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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Appellant, v. Charles Marion McLAUGHLIN, Defendant and Respondent.

Crim. B032461.

Decided: April 24, 1989

Thomas W. Sneddon, Jr., Dist. Atty., Gerald McC. Franklin, Sr. Deputy Dist. Atty., for plaintiff and appellant. Herbert F. Blanck, Camarillo, under appointment by the Court of Appeal, for defendant and respondent.

The trial court suppressed evidence obtained during a booking search following an arrest pursuant to a warrant.   Because there was no evidence upon which to proceed, the court then dismissed count 1 of the information.   The People appeal.  (Pen.Code, § 1238, subd. (a)(7).)

The trial court found that the affidavit for the arrest warrant was so lacking in indicia of probable cause that no good faith reliance on it by the affiant was permissible.   We agree and affirm.


Sergeant A.E. Phillips is an officer at the University of California at Santa Barbara Police Department.   He obtained a felony arrest warrant for defendant McLaughlin based on an affidavit which in pertinent part stated:

“On 1–14–87, Your affiant, and your affiant's reliable, confidential, and tested operator met at approx. 1800hrs, to set up a controlled purchase of cocaine from a suspect named Lisa Hewitt.   I searched the operator, and then gave him $30.00 of UCSB. PD. Funds.   At approx. 1930hrs, I watched the operator go to Hewitt's apartment at 6565 Segovia Rd, # 10, and meet with her.   A few minutes later, I saw the operator and Hewitt exit apartment # 10, and walk together to the telephone booths located at the intersection of Pardal Rd, and Emb [Embarcadero] Del Mar, Goleta, Ca, [sic ].   While attempting to find a place to park, I lost sight of the operator and Hewitt.   I then returned to the area of Hewitt's apartment, and waited for them to return.   At approx. 2005hrs, this date I saw a vehicle arrived [sic ] at Hewitt's apartment, and at approx.2010hrs, I watched the operator walk from this residence.   I then met with the operator, and he told me the following.   After he and Hewitt went to the phone booths, Hewitt made a telephone call.   After the call, Hewitt escorted the operator to 851 Camino Pescadero # 27, where then [sic ] met with a suspect named Frederick Bohan.   Bohan had a vehicle and money to purchase cocaine for himself.   Bohan then drove Hewitt, and the operator to area of Calle Real and Ellwood Station Rd, where they met another subject.   Hewitt directed Bohan to stop in front of red Dodge Duster that was alread [sic ] at this location.   At this, the operator saw the subject from the red Dodge walk up to Hewitt's passenger door, and sell approx. 1/212 gram of cocaine that Bohan, Hewitt, and the operator had pooled their money for.   The operator got a good look at this subject and his vehicle as Bohan turned around and left after the sales.   After meeting with the operator after the sales, the operator directed me back to the area of Calle Real, and Ellwood Station Rd, [sic ].   Feeling that the suspect who had sold the cocaine to Hewitt, Bohan, and the operator must live in the area, & the fact that the red 1973 Dodge Duster was such a uniquely painted vehicle, we began a search of the neighborhood.   We soon found the suspect vehicle parked in the driveway of 34 San Rossano Rd, Goleta.

“On 1–17–87, at approx. 1200hrs, the operator and I, drove to 34 San Rossano Rd, and found the same red 1973 Dodge Duster parked in the driveway.   The operator and I watched the front of the residence, and at approx. 1235 hrs, a W.M.A. [white male adult] subject exited the residence and got into the red Dodge.   I immediately recognized this subject as being Charles Marion McLaughlin who [sic ] I had under investigation for sales of cocaine.   The operator also immediately recognized this same subject as the person who sold the cocaine to Hewitt, Bohan, and the operator on 1–14–87.”

The trial court found the declaration insufficient to establish probable cause for the arrest of McLaughlin.   There were no facts that the informant was reliable and tested or that the officer met an objective standard of good faith.


A. Probable Cause

 Appellate review of a trial court determination on a motion to suppress evidence under Penal Code section 1538.5 is a two-step process.   Express or implied findings of fact are upheld if supported by substantial evidence;  we then use independent judgment to determine whether those facts establish probable cause.  (People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961.)   Courts should not invalidate search or arrest warrants by imposing hypertechnical requirements rather than a common sense approach to probable cause.  (United States v. Ventresca (1965) 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684.)

 Probable cause to issue an arrest or search warrant must, however, be based on information contained in an affidavit providing a substantial basis from which the magistrate can reasonably conclude there is a fair probability that a person has committed a crime or a place contains contraband or evidence of a crime.  (Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527.)

Gates established a “totality of circumstances” test.   Prior to Gates, the reliability of an informer depended upon the prosecution establishing his veracity and the basis of his knowledge.  (See Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723;  Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.)   The Gates court expressly rejected the use of these categories as independent requirements stating that the two elements were merely “relevant considerations” in a totality of circumstances analysis.  (See Illinois v. Gates, supra, 462 U.S. at p. 233, 103 S.Ct. at p. 2329;  see also Massachusetts v. Upton (1984) 466 U.S. 727, 732, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721.)   By replacing the Spinelli-Aguilar two-pronged test, Gates put elasticity into probable cause and gave it broader contours.   It did not, however, require us to start from scratch in enunciating rules of probable cause to issue arrest warrants.

 The magistrate may not conclude that a person committed a crime by simply relying on the bare conclusions of others.  (Illinois v. Gates, supra, 462 U.S. 213, 103 S.Ct. 2317.)   Here, the affidavit provided no facts from which a magistrate could reasonably conclude that the confidential provider of the information was credible, reliable or tested.   The minimal independent police investigation did not supply this information.   There is only the affiant's bare conclusion that the operator was reliable and tested.   There was no statement that the affiant personally had tested the operator or had any personal basis to believe in her or his reliability.

The officer's investigation did nothing to verify the reliability of the operator.   It merely established that somewhere in the area where the drug purchase had been purportedly made was a car matching the operator's description of the one driven by the seller.   Nowhere is it indicated what was unusual or unique about the paint on the car.

Nor does the operator's identification of the person seen getting into the car three days later prove his credibility.   Although the affidavit indicates the operator could identify the seller, he apparently did not provide a description of him in advance.   This precludes the conclusion that he may have at least predicted who would be driving the car in the future.   In short, nothing in the affidavit negates or reduces the probability that an unreliable drug user obtained an unknown substance from an unknown person, described a car he had seen in the area of the purported purchase and simply identified the first person who entered the car as the seller.   It provides a wholly insufficient basis for a judicial determination of probable cause.

B. Good Faith Exception

 We assume arguendo that the absence of probable cause to issue the warrant is not enough, however, to result in the suppression of evidence seized pursuant to the arrest.   Evidence obtained based on a warrant issued without probable cause need not be suppressed if the officer executing the warrant is acting in objective good faith in relying on the warrant.  (United States v. Leon (1984) 468 U.S. 897, 918, 104 S.Ct. 3405, 3418, 82 L.Ed.2d 677.)   The exception to the exclusionary rule in Leon “applies to arrest warrants as well as to search warrants.”  (People v. Palmer (1989) 207 Cal.App.3d 663, 670, 255 Cal.Rptr. 55.)

When an officer conducts a search or makes an arrest under the authority of a warrant issued by a neutral and detached magistrate, this normally establishes that the law enforcement officer has acted in good faith in conducting the search.  (United States v. Leon, supra, 468 U.S. at p. 922, 104 S.Ct. at p. 3420;  People v. MacAvoy (1984) 162 Cal.App.3d 746, 763, 209 Cal.Rptr. 34.)

 There is a presumption that officers are conducting a search with good faith belief in its validity when the search is conducted pursuant to a warrant.  (MacAvoy, supra, at p. 763, 209 Cal.Rptr. 34.)   The officer's reliance on the magistrate's probable cause determination must be objectively reasonable.   In some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.  (Leon, supra, 468 U.S. at pp. 922–923, 104 S.Ct. at p. 3420.)   The exclusionary rule only serves its policy goal of deterring police misconduct if applied to objectively unreasonable law enforcement activity.  (See id., at pp. 919–920, 104 S.Ct. at pp. 3418–3419.)

 An inquiry into objective reasonableness is confined to the question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.  (United States v. Leon, supra, 468 U.S. at pp. 922–923, fn. 23, 104 S.Ct. at p. 3420, fn. 23.)   A good faith belief may not be objectively reasonable and suppression therefore appropriate if (1) the magistrate was misled by information in the affidavit that the affiant knew or should have known was false, (2) the magistrate wholly abandoned his judicial role in the manner condemned by Lo–Ji Sales, Inc. v. New York (1979) 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920, (3) the warrant was facially deficient in failing to particularize the place to be searched or things to be seized, or (4) the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.  (Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3420.)   There is no evidence nor are there arguments that facts necessary for categories 1–3 to apply are present here.

 The fourth category set forth in Leon is applicable here.   The trial court found the affidavit was so lacking in probable cause indicia as to render reliance upon it entirely unreasonable.   When there is no probable cause we consider good faith, but when the indicia of probable cause is so weak as to make any rationale for relying on it implausible, good faith is not objectively reasonable.   It disintegrates in the wind.

The officer may have been acting in subjective good faith here, but his conduct was not “objectively reasonable” under the Leon guidelines.   The Leon case was not meant to reward inexperience or ignorance.   No reasonably well-trained officer could rely upon this warrant.  Leon requires that the application of the good faith exception be measured against the standard of objective reasonableness.   This standard requires that officers “have a reasonable knowledge of what the law prohibits.”  (United States v. Leon, supra, 468 U.S. at p. 919, fn. 20, 104 S.Ct. at p. 3419, fn. 20;  see Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 944, 216 Cal.Rptr. 817.)

Even inexperienced police officers should know that courts have always required the articulation of facts to establish that an informer is reliable and tested.   An arrest warrant cannot be upheld merely because the officer who signed the affidavit in support of the warrant or the officer who brings the warrant to the magistrate thought that it was sufficient.   Such a rule would leave an important part of law enforcement to well-intentioned tyros or to those with the least competence.

The judgment of dismissal and order suppressing evidence are affirmed.

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.

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