*1 21023. No. Oct. 1980.] [Crim. PEOPLE,
THE Appellant, Plaintiff KURLAND, and Respondent. LEE Defendant STUART *5 Counsel Younger George Deukmejian, Attorneys
Evelle J. General, Jack R. Attorneys Philibosian, Winkler and Robert H. General, Chief Assistant Overoye, Attorney General, Arnold O. Assistant Willard Jones F. Deputy Attorneys Fischer, General, Jane Kirkland Appellant. for Plaintiff and (Los Kamp, Attorney Angeles), John K. Van Harry de District B. Gerry, Deputy Sondheim and Attorneys, Richard W. District as Amici Appellant. Curiae on behalf of Plaintiff and Elledge Respondent.
Robert R. for Defendant and Opinion (Pen. People appeal suppressing
NEWMAN, J.The an order evidence (a)) Code, judgment dismissing 1538.5, § subd. and a a criminal infor- (id., 995). charged possession § mation The information defendant with (Health 11350) marijuana Code, of cocaine (id., & § Saf. and of for sale 11359). inquire § We whether search warrant affidavit was defi- bearing credibility cient because it omitted on the information of an undisclosed informant. We conclude that the asserted did not omissions substantially misleading. Accordingly make the affidavit we reverse the judgment suppressing of dismissal and the order evidence. April 6, 1976,
On Officers Bell and Matt Police De- of Modesto partment Beds, obtained warrant search Water Kurland’s Discount *6 by paraphernalia, evidentiary defendant, cocaine, a store owned for and day, search, documents. The carried out the a “coke” same disclosed spoon powder pocket. and vial in of white Defendant defendant’s hand- searching baggie marijuana “zigzag” ed the officers a of and some papers cigarette “my” marijua- from briefcase. Two containers of other pistol marijuana na and a .38 weighed pound office. caliber were found in his The powder proved half; a and a the white in the vial to be cocaine. supported principally by
The It warrant was Matt’s affidavit. de- proved Z, clared in reliable in substance that a confidential informant frequently recently cases, two earlier told Matt and narcotics had he quantities possession defendant, store, of saw in of substantial de- scribed Z had confirmed that these substances. believed and defendant Z his had confided to storage
were cocaine and Defendant marijuana. house, Z be- and sale of narcotics. He told he sometimes used “Steve’s” own, in marijuana hind his Z had seen keep contraband. recently had Steven Mendes’ behind defendant’s home. Z also recently residence Defendant seen a .38 caliber on defendant’s desk the store. told pistol kill, killed, the next who crossed him. person Z he intended to or have him off” Defendant had Z to kill who had in a “ripped asked someone deal. drug
The affidavit Matt’s that the addresses given by recited confirmation also he had occupied alleged Z were defendant and Mendes. Matt by permit defendant a and had up weapon application seen concealed pick A pistol. tell the clerk that it was a .38 caliber overheard defendant affidavit, was never submitted. completed application According Z’s statements use of “Steve’s” residence to narcotics con- keep about habits The drug formed to Matt’s about dealers. experience cocaine, was affidavit that Z was a former user familiar disclosed use, its was to serve a narcotics infor- continuing with packaging mant, and had false information. the affidavit told given Finally never disclosed.1 safety identity Matt feared for Z’s if his were why People’s At the suppression hearing, despite repeated objections source, a confidential defense counsel exam- on grounds protecting revealed that Z had ined Matt about his relation with Z. answers a complaint been convicted after Matt felony signed against him, that that Z on Matt had dozen con- placed probation, had been with Z Z had discussed Z’s coopera- tacts in Matt and he an Matt testified did not know when he tion as informant. also whether Z’s had been terminated or probation the affidavit prepared Z denied threats were made whether violated Matt probation. had about the Questions to Z to induce his defendant. cooperation against and whether Matt was then the in 1974 charged nature offenses Some addition- open officer were never answered court. investigating the court to hearings details were revealed in in camera convened al objections. resolve confidential-source People’s *7 at defendant’s and Mendes’ resi information recent narcotics activities 1Z’s about affidavit, Ladd, by which substantially second Officer was corroborated in a dences X, X’s about narcotics at the warrant to search the confidential informant. information relied on another store, hand, stale to buttress a on the other was too waterbed 483, 387, Cal.Rptr. (1973) (Cf. Superior 9 Cal.3d 393 v. Court [107 store. Alexander 1131].) 508 P.2d
383 suppress granted ground The court defendant’s motion to on the that might was in “material information” not disclosed the affidavit which differently respect have led the “to conclude to the credibility of the confidential informant.” The information was then dismissed. People say misleading that the affidavit was not and that the dis-
puted properly good grounds information was withheld and in faith on privilege. apply Therefore we must decide what rules when defendant charges though affidavit, that face, a warrant sufficient on its incomplete. May
1.
show omission
defendant
from
affidavit?
facially
may
In California a
valid
be
search warrant affidavit
at
grounds
negligent
tacked on
that it contains deliberate or
misstate
against
guarantee
ments. The rule arises both from our Constitution’s
regarding suppres
unreasonable search and seizure and from statutes
(Cal.
illegally
13;
sion of
Const.,
1, §
Code,
obtained evidence.
art.
Pen.
(1978)
People
1538.5-1540;
§§
67,
v. Cook
22 Cal.3d
74 [148 Cal.
Rptr.
(1972)
Superior
605,
384 Cook, 92.)
see also 22 3d at The p. Appeal Cal. Courts have held be when it that an affidavit insufficient omits consistently may v. Neusom (1977) facts adverse to the 76 (People application. warrant 534, Morris v. Court Superior Cal.App.3d 538-539 Cal.Rptr. 27]; [143 (1976) 521, 57 526 v. People Barger Cal.App.3d 238]; Cal.Rptr. [129 (1974) 662, 40 Cal.App.3d People 668-669 see Cal.Rptr. 298]; [115 Webb (1973) 460, 36 470-471 Cal.App.3d Cal.Rptr. 524].) [111 issue, endorse we those with in directly general
Now faced it omits facts when be as inaccurate when An affidavit holdings. may crucial, powers magis them. inference-drawing it misstates case, with identical conse in either trate hindered may equally and Probable Hearsay (See Moylan, for innocent quences privacy. 741, (1974) L.Rev. Primer 25 Mercer Cause: An Aguilar Spinelli and stat that the California Constitution 749.) We therefore conclude warrant affidavit sufficient facially utes defendant to attack permit falsehoods, it is that, no it contains affirmative on though grounds incomplete.
2. must What include? affiant facts similar for and misstatements ana Though purposes, omissions many are distinct makes an lytically important ways. in falsehood Every inaccurate, An affidavit but not all omissions so. affidavit do It need need not disclose fact irrelevant. only however every imaginable information, adverse, furnish the with favorable and suffi reasonable, cient common sense determination whether permit (See United which circumstances a search are present. justify probably 723, States v. Harris 573, 730, (1971) L.Ed.2d 403 U.S. 577-585 [29 410, 419 v. United States (1969) 91 S.Ct. 393 Spinelli 2075]; U.S. [21 637, 645, (1965) United States v. Ventresca 380 584]; L.Ed.2d S.Ct. v. Stout 684, 688-689, 741]; People U.S. L.Ed.2d S.Ct. (1967) 704].) 66 Cal.2d 424 P.2d Cal.Rptr. 192-193 [57 this, to have the Courts of seem held
Recognizing Appeal consistently extends “material” or that an affiant’s “rel- duty only disclosure time, have applied evant” adverse At the same they facts.3 3Morris, lengthiest materiality, which contains discussion defined term said, ways. Omitted material that it can be several fairly, facts were deemed “to the extent [by magistrate’s inference-drawing process their was inter omission] with, added), they substantially" (57 or if “could Cal.App.3d fered italics magistrate” inference-drawing process have had an adverse effect on the normal
385 materiality requirement to reach those only omissions which significant (See Neusom, distorted ly the probable cause analysis. supra, 76 Cal. Morris, 541; at App.3d p. 57 supra, 527; at Cal.App.3d Barger, p. Webb, supra, 40 668-669; at Cal.App.3d pp. 36 at Cal.App.3d )4 470. p.
We think the results reached these strike a decisions bal by proper ance and the resort among practicality, accuracy, policy encouraging Ventresca, (See 106, to the warrant 380 U.S. at process. pp. v. Keener (1961) People pp. 688-689]; L.Ed.2d at 55 Cal.2d
[13 conclude, We as Courts of Cal.Rptr. 859].) Appeal concluded, have that facts are “material” and effectively hence must be mis disclosed if their omission would make the affidavit substantially 1538.5, leading. On review under section facts must deemed material if, force, for this because of their inherent purpose probative there is a substantial would have altered they a reasonable possibility magistrate’s probable cause determination. that,
The People even if Officer urge Matt omitted ma- intentionally facts, terial the warrant evidence should not be because suppressed omissions were or at least proper, reasonable and in faith. Defen- good hand, dant on the other argues, is the suppression proper remedy whenever material facts are or intentionally excluded. We deliberately must therefore decide what remedies when omissions apply from the af- fidavit are found.
3. What are the remedies an incomplete for affidavit? Theodor that all recognized in the affidavit inaccuracy impedes neutral However, determination of probable cause. concluded, it prob- ability standard; is the relevant certainty and constitutional (id., p. added) italics negated or “could magistrate’s have finding prob (id., able cause” added) “might” italics have magistrate caused the to find ” an informant “unreliable and his untrustworthy.... (Ibid.) information Neusom, 4In example, the fact police that a informant had not been skin- making searched before “buy” a narcotics “insignificant” was deemed when his reliabil ity had by otherwise been prior established his accuracy and his penal admission of offenses. Webb held that when the heavy informant’s purchases narcotics use and disclosed, narcotics from defendant were “the does not need to see [the in formant’s rap sheet to know” that his credibility might by extensive] be tainted bad discussion, (See hand, character and infra.) motives. On the other efforts to reliability manufacture suspected (Morris) informant and failure to disclose an informant had (Barger) recanted have been deemed material. are to “the over- unlawful search seizure
protections subject against an affiant should riding principle reasonableness...Negligence *10 (8 deterred, at should be attempts accuracy accepted. be but reasonable 96-97.) Thus, held, at reasonably Cal.3d the court where affiant be- pp. his the When he was not lieved statements warrant should stand. rea- them, should excised and the remaining sonable be believing they (M, 100-101.) cause. at probable pp. allegations retested Cook, In we the sanction for reckless or considered appropriate We mere calls for the knowing explained why negligence falsehoods. device, “correct and retest” rather than of the warrant. quashing Negli- falsehood, reasoned, we does not undermine the gent magistrate’s the conclusion that affiant was credible. Hence generally remaining presumed statements in the affidavit true and their may sufficiency retested court under section 1538.5. But or reckless by reviewing lying render truthfulness all statements in the affidavit inaccuracy of may the affiant’s suspect. reviewing court cannot reassess independently that is matter for the It credibility, exclusively magistrate. since therefore lacks a factual basis” to determine cause. “reliable There in such no alternative but to the warrant. quash remains cases (22 84-87.) Cal.3d pp.
Cook reason,” reaffirmed the “rule of ex- expressly holding in Theodor is intended, clusionary developed by deterring doctrine conduct, unlawful minimize risk that privacy innocent will Cook explained, shown, is the scope be invaded. Once unlawful conduct was rule will on whether the exclusionary depend inaccuracy neg- of hand, if on the But on the one or reckless deliberate other. ligent, truth, attempt principles affidavit reflects a reasonable constitutional warrant, satisfied; no mat- purpose are and no is served vitiating (22 82-88.) We adhere to at pp. ter how crucial inaccuracy. here. analysis “reasonable,” Cook described Theodor and misstatements “negli- “intentional,” exclusionary accordingly. By rule applying gent,” “negligently” held that material facts have Appeal the Courts analogy, and the court added the affidavit by reviewing omitted must be “Intentional” omissions cause. retested for probable affidavit then quashing an automatic require have been deemed facts material Neusom, supra, supra, 40 Cal.App.3d 662, 669; the warrant. (Barger; Morris, 534, 538-539; Cal.App.3d 76 Cal.App.3d 527-528.) Cook, that, under Theodor
Defendant contends negligence with synonymous inadvertence and that conscious of a every omission fact, material no matter how reasonable or should justified, invoke sanction We suppression. disagree.
Both defendant and lower courts have failed to realize that the Theo dor-Cook system of remedies not be may applied to omissions. exactly misstatements, Unlike omissions do not an render affidavit inac always seen, curate. As we have only material omissions have that effect. omissions, Intentional *11 unlike the intentional misstatements considered Cook, in are not an effort to mislead the necessarily magistrate. correct,
They reasonable, arise from a may or at least con clusion that the omitted facts were immaterial or privileged.5 procedures and applicable remedies to omissions must account for those crucial differences.
First, court must reviewing determine whether omis any material, sions asserted are as herein we have defined that term. an Because affidavit with no material omissions is accu substantially truthful, rate and it corresponds for most to an affidavit with purposes no all misstatements. Once the asserted omissions have been deemed immaterial, question is whether the affidavit on its face primary does, If supports probable cause. it must warrant stand. usually Neusom, (See, People v. 541; supra, 76 People e.g., p. at v. Cal.App.3d Webb, 470; 36 supra, discussion, post.) Cal.App.3d but see material,
If an omission found court must reviewing Cook, determine, as in Theodor next it arose innocently or whether However, culpable from conduct. since all intentional omissions material facts are modi court must a blameworthy, reviewing apply Theodor-Cook formula for culpability. fied version of the The neces sary modification is The trial court must decide whether plain. reck- (1) reasonable, (3) (2)
material omission was either or negligent, example, People privilege 5For here invoke their to withhold from defendant the identity right of a confidential source. It is well settled that' defendant has no to discov identity solely facially er an informant’s right to valid warrant affidavit. That attack search only possibility arises where a reasonable that informant is wit defendant shows Theodor, Code, (b), (Evid. (d); supra, guilt ness to or innocence. subds. § Keener, 723; 77, 88; McCray People Cal.3d see also v. Illinois (1967) 70-72].) affi 386 U.S. 310-314 L.Ed.2d It follows that a warrant reasonably davit informant’s need not disclose details that would tend reveal the identity. or That the omission itself
lessly intentionally misleading. inaccurate be relevant those is- rather than inadvertent may was “intentional” sues, dispositive. but not alone be may
A when exercise of due despite material omission is reasonable it, care, fact or to include or forgot affiant was omitted ignorant was reasonable even his conclusion that it was or immaterial privileged reasonable, volition if Where material omissions are whether incorrect. inadvertent, be cor al or sanction should situation imposed; no will, Because that of reasonable misstatements. affiant responds to cases, be expected comply such have done all can reasonably standards, with constitutional little deterrent would served purpose (Theodor, 3d 8 Cal. further review of the affidavit. 97-100.) pp. is unrea omissions of material fact occur when affiant
Negligent them, facts, to include sonably unreasonably forgets ignorant need not or makes a faith but unreasonable decision they good *12 should In such the “add and retest” formula de not included. cases Morris, Neusom is It care Barger, veloped proper. discourages in the likelihood that a mistake helps negligent may lessness and eliminate Yet it the af probable cause an erroneous cause. finding recognizes (Cook, 22 Cal.3d at supra, fiant’s faith at accuracy. effort good 84-85.) pp.
The dissent here material omission that intentional suggests any As should vitiate the with intentional misstate- automatically warrant. ments, a fact it deliberate omission of material undermines the argues, affiant deprives that the was credible and magistrate’s implicit finding the “reliable basis” to redetermine probable court of a factual reviewing Cook, (See 86-87.) at We pp. cause. supra, disagree. Moreover, An is culpable. intentional omission not an necessarily omission be both intentional and at the same time. Thus negligent can omission, material, not an intentional even where should automatically invoke a deliberate lie Cook's “suspect-credibility” reasoning, though more mere to omit is properly required does. than intent Something that in the affidavit appear the conclusion that statements do justify not be trusted.6 may further, argument suggesting 6The that a omission dissent carries the even material credibility
about the his and that facts he has completely informant undermines here that a court not dissenting opinion suggests reviewing may would have found cause had he known magistrate probable assume reasons, Hence, an affidavit mate- omission. dissent negligent never may support because affiant’s rially incomplete negligence That view contravenes both Theodor uphold decision warrant. and Cook. whether
Every negligent misstatement or substantial inaccuracy, omission, have induced a informed find might fully magistrate prob able cause Yet in lacking. our recent cases nothing suggests court therefore must quash warrant. On the contrary, reviewing court eliminates the simply assumes the negligent inaccuracy, affidavit truthful, whether, to be otherwise and determines independently as cor rected, “sufficient, the affidavit standards, under settled to [establish] Cook, (Theodor, 14; cause....” 8 Cal. supra, p. fn. 3d 84-85.) Cal.3d at pp. assumes, dissent,
That “rule of reason” as does the that the reviewing court may (Cook, 85.) second-guess magistrate. However, it also that we do not recognizes minimize unreasonable inva sions of review, privacy by on rejecting, the entire showing of credible affiant because he or she negligently was inaccurate one respect. {Ibid.) Moreover, it encourages the affiant to inform ful ly by extending disclosure in the duty affidavit those beyond facts .7 would necessarily preclude a finding probable cause *13 provided However, support probable rejected. cause be must therefore statements reliability part about the informant’s simply probable showing are cause that a reviewing court accept presented (Cook, must as true if by a credible affiant. 22 Cal.3d 84-85.) pp. at may simply The court add the fact omitted and decide whether the cor rected, presumably truthful affidavit establishes reliability. informant’s 7Neither nor question Theodor Cook faced the whether a “material” misstatement seen, invariably vitiates the As unnecessary warrant. we have is it to find a falsehood in order material to find the affidavit importance inaccurate. The of the falsehood be pertinent only comes when is probable the affidavit for retested cause. Theodor and Cook do not use the term present “material” in that context. Omissions a more com plex problem importance in which of the omitted fact must be considered at the outset to determine whether affidavit is inaccurate. This we threshold test have de fined in terms of materiality. importance The of the omission must then assessed when, Theodor, again as in the affidavit and corrected retested. two-step While Theodor and Cook do not that apply analysis they preclude do not it. Every negligent affiant, in an necessarily misstatement affidavit involves fact that at least, important deemed analysis. cause But all such misstatements vitiate the warrant.
The dissent and retest” for remedy negligent that an “add urges conduct. police omissions is an insufficient sanction to deter improper Theodor, con of so express holding recently Such a view ignores Cook, for correction firmed in that calls negligent inaccuracy only 100-101; Cook, (Theodor, 22 Cal. 3d at pp. 8 Cal. 3d at retesting. 82-85.) pp.
Indeed, the de the rule would frustrate rather than espoused promote principle terrent of those decisions. It would contravene goals exer reasonable under which mistakes occurring despite accuracy, (Theodor, cise 8 Cal. 3d of due care are not however crucial. punished, 97-101; Cook, 82.) And because it would not pp. leave a sterner sanction for deliberate to mislead the attempts magis (see discussion, to lose by trate would have post), nothing from mere carelessness into recklessness and sliding treachery. in affiant appears—when
When an abuse of gravity deceiving magistrate omits fact for the tentionally any purpose of the affidavit completeness recklessly disregards accuracy —Cook's An of that kind is no different omission analysis fully applies. such to mis attempt from a reckless falsehood or a deliberate lie. Any makes the entire lead the undermines the judicial process, The re appropriate affidavit and calls for harsh deterrence. suspect, whether the omission sponse is to the warrant quash regardless is deemed material. ultimately and af issues of materiality, privilege,
The burden on the If of misstatements. fiant’s is to be allocated as the case culpability believing the defense states “with some its reasons specificity” omitted, their show such omissions and material facts were it may try were material omissions materiality. showing that obligation the bur but defendant has proper People, or reasonable rests with the Cook, (See den of recklessness or intent to mislead. demonstrating Theodor, 102.) 22 Cal. 3d at 89-92; 3d at p. 8 Cal. pp. *14 are aware of Cook's We need show bad that defendant holding falsehood, faith or ulterior motive to a warrant for deliberate quash ” (22 since indeed be a difficult burden to sustain.... would “[t]hat 91.) was “of But Cook also Cal. 3d at reasoned that such a p. showing know little if once the defendant has shown the affiant any relevance: lied under his allegations ingly oath in of respect, remainder any
391 what his ulterior motives become of have been. suspect may regardless {Ibid., added.) ...” italics words,
In other is sufficient evidence of lack of perjury credibility; of an lie is proof ulterior motive redundant. But intentional omissions do not have the same There must be effect. some- necessarily thing more that an intentional omission the gives culpable quality An intent to mislead the element of perjury. supplies purposeful decep- tion in already implicit lying. burden, be a difficult
Demonstrating purposeful deception may but we do not think is an it insurmountable one. “It be may evidenced by the affirmative statement or admission” of affiant. “If he is silent or {Id., a purpose it be shown may indirectly. [denies mislead]” 90.) p. For if affiant denies omitted facts his example, knowledge protestations be overcome of those may by present when testimony he learned them. If he he did not says disclose facts because he immaterial, they were thought may the evidence an privileged permit inference no such belief could have arisen in faith. The good more omission, unreasonable the circumstances an surrounding more compelling inference of recklessness or intentional deception.8 If defendant show can the affiant to deceive—his why sought ulterior motive—he certainly do so to his may bolster circumstantial case. Yet such an often will be under the inquiry unnecessary standard we adopt.
All issues necessary determine the warrant’s are to be validity re- solved in the first instance the trial court at the suppression hearing.9 Here the court did not make the It determinations. necessary sup- pressed the warrant evidence on that the simply grounds omissions were material and recklessness, volitional. Issues of privilege, negligence, alone, intentional never were deception resolved. On that ground suppression order and the consequent dismissal judgment must be reversed. 8Morris, supra, deception may provable shows intentional indeed par
ticular case. There an affiant concealed reliability efforts manufacture in an suspected. (57 p. 532.) informant he himself Cal.App.3d should, course, assessing 9In omission reasonableness of material courts bear purposes practical in mind of warrant affidavits and conditions under which States, they usually supra, v. 393 prepared. (Spinelli are United U.S. 419 [21 Ventresca, 645]; L.Ed.2d States United v. U.S. L.Ed.2d Keener, 714, 723; discussion, ante, 688-689]; People and see 384.) *15 392
4. Were the omissions material? The trial court believed apparently that the details of an anonymous informant’s criminal record and are history necessary avoid misleading impression of the informant’s and reliability credibility.
Under the
case,
circumstances of this
we disagree.10
settled
Long
law
creates a
already
strong inference that information
from police contacts is to be viewed with extreme caution. An affidavit
which relies on information from a tipster must set forth underlying
facts
justifying
conclusion that the source is reliable or the informa
Texas,
tion itself credible. (Aguilar v.
supra,
108,
378
U.S.
114 [12
723,
L.Ed.2d
Court,
Alexander v. Superior
728-729];
9
supra, 387, 393.) An affiant’s conclusory opinions of
or
reliability
credibility
are not
enough,
mere
quantity
detail in the tipster’s statements
do not render them
v. Scoma
worthy
belief.
(People
(1969)
71 Cal.
332,
2d
340
491,
Cal.Rptr.
The rule that the affiant must demonstrate a tipster’s reli ability arises credibility not from only the usual distrust of hearsay evidence but also from an assumption that information provided cus police sources tomary is inherently suspect. Accordingly, rule does apply information from disinterested citizens who accidentally observe crime and report it as a forthrightly “Citizen duty. infor civic mants,” such, once identified as are reliable. presumptively (E.g., v. Smith People (1976) 17 Cal.3d 850-851 Cal.Rptr. [132 suppression hearing findings 10On review of a the trial court’s of fact upheld must be ; substantially supported. (People Superior (Keithley) (1975) if Court 13 Cal.3d however, Cal.Rptr. 585].) Materiality, question 530 P.2d may is a of law on appellate judgment. independent Implicit which an court exercise definition our (ante, 385) materiality assumption . might of sonably that the omitted information rea- magistrate’s have altered the decision.
393
(1976)
263,
553
Ramey
269,
P.2d
v.
4
People
557];
16 Cal.3d
fn.
629, 545
12
People
Cal.Rptr.
1333];
(1974)
P.2d
v. Hill
Cal.3d
[127
731,
393,
761
Cal.Rptr.
528 P.2d
on
1],
other
disapproved
[117
(1977)
889,
People
DeVaughn
grounds,
v.
18
Cal.3d
896
Cal.
[135
786,
Krauss v.
Rptr.
558 P.2d 872];
Court
(1971)
5
Superior
Cal.3d
418,
455,
421-422
Cal.Rptr.
In Smith the court explained distinction this by quoting succinct statement Schulle (1975) v. People 809, 51 814-815 Cal.App.3d Cal.Rptr. “A ‘citizen-informant’ is a distinguished [124 from 585]: mere informer who a to law gives tip enforcement officers person in the engaged Thus, course of criminal conduct. exper [Citations.] ienced stool pigeons or persons involved criminally or are not disposed regarded ‘citizen-informants’ because are they motivated generally (Smith, other something than good citizenship. supra, [Citations.]” 17 850-851; Cal.3d at pp. added.) italics
Such persons have criminal frequently records and of con history tact with the police. Often are free they on or probation parole or only are themselves the focus of criminal or pending charges investigations. All familiar with law enforcement know that tips they provide may reflect their or vulnerability involve pressure may revenge, braggadocio, United self-exculpation, (See hope compensation. Harris, States v. 573, supra, 723, 403 U.S. 599 L.Ed.2d [29 742-743] Harlan, United States v. opn. (5th Gonzalez J.]; 1974) [dis. Cir. 491 1202, F.2d United States v. 1207-1208; (7th 1972) 469 Unger Cir. F.2d 1283, 1287, (1973) cert. 313, den. 411 920 93 U.S. L.Ed.2d S.Ct. [36 United States v. Kinnard (D.C. 570; 1546]; 1972) Cir. F.2d 465 v. People Hambarian (1973) 31 Cal.App.3d 655 Cal.Rptr. [107 878]; (1971) v. People Cheatham 2 21 fn. Cal.App.3d Cal.Rptr. 670]; 769-779.) Moylan, Mercer L.Rev. at pp. details of their are pasts criminal necessary place magistrate Webb, on notice of their potential (People unreliability. 460, 470.)
Cal.App.3d Both an issuing magistrate and a court must as- reviewing initially sume that information from such sources is unreliable purposes probable cause. Such a rule alerts the to the de- danger very
fendant the statements of from “criminal urges—that tipsters society” receive unwarranted may weight. that, cases,
We therefore conclude in most the issue of possi ble to the unreliability presented when the adequately magistrate affidavit reveals that the affiant’s source of information is not a “citizen-informant” but a In such police tipster. circum garden-variety stances, details will predictable informer’s criminal past usually be cumulative and therefore immaterial.
Here, Matt’s affidavit Z made clear that was not a citizen-informant. It recited that Z had narcotics information in the was supplied past, himself a former user of hard and was to as a drugs, continuing operate confidential It police source. detailed his association not with de- only Mendes, fendant but with Steven who the informant believed also was involved in narcotics. Thus Z was identified as a more-or-less- clearly connections; regular police useful for his and the agent, drug magistrate was alerted to draw adverse conclusions about Z’s reliability.
The details of Z’s revealed at past open suppression hearing would have added little to the magistrate’s deliberations. Essentially they showed that Matt’s efforts had contributed to Z’s convic- felony tion, that Z was on Z and that and Matt had discussed Z’s probation, cooperation an informant. Even if those facts an support infer- might ence of Z’s that inference dishonesty vulnerability police pressure, was in already inherent Z’s status as a confidential tipster. omitted details no provided indication that Z’s information in this extraordinary particular case was unreliable.11
Defendant in that Z’s argues particular 1974 conviction for re- felony ceiving stolen was property material since it demonstrates a necessarily (Pen. specific Code, predisposition 496 dishonesty. knowl- [guilty § hearings 11In both by in camera convened the trial court to resolve Matt’s invocation privilege, informant-nondisclosure Z’s police history greater was examined at length. transcript hearings, We have studied the sealed emerge of those and no facts suggesting possibilities more than the usual of lies or mistakes. judge Our conclusion is not altered the fact that the who issued the warrant álso presided suppression hearing at the and found that the omitted information could have original probable influenced his new cause determination. We assume he meant that the given pause original facts had him about the correctness of his decision. His can- However, dor and conscientiousness are explained, commendable. as we have materiality legal is a question. particular His declaration that facts could have influ- relevant, analysis, though enced his cause dispositive. indeed is not cf., (1979) offense]; is element of edge People Spearman 74].) 599 P.2d We As wé have Cal.Rptr. disagree. assume, affidavit, said, in must rebuttal subject Thus, that a informant be unreliable. evidence of may general which admissible at trial to an otherwise dishonesty might impeach witness is not to the fair convincing necessarily important portrayal an undercover reliability informant’s a warrant affidavit.
We when caution that the affiant knows or should know of spe cific facts which bear the on informant’s adversely probable accuracy case, the those facts must be disclosed. if particular police For example, informant, have threatened or coerced the or actually the informant bears grudge against the defendant or is to avoid or seeking mitigate personal authorities, difficulties with the concrete evidence on those is addition, sues is material for purposes affidavit. In if the informant’s statements are substantially contradicted by independent or if the affiant investigation, knows or of should know other specific circumstances which do or should lead him to the suspect infor mant’s current the affidavit must so. credibility, say
Similarly when affidavit makes specific affirmative disclo sures for purposes buttressing informer’s general it reliability, must also include the equally specific adverse information necessary prevent misrepresentation. For if the example, affida vit states that the informant has proved reliable in previous investi it gation must set also forth (See similar instances of prior unreliability. Moylan, supra, 759.)12 Mercer L.Rev.
As we have explained, suppression in this hearing case re vealed no specific indicia and the set inaccuracy; affidavit forth. guidelines limited, course, 12The by are privilege. confidential informant When reasonably the affiant necessary concludes that otherwise details would tend disclose informant, identity of an he must nonetheless practicable include much detail as and generally must at least specific grounds state for An suspicion exist. affidavit which requirements gives meets those grounds and crediting substantial the infor legally mant is (See support sufficient to a decision issue the warrant. Code, 1525-1528; Theodor, However, Pen. 85-87.) pp. 8 Cal.3d at §§ magistrate may inquire and require further produced the informant or his iden tity disclosed in order to fully (Keener, evaluate existence cause. 714, 721-722.) 55 Cal.2d Magistrates reviewing and courts suspicion should view with some affidavits which detailed, disclose favorable reliability information about the credibility informant’s but treat similar lightly ground adverse information on might that further details reveal the informant’s identity. facts general sufficient to invoke the suspicion scrutiny appropriate for police informants Thus the record fails to show that ma- generally. terial facts on informant’s bearing were credibility reliability omitted from the affidavit.
Conclusion Because we think that the affidavit was not substantially misleading, the warrant must stand unless Officer Matt acted or with in- recklessly tent to deceive when he omitted the facts at issue.
The order evidence and the suppressing of dismissal are re- judgment versed. The cause is remanded for further on the issue hearings solely whether facts were from the affidavit or with the recklessly exclúdéd. specific intent of misleading magistrate.
Tobriner, J., Mosk, J., Richardson, J.,
Manuel, J.,
*19
and
concurred.
CLARK, J.I
concur in the
of the court
judgment
opinion
except
reaffirnjs
insofar
(1978)
as it
the
of
v.
22
holding
Cook
People
605,
67
583 P.2d
Cal.Rptr.
evidence obtained pursuant
[148
130]—that
to a warrant
issued in reliance on an affidavit containing deliberately
false statements of fact must be excluded
of the effect of
regardless
those statements on
cause. I
probable
continue to believe
appropri
1
ate
in such a case is
remedy
Theodor
judge conducting
hearing
entirely reweigh
affiant’s
if he is found tb
credibility
(22
(Clark,
have lied in
J., dis.).)
Cal. 3d
part:
BIRD, C. J.I
dissent. When the
have withheld
police
adverse infor-
mation which
have influenced a neutral
might
and detached magis-
warrant,
trate’s decision to issue a
the warrant should be
This
quashed.
result should follow
of the
regardless
motive which led the
police
omit the information.1
(1972)
Superior
1Theodor v.
Court
Amendment in this limited situation. scheme for with majority’s such omissions in affidavits dealing for search facts, i.e., warrants will result in a in which relevant system those facts warrant, which lead to a might decision not to issue a will withheld from the This will magistrate. important safeguards “dilutfe] that assure that the of a judgment disinterested officer will in- judicial itself between v. United terpose and the citizenry.” (Spinelli police States (1969) 393 U.S. 645-646, L.Ed.2d 89 S.Ct. [21 omitted.) 584], fn. This is neither law nor good sense. good “The Amendment, of the Fourth point which often is not grasped by officers, zealous is not that it denies law enforcement support usual inferences which reasonable men draw from Its evidence. protec tion consists in those inferences be drawn requiring a neutral and detached instead of magistrate the officer being judged by engaged in the often (Johnson competitive enterprise out crime.” ferreting United States (1948) 436, 440, 333 U.S. 13-14 L.Ed. 68 S.Ct. omitted.) effect, fn. 367], views, In from a magistrate neutral and detached perspective, the of information body is known to the po which which, lice and in their eyes, supports cause and finding the issuance of a In this factfinder, cast role warrant. constitutionally it is the province to determine the relevance and of the information credibility which law enforcement per sonnel have learned and the weight of the various inferences which may However, be drawn reasonably from it. because of the “unavoidable cir *20 cumstance that the for the application warrant is not an adversary v. Cook 67, (People proceeding” (1978) 87, fn. 9 Cal. [148 605, 583 P.2d Rptr. the 130]), must on magistrate depend the police furnish the facts which form the basis for his determination as to whether he should issue a warrant.
When the edit their information and withhold from the magis- trate adverse potentially facts which view as irrelevant or they cumula- tive, then the police interfere with the magistrate’s constitutional function. in such cases warrant Although applications may contain facts conclusions, rather than such affidavits are nonetheless in conclusory result, their As a there is an selectivity. increased risk that the privacy will be citizenry invaded on the basis of the police’s opposed to the court’s assessment of relevance and reasonableness. the fundamental
Acknowledging constitutional principle that “prob- able cause determinations neutral, be made independently by [should]
fully judicial police” (maj. opn., officers rather than the informed added), p. majority properly ante, at italics find that an affiant duty bears a to disclose all “material” or “relevant” adverse facts in a application. 384.) (Maj. opn., p. ante, warrant However, at the reme- prescribe majority dies which the for omissions of relevant facts from applications adequate protect principles search warrant are not issue here. presented application,
When magistrate with a warrant must “make in effect two satisfy successive first determinations: he must him- applicant self that the facts are as the be, states them to then he must consider whether those facts constitute cause for issuance of (People omitted.) Cook, p. warrant.” v. 22 Cal.3d at fn. appellate Under magistrate’s well-established review, rules of factu- findings, including any al credibility assessment of the affiant’s or the reliability, binding. Appellate informant’s may are courts not substitute judgments questions (Id., their on magistrate. such for that of the p. citing (1969) Superior Skelton v. Court 1 Cal.3d Cal.Rptr. 485].) 613, 460 P.2d explained
Therefore, as
magistrate
Cook,
this court
when a
issues
reviewing
warrant,
initially presume
court must
that “he found
correctly
the affiant
allega-
believed in the truth of each of the factual
(People
84.)
Cook,
tions of
the affidavit.”
22 Cal.3d at
However,
intentionally supplied
if an
magistrate
affiant has
with
reviewing
may
misstatements,
legation
longer
offending
court
no
excise the
al-
presume magistrate
to have found the remainder to be
“If
true.
deliberately lying
had known the officer was
making
allegations
him in
might
certain of the
affidavit,
in the
he
well
ignorance
have disbelieved some or all of the
His
remainder.
of this cru-
cial fact
credibility,
undermines his determination of the officer’s
reviewing
longer rely
court can no
on that determination for the
*21
necessary
magistrate’s
probable
facts
to test the
conclusion of
In
cause.
although
short,
intentionally
allegations
the court can excise the
false
it
presume
Lacking
cannot
the remainder to be true.
a reliable factual
affidavit,
basis in the
the court has no alternative under settled constitu-
principles
quash
products
tional
but to
the warrant afld exclude the
(Id.,
omitted.)
pp. 86-87,
the search.”
at
fn. and citations
The
omission from affidavit of facts relevant to an informant’s re-
liability similarly
integrity
findings underlying
affects the
of the factual
magistrate’s
police
a
decision to issue a warrant. When the
omit infor-
might
magistrate
reject
appli-
mation which
have led the
to
the warrant
reviewing
longer rely upon
cation,
magistrate’s
court can no
presumptive finding that
the informant was reliable. The rationale
which led this court in Cook to conclude that a warrant should be
quashed
containing
when it is based on an affidavit
deliberate misstate-
by
applicable
ments
the affiant is
here and should lead to the same
magistrate
result. If the
had all
him,
the relevant adverse facts before
might
he
sufficiently
well have found that the informant was not
reli-
support
magistrate’s
able to
the issuance of the search warrant. The
ignorance
any
of these facts undermines
determination of the infor-
reliability.
reviewing
longer rely
Thus,
mant’s
court can no
on that
necessary
magistrate’s
determination for the facts
to test the
conclusion
cause.
adopt
This
encourage
police
court should
a rule that would
keep magistrate fully
necessary
informed of the factual information
“perform
merely
his ‘neutral and detached’
and
function
not serve
stamp
police.”
(1964)
(Aguilar
a rubber
for the
v. Texas
378 U.S.
1509].)
111 [12
723, 727,
Indeed,
L.Ed.2d
84 S.Ct.
the Constitution is
police
better served if the
are overinclusiverather than underinclusive in
they provide magistrate.
police
information
Further,
would
by
be better
taxonomy
served
a clear rule rather than the detailed
(See
majority opinion
which
generally
Tony
advocates.
In re
C.
(1978)
(conc,
Cal.Rptr.
21 Cal.3d
902 [148
The effect of the rule will be to ap- withhold from the relevant facts adverse to the warrant plication. If the exclude relevant information in the reasonable “predictable but mistaken belief that it is immaterial as details of the *22 ante, informer’s criminal past” 394), at opn., p. there is no (maj. appel- late review. What is even more is that the if “unrea- disturbing information, withhold sonably” relevant the would the majority apply deferential “substantial evidence” and test if uphold the warrant a rea- sonable magistrate could have decided to issue a he warrant had all if (Id., the 6.) Thus, information before him. at and p. fn. the would allow majority a warrant to stand even the on affidavit though (id., “substantially which it was was based misleading” p. ital- ics in unless the original), withheld facts “unreasonably” would have necessarily precluded a of probable cause.2 The of finding fictions legal such a rule too are far removed from to be in at ex- reality indulged the the pense scheme, of Fourth Amendment. Under this there will never be any informed of all the relevant facts to weighing known the a police by and neutral detached as the of magistrate, Constitutions this nation and this state require.
The opinion does that a warrant must be if majority provide quashed the affiant omits for of any purpose fact “intentionally deceiving magistrate recklessly disregards accuracy completeness ante, However, 390.) the affidavit....” is opn., this illu- (Maj. an sory since a remedy proof specific intent to deceive the establishing (People “would indeed be a to magistrate difficult burden sustain.” Cook, 91.) 22 Cal. 3d at p. The is difficulty proof compounded when with dealing omissions rather than misstatements because the for- mer are more to readily susceptible plausible justification.
The Constitution entrusts to an informed fully mag- independent istrate the a duty when determining citizen’s to right privacy must reasonably yield interest searching state’s of a evidence In its crime. decision today, majority lose sight fundamental that this principle duty delegable police, regardless of how reasonably they might exercise it. majority opinion position 2The confuses the dissent’s on the issue of material omis reviewing sions and the role of the court. majority they up system err when set which requires reviewing a court to defer findings reliability to nonexistent of fact about the of an problem informant. The with impossible reviewing thesis is it is for a their court to know what inferences a magistrate would have drawn if fully magistrate he or she had been informed. The might have determined probable cause existed even with the omitted facts. Howev-
er, magistrate might included, have decided that if all the facts had been application for treating they the warrant was not In sufficient. these two situations as if identical, majority require reviewing were automatically uphold court a war- though rant even would have found cause did all not exist if fully the facts had been disclosed. *23 case, In the I present with the trial court’s agree “materi- finding al information was disclosed to the Court in the Affidavit which might have caused the Court to conclude to the differently respect credibility confidential informant.” I would affirm Accordingly, the trial court’s order the evidence and suppressing dismissing action.
Respondent’s for a was petition denied December rehearing 1980. Bird, J.,C. was the opinion petition that the should be granted.