Michael Paul THEODOR, Petitioner, v. SUPERIOR COURT, ORANGE COUNTY, State of California, Respondent, The PEOPLE of the State of California, Real Party in Interest.
On February 4, 1971, the Municipal Court of Orange County issued a search warrant authorizing a search of a house at 1267 Fairywood Lane, Laguna Beach. The warrant was issued on the basis of affidavits filed by Officer Celmer of the Los Angeles Police Department and by an undisclosed informant, as well as on the basis of an examination by the issuing magistrate in his chambers of the undisclosed informant. Under the authority of the search warrant, the officers entered the Fairywood Lane address and found no one inside, but discovered an inner door with three separate locks on it. Looking through a window into the locked room, the officers saw what they believed to be contraband. After waiting a short period, the officers arrested petitioner as he entered the house by using a key in the front door. A search of petitioner disclosed three keys which fit the locks to the closed room. A search of the room resulted in the seizure of, among other items, ten kilograms of marijuana and 1708 pieces of paper, each piece of which was impregnated with approximately ten dots of LSD.
Subsequently, a complaint was filed charging petitioner with violations of Health and Safety Code, sections 11530 (possession of marijuana), 11530.5 (possession of marijuana for the purpose of sale), 11910 (possession of restricted dangerous drugs), and 11911 (possession of restricted dangerous drugs for the purpose of sale). At a combination preliminary examination and hearing under Penal Code, section 1538.4, subd. (f), defendant moved both to quash the warrant on the ground it was issued in reliance, in part, on unreported oral testimony, and to require disclosure of the identity of the informant on the ground he would be a material witness on the issue of petitioner's guilt or innocence. Both motions were denied.
Petitioner also sought to inquire into the truth of the matters stated in the affidavits on which the search warrant was issued. Although witnesses were present under petitioner's subpoena for that purpose, the magistrate refused to allow the petitioner to call them. The magistrate further ruled Officer Celmer could not be called by petitioner for examination as to the truth of the contents of his affidavit in support of the search warrant.
After petitioner was held to answer in superior court, his motions under Penal Code, sections 995 and 1538.5 were denied. He now seeks a writ of prohibition or mandate. (Penal Code, §§ 999a and 1538.5, subd. (i))
Petitioner raises three points:
(1) The search warrant was statutorily and constitutionally invalid;
(2) The magistrate erroneously refused to disclose the identity of the informant upon whose affidavit the search warrant was, in part, issued; and
(3) The magistrate erroneously refused to allow him to call either Officer Celmer or several other witnesses in order to controvert the truth of the matters asserted in the affidavits supporting the search warrant.
As we shall discuss below, we conclude the search warrant was properly issued and satisfies the applicable statutory and constitutional requirements. On the record before us, we also conclude the magistrate did not err in denying petitioner's request for disclosure of the identity of the confidential informant. Finally, as we shall discuss, we are persuaded the magistrate did not err in refusing to allow petitioner to call witnesses to controvert the truth of the matters asserted in the affidavits in support of the search warrants. Accordingly, we deny the writ of prohibition or mandate.
The warrant was issued on the basis of affidavits offered by Officer Celmer and the undisclosed informant. The affidavit of Officer Celmer merely restates that of the informant. The informant's affidavit, in substance, is as follows: That on or about February 3, 1971, he was taken to the Fairywood Lane address which was a white single story plaster house with red trim and redwood siding, surrounded on three sides by a six-foot wood fence; that he was taken into the west bedroom of the house and there observed a pile of marijuana bricks, 2 feet high by 3 feet wide, by one foot (one brick) deep, containing 20–50 bricks; that a white male, 22–27 years of age, 5′ 11″ in height, weighing 170 pounds, with dark curly hair, whose name he did not know, gave him two and one-half bricks weighing approximately five pounds from the pile of marijuana bricks; that he was to return to Laguna Beach within two weeks with $300 for the marijuana; and that he was given three pills by the described subject and told one of the pills was LSD.
The affidavit further states the informant took the bricks to the Los Angeles airport; that he was there arrested by a Federal Marshal and the bricks and pills seized; that he had never been convicted of a crime of moral turpitude but had been convicted of minor traffic violations; and that he had smoked marijuana on numerous occasions and knows what it looks and smells like.
Both affidavits were subscribed and sworn to in the presence of the issuing magistrate. Thus both Officer Celmer and the undisclosed affiant upon whose information the warrant rests personally appeared before the issuing magistrate. The magistrate also examined the confidential informant before the warrant issued; the examination was not, however, recorded and transcribed.
During the examination, the magistrate took handwritten notes. After he issued the search warrant, he sealed the signed affidavit of the informant and his handwritten notes in an envelope which was to be opened only on order of the court.1
At the preliminary examination, the magistrate read the contents of his handwritten notes into the record:
‘Then I will relate to you the gist of the conversation as I reported it in my handwriting, handwritten notes, and I am going to exclude therefrom anything that I think would indicate in detail the identity of the informant.
‘The first thing is, ‘lived in’, and then, ‘blank’ as a city, which was given to me. Then comes the statement about where he sleeps. The next question and answer have to do with his place of birth. The next question had to do with his father's occupation. To all of these, he responded to them. The next one had to do with the place he last worked for and where.
‘The place he last worked or the persons he last worked for and where. And next his marital status.
‘For the record, those were considered by me as preliminary questions so that I could watch him and see his reactions. Questions were asked and answers given to determine his honesty or lack thereof, or competence or lack thereof.
‘Then he was sworn in to speak only the truth.
‘Then he described a meeting with a person he named and identified. Then he related to me, in response to my question, that he had been made no promise, except that he wanted to co-operate.
‘That is the gist of two or three questions and answers.
‘Then the question was asked and answered by him as to when and where he first smoked marijuana.
‘Then questions and answers of his medical history and questions concerning his personal history. And then the questions concerning—the questions and answers concerning any credit sale of marijuana kilos.
‘Now, all of those questions and answers for your information or for the record, whatever you wish, were asked by me and the answers were recorded by me to show what happened. But the purpose in asking the questions was to determine from the nature and kind of response he was making not whether those things were true or important, but generally what his demeanor was. And I considered none of those things as having any importance on the affidavit which he signed or having any importance on the issuance of a warrant, save and except they aided me in determining that he was—I am trying to think of an appropriate word. He was reasonably straight-forward and reasonably honest insofar as that is capable of being done in a ten to 15 minute interview. All of this took place within the affidavit and et cetera.’
Petitioner suggests the procedure under which the warrant was issued fails to satisfy the statutory requirements for the issuance of a warrant. We disagree. Although a search warrant must be supported by affidavit (Penal Code, § 1525; Powelson v. Superior Court, 9 Cal.App.3d 357, 360–361, 88 Cal.Rptr. 8), or, in the alternative by an oral statement which is recorded and transcribed (Penal Code, § 1526, subd. (b)), the issuing magistrate may also examine on oath the person seeking the warrant and any witnesses he may produce. (Penal Code, § 1526, subd. (a)) Such examination is within the discretion of the magistrate from whom the warrant is sought. (Powelson v. Superior Court, supra.) When the magistrate makes such further examination, he need not record and transcribe it as he would if the examination were to serve as the only basis for the search warrant (see Penal Code, § 1526, subd. (b)), he need only take an affidavit, subscribed by the person examined, and the affidavit need not contain the totality of the examination. (Penal Code, § 1526, subd. (a)) The failure of the magistrate to record and transcribe the examination thus did not violate the statutory requirements for the issuance of a warrant.
Petitioner also contends the affidavits fail to provide a constitutionally sufficient basis for the issuance of the search warrant. Under the circumstances here present, petitioner's argument is foreclosed by Skelton v. Superior Court, 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485. In Skelton, the affidavits presented in support of the search warrant were those of a police officer and an informant. Both the officer and the informant appeared before the issuing judge ‘* * * who consequently had the full opportunity to observe [the informant's] appearance and demeanor and to question him regarding any relevant matter if he considered this necessary to assure himself of the affiant's credibility.’ (1 Cal.3d 152, 81 Cal.Rptr. 618, 460 P.2d 490.) Noting the thrust of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and the cases following it was to insure the magistrate make an independent judgment of the existence of probable cause, the court held probable cause for the issuance of a search warrant could constitutionally be established by an affidavit which contained facts from which the magistrate could conscientiously entertain a strong suspicion of the guilt of the accused and by the appearance of the affiant before the magistrate.
Because the affidavit in Skelton was based not on hearsay but on the sworn statement of the affiant appearing before the magistrate, the court refused to apply the requirements of Aguilar, and held the magistrate's resolution of the issue of probable cause is to be sustained by the reviewing court as long as a substantial basis exists for his conclusion the legitimate objects of the search were probably present on the specified premises. (1 Cal.3d 153, 81 Cal.Rptr. 613, 460 P.2d 485.) The holding was explicitly based upon the rule that it is for the magistrate to determine the credibility of witnesses and affiants appearing before him providing information under oath. (1 Cal.3d 154, fn. 7, 81 Cal.Rptr. 613, 460 P.2d 485.)
Thus, where the affidavit informs the magistrate of some of the underlying circumstances from which the informant has concluded contraband is where he claims it is, and where the magistrate is assured of the reliability of the informant because of the informant's personal appearance and testimony before him, a warrant issued in reliance thereon is not invalid under the Fourth Amendment.
The issuing magistrate was here even more zealous than the magistrate in Skelton in insuring a proper resolution of the question of probable cause. After examining the confidential informant in camera and taking his affidavit, he was satisfied probable cause existed. To hold such a determination was improper under the Fourth Amendment would be to ignore the basic purpose of the warrant procedure, i. e., to insure the judgment of a disinterested judicial officer interpose itself between the police and the citizenry. (See Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637, 645–646.) The circumstances described in the affidavit, based not on unsworn hearsay, but on statements made under oath whose origin was clearly within the personal knowledge and observation of the affiant and the examination of the affiant persuaded the magistrate contraband was present on the specified premises and the affiant was reliable. Under the circumstances, the determination more than adequately satisfied the requirements of the Fourth Amendment. The record demonstrates substantial foundation for the conclusion of the magistrate; we therefore sustain his resolution of the issue.
Petitioner further contends the magistrate erroneously denied disclosure of the identity of the confidential informant at the preliminary hearing. The issue was properly raised at the preliminary hearing; ‘[t]he reasons that require disclosure at the trial also require disclosure at the preliminary hearing, for the defendant has the right at such hearing to cross-examine the prosecution's witnesses (Pen.Code, § 865) and to produce witnesses in his own behalf. (Pen.Code, §§ 864, 866.) The exercise of these rights at the preliminary hearing may enable the defendant to show that there is no reasonable cause to commit him for trial and thus to avoid the degradation and expense of a criminal trial.’ (Mitchell v. Superior Court, 50 Cal.2d 827, 829, 330 P.2d 48, 49–50.)
As we shall discuss below, however, the theory on which petitioner's request for disclosure rested was insufficient to require disclosure at the preliminary hearing. Since the instant proceeding reviews only the propriety of petitioner's commitment and since that question must be determined only on the basis of the transcript of the preliminary hearing, we conclude petitioner's motion under Penal Code, section 995 was properly denied.
Petitioner apparently sought the identity of the undisclosed informant to assist him both in challenging the showing of probable cause made in support of the search warrant and for the purpose of the trial on the merits. It is settled law, however, that California does not require disclosure of the identity of an informant who has supplied information constituting probable cause for the issuance of a search warrant where the ground upon which disclosure is sought is that of attacking probable cause. (Evidence Code, § 1042, subd. b;2 People v. Keener, 55 Cal.2d 714, 723, 12 Cal.Rptr. 859, 361 P.2d 587; People v. Sewell, 3 Cal.App.3d 1035, 1038, 83 Cal.Rptr. 895.) The California law comports with federal constitutional standards. (McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62.) Since, as we have discussed, the search here involve was conducted pursuant to a valid search warrant, the magistrate was correct in denying appellant's motion for disclosure to the extent the motion was founded on the issue of probable cause. Petitioner's motion for disclosure of the informant was also based, however, on the necessity for that information at the preliminary hearing and at trial to show he was not guilty of the offenses charged.
In a series of cases, the California courts have held that when it appears from the evidence an informant is a material witness on the issue of the defendant's guilt and the informant's identity may be helpful to the defendant, nondisclosure would deprive the defendant of a fair trial. Thus, when the accused seeks disclosure, the People must either disclose the informant's identity or incur a dismissal. (People v. Hunt, 4 Cal.3d 231, 93 Cal.Rptr. 197, 481 P.2d 205; Price v. Superior Court, 1 Cal.3d 836, 83 Cal.Rptr. 369, 463 P.2d 721; Honore v. Superior Court, 70 Cal.2d 162, 74 Cal.Rptr. 233, 449 P.2d 169; People v. Garcia, 67 Cal.2d 830, 64 Cal.Rptr. 110, 434 P.2d 366; People v. Perez, 62 Cal.2d 769, 44 Cal.Rptr. 326, 401 P.2d 934; People v. McShann, 50 Cal.2d 802, 330 P.2d 33.)
The defendant's burden of showing the informant is a material witness on the issue of guilt does not require proof of that fact but only some showing the unnamed informant is a material witness. (Price v. Superior Court, supra, 1 Cal.3d 836, 843, 83 Cal.Rptr. 369, 463 P.2d 721; People v. Garcia, supra, 67 Cal.2d 830, 839–840, 64 Cal.Rptr. 110, 116, 434 P.2d 366, 372.) ‘That burden is discharged, however, when defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant's exoneration. ‘No one knows what the undisclosed informer, if produced, might testify. He might contradict or persuasively explain away the prosecution's evidence. It is the deprival of the defendants of the opportunity of producing evidence which MIGHT [original emphasis] result in their exoneration which constitutes the error in this case, and we cannot assume because the prosecution evidence may seem strong that the undisclosed evidence might not prove sufficient to overcome it in the minds of the jurors.’' (People v. Garcia, supra.)
The a affidavit of the unnamed informant described the supplier as a male 22–27 years of age, 5′ 11″ tall, weighing 170 pounds, and with dark curly hair. No description was made of a beard, although the defendant wore a long full beard at the time of the arrest and at the preliminary examination. The informant's affidavit also stated the unnamed supplier had given him a quantity of marijuana for which he was to pay several weeks later. Petitioner argues the discrepancy in the description and the somewhat unlikely credit transaction with an unnamed person suggests the informant was either describing someone other than petitioner or describing a fictitious person in order to feign cooperation with those who arrested him. Petitioner concludes the informant could testify someone else gave him the marijuana, and might thereby establish petitioner did not exercise that degree of dominion and control over the contraband required to sustain a conviction for possession. (See People v. Redrick, 55 Cal.2d 282, 295, 10 Cal.Rptr. 823, 359 P.2d 255.)
Had a potential, plausible theory of defense based on the foregoing contention been presented to the magistrate, petitioner's showing would have been sufficient to require the People to disclose the identity of the informant at the preliminary hearing, or in the alternative, to incur a dismissal. The record would thus have demonstrated a reasonable possibility the undisclosed informant might have given evidence on the issue of guilt which might have resulted in petitioner's exoneration.
Under those circumstances, petitioner would have improperly been denied the right to call and examine the confidential informant at the preliminary hearing. (Penal Code, § 866.) He would have been denied a substantial right, and thus would not have legally been committed within the meaning of Penal Code, section 995. (Jennings v. Superior Court, 66 Cal.2d 867, 874–875, 59 Cal.Rptr. 440, 428 P.2d 304.) Because petitioner would not have been permitted to ‘elicit testimony or introduce evidence tending to overcome the prosecution's case or establish an affirmative defense’ (Jennings v. Superior Court, supra, 880, 59 Cal.Rptr, 449, 428 P.2d 313), the writ of prohibition would have issued. (Penal Code, § 999a.)
However, in proceeding in prohibition under Penal Code, section 999a, appellate review of the action of the trial court in denying a motion properly presented under Penal Code, section 995 is limited to the record actually before the magistrate who committed the petitioner to the superior court. Only the evidence and argument actually received before the magistrate may be examined. (Buck v. Superior Court, 245 Cal.App.2d 431, 433, 54 Cal.Rptr. 282.)
The theory presented to the magistrate on which disclosure actually was sought was stated to be: ‘For the reason that we think he would be a material witness on the issue guilt or innocence, since apparently, according the affidavit which is available to us, he claims to have been in the premises which were served, and to have made observations. And according to this affidavit, would be able to testify as to who in possession of those premises, who was present, and the various matters of fact which are considered in Honore v. Superior Court.'3 The argument was presented to the magistrate at the commencement of the preliminary hearing, before any evidence was introduced or showing of a potential theory of defense made. Without such a showing of the theory of the defense or other pertinent material, the court could only have speculated but could not have determined the existence of a reasonable possibility the evidence which the undisclosed informant could have offered could have been helpful to the defense. (See People v. Sewell, supra, 3 Cal.App.3d 1035, 1039, 93 Cal.Rptr. 895.)4
The magistrate thus did not err in refusing the request for disclosure. The ‘reasonable possibility that the anonymous informant whose identity [was] sought could give evidence on the issue of guilt which might result in defendant's exoneration’ (People v. Garcia, supra, 67 Cal.2d 830, 840, 64 Cal.Rptr. 110, 116, 434 P.2d 366, 372) requires more than the speculation demonstrated at the preliminary hearing. (Cf. People v. McCoy, 13 Cal.App.3d 6, 91 Cal.Rptr. 357; People v. Thomas, 12 Cal.App.3d 1102, 91 Cal.Rptr. 867; People v. Sewell, supra, 3 Cal.App.3d 1035, 83 Cal.Rptr. 895; People v. Martin, 2 Cal.App.3d 121, 82 Cal.Rptr. 414.)
Nor do we agree with petitioner's contention that because a municipal court judge is not a party who may properly assert the privilege to refuse to disclose the identity of an informant, the disclosure of the informant's identity to the magistrate when the warrant was sought was a voluntary disclosure by the prosecution equivalent to a waiver of the privilege to refuse to disclose the identity of the informant.5
The information which the undisclosed informant provided was first disclosed to a law enforcement officer; the factual situation thus satisfies the prerequisite of Evidence Code, section 1041, subd. (b) for the invocation of the privilege of nondisclosure. The later disclosure of the identity of the informant to the magistrate was not a waiver of the privilege since both the police and the district attorney retained the privilege to prevent the magistrate from disclosing the identity of the informant.6 Under these circumstances the prosecution's assertion of the privilege was properly sustained.
We do not intend by any of the foregoing to preclude further attempts by petitioner to discover the identity of the confidential informant. As indicated by the superior at the hearing on the motion to set aside the information (Penal Code, section 995), petitioner may still obtain disclosure of the informant's identity by a proper showing on a pretrial motion.
Petitioner claims he was erroneously denied the right to call Officer Celmer, the signer of one of the affidavits in support of the search warrant; he also suggests error in the refusal of the magistrate to allow examination of several other witnesses who in some way participated in the arrest of the confidential informant. Petitioner apparently attempted to call Officer Celmer and the other witnesses both under Penal Code, sections 1539 and 1540, and under Penal Code, section 1538.5; whether under sections 1539 and 1540, or section 1538.5, however, petitioner's purpose was to controvert the truth of the matters asserted in the affidavits in support of the search warrant.
Sections 1539 and 1540 provide that if the grounds for issuance of the warrant are controverted and a motion to return property be made, a hearing shall be held, and if the magistrate finds there is no probable cause for believing the grounds on which the warrant was issued, or if the property taken was not that described in the warrant, the magistrate must restore the property to the person from whom it was taken. (See People v. Butler, 64 Cal.2d 842, 844, 52 Cal.Rptr. 4, 415 P.2d 819.) The purpose of sections 1539 and 1540 is not, however, to regulate the procedure for objecting to the introduction of evidence in criminal trials, but to afford the person from whom property was wrongfully seized an expeditious remedy for its recovery. (People v. Butler, supra, 845, 52 Cal.Rptr. 4, 415 P.2d 819; Aday v. Superior Court, 55 Cal.2d 789, 800, 13 Cal.Rptr. 415, 362 P.2d 47.)
Petitioner here did not seek the recovery of the seized property; the record is clear that he sought only to examine the witnesses in order to controvert the truth of the matters asserted in the affidavit in support of the search warrant. Moreover, the property seized could not have been returned to petitioner since it was contraband. (People v. Butler, supra, 64 Cal.2d 842, 845, 52 Cal.Rptr. 4, 415 P.2d 819; Aday v. Superior Court, supra, 55 Cal.2d 789, 799–800, 13 Cal.Rptr. 415, 362 P.2d 47.) Finally, inasmuch as Penal Code, section 1538.5, subd. m fails to list sections 1539 and 1540 as among the sole and exclusive remedies available to test the unreasonableness of a search and seizure, sections 1539 and 1540 may not be independently used to test the unreasonableness of a search and seizure where a defendant seeks only to suppress evidence which has or will be offered against him, and does not also seek the return of the seized property.7 We thus conclude the magistrate's refusal to allow petitioner to examine Officer Celmer and the other witnesses under Penal Code, sections 1539 and 1540 was not erroneous.
The question whether petitioner was properly denied the right to examine the officer and the other witnesses under Penal Code, section 1538.5 is more abstract. Section 1538.5, subd. (a)(2)(iii) specifies a defendant may move for the return of property or to suppress seized evidence on the ground no probable cause existed for the issuance of the search warrant. Counsel have cited no California case to us, and independent research has disclosed none, which has squarely decided whether section 1538.5, subd. (a)(2)(iii) refers only to challenges to the sufficiency of the averments in the affidavits on which the search warrant was issued or whether it also allows a defendant to controvert the truth of the averments in the affidavits.8
The right to make such an attack is an issue that is still unsettled in California and in the federal courts.9 Authority on the question is limited and it has been characterized as a ‘difficult‘ and ‘troublesome’ question. (See United States v. Ramos, supra, 380 F.2d 717; Mascolo, ‘Impeaching the Credibility of Affidavits for Search Warrants: Piercing the Presumption of Validity,’ supra, 44 Conn. B.J. 9; Note, ‘Testing the Factual Basis for a Search Warrant,’ supra, 67 Colum. L.Rev. 1529.) Whether the right to make such an attack is constitutionally required has not been determined by the United States Supreme Court. As the court noted in Rugendorf v. United States, supra, 376 U.S. 528, 532, 84 S.Ct. 825, 827–828, 11 L.Ed.2d 887:
‘Petitioner attacks the validity of the search warrant. This Court has never passed directly on the extent to which a court may permit such examination when the search warrant is valid on its face and when the allegations of the underlying affidavit establish ‘probable cause’ * * *.'
Two views have been expressed in those jurisdictions which have dealt directly with the problem. The import of cases allowing such a challenge such as People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S. 243, 211 N.E.2d 644, is this: When the Fourth Amendment demands a factual showing sufficient to establish ‘probable cause,’ clearly the underlying predicate assumes a truthful showing. Only on the basis of the actual state of facts can a magistrate act in fact as the disinterested arbiter of a police request to act in a manner otherwise unconstitutional. Since a search warrant issues on an ex parte application, without opportunity for rebuttal, investigation of the truthfulness of the underlying affidavit would enhance the Fourth Amendment protection against the issuance of groundless warrants, by deterring intentional or negligent falsification of affidavits offered in support of warrants. (See People v. Mitchell, 45 Ill.2d 148, 258 N.E.2d 345, 349, cert. den. 400 U.S. 882, 91 S.Ct. 117, 27 L.Ed.2d 120 (Schaefer, J., dissenting).) ‘Assurance that at some point the statements in an affidavit will be subjected to real adversarial scrutiny is seen as the best deterrent to perjury.’ (Note, ‘Testing the Factual Basis for a Search Warrant, supra, 67 Colum.L.Rev. 1529, 1531.)10
Moreover, one of the potential benefits to be derived from allowing a defendant to attack the truthfulness of the matters asserted in support of a warrant is the preservation of the integrity of search and seizure procedures—to insure that the judiciary does not give its unreviewable imprimatur to perjured or grossly inaccurate information. (See People v. Bak, supra, Ill.2d 140, 258 N.E.2d 341, 345, cert. den. 400 U.S. 882, 91 S.Ct. 117, 27 L.Ed.2d 121 (Ward, J., dissenting).)
The view denying the right to such a veracity attack is perhaps best represented by People v. Bak, supra, 45 Ill.2d 140, 258 N.E.2d 341, cert. den. 400 U.S. 882, 91 S.Ct. 117, 27 L.Ed.2d 121:
‘This majority of the court believes that both [Illinois and federal] constitutions contemplate only that a judicial officer find probable cause for the issuance of a warrant based on the evidence under oath that has been presented to him by the one requesting the warrant. It is contemplated that the credibility of the affiant or others offering evidence is for the judicial officer. If he finds the evidence worthy of belief and sufficient to from probable cause, this judicial determination cannot be relitgated through a later disputing of the evidence. Should an affiant betray the confidence in his integrity which is contemplated by the ex parte proceeding and intentionally make misrepresentations to the judicial officer, he can be punished for the offense. In People v. McGrain, 38 Ill.2d 189, 190–191, 230 N.E.2d 699, it was correctly asserted that ‘the rule [is] that the constitutional guarantee against unreasonable searches and seizures requires that the complaint must state the underlying facts on which the complainant bases his belief with such definiteness that, if the complaint is false, perjury may be assigned upon it.’ That this and no more are contemplated by the procedure for finding probable cause and issuing search warrants is supported by the expression of the Supreme Court of New Jersey (State v. Burnett, 42 N.J. 377, 201 A.2d 39) which the Supreme Court in McCray v. Illinois, 386 U.S. 300, adopted at p. 307, 87 S.Ct. 1056, at 1060, 18 L.Ed.2d 62: ‘The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we have said, the magistrate is concerned, not with whether the informant lied, but with whether the affiant is truthful in his recitation of what he was told. If the magistrate doubts the credibility of the affiant, he may require that the informant be identified or even produced.’ 386 U.S. 300, 307, 87 S.Ct. 1056, 1060, 18 L.Ed.2d 62, 68.'
Thus the threat posited as the justification for allowing attacks on the truthfulness of search warrant affidavits is seen as largely eliminated by the available sanctions for perjury. ‘To render him liable to the possible sanction of perjury is the very purpose of requiring the affiant to take the oath.’ (Dawson v. State, 11 Md. App. 694, 276 A.2d 680, 691.)
Other considerations have also been advanced for denying a defendant the right to controvert the truth of the matters asserted in affidavits in support of search warrants. The question, after all, is not one of guilt or innocence; the issue before us arises only because a search proved productive. While this ground alone could not validate a lawless search (United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210), it serves as a reminder of the social costs of an unwarranted extension of search and seizure principles. A closely related question is an estimation of the potential benefit of such a procedure considering the inevitably heavy burden which would be imposed upon the trial courts contrasted with the speculative risk posed by warrants issued on inaccurate or perjured affidavits. It is also pertinent to note that the procedure for which petitioner presses can not be the cornerstone of the warrant procedure. Accordingly, if the function of the issuing magistrate is to be more than a formality, and if the independence of his judgment is to be appropriately encouraged, his decision should not be retried de novo as a routine practice. (United States v. Halsey, supra, 257 F.Supp. 1002, 1006; see also Rosencranz v. United States, 1 Cir., 356 F.2d 310, 317.)
Moreover, to recognize the right which petitioner asserts in its entirety would lose sight of the principles underlying the exclusionary rule. To quash a search warrant and thereby suppress seized evidence where only an inaccurate, but not knowingly inaccurate, affidavit has been presented can not serve a deterrent purpose, either to the police or to the informants upon whom they rely. Only where knowing inaccuracies are offered in affidavits in support of search warrants can suppression of evidence seized under the warrant thereby obtained serve a deterrent purpose. (Cf. In re Imbler, 60 Cal.2d 554, 560, 35 Cal.Rptr. 293, 387 P.2d 6, In re Lindley, 29 Cal.2d 709, 722, 177 P.2d 918.)
Although a number of California cases have stated a warrant may be invalidated only if the affidavit fails as a matter of law to set forth sufficient competent evidence supporting the magistrate's finding of probable cause (see, e. g., Skelton v. Superior Court, 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485; People v. Cain, 15 Cal.App.3d 687, 694–695, 93 Cal.Rptr. 388; Frazzini v. Superior Court, 7 Cal.App.3d 1005, 1014–1015, 87 Cal.Rptr. 32), petitioner suggests there is statutory authority to dispute the truth of the affidavits in the language of Penal Code, section 1538.5, subd. (a)(2)(iii). That section provides: ‘(a) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on * * * the following grounds: * * * (2) The search or seizure with a warrant was unreasonable because * * * (iii) there was not probable cause for the issuance of the warrant.’
The legislative history of Penal Code, section 1538.5 gives no guidance to the resolution of this issue. The Appendix to the Journal of the Assembly, Vol. 2, 1967 Session, makes no reference to any such interpretation in its discussion of search and seizure problems in California. However, the plain language of the section relates to probable cause; no language explicitly mentions credibility of affidavits or inaccurate affidavits. If the Legislature intended to grant the right for which petitioner contends, it could easily have said so.11 Without a clear expression of the legislative mandate, and in light of the policy considerations discussed above, we do not think a fair reading of section 1538.5 supports the interpretation petitioner asserts.
Petitioner also contends, however, People v. Butler, supra, 64 Cal.2d 842, 52 Cal.Rptr. 4, 415 P.2d 819 permits such a challenge. Butler was decided in 1966, prior to the adoption of Penal Code, section 1538.5 in 1967. As we read Butler, it determined only that a defendant may challenge, at his preliminary examination or at his trial, the validity of a warrant whether or not he had previously attacked the validity of the warrant under sections 1539 and 1540 of the Penal Code. However, as we have noted above, those sections provide an expeditious method for the recovery of property wrongfully seized; they were not designed to regulate the procedure for objecting to the introduction of evidence (People v. Butler, supra, 845, 52 Cal.Rptr. 4, 415 P.2d 819) and do not support the claim petitioner asserts.
Thus, our conclusion is this: Penal Code, section 1538.5 does not permit a defendant against whom or against whose property a search warrant has been directed to attempt to suppress evidence seized thereunder by disputing the matters declared under oath which led to a finding of probable cause and the issuance of the search warrant.
Nor do we think a contrary result is constitutionally compelled. The policy considerations discussed before, and the cases do not dictate a contrary result. The only question with which a court reviewing the validity of a warrant is concerned is ‘* * * whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched * * *.’ [Emphasis added.] (Dumbra v. United States, 268 U.S. 435, 441, 45 S.Ct. 546, 549, 69 L.Ed. 1032, 1036; see also McCray v. Illinois, supra, 386 U.S. 300, 307, 87 S.Ct. 1056, 18 L.Ed.2d 62; People v. Bak, supra, 45 Ill.2d 140, 258 N.E.2d 341.) Probable cause, not moral certainty, is the constitutional standard.
Whether the constitution requires a contrary result when a defendant presents specific, non-conjectural allegations of perjury in the affidavits on which a search warrant was issued is a question on which we express no opinion. (Cf. Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214; Mooney v. Holohan, 294 U.S. 103, 112–113, 55 S.Ct. 340, 79 L.Ed. 791; In re Imbler, supra, 60 Cal.2d 554, 560, 35 Cal.Rptr. 293, 387 P.2d 6; In re Mooney, 10 Cal.2d 1, 15, 73 P.2d 554; see People v. Nakon, 46 Ill.2d 561, 264 N.E. 2d 204; State v. Carluccio, supra, 116 N.J. Super. 49, 280 A.2d 853.) Petitioner here asserted only that he intended: ‘* * * to examine the affiant as to the truth of the matters stated in his affidavit on which the warrant was issued,’ because ‘* * * frankly, we do not believe the statements which are set forth in the affidavit, and we feel the factual inconsistencies will be shown by the examination of the affiant.’ On this basis the magistrate did not err in refusing to allow petitioner to controvert the averments in the affidavits on which the search warrant was issued.
The petition for a writ of prohibition or mandate is denied.
1. When the envelope was sealed, the judge attached the following statement to the outside:‘I have examined the confidential informant under oath on this date of February 4, 1971, along with the written affidavit form which was signed by him under oath administered by myself. This affidavit has been placed within the enclosed envelope and sealed from view, and said envelope shall not be opened except by authority of court, under penalty of contempt. This affidavit contains the substance of the testimony of the confidential informant, to-wit: his identity and specific details pertaining to the past experience that the aforesaid affiant confidential informant has had with the person and residence which are the subject of the warrant and which, if revealed to public view, would identify the said informant, and thereby interfere with effective law enforcement and tend to endanger the said informant's physical safety and well-being, as alleged by the affiant Mike Celmer in his affidavit in support of and petition for search warrant. This sealed affidavit also contains specific details relating to the knowledge of the affiant informant with regard to the information that the informant has given to affiant. Mike Celmer, which, if revealed to public view would tend to identify said affiants informant, and thereby interfere with effective law enforcement and tend to endanger said informant's physical safety and well-being as alleged by the affiant in his affidavit in support of the petition for search warrant. I am satisfied that the said informant exists and the affidavit herein contained supports the affidavit on the search warrant and under the rule of ROBERT LEE SKELTON v. SUPERIOR COURT, [1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485] the Supreme Court decision filed on November 12, 1969, there is a reasonable basis for believing that the facts related by the informant are based upon either personal recent knowledge or some other reliable basis of recent origin, and that the affiants informant is a credible witness.’This statement was made no part of the record in either the municipal or superior courts, and we accordingly do not consider it here in support of the search warrant.
2. Evidence Code, section 1042, subd. (b) reads: ‘Notwithstanding subdivision (a), where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it.’
3. Honore v. Superior Court, supra, 70 Cal.2d 162, 74 Cal.Rptr. 233, 449 P.2d 169, issued a peremptory writ of mandate to order the disclosure of the identity of a confidential informer on penalty of dismissal if it was not done.
4. We see no constitutional infirmity in the requirement a defendant base his motion for disclosure on a potential theory of the defense. (See Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446; Prudhomme v. Superior Court, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673; People v. Pike, 71 Cal.2d 595, 78 Cal.Rptr. 672, 455 P.2d 776; Jones v. Superior Court, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919.)
5. Evidence Code, section 1041, subd. (b) specifies the privilege therein applies only if ‘ * * * the information is furnished in confidence by the informer to: (1) A law enforcement officer; (2) A representative of an administrative agency charged with the administration or enforcement of the law alleged to be violated; or (3) Any person for the purpose of transmittal to a person listed in paragraph (1) or (2).’
6. Evidence Code, section 1041, subd. (a) specifies: ‘* * * [A] public entity has a privilege to refuse to disclose the identity of a person who has furnished information as provided in subdivision (b) purporting to disclose a violation of a law * * * of this state, * * * and to prevent another from disclosing such identity * * *.’ [Emphasis added.]
7. Section 1539, as originally enacted in 1872 provided: ‘If the grounds on which the warrant was issued be controverted, he [the magistrate] must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and authenticated in the manner proscribed in Section 869.’ Before section 1539 was amended at the time of enactment of Penal Code, section 1538.5, it had been interpreted to allow a defendant to quash a search warrant by showing the grounds upon which the warrant was issued were untrue. (See, e. g., People v. Keener, 55 Cal.2d 714, 12 Cal.Rptr. 859, 361 P.2d 587; Dunn v. Municipal Court, 220 Cal.App.2d 858, 34 Cal.Rptr. 251; People v. Prieto, 191 Cal.App.2d 62, 12 Cal.Rptr. 577; People v. Perez, 189 Cal.App.2d 526, 11 Cal.Rptr. 456; People v. Dosier, 180 Cal.App.2d 436, 4 Cal.Rptr. 309; People v. Lepur, 175 Cal.App.2d 798, 346 P.2d 914; People v. Nelson, 171 Cal.App.2d 356, 340 P.2d 718; People v. Phillips, 163 Cal.App.2d 541, 329 P.2d 621; People v. Thornton, 161 Cal.App.2d 718, 327 P.2d 161; Arata v. Superior Court, 153 Cal.App.2d 767, 315 P.2d 473.)However, because of People v. Butler, supra, 64 Cal.2d 842, 52 Cal.Rptr. 4, 415 P.2d 819, and because of the limitation of remedies under Penal Code, section 1538.5, subd. m available to test the reasonableness of a search and seizure, we think the foregoing cases are valid authority for interpreting Penal Code, sections 1539 and 1540 to allow a defendant to suppress evidence illegally seized by showing the grounds upon which the warrant was issued were untrue, only where he also seeks the return of the property seized. (See Aday v. Superior Court, supra, 55 Cal.2d 789, 799, 13 Cal.Rptr. 415, 362 P.2d 47; Williams v. Justice Court, 230 Cal.App.2d 87, 40 Cal.Rptr. 724; People v. Bonanza Printing Co., 271 Cal.App.2d Supp. 871, 76 Cal.Rptr. 379; see also People v. Luros, 4 Cal.3d 84, 88, 92 Cal.Rptr. 833, 480 P.2d 633.) The specification of section 1539, subd. a that a motion under that section be made ‘* * * on grounds not covered by Section 1538.5’ seems to indicate sections 1539 and 1540 as now effective were designed as a means for early determination of the alleged obscenity or contraband nature of seized material. (See People v. Luros, supra; see also Penal Code, § 1538.5, subd. n.)
8. The principal case in California which has come to our attention in connection with this problem is Lockridge v. Superior Court, 275 Cal.App.2d 612, 80 Ca.Rptr. 223. In Lockridge, a proceeding in prohibition or mandamus under Penal Code, section 1538.5, subd (i), invalidated a search warrant as being based on an insufficient affidavit and because it was issued without probable cause. The court, however, did not directly consider whether Penal Code, section 1538.5 should be interpreted to permit a challenge because of false or erroneous statements in the affidavit in support of a search warrant. The court stated that from the testimony at the suppression hearing ‘* * * it is at once evident that numerous allegations in the affidavit are either false or erroneous. Indeed, the People concede the incorrectness of two such allegations * * *.’ The transcript in Lockridge establishes that the deputy district attorney, before any issue relating to the truthfulness of the affidavit for the search warrant was raised, stated: ‘Your Honor, it is my understanding that counsel wish to go beyond the face of the search warrant and contest it * * * If counsel wish to go behind it, then they may conduct an examination of the witness responsible for the issuance of it.’ Both defense counsel responded: ‘That is satisfactory’ and ‘That's all right.’ The court then stated: ‘All right’. An extensive examination taking several days then followed. The defendants in Lockridge did not initially raise the issue; it was apparently assumed that it was properly before the judge hearing the suppression motion. The Court of Appeal felt it was incumbent upon it to excise the inaccuracies disclosed by the evidence from the affidavit and, after such excision, found there was a paucity of information from which the magistrate could conclude there was probable cause for the issuance of the search warrants. Three cases were relied on in Lockridge: United States v. Roth, 7 Cir., 391 F.2d 507, Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 and Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. Roth rests not on a constitutional basis, but on an interpretation of Federal Rule of Criminal Procedure 41(e)(4), Rugendorf assumed such a challenge was permissible, but did not so decide, and Beck dealt not with search warrants, but with an arrest without a warrant.
9. Commentators in various law reviews have argued the propriety of such a procedure. (See, e. g., Kipperman, ‘Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence,’ 84 Harv.L.Rev. 825; Note, ‘Testing the Factual Basis for a Search Warrant,’ 67 Colum.L.Rev. 1529; Mascolo, ‘Impeaching the Credibility of Affidavits for Search Warrants: Piercing the Presumption of Validity,’ 44 Conn.B.J. 9; Note, 51 Cornell L.Q. 822; Note, 34 Fordham L.Rev. 740; Note, 15 Buffalo L.Rev. 740; Note, 32 Brooklyn L.Rev. 423.)The procedure has been adopted in a number of cases, both state (see, e. g., People v. Alfinito, 16 N.Y.2d 181, 264 N.Y.S.2d 243, 211 N.E.2d 644; O'Bean v. State (Miss.), 184 So.2d 635; contra: Tucker v. State, 244 Md. 488, 224 A.2d 111; State v. Burnett, 42 N.J. 377, 201 A.2d 39; Southard v. State (Okl.Cr.), 297 P.2d 585; Owens v. State, 217 Tenn. 544, 399 S.W.2d 507; Hernandez v. State, 158 Tex.Cr.R. 296, 255 S.W.2d 219; People v. Bak, 45 Ill.2d 140, 258 N.E.2d 341, cert. den. 400 U.S. 882, 91 S.Ct. 117, 27 L.Ed.2d 121; Parker v. State (Ga.), 183 S.E.2d 612), and federal (see, e. g., Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (assuming, but not deciding); United States v. Bridges, 8 Cir., 419 F.2d 963 (same); United States ex rel. Pugh v. Pate, 7 Cir., 401 F.2d 6, cert. den. 394 U.S. 999, 89 S.Ct. 1590, 22 L.Ed.2d 777; United States v. Roth, 7 Cir., 391 F.2d 507; United States v. Ramos, 2 Cir., 380 F.2d 717 (assuming but not deciding); United States v. Suarez, 2 Cir., 380 F.2d 713 (same); United States v. Bozza, 2 Cir., 365 F.2d 206 (same); United States v. Freeman, 2 Cir., 358 F.2d 459 (dictum), cert. den. 385 U.S. 882, 87 S.Ct. 168, 17 L.Ed.2d 109; United States v. Bowling, 6 Cir., 351 F.2d 236 (assuming, but not deciding), cert. den. 383 U.S. 908, 86 S.Ct. 888, 15 L.Ed.2d 663; United States v. Dunnings, 2 Cir., 425 F.2d 836 (same); United States v. Pearce, 7 Cir., 275 F.2d 318 (dictum); Atlanta Enterprises v. Crawford, D.C., 22 F.2d 834; United States v. Ortiz, D.C., 311 F.Supp. 880 (assuming, but not deciding); United States v. Averell, D.C., 296 F.Supp. 1004 (same); United States v. Carignan, D.C., 286 F.Supp. 284; United States v. Halsey, D.C., 257 F.Supp. 1002; United States v. Henderson, D.C., 17 F.R.D. 1; Lerner v. United States, D.C.Mun.App., 151 A.2d 184; contra: United States v. Ketterman, D.C., 276 A.2d 243; Kenney v. United States, 81 U.S.App.D.C. 259, 157 F.2d 442; United States v. Brunett, D.C., 53 F.2d 219; United States v. Gianaris, D.C., 25 F.R.D. 194; United States v. Doe, D.C., 19 F.R.D. 1).
10. We note, however, the Alfinito holding is limited to allowing an inquiry only into the question whether the affidavits offered in support of a search warrant were perjurious, and not into the question whether the affidavits were merely erroneous. (People v. Solimine, 18 N.Y.2d 477, 480, 276 N.Y.S.2d 882, 884, 223 N.E.2d 341, 342; see also State v. Carluccio, 116 N.J.Super. 49, 280 A.2d 853.)
11. The language thus differs from that of Penal Code, sections 1539 and 1540 which, as effective before their modification in 1967, had been interpreted to allow a challenge to the truthfulness of search warrant affidavits. Section 1539 then read: ‘If the grounds on which the warrant was issued be controverted * * *’ The language also differs from that of Federal Rule of Criminal Procedure 41(e) which has also been interpreted to allow such a challenge. Rule 41(e) allows a motion to suppress when ‘* * * there was not probable cause for believing the existence of the grounds on which the warrant was issued.’
GABBERT, Associate Justice.
KERRIGAN, Acting P. J., and KAUFMAN, J., concur.