Opinion
For Opinion on Heaning, see 78 Cal.Rptr. 491, 455 P.2d 419
Thomas C. Lynch, Atty. Gen., of the State of California, Robert R. Granucci, Gloria DeHart, Deputy Attys. Gen., San Francisco, for appellant.
Sheldon Portman, Acting Public Defender, Fred S. Lucero, Deputy Public Defender, County of Santa Clara, San Jose, for respondent.
ELKINGTON, Associate Justice.
The People appeal from an order setting aside an information pursuant to the provisions of Penal Code section 995. The only question presented to us concerns the validity of a search warrant pursuant to which marijuana was allegedly found in the possession of defendant and respondent Gwendolyn Lee Scoma.
The search warrant was based on the affidavit of a police officer. As relevant We agree with defendant that insofar as they relate to probable cause, the affidavit and the ensuing search warrant were based entirely on the juvenile's statements. There was no corroboration.
The People contend that the affidavit establishes reasonable and probable cause for the issuance of the search warrant. Defendant insists that 'The warrant was void on its face for failure to recite facts indicating that reliance on an untested informer's information was reasonable.' Specifically, defendant categorizes the juvenile as an 'informer' who was not known to the police as being 'reliable.' Citing People v. Gallegos, 62 Cal.2d 176, 41 Cal.Rptr. 590, 397 P.2d 174, it is argued that as a matter of law his uncorroborated statements to the police cannot establish probable cause.
In determining the sufficiency of an affidavit for the issuance of a search warrant, the test of probable cause is approximately the same as that applicable to an arrest without a warrant, a commitment by a magistrate, or an indictment by a grand jury. This test, as applied here, is whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of 'Dewey's' guilt, and the presence of narcotics at the designated premises. The warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence supportive of the magistrate's findings of probable cause. It is the function of the magistrate who is the trier of fact, not the superior court of this reviewing court, to appraise and weigh the evidence presented by the affidavit. (People v. Stout, 66 Cal.2d 184, 192-193, 57 Cal.Rptr. 152, 424 P.2d 704.) There is no exact formula for the determination of probable cause. Each case must be decided on its own facts and circumstances--and on the total atmosphere of the case. (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.) It is stated in People v. Griffin, 250 Cal.App.2d 545, 550-551, 58 Cal.Rptr. 707, 711, that, 'One cannot approach the problem of informants whose information may or may not be sufficient to create 'probable cause' as if there were only two classes: reliable informants whose information has previously been tested by the police and 'all others.' A multitude of cases * * * attest to the fact that information from a citizen who purports to be the victim of or to have witnessed a crime may, under certain circumstances, provide a sufficient basis for an arrest.'
People v. Lewis, 240 Cal.App.2d 546, 549-550, 49 Cal.Rptr. 579, 582, on the same subject, comments as follows:
'In bookmaking and narcotics cases the courts have developed the concept of the 'reliable informant,' which, in that context means a person who has previously given the police information which has been found to be true. By that standard a known criminal, a drug addict, or even an anonymous voice on the telephone may become a 'reliable informant,' upon whose word the police may make warrantless arrests, break in doors and conduct searches. See, e. g., People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1. [p] But experienced stool pigeons are not the only sources of credible information, and the tests of reliability which must be applied to such persons are not necessarily applicable to every citizen who assists the police. [p] Bookmaking and narcotics offenses are crimes which are usually committed in the presence only of the criminals themselves, where there is no innocent victim to complain. The persons most likely to furnish information are themselves criminally involved or disposed, and their reports to the police are generally motivated by something other than good citizenship. Such an informer rarely offers himself as a witness to crimes already committed. His usual function is to supply a tip in confidence whereby the police may witness a crime or uncover evidence of it for themselves. A citizen * * * who reports a crime committed in his presence, is more than a mere informer. He is an observer of criminal activity who, by calling the police, acts openly in aid of law enforcement. [p] Courts have not hesitated to find it reasonable for police officers to act upon the reports of such observers.'
Here the information came from a minor, a person for whom the state has special concern. The law endeavors to protect juveniles from influences which would incline them toward a state of delinquency. (People v. McDougal, 74 Cal.App. 666, 670, 241 P. 598.) Generally their public offenses are not considered criminal in nature and are handled by the juvenile court. There the proceedings 'are in the nature of guardianship proceedings in which the state as parens patriae seeks to relieve the minor of the stigma of a criminal conviction and to give him corrective care, supervision and training.' (People v. Dotson, 46 Cal.2d 891, 895, 299 P.2d 875, 877.)
We do not believe that the juvenile here, as a matter of law, must be placed in the category of the 'stool pigeon' or common police informer as discussed in People v. Lewis, supra, 240 Cal.App.2d 546, 49 Cal.Rptr. 579. Such persons are so frequently motivated by gain, by a desire to curry favor with the police or to exact revenge, or some other ulterior purpose, as to make their unsupported information suspect. Here there is no reason to attribute improper purposes to the boy's cooperation with the police. This rationale was apparently followed by the court in People v. Bishop, 235 Cal.App.2d 658, 45 Cal.Rptr. 533. There a minor girl reported to the police that she had purchased marijuana from the defendant. This information alone was held to establish probable cause for his arrest. It was the function of the magistrate to pass upon the sufficiency of the affidavit. His determination, on the affidavit before him that there was probable cause, should here be respected. (See People v. Stout, supra, 66 Cal.2d 184, 192-193, 57 Cal.Rptr. 152, 424 P.2d 704.)
The order setting aside the information is reversed.
MOLINARI, P. J., and SIMS, J., concur.