CLYDE M. PRIESTLY, Petitioner, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent, 50 Cal. 2d 812

TRAYNOR, J. Two counts of an information charged defendant with possessing narcotics in violation of Health and Safety Code,

section 11500. His motion to set aside the information on the ground that the evidence against him was obtained by an illegal search and seizure was denied, and he now seeks a writ of prohibition to prevent his trial. The evidence at the preliminary hearing showed that at approximately 3 p. m. on April 18, 1957, Officer McKinley of the San Francisco Police Department received information from an informer that defendant had heroin in his apartment and that the informer had been there previously and obtained narcotics from defendant.

The informer also said that there were narcotics in an apartment occupied by Cecil Thomas. At about 3:30 p. m. Officer McKinley and another officer went to the apartment occupied by Cecil Thomas, arrested him there, and found narcotics in his apartment. At that time, the officers received information from a second informer that defendant possessed narcotics. Acting solely on the information from the two informers, Officer McKinley and the other officer went to defendant’s apartment and knocked on the door.

After about 10 minutes defendant opened it, and they then placed him under arrest and searched his person and the apartment. They found heroin on his person and dolophine, a narcotic, in a dresser drawer. The arrest and search were made without a warrant. It is settled 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 (Pen.

Code, § 995), and if it does not do so, a peremptory writ of prohibition will issue to prohibit further proceedings. (Pen. Code, § 999a.) ” (Badillo v. Superior Court, 46 Cal.2d 269, 271 [294 P.2d 23] ; People v. Valenti, 49 Cal.2d 199, 203 [316 P.2d 633]; Willson v. Superior Court, 46 Cal.2d 291, 292 [294 P.2d 36] ; Rogers v. Superior Court, 46 Cal.2d 3, 7 [291 P.2d 929] ; People v. Jablon, 153 Cal.App.2d 456, 459 [314 P.2d 824] ; see People v.

Schuler, 71 Cal.App.2d 773, 775 [163 P.2d 498]; In re Martines, 36 Cal.App.2d 687, 689 [98 P.2d 528].) The narcotics, introduced over defendant’s objections constituted essential evidence of defendant’s guilt. If illegally obtained, it was not competent to show reasonable cause to believe the defendant guilty of a public offense, for “ ‘ [t]he proof which will authorize a magistrate in holding an accused person for trial must consist of legal, competent evidence. No other type of evidence may be considered by the magistrate.

The rules of evidence require the “production of legal evidence” and the exclusion of “whatever is not legal” . . (Rogers v. Superior Court, supra, 46 Cal.2d at 8; People v. Schuler, supra, 71 Cal.App.2d at 775.) Accordingly, if the only evidence of guilt was illegally obtained, defendant is held without reasonable or probable cause, and a peremptory writ of prohibition should issue to prohibit further proceedings. (Pen. Code, § 999a.) Defendant made a prima facie case by showing that his arrest and the search of his person and apartment were made without a warrant.

The burden was then on the prosecution to show proper justification. (Badillo v. Superior Court, supra, 46 Cal.2d at 272.) The People contend that they met that burden by the officer’s testimony of the communications from the two informers. Defendant contends that this testimony is not competent since he objected to it, demanding that the identity of the informers be disclosed or the officer’s testimony be struck. The People contend that defendant was not entitled to the disclosure of the informers’ identities invoking

section 1881, subdivision 5 of the Code of Civil Procedure: “A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.” In People v. McShann, ante, p. 802 [330 P.2d 33], the informer was a material witness on the facts relating directly to the question of guilt. The policy conflict there involved was between the encouragement of the free flow of information to law enforcement officials and the right of the defendant to make a full and fair defense on the issue of guilt.

In the present ease the communications of the informers are material to the issue of reasonable cause to make the arrest and search, and the policy conflict is between the encouragement of the free flow of information to law enforcement officers and the policy to discourage lawless enforcement of the law. (See People v. Cahan, 44 Cal.2d 434, 445 [282 P.2d 905, 50 A.L.R.2d 513].) The federal rule under such circumstances is set forth in Roviaro v.

United States, 353 U.S. 53, 61 [77 S.Ct. 623, 1 L.Ed.2d 639] : “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.

In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from Ms confidential communication.’’ The foregoing rulé requiring disclosure of the identity of an informer whose communications are relied upon to establish probable cause to make a search is sound and workable. (See People v. Wasco, 153 Cal.App.2d 485, 488 [314 P.2d 558]; People v. Lundy, 151 Cal.App.2d 244, 249 [311 P.2d 601] ; People v. Dewson, 150 Cal.App.2d 119, 136 [310 P.2d 162]; People v. Alaniz [dissent], 149 Cal.App.2d 560, 570 [309 P.2d 71]; Wilson v.

United States, 59 F.2d 390, 392; Hill v. State, 161 Miss. 518 [118 So. 539, 540] ; Smith v. State, 169 Tenn. 633 [90 S.W.2d 523, 524] ; 13 N.Y.U. Intra. L. Rev. 141, 147-152; 83 L.Ed. 155, 157.) If testimony of communications from a confidential informer is necessary to establish the legality of a search, the defendant must be given a fair opportunity to rebut that testimony.

He must therefore be permitted to ascertain the identity of the informer, since the legality of the officer’s action depends upon the credibility of the information, not upon facts that he directly witnessed and upon which he could be cross-examined. If an officer were allowed to establish unimpeachably the lawfulness of a search merely by testifying that he received justifying information from a reliable person whose identity cannot be revealed, he would become the sole judge of what is probable cause to make the search. Such a holding would destroy the exclusionary rule.

Only by requiring disclosure and giving the defendant an opportunity to present contrary or impeaching evidence as to the truth of the officer’s testimony and the reasonableness of his reliance on the informer can the court make a fair determination of the issue. Such a requirement does not unreasonably discourage the free flow of information to law enforcement officers or otherwise impede law enforcement. Actually its effect is to compel independent investigations to verify information given by an informer or to uncover other facts that establish reasonable cause to make an arrest or search.

Such a practice would ordinarily make it unnecessary to rely on the communications from the informer to establish reasonable cause. When the prosecution relies instead on communications from an informer to show reasonable cause and has itself elicited testimony as to those communications on direct examination, it is essential to a fair trial that the defendant have the right to cross-examine as to the source of those communications.

If the prosecution refuses to disclose the identity of the informer, the court should not order disclosure, hut on proper motion of the defendant should strike the testimony as to communications from the informer. In sum, when the prosecution seeks to show reasonable cause for a search by testimony as to communications from an informer, either the identity of the informer must be disclosed when the defendant seeks disclosure or such testimony must be struck on proper motion of the defendant. Any holdings or implications to the contrary in People v. Johnson, 157 Cal.App.2d 555, 559 [321 P.2d 35]; People v.

Salcido, 154 Cal.App.2d 520, 522 [316 P.2d 639]; People v. Moore, 154 Cal.App.2d 43, 46-47 [315 P.2d 357] ; People v. Merino, 151 Cal.App.2d 594, 597 [312 P.2d 48]; People v. Alaniz, 149 Cal.App.2d 560, 567 [309 P.2d 71] ; and People v. Gonzales, 141 Cal.App.2d 604, 606-607 [297 P.2d 50], are disapproved. The People contend that even if disclosure is required at the trial, it should not be required at the preliminary hearing.

Since the purpose of the preliminary hearing, however, is to determine whether there is competent evidence to commit the defendant for trial, disclosure at that time is necessary to determine whether the evidence acquired by the search is competent. The defendant may not be committed for trial when there is no competent evidence to support a belief that he is guilty of a public offense. Moreover, disclosure at the preliminary hearing will ordinarily obviate the necessity of a continuance during the trial to permit the defendant to locate and interview the informer.

Defendant was therefore entitled either to disclosure of the informers ’ identities or to the striking on proper motion of the testimony of the officer as to the communications of the informer offered to establish the legality of the search. The question remains whether the officer’s testimony was incompetent in this case. A defendant cannot raise the problem of nondisclosure in the appellate courts when he did not seek disclosure at the trial or preliminary hearing or did not move to strike the testimony on a refusal to disclose. (People v. Johnson, supra, 157 Cal.App.2d at 559; People v.

Gorg, 157 Cal.App.2d 515, 523 [321 P.2d 143]; People v. Lundy, 151 Cal.App.2d 244, 249 [311 P.2d 601].) Upon his failure to do either at that time, evidence of information from a reliable informer is thereafter unobjectionable and may be sufficient to sustain a finding that the search was made with reasonable cause. (Willson v. Superior Court, supra, 46 Cal. 2d at 294-295; People v. Dupee, 151 Cal.App.2d 364, 367 [311 P.2d 568] ; People v. Dean, 151 Cal.App.2d 165, 167 [311 P.2d 85]; Lorenzen v.

Superior Court, 150 Cal.App.2d 506, 513 [310 P.2d 180].) In the present case defendant objected to the officer’s testimony on direct examination and demanded disclosure of the informers’ identities; he moved that the testimony be struck; and he indicated during the direct examination of the officer that the defense would demand disclosure on cross-examination. Under such circumstances, the trial court should have required disclosure on direct examination or should have excluded or struck the testimony.

Since there was no other competent evidence to justify the search and defendant made a prima facie ease as to its illegality, it follows that the narcotics seized in the search were not admissible and should have been excluded. Let the peremptory writ of prohibition issue as prayed. Gibson, C. J., and Schauer, J., concurred. The reasons supporting this rule are stated in the following federal cases cited with approval in the Roviaro case: Scher v.

United States, 305 U.S. 251, 254 [59 S.Ct. 174, 83 L.Ed. 151] : In this case the officers had sufficient independent evidence to justify the arrest and search without relying on information from an informer: "In the circumstances the source of the information which caused him to be observed was unimportant to petitioner’s defense. The legality of the officers’ action does not depend upon the credibility of something told but upon what they saw and heard—what took place in their presence. Justification is not sought because of honest belief based upon credible information as in United States v.

Blich, 45 F.2d 627.’’ United States v. Blich, 45 F.2d 627, 629: "The court has no quarrel with the Prohibition Department in its policy of guarding and keeping secret the name of an informant, with the idea of being thereby better enabled to enforce the Prohibition Law. The only question here is as to whether or not, when the matter is presented to a court for the purpose of seeking a determination of whether, under all the circumstances, there was probable cause, this element of those circumstances may remain undisclosed.

It is scarcely an answer to the proposition that an agent testifies that his informant was a reliable person, and that he believed the information so given, unless the court sitting in judgment may have the right to determine whether, under all the circumstances, such information was reliable and the agent was justified in having such belief. A belief must or should rest upon a substantial basis. It is not a question of impugning the motives or doubting the honest belief of the agent in regard to the information which he may have received.

It is simply requiring the witness to sustain his motives and his beliefs by all the evidence at his command.’’ United States v. Keown, 19 F. Supp. 639, 645-646: "If the information of the informer was unreliable or he was unworthy of belief, the officer did not have probable cause to make either the search or the arrest. It follows that the court must have all the facts before it can properly determine whether the officer acted on reasonable grounds.

If an officer should stop a peaceful, law-abiding citizen on the highway and search his car, subjecting him to humiliation and ridicule, and the offended citizen should seek redress by a suit for damages, surely no court would say the officer would be relieved of responsibility by an answer that he was informed by a reliable person that the citizen was engaged in the illicit liquor traffic, but he could not and would not disclose the name of his informer, thus preventing a fair and impartial investigation of his conduct. The certainty of the law is one of its greatest attributes.

We cannot have one law applicable to an identical state of facts for the innocent and another for the guilty. The guilty may sometime escape under such a rule, but this need not follow if the officer be diligent, and likewise the secrets of state may be kept inviolate. The officer may use the facts furnished by the informer as a basis for his own investigation and discover sufficient facts to search or arrest without disclosing the source of his information. . . .

"When the government calls a witness whose testimony is based in part on that of an informer, it subjects the witness to cross-examination and the inf-ormer to whatever peril may arise out of such cross-examination.

It is a sound rule to keep secret information furnished to the state of violations of its laws, but this commendable public policy must yield to a higher, or at least an equal, right accorded to an accused to have a court investigate the facts material to his offense in a criminal prosecution, and sometimes the departments of government will be put to a choice of either foregoing a criminal prosecution or disclosing the source of material information necessary to the conduct of orderly judicial procedure. ’ ’