Opinion
SILLS, P. J.
The District Attorney of Orange County appeals from two different orders of the Orange County Superior Court in the above-titled case. In one of these two consolidated cases, the appeal is from an order which dismissed nine counts in the indictment charging violations of Penal Code section 12020, subdivision (a)(2), possession of large-capacity magazines.
This dismissal was effected by the court’s “merging” 10 counts of violating section 12020 into one count, in direct contradiction to the statutory authority of section 12001, subdivision
(l).
The district attorney appeals from that portion of the order dismissing the nine counts of illegal possession of a large-capacity magazine, which is statutorily defined as “any ammunition feeding device with the capacity to accept more than 10 rounds . . . .” (See § 12020, subds. (a)(2) & (c)(25).) As the multiple counts were specifically authorized by statute, the district attorney contends the court’s action was in excess of jurisdiction. We agree and therefore reverse the order.
In the second of the consolidated cases, the district attorney appeals from the trial court’s granting a motion to suppress the firearms and ammunition— including the large-capacity magazines which were the object of the nine dismissed counts in the previous order—seized pursuant to a search warrant from Andy Sun’s home and business. In granting the suppression motion, and its consequent dismissal of the indictment, the trial court rested on the application of a federal statute. That statute continues to “romp[] through this case like the proverbial 800-pound gorilla”
(Gates
v.
Municipal Court
(1992) 9 Cal.App.4th 45, 53 [11 Cal.Rptr.2d 439]), notwithstanding the prosecution’s efforts to deflect attention from it. We affirm the order.
I
FACTS
Eric Maher, an agent from the state Department of Justice, submitted an affidavit to a magistrate and obtained a search warrant for Sun’s home and business. The information in the affidavit identified Maher as having specialized training and experience in drag detection, investigation and seizure, as
well as search warrant affidavit development and writing. Maher related in the affidavit that he received information from another state agent, Cris Abad, that Rick Hoffpauer, a federal inspector from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, had inspected the equipment in Sun’s possession as permitted under Sun’s federal firearms license. In that inspection, Hoffpauer reviewed Sun’s inventory documents, which were required of him for his license,, and noticed he had listed approximately 150 Omega SPS12 assault shotguns. He requested to view them, and Sun showed him 20 of them, although Hoffpauer observed there were.other like containers. He then determined Sun was not licensed to possess or import assault weapons under California law; furthermore, Sun had not registered them under state law, and thus was in violation of section 12280. A neutral magistrate issued the warrant.
Agents of the California Department of Justice executed the search warrant on Sun’s home and business. The state agents discovered an amazingly large inventory of assault weapons which Sun intended to sell,
as well as 23,000 “large-capacity magazine[s].” (§ 12020, subd. ■ (a)(2).)
Due to the discovery of these items, the grand jury issued an indictment charging Sun with 10. counts of violating section 12020, subdivision (a)(2), based on the large-capacity ammunition magazines, and 43 counts of violating section 12280, subdivision (b), based on the assault weapons.
DISCUSSION
A. Motion to “Merge”
The defense raised a motion to “consolidate” the 10 counts into a single count, resulting in the dismissal of the remaining nine counts. It based its request on the trial court’s inherent power under section 954
to control the
manner in which charges are tried. However, it did not request
severance
of the charges, the remedy for misjoinder under section 954. (Cf. § 954 [“the court ... in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. . . .”].)
Section 12001, subdivision (l) expressly grants the authority to the Peo'ple to file a separate count for
each
of the large-capacity magazines fitting the statutory description of that item. It provides that “[f]or purposes of Section 12020, a violation of that section as to
each
firearm, Weapon,
or device
enumerated therein shall constitute a distinct and separate offense.” (Italics added.) Without explanation, the court disregarded this statutory provision, although the People specifically argued that-it applied to the 10 counts of possessing large-capacity magazines. Instead, the court agreed with the defense that no more than
one
count could be charged, irrespective of the numbers of the contraband seized.
Sun responds that the trial court must have implicitly exercised its discretion in granting the consolidation motion, which we must review for abuse of discretion. (See
People v. Ochoa
(1998) 19 Cal.4th 353, 408 [79 Cal.Rptr.2d 408, 966 P.2d 442].) He argues that the decision must be upheld because there was a rational basis for the consolidation—i.e., all items were .possessed at one time and in one place, thus implying only one offense, as held in
People
v.
Kirk
(1989) 211 Cal.App.3d 58 [259 Cal.Rptr. 44] and
People v. Rowland
(1999) 75 Cal.App.4th 61 [88 Cal.Rptr.2d 900].
However, the
Kirk
case occurred
before
passage of section 12001, subdivision (Z), which was enacted in 1994 specifically “to overrule the holding in People v. Kirk,” according to the legislative history for the statute. (See Stats. 1994 (1993-1994 1st Ex. Sess.) ch. 32, § 5, p. 8657; see also
People v. Rowland, supra,
75 Cal.App.4th at p. 65.) The
Rowland
decision occurred after the passage of section 12001, subdivision
(l),
but involved a statute— section 4502—not listed in subdivision (k) or (/). Thus, both cases are inapplicable to the situation before us due to statutory abrogation.
Moreover,
the approach has not been followed in another instance in which the word “any” was used, yet lenity was not granted, permitting multiple counts to be charged and found. (See
People v. DeGuzman
(2003) 113 Cal.App.4th 538, 545-548 [6 Cal.Rptr.3d 739]
[Kirk
holding rejected in prosecution for explosive possession offenses under §§ 12303.2 and 12303.3].)
Moreover, Sun’s response fails to understand the definition of consolidation, as that term is used in section 954. “Consolidation of accusatory pleadings,” as used in section 954, means that multiple counts, charged originally in separate pleadings, are
tried
together (§ 954), not that multiple counts are
merged
into one. Merger is a separate doctrine, and occurs only when multiple offenses are found to be necessarily included in one another. (See
People v. Ortega
(1998) 19 Cal.4th 686, 692-693 [80 Cal.Rptr.2d 489, 968 P.2d 48].) In such a case, section
654—not
section 954—permits dismissal of those counts charging the necessarily included offenses. However, by definition, this occurs only after conviction as section 954 specifically provides “[a]n accusatory pleading may charge . . . different statements of the same offense . . . [and] the defendant may be convicted of any number of the offenses charged,” notwithstanding one may be included within the other.
(Ortega, supra,
19 Cal.4th at p. 693 [“The necessarily included offense rule is used to determine whether a defendant improperly
has been
convicted of both a greater offense and an included offense, or properly has been convicted of separate offenses.” (Italics added.)].)
The court’s order dismissing nine counts of the indictment must be reversed.
B. Suppression Ruling
The trial court also granted the defense motion to suppress all evidence seized under the warrant. It stated in its ruling that it found “suppression of the evidence obtained by the State of California is required by 26 U.S.C. section 5848. The search was based on evidence obtained from the defendant’s compliance with the National Firearms Act.” The district attorney appeals from this order, contending there was nothing in the affidavit lifted from any records Sun filed or kept as required by the National Firearms Act (NFA); and, even if there was such evidence, there is no authority that a warrant issued by a magistrate should be suppressed notwithstanding any arguable violation of title 26 United States Code section 5848(a). Lastly, the
district attorney contends, the fruits of an executed search warrant are admissible under the “good faith” exception of
United States v. Leon
(1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405], irrespective of errors made prior to its issuance. Because suppression of evidence is only possible if
mandated
by federal law (see Cal. Const., art. I, § 28, subd. (d)), suppression was, he argues, unauthorized in this situation.
We review rulings on motions brought under section 1538.5 by the standard established in
People
v.
Lawler
(1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621]: “In [a suppression motion] the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. . . . The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution. . . . [I]f such review is . . . sought, it becomes the ultimate responsibility of the appellate court to measure the facts,
as found by the trier,
against the constitutional standard of reasonableness.” (Italics added; see also
People
v.
Manning
(1973) 33 Cal.App.3d 586, 598-599 [109 Cal.Rptr. 531].)
The affidavit for the search warrant for Sun’s home and business related that the federal inspector
examined
Sun’s records and
then determined
that a series of assault weapons were listed on those documents, weapons that the inspector knew were prohibited by California law but not by federal law. He then confirmed the presence of 20 of those assault shotguns in Sun’s inventory before contacting the state authorities with his observations and information. The language in the affidavit indicates that the inspection and observation of those assault weapons were triggered by the records provided to the federal inspector by Sun. Thus, the records that Sun provided to the inspector were the exclusive source of information from which the entire investigation grew.
Title 26 United States Code section 5848(a) provides: “No information or evidence obtained from an application, registration, or records required to be submitted or retained by a natural person in order to comply with any provision of this chapter or regulations issued thereunder, shall, except as provided in subsection (b) of this section, be used, directly or indirectly, as evidence against that person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence.”
Subsection (b) of 26 United States Code section 5848 provides the sole exception to that prohibition: “Subsection (a) of this section shall not preclude the use of any such information or evidence in a prosecution or other action under any applicable provision of law
with respect to the furnishing of false
information.” (Italics added.)
The district attorney contends that this privilege or immunity grant applies only to evidence proffered in a criminal
trial,
not to information alleged in a search warrant affidavit or any nontrial aspect of a criminal prosecution. He relies on two cases from the federal district court in Michigan to support his position:
U.S.
v.
Wolfe
(E.D.Mich. 1999) 32 F.Supp.2d 945 and
U.S. v. Hunter
(E.D.Mich. 1994) 843 F.Supp. 235. He acknowledges these opinions are not binding on our court, but argues they provide compellingly persuasive support. We disagree: Not only is there higher authority contradicting that interpretation, but both cases are clearly distinguished—legally and factually—from the present situation. .
■ In
Wolfe,
a state-issued search warrant was executed on Wolfe] s home, and the officers found marijuana, marijuana-cultivation equipment, and a stash of illegal firearms. The
federal
authorities proceeded to obtain an indictment against Wolfe for these violations. In an original motion to suppress, the federal court denied the motion, which was then amended and again denied by the federal court. In its initial ruling, the federal court found that the warrant was supported by adequate probable cause and, even if not, the officers reasonably relied in good faith on the magistrate’s assessment. Thus, suppression was unjustified.
(U.S. v. Wolfe, supra,
32 F.Supp.2d at pp. 948-949.)
Subsequent to the initial search, the state officers obtained a second search warrant—whose affidavit included a reference to Wolfe holding a federal firearms license—and reentered the premises to search for tax records. Those records were then turned over to the federal prosecuting authorities by the state officers. Wolfe brought another suppression motion, contending the reference to his federal firearms license in the affidavit breached the confidentiality of tax returns provision in the NFA. (Cf. 26 U.S.C. § 6103.) This motion was denied because suppression was not an appropriate remedy for a breach of confidentiality under that statute; moreover, there was no evidence that mere status as a licensee constituted tax return information under this confidentiality provision.
(U.S.
v.
Wolfe, supra,
3.2 F.Supp.2d at pp.- 951-953.)
In response, Wolfe contended the privilege or immunity statute of 26 United States Code section 5848 applied to his situation, thereby taking his case out of the exclusive application of the confidentiality statute. The court relied on an earlier
opinion-—U.S. v. Hunter, supra,
843 F.Supp. 235—and reiterated its
interpretation of the privilege statute to be limited to evidence admitted in a criminal trial. Relying on the
Hunter
opinion, the federal court held that information mandatorily disclosed under the NFA by a licensee can be used for
investigative
purposes.
(U.S. v. Wolfe, supra,
32 F.Supp.2d at p. 953.) It is for this point that the district attorney invokes both the
Hunter
and
Wolfe
opinions, arguing Sun’s records were only used for investigative purposes and thus the privilege statute of section 5848 was inapplicable.
Higher authority appears to deal with the matter quite differently. In
United States v. Freed
(1971) 401 U.S. 601 [28 L.Ed.2d 356, 91 S.Ct. 1112], the United States Supreme Court noted that it had previously found certain provisions of the NFA to violate the Fifth Amendment. (See
Haynes
v.
United States
(1968) 390 U.S. 85, 96-100 [19 L.Ed.2d 923, 88 S.Ct. 722, 1968-1 C.B. 615].) In response to the
Haynes
opinion, Congress addressed the fatal errors, revising the NFA by specifically including the privilege or immunity provision of 26 United States Code section 5848(a). As noted in
Freed,
“The scope of the .privilege extends, of course, to the
hazards
of prosecution under state law for the same or similar offenses.”
(Freed, supra,
401 U.S. at p. 604, italics added.)
In
Freed,
a California resident and his wife were indicted for possessing “unregistered” hand grenades. Registration required information be divulged and certain tax burdens be met before transfer could be done under the revised NFA. Freed responded to the indictment, contending his Fifth Amendment rights were violated as established in
Haynes,
and the NFA as interpreted by
Haynes
required evidence of knowledge, which his indictment failed to allege. Justice Douglas rejected the contentions, emphasizing that Congress had specifically created the privilege provision of 26 United States Code section 5848 in response to the
Haynes
opinion and had thereby cured the Fifth Amendment problem.
(United States
v.
Freed, supra,
401 U.S. at p. 605.) Moreover, the NFA required no scienter element.
(United States v. Freed,
at p. 607.) In so ruling, the Supreme Court rested its conclusion on the Solicitor General’s “represent[ation]s to us that
no information filed
is as a matter of practice disclosed to
any
law enforcement authority,” and that “the information in the hands of Internal Revenue Service, as a matter of practice, is not available to state or other federal authorities and, as a matter of law, cannot be used as evidence in a criminal proceeding with respect to a prior or concurrent violation of law.”
(Id.
at pp. 604-606, italics added.) It emphasized this point in assessing the self-incriminatory potential of the statute to be “ ‘merely trifling or imaginary.’ ”
(Id.
at p. 606.) It found a lack of self-incrimination potential because of “the unavailability of the registration data, as a matter of administration, to local, state, and other federal agencies. . . . Since the state and other federal agencies
never see the information,
[Freed] is left in the same, position as if he had not given it, but ‘had claimed his privilege in the absence of a . . . grant of immunity.’ [Citation.] This,
combined with the protection against use to prove prior or concurrent offenses, satisfies the Fifth Amendment requirements respecting self-incrimination.”
(Ibid.,
citations omitted, italics added; see also
Gonzales
v.
Superior Court
(1980) 117 Cal.App.3d 57, 67-68 [178 Cal.Rptr. 358].7)
Such strong assurances that the Fifth Amendment is not violated are entirely undermined if, as the district attorney encourages us, we hold the provisions of the privilege statute are to be limited to actual trial evidence and do not apply to information that triggers a prosecution. Other federal jurisdictions have not followed such a restricted interpretation of the privilege or immunity provision. In
United States v. Bright
(5th Cir. 1973) 471 F.2d 723, not only was the provision understood to bar the use of any registration information to revoke parole, but the circuit court relied on the United States Attorney’s representations that “no information obtained from Bright’s registration of the shotgun would be available for use” before it concluded Bright’s Fifth Amendment rights had not been threatened by the NFA requirements. (471 F.2d at p. 727.)
The district attorney’s interpretation of the privilege or immunity provision, moreover, overtly contradicts the language of the statute itself. “No
information
or evidence obtained from . . . records required to be . . . retained by a natural person in order to comply with any provision of [the NFA] . . . shall ... be used, directly
or indirectly,
as evidence against that person in a criminal proceeding . . . .” (26 U.S.C. § 5848, italics added.) Had Congress intended that a document submitted by a person for either licensing or registration purposes under the NFA was barred only from being admitted in a
trial
against that person, it could have easily said so. Instead, Congress specifically spelled out that it was not just
evidence
that was privileged, but any
information
used either
directly or indirectly
as evidence in a criminal proceeding. No ambiguity exists in the language of the statute; thus, no interpretation needs to be crafted to explain or eliminate that ambiguity. (See Code Civ. Proc., § 1858 [“In the construction of a statute or instrument, the . . . Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted,
or to omit what has been
inserted; ... a construction is, if possible, to be adopted as will give effect to all.” (Italics added.)].)
7
Gonzales v. Superior Court, supra,
117 Cal.App.3d 57, involved interrogatories supplied to a series of alleged fathers of minor children whose mothers received aid via Aid to Families with Dependent Children funding. The District Attorney of Orange County filed civil paternity actions to establish the patémity of these children as a step to procure the fathers’ reimbursement payments to the county for these funds. The interrogatories attempted to obtain the fathers’ admissions to allegations of paternity.
(Id.
at pp. 59-61.)
Moreover, the
Wolfe
opinion relied exclusively and entirely on selected language from
U.S. v. Hunter, supra,
843 F.Supp. 235, as the authority for its unique holding. The earlier
Hunter
opinion stated that section “5848(a) bar[red] the use of such records
as
evidence.”
{Id.
at p. 252, original italics.) However, it did not mean that to be the
exclusive
application of the privilege statute. The
Hunter
court went on to say that it “read[] this provision to prohibit the introduction of protected records in a trial; it does not appear to proscribe the Government’s utilization of the records so far
in this case
in order to investigate and indict Defendants.” {Ibid., italics added.) The inapplicability of the privilege was not due to the
investigatory use
of the information; it was due to- the exception to the privilege found in 26 United States Code section 5848(6). The statutory exception to the privilege applied to
subsequent
offenses relating to false information. Hunter and his colleagues were charged with conspiracy because they submitted allegedly
false
information in their applications to transfer machineguns and machinegun conversion kits. (843 F.Supp. at pp. 238-239.) Additionally, they allegedly submitted the falsified applications before engaging in the alleged overt acts in furtherance of the. conspiracy for which they were charged. Thus, the statutory exception found in 26 United States Code section 5848(b) applied, and Hunter could not invoke the privilege and immunity provisions of 26 United States Code section-5848(a).
The
Hunter
court emphasized that 26 United States Code section 5848(b) created an exception to the privilege or immunity provisions of section 5848(a), and that this exception was for “ ‘future crimes’ and ‘furnishing false information’. . . .”
(U.S. v. Hunter, supra,
843 F.Supp. at p. 252.) It found the defendants’ alleged conspiracy was a
future crime of furnishing false information
under the NFA and the supplementary legislation known as the Gun Control Act of 1968 (18 U.S.C. § 921 et seq.). (843 F.Supp. at pp. 250-253.) Thus, the protection of the privilege conferred by 26 United States Code section 5848(a) was unavailable to the defendants, not because the defendants’ applications were used as the basis for an investigation, but because the case was a “future crime” involving the “furnishing [of] false information” specifically excepted under subsection (b) of the statute.
The
Wolfe
court lifted the excerpted language from
Hunter,
but failed to retain the context in which it was made. In short, the
Hunter
opinion on which the
Wolfe
holding relied fails to support the district attorney’s argument in the case before us:
Hunter
holds that the statutory exception found in 26 United States Code section 5848(b), remains the sole instance in which information or evidence provided by a firearms dealer under the NFA may be used
in any way
against that dealer. That one instance is if the dealer is charged with
& future crime
or based on
falsified information, statutorily mandated to be given.
Sun is faced with neither a crime resulting from his falsification of his NFA documents nor a future crime occurring subsequent to the transactions reflected in his NFA records. The documents reviewed by the federal inspector reflected Sun’s
concurrent
possession of firearms. Thus, he properly was protected by the privilege or immunity provisions of 26 United State Code section 5848 at the time the federal inspector breached the confidentiality protections of 26 United States.Code section 6103 and divulged the privileged information to the state authorities.
Amicus curiae, the Attorney General of California, argues that the safety of California citizens requires that we
encourage
the cooperation between federal and state authorities as practiced in the case before us. Additionally, he contends the NFA was
not
the authority under which Hoffpauer inspected Sun’s records; it was the Gun Control Act of 1968 which empowered Hoffpauer to inspect, and there is no recordkeeping responsibility under that statute. Thus, he argues, there was no basis to apply the privilege protection of 26 United States Code section 5848(a)—which relates to the NFA, not the Gun Control Act—much less to suppress the evidence. Finally, amicus curiae proposes that none of the items observed by Hoffpauer—and seized under the search warrant—fell under the federal definition of “firearms” covered by the NFA. This latter argument
appears
to fail: 26 United States Code section 5845(a) defines a firearm for the purposes of the NFA in very specific detail and there is no indication in the record whether the seized items fit this description,
but the chapter also defines a “machinegun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. . : .” (26 U.S.C. § 5845(b).) This definition is essentially identical to that for a machinegun found in section 12200, possession of which is generally barred under state law. (See § 12220,' subd. (a).) From the information presented in the warrant’s' affidavit and implicitly found by the trial court, the statute was applicable. No evidence was presented at the suppression hearing to contradict this finding.
Factual allegations such as those made by amicus curiae are more properly presented to the trial court than to us in the first instance. We review the record as preserved from below to determine if the trial court ruled properly. It must be noted that the
district attorney
urged the trial court that no evidence other than the affidavit in conjunction with the pleadings was needed to resolve the motion to suppress.
Had these factual allegations been
raised
and resolved
in the lower court, we would review those contentions and- resolutions. We cannot resolve factual allegations raised for the first time on appeal. (See
People
v.
Lawler, supra, 9
Cal.3d at p. 160;
People v. Manning, supra,
33 Cal.App.3d at pp. 598-599 [“ ‘ “ ‘A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the [trial] court
sitting as a finder of fact.’
In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’ ” [Original italics.].)
Nothing we say here in any way seeks to discourage the continued cooperation between state and federal police authorities. To the contrary, we encourage it
consistent with the law established for both those jurisdictions.
In this instance, however, the Congress, in direct response to United States Supreme Court mandate, has provided that information
compelled
from a weapons dealer may not be used against him in a criminal proceeding of any kind, apart from the exception provided in 26 United States Code section 5845(b). We abide by that clear declaration, as must the police authorities in all jurisdictions.
Finally, we address the most difficult question in this quagmire. Should one police agency be able to clothe itself with the robe of good faith, when it obtains information from another police agency in direct contradiction of federal law, and then uses it for the very purpose prohibited by the federal law? Neither Hoffpauer nor Maher informed the magistrate—to whom Maher presented the affidavit—that 26 United States Code section 5848(a) protected the information from which Hoffpauer learned of the assault weapons. Nonetheless, the district attorney and amicus curiae join in arguing that suppression was barred once the magistrate placed his or her imprimatur to search on the warrant. (See generally
United States v. Leon, supra,
468 U.S. 922
{Leon).)
■ .
The good faith exception found in
Leon
rests on the deterrent purpose for the exclusionary rule. Exclusion as a remedy for Fourth Amendment violations
was designed to deter police misconduct. Thus, when an officer acts in objective good faith reliance on a search warrant, “[penalizing the
officer for [a] magistrate’s error, rather than his [or her] own, cannot logically contribute to the deterrence of Fourth Amendment violations.”
(Leon, supra,
468 U.S. at p. 921.)
On the other band, the officer’s reliance in
objective
good faith is the crux of the rule. In
People
v.
Jackson
(2005) 129 Cal.App.4th 129 [28 Cal.Rptr.3d 136], the fruits from the search permitted by warrant were suppressed because the information establishing probable cause for that warrant was obtained from an
illegal
wiretap. As the wiretap authority, 18 United States Code section 2510 et seq., was established long before, the judicially created “good faith exception,” its bar was prevailing over the exception crafted by the Supreme Court after its passage. Moreover, Congress had never attempted to provide—although given the opportunity—such a loophole in the intervening years. “Moreover, the policy reasons that led to the adoption of a good faith exception to the judicial exclusionary rule in cases involving search warrants do not apply to the statutory exclusionary rule in cases involving wiretap orders. In a case involving a search warrant, the true check on law enforcement’s abuse of power was ‘the detached scrutiny of a neutral magistrate.’ To obtain a wiretap, the person seeking the order must first obtain the approval for the wiretap
from the United States Attorney General
or an authorized designee. [Citation.] Hence, ‘if an appellate court determines wiretap evidence was gathered under a legally erroneous order, the government cannot place the blame on the magistrate who issued the order.’ [Citation.]” (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2006 Supp.) Illegally Obtained Evidence § 12, pp. 120-121 [italics added].)
By analogy, the same thing occurred here. Local law enforcement obtained information from another jurisdiction’s law enforcement agent who
under the authority which granted him the power to inspect, also was ordered to keep confidential and privileged all information obtained from the entity he inspected.
Nonetheless, the local agents presented the information to a magistrate and then blanketed themselves under the sanitizing “robe” of that unknowing magistrate once the warrant was signed. Such manipulation of a magistrate will be repeated if we permit one police agency to use information that another police agency is barred from using. Police reliance cannot be deemed in “objective good faith” when the original agent is aware the incriminating information was obtained by less than legal means. As the state’s reliance on the authority of the magistrate issuing the warrant was not in objective good faith, suppression of the fruits of the search was proper.
m
DISPOSITION
In case No. G036443, the trial court’s order suppressing the evidence and then dismissing the remaining indictment is affirmed. In G035328, the trial court’s order, dismissing nine counts of a violation of section 12020, subdivision (a)(2), is reversed. The case is remanded with the following directions: The trial court must determine if dismissal of the remanded nine counts is now required based on the seizure of evidence deemed in violation of the Fourth Amendment as upheld in case No. G036443. If so, the trial court must dismiss the remaining nine counts in the indictment. If not, and the People have evidence to prove those counts extraneous to the fruits of the search under the warrant, those counts may proceed.
Bedsworth, J., and Fybel, J., concurred.