Petition — Manning v. California

Tr. Court, U.S.

‘ILED

8 0-267

AUG15 1989

!

IN THE MICHAEL RODAK, JR, CLERK

Supreme Court of the United States

Ped ected iedcaks MI (oc setcs sascctisoacen

__TEERTIAL Se Nags eh A Pa aE on Neen

JAMES P. MANNING,

Petitioner,

VS.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

MARY EMERY, Esq.

Attorney at Law

38 West Santa Clara Street

San Jose, California 95113

Telephone (408) 287-3518

Attorneys for Petitioner.

SPARTAN PRINTING COMPANY, SAN JOSE, CA 95110, (408) 293-3183

QUESTIONS PRESENTED FOR REVIEW

1. Was the information contained in the affidavit

in support of the search warrant at issue herein in-

sufficient to support the warrant in that the informa-

tion was stale, being 13 days old, and no probable cause

existed on November 8, 1978, to believe that contraband

would be found at Petitioner’s address?

2. Did the Magistrate improperly consider uncor-

roborated and unreliable statements by Petitioner’s

Co-Defendant in issuing the said warrant, and absent

said statements, was the remaining information in-

sufficient to give the Magistrate probable cause to

believe that contraband was present at Appellant’s

address?

TOPICAL INDEX

page

III, °71is ds aves ashsonnaedanrasmianinetdisiasblodeeieeitiesbeetaieseenises <teiabhehiie 2

Constitutional Provisions Involved. .................:::cccseeseeeeeeeeeeeees 2

Questions Presented for Review. .............-ccs0s0--ssscssssssssssvesseasess 3

IE IO NE ID sos bili tifethecincenvssacsavechaccoersoavsvbianads bien b

peemods Tor Gremes the WER. .........2000cccccsscevscversnscssenssessctisens 6

A. Delay in Preparation of the Affidavit in Support of

the Search Warrant Made it Unreasonable to Con-

clude Probable Cause Still Existed to Search Peti-

ARN i NER a csc leiicicsec. « océscdincerensacemenatanenians 6

B. The Affidavit is Insufficient Because it Lacked

Facts from Which the Magistrate Court have Rea-

sonably Concluded That the Information was Cred-

ible or His Information Reliable. ..............00.0.00.00........ 17

| ERIERION ha GREER RRP Nee ty I ION me 1 HA 25

IT IE TION oa seiniecah avcacsivsosulesigu abeotecnpgeguaistiinactabi elias 26, 27

Opinion of the Court of Appeal of the State of California,

SONNE PUM CRMOOUIIG, yoiaacuneecosstvnrnndinsanassunccuriten Appendix A

Affidavit in Support of Search Warrant. .................... Appendix B

ATIF URINE, i. 505:::studasussabosencepaadonsionsaeactecneoniovnic iva Appendix C

TABLE OF AUTHORITIES CITED.

Cases

page

Aguilar vs. Texas, 378 US 108, 114-115 (1964) ........0......... 17, 19

Alexander vs. Superior Court, 9 Cal. 3d 387, 393 (1973) ...... 8

Bastida vs. Henderson, 487 F. 2d 860, 864 (5th Cir. 1973) ..... 13

Commonwealth vs. Eazar, 312 A. 2d 398, 400 (1973, Penn.

BNI TMG I | ous .cchonsdtisanhseteosesaeeniate amen sgibiaiinacibe Nantes caneauak 14

Commonwealth vs. Jackson, 337 A. 2d 582, 585 (1975, Penn.

BN FRING sik: dccdcnreracstpthncnctaesek tatkgsaabladareeedecissdooslnanleiidiapatiaees 14

Commonwealth vs. Novak, 335 A. 2d 773, 776 (1975, Penn.

BCID. s:isicisavsd as sandgneniacsscieaaliniceontious oneatetaee cue erae 14, 15

Durham vs. United States, (9th Cir. 1968) 403 F. 2d 190,

RA Wc cased lcieianseaea sa uuabsentonh RAT AOS F RAMONE PoE OL 8

Ming vs. Superior Court, 13 Cal. App. 3d 206, 213 (1976) .. 18

People vs. Hernandez, 45 Cal. App. 3d 581, 586 (1974) ........ 9

People vs. Lara, 67 Cal. 2d 365, 374-375 (1967) 0.000.200.0000 18

People vs. Schulle, 51 Cal. App. 3d 809, 819 (1976) ...0....0..... 18

People vs. Scoma, 71 Cal. 2d 332, 338-339 (1969) .......0.0000.. 20

People vs. Scott, 259 Cal. App. 2d 268, 277-278 (1968) ........ 10

People vs. Sheridan, 2 C.A. 3d 483, 490 (1969) 0.00... 8

People vs. Siemieniec, 118 N.W. 2d 430, 431 (1962, Sup. Ct.

BE PII in chick! <cithcdeontandecsddc aaacpabebcbabigameascioveiseediataieigatsaaeaiie 15

People vs. Smith, 17 Cal. 3d 845, 851 (1976) 00.0... 18, 21

People vs. Talley, 65 Cal. 2d 830, 835-836 (1967) ................ 18

People vs. Willson, 268 C.A. 2d 581, 588-589 (1968) .......... 10

People vs. Wright, 116 N.W. 2d 168 (1962, Sup. Ct. of

a a a a at 15

Rider vs. United States, 355 F. 2d 192 (Sth Cir. 1966) .......... 12

Sgro vs. United States, 287 US 206, 210 (1932) ..........02..2.2... 6, 8

United States vs. Brinklow, 560 F. 2d 1004, 1006 (10th Cir.

UN UE > ecteslichiasanstidhitaldabsicanssas idence debe alulicg dactuaabdasnciit Mappa dabei, 13

TABLE OF AUTHORITIES CITED (continued)

Cases

page

United States vs. Evans, 552 F. 2d 1119, 1121-2 (5th Cir.

ge ERIS AMES ITNS SRIRIED cel SAVERS Soot Pe CNTY Oa SEER 9, 14

United States vs. Guinn, 454,F. 2d 29 (5th Cir. 1972) .......... 12

United States vs. Hyde, 574 F. 2d 856, 865-6 (5th Cir. 1978) 14

United States vs. Steeves, 525 F. 2d 33, 36 (8th Cir. 1975).... 13

United States vs. Ventresca, 380 US 102, 111 (1965) ............ 18

United States vs. Wenrich, 586 F. 2d 482, 491-2 (5th Cir.

PS oe ee ao Lk gee ar 12

Willson vs. Superior Court, 46 Cal. 2d 291, 294-295 (1956) 18

Statutes

Seen UII CII i ica each cvs arannssnaconsspubangenhaban 5, 6

a SUNN TUNE SN URN PD gcoenccnevnshesibcsndtscoeveevincdonccuntteten 2

Other Authority .

United States Constitution

EERE SASSER SREP NY SLR MAUSY AOR EE ST 2

OER A LTR 2

IN THE

Supreme Court of the United States

cesntliassmiaausetidcae Se

RA ke

JAMES P. MANNING,

Petitioner,

vs.

THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

2

JURISDICTION

Jurisdiction of this Court is invoked under 28 USC

§$1257(3), and the Fourth and Fourteenth Amend-

ments to the United States Constitution.

Petitioner’s Petition for Hearing to the California

Supreme Court was denied without opinion on June 18,

1980. Petitioner was originally sentenced on May 11,

1979, filed a Notice of Appeal on May 18, 1979, and

has been in the process of pursuing his state remedies

until a final denial of the hearing on June 18, 1980.

CONSTITUTIONAL PROVISIONS

INVOLVED

The Fourth Amendment to the United States Con-

stitution:

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and par-

ticularly describing the place to be searched, and

the persons or things to be seized.”

as applied to the states by the Fourteenth Amendment

(Section 1) to the United States Constitution:

“Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall make

or enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

3

QUESTIONS PRESENTED FOR REVIEW

1. Was the information contained in the affidavit

in support of the search warrant at issue herein in-

sufficient to support the warrant in that the informa-

tion was stale, being 13 days old, and no probable cause

existed on November 8, 1978, to believe that contraband

would be found at Petitioner’s address?

2. Did the Magistrate improperly consider uncor-

roborated and unreliable statements by Petitioner’s

Co-Defendant in issuing the said warrant, and absent

said statements, was the remaining information in-

sufficient to give the Magistrate probable cause to

believe that contraband was present at Appellant’s

address?

STATEMENT OF THE CASE

A warrant to search defendant’s residence at 1882

Vallejo Drive, San Jose, California, was issued on

November 8, 1978. It was based on an affidavit ex-

ecuted by Agent Lofgren on the same date. By the date

the warrant was issued, 13 days had passed since the

most recent observations contained in the affidavit had

been made.

The relevant details of the affidavit follow:

1. On October 20, 1978, Affiant telephoned Peti-

tioner’s eventual Co-Defendant, MICHAEL MAR-

ASTI, from whom he had made a single previous pur-

chase of cocaine on October 17, 1978. Lofgren talked

to MARASTI about making a purchase of cocaine.

MARASTI stated that he had seen a pound of cocaine

in his “connection’s” house on October 20, 1978, and

4

that he and his connection were available for business -

during the morning hours.

2. On October 26, 1978, Lofgren arranged to meet

with MARASTI. They met later that same day at a

parking lot in San Jose, California. MARASTI stated

that there were several “grades” of cocaine available;

Lofgren told MARASTI which drugs he wanted to

buy. MARASTI left, stating that it would take fifteen

minutes because his connection lived a couple of blocks

away.

3. Other undercover police officers followed MAR-

ASTI from the parking lot to 13882 Vallejo Drive, and

then from the Vallejo Drive address back to where Lof-

gren was waiting. The affidavit does not indicate any

observation of petitioner, or any statement as to what

occurred within the 1382 Vallejo Drive residence.

4, When MARASTI returned to the parking lot, he

sold some cocaine to Agent Lofgren. After the transac-

tion, officers followed MARASTI back to the Vallejo

Drive address.

5. Lofgren made the affidavit in support of the

search warrant on November 8, 1978, thirteen days

after his last contact with MARASTI, and thirteen

days subsequent to the sole date of observations which

connected Marasti’s behavior with the Vallejo address.

The search warrant was executed on November 9,

1978, and Agent Lofgren filed a return to search war-

rant on November 14, 1978, attaching a list of 41 items

seized from defendant MANNING’S home, at 1382

Vallejo Drive. These items, which included cocaine and

cocaine paraphenalia, Appellant moved to suppress.

5

On December 12, 1978, defendant MANNING filed

a motion to suppress evidence pursuant to California

Penal Code Section 1538.5. This motion was heard on

February 13, 1979, before the Honorable Homer B.

Thompson. The search warrant and affidavit in sup-

port thereof were the sole exhibits at the hearing, and

no testimony was introduced. The affidavit submitted

by Agent Lofgren is set forth at length in Appendix B

hereto. The search warrant is set forth at lentgh in

Appendix C hereto.

On February 14, 1979, the Court denied defendant’s

motion in writing as follows:

“The motion by said defendant pursuant to Penal

Code Section 1538.5, to suppress evidence, obser-

vations, and fruits, including cocaine, scales,

wrapping~materials, money, and other physical

evidence is hereby denied.”’ .

Subsequently, petitioner MANNING changed his

plea to guilty and was sentenced. Under the provisions

of California Penal Code Section 1538.5, his right to

appeal the determination of his motion to suppress was

preserved.

Petitioner appealed and California’s Court of Appeal,

First Appellate District, Division Two, affirmed the

lower court on April 25, 1980. Its unpublished opinion

is attached hereto. Petitioner’s petition for hearing to

the California Supreme Court was denied without

opinion on June 18, 1980.

Petitioner raised these issues in a proper and timely

fashion. They were first raised by a motion to exclude

evidence at the Preliminary Hearing conducted No-

vember 30, 1978 and December 1, 1978, and following

6

this a Motion to Suppress under California Penal Code

Section 1538.5 was filed and heard. Both motions

raised the issues presented herein.

REASONS FOR GRANTING THE WRIT

The writ should be granted in this case to resolve the

issues of staleness.

This issue has not been squarely faced since Sgro vs.

United States, 287 US 206, 210 (1982). Opinions of

lower courts vary widely, as will be seen in the

cases cited below. Furthermore, Certiorari should be

granted to review the issue of when police are entitled

to rely on statements made by an untested party per-

sonally involved in a crime.

A. Delay in Preparation of the Affidavit in

Support of the Search Warrant Made

it Unreasonable to Conclude Probable

Cause Still Existed to Search Petitioner’s

Residence.

The information given to the Magistrate by Affi-

davit on November 8, 1978, showed that Agent Lofgren

had conducted two transactions with MARASTI. He

purchased one ounce or less of cocaine on October 17,

1978, and October 26, 1978.

The affidavit is silent as to any connection between

the transaction on October 17, 1978, and the searched

residence. On October 20, 1978, MARASTI told Lof-

gren on the phone that he had seen in excess of one

pound of cocaine at his unidentified ‘“connection’s”

place and that they were available during the morning

hours if Agent Lofgren wanted to purchase cocaine.

7

On October 26, 1978, MARASTI offered Agent Lof-

gren a choice of three grades of cocaine. He left Lof-

gren, indicating he would be back in about fifteen

minutes because his connection lived only a couple of

blocks away, was followed to 1382 Vallejo Drive, re-

turned, and sold Lofgren some more cocaine.

The affidavit is utterly silent as to any further con-

tacts or transactions by Lofgren or other officers with

MARASTI or the Vallejo Drive address between

October 26, 1978, and November 8, 1978, when Agent

Lofgren finally got around to filing his affidavit and

obtaining a search warrant. Neither the affidavit nor

the hearing before Judge Thompson contained any in-

formation tending to excuse or explain this thirteen

day delay. Under these circumstances, given the pros-

ecution’s sole ability to produce such testimony, it must

be assumed that there was no excuse other than sheer

failure to act promptly.

MARASTI does not describe or identify the ‘“con-

nection” or “supplier” on any occasion, nor does he

specify the supplier’s location. The affidavit contains

no information from which it can be concluded that the

supplier or connection to whose home MARASTI says

he is going is the same supplier or connection to whom

MARASTI referred in the October 20th conversation.

Although Agent Lofgren recites a great deal of experi-

ence in the undercover purchase of narcotics, he does

not state his opinion or belief based on the transactions

or his experience in the field that MARASTI was deal-

ing with only one supplier or that the unidentified per-

son referred to on the 20th and the 26th of October was

the same person.

8

Furthermore, the affidavit is silent on any facts

from which it could definitely be concluded that the

address visited by MARASTI was a place where co-

caine was located or that the occupants of the house

knew of its presence. Given the amounts purchased on

October 26, 1978, MARASTI could have had the co-

caine in his pocket, his glove compartment, or under

his seat. The cocaine could also have been contained in

a parcel left by MARASTI at the Vallejo Drive resi-

dence without informing the residents of the house of

its contraband nature.

To uphold the Magistrate’s issuance of a search war-

rant, the court must find that the Magistrate properly

concluded from the affidavit that cocaine or drug sales

paraphernalia would be present at the Vallejo Drive

address thirteen days after the single transaction con-

nected in any way to that residence.

The California Supreme Court stated in Alexander

vs. Superior Court, 9 Cal. 3d 387, 393 (1973):

“As a general rule, information is stale, and hence

unworthy of weight in the Magistrate’s considera-

tion of an affidavit, unless the information con-

sists of ‘facts so closely related to the time of the

issuance of the warrant as to justify a finding of

probable cause at that time.’ Sgro vs. United States

(1932) 287 U.S. 206, 210; accord People vs. Sheri-

dan (1969) 2 C.A. 3d 483, 490... ‘the length of

time lapse alone is not controlling since even a

brief delay may preclude an inference of probable

cause in some circumstances, while in others a

relatively long delay may not do so.’ Durham vs.

a (9th Cir. 1968) 403 F. 2d 190, 194

The passage of time erodes the basis for reasonable

belief that the situation set forth in the affidavit con-

9

tinues to exist. Many cases have attempted to deal with

this problem, and commentators have sometimes

ranked the cases based on the number of days involved

in the delay. However, a close review of those cases

show that, as stated in Alexander, supra, each case

turns on the entire body of facts made known to the

Magistrate. The actual amount of delay must be con-

sidered in light of the precision and specificity of the

information known to the police, whether it can be

deduced from that information that the possession of

the contraband or evidence is likely to be continuing,

and whether there is any reason for the delay.

Thus, the instant case calls for an evaluation of the

information in the affidavit which would lead a rea-

sonable Magistrate to believe that contraband would

probably be found on the premises thirteen days after

the only transaction connected with that residence.

This evaluation must be made in light of the nature of

the crime being investigated. While a particular delay

might not vitiate earlier existing probable cause in the ~

case of goods difficult to dispose of or likely to be re-

tained, the same delay in a case such as this one, involv-

ing the ephemeral business of narcotics sales, destroys

any probable cause which might have existed on Octo-

ber 26, 1978. See U.S. v. Evans, 552 Fed. 2d 1119,

1121-2, (5th Cir. 1976) “... transient quality of mari-

Oca.”

These matters were further discussed by Justice

Kaus in People vs. Hernandez, 45 Cal. App. 3d 581, 586

(1974):

“The freshness of the information on the basis of

which a warrant is sought and obtained is one of

the factors which determine whether there is a

10

robable cause to believe that the articles covered

y the warrant will be found at the place that is to

be searched. In People vs. Scott, 259 Cal. App. 2d

268, 277-278, there was a seven day delay between

the last piece of information and the affidavit;

however, there was only a four day delay from

the date that the contraband was to be found at

the location until the affidavit was prepared.

Moreover, the warrant was directed at a residence

known to be that of the suspect. (id. at p. 272.)

Similarly, in People vs. Willson, 268 C.A. 2d 581,

588-589, the transaction was observed some four-

teen days before the affidavit was submitted ; how-

ever, when the officer later phoned the residence—

as here, not listed to the suspect—he was told that

the suspect was out of town and would return in

a few days, thus justifying both the delay in apply-

for the warrant and the inference that the suspect

would continue to be at an address not specifically

known to be his home.”

As indicated, delays ean be justified by intervening

factors. These cases contrast starkly with the instant

case, where there was no information as to a future

date when contraband would be located at the premises,

and the police made no further investigation which

would have justified them in waiting to obtain and

execute a warrant.

In Hernandez the magistrate was told of an inform-

ant who had dealt with a named individual on numer-

ous occasions. The informant had regularly called the

phone number of a specified apartment, talked to

Ochoa, arranged to purchase narcotics, and purchased

narcotics from Ochoa. The information was confirmed

by having the informant conduct such a transaction.

The phone call was overheard and the transaction ob-

served by police. Thus, unlike the instant situation,

11

there was definite information of a lengthy course of

dealings by Ochoa from the specified apartment.

If the Hernandez affidavit wresented “few useful

data to predict how long Ochoa would continue to sell

from the Lynfield Avenue apartment ...”, the instant

case presents even less. Here we have some statements

made by a cocaine dealer in the course of a transaction

referring to an unspecii'ed “connection,” and one trip

by the dealer to an observed residence, after which the

dealer was found to be in possession of cocaine. No

fact stated in the affidavit establishes that MARASTI

used this house as a starting point or storage point for

cocaine on more than one occasion. The facts stated in

the affidavit do not establish that the cocaine was ob-

tained at this residence even on October 26, 1978. One

could speculate that MARASTI went to the residence

to pick up drugs, but other possibilities also suggest

themselves. Unlike Hernandez, the police had not

listened to a direct contact with a known seller of con-

traband made at the residence. Based on all of these

factors, it is apparent that the twelve day delay held

in Hernandez to be “‘on the fringe of unreasonableness”

was justified by additional facts not present in the in-

stant case. The delay here is a day longer and the facts

relating to the location to be searched are much sparser.

Thus the information presented to the Magistrate did

not rise to the level of probable cause and the warrant

was improperly issued.

Even if MARASTI’S statements are included in the

warrant information, police had no information of

past dealings at the Vallejo address. They knew of only

one instance where a visit was made to the address

shortly before sale. Even in MARASTI’S statements,

12

there is nothing to indicate that his “connection” regu-

larly kept cocaine or cocaine sale paraphernalia at his

home. Presented to the Magistrate thirteen days later,

this information was simply too attenuated to allow

the Magistrate to conclude that regular dealings were

being conducted at that address, such that thirteen

days later there would still be contraband on the

premises.

Both state and federal courts have frequently con-

sidered the issue of staleness. In this regard, United

States vs. Wenrich, 586 F. 2d 482, 491-2 (5th Cir.

1978), contains a recent statement on the subject:

“Out of date information as to a single transac-

tion could be seen to describe no more than an

isolated event in the past. Such an affidavit would

not create probable cause to believe that similar

or other improper conduct is continuing to occur.

On the other hand, information which demon-

strates a chain of related events covering a broad

span of time continuing to current period may

furnish a most reliable indicia of present activity,

thereby clearly demonstrating that probable cause

exists...”

One of the factors focused on by federal courts has

been whether the items sought were disposable or move-

able. Rider vs. United States, 355 F. 2d 192 (5th Cir.

1966), approved a search despite the fact that the war-

want did not specify the date of the relevant observa-

tion. The Rider court focused on the “semi-permanent

structure of distillery...” as justification for belief by

the magistrate that the affidavit showed present prob-

able cause. In accord was U.S. vs. Guinn, 454 F. 2d 29,

(5th Cir. 1972), in which the court stated:

“The situation would be different had the search

revealed removable gambling paraphernalia about

13

which no recent information was contained in the

affidavit.”

The Guinn court approved the search because the mat-

ter searched for was the immobile license or identifica-

tion number on a house trailer.

Federal courts have also focused on whether items

were incriminating, consumable, or disposable. In U.S.

vs. Steeves, 525 F. 2d 33, 36 (8th Cir. 1975), the court

noted:

“Obviously, a highly incriminating or consumable

item of personal property is less likely to remain

in one place as long as an item of property which

is not consumable or which is innocuous in itself

or not particularly incriminating.”

In approving a relatively long delay U.S. vs. Brinklow,

560 F. 2d 1004, 1006 (10th Cir. 1977), stated:

... The articles in controversy were items which

could reasonably be expected to be kept in the

motor home for extended periods of time... Each

item was designed for long term use and was likely

still to be functional. Each had been seen inside

the motor home within the last year, was logically

tied to the vehicle by the purpose it served, and

was likely to be kept there. None of the items

was contraband or inculpatory per se or likely to

be disposed of for any other readily apparent

reason.”

In summarizing the opinions of the various circuits,

Bastida vs. Henderson, 487 F. 2d 860, 864 (5th Cir.

1973) stated:

“The Circuits hold that where an affidavit recites

a mere isolated violation then it is not unreason-

able to believe that probable cause quickly dwin-

dles with the passage of time. On the other hand,

14

if an affidavit recites activity indicating pro-

tracted or continuous conduct, time is of less sig-

nificance.”

See also U.S. vs. Evans, 552 F. 2d 1119, 1121-1122

(1976), in which the court refers to the “... transient

quality of marijuana...” and U.S. vs. Hyde, 574 F.

2d 856, 865-6 (5th Cir. 1978), where the court referred

to the waning probable cause which occurs over time

with “... tangible objects which can be quickly carried

off...” but approved the warrant because “... the

evidence clearly shows a long standing, ongoing pat-

tern of criminal activity.”

Among state courts, the Pennsylvania courts have

devoted careful analysis to this problem. They have

required more than an impression or conclusion on the

part of the officer or magistrate that a particular

crime normally is continuing:

“A police officer’s unsubstantiated impression that

a particular crime is of the sort which usually is

continuing is not sufficient; nor may a magistrate

issue a warrant upon such an impression.“ Com-

monwealth vs. Eazer, 312 A. 2d 398, 400 (1978,

Penn. Supreme Ct.)

Commonwealth vs. Jackson, 387 A. 2d 582, 585 (1975,

Penn. Supreme Ct.) explicates this further, requiring

that “... evidence to demonstrate continued criminal

activity must establish actual continuity of the illegal

enterprise.” [Emphasis by the court]

Pennsylvania courts have also stressed the ephemeral

nature of narcotics being held for sale:

“The items in this case... were narcotics being

held for sale, and it was likely that such items

would be quickly disposed of.” Commonwealth vs.

15

ee 335 A. 2d 773, 776 (1975 Penn. Supreme

he

Michigan Courts have also addressed these matters.

In People vs. Siemieniec, 118 N.W. 2d 430, 431 (1962,

Sup. Ct. of Mich.), a warrant was issued four days

after a direct observation by an officer who had seen

appellant sell illegal liquor. The court held that

“... such sale alone afforded no ground for a finding

of reasonable cause to believe that on September 17,

four days later, she was continuing to do so...” The

court went on to note that “... there was nothing in

the affidavit presented in this case to indicate that acts

observed on Sepember 13, continued to occur on Sep-

tember 17.’ The search was ruled illegal and the evi-

clence suppressed.

In another Michigan case, People vs. Wright, 116

N.W. 2d 168 (1962, Supreme Ct. of Mich.), the magis-

trate was given direct evidence by affidavit from a per-

son who had entered defendant’s premises, purchased

alcoholic liquor, observed others doing the same, and

observed gambling on the premises. Despite the fact

that this obviously described a regularly conducted

business, a search warrant for this location issued six

days later was found to be inappropriate and the evi-

dence turned up by the search was suppressed. The

court stated that the lower court “... had nothing be-

fore him on which he could conclude that the situation

disclosed by Powell’s affidavit to have existed on Feb-

ruary 18th continued to exist during the intervening

period to the date [February 24th] request was made

for issuance of the search warrant.”

The nature of the information presented to the

Magistrate, in conjunction with the length of the delay,

16

determines whether the information is so stale as to de-

prive the Magistrate of probable cause to believe that

the contraband or evidence will be found on the partic-

ular premises. Most, if not all, of the factors discussed

by the decisions cited above show that the information

in this case was too stale to justify a warrant. These

factors can be summarized as follows:

1. The nature of the substance sought: In this

case cocaine is not only easily transferable, re-

movable, or disposable, but constitutes highly in-

criminating contraband, the mobility of which has

been noted by a number of courts.

2. The evidence of a continuing operation at

that location: Here, such evidence is merely the

assumption of the police officer and Magistrate,

condemned in Eazer and Jackson, both supra.

These cases show that an assumption that because

narcotics are involved the operation continues at

a particular location is unjustified.

3. Whether the affidavit shows an isolated

transaction or a continued and long standing pat-

tern of operation: In this case only one transaction

and a few salesman’s statements connect the loca-

tion searched with any trafficking in narcotics. In

light of the fact that the evidence was equally con-

sistent with an interpretation that this was a one

time location, an accommodation location, an un-

witting storage point for narcotics, or simply a

location that MARASTI visited while already hav-

ing the narcotics on him, it must be seen that the

only evidence relates to an isolated transaction.

There simply is no showing of the kind of long stand-

ing pattern of criminal operation or the kind of semi-

17

permanent location of immobile equipment that has

allowed courts to justify delays in other cases. Rather,

the best that can be said for the prosecution’s case is

that on a single day a person involved in a narcotics

transaction with an undercover officer went to the

home under suspicious circumstances, and might have

obtained narcotics there. When an affidavit is pre-

sented thirteen days later, the intrusion into the pri-

vacy of a home is simply not justified based on the

mere suspicion which arose from this isolated transac-

tion. Therefore, the warrant should not have been

granted.

As shown by the opinions cited, this case is ripe for

U.S. Supreme Court intervention with definite stand-

ards and a definite statement of the applicable law.

The Petition for Certiorari should thus he granted.

B. The Affidavit Is Insufficient Because It

Lacked Facts From Which The Magis-

trate Could Have Reasonably Concluded

That The Informant Was Credible Or

His Information Reliable.

The affidavit in support of a search must fulfill the

requirements of the Fourth and Fourteenth Amend-

ments as outlined in Aguilar vs. Texas, 878 U.S. 108,

114-115 (1964). Otherwise, matters seized under the

search warrant must be excluded as evidence.

It is well settled law that information provided by

an informant of unknown reliability is insufficient to

establish probable cause, unless the information is in-

dependently corroborated in essential respects by such

facts, sources, or conclusions as would justify the con-

18

clusion that reliance on the information was reason-

able. People vs. Talley, 65 Cal. 2d 830, 835-836 (1967) ;

People vs. Lara, 67 Cal. 2d 365, 374-375 (1967).

It should be noted at the outset that Co-defendant

MARASTI was an untested informant and did not

satisfy any of the criteria which have been established

by the courts as sufficient to deem the informant reli-

able. While the credibility of an informant may be

established by including in the affidavit the identity,

status, or position of the informant or information he

has provided in the past, the affidavit before this Court

is devoid of any such information. Nowhere in the pres-

ent affidavit is there a suggestion of the “good char-

acter and reputation of the declarant,” characteristics

which may be sufficient to justify a finding of credi-

bility. Willson vs. Superior Court, 46 Cal. 2d 291, 294-

295 (1956). Nor is MARASTI claimed to be a police-

man, doctor, or lawyer, each of which is considered

per se credible because of the trust placed in his office.

(See e.g., U.S. vs. Ventresca, 380 U.S. 102, 111 (1965).

MARASTI cannot be considered a citizen informant,

which is another classification judicially recognized

as inherently credible. “In the citizen informer cases,

credit is given to the hearsay statement because of lack

of any circumstances which would cast doubt on the

integrity or motivation of the informant.” (Ming vs.

Superior Court, 13 Cal. App. 3d 206, 213 (1976).) So

it follows that “persons criminally involved or disposed

are not regarded as citizen informants because they

are generally motivated by something other than good

citizenship.” (People vs. Smith, 17 Cal. 3d 845, 851

(1976); and People vs. Schulle, 51 Cal. App. 3d 809,

814-815 (1975).)

19

The affidavit by Agent Lofgren also lacked refer-

ence to any prior police experience with MARASTI or

any successful “track record” of situations where

MARASTI provided information which led to arrests

or convictions or which later proved to be correct. The

informer who is living on the fringes of criminal life

faces more demanding requirements before he can be-

come credible: The affiant must state that the inform-

ant has given information in the past which proved

reliable. (See, e.g., Aguilar vs. Texas, 378 U.S. 108

(1964), where the informant previously had given in-

formation resulting in three persons being held to

answer at a preliminary hearing.) Thus, there are no

grounds for finding the informant credible in general,

and the very fact that he is involved in criminal ac-

tivity, as suggested in the previous cases, militates

against his accuracy in the absence of some recognized

criteria of credibility.

It is clear that there was nothing from which it

could have been concluded that informant MARASTI

was reliable or credible. His statement alone would fail

to establish probable cause for the issuance of a search

warrant unless MARASTI’S information was suffi-

ciently corroborated by other facts or events. Thus we

turn to a consideration of whether MARASTI’S state-

~ ments were adequately corroborated, such that Agent

Lofgren had reasonable grounds for relying on the in-

formation. This involves a consideration of what is

known as the “second prong” of the Aguilar test, i.e.,

whether the information was reliable.

The fact that Agent Lofgren had previously on

October 17, 1978, made one purchase of cocaine from

MARASTI and that MARASTI on October 26, 1978,

20

consummated a second sale of cocaine to the officer, is

inadequate to establish the reliability of the inform-

ant’s information. This point is congently made in

People vs. Scoma, 71 Cal. 2d 332, 338-339 (1969).

In Scoma the prosecution contended that an uniden-

tified informant with no past police experience could

be corroborated by the fact that narcotics were found

in the informant’s possession, that the informant’s

wallet contained a narcotics price list which he said

he had furnished to defendant, and that defendant’s

name and telephone number was obtained from the in-

formant’s wallet. The court stated:

“The foregoing facts provide absolutely no basis

upon which the Magistrate could reasonably con-

clude that the informant’s report of illegal activity

on the part of ‘Dewey’ was reliable information.

Surely the fact that the informant was found to

possess narcotics ale no credence to his assertion

that he obtained them from one person rather than

another. Of no greater assistance is the fact that

‘Dewey’s’ past and present addresses were those

provided by the informant; again no inference of

criminal activity on ‘Dewey’s’ part may be drawn.

[Emphasis supplied by the Court] ...

Equally without value in assessing the reliability

of the incriminating information provided by the

juvenile are the notes and lists obtained from his

wallet. Granting that the lists and notes might

have been written before the informant was ap-

prehended or knew that he was going to be inter-

viewed by police, this would show at most only

that the informant possessed a narcotics price list

and that the name and telephone number of the

person he accused of illegal activity appeared

‘among others’ on a list in his wallet. It cannot

reasonably be maintained that the list of names

and telephone numbers supported the informant’s

21

accusation of ‘Dewey’ any more than it would have

i ggg his accusation of any other person on

that list.

Thus it appears that none of the facts in the

affidavit provide corrobative support for the in-

former’s accusation of illegal activity on the part

of ‘Dewey.’ ... The affidavit contains absolutely

nothing to indicate that additional facts inde-

pendently known or discovered by the police sup-

ported the accusation thereby imparting credit to

the informant.” (71 Cal. 2d at p. 339-340.)

In People vs. Smith, 17 Cal. 8d 845, 853 (1976), sim-

ilar particularity was required in the confirmation of

information supplied by an untested informant. In

Smith the informant provided information which fell

into two categories: (1) Information relating to the

location and contents of a paper bag placed in an apart-

ment house trash can, indicating that it contained nar-

cotic debris; and (2) Information relating to the

observations of the informant while inside an apart-

ment served by the trash receptacle, stating that large

quantities of narcotics and sales paraphernalia were

present in the apartment.

Despite the Smith informant’s complete corrobora-

tion as to the location and contents of the bag in the

trash can, the Smith court went further in its analysis

to require some facts corroborating a connection be-

tween the bag in the trash receptacle and the apartment

in question before the second category of information

supplied by the informant, that relating to the activity

in the apartment, could be considered corroborated.

Without this, the Smith court held that the informant’s

statements about what went on in the apartment were

insufficiently corroborated and that the second prong

“@e

22

of the Aguilar test was not satisfied—the credibility

of the informant or the reliability of the information

had not been established.

It is submitted that the Court must examine state-

ments attributed to Co-Defendant MARASTI in Agent

Lofgren’s affidavit with care. MARASTI’S state-

ments, as related in Lofgren’s affidavit, are as follows:

1. “That on October 20, 1978, he had been in

his connection’s residence and had personally ob-

served well over one pound of two types of co-

caine.”

2. “He and his connection were available during

the morning hours for the purchase of cocaine. . .”

in San Jose (stated on October 20, 1978).

3. “... There were three grades of cocaine

available from his supplier.”

4, “... It would take about fifteen minutes as

his connection lived only a couple of block away.”

(Both 3 and 4 stated during narcotics transaction

on October 26, 1979.)

The affidavit never indicates that MARASTI iden-

tified his supplier or “connection” in any fashion.

There was no discussion between MARASTI and Lof-

gren of whether MARASTI operated through more

than one supplier, the method of delivery, the continu-

ing nature of MARASTI’S or the supplier’s activities,

or of anything else relating to the continuity of a drug

operation. The sole clue set forth which connected these

remarks with Defendant and Appellant MANNING

was the fact that on October 26, 1978, the agents fol-

lowed MARASTI to the Vallejo Drive residence occu-

23

pied by Defendant MANNING both during and after

the narcotics transaction which occurred on that date.

MARASTI’S mere possession of cocaine or sale of it

to the officer provided no corroboration of his other

allegations directed to the location of the source, or the

identity of the supplier, or the nature of the supplier’s

operation. These allegations, to the extent they did con-

nect plaintiff MANNING or his residence, are required

to be corroborated in some other independent fashion

before the information can be deemed reliable.

The People contended in the trial court that the reli-

ability of MARASTI’S statements and their inherent

trustworthiness was established by the fact that they

were against MARASTI’S penal interest. The People

dropped this argument in their brief on appeal and

instead argued only that the reliability of MARASTI’S

information was established through corroborating

police observations. The Appellate Court in its decision

therefore did not reach or address the question of

whether MARASTI’S reliability was established be-

cause his statements were against his penal interest.

Rather, the Appellate Court accepted the People’s ar-

gument that assuming MARASTI to be an untested

and unreliable informant, the reliability of his infor-

mation was nonetheless substantiated through corrob-

orating police observations. This finding should be

reversed.

Appellant maintains that the purported corroborat-

ing facts in the instant case were inadequate to give

the police reasonable grounds for believing the infor-

mation reliable. The corroboration consists of the

agent’s observations of MARASTI, upon negotiation

24

for the sale of an ounce of cocaine, driving to the de-

fendant’s house, staying about fifteen minutes, and

returning and delivering the cocaine. Upon payment

for the cocaine, MARASTI was then observed return-

ing to defendant’s residence. These observations in

themselves were no corroboration at all.

The fact that MARASTI could produce cocaine for

sale does not prove his reliability. MARASTI made no

direct reference to the house which was searched. None

of MARASTI’S statements to the agents referred to

a name or address for his connection. He did not give

a phone number there, and in fact the officers had as-

certained that he resided elsewhere. Seen in this light,

the one stop that MARASTI made at the house during

a narcotics transaction, for an unknown purpose, does

not corroborate his statements.

MARASTI’S stop could have been for a number of

innocent reasons, or could have been for the purpose

of picking up a small amount of narcotics previously

“stashed” in the residence. Of course, stopping at the

residence for innocent reasons would not justify a

search warrant. Even if he stopped briefly to pick up

previously “stashed” narcotics, the court would not

be justified in issuing a warrant thirteen days later

based on this tenuous contact. In order to corroborate

MARASTI’S statements, the police were required to

make some further observations to establish a pattern

of use of that residence during narcotics transactions,

or to establish some guilty knowledge on the part of

the people living there. None of this was done, MAR-

ASTI was not corroborated, and his information should

not have been considered by the Magistrate.

25

CONCLUSION

For the reasons stated herein, Petitioner respectfully

requests this Court to grant a Writ of Certiorari bring-

ing this matter up to hearing and determination.

Respectfully submitted,

MARY EMERY, ESQ.

Attorney for Petitioner.

26

AFFIDAVIT OF SERVICE

State of California

SS.

County of Santa Clara

I, RuBy L. DENSON, being duly sworn deposes and

says:

I am not a member of the bar of the Supreme Court

of the United States, and therefore I make this Affi-

davit of Service. I am the secretary to Mary Emery,

who is the counsel for Petitioner in the foregoing Peti-

tion for Writ of Certiorari.

That the persons upon whom service was made are

the counsel of record for the Respondent, The People

of the State of California, in the California courts

in the action dealt with in the above-mentioned Peti-

tion, or are interested parties with regard thereto, and

reside or are doing business within 500 miles of San

Jose, California, where I reside and do business.

That on August 15, 1980, I served three copies of

the foregoing Petition for Writ of Certiorari upon

said counsel and interested parties by enclosing them

in sealed envelopes and depositing the envelopes in a

United States mail box in San Jose, California, with

— class postage thereon prepaid and addressed as

ollows:

Louis P. Bergna, District Attorney

County of Santa Clara, California

70 West Hedding Street, West Wing

San Jose, California 95110

The Honorable John A. Flaherty

Judge of the Superior Court

County of Santa Clara, California

190 West Hedding Street

San Jose, California 95110

27

George Deukmejian, Attorney General

Douglas Garibaldi, Deputy Attorney General

State of California

600 State Building

350 McAllister Street

San Francisco, California 94102

Clerk of the Court of Appeal

State of California

First Appellate District

State Building, Room 4154

455 Golden Gate Avenue

San Francisco, California 94102

Clerk of the Supreme Court

State Building, Civic Center

Room 4050

San Francisco, California 94102

All parties required to be served have been served.

EXECUTED this 15th day of August, 1980, at San

Jose, California.

RusBy L. DENSON

SUBSCRIBED AND SWORN to

before me, a Notary Public

in and for the above County

and State, this 15th day of

August, 1980.

JEAN GABBARD, ge Public

Santa Clara County, California

My Commission Expires: 7-15-83.

APPENDIX 4

APPENDIX A

OPINION OF THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TwO

tua PUBLISHED

REPORTS ¢,

Op,

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT ra

Friep

DIVISION TWO

Court of vinpoel - First App. Dist,

THE PEOPLE, CUFF. C. PORTER, Clerk

BY seis

Plaintiff and Respondent, DEPUTY

v. 1 Crim. No. 19704

JAMES P. MANNING, (Super. Ct. No. 70773)

Defendant and Appellant.

THE COURT: *

James P. Manning and Michael A. Marasti were charged

with three counts of selling cocaine (Health & Saf. Code, §

11352) and one count of conspiracy to sell cocaine (Pen. Code,

§ 182) .4/ Manning was also charged with unlawful possession

of cocaine for sale (Health & Saf. Code, § 11351). Manning

pleaded not guilty and moved to suppress the evidence which

was seized pursuant to execution of a search warrant at his

San Jose residence. After his motion to suppress the evidence

was denied, Manning pleaded guilty to the charge of unlawful

possession of cocaine for sale. The other charges were dis-

missed. The court sentenced him to state prison for the

median term of three years, but then suspended execution of

* Before Rouse, Acting P.J., Miller, J., and Smith, J.

L/ Marasti is not a party on this appeal.

the sentence and placed him on probation for three years on

condition he serve six months in the county jail, pay a fine

of $3,000, a penalty assessment of $750, and perform 300 hours

of community service without compensation. On appeal, the

general issue is whether the affidavit for issuance of the

search warrant was sufficient.

The search warrant in this case was issued by the

magistrate on November 8, 1978, based on a nine-page affidavit

of Special Agent T. G. Lofgren, and executed the next day.

The warrant authorized a search of the house at 1382 Vallejo

Drive, San Jose, for cocaine, records of purchase and sale of

cocaine, paraphernalia connected with packaging, weighing,

cutting and use of cocaine, evidence of occupancy of the resi-

dence, and currency with specific serial numbers previously

recorded by the officers. The officers seized 41 items,

including an assortment of narcotics ana drugs, narcotic para-

phernalia, and $27,139 in currency found in defendant Manning's

wallet.

Defendant argues that the affidavit submitted to the

magistrate contained "stale" information and hence was insuf-

ficient to support a finding of probable cause that contraband

would probably be found at defendant's residence. (See gener-

ally, Alexander v. Superior Court (1973) 9 Cal.3d 387, 393;

People v. Hernandez (1974) 43 Cal.App.3d 581; Hemler v.

Superior Court (1975) 44 Cal.App.3d 430, 434.) The affidavit

recited the following critical facts. The affiant had pur-

chased cocaine and marijuana from Marasti on October 17, 1978,

for a price of $1,005. Om October 20, the affiant telephoned

Marasti in San Jose and discussed the future purchase of one

or two ounces of cocaine. Marasti told the affiant that he

(Marasti) had been in his "connection's" residence and had

personally observed "well over" one pound of two types of

cocaine, and that he and his "connection" were available during

the morning hours for the sale of cocaine. On October 26, the

affiant met with Marasti in San Jose and discussed the purchase

of one ounce of cocaine. Marasti told the affiant that three

grades of cocaine were available from his supplier, who lived

only a couple of blocks away. Marasti left the affiant and

drove to the house at 1382 Vallejo Drive, followed by other

special agents who saw Marasti enter the house and return to

his car about 15 minutes later. The agents followed Marasti

back to the shopping center where he met the affiant and deliv-

ered an ounce of cocaine plus a bindle of cocaine as a sample.

Affiant gave Marasti $1,910 in recorded currency. The agents

then observed Marasti return to defendant's residence at 1382

Vallejo Drive.

Defendant argues that the information furnished the

magistrate 13 days after the last purchase of cocaine from

Marasti on October 26 was stale. We conclude, however, that

the magistrate could reasonably find from the foregoing facts

that Marasti and his supplier were engaged in continuous sales

of cocaine, based on the amount and value of the sales to Agent

Lofgren, and therefore the information was not stale for the

purpose of issuing a search warrant. (Cf. People v. Thompson

(1979) 89 Cal.App.3d 425, 429-430 [delay of 10 to 16 days);

People v. Hernandez, supra, 43 Cal.App.3d 581 [delay of 12

days}.)

Defendant argues that the information received by

the affiant from Marasti was insufficient to establish probable

cause to believe that the items listed in the warrant would

probably be found in defendant's house. Defendant argues that

the affidavit was defective in that (1) it lacked facts from

which the magistrate could conclude that Marasti was credible

or his information reliable (see Aguilar v. Texas (1964) 378

U.S. 108, 114; People v. Hamilton (1969) 71 Cal.2d 176, 179-

180; People v. Scoma (1969) 71 Cal.2d 332; Alexander v.

Superior Court, supra, 9 Cal.3d 387, 391-393); and (2)

Marasti's information was not shown to be reliable because

there was insufficient evidence to establish the trustworthiness

of Marasti's statements pertaining to his supplier's possession

of cocaine.

Although information from an untested informant is

not sufficient, by itself, to establish probable cause for

issuance of a warrant, such information may be sufficient if

it is “corroborated, in essential respects, by other facts,

sources or circumstances." (People v. Reeves (1964) 61 Cal.2d

268, 274; People v. Lara (1967) 67 Cal.2d 365, 374-375; People

v. Scott (1968) 259 Cal.App.2d 268, 275.) The reliability of

an informant can be supplied by the personal observations of

the police (see People v. Superior Court (Johnson) (1972) 6

Cal.3d 704, 711-712; People v. Childress (1979) 99 Cal.App.3d

36, 41). Here, Marasti's statements that he obtained cocaine

from his supplier who lived “a couple blocks away" were corrob-

orated by the epecial agents’ observations that upon negotiat-

ing the sale of an ounce of cocaine to the affiarnt at the

shopping center, Marasti drove to the defendant's house, stayed

about 15 minutes, returned to the affiant and delivered the

ounce of cocaine. After Marasti was paid $1,910 he returned

to defendant's residence.

We conclude that under the circumstances of this case

the magistrate could reasonably find that Marasti had obtained

the cocaine from the occupant of the house at 1382 Vallejo

Drive, and that there was probable cause to believe that

cocaine and/or recorded currency would probably be found at

that house.

Accordingly, we conclude that the trial court properly

denied defendant's 1538.5 motion to suppress the evidence.

Judgment affirmed.

APPENDIX 8

APPENDIX B

AFFIDAVIT IN SUPPORT

OF SEARCH WARRANT

te ee “e spice ki

X as <

» come ey yal Court

(UY {rs whe Clerk of Use ir. 08

FD tie

LALRONE Or Arr Sell

oy fig Wie | Ha ah Ney

MUNICIPAL COURT FOR THE SAN JOSE-MILPITAS JUDICIAL DISTRICT

COUNTY OF SANTA CLARA, STATE OF CALIFORNIA

STATE OF CALIFORNIA

)

) SS. AFFIDAVIT IN SUPPORT

)

COUNTY OF SANTA CLARA OF SEARCH WARRANT

PersonaJly appeared before me this 8th day of November, 1978,

T. G. LOFGREN, who, on oath, inakes complaint, and deposes and

says that there is just, probable and reasonable cause to

believe, and that he does believe, that there is now on the

premises located at 1382 Vallejo Drive, San Jose, California,

which premises consist of: a single family residence with

attached garage, mustard-beige stucco structure with dark

brown trim and asbestos roof tile. The address 1382 Vallejo

Drive is in black letters on the garage ddor;

AND ‘THAT THERE IS Now IN THE POSSESSION OF MICHAEL ALLEN

MARASTI, on his person and in a vehicle described as a 1978

maroon colored Dodge automobile bearing California License

Number 412 UFG,

personal property described as follows:

1. Cocaine;

2. Records of purchase and sale of cocaine;

3. Paraphernalia associated with the packaging, weighing,

cutting and use of cocaine;

4. Evidence of occupancy of the residence, including but

not limited to utility bills, rent receipts, mail, keys;

? @ ~~ @ Bye - ae oe

_

So

5. One Hundred Dollar ($100) Federal Reserve Notes as follows:

B91847942A, 1974; L40215129A, 1974; F10129609A, 1974;

L44245465A, 1974; B71752296A, 1974;

Fifty Dollar ($50) Federal Reserve Notes as follows:

C05032895A, 1969A; A09163511A, 1974;

Twenty Dollar ($20) Federal Reserve Notes as follows:

L48579989D, 1974; E32018734C, 1974; B72288543F, 1974;

L59767545D, 1974; A54959063A, 1974; J75424551A, 1969C;

L49378053D, 1974; L45197226A, 1963A, K94306522A, 1974;

G72736061C, 1969C; E08539042C, 1969C; LO1561296A; 1977;

BO06081627E, 1974; L96967782B, 1969C; L40586155B, 1969A;

LO1354771A, 1977; G24251288C, 1969C; L60526051C, 1969C;

B58926038%, 1974; L80809250C, 1974;

6. One Hundred Dollar ($100) Federal Reserve Notes as follows:

A118443474, 1974; A10625225A, 1974; B24440164A, 1969C;

L43512774A, 1974; J10895892A, 1974; LO8934287A, 1969A;

J06607890A, 1969C; B65208672A, 1974; LO1752854*, 1974;

L47825219A, 1974; H11482051A, 1974; E09298337A, 1969C;

G18449880A, 1974; J08543447A, 1974; L18039638A, 1969C;

L42177323A, 1974; L47893220A, 1974; B91842339A, 1974;

G33301104A, 1974;

Ten Doller ($10) Federal Reserve Note as follows:

G?73049166D, 1974.

Affiant is a Specfal Agent of the Bureau of Investigation

and Narcotic Enforcement of the California Department of Justice.

Your Affiant has been employed as an undercover narcotics agent

by the California Department of Justice for approximately 8-1/2

years. During this time your affiant has purchased controlled

substances including cocaine on approximately 200 separate

occasions. Your affiant has also received formal training in the

purchase and identification of controlled substances from the

California Department of Justice Police Academy and training in

his college level courses pursuant to his studies for a Bachelor

of Arts degree from Sacramento State College. Your affiant is

and has been an instructor with the California Department of

2+

~-

Justice Advance Training Center teaching local narcotics officers

in the techniques of buying controlled substances and case making

techniques.

Your affiant is investigating the sale of cocaine which

occurred on October 26, 1978, in the city of San Jose, and the

sale of cocaine and marijuana which occurred at the Casa de Fruita

in Santa Clara County on October 17, 1978.

On October 17, 1978, your affiant, while working in an under-

cover capacity, met MICHAEL ALLEN MARASTI and personally purchased

from said MICHAEL ALLEN MARASTI 13.8 grams of cocaine and 55 grams

of marijuana for a total purchase price of $1,005.00. Your affiant

paid the $1,005.00 in United States currency and recorded the

serial awe of the bills which he personally gave to the

said MICHAEL ALLEN MARASTI on October 17, 1978. The serial

numbers recorded by your affiant are:

One Hundred Dollar ($100) Federal Reserve Notes as follows:

PLEGLUESA, 1330) MAREIGRR: AB}h: Moaseonn, 1976

Fifty Dollar ($50) Federal Reserve Notes as follows:

C05032895A, 1969A; AO9L63511A, 1974;

Twenty Dollar ($20) Federal Reserve Notes as follows:

L48579989D, 1974; E32018734C, 1974; B72288543F, 1974;

L59767545D, 1974; A54959063A, 1974; J75424551A, 1969C;

L49378053D, 1974; L45197226A, 1963A, K94306522A, 1974;

G72736061C, 1969C; E08539042C, 1969C; LO1561296A; 1977;

BO6081627E, 1974; L96967782B, 1969C; L40586155B, 1969A;

LO1354771A, 1977; G24251288C, 1969C; L60526051C, 1969C;

B58926038F, 1974; L80809250C, 1974;

During the conversation with your affiant, MICHAEL ALLEN

MARASTI stated that the cocaine was costing him $925.00 and that

he wanted to make a $50.00 profit from the cocaine transaction.

ate

The above sale of cocaine and marijuana took place at the Casa

de Pruita complex on Highway 152 in Santa Clara County. The

actual transfer of the controlled substances took place in a

1978 maroon colored Dodge automobile bearing California License

Number 412 UFG, referred to above.

Your affiant has contacted the California Department of

Motor Vehicles regarding the ownership of said vehicle. The

records of the California Department of Motor Vehicles show the

said vehicle is registered to MARASTI LEASE CENTER, 1629 West

‘16th Street, Merced, California. Your affiant has received

information from Merced County Narcotics Officer DONALD HONG

that the MARASTI LEASE CENTER is owned and operated by the father

of MICHAEL ALLEN MARASTL.

Your affiant personally transported the cocaine and marijuana.

he purchased on October 17, 1978, from MICHAEL ALLEN MARASTI,

to the State of California Regional Crime Laboratory in Fresno,

California, and has read the analysis report prepared by

Criminalist ASA WILSON, and based upon reading said report is

informed and believes that the powder substance has been analyzed

to be cocaine and the green leafy material has been analyzed and

found to be marijuana. Your afffant personally knows that ASA

WILSON has testified for the California Department of Justice in

both the Municipal and Superfor Courts in the County of Fresno

as an expert witness in the identification of controlled substances

On October'20, 1978, your affiant was in contact with

MICHAEL ALLEN MARASTI by telephone. Your affiant recognized the

-4-

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—

on Nv oOo ellUMOUCUWSU

26

ae P. BERGNA

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) sean REV 1/71

voice on the other end of the telephone as being that of MICHAEL

ALLEN MARASTI., The conversation between affiant and said MICHAEL

ALLEN MARASTI concerned the future purchase of one (1) to two (2)

ounces of cocaine. MICHAEL ALLEN MARASTI informed your affiant

that on October 20, 1978, he had been in his connection's residence

and had personally observed well over one !1) pound of two types

of cocaine. MICHAFL ALLEN MARASTI said that he and his connection

were available during the morning hours, for the purchase of the

cocaine if he, your affiant, came to San Jose to make the purchase.

On October 26, 1978, your affiant came to the city of San

Jose and contacted the said MICHAEL ALLEN MARASTI at telephone

number 297-6099, Your affiant again recognized the voice on the

other end of the telephone as being that of MICHAEL ALLEN MARASTI.

Your affiant has been informed by his supervisor, WILLIAM MILLER,

that he, WILLIAM MILLER, utilizing the facilities of the Pacific

Telephone Company, ascertained that the above telephone number is

assigned to MICHAEL MARASTI at 2050 Southwest Expressway, Apart-

ment 94, San Jose, California.

During the telephone conversation of October 26, 1978 your

affiant arranged to meet said MICHAEL ALLFN MARASTI at a location

in:downtown San Jose. Your affiant arrived at said location and

observed MICHAEL ALLEN MARASTI arriving at the location in the

same vehicle utilized by MARASTI during the sale of cocaine on

October 17, 1978.

On October 26, 1978, your affiant had a conversation in a coffee

shop and at the MARASTI vehicle in the parking lot regarding the

purchase of

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one (1) ounce of cocaine. Your affiant followed MICHAEL ALLEN

MARASTI to the parking lot of the Westgate Shopping Center in

San Jose. Your affiant again personally contacted MICHAEL ALLEN

MARASTI in the Westgage Shopping Center parking lot where your

affiant was asked by said MICHAEL ALLEN MARASTI as to what grade

of cocaine he wanted to purchase, as the said MICHAEL ALLEN

MARASTI stated there were three (3) grades of cocaine available

from his supplier. Your affiant gave the said MICHAEL ALLEN

MARASTI his order, at which time said MICHAEL ALLEN MARASTI said

it would take about fifteen (15) minutes as his connection lived

only a couple of blocks away. Your affiant observed MICHAEL ALLEN

MARASTI leave the parking lot at Westgage Shopping Center in his

Dodge automobile and him return within twenty (20) minutes time in

the same Dodge automobile. Your affiant then entered the Dodge

automobile and was driven about the immediate area when the

said MICHAEL ALLEN MARASTI gave to your affiant a plastic bag

presumed to be one (1) ounce of cocaine and a paper bindle presumed

to contain a sample of a better quality of cocaine. Your affiant

personally handed to MICHAEL ALLEN MARASTI $1,910.00 in United

States currency, the serial numbers of which were personally

recorded by your affiant. Said serial numbers are:

One Hundred Dollar ($100) Federal Reserve Notes as follows:

A1184434A, 1974; A10625225A, 1974; B24440164A, 1969C;

L43512774A, 1974; J10895892A, 1974; L08934287A, 1969A;

306607890A, 1969C; B65208672A, 1974; LO1752854*, 1974;

L4782521¢A, 1974; H11482051A, 1974; E09298337A, 1969C;

G18449880A, 1974; 308543447A, 1974; L18039638A, 1969C;

L42177323A, 1974; L47893220A, 1974; B91842339A, 1974;

G33301104A, 1974;

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2 i Ss La ae

Ten Dollar ($10) Federal Reserve Note as follows:

G73049166D, 1974.

MICHAEL ALLEN MARASTI informed your affiant that $1,880.00

was to pay for the cocaine and that $30.00 was to be his

commission.

After the said purchase was completed, your affiant exited

the automobile in the parking lot at Westgate Shopping Center.

Your affiant has read an investigation report prepared by

his Field Supervisor, WILLIAM MILLER, and based upon reading said

report is informed and believes that Surveil lance Officers FOX,

MILLER and DOANE, all employees of the California Department of

Justice, observed MICHALE ALLEN MARASTI leave the location of

the Westgage Shopping Center where MICHAEI, ALLEN MARASTI had

just met your affiant and followed him to 1382 Vallejo Drive,

San Jose. ié.gent FOX observed MICHAEL ALLEN MARASTI park his

Dodge automobile, exit it, and go to the porch of said residence

and knock on the door. Agent MILLER observed MICHAEL ALLEN

MARASTI walking away from 1382 Vallejo Drive, San Jose, approxima-

tely fifteen (15) minutes later. The above officers followed

MICHAEL ALLEN MARASTI back to the Westgage Shopping Center parking

lot and observed MICHAEL ALLEN MARASTI contact your affiant

and observed your affiant enter the MARASTI vehicle and drive

about the area for several minutes. The above officers further

observed your affiant exit the MARASTI vehicle and again followed

the MARASTI vehicle to 1382 Vallejo Drive, San Jose, where Agent

DOANE observed MICHAEL ALLEN MARASTI again approach the front

door of the residence at 1382 Vallejo Drive, San Jose.

-j-

Surveillance was terminated at this time.

Your affiant personally transported the cocaine he purchased

from MICHAEL ALLEN MARASTI on October 26, 1978, to the State

of California Regional Crime Laboratory in Fresno, California,

and has read the analysis prepared by Criminalist RODNEY ANDRUS,

and based upon reading said reports is informed and believes that

the powder contained within the plastic baggie and the paper

bindle contain cocaine.

Your aff.ant states that he contacted Special Agent Pine

currently assigned to the San Jose Field Office, Califernia

Department of Justice and was informed by Special Agent PINE

that on November 1, 1978, Special Agent PINE, utilizing the

facilities of Pacific Gas and Electric ascertained that

utilities are in service at 1382 Vallejo Drive, San Jose, to a

JIM P. MANNING and that he has had service since October 5, 1977.

Agent PINE dorther informed your affiant that Agent PINE, on

November 2, 1978, utilizing the facilities of the Pacific

Telephone Company,ascertained that telephone service for 1382

Vallejo Drive, San Jose, is in the naine Of TOM MANNING. Your

affiant has personally checked the 1978 telephone directory

for the city of San Jose, on November 7, 1978, and observed

that a telephone number is listed under the name of TOM MANNING

with an address of 1382 Vallejo Drive.

Agent PINE also informed your affiant that he contacted

the California Department of Motor Vehicles on November 3, 1978,

and was informed that their records show a California Driver's

License issued to JAMES PATRICK MANNING with an address of

1382 Vallejo Drive, San Jose.

Your affiant has personally observed the person of MICHAEL

ALLEN MARASTI on at least two (2) occasions and observed that he

is a white, male adult, 5 feet 10 inches in height, 180 pounds,

with brown hair and brown eyes. Your affiant has observed a

teletype response from the California Department of Motor Vehicles

for subject MICHAEL ALLIEN MARASTI whick. informs your -affiant that

said MICHAEL ALLEN MARASTI has been issued a California Driver's

License Number A0767374 and that said MICHARL ALLEN MARASTI'S

date of birth is shown as June 9, 1953.

Your Affiant believes that evidence of the commission of

felonies, to wit: violation of Section 11352 of the California

Health and Safety Code (SALE OF COCAINE), Section 11351 of the

California Health and Safety Code (POSSESSION FOR SALE OF COCAI'IE)

and Section 11350 of the California Health and Safety Code

(POSSESSION OF COCAINE), and violation of Section 182 of the

California Penal Code (CONSPIRACY TO SELL COCAINE), more partic -

larly described 4bove, will be located where described above,

That based upon the above facts, your affiant prays that a

Search Warrant be issued with respect to the above location and

a il and of said vehicle for the seizure of said

1978. a

Special Agent

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APPENDIX C

APPENDIX C

SEARCH WARRANT

Ui bi pho es Hei

MUNICIPAL COURT FOR THE SAN JOSE-MILPITAS UDTCtAt’ OTSTRICT,

NOV 1 4 1978

COUNTY OF SANTA CLARA, STATE OF CALIFORNIA.

J. J. SPECIALE

CLERK OF THE MUNICIPAL COURT

SEARCH WARRANT — Bye Drr nts

THE PEOPLE OF THE STATE OF CALIFORNIA

To any Sheriff, Constable, Marshal, Policeman or Peace Officer

in the County of Santa Clara:

Proof, by affidavit, having been made before me this day by

T. G. LOFGREN that there is just, probable

and reasonable cause for believing that: Fvidence of the

commission of felonies, to wit: violation of Section 11352 of

the California Health and Safety Code (SALE OF COCAINE), Section

11351 of the California Health and Safety Code, (POSSESSION FOR

SALE OF COCAINE) and Section 11350 of the California Health

and Safety Code (POSSESSION OF COCAINE), and violation of

Section 182 of the California Penal Code (CONSPIRACY TO SELL

COCAINE), more particularly described below, will be located

where described below.

You are therefore commanded, in the daytime, to make Samuax

wXute search of the premises consisting of a single story,

single family residence with attached garage, mustard-beige stucco

structure wich dark-brown trim and asbestos roof tile located

at 1382 Vallejo Drive, San Jose, California. The address 1382

Vallejo Drive is in black letters on the garage door,

located at 1382 Vallejo Drive, San Jose » County

of Santa Clara, State of California, for the personal property

described as follows:

1. Cocaine;

2. Records of purchase and sale of cocaine;

3. Parapherr.alia associated with the packaging, weighing,

outting and use of cocaine;

4. Evidence of occupancy of the residence, including but not

limited to utility bills, rent receipts, mail, keys;

5. One Hundred Dollar ($100) Federal Reserve Notes as follows:

B91847942A, 1974; L40215129A, 1974; F10129609A, 1974;

L44245465A, 1974; B71752296A, 1974;

-)-

Fifty Dollar ($50) Federal Reserve Notes as follows:

C05032895A, 1969A; AO9163511A, 1974;

Twenty Dollar ($20) Federal Reserve Notes as follows:

L48579989D, 1974; E32018734C, 1974; B72288543F, 1974;

L59767545D, 1974; A54959063A, 1974; J75424551A, 1969C;

L49378053D, 1974; L45197226A, 1963A, K94306522A, 1974;

G72736061C, 1969C; E08539042C, 1969C; LO1561296A, 1977;

BO06081627E, 1974; L96967782B, 1969C; L40586155B, 1969A;

L01354771A, 1977; G24251288C, 1969C; L60526051C, 1969C;

B58926038F, 1974; L80809250C, 1974;

6. One Hundred Dollar ($100) Federal Reserve Notes as follows:

Al1844347A, 1974; Al0625225A,-.1974; B24440164A, 1969C;

L43512774A, 1974; 3J10895892A, 1974; L08934287A, 1969A;

J06¢07890A, 1969C; B65208672A, 1974; LO1752854*, 1974;

L47£25219A, 1974; H11482051A, 1974; E09298337A, 1969C;

G18449880A, 1974; J08543447A, 1974; L18039638A, 1969C;

L42177323A, 1974; L47893220A, 1974; B91842339A, 1974;

G33301104A, 1974,

Ten Dollar ($10) Federal Reserve Note as follows:

G73049166D, 1974;

and if you find the same or any part thereof, to hold such

property in your possession under California Penal Code Section

1536.

Given under my hand eee 8th day o} November, 1978.

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