Higgason v. Superior Court

170 Cal. App. 3d 929, 216 Cal. Rptr. 817, 1985 Cal. App. LEXIS 2352

• Court: California Court of Appeal
• Decided: July 31, 1985
• Docket: G001589
• Status: Published

Opinions

Opinion

SONENSHINE, Acting P. J.

Petitioner John David Higgason seeks an extraordinary writ (Pen. Code, § 999a) to compel the dismissal of a felony information charging him with possession of cocaine for the purpose of sale (Health & Saf. Code, § 11351). He argues cocaine seized under the authority of a search warrant should be suppressed.

The search warrant affidavit was executed by an experienced narcotics investigator. He relied on information supplied by three anonymous telephone calls and a followup investigation.

The first telephone call was received by the “We Tip” organization during the early evening on September 21, 1983. The caller said David Higgason was selling cocaine and marijuana from the residence he occupied with his 15-year-old son, Robert, and a 12-year-old daughter. Higgason’s vehicles were described—an older model blue and white Lincoln and a new Toyota or Datsun “4x4” pickup truck. It was said Higgason picked up the drugs in Tijuana, Mexico. Higgason was further “reported to be the manager of the apartment building . . . .” The caller claimed firsthand knowledge of the illegal activity, saying it had been going on for approximately six months.

The next afternoon the affiant received a telephone call in his office at the police department. The caller was a man whose voice sounded like that of a person 50 to 60 years old. The affidavit states this caller gave the same information about marijuana and cocaine dealing as the “We Tip” call of the previous day. The second caller gave the same residence address for Higgason, but said his first name was “John.” The caller also described Higgason as 40 to 41 years old, 5 feet 10 inches to 5 feet 11 inches, medium build and brown hair. The affidavit states, “[t]his is substantially the same description as given to ‘We Tip’ by their anonymous caller.”

The caller claimed Higgason’s teenage son was beginning to sell drugs supplied by his father. There was foot traffic in and out of Higgason’s apartment day and night, particularly on weekends. The caller said Higgason had a heavy iron gate at the top of the stairway to his apartment; a guest had to be “buzzed in” before he or she could reach the front door. According to the affidavit, “[i]t was reported . . . this gate was installed by Higgason to prevent unknown subjects from gaining access to his front door and to keep the police from gaining entry, giving him time to dispose of his drugs.”

This caller denied calling “We Tip” the previous day. He was calling because he did not want young people to get involved in drug selling. He had used marijuana some 10 years before, when it was not “fashionable,” but came to believe drug use was wrong. The caller also said Higgason kept marijuana and cocaine in his bedroom and this informant had seen, within that past week, several baggies of marijuana and bindles of white powder Higgason said was cocaine. The caller described the quantities of these drugs in which Higgason dealt. This informant wished to remain anonymous.

On September 26, 1983, the affiant drove to the apartment described as Higgason’s residence. There was a late model Datsun pickup truck with no license plates in the driveway, as well as a 1972 Lincoln “blue/white in color,” registered to John David Higgason, parked in front. The affiant saw an iron gate at the top of the stairway to apartment No. 3. A Department of Motor Vehicles record check revealed the following description of John David Higgason: male, white, 5 feet 11 inches, 170 pounds, brown hair, brown eyes, born on July 20, 1943. The affiant ran utility checks of the apartment and found them to be in the name of John Higgason.

During the morning of October 3, 1983, the affiant received another telephone call. The caller refused to identify herself, but the affiant believed the caller to be young and female. She said John Higgason and his teenage son were selling marijuana from their residence. Her boyfriend was buying marijuana from Higgason and she was tired of him spending all his money on drugs and “getting ‘loaded’ all the time. She stated she wanted her boyfriend’s connection ‘busted’ and refused to supply anything additional, hanging up.”

Based on this information, the affiant offered an expert opinion there was marijuana and cocaine, as well as other evidence of drug dealing, in the apartment. On October 5, 1983, a magistrate issued the search warrant and the police served it the next day. They recovered the contraband which led to the instant prosecution. Higgason’s motion to quash the search warrant was denied by the preliminary hearing magistrate, as was his motion to set aside the information in superior court (Pen. Code, § 995). Higgason seeks an extraordinary writ to compel dismissal of the charge.

I

Recently, the California Supreme Court concluded article I, section 28, subdivision (d) of the state Constitution, the “Truth-in-Evidence” provision of the Victim’s Bill of Rights (Prop. 8), abrogates “a defendant’s right to object to and suppress evidence seized in violation of the California, but not the federal, Constitution.” (In re Lance W. (1985) 37 Cal.3d 873, 879 [210 Cal.Rptr. 631, 694 P.2d 744].) From the outset, Higgason has argued the search warrant at issue is insufficient even under the relaxed federal constitutional guidelines enunciated by the United States Supreme Court in Illinois v. Gates (1983) 462 U.S. 213 [76 L.Ed.2d 527, 103 S.Ct. 2317]. He is correct.

In Gates, the court decided “it is wiser to abandon the ‘two-pronged test’ established by . . . Aguilar and Spinelli . . . [and] reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. [Citations.] The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . ., including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding] ’ that probable cause existed. [Citation.]” (Illinois v. Gates, supra, 462 U.S. 213, 238 [76 L.Ed.2d 527, 548, 103 S.Ct. 2317, 2332], fn. omitted.)

At the same time, the court took care to indicate flexibility, not laxity, is the proper approach when reviewing a warrant’s sufficiency. “In order to ensure ... an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued. But when we move beyond . . . ‘bare bones’ affidavits . . ., this area simply does not lend itself to a prescribed set of rules, like that which had developed from Spinelli. Instead, [a] flexible, common-sense standard . . . better serves the purposes of the Fourth Amendment’s probable-cause requirement.” (Illinois v. Gates, supra, 462 U.S. 213, 239 [76 L.Ed.2d 527, 549, 103 S.Ct. 2317, 2332-2333].) “Although Gates rejected the rigid application of the Aguilar-Spinelli ‘two-pronged’ test, the factors considered in that test remain highly relevant to the probable cause determination. [Citation.]” (United States v. Estrada (9th Cir. 1984) 733 F.2d 683, 685.)

The facts of Gates and the court’s analysis of them are helpful in resolving the present case. The police received an anonymous letter describing in some detail the manner in which Susan and Lance Gates shuttled drugs between Florida and Illinois. It also predicted such a shuttle on May 3.¹ Surveillance by several law enforcement agencies revealed, as predicted, a trip by the Gates.

The court upheld the search warrant. As the phrase “totality of the circumstances” implies, the issues of “veracity,” “reliability,” and “basis of knowledge” are closely intertwined in making a probable cause determination. (See Illinois v. Gates, supra, 462 U.S. 213, 230 [76 L.Ed.2d 527, 543, 103 S.Ct. 2317, 2327-2328].) “ ‘[Vjeracity,’ ‘reliability,’ and ‘basis of knowledge’ are weighed together with any other evidence that supports the finding of probable cause. They are viewed cumulatively, not as independent links in a chain. [Citation.]” (United States v. Estrada, supra, 733 F.2d 683, 685-686.)

Strong reliance was placed on the corroborative investigation by the police. “Our decisions applying the totality-of-the-circumstances analysis . . . have consistently recognized the value of corroboration of details of an informant’s tip by independent police work. In Jones v. United States [1960] 362 U.S. [257] at 269, we held that an affidavit relying on hearsay ‘is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented.’ We went on to say that even in making a warrantless arrest an officer ‘may rely upon information received through an informant, rather than upon his direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.’ [Citation.]” (Illinois v. Gates, supra, 462 U.S. 213, 241-242 [76 L.Ed.2d 527, 550, 103 S.Ct. 2317, 2334], italics added.)

The court found the law enforcement surveillance of the Gates substantially corroborated the anonymous letter. (See also Draper v. United States (1959) 358 U.S. 307 [3 L.Ed.2d 327, 79 S.Ct. 329].) The corroboration need not itself be criminal to be adequate. “In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of non-criminal acts.” (Illinois v. Gates, supra, 462 U.S. 213, 244, fn. 13 [76 L.Ed.2d 527, 552, 103 S.Ct. 2317, 2335].) At the same time, this passage cannot be divorced from the court’s closing discussion about the specific showing in Gates. “[T]he anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” (Id., at p. 245 [76 L.Ed.2d at p. 552, 103 S.Ct. at p. 2335], italics added.)

The affidavit at issue here is fatally flawed when judged by the standards enunciated in Gates. There are two major deficiencies—all the incriminating evidence emanated from anonymous sources and the police investigation revealed only “easily obtained facts and conditions existing at the time of the tip.”

As Gates demonstrates, anonymous information may ultimately prove reliable, but three anonymous telephone calls, without more, cannot serve to corroborate one another. As the California Supreme Court has noted, quoting Ovalle v. Superior Court (1962) 202 Cal.App.2d 760, 763 [21 Cal.Rptr. 385], “ ‘[t]he quantification of the information does not necessarily improve its quality; the information does not rise above its doubtful source because there is more of it.’” (People v. Fein (1971) 4 Cal.3d 747, 753 [94 Cal.Rptr. 607, 484 P.2d 583].) In the final analysis, it is impossible to show different pieces of anonymous information emanated from independent sources and are truly corroborative of one another. (See ibid.) Granted, the calls here appear to have been made by at least two people, one older and male, the other younger and female. In addition, the male denied making the “We Tip” call. But it nonetheless is impossible to say with reasonable certainty any of these calls was truly independent of either of the others. For this reason, the quantity does not improve the quality.

The perils of reliance on anonymous informants were recently surveyed in People v. Kershaw (1983) 147 Cal.App.3d 750 [195 Cal.Rptr. 311]. “In the case of confidential citizen informers, the mere fact that they make their identity known to the police is, itself, some indication of their honesty. [Citation.] A further indication of reliability is that by identifying themselves to the police they expose themselves to potential liability for malicious prosecution or false reporting of a crime if their information proves to be false. [Citation.] Furthermore, by identifying themselves, these citizen informers afford the police the opportunity to check on matters affecting their credibility such as the existence of a criminal record and whether they had previously supplied information to the police, [f] In contrast, information from anonymous sources is inherently unreliable. Neither the police nor the magistrate knows the motives of the unknown informant. Here the informer may have been motivated by concern for the welfare of a relative as he/she claimed to be [citation] or may have been perpetrating a hoax on the police or seeking revenge on a neighbor [citation]. In addition, the police and the magistrate cannot possibly know how the informant obtained the information [citation]. Nor can they obtain additional information to check out the informer’s credibility. Without knowing the identity of the source, the police cannot even determine whether he or she is a criminal, a drug addict, a ‘stoolie’ or an otherwise inherently unreliable individual. Moreover, where the anonymous information comes over the telephone, as it did here, the police have no opportunity to observe the informer’s demeanor while relating the information. Thus, they are deprived of an important facet to the determination of a witness’ credibility. [Citation.] We note that decisions of California courts and the United States Supreme Court appear to be unanimous in rejecting anonymous tips, standing alone, as the basis for a search warrant. [Citations.]” (Id., at pp. 756-757, fn. omitted.)²

Thus, even under Gates, “an anonymous tip needs corroboration before a search warrant can issue.” (People v. Kershaw, supra, 147 Cal.App.3d 750, 757, fn. 4.) As has also been noted, a citizen who purports to be a victim of a crime, and identifies himself or herself as such, “may expect to be called to testify after an arrest, and may be exposing himself [or herself] to an action for malicious prosecution if he [or she] makes unfounded charges . . . .” (People v. Hogan (1969) 71 Cal.2d 888, 891 [80 Cal.Rptr. 28, 457 P.2d 868].) “And although the passage referring to the anonymous informer is dictum in Hogan it is nevertheless indicative of the Supreme Court’s attitude toward anonymous informers.” (People v. Abbott (1970) 3 Cal.App.3d 966, 971 [84 Cal.Rptr. 40].) “There is no way to determine whether an anonymous informer is a disinterested citizen, a stool pigeon, or even someone involved in the crime. Thus . . . knowledge of the informer’s identity is crucial in determining the reliability of his [or her] information.” (Id., at p. 970.) For all the foregoing reasons, the existence of three anonymous telephone calls does not sufficiently enhance the reliability of the information in any of them.

And the “corroboration” supplied by the independent police investigation in the present case is not the type which passes muster under Gates. The details actually corroborated were “easily obtained facts and [then existing] conditions.” (See Illinois v. Gates, supra, 462 U.S. 213, 245 [76 L.Ed.2d 527, 552, 103 S.Ct. 2317, 2335].) In other words, they were not facts to which any “degree of suspicion” attached. (See id., at p. 244, fn. 13 [76 L.Ed.2d 527, 552, 103 S.Ct. 2317, 2335].)

The police verified petitioner’s physical description, his residence (coupled with the existence of an iron gate)³ and his vehicles. The courts take a dim view of the significance of such pedestrian facts. “The People contend that the informants’ reliability was corroborated by the fact that certain information furnished by them proved to be correct, such as defendant’s first name, his presence at the apartment, and the presence of the blue Mustang. However, in order for corroboration to be adequate, it must pertain to defendant’s alleged criminal activity; accuracy of information regarding the suspect generally is insufficient. [Citations.]” (People v. Fein, supra, 4 Cal.3d 747, 752-753.) Gates does not challenge this reasoning. The Gates court makes much of the fact a prediction of future activity was corroborated by law enforcement surveillance. (See also Draper v. United States, supra, 358 U.S. 307.) There is nothing of the sort here. The facts corroborated by independent police work are not suspicious as that term is used in Gates.

People v. Kershaw, supra, 147 Cal.App.3d 750 provides a useful post-Gates contrast. An anonymous telephone call triggered a police investigation. Surveillance revealed suspicious foot traffic in and out of Kershaw’s residence. (People v. Kershaw, supra, at pp. 759-760.)⁴ He had also been arrested the previous year for possession of cocaine for sale. (Id., at p. 760.) The affidavit thus demonstrated reliance on the anonymous informant was reasonable.⁵

Finding the present affidavit sufficient would endorse the procurement of search warrants based entirely upon anonymous sources. For the reasons succinctly catalogued in People v. Kershaw, supra, 147 Cal.App.3d 750, 756-757, anonymous informants and their information do not command such respect. Furthermore, the independent police work here did not corroborate any suspicious activity.

The totality of the circumstances presented by this affidavit do not show “a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates, supra, 462 U.S. 213, 238 [76 L.Ed.2d 527, 548, 103 S.Ct. 2317, 2332].) “[T]he magistrate had [no] ‘substantial basis for . . . concluding]’ that probable cause existed. [Citation.]” (Ibid.)6

II

As a fallback position, the People argue the good faith exception to the exclusionary rule recognized in United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405]. Even assuming the search warrant is not supported by probable cause, the prosecution contends the evidence seized should not be suppressed.⁷

In light of the holding in In re Lance W., supra, 37 Cal.3d 873, 879, Leon is to be applied in California. Recently, another division of this court held Leon was retroactive. (People v. Helmquist (1984) 161 Cal.App.3d 609 [207 Cal.Rptr. 718]; see generally People v. Guerra (1984) 37 Cal.3d 385 [208 Cal.Rptr. 162, 690 P.2d 635].) Even so, there is a serious obstacle to the use of Leon here: The People did not argue the good faith exception at the preliminary hearing or the section 995 hearing.

Ordinarily, the People may not argue a new theory supporting the admissibility of evidence for the first time before an appellate court. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640-641 [108 Cal.Rptr. 585, 511 P.2d 33]; see also People v. Shuey (1975) 13 Cal.3d 835, 846-847 [120 Cal.Rptr. 83, 533 P.2d 211]; Reinert v. Superior Court (1969) 2 Cal.App.3d 36, 42 [82 Cal.Rptr. 263].) The United States Supreme Court has also endorsed this restriction. (See Giordenello v. United States (1958) 357 U.S. 480, 488 [2 L.Ed.2d 1503, 1510-1511, 78 S.Ct. 1245].) The rule has important practical underpinnings, noted by our Supreme Court in People v. Miller (1972) 7 Cal.3d 219 [101 Cal.Rptr. 860, 496 P.2d 1228]: “[T]he People cannot introduce on appeal a new theory to justify the search, in view of the defendant’s lack of opportunity to present evidence in response to it, to cross-examine the prosecuting witnesses on testimony supporting the new theory, or to argue before the trier of fact the theory’s invalidity or inapplicability. [Citations.]” (Id., at p. 227.)⁸ There is a limited exception to this rule: “If a question of law only is presented on the facts appearing in the record, the change in theory may be permitted by the reviewing court. [Citation.]” (People v. Carr (1974) 43 Cal.App.3d 441, 445 [117 Cal.Rptr. 714].)

Thus the People may rely on the good faith exception delineated in Leon only if a pure question of law is presented. The court in Leon “conclude[d] that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” (Id., at p. 918 [82 L.Ed.2d at p. 695, 104 S.Ct. at p. 3419], fn. omitted.) This strongly suggests the good faith exception depends upon ascertaining and evaluating facts about the police investigation.

Leon's discussion of the purposes of the exclusionary rule conveys the same message. “ ‘The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official conduct was pursued in complete good faith, however, the deterrence rationale loses much of its force. ’

“ ‘If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ [Citations.] In short, where the officer’s conduct is objectively reasonable, ‘excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that ... the officer is acting as a reasonable officer would and should act under the circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him [or her] less willing to do his duty.’ [Citation.]” (Id., at pp. 919-920 [82 L.Ed.2d at pp. 696-691, 104 S.Ct. at pp. 3419-3420], fn. omitted.)

In enumerating the instances where the exclusionary rule is appropriately applied, the court again demonstrated the importance of the facts surrounding the investigation. “We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms. ‘[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness,’ [citation], for ‘a warrant issued by a magistrate normally suffices to establish’ that a law enforcement officer has ‘acted in good faith in conducting the search.’ [Citation.] Nevertheless, the officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he [or she] issues must be objectively reasonable [citation], and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.

“Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his [or her] reckless disregard of the truth. [Citation.] The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his [or her] judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, (1979); in such circumstances, no reasonably well-trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. ’ [Citations.] Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid. [Citation.]” (United States v. Leon, supra, 468 U.S. 897, 923 [82 L.Ed.2d 677, 698-699, 104 S.Ct. 3405, 3421-3422], fns. omitted, italics added.)⁹

Thus, application of the good faith exception requires a factual presentation of the officers’ activity which is then measured against a standard of objective reasonableness. (Cf. People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961]; People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621].) The conduct is measured by a standard of objective reasonableness, but a court still must possess sufficient information about the conduct to make such a judgment.

Granted, in some cases where the good faith exception was not specifically litigated in the trial court, an appellate court may still be able to conclude “[t]he officers . . . took every step that could reasonably be expected of them,” to use the court’s phrase from Leon's companion case, Massachusetts v. Sheppard (1984) 468 U.S. 981, 989 [82 L.Ed.2d 737, 744, 104 S.Ct. 3424, 3429]. This is not such a case.

Application of the good faith exception will customarily require presentation of facts about the manner in which the officers pursued their investigation. The Leon majority says as much. “As we have already suggested, the good-faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time. ” (Id., at p. 924 [82 L.Ed.2d at p. 699, 104 S.Ct. at p. 3422]; see also People v. Howard (1984) 162 Cal.App.3d 8, 20 [208 Cal.Rptr. 353].)¹⁰

The present record does not permit a determination that the officers’ conduct was objectively reasonable. Put another way, application of Leon to this case does not present a pure issue of law. Other than the bare statement in the search warrant affidavit, nothing is known about how the police pursued the investigation in this case.

Too much is left to speculation. People v. Kershaw, supra, 147 Cal.App.3d 750, again provides a useful contrast. There, too, the police received an anonymous report of narcotics activity. But those officers conducted a surveillance, confirming unusual foot traffic at the suspect residence. A record check also revealed a recent narcotics arrest of the suspect. Here, on the other hand, there is no evidence the police attempted to verify the anonymous report of unusual foot traffic. Likewise, it is not known whether the police attempted to discover if Higgason had a criminal record.

In re Lance W., supra, 37 Cal.3d 873, does not undermine this conclusion. There the People did argue the dispositive issues, lack of standing and the abolition of the vicarious exclusionary rule by Proposition 8, before the trial court. It sustained the People’s position, and was ultimately affirmed by the California Supreme Court. The United States Supreme Court has held this very issue, lack of standing to assert Fourth Amendment claims, may not be asserted by the prosecution for the first time on appeal. (Steagald v. United States (1981) 451 U.S. 204, 208-211 [68 L.Ed.2d 38, 43-45, 101 S.Ct. 1642].) It does not appear Leon upsets settled rules of appellate procedure in addition to overhauling Fourth Amendment law.

The People may not urge the application of Leon for the first time on review via this writ proceeding. The fact Leon is retroactive (see People v. MacAvoy (1984) 162 Cal.App.3d 746 [209 Cal.Rptr. 34]; People v. Howard, supra, 162 Cal.App.3d 8; People v. Helmquist, supra, 161 Cal.App.3d 609), cannot serve to abrogate the firmly established rule restricting the presentation of new theories on appeal to justify a search.¹¹

Nor may the case be remanded for supplementary proceedings. The matter comes here via a petition for an extraordinary writ after the denial of a section 995 motion. Review is restricted to “evidence actually offered and received by the magistrate . . . .” (Buck v. Superior Court (1966) 245 [54 Cal.Rptr. 282].) The record may not be supplemented by additional evidence. (Ibid.; see also Burnett v. Superior Court (1974) 12 Cal.3d 865 [117 Cal.Rptr. 556, 528 P.2d 372].)

The alternative writ is discharged. Let a peremptory writ of prohibition issue restraining the superior court from taking any further action in the case except to grant petitioner’s motion to set aside the information. When this opinion becomes final the stay is dissolved.

1 The police received the letter on May 3.

2 The People argue, in essence, the fact there are three anonymous telephone calls reduces the dangers catalogued in Kershaw. That is simply not the case; the concerns created by anonymity are present here with respect to each call.

3 The People make much of the presence of an iron gate. Many security conscious citizens, including burglary prone homeowners, will be surprised to learn this protective measure suggests contraband is secreted in their home. The presence of the gate in no way corroborates the anonymous information about the significance of the gate. This argument is seductive but circular.

4 One of the anonymous callers in the present case reported suspicious foot traffic. The affidavit reveals no attempt to confirm this report by surveillance. It is significant the police here, unlike those in Kershaw, failed to verify this item of information.

5 Massachusetts v. Upton (1984) 466 U.S. 727 [80 L.Ed.2d 721, 104 S.Ct. 2085] is also distinguishable. In Upton, a telephone caller wanted to remain anonymous, but th727e police officer recognized her voice and she admitted her identity. The court also noted, “[e]xamined in light of Gates, Lt. Beland’s affidavit provides a substantial basis for the issuance of the warrant. No single piece of evidence in it is conclusive. But the pieces fit neatly together and, so viewed, support the magistrate’s determination that there was ‘a fair probability that contraband or evidence of crime’ would be found in Upton’s motor home. [Citation.] The informant claimed to have seen the stolen goods and gave a description of them which tallied with the items taken in recent burglaries. She knew of the raid on the motel room—which produced evidence connected to those burglaries—and that the room had been reserved by Kelleher. She explained the connection between Kelleher’s motel room and the stolen goods in Upton’s motor home. And she provided a motive both for her attempt at anonymity—fear of Upton’s retaliation—and for furnishing the information—her recent breakup with Upton and her desire ‘to burn him.’ ” (Massachusetts v. Upton, supra, 466 U.S. 727, 733-734 [80 L.Ed.2d 721, 727-728, 104 S.Ct. 2085, 2088].) As Gates notes, each case must be decided on its own facts. There is a crucial distinction between the present case and Upton on the issue of anonymity. Further, the pieces do not fit neatly together here in a manner supporting the magistrate’s determination. The informant in Upton knew things about an ongoing police investigation which could obviously be verified. Here, by contrast, the police possessed no such investigative information against which the informants’ veracity could be tested.

6 For the foregoing reasons, the affidavit would not pass muster under article I, section 13, of the California Constitution (see People v. Campa (1984) 36 Cal.3d 870, 880 [206 Cal.Rptr. 114, 686 P.2d 634]), were its sufficiency under state constitutional standards still an issue.

7 Resolution of the issue of probable cause was necessary in order to resolve the issue of Leon's application. Consequently, it was not possible to follow the court’s suggestion in Leon that it will sometimes be possible to reach the good faith issue first. (See id., 468 U.S. 897, 925 [82 L.Ed.2d 677, 700, 104 S.Ct. 3405, 3422-3423].)

8 While Leon was not decided until approximately one month after the section 995 motion was denied, the good faith exception was not unknown prior to Leon. It had been discussed but not reached in Gates and adopted by one federal circuit. (United States v. Williams (5th Cir. 1980) (en banc) 622 F.2d 830, cert. den. 449 U.S. 1127 [67 L.Ed.2d 114, 101 S.Ct. 946].) In any event, there is no apparent exception to the rule preventing the People from arguing a new theory on appeal solely based on the recency of a particular decision.

9 As this passage suggests, even the Supreme Court in Leon recognized the interposition of a magistrate in the search process does not cure all Fourth Amendment defects. “Deference to the magistrate ... is not boundless. . . . [f] . . . [RJeviewing courts will not defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause. ’ [Citation.] ‘Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his [or her] action cannot be a mere ratification of the bare conclusions of others.’ [Citations.] Even if the warrant application was supported by more than a ‘bare bones’ affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances, [citation] . . . .” (Id., at pp. 914-915 [82 L.Ed.2d at pp. 693-694, 104 S.Ct. at pp. 3417-3418], fn. omitted.)

10 Notwithstanding the well recognized problems with information from anonymous sources, the mere fact of anonymity does not automatically render the motives of the informant fatally suspect, as Justice Wallin suggests. Any informant may have motives for informing borne of a desire to wreak havoc with an accused’s life. This is but one aspect of reliability that is an ever present consideration in evaluating accusations of criminal activity.

11 Similarly, the “Truth-in-Evidence” provision (Cal. Const., art. I, § 28, subd. (d)) of Proposition 8 does not abrogate the rule either. While it has the effect of requiring a court to apply federal constitutional standards for the exclusion of evidence where state constitutional standards are more restrictive, we believe that is appropriate for the first time on appellate review only when a pure issue of law is involved. To hold otherwise would not only upset well settled rules of appellate procedure, it would also raise serious due process questions. The court in Helmquist suggests the good faith exception recognized in Leon applies to cases not final on appeal. (People v. Helmquist, supra, 161 Cal.App.3d 609, 616.) That statement cannot properly be construed here to say the People may argue the good faith exception under the present circumstances despite not raising the issue below.