Lewis v. Superior Court

[103]

DRAPER, P. J.

Upon denial of Ms motion to set aside information charging him with possession of marijuana (Health & Saf. Code, § 11530), petitioner sought prohibition (Pen. Code, § 999a). We issued alternative writ. Validity of search and seizure is the sole issue.

Officer Porni testified at the preliminary examination that his partner, Lawrence, had received information that a “shooting gallery” (the smoking of marijuana) was to take place at an address on Pine Street. Lawrence did not testify, the name of the alleged informer was not given, and there was no evidence to establish his reliability. The two officers drove to the address and parked nearby at about 1:20 o’clock a.m. The bmlding appeared to consist of an upper and lower flat. No lights shone within it. Pour men, one of whom (not petitioner) Porni knew to have served a county jail term at some unspecified time for possession of marijuana, entered the building. The officers called for two more policemen, and the four approached the steps leading to the building entrance. Two of the men who had recently entered came through the front door. An officer called to them, identifying himself as a policeman. One of the men called out “cops”. Both reentered and slammed the door against the police, who promptly broke it in, pursued the two men upstairs, and arrested all four men in the apartment. Search of petitioner, who was not one of the two who had left the building, disclosed a marijuana cigarette in Ms pocket.

There is no evidence to show reliability of the “informant”, and his information thus does not constitute probable cause to arrest or search

(People

v.

Amos,

181 Cal. App.2d 506 [5 Cal.Rptr. 451]). The mere fact that the alleged information was relayed to Porni by his fellow officer adds no element of reliability to the original informant

(People

v.

Harvey,

156 Cal.App.2d 516, 523 [319 P.2d 689] [concurring opinion]).