People v. Broome

• Decision Date: 10 June 1988
• Citation: 247 Cal.Rptr. 854,201 Cal.App.3d 1479
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Steve BROOME and Laurie Broome, Defendants and Respondents. C001033.

Page 854

247 Cal.Rptr. 854

201 Cal.App.3d 1479

The PEOPLE, Plaintiff and Appellant, v. Steve BROOME and Laurie Broome, Defendants and Respondents.

C001033.

Court of Appeal, Third District, California.

June 10, 1988.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Joel Carey and Jane N. Kirkland, Supervising Deputy Attys. Gen., for plaintiff and appellant

Glenn H. Heine, Sacramento, Scott Concklin, Carmichael, and R. Mark Rose, Sacramento, for defendants and respondents.

SPARKS, Associate Justice.

The People appeal from an order dismissing this action for their failure to comply with a discovery order. (Pen.Code, § 1238, subd. (a)(8).) The Attorney General argues, in echo of the district attorney below, that the United States Supreme Court decision of Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 governing traversal of search warrants under federal constitutional law somehow limits a defendant's right to discovery. The claim is that when the discovery is aimed at determining whether an affiant made misrepresentations in an application for a search warrant, a "substantial preliminary showing" of misrepresentation in the affiant's application must be made out by the defendant before discovery may be ordered. We find the argument to be untenable and hold instead that the defendants made a showing under the ordinary standards applying to discovery sufficient to entitle them to the challenged discovery order. We further hold that the superior court was within its discretion in dismissing the information as a sanction for the district attorney's willful failure to comply with the discovery order. As an equal and alternative holding, we find the Franks "substantial preliminary showing" standard to be satisfied as well. We thus shall affirm the judgment of dismissal.

FACTS AND PROCEDURAL HISTORY

It is best to begin at the beginning. On May 13, 1986, Deputy Sheriff Joseph Hegseth of the Sacramento County Sheriff's Department made an application for a search warrant of a residence in the North Highlands section of the county. "Being duly sworn," he averred the following. At some point before May 5, 1986, he was told by a confidential informant the two defendants were "dealing in crank" and had offered to sell methamphetamine to the informant. The only background information provided in the affidavit about this informant was the absence of any pending criminal charges against the informant in Sacramento County. Remuneration was provided the informant in currency not exceeding $50, so the informant was obviously not a citizen-informant. The informant took the officer to the North Highlands residence of the defendants, described their physical appearance, and said the two cars parked outside the residence belonged to the defendants. Checking with the Department of Motor Vehicles (DMV), Deputy Hegseth confirmed the vehicles belonged to the defendants and noted the physical description of the defendants in DMV files matched that given by the informant. "Between the dates of May 5, 1986 and May 10, 1986," Deputy Hegseth set up a controlled purchase with the aid of the confidential informant. The informant and the informant's vehicle were both searched. The informant was then provided with funds for the purchase of the methamphetamine. The informant arrived at the residence. "The confidential informant was observed by your affiant to exit the confidential informant's vehicle and enter the residence.... After a period of time, not exceeding 15 minutes, your affiant observed the confidential informant to exit the residence and leave the area ... and subsequently meet with your affiant at a pre-determined location a short distance away from this residence."

Deputy Hegseth received a clear plastic bundle containing an off-white powder from the informant, who said it had been obtained from defendant Laurie Broome inside the residence in exchange for the funds supplied to the informant. The informant also told him Laurie Broome offered to provide the informant with additional amounts of crank at any time. A The magistrate issued the search warrant. A search of the residence revealed numerous pieces of drug paraphernalia and a quantity of powders from different locations around the home. Following a preliminary hearing at which the powder was identified as methamphetamine in a total quantity of 1.39 grams, an information was filed charging the defendants with possession of methamphetamine and possession of methamphetamine for sale. (Health & Saf.Code, §§ 11054, subd. (d)(2); 11377; 11378.)

search of the informant and the informant's vehicle was negative for contraband or the funds supplied; the deputy averred the informant had not been out of his sight other than while inside the residence from the time of the first search until the time of the second search. The deputy "tested a portion of the white powder ... with the aide [sic ] of a Valtox Test Kit which indicated positive for the presence of methamphetamine."

The defendants were arraigned and pled not guilty. On November 10, 1986, defendant Stephen Broome moved both for disclosure of the identity of the confidential informant and for an opportunity to test the substance obtained in the controlled buy on the ground this information was material to the issue of his guilt or innocence by showing whether he had any dominion or control over the drugs at the residence. On November 14, Laurie Broome moved to traverse the search warrant, to suppress the evidence seized pursuant to the warrant, and to compel disclosure of the identity of the confidential informant because evidence material to her efforts to traverse the search warrant (through controverting Deputy Hegseth's averments) could be obtained from the informant. In support of the motion to traverse, she attached her affidavit in which she denied being home during the period in which the warrant's affidavit alleged the controlled buy took place. The same day, Stephen Broome also moved to traverse the warrant, to suppress the evidence seized pursuant to the warrant, and to compel disclosure of the identity of the informant in order to obtain the informant's testimony at the traversal hearing. In support of his motion to traverse, he relied on the affidavit of Laurie Broome, on his own affidavit similarly denying the occurrence of the controlled buy and further denying his ever having sold methamphetamine from his residence, and on testimony of Deputy Hegseth at the preliminary hearing which contradicted his averments in the affidavit (testimony which we will subsequently recount in greater detail). The People filed an opposition to the motion to disclose the identity of the informant on the ground the defendants had made an insufficient showing of need for the informant's identity.

At the hearing on December 1, 1986, Laurie Broome offered declarations from her friends and relatives accounting for her whereabouts from noon on May 5, 1986 to 7:30 a.m. on May 6, from 9 a.m. to 5:30 p.m. on May 6, from 8:30 a.m. to 8:30 p.m. on May 7, from 9 a.m. to 5 p.m. on May 8, and from 8 a.m. on May 9 to 2 a.m. on May 10. The court received these for the purpose of determining during an in camera hearing whether they contradicted the date and time the controlled buy took place (the precise details of which had been concealed for the obvious reason of protecting the identity of the informant). The motion to disclose the informant's identity was then deferred, pending the in camera hearing, to December 12. The court, however, did grant Stephen Broome's discovery motion for production of the purchased substance by December 5.

On December 8, Stephen Broome filed a motion to dismiss the information or to have his suppression motion summarily granted; the supporting affidavit of his attorney alleged the district attorney refused to comply with the court's discovery order of December 1 and the points and authorities argued the opportunity to test the purchased powder was necessary (1) with respect to his ultimate guilt or innocence to show his dominion or control by its packaging and (2) with respect to his traversal motion to show whether a controlled buy in fact took place. In opposition, the People declared the purchased powder was not the basis for the pending charges and At a hearing on the motion to dismiss held December 10, the court announced it had held the in camera hearing and had reviewed the testimony of Deputy Hegseth at the preliminary hearing. The court initially denied the motion to dismiss in order to give the district attorney time to comply with the order by supplying a testable quantity of the purchased powder to the defendants. Based on the evidence revealed at the in camera hearing, the court denied the motion for disclosure of the informant's identity for the purpose of determining Stephen Broome's ultimate guilt or innocence. The court also denied disclosure of the informant's identity for the purposes of either defendant traversing the warrant on the authority of People v. Kurland (1980) 28 Cal.3d 376, 387, footnote 5, 168 Cal.Rptr. 667, 618 P.2d 213. The court, however, did order that the in camera transcript be made available to the judge hearing the motion to traverse. The deputy district attorney present at the hearing saw no reason why the discovery order could not be satisfied once arrangements were made.

therefore was not relevant on the issue of guilt or innocence; they also posited for the first time their current assertion which in effect claims the showing by the defendants for discovery was insufficient to show a substantial likelihood of misrepresentation in the search warrant's affidavit.

Later that day, the People submitted a memorandum to the court issuing the discovery order announcing their intention to defy the order and seek appellate review of any resulting sanction by the court: "The People very respectfully submit that this order in...