*1 29872. In Feb. 1972.] No. Bank. [L.A. PEOPLE, Petitioner,
THE COUNTY, THE SUPERIOR COURT OF LOS ANGELES Respondent; al., et Real Parties in Interest. STANLEY CHARLES JOHNSON *3 Counsel Busch, Jr., P. District Arnold T. Gumin-
Joseph Wood and Attorney, Harry ski, District for Petitioner. Deputy Attorneys, No appearance Respondent. Defender, McCormick,
Richard S. Public Buckley, James L. G. Keith Brainard, Wisot and Defenders, Marks, W. Harry Public Burton Marks, Sherman, Marks, Schwartz & & London Levenberg Sherman for Real Parties in Interest.
Opinion McCOMB, J. seek writ of mandate to The People compel respondent court to annul of an order which portion some of the suppressed herein) interest (real defendants parties which six in a case in evidence the Vehicle 4463 of of section with violations charged were variously Penal license), section altered Code of forged (possession (counter- Code Penal bill), 472 of the section of forged Code (possession of 484e, (2), California), subdivision and section of seal feiting card). credit lost or stolen Penal Code (possession Bureau, Sheriff, Forgery, Units Facts: Los Angeles County Special The forging individuals suspected of a group conducted an investigation On December credit cards. in stolen licenses and dealing drivers’ a warrant to District issued Judicial Court for Los Angeles Municipal (2) 620 (1) Hollywood, Lillian Way, Apt. search three locations: Street, Los 3130 West 59th Place, (3) Los Angeles, West law three locations by items were taken from each of Certain Angeles. *4 were thereafter on 1969. Defendants enforcement officers December in re- them indicted, were commenced against and criminal proceedings trial. court, which were consolidated spondent proceedings Code, to the Penal moved, to- section 1538.5 Defendants pursuant a been as evidence, that it had obtained on the the seized ground suppress court upheld an unreasonable search and seizure. result of Respondent location, held that the first but the warrant with to the respect with sufficient warrant was not legally respect supporting and locations. second third James, of the Los Angeles
The affidavit was made D. P. Sergeant by Street), it reveals (59th the third location Sheriff’s office. With respect the following: occasions
“On . . and on various November 1969 . subsequent thereafter, the following affiant received on terminating your 12/19/69 sheriff, that ... a fellow information from Samella Germany deputy on advised said deputy male known negro only ‘Levy’ 11/26/69 or fictitious California . . . that he could secure for her counterfeit sheriff licenses, that on date said ‘Levy’photo- drivers same Germany Deputy gave a counterfeit said to secure ‘Levy’ and of herself for graphs description Oliver; on that California drivers license under the name of Carol turned over and he met the aforesaid ‘Levy’ Deputy Germany 12/1/69 license, picture bearing Deputy’s her a counterfeit California drivers R-389165; that Bloom, No. on name License it Sharon bearing McDaniel, on the license from Clifford said stated he received ‘Levy’ of blank McDaniel was out and further stated that evening 11/30/69 forms and had used picture Deputy California drivers licenses with a name description on counterfeited license Germany previously a of Sharon Bloom. also stated that he was directed McDaniel to ‘Levy’ Street, to 3130 West go Los and secure from a male Angeles negro licenses; named some blank California drivers that said did ‘Stanley’ ‘Levy’ with the instruction of comply Clifford McDaniel and met and that ‘Stanley’ advised ‘Stanley’ that he could make ‘Levy’ drivers licenses for him any- time.
“That on . . . advised Samella Deputy Germany ‘Levy’ 12/2/69 she needed a new drivers license as the one in the name Bloom of Sharon did fit not her made a call description; ‘Levy’ telephone stating he was to Clifford McDaniel and that talking McDaniel them requested 12/2/69, contact him after 9:00 a.m. At 9:15 on p.m. approximately Deputy Germany, named accompanied by ‘Levy’ person proceeded to 711 Lillian Way, California .... Ger Apt. Hollywood, Deputy entered the many was introduced to Clifford premises ‘Levy’ McDaniel ....
“At on while at the 10:15 still aforesaid approximately p.m. 12/2/69 711 Lillian . . . was shown Way, Hollywood Germany ” a counterfeit Pacific ‘Levy’ check and advised Payroll Telephone Clifford McDaniel that a Johnson was them ‘Stanley’ handling *5 if needed they more any to them that would let her people they pass know.
“That on at a.m. 11:30 Germany approximately Deputy 12/5/69 Clifford McDaniel . . . . phoned . . that needed a new advising [she] drivers license to match the name of C. Johnson .... At Virginia ap- . . . recontacted Clifford McDaniel proximately Deputy Germany p.m., and was advised to to Market at 59th Street and Crenshaw go Ralphs Boulevard and call him from there. At 5:30 Deputy approximately p.m., called Germany Clifford McDaniel and Crenshaw from 59th Boulevard and was advised McDaniel that would her she be met ‘Stan’ giving ‘Stan’s’ At description. 5:35 was Germany approximately Deputy p.m. a male . . . who identified himself as ‘Stan.’ approached by negro Deputy ‘Stan’ the was Germany gave of herself a description photographs to on the drivers license with the name of Johnson. ‘Stan’ appear Virginia stated would it take for minutes him to return with approximately market, license. At returned to the 6:15 ‘Stan’ handed approximately p.m. a counterfeit California Drivers license in the name Deputy Germany Johnson, C. Virginia $35.00 No. H 798906 and and was given requested ‘Stan’ asked how licenses Deputy Germany. many Deputy Germany she needed and was told that she used or three a week. usually two ‘Stan’ seal with State new license forms that he had some of the then stated for licenses and gave care of her front and stated that he would take on the Johnson, 3130 to Charles (295-7934, registered his number her telephone Street, L.A.) license. call when she needed another 59th 12/9/69, a.m. Deputy Germany phoned “At 9:00 on approximately had new credit card told that she a ‘Stan’ at 295-7934 and him L. Smith. ‘Stan’ another license in the name of Harriett needed drivers to contact Germany he and for stated that was then right busy him, Stan, 10:30 11:00 would about or Clifford McDaniel who contact [Thereafter, further following to have make license. a.m. him up from McDaniel license obtained driver’s Germany developments, Deputy Lillian Way address.] . . Pacific “. An was made through Operator, investigation Special Street, location West 59th Telephone Company, telephone . that said was issued 295-7934 . . and ascertained number number Street, Charles Johnson located at 3130 Los Angeles.” West In affidavit insufficient with to the 59th Street loca- holding respect tion, . court found “that were insufficient facts . . related there respondent Affidavit, in the the issuance of the search warrant. The Court that Levy’s realizes statement that he had blank drivers’ licenses procured 2-A; no address is there is from in the Affidavit on page as to when this occurred spelling sufficiency date seen, how blank were seen. There many licenses were how licenses many no of a factual nature related to justify person anything sufficiently [svc] be at caution and to believe the would ordinary prudence property 3130 59th Street. The Court at the time the Affidavit realizes Levy, him, made, or at the that the on with was time were negotiations going him, was been received had reinforced information from being probably *6 he unreliable to with to extent the though by even was such an begin depu- ties, activities, he could investigations prob- Germany’s been facts in have relied But there are not related ably sufficient upon. statements to the belief that the was 3130 59th Levy’s property any given (Italics added.) Place at time.” Place), the re- (West
With the second location affidavit respect 16, 1969, veals the 4 the affiant About on December following: p.m. James) received information from “confidential informant” (Sergeant his at 3130 West 59th Johnson was aware that residence “Stanley Street, Los enforcement officers was under law Angeles observation making moved all or of his used in the subsequently part equipment Place, identification, the of false to 620 West 41st Los Angeles, upstairs, downstairs vacant. He stated being further that the at that residing persons were known location to him. as T.J. and The informant further Betty.’ checks, stated that he observed blank blank licenses and fluid used driver’s licenses, Place, driver’s Los making at 41st operation Angeles.” The affiant the confidential was considered reli- alleged information that, basis able on the “In the this informant has affiant given your past on 1 occasions that one was wanted for Wolf separate Jacqueline [sic] she resided at forgery Hills Police and that Beverly Department Don Los that the affiant had verified this Apt. Miquel, Angeles,” to be information correct and recited that the in- accurate. The affidavit had led to the formation arrest of a but that the wanted for forgery, person convicted, had not resulted arrest held or “as to answer anyone’s being neither the trial has yet been held.” preliminary hearing location,
With to the 41st Place court found the respect respondent place and the but there described1 found “that were insuffi property sufficiently cient facts to indicate the reliability informant.... past experi [N]o ence is related in connection with of the informant. alleged reliability There are no personal observations the conclusion reached support informant that the ... I was think there was insufficient property [there] set personal knowledge forth on of the .... part informant The in formant told affiant that Stanley Johnson was aware that his residence at 3130 West 59th Street under . . . that is obviously [was observation] conclusion of informant .... There forth that is no John setting son made a statement to that effect. There is no forth of facts setting which would informant had what the said such in support formant observed moved .... informant stated being property [T]he Place, that he observed blank . . . but he drivers’ licenses at 41st does not when he observed them .... statement that the fluid say was [H]is test, used . . me . to be I think that seems So don’t conclusionary. test set (12 versus Texas U.S. 108 L. Aguilar two-prong 1509)] Ed.2d S.Ct. been met in to the has seizure respect 41st Place.” property
Question. legally respect Was to the 59th sufficient Street and 41st Place locations? 1538.5, Code,
Yes. Under section (i), subdivision Penal defendant entitled to a de novo in the court with re hearing superior (See to the of a spect People Harrington, search warrant. adequacy *7 991, 161, However, (3) 961].) Cal.3d 995-996 P.2d 471 Cal.Rptr. [88 premises 1 The warrant the top search authorized a search of “the floor of located Place, as Angeles, being two-story, 2-family and 620 a described West 41st Los . . .” top residence . The correct street for the 62014!. number floor is
711 a common- at such a hearing, give court is even required, superior As the warrant was based. to the affidavit on which sense interpretation v. in United States Ven- the United States by stated Court of Supreme tresca, 684, 688-689, 102, 85 S.Ct. L.Ed.2d 380 U.S. 741]: 108-109 [13 and the consti- cases be followed
“If the of the Court’s are to teachings . be tested served, . . must affidavits for search warrants tutional policy courts and realistic a commonsense in magistrates interpreted by and haste in the midst drafted non-lawyers fashion. are They normally by of elaborate specificity of a criminal Technical requirements investigation. in this exacted have no place once under common law pleadings proper courts toward warrants by A attitude reviewing area. grudging negative evidence to a their submitting tend to officers from discourage will police officer before acting. judicial be affidavits
“This is not to cause can made out say probable or an informer’s which are the affiant’s purely stating only conclusory, without ‘underlying belief cause exists probable detailing of some which that belief is based. Recital circumstances’ upon [Citation.] if in the affidavit is essential the magistrate circumstances underlying detached rubber merely is to his function not serve stamp perform detailed, However, these are where for where circumstances police. and when a of the information reason source crediting given, cause, should not invalidate has found courts magistrate probable warrant rather than com- by interpreting hypertechnical, affidavit monsense, it be to de- manner. in a case not particular may easy Although cause, termine when an affidavit demonstrates the existence of probable the resolution doubtful or in this area should largely cases marginal (Italics added.) determined to be accorded to warrants.” preference Harris, 723, (See also United States v. 91 U.S. 573 L.Ed.2d [29 2075].) S.Ct. statement
In order for an affidavit based on an informant’s hearsay warrant, two re to be sufficient to the issuance of a search legally support be met: the informant’s (1) must The affidavit must allege quirements and must statement factual rather than conclusionary which is language matters establish the informant personal knowledge spoke statement; some under (2) must contain contained the warrant issuing factual information which the magistrate from lying his information the informant was credible or can conclude that reasonably 613, Court, (Skelton Superior v. 1 Cal.3d Cal.Rptr. reliable. [81 Hamilton, 485]; Cal.2d 179-180 People Cal.Rptr. 460 P.2d an 681].) even P.2d information Although provided cause, evidence of reasonable informer is relevant on issue anonymous *8 must be to the court to presented conclusion that reliance justify on the information was instances, of, reasonable. In some ex identity past with, the informer perience evidence of may of the provide reliability information; others, in it be may similar supplied information from other Scoma, sources or personal (People observations of the v. police. 332, Cal.2d 491, 337-338 419].) 455 P.2d Even Cal.Rptr. [78 though information from an informer is in lan expressed conclusionary guage, there is no showing informer is believed why reliable on the basis of past experience, magistrate may issue a warrant properly on the basis of such information if the affidavit also recites facts supporting Flores, that reliance on the indicating information is (People reasonable. v. 563, Cal.Rptr. 68 Cal.2d 161, 564-566 233]; People P.2d see [68 Benjamin, 296, 302, 71 Cal.2d 438].) fn. 455 P.2d Cal.Rptr. location,
With to the 59th respect Street did court not respondent ques- tion the of the informers reliability who the information in contained gave affidavit, but made its determination on the basis of its solely finding that there were insufficient in facts the affidavit to issuance of the justify search warrant. The basis for principal court’s was that respondent ruling “there is no spelling of date with when this occurred sufficiency [Levy’s to the 59th going Street location to obtain blank driver’s license forms from. Stanley, accordance McDaniel’s instructions] [and] are not there sufficient facts related in Levy’s statements to the belief that the was at 3130 property 59th Place at time.” any given
If the facts stated in the affidavit are in a commonsense interpreted manner, however, the reasonable inference only therefrom is that Stanley false identification prepared documents and was needed keeping equipment location, which, therefor at the Street as shown warrant search itself, was residence. Stanley’s the 59th Street location is a Significantly, short distance from relatively Market at 59th Street Crenshaw Ralph’s Boulevard, where, recalled, it will be “Stan” delivered a counterfeit driver’s license to Under a Deputy Germany. commonsense interpretation affidavit, it 1, 1969, is clear that on December told Levy Germany 30, 1969, that on November he had received from Clifford McDaniel a Bloom, counterfeit driver’s license name of Sharon to be given Deputy Germany one she had ordered in the place name of Carol Oliver; McDaniel, the time saw Levy McDaniel stated that he was out of blank driver’s (thus license forms one explaining why previously counterfeited under a different name was but given Deputy Germany) then location, had some at the 59th Street and Levy should secure some of the forms from and that conversa Stanley; Levy’s following tion with McDaniel on November and before his conversation *9 1969, 1, he had to the 59th with on December gone Deputy Germany him that he could make location and met who advised Street Stanley, drivers’ time. licenses him any that the affidavit was insufficient because court’s conclusion
Respondent the date on which went to the 59th Street location is not out Levy spelled be man- could reached the affidavit in only by interpreting hypertechnical ner, which what the United con- is Court of the States exactly Supreme demned in Ventresca.
From court’s statement at time it ruled on the respondent sufficiency location, it affidavit as relates that re- to the Place it appears court once spondent again adopted hypertechnical approach. Concededly, the confidential informant’s Johnson are con- statements regarding Stanley Hamilton, 176; (see People supra, in nature v. 71 Cal.2d clusionary People Benjamin, 296); v. used supra, 71 Cal.2d and reference to a “fluid in the operation driver’s licenses” constitute an making may opinion without foundation that the informant was his own by qualified experi- ence However, to form an as to the function or of the fluid. opinion purpose it from that the confidential ob- clearly informant appears fluid; served blank checks and blank drivers’ licenses addition the total should, stated, information the rule under hereinabove given a commonsense interpretation. true, court,
It pointed that affidavit does not respondent state when the confidential informant made his observations. But in reading the affidavit in a manner, commonsense could magistrate reasonably have inferred of the affidavit as a whole the light considered informant’s observations took within a place short time before reasonably he communicated with 16, on December It will be police 1969. recalled activities, 1969, that the affidavit 26, recites the on November commencing aas Deputy Germany feigned states facts from which it accomplice is reasonable to infer that Stanley Johnson was then engaged prepa- of false ration identification documents at the 59th Street location. From fact the 59th Deputy Germany telephoned Johnson at location 1969, him, Street around a.m. on December spoke it is reasonable to conclude he was still conducting operations address that time. could have concluded magistrate Consequently, that the move revealed by the informant’s information took some place 16, 1969, time after prior December and that December it atwas some time such that the informant made his during period obser- vations.
The affidavit had to contain facts or credi showing reliability informant, of the confidential but bility his would have reliability appear corobo detailed nature of his observations and been established Scoma, (See People information about 59th Street address. rating *10 Moreover, [7].) fact that he had supra, 71 Cal.2d 337-338 the previ addi of a is forgery information which led to the arrest given suspect ously this as a reliable informant. Although tional him justification regarding where the ar was not so' a as would be the case showing person strong convicted, the an ex rested has been held to answer affidavit contained or fact had taken and the that no or trial preliminary hearing place; planation the would that arrest was made and the had not been dismissed charges (See People the reliability. constitute some substantiation of Cedeno, informant’s Ro [7]; People v. 218 221 Cal.Rptr. Cal.App.2d 246] [32 land, Cal.App.2d [3] Cal.Rptr. 895].) Johnson, the statements
Because of conclusionary regarding to is the showed cause there some whether affidavit question probable above, However, the search 41st the Place location. as pointed that that had observed at loca- stated the confidential informant personally documents, and an certain used in the of false tion materials production a or within week inference be that observations were made can his drawn Under the rule laid down to execution the the of affidavit. days prior above, doubtful or cases marginal “the resolution of Ventresca quoted wan to accorded to . . should be determined the . largely preference respect the the of some doubt exists with rants.” Although adequacy location, are included sufficient facts affidavit as it relates to 41st Place favor finding prob- the doubt in resolving magistrate’s location, well other two 41st as as the able cause with to the Place respect locations. did before the officers not announce their that
Testimony purpose to, is and it the doors to the locations pointed breaking respective open that, result, entered without a the officers complying contended however, evidence, officers section 1531 of Penal Code. There is With entry did notice of their respect give authority purpose. that was location, T. testified he John Corbett Sheriff Deputy 59th Street asked, He was was made at front door. at the side door and that entry said being side door could hear anything “While were at the you you He answered: officers there?” either James other Sergeant ... I could hear “Yes, the front the building sir. from Coming part ” the door.’ With have a warrant. Open them officers. We say, ‘Sheriff’s location, M. Sheriff Richard Place entry respect times; that doorbell and knocked several testified he Frost rang officers, a said, we have moment; that “Sheriff’s wait a he said to someone waited, no door?”; but that he search warrant. Will you please open door; time, officers. have opened one he said second “Sheriff’s We warrant, door?”; search warrant. Will you please open about five after first forced minutes his announcement officers their in. way
Let a writ of mandate court to peremptory directing respondent issue 24, 1970, annul that of its order of portion December cases A-254130 A-261388, which evidence seized at 3130 Street and suppressed 620% 41st Place. J., Mosk, J., Burke, J., C.
Wright, concurred. *11 TOBRINER, J., The issuein this case is whether the order of Dissenting. court the items seized the 41st and superior from Place suppressing Street residences is substantial evidence. A review of record supported by evidence, before superior court demonstrates that the and inferences evidence, derived from that reasonably is sufficient to sustain the superior court’s determination. 1538.5,
Section (i) subdivision endows the defendant with the expressly to obtain a right determination of court as to “the aof superior validity search or added.) seizure de novo on of (Italics the basis the evidence.” task Our is therefore to review the of determination court in superior to find order whether substantial evidence in the record the rulings supports of the 265, (People Superior (1969) court. v. superior Court 71 Cal.2d 210, 146]; 274 v. Cal.Rptr. People Superior [78 455 P.2d Court (1970) 203, 9 Cal.App.3d 21]; People Superior 209 v. Court [88 Cal.Rptr. 476, (1970) 3 771]; v. Bergeron Superior 488 Cal.App.3d Cal.Rptr. [83 (1970) 433, Court 2 711]; People 436 v. Su Cal.App.3d Cal.Rptr. [82 perior (1968) 165, Court 362], 264 166 Cal.Rptr. Clearly Cal.App.2d [70 we do not of a de the role trial court here and a third over perform preside issue.)1 novo of hearing
I now turn to a review the of record before court. evidentiary superior review, such a In we must observe well-established that an principle “all conflicts must be in favor of resolved appellate proceeding respond- language 102, (1965) 1 The of the United v. States Ventresca 380 [13 U.S. 109 689, 684, 741], L.Ed.2d marginal 85 S.Ct. “the that resolution of doubtful cases in this area largely preference should be be determined to to war accorded rants,” fact, appear would a principle state of for trier not a standard of fact, appellate finding review. Once the trier of fact has appel made its of federal finding they late do not courts reverse that unless it to adjudge “clearly erroneous.” (Jackson (1965) 862, 324]; v. United States 353 F.2d 864-865 App.D.C. [122 Wright, 130; 3 (1969) Federal Practice and Procedure p. see United States (5th 1970) 219, 215, 1.) Montos Cir. 421 F.2d fn.
ent, indulged uphold and and inferences all reasonable legitimate (1967) 65 Cal.2d if v. Rose (Leonard of the trial court findings possible.” token, court 916, 604].) this the same 422 P.2d By Cal.Rptr. [55 trial court bound finding inference reject any contrary rea which can on the is the one only unless record such inference contrary (1968) 68 Medical Examiners (See Yakov v. Board be drawn. sonably 553].) Cal.2d 435 P.2d Cal.Rptr. of the 59th Street with for search
We the asserted begin justification office the Los Sheriff’s Angeles James of residence. The affidavit Sergeant Johnson, defendant, in forging who was engaged shows that Stanley address, bought licenses, Germany drivers’ lived at that that selling Market, that Market forged license from Ralph’s Stanley Ralph’s that the record shows was located near Street residence. Finally, the 59th informer, talked to Stanley on one occasion reliable Levy, probably address, could licenses Stanley get told Levy (a) on occa- One could from the affidavit infer Levy. reasonably forms, (b) this transac- blank sion license Levy Stanley supplied record, how- 1969. The tion took on 30 or December November place *12 fact, court inferences, in while the trial ever, compel does not such is (a), (b), that “there drew inference to draw inference stating it declined when no of a date with as to' this occurred.” any sufficiency spelling Street, in 59th engaged The fact that Johnson lived at 3130 West of not to search criminal near that is activity enough justify place, plainly date, If that long his residence. we add the fact at some uncertain possibly at the affidavit, license blanks 59th before the date of the received Levy address, inference Street we have an additional fact possible supporting search, and that blanks month saw those Levy during preceding But the trial that the blanks on the 59th Street premises. were still perhaps inferences, and insist reasonably could draw those court to upon refuse to the search. measure of greater specificity location, we find sub- again now to the search of the 41st Place Turning court’s This search rested stantial evidence to support finding. superior an unnamed and undescribed on information to James by given Sergeant was John- “Stanley of The information that informant unproven reliability. Street, Los was at West Angeles son aware that his residence 59th moved was under observation law enforcement officers subsequently identification, to false or of his used of all part equipment making vacant. Place, the downstairs being 620 West 41st Los Angeles, upstairs, to were known He location further stated that that residing persons that he observed informant further stated him ‘T.J. The Betty.’ checks, licenses, in the blank blank drivers’ and fluid used operation licenses, Place, 41st Los Angeles.” drivers’ making The must facts that the affidavit contain majority opinion ackowledges informant, show that but asserts “his reliability reliability would to have detailed his ob been established nature appear servations and ad information about the 59th Street by corroborating observe, however, (Ante, 713-714.) dress.” The pp. majority correctly the informant’s statements Johnson are conclusionary regarding Stanley (ante, 713) and that his reference to fluid used in licenses p. making may an constitute which the informant was not render. opinion qualified (Ante, 713.) We are left with the moved p. assertions Johnson Place, “all” live or of his that T.J. and Betty “part equipment” there, and that the informant saw blank checks and licenses. The informant does not tell us no what was moved. He specifically equipment provides surnames when for T.J. and He not state he descriptions does Betty. sum, saw affidavit, the blank checks and is licenses. His not the precise and detailed (Cf. Draper account of a careful States observer. United (1959) 358 329].) U.S. 307 L.Ed.2d 79 S.Ct. corroboration,
As for all the informant said about the Street is address knew the were that address and police watching moved elsewhere; all or of his part record contains nothing equipment to corroborate either statement. Nor there corroboration for the in- formant’s assertions the 41st Place location. respecting
The affidavit averred that the informant had informa- previously given tion which led arrest of a The affidavit not as- does forgery suspect. *13 convicted, sert that the had been the suspect or that information supplied had been verified in any other fashion. the fact the informant Certainly had once with data of supplied police uncertain does not reliability transform him into witness of established reliability.
The states that majority opinion “there is whether the some question affidavit showed (ante, cause to search probable Place location” 17), but p. concludes that doubtful or should be resolved cases marginal of favor the warrant. This upholding conclusion mistakes the function of an court in Code sec- appellate determination under Penal reviewing tion 1538.5. Since findings of the court must be if upheld superior evidence, substantial all reasonable supported inferences including which can be drawn in of those doubtful findings, support marginal cases are not resolved for or are resolved against warrant—they of the determination of court. superior favor
I submit that the distorts the role of this court hold- opinion majority court, fact despite that it should reverse superior ruling
ing of such evidence. The result substantial holding supported court our will be to an overburdened of function misconception plunge evidence—a twist- the task based substantial into of upsetting rulings upon tri- decisions, the judicial the statute and the of synchronization of ing bunals. search that the affidavit insufficient to clearly
I conclude was the 59th Street residence is somewhat 41st Place The search of location. but, review closer, under in accord with the accepted principles appellate de- 1538.5, favor I would resolve both issues in of affirming section seized at those the evidence court to superior termination suppress locations.
Peters, Sullivan, J., J., and concurred. Crowder of real in interest
The Johnson parties petition J., Tobriner, J., Peters, was denied March 1972. rehearing Sullivan, granted. should J., were of the opinion petition