People v. Kesey

California Court of Appeal May 4, 1967 No. Crim. 5592Published

Before: Draper

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Holding. The court held that the search warrant was supported by probable cause based on officers' observations of individuals under the influence of narcotics at the residence, and that the information provided in the affidavit was not stale.

Issues

Whether the affidavit for the search warrant provided sufficient probable cause.
Whether the information in the affidavit was stale.
Whether the trial court erred in relying on the testimony of police experts over defense experts regarding narcotic influence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The affidavit amply shows probable cause for issuance of the warrant.”

“The events of April 17 and 20, which by themselves sustain the warrant, were not stale on April 21 when the warrant issued or on April 23 when it was executed.”

“We are to view the affidavit in a commonsense way rather than technically”

DRAPER, P. J.

Charged with possession of marijuana (Health & Saf. Code, § 11530), defendants waived jury trial. The court found both guilty, and admitted them to probation on condition they serve 6 months in county jail. Both defendants appeal.

Acting under a search warrant, officers entered defendant Kesey’s residence, located in a wooded area in La Honda. Many visitors were present. One officer entered the bathroom. As another approached, the door was slammed in his face, and he heard sounds of a scuffle. He entered the room, and saw appellant Browning choking the first officer, while appellant Kesey was on his knees attempting to dump the contents of a jar into the toilet. The jar contained marijuana, and quantities of that substance were found elsewhere in the premises. It is apparent that the evidence fully sustains the conviction, and no contrary contention is made here.

Rather, appellants attack the validity of the search warrant. They contend, in part, that the affidavit for the warrant is insufficient on its face. We cannot agree. The affidavit states that: the officer making it had participated in surveillance of the Kesey residence on 6 occasions from October 1964 to April 1965; on the night of April 17, the officers saw some 15 vehicles parked in front of the residence, and observed six

[671]

persons who appeared to be under the influence of a narcotic leaving it; on April 20, a like number of cars was parked, and the officers saw two men, both apparently under the influence of narcotics, one of whom had just left the Kesey residence, and another who was pushing an automobile registered to Kesey; on the same night, they saw on the premises four other persons who either appeared to be under such influence or were known users or possessors of narcotics.

A search warrant may be issued by a magistrate only upon probable cause (U.S. Const., 4th Amend., Cal. Const., art. I, § 19; Pen. Code, §§ 1523, 1525). This test is met if the affidavit avers competent evidence sufficient to lead a reasonably prudent man to believe that there is a basis for the search

(People

Prieto,

People v. Kesey

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DRAPER, P. J.

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