Petition for Writ of Certiorari — Brock v. Pierce County

Supreme Court brief1986

Ask Donna

What actually matters in this document.

Text

4 4

4) Supreme Court, U.

to FILED

Case No. 85-835 | NOV 12 1986

JOSEPH F. SPANIOL,

CLERK

SUPREME COURT OF THE

UNITED STATES

_ TERM, 1985

CHESTER LINDEN MORTON.

< PETITIONER

—

SS PEOPLE OF THE STATE OF CALIFCRNIA,

RESPONDENT

ON WRIT OF CERTIORARI

TO THE STATE OF CALIFORNIA

COURT OF APPEAL,

FOURTH APPELLATE DISTRICT.

DIVISION TWO

PETITION FOR WRIT OF CERTIORARI

GARY W. SMITH

ATTORNEY AT LAW

223 WEST COURT STREET. SUTTE 408

SAN BERNARDINO, CALIFORNIA 92401

(714) 889-9829

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED

FOR REVIEW

Section One: The Crestline Search Warrant (August 3, 1981)

DID THE TRIAL COURT PROPERLY DECIDE ISSUES OF

FACTUAL INACCURACIES ALLEGEDLY CONTAINED

WITHIN THE AFFIDAVIT IN SUPPORT OF THE SEARCH

WARRANT?

WERE THE AFFIANT'S OBSERVATIONS FROM THE REAR

DECK OF THE RESIDENCE THE “FRUITS” OF A CONFIR-

MATORY (WARRANTLESS) SEARCH?

WERE THE AFFIANT'S OBSERVATIONS FROM THE REAR

DECK OF THE RESIDENCE MADE IN VIOLATION OF PETI-

TIONER’S REASONABLE EXPECT? TION OF PRIVACY?

‘DID THE AFFIDAVIT SATISFY PROBABLE CAUSE RE-

QUIREMENTS?

Section Two: The 28th Street Search Warrant (August 4, 1981)

DID THE AFFIDAVIT CONTAIN SUFFICIENT FACTUAL

ALLEGATIONS TO SUPPORT A FINDING OF PROBABLE

CAUSE?

DID THE AFFIDAVIT CONTAIN ALLEGATIONS OF FACT

WHICH WERE “FRUIT OF THE POISONOUS TREE”

Section Three: The 28th Street Search Warrant (December 14, 1981)

Vil DID THE AFFIDAVIT CONTAIN SUFFICIENT FACTUAL

ALLEGATIONS TO SUPPORT A FINDING OF PROBABLE

CAUSE?

A. DID THE AFFIDAVIT CONTAIN ALLEGATIONS OF

FACT WHICH WERE STALE?

B. DID THE INFORMANT INFORMATION WITHIN THE

AFFIDAVIT SATISFY THE AGUILAR-SPINELLI “TWO-

PRONGED” TEST?

C. WERE THE FACTUAL ALLEGATIONS WITHIN THE AF-

FIDAVIT REGARDING BEHAVIOR OF PERSONS IN-

VOLVED WITH THE ILLEGAL DRUG TRADE SUPPORT-

ED BY CURRENT RELEVANT FACTS REGARDING

PETITIONER?

VII DID THE OFFICERS SERVING THE SEARCH WARRANT

EXCEED THE PERMISSIBLE SCOPE OF THE SEARCH WHEN

THEY SEIZED PROPERTY THAT WAS NOT SPECIFIED IN

THE SEARCH WARRANT?

[IX WERE REFERENCES IN THE AFFIDAVIT TO EVIDENCE

SEIZED PURSUANT TO THE AUGUST 3, 1981 AND AUGUST

4, 1981 SEARCHES “FRUIT OF THE POISONOUS TREE?”

X WAS THE ALLEGED ADMISSION OF PETITIONER RECITED

WITHIN THE AFFIDAVIT 1 \KEN IN VIOLATION OF PETI-

TIONER’S “MIRANDA RIGHTS?”

Questions Presented for Review ........... ccc ccc ce cece eee eeees i

EEE SIE LIL RS Vv

I DRMEMSL EL, AEC c Led 6 cand based bee ccdeccdccser i

ER oe Oe, bck chbeccascbectccceceses l

Extensions of Time

Statutory Grounds for Jurisdiction

The United States Constitution. Amendment [V

EST en l

PES Badesescecdecnctdesecccscccccesccccccccecccessess 3

Section One: The Crestline Warrant

L DID THE TRIAL COURT PROPERLY DECIDE ISSUES

OF FACTUAL INACCURACIES?

IL. WERE THE AFFIANT'S OBSERVATIONS FROM THE

REAR DECK OF THE RESIDENCE THE FRUITS OF A

CONFIRMATORY (WARRANTLESS) SEARCH?

I. WERE THE AFFIANTS OBSERVATIONS FROM THE

REAR DECK MADE IN VIOLATION OF PETITIONER'S

REASONABLE EXPECTATION OF PRIVACY?

IV. DID THE AFFIANT SATISFY PROBABLE CAUSE RE-

QUIREMENTS?

Section Two: The 28th Street Warrant (August 4, 1981)

DID THE AFFIDAVIT CONTAIN SUFFICIENT FACT-

UAL ALLEGATIONS TQ SUPPORT A FINDING OF

PROBABLE CAUSE?

DID THE AFFIDAVIT CONTAIN ALLEGATIONS OF

FACT WHICH WERE “FRUIT OF THE POISONOUS

TREE?”

Section Three: The 28th Street Warrant (December 14, 1981)

Vil.

DID THE AFFIDAVIT CONTAIN SUFFICIENT FACT-

UAL ALLEGATIONS TO SUPPORT A FINDING OF

PROBABLE CAUSE?

A. DID THE AFFIDAVIT CONTAIN ALLEGATIONS OF

FACT WHICH WERE “STALE?”

B. DID INFORMANT INFORMATION WITHIN THE.

AFFIDAVIT SATISFY THE AGUILAR-SPINELLI

“TWO-PRONGED TEST?”

C. WERE ALLEGATIONS REGARDING BEHAVIOR

OF PERSONS INVOLVED WITH ILLEGAL DRUG

TRADE SUPPORTED BY CURRENT RELEVANT

FACTS REGARDING PETITIONER?

DID THE OFFICERS CONDUCTING THE SEARCH EX-

CEED THE PERMISSIBLE SCOPE OF THE SEARCH

WHEN SEIZING PROPERTY THAT WAS NOT SPECI-

FIED IN THE SEARCH WARRANT?

WERE REFERENCES IN THE AFFIDAVIT TO EVI-

DENCE SEIZED PURSUANT TO THE AUGUST 3, 1981

AND AUGUST 4, 1981, SEARCHES “FRUIT OF THE POI-

SONOUS TREE?”

WAS THE ALLEGED ADMISSION OF PETITIONER,

RECITED WITHIN THE AFFIDAVIT, TAKEN IN VIO-

LATION OF PETITIONER'S “MIRANDA RIGHTS”

= CLERKS TRANSCRIPT ON APPEAL. VOLUME

ONE

CT. = CLERKS TRANSCRIPT ON APPEAL, VOLUME

TWO

> etait 2 tee,

—

ihe

pie tne AI, ANE ee At pit AT EA PE ALAR ERT APO ALARA ADE Os Mee NO at A Ae ae acl

RTI = REPORTERS TRANSCRIPT ON APPEAL,

VOLUME ONE

—

“

REPORTERS TRANSCRIPT ON APPEAL.

VOLUME TWO

REPORTERS TRANSCRIPT ON APPEAL, FEB-

RUARY 23, 1983 (TESTIMONY OF DR. JAMES

SIMS, UNIVERSITY OF CALIFORNIA AT RIVER-

SIDE). .

O.B. = APPELLANTS OPENING BRIEF ON APPEAL

FILED WITH THE STATE OF CALIFORNIA.

FOURTH APPELLATE DISTRICT, DIVISION

Two.

* THE PARTIES TO THE PROCEEDING IN THE COURT WHOSE JUDG-

MENT IS SOUGHT TO BE REVIEWED BY WAY OF THIS PETITION WERE

CHESTER LINDEN MORTON, PETITIONER, AND THERESA MARIE

QUESADA. WHO IS NOT A PARTY HEREIN.

TABLE OF AUTHORITIES*

CASES

Aguilar v. Texas, 378 U.S. 101 (1964)

Beck v. Ohio, 379 U.S. 89 (1964)

Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)

Franks v. Delaware, 438 U.S. 154 (1978)

Johnson v. United States, 333 U.S. 10, 13 (1948)

Mapp v. Ohio, 376 US. 643 (1961)

Miranda v. Arizona, 384 U.S. 436 (1966)

Olmstead v. United States, 277 U.S. 438 (1928)

People v. Defore, 242 NY 13, 21 (1926)

Sgro v. United States, 287 U.S. 207, 210 (1932)

Spinelli v. United States, 393 U.S. 410 (1969)

Warden v. Hayden, 387 U.S. 294 (1967)

Weeks v. United States, 232 U.S. 383 (1914)

Wong Sun v. United States, 371 U.S. 471 (1963)

STATUTES

Rules of the Supreme Court, Rule 17.1. (c)

CONSTITUTIONAL PROVISIONS

U.S. Constitution, amend. [V

U.S. Constitution, amend. V

U.S. Constitution, amend. XIV

* THERE IS NO OFFICIAL OR UNOFFICIAL REPORTER'S CITATION

GIVEN TO THE OPINION FROM WHICH A WRIT OF CERTIORARI IS

SOUGHT BY THIS PETITIONER.

ee ee ee

nn ene mele eS

GROUNDS FOR JURISDICTION

The judgment sought to be reviewed by way of this Petition was

issued by the Court of Appeal, Fourth Appellate District. Division Two,

State of California. Said Opinion was filed on May 16, 1985. (Please see

Appendix A for a copy of said Opinion.) A Petition for Review was

filed on July 1, 1985 with the Clerk of the Supreme Court of the State of

California. Said review was denied on August 28, 1985. The judgment

of the Court of Appeal was. therefore, entered on August 30, 1985.

An Order Granting an Extension of Time was issued by the Honor-

able Justice Stevens on October 25, 1985, granting Petitioner unul

November 12, 1985 to file this Petition for a Writ of Certiorari.

Your Petitioner relies upon the provisions of Rudes of the Supreme

Court, Rule 17.1.(c) conferring on this Court jurisdiction to review, by

Writ of Certiorari, the judgment entered by the Court of Appeai. Fourth

Petitioner submits that a State Court has decided Federal questions in

ways which are in conflict with applicable decisions of this Court.

This case involves issues of search and seizure and this Honorable

Court's decisions related thereto, and based upon the Fourth Aimend-

ment to the United States Consutution, which provides:

“The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures.

shall not be violated, and no Warrants shail issue but upon

probable cause, supported by oath or affirmation, and particulariy

describing the place to be searched, and the persons or things to be

seized.” U.S. Const. amend. IV.

STATEMENT OF THE CASE

Chester Linden Morton, hereby petitions this Honorable Couri for a

Writ of Certiorari from that judgment of the Court of Appeal, Fourth

Appellate District. Division Two, State of California, entered on August

30, 1985, affirming the convictions of vour Petitioner for having com-

mitted criminal acts, prohibited by the California Penal Code, and the

California Health and Safety Code. (Please see Appendix B for a

recitation of “Proceedings Below”).

At Trial Court, and upon appeal, by wavy of written and oral argu-

ment, Petitioner challenged the validity of three (3) search warrants,

arguing both state and federal grounds. All argument presented herein

has been litigated at Trial Court and upon appeal, in the manner

above-stated.

The within criminal prosecutions have their beginnings with the

search of the residence located at 24601 Lake Gregory Drive, in

Crestiine, County of Sax Ber: rdino, State of California, on August 3,

1981. Said search was con *ected pursuant to a Search Warrant issued

by the HONORABLE DAVID PRESS, Judge of the Crest Forest

Judicial District. Said warrant was issued based upon the Affidavit of

DETECTIVE RAYMOND RUCKER of the San Bernardino County

Upon serving the subject Search Warrant, the Affiant, along with

other San Bernardino County Sheriff's Office personnel, found what has

been alleged to be a clandestine laboratory established for the purpose of

manufacturing (sic) methamphetamine.

On August 4, 1981, DETECTIVE DONALD G. HANKERSON of

the San Bernardino County Sheriff's Office, Select Investigations Div-

ision, executed an Affidavit in Suppor: of the Search Warrant request-

ing authorization to search the resi“*aze located at 1799 West 28th

Street, in the City of San Bernardino, C »unty of San Bernardino, State

of California. Relying primarily on evidence seized pursuant to the

August 3, 1981 Search, DETECTIVE HANKERSON submitted his

Affidavit to the HONORABLE CARL DAVIS, Judge of the Munici-

pai Court, East Valley Division, County of San Bernardino, who issued

the requested Search Warrant, which was served by the Affiant on the

same date.

On December 14, 1981, DETECTIVE LOUIS F. PERRY of the

executed an Affidavit in Support of the Search Warrant requesting

authorization to search the 28th Street residence, a second ume.

The Affiant submitted his Affidavit to the HONORABLE DAN L.

RANKINS, Judge of the Municipal Court, Central Division, County of

San Bernardino, who issued the warrant the same day. The Affiant.

along with other San Bernardino County Sheriff's Office personnel,

served the subject warrant on said date.

On or about September 24, 1981, DETECTIVE LOUIS F. PERRY

(as above-described) conducted an interview with Petitioner at the

offices of the San Bernardino County Sheriff. Detective Perry tele-

phoned Petitioner and requested that Petitioner submit to such inter-

In his Affidavit in Support of the Search Warrant for the December

14, 1981, search of the 28th Street residence, the Affiant alleged, that

ment in a conspiracy to manufacture and distribute methamphetamine.

synopsis of the proceedings in the trial court respecting Petitioner’s

Motions to Suppress Evidence, and litigation of the same upon appeal.

eS ee Se ee ee

By wav of this Petition. it is contended that each of the chailenged

Search Warrants should have been quashed upon the grounds more

suppressed.

Upon this Honorable Court’s concurrence. the convictions of Peu-

uoner must be reversed.

ARGUMENT

SECTION ONE:

THE CRESTLINE WARRANT

DID THE TRIAL COURT PROPERLY DECIDE ISSUES F

FACTUAL INACCURACIES?

ip his Affidavit,' the Affiant alleged that he had received, by telephone,

informanon from a Deputy Sheriff who reported that the owner of the

lab at the owner's rental property (the property to be searched). The

Affiant alleged that he later spoke with the owner and received informa-

ion from him regarding a possible illegal drug lab operating in the subject

residence.-

from the owner of the residence, but, on the contrary, that the owner

reported that he believed that the renters ai the subject property may have

been manufacturing some sort of piastic material.’

Respondent argued that Petitioner’s claim was inaccurate because the

Affiant, in his Incident Report stated that the ow ver informed the Affiant

that he “was told to contact the Sheriff's Office by his relatives who

suspected a drug laboratory may be in operation. So the informant may

very weil have said that when he called in”.* Respondent reasoned that

the Affiant was qualified to interpret information provided him by the

owner, because the Affiant had confirmed his suspicions when he made

Certain observations at the premises prior to the search. Respondent

reasoned that “this interpretation” was harmless and not significant to the

question of probable cause.‘

' CT. IL 377-382. inclusive (see Appendices).

> dd at 377 and 378.

> See FN. 1, supra at 380: and FN. 69. infra at 79.

* Repondent submitted, “even if the phrase (involving a possible ciandesune labora-

tory operation) was the Affiant's interpretation. so what?” C.T.. IL 414, 1-15 (see

Appendices).

lod.

The evidence introduced at the time of the hearing consisted of: the

Affidavit in Support of the Search Warrant; the Affiant’s Incident

Report®; expert testimony’; and the transcript of the Prejiminary

Examination.®

The trial court made no specific findings with respect to this allegation

of the Affiant and the Petitioner’s argument of facts. However, as wiil be

more fully described, infra, this Petitioner relied upon the court’s

“implied findings” . . . that . . . “would go along with the ruling of the

court.”?

The Affiant also alleged that upon exiting his vehicle on the highway

above the subject residence he “immediately noted a strong odor of ether

coming from” the subject residence.'°

Petitioner argued that the Affiant’s allegation was an intentional

misstatement included within the subject Affidavit for the purpose of

deceiving the magistrate .'!

The Respondent argued that “open ether. or at least its smell, was

found in a pan on the porch .. . ,” and that the “. . . smell may also have

been coming (evaporating) from the two buckets found within the house

...”!2 In addition, the prosecution argued that this was a summer day, and

the warmer the day, “the farther the smell will spread because the ether is

vaporizing faster.”"5

The evidence introduced throughout the course of the proceedings

established the following facts:

That Dr. James Sims, Professor of Chemistry at the University of

California, Riverside, for the past eighteen (18) years, was acknowledged

as an expert by the court with regard to chemical structures and com-

pounds, and general chemistry.'*

Dr. Sims testified that he was aware that law enforcement experts

trained narcotics officers to look for an odor of ether for the purpose of

detecting illicit synthesis of narcotics, but that there were many lawful

uses of ether which greatly out numbered the unlawful uses, and that the

detection of an odor of ether is ambiguous, at best.'* Furthermore, the

* FN. 1, at 377. (see Appendices)

7 Portions of this testimony are cited hereinafter.

* RT., (Prelim. April 14, 1981), 77, 20-23. (see Appendices)

% RT., 2, 282, 3-8; 285, 11-15. (see Appendices)

0 FN. 1, supra, at 379. (see Appeuices)

i CT., IL, 245, 16-28; 246, 247, 1-9. (see Appendices)

2 C.T.. I, 414, 21-24. (see Appendices)

3 CT. IL 415, 1-2. (see Appendices)

\* Said cases were consolidated on appeal. Appendix B.

'S R.T., Feb.. 46, 24-26; 47, 45. (see Appendices)

6 RT. Feb., 48; 49, 1-10. (see Appendices)

;

expert testified that were he to have detected the odor of ether as the

Affiant alleged, it would not indicate to him that some specific com-

pound was being synthesized. Further, that he would find it unusual to be

in a laboratory where ether was not being used.'” The expert offered

numerous examples of the legal uses of ether.'* Also, that absent exper-

ience, via lengthy periods of exposure to various chemicals, it would be

difficult for an individual to distinguish the difference between varicus

chemical smells.' Further, that the synthesis of methamphetamixe

would not, by way of smell, emit any odor unique to its synthesis.”

Dr. Sims testified that the vapor of ether travels downhill, because it is

heavier than air, and fails to the bottom of a room.” Also, that if someone

smelled an odor of ether ouzside a building, he would not be concerned

with the hazard of fire, because ether is not dangerous in that situation.7

Dr. Sims proposed that it would be unlikely for someone to be able to

smeil a strong odor of ether upor the highway at the location where the

Affiant claimed to have first detected the odor. On the contrary, it would

be a person below the highway, and underneath the ether, who would

smell the same, were there any at the location.~

The expert submitted that if the wind blew, one might be able to smell

ether up on the highway,** but when ether changes from a liquid to a

vapor, it is difficult to detect its odor more than fifty (50) feet from its

source;* and while ether is dispersing into the atmosphere, a residual

smell remains only while ti sre is still liquid ether in the area.

Upon being informed by the owner of the “sweet smell” he had

detected two days prior,”’ the Affiant inquired of the owner whether the

smell was ether. The owner was unable to identify the smeil.*

No evidence that ether was seized at the premises was introduced; the

Return to the Search Warrant listed none; and the Affiant testified that

there was no ether discovered at the subject residence when the Search

—

R.T., Feb., 31, 9-18. (see Appendices)

R.T., Feb., 33, 17-26; 34; 35; 61, 1-19. (see Appendices)

R.T., Feb., 36, 1-22. (see Appendices)

R.T., Feb.. 65, 16-26. (see Appendices)

R.T., Feb., 37. 2-14. (see Appendices)

R.T., Feb., 37, 17-26; 38, 1-4. (see Appendices)

R.T., Feb., 38, 10-21. (see Appendices)

R.T., Feb.. 38, 22-26. (see Appendices)

R.T., Feb.. 39. 1-17. (see Appendices)

R.T.. Feb., 39, 11-23; 40, 18-26; 41; 42, 1-14; 43, 1-16. (see Appendices)

The record is devoid of any evidence indicating that the residence was in a different

state of repair on August |, 1981, than it was on August 3, 1981.

See FN. 1, supra, at 378.

Se. US BKRBBRBESE SE

Warrant was served.” There appears no “break in the chain of evidence”

between the Affiant’s initial detection of the smell of ether and the service

of the Search Warrant.”

The expert testified that it is easy to confuse chemical smeils,*' when

the court suggested to the expert that it had detected an odor of ether

emanating from this witness.22

Respondent offered no expert testimony and submitted that Respon-

dent was limited to the testimony of the Affiant curing the Preliminary

Examination and his incident reports.*? “

Respondent did, however, offer testimony of a seasonal firefighter

who was employed by the California Department of Forestry on the day

of the search. The witness testified that on the day in question she was

stationed in the Crestline area and “We responded to a possible fire and

explosion”™ at the subject residence.

The witness testified that after parking the fire truck on the highway

and on the opposiie side of the road above the residence, she noticed a

chemical smell which was familiar to her, but she was not certain what

she was smeiling.*5 The witness testified that a few minutes later she made

a determination that what she had smelled was an odor of ether. She

residence and stated “they had found some sort of lab, and probable

ether.””6

Upon cross-examination, the witness testified that she had been con-

tacted by a Detective with the San Bernardino County Sheriff's Office

approximately two (2) months prior to her appearance in court’’ and had

been asked to provide “corroborating evidence. . .” by way of her

testimony.**

The witness testified that when first contacted by the Detective, she

thought the incident occurred between July and December, 1981. She

* RT., Feb., 57, 16-26; C.T., L 117, 20-25. (see Appendices)

% See FN. 1. at 379. (see Appendices)

® RT, Feb., 58, 11-16. (see Appendices)

32 When Judge Hyde first thought he had detected an odor of ether, he inquired

whether it could have been emanating from Dr. Sims. Then he suggested that the

Court Reporter had not put ink in her machine, but later indicated that the Reporter

had in fact “inked up her machine.” Counsel for Petitioner urged that people often

have sensory impressions according to their desires. R.T.. Feb., 54, }9-26; 55, 1-11;

58, 16-26; 71, 6-9; R.T., 1, 203, 4-16; R.T., 2, 258, 1-4.

R.T., Feb., 72, 14-22. (see Appendices)

R.T., 1, 18, 7-24. (see Appendices)

R.T., 1, 19, 3-25. (see Appendices)

R.T., 1, 19, 25-26; 20, 1; 21, 4-9. (see Appendices)

R.T., 1, 31, 13-25. (see Appendices)

R.T., 1, 34, 20. (see Appendices)

¢3es8 & &

eee ee

ND aPROL eit ate ll Baile? +2 al Stas

Rare Or Sart a

then contacted her former ...servisor at the California Division of

Forestry about the date of the incident.*®

The witness testified that she had based her opinion about the smell

upon her supervisor stating that there had been “some sort of lab, and

probable ether™ and upon her training.*!

Subsequently, the wimess testified that she was not certain what she

had smelled that dav but that her experience with ether was “very

limited”? and also, that her supervisor hadn’t actually used the word

ether in reporting what had been discovered.“ Also, that she had con-

cluded she smelled ether because she thought the residence might contain

a lab which was making PCP,“ because ether was used “just for drugs

and things like thar”. Further, that she had been instructed that if she

smelled ether, drugs were probably somewhere nearby.*

The witness conceded that she did not know whether ether was

common solvent used in organic chemistry, nor whether there were anv

lawful uses of ether.‘? The witness stressed that she was not an expert in

this area,“* and repeated that she really wasn’t sure of what she had

smelled on the day in question. Finally, the witness testified that if she

had not seen the front door open, she would not have surmised that the

oder she detected was emanating froin the subject residence.”

Subsequently, Respondent offered testimony from Deputy Charies

Wyatt, a San Bernardino County Sheriff's Deputy, who was assigned to

the identification division on August 3, 1981, and was summoned to the

Crestline residence tht day.*!

Deputy Wyatt testified that when standing across the street from the

subject residence it is not possible to see the front door of the house.**

% The witness testified: “I was vague on it and maybe it was important that | be — you

know, fook at the log, and know the time and date again.” R.T.. 1, 22, 15-26; 25: 26;

27, 1-9.

@ RT,, 1, 21, 49.

“t The witness’ training consisted of a college class covering fundamentals of fire

behavior and control wherein she was exposed to certain chemicais and explosives.

including ether. R.T.. 1, 20, 24-26; 21, 1.

“ RT. 1, 49, 13-14. (see Appendices)

“ The witness confided that her supervisor had a sinus cold and could not smell

anything that day. R.T., 1, 29, 12-15.

RT., i, 29, 16-19. (see Appendices)

R.T., 1, 30, 1-8. (see Appendices)

RT.. 1, 26, 29: 30, 1-19. (see Appendices)

R.T., 1, 28, 11; 75, 7-8. (see Appendices)

R.T., l, 74, 1-13 & 18-26; 75. 1-8. (see Appendices)

R.T., 1, 53, 19-25. (see Appendices)

R.T., 1, 94, 25-26; 95, 1. (see Appendices)

R.T., 1. 145, 2-15; 147, 4-26; 148, 1-3. (see Appendices)

eeeesenseaese

The witness offered his opinion that the residence was designed for

privacy, and it would be difficult to see into the residence from outside, or

at ground level.*

The witness testified that the decking, upon which the Affiant traveled

to reach the rear of the residence, had a railing which was covered with

some sort of trim preventing persons at ground level from seeing up on

the deck.

photographs of the interior of the residence taken by the witness during

the course of the search.*5

Respondent made an offer of proof as to the relevancy of the photo-

graphs, suggesting that the photographs depicted what the officers saw,

and that it was important in making a probable cause determination to

see what the officer saw.

The trial court overruled the objection of Petitioner and permitted

Respondent to introduce said photographs as evidence.*’ By way of the

photographs, Respondent attempted to show that a dish depicted in a

photograph may have contained ether, which was smelled by the Affiant,

but not analyzed by laboratory personnel.

Respondent moved to introduce ull photographs on the grounds

“simply that they bore on the motion.”” ,

Upon Preliminary Examination, the Affiant testified that he may

have smelled ether or something else that he thought was ether.

The court found that the “statement regarding the danger of fire or

explosion was in actuality there at the time”.®' In response to Peti-

tioner’s request, the court held that it was not required to, and would

not make, findings of fact, but the “implied findings” should support the

R.T., 1, 150, 6-12; 151, 11-18; 155, 10-15. (see Appendices)

R.T., 1, 155, 2-19. (see Appendices)

R.T., 1, 5-16; 17, 1-10. (see Appendices)

Respondent stated that if having seen the subject photographs, the court would

somehow be influenced in its decision, Respondent would not offer the photo-

graphs. R.T., 1, 14, 1-6.

7 RT. 1, 96, 1-12: 102, 5-26. (see Appendices)

% Respondent subsequently offered photographs two establish that certain buckets, not

seized by the officers during the search of Petitioner’s residence on August 4, 1981,

contained methamphetamine. R.T., 1, 20, 3-19; R.T., 2, 518, 18-26.

* Prior to admitting the photographs, the trial court acknowledged that it understood

the concern of Petitioner “with the court looking at the pictures to determine angies

of admissibility, because then the court sees what is in the pictures and therebv he

becomes tainted”. R.T., 1, 166, 14-21; R.T., 2, 287, 9-12.

® No analysis of chemicals seized was admitted showing ether as one such chemica..

C.T., L 45, 4-14; 139, 20-26.

® RT. 2, 281, 13-14.

#2 e 8

eT a —

wen

PP lth Ne ai i AINA R Ei IBS AREAL

Khas plik: 2

BUS ERY ee ee Pus

general ruling of the court.

Had the trial court found that the Affiant in\ationally misstated

these facts, the same should have been excised from the Affidavit.®

The Affiant alleged, that after smelling ether upon the highway after

exiting his vehicle, he was aware of the extreme volatile nature of ether,

and the “danger to persons in or around the residence,” and, therefore,

walked down the stairs to the front door of the residence and attempted

to contact someone within by knocking. The Affiant alleged that after

receiving no reply he walked around to the rear of the residence on an

enclosed or fenced deck. Once at the rear of the residence he observed

numerous articles of laburatory equipment, and smelled a very strong

odor of ether. Based upon these findings, he secured the premises with a

Sheriffs Patrol Unit and “called for . . . Fire Department Officials to

assist in the investigation.”

Petitioner argued that the Affiant did not have any doubt as to the

source of the odor but was certain as to its point of origin: Also, that the

Affiant had no concern for anyone in or around the residence, nor did

he understand the volatile nature of ether, Le., whether there was danger

to persons in or around ether. Petitioner submitted that these allegations

were intentional misstatements which were employed by the Affiant to

jusufy a confirmatory search.‘

Petitioner argued that these intentional misstatements, when viewed

as a whole, clearly had to have a significant effect upon the magistrate’s

reasoning regarding danger of fire or explosion.“

Finally, Petitioner argued that the Affiant’s allegation that he con-

tacted Fire Department Officials “to assist in the investigation” (which

appears fom the Affidavit to have taken place immediately subsequent

to contacting a Sheriff's Patrol Unit to secure the premises) was an

intentional misstatement.®

Respondent argued that although a motive for the Affiant to have

alleged, as per his Affidavit, that he contacted Fire Department Officials

was unknown, it was not intended “to stampede the magistrate into

issuing a Search Warrant before the house blew up and a conflagration

@ RT. 2, 285, 9-26; 286. 1-2. (see Appendices)

& Franks v. Delaware, 438 U.S. 154 (1978). Petitioner acknowledges this decision

permuts a finding of probable cause if the remaining statements. when re-examined,

constitute a sufficient factual basis for the same.

* See FN. 1, supra, at 379-380.

® R.T., Feb., 37, 17-26 38, 1-4; 66, 14-25; 67, 1-11 (see Appendices)

* CT., I, 245-254; R.T., 1, 180-224.

ensued.”” Respondent claimed that “exigent circumstances” was not

the reason for issuance of the subject warrant. but was the reason the

Affiant went around the house to determine whether anyone was

inside;’' and seeing “evidence of a drug laboratory and no evidence of

anvone inside” he then sought a Search Warrant.” Respondent sug-

gested that if this allegation was a misstatement, it was “innocent

because not offered on the question of probable cause and immaterial to

in”

Upon Preliminary Examination, the Affiant testified that he did not

believe that there wouid in fact be an explosion, because it would have

already occurred. Furthermore, that rather than entering the residence to

make a determination of whether there was some pilot light, etc., which

might ignite the alleged ether, and, presumably whether any person

within was in need of assistance.”* he felt that that it was a situation

which did not require contact with fire officials, and he did not enter the

residence because he intended to acquire a Search Warrant. The Affiant

admitted that he did not request fire units nor alert the forest service untl

subsequent to issuance of the subject Search Warrant. which was approx-

imately five (5) to six (6) hours later.” This testimony was corrobo-

rated, in part, by Respondent’s firefighter witness.”*

The trial court found that “according to the testimony of experts, what

appeared to be at the time both to the citizen and law enforcement, it

would seem that the conclusion and that statement regarding the danger

of fire or explosion was in actuality there at the time.””

Petitioner submits that the Court of Appeal committed reversible error

when it determined that Peunoner had not met his “threshhold burdens

C.T., I, 413, 10-13. (see Appendices)

C.T., IL, 413, 20-23. (see Appendices)

Id at 23-24. (see Appeadices)

Id. at 25-27. (see Appendices)

™ CT. L 118, 17-26; 119, 1-20. (see Appendices)

> CT. L120, 2-22; 121, 5-26; 122; 123, 1-3; 124; 125, 4-10. (see Appendices)

6 The firefighter, called as a witness by Respondent, testified that upon arriving at the

scene, she observed that law enforcement personne! had made entry without the

benefit of assistance from fire personnel. R.T., 1, 37, 23-26; 76, 1-18.

~ In determining whether these allegations were misstatements, the trial court found

that “the constitutional safeguards that we all have” are built upon a “corner stone of

reasonableness” and that when considering all of the proceedings involved “in light

of reasonableness. and the reasonableness of the situation . . . , you reach essentially

an opposite conclusion . ..” to that of Petitioner herein. Further, the court suggested

that “we all tend to get a little bit fragmented” when we “do a sort of post mortem on

the whole structure of this obtaining of Search Warrant procedures.” The court

further suggested that the situation must be viewed in light of the touality of the

situation as confronts law enforcement at the time.” R.T.. 2. 279. 17-26; 280, 2-8,

12-13; 281, 5-14.

saea

eee

;

“4

;

Var tbe

of proof” requiring that “he must prove the existence of such misstate-

ments, as well as prove the Affiant’s knowledge of their falsity” (citation

omitted).”

Your Petitioner respectfully inquires: “what more must be shown?”*?

What the Affiant stated as fact in his Affidavit, was shown to be fallacy

through his subsequent testimony. No extrinsic or collateral evidence was

necessary to establish the validity of this conclusion.

Poni

WERE THE AFFIANT’S OBSERVATIONS FROM THE

REAR DECK OF THE RESIDENCE THE FRUITS OF A

CONFIRMATORY (WARRANTLESS) SEARCH?

Petitioner argued that the Affiant had initially driven to the Crestline

residence for the purpose of conjirming his suspicions that there was an

illegal drug lab operating therein.*'! Respondent agreed.*? Petiuoner

argued that observation of Affiant thereupon should have been excised.

The trial court found that the Affiant did not conduct a confirmatory

(warrantless) search, and that there were “exigent circumstances” at the

that this was simply a furtherance of his invesugation and not in violation

of any reasonable expectation of privacy.™

The Court of Appeal upheid the Trial Court, referring only to Affi-

davit. The Court of Appeal misstated when fire officials were contacted,"

and did not discuss the seif-impeaching testimony of the Affiant. Further.

the Court of Appeal made no reference to the expert testimony of

Petitioner’s witness, nor to the fact that ether was not found at the

residence.

™ Ct App. at &

* Ct App. at 7.

® Petitioner registered the same inquiry with the trial court and the Court of Appeal. as

the foregoing clearly displays.

" CT., 1252; R.T,, 1, 190, 23-26; 198, 11-15; 203, 2-3; 206, 15-22; 219, 4-13; 221,

24-26. (see Appendices)

involved no search at all,” and “because the occupant broadcasted the use of ether.

there is no right of privacy involved. ..”. R.T., June, 137, 7-17; C.T. IL 417, 1415,

23-27; 418, 2-3; 419, 19-21; C.T., L 126, 627; 127, 16-18; R.T., 2, 219, 413.

“ The court specifically found that the officer always has a duty to invesngate. and that

even though the premises were cleariy designed for privacy, “the expectanion of

privacy does not automatically lock the door to reasonable intrusions for the

purpose of proper investigation of criminal activity.” R.T.. 2, 282, 9-18; 283, 1-3,

6-121 R.T., 1, 156, 5-10.

WERE THE AFFIANT’S OBSERVATIONS FROM THE

REAR DECK MADE IN IN VIOLATION OF PETITION-

ER’S REASONABLE EXPECTATION OF PRIVACY?

Petitioner argued that absent exigent circumstances, the Affiant had

no lawful right to be on the subject premises prior to possession of a

duly executed Search Warrant. That absent the same, his presence at

the subject premuses was in violation of Petitioner’s reasonable expecta-

uon of privacy.” Petitioner submitted that these observations should

have been excised.”

Respondent argued that the Affiant went to the subject residence to

confirm his suspicions about an illegal drug lab. and upon his arrival

smeiied ether and knew that it must have been strong inside the residence.

Based upon the same, and the Affiant’s concern for individuals conscious

or otherwise, within the subject residence, the Affiant was more involved

in safety precautions than investigation of criminal conduct. Respondent

reasoned the Affiant was, therefore, entitled to take all reasonable steps to

contact someone within the subject residence.™

Respondent submitted that no right of privacy exists “in connection

with what has been publicly exposed," and the good faith belief of the

Affiant in the propriety of what he was doing would legitimate his

bservations.”

Respondent argued that even if the Affiant’s observations at the

sufficient probable cause for issuance of the subject warrant.°' Such test

was never performed.

The evidence established the Affiant went to the residence for the

purpose of confirming his suspicions about an illegal drug lab in opera-

tion therein: that it would be «xtremely unlikely for the smell of ether to

be detected upon the highw=7 above the subject residence (as alleged by

the Affiant); that the smell of ether is not an indication of exigent

circumstances; and that the Affiant was not concerned sho fire or

explosion; and the residence was very private in its design and

location.”

The Affiant knew that Petitioner was the lessee. See FN. |, supra; at 379.

* Petitioner relied primarily upon California law, but discussed Johnson v. United

States, 333 U.S. 10, 13 (1948) and the odor of “forbidden substances.”

C.T., IL, 418, 2-12; 419, 1. (see Appendices)

Id at 419. 2-23. (see Appendices)

fa. at 419, 25-27; 420, 1-3. (see Appendices)

id at 420, +-16.

R.T., 2, 283, 6-9; R.T., 1, 155, 10-22; 156, 5-10. (see Appendices)

e2:s&6es

a ee ee ee

Petitioner argued that Police Officers may not obtain facts ts support

probable cause for the issuance of a Search Warrant from constitution-

ally protected areas wherein a reasonable expectation of privacy

exists.%3

The Court of Appeal affirmed the Trial Court when finding that

“exigent circumstances” existed upon the Affiant detecting an odor of

ether, and, therefore, “enabled (the Affiant) to walk onto the reer deck

without violating Fourth Amendment proscriptions.*

Petitioner contends that the findings of the Court of Appeal consti-

tute reversible error. The weight of the evidence overwhe!minglv estab-

lished that the Affiant entered into this constitutionally protected area

(wherein a reasonable expectation of privacy existed) solely for the

purpose of making observations which he couid use as evidence of

probable cause for the issuance of a Search Warrant. Further, that said

observations could not have been made from any location where the

Affiant was lawfully entitled to be located.

DID THE AFFIDAVIT SATISFY PROBABLE CAUSE RE-

QUIREMENTS?

Petitioner argued that the Affidavit in support of the Search

Warrant did not contain facts sufficient to constitute probable

cause.

Petitioner analyzed the facts contained within the Affidavit in Support

of the Search Warrant, placing them into two (2) categories, to wit: The

informant’s observations, and the Affiant’s observations.”

Specifically, Petitioner argued that nothing in the information pro-

vided by the citizen informant (the owner) would be indicative of

criminal conduct. In fact, the owner related that upon making his

observations at the subject residence on August 1, 1981, he came to the

conclusion that the renters were possibly manufacturing some plastics.

The owner waited for two (2) days before he contacted law enforcement

personnel. Apparently, the owner made contact with the Sheriffs

Office only at the suggestion of his son and daughter-in-law, who

* CT, 1 260-266; RT. 2, 248-260; 261, 1-21. (see Appendices)

* Ct App. at 9 (Appendix A)

* Petitioner submits that implicit within the finding of the Court of Appeal is a

determination that absent exigent circumstances. the Affiant would have been in

violanon of “Fourth Amendment Proscriptions.”

* CT., IL 266, 22-28; 267; 268, 1-21: R.T.. 2, 261. 9-26; 262. 1- 14; 263, 2 2-14; 265,

10-26; 266; 267, 1-2: 270, 9-23. (see Appendices)

" See. eg. C.T.. IL 269-271. (see Appendices)

* See FN. 1, supra, at 378.

informed him that they thought his findings might be indicative of an

illegal drug lab.”

The Affiant alleged that upon arriving at the premises he smeiled ether;

that the smell of ether became stronger as he approached the residence

going to the rear of the premises; that he observed packing crates, stirring

rods and rubber glaves. and saw chemicals and various items of labora-

tory equipment from his position on the decking at the rear of the subject

residence. '

The Affiant also alleged that he had certain concerns regarding the

volatile nature of ether, and, therefore, secured the area by contacting

Sheriff's Office personne! and Fire Officials to assist in the investiga-

tion. '0!

In addition, the Affiant alleged his expertise with regard to his training

in vice and narcotics, and clandestine laboratory operations. '@

Under a section entitled “Affiant’s Expertise,” the Affiant alleged that

it had been his experience that persons involved in the manufacture

and/ or possession of narcotics often hid the substances in their homes, on

their persons, or in vehicles away from the actual laboratory operation.'”

Petitioner submitted that this language was irrelevant for the purpose of

determining probable cause.'*

The Affiant further alleged that he had reviewed with three (3) other

narcotics Officers his reasons for believing that there was a clandestin.

laboratory operation located at the subject residence — without any

specificity regarding these discussions. '

From the above, it appears that the owner provided the Affiant with

no facts which would be indicative of criminal conduct. The Affiant then

drove to the residence to determine whether some criminal conduct was

taking place.'°*

The observations of the Affiant regarding chemicals and laboratory

equipment certainly do not warrant a man of reasonable caution in

believeing that a crime had been or was being committed. Petitioner

proposes the magistrate could not have made a finding of probable

cause with these observations alone. Therefore, it appears as though

* Id at 378-379.

Ibid

Jd at 379-380.

™ Ibid.

1 [did

1 Did

' Did

both the Affiant and the magistrate assumed that the finding of a

laboratory operation in rental property was clearly an indication of

some illegal acuvity. However. the expert testumony established that the

detection of an odor of ether wouid likely be an indication of some /ega!

activity. Also, that a laboratory operation fitting the description given by

the Affiant, and the owner, would not necessarily be an indication of

illegal activity, but appears to be common in the scienufic community

for the purpose of conducting legitimate and lawful experimentation. '”’

In this light, it seems the Affiant should have specified what ie had

seen with some detail, and how the various items described were most

likely present for an illegal purpose, and not some other legitimate

purpose. Petitioner submits that an assumption cf illegal activity is not

evidence; such an assumption does not make it more likely than not that

criminal conduct was Cocurring at the residence.

In support of argument, Petitioner offered this Honorable Court's

defin*tion of probable cause from Beck v. Ohio.’

Upon Preliminary Examination , the Affiant testified that he believed

that he had found a laboratory that was in the process of manufacturing

something, but he had no idea what stage of processing, and that from his

point of observation, he could not determine the process that was

involved.‘

Respondent argued that when the Affiant was on the rear deck of the

residence he, “through the glass of the door saw evidence of a drug

laboratory ...”.'#@

Respondent submitted that the Affiant’s allegation that he had

reviewed his reasons with other officers for believing that there was an

illegal drug lab within the subject residence was sufficient!'' because the

Affiant had stated his training and experience which qualified him to give

such an opinion, “especially within the context of probable cause, which

is all that is required™.'"

Respondent further submitted that even though the Affiant could not

specify what was being n:anufactured (sic) and was unable to deter-

mine the stage of processing, and though unabie to see the entire process

involved, did not “mean that he doubted that it was a laboratory”.'”

* 379 U.S. 89 (1964). In Beck, this Honorable Court asked whether the magistrate.

upon reading the Affidavit, could reasonably infer the probability that specific things

needed as evidence were located at the particular place to be searched. 379 U.S. at

® CT. L 118, 2426 119, 1-15. (see Appendices)

@ CT. IL 413, 23-25. (see Appendices)

'" CT, 0 415, 1823. (see Appendices)

"2 Id at 415, 26: 416, 1. (see Appendices)

" CT. IL 416, 2-7. (see Appendices)

Respondent reasoned that it was through the sliding glass door ist the

Affiant “saw what was obviously a drug laboratory”.'*

Respondent stressed that the smell of ether was indicative not only of

danger of fire or explosion, but was clearly an indication of a drug

laboratory.'"

As to the requirement of specificity as to the items sought to be seized

at the premises sought to be searched, Respondent reasoned that “from

the fact that affiant listed and asked to search for the chemicals used in the

making of both methamphetamine and PCP,” it may be that from the.

porch he could not see the chemicals and/or labels he was observing weil

enough to determine whether they were appropniate to one drug or the

other. Yet he could know from his experience that it was one or the

other”.'"* This argument, of course, was not supported (but was contra-

dicted) by the Affiant’s testimony.

Respondent suggested that a place apparently housing a laboratory

was a conclusion that even an “untrained person could reach from what

he saw, or what was described in this affidavit even though he could

neither describe nor fully understand the descripuon of the vanous

chemicals and apparatus seen.”""’ Petitioner countered with a query

whether a laboratory is evidence of illegal activity.'"*

The evidence introduced established that the Affiant was not sure

what he had seen with respect to the alleged laboratory operation at the

Affidavit did not indicate to him that any specific synthesis had been, or

was, in progress.""* Further, the expert testified that ether need not be

used in the illicit synthesis of narcotics, because ether is a solvent, not an

ingredient, and it is not necessary to use ether in the synthesis of

metharaphetamine of PCP.’ The expert submitted that there are a

number of solvents commonly used in the laboratory setting, only one of

which is ether.'2!

The expert submitted that there was nothing in the Return to the

Search Warrant that would indicate that someone was synthesizing

‘@ Jd at 20-22. (see Appendices)

us CT. IL 419, 11-15; 420, +9. (see Appendices)

‘@ CT. IL 421, 8-13. (see Appendices)

“? Jd at 24-26: 422. 1. (see Appendices)

‘8 Respondent concluded argument with the reasoning that “even without the benefit

of a trained opinion, it would be reasonable to conclude that a vacation rental

suddenly turned into a laboratory is probably manufacturing some illegal drug.”

C.T., 1 422, 3-4.

“? RT. Feb.. 28. 11-26 29, 1-18; 57, 21-26. (see Appendices)

® RT. Feb. 18, 19, 20. (see Appendices)

1) RT. Feb. 24, 18-19. (see Appendices)

something illegal, as the equipment described could be used for many

kinds of experiments or synthesizing.'=

The expert testified that he had studied a Chemical Abstract,' and

found that there were at least one hundred (100) to one hundred fifty

(150) uses of ether referenced in the literature. All references were to

lawful uses of ether, primarily in its solvent capacity.'*

The Court of Appeal affirmed the Trial Court when finding substantial

evidence existed which made “it substanuailly probable that there is

specific property lawfully subject to seizure presently located in the

particular place for whicl. —e warrant is sought”™* (citation omitted).

The Court of Appeal found that both the Affiant and the owner “had

observed tools, gloves. surring rods, and boxes of white powder in the

Crestline residence” (emphasis added). The law enforcement officer had

smelled ether on or about the premises” which “made it ‘substantial!’

probable’ that items used in the manufacture of controlled substances

were present at the residence . . ."%*”

SECTION TWO:

THE 28TH STREET WARRANT

(August 4, 1981)

DID THE AFFIDAVIT CONTAIN SUFFICIENT FACTUAL

ALLEGATIONS TO SUPPORT A FINDING OF PROBABLE

CAUSE?

At trial court, Peusioner prefaced argument by recitation of the facts

alleged by the Affiant in his Affidavit and submitted the same were

insufficient to support a finding of probable cause.'*

Petinoner suggested that the allegations regarding the Affiant’s expe-

nence with persons making illegal narcotics was “canned language,”

found within each of the affidavits challenged herein, and was not

supported by current relevant facts regarding Petitioner. Petitioner

argued that the facts so recited by the Affiant in his Affidavit did not

establish, with any certainty, that Petitioner resided at the address of the

property to be searched. Petitioner reasoned that a drivers license shown

upon signing a rental agreement, and subsequent inguiry to the

Department of Motor Vehicles which confirmed Petitioner’s drivers

‘ RT. Feb., 26, 20-26; 27, 1-2, 15-24; 28, 11-26 29; 30. 1-6, 21-26 31, 1-18.

(see Appendices)

‘3 A source of original literature in the field of chemustry.

* RT. Feb. 31. 1926: 32-35. (see Appendices)

33 RT. 2,282, 14-21. (see Appendices)

%® Ct. App. at 1 (Appendix A)

Cu App. at | and 6 (Appendix A)

CT., IL 274, 15-28; 275; 276: 1-16 and O.B., 43, 10-28. (see Appendices)

license address, without more, was insufficient. Petitioner reasoned that

absent some surveillance. informant information. or other information,

the Affidavit did not establish that any particular individual connected

with the findings of the August 3rd, 1981 (Crestline) search resided at

the premuses to be searched. Petitioner submitted that the Affiant failed

to establish that Petitioner was likely to be residing at the subject

property on the day in question, or any period or day contemporaneous

allege tacts which wouid jusufy a magist.ate’s inference that a crime had

been or was being committed at the subject property, nor that evidence

needed would be located at the premises to be searched.'>

Petitioner also argued that some of the facts alleged in the Affidavit

were stale, and should have deen excised.

Respondent argued that an experienced narcotics officer’s opinion on

the modus operandi respecting the location of drugs and/or records at

various places was competent evidence for a magistrate to consider.'3!

Respondent submitted that “numerous cases have upheld Search

Warrants on the theory that one who sells narcotics may have more at

his residence or place of operations”.'52 Respondent resolved that this

theory was applicable in the instant matter, because when there is an

allegation of the manufacture of narcotics “the purpose is obviously to

sell the finished product”.'33

Regarding staleness, Respondent argued that the Affiant’s allegations

about two people who rented another residence (Desert Hot Springs),

some six weeks prior, which allegedly contained an illegal drug lab, was

not stale information. Respondent reasoned the same was evidence of

continuing illegal activity by those (two) peopile.35

There was no evidence introduced at any time ‘ending to establish

that there was any surveillance of the residence to be searchd prior to the

issuance of the warrant, other than a cursory examination of the exterior

of the residence for the purpose of describing the same with

' R.T., 2, 292-301; 302, 1-20 O.B., 39-43; 44, 1-7 (see Appendices)

3° CT., I 278. 3-26, O.B., 40, 24-27 (see Appendices)

‘31 Respondent also argued. “. . . it is canned language because it is a predictable fact

from the officer's experience”. R.T.. 2, 320. 7-19; 424. 27; 425, t-3. (see Appendices)

‘2 CT. IL, 425, 46 (see Appendices)

‘3 CT., IL 425, 6-8 (see Appendices)

'% Not parties herein.

‘33 Respondent suggested that the inference to be drawn from that information was if

Petitioner’s “associates are dopers, he is probably one himself. That is a reasonabie

inference, out hardly a probable basis for issuance of the search warrant”. R.T., 2.

426, 6-15.

The trial court, in denving Petitioner’s Motion to Suppress respecting

the August 4, 1981 Search Warrant, made no specific findings.

The Court of Appeal affirmed the trial court. The court reasoned that

(a) the Affiant’s allegations regarding the August 3, 1981 search, (b) the

information about a Desert Hot Springs lab, and (c) Department of

Motor Vehicle information confirming Petitioner’s drivers license

address made “it ‘substantially probable’ that Petitioner resided at” the

subject residence, and “that this residence contained items used in the

manufacture of methamphetamme”. (citation omitted)!**

DID THE AFFIDAVIT CONTAIN ALLEGATIONS OF

FACT WHICH WERE “FRUIT OF THE POISONOUS

TREE™?7

Reliving upon a favorabie ruling respecting the August 3, 1981 Search

Warrant, Petitioner argued that the “fruit of the poisonous tree” doc-

trine!3* applied as to all allegations of fact within the Affidavit derived

from the August 3, 1981 search, and the same. therefore, should have

been excised.!%9

Respondent offered no response, either by way of written memo-

randa or oral argument.

The court referred to its decision to uphold the August 5, 1981,

(Crestline) Search Warrant, and ruled that the same, therefore, vali-

dated the August 4, 1981, search of the 28th Street residence.'*° The

Court of Appeal did not address the issue.'*!

SECTICN THREE:

THE 28TH STREET WARRANT

(December 14, 1981)

vil

DID THE AFFIDAVIT CONTAIN SUFFICIENT FACTUAL

ALLEGATIONS TO SUPPORT A FINDING OF PROBABLE

CAUSE?

3¢ Ct App. at 13.

57 Wong Sun v. United States, 371 U.S. 471 (1963).

138 Tbid

% C.T., IL 285, 7-17; 288. 3-22; 289, 3-28; 290. 1-5; R.T., 2, 308. 16-23: 309, 1-11

(see Appendices)

®@ RT., 2, 471, 2-6 (see Appendices)

‘#t It is reasonable to assume that the Court of Appeal found this argument moot.

having decided to affirm the trial court regarding the validity of the August 3, 1981

Search Warrant.

At trial court, Petitioner offered an outline of the facts alleged by the

Affiant in his Affidavit in Support of the Search Warrant,’ and

categorized those facts into three categories, (a) stale information. (b)

informant information. and (c) the conclusionary language of the

Affiant.'

A. DID THE AFFIDAVIT CONTAIN ALLEGATIONS OF

FACT WHICH WERE “STALE”

Petitioner argued that the allegation of the Affiant regarding the

August 3, 1981, search at the Crestline residence and August 4, 1981,

search of Petitioner’s residence was stale information, being over four

months old, and had no bearing on whether any particular activity

might be taking place at Petitioner’s residence on December 14, 1981.

Petitioner argued that the allegation ab~ut information provided by

an “unproven informant,” with no date specified, except that the infor-

mation came subsequent to the August 4 search, was stale.

Petitioner also argued that the allegation regarding Petitioner’s in-

criminatory admission was also stale information (as it was approxi-

mately ten weeks prior to issuance of the search warrant), '“ and

therefore, should have been excised from the Affidavit. Petitioner sub-

recent information. '*5

Respondent countered that the allegations of fact contained within

the Affidavit in Support of the Search Warrant showed a continuing

activity, and that continuing activity negates staleness.'

The Affiant testified that he did not include current information in the

Affidavit with respect to any activities allegedly taking place at the

subject residence; that .acre was no testimony given before the magis-

trate for the purpose of providing additional information to the magis-

trate in order to make a detemination as to the staleness issue;'*’ that the

information he received from the “unproven informant” was subse-

quent to the service ci the August 4, 1981 Search Warrant,'* and that

the language in the Affidavit was vague and the magistrate could have

assumed thai the information was received the day after the August 4th

search, or August 5, 1981.'*

42 CT., IL 301, 15-28; 302-305; 306, 1-13 (see Appendices)

3 C.T., IL, 306, 24-28; 307-320; 321, 1-19 (see Appendices) :

4 CT. IL 308, 24-28; 309, 1-3; R.T., 2, 503, 4-5, 19-21 (see Appendices)

“3 C.T., IL, 278, 9-27, and relying upon Sgro v. Unised States, 287 U.S. 207, 210

(1932). (see Appendices)

“6 CT. IL 429, 14-27; 430: 431, 1-5. (see Appendices)

7 RT., 2,454, 1-14 (see Appendices)

8 R_T., 2, 456, 14-20. (see Appendices)

1 RT. 2, 457, 1-16. (see Appendices) |

The trial court denied the motion of Petitioner.'™

The trial court agreed that the Affidavit probably should have had

more detail as to the times and places of the information relayed by

informants. '*!

The Court of Appeal affirmed the findings of the trial court, agreeing

that the “allegedly stale facts provided the magistrate with background

information and indicated the presence of a continuous course of

criminal conduct.”'5?

B. DID INFORMANT INFORMATION WITHIN THE

AFFIDAVIT SATISFY THE AGUILAR-SPINELLi “TWO-

PRONGED TEST”?

Petitioner argued that the Affiant’s reference to “an unproven infor-

mant,” with no date specified when this information was acquired

clearly failed to satisfy the “two-pronged” test established by Aguilar v.

Texas, 378 US 101 (1964), and Spinelli v. United States, 393 US 410

(1969).'%3

Petitioner argued that the information from the “reliable confidenual

informant” should have been excised from the Affidavit. Reasoning

that, even though said informant provided some specificity, this infor-

mant, without more, did not meet the requirements of A guilar-Spinelli

‘9 The court stated:

This in effect was an on-going situation. It was represented in the sense to be that

by the Affiant. and that although it is characterized as four and a half months —

four and a half months, I guess, is somewhat relative, and four and a haif months

can be extremeiy a long ume. I guess in the life span of a chicken — ranch fly thar

live and die and their whole life span or the space probe. which will go five

million years and still be carrying on long after we are gone.

So, relative time spans are important when you consider them within the — in

what we are going and that taken into context with the on-going investigation

and conduct, if you want to call it that, of both of the defendant and the law

enforcement peopie, and with regard to this case that is not an overly extensive

period of time with regard to the fact that it is not set forth with any particulanty,

and any particularity or specificity that MORTON (Petitioner) is a resident of

that property are detailed in the bases or facts upon which it is contended that he.

at that property, has some connection with him. P.T., 2, 471, 7-26; 472, 1-2.

‘St The court stated: That there were “lots of areas which .. . I suppose even a

magistrate issuing a warrant might well require that an Affiant coming before him

— I suppose I would or wouldn't depending on the time. day or night. of when it

was, how busy I-was — to put the Affiant under oath and say: ‘How abort this?

When was this search? What is going on here? Make more inquirv.’ But. I fee! that

with regard to these facts. they would be sufficient to sustain the warrant. It is on

those beses the court would deny the motions.” R.T.. 2, 472, 9-26.

‘2 Ct. App. at 19.

'3 C.T., IL 310 (see Appendices)

regarding reliability, nor personal knowledge as to the location of any

contraband.

Petitioner submitted that the confidential reliable informant did not

provide any information with respect to the place of residence of

Petitioner, and that the Affiant himself did not include any information

within the subject Affidavit to indicate to the magistrate why the Affiant

believed Petitioner still resided at the subject residence, nor why the

Affiant believed the things needed as evidence would be located at the

property. :

The Affiant testined that he had never used the informant as a source

of information prior to the occasion in question, and that the Affiant was

aware of the case law requirements for the purpose of establishing the

credibility of an informant.'**

Respondent argued that the “unproven informant” corroborates the

“he is another source of the same kind of information,” and that “the

date of his information is unimportant. It is sometime between the two

Search Warrants. and that is sufficient.”'*¢

See

established as such.'*’

Pechioner subeniteed that withia the Afiidavit there wes no allegntioa

that the informant was making a declaration against his penal interest

and that it was not reasonable to assume the same, due to his alleged

informant status with the Sheriffs Office.'™

The trial court refused to excise the informant information.'

The Court of Appeal, in affirming the trial court, held that “credibility

i CT. IL 312 6-28; 313, 1-11 (see Appendices)

‘8 C.T., I, 313, 12-17; R.T., 2. 453, 8-19 (see Appendices)

'% CT. IL 431, 8-17 (see Appendices)

‘7 Mr. Morrissey: “. . . che Affiant’s description of the informant as reliable is insuffi-

cient proof of that fact, but that if, in addition, his observations were sufficiently

detailed to make it clear that he is describing personally known events rather than

repeating rumors. and his information is against his penal interest, he is sufficiently

reliable to support the Search Warrant.” “. . . what he (the reliabie confidential

informant) had to say makes clear that the informant is describing events at which he

was present and which are incriminating to him.” C.T., @, 432, 6-11.

‘8 R.T., 2, 468, 8-26; 469, 1-6. (see Appendices)

18° The court stated that the “test of reasonableness is the main test,” and that “the

information supplied in the Affidavit wouid be sufficient in that regard having deait

with actual facts, times and places. and the closeness of the meeting at Sambo’s

restaurant. With regard to the dealing of the — amounted to an attempt to deal with

methamphetamine at that point with all of that information wouid be sufficient with

regard to the establishment of the reliablity elements; although it would indicate

some spareness as far as detailed information.” R.T., 2, 470, 9-10, 16-26; 471, 1.

and reliability may be established by corroboration,” and “Corrobora-

tion may . . . be established when two informants make independent,

but consistent, reports” (citations omitted).’

C. WERE ALLEGATIONS REGARDING BEHAVIOR OR

PERSONS INVOLVED WITH ILLEGAL DRUG TRADE

SUPPORTED BY CURRENT RELEVANT FACTS RE-

GARDING PETITIONER?

Within the Affidavit were allegations regarding the Affiant’s experi-

ence with individuals involved in illegal narcotics possession and sales

who hid the same in their homes, on their persons and in their ve-

hicles.'*!

In addition, the Affiant included language regarding his experience

with the use of false names and addresses, and false idennfications, bv

such individuals. '*

Petitioner argued that these allegations amounted to “canned lan-

guage” not supported by any current relevant facts regarding your

petitioner. 'S

Respondent argued that Petitioner was confusing probable cause

with reasonable doubt,'® and that an expert opinion is appropriately

considered when determining probable cause.'** Respondent reasoned

that a prior search of Petitioner’s residence ( August 4, 1981) along with

“subsequent evidence of continuing activity, . . . hardly takes an expert

opinion to conclude that another search may be productive also.”'©

No narcotics were in fact se’zed. However, the officers conducting the

search did seize approximately fourteen (14) guns and/or rifles. with a

subsequent allegation that one such handgun was stolen.'*’

Petitioner argued that an essential element missing from the Affidavit

was any facts tending to show that any of the evidence sought to be

seized would be located at the residence on »r about December 14,

1981.'* Other than stated herein, Respondent offered no response to

this argument.

The Court of Appeal affirmed the trial court in rejecting Petitioner’s

contention that the “canned language” of the Affiant should have been

@ Ct. App. at 20.

‘st CLT, IL, 398 (see Appendices)

'@ C.T., IL 399 (see Appendices)

18 C.T., IL, 316; R.T., 2, 465, 2-14. (see Appendices)

* C.T., IL 433. 13-20. (see Appendices)

'S CT. IL 433, 20-22. (see Appendices)

6 C.T., 1 434, 3-5. (see Appendices)

‘6? Count [IL Information. (See Appendix B . re: Procedural Background)

8 C.T.. IL, 318, 3-26 and 319, +15. (see Appendices)

excised. The Court found the “statements were based on Perry's per-

sonal knowledge and experience acquired during the assignment with

the . . . narcotics division”.'®

Vill

DID THE OFFICERS CONDUCTING THE SEARCH

EXCEED THE PERMISSIBLE SCOPE OF THE SEARCH

WHEN SEIZING PROPERTY THAT WAS NOT SPECIFIED

IN THE SEARCH WARRANT?

Petitioner argued that the officers searching his residence on De-

cember 14, 1981 seized property not listed in the Search Warrant, and.

therefore, exceeded the permissible scope of the search.'”°

During the course of this search, the Affiant seized a handgun which

he “determined was stolen before ... he ... left the premises on

December 14”,'7" by way of verbal report from a City police officer that

teletype information reflected the gun to be stoien.!”

Petitioner argued that the officers were not aware of some specific

and articulabie facts from which a rational link between the handgun

seized and criminal behavior could be inferred at the time he seized the

subject handgun, and that checking serial numbers to determine

whether the same was stolen constituted a search outside the permissible

scope of the Search Warrant, which must be narrowly drawn —

requiring 2 “pasticular description” of the things to be seized. The

se*zure of said gun was, therefore, the “fruit” of an unlawful search, and

should have been suppressed.'7

Petitioner recalled tesumony of the Affiant, that at the time the

Affiant prepared his Affidavit he had every intention of searching for

stolen property as well as items specified within the Warrant.'*

Respondent reasoned that the location of the gun, “secreted behind

the stereo along with several other handguns,” was reason for suspi-

cion'’S and the “warrant authorized an intensive search”.'”* The of-

ficers, therefore, were entitled to look anywhere, and were entitled to

‘® Ct App. at 21.

'% C.T., IL, 283-284: R.T., 2, 302, 21-26; 303-307: 308, 1-11. (see Appendices)

i” RT. 2, 475. 16-19. (see Appendices)

'2 RLT., Prelim.. June 1982, 103, 20-26; 104, 1-17.

‘3 Petitioner argued that Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971), and

Warden v. Havden, 387 U.S. 294 (1967) (in addition to California authorities) were

controlling. (C.T., 1, 321-323; R.T., 2, 422, 8-26 423-427).

1% C.T., L 126, 18-26; 127, 1-6. (see Appendices)

'%S RT. 2, 475, 24-26: 476, 1. (see Appendices)

1% CT. IL, 434, 26-28. (see Appendices)

seize “whatever stolen property they discovered and verified prior to

leaving the premises”.'”’

Respondent noted that Petitioner was being prosecuted for posses-

sion of only one gun which was verified as stolen prior to seizure and

removal from the residence.'7*

The evidence before the trial court established that: (a) A search for

guns or stolen property “was not the intended search”;'”® (b) The Affiant

believed that the location of the gun in question was certainly an

indication of its stolen nature;'*° (c) The gun did have serial numbers'*!

and that they were not altered:'*? (d) Neither the Affiant nor any of the

officers conducting the search had read any reports regarding the

specific gun in question;'*? (e) When the Affiant seized the gun. “it was

just another gun.” and he was not aware of anv facts that would link that

gun to some criminal conduct prior to a stolen property inquirv.'™

The trial court found that the officers acted properiv, and denied this

aspect of Petitioner’s Motion to Suppress Evidence.'**

The Court of Appeal affirmed the trial court.'**

Petitioner submits that the opinion of the Court of Appeal flies in the

face of this Honcrable Court’s decision in Coolidge v. New Hamp-

shire," supra, requiring that searches “be as limited as possible”'®* and

not encourage or permit a “general exploratory . . . rummaging in 2

person’s belongings™.'*®

7 CT. IL 434, 27-28; 435. 1. (see Appendices)

™ CT. IL 435, 1-3. (see Appendices)

'% RT. 2, 477, 15-17. (see Appendices)

‘® RT. 2, 477, 3-9. (see Appendices)

! RT. 2, 476, 19. (see Appendices)

CT. L 103, 20-22. (see Appendices)

® RT. 2, 476, 23-26. (see Appendices)

™ RT. 2, 481, 17-26. (see Appendices)

‘8S The court stated: “.. . that under the circumstances of this case would be total

background and investigation of the conduct that had been in both a considerabie

period of time and with regard to the prior searches, in which the wimess indicated a

substantial number of firearms had been picked up and not vet returned: that it was

unusuc( and surprising to him to find this weapon in that parucular locanion. That

would give him reasonable cause for suspicion and belief that it was in fact

contraband material, and would then being the bases for this confirmanon thereafter

in picking the item up.” R.T., 2, 484, 1-13.

"® Appendix A, at 44-45,

‘s? 403 U.S. 443 (1971).

‘8 fd at 467.

of Tbad

WERE REFERENCES IN THE AFFIDAVIT TO EVIDENCE

SEIZED PURSUANT TO THE AUGUST 3, 1981 AND

AUGUST 4, 1981. SEARCHES “FRUIT OF THE POISON-

OUS TREE™

Petinoner relied upon this Honorable Court’s decision in Wong Sun

v. United States’, arguing that if the August 3, 1981 (Crestline) Search

Warrant was found to be invalid, then the August 4, 1981 (28th Street)

Search Warrant must also be invalid. Petitioner reasoned, therefore.

that any reference to the same in the Affidavit supporting the December

14, 1981 search. was “fruit of the poisonous tree,”"*' and should have

deen excised from the Affidavit.

Respondent offered no argument in this regard.

Petitioner contended that if the same had been excised, the Affidavit

would not have contained facts sufficient to constitute probable cause:

particularly in light of the trial court’s finding “that this in effect was an

on-going situation”.'%?

WAS THE ALLEGED ADMISSION OF PETITIONER,

RECITED WITHIN THE AFFIDAVIT, TAKEN IN VIOLA-

TION OF PETITIONER'S “ MIRANDA RIGHTS™

Affiant, wherein Petitioner allegedly admitted his involvement in a

conspiracy to produce and sell drugs, was conducted in violation of

Petitioner’s Fifth Amendment Privilege Against Self-Incrimination.

Petitioner submitted that this Honorable Court’s holding in Miranda y.

Arizona,'™ clearly delineated that no amount of circumstantial evidence

indicating .hat a suspect may have been aware of his “Miranda rights”

wouid be sufficient to stand in place of adequate warnings respecting the

same, and a waiver thereof.'%*

Petitioner also argued that whether a person was “in custody” at the

time of the interview depended upon whether the subject reasonably

i 371 US. 471 (1963).

* id a

2 See FN. 150, supra.

‘3 Said interview took place on September 24, 1981 (six weeks after Petitioner's arrest

on August 4, 1981) at the Affiant’s office.

‘i 384 US. 436 (1966), wherein this Honorable Court delineated specific nghts a

suspect may invoke pursuant to the Privilege Against Seif-Incnmination. US.

Const.. amend. V.

8 CT. IL 325, 18-28; 326-327; 328, 1-23. (see Appendices)

believed that his freedom of movement was restricted by pressure of

authority. '%*

Respondent argued that the Miranda decision applied only when a

suspect was “in custody”'*’ and that Petitioner was clearly not in

custody."

Respondent did concede, however, that the “off-hand and quick

remarks” of Petitioner'®? wouid lend itself to “obviously stronger evi-

dence of waiver,” but that “a remark like that is certainly indicative of

the fact that he knows his rights and is willing to talk”.

The evidence introduced at the time of hearing upon this aspec: of

Petitioner’s Motion to Suppress Evidence included tesumony from each

of the Affiants in the Search Warrants challenged in Section One,

Section Two, and within this Section Three, respectively. The first said

Affiant to testify was the Affiant in the Affidavit in Support of the

August 3, 1981 (Crestline) Search Warrant, who testified that on

ie 1981, at Petitioner's residence, he advised Petitioner of his

Viranda rights” >"

" Next, Respondent offered the testimony of the Affiant in the Affidavit

in Support of the August 4, 1981 (28th Street) Search Warrant,”? who

testified that he conducted an interview with Petitioner which was not

tape recorded, he did not write an Incident Report regarding said

interview, he did not recall the date of the meeting, he did not make

notes about that interview, and he did not read to Petitioner the required

Miranda warnings.™

The Affiant in the Affidavit in Support of the December 14, 1981

(28th Street) Search Warrant. testified that shortly before interviewing

Petitioner on September 24, 1981, he contacted Petitioner by telephone

and asked Petitioner to come to his office to talk about “the charges

against him and about the case in general”.*™* This Affiant turther

testified that upon commencing the interview he asked Petitioner “if

he recalled being advised of his Rights and if he fully understood those

Rights, and he said that he did, there was no problem”. The Affiant

* CT. IL 328, 2428; 329, 1-4. (see Appendices)

‘” RT. 2, 522, 17-26. (see Appendices)

™ RT. 2, 521, 2-4. (see Appendices)

'* When asked if ie was advised of his Miranda rights on September 24, 1981

Petitioner purportedly responded with “yeah. no problem with that”. C.T.. 11, 520,

17-19; see FN. 200, infra

™® R.T., 2, 520, 17-23. (see Appendices)

™ R.T., 2, 490, 13-26. (see Appendices)

= RT. 2, 498, 1-23. (see Appendices)

™ RT., 2, 500, 12-26; 501, 1-24.

™ RT. 2, 502. 7-26, 503, +11. (see Appendices)

™ R.T., 2, 503, 24-26; 504, 1-2. (see Appendices)

also testified that Petitioner “understood that he was free to leave at

any ume”.

Upon cross-examination, the Affiant testified that he was familiar

with the decision of Miranda v. Arizona,*” and that he “contacted him

(Petitioner) on the phone probably a total of about four times”.** The

Affiant further testified that he was “completely unaware” of v. hether

the Petitioner might have been coerced by anyone else from his office,

but that it was possible. He ackno wiedged that he was aware of the fact

that he was not the oniy Detective contacting Petitioner, and that

Petitioner had in fact been to the office on prior occasions.” The

witness also testified that he was aware that criminal charges had been

filed charging Petitioner with criminal conduct prior to the interview,*"°

and that he knew that Petitioner would not have come to his office but

for his status as defendant in pending criminal proceedings.*'

The court found that the September 24, 1981, interview “was not in

fact a custody situation and there was not representation of record, as far

as Petitioner was concerned,”*"' and refused to excise the allegation of

Peunoner’s admussion.*

The Court of Appeal affirmed the trial court, finciing that Petitioner’s

alleged admission “was not elicited in a custodial setting, and was,

therefore, properly included in the supporting affidavit” **

CONCLUSION

In Weeks v. United States,*"* this Honorable Court determined that

evidence seized in violation of the Fourth Amendment must be imad-

missible in court. Through Weeks.*"* this Court created the Exclusion-

ary Rule whereby the sanction of exclusion of illegally obtained evi-

dence was determined to be the method of enforcing Fourth

% RT. 2, 504, 8-16, (see Appendices)

* RT. 2, 507, 911. (see Appendices)

™® RT. 2, 5807-21-26; 508, 1-2. (see Appendices)

™ RT. 2, 508, 10-18. (see Appendices)

=! RT. 2, 509, 1-16. (see Appendices)

2 R.T., 2, 528, 17-21. (see Appendices)

™3 RT. 2, S30, 22-26. (see Appendices)

= Ct App. at 21. (see Appendices)

3 232 U.S. 383 (1914).

™ Ibid

Amendment*"’ rights. This concept was later extended to the States by

way of the Fourteerth Amendment*"* in Mapp v. Ohio.*

The Exclusionary Rule was designed to prevent and deter violaters

of the Fourth Amendment." Said Rule is also premised upon the

theory that, as the late Justice (then Judge) Cardozo coined. “the

criminal must go free because the constable blundered”.*~ The opera-

tion of the rule then serves to educate the police so that they will not only

be more sensitive to the rights of individual citizens, but also more

thorough in their fact gathering prior to making application for a search |

warrant.

In the instant case, none of the affidavits in support of the three

respective search warrants contained detailed information derived by

way of surveillance. or otherwise — except informant information —

which would show that any of the affiants expended the necessary ume,

required by thoroughness, so that their affidavits might contain suffi-

cient relevant and current factual allegations to support probable cause.

Your Petitioner alleges that the three within affidavits are classic exam-

ples of the reason for the Exclusionary Rule.

{n his dissenting opinion in Olmstead v. United States, the Honora-

ble Justice Brandeis described the Exclusionary Rule as being based

upon the notion that a government should be as law-abiding as ‘ts

citizenry. Justice Brandeis suggested that if the agents of the state do not

follow laws, then it is unreasonable to expect the population to do so.

From its inception, the Exclusionary Rule has been subjected to

much criticism. However, none of the critics have suggested a more

viable method of enforcing Fourth Amendment rights for ail of the

citizens of these United States, without first making a determination as

to the innocence or guilt of the person complaining.

Your Petitioner suggests that rather than its critics suggesting that

Fourth Amendment rights are simply “technicalities” employed by

smart defense attorneys to “get their clients off", perhaps those same

individuals should take a closer look at not only the history of this

country preceding the drafting of this amendment, but also. the hollow-

* US. Cons. amend. IV.

™* US. Const. amend. XTV.

*% 376 U.S. 643 (1961).

3 Weeks v. United States, 232 U.S. 383 (1914).

= US. Const. amend. [V.

= Peopie v. Defore, 242 NY 13, 21 (1926).

= 277 US. 438 (1928).

™ US. Const. amend. [V.

ness of that euphemism “a man’s home is his castle” were the Fourth

Amendment not a part of our United States Constitution. For, absent

the Exciusionary Rule,* the Fourth Amendment’ would be nothing

more than a bark without a bite.

The criminal codes of our federal system and the states ai! provide for

punishment upon conviction of crime. That punishment serves as a

means of enforcing the penal codes. The Exciusionary Rule, likewise, is

a means of enforcing the rights guaranteed to all citizens of these United

States by way of the Fourth Amendment.* Absent the Exclusionary

Rule, your Petitioner submits, the courts would find themselves in the

nebulous position of having to determine the innocence or guilt of the

complaining party before deciding whether to exclude unlawfully seized

evidence.

Your Petitioner submits that the judgment of the Court of Appeal,

Fourth Appellate District, Division Two, State of California, in affirm-

ing the trial court, has upheld, as to each issue litigated herein-below,

arguments from Respondent that so contrast with this Honorabie

Court’s decisions cited herein and regarding the Fourth Amendment. as

to be outrageous. Whether your Petitioner is guilty of the crimes

charged was never at issue during the course of Motions to Suppress.

below. On the contrary, your Petitioner submits that he is entitled to

all the protection afforded to each and every citizen of these United

States by way of the Fourth Amendment” prior to any devermination

of innocence or guilt. Respondent, however, has clearly ignored this

concept.

For the foregoing reasons, it is respectfully requested that this Honor-

able Court grant the Writ of Certiorari petitioned for herein.

= bid

28 Weeks v. United Stases. 232 U.S. 383 (1914)

=” US Const amend, IV.

23 bid.

» Did

APPENDICES

COURT OF APPEAL, FOURTH DISTRICT

DIVISION TWO

STATE OF CALIFORNIA

PEOPLE OF THE STATE

OF CALIFORNIA,

Plaintiff and Respondent,

E000208, E000217, E000292,

(Consolidated Cases)

v. (Super. Ct. No. 38968)

(Super. Ct. No. 39203)

CHESTER MORTON, et ai.,

OPINION

Defendants and Appeilants.

ee a ee

APPEALS from the Superior Court of San Bernardino County.

William Pitt Hyde and Ben T. Kayashima, Judges. Affirmed.

Gary W. Smith for Defendants and Appellants.

John K. Van de Kamp, Attorney General, Frederick R. Millar, Jr.

and Janelle B. Davis, Deputy Attorneys General, for Plaintiff and

Respondent.

Based on evidence seized during the execution of three search war-

rants, defendant Morton was charged with conspiring to manufacture,

transport, and sell methamphetamine (Pen. Code, Section 182/Health

& Saf. Code, Section 11379, subd. (a)), possessing an opiate for sale

(Health & Saf. Code, Section 11351, subd. (a)), and possessing

methamphetamine (Health & Saf. Code, Section 11377, subd. (a)). Ina

separate action, defendants Morton and Quesada were jointly charged

with possessing methamphetamine for sale (Health & Saf. Code, Sec-

tion 11378, subd. (a)), and concealing stolen property recovered in

August of 1981 (Pen. Code, Section 496). Morton was individually

charged in that separate action with concealing stolen property reco-

vered in December of 1981 (Pen. Code, Section 496). Following a

denial of their motions to suppress and quash, Morton pleaded guilty to

one count of conspiring to manufacture methamphetamine and one

count of concealing stolen property.! Quesada pleaded guilty to possess-

ing methamphetamine, a lesser included offense of possessing metham-

‘Whether Morton pleaded guilty to the August or December concealing count is

unclear. As a result, the circumstances underlying each count are the subject of

challenge.

phetamine for sale. Bot defendants appeai from the denial of their

motions, alleging that the trial court committed several errors with

respect to each search warrant. We apply California law in evaluating

these allegations becuase the crimes herein charged occurred before the

effective date of Proposition 8. (See People v. Smith (1983) 34 Cai.3d

251, 258.)

AUGUST 3rd SEARCH WARRANT

FACTS

% In early August of 1981, Detective Raymond Rucker of the San

\ Bernardino County Sheriff's Office requested a warrant authorizing the

* search of a Crestline residence. Ir, support of that request, Rucker

p drafted an affidavit which provided in pertinent part:

: “Deputy (Rick) Roper advised your affiant on August 3, 1981,

that a citizen informant had (made observations at 24601 Lake

Gregory Drive indicating the possible operation of a clandestine

laboratory.)

“(Y)our affiant contacted (the informant) ... and asked him to

describe what he had observed ... . (The informant) said that on

Saturday August Ist, 1981, (he) had driven to the Crestline area

from his Whittier home to visit with his son and daughter-in-law,

and also at the same time check on the cabin that he owned as a

rental in the Crestline area.

“Upon arrival at approx. 1300 hours August Ist, 1981, he noted

the outside lights of the cabin to be on. (The informant) states he is

personally paying the utilities for this cabin and he wanted to talk

to the renter about turning them off. (The informant) said that he

smelled a strong sweet odor as he approached the residence, and

also felt that there was possibly a burglary, as his front screen door

had been removed from the residence. He said he knocked on the

front door, received no answer, and started around the rear of the

residence, via a catwalk, or sun deck that surrounds the residence.

“As he went around the residence, he noted that on the chaise

lounges and furniture sitting on the sun deck were toois and gloves

and several packing cases and some long rods that he described as

either plastic, or glass, possibly used as some kind of stirring rods.

_ (The informant) said once he arrived at the rear of the residence,

the sliding patio door was open; however, the screen door was

closed. He said he yelled to see if anyone was there and noted the

strong sweet smell to be even stronger there.

“He said the inside of the residence was in a severe state of

disarray, with many more boxes, he described as packing cases,

many large crocks, made out of different types of material, and

some containers containing white powder.

“Your affiant asked (the informant) for the name of the realtor

that had rented the residence and he related the following informa-

tion. It was through Red Carpet Realty in Crestline with a Jan

Stowe Realtor, Phone 338-1766.

“Your affiant subsequently contacted Jan Stowe at approx. 1130

hours August 3rd, 1981 at her office and asked her who she had

rented the residence to. She stated it was a subject by the name of

Chester Lyndon Morton, who gives a residence address of 1799

West 28th Street, San Bernardino, and a residence phone of

887-4600. She described Morton as in his thirties, approx. 6-0” in

height and slender, with long grey and brown hair that is curly and

he is a white male adult, clean-cut.

“After receiving all of the aforementioned information from in-

formants, your affiant, Detective Holloway and Special Deputy

Centner, drove to the area of 24601 Lake Gregory Drive, in

Crestline. Upon arrival, your affiant and Detective Holloway

stepped from the Sheriff's vehicle into the roadway in front of the

residence and immediately noted a strong odor of ether coming

from the residence at 24601 Lake Gregory Drive, in Crestline.

Your affiant and Detective Holloway, being aware of the extreme

volatile nature of ether and the danger to persons in or around

ether, and to remove any doubt as to where the odor was coming

from, and to insure the safety of anyone in or around the residence,

your affiant and Detective Holloway walked down the brown

colored wood stairs to the front door of the residence at 24601

Lake Gregory Drive, in Crestline. Detective Holloway and your

affiant then knocked at the front door of the residence and upon

getting no reply to the knock, walked on the deck, running to the

rear of the residence. Once at the rear of the residence, vour affiant

and Detective Holloway observed several cardboard boxes,

stacked on the deck and a brown bottle containing a liquid

substance, dark rubber gloves and glass tubes.

i il eh oe

ee ee ”

iis ae,

“We then walked to the rear sliding patio door of the residence

and through the undraped sliding glass patio door, Detective

Holloway and your affiant observed numerous containers of

liquid, chemicals, white powder substance and a very strong odor

of ether and numerous articles of laboratory equipment. Detective

Holloway and your affiant then returned to the Sheriff's vehicle

and called for a Sheriff's Patrol unit to remain at the scene of the

residence to secure it and prevent anyone from entering the

residence. .

“Your affiant and Detective Holloway then called for officers

from the Sheriff's Crime Laboratory, Sheriff's Identification De-

tail, and Fire Department Offici(a)ls to assist in the investigation.”

Based on this affidavit, a search warrant was issued on August 3,

1981. During its subsequent execution, officers discovered items utilized

in the manufacture of methamphetamine. With respect to the August

3rd warrant, Morton contends: (1) the trial court erred in determining

that the supporting affidavit established probable cause; (2) the trial

court erred in failing to properly determine whether the supporting

affidavit contained intentional misstatements and omissions; and (3) the

trial court erred in failing to excise from the supporting affidavit affiant’s

rear deck observations.

DISCUSSION

Alleging that Rucker’s affidavit did not establish the existence of

criminal conduct, Morton first contends the trial court erred in deter-

mining that this affidavit furnished probable cause to search the Cres-

tline residence. Recognizing that such determinations must be upheld if

supported by substantial evidence (People v. Edwards (1981) 126

Cal.App.3d 447, 452; Peopie v. Manning (1973) 33 Cal. App.3d 586,

598-599), we consider Morton’s contention in light of this standard.

An affidavit establishes probable cause to search when it contains

facts making “it substantially probable that there is specific property

lawfuily subject to seizure presently located in the particular place for

which the warrant is sought.” (People v. Cook (1978) 22 Cal.3d67, 84,

fn. 6.) In this instance. the affidavit at issue related that a citizen

informant and an experienced law enforcement officer had observed

tools, gloves, stirring rods, and boxes of white powder in the Crestline

residence. The affidavit also related that the law enforcement officer had

smelled ether on or about the premises. Because these facts made it

“substantially probable” that items used in the manufacture of con-

trolled substances were present at the residence, th> trial court's finding

of probable cause is supported by “substantial” evidence.*

In support of his motions to suppress and quash, Morton asserted that

Rucker had intentionally misstated the following in his affidavit: (a) that

the citizen informant had observed a clandestine laboratory at the

Crestline residence; (b) that he had smelled ether in or about the

residence upon investigating the informant’s report; (c) that he had

knowledge of the danger to persons in or about the residence occasioned

by the presence of ether; and (d) that he had contacted Fire Department

Officials to assist. Morton also asserted that because Rucker was not

actually concerned about public safety he had intentionally omitted

material facts from his affidavit. After hearing argument on these points,

the trial court found that Rucker’s affidavit did not contain material

misstatements or omissions. Morton appeals from that finding, contend-

ing that the trial court failed to properly apply governing law. -

When a defendant believes that a search warrant affidavit contains

intentional misstatements, he must prove the existence of such mis-

statements, as well as prove the affiant’s knowledge of their falsity.

(People v. Cook, supra, 22 Cal.3d at 89.) Similarly, when a defendant

believes that an affiant has intentionally ositted facts, he must prove the

materiality of those omissions. Once such materiality has been estab-

lished, the trial court must then determine whether the omissions were

reasonable, negligent, or intentionally misleading. If reasonable or neg-

ligent, the prosecution bears the burden of establishing that they were

proper; if intentionally misleading, the defendant bears the burden of

establishing the affiant’s intent to mislead. (People v. Kurland (1980) 28

Cal.3d 376, 387-390.)

Having examined Morton’s contention in light of these principles, we

find it untenable. In determining that Rucker’s affidavit did not contain

material misstatements or omissions, the trial court effectively con-

cluded that Morton had not met his threshold burdens of proof. Despite

defendant’s assertions to the contrary, the court was not thereafter

required to make any additional findings.

iil

Tee OM Es eee Seley ee.

- Se

The odor of ether alone may have justified this finding. (See People v. Osuna (1985)

85 D.A.R. 1123, 1124; People v. Messina (1985) 85 D.A.R. 968, 968-969: Peopie v.

Stegman (1985) 164 Cal.App.3d 936, 942-945; People v. Paterson (1979) 94

Cal. App.3d 456, 462-464.)

Morton finally contends that the trial court erred in failing to excise

from the supporting affidavit Rucker’s rear deck observations. He

specifically asserts that these observations were made: (a) during an

unlawful confirmatory search, and (b) in violation of his reasonabie

expectation of privacy. We do not agree.

Upon exiting his vehicle, Rucker immediately smelled a strong odor

of ether eminating from the Crestline residence. Recognizing the danger

occasioned by the presence of ether, he knocked on the front door of the

residence “to remove any doubt as to where the odor was coming from,

and to insure the safety of anyone in or around the residence.” When no

one answered, he walked along a deck to the rear of the residence, noted

a very strong odor of ether from that location, and observed both inside

and outside the residence items indicating the operation of a clandestine

laboratory. He, thereafter calied the fire department to assist and secure

the residence to prevent anyone from entering it.

Under these circumstances, Rucker’s actions were unquestionably

proper. Ether is a potentially volatile chemical, and its presence in or

about the Crestline residence constituted an exigent circumstance. This

exigency, in turn, enabled Rucker to walk onto the rear deck without

violating Fourth Amendment proscriptions. (People v. Osuna, supra,

85 D.A.R. at 1124; People v. Messina, supra, 85 D.A.R. at 968-969;

People v. Stegman, supra, 164 Cal.App.3d at 943-945; People v.

Patterson, supra, 94 Cal.App.3d at 462-464. See also People v. Ramey

(1976) 16 Cal.3d 263, 276.) From that vantage point, the items de-

scribed in the affidavit were in plain view.

AUGUST 4th SEARCH WAR KANT

FACTS

Immediately after execution of the first search warrant, Detective

Donaid Hankerson of the San Bernardino County Sheriffs Office

requested a warrant authorizing the search of Morton’s San Bernardino

residence. In support of that request, Hankerson drafted an affidavit

which provided in pertinent part:

“On Monday, August 3, 1981, your affiant assisted Detective

Rucker in the service of a search warrant signed by Judge David

Press from the Crest Forest Judicial Court. The search warrant

was served at 24601 (sic) Lake Gregory Drive in the Crestline

area, County of San Bernardino, State of California.

“During the search of the residence, your affiant found a large

Clandestine laboratory with chemicals, books, heaters, narcotic

formula notations, filters and filter papers and other items used in a

clandestine laboratory. Further investigation revealed rent

receipts for the residence with the name Chester Lyndon Morton

on it with rent paid up until August 1981. The address on the rent

receipt for Chester Morton was 1799 W. 28th Street, San Bernar-

dino with a driver’s license #M0074955.

“Detective Rucker contacted a Jan Stowe on Monday, August 3,

1981 and she stated that she was a realtor for the Red Carpet

Realtors in the Crestline area. She stated to Detective Rucker that

she had rented the residence at 24601 Lake Gregory Drive to a

subject known as Chester Lyndon Morton. And that he had given

the above listed address and driver’s license number.

“Your affiant ran a records check on a Chester L. Morton and it

revealed that his address was 1799 W. 28th Street in San Bernar-

dino, California and that his driver’s license was M0074955.

“Other papers located at the Lake Gregory Drive address

revealed the names of Steven Goode and Candace Corneil. There

was a receipt from the Radio Shack, a receipt from Leo's Stereo

and a copy ofa birth certificate with the name Steven Goode on it.

There was also a receipt from a storage unit in the Laguna Hills

area with the name Candy Cornell on it.

“A further search revealed a rent receipt for a residence located at

19330 Sagebrush Trails in the Desert Hot Springs area of Califor-

nia.

“Your affiant talked to Detective Bob Doyle from the Riverside

County Sheriff's Office, Desert Hot Springs Station on Tuesday,

8-4-81. Your affiant was inquiring about the residence on the

Sagebrush Trails in tne Desert Hot Springs area. Detective Doyle

told your affiant that on June 25, 1981 he had served a search

warrant at that residence and found a clandestine laboratory

within the residence. Detective Doyle aiso told your affiant that

during the search of the residence he found papers inside the

residence with the names Candace Cornell and Steven Goode on

them. He stated there was a rent receipt for the residence with the

name Steven Goode on it.

ee Ne ee

“A further search revealed a rent receipt for a residence located at 19330

Sagebrush Trails in the Desert Hot Springs area of California.

“Your affiant talked to Detective Bob Doyle from the Riverside County

Sheriff's Office, Desert Hot Springs Staion on Tuesday, 8-4-81. Your

affiart was inquiring about the residence on the Sagebrush Trails in the

Desert Hot Springs area. Detective Dovie told your affiant that on June

25, 1981 he had served a search warrant at that residence and found a

clandestine laboratory within the residence. Detective Doyle also toid

your affiant that during the search of the residence he found papers

inside the residence with the names Candace Corneil and Steven Goode

un them. He stated there was a rent receipt for the residence with the

name Steven (soode on it.

“It has been your affiant’s experience that subjects involved in the

illicit manufacture and/or possession of narcotics often hide the

substance and paraphernalia for manufacturing in their homes, on

their persons and in their vehicles away from the actual laboratory

operation. Further, it has been my experience that subjects

involved in the clandestine laboratories will manufacture the

drugs at one location (sic) and take it to another location. It has

also been your affiant’s experience that subjects involved in the

manufacture of illicit drugs will have narcotic formuias, business

ledgers and other documents pertaining to narcotic transactions

on their person, in their residence and in their vehicles, also other

documents which tend to identify those people involved and other

co-conspirators (sic). It has also been your affiant’s experience that

people that rent residences for the purpose of manufacturing illicit

drugs will not live in those residences, they just use them to

manufacture the drugs and then take the finished product to a

different residence. It is your affiant’s opinion that with the above

facts listed, that now located at 1799 W. 28th Street in the City of

San Bernardino, County of San Bernardino, State of California,

there is now being possessed for sale a quantity of Methamphe-

tamines, MDT, all which tend to show that a felony is being

committed in the City of San Bernardino, County of San Bernar-

dino, State of California.”

Based on this affidavit, a search warrant was issued on August 4,

1981, and executed while Morton and Quesada were present in the

subject residence. During that execution, officers discovered 122 items

not specified in the warrant that they believed were stoien. Via radio

transmission, they confirmed their suspicions with respect to certain

items and then seized each of the 122 items. After ascertaining that

Quesada lived in the residence, officers also searched her purse and

seized a small quantity of methamphetamine discovered therein. With

respect to the August 4th warrant, Morton and Quesada jointly con-

tend: (1) the trial court erred in determining that the supporting affidavit

established probable cause, and (2) the trial court erred in refusing to

find that officers had exceeded the scope of their authority by seizing

items not specified in the warrant. Quesada separately contends that

Officers exceeded the scope of their authority by searching her purse.>

DISCUSSION

Morton and Quesada first contend the trial court erred in determining

that Hankerson’s affidavit furnished probable cause to search the 28th

Street residence. According to defendants, the affidavit neither estab-

lished that Morton lived at the aforementioned residence, nor estab-

lished that this residence housed the property sought to be seized.

Recognizing again that a finding of probable cause must be upheid if

supported by substantial evidence (People v. Edwards, supra, 126

Cal.App.3d at 452; People v. Manning, supra, 33 Cal.App.3d at 598-

599), we consider <iefendant’s contention in light of this standard.

Hankerson related in his affidavit the following facts: (a) that Morton

had rented a Crestline residence; (b) that the residence had been

searched on August 3rd; (c) that this search had, among other things,

resulted in the discovery of a clandestine laboratory and a rental receipt

for a Desert Hot Springs residence; (d) that the Desert Hot Springs

residence had been searched: and (e) that this search had resulted in the

discovery of a clandestine laboratory. Hankerson also related that he ran

a records check on Morton and determined that he resided at 1799 West

28th Street in San Bernardino. Despite defendant's assertions to the

contrary, these facts make it “substantially probable” that Morton

resided at the 28th Street residence and that this residence contained

items used in the manufacture of methamphetamine (See People v.

Cook, supra, 22 Cal.3d at 84, fn. 6.) This probability, in turn, compels a

finding that the trial court’s probable cause determination is supported

3 Asserting that the August 3rd search warrant was improperly issued. defendants also

contend that items discovered during execution of that warrant were “fruits of the

poisonous tree” and hence. should not have been inclucied in the affidavit supporting the

August 4th warrant. Having previously determined that the August 3rd warrant was

properly issued, we summarily reject this contention.

by “substantial evidence.”

Morton and Quesada next contend the trial court erred in refusing to

find that officers had exceeded the scope of their authority by “seizing”

items not specified in the warrant. The contested “seizure” allegedly

occurred when officers picked up the items for the purpose of noting

their brand names and/or serial numbers. We discern no error.

California courts have consistently heid that officers may seize items

not specified in a warrant if those items are “determined to be contra-

band through radio identification by an official source.” (Nunes v.

Superior Court (1980) 100 Cal.App.3d 915, 931. See also People v.

Sedillo (1982) 135 Cal.App.3d 616, 623; People v. Murray (1978) 77

Cal.App.3d 305, 310.) In order to make such a determination, officers

have a corollary right to examine items for characteristic markings, the

exercise of which does not even consitute a search or seizure (People v.

Oriosky (1974) 40 Cal.App.3d 935, 938; Peopie v. Superior Cour:

(1969) 2 Cal.App.3d 131, 134-135; see also People v. Roberts (1956)

47 Cal.2d 374, 380), let alone an illegal one. (People v. Fizzen (1974) 43

Cal. App.3d 253, 258, fn. 3.) This is especially true when, as here, the

quantity and/or placement of items indicates that they obviously were

not on the scene for ordinary use. (See People v. Eitzen, supra, 43

Cal.App.3d 257, at 257-258. See also 2 LaFave, Search & Seizure,

Section 4.11, p. 172.)

Having determined the precise authority possessed by executing

Officers, we reach the following conclusions with respect to their con-

duct in this instance: to the extent that the officers removed items from

Morton’s home without first identifying them as stolen property, they

exceeded the scope of their authority. The “nexus” required between

these items and criminal behavior was simply not established. (See

People v. Hill (1974) 12 Cal.3d 731, 761-762, overruled on other

grounds People v. DeVaughn (1977) 18 Cal.3d 889, 896: Nunes v.

Superior Court, supra, 100 Cal.App.3d at 926-933.) Because the

appropriate remedy for such conduct is, however, suppression of the

items (see People v. Superior Court (Meyers) (1979) 25 Cal.3d 67, 75,

fn. 7, 79), our conclusion does not inure to the benefit of either

defendant here. Morton pleaded guilty to concealing property that was

properly identified as contraband via radio transmission before it was

removed. Quesada, on the other hand, did not even plead guilty to the

concealing charge.

Quesada separately contends the trial court erred in refusing to find

that officers had exceeded the scope of their authority by searching he:

purse. We reject this contention outright, noting that law enforcement

officers may search a resident's personal effects and receptacies when, as

here, those articles might reasonably contain items described in the

warrant. (See People v. Saam (1980) 106 Cal App.3d 789, 794.)

DECEMBER 14th SEARCH WARRANT

FACTS

In mid-December of 1981, Detective Louis Perry of the San Bernar-

dino County Sheriff's Office requested another warrant authorizing the

search of Morton’s San Bernardino residence. In support of that request,

Perry drafted an affidavit which provided in pertinent part:

“On about August 3, 1981, Detective RUCKER of the San

Bernardino Sheriff's Office Narcotics and Selective Investigations

Division, served a Search Warrant on a residence located at

24601 (sic) Lake Gregory Drive, Crestline, where a clandestine

methamphetamine laboratory was in operation. Subsequent to

serving that Search Warrant, a second Search Warrant was served

on the home of Chester Lindon (sic) MORTON at 1799 West

28th Street, San Bernardino, California. At that 28th Street home,

numerous items of evidence linking Chester MORTON to a

conspiracy to manufacture and distribute methamphetaminues

were seized. Subsequent to the service of the Search Warrant at

1799 West 28th Street, and the arrest of Chester MORTON, I

have received information from an unproven informant that

MORTON ss still dealing large quantities of methamphetamines.

Further, I conducted an interview with Chester MORTON sub-

sequent to his arrest wherein he admitted his participation in a

conspiracy to distribute methamphetamines and association with

Sean FAHY, a wanted fugitive, and manufacturer of controlled

substances.

“On December 14, 1981, i conducted an interview witha reliable

Confidential Informant, who advised me that he is to purchase

between two and four ounces of methamphetamine from a subject

named Michael APPELLO for approximately $1400.00 per

ounce, on 12-1— at about 1800 hours. The RC/I further advised

————

on December 3, 1981, he purchased a sample of methamphetam-

ine (approximately one-quarter gram) for $25.00 from Michael

APPELLO. That sampie (sic) purchase was made in furtherance

of the larger purchase and investigation. On that December 3.

1981, meeting, Michael APPELLO was alledged (sic) to have

shown the RC/Ia tripple (sic) beam scale, and shown him how to

use it to weigh (sic) narcotics for resale.

“On December 12, 1981, in the evening, the RC/I again met with

Michael APPELLO, Shirley WINTERS and others to firm up the

quantity of narcotics to be purchased on December 14, 1981, and

the price. The RC/I and the suspects remained at their meeting

place until after 0200 hours on 2-13-81, when they went to

Sambo’s Restaurant on Highland Avenue, in San Bernardino. The

RC/I was asked by Michael APPELLO to deliver him to that

location. While there, a WMA introduced as “CHET,” driving 2

bronze 1975 Corvette, California license #18SUGE, arrived, sat

down with the RC/L, Michael APPELLO and others. While

there, the RC/I overheard Michael APPELLO tell “CHET™ that

the RC/I was the subject he was selling the methamphetamine to

Monday night (12-14-81). Prior to APPEI.LO making that state-

ment, the RC/I heard “CHET™ say to APPELLO that his “stuff”

was ready tha: he (APPELLO) needed for Monday night. The

RC.’I had heard APPELLO call methamphetamine “stuff” on

prior occasions — I have also heard narcotics substances referred

to as “stuff.”

“During that meeting, “CHET™ produced a clear plastic baggie

containing a white powder (suspected controlled substance) and

offered the RC/I some, which he declined. “CHET” also related

that he had just returned from processing the substance offered.

The RC/I said that though he has heard both Michael APPELLO

and Shirley WINTERS speak of “CHET” in the past, that was the

first time he has met him. During the past references to “CHET,”

both WINTERS and APPELLO have told the RC/I that he had

good speed and coke. The RC/I also heard APPELLO tell

WINTERS on a prior occasion that he (APPELLO) was enroute

to meet with “CHET™ to get some “stuff” to take to the North

Fortys Bar and deliver.

“I showed the RC/I a photograph line-up containing six male

subjects, and asked if he recognized anyone depicted. The RC._'I

said without hesitation that subject #5 was the “CHET” he was

speaking of. Subject #5 is Chester MORTON. Further, the 1975

bronze Corvette 18SUGE driven by CHET belongs to MORTON

and was claimed by MORTON to have been a gift from Sean

FAHY. During the search of MORTON’s home on 8-+-81, a

large quantity of methamphetamine was seized.

“It has been vour Affiant’s experience that subjects involved in the

illicit manufacture and/or possession of narcotcs often hide these

substances and paraphernalia for manufacture in their homes, on

their persons, and in their vehicles. Further. it has been my

experience that involved subjects also possess in their homes,

vehicles, and on their persons, narcotics formulas, business ledgers

pertaining to narcotics transactions, and other documents tending

to identify other persons involved.

“It has been vour Affiant’s experience that persons involved in

addresses to hide their identities and illegal businesses. Telephone

toll information is often crucial in successfully investigating such

tanned axaivity.

“It has also been my experience that persons involved in the illegal

manufacture of controlled substances often possess false identifi-

cation, operate vehicles registered in names other than their own,

use intermediaries to conduct their illegal business, use post office

boxes, and use false physical addresses to conceal their true

venchtn bnih teat beeen

Based on this affidavit, a search warrant was issued and executed on

December 14, 1981. During that execution, a handgun not specified in

the warrant was discovered behind a stereo and seized after officers

determined via radio transmission that it has been stolen. With respect

to the December 14th warrant, Morton contends: (1) the trial court

erred in determining that the supporting affidavit established probable

cause, and (2) the trial court erred in refusing to find that officers had

exceeded the scope of their authority by seizing an item not specified in

the warrant.‘

“Asserting that the August 3rd and 4th search warrants were improperiy issued

and/or executed, Morton also contends that items discovered pursuant to those war-

rants were “fruits of the poisonous tree” and hence, should not have been included in the

affidavit supportung the December | 4th warrant. Having previously determined that the

August 3rd and 4th warrants were properly issued as well as executed. we summarily

reject this contention.

DISCUSSION

According to Morton, Perry’s affidavit contains stale facts. “conclu-

sionary” language, information reported by unreliable informants, and

admissions obtained in violation of Miranda v. Arizona (1966) 384 U.S.

436. Citing these reasons, Morton contends the tral court erred in

determining that this affidavit established probable cause to search. We

consider each alleged defect in turn.

Morton characterizes as stale the following facts: (a) the carcum-

stances surrounding the August 3rd and 4th searches; (b) his admission

made on September 24th; and (c) the undated information provided by

the “unproven informant.” We do not agree. To successfully avoid a

staleness claim, facts must be so closely related to the ume of the

warrant’s issuance that a magistrate would be justified in entertaining a

strong suspicion that contraband is sull present in the place to be

searched. (See Sgro v. United States (1932) 287 U.S. 206, 210.) No

clear cut rule, however, specified when the time span must be deemed

too attenuated. Each case must instead be judged on its own facts. (See

Alexander v. Superior Court (1973) 9 Cal.3d 387, 393.) In this instance,

the allegedly stale facts provided the magistrate with background infor-

mation and indicated the presence of a continuous course of criminal

conduct. Accordingly, while the warrant was issued a number of

months after those facts were received, we cannot in good faith adopt

the proffered characterization.

Morton also characterizes as “conclusionary” Perry's statements con-

cerning the tendency of illicit drug manufacturers to utilize false names

and hide contraband in their places of residence. We reject this conten-

tion Outright, noting that these statements were based on Perry’s per-

sonai knowledge and experience acquired during his assignment with

the sheriff's narcotics division.

Morton next insists that Perry did not state facts in his affidavit from

which the magistrate could reasonably have concluded that the infor-

mants were credible or reliable. (See People v. Hamilton (1969) 71

Cal.2d 176, 180.) While this point is well taken, credibility and reliabii-

ity may be established by corroboration. Corroboration may, in turn, be

reports. (See People v. Sheridan (1969) 2 Cal_App.3d 483, 489. See also

hake Fein (1971) 4 Cal.3d 747, 753.) Because such reports were

made by the informants in this instance, the trial court properly consi-

dered them in determining the existence of probabie cause.

Penultimately, Morton asserts that his September 24th admission

should not have been included in Perry’s affidavit because it was

obtained in violation of Miranda v. Arizona, supra. In order to evaluate

the validity of this assertion, we must first determine whether Morton

was “in custody” at the time the admission was made. For purposes of

assessing a Miranda violation, an individual is in custody when he is

“physically deprived of his freedom of action in any significant way or

(was) led to believe, as a reasonable person, that he (was) so deprived.” —

(People v. Arnold (1967) 66 Cal.2d 438, 448.) In this instance, Perry.

contacted Morton by telephone after Morton had been charged with

concealing stolen property and released on bail but before he had

obtained counsel. During the ensuing conversation, Perry asked Morton

to come to the police station to discuss the charges against him. Morton

complied, and without first having been advised of his Miranda rights,

he admitted that he was involved in a conspiracy to manufacture

methamphetamine. He thereafter left the station. Under these circum-

stances, we fail to discern how Morton was actually or constructively

deprived of his freedom of action. Despite Morton’s assertions to the

contrary, his admission was not elicited in a custccdiai setting and was,

therefore, properly included in the supporting affidavit.

Having determined that none of the alleged defects exist, we conclude

that the trial court’s probable cause determination did not constitute

error.

Morton finally contends the trial court erred in refusing to find that

officers had exceeded the scope of their authority by seizing the hand- —

gun. For reasons stated on pages 13 through 15 of this opinion, we

discern no error.

The judgments are affirmed.

NOT FOR PUBLICATION

We concur:

McDaniel

APPENDIX B

I. PROCEEDINGS BELOW

A. The Conspiracy Case

On or about February 12. 1982. a criminal complaint was filed in the

San Bernardino County Municipal Court, Central Division, in Case No.

FSB 25441, accusing Petitioner (and others not parties herein) of:

Count 1: Conspiracy to manufacture, transport and sell a controiled

substance in violation of Penal Code, Section 182 and Health & Safetv

Code, Section 11379 (a) (further, alleging ten (10) overt Acts);

Count 2: Possession for sale of a narcotic in violation of Health &

Safety Code, Section 11351 (a);

Count 3: Possession of a controlled substance in violation of Health

& Safety Code, Section 11377 (a);

Count 4: (not related to Petitioner).

Petitioner was arraigned on or about February 20, 1981. Preliminary

Examination was heid on the dates of April 13, 14, 15, 22 and 23, 1982.

On or about May 7, 1982, an Information was filed in the Superior

Court, Case No. SCR 38968, accusing Petitioner (and others who are

not parties herein) of:

Count 1: Conspiracy to manufacture, transport, and sell a controlled

substance in violation of Penal Code, Section 182 and Health & Safety

Code, Section 11379 (a);

Count 2: Possession for sale of a narcotic in violation of Health &

Safety Code, Section 11351 (a);

Count 3: Possession of a controlled substance in violation of Health

& Safety Code, Section 11377 (a).

Between July 15, 1982, and August 17, 1982, Motions to Suppress

Evidence and to Dismiss the Information were heard before the

HONORABLE FENTON E. JONES. The court tentatively denied

each motion, but these judgments were never given finality by Judge

Jones.

B. The Stolen Property Case

On or about September 2, 1981, a criminal complaint was filed in the

San Bernardino County Municipal Court, Central Division, accusing

Petitioner of:

Count 1: Concealing stolen property in violation of Penal Code,

Section 496;

On or about January 20, 1982, said criminal complaint was

amended to provide,

Count 3: Concealing stolen property in violation of Penal Code,

Section 496.

Petitismer was arraigned on or about September 28, 1982. Prelimi-

nary Examination was held on the dates of June 10, 22, 25 and 28,

1982.

On or about July 12, 1982, an Information was filed in Superior

Court, Case No. SCR 39203, accusing Petitioner of:

Count 1: Concealing stolen property in violation of Penal Code,

Section 496, on August 4. 1981; and

Count 3: Concealing stolen property in violation of Penal Code,

Section 496, on December 14, 1981.

On or about October 25, 1982, counsel for Petitioner filed a Substitu-

uon of Attorneys in both Superior Court cases. At that time, the motions

filed in SCR 38968 had been completed.

On or about November 17, 1982, scheduled hearings on motions in

SCR 39203 were continued until January 12, 1982. At that time,

counsel for Petitioner represented to the court that he was of the opinion

that numerous issues that should have been raised were not litigated by

defense counsel in SCR 38968. The Deputy District Attorneys repre-

senting Respondent in SCR 38968 and SCR 39203, respectively,

stipulated that the record in SCR 39203, resulting from noticed motions

and hearings thereon, would be the record on appeal in SCR 38968, as

well. The stipulation provided, in the event Petitioner argued issues in

SCR 39203 that were not litigated in SCR 38968, Respondent would

be granted additional time to supplement responsive pleadings to

address those issues.

Beginning February 23, 1983, and continuing on various dates

through June 9, 1983, Petitioner’s Motions to Suppress Evidence were

heard before the HONORABLE WILLIAM PITT HYDE. Said

motions were denied.

On or about July 27, 1983, pre-trial conference in SCR 38968 and

SCR 39203 was calendared, with the HONORABLE BEN T. KAYA-

SHIMA, Judge of the Superior Court, presiding. Said pre-trial confer-

ence was continued until August 3, 1983.

On or about August 3, 1983, before the HONORABLE BEN T.

KAYASHIMA, Petitioner entered a Change of Plea pleading guilty to

concealing stolen property in violation of Penal Code, Section 496; and

violation of Penal Code, Section 182 and Health & Safety Code, Section

11379 (a), conspiracy to manufacture and/or distribute a controlled

substance. Pursuant to said Change of Plea, the court agreed that the

maximum time Petitioner would serve in custody would be three (3)

years, eight (8) months. The matter was referred to the Probation

Department and scheduled for hearing on August 31, 1983 which was

continued until September 7, 1983.

On or about September 7, 1983, the HONORABLE BEN T.

KAYASHIMA pronounced judgment upon Petitioner and imposed a

sentence of three (3) years, eight (8) months in state prison for violation

of Penal Code, Section 182 and Health & Safety Code, Section 11379

(a), conspiracy to manufacture and/or distribute a contrciied substance.

in SCR 38968; and violation of Penai Code, Section 496, concealing

stolen property in SCR 39203. The matter was continued until Sep-

tember 21, 1983, for a hearing on Petitioner’s Motion for Bail Pending

Appeal, which was gran:ed on said date. In the interim, and on or about

September 19, 1983, Petitioner submitted for filing a Notice of Appeal;

Request for Reporter’s and Clerk’s Transcripts on Appeal; and Request

for Order Setting Bail on Appeal as to both SCR 38968 ana SCR

39203. Said notice was filed with the Clerk of the Superior Court on or

about October 13, 1983.

Upon appeal, SCR 38968 was assigned Case No. E000208, and SCR

39203 became E0C0217. On or about January 20, 1984, said cases

were consolidated by order of the Court of Appeal, Fourth Appellate

District, Division Two, State of California.

On or about October 25, 1984, Petitioner filed an Opening Brief on

Appeal, portions of which are quoted or referenced herein, and are

located within footnotes or the Appendices.

On or about January 22, 1985 Respondent filed a Response Brief.

Oral Argument was heard on May 7, 1985.

On or about May 16, 1985, the Court of Appeal, Fourth Appellate

District, Division Two, filed a written Opinion, which was “Not for

Publication” (Appended hereto, Appendix 1}. Said Opinion was wnt-

ten by the HONORABLE ROBERT E. RICKLES, Associate Justice.

Applying California law, the Court affirmed the judgments of convic-

tion of Petitioner (and his co-appeilant, not a party herein).

The Opinion of the Court of App»! omitted several issues raised by

Petitioner upon appeal. In addition, the Opinion omitted numerous

crucial facts, including extensive and undisputed expert testimony

offered by Petitioner’s witness with respect to a probable cause determi-

nation based upon the smell of ether.

Further, said Opinion misstated crucial facts, which your Petitioner

alleges would, if correctly stated, be cause for reversal.

In response thereto and on or about June 25, 1985, Petitioner

submitted for filing a Petition for Review to the Supreme Court of the

State of California. Said Petition was filed on or about July 1, 1985.

On or about August 28, 1985, the California Supreme Court denied

review, without Opinion.

The decision of the Court of Appeal became final, and judgement

was entered on or about August 30, 1985.

This Petition for Writ of Certiorari follows.

FN1

IN THE CREST FOREST JUDICIAL DISTRICT

COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA

STATE OF CALIFORNIA ) AFFIDAVIT

) INSUPPORT OF SEARCH

COUNTY OF SAN BERNARDINO) WARRANT

Personally appeared before me this 3rd day of August, 1981, RAY-

MOND B. RUCKER, Jr., a duly authorized Deputy Sheriff for the

County of San Bernardino.

WHO on oath, makes complaint and deposes and says: The informa-

tion contained in this affidavit is for the purpose of securing a search

warrant for the premises and property herein described.

Your affiant states that he is now and has been for the past six and a

half years, a deputy sheriff for the County of San Bernardino and is

currently assigned as a detective in the Narcotics & Selective Investiga-

tion Division, and has been so assigned since December, 1980. I have

participated in investigations of illegal clandestine laboratories and am

familiar with chemicals needed and used in the manufacture of PCP and

Methamphetamine.

PROBABLE CAUSE FOR ISSUANCE OF SEARCH WARRANT: |

On August 3rd, 1981, your affiant was contacted by Deputy Rick

Roper, concerning information he had received from a citizen infor-

mant, involving a possible clandestine laboratory operation in the

Crestline area of the San Bernardino Mountains. Deputy Roper has

been for the past six years a regular deputy for the County of San

Bernardino, and is currently assigned to the Twin Peaks Substation of

the San Bernardino County Sheriff's Office.

Deputy Roper advised your affiant on August 3rd, 1981, that a

citizen informant had supplied him with information, concerning a

residence that the informant ownes in the Crestline area that was

possibly involved in a clandestine laboratory operation. Deputy Roper

related the following information that he received from the citizen

informant.

The citizen informant had driven to the Crestline area to visit with

family members and at the same time drove to the area of a house that he

ownes and is currently used as a rental at 24601 Lake Gregory Drive, in

Crestline. The citizen informant stated that he had observed outside

lights on at approx. 1300 hours of Saturday August Ist, 1981. He states

that the informant is paying utilities on the building and felt this was a

waste of electricity and that the informant went to the residence, ir order

to talk to the renter about turning the lights off.

The informant felt that there was possibly a burglary having been

committed at the residence; as the front screen door had been removed

from the residence. He then walked around the residence via a catwalk,

or sun deck, and upon arriving at the rear of the residence, where a

sliding patio is located, he noted that the door was open and the screen

door was closed.

The informant told Deputy Roper that he smelied a sweet smell at

this time, and looked inside and saw a lot of packing boxes and crocks

with white powder in them sitting around the residence and the interior

of the residence in a state of disarray.

Deputy Roper advised vour affiant of the citizen informant’s name

and telephone number and stated that he would relate any futher

information that he could recall.

On August 3rd, 1981 at approximately 1100 hours, vour affiant

contacted a RICHARD MARVICH via landline, at Area Code 213-

583-2834, which is the work phone number for Mr. Marvich.

Your affiant told Mr. Marvich who he was and asked him to describe

what he had observed at his rental house in Crestline. Mr. Marvich said

that on Saturday August Ist, 198: Mr. Marvich had driven to the

Crestline area from his Whittier home to visit with his son and daughter-

in-law, and also at the same time check on the cabin that he owned as a

rental in the Crestline area.

Upon arrival at approx. 1300 hours August Ist, 1981. he noted the

outside lights of the cabin to be on. Mr. Marvich states he is personally

paying the utilities for this cabin aad he wanted to talk to the renter

about turning them off. Mr. Marvich said that he smelled a strong sweet

odor as he approached the residence. and also feit that there was

possibly a burglary, as his front screen door had been removed from the

residence. He said he knocked on the front door, received no answer,

and started around the rear of the residence, via a catwalk, or sun deck

that surrounds the residence.

As he went around the residence, he noted that on the chaise lounges

and furniture sitting on the sun deck were tools and gloves and several

packing cases and some long rods that he described as either plastic, or

glass, possibly used as some kind of stirring rods. Mr. Marvich said once

he arrived at the rear of the residence, the sliding patio door was open;

however, the screen door was closed. He said he yelled to see if anyone

was there and noted the strong sweet smell to be even stronger there.

He said the inside of the residence was in a severe state of disarray,

with many more boxes, he described as packing cases, many large

crocks, made out of different types of material, and some containers

containing white powder. I asked Mr. Marvich if he was familiar with

the smeil of ether and he said, No he is not, he would not know for sure if

he was smelling ether, or if he was not. Mr. Marvich said he was very

upset about the condition of the interior of the residence and left, with

his intentions to call the realtor that rented the residence for him and to

tell him to evict the tenants.

Mr. Marvich states that he did leave and made subsequent contact

with kis son and daughter-in-law, telling them what he had observed

and they advised him that he should contact the Sheriff's Office, which

he subsequently did so on the morning of August 3rd, 1981.

Mr. Marvich told your affiant that he ownes the property at 24601

Lake Gregory Drive, Crestline, and that he is currently paving the

utilities on the same residence. Mr. Marvich said he would cooperate

with law enforcement officers in any way necessary, including testifying

in court as to his observations.

Your affiant asked Mr. Marvich for the name of the realtor that had

rented the residence and he related the following information. It was

through Red Carpet Realty in Crestline with a Jan Stowe Realtor,

Phone 338-1766.

Your affiant subsequently contacted Jan Stowe at approx. 1130

hours August 3rd, 1981 at her office and asked her who she had rented

the residence to. She stated it was a subject by the name of Chester

Lyndon Morton, who gives a residence address of 1799 West 28th

Street, San Bernardino, and a residence phone of 887-4600. She des-

cribed Morton as in his thirties, approx. 6’0” in height and slender, with

long grey and brown hair that is curly and he is a white male adult,

clean-cut.

Mrs. Stowe could not provide any further information, other than the

driver’s license number of suspect MORTON as M0074955. Mrs.

Stowe further advised that Morton has the rent paid until the 19th of

August, 1981.

After receiving all of the aforementioned information from infor-

mants, your affiant, Detective Holloway and Special Deputy Centner,

drove to the area of 24601 Lake Gregory Drive, in Crestline. Upon

arrival, your affiant and Detective Holloway stepped from the Sheriff's

vehicle into the roadway in front of the residence and immediately

noted a strong odor of ether coming from the residence at 24601 Lake

Gregory Drive, in Crestline. Your affiant and Detective Holloway,

being aware of the extreme volatile nature of ether and the danger to

persons in or around ether, and to remove any doubt as to where the

odor was coming from, and to insure the safety of anyone in or around

the residence, your affiant and Detective Holloway walked down the

brown colored wood stairs to the front door of the residence at 24601

in|

Lake Gregory Drive, in Crestline. Detective Holloway and your affiant

then knocked at the front door of the residence and upon getting no

reply to the knock, walked on the deck, running to the rear of the

residence. Once at the rear of the residence, your affiant and Dectective

Holloway observed several cardboard boxes, stacked on the deck and a

brown bottle containing a liquid substance, dark rubber gloves and giass

tubes.

We then walked to the rear sliding patio door of the residence and

through the undraped sliding glass patio door. Detective Holloway and

your affiant observed numerous containers of liquid, chemicals, white

powder substance and a very strong odor of ether and numerous articles

of laboratory equipment. Detective Holloway and your affiant returned

to the Sheriff's vehicle and called for a Sheriff's Patrol unit to remain at

the scene of the residence to secure it and prevent anyone from entering

the residence.

Your affiant and Detective Holloway then called for officers from the

Sheriffs Crime Laboratory, Sheriffs Identification Detail, and Fire

Department Officiais to assist in the investigation.

PROPERTY TO BE SEIZED:

The following items are commonly used in the illicit manufacture of

Methamphetamine:

1. Phenviacetone 7. Potassium Hydroxide

2. Methylamine 8. Ether

3. Methanol 9. Hydrochloric Acid

4. Sodium Acetate 10. Lithium Aluminum Hydride

5. Hydrogen 11. Ephedrine

6. Palladium Black 12. Hydrogen Iodide

13. Zinc or tin foil

Also the following chemicals that are used in the illicit manufacture

of PCP.

1. Phencyclidine 6. Hydrochloric Acid

2. Cyclohexanone 7. Sodium Bisulfate

3. Piperidine 8. Sodium Hydroxide

4. Bromobenzene 9. Ether

5. Sodium Cyanide 10. Magnesium Turnings.

11. Any combination of product of any and all above chemicals.

Also any and all laboratory equipment.

12. Also papers, documents, correspondence and receipts, showing

the person or persons having ownership and/or control of the

residence, vehicles, and any papers tending to show a conspiracy

between any John and/or Jane Doe.

PREMISES TO BE SEARCHED:

The premises including, but not limited to; (1) the residence and

properties located at 24601 Lake Gregory Drive, Crestline, County of

San Bernardino, State of California. The residence being located on

Lake Gregory Drive. on the east. or lower side of the street. The

residence being a single story residence, brown in color, wood frame

and wood siding with a wood shingle roof. The numbers 24601 are

located by an entry way at the street way entrance to the residential

property, and also the name Marvich. The numbers and letters are black

in color.

AFFIANT’S EXPERTISE:

Your affiant attests that he is now and has been a duly authorized

Deputy Sheriff for the County of San Bernardino, State of California,

since October of 1974 and since December 1980, your affiant has been

assigned as a Detective in the Sheriff's Narcotics and Selective Investiga-

tions Division. Your affiant states that he has attended a one and a haif

hour In-Service Training Course, instructed by Sergeant D’Amico and

Sergeant Pat English of the San Bernardino County Sheriff's Office in

the clandestine laboratory operations. Your affiant has participated in

numerous investigations, pertaining to illicit manufacture of PCP and

Methamphetamine and has participated in preparation of Search War-

rants, pertaining to the illicit manufacture of PCP. Your affiant has

entered into conversation with Sergeant Felix D’Amico of the Sheriff's

Narcotic & Selective Investigations Detail, Detective Don Hankerson,

Narcotics & Selective Investigations Detail and Sergeant Virgil Merritt

of Big Bear Substation, formerly of the Narcotics & Selective Investiga-

tions Detail, all of whom are experts in the area of clandestine labora-

tory operations.

The above officers have given this officer training and intelligence

information to help your affiant identify laboratory operations and the

chemicals involved. Your affiant states that he has smelled ether on

numerous occasions, including, but not limited to, in hospitals, where it

has been administered to your affiant by doctors present for surgery.

It has been your affiant experience that subjects involved in the illicit

manufacture and/or possession of narcotics often hide the substances

and paraphernalia for manufacture in their homes, on their persons and

in their vehicles, away from the actual laboratory operation. Further it

has been my experience that involved subjects also possess in their

homes, vehicles, and/or their persons, narcotic formulas, business

ledgers, pertaining to the marcotic’s transactions, and other documents

which tend to idenufy other involved persons. I have reviewed with

Sergeant Feaster of the San Bernardino County Sheriff's Office Narco-

tic’s & Selective Investigation’s Detail and Detective Holloway of the

Narcotics & Selective Investigation’s Detail, and Detective Daniel

Tidwell of the Narcotics & Selective Investigations Detail, my reasons

for believing that there is now a clandestine laboratory located at 24601

Lake Gregory Drive, Crestline, California.

And this complainant prays that a search warrant may be issued to

search for the same, and that the same may be brought before a

magistrate and disposed of according to law.

Subscribed and sworn to before me this 3rd Day of August, 1981

Judge of the Crest Forest Justice

Court District

County of San Bernardino

State of California.

After having contacted the realtor who advised him that she would

indeed get in touch with the people that had rented it. He said that he

talked with his son and his daughter-in-law telling them what he had

observed and they advised him that he should get in contact with the

Sheriffs Office as they felt there was some type of illegal laboratory

operation involving drugs possibly involved.

FN3

Further, Petitioner submitted, the owner had not concerned himself

with his alleged discovery for a period of two days prior to his contact

with the Affiant; and then only after his son and daughter -in-law advised

him to contact the Sheriff's Office, because of their belief that what the

owner saw may have been an illegal drug lab.

FN 4

The next claimed misstatement is that a citizen informant gave

information “involving a possible clandestine laboratory operation.”

Defendant claims the informant said no such thing, that those words are

probably the officer’s interpretation of the information. Defendant’s

claim is probably untrue because in his police report of the interview

with the informant (the property owner) the affiant states that the

informant was told to contact the sheriff's office by his relatives who

suspected a drug laboratory may be in operation. So the informant may

very well have said that when he called in.

“Even if the phrase is the affiant’s interpretation, so what? It is an

interpretation he is qualified to make and he confirmed it by interview

of the informant and observation of the premises. It, therefore, is not an

interpretation significant to the question of probable cause and is

harmiess according to the rules laid out in People v. Caffou, 105

Cal.App.3d 775, 781-785.

FN 8

(Mr. McCormick) . . .

Q. Did Mr. Marvich inform you that he thought a lab, a clandestine

lab, was being used to produce drugs in his cabin?

A. No, sir.

FN >

The Court stated: “... there are not «iy misstatements, or omissions

with regard to the warrant, at least to the point where it would affect the

sufficiency of the Affidavit to support the warrant, and would not affect

or mislead the magistrate who issued the warrant with regard to confir-

matory search.” (R.T., 2, 282, 3-8; 285, 11-15.)

FN ll

In the challenged affidavit, the affiant alleges that upon smelling,

ether, which he claims to have smelled immediately upon exiting his

vehicle on the highway above the subject residence, that he was “aware

of the extreme volatile nature of ether and the danger to persons in or

around ether”. The affiant further alleged that in order to “remove any

doubt as to where the odor was coming from and to insure the safety of

anyone in or around th 2 residence,” he walked down the brown-colored

wood stairs to the front door of the residence, and subsequently to the

rear of the residence whereupon he made certain observations, which

included the detection of “a very strong odor of ether”. The affiant then

alleged that he and the detective accompanying him returned to the

sheriff's vehicle and contacted a sheriff's patrol unit “to remain at the

scene of the residence to secure it and prevent anyone from entering the

residence.” The affiant further alleged that among other officers con-

tacted, he contacted “fire department officials to assist in the

investigation.”

Yet, upon giving testimony during preliminary examination, the

affiant testified that it took approximately five to six hours to obtain the

subject Search Warrant, (Reporter’s Transcript. June. 1982, p. 120,

1-18) (hereinafter R.T., June), and that other than calling for a patrol

unit to secure the scene, the affiant did not request any fire units or alert

the forest service to come into the area. (R.T.. June, 120, 12-18.)

In addition to the above, the affiant, during testimony at the prelimi-

nary examination, testified that he did not believe that there would in

fact be an explosion, and if there was going to be an explosion, it would

alreadv have occurred. Futhermore, the affiant testified that rather than

entering the residence to make a determination whether there was some

pilot light, etc., which might ignite the alleged ether, the affiant feit that it

was a situation which did not require contact with fire officials, and that

his not entering the residence was related to his intention to acquire a

Search Warrant. (R.T., June, 121-122 and 123, 1-3.)

From the above, this defendant contends that the Court can deter-

mine that the allegation of contact with fire officials contained within

the Affidavit in Support of the Warrant is clearly a misstatement. The

defendant contends that said misstatement is intentional, and was

inserted for the purpose of deceiving the magistrate into believing that

the affiant was concerned with the fire hazard, therefore bolstering facts

in support of probable cause for issuance of the warrant. If in fact the

which is further supported by the affiant’s Police Report dated August

12, 1981, a copy of which is attached hereto and marked Exhibit “A”,

and by this reference incorporated hereia, why then wouid the affiant

make such a statement in the affidavit? Clearly, one of the primary

concerns of the affiant throughout his affidavit is that of the hazard of

fire and/or an explosion.

FN 12

Open ether, or at least its smell, was found on a pan on the porch (Tr.

pp. 123-124, this case). The smell may also have been coming (evapo-

rating) from the two buckets of mixture found in the house (same

reference).

FN 15

THE COURT: Im willing to hear argument. I'm inclined to agree.

This witness is obviously the expert with regard to the chemical makeup

and chemustry aspects of the testimony.

MR. SMITH: Weil, particularly with reference to the court’s

acknowledgment of the Doctor as an expert, . . .

(MR. SMITH) . .

Q. And did you read this article with an eye toward what law

enforcement was looking for to assist you in providing compe-

tent testimony?

A. Yes, yes.

Q. Did you note that one of the things that appears to be stressed.

rather frequently in articles of this nature is to look for an odor of

ether?

That's one of things that’s there. It says ether and other solvents.

And other solvents?

Ether tends to be isolated on — as the thing, as the key, but other

solvents obviously would de present, other odors.

During your various experiences in testifying in court as an

expert, has that been a common experience or a common factor

focused upon as being evidence of some illicit activity?

A. That’s one of the first things that’s usually talked about, that the

smell of ether is noted, and that’s a reason for going further in an

Q. Well, considering your prior testimony and, of course, your prior

experience, do you have problems accepting that as being a

viable reason for thinking that there might be something illegal

taking place?

In my Opinion, yes.

pe ea

D POP

FN 16

There are plenty of legal uses of ether.

Would it be fair to state that there are a lot more legal uses for

ether than illegal?

Obviously, yes.

I think you testified earlier there are at least 100, maybe even

thousands, of common uses for ether that do not involve an

illegal activity?

Provably too numerous to enumerate the number of uses, but

generally they have to do with being a solvent and being a good

thing to dissolve orgamic compounds in.

Dr OP

FN 17

FN 18

> DBD POP

re F @ ? @

That’s the way I read it, also.

If you approached such a residence and smeiled ether, would

that indicate to you that some specific thing is being synthesized?

Not really. It would be common in any laboratory to find ether.

It’s one of the — I don’t think I would ever go into a laboratory

and not find ether of any kind. The people working with organic

compounds; you're going to use ether. It’s one of the four or five

common solvents that I mentioned before.

Actually, vou can buy ether in cans in something like Gemco for

spraying into a diesel engine, usuaily. I have a diesel car, and I've

used that a few times on cold mornings.

That’s not usually the type of bottle that vou buy it in?

Not the normal kind of package, no, but for contractors, they use

ether in cans. Sometimes they buy the same kind of cans we buv

in the laboratory.

Is that the same ether that you use in the laboratory?

Sure, it’s the same ether.

So it would essentially start the same?

Start the same. Usually starts an engine in the mornings, diesel

engines of all kinds.

Don’t some people use the ether to mix with gasoline, add to

gasoline, to increase its combustive ability?

Yes, ether is sometimes used to make gasoline — again, to start

an engine on a cold ciorning you add ether wo the gasoline.

sometumes.

Ether is also used in woodworking, isn’t it, to assist dyes in

penetrating the wood?

Yes, it’s common solvent for dyes and it can be used to help

penetrate whatever they're dying.

If I were to get something electroplated, might I use ether in that ,

also?

You could use ether in electroplating, yes, to dissolve the stuff

that you’re putting on.

How about if I wanted to make soap?

Soap is a general term for things, including detergents, and many

detergents are made with ether and if you were mixing different

kinds of detergents to make a particular kind of soap or deter-

Fo)

Or OF OP

PO POP

gent, then you might use ether, sure.

If per chance I wanted to compete with Tide and some of the

others, it wouldn’t be uncommon to hear of some guy hiding

himseif away to work on his formula?

No, that’s very common.

And most of the items listed in the return for the search warrant

are items that you could readily acquire?

Yes.

In fact, did you note anything there that you couldn’t easily

acquire?

I didn’t see anything that seemed so unusual, no.

And, again, it’s your opinion or your testimony that based upon

the reading of the affidavit in support of the search warrant, you

could not personally have made a determination of what was

being manufactured?

Not based on what I read, no.

You said something about polymers. What is a polymer?

All plastics are polymers. Plastics — and nowadays manv things

are plastic.

Would ether be used in synthesizing some plastics or polymezs?

Sure, ether is. Again, they are organic compounds. It’s a good

organic solvent, and you might find it used there.

The people who put together surfboards use ether in solvents.

They use polymers as the core of the surfboards. They would use.

ether to dissolve those organic compounds.

Q. So it Wied neko Geemmmece to small ether. coming out of «

OrO P

surfboard manufacturing shop?

Ether, acetone, methylacetate; all three of those.

Ethyl ether has a distinct odor unto itself or that if you put five

different ethers on the table, would — could it be very easy to

detect which one is ethylene?

It would be for me. I doubt if it would be for the normal lay

person.

Most of your students are beginners in chemistry; is that correct?

Yes.

Have you experienced that they frequently mistake one odor for

a particular chemical, or are unable to discern chemicals by their

smell?

Not with a reasonable degree of time to it. When they get used to

it, they pick it up within a few months, sure, smelling. Some

people are better than others, obviously, smelling things and

~ Q. Again, would it be your testimony that there are many, many,

more times the use of ether for legal purposes than illegal

purposes?

A. Yes.

Q. And in your own personal experience, it has not been uncom-

mon to know associates or colleagues who set up labs for their

own personal experiments?

A. It’s not uncommon.

Q. Do any of those three smeil similar?

A. It’s hard to say. To me they don’t, but I think to someone who’s

not a chemist they might smell similar.

Q. I think you’ve answered that way prior. When you say, “To me

they don’t,” you apparently have developed some sophistication

in determining by sense of smell what certain chemicals are.

A. When you work with things for a long period of time, I think you

gain a familiarity with it; and with solvents I can tell by smelling

what many of them are, the common ones.

Q. Would it be fair to state that absent that kind of familiarity and

experience and long periods of time of being around various

chemicals and becoming familiar with them, that it wouid not be

easy for you to determine the difference between —

A. I would guess it would be difficult for the normal lay person to

smell the differences between different kinds of solvents, yeah.

They would just smell — people usuaily say it just smells like a

chemical.

If you go into a hospital, for instance, people always talk about

the ether smeil in a hospital. But the major sme’ is not ether, it’s

ethyl alcohol.

FN 20

(DR. SIMS:). ..

A. Nothing particular to methamphetamine. I don’t think. I mean, it

could be anything. You don’t know what's going into — if you

walk into. a lab, you probably smell a lot of things.

Q. There’s nothing specific about methamphetamine that would

give that processing at this stage a distinct odor from any other

processing?

A. Not unless you absolutely knew what was going on; I don’t think

you could tell. somebody could be making it in my laboratory

and I wouldn’t know for sure that’s what they were doing unless I

knew that;

FN 21

(MR. SMITH)...

Q. Does the vapor of ether travel over great distances?

A. It will run downhill, yeah. It’s essentially like water. It’s heavier

than air and it tends to run around. It tends to fall to the bottom of

a room.

Q. So if we were in a three story building, the smell would probably

go down to the first floor, eventually?

FN 22

A. Depending on how the building is sealed, yeah.

Q. Ifyou— well, gain, making reference to the affidavit in support

of the search warrant, the affiant, of course, noted that he was

concerned about the volatile nature of ether because of the

detection of a strong odor immediately upon exiting his vehicle

upon the highway.

Were you to be in a similar situation and smelling ether at this

point, would you — would it be realistic to be concerned that J

this might be a fire hazard?

A. That’s hard to say. If it were outside, | wouldn’t worry about it q

too much. We can smeil e...4 around the university a lot because.

it gets blown on the — in the wind and sometimes it drifts over

and drops down in a courtyard outside the buildings; but it’s not

dangerous in that situation, but more dangerous in a closed area.

FN 23

Q. BY MR.SMITH: Exhibit 1, and I think you can determine — it

has been stipulated — this is the residence in question.

Starting with photograph number 2, highway which appar-

ently is where the affiant first smelled ether, a strong odor of

ether, would tha* be likely that it would rise to the.highway?

A. Normally, I wouldn’t expect it to. The oniy — well, normally I

wouldn’t expect it to if it’s on the side of a hill like that. I would

expect it to go downhill and people underneath it would be

smelling it more than peopie on top of it.

FN 24

Q. What might make it rise, if it did?

A. It will mse a little bit on its own simply on the nature of its

volatility and the ability to spread, but what happened — if there

was a wind blowing or something, you might be able to smeil it

on top. It would have to be some kind of local condition like that.

FN 25

Q. Well, is the smell of ether the residue of the chemical, the liquid,

as it is changing process and evaporating into the atmosphere?

A. It changes from the ether, a liquid, to ether, a vapor, like water

changes from water, a liquid, to steam, which is — you can’t see

steam aiways. You see steam. when it starts to coalesce, but

steam is invisible, also. It’s —the molecules are just further

spread apart and not condensed into a liquid.

Q. Asageneral rule, when ether is in its vapor state, how long does it

stay in the atmosphere in the out-of-doors?

A. .You can detect it, but not very far away and outside — [ve had

ether outside a number of times and it’s hard to detect it more

than 50 — 50 feet away from where the source of the ether is.

Q. Yes. You read the return to the search warrant?

A. Yes.

Q. This is on the cabin, the search warrant?

A. Yes.

Q. What in that return to the search warrant could have caused an

odor of ether?

A. Ididn’t see anything, personally. I was curious as to the warrants;

what they actually were looking for. What the listing was. was

exactly correct and I didn’t see any of that found, so I was

curious. There was no ether there.

(MR. McCORMICK:) . .

Q. Detective Rucker, do you recall if there was any ether found in

the cabin?

A. Not specifically, no, sir, I don’t.

Q. Would it refresh your memory if you could refer to vour report?

A. Possibly. (Complies.) Apparently not.

FN 31

Q. And the untrained nose, the non-chemist or -scientist — and

having been an untrained nose at one point in time, is it pretty

easy to confuse various chemical smeils?

A. Yes, in the beginning when I — I was starting in chemistry, it was

easy to confuse those smells, sure.

Q. Well, the judge made a point a while ago about having indicated

he thought he smelled ether. I mean, from your clothing? |

FN 34

THE WITNESS: Kathy Franklin, K A T H Y ,

FR AN Ot t SH

THE CLERK: Thank you.

DIRECT EXAMINATION

BY MR. MORRISSEY:

Q. Miss Franklin, in the summer of 1981, were you working for the

California Division of Forestry?

A. I was.

I'm a seasonal fire fighter for the California Department of

Forestry.

And stationed in the Crestline area during that summer?

Yes, that’s correct.

And on or about the 3rd of August, did vou go to a location at

24601 Lake Gregory Drive?

Or”

FN 35

A. Yes. We responded to a possible fire and explosion. The road

runs east and west. And there is a — like a stairwell that goes

down towards the house. So it’s quite a — sits quite low in

comparison to the road.

Now, when you got there, were you on a fire truck?

Yeah. We had responded in engine 25.

And upon your arrival, where did you go?

Upon arrival, Engineer Kelly advised us to put on our bunkers,

or our turnouts, and stand by. And he proceeded to go downs |

towards the house to see what the officers wanted us to do.

Q. So did you stay up on the road, then, during the time you were

there?

Yes, I did. q

;

POP

FN 36

FN 37

FN 38

And what if anything did you smell?

When we got there and we were standing by the truck, I noticed

a chemical smell, something out of the ordinary in the air. It

wasn’t overpowering, but it was strong enough that I could smell

it.

It seemed familiar, but at the time, I wasn’t positive of what I

was smelling. It was just a chemical odor.

Did you finally that day come to a decision as to what it was you

were smelling?

A few minutes later —

All nght. What caused you to recognize it?

Engineer Kelly came up from the home and advised us that we

could remove our jackets, that we would stand by for a few more

minutes. The sheriff was going to release us; that they had found

some sort of lab, and probable ether. And then I recognized the

smell.

When were you first contacted by the Sheriff's Office?

My last day was February 28th, but I was released February

23rd of ‘83, because I was going to attend a Firefighting |

academy.

So I was in the office between the 23rd and the 25th. I’m not

sure on which day. And it was in the early morning, before 11

o’clock. And it was early because I was getting my gear. And

they contacted headquarters, and I just happened to be there.

When you say “they” — was there more than one —

The sheriff. He contacted me.

Did Mr. Morrissey tell you why he was asking you to testify?

Just corroborating evidence, I suppose.

FN 42

It was — I can’t — ’'m not — I can’t say that it was ether that I

smeiled, because I didn’t see what was in the house.

FN 46

FN 47

Dr OF #

And vou say your prior experience with ether was a very, very

brief experience the year prior, wasn’t it?

Very limited.

And to this date, you don’t know whether you smelled ether, do

you?

I couldn’t say for sure, because I didn’t see anything to back up

my familiarity. It could have been something that smelled like

ether that maybe I'd never smelled before.

Yeah. And you’re really not sure how many things smeil like

ether?

No, sir.

And what you call your familiarity is really more probably

properly termed your vagueness, isn’t it?

My brief exposure could be considered vagueness.

And in fact you were the one that came to that conclusion,

because you thought maybe it was a PCP lab?

Right.

And you thought they used ether on a PCP lab.

Just the — just for drugs and things like that, because that was

our limited — most people in our class, when we smelled ether,

that’s whar our first thought was. But we didn’t discuss ether in

long terms.

So your teacher, or instructor, suggested to you that if you smeil

ether, there’s drugs somewhere nearby, basically?

Uh-huh.

Did your instructor tell you that ether is probably the most

commonly used solvent in organic chemistry?

No, sir.

Did he suggest to you that there are at least 200 lawful uses of

ether?

No, sir.

Did he suggest to you that it’s more likely than not if you smell

ether, its for some lawful purpose?

A. No, sir.

FN 48

A. [m not an expert, no, sir.

Q. Would your answer be that no, you really don’: know what you

smelled?

A. Icouldn’t be positive. I just thought it was ether. I smelled it, and

it — I thought it was. But I couldn’t make a -— you know, a — I

couldn’t say as an expert it was ether.

Q. (BY MR. SMITH) I guess what I’m asking, ma’am is — and !

don’t want to put words in your mouth. Can you say today in this

court that you know without a doubt that what you smelled that

day was ether?

I couldn’t say that.

. You’re really not sure, true?

It was, like I said, the smell, and everything else that was added

to, I made the conclusion that I smelled ether, a combination of

my smeil —- familiarity with it before, smelling it before, and

Kelly’s statement.

Q. Would your answer be that no, you really don’t know what you

P A. Icouldn’t be positive. I just

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.