Opinion
Miсhael Alan Sousa appeals from a judgment entered upon his plea of no contest to a charge of cultivation of marijuana (Health & Saf. Code, § 11358). He contends that the warrant issued for search of his residence was illegal because it was not based on an affidavit setting forth probable cause, and that the trial court therefore erred in denying his motion to suppress pursuant to Penal Code section 1538.5. We disagree and affirm.
Factual and Procedural Background
On October 10, 1990, Edward James Pecis, a special agent of the California Department of Justice, Bureau of Narcotic Enforcement (BNE), applied to a Del Norte County Superior Court judge for a warrant to search appellant’s residence at 118 Redmond Road, Eureka, in Humboldt County. The affidavit of probable cause attached to the warrant application stated that on October 4, 1990, Sergeant Brian Tilley of the Del Norte County Sheriffs office contacted Pecis to ask for assistance in arranging a “reverse sting” or controlled sale of 10 pounds of marijuana to appellant. 1 That same day, Special Agent Ronald Prose of the BNE field office in Redding told Pecis that he had known appellant to use marijuana in the past. 2 Pecis could not find any other criminal information on appellant.
On October 5, 1990, Pecis asked Agent Mike Mori of the Humboldt County Narcotic Task Force to confirm that 118 Redmond Road, Eureka, *553 was appellant’s residence. Mori did so by checking Pacific Gas and Electric Company records and by visually inspecting the premises, where he saw a mailbox with “118 Sousa” on it. Pecis found a record of a 1988 contact between appellant and the Eureka Police Department, at which time appellant stated his home address as 118 Redmond Road, Eureka.
On October 9, 1990, Pecis spoke by telephone with Agent Ernest Stewart of MET and a confidential informant. Although not named in the search warrant affidavit, this cоnfidential informant was later identified as Terry Nightingale. Nightingale told Pecis that he had known appellant for at least 10 years, during which time he had seen appellant sell and use marijuana. According to Nightingale, appellant had recently bragged of selling 60 pounds of marijuana for $4,000 per pound, boasted that he could sell 10 pounds of marijuana every 3 days, and stated that he needed an additional supplier because he could not grow marijuana fast enough to satisfy demand.
Nightingale told appellant that he knew a grower (Pecis) who could supply appellant’s needs. Appellant asked to meet with the supplier in order to purchase 10 pounds of marijuana. At Pecis’s direction, Nightingale arranged for appellant and Pecis to meet in Crescent City during the week of October 8 to 12,1990, at which time appellant would purchase 10 pounds of marijuana for between $25,000 and $30,000.
Nightingale described appellant’s premises in Eureka as having two residences, a greenhouse, and outbuildings. According to Nightingale, appellant and his wife lived in one residence, and a woman appellant called “mother” lived in the other. Nightingale stated that appellant was growing marijuana in the greenhouse as recently as October 2, 1990, and that appellant’s wife, Mаria Sousa, and his mother assisted him in cultivating the marijuana.
The affidavit stated that Pecis “expects to meet” with appellant on October 11, 1990, sell appellant a quantity of marijuana consistent with an amount intended for resale, and immediately arrest appellant on that basis. Pecis requested issuance of a warrant to search appellant’s Eureka property “[c]ontingent upon the sale of marijuana and arrest of [appellant] within Del Norte County . . . .”
Pecis stated that he had conducted a records check on Nightingale through the Department of Justice, which revealed that Nightingale had a “manual rap sheet.” The rap sheet, however, had been removed from the department’s files in Sacramento and mailed to the Del Norte County Sheriffs office. Finally, Pecis stated that Nightingale’s identity should remain confidential *554 because he was currently assisting law enforcement officers in other narcotics cases. 3
The search warrant was issued on October 11, 1990, and the reverse sting took place the same day. Pecis, posing as a marijuana supplier, met appellant in a parking lot on Highway 101 in the Crescent City area. Appellant offered to purchase 12 pounds of marijuana from Pecis for $35,000. Pecis agreed to sell twelve рounds in two installments of six pounds each. Pecis gave appellant six pounds of marijuana, and appellant in turn gave Pecis $35,000 in cash. When Pecis went to his car, purportedly to get the other six pounds of marijuana, appellant and two codefendants were taken into custody. Following appellant’s arrest, police officers served the search warrant on appellant’s residence in Eureka, where they seized 337 growing marijuana plants, approximately 30 pounds of dried marijuana, a 12-gauge shotgun, a triple beam scale, packaging materials, and other evidence.
Appellant was charged by infоrmation with cultivation of marijuana (Health & Saf. Code, § 11358) and possession of marijuana for sale (Health & Saf. Code, § 11359). He filed a motion to suppress evidence pursuant to Penal Code section 1538.5.
At the hearing on appellant’s motion to suppress, testimony of various law enforcement officials involved in the investigation and sting revealed information about Nightingale that the search warrant affidavit did not include. In August or September 1990, California Highway Patrol Officer David Nelson, who was also a member of the Drug Task Force, spoke with Birgetta Beth Walker, who had recently been convicted of possession of marijuana for salе. Walker stated that Nightingale was the supplier of the marijuana she was selling, and that he was dealing in pounds of the drug. Walker’s husband, Gale, corroborated this information. Officer Nelson unsuccessfully attempted to arrange a controlled buy between Birgetta Beth Walker and Nightingale. After she was sentenced, however, Nightingale would have nothing to do with her.
On October 4, 1990, Nightingale first approached Del Norte County Assistant Sheriff Steven E. Villian, whom he knew personally, with information about appellant’s involvement in the cultivation and sale of marijuana. Nightingale wanted to know if Villian could initiate an investigation of appellant. During their discussion, Nightingale expressed interest in receiving up to $10,000 for his participation in such an investigation. Villian told Nightingale that he might be able to apply for as much as 25 percent of *555 seized assets under federal forfeiture procedures, which could be a substantial amount if real estate was involved. 4 Villian then referred Nightingale to Sergeant Tilley, the MET supervisor. Tilley in turn contacted Pecis and helped him arrange the reverse sting with Nightingale’s assistance.
In the meantime, Officer Nelson reported the Walkers’ allegations about Nightingale’s drug dealings to Sergeant Steve Morris, the head of the Drug Task Force. After learning that MET intended to use Nightingale as part of a reverse sting, Sergeant Morris informed Sergeant Tilley and Assistant Sheriff Villian of Nightingale’s alleged involvement in drug distribution. Morris assumed that either Villian or Tilley would convey this information to Pecis. However, Tilley testified that neither Nelson nor Morris told him that Nightingale might be smuggling marijuana until more than one week after completion of the reverse sting and appellant’s arrest.
Pecis testified that after hearing Nightingale’s information about appellant and arranging for Nightingale’s participation in the reverse sting, he concluded that Nightingale was also involved in drug trafficking, because of his knowledge about marijuana and what would be found on appellant’s prеmises. Prior to preparing his affidavit for the search warrant, Pecis investigated Nightingale by contacting several agencies, including the Drug Enforcement Administration, the United States Customs Service, the San Francisco office of the BNE, the Humboldt County Sheriffs Department, the Eureka Police Department, the Areata Police Department, and tire Western States Information Network. Aside from the information he received from Agent Prose, Pecis discovered only one previous contact by the Eureka Police Department on “a non-drug matter.” However, it is not clear from Pecis’s testimony whether this contact was with appellant or with Nightingаle.
Pecis also asked Sergeant Tilley to investigate appellant’s background and to determine whether Nightingale was involved in drugs, had ever been arrested, or had served as an informant before. Tilley and his assistant, Deputy Ernest Stewart of the Del Norte County Sheriff’s Department, contacted the Department of Motor Vehicles, the National Crime Information Center, the Western States Information Network, the Del Norte County Sheriff’s Department, and the Humboldt County Sheriffs Department. According to Tilley, he instructed Stewart to contact the Crescent City Police Department and the Drug Task Force for information on Nightingale, and Stewart reported back that they had no information. Stewart, however, did not recall either request, and testified that he did not check with either entity *556 because “[i]t’s not a standard practice of ours.” Subsequently, Tilley told Pecis that he had no information on either appellant or Nightingale. This was after the point at which, according to Nelson and Morris, Tilley had already been informed that Nightingale was allegedly involved in large scale distributions of marijuana.
Sergeant Morris testified that he had long known of Nightingale from the latter’s numerous purchases of firearms, as well as unconfirmed anonymous information that Nightingale was involved in marijuana trafficking. Morris knew аnd was concerned about the fact that Nightingale had purchased “a lot more guns than he could possibly keep in his house.” Assistant Sheriff Villian also testified that there had been a previous investigation in connection with Nightingale’s purchases of firearms. There had once been a police file on Nightingale, but when Sergeant Morris looked for it just before Pecis applied for a search warrant, it could no longer be found. Sharon Roberts, the secretary for the Drug Task Force, testified that there had been an informal intelligence file on Nightingale since November 1988, but that it had been discovered missing when Officer Nelson tried to loсate it in August 1990. Prior to that, she had last seen the file in Sergeant Tilley’s desk.
Pecis further testified that he had made his request to search appellant’s residence contingent on the sale of marijuana to appellant during the reverse sting operation planned for the following day because he did not want to rest his reputation in making the warrant application on an untested confidential informant with very little verified information. Pecis wanted to have the warrant in hand at the time of the reverse sting so that the search could proceed before appellant could alert anyone at his home.
The trial court denied аppellant’s motion to suppress. Appellant thereafter withdrew his not guilty plea and entered a plea of no contest to the charge of cultivation of marijuana. On the motion of the district attorney pursuant to a plea agreement, the trial court dismissed the possession of marijuana for sale count. The trial court sentenced appellant to the upper term of three years in state prison, but stayed execution of the sentence and granted appellant five years of formal probation, with an order to perform five hundred hours of community service and a stayed fine of $1,500. This appeаl followed.
Discussion
Appellant contends that the trial court erred in denying his motion to suppress evidence on the following grounds: (1) the search warrant was an illegal anticipatory warrant; (2) the affidavit in support of the warrant relied on uncorroborated information from an untested “non-citizen” informant; (3) *557 the search warrant affidavit intentionally omitted material information about the informant’s credibility that would have vitiated a finding of probable cause; and (4) no good faith exception applies to support the warrant’s issuance because Pecis intentionally omitted material information from the affidavit and lacked a reasonable belief that probable cause supported the warrant.
Anticipatory or Contingent Warrant
An anticipatory or contingent search warrant is one based on an adequate showing “that all the requisites for a valid search will ripen at a specified future time or upon the occurrence of a specified event . . . .”
(Alvidres
v.
Superior Court
(1970)
In this case, because Pecis believed that the information from Nightingale in the warrant affidavit was “very slim,” he sought to bolster the affidavit by stating that he expected to meet appellant in Del Norte County on October 11,1990, sell him marijuana, and then immediately arrest him for possession of marijuana for sale. The affidavit specifically requested permission to search appellant’s residence “Contingent upon the sale of marijuana and arrest of [appellant] within Del Norte County . . . .” Appellant now asserts that the warrant was invalid because it depended upon the police’s performance of future discretionary acts, and improperly delegated to the police the determination of whether probable cause existed. We disagree.
Federal and state courts have repeatedly upheld anticipatory warrants based on the expected delivery of contraband to the place to be searched. (See
U.S.
v.
Garcia
(2d Cir. 1989)
Appellant contends that аnticipatory warrants have only been upheld where government agents seek to search a location immediately after delivery of a package of contraband to that specific location. Otherwise, appellant argues, neither California nor federal law supports the issuance of a search warrant in which probable cause is contingent upon a future sale of contraband to a defendant.
It is true that most anticipatory warrant cases involve controlled deliveries of packages containing contraband. None of them, however, holds that anticipatory warrants arе improper in other contexts. Instead, they establish that a warrant may issue on a clear showing that the police’s right to search at a certain location for particular evidence of a crime will exist within a reasonable time in the future.
(People
v.
Shapiro, supra,
In challenging the anticipatory warrant issued in this case, appellant relies on
United States
v.
Hendricks
(9th Cir. 1984)
Contrary to appellant’s position, Hendricks does not require invalidation of the warrant in this case. Hendricks is factually distinguishable. There, the warrant was predicated exclusively on the anticipated delivery of the contraband to the defendant’s house. Unlike in this case, the police in Hendricks had no information linking the house to defendant’s suspected illegal activities, and, hence, no reason to believe the contraband would in fact be brought there. (United States v. Hendricks, supra, 743 F.2d at pp. 653-655.) Here, probable cause to issue thе search warrant was predicated on both the anticipated success of the reverse sting operation, and on *559 Nightingale’s detailed description of appellant’s cultivation, harvesting, and selling of marijuana at his residence, the place to be searched. The purpose of the condition precedent was to corroborate the untested informant’s information, not to serve as the sole basis for issuance of the warrant, as in Hendricks.
Hendricks
thus
supports
the principle that an anticipatory warrant may issue upon a clear showing that evidence of a crime will be at a particular location at a specified time in the future. Once the police present evidence meeting this requirеment, a magistrate may issue an anticipatory warrant contingent on the occurrence of an event in the future. (2 LaFave, Search and Seizure,
op. cit. supra,
§ 3.7(c), at pp. 94-100.) The warrant issued in
Hendricks
was premature because it was based on mere speculation that evidence of a crime might be found at a given location at some future time. There was no present assurance that the box would be claimed, picked up, or taken to the defendant’s house.
(United States
v.
Hendricks, supra,
743 F.2d at pp. 654-656.) Thus, at the time the warrant was issued, no crime had been committed, and it was a matter of sheer speculation whether evidence of a crime might be found at a given location in the future. (See
State
v.
Vitale
(1975)
A case that illustrates the principle we have stated and is factually closer to this one is
State
v.
Gutman
(Alaska Ct. App. 1983)
In this case, as in Gutman, at the time the warrant wаs issued, there was a clear showing that appellant would be involved in an illegal drug *560 purchase, which would take place in the immediate future. 5 Moreover, with Nightingale’s information, Pecis established a direct link between appellant’s trafficking activities and his residence. The determination of probable cause was not left in the hands of the police, to be made at some point in the future; the magistrate had sufficient information to make that determination prior to issuing the warrant.
It is immaterial that the warrant was contingent upon the performance of discretionary acts by the police, i.e., the controlled sale. In the search warrant affidavit, Pecis swore that he expected to meet appellant and sell him marijuana on October 11, 1990, in Del Norte County. Although it was possible that the sale would not occur, nothing in the affidavit indicated that Pecis might decide, in his discretion, not to pursue the reverse sting. The same theoretical discretion exists in the context of controlled deliveries, where, as appellant concedes, anticipatory warrants have been repeatedly approved.
(U.S.
v.
Garcia, supra,
882 F.2d at pp. 700-703 [there was no positive assurance contraband would arrive at location to be searched, and federal agents could have called off delivery];
U.S.
v.
Goodwin, supra,
Here, as in those cases, there was no reason to believe that the police would exercise their theoretical discretion to abort the sting. Pecis’s affidavit established that, upon completion of the reverse sting, the police would have the right to search for contraband at appellant’s residence. Implicit in both the controlled-delivery cases and the instant situation is the presumption that the police will not execute the search warrant until after they have confirmed that the anticipated event, whether delivery or prearranged sale of contraband, has actually taken place. “It is logical to assume . . . [officers] would not be disposed to undermine the success of their efforts by premature execution of the warrant.”
(Alvidres
v.
Superior Court, supra,
*561
In this case, in the search warrant affidavit Pecis specifically stated that he was requesting permission to search appellant’s premises “[c]ontingent upon the sale of marijuana and arrest of [appellant] within Del Norte County . . . .” However, the warrant did not expressly set out this condition of its execution, nor did it expressly incorporate Pecis’s affidavit.
6
The court in
Alvidres
v.
Superior Court, supra,
We conclude that to the extent the failure to state the contingency in the warrant is viewed as a defect, exclusion is not required in this case because the search was conducted in objectively reasonable good faith reliance upon the warrant.
8
(Massachusetts
v.
Sheppard
(1984)
Appellant also contends that the search warrant affidavit does not set forth probable cause because it contains only the uncorroborated information of an untested informant. The complete answer to this contention is that Nightingale’s otherwise uncorroborated information was in fact corroborated by the occurrence of the anticipated contingency, i.e., the reverse sting. Pecis’s aim in seeking an anticipatory warrant in this case was to bolster the probable cause evidence provided by Nightingale’s information with the expectation that a controlled sale of marijuana to appellant would take place the next day. Nightingale’s information, although concededly “slim,” was not worthless. Through it, Pecis established a nexus between appellant’s residence and his anticipated lаrge-scale purchase of marijuana in Crescent City. That Nightingale was a suspicious individual did not invalidate his information; as Pecis correctly testified, most informants with information about drug trafficking are to some extent involved in it themselves. (See
People
v.
Kurland
(1980)
Omissions From Affidavit
Appellant also contends that the trial court should have found the warrant invalid because material facts about Nightingale’s credibility were knowingly omitted from the affidavit. We disagree.
After the hearing and further briefing on appellant’s motion to suppress, the trial court found that the affidavit had in fact omitted information about Del Norte County officers’ suspicions regarding, and efforts to find evidence аgainst, Nightingale; his stated desire for a large monetary reward; the missing police file on Nightingale; and Sergeant Tilley’s representation to Pecis that he had no negative information on Nightingale despite the evidence that Tilley was familiar with Nightingale’s suspicious background. The trial court found these omissions material and intentional on the part of Del Norte County law enforcement personnel, and characterized the affidavit as “an outstanding example of, at a minimum, a lack of candor,” and “a splendid example of omission gained by utilizing an outside affiant.”
When material information has been intentionally omitted from a warrant affidavit, the proper remedy is to restore the omitted information and reevaluate the affidavit for probable cause.
(Franks
v.
Delaware
(1978) 438
*563
U.S. 154, 155-156 [
We agree with the trial court’s evaluation. Nightingale provided more than a simple “tip” about appellant’s activities. His information was extensive and recent. He had little incentive to lie about the proposed marijuana sale, since appellant’s failure to participate would both discredit Nightingale and deny him his hoped-for reward. Even without knowing that law enforcement officers suspected Nightingale of drug trafficking, a reader of the affidavit would suspect, as did Pecis, that Nightingale was “dirty” in some way. Thus, the omitted information was largely cumulative and did not negate probable cause. (People v. Kurland, supra, 28 Cal.3d at pp. 393-394.) 9
We do not condone the apparently intentional omissions of information about Nightingale in the search warrant affidavit in this case. The trial court was rightly troubled by these omissions, but found that the omitted information was not so material as to defeat probable cause. As the trial court impliedly found, in this instance the apparent coverup was potentially more serious than the information concealed.
Because we have held the affidavit was sufficient to establish probable cause, we do not address appellant’s contention that the omissions show Pecis could not have believed in objеctive good faith that probable cause existed.
(United States
v.
Leon
(1984)
*564 Disposition
The judgment is affirmed.
White, P. J., and Werdegar, J., concurred.
Notes
At that time, Sergeant Tilley was head of the Del Norte County Marijuana Suppression Program. This program was also sometimes referred to as the Marijuana Suppression Team or the Marijuana Eradication Team (MET). For convenience, we will refer to the program as MET. MET should not be confused with the Del Norte County Interagency Narcotic Task Force, also called the Del Norte County Interagency Drug Task Force (hereafter Drug Task Force), which Tilley previously headed, and which also participated in this investigation.
Although the affidavit of probable cause in suрport of the search warrant does not so state, the record indicates that Prose’s information was approximately five years old, dating from his employment in Humboldt County.
Nightingale’s identity was subsequently revealed at the preliminary hearing on the charges pending against appellant in Del Norte County.
Ultimately, Nightingale received $500 from the Del Norte County Sheriff’s Department and $500 from the BNB.
Pecis executed his affidavit on October 10, 1990. In the affidavit, Pecis stated that he anticipated completing the reverse sting the next day, October 11, 1990.
Because the affidavit was neither incorporated by reference in the warrant nor, as far as thе record shows, attached to it, Pecis’s specification of the contingency in the affidavit does not cure any deficiency in the warrant itself.
“[T]he magistrate, if he so desires, could insert in the warrant a direction that it be executed upon the occurrence of a given event or after the passage of a specified period of time.”
(Alvidres
v.
Superior Court,
supra,
Accordingly, we need not decide whether the warrant itself must set out the conditions of its execution. However, in our opinion, the inclusion of such an express statement of the necessary contingencies is definitely the preferred practice in issuance of an anticipatory warrant. This is particularly true where, as here, the affidavit shows the probable existence of some contraband at the place to be searched before the contingent event takes place. Where probable cause is based only on an expected delivery, as in Alvidres v. Superior Court, supra, 12 Cal.App.3d at pages 580-581, it can confidently be assumed the officers will not execute the warrant prematurely. But where probable cause is based in part on existing contraband and in part on an expected future delivery, sale, or purchase, it is possible an officer might decide to execute a warrant containing no facial restriction even if the anticipated event does not occur.
Suspicions that Nightingale was involved in drug trafficking did not alone render his information unreliable. Although members of the Drug Task Force were unhappy with the large monetary payment they had heard Nightingale might receive, Pecis did not state that he regarded Nightingale’s information as too unreliable to provide probable cause without confirmation through the anticipated controlled sale. Rather, he testified: “I will not say it was not sufficient. It was very slim. Basically it was corroborated only by one other policeman and I would not want to rest my reputation on that. Therefore it was made into a contingency warrant.”