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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. George LUTTENBERGER, Defendant and Respondent.

No. A038633.

Decided: May 03, 1988

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Supervising Deputy Atty. Gen., Martin S. Kaye, Supervising Deputy Atty. Gen., Ronald S. Matthias, Deputy Atty. Gen., San Francisco, for plaintiff and appellant. Patrick R. Murphy, Public Defender, David C. Coleman, Asst. Public Defender, Sarah B. Wilner, Deputy Public Defender, Martinez, for defendant and respondent.

In this case we hold that the right to discovery pertaining to the reliability of a confidential informant as set forth in People v. Rivas (1985) 170 Cal.App.3d 312, 216 Cal.Rptr. 477, does not contravene Proposition 8 and the federal standard for challenges to search warrant affidavits set forth in Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667.   The People appeal from an order dismissing an information due to denial of discovery under Rivas.   We affirm.

Police officers searched George Luttenberger's home pursuant to a search warrant and recovered evidence which led to charges against him for possession of methamphetamine and marijuana for sale (Health & Saf.Code, §§ 11378, 11359) and an allegation he was armed with a firearm (Pen.Code, § 12022, subd. (a)).  The search warrant was based on the affidavit of a police detective whose source of information was a confidential informant.   The affidavit provided no details of the informant's prior reliability and showed no police corroboration of the conclusory drug sale allegations.

Before the preliminary hearing Luttenberger requested, under Rivas, that the magistrate review in camera the informant's past experiences to determine if discoverable information would be revealed bearing on the informant's reliability.1  The magistrate denied the motion.

The sole witness at the preliminary hearing, the police officer who had conducted the search, testified regarding the evidence seized.   The affiant did not testify.   The magistrate found sufficient evidence to support the charges.   An information was filed.   Luttenberger pleaded not guilty and denied the enhancement allegation.

Before trial Luttenberger moved to dismiss the information (Pen.Code, § 995), asserting, among other points, the magistrate's failure to conduct an in camera review under Rivas.   The court granted the motion based on Rivas and dismissed the information.

The sole issue is whether Rivas contravenes the provision of Proposition 8 that “relevant evidence shall not be excluded in any criminal proceeding.”   (Cal. Const., art. I, § 28, subd. (d).)  The People do not challenge the superior court's ruling that the magistrate erred under Rivas, but instead contend Rivas is in conflict with Proposition 8 and the federal standard for challenges to search warrant affidavits set forth in Franks v. Delaware, supra, 438 U.S. 154, 98 S.Ct. 2674.

In Franks the United States Supreme Court held that an evidentiary hearing on the validity of a search warrant affidavit is not required unless (1) the defendant makes a “substantial preliminary showing” of deliberate falsehood or reckless disregard for the truth, including an offer of proof, and (2) absent the allegedly false statements the affidavit would be insufficient to supply probable cause.  (438 U.S. at pp. 155–156, 171–172, 98 S.Ct. at pp. 2676–2677, 2684–2685.)   The court in Rivas held that because “a defendant's opportunity to secure a hearing rests in large part upon his ability to discover whether the affidavit contains inaccuracies, in order that he may make a sufficient preliminary showing of same,” the defendant is entitled to adequate discovery pertaining to the accuracy of the affiant's statements about a confidential informant's reliability, provided the magistrate follows an in camera prescreening procedure so as to protect the confidentiality of the informant's identity.  (People v. Rivas, supra, 170 Cal.App.3d at pp. 320–322, 216 Cal.Rptr. 477.)

The court in People v. Crabb (1987) 191 Cal.App.3d 390, 236 Cal.Rptr. 385, held that if a defendant does not possess evidence of misstatements or omissions sufficient to entitle him to an evidentiary hearing under Franks, the defendant is not entitled to discovery of police records for the purpose of finding evidence with which to discredit an affiant and invalidate a warrant.   The court held, in other words, that a Franks –type “substantial preliminary showing” is necessary to discovery as well as an evidentiary hearing.   The court recognized that Rivas permitted discovery without such a showing, but opined that “Rivas does not square with the Supreme Court's mandate in Franks v. Delaware.”  (Id. at pp. 394–395, 236 Cal.Rptr. 385.)

We believe Crabb was incorrectly decided and there is no conflict between Rivas and Franks.   Franks said nothing about the right to discover evidence essential to the “substantial preliminary showing” required for an evidentiary hearing on the validity of a search warrant affidavit.   Rivas simply mandates a discovery procedure.   Federal law governs the determination whether that discovery procedure has produced a “substantial preliminary showing” for an evidentiary hearing under Franks, as well as the ultimate question whether the evidence should be suppressed.  (See People v. Truer (1985) 168 Cal.App.3d 437, 440–442, 214 Cal.Rptr. 869;  People v. Luevano (1985) 167 Cal.App.3d 1123, 1127–1129, 213 Cal.Rptr. 764.)   Discovery under Rivas can only benefit the defendant by leading to the exclusion of evidence under federal law, and Proposition 8 is not violated by such exclusion.

Nor does Proposition 8 preclude the discovery procedure set forth in Rivas on the ground this procedure is not compelled by federal law.  Article I, section 28, subdivision (d), of the California Constitution simply states that “relevant evidence shall not be excluded in any criminal proceeding.”   This provision eliminated independent state grounds for suppression of evidence.   (See In re Lance W. (1985) 37 Cal.3d 873, 879, 210 Cal.Rptr. 631, 694 P.2d 744.)   It did not preclude California courts from prescribing supplementary procedures for application of the federal standards of admissibility.

Rivas not only is consistent with Proposition 8, it makes sense.  Franks rightfully precludes defendants from using evidentiary hearings as fishing expeditions, but without the right to adequate discovery a defendant may be unfairly hamstrung in attempting to make the substantial preliminary showing required for an evidentiary hearing.   In many cases the unavailability of discovery would, as a practical matter, be tantamount to denial of any opportunity to make the required showing.

In short, we reject Crabb and conclude that Rivas does not contravene Proposition 8 or Franks.   Because the People do not challenge the superior court's determination that the magistrate erred under Rivas, the dismissal order must be affirmed.

The order is affirmed.


1.   The Rivas motion requested information “disclosed or discoverable” as to the informant's past experiences with dangerous drugs, any pending cases against the informant at the time of the disclosure, whether the informant was in custody, whether the informer had ever provided false information, any police reports of incidents “filed” against Luttenberger, any pay vouchers for the informant's services to the police, any “promises made by the police,” and representations made to the informant.

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.