Petition for a Writ of Certiorari — Young v. California

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SUPREME COURT OF THE UNITED STATES

October Term, 1972

No. V2- 1230

JOHN HENRY YOUNG,

Petitioner,

vs.

PEOPLE OF THE STATE OF .

CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT

HOWARD E. BECKLER

6922 Hollywood Blvd.

Suite 201

Hollywood, Ca. 90028

(213) 465-1191

Attorney for Petitioner

CAPES yy,

SEO NPR” OTR ne mIRC AERA SFO RBI" RUIN Rae pamemanERT Mamma vet

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

No.

JOHN HENRY YOUNG,

Petitioner,

vs.

PEOPLE OF THE STATE OF

CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT

HOWARD E. BECKLER

6922 Hollywood Blvd.

Suite 201

Hollywood, Ca. 90028

(213) 465-1191

Attorney for Petitioner

TOPICAL INDEX

Table of Authorities

OPINION BELOW

JURISDICTION

NATURE OF CASE AND ISSUE

PRESENTED

REASONS FOR HEARING

OUTLINE OF CASE

PROCEDURAL INFORMATION

FACTUAL INFORMATION

PETITIONER'S POSITION

ARGUMENT

A lack of Probable Cause

B Arrest As Pretext For Search

CONCLUS ION

APPLICATION

EXHIBIT "A"

Opinion of the California

Court of Appeal

EXHIBIT "B"

Decision of the California

Supreme Court denying hearing

NM

TABLE OF AUTHORITIES

Cases Page

Aguilar v. Texas,

378 U.S. 108,

84 S. Ct. 1509,

12 L.Ed.2d 723 (1964) Je ane 23,

Draper v. United States,

358 U.S. 307,

79 S. Ct. 329,

3 L.Ed.2d 327 (1959) 26

Henderson v. United States,

12 F.2d 528 (4th Cir. 1926)

(C.A. D.C. 1950) 4, 33

Jones v. United States,

aoa U.S. 257,

oe Ss. Ce. 325.

4 L.Ed.2d 697 (1960) 21

Mapp v. Ohio,

367 U.S. 643,

81S. Ct. 1684,

6 L.Ed.2d 1081 (1961) 5; 29

McKnight v. United States,

183 F.2d 977 (4th Cir. 1926) |

i? A. D.t. 1950) 4, 31-34

Spinelli v. United States,

393 ¥.8. 410,

89 Ss. Ct. 584,

21 L.Ed.2d 637 (1969) 4, 25-27

United States v. Lefkowitz,

285 U.S. 452,

532 S. Ct. 420,

76 L.Ed. 877 (1932) 4, 30, 31, 34

ii |

Te aa ta UR a EE i oe or be

Cases Page

United States v. Ventresca,

380 U.S. 102,

Ss Ss. Ct. 741,

13 L.Ed.2d 684 (1965)

Vale v. Louisiana,

399 U.S. 30,

90 S. Ct. 1969,

26 L.Ed.2d 409 (1970)

Whitely v. Warden, Wyoming

State Penitentiary,

401 U.S. 569,

91 Ss. Ct. 1031,

28 L.Ed.2d 306 (1971) &, 22;

Constitution

United States Constitution:

Fourth Amendment - 3, 4, 22, 29,

Codes

California Health and Safety Code:

§11530.5 3,

California Penal Code:

§1538.5 6, 8, 15, 16,

§12020

28 U.S.C. §1257(3)

Rules

U.S. Supreme Court Rules:

Rule 22(1)

iii

21

30

25

32

20

6

2

RG NAPE Cains DO Nave utc Phe Se CEN NN

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

No.

JOHN HENRY YOUNG,

Petitioner,

vs.

PEOPLE OF THE STATE OF

CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL

SECOND APPELLATE DISTRICT

OPINION BELOW

Petitioner, John Henry Young, hereby

applies for a writ of certiorari directed

to the California Court of Appeal, Second

Appellant District, to review the judgment

rendered by said court and allowed to stand

l.

by the California Supreme Court through

denial of a petition for hearing therein,

in the above-entitled cause. The opinion

of the California Court of Appeal is

appended hereto and designated as Appendix

"A" to this petition. The decision of the

California Supreme Court denying hearing

herein is appended hereto and designated as

Appendix "B" to this petition.

JURISDICTION

The judgment of the California Court of

Appeal in the instant matter was rendered

October 18, 1972. A hearing by the Cali-

fornia Supreme Court was denied and the

judgment of the California Court of Appeal

thus affirmed December 13, 1972. The jur-

isdiction of this Honorable Court is invoked

pursuant to the provisions of Title 28,

United States Code §1257(3). Compliance

with the time limitations of Rule 22(1),

United States Supreme Court Rules, has been

had.

2.

ESI A GSE IE ROE MIE LIES CIELO IEE be

NATURE OF CASE AND ISSUE

PRESENTED

The instant case concerns a charge of

marijuana possession for Purposes of sale,

a violation of California Health and Safety

Code §11530.5. The issue presented is the

propriety under the Fourth Amendment to the

United States Constitution of the search

and seizure by which the physical evidence

Supporting the charge was discovered and

the admissibility of such evidence against

petitioner in the trial of his case.

REASONS FOR HEARING

A hearing is respectfully requested in

the instant case for the following reasons:

1. The decision below affirms a search

and seizure of evidence predicated on an

informant's information and police officer

observation in direct contravention of the

precedent decisions of this Court in the

following cases:

Aguilar v. Texas, 378 U.S. 108,

84 S. Ct. 1509, 12 L.Ed.24 723

(1964);

Spinelli v. United States,

393 U.S. 410, 89 S. Ct. 584,

21 L.Ed.2d 637 (1969);

Whitely v. Warden, Wyoming State

Penitentiary, 401 U.S. 569,

91S. Ct. 1031, 28 L.Ed.2d 306

(1971).

2. The decision below affirms a search

and seizure of evidence predicated on a

pretext arrest in direct contravention of

the precedent decisions of this Court and

the Court of Appeals in the following

cases:

United States v. Lefkowitz,

285 U.S. 452, 52 S. Ct. 420,

76 L.Ed. 877 (1932); |

Henderson v. United States,

12 F.2d 528 (C.A.D.C. 1950);

McKnight v. United States,

183 F.2d 977 (4th Cir. 1926).

3. The decision below affirms a search

and seizure of evidence in contravention

of the Fourth Amendment to the United

States Constitution, made applicable to the

states by the decision of this Court in the

4.

POET OL MS PLE BNE Le LEE LG ODIO ISS

£ ‘

case of Mapp v. Ohio, 367 U.S. 643, 81S.

Ct. 1684, 6 L.Ed.2d 1081 (1961).

4. A hearing by this Court is thus

required to conform the instant case with

the cited authorities and to accord peti-

tioner the proper protection against an

unreasonable search and seizure in the

premises.

OUTLINE OF CASE

Petitioner and one Grady Roger McCloud

were arrested in a Los Angeles residence on

December 5, 1968 consequent upon a police

investigation which followed the receipt by

an officer of information from an informant

respecting narcotics dealings by petitioner.

A search of that residence and an adjoining

garage revealed a quantity of marijuana.

The sufficiency of the information and

corroborative effect of the investigation

to support an arrest and the relationship

between the arrest and ensuing search are

the questions presented for consideration

by this petition and will be treated below.

- : — pemeeenmasnens sph Tee te RE

BBR tes opeccoeerteesians EER EE NE eT TN OR EL OD iti ames

PROCEDURAL INFORMATION

Petitioner and Grady Roger McCloud were

jointly charged in Count I of Information

No. A 239568, filed February 6, 1969 in the

Los Angeles Superior Court, with a violation

of California Health and Safety Code

§11530.5 (possession of marijuana for sale),

allegedly occurring on December 5, 1968.

In addition, petitioner was charged indiv-

idually in Count II of the information with

a violation of California Penal Code

§12020 (unlawful possession of a restricted

firearm), allegedly occurring the same date

(C.T. pp. 543-544),

Petitioner pleaded not guilty to the

charges contained in the information and

moved pursuant to California Penal Code

§1538.5 to suppress the physical evidence

forming the basis of the charged offenses

on the ground the same was the product of

unlawful searches and seizures,

was heard as a de

The motion

novo proceeding pretrial,

and granted as to evidence found at one

location (identified as exhibits 4, 5 and

6 at the hearing of the motion) and denied

as to all remaining exhibits, which were

6.

Es

|

found at a second location (identified as

exhibits 1, 2, 3, 7, 8 and 9 at the hearing

of the motion) (c.T. Pp. 550, 571-576).

Petitioner thereafter waived jury trial

in his case and submitted the matter for

decision on the testimony adduced at the

preliminary hearing and the motion for

Suppression of evidence as contained in the

reporters' transcripts of those proceedings.

He was thereupon adjudged guilty as charged

in Count I of the information and not

guilty of Count II (c.7. Pp. 581, 584).

Petitioner appeared for probation and

sentence hearing in his case on September

8, 1971, at which time probation was denied

and he was sentenced to Prison for the

prescribed legal term. He timely filed a

notice of appeal from the judgment rendered

against him, and the matter was heard by

the California Court of Appeal and the

judgment affirmed. aA hearing was thereupon

sought in the California Supreme Court and

the same denied. Application for a writ

of certiorari is now made to this Honorable

Court for the reasons heretofore expressed,

and the cause is thus Submitted for appro-

priate review and consideration. Bail on

7.

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pope pK Me same SPELT ROE SLT EN SI od

Recn ns EOP EE ER EE RT ISAT ELE a OSE HE EAE tint Se 5th TQS Sls

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appeal was set by the trial court and posted

by petitioner who is presently at liberty

on bond pending determination of these pro-

ceedings (C.T. pp. 586, 588).

FACTUAL INFORMATION

The single contention raised on appeal

pertains to the validity of the search and

seizure producing the evidence supporting

the charge on which petitioner was found

guilty. Although petitioner at trial denied

possession of the subject evidence, the

trial court's finding against him on this

issue is supported by the evidence of

record and presents no appellate question.

Accordingly, only the evidence taken at the

hearing of petitioner's suppression motion

under California Penal Code §1538.5

requires consideration. This evidence is

contained in the Clerk's Transcript on

Appeal, pages 177-542, and all page refer-

ences following pertain thereto.

Two principal witnesses testified at

the hearing of the motion, both being Los

Angeles police officers assigned to the

narcotics detail. The first to testify was

8.

PRS LESTE EEE OLS PEE bs

Fred J. McKnight and the second Marshall F.

Gaines. The expertise of each in the field

of narcotic law enforcement and the means

and manner of narcotic possession, packag-

ing, and distribution was Stipulated to by

the parties (C.T. pp. 189, 345-346).

Officer McKnight testified that in early

November, 1968 he was told by a suspect in

a narcotic investigation that there was a

male Negro who lived in about the 4100

block of Coliseum Drive, Los Angeles who

drove a Toronado automobile and who was a

large marijuana distributor. McKnight had

never previously received information from

this source nor did he thereafter use him

as an informant. With this information in

mind, McKnight checked the area around the

4100 block of Coliseum Drive and did observe

a Toronado automobile on one or two occa-

sions parked in the garage attached to the

rear of the apartment complex at 4620

Coliseum (C.T. pp. 190-192).

On or about December 1, 1968 McKnight

received information from a person he con-

sidered reliable because of information

Provided by this source in the preceding

few months which had led to arrests and

9.

. a — Sat SP ORES Ty BS Ca aD Be

PE LEN LAIR EP CCM EEE EI SES Ey ea ee ae —

seizures of evidence in two pending cases.

This informant told him that there was a

male Negro named John who lived on Coliseum

and drove a new, 1968 Toronado whose tele-

phone number was 296-4407, that by calling

that number marijuana could be ordered from

John who was extensively involved in mari-

juana dealing, that a female also lived at

the same location and took orders for

marijuana when John was away, that John did

not keep his main marijuana supply at the

Coliseum location but at a residence at

6015 Madden Street, that another person

usually stayed with the supply on Madden

Street and drove a 1961 green Falcon auto-

mobile with the license plate numberals

345, and that John carried a sawed-off shot-

gun with him when conducting his narcotic

transactions (C.T. pp. 192-197). On Decem-

ber 5, 1968 McKnight then received addi-

tional information from this same informant

that John had just received about 100 kilos

of marijuana which he was storing at the

Madden Street house and which he was then

intending to sell and distribute (C.T.

p. 198). In the first conversation

McKnight asked the informant how he knew

about the marijuana supply at the Madden

10.

A a AAS ee ae ia i

,

Street location, and the informant replied

“he had been there with . . . John on one

prior occasion and he knew this to be where

the narcotics were stashed", however, the

informant did not state to McKnight how

long before relating his information he had

been at that location (c.T. pp. 198-199),

After receipt of the information from

his informant on December 1, and prior to

December 5, McKnight made an investigation

of the information received. He checked

the telephone number given him and found it

to be registered to a Gloria Bowie at 4620

Coliseum, apartment 103. He then checked

the utilities for that apartment and found

them to be registered in the name of John

Young. Then, on December 5, about 5:30

P-em., together with other police officers

working with him, and to whom he had

related all the foregoing information,

McKnight commenced a surveillance on the

rear of 4620 Coliseum (Cc.T. pp. 199-205).

At about 6:30 p.m. he observed peti-

tioner and a second person enter the 1968

Toronado he had previously seen at the

location and petitioner drive it to a gas

Station, which was closed for business, at

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GME RET TLMEERE SiN WARE SEINE AVS PSHE OLE SRG NAS YN We ee Pade SHAE c REE .

Bienes: SS —— veep

45th Street and Crenshaw in Los Angeles,

Shortly after petitioner arrived at the gas

station two other vehicles, a 1961 or 1962

Falcon with the license plate numerals

345, and a 1967 Lincoln, license number

WZT 317, also arrived, with three occupants

in the Lincoln and only the driver in the

Falcon. At the gas station petitioner left

his car and walked to the Lincoln and the

driver of the Falcon did likewise. These

men then held a brief conversation at the

driver's side of the Lincoln after which

petitioner returned to his vehicle and

drove away from the location. At that time,

McKnight could only identify the driver of

the Falcon as a male Negro about five feet,

ten inches tall (C.T. pp. 205-207).

McKnight then proceeded to follow peti-

tioner and noticed the Falcon beginning to

move from the gas station as he left but

the Lincoln remaining stationary. The

Toronado driven by petitioner was followed

by McKnight for about a half hour along a

number of different streets in the south

Los Angeles area making only traffic stops

during this time, and McKnight then observed

it enter and park in a Thrifty Drug Store

12.

EAL NL PM ETI ST ALLEY OO,

|

parking lot at the corner of Crenshaw and

Slauson. At this time petitioner exited

his vehicle and entered the drug store and

conversed with another person there. He

returned to his car in about five to ten

minutes and then drove back to the gas

station at 45th and Crenshaw, which took

about five minutes' time. When petitioner

returned to the gas station the Lincoln

was also there but not the Falcon. McKnight

observed petitioner go to the Lincoln and

speak with its occupants and then return

to his car. The Lincoln then left the gas

station, and McKnight commenced following

the Lincoln. He saw it go south on Cren-

shaw to the first street past Slauson where

it pulled into a drive-in restaurant lot

and remained a short time, then exit that

lot and drive north to Slauson, turn right

on Slauson and park at the curb by the

Thrifty Drug Store. At this time McKnight

Saw co-defendant McCloud appear from the

area of a vacant building at that location

and approach the Lincoln carrying a shopping

bag. McCloud entered the Lincoln with the

shopping bag, and the Lincoln then preceed-

ing east on Slauson. McKnight attempted to

follow the vehicle but shortly lost track

13.

Bren Lay Loe. CEMA VINEE ONEIDA CERES RM Wing e eee ‘ te ee i bavi htt ants Mike aa oe Mt ae eh

of it because of the fog which hampered

visibility that night (C.T. pp. 207-216).

McKnight then returned to 4620 Coliseum |

and observed the Toronado parked in its

garage stall. About 8:30 p.m. he saw

petitioner get in the car and drive from

the location. He followed the Toronado a

short distance and then lost sight of it in

the fog. A short time later McKnight

received radio communication from Officer

Gaines that the Toronado had arrived at

6015 Madden Street, and McKnight proceeded

to that location. On arriving McKnight

entered the residence and found petitioner,

McCloud, and a third man under arrest and

in the custody of Gaines and other officers.

McKnight observed no furniture in the

house. He saw Exhibit 1, a quantity of

marijuana, on the living room floor near

the arrestees. He then saw a set of keys

(Exhibit 8) removed from petitioner and

another set (Exhibit 9) removed from

McCloud. One key on each set was found by

McKnight to open a locked padlock (Exhibit

7) on the door of a detached garage at the

address of arrest. In the garage McKnight

found Exhibits 2 and 3, quantities of

14.

ANNU APART IRS RI ED 2G POMC TNT 7

marijuana, respectively. McKnight also

determined that one of the keys on Exhibit

8 operated the front door lock at 6015

Madden (C.T. pp. 216-228). (Thereafter,

McKnight entered and searched apartment 103

at 4620 Coliseum wherein he found Exhibit 4,

a small quantity of marijuana, Exhibit 5,

miscellaneous papers, and Exhibit 6, a

sawed-off shotgun; however, these exhibits

were ordered suppressed at petitioner's

motion under California Penal Code §1538.5

and were not introduced or received at

trial, and accordingly the circumstances

attendant on their search and seizure need

not be detailed herein.)

McKnight did not consider the person

who gave him the information in early

November to be a reliable informant but did

so consider the informant who provided him

information on December 1 and 5, 1968 (C.T.

pp. 236-237). This latter informant told

McKnight he had been to 6015 Madden with

the person he referred to as John, but did

not tell McKnight that he had ever been

inside apartment 103 at 4620 Coliseum or

had ever been present when orders for mari-

juana were taken at that location (C.T.

15.

Privates ay SS RRANA SAVANE Ca Ua) SRN, aha Mie bea aetna een aol aah PENTA IO Ry Wa wR a MENG EY RRM,

262-265). When he spoke to McKnight on

December 5 and told him that John was then

in possession of a large quantity of mari-

juana at 6015 Madden Street, this informant

did not state he had seen the marijuana

there or had observed John engaged in sell-

ing or distributing such marijuana (C.T.

272-273).

Marshall F. Gaines then testified at the

hearing of the motion under California

Penal Code §1538.5 that McKnight had related

to him the information received from the

second informant and that on December 5,

1968 he participated in the investigation

culminating in the arrests at 6015 Madden.

Initially Gaines was present with McKnight

at the rear of 4620 Coliseum when the

Toronado automobile was first observed on

that date. Gaines then proceeded in his

own vehicle to a nearby location and parked,

maintaining radio contact with McKnight.

He received a call from McKnight and drove

to 54th and Crenshaw and parked near a

closed gas station. He observed a 1961 Fai-

con at that location with the license

numerals 345 and followed it when it left

the service station. The Falcon drove to

16.

LLL LISI. “LESLIE GLP OE EI OS NEL IED i.

,

—

and parked two houses south of 6015 Madden

Street. At that time Gaines observed only

one occupant in the vehicle, the driver,

who was a male Negro. Gaines drove by the

parked Falcon and about five minutes later

returned to it. Some ten minutes afterward

he observed a male Negro enter the Falcon

and drive away. He identified this person

as McCloud (C.T. pp. 343-351).

When Gaines saw McCloud enter the Fal-

con on Madden Street he observed McCloud

to have a shopping bag with him. He fol-

lowed the Falcon as it left the location

but lost sight of it after it turned a

corner. Gaines then went to the Thrifty

Drug Store parking lot at Slauson and

Crenshaw, which was about two blocks from

6015 Madden. At that location he observed

the Toronado seen earlier. He then left

the parking lot and noticed a Lincoln,

which he had previously seen at the gas

Station at 45th and Crenshaw, driving south

on Crenshaw. Gaines followed this car to

a hotdog stand where it remained briefly

and then back north on Crenshaw to Slauson

where the car turned east and parked. At

this time Gaines observed McCloud appear

17.

from a darkened doorway at that location

and enter the Lincoln along with the shopp-

ing bag he was carrying. Gaines then

followed the Lincoln but lost it after a

short distance. He then proceeded to 6015

Madden Street where he parked and waited

with other officers (C.T. pp. 351-355).

About an hour later, Gaines observed

two automobiles arrive at 6015 Madden, a

Mercury and the Toronado previously referred

to. The Mercury had one occupant and the

Toronado two, petitioner, who was driving,

and McCloud, who was a Passenger. These

three persons entered the residence at

6015 Madden, and Gaines and his fellow

officers then approached the house. Gaines

went to the door and through an adjacent

window observed the three men inside in the

living room. He knocked loudly on the door,

announced his presence and identified him-

self as a police officer, and demanded entry.

Upon his doing so the three men in the

house ran from the living room. Gaines

yelled to them they were under arrest and

to exit the premises. When he received no

response to this, he forced entry and

effected the arrest of petitioner, McCloud,

1+ ms

LILLIE LI LE EOE BEY EL fe LLIN LEY

and the third man inside the house. He then

made a search of the house, and in a bed-

room closet on a shelf he found exhibit l,

a quantity of marijuana, which he placed in

the living room where McKnight observed it

when he arrived on the scene (C.T. pp. 355-

362). It was Gaines' opinion, based on the

information he had received from McKnight

and the observations he made that evening,

that one narcotics transaction had been

conducted and a second about to take place

at 6015 Madden, and that narcotics were

then possessed at that location; and he

determined to make the arrests of the men

he observed enter the premises on the basis

thereof (C.T. pp. 362-368).

At the time the Mercury and Toronado

arrived at 6015 Madden and the three occu-

pants of these two vehicles approached and

entered the house, a police car with three

officers was parked in the driveway of the

location, while Gaines was himself parked

on the street 100 to 150 feet from the

house (C.T. pp. 383-386, 423, 451-543).

Gaines had decided to arrest the men he

observed exit the Mercury and Toronado and

enter 6015 Madden for the offense of

19.

possession of narcotics for sale prior to

his own going onto the front porch and

looking through the window of the residence,

and upon their arrest he then assisted in a

search of the premises for narcotics (C.T.

pp. 468-471).

The foregoing in substance concluded

the testimony given at the hearing of

petitioner's motion to suppress evidence

under California Penal Code §1538.5 and

provided the basis for the trial court's

ruling adverse to petitioner respecting

exhibits 1, 2 and 3 (marijuana found on

closet shelf and in garage of 6015 Madden

Street) and exhibits 7, 8 and 9 (padlock

from garage of residence and keys taken

from petitioner and McCloud). The receipt

of said exhibits at trial formed the basis

of petitioner's conviction of Count I of

the information and constitutes the assigned

error on appeal.

PETITIONER'S POSITION

Petitioner contends that the search and

seizure producing the disputed exhibits in

the instant case was improper for two

20.

;

z

NORD ELUOE ELE SIAL LE LIE IEE OES EE BO NII LIONS i.

_

reasons: first, because it was predicated

on a warrantless arrest made without prob-

able cause, and second, because such arrest

was utilized as a pretext for the intended

purpose of the officers to conduct a warrant-

less search of particular premises. These

points will be developed and treated in the

discussion below.

ARGUMENT

A

Lack of Probable Cause

—

The instant case involves a warrantless

arrest and search and seizure of evidence.

Although the test of probable cause is

fundamentally the same in such instance as

where a warrant is had, the use of a warrant

remains the preferred procedure. United

States of Ventresca, 380 U.S. 102, 85 S. Ct.

741, 13 L.Ed.2d 684 (1965); Jones v. United

States, 362 U.S. 257, 80 S. Ct. 725, 4 L.Ed.

2d 697 (1960). Accordingly, what would be

inadequate to constitute probable cause to

support a warrant equally fails as probable

cause to support warrantless action, and

21.

i 2 PELLEGR LE EINES IE ILE LOE # IES LAER LE SE

the decisions of this Court in the former

area fully apply as precedents in the latter

Analysis of the case at bar requires at

the outset a consideration of this Court's

pronouncements in the case of Aguilar v.

Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 ;

L.Ed.2d 723 (1964). In Aguilar it was held,

respecting a search warrant affidavit, that ;

where information from an informant is

relied on as the basis for probable cause,

it must be shown both that the informant is

reliable and that the informant speaks from

personal knowledge respecting the informa-

tion related. A failure in either particu-

lar renders the information inadequate as

probable cause, and action predicated

thereon involving a search and se: zure is

therefore violative of the Fourth Amendment.

The Aguilar decision has received recent >

reiteration by this Court in the case of

Whitely v. Warden, Wyoming State Peniten-

tiary, 401 U.S. 569, 91S. Ct. 1031, 28

L.Ed.2d 306 (1971), and the two fold

requirement of Aguilar regarding an inform-

ant's information thus remains the applic-

able law in the probable cause area under

discussion. This area, it appears, is

22.

LAGE AEN BEB YE RSI I PEE be.

_—

directly involved in the instant action.

In the present case a claimed reliable

informant provided information to a police

officer, in person on one occasion and by

telephone on a second occasion a few das

later, regarding the narcotic dealings of

a described suspect. Because the informant

had previously given information to this

officer, McKnight, which proved valid, his

alleged reliability is not contested. How-

ever, the second, and co-equal, facet under

Aguilar the personal knowledge basis of the

informant, is not established by the record

at bar. Thus on neither occasion does it

appear that McKnight inquired of his inform-

ant how he knew or acquired the information

which he supplied, whether from personal

observation of or involvement in the subject

narcotic transactions, or by hearsay related

to him by others, nor does: it appear that

the informant specified his source when

providing the information.

The most the instant record reflects in

this regard that the informant told McKnight

that he, the informant, had once been to the

Madden Street residence with the man he

referred to as John and that "he knew" this

~

~

23.

- . PENT GARI NS OE TE

NF SE LIE LOGE 0 Wg IE IEE LE RES, IIE EPL BR a a le ; me ome

to be where the narcotics were kept. How-

ever, in this connection the informant

failed to disclose how long previously he

had been to that location, or what he did |

or observed there with respect to narcotics,

or how "he knew" narcotics were kept there,

which, of course, is the essence of the

Aguilar requirement. Moreover, the inform-

ant failed even to indicate that he had

ever been to the Coliseum Street apartment

which he referred to, or telephoned that

location, or ordered or witnessed someone

else order marijuana from that address or

through its telephone number. And, on

December 5th, the occasion of the telephone

call, no specifics whatsoever were provided

by the informant to substantiate his

information that "John" had then acquired

a large quantity of marijuana, which was

stored at the Madden Street house and which

was to be sold and distributed by him, or

to show that this information was predicated

on the informant's personal knowledge of

the facts.

As a consequence of the foregoing, the

information provided McKnight by his

informant would not, under the Aguilar and

24.

LEE LNP LOIRE YI SS TG RR EEE FASE LS NEO GOD: Be ls

aa

Whitely decisions, constitute probable

cause in the case at bar and thus would not,

alone, support an arrest or search.

McKnight and his fellow officers apparently

recognized this circumstance and accordingly

sought to corroborate the information

received through their own independent

investigation. In connection with this

investigation certain conduct on the part

of petitioner and others was observed by

them to transpire. However, this conduct

consisted essentially of people meeting one

another in public and making arrangements

for matters between themselves and was in

no respect improper or illicit as such.

Indeed, it was conduct wholly innocuous in

character and proper for any citizen to

engage in without fear of arrest or deten-

tion, and it assumed an aura of suspicious-

ness to the officers only by virtue of what

McKnight's informant had related.

In this respect the observed conduct

parallels that which was sought to be

relied on for corroboration in the case of

Spinelli v. United States, 393 U.S. 410,

89 S. Ct. 584, 21 L.Ed.2d 637 (1969), and

which this Court held insufficient for such

25.

purpose in that case notwithstanding the

involvement of a search warrant. In Spinel,

as here, the personal knowledge basis of

the informant's information was not dis-

closed, and the officers there sought to

corroborate their "tip" by checking tele-

phone listings at particular apartments and ©

by surveilling the movements of the suspect

with respect to these apartments. Essen-

tially little more was done in the instant

case, although in this connection the sur-

veillance here included the movements of

several persons who met with petitioner.

However, the conduct so observed

remained essentially nonculpatory, nor did

it correspond in detailed fashion to what

the informant had described, as was the

case in Draper v. United States, 358 U.S.

307, 79 S. Ct. 329, 3 L.Ed.2d 327 (1959).

In the instant case the informant only

generally mentioned the narcotic activity

of the suspect referred to and did not

relate a specific course of conduct which,

when observed, would have reflected the

requisite personal knowledge on his part,

which was the essence of Draper. Rather,

the broad outline of illegal conduct related

26.

LEED LSE BELO BIOL ES, GL EAGES IGE LE AE, be

”

by the informant in the present matter was

comparable to the informant's information

as given in Spinelli, and the conduct

observed on surveillance by the officers

thus could not be particularized with

respect thereto. Accordingly, the lack of

personal knowledge on the part of the inform-

ant in the case at bar was not remedied by

the investigation of the officers and prob-

able cause thus failed to be established

by the instant record.

Indeed, to hold otherwise would, it is

submitted, create an interesting but unten-

able example of circuitous reasoning, for

it must be borne in mind that it is not the

informant's information which must cast

suspicion on the conduct observed but rather

the conduct which must corroborate and lend

credence to the information and show that

the informant speaks from personal knowledge

of the facts related. However, if the

conduct itself is innocent and does not

correspond in detail to the information

given, and requires consideration of that

very information even to become suspect,

can it then rationally serve to corroborate

that information? In effect, can the

27.

7

circumstance requiring corroboration be

used to add substance and meaning to the

circumstance relied on for corroboration,

or is this not an impermissible round of

circuitous logic which has no place in the

probable cause equation pertinent to a

determination of the propriety of an arrest

and search and seizure.

The answer to the foregoing queries

appears manifest and leads to one obvious

conclusion: corroboration for an informant

cannot be predicated on legitimate activity

of a person publicly conducted which apart

from the information requiring corroboration

contains no aura of suspicion or suggestion

of impropriety. Thus, when Officer Gaines

in the present case determined to arrest

petitioner and the two men with him at the

Madden Street location, he acted precipi-

tously on the basis of his observations of

innocent conduct coupled with inadequate

information received from Officer McKnight's

informant. This combination, it is sub-

mitted, did not warrant reliance on the

latter and did not establish probable cause

for the arrests made. The ensuing search

for and seizure of evidence was therefore

28.

in a Ln Hl Ss a RY i

unlawful, and the exhibits recovered at the

Madden Street residence should have been

suppressed on petitioner's motion below.

The receipt of such evidence at trial was

thus violative of the Fourth Amendment,

applicable to the states through this Court's

decision in Mapp v. Ohio, 367 U.S. 643, 81

S. Ct. 1684, 6 L.Ed.2d 1081 (1961), and

accordingly constitutes reversible error

herein which now requires action by this

Court to be remedied.

B

Arrest As Pretext For Search

A second and independent ground for

invalidating the search and seizure in the

instant case must now be considered. The

basis of contention in this regard is that,

assuming arguendo a probable cause basis

for petitioner's arrest, nonetheless the

arrest, under the circumstances presented,

was in effect an impermissible subterfuge

on which to predicate a search and the

search and not the arrest was the true

intent of the officers in the case. However,

29.

7

the law in this particular is clear and

precise and to the contrary. As early

stated by this Court:

"An arrest may not be used as a

pretext to search for evidence."

United States v. Lefkowitz, 285

U.S. 452, 467, 52 S. Ct. 420, 424,

76 L.Ed.2d 877, 884 (1932)

and where such occurs the search cannot

withstand constitutional scrutiny.

In the present matter what the officers

wished to do was search the Madden Street

house and the Coliseum Street apartment,

and to do so without first obtaining a

search warrant for those premises. To

accomplish a search of the former location

(the subsequent search of the latter was

struck down by the trial court), the

officers had to effect an arrest on the

premises. Vale v. Louisiana, 399 U.S. 30,

90 S. Ct. 1969, 26 L.Ed.2d 409 (1970). An

arrest outside the location would not have

sufficed for this purpose, and thus the

officers conveniently passed the opportunity

to make an arrest as petitioner and his

companions were approaching the Madden

Street house to enter it, and walked siaemeal

30.

i

'

PR PPO AQ ORY APT RT OL Kra,a " , - , 8 . be

—

twenty-five feet of three officers in a car

parked in the driveway of the premises

(C.T. p. 453). Instead, the officers waited

until these men entered the location to

arrest them, notwithstanding the fact that

an arrest of suspects in open view manifestly

entails less danger than the arrest of sus-

pects in open view manifestly entails less

danger than the arrest of Suspects ina

concealed position. However, only the lat-

ter arrest would permit, as an alleged

incident, the desired search of the premises.

In this respect the case at bar paral-

lels that of McKnight v. United States,

183 F.2d 977 (C.A. D.C. 1950) where officers

also avoided a convenient Opportunity to

effect a lawful arrest of a Suspect on a

public street and instead allowed him to

enter a residence which they then broke

into to make the arrest, and which they

then immediately proceeded to search. The

court in McKnight readily recognized the

intent of the officers in the case to be a

search of the location of arrest, and after

first reiterating the exerpt from Lefkowitz

quoted above, went on to state:

31.

"It is settled law that 'when it

appears, as it does here, that the

search and not the arrest was the

real object of the officers in

entering upon the premises, and

that the arrest was a pretext for

or at most an incident of the

search,’ the search is not reason-

able within the meaning of the

Constitution."

183 F.2d at p. 978.

The court then concluded that the

search there involved was of this character

and thus was violative of the Fourth Amend-

ment guarantees.

It is, it is submitted, difficult to

distinguish McKnight from the instant case

factually, and legally, it is urged, the

same result should obtain. Manifestly,

in the present case, an arrest of petitioner

would have served no useful Purpose absent

the discovery of narcotics in his posses-

sion, since nothing learned or observed

Prior to his arrest would have sufficed as

evidence to support a conviction at trial.

Equally clear, then, was the need of the

32.

SOLES PORN DELLE LL LES EOBL TON FO IONS OE EELS

—-

officers to find such narcotic evidence,

and this required a search of the Madden

Street (and Coliseum Avenue) premises. As

in McKnight, so too here, the real object

of the officers thus was the search and not

the arrest. Indeed, if the search proved

fruitless, the arrest would not have pro-

ceeded to prosecution, and the arrest was,

accordingly, but an incident of the search.

However, the Constitution does not permit

a search to be so predicated and requires

instead a search warrant to be obtained in

such circumstances. The warrantless action

of the officers below, therefore, was

improper, and the fruits thereof thus

illegally obtained, and the same would not

have been received at petitioner's trial.

Appropos in this connection appears to

be the language and determination, of the

Court of Appeals in the case of Henderson

v. United States, 12 F.2d 528 (4th Cir.

1926), which early considered the issue

under discussion. The court there stated,

at pages 528-529:

". . « and a careful considera-

tion of the evidence leads

irresistably to the conclusion

33.

that the search of [defendant's]

dwelling was made, not as an inci-

dent of the arrest, but as the

chief object which the officers had

in view in entering upon his

premises. Instead of the search

being incidental to the arrest,

therefore, the arrest was inci-

dental to if not a mere pretext

for the search. The question is

whether a search made under such

circumstances violates the con-

stitutional rights of the defen-

dant. We think that it does."

This view, as noted above, was accepted

by this Court in United States v. Lefkowitz,

Supra, and followed in the McKnight deci-

sion. It remains sound law today and is

fully applicable to the case at bar. On

the basis thereof it must be concluded

that the warrantless conduct of the offic-

ers in the instant case was constitution-

ally impermissible and accordingly

requires action by this Court to be reme-

died,

34.

ea a ee

|

cee are ot

CONCLUSION

The instant case is one where police

officers, acting without warrant, recognize

the need for investigative corroboration

of an informant's information to support a

suspect's arrest. Their investigation,

however, reveals conduct and movements by

individuals only of innocuous character.

To then render such activity suspicious by

reference to the informant's information

is, it is submitted, to reverse the corrob-

Orative process, and then to use the

activity thus rendered suspect to corrobo-

rate the information in order to justify

reliance upon it, is to engage in circui-

tous reasoning of a patently unacceptable

nature. Yet, just such logic is presented

in this case as the predicate for official

action.

Essentially, however, in law and in

logic, it is the character of the activity

observed which must lend credence to the

information received, not the content of

that information which may be used to

transform legitimate civilian action into

illicit transaction. What was observed by

35.

the officers in the instant case was not

tainted except as interpreted by the

information provided by the informant; it

cannot, therefore, properly serve to cor-

roborate such information and support an

arrest based thereon.

In addition, in the present case the

manifest purpose of the officers was to

and their use of an arrest as the ostens-

ible basis to accomplish this purpose is,

under the applicable law, improper.

Accordingly, for this reason also, the

search for and seizure of evidence herein

was unlawful, and the same should have

been suppressed at trial. It is acknowl-

edged that the consequence thereof would

be to exclude a significant quantity of

Marijuana from trial consideration, how-

ever it is respectfully submitted that it

is at least equally important for law

enforcement officers to comply with the

law governing their conduct as for civil-

ians to do so. In this regard only do we

remain a nation of laws rather than one

of men.

36.

CLES ERE ENE LILLIE OLE EISELE SEL EE GE ROBT ‘ a

OL hii shred Nh RABY sii Sitesi vies

conduct a warrantless search of a residence, —

voted opin 162 motes

APPLICATION

r

$s

Accordingly, it is respectfully sub-

mitted, for the reasons presented and on the

basis of the authorities cited, that peti-

tioner's position herein is sound and should

be sustained, and it is thus requested that

the within petition for writ of certiorari

be granted and the matter set for hearing

on the Honorable Court's docket.

’

ee hahaha BRR eS ALK. hdres iahk Shida 8 sabia Sty

Respectfully submitted,

HOWARD E. BECKLER

Attorney for Petitioner

37.

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

“DIVISION FOUR

a Trae ) Crim. No. 21035

' Plaintiff and ) (Superior Ct. No.

- Respondent, ) A239568)

= )

GRADY ROGER McCLOUD, =) oan TE 435

JOHN HENRY YOUNG, Clay Robbins,

Defendants and ) Clerk

)

Appellants.

APPEALS from judgments of the Superior

Court of Los Angeles County. William R.

Clay, Judge. Affirmed.

Richard H. Levin, under appointment by

the Court of Appeal, for Defendant and

Appellant McCloud.

Howard E. Beckler for Defendant and

Appellant Young.

Evelle J. Younger, Attorney General,

Edward A. Hinz, Jr., Chief Assistant Attor-

ney General, William E. James, Assistant

A-l.

Attorney General, William R. Pounders and

Geoffrey S. Cantrell, Deputy Attorneys

General, for Plaintiff and Respondent.

After a court trial, defendants Grady

Roger McCloud and John Henry Young were

convicted of possession of marijuana for

Sale (Health & Saf. Code, § 11530.5). Each

is appealing from the judgment. The

People's case was submitted by stipulation

upon the transcripts of the preliminary

hearing and the special hearing under Penal

Code section 1538.5. Defendant Young tes-

tified at the trial and called one other

witness. No other defense evidence was

offered.

The issues on this appeal are the

legality of the seizures of the marijuana,

and the sufficiency of the evidence to

Support the conviction of each defendant.

Evidence

In early November 1968, an untested

informant told Los Angeles Police Officer

McKnight that a male Negro who lived in

the 4100 block on Coliseum and drove a late

A-2.

f

i

MJ

ane * . ee: +y . Poa Cy te ET RP VARs NOIR es LO ete AO Ey 38 CES '

EIEN OLE ISTE NEIL OM RES SN TINS AL EEE SP Ale OR Se tees t

model Toronado was a big dealer in marijuana.

The officer looked around the neighborhood

and the only Toronado he saw was parked

behind the apartment house at 4620 Coliseum.

Later that month he staked out the area and

observed defendant Young driving the Toro-

nado.

About December 1, 1968, a tested, reli-

able informer, whose information had led to

the recovery of drugs in at least two cases,

told Officer McKnight that a big dealer in

marijuana was a male Negro named John, who

drove a new 1968 Toronado, lived on Coli-

seum, and had a telephone number of 296-4407.

He said further that John kept his narcotics

in a residence at 6015 Madden. The inform-

ant had been at the Madden house with John.

The informant also said another individual

"sat on his stash at the Madden Street

location" and drove a green 1961 Falcon,

with numbers 345 on the license plate.

A utilities check showed that the tele-

phone number 296-4407 belonged to apartment

103 at 4620 Coliseum; and that the water

and power service for that apartment was

in the name of John Young.

A-3.

v

On December 5, 1968, the tested inform-

ant told McKnight that John had just receive »

100 kilos which were stashed at the Madden

Street location. That evening McKnight and

several officers, driving separate vehicles

and communicating with each other by radio,

staked out the neighborhood. About 6:30 p.r

Young and another man walked from the apart-

ment at 4620 Coliseum, entered the Toronado

and drove to an out-of-business service

station at 54th and Crenshaw where Young

met with the occupants of two other cars,

one of which was a green Falcon with the

345 plates, and the other was a Lincoln.

Thereafter Young then departed in his Toro-

nado, drove around for 30 to 45 minutes,

stopped at a shopping center at Slauson and

Crenshaw, and returned to 54th and Crenshaw,

where the Lincoln was. Young conversed

with the driver of the Lincoln, who then

drove away, stopped at a hamburger stand

for 15 minutes, and stopped again near the

shopping center at Slauson and Crenshaw.

Meanwhile the Falcon had parked close

to 6015 South Madden, where defendant

McCloud had entered the car carrying a

large paper shopping bag. The Falcon

A-4.

| iiibeais ve basins We Ritson oe ean, Swe ee

wey,

a

arrived at the Slauson and Crenshaw shopping

center, where McCloud went into a drug store

and returned to the car. At that time the

Lincoln was parked nearby on Slauson.

McCloud was then seen carrying the shopping

bag which he placed in the back seat of the

Lincoln and entered the Lincoln, which went

away. Due to fog the officers were unable

to follow the Lincoln.

About an hour later both Young and

McCloud were seen to arrive at the Madden

address in the Toronado. A man named Jones

arrived in another car. The three men then

entered 6015 Madden.

Officers Gaines knocked loudly on the

front door, announced that he was a police

officer on a narcotics investigation and

"I demand admittance." Through the glass

in the door he could see the three men

inside. When he made his demand, all three

looked in the direction of the front door,

then ran towards the kitchen, and the lights

went out. Officers then broke into the

house and arrested the three men.

A search of the house disclosed in a

bedroom closet a duffel bag containing nine

A-5.

SON Ree y

a

kilos of marijuana. A search of the defen-

dants revealed that each carried a set of

keys. One of Young's keys fit the front

door of the house and one fit the padlock

on the garage behind the house. One of

McCloud's keys also fit the garage padlock.

There was no furniture in the Madden Street

house.

The officers then entered the garage

and seized two duffel bags containing a

large number of kilos of marijuana.

Analysis

The December 1, 1968, informant's

report, plus other circumstances, gave

probable cause to arrest defendant John

Henry Young. The credibility of the inforn-

ant was shown by his accurate information

in prior cases. The other Prong of the test

-- the basis of the informant's report --

was established by his statement that he

had visited the Madden Street house with

John. Officer McKnight testified: “a

asked him on one occasion -- I believe it

was the initial conversation I had with

him -- how he had known about the stash at

A-6.

6015 Madden, and he stated he had been there

with the individual known as John on one

prior occasion and he knew this to be where

the narcotics were stashed."

Although the informant was not quoted

as using the words "I saw the narcotics

there," this was a fair interpretation of

what he said.

The report of the tested informant was

corroborated in several respects by the

report of the untested informant, by the

officers' own investigation, by what the

officers observed the evening of December

5, and by the behavior of defendants when

the officers identified themselves at the

door of the unfurnished house.

Officer Gaines complied with Penal

Code section 844 by identifying himself as

a police officer on a narcotics investiga-

tion and demanding admittance. When he

Saw the defendants look towards the door

and retreat, he reasonably concluded that

admittance was being refused so he lawfully

forced entry.

Thus the arrest of Young inside the

Madden Street house was lawful.

A-7.

Since the arrest was in 1968 (pre-

Chimel), the area which could lawfully be

searched as an incident of the arrest

included the bedroom closet. (See People

v. Edwards (1969) 71 Cal.2d 1096, 1106-

1108.) Thus the nine kilos were properly

seized.

The arrest of McCloud was also lawful.

He had been seen carrying a shopping bag

away from the Madden Street house, and

riding in the green Falcon (which the

tested informant had said was used by

John's accomplice) to a rendezvous ona

public street, where he delivered the bag

to a Lincoln automobile. This transaction

was preceded by an earlier conference at

an abandoned gas station, and some driving

about the city without apparent purpose

except perhaps to kill time and avoid mak-

ing the parties conspicuous. In the light

of the informant's report, the officers

could reasonably believe that McCloud was

making a delivery of contraband to a person

in the Lincoln. This inference was rein-

forced by the observation that McCloud

returned with Young soon afterwards to the

Madden Street house which the informant

A-8.

7

H

—

said was used only for storage and narcotics,

and by the behavior of all of the men in

house when the officers identified them-

selves. The lawful search of the house

(incident to the arrest of Young) established

that the house contained kilos of marijuana,

and nothing else. It was reasonable for

the officers to infer that as a practical

matter a narcotics dealer will not escort

to his "stash" anyone who is not also

involved in the criminal enterprise. Upon

all of this the officers reasonably con-

cluded that McCloud was criminally involved,

so his arrest there was lawful.

There is no merit in the argument of

defendant Young that their arrest was a

pretext for the search. The officers did

not take defendants to the Place they

wished to search, as in People v. Haven

(1963) 59 Cal.2d 713, 719.

The search of the detached garage was

@ proper incident of the arrest under the

California decisions prior to Chimel.

(See People v. Medina (1972) 7 Cal.3d 30,

38; People v. Dixon (1956) 46 Cal.2a 456,

458-459.) If we assume that the search of

the garage was improper under pre-Chimel

A-9.

standards interpreted post-Chimel in Vale

v. Louisiana (1970) 399 U.s. 30, 33, the

error was harmless beyong a reasonable

doubt. The nine kilos stored in an other- ;

wise empty house clearly were possessed for

Sale rather than for personal use. Thus i

the discovery of the additional quantity

in the garage added nothing of substance

to the People's case.

The evidence of guilt was sufficient

as to both defendants. Dominion and control _

of the marijuana by Young was established by

his possession of keys to the house and to

the garage, by his presence in the house,

and by his reaction when the police

demanded admittance. Defendant McCloud

also possessed a key to the garage. He

was obviously associated with Young in

whatever enterprise they were engaging in

that evening, as he had carried a large

bag away from the stash house early in the

evening and had returned to the house with

Young later. It is a reasonable inference

Young would not have brought him there

unless McCloud also had an interest in the

only thing the house was being used for,

the storage of marijuana for sale. It was

A-10.

i 2 ,

reasonable to infer that McCloud was jointly

in possession of the kilos inside the house.

The judgments are affirmed.

NOT FOR PUBLICATION.

FILED, P.J.

We concur:

KINGSLEY, J.

DUNN, J.

A-11.

a

ah Ts

So

Howard E. Beckler, Esq.

6922 Hollywood Blvd., #201

Hollywood, Ca. 90028

CLERK'S OFFICE, SUPREME COURT

4250 STATE BUILDING

San Francisco, Cauirornia 94102

. 080x307.

Dear Sm: I have this day filed Order...

Inve: 2 Crim..-..No......21035..

eae People

oS.

nw. Young... <vete. Vhtul.

Respectfully,

G. E. BISHEL

Clerk

€7733-877 10-72 sm OsP

ia a ain Ae ea fe Cato koe a ite eee ba

10844 VENTURA BLVD., é NORTH HOLLYWOOD

POPLAR 3-2965 TRIANGLE 7-8620

PERSIE ILE SEES PRT SI MEE NLDER EI ON LEO EL OAD ROMER LNT TER TE