Ovalle v. SUPERIOR COURT OF CONTRA COSTA CTY.

TOBRINER, J.

This petition for prohibition urges that an arrest without a warrant cannot be based upon the ground that, although the information prompting petitioner’s arrest came from an unknown informer, the fact that the informer was in custody improved his reliability and afforded probable cause for the arrest. We shall set forth our reasons for concurring with this contention of petitioner; we must, however, deny the writ because petitioner himself, as we shall show, interposed objections to testimony which might have disclosed probable cause for the arrest.

On December 2, 1961, Agent McBee and Agent Woishnis of the State Bureau of Narcotics Enforcement and certain members of the Oakland Police Department arrested one Bernadino Flores, for the offense of possession of marijuana. At the time of arrest, the officers found approximately twelve cans of marijuana, plus marijuana cigarettes in his automobile.

Following his arrest, Flores engaged in a conversation with Agents McBee and Woishnis, informing them that he had obtained approximately a kilo of marijuana from petitioner in Richmond about two days prior to his arrest, and stating that petitioner came out of the garage of his residence and handed the marijuana to him wrapped in newspaper. Flores informed the officers that he obtained the marijuana on a consignment basis from petitioner at a cost of $180 and still owed an amount in excess of $100. The agents alleged that Flores supplied them with petitioner’s telephone number. Flores could not recall petitioner’s address but described the house in detail and gave its approximate location. Flores further informed the agents that he understood petitioner to have enough marijuana to last until Christmas and estimated the

[762]

amount to be 20 kilos. Flores also said he had known petitioner in Texas and had been in prison with him.

In addition to the information supplied by Flores, Agent McBee attempted at the hearing to relate certain information that Agent Woishnis had given him, but petitioner prevented the introduction of the evidence. Thus Agent McBee testified: ‘ ‘ additionally prior to this time of having received this information from Mr. Flores I had been advised by Agent Woishnis,” at which point petitioner objected to further testimony.