People v. Cook

Decision Date08 September 1978
Docket NumberCr. 19804
Citation22 Cal.3d 67,583 P.2d 130,148 Cal.Rptr. 605
CourtCalifornia Supreme Court
Parties, 583 P.2d 130 The PEOPLE, Plaintiff and Respondent, v. Daniel Gary COOK, Defendant and Appellant.

Carsel & Carsel and Richard A. Carsel, San Luis Obispo, for defendant and appellant.

Barry Tarlow, Robert C. Moest and Eric S. Multhaup, Los Angeles, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Michael Nash, Deputy Attys. Gen., for plaintiff and respondent.

D. Lowell Jensen, Dist. Atty., Alameda, John J. Meehan, Asst. Dist. Atty. and James M. Lee, Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

In Theodor v. People (1972), 8 Cal.3d 77, 100-101, 104 Cal.Rptr. 226, 243, 501 P.2d 234, 251, we held that "pursuant to a motion under Penal Code section 1538.5, a defendant may challenge the factual veracity of an affidavit in support of a (search) warrant and if statements contained therein are demonstrated to be false and if the affiant was unreasonable in believing the truth of such information, those facts must be excised from the affidavit and probable cause tested from the remaining truthful information." (Fn. omitted.)

Although our decision dealt primarily with negligent ("unreasonable") mistakes of fact in an affidavit, we noted that it will apply a fortiori when the affiant actually knows the statements are false at the time he makes them: because "there obviously can be no question of showing a reasonable belief in the truth of deliberate misinformation, any such statements must also be stricken prior to testing the warrant for probable cause." (Id. at p. 101, fn. 14, 104 Cal.Rptr. at p. 243, 501 P.2d at p. 251.) We expressly left open, however, the issue whether the presence of such intentional falsehoods in an affidavit requires a more drastic response than mere excision, i. e., whether it "should result in automatically quashing the warrant without regard to the effect of those misstatements on probable cause" (Ibid.).

That issue is now presented for decision. As will appear, we conclude that both the rationale of Theodor and the purposes of the constitutional guarantee of freedom from unreasonable searches and seizures compel the exclusion of evidence obtained pursuant to a warrant issued on an affidavit containing deliberately false statements of fact, regardless of the effect of those statements on probable cause. On an additional point, we conclude that the Constitution likewise requires exclusion of evidence seized under a warrant issued after the police conducted an illegal search to "confirm" their prior belief in probable cause.

On June 25, 1974, Detective Gregory of the San Luis Obispo Police Department appeared before a justice court judge and requested a warrant to search a single-family home rented and occupied by defendant. The principal allegations of Detective Gregory's accompanying affidavit were as follows: in February 1974 a federal narcotics agent requested Detective Gregory to investigate a company called Cen-Coast Scientific, which had placed an order with a Los Angeles pharmaceutical firm for certain chemicals commonly used in the manufacture of restricted dangerous drugs. The name appearing on the order was that of defendant. Detective Gregory learned that defendant had applied for a business license for Cen-Coast Scientific, stating its purpose to be the furnishing of biological supplies and equipment, and that defendant was a former chemistry major at California Polytechnic University. The investigation was dropped when defendant withdrew his order.

The affidavit further recited that on June 25, 1974, another federal narcotics agent advised Detective Gregory that Cen-Coast Scientific had placed an order with a San Leandro pharmaceutical firm for phenylacetic acid, also commonly used in manufacturing restricted dangerous drugs. On the same day Detective Gregory received a telephone call from H. E. Smith, manager of the rental units which included defendant's house. Smith told Detective Gregory that he went to defendant's house for the purpose of evicting him for nonpayment of rent; that defendant was not at home, and Smith entered with his passkey; that he smelled an unusual odor and heard the noise of a motor in a back room; that he entered such room and saw several large pieces of chemical apparatus, apparently operating, and a fan that was serving as a ventilator. Smith also told Detective Gregory that he saw a device which appeared to be a pill-making machine, as well as several guns.

The affidavit further alleged that Detective Gregory, together with Detective Osteyee of the San Luis Obispo Sheriff's office, went directly to defendant's house and found the front door wide open with Smith inside. Through the open door the two officers saw the above-described chemical apparatus in plain view in the back room facing the entrance, and on a counter below the apparatus they saw bottles labeled with the following names: Ether, Acetone, Acetic Acid, Muriatic Acid, Benzylchloride Acid, Sodium Cyanide, and Monobromobenzine. The officers also smelled an unusual odor similar to a compound of ether, acetone, and stale urine. Finally, Detective Osteyee saw and seized a "roach" or partly consumed marijuana cigarette in plain sight on the floor, approximately 18 inches inside the front door.

The affidavit concluded by reciting that Detective Gregory thereafter consulted Charles Hall, a federal narcotics chemist, and described to him the apparatus and chemicals seen in defendant's house, the odor there detected, and the chemicals ordered by Cen-Coast Scientific. Hall advised him that the apparatus, chemicals, and odor are consistent with the manufacture of amphetamines, and gave as his opinion that defendant was operating an illicit laboratory on the premises for the production of restricted dangerous drugs.

The magistrate issued the warrant requested, and law enforcement authorities conducted an extensive search of defendant's residence. On the basis of evidence found in the search, defendant was charged by indictment with multiple counts of possessing marijuana and restricted dangerous drugs, and of manufacturing such drugs and possessing them for sale. (Health & Saf.Code, §§ 11357, 11377-11379, 11383.)

Defendant moved to suppress the evidence on the ground that it was illegally obtained because the issuance of the warrant lacked probable cause and the search violated state and federal constitutional standards. (Pen.Code, § 1538.5, subd. (a)(2).) Defendant accompanied this motion with a sworn declaration by his counsel, charging that the affidavit of Detective Gregory contained numerous intentional misstatements and omissions. The declaration set forth defendant's proposed proof of such charges, and requested permission to controvert other factual allegations of the affidavit at the suppression hearing.

When that hearing took place, however, the prosecution objected to the taking of any testimony to support defendant's charges of perjury, contending that such evidence would be irrelevant because defendant's sole remedy was the Theodor procedure of asking the court to excise factual misstatements in the affidavit and test the remainder for probable cause. The prosecution then offered, "for the sake of argument," to assume that defendant's charges of perjury were all true and to voluntarily excise the challenged portions of the affidavit.

Believing Theodor to be controlling, the court sustained the objection to testimony and accepted the prosecution's offer of excision. The court accordingly refused to allow defendant (1) to call Detective Gregory for cross-examination into the truth of his affidavit, (2) to call any witness to attack Detective Gregory's credibility, (3) to controvert any allegations of the affidavit not specifically questioned in the motion to suppress, and (4) to prove that material facts were deliberately omitted from the affidavit.

At the court's request a chart listing the unchallenged allegations remaining in the affidavit was then prepared by counsel and introduced in evidence. 1 The prosecution was allowed to call as a witness Charles Hall, the government chemist relied on in the affidavit, and elicit his testimony that the remaining facts would still support his opinion that defendant was illegally manufacturing restricted dangerous drugs. 2

On the basis of the foregoing evidence the court ruled that the affidavit as excised was legally sufficient to support the issuance of the search warrant, and denied the motion to suppress.

Defendant thereafter pleaded guilty, the imposition of sentence was suspended, and he was placed on probation. He appeals from the judgment (Pen.Code, § 1237, subd. 1), attacking only the legality of the search (Pen.Code, § 1538.5, subd. (m)).


We held in Theodor that "Before a hearing is required to test the veracity of an affidavit, the defense must relate, with some specificity, its reasons for contending that the affidavit is inaccurate." (8 Cal.3d at p. 103, 104 Cal.Rptr. at p. 244, 501 P.2d at p. 252.) Defendant has amply fulfilled that requirement, as appears from the following summary of his counsel's sworn declaration in support of the motion to suppress:

Shortly after defendant's arrest counsel retained the services of Jack R. West, a state-licensed private investigator. West is retired from the Los Angeles Police Department after a 25-year career during which he served as investigator in virtually every major field of criminal activity. He holds a law degree, as well as state credentials to teach college-level courses in law enforcement. Prior to his employment by defendant he also served as investigator for the San Luis Obispo District Attorney. In the present case West conducted an...

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