Opinion
Page __
__ Cal.App.2d __319 P.2d 796Clyde M. PRIESTLY, Petitioner,v.The SUPERIOR COURT of the State of California, IN AND FOR CITY AND COUNTY OF SAN FRANCISCO, Respondent.Civ. 17858.California Court of Appeals, First District, First DivisionDec. 19, 1957Hearing Granted Feb. 11, 1958.
[319 P.2d 798] Arthur D. Klang, San Francisco, for petitioner.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., for respondent.
PETERS, Presiding Justice.
By a two count information petitioner was charged with the illegal possession of heroin and dolophine in violation of section 11500 of the Health and Safety Code. Under section 995 of the Penal Code he moved to set the information aside on the ground that all the evidence of the crimes involved was secured by an illegal search and seizure and was therefore inadmissible under the rule of People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513. The motion was denied. Thereupon petitioner filed the present application for a writ of prohibition.
The facts are not substantially in dispute. On April 18, 1957, Priestly was arrested without a warrant of arrest, and his premises were searched, also without a warrant. Heroin was found on his person, and dolophine found in the drawer of a dresser located in a room occupied by petitioner and several other persons. In order to justify the arrest and search without a warrant the arresting officer, at the preliminary hearing, testified that he had received information from an unidentified informer, believed to be reliable, that Priestly had narcotics in his possession at his residence. The officer had no other information about Priestly except that received from the informer. The arresting officer testified that on April 18, 1957, at about 2:30 p. m. he received information from an informer, believed to be reliable, that Priestly had heroin in his home at 1060 Ellis Street, apartment 3, San Francisco. The informer described the container in which the heroin was kept. She also stated that she had been at Priestly's apartment that day and picked up some heroin. The informer also told the police witness about another person residing at 1030 Fell Street who was supposed to be in possession of heroin. She described that occupant's automobile, and gave the license number. The police proceeded to 1030 Fell Street and found the occupant in possession of heroin. This occupant then implicated Priestly, stating that Priestly was in possession of heroin. The reliability of the first informer as to Priestly was based on the fact that her information had proven reliable as to the premises at 1030 Fell Street. As to the second informer the police had had no prior experience with him.
The petitioner strenuously objected to this evidence, and frequently demanded to know the identity of the informer. The objections and demands were overruled. The trial court ruled that the identity of the informer was confidential and privileged. The court did permit some cross-examination of the officer. He stated that the first informer was a woman, and that he believed her to be reliable. He based this belief upon the fact that she had worked for the police department for two weeks prior to April 18, 1957. He admitted that the informer was an addict and that when the police first saw her on April 4, 1957, they secured her cooperation by promising not to arrest her. There was no attempt on the part of the police to determine [319 P.2d 799] her general reputation in the community, or whether she had ever been convicted of perjury or subornation of perjury. Apparently the only time the police had used information given by this informer, so far as this witness knew, was when she informed on the occupant at 1030 Fell Street. Objections to all questions that might have revealed the identity of the informer were sustained. The court even sustained an objection to the direct question as to whether the second informer, the man arrested at 1030 Fell Street, was named Cecil Thomas.
On the sole basis of this informer information the police proceeded to 1060 Ellis Street, a three-story apartment building. The front door of the apartment was unlocked. The police entered and stationed themselves where they could observe the door to Priestly's second-floor apartment. In about 10 minutes Priestly came out of the apartment accompanied by another man. He was immediately told by the police that he was 'under arrest for violation of narcotic laws,' but was not told of what specific violation he was accused. At the time of his arrest the only information the police had about any violation of the law was that secured from the informers. The police entered Priestly's apartment. Without permission or consent of Priestly, they searched him and found in his pocket a metal box containing what later was determined to be four bindles of heroin. The police then, without permission or consent of Priestly, searched his apartment. In a dresser drawer, under towels and bidding, they found a metal box containing what later turned out to be dolophine. Priestly denied ownership, claiming that this container and its contents belonged to others using the apartment. His wife and daughter occupied the apartment with him.
If the information secured from the informers was subject to a motion to strike, then there was no admissible evidence to show that the police had reasonable grounds to make the arrest and search without a warrant. In such event, the arrest and search were illegal, and the articles secured in such search were not admissible in evidence. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905. Where no admissible evidence has been introduced at the preliminary hearing to connect an accused with the offense charged, and he is held to answer, a writ of prohibition will lie.
The basic question presented is whether at the preliminary examination, upon proper objection and request, the name of the confidential informer must be disclosed or the evidence stricken. On this question there is considerable confusion in the cases, none of which offers a conclusive answer.
It is certainly true that law enforcement officials may properly use informers and, in a proper case, may protect the identities of the informers from disclosure. This privilege of withholding the name of the informer has long been recognized in this country and in England. The purpose of this privilege is, of course, the furtherance of the public interest in effective law enforcement. It is aimed at encouraging members of the community to communicate to proper officials any and all information they may have about any law violation without unnecessary notoriety. Such informers play an important and proper place in the enforcement of criminal, civil and administrative law. They are used by many departments of government. Certainly, without their aid, in the field of criminal law, many criminals would not be apprehended.
Because of the vital function they perform, the law confers on the government the protection of not unnecessarily disclosing their identity. In California, the name of a confidential informer may be protected, in a proper case, by virtue of the provisions of section 1881, subd. 5, of the Code of Civil Procedure. It provides:
'A public officer cannot be examined as to communications made to him in [319 P.2d 800] official confidence, when the public interest would suffer by the disclosure.'
The precise extent of this privilege has not been determined in this state. It is obvious that such a privilege necessarily results in the suppression of evidence. Great difficulties are encountered when the informer information is sought to be used in a criminal proceeding. Then the public policy of permitting an accused to be confronted by his accusers and to cross-examine them and to prepare his defense, runs head on into the public policy of protecting the identity of informers. For this and other reasons it is settled that such statutes as section 1881 must be strictly construed. Samish v. Superior Court, 28 Cal.App.2d 685, 86 P.2d 305.
In the present case the question involved is whether the police had probable cause for the arrest so as to justify the arrest and search without a warrant, when the sole information they had was from an informer whose identity they refused to divulge. This depends upon whether the facts told to the police were sufficient to warrant the police in believing a felony had been committed by the accused, and whether the police believed, and had the right to believe, the information. In the present case the information received was that defendant that day was in possession of narcotics. This was certainly information that a felony had been committed and, if believe, warranted the arrest. It will be noted that what the informant told the police when testified to by the police is hearsay, but it is admissible hearsay. People v. King, 140 Cal.App.2d 1, 294 P.2d 972. The question is not whether the facts told the police by the informer were true, but whether the police reasonably believed them to be true. The police attempted to meet that requirement by testifying that they believed the informer because as a result of past experience they had found the informer to be 'reliable.' In the instant case the past experience with the informer was extremely limited, but it can be accepted that it was sufficient to warrant the police in acting upon it. Thus, the police were told that a felony was being committed by defendant, and reasonably believed the information. This means that prima facie the police had probable cause to make the arrest and search without a warrant.
But upon proper request the police refused to divulge the name of this informant. How could the accused meet the prima facie case? The federal and state Constitutions guarantee him freedom from illegal searches and seizures. Since the Cahan case, illegally secured evidence cannot be introduced against him. The police were relying solely on the information secured from an informant to justify the arrest and search without a warrant. If the accused could prove that the informant did not exist, or, if he did exist, that he did not tell the police the facts that they claim were told to them, then the sole basis for the arrest and search would have disappeared, and the arrest and search would have been clearly illegal, and the evidence secured by such means would not have been admissible. But the accused was prevented from presenting such evidence. He was told by the court that public policy prevents the disclosure of the identity of the informant. Thus he was deprived of the right of confrontation and the right of cross-examination. He could not, in the nature of things, prove either that the informant did not in fact exist, or, if he existed, that he did not tell the officers what they claimed was told them. These are important rights. The public policy that supports the nondisclosure of the identity of the informer comes into direct conflict with the constitutional and lawful rights of the accused. Which shall prevail? That is the question.
The California courts have not yet decided the question as to which public policy must prevail at the preliminary hearing, but they have discussed the question as to whether the informer's identity must be disclosed at the trial. Although the cases are by no means consistent, the following rules now seem to be settled:
[319 P.2d 801]1. At the preliminary or at the trial if the accused does not request the name of the informer or object on proper grounds the failure to disclose the informer's identity cannot be raised by writ or by appeal. Lorenzen v. Superior Court, 150 Cal.App.2d 506, 310 P.2d 180; Robison v. Superior Court, 49 Cal.2d 186, 316 P.2d 1.
2. Where the information received from the informant is merely the starting point for an independent investigation by the police, and the arrest is based on the results of such independent investigation, the name of the informer need not be disclosed. As a corollary to this rule, if the police testify that an informer told them certain facts, and that they then made an independent investigation and learned certain facts, and that based on both sources of information the search was made, if the facts learned in the independent investigation alone support the finding of reasonable and probable cause, the identity of the informer need not be disclosed. For obvious reasons, the public policy embodied in section 1881 takes priority over the rights of the defendant because if afforded such rights it would avail him nothing. People v. Merino, 151 Cal.App.2d 594, 312 P.2d 48; People v. Gonzales, 141 Cal.App.2d 604, 297 P.2d 50; People v. Alaniz, 149 Cal.App.2d 560, 309 P.2d 71.
3. The third situation discussed by the courts is where the informer not only conveys information to the police but is also an actual participant in the illegal act. This occurs most frequently in narcotic cases where an informer is used by the police to make a purchase. Then at the trial the police testify as to the information conveyed and as to what they observed the informer do. In this situation the more recent cases decided by the appellate courts in this state hold that, upon proper objection and demand, the name of the informer must be divulged or the evidence must be excluded. In People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821, it was held that where the informant is a participant it becomes more important to the administration of justice and to the public welfare that the defendant be afforded the right to know the name of the informer than it is to keep the informer anonymous. At page 450 of 149 Cal.App.2d, at page 830 of 308 P.2d, the court stated: 'To deny the defendant the right to examine an officer regarding the name of or to ask other material questions concerning an informant-participant would be to suppress an essential element of the res gestae.' At page 451 of 149 Cal.App.2d, at page 831 of 308 P.2d, the court stated: 'We believe the same principle applies to a hearing on voir dire held out of the presence of the jury. Although the question of the guilt of the defendant is not before the court, nevertheless, the defendant has the same right to present his defense at the hearing to determine the reasonableness of an arrest or search as he does on the question of his guilt. The fact that the hearing is held before the court in the absence of the jury makes it no less a criminal proceeding. Due process applies and all the rights the defendant may have at the trial proper apply with equal force and dignity to the proceedings before the court sitting in the absence of a jury.'
The same reasoning with equal force applies to a preliminary examination.
It is certainly the federal rule that an informer-participant's name must, upon request, be divulged. That was precisely what was held in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 627, 1 L.Ed.2d 639. In that case the court by dicta also held that the accused was entitled to the name of the informer when the issue involved the validity of a search without a warrant. The case involved an informer-participant. The Court pointed out that the Government's privilege to withhold the identity of the persons who have furnished the information about law violations is based upon 'the furtherance and protection of the public interest in effective law enforcement.' It then pointed out that the 'scope of the privilege is limited by its underlying purpose,' and that one such limitation 'arises from the fundamental requirements of fairness.' The [319 P.2d 802] Court continued: 'Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause [precisely the problem in the instant case]. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient apart from his confidential communication.' While this holding is not binding on a state court it certainly is persuasive.
One of the latest cases on the subject in this state reviewing all of the pertinent authorities is the well-written and well-reasoned case of People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79 (hearing by Supreme Court denied), written by Mr. Justice Dooling. The Court there stated (153 Cal.App.2d at page 657, 315 P.2d at page 81): 'The possible importance of this person's identity to the defense is just as great whether he happens to be a government informer or not. In either event, if the defendants had the opportunity to interview him and call him as a witness, he might contradict the testimony of the officers completely or in part. He might deny that he was present at all, or participated in any of the transactions. He might corroborate the officers as to the telephone calls and the purchases of narcotics but testify that the persons to whom he talked and from whom he made the purchases were persons other than the appellants. It would be intolerable if the government could convict its citizens of crime and thereby deprive them of their liberty and civil rights while denying them the opportunity to produce a witness or witnesses to the alleged crime, whose identity is known to the witnesses who testify against him. The defendant is entitled as a matter of due process of law to be allowed to interview and produce any witness who might give evidence favorable to his defense, and when a witness who testifies to the commission of a crime testifies that another person or other persons were also present, and particularly where such other person or persons according to the testimony were active participants, the right of the defendant to the disclosure of the identity of such person or persons on cross-examination seems too clear for successful contradiction. If this was a case without precedents logic and the basic constitutional guaranty of due process would compel this conclusion, but it is not a case without precedents.'
The Court then cites many federal and state cases holding that the name of an informer-participant must be disclosed, upon demand, or the evidence must be stricken. After reviewing the holdings in several of these cases the court stated (153 Cal.App.2d at page 659, 315 P.2d at page 82): 'No one knows what the undisclosed informer, if produced, might testify. He might contradict or persuasively explain away the prosecution's evidence. It is the deprival of the defendants of the opportunity of producing evidence which might result in their exoneration which constitutes the error in this case, and we cannot assume because the prosecution evidence may seem strong that the undisclosed evidence might not prove sufficient to overcome it in the minds of the jurors. To do so is to reason that in no case can a defendant suffer prejudice from the suppression of evidence which may be favorable to him if the prosecution has produced what seems to be a strong eyewitness case of the defendant's guilt.' See also the very recent case of People v. Alvarez, 154 Cal.App.2d 694, 316 P.2d 1006, where the same result was reached.
4. This brings us to the precise problem now before the court, namely, at the preliminary hearing, when it develops that the sole basis for the search without a warrant is information received from an [319 P.2d 803] informer, and there is no emergency, must the name of the informer, if known, upon request, be divulged or the evidence suppressed?
Logic, fair play, and fundamental principles of law suggest the answer. If the reasoning in the informant-participant cases is sound, and we submit that it is, then the same rule must apply to the problem under consideration. Every reason given to support the rule in the informer-participant cases applies with equal force to this situation. The rule of the Cahan case holds inadmissible evidence secured by an illegal search and seizure. At the preliminary hearing an officer can justify an arrest and search without a warrant only if he has reasonable grounds to believe a felony has been committed. When the sole basis for such belief is information secured from an informer claimed to be reliable, the identity of the claimed informer becomes of vital importance to the accused. It might be that the informer, in fact, does not exist. Certainly, the accused is not bound by the officer's statement that he does. An officer who believes that the end justifies the means, and who does not agree with the Cahan case, could vindicate any arrest and search, however unlawful, if the identity of the informer need not be divulged. In that event the rule of the Cahan case would be subverted. As long as the possibility of a 'phantom' informant exists, it should and must be guarded against. Moreover, the informer may not have told the officer the facts the officer states were told him, or the officer may have had no real reason to believe that the informer was reliable. It is not beyond the realm of reasonable possibility that an officer, eager to carry out his duties, will follow up some lead that clearly would not constitute reasonable and probable grounds for searching without a warrant. After the arrest is made and incriminating evidence has been found, an over-zealous officer might well rationalize that society should be protected from the guilty criminal, and thus justify in his own mind the distortion of the actual facts told him by the informer. The possibility may be remote, but it exists. Certainly, the presumption that official duty has been performed does not prevent the impeachment of the officer. As was said in Powell v. Superior Court, 48 Cal.2d 704, 707, 312 P.2d 698, 699, in discussing a somewhat related problem: 'In the circumstances of the present case, to deny inspection of defendant's statements would likewise be to lose sight of the objective of ascertainment of the facts, and would be out of harmony with the policy of this state that the goal of criminal prosecutions is not to secure a conviction in every case by any expedient means, however, odious, but rather, only through establishing the truth upon a public trial fair to defendant and the state alike.'
The defendant has a legal right to be confronted by his accuser, and to cross-examine him if desired. To deny him these rights, and thus to prevent him from introducing, if he desires, relevant testimony, is to deny him due process of law.
There can be no reasonable doubt that the writ of prohibition may be used to reach the error here involved. The purpose of a writ of prohibition, of course, is to arrest proceedings of a court when such proceedings are without or in excess of its jurisdiction (Code Civ.Proc. § 1102), and when there does not exist a plain, speedy, or adequate remedy in the ordinary course of law. Code Civ.Proc. § 1103.
In the present case, the court, in refusing petitioner, upon proper request, the name of the informer, exceeded its jurisdiction. The court had jurisdiction to hold the accused to answer only if the legally admissible evidence showed probable cause that a crime had been committed. In the instant case, the narcotics seized in the search were not admissible unless the search was legal. To justify the search without a warrant it was indispensable for the police to prove that they had reasonable grounds to believe that a felony had been committed. When they relied solely on an informer (and there was no emergency), and then claimed a privilege [319 P.2d 804] against divulging the name of the informer, the evidence of the facts secured from the informer should have been stricken. If that had been done there would have been no evidence to justify the search. Without such evidence, the narcotics seized in the search could not have been properly admitted into evidence. Thus, if the accused's constitutional rights of due process had not been violated, there would have been no evidence at all of probable cause. Without such evidence the court exceeded its jurisdiction in holding him to answer. These are not novel principles. The Supreme Court recently reaffirmed them in the case of People v. Valenti, 49 Cal.2d 199, at page 203, 316 P.2d 633, at page 635, where it was stated: 'If the illegally obtained evidence is the sole basis of an indictment or information, defendant is held without reasonable or probable cause; his motion to set aside the accusatory pleading should be granted by the court in which he is arraigned on such pleading; and if the motion is improperly denied an appellate court will grant prohibition to halt proceedings under the accusatory pleading.' This was a reaffirmance of the rule announced in Badillo v. Superior Court, 46 Cal.2d 269, at page 271, 294 P.2d 23, at page 24, where the court stated: 'In Rogers v. Superior Court, 46 Cal.2d 3, 291 P.2d 929, * * * we held that a 'defendant has been held to answer without reasonable or probable cause if his commitment is based entirely on incompetent evidence', and accordingly, in such a case the trial court should grant a motion to set aside the information, Penal Code, § 995, and if it does not do so, a peremptory writ of prohibition will issue to prohibit further proceedings. Penal Code, § 999a.' The rules of these cases are clearly applicable to the instant case.
Certainly, it cannot reasonably be contended that because the accused can raise the issue at his trial he has an adequate remedy, and therefore prohibition will not lie. Such remedy is neither speedy nor adequate. The accused is entitled to be discharged at the preliminary hearing unless reasonable and probable cause are legally shown. If entitled to be discharged he should not be required to undergo the rigors and expense of a trial. His constitutional rights have been invaded. He is entitled to the protection of the courts in reference to those rights. Such protection can be given by issuing the writ.
The rule here announced should impose no unfair restraint on proper law enforcement. It is important to society, of course, that the narcotic trade by suppressed. But it is also important to society that all those accused of crime, including those accused of narcotic violations, be afforded a fair hearing and a fair trial. The Cahan case helps to assure the accused of such a hearing and such a trial. The rule of that case is sound. The courts should not permit it to be undermined by unsound exceptions. In our constitutional and democratic society it is most important that the constitutional and civil rights of all people, including the lawbreaker, should be protected. The doctrine that the end justifies the means should have no place in law enforcement, and should certainly not receive judicial approval. It cannot be true that the only way to enforce the law is to break it--that in order to catch the lawbreaker it is necessary to infringe his constitutional and civil rights. The use of informers plays an important and proper place in law enforcement. The privilege of withholding the identity of informers is also most important. But an abuse of the privilege by infringing on the rights of the accused should not be condoned. The rights of confrontation, of cross-examination, of preparing a defense, and of a fair trial generally, are too important to permit them to be frittered away by over-zealous law enforcement officials.
As an additional and alternative ground of this opinion, I agree with the reasoning contained in the concurring opinion of Mr. Justice FRED B. WOOD.
Let the peremptory writ of prohibition issue as prayed.
[319 P.2d 805] FRED B. WOOD, Justice.
I concur in the judgment.
I agree that under the circumstances of this case defendant was entitled, at the preliminary examination, to learn the identity of the informer; that it was the duty of the magistrate to overrule the prosecution's objections to defendant's questions designed to elicit such information; and, if the witness refused to respond, it was the proper function of the magistrate to take steps calculated to compel the witness to respond or to order his testimony on this subject stricken from the record. But the magistrate did not do that. The objections to the questions were sustained and a fundamental right of the defendant violated. I am not sure that such violation operated, as a matter of law, to strike from the record the hearsay testimony which the officer had previously given on the subject of the reasonableness of his cause to believe the defendant had committed a felony. That hearsay testimony was admissible, I believe, at the time it was given, but became vulnerable to a motion to strike when upon cross-examination the witness and the state refused to disclose the identity of the informer. No such motion was made, although objections were made to the introduction of the evidence seized, upon the grounds, among others, of the violation of the due process clauses of the state and federal constitutions. I doubt if under those circumstances the hearsay testimony of the prosecution's witness is deemed stricken from the record as a matter of law.
However, there is another consequence of the violation of defendant's fundamental right of confrontation and cross-examination which, in my opinion, leads to illegality of the preliminary examination, illegality of the commitment, and invalidity of the information, whether the officer's hearsay testimony remain in or be deemed stricken from the record.
I derive this concept from an analysis of the constitutional and statutory mandates which govern the prosecution of crime by information. They quite convincingly appear to accord the defendant all of the fundamental elements of a 'fair trial' on the question whether 'it appears * * * that a public offense has been committed' and whether there is 'sufficient cause to believe the defendant guilty.' Pen.Code, § 872.
For example, the defendant must be promptly taken before a magistrate who must immediately give him a copy of the complaint, inform him of his right to counsel and allow him a reasonable time to send for counsel and, if he is unable to and desires counsel, assign counsel to defend him (§ 859, Pen.Code). At the examination, the 'witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.' § 865. When the examination of witnesses on the part of the people is closed, 'any witnesses the defendant may produce must be sworn and examined.' § 866. The defendant may not be examined unless he is represented by counsel or unless he waives his right to aid of counsel after being advised at such examination of his right to aid of counsel. § 866.5. The magistrate may exclude witnesses who have not yet testified (§ 867) and must exclude certain persons upon request of the defendant (§ 868). 'If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged.' § 871.
Thus has the Legislature, in the exercise of the power expressly conferred upon it by the Constitution surrounded [319 P.2d 806] the preliminary 'examination * * * by a magistrate' with the safeguards and minimum requirements which the Constitution itself prescribes in 'criminal prosecutions, in any court whatever' (Art. I, § 13). Accordingly, it is not necessary in the present inquiry to determine whether the preliminary 'examination' sanctioned by section 8 is a 'criminal prosecution' within the meaning of the latter term as used in section 13 of Article I. The Legislature has with complete competence 'prescribed by law' the same fundamental safeguards for the conduct of the preliminary 'examination' as the Constitution by direct mandate has prescribed for 'criminal prosecutions, in any court whatever.'
Section 8 of Art. I of the Constitution says that certain offenses 'shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law.' (Emphasis added.)
I see no reason why this fact should change the rule. If the suspicious circumstances alone were sufficient to show probable cause for arrest and search then the testimony that the procedure was started by information from a reliable informer would be unnecessary. If they were insufficient and required the fact of the information to justify the arrest and search then the situation as to protection of the informer for the public interest would apply.
The first sentence of section 13, Art. I, declares: 'In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend, in person and with counsel.'
This is contrary to the ruling in Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151; United States v. Li Fat Tong, 2 Cir., 152 F.2d 650; Wilson v. United States, 3 Cir., 59 F.2d 390; and United States v. Keown, D.C., 19 F.Supp. 639. I see no reason why California should adopt the rule of the majority of the federal cases.
To assure the observance of these fundamental requirements, it would seem, the Legislature, at its very first session after the adoption of the Constitution which provided for prosecution by information, amended section 995 of the Penal Code to vest in the defendant the right to have the information 'set aside by the court' in which arraigned if 'before the filing thereof the defendant had not been legally committed by a magistrate.' Amendments to the Codes, 1880, Penal Code, ch. 118, p. 43. That ground of dismissal has continued without change all these years.
'Legally committed' as used in section 995 'refers to the examination of the case, and the holding of the defendant to answer as prescribed by title 3, c. 7, of the Pen.Code.' Ex parte Baker, 88 Cal. 84, 85, 25 P. 966, 967. The 'essential principles of procedure and of evidence may not be departed from by committing magistrates.' In re Schuber, 68 Cal.App.2d 424, 425-426, 156 P.2d 944, 945. 'The forms of procedure required by law in preliminary examinations establish a substantial right vested in every person charged with crime and should not be lightly waived aside.' People v. Brooks, 72 Cal.App.2d 657, 661, 165 P.2d 51, 53. Good reason, indeed, did the Supreme Court have for saying: 'The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and the expense of a criminal trial.' Jaffe v. Stone, 18 Cal.2d 146, 150, 114 P.2d 335, 338, 135 A.L.R. 775.
Of course, not every deviation from the requirements with which the preliminary 'examination' has been surrounded would tincture with illegality a commitment based upon that examination. The thwarting of a fundamental right of the defendant, such as the right to the benefit of counsel, the right to present witnesses, and the right to confront and cross-examine the prosecution's witnesses, would seem to be such a deviation from those requirements as would infect with illegality any order of commitment based upon the examination.
It is already well established that deprivation of a defendant's right to the aid of counsel taints a magistrate's commitment with illegality. People v. Napthaly, 1895, 105 Cal. 641, 644, 39 P. 29, reversing judgment of conviction and an order which denied a motion to set the information aside; People v. Salas, 1926, 80 Cal.App. 318, 250 P. 526, affirming trial court's order setting the information aside because of magistrate's failure to inform the defendant of his right to aid of counsel, citing sections 8 and 13 of Art. I, Constitution, and sections 858 and 859, Penal Code; People v. Miller, 1932, 123 Cal.App. 499, 11 P.2d 884, same action as in the Salas case, for the same reason; People v. Williams, 1954, 124 Cal.App.2d 32, 268 P.2d 156, same action as in the Salas case, for the same reason. Significantly, the Supreme Court in People v. Napthaly, supra, 105 Cal. 641, 644, 39 P. 29, 30, said: 'An examination which denied to defendant the right guaranteed him alike by the constitution and statute, of being defended by counsel, was in no sense a legal examination. It was a plain and palpable violation of a fundamental right of the defendant, [319 P.2d 807] which rendered the commitment illegal.'
These cases are persuasive of the view that violation of the equally fundamental right of confrontation and cross-examination upon a crucial issue (the fundamental and pivotal character of which the main opinion abundantly demonstrates) infects the ensuing commitment with illegality. These cases, it is true, were decided upon appeal. Does the availability of the remedy of appeal after termination of a trial render the writ of prohibition inapropriate and unavailable? It would seem not; no more so than when a defendant is committed after an examination that produces no evidence of reasonable or probable cause.
There are a few cases in which statements appear that might seem to cast a doubt upon this view. Careful scrutiny dispels any such doubt, as I read those cases.
In Murphy v. Superior Court, 58 Cal. 520, the petitioner represented that the magistrate who conducted the preliminary examination "did not examine on oath or otherwise * * * any witness * * *." The writ was denied. That seems wholly inconsistent with the rationale of Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713. Perhaps it is explainable upon the ground that the defendant did not make a motion for dismissal in the trial court (see Pen.Code, § 996), the printed decision being silent in respect thereto.
In Western Meat Co. v. Superior Court, 9 Cal.App. 538, 99 P. 976, the defendant-petitioner sought the writ upon the ground that he had been illegally committed, claiming that petitioner had not had a hearing at all before a magistrate. But it also appeared that the petitioner had not moved for dismissal in the trial court as required by sections 995 and 996. That was the reason for the denial of the writ. What the court said as to the adequacy of the remedy by way of appeal was pure dictum.
It is true that when the inquiry is whether or not the evidence adduced at the preliminary examination supports the magistrate's finding of reasonable and probable cause, a court in a prohibition proceeding does not undertake to weigh the evidence (if there be some supporting evidence), nor is it concerned with mere irregularities of procedure before the magistrate, nor, in general, with the correctness of his rulings on the admissibility of evidence. See Rogers v. Superior Court, 46 Cal.2d 3, 7-8, 291 P.2d 929; Badillo v. Superior Court, 46 Cal.2d 269, 271-272, 294 P.2d 23.
But when the very legality of a preliminary examination is in question, as affected by the violation of one or more of the defendant's fundamental rights, the nature and scope of the inquiry is radically different. If a person's fundamental rights are to be protected and enforced by the courts, the validity of the magistrate's significant rulings is of necessity a subject of inquiry.
Nor do I infer a change in policy upon the part of the Legislature from the fact that when in 1949 it amended section 995 of the Penal Code and added section 999a thereto (Stats.1949, ch. 1311, p. 2298) it dealt only with the subject of indictment found without reasonable or probable cause and of commitment upon an information without reasonable or probable cause. It dealt with such an indictment and with such an information in section 999a, and added the first paragraph '2' to section 995. Section 995 already contained the second paragraph '2'. It is a fair inference that in making those additions the Legislature had in mind solely the principles enunciated in Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713, 715, in respect to 'reasonable or probable cause' and aimed to give recognition to those principles in statutory form, coupled with the limitation that a defendant seeking the remedy of prohibition, when advised that there had been a lack of reasonable or probable cause, file his petition 'in the appellate court within 15 days after a motion made under Section 995' on that ground (§ 999a), and the further limitation that the district attorney be given five days' notice of the application before an alternative [319 P.2d 808] writ may issue. In so doing, the Legislature left intact that clause of section 995 which declares and ever since 1880 has declared that an information 'must be set aside by the court in which the defendant is arraigned, upon his motion,' when it appears that before the filing of the information 'the defendant had not been legally committed by a magistrate.'
For these reasons I concur in the judgment.
BRAY, Justice.
I dissent. I agree with everything said in the scholarly majority opinions except only the portions dealing with the requirement that without any showing that such information may reasonably be expected to help the defendant's case, the name of the reliable informer upon whose representations alone the police officer made his search, and who in nowise participated in the crime or its circumstances, must be disclosed.
The majority agrees that the information given the police officer by the informer justified the arrest and search. See People v. Garnett, 148 Cal.App.2d 280, 306 P.2d 571. I can find no case in California requiring that the name of such informer be disclosed. In People v. Gonzales, 141 Cal.App.2d 604, 297 P.2d 50, and People v. Alaniz, 149 Cal.App.2d 560, 567, 309 P.2d 71, it was held that the trial court did not err in refusing to allow the defendants to cross-examine the police officers as to the informers on the ground of public interest as stated in subdivision 5, section 1881, Code of Civil Procedure. While in the Alaniz case there were other suspicious circumstances in the possession of the officers at the time of the search, 1 in the Gonzales case the officers acted solely on the information given them by a reliable informer. See also People v. Hernandez, 115 Cal.App.2d 435, 438-439, 252 P.2d 75, and People v. Gonzales, 136 Cal.App.2d 437, 288 P.2d 588. These two cases were decided upon the privilege provided in section 1881, subdivision 5, Code of Civil Procedure, and not upon any rule changed by People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513.
In People v. Dewson, 150 Cal.App.2d 119, 310 P.2d 162, where the arrest was made mainly upon information received from reliable informers, the court reviewed the cases in California upon the subject of disclosure, pointed out the federal rule as given in Sorrentino v. United States, 9 Cir., 163 F.2d 627, as recognizing 'a distinction between the cases where the informer is that and nothing more, in which case the defendant is not entitled to have his identity disclosed and cases where the informer is a participant in the offense' (150 Cal.App.2d at page 126, 310 P.2d at page 167) 2 expressly followed the rule of People v. Gonzales, supra, 141 Cal.App.2d 604, 297 P.2d 50, and held that the name of the informers did not have to be disclosed. The court referred to People v. Lawrence, 149 Cal.App.2d 435, 308 P.2d 821, which distinguishes a defendant's right to have the name of the informer-participant from the situation where the informer does nothing but inform. The court in the Lawrence case said (149 Cal.App.2d at page 450, 308 P.2d at page 830): 'The name of an informant who cooperates with law enforcement officers has been held to be confidential upon the theory the informant [319 P.2d 809] performs a public service. He provides information which law enforcement officers are frequently unable to obtain by any other means. This is particularly true in narcotics cases. His service and his benefit to the public welfare would cease if his identity were disclosed. The courts have held this to be sufficient cause to protect the anonymity of the informant.'
The majority opinion properly points out that in cases of this kind the public policy that supports the nondisclosure of the identity of the informant comes into direct conflict with the constitutional rights of the accused. It then holds, in effect, that in every case of an informer who merely informs, the public policy must be disregarded without regard to whether or not the giving of the name of the informer to the defendant will be of any assistance to him whatever. In the constantly waging battle between law enforcement officers and criminals the courts must be realistic in their application of the necessary rules. It is a matter of general knowledge that practically since the beginning of law enforcement, the officers, because of the tremendous advantage of secrecy of movement which the lawbreaker has, have been required to depend upon informers to successfully combat crime. It is also a matter of common knowledge that once the underworld learns the name of an informer, his life is in danger and he is no longer in a position to give information to the police. Too, if the proposed rule of the majority opinion prevails no person will be willing to give information for he knows that no longer can he expect that the police can keep his name from being disclosed. Although the majority opinion holds (and I agree with that portion of it) that the name of the informer need not be given where the officers have suspicious circumstances in addition to the informer's information, if the rule here attempted to be established prevails it will soon be extended to such a situation, as logically the reasons given for the rule would apply to the informer there as well as here, for if a police officer is going to lie about a nonexistent informer or about information given by an existing informer, he will lie about nonexistent suspicious circumstances.
As stated above, the majority opinion would risk the public safety upon the sole ground that perchance a police officer may have lied. It is a strange coincidence that in every case in which the informer situation has come before the courts the officer's information that the defendant possessed narcotics proved to be true. An officer who invents such an informer or informer's story is taking quite a chance on being sued civilly for unlawful search and/or false arrest.
Apparently the majority has adopted the reasoning in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed. 639, which dealt with the necessity of disclosing the name of the informer-participant (a much stronger situation requiring disclosure than in the case of a mere informer) where the court said: 'A further limitation on the applicability of the privilege [not to disclose] arises from the fundamental requirements of fairness.' 353 U.S. at page 60, 77 S.Ct. at page 628. But apparently the following from the same case was overlooked:
'The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. * * * Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. * * *
'We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the [319 P.2d 810] individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.' 353 U.S. at pages 59, 60-61, 62, 77 S.Ct. at page 627.
The majority opinion gives no consideration to the foregoing.
Where the disclosure is asked by the defendant as it will be in the vast majority of the cases, not to prove that the police officer had evolved a 'phantom' informer or that an existing informer had not given the information, but for the purposes of either by the defendant himself, his friends or the underworld, wreaking vengeance on the informer and warning other informers of the danger of assisting the police, what is unfair about not giving the defendant the informer's name?
'It is clear that the public interest would suffer if the disclosure were compelled of the names of those citizens who inform public officers of violations of law and who assist such officers in the performance of their duty to apprehend law violators. A citizen who knows that the fact would be made public that he has disclosed such information to public officers may be loath to cooperate in the administration of justice by exercising his right and duty to make such disclosures because he would justifiably believe himself to be in danger of physical violence from those upon whom he has informed, as well as in danger of actions of slander and malicious prosecution.' People v. Gonzales, supra, 136 Cal.App.2d at page 441, 28 P.2d at page 590.
How about a little 'fairness' towards society in general? It must be borne in mind that withholding the name of the informer is not preventing a defendant from being confronted by a witness against him on the question of defendant's guilt or innocence. It is dealing with a side issue, in which it has been held clearly that there is no requirement of confronting the defendant with the informer, the side issue being as to whether or not an officer was started on an investigation or search by an informer or information given by an informer. While, of course, even on such side issue it is important to protect a defendant's constitutional rights--in considering whether those rights shall be paramount to the protection of the public, it does not seem reasonable to jeopardize the rights of the public merely on the off chance that in a particular case the officer may have conceived a phantom informer or phantom information. On the whole, police officers are reliable, and although there may occasionally be one who would prostitute himself to the extent of lying about a nonexistent or an existent informer I see no necessity of disclosing in every case the name of the informer without some showing on the part of the defendant that as said in the Roviaro case, supra, 353 U.S. at [319 P.2d 811] pages 60-61, 77 S.Ct. at page 628, the disclosure 'is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause * * *.' This same requirement appears in the concurring opinion of Mr. Presiding Justice Shinn in People v. Alaniz, supra, 149 Cal.App.2d 560, 567, 309 P.2d 71, 75. He stated (149 Cal.App.2d at pages 568, 569, 309 P.2d at page 75): '* * * when the People make use of the statements of informers as proof of reasonable grounds for an arrest they waive the right to conceal from the court and the accused the name or names of the informers, but it does not follow that in every case the court must compel the disclosure of the names if the defendant demands it. It is a matter for the court, and not the prosecutor or the witness to decide. If concealment is unfair to the defendant--if nondisclosure would probably hamper his defense or if disclosure might furnish relevant evidence not otherwise available, concealment ought not to be permitted. Doubts should be resolved in favor of the defendant. He should not suffer from the court's mistakes.'
People v. Garnett, supra, 148 Cal.App.2d 280, 284, 306 P.2d 571, 574, states the situation thus: 'Appellant assumes that police officers would, to suit their convenience, make use of fictitious informants as bases for illegal searches and seizures. Such assumption is unauthorized and is contrary to statutory presumptions that official duty has been regularly performed and that the law has been obeyed. Code Civ.Proc., § 1963, subds. 15, 33. A finding that an officer in a specified case, People v. Cahan, 44 Cal.2d 434, 436, 282 P.2d 905, obtained evidence 'in flagrant violation of the federal and state constitutions' is no justification for concluding that every policeman has abused the rights of citizens while performing his duties. When an officer has in good faith testified that he had acted upon the information of an unnamed person and that such informant was reliable, he has thereby established a firm basis for his search of a suspect's premises. * * * So long as the good faith of the arresting officer with respect to the reliability of his informant satisfies the scrutiny of the trial judge, he is in substantially the same position as if he had come with a warrant of arrest. People v. Gonzales, 141 Cal.App.2d 604, 608, 297 P.2d 50.'
The Legislature in establishing the policy and adopting the urle that 'A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure' (Code Civ.Proc. § 1881, subd. 5) said in the same section 'There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate * * *.'
As pointed out in People v. Gonzales, supra, 141 Cal.App.2d 604, 607, 297 P.2d 50, knowledge of the name of the informer who had evidently gained accurate information with reference to defendant's possession of narcotics could not have proved defendant guiltless. The officers found the heroin in defendant's possession in the type of container the informer said it would be in. 'The disclosures by the arrest show that only the scorn of the signful.' 141 Cal.App.2d would such knowledge have been of no service in an attempt to establish appellant's innocence, but it would have affected the public welfare adversely. If the unnamed 'operator' is successful in ferreting out violators of the narcotics laws, he should have the grantitude of the State. If his name is carried on the tongue of every 'dope peddler' in the county, he would have only the scorn of the sinful.' 141 Cal.App.2d at page 607, 297 P.2d at page 52.
I see no application of Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698, to this case. There the defendant sought a pretrial inspection of his signed statement given to the police and a typewritten transcript of the tape recording of a police interview with him. As he could not recall the matters contained in the statement and the interview, they obviously were necessary to enable him to prepare his defense of the crime charged. Here the name of the informer was not necessary to his defense of the crime charged, and it did not appear that it was necessary to him for any other good purpose.
The difference between requiring disclosure of the name of an informer-participant and a mere informer is well shown by the following quotation from People v. Lawrence, supra, 149 Cal.App.2d 435, at page 450, 308 P.2d 821, at page 830: 'When such a person is truly an informant he simply points the finger of suspicion toward a person who has violated the law. He puts the wheels in motion which cause the defendant to be suspected and perhaps arrested, but he plays no part in the criminal act with which the defendant is later charged. On the other hand, when an informant participates in the criminal act he is no longer simply an informer. He is a material witness to the criminal act, in fact, he is similar to a feigned accomplice. In most cases such as the one before us, only the informant and the defendant are present at the time the crime is committed (the sale is made). The officers are secondary witnesses, not primary witnesses. Thus, when the informant becomes a participant, another principle of law embodied in Article I, Section 13, of the California Constitution and Penal Code, § 686, subd. 3, becomes applicable, namely, that a defendant [319 P.2d 812] shall be accorded a full opportunity to defend himself. It becomes more important to the administration of justice and the public welfare that a defendant be accorded this right than that an informant remain anonymous. To deny the defendant the right to examine an officer regarding the name of or to ask other material questions concerning an informant-participant would be to suppress an essential element of the res gestae. The crime is committed when the sale is made and not when the informant delivers the contraband to the officers and tells them about the sale.'
In People v. Wilson, 145 Cal.App.2d 1, 5, 301 P.2d 974, 977, we said concerning rules applicable to the doctrine of People v. Cahan, supra, 44 Cal.2d 434, 282 P.2d 905, 'that the Supreme Court is attempting to lay down rules that will be reasonably fair to the defendant and will also be reasonably fair and afford reasonable protection to the public.'
I see no reason why the same reasoning should not be applied here and why in applying it we should not limit the requirement of disclosure of the informer's name to a situation where it is made to appear to the committing magistrate or to the trial court, that such disclosure is necessary to the defendant's defense and is not sought on a mere fishing expedition, for purposes of vengeance or to strike a serious blow at the entire informer system. Such a rule would meet the test of the Wilson case.
Without the use of informers, the police would be greatly handicapped in their work. In narcotics and gambling offenses, which of necessity are conducted with the greatest of secrecy, the police in protecting society are dependent in large degree upon information obtained from informers. In narcotics cases the contraband and in gambling cases the evidence does not remain long in any place. Knowledge of its presence at any particular time is usually gained from informers; and in other crimes, probably not to the same extent as these, but still to a great extent, police are dependent upon informers. To strike what might be a death blow to the informer system merely to grant the demand of a defendant who in the majority of cases would not benefit by it at his trial would be unfair to society and an unreasonable exercise of the court's power. To restrict the disclosure to cases in which it would appear that the knowledge would be of benefit to the defendant would be fair and reasonable as to both society and the particular defendant.
Inasmuch as no showing was made at the preliminary examination of any necessity for disclosure of the informer's name, I would deny the peremptory writ.
In view of this empowerment, the implementing statutes virtually have the dignity and sanction of constitutional mandates.