Stoehr v. Superior Court

California Court of Appeal Sep 7, 1973 No. Civ. 12766Published

Before: Brown (Gerald)

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Holding. The court held that the search warrant affidavit failed to establish probable cause because it lacked sufficient detail to connect the observed narcotics to the residence or to support a reasonable belief that contraband would be found at the time of the search.

Issues

Whether the search warrant affidavit provided sufficient probable cause to justify the search.
Whether the superior court erred in denying the defendants' motions to suppress evidence and to vacate the information.

Disposition. remanded

Quotations verified verbatim against the opinion

“The affidavit’s defect, rather, is it does not furnish probable cause to search. The informant’s information does not give rise to a reasonable belief a search will uncover contraband now, i.e., on the date of the affidavit.”

“The affidavit’s lack of detail forces a magistrate to engage in outright speculation before he can draw the inferences connecting the heroin with the house and that the heroin is still in the house and might be discovered by search.”

Opinion

BROWN (Gerald), P. J.

Corwin and Albert Stoehr petition for a writ of prohibition and/or mandate following the denial of their motions under Penal Code sections 1538.5 and 995 and of their motion to disclose the identity of an informant. The motions were submitted on the transcript of the preliminary examination at which the Stoehrs were bound over to answer charges of possessing controlled substances, marijuana and narcotics paraphernalia in violation of Health and Safety Code sections 11350, 11357 and 11364, respectively. A writ of mandate should issue.

The police found and seized contraband upon which the charges against the Stoehrs are grounded in a search conducted under the authority of a search warrant. The only support for issuing the search warrant was an affidavit signed by a police officer which recited information learned from a confidential informant.

Absent the contraband seized in the search, there was insufficient evidence presented at the preliminary hearing upon which the defendants

[199]

could be bound over for trial. Under these circumstances the validity of the lower court’s orders denying defendants’ motions to suppress and to vacate the information turns upon the sufficiency of the affidavit in support of the search warrant. There was no evidence, nor do the People contend, a warrantless search would have been justified.

In material part, the police officer’s affidavit, dated March 22, 1973, alleges: He was an officer experienced in narcotic investigation; he had reasonable cause to believe a specified single family dwelling contained specified narcotics and paraphernalia; and he had information from an informant whose identity he wished to keep secret for stated reasons. Regarding the reliability of the confidential informer, the officer alleged: “In the course of my duties, I have received information from an informant, hereinafter referred to as ‘XX,’ whom I believe to be reliable for the following reasons. Since I have known XX, he has never given me false or misleading information and XX appears to be a truthful person. XX has given me information in the past that resulted in the arrest for narcotic violations of at least two individuals. Through my investigation and through information received from other law enforcement officers, I have verified that the information given by XX was correct. XX has in the past properly identified heroin to me.” The entirety of the information supplied by the informer is contained in the allegations: “On the 20th day of March, 1973, XX told me the following: That within the past five days XX has been in the above-described residence located at 6833 Central Avenue, County of San Diego, and while at the residence XX saw heroin in the residence.”

Stoehr v. Superior Court

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