People v. Luttenberger

• Decision Date: 18 January 1990
• Docket Number: No. S006001,S006001
• Court: California Supreme Court
• Parties: , 784 P.2d 633 The PEOPLE, Plaintiff and Appellant, v. George LUTTENBERGER, Defendant and Respondent.

Page 690

265 Cal.Rptr. 690

50 Cal.3d 1, 784 P.2d 633

The PEOPLE, Plaintiff and Appellant, v. George LUTTENBERGER, Defendant and Respondent.

No. S006001.

Supreme Court of California,

In Bank.

Jan. 18, 1990.

[50 Cal.3d 6] John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Martin S. Kaye, Clifford K. Thompson, Jr., and Ronald S. Matthias, Deputy Attys. Gen., San Francisco, for plaintiff and appellant

John J. Meehan, Dist. Atty. (Alameda), Thomas J. Orloff and William M. Baldwin, Asst. Dist. Attys., Sandra L. Quist, Deputy Dist. Atty., Ronald A. Zumbrun, Anthony T. Caso, Kent S. Scheidegger, Charles L. Hobson, Kathryn Canlis, Acting Dist. Atty. (Sacramento), and Albert C. Locher, Deputy Dist. Atty., as amici curiae on behalf of plaintiff and appellant.

Patrick R. Murphy and Charles H. James, Public Defenders, David C. Coleman III, Asst. Public Defender, Martinez, and Sarah B. Wilner, Deputy Public Defender, for defendant and respondent.

Garcia & Schnayerson, Philip A. Schnayerson, Joseph E. Mockus, Rose & Arnold, Ronald Rose, John Wadsworth and Linda F. Robertson as amici curiae on behalf of defendant and respondent.

LUCAS, Chief Justice.

In this case we determine the circumstances under which a criminal defendant may obtain discovery of information in police possession regarding a confidential informant, for purposes of challenging the accuracy of statements made in an affidavit in support of a search warrant. Among other issues, we are asked to decide whether the discovery procedure approved in People v. Rivas (1985) 170 Cal.App.3d 312, 216 Cal.Rptr. 477 conflicts with article I, section 28, subdivision (d) of the California As discussed in detail below, Rivas, supra, 170 Cal.App.3d 312, 216 Cal.Rptr. 477, held that a criminal defendant was entitled to discovery of police records and other documents concerning the background of a confidential informant on whose information a search warrant was issued, provided the documents were first screened by the court in camera to protect the informant's confidentiality. We conclude that section 28(d) itself does not limit a defendant's discovery rights in this context, but that the right to discovery created by Rivas is inappropriately broad, and should be circumscribed. We adopt a preliminary showing standard, which a defendant must satisfy to obtain in camera examination and discovery of information regarding police informants. Defendant did not make a showing sufficient to justify discovery in this case, and we therefore reverse the Court of Appeal's decision affirming the order dismissing the information for failure to comply with Rivas.

Constitution, which controls admissibility of evidence in criminal proceedings. ¹

I. Facts

A warrant was issued for the search of defendant's home, based on a police officer's affidavit stating that a confidential informant had provided the officer with information indicating defendant was "dealing Methamphetamine." The affidavit described the officer's corroborative investigation, which confirmed defendant's address and his lack of telephone or utility service. The affiant stated the informant had recently given him "reliable" information, but did not provide further details regarding the informant's background or reliability. He stated he wished to keep the informant's identity confidential because disclosure would endanger the informant and impair his "future usefulness."

The search uncovered methamphetamine and marijuana, drug paraphernalia, $880 in cash, and a loaded handgun. Defendant was arrested and charged with possession of methamphetamine and marijuana for sale (Health & Saf. Code, §§ 11378, 11359), with the allegation he was armed with a firearm (Pen.Code, § 12022, subd. (a)).

Before the preliminary hearing, defendant moved for discovery under Rivas, supra, 170 Cal.App.3d 312, 216 Cal.Rptr. 477, seeking the court's "in-camera review of any information disclosed or discoverable ... as to the informant's past experiences with dangerous drugs, any police reports of incidents [filed] against [informant], pay vouchers, if there were any, for [informant's] services to the police department, [and] any [promises or] representations ... that were made to him." The defense further asked the court to "examine whether the informant has some relationship with this case that would make him or her unreliable."

Defendant did not contend the affidavit was facially insufficient to establish probable cause for issuing a search warrant. Instead, he sought information to support a "sub-facial" challenge by controverting the veracity of statements made in the affidavit. Defendant did not at that time seek disclosure of the informant's identity. ² The magistrate denied the discovery motion.

The sole witness at defendant's preliminary hearing was the police officer who had conducted the search. He testified regarding the search and the evidence seized. The officer who signed the search warrant affidavit did not testify. The magistrate found the evidence sufficient to support all charges, and an information was filed. In superior court, defendant pleaded not guilty and denied the firearm-enhancement allegation.

Defendant next made a pretrial motion to dismiss the information (Pen.Code, § 995), arguing, among other points, that the lower court had erred in failing to grant his Rivas motion. The superior court dismissed the information, based solely on "the failure of the magistrate to conduct an in camera hearing pursuant to the requirements of [Rivas, supra, 170 Cal.App.3d 312, 216 Cal.Rptr. 477]." The Court of Appeal affirmed.

In their petition for review, the People ask us to determine whether the in camera hearing and discovery procedure authorized in Rivas, supra, 170 Cal.App.3d 312, 216 Cal.Rptr. 477, violates section 28(d) because it is inconsistent with the federal "substantial preliminary showing" requirement for subfacial search warrant challenges, as set forth in Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667. The decisions of the Courts of Appeal are in conflict on this point. The People also urge this court, should we conclude that section 28(d) does not prohibit Rivas-type discovery procedures, to announce what preliminary showing a defendant must make in order to justify in camera examination and discovery of material regarding confidential police informants.

II. Discussion

A. Legal background.

1. Franks v. Delaware: Constitutional right to challenge the veracity of a warrant affidavit

Section 28(d) limits the exclusion of relevant evidence in criminal proceedings. (See fn. 1, ante.) Its enactment abrogated our state's judicially created exclusionary rule and mandated the "admission of relevant evidence, even if unlawfully seized, to the extent admission of the evidence is permitted by the United States Constitution." (In re Lance W. (1985) 37 Cal.3d 873, 887-888, 210 Cal.Rptr. 631, 694 P.2d 744.) Thus, California courts now must follow federal exclusionary principles in resolving motions to suppress evidence in criminal trials. The effect of section 28(d) on the Rivas supra, 170 Cal.App.3d 312, 216 Cal.Rptr. 477 pretrial discovery procedure sought in this case, however, is not immediately obvious. We begin by discussing Franks, supra, 438 U.S. 154, 98 S.Ct. 2674, as background for our decision here.

In Franks, the United States Supreme Court held a defendant has a limited right, under the Fourth Amendment of the United States Constitution, to challenge the validity of a search warrant by controverting the factual allegations made in the affidavit in support of the warrant. As the court stated, "a flat ban on impeachment of veracity could denude the probable-cause requirement of all real meaning," by allowing searches based on false allegations by police officers to go unchallenged and unremedied. (438 U.S. at p. 168, 98 S.Ct. at p. 2682.) The court therefore rejected an absolute ban on such challenges. It recognized, however, several "competing values" that led it to impose limitations on the right to challenge the validity of a search warrant by impeaching an affiant's veracity. (Id., at pp. 165-167, 98 S.Ct. at pp. 2681-2682.)

The high court acknowledged that allowing a challenge to a facially valid search warrant, and applying the exclusionary rule in this situation, would impose a burden on society by preventing some criminal convictions. (438 U.S. at p. 166, 98 S.Ct. at p. 2681.) It recognized that requiring postsearch evidentiary hearings on "the collateral question as to whether there had been official misconduct in the drafting of the affidavit" would create an additional administrative burden for trial courts. (Id., at p. 167, 98 S.Ct. at p. 2682.) It noted, further, that the accused is given some measure of protection from improper searches by the requirements that warrants The court concluded, however, that neither the issuing magistrate's presearch scrutiny of the affidavit, nor alternative sanctions such as a prosecution for perjury, would always suffice to prevent police perjury or recklessness in seeking search warrants. (438 U.S. at p. 169, 98 S.Ct. at p. 2683.) Balancing the competing considerations, it held a defendant is constitutionally entitled to a postsearch evidentiary hearing on the veracity of the warrant affidavit, but only after he first makes a "substantial preliminary showing" that (1) the affidavit included a false statement made "knowingly and intentionally, or with reckless disregard for the truth," and (2) "the allegedly false statement is necessary to the finding of probable cause." (Id., at pp. 155-156, 98 S.Ct. at p. 2676.) Exclusion of evidence seized under the warrant is required if (1) at the evidentiary hearing "the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence," and (2) "with the affidavit's false material set to one...