HAMILTON v. PEOPLE (1989)

The determinative issue presented in this proceeding is whether the record establishes that petitioner sufficiently demonstrated the “standing” required to entitle him to a suppression hearing.  (Pen.Code, § 1538.5.)

On February 9, 1989, Gilbert Toledo, a detective assigned to the narcotics detail of the Downey Police Department, executed an affidavit in which he declared under oath that a reliable confidential informant had advised him that petitioner, Edward Hamilton, was selling marijuana from his residence located at 8701 Boyne Street in Downey.   Officer Toledo also averred that after this informant had been strip searched he had successfully purchased marijuana from petitioner at petitioner's home.   Lastly, the officer asserted that on an earlier occasion a “search warrant had been served at the residence ․ and narcotics were found at that time.”

Obviously, and as a matter of law, once credited, this affidavit fully justified the issuance of the subject warrant authorizing a search of petitioner's home.   The return prepared by Officer Toledo following its execution revealed that substantial quantities of contraband, scales, guns, police scanners, etc., were discovered on the premises in addition to personal papers and photographs of petitioner.   Consequently, an appropriate complaint was filed in the municipal court charging petitioner with possessing marijuana for sale in violation of Health and Safety Code section 11359.

At his ensuing preliminary examination petitioner filed a written motion seeking both to challenge the facial sufficiency of the search warrant's supporting affidavit and to traverse its factual averments.   Unfortunately, while the former appears patently meritless, and petitioner's conclusional generalities regarding the latter were wholly insufficient to entitle him to a hearing (see Franks v. Delaware (1978) 438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667), these shortcomings were never touched upon below.¹

Instead, although it is impossible to believe the People truly suspected Officer Toledo had perjured himself in both his affidavit and return to the warrant, and was prepared to do so again in order to bind petitioner over for trial, the Deputy District Attorney demanded that petitioner demonstrate that he had enough of a privacy interest in his own home to permit him to challenge the manner in which the proofs of his guilt had there been harvested.

While one might regard as superfluous any showing of “standing” beyond that made in (1) the warrant's supporting affidavit, (2) the return thereto, and (3) the complaint actually filed in the present case, we recognize the importance, even in such an extreme instance, of foreclosing the possibility that an accused intends to take up valuable judicial time debating the propriety of a search and seizure, only then to urge in a trial on the merits that he had no connection with the premises or the containers searched.

Having read far too many transcripts involving exactly this form of gamesmanship, we are convinced that an initial inquiry should be made in virtually every proceeding, particularly since, when conducted in good faith by both the People and the defendant, such testing ought not to consume more than a few moments of the court's time.   That is to say, an adequate showing might be made either by a specific factual stipulation by defense counsel or by the defendant testifying, as petitioner did here, that the residence searched was indeed his home and even that it was in his bedroom that the bulk of the incriminating items had been found.   As cogently pointed out in People v. Johnson (1984) 162 Cal.App.3d 1003, 1010–1011, 209 Cal.Rptr. 78:

“The federal standards governing the exclusion of evidence do not implicate or denigrate a defendant's constitutional right against self-incrimination or his rights to a fair trial and assistance of counsel.   Defendant need only establish that an illegal search invaded his own expectation of privacy.   He does not have to admit an element of the offense charged against him.   He need not even testify at the suppression hearing.   However, if he does, his rights remain adequately protected since his suppression hearing testimony may not be admitted against him at trial on the issue of guilt unless he makes no objection.  (Simmons v. United States (1968) 390 U.S. 377, 394 [88 S.Ct. 967, 976, 19 L.Ed.2d 1247] ․;  see People v. Douglas (1977) 66 Cal.App.3d 998, 1003–1005 [136 Cal.Rptr. 358] ․;  see also People v. Coleman (1975) 13 Cal.3d 867, 889–892 [120 Cal.Rptr. 384, 533 P.2d 1024]․)

“Defendant argues that his rights remain jeopardized because his suppression hearing testimony could still be used to impeach him at trial if he contradicts such testimony.  (People v. Douglas, supra, 66 Cal.App.3d 998, 1005–1006 [136 Cal.Rptr. 358].)

“This risk does not jeopardize his constitutional rights.   Rather, it prevents him from falsely claiming an expectation of privacy at his suppression hearing so as to meet the federal exclusionary requirements;  or from falsely denying such a claim at trial so as to avoid conviction.   The protection of a defendant's rights should never permit him to escape accountability for perjury.  (See United States v. Kahan (1974) 415 U.S. 239, 243 [94 S.Ct. 1179, 1181, 39 L.Ed.2d 297] ․;  People v. Coleman, supra, 13 Cal.3d 867, 892 [120 Cal.Rptr. 384, 533 P.2d 1024].)”

We, therefore, are unable to join with our colleagues in the Fourth District to the extent their ruling in People v. Contreras (1989) 210 Cal.App.3d 450, 456, 259 Cal.Rptr. 290, indicates that “only [where] a third party's Fourth Amendment rights appear to have been implicated and presentation of the prosecution evidence would be overly time consuming, [might it] be more expeditious to initially examine the defendant's interest in, or relationship to, the place searched.” ²

Unfortunately, despite the petitioner's explicit testimony in the instant case, as well as the proofs contained in the documents upon which the People's showing necessarily rested, the Deputy District Attorney conducting petitioner's preliminary examination sought to convert it into a civil discovery proceeding by asking:  “And were you the sole occupant of that bedroom on or about that date?”

 We believe it is self-evident that having charged petitioner with possessing the contraband found in his sleeping quarters, the prosecution neither hoped to, nor intended to, disprove by such “cross-examination” (sic ), petitioner's and Officer Toledo's joint claim that petitioner had a privacy interest in his bedroom sufficient to question its search, regardless with whom he might have been sharing it, either on a temporary or permanent basis.   Consequently, when petitioner declined to answer this question on advice of counsel, the magistrate conducting the preliminary examination erred when, in essence, he struck all petitioner's testimony, ignored all of Officer Toledo's sworn declarations, and refused to allow petitioner to challenge the search warrant, either facially or by traversing its factual averments solely on the basis that by thus limiting his testimony to relevant cross-examination, petitioner had failed to establish the requisite “standing.” 

 In considering petitioner's Penal Code section 995 motion, the superior court initially, and correctly, announced that it felt petitioner's showing of “standing” had been adequate.   It then inquired if the problem could not be resolved by simply conducting a suppression hearing in accordance with the renewed motion petitioner had filed there.   The People promptly compounded their initial error by urging that petitioner already had forfeited forever his constitutional rights since, ordinarily, only one attempt to challenge the legality of a search may be had (Pen.Code, § 1538.5, subd. (i)), and petitioner had exhausted his at his preliminary hearing!   Unhappily the court accepted this remarkable contention and denied petitioner any relief.

Under other circumstances we might strive to uphold the superior court's rulings in full, not on the basis of petitioner's lack of “standing,” but rather because the instant search warrant's facial sufficiency is rationally indisputable and petitioner's showing in support of his motion to traverse was inadequate.  (See fn. 1, ante.)   We are loathe to do so in this instance, however, since, as noted, these deficiencies have yet to be discussed or even mentioned below.   As a result, while the court's denial of petitioner's Penal Code section 995 motion was correct, though not for the reason stated, since we do not agree that his Penal Code section 1538.5 rights were exhausted in the municipal court, we shall remand this matter to the superior court, directing it to consider the renewed motion to suppress he filed there, if he is able by amendment to render it legally sufficient.

Let a peremptory writ of mandate issue directing respondent to set aside its rulings of July 7, 1989, to the extent it declined to hear petitioner's motion to suppress on the ground of lack of standing, and to proceed to consider it in accordance with the views expressed herein.

FOOTNOTES

1.   “There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant.   To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross examine.   There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.   They should point out specifically the portion of the warrant affidavit that is claimed to be false;  and they should be accompanied by a statement of supporting reasons.   Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.   Allegations of negligence or innocent mistake are insufficient.   The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.   Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.   On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing.   Whether he will prevail at that hearing is, of course, another issue.”  (Fn. omitted.)  (Franks v. Delaware, supra, 438 U.S. at pp. 171–172, 98 S.Ct. at pp. 2684–2685.)

2.   We also find no cause for rejoicing in the methodology adopted by the Contreras court in its revised version of that decision.   It certainly will gladden few hearts to learn that the public must suffer the release of a guilty man, after he has finally been required to confirm his “standing,” by automatically applying the exclusionary rule to what quite probably was an entirely legal search, simply to punish the prosecution for its original sin of contemptuously insisting that precisely such a showing should have been made earlier.   However, we trust such extreme measures will prove necessary only in a jurisdiction where personalities frequently appear to rise above principles.  (See, e.g., Bryce v. Superior Court (1988) 205 Cal.App.3d 671, 675, fn. 1, 252 Cal.Rptr. 443.)

GATES, Associate Justice.

COMPTON, Acting P.J., and FUKUTO, J., concur.