THE PEOPLE, Plaintiff and Respondent, v. ISMAEL ORTEZ GALLEGOS, Defendant and Appellant, 62 Cal. 2d 176

PEEK, J. Defendant’s appeal from a judgment of conviction for the unlawful possession of heroin (Health & Saf. Code, § 11500) in count I and the unlawful possession of marijuana (Health & Saf. Code, § 11503) in count II, is on the ground that admission of incriminating real evidence was improper because it was the product of an illegal search and seizure. He was also found to have suffered a prior conviction and imprisonment for a violation of

section 11500 of the Health and Safety Code. Only two witnesses were called by the prosecution, the arresting officer and a forensic chemist.

The officer testified that other officers had taken into custody one Thomas Renteria when found in his automobile unconscious from an overdose of heroin; that while still under the influence of the drug Renteria informed the arresting and other officers that he had purchased and administered to himself the drug at an apartment occupied by a person known to Renteria only by a nickname; that while he did not know the address of the apartment he nevertheless accompanied officers to the apartment building and designated the particular premises where the alleged purchase had been made; that he further informed the officers that the person residing there drove a black 1937 Plymouth automobile; that on no prior occasion had the officers had contact with Eenteria, and that they had no knowledge upon which they could judge his reliability as an informer.

The officer further testified that he and the other officers took Eenteria to the sheriff’s office and then returned to the apartment house at approximately 11:30 p.m.; that when no one answered their knock they placed the premises under surveillance; that at 1 the following morning they observed defendant alight from a black 1937 Plymouth; that as he inserted a key into the lock of the apartment the officers approached and identified themselves. Thereafter, the officer testified: “ . . .

I asked him if he had been arrested for narcotic violations in the past, and he stated he had, that he was at that time currently on parole for narcotic violation. At that time I placed him under arrest.” The only other testimony bearing on the arrest was that of defendant who on direct examination denied that he was on parole and further on cross-examination denied that he had so advised the officer. It does not otherwise appear whether defendant was on parole.

In any event the record does not disclose and no claim is made that he was detained as a possible parole violator or that his premises were searched for that reason. Although under ordinary circumstances a parolee’s place of residence may be searched prior to an arrest (see In re Ferguson, 55 Cal.2d 663, 670 [12 Cal.Rptr. 753, 361 P.2d 417]; People v. Contreras, 154 Cal.App.2d 321, 325 [315 P.2d 916]), in the instant case the status of the defendant as a parolee was not relied upon by the arresting officer.

Hence, lacking evidence in this regard, the search of defendant’s premises which immediately followed the arrest, and the results thereof, could not be utilized in justification of the arrest. The search of defendant’s apartment disclosed marijuana and heroin, as well as implements used in administering narcotics. Numerous puncture marks were observed on defendant’s arms, and a rent receipt showing defendant to be the lessee of the apartment was also discovered.

Although two and a half hours had elapsed since the officers were first informed of the alleged violation they had made no attempt to obtain a warrant for either the arrest or the search. The officers’ factual knowledge going to the commission of a crime at the time of the arrest was obviously meager. In determining whether such knowledge constituted probable cause for the arrest, and thus justified the following search and seizure, it is incumbent that we consider the source of that knowledge.

Renteria was an informer of unknown reliability still under the influence of narcotics when- he revealed that a sale of narcotics had been made in the particular apartment, and that the person residing therein drove a black 1937 Plymouth. Standing alone, his information did not constitute reasonable cause for arrest (Ovalle v. Superior Court, 202 Cal.App.2d 760 [21 Cal.Rptr. 385]), and before the officers could be justified in making an arrest without a warrant they were required to obtain other independent evidence in corroboration of the incriminating facts supplied by their untested informer. (Willson v.

Superior Court, 46 Cal.2d 291, 294 [294 P.2d 36]; People v. Amos, 181 Cal.App.2d 506, 508 [5 Cal.Rptr. 451].) Such corroboration is claimed to consist of the knowledge gained by the officers when they observed defendant alight from the car described by Renteria, prepare to enter the apartment, and his statement that he resided therein. But these facts merely establish that the person who resided in the apartment drove the particular automobile.

This bit of corroborated fact does little to bolster the untested informer’s report of illegal activity, and is almost insignificant as far as any incrimination is concerned. And the additionally ascertained fact of defendant’s narcotics record, while more significant, does not bolster the officers’ knowledge sufficiently to constitute probable cause. Such evidence has at hest only a slight tendency to establish that defendant was presently engaged in illegal conduct. (People v.

Reeves, 61 Cal.2d 268, 274 [38 Cal.Rptr. 1, 391 P.2d 393].) We have recently held in the Peeves case that when officers were advised by an anonymous informer that a named person was in possession of narcotics at a given address, the further knowledge of the officers that such person had a narcotics record did not justify his arrest for the reason that “it was not corroboration of the essential fact, as to whether [the defendant was] now violating the law.” (People v.

Reeves, supra, 61 Cal.2d 268, 274.) We cannot distinguish the Peeves and the instant case in any material respect going to the issue of probable cause, and what immaterial differences do exist point to greater cause in Peeves than in the instant case. In each, officers were informed of a claimed narcotic violation, the informer was untested, the address at which the claimed violation took place was given, and in the instant case the person who resided there was described by the car which he drove whereas his name was actually made known in Beeves.

Additionally the officers independently ascertained only that in each case the suspect had a prior record as a narcotic violator, although in Beeves the officers further ascertained that a cosuspeet named by the informer also had a prior record as a narcotic violator. If probable cause was lacking in Beeves, as we held it was, manifestly it is also lacking in the instant case. The further distinction that in Beeves the officers were given anonymous information whereas in the instant ease their information came from a known informant in their custody, does not aid the People.

To hold that the information furnished by Renteria was sufficient to establish reasonable cause “would be in effect to accord to a nonreliable informant who was in the toils of the law a greater degree of reliability than is attributed to such an informant who is not thus encumbered. ’ ’ (People v. Amos, supra, 181 Cal.App.2d 506, 509.) In view of the foregoing it is apparent that the evidence obtained was the result of an illegal search and seizure in violation of constitutional guarantees (U.S. Const., 4th and 14th Amends.; Cal. Const., art.

I, § 19), and that on the instant record its admission was prejudicial error (Cal. Const., art. VI, §4%). Accordingly, the judgment is reversed. Traynor, C. J., Peters, J., Tobriner, J., and Dooling, J., concurred. Additional information which would have justified the search in Meeves was held to have heen illegally obtained, and the officers were thus not entitled to rely thereupon. (People v. Reeves, supra, 61 Cal.2d 268, 274.) Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.