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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT of the State of California, County of Los Angeles, Respondent, Robert BERTOLDO, Real Party in Interest.

Civ. 69485.

Decided: January 19, 1984

Robert H. Philibosian, Dist. Atty., Donald J. Kaplan and George M. Palmer, Deputy Dist. Attys., for petitioner. McDaniel & Plotkin and Barry L. Plotkin, Pomona, for real party in interest.

Petition for writ of mandate.   The People seek the writ to vacate an order of the superior court in a murder prosecution, quashing a telephonic search warrant of an automobile and suppressing certain items of evidence found in the search;  a man's gold Omega wristwatch and four Polaroid color photographs depicting real party in interest (defendant Robert Bertoldo) holding various firearms.  (Pen.Code, § 1538.5, subds. (j) and (o ).)   This court issued an alternative writ on September 28, 1983.

On April 13, 1981, John David Simerly was murdered in his residence, shot in the face with a .22 caliber Derringer and stabbed numerous times.   A small safe, cash, items of jewelry including a diamond and gold man's Omega wristwatch and a gun collection were stolen from the victim.   The victim had owned a .22 caliber Derringer which was not found at the scene of the crime, and identifying serial numbers from this and other firearms taken were immediately entered into the sheriff's computer by investigating sheriff's deputies.

At approximately 4 p.m. on April 15, 1981, defendant Robert Bertoldo was stopped by a sheriff's deputy for a traffic violation.   After exiting the vehicle he was driving, defendant was patted down and a .22 caliber Derringer was found concealed on his person.   He was arrested for carrying a concealed weapon.   The vehicle he was driving was locked and left at the scene of the stop.

Shortly after defendant's arrest, it was determined that the numbers on the concealed weapon matched those on the .22 caliber weapon missing from the Simerly residence.   Defendant was arrested for murder.   Defendant's vehicle was impounded and brought to the sheriff's station where defendant was being held.   Later in the evening of April 15, a sheriff's firearms expert compared an expended .22 caliber shell casing found at the scene of the crime with the .22 caliber Derringer found on defendant's person and formed the opinion the shell casing had been fired by this gun.

Upon arrest, defendant's person was searched and his property and clothing seized.   Two wallets were found, as well as a pawn ticket indicating that defendant had pawned a gold necklace and pendant and had considered pawning a man's gold Omega wristwatch on April 14, 1981.   The victim, Simerly, had regularly worn such a gold chain and pendant and watch, and all had been missing when the victim's body was discovered.

Detective Reed of the sheriff's department sought a telephonic warrant to search the vehicle defendant had been driving when arrested, as well as a residence for which defendant had provided an address, shortly after midnight on April 16, 1981.   Judge Abby Soven of the Los Angeles Municipal Court was advised of the information summarized above.   In addition, Detective Reed stated the following to Judge Soven:  “I spoke to a friend of the victim's who worked with the victim—he told me that in his mind, the prime suspect in this case would be the Bertoldo person, because the three of them had worked together and this individual told me that Bertoldo was foreclosed on by the victim and there was hard feelings uh, surrounding this by the suspect and that the suspect was a violent person—very tempermental and was fully capable of killing the victim because of this incident.”

Judge Soven authorized the search warrant and a nighttime search, shortly after midnight on April 16, 1981, stating:  “․ first and considering whether probable cause exists, I have disregarded the information from the unidentified companion.   I have disregarded any information concerning the ra․ rap sheet.   I find more than probable cause exists to justify the issuance of the warrant requested by Officer Reed.   Officer Reed, you may now sign my name to the warrant before you.”

The warrant was executed on the vehicle in the early morning hours of April 16.   In the glove compartment, a man's gold Omega wristwatch and four color Polaroid photographs showing defendant holding various firearms were found and seized.   The firearms shown in these photographs have been identified as belonging to the victim and in his possession shortly before he was killed.   No evidence was seized at the residence described in the warrant.   However, a consent search of an apartment where defendant evidently resided with a girlfriend resulted in the seizure of the victim's firearms (the gun collection), his safe, and a bloody bedspread from the victim's residence.

By information, defendant was charged in count I with the murder of John David Simerly (Pen.Code, § 187).   In count II, he was charged with robbery (Pen.Code, § 211).   In count III, he was charged with burglary (Pen.Code, § 459).   The murder was alleged to have occurred during a robbery and burglary within the meaning of Penal Code section 190.2, subdivision (a)(17).   The prosecution is seeking the death penalty.   Additional enhancement allegations, with respect to all counts, have been made pursuant to Penal Code sections 12022, subdivision (a), 12022, subdivision (b), 12022.5, 1203.06, subdivision (a)(1) and 1203.075.

Defendant noticed a Penal Code section 995 motion and a Penal Code section 1538.5 motion to suppress evidence.   On May 17, 1983, defendant's motion pursuant to Penal Code section 995 was denied and a hearing commenced on the Penal Code section 1538.5 motion.   The parties agreed that there were three primary issues raised by the motion to suppress:  (1) the validity of the patdown search which revealed the murder weapon, conducted at the scene of the traffic stop;  (2) the validity of the search warrant, including the truthfulness of the information contained in the affidavit;  and (3) the validity of the consent search of defendant's girlfriend's apartment.   Evidence was taken on all of these issues.   After argument, respondent court denied defendant's motion to suppress evidence of the patdown search and the evidence found pursuant to the consent search of defendant's girlfriend's apartment, but quashed the telephone search warrant which permitted nighttime search of the vehicle which defendant was driving when arrested and the residence for which defendant had given an address.

The precise area of prolonged examination of affiant Reed were his remarks to Judge Soven concerning what had been told to him by an unidentified person about “the Bertoldo person” being a prime suspect in the robbery-murder of Simerly because of Simerly's past relationship with him;  the bad feelings occasioned by foreclosure by Simerly;  and Bertoldo's propensity for violent behavior.   Reed testified that the information he had obtained regarding the foreclosure, from a friend of the decedent, had actually referred to Jim Bertoldo, Robert Bertoldo's brother, rather than defendant Robert Bertoldo.   He also testified that when he told Judge Soven this inaccurate information, he was unaware that the information he was giving was about the wrong Bertoldo.   He stated that he did not intentionally seek to convey false information and had been under the belief that the brothers lived together and had both been evicted by Simerly.   However, he later produced a notebook which showed that, twelve hours before the conversation with the judge, he was aware that the information was about Jim Bertoldo, rather than about defendant Robert Bertoldo.

The respondent court concluded, that Reed “deliberately spoke an untruth” to Judge Soven, and found as a fact that Reed had lied.   In suppressing the evidence discovered in the automobile, the court relied on People v. Cook (1978) 22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130, and Rodriguez v. Superior Court (1978) 87 Cal.App.3d 822, 831, 151 Cal.Rptr. 233.

The People have sought extraordinary relief.


We commence our discussion with the oft-repeated observation that both the federal and state constitutions prohibit searches which are unreasonable.   The process of making the determination whether a given search ultimately comports with the constitutional requirement of reasonableness has been more than adequately described in People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961.   There the California Supreme Court said that:

“In People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621], we discussed the two-step process by which a superior court rules on a motion to suppress evidence under section 1538.5, and the different standard by which an appellate court reviews each of those steps.   In the first step the trial court must ‘find the facts' relating to the challenged search or seizure:  e.g., it must decide what the officer actually perceived, or knew, or believed, and what action he took in response.   These are traditional questions of fact, and the statute vests the superior court with the power to decide them.  (Pen.Code, § 1538.5, subd. (i).)  Accordingly, we reaffirmed in Lawler (at p. 160 [107 Cal.Rptr. 13, 507 P.2d 621] ) that for the purpose of finding those facts ‘the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court.   On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’ ”

“No less important, however, is the second step of the process.   As we observed in Lawler, ‘The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution.’  (Ibid.)  Because ‘that issue is a question of law,’ the appellate court is not bound by the substantial evidence standard in reviewing the trial court's decision thereon.   Rather, we explained, in such review it is ‘the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness.’   (Ibid.)  On that issue, in short, the appellate court exercises its independent judgment.  [Footnote omitted].”

 Applying these principles to the case at bench, we note that the superior court trial judge, sitting as the finder of fact, made a “step (1)” determination that affiant Reed had deliberately lied to the magistrate, Judge Soven.   Reasonable minds might differ on whether Reed did intentionally attempt to mislead the judge, but we are bound by the trial judge's finding in this regard, as he was obviously in the best position to determine the credibility of Reed as he testified at the 1538.5 hearing.   In the absence of some compelling circumstance which is not presented here, we are bound by the determination made that Reed intentionally lied.

Ordinarily, the matter would end here, and we would be compelled to deny the writ, thereby upholding the trial court's decision to quash the search warrant as constitutionally defective.   The California Supreme Court has made very clear it approves application of the exclusionary rule to intentional falsehoods contained in an affidavit made in support of a search warrant, intentional as opposed to negligent untrue statements.   In Theodor v. Superior Court (1972) 8 Cal.3d 77, 100–101, 104 Cal.Rptr. 226, 501 P.2d 234, it was held that a defendant may challenge the veracity of an affidavit in support of a search warrant;  if successful in demonstrating falsity and that the affiant was unreasonable in believing the truth of the contested matter, a defendant is constitutionally entitled to have probable cause to issue the warrant assessed after excision of the untruthful material, whether that material was included innocently, negligently, or intentionally.

Subsequently, in People v. Cook, 22 Cal.3d 67, 75, 148 Cal.Rptr. 605, 583 P.2d 130, the court concluded “[T]hat both the rationale of Theodor and the purposes of the constitutional guarantee of freedom from unreasonable searches and seizures compel the exclusion of evidence obtained pursuant to a warrant issued on an affidavit containing deliberately false statements of fact, regardless of the effect of those statements on probable cause.”  (Emphasis added.)

The Cook analysis sets forth the dual function of the magistrate, as explained in Theodor, when presented with an affidavit seeking the issuance of a search warrant:  “The magistrate is required to make in effect two successive determinations:  first he must satisfy himself that the facts are as the applicant states them to be, then he must consider whether those facts constitute probable cause for issuance of the warrant.  [Footnote omitted.]  Because the magistrate must ordinarily rely on the affidavit as the source of his facts, the first inquiry turns on his view of the veracity of the affiant.   By analogy to indictment and information proceedings, we have recognized ‘the rule that it is for the magistrate to determine the credibility of witnesses and affiants providing information under oath.’  [Citation.]  Neither the superior court nor an appellate court may substitute its judgment on such questions for that of the magistrate.  (Id., at p. 154 [104 Cal.Rptr. 226, 501 P.2d 234].)”

“Accordingly, when the magistrate issues a warrant the reviewing court must presume in the first instance that he found the affiant correctly believed in the truth of each of the factual allegations of the affidavit.”

 This just-described deference to the magistrate's assessment fails, however, when it is demonstrated, as it was in the case at bench, that the applicant lied to the magistrate.   Such was the situation in Cook.   “Contrary to the case of negligent mistakes, excision of deliberate falsehoods in an affidavit does not leave the remaining allegations unaffected and hence presumptively true.   The fact that the misstatements are intentional injects a new element into the analysis, to wit, the doctrine that a witness knowingly false in one part of his testimony is to be distrusted in the whole․  [¶]  The relevance of this doctrine to the present inquiry is plain.   If the magistrate had known the officer was deliberately lying to him in making certain of the allegations in the affidavit, he might well have disbelieved some or all of the remainder.   His ignorance of this crucial fact undermines his determination of the officer's credibility, and the reviewing court can no longer rely on that determination of facts necessary to test the magistrate's conclusion of probable cause.  [Footnote omitted.]  In short, although the court can excise the intentionally false allegations it cannot presume the remainder to be true.   Lacking a reliable factual basis in the affidavit, the court has no alternative under settled constitutional principles but to quash the warrant and exclude the products of the search.  [Citations].”  (22 Cal.3d 86–87, 148 Cal.Rptr. 605, 583 P.2d 130.)

Thus it can be seen that intentional falsehoods are viewed as an impediment to the magistrate's first function when presented with an affidavit:  assuring him or herself of the credibility of the applicant.  Cook can be viewed as a ruling that one misstatement, knowingly made, however minor, can result in rendering the entire affidavit defective, i.e., “unreasonable” within the constitutional meaning of that word;  the trial court judge acted upon that interpretation when he quashed the entire telephonic affidavit in the case at bench.

 We take the view, however, that there are some substantial distinctions between Cook and the case at bench, distinctions which are of substantial importance and do not necessarily negate or erode the protection from dishonest law enforcement provided by the Cook ruling.

First, it should be noted that the factual situation in Cook was markedly different from that before us here, as Cook involved a reprehensible pattern of deceitful conduct by law enforcement officers, including a deputy district attorney.   The case at bench demonstrates no similar pattern of deceit, but rather that affiant police officer had conducted an intensive and fast-moving criminal investigation prior to the telephonic request.

Second, we are certain that Cook was not intended to be applied in Draconian fashion.   In the case at bench, the “intentional lie” concerning “the Bertoldo person” was of minor significance when measured against the rest of the affidavit, particularly those portions where the magistrate was informed about the relationship between defendant's concealed weapon and a weapon used at the scene of the murder.   It can be said that the “intentional lie” was not material, that it did not tip the balance of the magistrate's decision in a marginal case—as envisioned by the Cook court.   The affidavit makes it clear that there was ample uncontroverted information presented to the magistrate other than the information which pertained to Jim rather than Robert Bertoldo.

Finally, and most importantly, the rationale of Cook is directed toward protecting the process by which the magistrate arrives at assessment of probable cause to issue the warrant.   The penalty of excluding all evidence secured by means of an improperly obtained warrant is justified on the ground that the intentional misstatement by the applicant destroys —or taints—the applicant's credibility and impedes the magistrate's reliance on that credibility to the extent that the whole process is rendered nugatory.

In the case at bench, however, the trial judge stated that with the exception of one other unintentional misstatement, there was nothing in the applicant's telephone request for a warrant which had been found to be incorrect.   Under these circumstances, it is clear that the trial judge did not perceive that the “intentional lie” had had any deleterious effect on magistrate Soven's credibility assessment;  there was no impediment, or taint.

Consequently, for the reasons stated above, we hold that we are not compelled to approve the suppression of evidence herein, namely the diamond and gold Omega wristwatch found in the glove compartment of the defendant's vehicle and four color photographs of defendant holding guns.

Let a peremptory writ issue directing the trial court to vacate its order quashing the telephonic search warrant and suppressing the evidence obtained in the subsequent search.

I respectfully dissent.

The majority distinguishes People v. Cook (1978) 22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130 by characterizing the intentional misstatement at issue herein as one of minor significance when measured against the totality of the affidavit.   Hence, the majority concludes the intentionally false statement was not material in the sense that “it did not tip the balance of the magistrate's decision in a marginal case.”  (Ante, at p. 288.)   While I might agree that such should be the analysis with respect to a wholly collateral falsehood, I cannot agree in the instant context.

The special vice of an intentional falsehood included in the supporting affidavit for a search warrant is not that it may tip the balance in a marginal case.   Even a negligent misrepresentation may do that and, therefore, the sufficiency of the affidavit must be tested after excission of the offending statement.  (Theodor v. Superior Court (1972) 8 Cal.3d 77, 100–101, 104 Cal.Rptr. 226, 501 P.2d 234.)   Rather, as the Cook court emphatically noted, the evil attending an intentional falsehood is its effect on the affiant's credibility.  “If the magistrate had known the officer was deliberately lying to him in making certain of the allegations in the affidavit, he might well have disbelieved some or all of the remainder.   His ignorance of this crucial fact undermines his determination of the officer's credibility, and the reviewing court can no longer rely on that determination for the facts necessary to test the magistrate's conclusion of probable cause.”  (People v. Cook, supra, 22 Cal.3d 67, 86–87, 148 Cal.Rptr. 605, 583 P.2d 130.)

There is some logical force to the argument that knowledge of one trivial, wholly collateral falsehood presumptively would not affect adversely the magistrate's overall assessment of the affiant's credibility.   However, to characterize Deputy Reed's intentional lie concerning “the Bertoldo person” in such a manner is to ignore the fundamental nature of the falsehood.   Deputy Reed utilized the misinformation to portray defendant as a violent, vicious individual, likely to kill, who bore considerable animosity for the victim and knew where the victim resided.   That is, the falsehood supplied the motive and knowledge necessary to link defendant directly to the victim's murder in his home.   As a consequence, the misstatement provided material reinforcement for the other information contained in the affidavit.   If Deputy Reed would lie about these matters, he might well have lied about observing blood on defendant's shoes, the similarity of items defendant pawned to those stolen from the victim, or even about information linking the gun seized from defendant to the victim.   Accordingly, the remaining averments in the affidavit no longer provide a reliable factual basis for the assessment of probable cause, and the warrant must be quashed, its fruits excluded.  (Id., at p. 87, 148 Cal.Rptr. 605, 583 P.2d 130.)

The majority notes that the trial judge found the other material facts contained in the affidavit not incorrect, concluding therefrom that the intentional lie had no deleterious effect on the magistrate's assessment of credibility.   This is the approach suggested by Justice Clark in his dissent to Cook:  “․ upon finding that the affiant lied in making the challenged allegations, the judge, bearing in mind the doctrine expressed in the maxim ‘falsus in uno, falsus in omnibus ’ ․, should be required to reweigh the affiant's remaining allegations, testing for probable cause only those allegations—if any—he finds to be true.   If allegations providing probable cause survive this scrutiny, the warrant should be upheld.”  (22 Cal.3d at p. 101, 148 Cal.Rptr. 605, 583 P.2d 130;  emphasis original.)   However, the Cook court eschewed such an approach, favoring instead a holding that intentional misstatements in the affidavit require the warrant to be quashed without regard for their effect on probable cause.   This court is bound by that holding.

I would deny the petition and discharge the alternative writ.

L. THAXTON HANSON, Associate Justice.

LILLIE, J., concurs.