People v. Neusom

• Court: California Court of Appeals
• Writing for the Court: LILLIE
• Citation: People v. Neusom, 143 Cal.Rptr. 27, 76 Cal.App.3d 534 (Cal. App. 1977)
• Decision Date: 07 December 1977
• Docket Number: Cr. 30292
• Parties: The PEOPLE, Plaintiff and Appellant, v. Donzella NEUSOM, Defendant and Respondent.

Page 27

143 Cal.Rptr. 27

76 Cal.App.3d 534

The PEOPLE, Plaintiff and Appellant, v. Donzella NEUSOM, Defendant and Respondent.

Cr. 30292.

Court of Appeal, Second District, Division 1, California.

Dec. 7, 1977.

Hearing Denied Feb. 2, 1978.

John K. Van de Kamp, Dist. Atty., and Donald J. Kaplan, Deputy Dist. Atty., for plaintiff and appellant.

Larry Fidler, Los Angeles, under appointment by the Court of Appeal, for defendant and respondent.

LILLIE, Acting Presiding Justice.

Defendant was charged with possession of heroin. Her motion to suppress the evidence pursuant to section 1538.5 Penal Code was granted. The People appeal from order granting the motion and dismissing the case. The facts before the trial court were those contained in the search warrant and affidavit in support thereof, and testimony of Officer Brown taken at the hearing. The issue relates to an intentional omission in the affidavit to a search warrant made by the police officer.

The affidavit establishes that during the week ending May 22, Officer Brown, an experienced narcotic officer, had a conversation with "a confidential reliable informant" who had supplied him with information on five prior occasions, leading to the recovery of a large quantity of heroin and the arrest of nine persons who are presently being prosecuted in the municipal and superior courts; he told Officer Brown that Calvin Jackson, describing him, was selling heroin from his home at a specified address at a specified telephone number, and that he had purchased heroin from Jackson on several occasions at that address. During the week ending May 22 Calvin Jackson had occasion, in connection with a prior arrest, to give to Officer Brown a telephone number which was the same as that given by the informant, and which he checked and found to be listed to Jackson's address, the same as that given by the informant. During the week ending May 22, Officer Brown took the informant to the vicinity of Jackson's house, gave him a quantity of money and watched him walk to the residence, enter, stay, leave the apartment five minutes later and walk directly back to him at which time he handed the officer a toy balloon containing heroin. Based on the foregoing, Officer Brown concluded that the informant is a heroin user and that heroin was being sold from the residence.

Officer Brown was called as a defense witness and testified that before the informant went into Jackson's residence he did not conduct a skin search of him; asked the reason, he answered "The only reason was that the informant had established his reliability to me prior to that time," he felt the informant was reliable so he did not conduct a skin search "and the personal knowledge I had of the person I was attempting to make the buy from indicated he was a dealer." The affidavit shows that on a prior occasion, Officer Brown arrested Calvin Jackson for possession for sale of heroin (§ 11350, Health & Saf. Code). Asked if it was not standard procedure when using an informant to conduct a skin search before a buy is made, the officer answered "It depends on the circumstances and the informant" and that he believes "It is important on certain occasions when you have no other facts on which to base your probable cause in your affidavit for the warrant." Officer Brown wrote up the affidavit and then submitted it to a deputy district attorney for approval; there was "no reason" he did not include in the affidavit the fact that there was no skin search of the informant and that "It was an action that wasn't taken so I didn't include it in the warrant. Had I taken that action, I would have included it in the affidavit."

On cross-examination the officer testified that the informant had been used by him personally on five occasions that had resulted in the arrest of nine persons and recovery of a large quantity of heroin and on each occasion an arrest resulted, search of the residence was made and a quantity of heroin found therein; on five occasions he conducted the search and recovered the narcotics.

The defense argued that because of the omission in the affidavit the magistrate was precluded from fully reviewing all of the facts and had he been able to review them the outcome would have been totally different. The trial court found the omission to be intentional and that the omitted fact that there had been no skin search should have been before the magistrate but it did not know what effect this would have had on the magistrate's determination.

When charged with a crime based upon evidence acquired through the execution of a search warrant, an accused on a 1538.5 motion may go behind the face of the supporting affidavit to prove that there was no probable cause to issue the warrant. Probable cause, not certainty, is the basic test employed in the warrant issuing process. Therefore, an accused may show that the affidavit contains factual misstatements or material factual omissions which could have had an adverse effect upon the normal inference-drawing process of the magistrate in determining whether probable cause exists. (Theodor v. Superior Court, 8 Cal.3d 77, 96, 104 Cal.Rptr. 226, 501 P.2d 234; Morris v. Superior Court, 57 Cal.App.3d 521, 525-526, 129 Cal.Rptr. 238; People v. Barger, 40 Cal.App.3d 662, 668-669, 115 Cal.Rptr. 298.)

In discussing the inclusion of erroneous material, the Supreme Court in Theodor held that if the factual misstatements are not intentional and are the result of reasonable conduct, they are retained and probable cause is tested by the face of the affidavit, but if the factual misstatements though not intentional are the result of negligent conduct, they must be excised and probable cause tested from the remaining information (pp. 95-101, 104 Cal.Rptr. 226, 501 P.2d 234). Theodor dealt with inaccurate included information; People v. Barger, 40 Cal.App.3d 662, 115 Cal.Rptr. 298, extended the Theodor rule to excluded information material factual omissions. Thus, if material factual omissions were not intentional or unreasonable under the circumstances, the omitted facts are disregarded and the existence of probable cause is determined from the face of the affidavit; if the failure to include material information is negligent, the omitted facts are added to the affidavit and probable cause tested in light of the additional information. (People v. Barger, 40 Cal.App.3d 662, 668-669, 115 Cal.Rptr. 298.) However, when information is intentionally omitted and it is material, the search warrant must be quashed without regard to the effect of the omissions on probable cause. (Morris v. Superior Court, 57 Cal.App.3d 521, 527-528, 129 Cal.Rptr. 238.)

Relying on Morris v. Superior Court, 57 Cal.App.3d 521, 129 Cal.Rptr. 238, respondent defends the order on the ground that the omission of the fact that the informant was not skin searched made the affidavit defective because it was an intentional and unreasonable omission of a material fact by Officer Brown. In Morris the informant was untested, the information deliberately omitted from the affidavit and thereby concealed from the magistrate went to the very heart of the issue of reliability of the informant, the omitted information was material, the prosecution presented no evidence explaining why the pertinent and factual information was omitted and the court had no alternative but to order the suppression of the evidence (pp. 527-528, 129 Cal.Rptr. 238.)

Officer Brown's failure to mention in the affidavit that the informant was not skin searched before making the buy in the Jackson residence was not a deliberate attempt to mislead the magistrate; he testified he did not relate the fact because the informant had long before established his reliability in prior dealings with him and he had no reason to include in the affidavit something he did not do, a fact that did not exist which had no bearing on his opinion that the informant was reliable. Nonetheless the omission...