defendant had been arrested while away from the apartment, and had left the lights on and his pet cat unfed and unattended. However, the landlord was reluctant to enter the apartment without the presence of an impartial witness, because of his history of disagreements with the defendant. The landlord called a police officer to accompany him. While the officer was in the apartment, he observed some plants. He thought they were marijuana, but, unsure of his find, he called the police station for a marijuana expert. The Court of Appeal held that rirst entry of the officer was permissible, and since the officer [88 Cal.Rptr. 616]was properly there, he could call for assistance to aid in identification.
Plane is clearly distinguishable from the instant case. Here, the maid and manager had no reason to permit the police officer to enter petitioner's room except to have him view contraband. In Plane, the court found that the first officer had entered for the protection of the premises and the other occupants of the building and that 'Neither the landlord nor the officer knew, or suspected the presence, of marijuana therein.' (274 A.C.A. 1, at p. 4, 78 Cal.Rptr. at p. 530.)
Since, in the case at bench, neither the maid nor the manager had the right to authorize Sergeant Guevara's entry to ascertain or confirm the presence of contraband in petitioner's room, the officer's entry after obtaining their permission was unlawful.
III
It is apparent that Sergeant Guevara did not enter the motel room on the first occasion for the purpose of arresting petitioner, as petitioner was nowhere on the premises, and an officer cannot, on the most reasonable of grounds, search without a search warrant in situations where no arrest is contemplated (unless under certain exception not applicable here). (Jones v. United States (1958) 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514, 1518; see generally, Witkin, Cal.Evidence (2d ed. 1966) § 92, pp. 87-88.)
We are confronted, therefore, with a situation in which a police officer, although possessed of information constituting probable cause to obtain a search warrant, first engaged in illegal police activity to confirm his suspicions. In People v. Edwards (1969) 71 A.C. 1141, 80 Cal.Rptr. 633, 458 P.2d 713, the Supreme Court reversed a conviction resulting from the seizure of evidence under analogous circumstances. There, defendants' neighbor informed the police that he had seen a package containing a 'dark green vegetable substance that appeared similar to alfalfa' on defendants' back porch. (71 A.C. at p. 1143, 80 Cal.Rptr. at p. 634, 458 P.2d at p. 714.) The police then, without a warrant, entered the backyard of defendants' residence, searched their trash can and found marijuana. They later 'staked out' the house, observe certain suspicious activity, arrested defendants, and searched the premises.
The Supreme Court held that the trash can was illegally searched as 'an adjunct to the domestic economy;' that no abandonment of the contraband took place unless to the persons authorized to handle the trash; and that the search violated defendants' 'reasonable expectation of privacy.' (71 A.C. at p. 1149, 80 Cal.Rptr. at p. 638, 458 P.2d at p. 718.) The latter determination is akin to our conclusion that the search of the motel room was impermissible. The court then concluded that the contraband seized following the arrests must be excluded as a 'fruit' of the prior illegal search. (71 A.C. at p. 1150, 80 Cal.Rptr. 633, 458 P.2d 713.) It held that, even if probable cause existed for the arrest and search apart from the illegal search, the prosecution failed to establish that the evidence found incidental to the arrest was not "come at by exploitation of' the prior illegal search, and the evidence should therefore have been excluded.' (71 A.C. at p. 1151, 80 Cal.Rptr. at p. 639, 458 P.2d at p. 719.) The court reasoned that it was impossible to determine on the state of the record whether the police would have conducted the stakeout, and made the subsequent arrests and searches, without the confirming evidence uncovered in the prior illegal search.
The same difficulty is present here. Although probable cause existed for Guevara to secure a warrant and search the room, Guevara apparently thought it necessary to confirm the information. It cannot be determined whether he would have secured the warrant, found the contraband and arrested petitioner if he had not made the prior, illegal search.
[88 Cal.Rptr. 617]In People v. Edwards, supra, 71 A.C. 1141, at 1150, 80 Cal.Rptr. 633, 458 P.2d 713, the court held that the evidence was inadmissible as 'fruit of the poisonous tree.' The limits of that doctrine were defined by the court in People v. Sesslin (1968) 68 Cal.2d 418, at 428, 67 Cal.Rptr. 409, at 416, 439 P.2d 321, at 328: 'That degree of 'attenuation' which suffices to remove the taint from evidence obtained directy as a result of an unlawful police conduct requires at least an intervening independent act by the defendant or a thirty party which breaks the causal chain linking the illegality and evidence in such a way that the evidence is not in fact obtained by 'exploitation of that illegality." (See, Wong Sun v. United States (1963) 371 U.S. 471, 485-486, 83 S.Ct. 407,9 L.Ed.2d 441, 453-454; People v. Superior Court (1969) 71 A.C. 281, 287-288, 78 Cal.Rptr. 210, 455 P.2d 146.) Our Supreme Court has also state: '[I]n considering whether acts occurring between the unlawful activity and the securing of the evidence objected to are sufficient to purge the taint, courts have held that the decisive issue is not that road from the unlawful search to the testimony is 'long,' but that it is 'straight.' (Citations.)' (People v. Johnson (1969) 70 Cal.2d 541, 548, 75 Cal.Rptr. 401, 405, 450 P.2d 865, 869.)
The applicability of the attenuation doctrine to the instant case in clearly discernible under the guidance of People v. Edwards, supra. In the present case, it is clear there was no independent intervening act by petitioner or any third party; there was only an attempt by the police officer to 'cure' an unlawful entry and search. The road leading from the unlawful search to the seizure was straight, although by self-serving acts which he chose not to disclose to the magistrate, the police officer attempted to 'bend' it.
We need not here re-emphasize the strong policy reasons underlying proscription of this type of police conduct, except to point out that to permit police officers to search illegally in order to 'check' and confirm information which they have received, which information would itself support a search warrant, would open the door to unrestricted police searches. The protection of the Fourth Amendment would be lost, since police officers could search first and obtain warrants later, and the search warrant procedure, intended as an insulation between the police and the public, would become a means to approve illegal police conduct. (Aguilar v. Texas, supra, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 at p. 726.)
(See, Rochin v. California (1952) 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183; People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905, and dissenting opinion of Holmes, J., in Olmstead v. United States (1928) 277 U.S. 438, 470, 48 S.Ct. 564, 72 L.E.2d 944, 952.)
Let a writ of prohibition issue as prayed.
PIERCE, P. J., and FRIEDMAN, J., concur.