Martin v. Superior Court

THE COURT.

By information petitioners and Sam Mendola were jointly charged with possession of marijuana for sale in violation of Health and Safety Code section 11530.5. Petitioners’ motion to set the information aside on the ground that the evidence against them was obtained by an illegal search and seizure was denied, and they now seek prohibition to prevent their trial. (See

Badillo

v.

Superior Court,

46 Cal.2d 269, 271 [294 P.2d 23].)

The record of the preliminary hearing discloses that the only evidence to support the information was obtained by a search and seizure without a warrant at an apartment where Mendola lived when he and petitioners were arrested. The prosecution sought

to

establish probable cause to justify Mendola’s arrest and the search and seizure incident thereto by the testimony of one of the arresting officers. The officer testified that he received information from two informers that Mendola was selling marijuana and had substantial quantities of it at his apartment. From past experience the officer regarded one of the informers as reliable and the other as unreliable. The officer refused to divulge the informers’ identity, however, and petitioners therefore moved to strike his testimony and dismiss the proceedings on the ground that the prosecution had failed to establish that essential evidence was lawfully obtained. The magistrate denied their motion, and thereafter the superior court denied a motion made on the same ground to set the information aside. (Pen. Code, § 995).

In 1958 in

Priestly

v.

Superior Court,

50 Cal.2d 812, 819 [330 P.2d 39], we held that when communications from an informer are relied upon to show reasonable cause to make an arrest and a search and seizure incident thereto, the identity of the informer must be disclosed at the defendant’s request or the testimony as to his communications must be struck. In 1965 the Legislature enacted Code of Civil Procedure section 1881.1

1

to give the magistrate or trial judge in