People v. Weiss

Decision Date12 July 1999
Docket NumberNo. S074181,S074181
Citation20 Cal.4th 1073,86 Cal.Rptr.2d 337,978 P.2d 1257
CourtCalifornia Supreme Court
Parties, 978 P.2d 1257, 99 Cal. Daily Op. Serv. 5519, 1999 Daily Journal D.A.R. 7001 The PEOPLE, Plaintiff and Respondent, v. Carl William WEISS, Defendant and Appellant

Andrian & Gallenson, Chris P. Andrian and Stephen Gallenson, Santa Rosa, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Ronald A. Bass, Assistant Attorney General, Ronald E. Niver and Amy Haddix, Deputy Attorneys General, for Plaintiff and Respondent.


We must decide in what way illegally obtained information in an affidavit supporting a search warrant affects the warrant's validity. The Court of Appeal concluded that the illegally obtained information must be excised, but if the officers would have sought the warrant without it, and the remaining information supplies probable cause, the warrant is valid. Defendant argues that the reviewing court must additionally find that the magistrate would have issued the warrant without the tainted information. Consistent with most courts that have considered the question, we disagree with defendant and agree with the Court of Appeal. Accordingly, we affirm the judgment and disapprove the contrary decision of People v. Koch (1989) 209 Cal.App.3d 770, 257 Cal.Rptr. 483.


Officers serving a search warrant at a residence in Forestville discovered 83 marijuana plants growing under lights in the basement. The basement was accessible through two locked doors, one interior and one exterior. Bruce Nicolaisen, who lived on the property, was confined to a wheelchair and could not have used either door to the basement. He refused to tell who had the key or combination to the locks. Nicolaisen's roommate, Lynnette Kester, arrived after the officers served the warrant. She told an officer that a friend of Nicolaisen's named Carl came by daily to take care of the pool and a garden at the back of the property. While watching Nicolaisen's residence during the previous week, officers had seen a visiting vehicle they identified as belonging to defendant Carl William Weiss. Department of Motor Vehicles records provided a description of defendant that matched Kester's description of "Carl."

The officers decided to question defendant about the marijuana-growing operation in Nicolaisen's house. They arrived at defendant's Forestville home late in the afternoon. Defendant answered the door, and an officer asked to come in and speak with him. Defendant asked if the officer had a search warrant. The officer said he did not. Defendant stepped outside, and the officer said he wanted to ask about defendant's potential involvement in marijuana cultivation. The remainder of the search team, amounting to at least six officers, had arrived by this time. Defendant looked around nervously and said he did not want to talk. One officer walked around the house, which was built on a slope and rested on posts in the rear. In the area beneath the rear of the house, the officer observed a variety of materials used for indoor marijuana cultivation. Other officers who were in the driveway in front of the house observed several five-gallon plastic buckets painted with camouflage colors next to the driveway, a larger brown barrel wedged between trees with an irrigation line connected to its bottom, and a section of plastic pipe painted in camouflage colors running down the hill toward a vegetable garden.

The officers left about 10 minutes after their arrival, but 2 of them guarded the entrance to defendant's driveway, which was not visible from the house. After about an hour, defendant drove away from his house, but the officers stopped and detained him. They recovered a key from him that was later found to fit a lock on a door to Nicolaisen's basement. The officers entered and secured defendant's house pending the issuance of a search warrant.

The affidavit supporting the search warrant application described the following: (1) the service of a warrant and the legal search at Nicolaisen's house; (2) the information that Kester provided; (3) the identification of Weiss from Department of Motor Vehicles records; (4) the interview with Weiss at his home; (5) the observation of the water barrel and the pipeline in front of his house and the growing materials at the rear; and (6) Weiss's detention as he was attempting to leave home. The magistrate issued a search warrant. Officers executing the warrant discovered evidence of marijuana cultivation.

Defendant was charged with marijuana cultivation and possession for sale. He moved to suppress evidence. The trial court ruled that the agent who observed the growing materials beneath the house had no justification for searching down the hillside, and it suppressed those observations. However, the court determined that the warrant application provided sufficient probable cause after the illegal observations were excised. Therefore, the court upheld the warrant. Defendant submitted supplemental points and authorities, arguing that the court additionally had to determine whether the search behind the house had affected either the officer's decision to seek a warrant or the magistrate's decision to grant the warrant. Based on defendant's earlier concession, the court found that the officers would have sought the warrant without the information derived from the illegal search. It also found that the magistrate would have granted the warrant without this information. Defendant then pleaded no contest to the cultivation charge.

The Court of Appeal affirmed. We granted defendant's petition to review whether the Court of Appeal correctly concluded that "a finding that the redacted affidavit is sufficient to establish probable cause is enough to meet the burden of showing the magistrate would have issued the warrant without the illegally obtained information; no further finding is necessary."


Defendant's petition for, and our grant of, review presents a single narrow but important legal issue. Accordingly, we accept the lower courts' conclusions that (1) part of the information presented in the affidavit supporting the search warrant application was obtained illegally; (2) when the illegally obtained information is excised from the affidavit, probable cause remains to support the warrant; and (3) the officers would have sought the warrant without the illegally obtained information. None of these conclusions presents an issue worthy of review. (Cal. Rules of Court, rules 28(e)(2), 29.2(a), (b); see Southern Cal. Ch. of Associated Builders etc. Com. v. California Apprenticeship Council (1992) 4 Cal.4th 422, 431, fn. 3, 14 Cal.Rptr.2d 491, 841 P.2d 1011.)

We decide only whether, for the warrant to be valid, the trial court must make some additional finding regarding the effect the illegally obtained information had on the magistrate who issued the warrant. Relying on Murray v. United States (1988) 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (Murray ) and People v. Koch, supra, 209 Cal.App.3d 770, 257 Cal.Rptr. 483, defendant argues that the reviewing court is additionally "required to make a factual determination that the magistrate issuing the search warrant was not affected by illegally obtained information contained in the affidavit in support of the warrant."

It has long been established that even if a criminal investigation involved some illegal conduct, courts will admit evidence derived from an "independent source." (Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319.) In a case involving the inevitable discovery rule, a close relative of the independent source doctrine, the United States Supreme Court explained the basis for admitting evidence derived from a source independent of illegal conduct. "The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.

"By contrast, the derivative evidence analysis ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation.... The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. [Citations.] When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation." (Nix v Williams (1984) 467 U.S. 431, 442-443, 104 S.Ct. 2501, 81 L.Ed.2d 377, original italics, fn. omitted.)

The independent source doctrine applies in California. (People v. Bennett (1998) 17 Cal.4th 373, 390, 70 Cal.Rptr.2d 850, 949 P.2d 947; see Cal. Const., art. I, § 28, subd. (d).) If, after some illegal conduct, the police obtain a search warrant they would have sought without that conduct, and none of the supporting documents cites information derived from that conduct,...

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