PEOPLE v. BANUELOS (1993)

OPINION

THE CASE

After the trial court denied his motion to suppress evidence (Pen.Code,1 § 1538.5, subd. (a)(2)), Banuelos pled no contest to one count of committing a lewd and lascivious act upon the body of a child under age 14 (§ 288, subd. (a)).  Pursuant to a plea bargain, the court struck three other counts and various enhancement and special allegations.   The court denied probation and sentenced Banuelos to prison for the six-year middle base term.

Banuelos now contends the court erred in denying his motion to suppress evidence because the search warrant for his residence was issued without probable cause and, alternatively, failed to describe with sufficient particularity the items to be seized.   Respondent argues the warrant was valid in whole or in part and, alternatively, was executed in good faith.

THE FACTS

Based on an affidavit, the warrant authorized a search of a described residence and adjacent building for certain items:

“1. Photograph the interior of the residence, primarily a ceiling fan over the bed and bathroom area;

“2. Camera equipment and video equipment intended for the taking, producing and reproducing of photographic images, including but not limited to cameras, instant and otherwise, video production equipment, lenses, enlargers, and photographic papers, film, chemicals, polaroid cameras, attachments for remotely taking of photographs;

“3. Phone books, phone registers, correspondence or papers with names, addresses or phone numbers which would tend to identify any juvenile who may be a victim of child molestation or exploitation;

“4. Photographs, movies, video tapes, negatives, slides, and/or undeveloped sexually explicit film depicting nudity, and/or sexual activities involving juveniles with juveniles and juveniles with adults;

“5. Correspondence, diaries, and any other writings, not by the accused, tape recording or letters relating to any juvenile and/or adults which tend to show the identity of juveniles and adults and sexual contact between juveniles and adults;

“6. Magazines, books, movies, photographs, and/or drawings, artifacts, or statues depicting nudity and/or sexual activities of juveniles for adults, as well as collections of newspaper, magazines, other publications, and clippings of juveniles, which tend to demonstrate Joe Herrera Banuelos' sexual interest for children;

“7. Documents which shall include utility bills, rent receipts, and letters addressed to Joe Herrera Banuelos which would identify the above described property as belonging to him;

“8. Any substance capable of being used as a lubricant for human genitals prior to and during sexual activity.”

The affidavit consisted of four basic parts.   First, the affiant, a Tulare County District Attorney's investigator, outlined his experience in “child molestation, child pornography, and child exploitation cases.”   Second, the affiant defined three categories of adult offenders:  pedophiles, child pornography procurers, and child pornographers.   Third, the affiant described 19 different tactics used by adult offenders “to seek and seduce their victims.”

Finally, the affiant related certain information pertaining specifically to Banuelos.   According to the affiant, on January 17, 1991, the six-year-old male victim told another officer that Banuelos had orally copulated him at Banuelos's residence;  the victim described the interior of the residence, and the other officer corroborated the description.   On January 22, 1991, Michael C.² told another officer that he was present at Banuelos's residence in December 1990 when Banuelos “put on an x-rated movie.”   Banuelos had been in custody since January 22, 1991, the residence was locked in the interim, and his personal property remained inside.   On February 7, 1991, a four-count complaint charged Banuelos with various sex crimes committed against the victim.   The complaint, together with pertinent police reports, was attached as an exhibit to the affidavit.³

Based on the information, affiant opined reasonable cause existed to photograph the residence interior and to believe the residence concealed “movies, videotapes, still photographs, magazines and pictures of sexual activities between men and men, women and women, women and men, children with children and children with adults.”

DISCUSSION

ISSUE IProbable Cause in the Affidavit to Search Banuelos's Residence

The Fourth Amendment to the United States Constitution provides in part that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”   Section 1525 similarly states:  “A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.”

 The Fourth Amendment “requires the government to establish by sworn evidence presented to a magistrate that probable cause exists to believe that an offense has been committed and that items related to that offense, such as fruits of the crime, will be found on the premises sought to be searched at the time the warrant is issued.  [Citation.]”  (U.S. v. Rabe (9th Cir.1988) 848 F.2d 994, 997.)

 The affidavit must establish a fair probability, under the totality of the circumstances, that the items sought will be found on the subject premises.  (Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527.)   On appeal, the issue is whether the magistrate had a substantial basis for finding probable cause.  (Id. at pp. 238–239, 103 S.Ct. at pp. 2332–2333.)   On this question, the parties predictably diverge.

Banuelos contends the affiant's boilerplate allegations concerning characteristics and tactics of adult sex offenders, together with his brief reference to the investigation of Banuelos, did not establish probable cause in the absence of specific information that the items sought would be found in his residence.   Respondent argues the affiant provided sufficient information to permit a reasonable inference that Banuelos was a pedophile;  this inference, coupled with the affiant's general description of items possessed by pedophiles, supplied the requisite probable cause.

According to the affiant, “Pedophiles are adult individuals whose primary sexual objects are children (under 18 years of age).   They received [sic ] sexual fulfillment from actual physical contact with children and from fantasy involving the use of pictures, film, video or other art mediums.   They procure children for their own sexual satisfaction and take photographs for their own personal possession.”   In addition, the affiant also described numerous tactics used by pedophiles “to seek and seduce their victims.”   Presumably, reliable information that a particular person engaged in these tactics against a specific victim might permit an inference the person was a pedophile, i.e., an adult whose primary sexual objects were children.   Assuming for the sake of discussion that the affiant qualified as an expert capable of diagnosing the psychosexual disorder known as “pedophilia,” even a cursory review of the affidavit reveals he offered no such diagnosis of Banuelos.   Instead, he provided only a general definition.

We take judicial notice of a discussion of “Pedophilia” appearing in the Diagnostic and Statistical Manual of Mental Disorders.⁴  (Evid.Code, §§ 452, subd. (h), 454, subd. (a)(1), 459, subd. (a).)  According to this manual, “The essential feature [of pedophilia] is the act or fantasy of engaging in sexual activity with prepubertal children as a repeatedly preferred or exclusive method of achieving sexual excitement.”  (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3d ed. Washington, D.C.1980) p. 271 [hereafter referenced as DSM III].)   The statement is similar to the affiant's definition of a pedophile as an adult whose primary sexual objects are children.

The affiant did not explain how one identifies a person whose primary sexual objects are children, other than by evidence that he engages in the tactics described in the affidavit.   It is apparent, however, that evidence of one sexual molestation episode, without more, does not permit a lay opinion that the actor's primary sexual objects were children.   Indeed, according to the DSM, written to aid professionals in their diagnosis of psychological disorders, “Isolated sexual acts with children do not warrant the diagnosis of Pedophelia.   Such acts may be precipitated by marital discord, recent loss, or intense loneliness.   In such instances the desire for sex with a child may be understood as a substitute for a preferred but unavailable adult.”  (DSM III at p. 271.)

Respondent argues “the magistrate could have reasonably made the inference that appellant was a pedophile because of the age of the victim, the use of candy to befriend and entice the victim, the type and nature of the sexual activity that the victim was subjected to and the different locations where such activity took place.”   As we have noted, the affiant, who impliedly offered himself as an expert in the field of adult sex offenders, did not opine Banuelos was a pedophile, let alone explain how the facts recited in the affidavit supported a reasonable inference his primary sexual objects were children.   Further, the matters to which respondent refers did not permit a magistrate, unaided by expert opinion, to infer pedophilia here.⁵

Again, one episode of child molestation does not establish pedophilia.⁶  The use of candy to entice a youthful victim does not logically permit an inference that children are the perpetrator's primary sexual objects.   The affiant did not refer to this tactic as one employed by pedophiles, let alone exclusively by them.   While common sense and experience tell us some pedophiles do use such a tactic, it does not follow that use of such a tactic necessarily singles out a person as a pedophile.

Further, reliable information that the perpetrator molested his victim in different ways (as Banuelos reportedly did here) does not show the requisite “[repeated preference] or exclusive method of achieving sexual excitement.”   (DSM III at p. 271.)   Similarly, because the acts occurred at two different locations is insufficient to support an inference of pedophilia, when, as here, they took place within a short period as part of an indivisible transaction.   That the acts, if proved, would have supported separate punishment (see People v. Harrison (1989) 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078;  People v. Perez (1979) 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63), does not mean they supported an inference of pedophilia.

In determining whether a substantial basis existed for a probable cause finding, we consider what the affidavit did not contain.   In this regard, although the young victim was present inside Banuelos's residence and was able to describe certain features to the police, he made no mention whatever of the items the affiant associated with pedophiles:  sexually explicit materials (photographs, magazines, motion pictures, video tapes, books, or slides), sexual aids (dildos, vibrators, or lotions), or photographic equipment.   While the victim's failure to mention any of these items does not rule out all possibility of their presence in the residence, it does underscore the bare-bones nature of the affidavit.

The affidavit did contain information that in December 1990, three months before execution of the affidavit, Banuelos showed an X-rated movie to an adult, Michael C.   The movie was not described further;  nothing suggests the nature of the activity depicted in the film, let alone the age or sex of the actors.   Banuelos's one-time showing of an X-rated movie to another adult did not support an inference that three months later he possessed child pornography in his residence.⁷

The same police report contained Michael's statement “that it was common knowledge around the church that Joe [Banuelos] is a homosexual.”   Assuming Michael's conclusory invocation of “common knowledge” was entitled to any weight, at best it was inconclusive concerning whether Banuelos was a pedophile.   While pedophilia can take a homosexual form, the “common knowledge” did not characterize Banuelos as a homosexual child molester, but simply a homosexual.   It did not establish molestation of children as Banuelos's “repeatedly preferred or exclusive method of achieving sexual excitement.”  (DSM III at p. 271.)

In U.S. v. Weber (9th Cir.1990) 923 F.2d 1338, the court held that a warrant to search the house of a person with a demonstrated interest in child pornography was not based on probable cause.   In 1985, the defendant received advertising material described by an intercepting customs agent as “apparently” child pornography.   In 1987, the defendant placed an order for child pornography (in response to an advertisement sent by the government).   The affidavit augmented this information with a Police Officer Burke's general description of the proclivities of pedophiles.   However, the court noted “nowhere in Burke's affidavit is there even a conclusory recital that the evidence of Weber's demonstrated interest in child pornography—consisting of one proven order—places him in the category of those pedophiles, molesters, and collectors about whom [a fellow officer whose generalities appeared in the affidavit] has expertise.”  (Id. at p. 1341.)

The Weber court reasoned:  “On these facts, to find probable cause ․ would be to justify virtually any search of the home of a person who has once placed an order for child pornography—even if he never receives the materials ordered.”  (923 F.2d at p. 1344.)

The court rejected the government's argument that the expert opinion in the affidavit justified the warrant:

“It is well established that expert opinion may be presented in a search warrant affidavit.  [Citation.]  But if the government presents expert opinion about the behavior of a particular class of persons, for the opinion to have any relevance, the affidavit must lay a foundation which shows that the person subject to the search is a member of the class.

“In this case, the ‘expert’ testimony in the affidavit was foundationless.   It consisted of rambling boilerplate recitations designed to meet all law enforcement needs.   It is clear that the ‘expert’ portion of the affidavit was not drafted with the facts of this case or this particular defendant in mind.”  (U.S. v. Weber, supra, 923 F.2d at p. 1345.)

Banuelos's case differs from Weber in certain respects.   In Weber, the affidavit related specific information demonstrating the defendant's interest in child pornography.   However, it contained no evidence of any specific act of child molestation.   In this case, the affidavit related specific information concerning one instance of child molestation, but contained no evidence Banuelos had any interest in child pornography.   In both Weber and this case the affidavits relied heavily on boilerplate allegations concerning characteristics of certain described sexual offenders, but contained no expert opinion that the target of the search warrant fit within the described categories.   Indeed, the structure and content of the affidavits in the two cases is strikingly similar.

 A single episode of child molestation, without more, does not authorize a search of the perpetrator's residence for a wide variety of paraphernalia that an “expert” associates with pedophiles.   Because the affidavit did not contain a substantial basis for the magistrate to conclude Banuelos was a pedophile, under either the affidavit's own definition or standard medical usage as contained in DSM III, the affidavit failed to establish probable cause to search Banuelos's residence for the many items the affiant associated with pedophiles.   The magistrate erred in issuing the search warrant, except insofar as it authorized the photographing of the interior of the residence, particularly the bathroom and the ceiling fan over the bed, previously described by the victim.

Banuelos also argues the warrant was overbroad.   We need not reach that issue.

ISSUE II

The “Good Faith” Exception

 Anticipating an adverse ruling, respondent relies upon the “good faith exception” to the exclusionary rule set out in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, to argue the evidence need not be excluded.  Leon advises evidence should not be suppressed if the government acted in “good faith,” to wit, with objective reasonableness.  “It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it[.]”  (Id. at p. 923, fn. 24, 104 S.Ct. at p. 3420, fn. 24.)   The objective standard “requires officers to have a reasonable knowledge of what the law prohibits.”  (Id. at pp. 919–920, fn. 20, 104 S.Ct. at pp. 3418–3419, fn. 20.)   An officer does not “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’   [Citations.]”  (Id. at p. 923, 104 S.Ct. at p. 3421.)

Again, Weber is instructive:

“The rationale behind Leon is that since law enforcement officers are not lawyers and since they must often make ‘hurried judgment[s],’ id. at 914, ․ courts should not exclude probative evidence when officers make reasonable mistakes in obtaining a warrant.   We conclude that one such factor in determining whether the warrant was obtained reasonably is the time pressure under which the Officer was operating when he prepared the warrant application.”  (U.S. v. Weber, supra, 923 F.2d at p. 1346.)

 At the time the officer sought the warrant on March 22, 1991, Banuelos had been incarcerated for two months, his residence on the church grounds was locked, and a priest had the key.   No one was living in the house.  “Under these circumstances, there was no need for the ‘hurried judgment’ upon which law enforcement decisions must often be based.  [Citation.]”  (U.S. v. Weber, supra, 923 F.2d at p. 1346.)   While the investigator/affiant here may have acted in subjective good faith, he acted unreasonably in preparing the affidavit he presented.   The “good faith” exception cannot supply a safety net under these circumstances.

People v. Camarella (1991) 54 Cal.3d 592, 286 Cal.Rptr. 780, 818 P.2d 63 does not dictate a different result.   In Camarella our Supreme Court explained:

“We distill from Leon, supra, 468 U.S. 897 [104 S.Ct. 3405] and its progeny the following:  If a well-trained officer should reasonably have known that the affidavit failed to establish probable cause (and hence that the officer should not have sought a warrant), exclusion is required under the third situation described in Leon, and a court may not rely on the fact that a warrant was issued in assessing objective reasonableness of the officer's conduct in seeking the warrant.   But in all other cases, unless one of the other limited Leon situations is triggered, Leon's ‘general’ rule of nonexclusion will apply.”  (54 Cal.3d at p. 596, 286 Cal.Rptr. 780, 818 P.2d 63, emphasis original.)

Applying this test, the Camarella court stated:

“We cannot say that an objective and reasonable officer would have ‘known’ this affidavit failed to establish probable cause.   It is plain from the affidavit that [Detective] Addoms conducted more than a mere ‘bare bones' investigation (see Gates, supra, 462 U.S. at p. 239 [103 S.Ct. at p. 2332, 76 L.Ed.2d at pp. 548–549];  Leon, supra, 468 U.S. at p. 926 [104 S.Ct. at p. 3422, 82 L.Ed.2d at pp. 700–701] ).   He obtained substantial corroborating information that, although stale, 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 (Leon, supra, 468 U.S. at p. 926 [104 S.Ct. at p. 3422, 82 L.Ed.2d at pp. 700–701] [affidavit ‘provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause’] ).   Addoms thereafter submitted the affidavit to a deputy district attorney, who approved it.   Under these circumstances, we conclude Addoms acted reasonably when he took this affidavit to a judicial officer for determination.   His subsequent reliance on the warrant that was issued was thus objectively reasonable under Leon, and suppression of the evidence is not required.”   (54 Cal.3d at pp. 606–607, 286 Cal.Rptr. 780, 818 P.2d 63, emphasis added.)

As our foregoing discussion indicates, quite unlike the Camarella affidavit, the instant affidavit was woefully, obviously, inadequate.   As we noted, ante, it “relied heavily on boilerplate allegations concerning characteristics of certain described sexual offenders, but contained no expert opinion that the target of the search warrant fit within the described categories.”   It contained no information showing Banuelos had any interest in child pornography.   In sum, the affidavit did not raise a “close” or “debatable” question whether probable cause existed to search for and seize the items here under consideration.

 Under Camarella, the test is not whether the particular officer in fact knew that the affidavit failed to establish probable cause.   Rather, the test is whether a hypothetical well-trained officer reasonably should have known that the affidavit was inadequate.   The defects in the instant affidavit, detailed above, require an affirmative answer.

The dissent extends the Leon “good faith exception” far beyond either the facts of Camarella or the Supreme Court's holding in that case.   It is important to note Camarella dealt with an affidavit which failed to establish probable cause because certain corroborative information was stale, not because that information was missing.   In the present case had there been any information connecting Banuelos to pedophilia or to child pornography, albeit stale information, the “good faith exception” might well apply.   But the affidavit regarding this vital link was “bare bones”—in fact, “no bones.”   The language of Camarella compels a conclusion that the items relating to child pornography must be suppressed.

DISPOSITION

The judgment is reversed and the cause remanded to the superior court.   If Banuelos moves to withdraw the plea within 30 days of the finality of this opinion, on motion of the People the original charges shall be reinstated and trial or other appropriate disposition shall proceed in accordance with the views expressed in this opinion.   If Banuelos does not elect to withdraw his plea of nolo contendere, the superior court shall reinstate the judgment.   (People v. Ruggles (1985) 39 Cal.3d 1, 13, 216 Cal.Rptr. 88, 702 P.2d 170.)

I concur in the reversal of the judgment, but I do so on the basis of different reasoning.   First, unlike the principal opinion and with due respect to the American Psychiatric Association, I have no problem in drawing an inference that appellant may be a pedophile from the particular circumstances of the crime charged in this case.

However, this inference alone does not establish probable cause for a warrant to search his home for pedophile paraphernalia such as sexually explicit photographs, movies or sexual aids.   If this were sufficient, then anytime a young child is molested by an adult a warrant could issue on the basis of the boilerplate allegations used in this case.   Without independent evidence from which a rational inference can be made that it is probable the paraphernalia will be in the house at the time the warrant is executed, probable cause is lacking, just as in drug cases where proof of possession of illegal drugs outside a house is itself generally insufficient to support a warrant to search a house for additional drugs or drug paraphernalia.  (2 LaFave, Search and Seizure (2d ed. 1987) § 3.7(d), pp. 104–105.)

Finally, I do not believe any well-trained, rational police officer would believe such boilerplate allegations would support a search warrant.   Thus, the United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 “good faith” exception to the probable cause requirement does not apply.

I respectfully dissent.

The lead opinion concludes “Because the affidavit did not contain a substantial basis for the magistrate to conclude Banuelos was a pedophile, under either the affidavit's own definition or standard medical usage as contained in DSM III, the affidavit failed to establish probable cause to search Banuelo's residence for the many items the affiant associated with pedophiles.   The magistrate erred in issuing the search warrant, except insofar as it authorized the photographing of the interior of the residence, particularly the bathroom and the ceiling fan over the bed, previously described by the victim.”  (Lead opinion, p. ––––.)

I gather from this that the majority finds the affidavit established probable cause to enter for a limited purpose but not to search for all the items designated.   The majority concludes that the search was, therefore, in part invalid.   Maintaining that a reasonably well trained police officer would know the affidavit was insufficient to establish probable cause, the majority finds under United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 that the “good-faith exception” of Leon is inapplicable.   Leon states:  “The objective standard we adopt ․ requires officers to have a reasonable knowledge of what the law prohibits.”  (Leon, supra, 468 U.S. at p. 920, fn. 20, 104 S.Ct. at p. 3419, fn. 20, quoting United States v. Peltier (1975) 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374.)

In People v. Camarella (1991) 54 Cal.3d 592, 286 Cal.Rptr. 780, 818 P.2d 63, our high court interpreted the Leon standard.

“We turn to the question of whether evidence must be excluded if it is seized pursuant to a warrant unsupported by probable cause.   Under high court cases dating from Weeks v. United States (1914) 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652], evidence seized in violation of a defendant's Fourth Amendment rights has been subject to exclusion from the prosecution's case-in-chief.   Justice White's opinion for the court in Leon concluded, however, that the ‘benefits' of this rule were ‘marginal or nonexistent’ in a case in which the challenged evidence was ‘obtained in objectively reasonable reliance on a subsequently invalidated search warrant,’ and that exclusion in such situations is inappropriate.  [Citations.]  The court observed, ‘ “If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” ’   [Citations, italics added.]

“The court cautioned, however, that although ‘ “a warrant issued by a magistrate normally suffices to establish” that a law enforcement officer has “acted in good faith in conducting the search” ’ [citations, italics added], there are limited situations in which this presumption does not apply.   An ‘officer's reliance on the magistrate's probable-cause determination ․ must be objectively reasonable, cf. Harlow v. Fitzgerald [ (1982) ] 457 U.S. 800, 815–819 [102 S.Ct. 2727, 73 L.Ed.2d 396] [citations], and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.’  [Citations.]  In a footnote after the citation to Harlow v. Fitzgerald (1982) 457 U.S. 800 [102 S.Ct. 2727, 73 L.Ed.2d 396] [citations], the court explained that its inquiry in this regard will be ‘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.’  [Citations.]  The court then described four situations in which suppression would remain an appropriate remedy.   The third situation—urged by defendant in this case—provides as follows:

“ ‘Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”  [Citations, fn. omitted.]’ ”  (People v. Camarella, supra, 54 Cal.3d at pp. 602–603, 286 Cal.Rptr. 780, 818 P.2d 63.)

The Camarella court then synopsized the test after examination of Malley v. Briggs (1986) 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 to conclude:

“․ The test ․ 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.’  [Citation.]  But if such an officer would not reasonably have known that the affidavit (and any other supporting evidence) failed to establish probable cause, there is no reason to apply the exclusionary rule, because there has been no objectively unreasonable police conduct requiring deterrence.  [Citation.]  An officer in this latter situation will be permitted to rely on the warrant, and Leon 's general rule of nonexclusion will apply, unless one of Leon 's other limited ‘exclusion’ situations is triggered.”  (People v. Camarella, supra, 54 Cal.3d at pp. 605–606, 286 Cal.Rptr. 780, 818 P.2d 63, emphasis added.)

The difficulty has become evaluating a warrant which fails to establish probable cause but is not so woefully deficient that an officer could objectively be charged with knowledge that it was insufficient and differentiating that situation from a warrant which fails to establish probable cause and is so deficient that it may objectively be concluded the officer must have known that it was insufficient.   In other words, when is not enough really, really not enough?

I submit that we must establish what a reasonably well-trained police officer would be expected to know.   Otherwise, we simply engage in an “I know it when I see it” approach to judicial review.   It would seem logical to conclude an officer should know what is legally required to be shown in order to secure a valid search warrant.   This is essentially the other side of Leon 's reference to “knowledge of what the law prohibits.”  (Leon, 468 U.S. at p. 920, fn. 20, 104 S.Ct. at p. 3419, fn. 20.)   In other words, a reasonably well-trained police officer can be expected to be aware of the basic requirements necessary to establish probable cause requisite to the issuance of a valid search warrant.   For example:

(1) If the information comes from an informant, the affidavit must contain facts which establish the informant is reliable and the information given is factual, not conclusory, and from personal knowledge.  (Illinois v. Gates (1983) 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527;  People v. Ramey (1976) 16 Cal.3d 263, 269, 127 Cal.Rptr. 629, 545 P.2d 1333.)

(2) There must be facts establishing the time of critical events so a magistrate can determine whether the information is fresh and reliable or stale and unreliable.  (Rugendorf v. United States (1964) 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887;  Sgro v. United States (1932) 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260.)

(3) There must be facts establishing a nexus between the information of criminal activity, the items sought and the place to be searched.  (Illinois v. Gates, supra, 462 U.S. at p. 230, 103 S.Ct. at p. 2328;  U.S. v. Hove (9th Cir.1988) 848 F.2d 137, 139).

(4) The affidavit must contain facts identifying with particularity the place to be searched and the items to be seized.  (Steele v. United States (1925) 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757;  United States v. Leon, supra, 468 U.S. 897, 104 S.Ct. 3405;  United States v. Alberts (8th Cir.1983) 721 F.2d 636.)

However, demonstrating or meeting those standard warrant requirements depends on facts which vary widely from case-to-case.   An officer is charged with putting sufficient facts in the affidavit to meet the legal standards or requirements.   Herein lies the problem.   It is the officer's charge to attempt to meet search warrant requirements by submitting facts which are sufficient.   It is the magistrate's job to determine if those warrant requirements have been met by presentation of sufficient facts.   Further, we do not even get to the Leon “good-faith” analysis unless it has been determined that

(1) the magistrate failed in his/her evaluation of the legal sufficiency of the warrant, and

(2) the facts submitted by the officer are legally insufficient to justify issuance of the warrant.

In other words, Leon assumes the officer has failed to meet legal standards for issuance of a search warrant.   However, the officer's failure is not enough to result in suppression of the evidence seized.   I submit that a review of a warrant will demonstrate whether an officer has submitted any facts directed towards establishing individual warrant requirements.   Certainly if a reasonably well-trained police officer can be expected to know what legal warrant requirements are, then that officer would be expected to know he or she must put facts in the affidavit in order to attempt to meet those requirements.   If there are no facts in the affidavit that attempt to meet the warrant requirement—i.e., no facts describing the places to be searched, etc.—then one could conclude a reasonable well-trained police officer would recognize the application was deficient.   Which brings us to the next step.   What if the officer puts in some facts directed to establishing the warrant requirement?   The entire purpose is to encourage officers to get search warrants—not to sanction them when they make an arguable effort and fail.   The fact that as judges we would not issue the warrant begs the question.   The fact that the warrant does not supply probable cause begs the question.   All of these are a given in order to get to the question under Leon.

In my view, the only way a reasonably well-trained officer would know the search was illegal is if the officer made such a minimal effort to comply with the search warrant requirements that it is objectively evident that such effort should have been recognized as insufficient.   If we are to conclude that a reasonably well-trained police officer would know that the affidavit is insufficient this can only mean that it is so evident the warrant is deficient that we can conclude the officer either must have been aware of it or should have been aware of it.   Under these circumstances, official belief in its validity would be entirely unreasonable.

Which brings me to the warrant in the instant case.   I agree that the warrant is deficient in establishing probable cause.   I further agree that for judges it is not a close or debatable issue.   However, having in this respect joined in a portion of the majority's conclusions I must part company.   The majority does not and cannot conclude the affiant made no effort to comply with the requirements of probable cause.   The majority does conclude that the affiant failed to establish probable cause.   The majority makes reference to the issue as neither “close” or “debatable”.   These are questions for judges.   Under Leon, if it was “close” or “debatable” it would be upheld.  “[W]e have expressed a strong preference for warrants and declared that ‘in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.’  [Citation.]  Reasonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according ‘great deference’ to a magistrate's determination.”  (United States v. Leon, supra, 468 U.S. at p. 914, 104 S.Ct. at p. 3416.)   The inquiry under Leon arises only when it is not close or debatable on the issue of whether probable cause exists.   It would seem evident that if it was close or debatable in an evaluation by judges then it would certainly be unreasonable to expect a police officer to know the warrant was deficient.   This is not a bare bones affidavit.  (See Illinois v. Gates, supra, 462 U.S. at p. 239, 103 S.Ct. at p. 2332;  Leon, supra, 468 U.S. at p. 926, 104 S.Ct. at p. 3422).   This is no desultory effort by a police officer to meet the requirements that the law provides to establish probable cause.

Further, it is a given that under Leon the “good faith” analysis does not arise unless the facts do not generate the essence of probable cause.   And what is probable cause?   In Illinois v. Gates, supra, 462 U.S. 213, 103 S.Ct. 2317, the court stated:

“ ‘[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation․  It imparts a seizure made under circumstances which warrant suspicion.’  ․ While an effort to fix some general, numerically precise degree of certainty corresponding to ‘probable cause’ may not be helpful, it is clear that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’ ”  (Id. at p. 235, 103 S.Ct. at p. 2330.)

Therefore, the good faith-exception assumes that the affidavit does not support a conclusion of a probability.   However, any objective evaluation must consider whether the facts averred would generate in a reasonable officer a suspicion directed towards the desired inference.   Certainly, if it cannot be said the facts would not generate even a reasonable suspicion directed to the desired inference, albeit not a probability of the desired inference, then we can conclude the officer knew or should have known.

What the case before us is, is an example of an officer who inferred too much from too little.   However, while the facts may not objectively give rise to the degree of certitude that a magistrate should require, neither are they wholly beyond the realm of logical inference or suspicion.   Therefore, I conclude that the affiant put forth facts in the affidavit directed towards establishing that evidence of child molestation would be found at the place to be searched.   His efforts are a classic example of why magistrates must interpose themselves between police officers 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, fn. omitted] and the objective evaluation of a magistrate.   However, when an officer makes an evident effort to comply with the requirements of law I do not think that it is realistic to conclude that the officer should know that those efforts are insufficient.

We must have some basis to evaluate under what circumstances a reasonable well-trained police officer would know that the affidavit failed to establish probable cause and should not have been applied for.   I, therefore, express my view that when a police officer makes an effort to establish those things that are basic requirements of a search warrant and that effort cannot be described as desultory or to be no effort at all, then we cannot sanction the police officer by excluding the evidence because the officer chose to submit the question to a magistrate who failed in his or her duty.   Rather, in those circumstances where it is evident that no effort was made to comply with search warrant requirement by inserting facts that establish those requirements or where it is simply unreasonable to draw the type of inference urged by the affiant on the facts submitted in the affidavit we can then say objectively that the officer should have known that the affidavit was insufficient and should not have been submitted.   That conclusion should not be reached here.   I would affirm.

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

2.   A police report attached to the affidavit describes Michael C. as a 34–year–old man.

3.   In essence, the police reports related the following chronology:  On Monday, January 14, 1991, around 2 p.m., the victim's mother saw Banuelos, whom she knew from church and a former place of employment.   She asked Banuelos to give the victim and her a ride.   He agreed.   She left the victim in his charge while she went into the administration building to conclude registration for school.   When she emerged from an office inside the building, she saw the victim and Banuelos entering the building from the outdoors.   The victim was eating candy which Banuelos admitted giving to him.   At about 4:30 p.m., Banuelos then drove the victim and her to the county education building where she had additional business.   When they arrived, she got out and Banuelos drove off with the victim, saying he had to pick up some mail at his residence.   Thinking he was going to park the vehicle, she carried out her business.   When she emerged from the education building and saw that Banuelos had not returned, she became worried.   After she made several unsuccessful efforts to locate Banuelos and the victim, around 6 p.m. she located the victim with Michael C. at a local church where Michael C. had taken the victim from Banuelos's residence.   Within the next few days, the victim reported soreness in his genitalia and told her about his sexual encounter with Banuelos.The victim told police Banuelos had reached inside his pants and fondled his genitals while they waited for his mother in Banuelos's car.   Banuelos then gave him candy and told him to promise not to tell his mother what happened.   Later, he awakened and found himself on a bed in a house.   Banuelos took off his (the victim's) pants and licked his penis.   He then took him to the bathroom and told him to turn around and bend over.   The victim said Banuelos was going to sodomize him, but ultimately he did not do so.   In another account, the victim said Banuelos gave him the candy before fondling his genitals.   At the house, Banuelos placed him on the bed, then began licking him on the genitals and other parts of his body.   It appears the victim was in Banuelos's custody less than two hours.

4.   The court has read and considered Banuelos's objections to taking judicial notice of the cited discussion.   His objections are rejected.

5.   A defendant's propensity toward sexual deviation is a proper subject for expert opinion.  (See Annot. (1985) 42 A.L.R.4th 937;  1 Witkin, Cal.Evidence (3d ed. 1986) § 498, p. 470.)

6.   At the suppression hearing, the trial court remarked that if the victim's allegations were true “the defendant is a pedophile, no question about it.   That's the definition of it, someone who sexually molests a six year old.”

7.   Another male, described by Michael as “Saul G.,” was present with Michael when this incident occurred.  “Saul G.” is described in the reports as a “seminarian.”   His age is not disclosed, but he obviously was an adult.

STONE (WM. A.), Acting Presiding Justice.