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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel Gary COOK, Defendant and Appellant.

Cr. 27379.

Decided: November 30, 1976

Carsel & Carsel and Richard A. Carsel, San Luis Obispo, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda and Michael Nash, Deputy Attys. Gen., for plaintiff and respondent.

Defendant Daniel Gary Cook was charged in a six-count indictment with violations of Health and Safety Code sections 11357 (possession of marijuana), 11377 (possession of chloral hydrate), 11383 (possession of mathylamine and phenyl-2-propanone with intent to manufacture methamphetamine), 11379 (manufacture of amphetamines), and 11378 (possession of a restricted dangerous drug for sale). Defendant initially pled not guilty; following denial of his Penal Code section 1538.5 motion to suppress evidence and return property, defendant pled guilty as charged. Criminal proceedings were suspended. Probation was granted for a period of five years upon terms and conditions prescribed by the court.1 This appeal followed.


On June 25, 1974, pursuant to a warrant, law enforcement officers conducted an extensive search of defendant's residence. The warrant was issued on the basis of an affidavit submitted by Detective Gregory of the San Luis Obispo Police Department, the substance of which is as follows: On two separate occasions named, federal narcotic agents requested that the affiant investigate a business organization called ‘Cen-Coast Scientific,’ which had ordered chemicals primarily used in the production of dangerous drugs. On June 25, 1974, the date of the second such request, the affiant received a phone call from the manager of rental units, Mr. H. E. Smith, who advised the affiant that he had visited defendant Cook's residence for the purpose of evicting him because of his failure to pay rent. Defendant was not home when Smith arrived, and Smith used his passkey to enter. Once inside, Smith ‘observed several large pieces of chemical apparatus' which were ‘apparently operating.’ The affidavit provided detailed measurements of the ‘chemical apparatus' observed by Smith. Smith advised the affiant that he also observed a pill-making machine and several guns. The affiant, together with Detective Osteyee, immediately proceeded to defendant's residence. Upon their arrival, the two detectives found Smith inside the residence, ‘the front door to which was fully opened.’ Through the open door and in the adjoining room, the affiant observed the aforementioned chemical apparatus. The affiant also recited the names of chemicals which he ‘observed’ on large, labeled bottles in the adjoining room, and the two noticed ‘an unusual odor similar to a compound of ether, acetone and stale urine.’ They also observed a marijuana ‘roach’ in plain sight (on the floor of the residence, approximately 18 inches inside the front door), which they seized. The affidavit included the information that defendant was an ex-chemistry major at ‘Cal Poly University’ and a copy of a business license application filed by defendant Cook with the clerk of the City of San Luis Obispo. The application, for ‘Cen-Coast Scientific,’ lists the business purpose as ‘mail order biological supplies and equipment.’ The affidavit concludes by relating opinions which the affiant obtained from Charles Hall, a Federal Drug Enforcement Administration chemist, who informed the affiant that the apparatus, odor and chemical indicated the manufacture of amphetamines.

The search which was conducted pursuant to the warrant resulted in an arrest warrant being issued for defendant Cook. On June 28, 1974, defendant surrendered to officers; he was arrested and subsequently released on bail. On September 26 the instant indictment was returned and arraignment was scheduled before Judge James A. Madden on September 30, 1974. Prior to his appearance, defendant filed a peremptory disqualification motion under Code of Civil Procedure section 170.6. The arraignment was continued to October 15. Judge Carter heard the arraignment and set defendant's motion to suppress evidence under section 1538.5 for hearing on October 31, 1974. During the arraignment, defendant learned that Judge Madden had died earlier that day. He thereafter filed a motion to withdraw his previous disqualification of Judge Madden.

On October 30, 1974, defendant filed his declaration in support of the 1538.5 motion. In his declaration he alleged that the affidavit submitted by Detective Gregory in support of the issuance of the search warrant contained a number of intentional, factual misstatements and omissions, including the following:

1. Many of the affidavit's allegations ‘were based upon information or observations obtained by law enforcement officers as the direct result of at least two (2) prior illegal and warrantless searches of Defendant's home on the day the search warrant was obtained.’ (Emphasis in original.)

2. The deputy district attorney and the affiant who drafted the affidavit and the warrant had participated in at least one of those illegal searches.

3. Contrary to the affidavit's implications, Smith did not measure the chemical apparatus. In addition, Smith did not provide the law enforcement officers with any measurements or approximations.

4. There was no pill-making machine in defendant's residence; and the affiant, who had unlawfully entered the defendant's residence on that day, should have been aware of this fact.

5. It was physically impossible for the affiant to read the chemical labels from his alleged station outside the front door.

6. The front door to defendant's residence was not fully opened when the police arrived. In addition, Smith was standing in the doorway, obstructing the affiant's view inside the residence.

7. Smith, pursuant to the officer's directions, went into an unobservable interior room, and brought suspected marijuana into the officers' plain sight.

8. The affidavit was intentionally drafted so as to mislead the issuing magistrate.

At the commencement of the hearing on October 31, defendant's motion to withdraw his disqualification of Judge Madden was denied by Judge Timothy O'Reilly. Defendant then attempted to call Detective Gregory as a witness in the 1538.5 hearing. The deputy district attorney objected to the taking of testimony on the defense motion on the ground that the defendant is limited to his declaration on the ground stated in the motion, and that under Theodor v. Superior Court, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234, if the prosecution is unable to establish that the police were reasonable in believing the facts stated to be true, the court is obliged to excise those statements and test the affidavit on the remaining facts to determine if probable cause is established. The prosecution then moved to voluntarily excise those portions of the search warrant affidavit which had been challenged by defendant. In making this motion, the prosecution contended that the excise rules of Theodor v. Superior Court, supra, were controlling. The deputy district attorney stated his position as follows:

‘It is my contention, and I will be happy to show to the Court and counsel that taking counsel's declaration at face value, without conceding that anything in there is correct, and I certainly don't concede that anything in there is correct, but if it were, and that if it were, and that if Court were to follow Theodor and excise from the affidavit those sections about which counsel complains, that the affidavit will still stand and would support the probable cause to issue the warrant. It is my position that that is the only issue before the Court. . . .’

Over defendant's objection, the trial court accepted the prosecution's interpretation of Theodor, and allowed the prosecution to voluntarily excise the objectionable facts from the affidavit.2 Accordingly, the court refused to permit the defendant (1) to call the affiant to the stand; (2) to call any witnesses for the purpose of attacking the affidavit's allegations; or (3) to call any witnesses to attack the credibility of the affiant. A chart containing the remaining unobjectionable facts was then introduced into evidence by the prosecution.3 The following information was contained in the chart:

1. Single family residence;

2. Two orders of phenylaceti acid;

3. Defendant is an ex-chemisty major;

4. Business license, biological supplies plus equipment.

5. Landlord observes:

(a) unusual odor

(b) large pieces of chemical apparatus

(c) fan

(e) guns in residence4

6. From front door, police see:

(a) chemical apparatus

(b) Osteyee smells odor of acetone, ether, or stale urine.

The trial court limited the subject matter of the hearing which followed to the material contained in the chart and the testimony of Charles Hall, the Federal Drug Enforcement Administration chemist. The trial court held that the ‘excised’ affidavit was legally sufficient to support the issuance of the search warrant, and denied defendant's 1538.5 motion.

On November 20, 1974, defendant changed his plea to guilty on all counts charged in the indictment.


Defendant's primary contentions can be summarized follows:

1. The refusal of the trial court to allow defendant to litigate any factual issues regarding alleged intentionally false allegations contained in the search warrant affidavit deprived him of due process.

2. Defendant was entitled to litigate his allegation that facts unfavorable to the police should have been included in the search warrant affidavit.

3. The refusal of the trial court to allow defendant to examine the chemist as to statements allegedly made to him prior to his speaking with affiant police officer was a substantial denial of due process.

4. The evidence remaining in the affidavit was not sufficient to establish probable cause for the issuance of the search warrant.

5. The trial court's refusal to permit defendant to withdraw his motion to disqualify Judge Madden was an abuse of discretion which deprived defendant of due process of law.



Defendant's basic contention regarding the search warrant is that if the affidavit contains intentionally false statements, then the search warrant must be quashed even though the facts remaining after the false statements have been excised constitute probable cause for the warrant. We are not persuaded.

Theodor v. Superior Court, supra, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234, is not authority for this proposition. The remedy for unreasonable false statements prescribed by the Supreme Court in Theodor is that they be excised from the affidavit and that the affidavit then be tested for sufficiency of probable cause on the basis of the remaining facts. (Id. at p. 101, fn. 14, 104 Cal.Rptr. 226, 501 P.2d 234.) Both negligent and intentional false statements are included within the class of unreasonable false or inaccurate statements. The court expressly did not rule that the inclusion of intentionally false statements in a search warrant affidavit should automatically result in its being quashed and all the evidence obtained under it suppressed. (Id.)

Our dissenting colleague reviews for us the basic principles of law set forth by Theodor v. Superior Court, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234, and Skelton v. Superior Court, 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485, with which we have no disagreement. These principles of law, however, are not authority for the conclusion reached in the dissent.

The dissent stresses the two-step function of the magistrate: (1) the determination of the acceptability of the facts stated in the affidavit and (2) the determination whether those facts, if true, legally constitute probable cause to justify a search. It is well settled that it is the function of the ‘neutral and detached magistrate’ rather than for the police officer alone to determine whether the assumed facts constitute probable cause. (Aguilar v. Texas, 378 U.S. 108, 112–113, 84 S.Ct. 1509, 12 L.Ed.2d 723; Note, The Outwardly Sufficient Search Warrant Affidavit: What If It's False?, 19 U.C.L.A.L.Rev. 96, 100 (1971).) The dissent, however, fails to recognize the function of the superior court Theodor hearing in this process.

Step (1) in a Theodor hearing in superior court is the determination of the truth or falsity of disputed statements contained in the affidavit. The superior court in a Theodor hearing has a far more reliable method of determining the truth or falsity of those facts than is available to the magistrate. The Theodor hearing on disputed facts is an adversary proceeding involving presentation of evidence and cross-examination of witnesses.

The Theodor hearing thus substitutes a fact-finding procedure for step (1) in the magistrate's function. In this case, of course, a full hearing was made unnecessary by the excision of all disputed facts from the affidavit. Once step (1) is completed, there is left only the question of law, step (2), whether those facts support a reasonable inference that a crime is being committed.

In its stress on the magistrate's function, the dissent totally overlooks the function of the superior court and unrealistically ignores the object of the proceedings, the determination of probable cause. Stripped of its legalese, all the dissent is saying is that if even one intentionally false material statement is made by an affiant the affidavit must be quashed in order to ‘ensure that the magistrate performs a meaningful role in determining the existence or non-existence of probable cause for the issuance of a search warrant.’ This suggested innovation shifts the focus of the Theodor hearing from a testing for probable cause to a hunt for one intentionally false statement. There is absolutely no legal or commonsense reason to quash the warrant if the remaining facts constitute probable cause. A defendant suffers no greater prejudice from an intentionally false statement than he does from a reasonable or negligent false statement. The basic difference is the culpability of the affiant which can be dealt with directly. The purpose of this whole process is the determination of probable cause, and it would not be in the interests of justice to quash the warrant notwithstanding that the remaining facts support probable cause.

The purposes of the exclusionary rule are fully satisfied by excluding the false statements from consideration. (See People v. Cahan, 44 Cal.2d 434, 445–448, 282 P.2d 905; People v. Valenti, 49 Cal.2d 199, 203, 316 P.2d 633.) Where the remaining unobjectionable facts stated in the affidavit support issuance of the warrant and the validity of the search, to automatically quash the warrant is entirely unnecessary and would only penalize the public.

As to the collateral issue of the culpability of an affiant who intentionally includes false statements in his affidavit, the law provides a much more direct and effective remedy than quashing the warrant. The affidavit for a search warrant is required to be under oath. (Cal.Const., art. I, § 13; Pen.Code, §§ 1525–1526; Code Civ.Proc., § 2003.) The very purpose of requiring such oath is to subject the affiant to prosecution for perjury. (Clifton v. Superior Court, 7 Cal.App.3d 245, 254, 86 Cal.Rptr. 612; People v. Barrowclough, 39 Cal.App.3d 50, 54, 113 Cal.Rptr. 852.) If he commits a crime in order to apprehend a criminal, then neither should go free.5


Defendant's next contention is that he should have been permitted to litigate his allegation that facts unfavorable to the police should have been included in the search warrant affidavit. He cites People v. Barger, 40 Cal.App.3d 662, 115 Cal.Rptr. 298 as authority for that position. Barger does not support defendant's argument. It held that certain omitted facts relevant to an informant's credibility, even if included in the affidavit, would not have destroyed the informant's reliability or rendered the affidavit insufficient. (See also People v. Webb, 36 Cal.App.3d 460, 470–471, 111 Cal.Rptr. 524; Morris v. Superior Court, 57 Cal.App.3d 521, 129 Cal.Rptr. 238.)

In this case the allegedly omitted facts concerned prior unlawful searches. Obviously a warrant may not be based upon information obtained during an illegal search. (People v. Roberts, 47 Cal.2d 374, 377, 303 P.2d 721; People v. Superior Court (Flynn), 275 Cal.App.2d 489, 492, 79 Cal.Rptr. 904; Raymond v. Superior Court, 19 Cal.App.3d 321, 327, 96 Cal.Rptr. 678.) However, the affidavit here was excised to remove all objectionable statements in accordance with defendant's declaration in support of his motion. The record fails to show that there were any omitted statements which, after excision of the affidavit in accordance with defendant's objections, would have rendered the remaining portions insufficient to support probable cause.


Defendant's next contention is that the trial court erred in refusing to permit defendant to examine the prosecution's chemist as to hearsay statements he may have received prior to speaking with the affiant police officer. There is no merit to this contention. After portions of the search warrant ware excised, as previously stated, the remaining statements of fact were presented to Charles Hall, the chemist for the Federal Drug Enforcement Administration, and he was asked whether his opinion would have been the same if, at the time he originally stated it, he had only the facts remaining after excision of the affidavit. He testified that it would.

‘A [By Mr. Hall] It is primarily three, that I see. Is the two orders of phenylacetic acid. The fact that it is in a house, a residence rather than where any normal chemist would locate a laboratory in a manufacturing type building, and the description of the odors of stale urine.

‘Q [Counsel for Plaintiff] What is significant about those three facts?

‘A Well, those three alone make me believe that the person was manufacturing amphetamines.

‘Q Why?

‘A The phenylacetic acid, outside of the manufacturing of perfume, I know of no other use for it. Then if he puts the thing into a family residence rather than into a laboratory or set up in an industrial building.6 Particuarly, he may want to hide whatever process is going out there, and the third is the description of the stale urine, which is a good description of the odor of methamphetamines, and the primary ingredients in manufacturing amphetamines.

‘Q Based on these facts set forth in People's 1, and these facts alone, that you can still reach the opinion that what was going on, at the residence, in fact, occurred, was the commission of a felony to-wit: The manufacture of illegal drugs most likely amphetamines?

‘A Yes.’

Defendant's counsel made an offer of proof that the chemist had formed the basis of probable cause prior to speaking with the affiant and based upon evidence that was at no time made part of the record. Hall's testimony is clear that his opinion was based upon the facts agreed to be introduced into evidence, and solely on those facts. In his offer of proof, defendant made no specific statements of facts that the chemist may have been told, which would have led him to form his opinion. There was no error.


Defendant's final contention concerning the search warrant is that the evidence was insufficient to establish probable cause. There is no merit to this contention. The Supreme Court in people v. Stout, 66 Cal.2d 184, 57 Cal.Rptr. 152, 424 P.2d 704, stated the of probable cause as follows:

‘In determining the sufficiency of an affidavit for the issuance of a search warrant, the test of probable cause is approximately the same as that applicable to an arrest without a warrant, a commitment by a magistrate or an indictment by a grand jury [citations] namely, whether the facts contained in the affidavit are such would lead a man of ordinary caution or prudence to believe, and conscientiously entertain, a strong suspicion of the guilt of the accused. [Citation.] The warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause since it is the function of the trier fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony. [Citations.]’ (People v. Stout, supra, 66 Cal.2d at pp. 192–193, 57 Cal.Rptr. at p. 158, 424 P.2d at p. 710; see also Frazzini v. Superior Court, 7 Cal.App.3d 1005, 1012, 87 Cal.Rptr. 32; People v. Benjamin, 71 Cal.2d 296, 302, 78 Cal.Rptr. 510, 455 P.2d 438; People v. Metzger, 22 Cal.App.3d 338, 346, 99 Cal.Rptr. 264.)

Dr. Louis Hawley, a professor of chemistry, called as an expert witness by the defense, testified at the hearing that the phenylacetic acid has uses which are not unlawful, but he testified further that he was not aware of its use in the manufacture of amphetamines nor did he use it in the course of his activities. The trial court concluded that there was probable cause for the issuance of the search warrant. We cannot hold as a matter of law that there was not.

Defendant correctly recites the rule that neither activity which is as consistent with innocence as criminality nor a mere hunch or subjective suspicion is a reasonable basis for probable cause. (See Remers v. Superior Court, 2 Cal.3d 659, 664, 87 Cal.Rptr. 202, 470 P.2d 11; People v. Horton, 14 Cal.App.3d 930, 932–933, 92 Cal.Rptr. 666; People v. Henze, 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545.) However, the rule is not applicable here because the officers did not act upon a mere hunch or subjective suspicion nor was defendant's activity as consistent with innocence as with criminality. The fact chart introduced into evidence by agreement of counsel, and the opinion of federal chemist Charles Hall based on the facts remaining after excision of the objected to portions of the search warrant affidavit, are sufficient to establish probable cause, and the trial court did not err in so finding.7


Defendant's last contention which also is without merit is that the trial court erred in denying his motion to withdraw his disqualification of Judge James A. Madden under Code of Civil Procedure section 170.6. Defendant states in his brief that ‘[a]t no time herein mentioned was defendant's case pending before Judge Madden, . . .’ This is not accurate. When the indictment was returned on September 26, 1974, Judge Madden was designated to handle defendant's arraignment. Counsel for defendant agreed to surrender him in open court for arraignment on September 30, 1974, at 2 o'clock. At approximately 1:15 on September 30, defendant filed a disqualification of Judge Madden under section 170.6. Upon appearing in court at 2 p. m., defendant was advised that Judge Madden had become ill and was hospitalized. The arraignment was then continued to October 7, 1974, and on that date further continued to October 15, 1974, before Judge Robert Carter. During the course of the arraignment on October 15, defendant was advised that Judge Madden had died earlier that day. On October 29, 1974, defendant filed his motion to withdraw the disqualification of Judge Madden on the grounds that had he known of Judge Madden's hospitalization he never would have filed the disqualification.

By disqualifying Judge Madden, defendant was assured that Judge Madden would not conduct his arraignment as scheduled or participate in the case in any other way. The mere fact that two weeks later the death of Judge Madden apparently made that disqualification unnecessary has no effect on the legal efficacy of the disqualification when it was filed. A party is entitled to only challenge under Code of Civil Procedure section 170.6 and defendant utilized his opportunity when he disqualified Judge Madden.8 Once the disqualification has been filed by a party or an attorney, the subsequent unavailability of the disqualified judge is not a legitimate ground for withdrawing the disqualification.

The judgment is affirmed.

I respectfully dissent.

The facts are adequately set forth in the majority opinion and need no restatement here.

As I understand appellant's contentions, they are: (1) that the excision rule of Theodor does not and should not apply to the use of intentionally false allegations in a search warrant affidavit; (2) that in the event the Theodor excision rule is extended to the use of intentionally false allegations, the instant affidavit as excised fails to establish probable cause for the issuance of the search warrant; (3) that appellant was denied due process of law by the trial court's acceptance of the prosecution's voluntary excision motion and by the trial court's refusal to allow appellant to present evidence that the magistrate was misled or hindered by the misstatements and omissions in the affidavit; and (4) that the trial court's refusal to permit appellant to withdraw his motion to disqualify the judge was an abuse of discretion which deprived appellant of due process of law.


Appellant's initial contentions center upon Theodor and the procedural guidelines which Theodor established for the hearing of a motion to suppress evidence. Theodor expressly recognized the right of a defendant to controvert the truth of facts contained in the affidavit for a search warrant. (8 Cal.3d 77, 95, 104 Cal.Rptr. 226, 501 P.2d 234.) In exercising this right, ‘the defendant must carry the initial burden of demonstrating the inaccuracy or falsity of allegations set forth in the affidavit.’ (Id., at p. 101, 104 Cal.Rptr. at p. 243, 501 P.2d at p. 251.) Once the defendant has satisfied this burden, the burden then shifts to the prosecution to establish that the affiant acted reasonably in believing the false allegations to be true. (Id., at p. 102, 104 Cal.Rptr. 226, 501 P.2d 234.) The false allegations may remain in the affidavit only if the prosecution satisfies this burden. In the event that the prosecution fails to satisfy this burden, ‘those facts must be excised from the affidavit and probable cause tested from the remaining truthful information.’ (Id., at p. 101, 104 Cal.Rptr. at p. 243, 501 P.2d at p. 251.) However, these procedural guidelines are directed only to two of the three categories into which affidavit mistatements may be grouped: (1) reasonable errors made in good faith, and (2) negligent mistakes. Theodor expressly left unresolved the issue of whether its excision guidelines applied to the use of intentional misstaatements. (Id., at n. 14.) In determining whether the Theodor excision rules should also govern the use of intentional misstatements, it is necessary to consider the factors which differentiate the three Theodor misstatement categories.

The first classification—reasonable errors made in good faith—demonstrates the utilization of two distinct standards in the categorization process. The requirement that the error be reasonable mandates an objective test, using the ubiquitous reasonable person standard. The error must be one which an affiant may reasonably make under the particular circumstances. The additional requirement that the error be made in good faith presents a second test, focusing upon subjective beliefs and characteristics of this particular affiant. Theodor held that the misstatement could remain in the affidavit only when both standards were satisfied.

The second classification—negligent mistakes—is distinguished from the first classification on the basis of the objective test. Obviously, a negligent mistake is one which is unreasonable under the circumstances. Theodor held that although the particular affiant believed the fact to be true (thus satisfying the subjective inquiry), the unreasonableness of his belief requires that the reviewing court excise the allegation from the affidavit in determining whether the magistrate's finding of probable cause was valid due to the lack of assessing good faith. This holding necessarily assumes, however, that no inference of bad faith pollutes the remaining portions.

The third category—intentional misstatements—is comprised of those misstatements which fail both the objective and subjective tests. An intentional misstatement is per se unreasonable. (Id., at p. 101, n. 14, 104 Cal.Rptr. 226, 501 P.2d 234.) In addition, the affiant obviously has no good faith belief in the truth of this allegation. The intentional misstatement is thus distinguishable from the other two affidavit misstatement categories on the basis of the subjective inquiry, which is satisfied in both of the other classifications. Accordingly, in determining whether an intentional misstatement should be treated the same as a negligent mistake and merely be excised from the affidavit, consideration must be given to the effect which the affiant's lack of good faith had upon the issuing magistrate's finding of probable cause.

The magistrate's role in determining whether probable cause exists for the issuance of the warrant involves a two-step process. The first step consists of the magistrate's determination of the acceptability of the facts which are presented by the affiant seeking the warrant: trustworthiness. (Forkosh, The Constitutional Right to Challenge the Content of Affidavits in Warrants Issued Under the Fourth Amendment, 34 Ohio St.L.J. 297–298; Note, The Outwardly Sufficient Search Warrant Affidavit: What If It's False?, 19 U.S.C.L.A.L.Rev. 96, 99.) A fundamental aspect of this determination is the magistrate's conclusion as to the veracity of the affiant. The magistrate can accept the truth of the facts presented only after making a preliminary determination that the affiant has truthfully presented those facts to him. As stated in Skelton v. Superior Court, 1 Cal.3d 144, 153, 81 Cal.Rptr. 613, 618, 460 P.2d 485, 490: ‘The entire thrust of Aguilar and the cases following it is to insure that the actual ability of the magistrate to make an independent judgment of the existence or not of probable cause remains unimpaired. The rule that the factual grounds for believing the hearsay informer be communicated to the magistrate is mandatory if probable cause is, in fact, to be determined ‘by a neutral and detached magistraste instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ (Johnson v. United States (1948) 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440.)' The magistrate reaches the second tier in this two-step process only after he has made appropriate findings regarding the acceptability of the facts presented. The second step requires the magistrate to draw inferences from the accepted facts and thereby to determine whether those facts are sufficient for inferring probable cause. (Forkosh, The Constitutional Right to Challenge the Content of Affidavits in Warrants Issued Under the Fourth Amendment, supra, 34 Ohio St.L.J. 297; Note, The Outwardly Sufficient Search Warrant Affidavit: What If It's False?, supra, 19 U.C.L.A.L.Rev. 96, 100.)1

An intentional, material2 misstatement interferes with the magistrate's determination of the veracity of the affiant. A magistrate who is unaware of intentional material misstatements made by the affiant is effectively prevented from properly determining the veracity of that affiant. In turn, the magistrate erroneously proceeds to the second stage of his probable cause analysis without reaching a knowledgeable conclusion in the first stage. That is, the magistrate reached the inference process without a full and adequate determination of the acceptability of the facts presented by the affiant. The magistrate's ‘discretionary and judgemental . . . function’ (Note, Search Warrant Affidavits—The Constitutional Constraints, 23 Drake L.Rev. 623, 626) has been ineluctably subverted.

Accordingly, an affiant's intentional use of a material misstatement requires that a search warrant issued pursuant to the affidavit be quashed. This result is necessary in order to ensure that the magistrate performs a meaningful role in determining the existence or non-existence of probable cause for the issuance of a search warrant. Merely to excise an intentional material misstatement would overlook the major impact which such a misstatement has upon the magistrate's function in the criminal justice system. “[T]he court must still insist that the magistrate perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.' (Aguilar v. Texas, supra, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723, 727.)' (Halpin v. Superior Court, 6 Cal.3d 885, 890, 101 Cal.Rptr. 375, 378, 495 P.2d 1295, 1298.) Even in the situation where excision is appropriate, the reviewing court depends upon the magistrate's conclusion that the affiant is telling the truth. Where there is no such reliance reasonably adaptable by the reviewing court, an analysis as to probable cause is without the fundamental establishment of affiant-reliability.

Again, in the case of Skelton, supra, 1 Cal.3d at pages 153–154, 81 Cal.Rptr. at page 619, 460 P.2d at page 491, it is said ‘. . . that in determining probable cause for purposes of indictment or commitment the credibility of the witnesses is for the determination of the grand jury and the magistrate, respectively. (De Mond v. Superior Court (1962) 57 Cal.2d 340, 19 Cal.Rptr. Rptr. 313, 368 P.2d 865.) ‘The credibility of witnesses at the preliminary examination, of course, is a question of fact within the province of the committing magistrate to determine, and neither the superior court nor an appellate court may substitute its judgment as to such question for that of the magistrate.’ [Citations.]' The Supreme Court has specifically recognized that the effect of an intentional misstatement might compel a different response than the mere excision of the objectionable statement. (Theodor v. Superior Court, supra, 8 Cal.3d at p. 101, n. 14, 104 Cal.Rptr. 226, 501 P.2d 234.) The reasons which have been specified compel such a different response.3

It is necessary to apply these principles to the case at bar. For the purposes of this opinion it is assumed that at the section 1538.5 hearing appellant could have established that the affidavit in question contained intentional, material misstatements.4 (Fn. 1, supra.) The prosecutor (a party to the misstatements) sought to equivocate the concession of the false statements. Had he not known that a hearing in accordance with the provisions of Penal Code section 1539 would have proved appellant's allegations there would have been no reason for his objection thereto and his tactic of evasion. On these facts it is certainly likely that these intentional, material misstatements had a significant effect upon the magistrate's determination of probable cause. Consequently, the issuing magistrate was effectively thwarted from properly determing whether probable cause existed for the issuance of the search warrant. For the same reason, the reviewing court had nothing upon which it could weigh the credibility of the affiant. Accordingly, in the absence of an unqualified admission of the falsity of such statements, there must be a hearing to ascertain the veracity of the factual statements. (Pen.Code, § 1539.) No such hearing was had in this case due to the misreading of Theodor. There should be a remand for such a hearing.

The majority opinion fails to recognize that the lack of trustworthiness of the affiant as to material misstatements of fact throws doubt upon the accuracy of any fact recited in the affidavit. (See Morris v. Superior Court, 57 Cal.App.3d 521, 528, 129 Cal.Rptr. 238.)5

Although this result urged by this dissent would compel the reversal of appellant's conviction, it would not, automatically, quash the warrant. Before the quashing of a warrant is necessitated, it must be established that a material misstatement was made, that the misstatement was intentionally made, and it thus prevented the issuing magistrate from judiciously determining the veracity and acceptability of the affidavit's facts which are to be weighed in determining the existence of probable cause.

The resolution of this issue as analyzed would make it unnecessary to consider the other contentions by appellant.

The judgment should be reversed and the case remanded for further proceedings in conformity with the views expressed herein.


1.  Defendant has not been in custody during the pendency of this appeal.

2.  ‘MR. CARSEL [Counsel for Defendant]: I object to the prosecution not proving that the mistakes made by the police were reasonable.

3.  ‘THE COURT: I am going to—tell you what, we will take a recess for ten minutes, and you index it and document it and do everything you can to satisfy Mr. Carsel's request.‘(Recess.)‘THE COURT: All right, gentlemen.‘MR. KING [Counsel for Plaintiff]: Your Honor, I think counsel and I have spent time during the recess, going through the affidavit and laid it next to his declaration, and I think we would agree at this point that in this chart which I have made which is introduced into, in evidence or marked for identification, represents those allegations in the affidavit which counsel has no quarrel with in terms of possible excision.‘MR. CARSEL [Counsel for Defendant]: I would agree it be introduced into evidence, Your Honor.‘THE COURT: All right.‘MR. CARSEL: I would——‘THE COURT: Do you agree with that statement?‘MR. CARSEL: In terms of fact, I would agree.‘THE COURT: All right.’

4.  ‘[5.] (d) apparent pill making machine’ was crossed out, pursuant to defendant's objection thereto.

5.  We recognize that at this juncture defendant has merely made allegations which were not admitted by the prosecution's voluntary excision for the purpose of testing probable cause. Perjury is an insidiously dangerous threat to the integrity of our judicial system and must be deterred by vigorous prosecution where it occurs. Investigation and prosecution of law enforcement personnel in an appropriate case may be initiated pursuant to Penal Code section 935 and Government Code sections 12550 and 12553.

6.  In answer to a question by the court, Hall testified that he would have formed his opinion that drugs were being illegally manufactured even without a description of the premises as a residence but that this was one more point which would strengthen his opinion.

7.  Defendant's assertion that when a trial court excises statements from a search warrant affidavit it must actually clerically produce an excised document, is without merit. Form is not the important factor. Where the facts remaining in support of the issuance of the warrant can be determined, it is not necessary to produce any particular document displaying those facts.

8.  Code of Civil Procedure section 170.6, subdivision (3), provides in part:‘Under no circumstances shall a party or attorney be permitted to make more than one such motion in any one action or special proceeding pursuant to this section.’

1.  This two-step process which the magistrate performs is similar to the two-step process which an officer must perform in making an arrest without a warrant: ‘first, he must ascertain what events have transpired, i. e., what are the facts; second, from those facts he must deduce whether a crime has been committed.’ (Theodor v. Superior Court, supra, 8 Cal.3d 77, 100, 104 Cal.Rptr. 226, 242, 501 P.2d 234. 250.) However, a major distinction is that the arresting officer's determination of the facts may, at least in part, be based upon his first-hand, personal observations. In contrast, the magistrate must rely entirely upon the affiant's presentation of the facts.

2.  Because the intentional misstatements in the case at bar were material to the magistrate's finding of probable cause, it is unnecessary to consider the effect of an immaterial intentional misstatement. As used herein, ‘material[ity]’ denotes a fact which may have had a significant effect upon the magistrate's determination of probable cause.

3.  The result reached is based upon the subversive effect which an intentional, material misstatement has upon the magistrate's role in determining whether probable cause exists for the issuance of a warrant. While acknowledging the existence of the argument that the same response is necessary in order to deter overzealous law enforcement officers (see generally, United States v. Belculfine, 508 F.2d 58, 63 (1st Cir.); People v. Dickerson, 273 Cal.App.2d 645, 650, n. 4, 78 Cal.Rptr. 400; Kipperman, Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence, 84 Harv.L. Rev. 825, 830–831; Sevilla, The Exclusionary Rule and Police Perjury, 11 San Diego L.Rev. 839), this contention is not a controlling factor in the determination because it has not been established that such intentional police misconduct is commonplace rather than being the exception.

4.  ‘[T]he failure to include information which might otherwise negate a finding of probable cause’ constitutes an omission which may be the equivalent of a misstatement. (Theodor v. Superior Court, supra, 8 Cal.3d at p. 96, n. 11, 104 Cal.Rptr. [226] at p. 239, 501 P.2d [234] at p. 247.) The instant case demonstrates the difficulty of distinguishing between an omission and a misstatement. The affiant's failure to include information concerning the prior warrantless search of defendant's residence—in which the prosecutor participated—is clearly a material omission. However, the possible failure of the affiant to identify this warrantless search as the source of other allegations contained in the affidavit could be construed as either a misstatement or an omission. The wisdom of equating an omission with a misstatement is thus apparent.

5.  The majority seek to support their conclusion upon a Dr. Dolittle's Pushmi-Pullyu two headed beast theory. On the Pushmi end, they say the appellate court examines the nonexcised portion of an affidavit to determine if probable cause remains. This, of course, presupposes the integrity of the affiant in all other respects. Of course, this is contrary to common sence and experience; if a person is shown to falsely state certain material facts it casts serious doubt upon the truthfulness of all that he recites. For the Pullyu end they site Stout; Frazzini; Benjamin; and Matzger for the proposition that:‘The warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony.’

ASHBY, Associate Justice.

HASTINGS, J., concurs.

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