People v. Kurland

• Decision Date: 30 October 1980
• Docket Number: Cr. 21023
• Citation: 618 P.2d 213,168 Cal.Rptr. 667,28 Cal.3d 376
• Parties: , 618 P.2d 213 The PEOPLE, Plaintiff and Appellant, v. Stuart Lee KURLAND, Defendant and Respondent.
• Court: California Supreme Court

Page 667

168 Cal.Rptr. 667

28 Cal.3d 376, 618 P.2d 213

The PEOPLE, Plaintiff and Appellant, v. Stuart Lee KURLAND, Defendant and Respondent.

Cr. 21023.

Supreme Court of California, In Bank.

Oct. 30, 1980.

Rehearing Denied Dec. 7, 1980.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler and Robert H. Philibosian, Chief Asst. Attys. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Jane Kirkland Fischer, Deputy Attys. Gen., for plaintiff and appellant.

John K. Van de Kamp, Dist. Atty., Los Angeles, Harry B. Sondheim and Richard W. Gerry, Deputy Dist. Attys., Los Angeles, as amici curiae on behalf of plaintiff and appellant.

Robert R. Elledge, San Diego, for defendant and respondent.

NEWMAN, Justice.

The People appeal an order suppressing evidence (Pen.Code, § 1538.5, subd. (a)) and a judgment dismissing a criminal information (id., § 995). The information charged defendant with possession of cocaine (Health & Saf.Code, § 11350) and of marijuana for sale (id., § 11359). We inquire whether a search-warrant affidavit was deficient because it omitted information bearing on the credibility of an undisclosed informant. We conclude that the omissions asserted did not make the affidavit substantially misleading. Accordingly we reverse the judgment of dismissal and the order suppressing evidence.

On April 6, 1976, Officers Bell and Matt of the Modesto Police Department obtained a warrant to search Kurland's Discount Water Beds, a store owned by defendant, for cocaine, paraphernalia, and evidentiary documents. The search, carried out the same day, disclosed a "coke" spoon and vial of white powder in defendant's pocket. Defendant handed the searching officers a baggie of marijuana and some "zigzag" cigarette papers from "my" briefcase. Two other containers of marijuana and a .38-caliber pistol were found in his office. The marijuana weighed a pound and a half; the white powder in the vial proved to be cocaine.

The warrant was principally supported by Matt's affidavit. It declared in substance that Z, a confidential informant proved reliable in two earlier narcotics cases, had told Matt he frequently and recently saw defendant, at the store, in possession of substantial quantities of described substances. Z believed and defendant had confirmed that these were cocaine and marijuana. Defendant had confided to Z his storage and sale of narcotics. He told Z he sometimes used "Steve's" house, behind his own, to keep contraband. Z had recently seen marijuana in Steven Mendes' residence behind defendant's home. Z also had recently seen a .38-caliber pistol on defendant's desk at the store. Defendant told Z he intended to kill, or have killed, the next person who crossed him. Defendant had asked Z to kill someone who had "ripped him off" in a drug deal.

The affidavit recited Matt's confirmation that the addresses given by Z were occupied by defendant and Mendes. Matt also alleged he had seen defendant pick up a concealed-weapon permit application and had overheard defendant tell the clerk that it was for a .38-caliber pistol. A completed application was never submitted. According to the affidavit, Z's statements about use of "Steve's" residence to keep narcotics conformed to Matt's experience about the habits of drug dealers. The affidavit disclosed that Z was a former user of cocaine, was familiar with its packaging and use, was continuing to serve as a narcotics informant, and had never given false information. Finally the affidavit told why Matt feared for Z's safety if his identity were disclosed. ¹

At the suppression hearing, despite the People's repeated objections on grounds of protecting a confidential source, defense counsel examined Matt about his relation with Z. The answers revealed that Z had been convicted of a felony after Matt signed a 1974 complaint against him, that Z had been placed on probation, that Matt had a dozen contacts with Z in 1976, and that Matt and Z had discussed Z's cooperation as an informant. Matt also testified he did not know when he prepared the affidavit, whether Z's probation had been terminated or whether Z had violated probation. Matt denied that threats were made to Z to induce his cooperation against defendant. Questions about the nature of the offenses charged in 1974 and whether Matt was then the investigating officer were never answered in open court. Some additional details were revealed in in camera hearings convened by the court to resolve the People's confidential-source objections.

The court granted defendant's motion to suppress on the ground that "material information" was not disclosed in the affidavit which might have led the magistrate "to conclude differently in respect to the credibility of the confidential informant." The information was then dismissed.

The People say that the affidavit was not misleading and that the disputed information was withheld properly and in good faith on grounds of privilege. Therefore we must decide what rules apply when defendant charges that a warrant affidavit, though sufficient on its face, is incomplete.

1. May defendant show omission from the affidavit?

In California a facially valid search warrant affidavit may be attacked on grounds that it contains deliberate or negligent misstatements. The rule arises both from our Constitution's guarantee against unreasonable search and seizure and from statutes regarding suppression of illegally obtained evidence. (Cal.Const., art. 1, § 13; Pen.Code, §§ 1538.5-1540; People v. Cook (1978) 22 Cal.3d 67, 74, 148 Cal.Rptr. 605, 583 P.2d 130; Theodor v. Superior Court (1972) 8 Cal.3d 77, 100-101, 104 Cal.Rptr. 226, 501 P.2d 234.) ² It rests upon the constitutional preference for warrants, which presupposes that probable cause determinations will be made independently by neutral, fully informed judicial officers rather than by the police. A misinforming affidavit hinders the magistrate's inference-drawing powers and increases the likelihood that privacy will be invaded without probable cause. (Cook, supra, 22 Cal.3d at pp. 81-82, 148 Cal.Rptr. 605, 583 P.2d 130; see Aguilar v. Texas (1964) 378 U.S. 108, 110-111, 84 S.Ct. 1509, 1511-1512, 12 L.Ed.2d 723; Johnson v. United States (1948) 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-369, 92 L.Ed. 436; Theodor, supra, 8 Cal.3d at pp. 90-91, fn. 6, 96, 104 Cal.Rptr. 226, 501 P.2d 234.)

This court in Theodor recognized that similar difficulties might arise when an affidavit simply fails "to include information which might otherwise negate a finding of probable cause." (8 Cal.3d at p. 96, fn. 11, 104 Cal.Rptr. 226, 501 P.2d 234; see also Cook, supra, 22 Cal.3d at p. 92, 148 Cal.Rptr. 605, 583 P.2d 130.) The courts of appeal have consistently held that an affidavit may be insufficient when it omits facts adverse to the warrant application. (People v. Neusom (1977) 76 Cal.App.3d 534, 538-539, 143 Cal.Rptr. 27; Morris v. Superior Court (1976) 57 Cal.App.3d 521, 526, 129 Cal.Rptr. 238; People v. Barger (1974) 40 Cal.App.3d 662, 668-669, 115 Cal.Rptr. 298; see People v. Webb (1973) 36 Cal.App.3d 460, 470-471, 111 Cal.Rptr. 524.)

Now directly faced with the issue, in general we endorse those holdings. An affidavit may be as inaccurate when it omits facts as when it misstates them. The crucial, inference-drawing powers of the magistrate may be equally hindered in either case, with identical consequences for innocent privacy. (See Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer (1974) 25 Mercer L.Rev. 741, 749.) We therefore conclude that the California Constitution and statutes permit defendant to attack a facially sufficient warrant affidavit on grounds that, though it contains no affirmative falsehoods, it is incomplete.

2. What facts must affiant include?

Though similar for many purposes, omissions and misstatements analytically are distinct in important ways. Every falsehood makes an affidavit inaccurate, but not all omissions do so. An affidavit need not disclose every imaginable fact however irrelevant. It need only furnish the magistrate with information, favorable and adverse, sufficient to permit a reasonable, common sense determination whether circumstances which justify a search are probably present. (See United States v. Harris (1971) 403 U.S. 573, 577-585, 91 S.Ct. 2075, 2078-2083, 29 L.Ed.2d 723; Spinelli v. United States (1969) 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637; United States v. Ventresca (1965) 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684; People v. Stout (1967) 66 Cal.2d 184, 192-193, 57 Cal.Rptr. 152, 424 P.2d 704.)

Recognizing this, the courts of appeal seem consistently to have held that an affiant's duty of disclosure extends only to "material" or "relevant" adverse facts. ³ At the same time, they have applied the materiality requirement to reach only those omissions which significantly distorted the probable cause analysis. (See Neusom, supra, 76 Cal.App.3d at p. 541, 143 Cal.Rptr. 27; Morris, supra, 57 Cal.App.3d at p. 527, 129 Cal.Rptr. 238; Barger, supra, 40 Cal.App.3d at pp. 668-669, 115 Cal.Rptr. 298; Webb, supra, 36 Cal.App.3d at p. 470, 111 Cal.Rptr. 524.) ⁴

We think the results reached by these decisions strike a proper balance among practicality, accuracy, and the policy of encouraging resort to the warrant process. (See Ventresca, supra, 380 U.S. at pp. 106, 108, 85 S.Ct. at pp. 744, 745; People v. Keener (1961) 55 Cal.2d 714, 723, 12 Cal.Rptr. 859, 361 P.2d 587.) We conclude, as courts of appeal effectively have concluded, that facts are "material" and hence must be disclosed if their omission would make the affidavit substantially misleading. On review under section 1538.5, facts must be deemed material for this purpose if, because of their inherent probative force, there is a substantial possibility they would have altered a reasonable magistrate's probable cause determination.

The People urge that, even if officer Matt...