Fay

The only issue presented on this appeal by the People from an order of the superior court denying their motion pursuant to Penal Code section 871.5 to reinstate the complaint against respondent Steven Fay is whether, as a matter of law, the magistrate who conducted respondent’s preliminary examination erred in dismissing the complaint. As will be shown, we conclude that such error did occur and that the order must therefore be reversed.

Procedure and Evidence

In late January of 1985, members of the San Francisco Police Department Narcotics Bureau were advised by a confidential reliable informant that two individuals were selling heroin out of an apartment located at 462 27th Street. The heroin was of the “tar” variety. Based upon this information, officers monitored a controlled purchase by the informant. The informant purchased and showed to the officers “a plastic-wrapped, larger than pea-sized, bindle of brown tarry substance” later confirmed to be heroin. The heroin was purchased from “John Doe Henry,” who told the informant to “come back anytime for more.” The informant observed additional heroin on the premises. This information was presented in affidavit form to…