Opinion
GARGANO, J.
The question presented in this proceeding is of constitutional dimensions; it is whether evidence adduced through the execution of a search warrant must be suppressed if the officer who procured the warrant intentionally withheld factual information from his supporting affidavit. We have concluded that the integrity of the judicial system must be preserved no matter how painful the result may be, and [524]*524that the evidence must be suppressed if the facts intentionally withheld from the affidavit were material and relevant, to the extent that it can be said, fairly, that the magistrate’s inference-drawing process was interfered with, substantially.
On June 14, 1975, an unknown person or persons broke into the home of Alverez Arceo in Merced, California, and took a six-string Gibson standard electric guitar and a black guitar case. Two days later Arceo reported the burglary to the City of Merced Police Department; Detective Gary Southerland was placed in charge of the investigation.
On June 18, Arceo informed Detective Southerland that a neighbor, Clifton Robinson, offered to return the stolen guitar for $10. Robinson v/as known to Southerland as a person on the “fringes” of crime, and believing that the suspect was involved in the burglary, the detective went to Robinson’s home and interrogated him. The suspect explained that he knew what the stolen guitar looked like because he had seen it in Arceo’s house on several occasions and that he merely told his neighbor that he wanted $10 to find it. Southerland informed Robinson that he could be prosecuted for burglaiy. Upon further interrogation Robinson told Southerland that the guitar was in petitioner’s house; he also produced the stolen guitar case and gave it to the detective. Then Southerland asked Robinson if he knew wheré to obtain some marijuana, and when the suspect said that he did a controlled marijuana buy was arranged.
On the evening of June 18, Detective Southerland and a fellow law enforcement officer, Detective West, drove Robinson to a location on “I” Street in the City of Merced; West watched Robinson walk through an alley toward the. 200 block of 17th Street; then Southerland saw Robinson exit from the end of the alley and approach someone; a few minutes later Robinson returned to West with some marijuana; subsequently, he told the detectives that the person from whom he had purchased the marijuana had 1,300 lids of the contraband in his car.
On June 19, 1975, Detective Southerland obtained a search warrant authorizing the search of petitioner’s house for the guitar, and the police executed the warrant on the same day; the stolen guitar was found in the house. The warrant was issued upon Southerland’s supporting affidavit which read in pertinent part as follows:
[525]*525“That on June 18, 1975, a reliable confidential informant advised the affiant that he, the informant observed on the . . . premises [at 623 West 7th Street in the City of Merced] within the past three days [a Gibson standard six-string electric guitar, yellow and brown in color]. The informant stated that he has observed the guitar in the possession of a A. Arceo in the past and that he is familiar with the guitar and the fact that it belongs to Arceo. Affiant further deposes and states that Arceo reported the guitar taken from his residence on June 14, 1975 and Arceo made a report to the Merced Police Department on June 16, 1975 in which the guitar was reported stolen....
“Affiant further deposes and states that the aforementioned informant is reliable inasmuch as he has provided information and rendered assistance to the affiant that- has led to the obtaining of marijuana during a controlled buy of narcotics.”
On September 18, 1975, an information was filed in the Superior Court of Merced County, charging petitioner with burglary in violation of section 459 of the Penal Code; in a second count petitioner was charged with receiving stolen property in violation of subdivision 1 of section 496 of the Penal Code. He entered pleas of not guilty to both charges. Thereafter, petitioner noticed a -motion pursuant to section 1538.5 of the Penal Code to suppress the evidence obtained in the execution of the search warrant; the basis for the motion was that critical information in the affidavit in support of the search warrant was furnished by the informant, Clifton Robinson, and that Detective Southerland deliberately withheld pertinent factual information pertaining to the informant’s reliability.
On October 24, 1975, after a de novo hearing in respondent court, petitioner’s suppression motion was denied even though the People presented no evidence explaining why the pertinent factual information was omitted from the affidavit. Then petitioner petitioned this court for a writ of mandate to compel the lower court to grant his motion to suppress the evidence. Because we were impressed by the importance of the question presented, we issued an order to show cause.
It now is settled that pursuant to a 1538.5 suppression motion a person charged with a crime founded upon evidence adduced through the execution of a search warrant may go behind the face of the supporting affidavit in an effort to prove that there was no probable cause for the issuance of the warrant. (Theodor v. Superior Court (1972) 8 [526]*526Cal.3d 77, 90-95 [104 Cal.Rptr. 226, 501 P.2d 234].) Therefore, an accused may show that the affidavit contains factual misstatements or material factual omissions which could have had an adverse effect upon the normal inference-drawing process of the magistrate.
If the factual misstatements are not intentional and are the result of reasonable conduct, they are retained in the document and probable cause is tested by what appears upon the face of the affidavit; on the other hand, if the factual misstatements, though not intentional, are the result of negligent conduct, they must be excised and probable cause tested from the remaining information. (Theodor v. Superior Court, supra, 8 Cal.3d 77, 95-101.) Likewise, if material factual omissions are not intentional and are reasonable under the circumstances, the omitted matters are disregarded and the existence of probable cause is tested by whatever appears upon the face of the affidavit; if the failure to include material information, though not intentional, is negligent, the omitted facts are added to the affidavit and probable cause is tested in light of the additional information. (People v. Barger (1974) 40 Cal.App.3d 662, 668-669 [115 Cal.Rptr. 298].)
Left unanswered is the fundamental question which arises when factual misstatements are intentional (Theodor v. Superior Court, supra, 8 Cal.3d 77, 101, fn. 14), or when material information is omitted deliberately (People v. Barger, supra, 40 Cal.App.3d 662, 669).
The Attorney General argues that Detective Southerland acted “negligently” in failing to disclose in the affidavit all of the facts known to him pertaining to his informant’s reliability. He seizes upon the ratio decidendi of the Barger opinion to argue that the detective’s affidavit must be tested with the omitted matter included.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
GARGANO, J.
The question presented in this proceeding is of constitutional dimensions; it is whether evidence adduced through the execution of a search warrant must be suppressed if the officer who procured the warrant intentionally withheld factual information from his supporting affidavit. We have concluded that the integrity of the judicial system must be preserved no matter how painful the result may be, and [524]*524that the evidence must be suppressed if the facts intentionally withheld from the affidavit were material and relevant, to the extent that it can be said, fairly, that the magistrate’s inference-drawing process was interfered with, substantially.
On June 14, 1975, an unknown person or persons broke into the home of Alverez Arceo in Merced, California, and took a six-string Gibson standard electric guitar and a black guitar case. Two days later Arceo reported the burglary to the City of Merced Police Department; Detective Gary Southerland was placed in charge of the investigation.
On June 18, Arceo informed Detective Southerland that a neighbor, Clifton Robinson, offered to return the stolen guitar for $10. Robinson v/as known to Southerland as a person on the “fringes” of crime, and believing that the suspect was involved in the burglary, the detective went to Robinson’s home and interrogated him. The suspect explained that he knew what the stolen guitar looked like because he had seen it in Arceo’s house on several occasions and that he merely told his neighbor that he wanted $10 to find it. Southerland informed Robinson that he could be prosecuted for burglaiy. Upon further interrogation Robinson told Southerland that the guitar was in petitioner’s house; he also produced the stolen guitar case and gave it to the detective. Then Southerland asked Robinson if he knew wheré to obtain some marijuana, and when the suspect said that he did a controlled marijuana buy was arranged.
On the evening of June 18, Detective Southerland and a fellow law enforcement officer, Detective West, drove Robinson to a location on “I” Street in the City of Merced; West watched Robinson walk through an alley toward the. 200 block of 17th Street; then Southerland saw Robinson exit from the end of the alley and approach someone; a few minutes later Robinson returned to West with some marijuana; subsequently, he told the detectives that the person from whom he had purchased the marijuana had 1,300 lids of the contraband in his car.
On June 19, 1975, Detective Southerland obtained a search warrant authorizing the search of petitioner’s house for the guitar, and the police executed the warrant on the same day; the stolen guitar was found in the house. The warrant was issued upon Southerland’s supporting affidavit which read in pertinent part as follows:
[525]*525“That on June 18, 1975, a reliable confidential informant advised the affiant that he, the informant observed on the . . . premises [at 623 West 7th Street in the City of Merced] within the past three days [a Gibson standard six-string electric guitar, yellow and brown in color]. The informant stated that he has observed the guitar in the possession of a A. Arceo in the past and that he is familiar with the guitar and the fact that it belongs to Arceo. Affiant further deposes and states that Arceo reported the guitar taken from his residence on June 14, 1975 and Arceo made a report to the Merced Police Department on June 16, 1975 in which the guitar was reported stolen....
“Affiant further deposes and states that the aforementioned informant is reliable inasmuch as he has provided information and rendered assistance to the affiant that- has led to the obtaining of marijuana during a controlled buy of narcotics.”
On September 18, 1975, an information was filed in the Superior Court of Merced County, charging petitioner with burglary in violation of section 459 of the Penal Code; in a second count petitioner was charged with receiving stolen property in violation of subdivision 1 of section 496 of the Penal Code. He entered pleas of not guilty to both charges. Thereafter, petitioner noticed a -motion pursuant to section 1538.5 of the Penal Code to suppress the evidence obtained in the execution of the search warrant; the basis for the motion was that critical information in the affidavit in support of the search warrant was furnished by the informant, Clifton Robinson, and that Detective Southerland deliberately withheld pertinent factual information pertaining to the informant’s reliability.
On October 24, 1975, after a de novo hearing in respondent court, petitioner’s suppression motion was denied even though the People presented no evidence explaining why the pertinent factual information was omitted from the affidavit. Then petitioner petitioned this court for a writ of mandate to compel the lower court to grant his motion to suppress the evidence. Because we were impressed by the importance of the question presented, we issued an order to show cause.
It now is settled that pursuant to a 1538.5 suppression motion a person charged with a crime founded upon evidence adduced through the execution of a search warrant may go behind the face of the supporting affidavit in an effort to prove that there was no probable cause for the issuance of the warrant. (Theodor v. Superior Court (1972) 8 [526]*526Cal.3d 77, 90-95 [104 Cal.Rptr. 226, 501 P.2d 234].) Therefore, an accused may show that the affidavit contains factual misstatements or material factual omissions which could have had an adverse effect upon the normal inference-drawing process of the magistrate.
If the factual misstatements are not intentional and are the result of reasonable conduct, they are retained in the document and probable cause is tested by what appears upon the face of the affidavit; on the other hand, if the factual misstatements, though not intentional, are the result of negligent conduct, they must be excised and probable cause tested from the remaining information. (Theodor v. Superior Court, supra, 8 Cal.3d 77, 95-101.) Likewise, if material factual omissions are not intentional and are reasonable under the circumstances, the omitted matters are disregarded and the existence of probable cause is tested by whatever appears upon the face of the affidavit; if the failure to include material information, though not intentional, is negligent, the omitted facts are added to the affidavit and probable cause is tested in light of the additional information. (People v. Barger (1974) 40 Cal.App.3d 662, 668-669 [115 Cal.Rptr. 298].)
Left unanswered is the fundamental question which arises when factual misstatements are intentional (Theodor v. Superior Court, supra, 8 Cal.3d 77, 101, fn. 14), or when material information is omitted deliberately (People v. Barger, supra, 40 Cal.App.3d 662, 669).
The Attorney General argues that Detective Southerland acted “negligently” in failing to disclose in the affidavit all of the facts known to him pertaining to his informant’s reliability. He seizes upon the ratio decidendi of the Barger opinion to argue that the detective’s affidavit must be tested with the omitted matter included. The Attorney General concludes that when the omitted information is included, it strengthens the reliability of the informant because the affidavit shows that Robinson not only “provided information and rendered assistance” leading to a controlled buy of the marijuana but his statement to Detective Southerland concerning the whereabouts of the stolen guitar was a declaration against penal interest. (See Skelton v. Superior Court (1969) 1 Cal.3d 144, 154, fn. 7 [81 Cal.Rptr. 613, 460 P.2d 485]; Ming v. Superior Court (1970) 13 Cal.App.3d 206, 214 [91 Cal.Rptr. 477]; see also United States v. Harris (1971) 403 U.S. 573, 583-584 [29 L.Ed.2d 723, 733-734, 91 S.Ct. 2075, 2082].)
[527]*527We are not persuaded by this argument. Detective Southerland knew that his informant was totally unreliable. Robinson was a person bordering upon the “fringes” of crime, and the detective had good cause to suspect that he participated in the theft of Arceo’s guitar; the suspect had offered to return the guitar to its owner for $10, and he had the stolen guitar case in his home. It was for this very reason that Southerland asked the suspect if he knew where to obtain some marijuana and then proceeded to create an aura of reliability by arranging a controlled buy. Yet the detective deliberately omitted all of these pertinent facts from his affidavit. Instead, he worded the affidavit in the maimer to suggest to the unsuspecting reader that the informant was reliable because he provided information leading to a controlled buy of marijuana before he told the detective that he had seen the stolen guitar in petitioner’s house. Clearly, the conduct of the detective transcended negligence.
Furthermore, the factual information Southerland omitted from his affidavit was material, in the sense that it could have negated the magistrate’s finding of probable cause. (Theodor v. Superior Court, supra, 8 Cal.3d 77, 96, fn. 11; see also United States v. Averell (E.D.N.Y. 1969) 296 F.Supp. 1004, 1018; cf. People v. Rummler (1975) 44 Cal.App.3d 638, 643 [118 Cal.Rptr. 872].) Robinson did not.inculpate petitioner until he realized that he was himself a suspect about to be arrested for the burglaiy; his statements were in large part exculpatoiy. Then, the informant agreed .to participate in a controlled buy at Southerland’s suggestion, obviously, to curry favor with the police. It is conceivable that if the detective had disclosed all of the facts in his affidavit, the magistrate might have determined that the informant was unreliable and his information untrustworthy; the magistrate could have believed that Robinson told Southerland that the guitar was in petitioner’s house and then agreed to participate in a controlled buy to shift the blame on someone else until he could rid himself of the stolen instrument.
It is uncontestable that an officer who is seeking a search warrant has a duty to disclose to the magistrate all material facts relevant to the issue of probable cause. (People v. Barger, supra, 40 Cal.App.3d 662, 668; People v. Legard (1970) 12 Cal.App.3d 1006, 1010 [91 Cal.Rptr. 257].) It is also uncontestable that Detective Southerland failed to fulfill his burden and that the failure painted a distorted picture which adversely affected the normal inference-drawing process of the magistrate. In short, the detective’s deliberate omission of material facts resulted in an affidavit that was factually inaccurate (Theodor v. Superior [528]*528Court, supra, 8 Cal.3d 77, 96, fn. 11; see also United States v. Averell, supra, 296 F.Supp. 1004, 1018; cf. People v. Webb (1973) 36 Cal.App.3d 460, 469-471 [111 Cal.Rptr. 524]), and it became the People’s burden “to show proper justification” (Theodor v. Superior Court, supra, 8 Cal.3d 77, 102). The People failed to meet this burden, and we have no alternative but to order the suppression of the evidence.
We summarize briefly. This is not a case where an officer who prepared an affidavit in support of a search warrant intentionally omitted a few immaterial facts which he reasonably believed, in good faith, were irrelevant or inconsequential. Here the record leads, inescapably, to the conclusion that Detective Southerland not only concealed his own distrust of the informant and the information upon which the distrust was grounded but that he deliberately attempted to manufacture reliability through the auspices of a controlled buy and then concealed this important fact as well. To uphold the warrant now merely because it is arguable that the omitted information does not negate, necessarily, the existence of probable cause, would invite gross abuses by over-zealous law enforcement officers; it is precisely this type of police conduct the exclusionary rule was designed to discourage. (See People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513].) If We were to uphold the search warrant under the facts of this case, we would impair, seriously, the independent-judgment-by-a-neutral-magistrate concept visualized by the framers of the Constitution as the safeguard needed to protect the citizens of this nation from unfettered and unreasonable police searches of homes and other sanctuaries. (See Chapman v. United States (1961) 365 U.S. 610, 614-615 [5 L.Ed.2d 828, 832-833, 81 S.Ct. 776, 778-779.)
We do not reach the question as to whether a police officer who receives information from an untested informant may establish reliability on the part of the informant by thereafter arranging a police buy of contraband as was done in this case. Nor do we answer the question as to whether Robinson’s primarily exculpatory statement that the stolen guitar was in petitioner’s house qualifies as a declaration against penal interest. (See People v. Shipe (1975) 49 Cal.App.3d 343, 352-354 [122 Cal.Rptr. 701].) Under the circumstances of this case, the search warrant must be quashed without regard to the effect of the omissions on probable cause.
Let a peremptory writ of mandate issue directing respondent court to suppress the evidence obtained in, the execution of the search warrant in question.