PEOPLE v. KURLAND (1979)

OPINION

This is the People's appeal from an order granting a motion to suppress (Pen.Code, s 1538.5) and dismissing the action.

Respondent, Stuart Lee Kurland, was charged with violating Health and Safety Code sections 11350 (possession of cocaine) and 11359 (possession of marijuana for sale). The charges were predicated on a search of Kurland's Discount Water Beds store conducted on April 6, 1976, pursuant to a warrant issued on that date. As a result of the search the officers discovered cocaine, over one and one-half pounds of marijuana and a .38 caliber revolver. The motion to suppress was directed toward these items. The sole issue on appeal concerns the validity of the search warrant, particularly the affidavit of Officer Gerald Matt which relied upon information provided by a confidential reliable informant referred to as “Z.”

The affidavit on its face meets the two-pronged test of Aguilar (Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723). With reference to the reliability of “Z,” the affidavit related the details of two former cases wherein information was supplied by “Z” that had resulted in the arrests and convictions of persons for narcotics offenses. It further indicated that “Z” had never supplied any false information to the Stanislaus County Drug Enforcement Unit. It also set forth that “Z” is a former user of cocaine and is familiar with the way it is packaged.

Respondent's attack at the suppression hearing was directed toward revealing through an examination of Officer Matt the facts omitted from Matt's affidavit bearing upon the reliability of the confidential informant. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234.) After a lengthy hearing extending over parts of several days, the court suppressed the evidence seized and dismissed the information, stating:

“I make that on the grounds that material information was not disclosed to the Court in the Affidavit which might have caused the Court to conclude differently in respect to the credibility of the confidential informant. Those items are recited in the record, I will not repeat them at this particular time.”

The clerk's transcript likewise shows that the case was dismissed because the motion to suppress was granted and the parties have conceded that this was the basis of the dismissal.

The information which was omitted from the affidavit as developed through examination of Officer Matt at the hearing consisted of the following: “Z,” the confidential informant, had a criminal record; “Z” had been convicted of a felony; Officer Matt had filed a criminal complaint against “Z” charging three counts; “Z” was on probation in 1974; Matt had a dozen contacts with “Z” in 1976 prior to the search and respondent's arrest; and Matt had discussed “Z's” cooperation with him as an informant.

During the course of the hearing the judge sustained objections to several questions on the ground the answers might tend to disclose the identity of the informant. One such question was directed toward the nature of the specific charge against the informant in the 1974 complaint.

Near the end of the hearing Matt was asked by respondent's counsel whether he was one of the investigating officers in the 1974 case. The prosecution asserted the privilege that any answer would tend to reveal the identity of the confidential informant. After an In camera hearing the court was of the opinion that the answer would not tend to reveal the identity of the informant. However, the court did not order the question to be answered; the respondent did not renew his motion to dismiss on the ground the question should be answered. It is apparent from the record that the judge did not dismiss the cause on this ground. The order in context clearly indicates that the information disclosed during the in-camera hearing together with the other information above which was omitted from the affidavit was determined to be material on the issue of reliability of the informant and should have been revealed in the affidavit to the judge at the time of issuance of the warrant. Because that information was not included in the affidavit, the court ordered the evidence seized pursuant to the warrant to be suppressed. (Theodor v. Superior Court, supra, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234; Morris v. Superior Court (1976) 57 Cal.App.3d 521, 129 Cal.Rptr. 238; People v. Barger (1974) 40 Cal.App.3d 662, 668-669, 115 Cal.Rptr. 298.)

The only attack leveled by the appellant against the court's suppression and dismissal order is that the evidence omitted was not material to the issue of reliability and, unlike Morris, the omission of the information, though intentional, did not involve deliberate bad faith or an intent to deceive or mislead the magistrate. Rather, the appellant urges that the omission was for a legitimate purpose.

The test of materiality is whether facts “. . . withheld from the affidavit were material and relevant, to the extent that it can be said, fairly, that the magistrate's inference-drawing process was interfered with, substantially.” (Morris v. Superior Court, supra, 57 Cal.App.3d at p. 524, 129 Cal.Rptr. at p. 240; see People v. Neusom (1977) 76 Cal.App.3d 534, 540, 143 Cal.Rptr. 27.) The trial judge, who was also the judge who issued the warrant, expressly found (citing Morris ), that the omission of the recited information from the affidavit did result in unduly and substantially interfering with the judge's inference-drawing process. The trial court's determination that material information was omitted constitutes a resolution of a factual question which is binding upon the appellate court.

“A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. (Citations.) The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings whether express or implied must be upheld if supported by substantial evidence. (Citations.)” (People v. Superior Court (Keithley ) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 619, 530 P.2d 585, 587.)

We cannot say that as a matter of law the inference-drawing process was not interfered with by the omission of the facts which have been heretofore set forth.

We hold that the automatic suppression rule enunciated in Morris is limited to cases where the omission is not only intentional but deliberately accomplished with the intent to deceive or mislead the magistrate. In the case at bench, while the information was intentionally omitted, the officer-affiant could have reasonably believed in good faith that he was justified in doing so to maintain the confidentiality of the informant's identity.¹ In People v. Barger, supra, 40 Cal.App.3d at p. 669, 115 Cal.Rptr. 298 the court made the determination as to the appropriate standard to be applied in a case involving the omission of material facts from an affidavit by examining whether the affiant acted reasonably in making the omission. The court concluded that if the omission of the information is negligent the omitted information should be placed in the affidavit and probable cause tested on the total facts which should have been available to the magistrate. The rule of reasonableness also is evident in cases involving erroneous inclusion of information. (See People v. Cook (1978) 22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130 (statements included in an affidavit not classified as deliberate misstatements known to be false at the time they are made); Theodor v. Superior Court, supra, 8 Cal.3d at pp. 98-102, 104 Cal.Rptr. 226, 501 P.2d 234.) Both Cook and Theodor recognize that the negligent inclusion of erroneous information does not result in automatic invalidation of the warrant but that the erroneous information should be excised and probable cause tested from the remaining information.

In the case at bench the omission of the facts was not negligent in the sense that the omission resulted from lack of proper investigation or carelessness in reciting the facts. However, they may have been intentionally omitted in the good faith and reasonable belief that the omission was essential to protect the identity of the confidential informant a legitimate and statutorily recognized object of law enforcement procedures. Whether the inclusion of certain facts in an affidavit would or would not tend to lead to the discovery of the identity of an informant is properly a judicial question which, as in the case at bench, can only be determined by a judicial officer after a full hearing. Assuming the officer is acting in good faith and under the reasonable belief that the information is within the confidential informant privilege, to cast upon an officer the burden of making such a determination at the risk of invalidating the warrant should the officer guess wrong asks too much from law enforcement and exacts too great a price from society. On the other hand, we recognize that the information omitted may be critical in determining the reliability of the informant and consequent validity of the warrant. We think both interests will be adequately served and the balance properly struck if the procedure outlined in the case of negligently omitted information is followed. (Cf. People v. Hitch (1974) 12 Cal.3d 641, 650-652, 117 Cal.Rptr. 9, 527 P.2d 361.) To iterate, that procedure would require the judge to add the omitted facts to the affidavit and test probable cause in the light of the additional information.

In the case at bench the court in its dismissal order cited Morris and then stated, “I make that on the grounds that material information was not disclosed to the Court in the Affidavit which might have caused the Court to conclude differently in respect to the credibility of the confidential informant.” (Emphasis added.) At the time the hearing below was held, Morris v. Superior Court (1976) 57 Cal.App.3d 521, 129 Cal.Rptr. 238 required that the existence of these facts, standing alone, result in the invalidation of the search warrant. From the trial court's statement and the record as a whole it is apparent that the judge applied the automatic suppression rule of Morris without feeling it necessary to consider whether the affiant acted in bad faith in painting a distorted picture with which to deceive the magistrate. In a 1538.5 proceeding, the failure of the fact finder to pass upon an issue prevents this court from inferring that implied findings were made as to that issue. (People v. Superior Court (1970) 9 Cal.App.3d 203, 210-211, 88 Cal.Rptr. 21.) We cannot tell what the court would have concluded had it determined that the affiant's omission, although unjustified, was reasonable and the court proceeded to simply add the omitted facts to the affidavit and test probable cause in the light of the additional information in accordance with the rule we have announced Because the court did not follow the proper rule, we have no alternative but to reverse the order suppressing the evidence and remand the action to the trial court with directions to follow the procedure set forth herein.

We think it appropriate to make one further observation. While much of the lengthy hearing in the trial court was devoted to the problem of whether Officer Matt should have been required to answer questions which might tend to disclose the identity of the informant, we note that neither party on this appeal has raised any issue that the trial judge committed error in requiring or not requiring Officer Matt to answer any of the questions asked of him. We therefore are not called upon to discuss the difficult position of a trial judge who is caught in the vortex of tension between preserving the confidentiality of an informant on the issue of probable cause (see fn. 1, Ante ) and the recognized right in a Theodor hearing to cross-examine an affiant with regard to the reliability of the informant. (See Theodor v. Superior Court, supra, 8 Cal.3d at pp. 101-103, 104 Cal.Rptr. 226, 501 P.2d 234; People v. Cook, supra, 22 Cal.3d at p. 74, 148 Cal.Rptr. 605, 583 P.2d 130; Morris v. Superior Court, supra, 57 Cal.App.3d at pp. 525-526, 129 Cal.Rptr. 238.) Presumably the parties are satisfied that the court properly exercised its discretion in striking this balance under the provisions of Evidence Code section 1042, subdivision (c). (See Parsley v. Superior Court (1973) 9 Cal.3d 934, 941-942, 109 Cal.Rptr. 563, 513 P.2d 611.)

The order suppressing the evidence and dismissing the action is reversed. The action is remanded to the trial court with directions to add the omitted facts to the affidavit, test probable cause in the light of the additional information and enter an appropriate order thereon.

FOOTNOTES

1.  Evidence Code section 1042, subdivision (b), states:“(b) Notwithstanding subdivision (a), where a search is made pursuant to a warrant valid on its face, the public entity bringing a criminal proceeding is not required to reveal to the defendant official information or the identity of an informer in order to establish the legality of the search or the admissibility of any evidence obtained as a result of it.”See also People v. Flemmings (1973) 34 Cal.App.3d 63, 68, 109 Cal.Rptr. 661, 663-664 (“a defendant is not entitled to a disclosure of the identity of an informant whose testimony would be material only on the issue of probable cause to arrest”).

GEO. A. BROWN, Presiding Justice.

FRANSON and HOPPER, JJ., concur.