Lead Opinion
Opinion
In Theodor v. Superior Court (1972)
Although our decision dealt primarily with negligent (“unreasonable”) mistakes of fact in an affidavit, we noted that it will apply a fortiori when the affiant actually knows the statements are false at the time he makes them: because “there obviously can be no question of showing a reasonable belief in the truth of deliberate misinformation, any such statements must also be stricken prior to testing the warrant for probable cause.” (Id., at p. 101, fn. 14.) We expressly left open, however, the issue whether the presence of such intentional falsehoods in an affidavit requires a more drastic response than mere excision, i.e., whether it “should result in automatically quashing the warrant without regard to the effect of those misstatements on probable cause” (ibid.).
On June 25, 1974, Detective Gregory of the San Luis Obispo Police Department appeared before a justice court judge and requested a warrant to search a single-family home rented and occupied by defendant. The principal allegations of Detective Gregory’s accompanying affidavit were as follows: in February 1974 a federal narcotics agent requested Detective Gregory to investigate a company called Cen-Coast Scientific, which had placed an order with a Los Angeles pharmaceutical firm for certain chemicals commonly used in the manufacture of restricted dangerous drugs. The name appearing on the order was that of defendant. Detective Gregory learned that defendant had applied for a business license for Cen-Coast Scientific, stating its purpose to be the furnishing of biological supplies and equipment, and that defendant was a former chemistry major at California Polytechnic University. The investigation was dropped when defendant withdrew his order.
The affidavit further recited that on June 25, 1974, another federal narcotics agent advised Detective Gregory that Cen-Coast Scientific had placed an order with a San Leandro pharmaceutical firm for phenylacetic acid, also commonly used in manufacturing restricted dangerous drugs. On the same day Detective Gregory received a telephone call from H. E. Smith, manager of the rental units which included defendant’s house. Smith told Detective Gregory that he went to defendant’s house for the purpose of evicting him for nonpayment of rent; that defendant was not at home, and Smith entered with his passkey; that he smelled an unusual odor and heard the noise of a motor in a back room; that he entered such room and saw several large pieces of chemical apparatus, apparently operating, and a fan that was serving as a ventilator. Smith also told Detective Gregory that he saw a device which appeared to be a pill-making machine, as well as several guns.
The affidavit further alleged that Detective Gregory, together with Detective Osteyee of the San Luis Obispo Sheriff’s office, went directly to
The affidavit concluded by reciting that Detective Gregory thereafter consulted Charles Hall, a federal narcotics chemist, and described to him the apparatus and chemicals seen in defendant’s house, the odor there detected, and the chemicals ordered by Cen-Coast Scientific. Hall advised him that the apparatus, chemicals, and odor are consistent with the manufacture of amphetamines, and gave as his opinion that defendant was operating an illicit laboratory on the premises for the production of restricted dangerous drugs.
The magistrate issued the warrant requested, and law enforcement authorities conducted an extensive search of defendant’s residence. On the basis of evidence found in the search, defendant was charged by indictment with multiple counts of possessing marijuana and restricted dangerous drugs, and of manufacturing such drugs and possessing them for sale. (Health & Saf. Code, §§ 11357, 11377-11379, 11383.)
Defendant moved to suppress the evidence on the ground that it was illegally obtained because the issuance of the warrant lacked probable cause and the search violated state and federal constitutional standards. (Pen. Code, § 1538.5, subd. (a)(2).) Defendant accompanied this motion with a sworn declaration by his counsel, charging that the affidavit of Detective Gregory contained numerous intentional misstatements and omissions. The declaration set forth defendant’s proposed proof of such charges, and requested permission to controvert other factual allegations of the affidavit at the suppression hearing.
When that hearing took place, however, the prosecution objected to the taking of any testimony to support defendant’s charges of perjury, contending that such evidence would be irrelevant because defendant’s sole remedy was the Theodor procedure of asking the court to excise factual misstatements in the affidavit and test the remainder for probable
Believing Theodor to be controlling, the court sustained the objection to testimony and accepted the prosecution’s offer of excision. The court accordingly refused to allow defendant (1) to call Detective Gregory for cross-examination into the truth of his affidavit, (2) to call any witness to attack Detective Gregory’s credibility, (3) to controvert any allegations of the affidavit not specifically questioned in the motion to suppress, and (4) to prove that material facts were deliberately omitted from the affidavit.
At the court’s request a chart listing the unchallenged allegations remaining in the affidavit was then prepared by counsel and introduced in evidence.
On the basis of the foregoing evidence the court ruled that the affidavit as excised was legally sufficient to support the issuance of the search warrant, and denied the motion to suppress.
Defendant thereafter pleaded guilty, the imposition of sentence was suspended, and he was placed on probation. He appeals from the
I
We held in Theodor that “Before a hearing is required to test the veracity of an affidavit, the defense must relate, with some specificity, its reasons for contending that the affidavit is inaccurate.” (
Shortly after defendant’s arrest counsel retained the services of Jack R. West, a state-licensed private investigator. West is retired from the Los Angeles Police Department after a 25-year career during which he served as investigator in virtually every major field of criminal activity. He holds a law degree, as well as state credentials to teach college-level courses in law enforcement. Prior to his employment by defendant he also served as investigator for the San Luis Obispo District Attorney. In the present case West conducted an extensive investigation totaling more than 300 hours into the circumstances surrounding the procurement of the search warrant.
The declaration then set forth West’s major findings as follows:
1. Many of the allegations in Detective Gregory’s affidavit were the product of information or observations obtained by police officers in the course of at least two illegal searches of defendant’s residence prior to applying for the warrant. On at least one of these searches the officers were accompanied by Detective Gregory and Deputy District Attorney Robert King. It was King who subsequently drafted the affidavit sworn to by Detective Gregory. Both he and Detective Gregory thus knew that the affidavit (1) omitted to state the fact of the prior searches and (2) contained certain allegations which were absolutely false and others which were intentionally misleading.
2. Contrary to the affidavit, Smith did not go to defendant’s house for the purpose of evicting him. Smith was extensively interviewed by West, and told the latter he went to defendant’s house in order to collect past due rent.
*79 3. The affidavit described in minute detail the shape and dimensions of each component of the chemical apparatus found by Smith, and implied that the latter furnished this description to the police. But Smith told West he did not have his glasses with him at the time and could not see very well, and that he gave no such measurements to the police.
4. Contrary to the affidavit, Smith saw no “pill-making machine” near the chemical apparatus or anywhere else in the house, for the simple reason that none was there. No such machine is mentioned in the police report or the list of evidence furnished to defendant pursuant to discovery, and chemist Hall testified to the grand jury in effect that it would have been very unusual to have found such a machine on the premises.
5. Despite the foregoing, the affidavit drafted by King and sworn to by Detective Gregory recited that “Your affiant was unable to observe the ‘pill making machine’ described by Mr. Smith due to its described location, and the vantage point had by your affiant at the front door.” Yet because of their prior search both King and Gregory must have known that the true reason the latter could not see a pill-making machine was because none was in the house.
6. Contrary to the affidavit, the front door of defendant’s house was not “fully opened” when Detectives Gregory and Osteyee arrived. Smith so advised West, and added that he was standing in the doorway at the time.
7. Contrary to the affidavit, the two detectives could not have seen the chemical apparatus “in plain sight.” On the basis of Smith’s explanation of the circumstances, West conducted duplication tests and determined it would have been impossible for anyone standing outside defendant’s front door to have a “plain sight” view of the apparatus and chemicals in the back room of the house.
8. Contrary to the affidavit, the two detectives could not have read the labels on the chemical bottles from their vantage point outside the front door. West measured the letters on the labels and found none was greater than one-quarter of an inch in height; he also determined that the distance from the bottles to the front door was more than 18 feet. Duplicating these conditions, West found it would have been virtually impossible for anyone to read the labels at that distance.
*80 9. In addition, after a vector analysis based on police reports and the prosecution’s photographs of the scene, West found that the bottle of sodium cyanide, in particular, had been in such a position that no one could have seen it from the front door under any circumstances.
10. Contrary to the affidavit, Detective Osteyee did not observe a “roach” on the floor approximately 18 inches inside the front door. Smith flatly denied this claim, and explained instead that Detective Osteyee directed him to look through defendant’s house and bring out any suspected marijuana. Smith complied, went to an interior room invisible to anyone standing at the front door, and brought the “roach” in question back to the two detectives. He then placed the “roach” on a plate on a kitchen shelf adjacent to the front door. In corroboration of this statement, West viewed films of defendant’s house made by a local television station at the time the search warrant was executed; the films show that the plate holding the marijuana was located on the kitchen shelf where Smith said he had put it after showing it to the two detectives.
II
Defendant contends at length that under Theodor the trial court’s refusal to allow him to put on his proof of these assertions deprived him of his statutory right to controvert the grounds of the warrant (Pen. Code, §§ 1538.5, subd. (c), 1539, subd. (a)) and of due process of law.
The argument is somewhat misdirected. We concluded in Theodor that “once a defendant makes a prima facie showing of inaccuracy, the burden then shifts to the prosecution to negate that showing,” and “once the court finds that the affidavit contains an inaccurate statement of fact, it is incumbent on the prosecution to demonstrate that the affiant’s belief that the erroneous statements were true was nonetheless reasonable under the totality of circumstances.” (
The foregoing reasoning derives from Theodor, however, and can confidently be applied only to misstatements governed by the express holding of that decision, i.e., those resulting from negligent mistakes. As noted at the outset, we expressly declined in Theodor to reach the question whether the use of intentional misstatements in the affidavit “should result in automatically quashing the warrant without regard to the effect of those misstatements on probable cause” (
Although it did not adjudicate the matter, Theodor furnishes a helpful point of departure for our inquiry. We began our analysis there by holding that on a motion to suppress evidence pursuant to Penal Code section 1538.5, a defendant has the right to go behind the face of the search warrant affidavit and controvert the truth of the facts alleged. (8 Cal.3d at pp. 90-95.) Because we held the procedure was authorized by statute (Pen. Code, §§ 1538.5, 1539, 1540), we declined (at p. 90) to reach the defendant’s alternate contention that it was also compelled by the Fourth Amendment.
Nevertheless, we proceeded to summarize the constitutional argument as follows (id., at pp. 90-91, fn. 6): “the thrust of Aguilar v. Texas [1964]
Having recognized the defendant’s right to disprove factual averments of the affidavit, we then addressed the question of remedy in Theodor. Without hesitation we applied an exclusionary rule and held that offending misstatements must be “excised” from the affidavit. Although we did not articulate our reason for so holding, we did discuss at length the question of which kinds of misstatements—innocent, negligent, or intentional—will be excised (8 Cal.3d at pp. 95-101); and from that discussion it plainly emerges that our decision to excise was based on constitutional considerations.
Thus we rejected a proposal to require excision of innocent—i.e., reasonable—mistakes “as being inconsistent with the overriding principle of reasonableness which governs the application of the Fourth Amendment to the criminal law. Instead, we conclude that only when the affiant has acted unreasonably in making factual mistakes must those errors be excised from the affidavit before testing the existence of probable cause. While undeniably misstatements impede the function of the magistrate, once it has been determined that the affiánt has acted reasonably under the circumstances, little more can be required of him. To exclude evidence obtained pursuant to a warrant issued on the basis of facts upon which an affiant has reasonably relied as being accurate serves no purpose of deterrence to unlawful conduct since, by definition, the affiant has already made a reasonable attempt to comply with the requirements of the Fourth Amendment.” (Italics added.) (Id., at p. 97.)
The negative implication, of course, is that “more can be required” of an affiant who makes “unreasonable”—i.e., negligent or intentional— misstatements: in such a case exclusion does serve the “purpose of
To declare that constitutional considerations require an exclusionary rule to operate in these circumstances, however, is not to determine the scope of that rule. In the case of a warrantless search violative of the Constitution, it is settled that the exclusionary rule bars admission of the evidence directly obtained therefrom (People v. Cahan (1955)
By parity of reasoning we could have held in Theodor that when the warrant is issued on an affidavit containing erroneous statements of fact which the affiant has no reasonable grounds for believing to be true, the exclusionary rule should operate in its normal fashion, i.e., the warrant should be quashed and the evidence obtained in the ensuing search should be held inadmissible. But we did not do so. Rather, we declared (
Again our rationale for so holding was not spelled out, and we therefore address the matter now. Manifestly the reason had nothing to do with the fact that in Theodor we were dealing primarily with negligent as opposed to intentional misstatements: not only does the exclusionary rule apply to negligent as well as purposive violations of the Constitution, but in many cases evidence obtained under a warrant has been held inadmissible even though the constitutional violation was
Instead, the explanation for our decision in Theodor to excise rather than exclude lies in the dual nature of the magistrate’s function in ruling on an application for a search warrant. The magistrate is required to make in effect two successive determinations: first he must satisfy himself that the facts are as the applicant states them to be, then he must consider whether those facts constitute probable cause for issuance of the warrant.
Accordingly, when the magistrate issues a warrant the reviewing court must presume in the first instance that he found the affiant correctly believed in the truth of each of the factual allegations of the affidavit. If it is thereafter shown that the affiant was negligently mistaken in certain of his allegations, they must be excised from the affidavit on the constitutional grounds recognized in Theodor. But the remainder of the allega
To exclude the unaffected allegations, moreover, would serve no constitutional purpose. A court admittedly engages in a fiction when, after excising negligent misstatements in an affidavit, it tests the remainder for probable cause: in so doing it in effect turns back the clock, puts itself in the magistrate’s position, and asks whether the magistrate would have issued the warrant if the affidavit presented to him had contained only the remaining allegations. Yet because those allegations are presumptively true, it does not increase the risk of invading innocent privacy for the court to rely on them in reviewing the final step in the magistrate’s function, i.e., in determining whether his conclusion of probable cause rested on a sufficient factual foundation.
III
In the case at bar, however, it is alleged that the misstatements in the affidavit were not merely negligent, but intentional. Defense counsel’s declaration takes issue principally with the sworn statements of Detective Gregory that (1) Smith saw a pill-making machine in defendant’s house, (2) when the officers arrived on the scene the front door was wide open and the chemical apparatus was “in plain sight,” (3) the officers could read the labels on the chemical bottles from their vantage point outside the front door, and (4) Detective Osteyee saw and seized a “roach” on the floor 18 inches inside the room. It is vigorously asserted that each of the foregoing statements is false, and that Detective Gregory knew they were false at the time he made them under oath.
These are grave imputations of official misconduct: as the trial court acknowledged to defense counsel, “You have made some very serious charges against the District Attorney and his people and the police.” If true, the charges mean at least that the deputy district attorney who drafted the affidavit grossly abused his authority, and that the police officer who swore to the veracity of its allegations—assuming for present purposes they constituted “material matter” within the meaning of Penal Code section 118—committed perjury. “Perjury is a powerful word, but it must be recognized that no other will suffice.” (Grano, A Dilemma for Defense Counsel: Spinelli-Harris Search Warrants and the Possibility of Police Perjury (1971) U.Ill.L.F. 405, 408.)
Contrary to the case of negligent mistakes, excision of deliberate falsehoods in an affidavit does not leave the remaining allegations unaffected and hence presumptively true. The fact that the misstatements are intentional injects a new element into the analysis, to wit, the doctrine that a witness knowingly false in one part of his testimony is to be distrusted in the whole. Encapsulated in the common law maxim “falsus in uno, falsus in omnibus,” long codified in our statutes (former Code Civ. Proc., § 2061, subd. 3), and given as a basic instruction in virtually every jury trial (CALJIC No. 1.30),
The relevance of this doctrine to the present inquiry is plain. If the magistrate had known the officer was deliberately lying to him in making certain of the allegations in the affidavit, he might well have disbelieved some or all of the remainder. His ignorance of this crucial fact undermines his determination of the officer’s credibility, and the review
In this context, moreover, the exclusionary sanction is particularly necessary. “Were the judicial response to be merely the elimination of the false statements and the assessment of the affidavit’s adequacy in the light of the remaining averments, enforcement officers would be placed in the untoward position of having everything to gain and nothing to lose in strengthening an otherwise marginal affidavit by letting their intense dedication to duty blur the distinction between fact and fantasy.” (United States v. Belculfine (1st Cir. 1974)
The exclusionary rule is also likely to be highly effective in these circumstances. It does not require police officers to know or even
A recent decision of the United States Supreme Court holds under the Fourth Amendment, as we do under the California Constitution and statutes, that a defendant is entitled to challenge the veracity of a search warrant affidavit and prove it contains statements that were either knowingly false or made with reckless disregard for the truth. (Franks v. Delaware (1978)
We conclude that the trial court erred in denying defendant the opportunity to prove that the affidavit for the search warrant contained knowingly false statements of fact. Because defendant will be entitled to litigate that issue on remand, we briefly address the procedure that will govern the hearing.
We begin with the burden of proof. As noted above, we held in Theodor that once the defendant has demonstrated that the affidavit contains misstatements of fact, the burden shifts to the prosecution to prove the affiant had reasonable grounds to believe the statements were true. (
The reasoning is no longer appropriate, however, when the defendant charges that the misstatements were deliberate, i.e., that the affiant knew they were false at the time he made them. There are no special “circumstances” bearing on the issue that are known to the affiant alone, and he is no better placed to disprove his alleged pequiy than the defendant is to prove it. There is accordingly no reason to deviate from normal rules in this matter, and the defendant should retain both the burden of producing evidence of the affiant’s knowledge of falsity (Evid. Code, § 550) and the ultimate burden of proof on that issue (Evid. Code, § 500).
Yet for several reasons these burdens are not “insurmountable” in the sense of Theodor. First, because the normal rule also governs the degree or quality of the evidence required (Evid. Code, § 115), the defendant need only prove the affiant’s knowledge by a preponderance of the evidence. (State v. Boyd (Iowa 1974) supra,
Second, in view of the gravity of the charge it is unrealistic to expect the affiant will lightly admit that he knew his sworn allegations were false. The defendant may nevertheless undertake to prove that fact by other, traditional means: “ ‘The knowledge a person may have when material to an issue in a judicial proceeding is a fact to be proven as any other fact. It differs from physical objects and phenomena in that it is a
In the case at bar, for example, defense counsel’s declaration offers such proof in the form of the experiment of the investigator West demonstrating that it would have been impossible for anyone to read the labels on the chemical bottles from outside defendant’s front door, as the affiant claimed. Of course, if the defendant has any direct evidence in the form of testimony of percipient witnesses contraiy to that of the affiant—as here, the testimony of the manager Smith summarized in counsel’s declaration—it too is admissible and the conflict will be for the trier of fact to resolve.
Third, for the same reason—the gravity of the charge—it may fairly be anticipated that trial judges will be reluctant to find that police officer affiants actually knew their allegations were false at the time of making them. There may be less reluctance, however, to find at least that certain affiants must have realized they did not in fact know their allegations were correct. In such circumstances, the defendant will have the benefit of the rule that a sworn misstatement made with conscious indifference to whether it is true or false is deemed the equivalent of an allegation actually known to be untrue. Penal Code section 125 provides that “An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false.” It has long been settled that the Legislature “intended by this section to declare that when one makes an unqualified statement of a fact as true which he does not know to be true, under circumstances in which a statement by him of a fact as true which he knows to be false would constitute peijury, such unqualified statement will itself constitute perjury.” (People v. Von Tiedeman (1898)
Fourth, the defendant need only prove the affiant knew his allegations were false; it is not necessary to further prove the affiant made the allegations with the specific intent to deceive the magistrate. That would indeed be a difficult burden to sustain, and in any event the fact to be proved would be of little if any relevance: once the defendant has shown the affiant knowingly lied under oath in any respect, the remainder of his allegations become suspect regardless of what his ulterior motives may have been. The sole precedent for requiring proof of specific intent to deceive is United States v. Thomas (5th Cir. 1973)
V
Defendant next contends the affidavit was defective not only because of intentional misstatements but also because of intentional omissions. We recognized in Theodor that “although most mistakes occur in relating events which have transpired, an affidavit may be inaccurate because of the failure to include information which might otherwise negate a finding of probable cause.” (
We did not pursue the matter in Theodor because no such omissions were alleged. In three subsequent decisions of the Court of Appeal the issue was addressed in the context of a challenge to search warrant affidavits on the ground that omissions therein undermined the magistrate’s determination that an informant was reliable. (People v. Neusom (1977)
Nor is any issue raised by defendant’s specific claims of omission: he charges, for example, that Detective Gregory failed to recite in his affidavit that the front door of defendant’s house was not “fully opened” when the police arrived, the chemical apparatus was not “in plain sight,” and the “roach” was not visible on the floor but was brought to the door by Smith. These “omissions,” however, are simply negative restatements of positive assertions already attacked by defendant as erroneous. When it is shown that an affiant falsely stated that fact X occurred, the defendant adds nothing to his case by complaining that the affiant “omitted” to state that fact X did not occur.
There remains defendant’s charge that Detective Gregory deliberately omitted to tell the magistrate that he and Deputy District Attorney Robert King had conducted an unlawful “confirmatory” search of defendant’s house before applying for the warrant. Upon close analysis, even this claim fails to present a true case of “omission” within the meaning of Theodor. Yet as will appear, the contention does entitle defendant to prove that the subsequent search and seizure of his property under color of the warrant were constitutionally unreasonable.
As noted above, we recognized in Theodor the possibility of attacking a search warrant affidavit on the ground that it omitted information “which might otherwise negate a finding of probable cause.” (
Nevertheless the defendant is not left without a remedy. Although he cannot complain of the omission of this fact from the affidavit, he retains the right to prove the fact itself—i.e., that the “confirmatory” search took place as charged—and to urge that it renders the evidence seized pursuant to the warrant inadmissible under general constitutional principles. There is no procedural bar to such proof: defendant filed a timely motion to suppress on grounds sufficient to include this claim, but was denied the opportunity to introduce his evidence thereof at the hearing.
A substantive barrier exists, however, in the decision of this court in Krauss v. Superior Court (1971)
Later that day Sergeant Guevara prepared an affidavit for a search warrant. He related in detail the facts told to hipi by the maid, but omitted any reference to his warrantless entry and search.
The case produced a deep division in this court. The majority of four justices conceded that the defendant had not impliedly consented to motel employees’ allowing the police to search his room for contraband, and hence that Sergeant Guevara’s warrantless entry for that purpose was illegal. (
Writing for the three dissenting members of the court, Justice Peters warned that the decision would inevitably have the effect of encouraging law enforcement officers to make a general practice of conducting similar illegal “confirmatory” searches in the future. He found “inescapable” the conclusion that “the search-unlawfully-first-obtain-the-warrant-later procedure would totally undermine the purposes of the exclusionary rule. By holding that a search warrant subsequently obtained on the basis of probable cause insulates the prior unlawful search, the majority provide
The record in the case at bar confirms that prediction. Rather than deny that he searched defendant’s house without a warrant, Deputy District Attorney King in effect claimed the absolute right to do so under the authority of Krauss. At the hearing on defendant’s motion to suppress, King argued that an illegal search of the Krauss variety is to be distinguished from an “intentional illegality,” and implied that it is not only permissible but may even be a commendable police technique. Thus he characterized Krauss as approving a warrant based on the observations of a citizen-informer and issued after a warrantless police entry for the purpose of “confirming” those observations; and he concluded, “I contend that is exactly what happened in this case, that the entry by the police and myself at the request of the landlord was done, in part, to negate or to support the observations of [the] landlord, and that the facts that are in the search warrant affidavit are only those facts which were lawfully observed either by [the] landlord or the police, in the moments preceding the issuance of the warrant.” (Italics added.)
The deputy district attorney’s frank admission that he joined the police in conducting a warrantless incursion into defendant’s house is nothing less than alarming. If Krauss is thus having the effect, as Justice Peters feared, of giving prosecutors and the police both authority and incentive to engage in illegal “confirmatory” searches before applying for warrants, the decision should be reconsidered.
To begin with, the search is evidently unreasonable when the warrant does not comply with the basic requirements of the “warrant clause” of the Constitution (see also Pen. Code, § 1525). This is the consequence, for example, when the warrant lacks probable cause because the supporting affidavit relied on hearsay information but failed to state facts showing that the informant both spoke from personal knowledge and was reliable (Aguilar v. Texas (1964)
Finally, even if the warrant is both legally sufficient and properly served, the search is unreasonable when it is excessive in intensity or duration. This defect is apparent, for example, when the search exceeds the precise scope of the intrusion authorized by the warrant (People v. Bracamonte (1975)
In each of these instances the police have gone through the motions of obtaining a warrant; yet because of a related act or omission by the officers, the ensuing search nevertheless increases the risk of invading innocent privacy and hence is constitutionally unreasonable. The search authorized by Krauss increases the same risk, albeit indirectly. After Krauss, a police officer need not rely solely on lawfully obtained probable cause; he can instead achieve “certain cause” by conducting an unlawful confirmatory search, thus saving himself the time and trouble of obtaining and executing a warrant if he does not find the evidence. He can safely engage in this conduct because Krauss teaches him that if the evidence does turn up in the course of the illegal search, he will still be allowed to seize it later in a second “search” under color of a warrant. The latter prospect thus gives him strong incentive to proceed with the warrantless entry. Yet eveiy time he fails to find the suspected evidence, he has also invaded the privacy of a citizen innocent of any wrongdoing. The second “search” is therefore constitutionally unreasonable because it
Insofar as it holds to the contrary, Krauss is overruled. But the police will not thereby be deprived of any rights to which they are constitutionally entitled. It has long been settled that an officer who believes he has probable cause to search a house must apply for a warrant rather than take the law into his own hands. (See, e.g., Johnson v. United States (1948)
For the reasons stated herein, we conclude the trial court erred in denying defendant the opportunity to prove his charge that law enforcement authorities had conducted one or more unlawful “confirmatory” searches of his residence before applying for the warrant. Under the foregoing analysis, the critical allegation is not the omission of those searches from the affidavit but the fact that they took place at all. On remand defendant will accordingly be entitled to introduce his proof on the latter issue; and if his assertions in this regard are found to be true, the evidence seized in the subsequent search of his premises under color of warrant will be inadmissible against him.
Bird, C. J., Tobriner, J., Manuel, J., and Newman, J., concurred.
Notes
The chart read as follows:
“1. Single family residence
“2. Two orders of phenylacetic acid
“3. Defendant is ex-chemistry major
“4. Business license—biological supplies and equipment.
“5. Landlord observes:
(a) unusual odor
(b) large pieces of chemical apparatus
(c) fan
(e) guns in residence
“6. From front door, police see':
(a) chemical apparatus
(b) Osteyee smells odor of acetone, ether, or stale urine.”
Item 5(d), which had referred to the alleged pillmaking machine, was included through oversight and was deleted by the deputy district attorney. With respect to item 5(e), we note that in testifying before the grand jury Detective Gregory conceded the guns in defendant’s residence were lawfully possessed.
Hall based his opinion on only three of these facts: the orders of phenylacetic acid, the odor of stale urine, and the location in a private home. Indeed, under questioning by the court he stated the latter fact was not essential to his opinion and would merely “strengthen” it.
This does not mean that at the hearing the defendant is also foreclosed from attacking allegations of the affidavit other than those specifically challenged in his declaration or motion. We hold to the contrary below. (Part IV, post.) All we say here is that if the defendant charges that any particular allegation is negligently inaccurate and the prosecution concedes the claim, the defendant cannot insist on putting on evidence to prove it.
In Theodor the phrase “Fourth Amendment” was used for convenience to refer to both the Fourth Amendment to the United States Constitution and the similar provision of article I, section 13, of the California Constitution. (See, e.g., People v. Triggs (1973)
A recent author restates the argument somewhat more broadly: “it makes utterly no sense to ask only whether the magistrate drew a reasonable inference without asking whether the information from which he drew the inference was acquired carelessly or transmitted inaccurately. Probable cause and its process are a whole. If any part is defective, if any functionary performs improperly, the whole fails, thereby increasing the risk of invading innocent privacy and subverting the fourth amendment’s primary value.” (Fn. omitted.) (Herman, Warrants for Arrest or Search: Impeaching the Allegations of a Facially Sufficient Affidavit (1975) 36 Ohio St. L.J. 721, 740.) The article presents a lucid analysis of many aspects of the question before us.
We take this opportunity to refine the standard of probable cause to search that we reiterated in Theodor, i.e., facts sufficient to lead a man of ordinary caution and prudence to believe and conscientiously to entertain a strong suspicion that “a crime has been or is being committed” on the premises. (
We do not view this case in a vacuum. The author of the cited article served for a year as a prosecutor in a large eastern city, handling almost exclusively motions to suppress
Other commentators echo and document this observation. Thus the former chief trial deputy of a federal defense office in California has stated that “A survey of individual cases in which police perjury has been exposed demonstrates the many ways in which perjury is employed to ‘legalize’ searches. False statements of fact in affidavits for search warrants are commonly utilized to deceive magistrates into issuing search warrants.” (Sevilla, The Exclusionary Rule and Police Perjury (1974) 11 San Diego L.Rev. 839, 869.) And an article relied on in Theodor reviews the literature and concludes that “Despite the lack of statistics on deliberate police falsehood, it is clear that the pressures on law enforcement officials cause widespread police impropriety at all stages of criminal proceedings. The swearing out of affidavits is no exception to the problem of police misconduct.” (Fns. omitted.) (Comment, The Outwardly Sufficient Search Warrant Affidavit: What If It’s False? {1971) 19 UCLA L.Rev. 96,111-112, and authorities cited.)
The instruction states in relevant part: “A witness false in one part of his testimony is to be distrusted in others; that is to say, you may reject the whole testimony of a witness who wilfully has testified falsely as to a material point, unless, from all the evidence, you shall believe that the probability of truth favors his testimony in other particulars.”
The fault, of course, is not in the magistrate’s knowledge or perception, but in the unavoidable circumstance that the application for the warrant is not an adversary proceeding: “Judges are not omniscient. They have no special ability to determine that they are being deceived when they deal ex parte with experienced police officers who testify routinely in court. When the policeman appears ex parte before the magistrate to procure a warrant, with his affidavit, the judicial officer has no divining rod to determine whether the affidavit is true or false. All he can do is read it, and if it is not internally inconsistent, all that is left him is the legal conclusion whether the ‘facts’ asserted in the affidavit establish probable cause.” (United States ex rel. Petillo v. State of N.J. (D.N.J. 1975)
At this late date we need not pause to refute the Attorney General’s claim that a sufficient deterrent effect arises from the theoretical possibility of prosecuting the affiant for the offense of perjury. The inadequacy of criminal sanctions against the police is one of the foundations of Cahan, Mapp, and their many progeny. Even leading critics of the exclusionary rule no longer propose such sanctions as a viable alternative. (See, e.g., Bivens v. Six Unknown Fed. Narcotics Agents (1971)
As a recent federal decision aptly put the point, “We continue to read of criminals who are ‘going free’ because ‘the constable has blundered.’ People v. Defore,
It does not appear from the face of the Franks opinion that the reasoning we here find persuasive was considered by the high court.
A number of our sister states have likewise held that intentional misstatements in the affidavit require the warrant to be quashed without regard to their effect on probable cause. (See, e.g., State v. Boyd (Iowa 1974)
Even when no oath is involved, reckless disregard for the truth may be deemed the equivalent of intentional falsity. Thus the .crime of theft is committed by one “who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money . . . .” (Pen. Code, § 484.) The statute has long been
People v. Hill (1974)
Although the Krauss opinion does not so recite in its statement of facts, its subsequent analysis is premised on the assumption that Sergeant Guevara also omitted any facts learned by him in the course of his search and not already communicated to him by the maid and the manager.
We note the deputy district attorney asserted that his entry was merely “in part” for the purpose of confirming the landlord’s observations; because he declined to reveal his other motives, we can only infer they were even more improper.
We further note that the quoted language of King created a factual conflict on the question whether allegations of the affidavit were the product of observations made during the prior search of defendant’s house: defendant charged they were, while King denied it. Long before Krauss it was deemed settled that a search warrant is invalid if it is the product of observations of the police during a previous illegal entry. (People v. Roberts (1956) supra,
Because official reliance has doubtless been placed heretofore on Krauss, the rule we now adopt will, except as to the present defendant, be applicable only to searches conducted after this opinion becomes final. (See People v. Disbrow (1976)
In view of the disposition herein, we need not reach defendant’s additional contention relating to his motion to withdraw a challenge to the assigned trial judge pursuant to Code of Civil Procedure section 170.6.
Dissenting Opinion
The fundamental question presented is, of course, whether evidence obtained pursuant to a warrant issued in reliance on an affidavit containing deliberately false statements of
Assuming that the remedy fashioned by this court in Theodor v. Superior Court (1972)
Granted. Mere excision is, for the reason stated, an inadequate remedy for lies. However, this deficiency can easily be cured by holding that the judge conducting the Theodor hearing is to entirely reweigh the affiant’s credibility if he is found to have lied in part. That is, upon finding that the affiant lied in making the challenged allegations, the judge, bearing in mind the doctrine expressed in the maxim “falsus in uno, falsus in omnibus” (ante, p. 86), should be required to reweigh the affiant’s remaining allegations, testing for probable cause only those allegations—if any—he finds to be true. If allegations providing probable cause survive this scrutiny, the warrant should be upheld.
A possible objection to this proposal is that reweighing credibility is the one thing a reviewing court has no business doing. The answer to this objection is, of course, that reweighing credibility is the very endeavor upon which the superior court embarks in conducting a Theodor hearing into the question whether the affiant lied in making the challenged allegations. Having the affiant before it, having determined that certain of his allegations were lies, and having parties before it interested in
Another objection, raised by the majority (ante, pp. 87-88), is that automatic exclusion of evidence obtained under the warrant is the only effective means of deterring lying in an affidavit in support of a search warrant. However, a police officer found by the superior court to have not merely “blundered” but to have deliberately lied under oath in preparing a search warrant affidavit is clearly subject to prosecution for perjury (ante, pp. 87-88) and to administrative discipline commensurate with the extreme gravity of his misconduct. Surely it is obvious that an officer contemplating perjury is much more likely to be deterred by a sanction penalizing him personally, possibly resulting in imprisonment and the end of his career, than by a sanction indiscriminately penalizing all law-abiding citizens by letting a criminal go free.
A related objection, also raised by the majority (ante, p. 87, fn. 10), is that, as a matter of purported fact, the guilty officer is not likely to be either criminally prosecuted or administratively disciplined. This objection not only manifests a curious cynicism concerning the rule of law in our society, but also underestimates the moral force of this court. If we were to make it unmistakably clear in this case that a police officer found by-the superior court to have lied under oath should be prosecuted for peijury, and that the Attorney General is obligated to uphold the law if for any reason the local prosecutor fails to do so (Cal. Const., art. V, § 13; Gov. Code, § 12550), I am confident justice would be done.
I would reverse the judgment and remand the case for proceedings consistent with this opinion.
. Respondent’s petition for a rehearing was denied October 18, 1978. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.
That this remedy is more than adequate to pass constitutional muster is confirmed by the high court’s recent decision in Franks v. Delaware (1978)
Consider the spot the district attorney, an elected official, would be in. The superior court, having found that the officer lied under oath, would expect prosecution to follow.The defense bar would blow the whistle on any dereliction of duty. “Investigative reporters” and organized groups of interested citizens would make the political price of such dereliction too costly.
Concurrence Opinion
I concur in the judgment. Substantial, material mis truths of the nature herein alleged justify the quashing of the search warrant without regard to whether the remaining allegations contained in the affidavit are sufficient to demonstrate probable cause.
However, I do not believe that every intentional misstatement in an affidavit should so fatally infect the remaining allegations as to render invalid the search warrant in its entirety. No deliberate falsehoods can ever be condoned, but where they occur in the law enforcement process and pertain to insubstantial, immaterial, or wholly collateral matters and do not raise reasonable doubt as to the truth of the remainder of the affiant’s assertions, I would not punish the People by invalidating the warrant; rather, I would leave to criminal sanction or to appropriate internal law enforcement administration the necessary discipline for those who have intentionally falsified.
By way of illustration, in the present case Detective Gregory’s affidavit recited that rental manager Smith told Gregory that he went to defendant’s house to evict him for nonpayment of rent. Defendant’s investigator, West, interviewed Smith, however, and was told that Smith went to defendant’s house to collect past due rent. Assuming for purpose of argument that Gregory for some unknown reason intentionally misstated the facts in this regard, no one has suggested that such misrepresentation should void the warrant. The majority opinion, nevertheless, indicates that every intentional mistruth would so operate, regardless of the materiality on the issue of probable cause. (See ante, p. 89.)
In my view this position is too extreme. I would forego application of such a strict per se treatment in favor of a rule of reason, at least as to mistruths regarding collateral matters which are not pertinent to the issue of probable cause.