The PEOPLE, Plaintiff and Respondent, v. Larry Timothy ALEXANDER, Defendant and Appellant.
Statement of the Case
Defendant Larry Timothy Alexander was convicted by a jury of receiving stolen property. (Pen.Code, § 496.) He appealed from the judgment, and we reversed because the trial court erred in denying a motion to suppress evidence obtained under a search warrant. We concluded that the supporting affidavit did not establish probable cause for the search. (People v. Alexander (Feb. 22, 1991) H006371 [nonpub. opn.].) 1 We remanded the matter for a hearing on whether the Leon 2 “good faith” exception to the exclusionary rule applied. (People v. Alexander, supra, H006371.) After a hearing, the trial court found the exception applicable and reinstated the judgment. Defendant again appeals, claiming that the Leon exception does not apply. We agree and reverse the judgment.
The Search Warrant Affidavit
In his affidavit, Detective Ron Thorp of the Santa Clara Police Department, a veteran of 22 years, the last 9 of which were spent in the burglary unit, stated in relevant part that he had probable cause to believe defendant was presently keeping stolen property inside a storage locker based on information he had received from a “confidential, reliable informant (hereinafter referred to as ‘X’).” He said he believed X to be reliable “because X has previously given information which led to 8 arrests.”
Thorp declared that “Within the last 30 days X told [me] that [defendant] told X that he has been committing weekend residential burglaries from 2 a.m. to 4 a.m. and that he keeps the stolen property in a storage locker at Public Storage located at 2255 Tully Road, Santa Clara. X told [me] that X personally viewed the stolen property and that it consisted of VCRs, telephones, televisions, cameras, jewelry, clothing, a jogger's bag and a .38 caliber gun.” Thorp then explained that on June 3, he confirmed that defendant had leased a storage locker at that location on April 23, 1988.
Our Prior Opinion
In finding the affidavit insufficient, we explained that it failed to show that X was reliable. We first focused on X's veracity. We noted the absence of evidence concerning X's status, present circumstances, or background that might bear on X's credibility (e.g., citizen informant, anonymous tipster, police agent, criminal defendant, etc.). Although Thorp said that X had provided information leading to 8 arrests, we pointed out that he did not support this bare assertion with any facts indicating what sort of information X had provided, when X had provided it, how it had been corroborated, or whether the 8 arrests were valid and led to convictions. We also observed that Thorp had not said that X had not provided false or misleading information in the past.
We next explained that Thorp provided no information to confirm the criminal activity X had related, for example, reports of recent early morning residential burglaries or reported thefts of items like those described by X. Furthermore, although Thorp verified X's statement that defendant rented a storage locker, we pointed out that this fact was easily obtainable and involved seemingly innocent conduct. Thus, the minimal corroboration of X's information did little to establish X's veracity and credibility or suggest criminal activity by defendant.
We also explained that the affidavit did not support a finding that the alleged contraband was still in defendant's storage locker at the time Thorp sought the warrant because X's information about it was at least a month old and because the stolen property (videocassette recorders, cameras, guns, etc.) was highly incriminating and quickly disposable.
The “Good Faith” Hearing
On remand, Detective Thorp testified that in May 1988, a municipal court bailiff called him and said that a defendant in custody wanted to talk to him. On May 24, 1988, Thorp interviewed this defendant, a woman, later designated X in his affidavit. She was being held on felony charges of pimping and pandering. Thorp learned that she had prior prostitution arrests but at the hearing could not recall whether her “rap sheet” contained felony convictions. X told Thorp she wanted some consideration in exchange for information and that in the past had given information to Detective Steve Lodge, a narcotics officer. Thorp said he would speak to her attorney about her cooperation.
X related that in April 1988, she met defendant in the probation office and shortly thereafter began living and sleeping with him. She said that on May 17, 1988, a week before her arrest, she helped defendant move various things including camera equipment and stereo equipment, clothing, a jogger's bag, and a handgun into a storage locker on Tully Road. Defendant told her the items were stolen.
X said that a month earlier defendant had burglarized a camera store by throwing a rock through the window. While being pursued by the police, defendant threw cameras from the car and was eventually arrested. X said defendant also burglarized a San Jose liquor store and took lottery tickets and a TV. X revealed that defendant had told her he was committing residential burglaries. Thorp did not ask when she first heard about this activity.
After speaking with X, Thorp confirmed that defendant had been arrested for burglary of a camera store involving a broken window, car chase, and cameras being thrown from a car. He also discovered a vandalism report from a San Jose liquor store and learned from the owner that a TV and lottery tickets had been taken.
Thorp spoke to Detective Lodge and learned that X had given Lodge information regarding narcotics on eight occasions. Thorp figured that this occurred within the last three years. Thorp did not know, however, whether the information X gave Lodge had led to “arrests as opposed to convictions.” 3 Thorp conceded he relied on Lodge's estimation that X was a reliable informant.
One week after speaking to X, Thorp confirmed that defendant rented a storage locker at the facility described by X. He examined the locker rental agreement, executed on April 27, 1988, and was told by an employee that defendant had been to the locker on the previous day.
At this point, Thorp went to a deputy district attorney to have a search warrant affidavit prepared. He related all the information he had, and the attorney drafted the affidavit, making all decisions as to what information to include. Although Thorp said he did not personally decide to omit anything, he reviewed and signed the affidavit without asking why much of his information had been omitted.
On June 8, 1988, Thorp presented his affidavit to a magistrate, who issued a search warrant.
The Trial Court's Ruling
After the Leon hearing, the court below concluded that Thorp had “held a good faith, objectively reasonable belief that the search of Defendant's storage locker was authorized by a valid search warrant.” In support of its conclusion, the court noted that (1) Thorp verified X's information about the camera store and liquor store burglaries; (2) he sought the help from an attorney and related all of his information at that time; (3) he justifiably relied on the attorney to prepare the affidavit; and (4) the magistrate issued the warrant.
Defendant contends the Leon “good faith” exception is not applicable because reliance on the affidavit and the subsequent warrant was not objectively reasonable.
In United States v. Leon, supra, 468 U.S. at p. 922, 104 S.Ct. at p. 3420, the United States Supreme Court created the “good faith” exception to the exclusionary rule because “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” As guidance on how to determine whether the exception applies, the court explained that the relevant inquiry should not be an “expedition into the minds of police officers”; rather, “our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.” (Id. at p. 922, fn. 23, 104 S.Ct. at p. 3420, fn. 23.)
Where, as here, a warrant is invalid because the supporting affidavit does not establish probable cause, the relevant inquiry is “whether a reasonable and well-trained officer ‘would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.’ ” (People v. Camarella (1991) 54 Cal.3d 592, 605–606, 286 Cal.Rptr. 780, 818 P.2d 63, adding emphasis to language from Malley v. Briggs (1986) 475 U.S. 335, 345, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271.) In this context, reliance on a defective affidavit is not objectively reasonable if, for example, the magistrate “was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth” or if the affidavit was “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” (United States v. Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 3420.)
The Attorney General asserts that the affidavit was not a “bare bones” affidavit, that is, one that is “entirely conclusory” and that fails to disclose any facts establishing the informant's reliability, the basis of the informant's knowledge, when the information was received, or a nexus between the alleged criminal activity and the place to be searched. (See United States v. Leon, supra, 468 U.S. at p. 915, 104 S.Ct. at p. 3416.) Rather, he argues that it provided some basis to argue probable cause.
In particular, he argues that even if X's information was 30 days old, it was not stale as a matter of law. He points out that there was some evidence of X's reliability (i.e., information leading to 8 arrests) and credibility (i.e., corroboration of her information about defendant's storage locker and her detailed inventory of the allegedly stolen property). Thus, he claims that although the affidavit ultimately failed to establish probable cause, a well trained officer could have reasonably, though mistakenly, believed it sufficient to support a search warrant.
Although the affidavit may not be “bare bones,” it was, as summarized above, quite scrawny, lacking a sufficient showing on the issues of X's veracity, credibility, reliability, corroboration, and timeliness of her information to establish probable cause. (Cf. People v. Terrones (1989) 212 Cal.App.3d 139, 260 Cal.Rptr. 355; People v. Hansborough (1988) 199 Cal.App.3d 579, 245 Cal.Rptr. 115.) Indeed, as our previous opinion suggests, the affidavit did not make the probable cause determination a particularly close question.
Nevertheless, we then observed that X's information suggested an “ongoing” program of residential burglary and storage of contraband. (People v. Alexander, supra, H006371, pp. 13–14.) This view of defendant's criminal conduct and his use of commercial storage locker plus Thorp's expertise in burglary investigations reasonably permits argument that despite the age of X's information and the highly incriminating, quickly disposable nature of the contraband, the property described in the affidavit could and would still be found in the locker.
We also note that as written, the affidavit reasonably implies that X was not an unknown, untested tipster but that Thorp knew her and eight times in the past she provided him with accurate information about the criminal activity of others, which then led to 8 arrests.4 This implication adds weight to the evidence of X's track record and combined with the fact that Thorp corroborated the information about the storage locker reasonably permits argument that X was truthful, reliable, and credible.
Finally, the affidavit provides an arguably reasonable basis for X to know about defendant's criminal activity: his own admission and her personal observation of items in the locker.
In sum, standing alone and given the benefit of all favorable inferences, the affidavit could support argument for probable cause. Thus, on its face, it is not patently defective, that is, “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ ” (United States v. Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 342, emphasis added; cf. U.S. v. Turner (D.Vt 1989) 713 F.Supp. 714 [officer should have known affidavit failed to establish probable cause].)
Our conclusion, however, does not automatically mean Detective Thorp had an objectively reasonable belief that his affidavit established probable cause. If it did, then it would have been unnecessary to remand this case for a Leon hearing. We now know that the factual deficiencies we found in the affidavit were not caused by Detective Thorp's lack of information about X or his failure to corroborate more of her information. Rather, they resulted primarily from the omission of information that he knew.
This omission is relevant to whether Detective Thorp's belief in the sufficiency of the affidavit was objectively reasonable. As the court in People v. Maestas (1988) 204 Cal.App.3d 1208, 252 Cal.Rptr. 739, observed, “Whether a well-trained officer could have harbored such an objectively reasonable belief may turn on whether the officer's affidavit contains any misstatements or omissions, as an officer who misrepresents the facts to the magistrate has less reason to believe in the existence of probable cause than an officer who makes no such misrepresentation.” (Id. at p. 1216, 252 Cal.Rptr. 739.) Moreover, “If, as in this case, the officer whose good faith is in question was involved in preparation of the affidavit, the fact that he misstated or omitted any information, or was aware of such misrepresentations, tends to show the objective unreasonableness of belief in the existence of probable cause.” (Id. at p. 1219, 252 Cal.Rptr. 739, emphasis added.)
Thus, the question before us is whether a well trained officer, aware of the particular omissions from Thorp's affidavit, could still harbor a reasonable belief that it established probable cause.5 We think not.
In light of the paucity of facts concerning X's veracity and reliability, the age of her story, and the minimal corroboration of it, it is difficult to understand why the affidavit omitted that Thorp verified X's information about the liquor and camera store burglaries and that she previously had supplied information to Detective Lodge. Given a reasonable awareness of the need to establish the credibility of an informant's hearsay, we believe a well trained officer would have disclosed this information as well as the fact that X had a motive to provide accurate information: favorable treatment in her own case.6
Although the omission suggests that Thorp overvalued the remaining facts in the affidavit, it did not render the affidavit misleading. Nor does it suggest that Thorp doubted the sufficiency of the affidavit. (Cf., e.g., U.S. v. Turner, supra, 713 F.Supp. 714 [despite warning that affidavit might be insufficient, officer purposefully withheld favorable information].) On the other hand, that Detective Thorp possessed undisclosed information that would have strengthened his showing concerning X does not make his belief in the sufficiency of the affidavit objectively reasonable.
It is well settled that “[a]n otherwise insufficient affidavit cannot be rehabilitated by evidence concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate.” (People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 204, 178 Cal.Rptr. 334, 636 P.2d 23, citing Whiteley v. Warden (1971) 401 U.S. 560, 565, fn. 8, 91 S.Ct. 1031, 1035, fn. 8, 28 L.Ed.2d 306.)
Similarly, an affiant cannot establish a reasonable belief in the sufficiency of an affidavit by relating information he knew but did not include in it. Thus, in U.S. v. Hove (9th Cir.1988) 848 F.2d 137, the affidavit failed to establish probable cause for a search because it lacked information connecting the place to be searched with criminal activity. The trial court nevertheless found that the police reasonably believed they had probable cause for the search apparently because this crucial information was actually known by the affiant but had been inadvertently omitted from the affidavit. On appeal, the court reversed, explaining that the objective test for good faith established in Leon does not permit consideration of facts known only to the officer and not included in the affidavit and presented to the magistrate.
At oral argument the Attorney General criticized the Hove analysis and cited U.S. v. Martin (8th Cir.1987) 833 F.2d 752 for the proposition that in determining whether Leon applies, we must consider the favorable information known to Thorp but omitted from his affidavit. We disagree.
Without explanation or analysis of contrary authority, the court in Martin asserted, “Although we may not look to facts outside of the affidavit to determine probable cause, [citation], when assessing good faith we can and must look to the totality of circumstances including what [the affiant] knew but did not include in his affidavit.” (U.S. v. Martin, supra, 833 F.2d at pp. 755–756.) As supporting authority, the court cited only Anderson v. Creighton (1987) 483 U.S. 635, 641, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523.
In Anderson, an FBI agent conducted a warrantless search of the plaintiffs' residence. Later, the plaintiffs filed a civil action against the agent, alleging he violated their Fourth Amendment rights. (Anderson v. Creighton, supra, 483 U.S. at p. 641, 107 S.Ct. at p. 3039.) The issue was whether the agent could argue he was entitled to summary judgment on grounds of qualified immunity. The United States Supreme Court held that he could do so and would be entitled to summary judgment if he demonstrated that it was objectively reasonable for him to believe the search was lawful, even if it was not. (Ibid.) In this context, the court explained that “the determination whether it was objectively legally reasonable to conclude that a given search was supported by probable cause or exigent circumstances will often require examination of the information possessed by the searching officials.” (Ibid.)
In relying on Anderson, the court in U.S. v. Martin, supra, 833 F.2d 752, failed to recognize that a Leon analysis can vary depending on the defect in the search or seizure. The justification for and thus validity of a warrantless search depends upon all of the information known to the officer at the time it was conducted. If such a search is deemed invalid, the subsequent inquiry under Leon is whether the officer could have reasonably believed his information established probable cause and exigent circumstances.
The justification for and validity of a search under a warrant depends solely upon the information in the supporting affidavit. If the affidavit is deemed insufficient, the subsequent inquiry under Leon is not whether the officer could have reasonably thought he had probable cause for a search; rather, as noted above, it is whether he could reasonably believe the information in the affidavit established probable cause. Undisclosed facts that could have strengthened the affidavit are simply irrelevant to this inquiry.
In light of our discussion, we respectfully disagree with U.S. v. Martin, supra, 833 F.2d 752 and do not consider the additional corroboration of X's information evidence that Thorp reasonably believed his affidavit was sufficient.
Although the undisclosed favorable information does not tend to demonstrate that reliance on an affidavit was objectively reasonable, Thorp's omission of information that would have weakened his affidavit or whose omission permitted the magistrate to draw a favorable but erroneous inference from a facially accurate affidavit can and does indicate that reliance was objectively unreasonable.
Here, Thorp failed to disclose information about X and the basis of his belief in her reliability.
Thorp's affidavit indicated that he knew X. (See People v. Terrones, supra, 212 Cal.App.3d at pp. 147–148, 260 Cal.Rptr. 355.) Yet, he did not mention that X had a prior record of prostitution arrests, was in custody on felony pimping and pandering charges when she provided her tip, sought consideration in exchange for information, and had been living and intimately involved with defendant.7
These facts were relevant to X's credibility and reliability. Although citizen informants are generally presumed to be reliable, “[l]ong settled law already creates a strong inference that information from police contacts is to be viewed with extreme caution” not only because of “the usual distrust of hearsay evidence” but also because of “an assumption that information provided by customary police sources is inherently suspect.” (People v. Kurland (1980) 28 Cal.3d 376, 392, 168 Cal.Rptr. 667, 618 P.2d 213.) As our Supreme Court observed, experienced stool pigeons or persons criminally involved or disposed are motivated by something other than good citizenship. “Such persons frequently have criminal records and a history of contact with the police. Often they are free only on probation or parole or are themselves the focus of pending criminal charges or investigations. All familiar with law enforcement know that the tips they provide may reflect their vulnerability to police pressure or may involve revenge, braggadocio, self-exculpation, or the hope of compensation.” (Id. at p. 393, 168 Cal.Rptr. 667, 618 P.2d 213.)
We next note that Thorp said he believed X was a “reliable informant” because she previously provided “information which led to 8 arrests.” He did not disclose, however, that this information was hearsay from Detective Lodge and perhaps three years old. As noted above, the simplicity of Thorp's statement permits the highly favorable but erroneous inference that Lodge personally knew X to be reliable. Thus, a magistrate might think that, if asked, Thorp could provide more detailed information about X's previous assistance. In fact, however, Thorp had very little specific information because he did not question Detective Lodge very closely about X's track record and did not know whether her information led to arrests “as opposed to” convictions. Thorp simply took Lodge's word that X was reliable.8
In our view, a well trained officer would have recognized that (1) the information omitted was relevant to a determination of X's credibility and reliability, (2) it had some tendency to dilute the factual showing in the affidavit, and that (3) if omitted, the affidavit would project a more immediate and substantial impression of X's reliability, credibility, and track record than was warranted by the facts included therein. Indeed, the inclusion of this information would have supported our previous holding that the affidavit failed to establish probable cause. Under the circumstances, therefore, we find it unreasonable to have omitted this information.9
Moreover, given the weakness of the affidavit presented to the magistrate and the omission of negative information therefrom, it was not objectively reasonable for Detective Thorp to believe his affidavit established probable cause. In our view, a well trained officer, aware of the omission, would have known that the affidavit failed to establish probable cause. Indeed, our analysis of how the affidavit, standing alone, permits colorable argument concerning probable cause is based, in part, on the reasonable but erroneous inference that Detective Thorp personally experienced X's reliability in previous matters and if asked could have provided more specific information about her track record.
Echoing the trial court's findings, the Attorney General argues that it was objectively reasonable for Detective Thorp to rely on the affidavit because it was drafted by a deputy district attorney and later accepted by the magistrate. He further argues that since Detective Thorp acted reasonably from the time he spoke to X to the search of defendant's storage locker and since the exclusionary rule is designed to deter illegal and unreasonable conduct, no purpose would be served in excluding evidence in this case. Rather, he claims that excluding evidence here will simply deter officers from consulting with legal experts before seeking warrants. We are not persuaded.
Detective Thorp's investigation to corroborate X's information and collect enough information to establish probable cause does manifest his good faith. Moreover, seeking the assistance of a deputy district attorney also reflects good faith. We encourage officers to obtain the advice and assistance of other professionals, especially when they intend to seek judicial permission to interfere with the Fourth Amendment rights of other people. (Cf. Massachusetts v. Sheppard (1984) 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737; Los Angeles Police Protective League v. Gates (9th Cir.1990) 907 F.2d 879; U.S. v. Frietas (9th Cir.1988) 856 F.2d 1425.)
Nevertheless, we do not believe that having the district attorney draft an affidavit automatically makes reliance on it objectively reasonable.
Even a magistrate's erroneous finding of probable cause does not justify an affiant's reliance on an affidavit if official belief in its sufficiency is “entirely unreasonable.” (See United States v. Leon, supra, 468 U.S. at p. 923, 104 S.Ct. at p. 342.) It follows that an affiant's reliance on such an affidavit cannot suddenly become objectively reasonable because he had the district attorney draft it. A well trained officer has a duty to carefully evaluate the sufficiency of his affidavit before submitting it. Indeed, two years before Detective Thorp searched defendant's storage locker, the United States Supreme Court stated that an officer must exercise reasonable professional judgment in submitting a search warrant affidavit. (Malley v. Briggs, supra, 475 U.S. at p. 346, 106 S.Ct. at p. 1098.)
We do not believe an officer can fully satisfy this duty by presenting his information to an attorney and then submitting whatever the attorney drafts to the magistrate.10 The attorney is, in effect, only the officer's advisor and agent. The officer must remain ultimately responsible for the accuracy and sufficiency of the affidavit and, therefore, must exercise critical judgment over it even when drafted by a district attorney. (Cf. U.S. v. Frietas, supra, 856 F.2d 1425 [agents noticed potential defect in warrant and noted it to both deputy United States attorney and magistrate].)
Here, since we conclude that a well trained officer would not have omitted Thorp's relevant information from the affidavit, we do not find Thorp's reliance on it objectively reasonable simply because the district attorney, and not Thorp, was the person making the omissions.
The Attorney General cites Massachusetts v. Sheppard, supra, 468 U.S. 981, 104 S.Ct. 3424, People v. Camarella, supra, 54 Cal.3d 592, 286 Cal.Rptr. 780, 818 P.2d 63, U.S. v. Frietas, supra, 856 F.2d 1425, United States v. Accardo (11th Cir.1985) 749 F.2d 1477 to argue that reliance on attorneys demonstrates good faith.
In Sheppard, Frietas, and Accardo, the officers drafted their own affidavits, all of which established probable cause for a search. They later relied on attorneys and/or magistrates in the course of obtaining warrants, which later, however, proved to be technically defective due to the illegal nature of the search authorized (U.S. v. Frietas, supra, 856 F.2d 1425 [surreptitious entry warrant] ) or the overbreadth of the search permitted (Massachusetts v. Sheppard, supra, 468 U.S. 981, 104 S.Ct. 3424 [magistrate changed warrant and assured officer it was valid]; United States v. Accardo, supra, 749 F.2d 1477 [description items to be found too general] ).
We are not persuaded to alter our analysis or conclusion. The nature and/or causes of the warrant defects in these cases were not so fundamental or obvious as to make it objectively unreasonable for an officer, who had properly established probable cause, to rely on the opinions, approval, and assurances of attorneys or magistrates that the warrants were valid.
In Camarella, the officer prepared his own affidavit, which was approved by a deputy district attorney. Our Supreme Court considered this approval relevant in determining whether the officer could reasonably believe the affidavit established probable cause. However, there, the court observed that the officer's affidavit “was sufficient to make the probable cause determination a close question for any objectively reasonable and well-trained officer, and, indeed, for reasonable judicial officers as well [citation]․” (People v. Camarella, supra, 54 Cal.3d at p. 606, 286 Cal.Rptr. 780, 818 P.2d 63.)
Because the officer in Camarella drafted his own affidavit, his reliance on the district attorney did not indicate a delegation of responsibility for the sufficiency of the affidavit or a failure to exercise reasonable professional judgment over the affidavit after it was drafted. Nor is there evidence that the attorney omitted relevant information from the affidavit. Lastly, although Detective Thorp's affidavit on its face supports colorable argument for probable cause, it did not present a close question on that issue.
As to whether issuance of the warrant by the magistrate shows that Detective Thorp reasonably believed his affidavit was sufficient, we note that our Supreme Court has deemed such evidence to be of no significance because “[b]y definition, in every case in which the prosecution seeks the benefit of Leon, a magistrate has issued a warrant․” People v. Camarella, supra, 54 Cal.3d at p. 605, 286 Cal.Rptr. 780, 818 P.2d 63 (emphasis in original.) Thus, issuance of a warrant cannot logically serve to distinguish when Leon applies. Moreover, the court in Leon did not intend issuance of a warrant to be a consideration because the proper focus of attention is on the officer's decision to submit an affidavit. (Ibid. and fn. 4.)
The Attorney General believes the analysis in Camarella is wrong. He also asserts that Camarella changed constitutional doctrine on whether the issuance of a warrant is a relevant consideration and created a conflict between state and federal courts on this issue. Thus, he argues that since Camarella was filed after Thorp obtained the warrant and Thorp could not have anticipated its holding, we should apply pre-Camarella law and consider the issuance of the warrant as evidence of his good faith. We disagree.
That Thorp may not have been able to anticipate the analysis in Camarella is irrelevant to whether that analysis is now applicable. Certainly, Thorp's decision to submit the affidavit was not influenced by whether a reviewing court would consider the subsequent issuance of a warrant evidence of his good faith. Consequently, we consider Camarella binding authority. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.) Moreover, since the omission of relevant information tended to make the affidavit appear stronger than it was, the issuance of the warrant would not here suggest that belief in the sufficiency of the affidavit was objectively reasonable.
Finally, we disagree with the Attorney General's claim that exclusion of evidence would serve no purpose here. Although we do not intend to suggest that at any time Detective Thorp acted in bad faith, we point out that the exclusionary rule is “an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment.” (Illinois v. Gates, supra, 462 U.S. at p. 261, fn. 15, 103 S.Ct. at p. 2344, fn. 15 [conc. opn. of White, J.].) Moreover, the court in Leon quoted one commentator's observation that “ ‘[t]he key to the [exclusionary] rule's effectiveness as a deterrent lies ․ in the impetus it has provided to police training programs that make officers aware of the limits imposed by the fourth amendment and emphasize the need to operate within those limits.’ ” (United States v. Leon, supra, 468 U.S. at p. 920, fn. 20, 104 S.Ct. at p. 3419, fn. 20.)
Here, despite his years in the police department, Detective Thorp said he had never been trained to prepare a search warrant affidavit. Rather, County procedure was to go to the district attorney, relate all relevant information, sign the affidavit, and bring it to the magistrate. To the degree Thorp's training and this procedure failed to provide him with what it is reasonable to expect a well trained officer to know about establishing probable cause, the sufficiency of an affidavit, and his duty to exercise reasonable professional judgment over it before submitting it, the exclusion of evidence in this case can serve an instructive purpose.
In light of our discussion, we conclude that the trial court erred in upholding the search under Leon. The judgment is reversed.
1. We have taken judicial notice of the record in defendant's prior appeal, Case No. H006371. (Evid.Code, §§ 452, subd. (d), 453, 459.)
2. United States v. Leon (1984) 468 U.S. 897, 922–923, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677.
3. On cross-examination, Thorp also conceded that in talking to Detective Lodge he did not ask whether X had received any sort of consideration or lenient treatment for her information or whether X was a drug or alcohol abuser. Thorp did not know the precise time of Lodge's dealings with X, whether the eight occasions had related to one or several matters, or whether she implicated herself in criminal activity. Thorp gave contradictory testimony concerning whether Lodge said X had never provided false information.
4. The Attorney General concedes that “[d]epending on whether one interprets the statement [in Thorp's affidavit] to reflect one incident or eight incidents, it may not have been enough to establish the informant's veracity.”
5. The objective standard underlying the Leon exception requires that a well trained officer have a reasonable knowledge of the law. (United States v. Leon, supra, 468 U.S. at p. 920, fn. 20, 104 S.Ct. at p. 3419, fn. 20.)In this regard, we presume that in applying for a search warrant, an officer knows he must provide the magistrate with a sworn statement containing facts sufficient to permit a reasonable, common sense determination of probable cause and that he must not misrepresent or omit material information or mislead the magistrate. (U.S. Const., 4th Amend.; Cal. Const., art. 1, § 13; Pen.Code, §§ 1525–1527; Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667; People v. Siripongs (1988) 45 Cal.3d 548, 570, 247 Cal.Rptr. 729, 754 P.2d 1306.)More specifically, he should know he must demonstrate that reliance on hearsay from an informant is reasonable, that “an informant's ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report,” and that reliance on an informant's hearsay is justified only so long as it is reasonably corroborated by other matters within the officer's knowledge. (Illinois v. Gates (1983) 462 U.S. 213, 230, 241–242, 103 S.Ct. 2317, 2328, 2334, 76 L.Ed.2d 527.)
6. The Attorney General suggests the omission was necessary to to protect X's identity. This explanation is speculative. The record does not reveal why Thorp's information was omitted, and even if we assume this particular information tended to reveal X's identity, we believe it could have been phrased so as to protect her. Moreover, as defense counsel pointed out at oral argument, the information from X included in the affidavit has as much tendency to identify X as the information excluded.Of course, revealing X's motive would probably have led to disclosure of her prior record and current custodial status, the charges against her, and prior intimate relationship with defendant, all of which implicate her credibility.
7. “[P]rostitution and related offenses such as pimping and pandering have generally been recognized as crimes involving moral turpitude.” (People v. Jaimez (1986) 184 Cal.App.3d 146, 150, 228 Cal.Rptr. 852.) Thus, such conduct tends to implicate one's credibility.
8. The Leon hearing did not clearly establish that there were eight arrests. Thorp did not know this first hand and did not expressly say that Lodge told him so. He was asked but denied knowing whether X's information had led to arrests “as opposed to” convictions. This could mean either that he did not know if there were arrests or convictions or that there were at least arrests. The issue was never clarified because the examination of Thorp consistently assumed there were arrests and did not so much seek to verify this fact as to discover why he failed to mention that he obtained his information about X's track record from Lodge.The assumption about arrests is pervasive. The Attorney General says Thorp accepted Lodge's opinion of X's reliability “because it was supported by eight arrests.” And in originally denying the motion to suppress, the court below specifically found X reliable because her previous information led to arrests.
9. Again, we note that this information could have been presented in a way that assured X's anonymity. There was no reason to protect Detective Lodge's identity.
10. Thus, we disagree with the trial court's implicit conclusion to the contrary.
CAPACCIOLI, Acting Presiding Justice.
PREMO and ELIA, JJ., concur.