PEOPLE v. COLLAZO (1992)

Defendant, Salvador Collazo, appeals from the judgment entered following his plea of guilty to possession of cocaine and possession of a concealable firearm by a felon after the superior court denied his motion to suppress evidence.  (Health & Saf.Code, § 11350, subd. (a);  Pen.Code, §§ 1538.5, 12021, subd. (a).)  Appellant contends the trial court erred in denying his motion to suppress evidence.   We reverse.

FACTS AND PROCEEDINGS BELOW

Los Angeles County Deputy Sheriff George Johnson and his partner conducted a search of defendant Collazo's residence pursuant to a warrant.   The deputies called in a search dog to assist in the search.   The dog alerted the deputies to a credenza and a desk in the southwest back bedroom.   Deputy Johnson opened the credenza and found an Ohaus scale and a lunch box.   The lunch box contained drug paraphernalia, sifters, a miniature hand scale, and an amber vial containing cocaine.   The search of the bedroom also led to the discovery of a .45 caliber pistol, a bindle containing a cocaine-like substance, and utility bills and cancelled checks which verified Collazo occupied the residence.

Deputy Johnson advised Collazo of his rights.   Collazo stated he understood his rights and waived them.   Collazo then told the deputies the bedroom they had searched belonged to him.

Collazo moved to suppress the evidence seized in the search of his residence on the ground the affidavit prepared by Deputy Johnson failed to establish probable cause for the search.

It is clear from the transcript of the hearing on the motion that the trial court had the affidavit before it.   However, sometime between that hearing and the appeal the affidavit was lost or destroyed.   At our request, the parties made an effort to produce a copy of the affidavit.   The purported copy of the affidavit furnished us by the Attorney General is either incomplete or, if complete, does not even contain the allegations about receiving information from a confidential informant which was reflected in Deputy Johnson's testimony and discussions at the suppression hearing.   Therefore, the only existing evidence of the contents of the affidavit actually submitted to the magistrate is the copy furnished us by the Attorney General, Deputy Johnson's testimony at the hearing and the trial court's statements made in the course of the hearing.

The following evidence was produced at the hearing on the motion to suppress.   Prior to July 10, 1987, Deputy Johnson prepared an affidavit for a search warrant for Collazo's residence.   Deputy Johnson had served as a deputy sheriff for approximately 16 years and had been with the narcotics branch for over 2 years.   Deputy Johnson had applied for over a hundred search warrants.   The Collazo affidavit “discussed” a confidential reliable informant who told Deputy Johnson cocaine was being sold at “this particular residence.”

Deputy Johnson testified he had additional information about the informant which he had excluded from his affidavit.   According to Deputy Johnson, the informant had been used on prior occasions to make controlled narcotics buys where he was searched and returned with narcotics.   Deputy Johnson testified he did not include any of this information in his affidavit for fear of revealing the informant's identity.   Deputy Johnson was unable to remember if a controlled buy had been made in this case but he said if one had been made he would have included it in the affidavit.   The hearing testimony did not reflect the affidavit contained information regarding a controlled buy.   The informant had also provided Deputy Johnson with information on other cases which had always proved truthful.   The only corroboration Johnson testified to was surveillance after the warrant had been signed.

The trial court found the search warrant to be invalid because the affidavit lacked sufficient information for the magistrate to have determined probable cause for the search of Collazo's residence.   However the evidence was not excluded because the court found Deputy Johnson acted in good faith reliance upon the warrant's validity under the test enunciated in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.

DISCUSSION

 The California Supreme Court established in People v. Wright (1990) 52 Cal.3d 367, 391, 276 Cal.Rptr. 731, 802 P.2d 221, when the original affidavit is lost or destroyed, secondary evidence may be introduced to establish the contents of the missing affidavit.   In the present case both parties concede the affidavit in support of the warrant has been either lost or destroyed.   Therefore, we are left with the purported copy furnished us by the Attorney General and Deputy Johnson's testimony about the contents of the affidavit.   Johnson testified the affidavit “discussed a confidential reliable informant” who told him cocaine was being sold from Collazo's residence.

We conclude the facts in the affidavit were insufficient to establish probable cause for the search and a reasonable, well trained officer would have known that.   Although Deputy Johnson possessed knowledge which might have established the reliability of the informant, he did not include that information in his affidavit.   The only fact contained in the affidavit was that Deputy Johnson received information from a confidential informant who told him cocaine was being sold from Collazo's residence.   The other evidence produced at the hearing on the motion to suppress cannot be used either to establish probable cause for the warrant or Deputy Johnson's good faith reliance because Deputy Johnson did not include that information in his affidavit to the magistrate.   Evidence at the hearing showing Deputy Johnson believed in the reliability of the informant when he prepared the affidavit and the reasons for his belief was irrelevant because on a motion to suppress review is limited to “evidence actually offered and received by the magistrate․”  (Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 945, 216 Cal.Rptr. 817, quoting Buck v. Superior Court (1966) 245 Cal.App.2d 431, 433, 54 Cal.Rptr. 282.)

The People do not challenge the trial court's determination the affidavit was facially insufficient to establish probable cause.   Therefore, our task is to determine whether the evidence seized should be excluded according to the rule set forth in United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.

 In Leon, the Supreme Court modified the exclusionary rule to permit the introduction of evidence obtained in the reasonable good faith belief the search and seizure did not violate the Fourth Amendment.  (468 U.S. at p. 909, 104 S.Ct. at p. 3413.) ¹  Although a warrant issued by a magistrate generally suffices to establish an officer's good faith belief, in some circumstances the officer will have no reasonable grounds for relying on the magistrate.  (Id., at p. 923, 104 S.Ct. at p. 3420.)   Review is limited to an objective examination of whether a “reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization.”  (People v. Camarella (1991) 54 Cal.3d 592, 603, 286 Cal.Rptr. 780, 818 P.2d 63, quoting Leon, supra, 468 U.S. at p. 922, 104 S.Ct. at p. 3420.)  (Italics in original.)   The task of the reviewing court is confined to determining whether the magistrate had a “substantial basis for concluding probable cause existed.”  (Illinois v. Gates (1983) 462 U.S. 213, 238–39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, quoting Jones v. United States 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697.)

 The purpose of the exclusionary rule is to deter police misconduct.   When officers have acted in good faith, application of the exclusionary rule is unnecessary.   Thus, the exclusionary rule should be applied only where the exclusion of evidence would deter misconduct.  (Leon, supra, 468 U.S. at p. 918, 104 S.Ct. at 3418.)   This objective standard adopted by Leon requires officers to have a reasonable knowledge of what the law prohibits.  (Id., at p. 920, fn. 20, 104 S.Ct. at p. 3419, fn. 20.)

 Leon's good faith exception to the exclusionary rule does not apply in four situations:  (1) where the affiant misled the magistrate with information the affiant knew or should have known was false;  (2) where the magistrate wholly abandoned his judicial function;  (3) where the affidavit was “so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable”;  (4) where the warrant itself is facially deficient in particularizing the place and items to be searched.  (Id., at p. 923, 104 S.Ct. at p. 3420, quoting Brown v. Illinois (1975) 422 U.S. 590, 610–611, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416.)

 The third situation applies in the present case.   This case is unusual in that the facts concerning the reliability of the informant omitted from the affidavit might have led to the establishment of probable cause.   However, it has long been established the duty to draw inferences falls on the neutral and detached magistrate, not the officer involved.  (Johnson v. United States (1948) 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436.)

The following cases illustrate situations in which a reasonable, well trained officer could not believe in good faith in the sufficiency of the affidavit to establish probable cause.

In People v. Maestas (1988) 204 Cal.App.3d 1208, 1221, 252 Cal.Rptr. 739, defendant moved to suppress evidence seized as a result of the issuance of a search warrant based on an affidavit containing misstatements and omissions of material fact.   The defendant contended the officers did not act in good faith reliance on the warrant.   The trial court held there was no probable cause but did not exclude the evidence, finding good faith reliance.   The reviewing court reversed and remanded the case for a hearing on the good faith issue because due to numerous evidentiary hearings the record may have been distorted.  (Id., at p. 1221, 252 Cal.Rptr. 739.)   However, the reviewing court did indicate the record strongly suggested a well trained police officer would have known the affidavit failed to establish probable cause.  (Ibid.)  The court did not find the officers acted in reasonable good faith, reasoning an officer who prepares and submits a warrant application containing misstatements and omissions “cannot rely on the acceptance of that application as evidence that his conduct was objectively reasonable.   A magistrate who determined probable cause existed on the basis of such an affidavit did not make a fully informed decision.”  (Id., at p. 1215, 252 Cal.Rptr. 739.)

In Higgason v. Superior Court, supra, the search warrant affidavit was prepared by an experienced narcotics investigator who relied on information supplied by three anonymous telephone calls and a followup investigation.   On September 21, 1983, the first caller said Higgason was selling drugs from his residence and described Higgason's vehicles.   The next day a second caller gave “substantially” the same information.   Affiant drove to the residence and confirmed the callers' descriptions.   Subsequently a third caller again gave information Higgason was selling drugs.   Based on this information the affiant offered an expert opinion that drugs were present and being sold at Higgason's residence.   The magistrate issued a search warrant on the basis of this information.   The appellate court reversed the trial court's decision to deny Higgason's motion to quash.  (170 Cal.App.3d at 946, 216 Cal.Rptr. 817.)   The court reasoned the application of the good faith exception will generally require presentations of facts about the manner in which the officers pursued their investigation and this record left too much to speculation.  (Id., at pp. 944–945, 216 Cal.Rptr. 817.)

Additionally, in People v. Johnson (1990) 220 Cal.App.3d 742, 270 Cal.Rptr. 70, the following facts were set forth in the affidavit filed in support of the search warrant.   Following investigation of a bank robbery affiant described with detail the suspect from a description a bank teller had given him.   The affidavit also stated the teller identified the suspect's gun as a .38 caliber revolver but another teller identified the gun as a .22 caliber revolver.   The affidavit mentioned eyewitness descriptions which matched the first bank teller's description.   Subsequently, the bank's manager contacted the affiant and said she had received an anonymous telephone call from a female stating appellant had committed the robbery.   The anonymous caller gave a description of a car she said appellant drove and his address.   Through ongoing investigations of other crimes of which appellant was suspected, the officer verified the appellant's description, address, car license, and second address.   Nonetheless the Court of Appeal reversed the denial by the trial court of the motion to suppress, reasoning the officer did not act in good faith reliance because the failure to corroborate the information received from an anonymous informant does not meet the good faith standard.  (Id., at p. 750, 270 Cal.Rptr. 70.)   The court observed “any rookie officer knows uncorroborated, unknown tipsters cannot provide probable cause for an arrest or search warrant.”  (Id., at p. 751, 270 Cal.Rptr. 70.)   Thus the affidavit was so lacking in indicia of probable cause as to render belief in its existence unreasonable.  (Ibid.)

 Although to Deputy Johnson the informant was not anonymous or untested, the affidavit did not explain why the informant should be considered reliable.   Therefore, the informant must be treated as an untested informant necessitating corroboration.  (Maestas, supra, 204 Cal.App.3d 1208, 1220–1221, 252 Cal.Rptr. 739.)   Deputy Johnson did not indicate any corroboration or investigation in his affidavit.   When neither the “veracity nor the basis of knowledge of the informant is directly established” the failure to corroborate may be indicative of the absence of objective reasonableness by the officer to believe in the existence of probable cause.  (Id., at p. 1221, 252 Cal.Rptr. 739.)

The present case can be contrasted with Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453, 245 Cal.Rptr. 617.   In Rodriguez, the affidavit stated within two days prior to the preparation of the affidavit a confidential informant was present (as he had been on numerous occasions) when heroin was sold at the described residence.   The informant had also accompanied numerous others to the residence for the purpose of purchasing heroin.   The informant had watched these people enter without heroin and exit with heroin.   These people said they had purchased the heroin from an unknown individual in the residence.   The affidavit also stated the informant had provided narcotic intelligence on numerous past occasions which had been corroborated with various sources and found to be factual.   The court held the affidavit was not sufficient to establish probable cause but the evidence seized was not excluded because the officer relied in good faith under Leon.  (Id., at p. 1467, 245 Cal.Rptr. 617.)   The trial court found good faith because the affidavit was not “wholly lacking of indicia of probable cause” and the officer's reliance on the search warrant was objectively reasonable.  (Id., at p. 1466, 245 Cal.Rptr. 617.)

In the case before us, the affidavit “discussed” the confidential reliable informant.   However, Deputy Johnson failed to state the informant had previously made controlled narcotics buys for the officer.   Moreover, unlike the officer in Rodriguez, Deputy Johnson failed to state in the affidavit he had used the informant before and the informant had always provided factual information.   Nor does the record reflect the affidavit provided the informant's basis of knowledge.   Comparing the facts in Rodriguez to the facts in this case, it appears the affidavit here is a bare-boned affidavit based primarily on conclusory statements with no factual backing to enable a reasonable well trained officer to rely in good faith on the warrant.

A second case to contrast with the present case is People v. Terrones (1989) 212 Cal.App.3d 139, 260 Cal.Rptr. 355.   In Terrones, the officer obtained the search warrant based on the testimony of four confidential citizen informants.   The affidavit did not contain information regarding police corroboration.   The defendant moved to suppress the evidence on the ground the affidavit did not establish the reliability of the informants, thus requiring corroboration.   The superior court agreed with the defendant and further found the officer was not acting in good faith because he was “reckless in not including in the affidavit information which was known or easily accessible to him.”  (Id., at p. 145, 260 Cal.Rptr. 355.)   The majority of this court reversed, reasoning the affidavit contained sufficient facts to justify the inference that the citizen informants were reliable because their basis of knowledge was personal observation.  (Id., at p. 148, 260 Cal.Rptr. 355.)   We further ruled even if probable cause did not exist the evidence still would be admissible because the officer reasonably relied on four different sources which independently supported each other.  (Id., at p. 150, 260 Cal.Rptr. 355.)

In the case before us, Deputy Johnson also omitted the basis of knowledge and reasons for believing in the credibility of the informant.   However Terrones is inapplicable here because Deputy Johnson only had one informant.   The affidavit submitted to the magistrate failed to show there was an independent source, such as police corroboration or another informant, to suggest reliability.   Accordingly, Terrones does not apply here.

 The constitutional scheme created by the Fourth Amendment requires law enforcement officers to submit sufficient evidence of probable cause to a neutral magistrate before commencing a search not to a trial judge at a suppression hearing after the search.   For some reason, the officer in this case elected to withhold from the magistrate the evidence which could have established probable cause.   Even after Leon the courts have looked askance at “bare-bones” affidavits;  but what the officer in this case laid before the magistrate was a step below that—an affidavit missing some essential “bones.”   No adequately trained officer could reasonably believe an affidavit merely recounting that a single uncorroborated informant said narcotics would be found at a certain location provides sufficient “indicia of probable cause” to justify a search warrant.   Accordingly, the officer in this case could not possess a good faith belief in the adequacy of the affidavit he submitted to the magistrate and the motion to suppress should have been granted.

DISPOSITION

The judgment of the superior court and the order denying the motion to suppress are reversed.

FOOTNOTES

1.   The Court, in Leon found the exclusionary rule inapplicable because the officer relied in good faith on the search warrant.   The Court stated the affidavit, which described an extensive investigation, was much more than a “bare-bones” affidavit.  (468 U.S. at p. 926, 104 S.Ct. at p. 3422.)

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.