PEOPLE v. RIVERA (1986)

I.

The People appeal from the superior court's order dismissing the case against respondent Albert Angel Rivera following its granting of respondent's Penal Code section 1538.5 ¹ motion to suppress evidence.   Respondent was charged with possession of cocaine for sale (Health & Saf. Code, § 11351) with a special allegation that the amount possessed was 28.5 grams or more.  (§ 1203.073 subd. (b).)

We hold the superior court erred as a matter of law and reverse.

II.

On May 21, 1985, a Ventura County municipal court judge issued a search warrant for respondent's residence.   The affidavit in support of the warrant set forth that on September 17, 1984, the Ventura County Sheriff's Department received an anonymous phone call from an individual who stated that while at a party in Thousand Oaks the previous night he had observed respondent with $20,000 cash in his possession.   Later on during the party the caller saw respondent purchase a pound of cocaine from an unidentified male Hispanic for $21,000.   The caller further stated respondent sold approximately a quarter pound of cocaine at the party and that respondent was not employed.

The sheriff's department received a second anonymous call on December 27, 1984 from a caller who stated that he knew respondent and had seen him buy two kilograms of cocaine at a party the night before.   The caller stated that respondent lived at Apartment L–4 on Warwick Avenue in Thousand Oaks, in the 900–block, and that respondent drove a 1976 copper-colored Datsun 280Z with wire wheels.   The next day, the sheriff's department found through independent investigation that respondent lived at 951 Warwick Avenue, and observed a Datsun 280Z matching the description given by the caller parked underneath the building.

On May 21, 1985, a third anonymous caller to the sheriff's department stated that he had been at respondent's house, at 4188 Minnecota Drive, Thousand Oaks about a half hour before the call.   The caller stated that he saw almost a pound of cocaine in the house and over $10,000 in cash and that respondent and another individual were talking about just having picked up the cocaine.   The caller also indicated that he had used cocaine in the past and was familiar with its appearance.   Later that day a sheriff's detective went to the Minnecota address and found the 280Z Datsun, with the same license plate that had been observed at the Warwick Avenue building, parked in front of the residence.

The sheriff's department presented the affidavit to the magistrate.   At the magistrate's request the affidavit was amended to reflect that there were three separate callers.   The magistrate then signed the affidavit and search warrant.

Immediately following the signing sheriff's deputies drove to respondent's Minnecota residence, served the search warrant and recovered 19 baggies containing approximately 67 grams of cocaine, razor blades, prefolded bindles, a sifter, a scale, an owe-sheet, cutting agent and various documents containing respondent's name.   Respondent pled not guilty to the charge of possession of cocaine for sale and denied the special allegation.

At the preliminary hearing on June 10, 1985, respondent moved to suppress all evidence obtained by use of the search warrant under section 1538.5 and to traverse the warrant.   These motions were denied.   In superior court on August 1, 1985, respondent made a section 1538.5 motion, a section 995 motion and a motion to traverse, all of which were denied.

On September 4, 1985, the superior court agreed to rehear the section 1538.5 motion, over the objection of the district attorney and then granted it relying specifically on the recent decision of Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 216 Cal.Rptr. 817.   On its own motion the court then dismissed the case against respondent for insufficient evidence.

 Pursuant to section 1238(a)(7), the People appeal the order dismissing the case.²

III.

Appellate review of a superior court ruling on a section 1538.5 motion to suppress is a two-step process.   First, the trial court's finding of facts, express or implied, relating to the challenged search or seizure must be upheld if supported by substantial evidence.  (People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961.)   Second, the appellate court exercises its independent judgment in measuring the facts, as found by the trier, against the constitutional standard of reasonableness (Id. at p. 597, 174 Cal.Rptr. 867, 629 P.2d 961.)

In this case the facts, i.e. the statements contained in the affidavit, are not in dispute.   The question presented here is whether the search and seizure based on this affidavit was constitutionally reasonable.

IV.

In reviewing grants or denials of motions to suppress evidence obtained pursuant to a search warrant, we first inquire whether probable cause existed for the issuance of the warrant.   If so, our inquiry is at an end.  (United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, 687;  United States v. Hendricks (9th Cir.1984) 743 F.2d 653, 654, cert. den. (1985), 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382.)   If not, we look to whether the searching officers nonetheless acted reasonably and in good faith.

 In making a probable cause determination, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given the “totality of circumstances” set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.  (Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527.)   A magistrate's determination of probable cause should be paid great deference by reviewing courts.  (Id at p. 247, 103 S.Ct. at 2336.)

Here, the affidavit was based on three anonymous tips, two of which were corroborated as to certain details of respondent's noncriminal activities by independent police investigation.   The United States Supreme Court has applied its “totality of circumstances” approach to hold in at least one case that an anonymous tip corroborated by police observation of noncriminal activity could constitute probable cause.  (See Illinois v. Gates, supra, 462 U.S. at p. 243, 103 S.Ct. at p. 2334.)   The Gates court stressed the importance of corroboration of an anonymous informant's tip by independent police work.   (Id at p. 241, 103 S.Ct. at p. 2333.)   The justices noted that corroboration of noncriminal activity was significant to the extent that suspicion attached to such conduct.  (Id at p. 243, fn. 13, 103 S.Ct. at p. 2334, fn. 13.)   Further, the tip in that case was corroborated not just as to “easily obtained facts and conditions existing at the time of the tip,” but as to “future actions ․ ordinarily not easily predicted,” specifically a prediction that the suspect would take a trip to Florida within the next few days.  (Id. at p. 245, 103 S.Ct. at p. 2335.)   The confirmation of such a prediction was, according to the court, an indication of the overall reliability of the tip.  (Id.)

There are few California cases applying the totality of circumstances test to anonymous informant/police corroboration situations.   In a decision held controlling by the trial court here, a California Court of Appeal found that three anonymous tips corroborated by police observation of innocent activity did not add up to probable cause.  (Higgason v. Superior Court, supra, 170 Cal.App.3d at p. 929, 216 Cal.Rptr. 817.)   The Higgason court argued that anonymous informants were inherently unreliable, and that the police investigation had not corroborated any facts in the tips to which any degree of suspicion attached nor any predictions of future activity.  (Id. at pp. 938–940, 216 Cal.Rptr. 817.)   Rather, the police corroboration merely confirmed that the suspect had the same residence and car mentioned in two of the three tips.  (Higgason v. Superior Court, supra, 170 Cal.App.3d at pp. 934–935, 216 Cal.Rptr. 817.)

 Here, the three anonymous tips were only corroborated as to respondent's residence and car, mentioned in the second tip, and as to a later, different residence, mentioned in the third tip.   These particulars are neither the type of facts to which suspicion necessarily attached nor the predictions of future activity which the Gates court found significantly present and the Higgason court found significantly lacking.

Arguably, however, the specificity of detail in the three tips might substitute for detailed corroboration to provide the “basis of knowledge” factor relevant to a probable cause determination under Gates.  (Illinois v. Gates, supra, 462 U.S. at p. 233, 103 S.Ct. at p. 2329.)   Such substitution was possible even under the pre-Gates test for probable cause, under which probable cause was more difficult to establish.³  Under the earlier test, the reliability of an informer could be established without independent corroboration if the tipster alleged personal knowledge of a suspect's criminal activities or described these activities in sufficient detail.  (Spinelli v. United States (1969) 393 U.S. 410, 415–416, 89 S.Ct. 584, 588–589, 21 L.Ed.2d 637.)   Here, all three of the tipsters claimed personal knowledge of respondent's activities, and all described drug transactions in detail.   Arguably, if probable cause might have been present under the stricter Spinelli standards, it is more likely to exist under the looser Gates “totality of circumstances” test.

Nevertheless, we find the issuance of the warrant here to be unsupported by probable cause.   Although detailed, the anonymous informers' tips were simply not corroborated as to any suspicious noncriminal activity or predictions of future action.   Rather, respondent's living at two specific residences and owning a certain car were not particularly suspicious and were merely “easily obtained facts and conditions existing at the time of the tip” not indicative of the tips' overall reliability.  (Illinois v. Gates, supra, 462 U.S. at p. 245, 103 S.Ct. at p. 2335.)   We acknowledge that the probable cause question here is close, and that under the “totality of circumstances” approach, another court might find the range of detail in the tips a sufficient indicator of reliability despite the meager corroboration.

V.

 When an officer conducts a search under the authority of a warrant issued by a neutral and detached magistrate, this normally establishes that the law enforcement officer has acted in good faith in conducting the search.  (United States v. Leon, supra, 468 U.S. at p. 922, 104 S.Ct. at p. 3421, 82 L.Ed.2d at p. 698;  People v. MacAvoy (1984) 162 Cal.App.3d 746, 763, 209 Cal.Rptr. 34.)   There is a presumption that officers are conducting a search with good faith belief in its validity when the search is conducted pursuant to a warrant.  (People v. MacAvoy, supra, 162 Cal.App.3d at p. 763, 209 Cal.Rptr. 34.)   There is no evidence indicating that any of the sheriff's officers here acted in bad faith in preparing or presenting the affidavit.   Nevertheless, the officer's reliance on the magistrate's probable cause determination must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.  (United States v. Leon, supra, 468 U.S. at p. 922, 104 S.Ct. at p. 3421, 82 L.Ed.2d at p. 698.)   The exclusionary rule only serves its policy goal of deterring police misconduct if applied to objectively unreasonable law enforcement activity.  (See Id. 468 U.S. at p. 918, 104 S.Ct. at p. 3419, 82 L.Ed.2d at p. 696.)

 An inquiry into objective reasonableness is confined to the question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization.  (Id. 468 U.S. at p. 922, fn. 23, 104 S.Ct. at p. 3421, fn. 23, 82 L.Ed.2d at p. 698, fn. 23.)   A good faith belief may not be objectively reasonable and suppression therefore appropriate if (1) the magistrate was misled by information in the affidavit that the affiant knew or should have known was false, (2) the magistrate wholly abandoned his judicial role, (3) the warrant was facially deficient in failing to particularize the place to be searched or things to be seized, or (4) 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. 3421, 82 L.Ed.2d at p. 699.)   There is no evidence nor are there arguments that facts necessary for categories 1–3 to apply are present here.

It is the fourth category that the affidavit was so lacking in probable cause indicia as to render reliance upon it entirely unreasonable, which was applied by the superior court here in granting respondent's section 1538.5 motion.   The question whether an affidavit was “so lacking” that the police could not reasonably rely upon it is different than the question whether probable cause exists.   One commentator has suggested that the degree of police deference to the magistrate in good faith cases may exceed significantly the “great deference” owed the magistrate by reviewing courts under current probable cause standards.  (See LaFave, Search and Seizure, § 1.2 (West, 1978, Supp.1986;  see Illinois v. Gates, supra, 462 U.S. at p. 236, 103 S.Ct. at p. 2331.)

The United States Supreme Court has not, under its “totality of circumstances” approach in probable cause cases, categorically held when anonymous tips supported by observation of purely innocent activity can constitute probable cause.  (See Illinois v. Gates, supra, 462 U.S. at p. 243, 103 S.Ct. at p. 2334.)   One California Court of Appeal recently held:  “While observation of innocent activities can provide sufficient corroboration of an unknown or untested informant's tip to establish probable cause (Illinois v. Gates, supra, 462 U.S. at p. [242] [103 S.Ct. at p. 2334] [76 L.Ed.2d at p. 551];  United States v. Little (8th Cir.1984) 735 F.2d 1049, 1055;  ․), the ‘veracity’ and ‘basis of knowledge’ of the informant must be assessed together with all the circumstances to determine whether ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’   [Citations.] ”  (People v. Lissauer (1985) 169 Cal.App.3d 413, 422, 215 Cal.Rptr. 335.

In Higgason v. Superior Court, supra, 170 Cal.App.3d at page 929, 216 Cal.Rptr. 817, a Court of Appeal decision in which the three justices wrote separate concurring decisions, the court held that probable cause was lacking when anonymous information was only corroborated as to nonsuspicious activity.   Two of the justices apparently concluded that the good faith exception did not apply because even inexperienced police officers would have concluded there was no satisfactory corroboration of the anonymous information.   However, both the Lissauer and Higgason cases involved determinations whether probable cause itself was present rather than an analysis of the good faith issue.⁴

 When considering a good faith issue, a court should first ask whether the application for the warrant was supported by no more than a “bare-bones” affidavit.  (See United States v. Leon, supra, 468 U.S. at p. 926, 104 S.Ct. at p. 3423, 82 L.Ed.2d at p. 701.)   This criterion addresses the concern of the Leon court that an officer should not be able to obtain a warrant based on a scanty affidavit and then rely on colleagues ignorant of the circumstances under which the warrant was obtained to conduct the search.   (Id., 468 U.S. at p. 922, fn. 24, 104 S.Ct. at p. 3421 fn. 24, 82 L.Ed.2d at p. 698, fn. 24.)

Second, a court should ask whether the affidavit provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause.  (See Id. 468 U.S. at p. 926, 104 S.Ct. at p. 3423, 82 L.Ed.2d at p. 701.)   The exclusionary rule's policy goal of deterring unlawful police conduct would hardly be served if under at least one valid interpretation of the affidavit, a search would be lawful.  (See Id. 468 U.S. at p. 918, 104 S.Ct. at p. 3419, 82 L.Ed.2d at p. 696.)   Such disagreement would be possible, for example, in the absence of a controlling opinion by a higher court, or complete agreement among courts of appeal that under similar facts probable cause did not exist.

 Finally, in applying the above criteria, a court should consider that the degree of police deference to the magistrate in good faith cases may exceed significantly the “great deference” owed the magistrate by reviewing courts under current probable cause standards.  (See Illinois v. Gates, supra, 462 U.S. at p. 236, 103 S.Ct. at p. 2331.)   This significant deference to the magistrate is a necessary acknowledgment that a warrant is a judicial mandate to an officer to conduct a search, and that the officer has a sworn duty to carry out is provisions.  (United States v. Leon, supra, 468 U.S. at p. 920, fn. 21, 104 S.Ct. at p. 3420, fn. 21, 82 L.Ed.2d at p. 697, fn. 21;  Pen.Code, § 1529.)   Further, greater deference in good faith than in probable cause situations responds to the Leon court's distinction between these two separate determinations.  (Id., 468 U.S. at p. 906, 104 S.Ct. at p. 3412, 82 L.Ed.2d at p. 688.) ⁵

 Applying these criteria we find that the officers' reliance on the warrant was objectively reasonable here.   Though unsupported by probable cause, the affidavit was not “so lacking” in probable cause indicia as to render official belief in its existence entirely unreasonable.

First, the affidavit was hardly “bare-bones,” but contained a range of specific details from three different informants as to respondent's alleged criminal activities.   The three detailed tips and the corroboration of two of them clearly made the affidavit more than “bare-bones.”   Although the officers who obtained the warrant here also served it, there was sufficient information in the affidavit for us to determine that he acted reasonably in obtaining it.

Second, the affidavit provided sufficient evidence upon which thoughtful and competent judges could and in fact did disagree as to the existence of probable cause.   Though we have found the warrant here unsupported by probable cause, this is a conclusion about which other judges could disagree.   There is no controlling authority that under similar facts, probable cause does not exist.   The officers could reasonably have believed under the Gates “totality of circumstances” approach that the tips contained enough detail in themselves to compensate for the lack of significant corroborated facts.  (See also Spinelli v. United States, supra, 393 U.S. at pp. 415–416, 89 S.Ct. at pp. 588–589.)   The trial court was mistaken in applying Higgason not merely to support its finding that probable cause was lacking, but to support its further conclusion that it was “so lacking” that reliance on the warrant was entirely unreasonable.

Though we have not deferred to the magistrate on the probable cause question, it does not follow that the police should have also failed to defer.   There is no indication that the magistrate here acted with gross incompetence or in neglect of duty.  (Malley v. Briggs, supra, 475 U.S. at p. ––––, fn. 9, 106 S.Ct. at p. 1098, fn. 9, 89 L.Ed.2d at p. 281, fn. 9.)

VI.

Although the superior court was correct in finding the warrant unsupported by probable cause, it erred as a matter of law in not applying the good faith rule to admit the evidence.   The court should not have granted respondent's section 1538.5 motion and dismissed the case.   We reverse and remand for further proceedings consistent with this opinion.

I respectfully dissent.

I agree with the majority that there is no probable cause here.   One would need an electron microscope to find any.   Therefore, I disagree that this is a close case.   Good faith and probable cause are inextricably related.   As probable cause recedes into insignificance, so does good faith become so tenuous that it disintegrates in the wind.

The majority suggest that the “totality of circumstances” test in Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, which replaced the Spinelli-Aquilar two-pronged test, requires us to start from scratch in enunciating rules of probable cause to issue search warrants.  Gates put elasticity into probable cause and gave it broader contours, but it did not create a mutation that bears no resemblance to its ancestors.

The affidavit here suffers from the same infirmities as the affidavit in Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 940, 216 Cal.Rptr. 817.   The affidavit here, like the affidavit in Higgason, “․ is fatally flawed when judged by the standards enunciated in Gates.   There are two major deficiencies—all the incriminating evidence emanated from anonymous sources and the police investigation revealed only ‘easily obtained facts and conditions existing at the time of the tip.’  [¶]  As Gates demonstrates, anonymous information may ultimately prove reliable, but three anonymous telephone calls, without more, cannot serve to corroborate one another.   As the California Supreme Court has noted, quoting Ovalle v. Superior Court (1962) 202 Cal.App.2d 760, 763, [21 Cal.Rptr. 385], ‘ “[t]he quantification of the information does not necessarily improve its quality;  the information does not rise above its doubtful source because there is more of it.” ’  (People v. Fein (1971) 4 Cal.3d 747, 753 [94 Cal.Rptr. 607, 484 P.2d 583].)”  (Higgason v. Superior Court, supra, at p. 938, 216 Cal.Rptr. 817.)

Although the Fein court acknowledged at page 753 that “․ there may be circumstances where corroborative information from separate, unrelated sources will thereby establish its credibility, ․” that does not mean that police officers need only corroborate easily obtained facts.   In Gates, the officers obtained not only easily obtained facts, but detailed future conduct that related to criminal activity.

This case is also different from Massachusetts v. Upton (1984) 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721.   In Upton, the United States Supreme Court upheld a warrant based on information received from an “unidentified” informant.   The informant claimed to have seen stolen goods in a motor home.   The informant's description of the goods indicated they were the same items taken in recent burglaries.   The informant also knew of a recent raid conducted by police on a hotel room where credit cards were found belonging to two persons whose homes had been recently burglarized.   When the informant called police to give them the information, the police officer stated he knew who she was and in fact had met her on one occasion.   She admitted she was the person the officer named and that she was the ex-girlfriend of the defendant and wanted to “burn him.”   The officers in Upton had sufficient information about the informant, and her description of the stolen goods “tallied with the items taken in recent burglaries.”  (Id., at p. 733, 104 S.Ct. at p. 730.)   All these factors pointed to “ ‘a fair probability that contraband or evidence of a crime’ would be found in Upton's motor home.  [Citation.]”  (Ibid.)

A wealth of detail concerning pedestrian facts such as where a person lives, what car he drives, what side of the head he parts his hair on, or what cologne he wears tells us nothing.   As Justice Sonenshine pointed out in Higgason, citing People v. Kershaw (1983) 147 Cal.App.3d 750, 756–757, 195 Cal.Rptr. 311, affidavits that endorse the procurement of search warrants based entirely upon anonymous sources should not command our respect.   Independent police work here did not corroborate any suspicious activity or confirm future actions not easily predicted.   As in Higgason, here “[t]he totality of the circumstances presented by this affidavit do not show ‘a fair probability that contraband or evidence of a crime will be found in a particular place.’   (Illinois v. Gates, supra, 462 U.S. 213, 238 [103 S.Ct. 2317, 2332, 76 L.Ed.2d 527].)  ‘[T]he magistrate had [no] “substantial basis for ․ conclud [ing]” that probable cause existed.  [Citation.]’  [Citation.]”  (Higgason v. Superior Court, supra, 170 Cal.App.3d at p. 941, 216 Cal.Rptr. 817, fn. omitted.)

The nonexistence of probable cause is the reason I part with the majority concerning whether the good faith “exception” of United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 saves this warrant.   The officers may have been acting in good faith here, but their conduct was not “objectively reasonable” under the Leon guidelines.   The Leon case was not meant to reward ignorance or inexperience, and in my judgment “no reasonably well-trained officer should rely on the warrant.   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.]”  (United States v. Leon, supra, 468 U.S. 897, 923, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677, 699, emphasis added.)  Leon requires that the application of the good faith exception be measured against the standard of objective reasonableness.   This standard requires that officers “have a reasonable knowledge of what the law prohibits.”  (Id., at 468 U.S. 897, 918, fn. 20, 104 S.Ct. 3405, 3419, fn. 20, 82 L.Ed.2d 677, 696, fn. 20;  see Higgason v. Superior Court, supra, 170 Cal.App.3d at p. 944, 216 Cal.Rptr. 817.)

As Justice Crosby points out in his concurring opinion in Higgason v. Superior Court, supra, 170 Cal.App.3d 929, 952, 216 Cal.Rptr. 817, “[a]ny rookie officer knows uncorroborated, unknown tipsters cannot provide probable cause for an arrest or search warrant.”   This observation is no less true under Spinelli and Aquilar than it is under Gates.

I also agree with Justice Wallin, who in his concurring opinion in Higgason v. Superior Court, supra, 170 Cal.App.3d at pages 952–953, 216 Cal.Rptr. 817, stated “[n]ot every Fourth Amendment sin can be forgiven by wrapping it in a good faith package.   Every citizen is entitled to be secure from the possibility that angry neighbors, misguided practical jokers, ex-spouses, heartbroken ex-lovers or other personal enemies will provide anonymous information leading to police intrusion into their homes and personal effects.   Were we to permit introduction of this evidence, a whole new field would be opened for dealing with one's personal ‘enemies list.’   As even an inexperienced police officer knows, courts have always required corroboration of anonymous information because of its inherent unreliability.   Nothing in the Leon decision can be read to suggest a different result or excuse a lack of corroboration merely because an overworked or inattentive magistrate sanctions the entry.”

The affidavit here lacked sufficiency to provide probable cause, and the information from the anonymous sources lacked reliability.   Despite the detail with which criminal activity is described, there is no corroboration by the police of any facts that relate to that criminal activity or to facts to which any “degree of suspicion” may be attached.  (See Illinois v. Gates, supra, 462 U.S. 213, 243, fn. 13, 103 S.Ct. 2317, 2334, fn. 13, 76 L.Ed.2d 527.)   As Justice Hanson stated in her dissent in People v. Love (1985) 168 Cal.App.3d 104, 117, 214 Cal.Rptr. 483, “[n]o reasonably well-trained officer could fail to recognize the insufficiency of such an affidavit․”

FOOTNOTES

1.   All further references are to the California Penal Code unless otherwise stated.

2.   We reject appellant's contention that the Superior Court judge's decision to rehear the section 1538.5 motion in the light of a recently decided case was improper.   Under Code of Civil Procedure section 128(a)(8), every court shall have power to amend and control its process and orders so as to make them conformable to law and justice.   This section has been construed to allow reconsideration of an order suppressing evidence.  (People v. Beasley (1967) 250 Cal.App.2d 71, 77, 58 Cal.Rptr. 485.)

3.   Under the pre-Gates two-pronged test an anonymous source had to satisfy two independent requirements before it could be relied upon, these being “veracity” and “basis of knowledge.”  (See Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723;  Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.)   The Gates court explicitly rejected the use of these categories as independent requirements stating that the two elements were merely “relevant considerations” in a totality of circumstances analysis.  (Illinois v. Gates, supra, 462 U.S. at p. 233, 103 S.Ct. at p. 2329;  see also Massachusetts v. Upton (1984) 466 U.S. 727, 732, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721.)

4.   The lead opinion in Higgason did not reach the good faith question, holding that it could not be raised for the first time on appeal.   The two concurring justices, although treating the issue, saw no distinction between a determination as to good faith and one as to probable cause.   Neither of the concurring opinions sets out specific standards for assessing when police reliance on a subsequently invalidated warrant is reasonable (Higgason v. Superior Court, supra, 170 Cal.App.3d at pp. 941–953, 216 Cal.Rptr. 817).

5.   Also see Malley v. Briggs (1986) 475 U.S. ––––, ––––, fn. 9, 106 S.Ct. 1092, 1098, fn. 9, 89 L.Ed.2d 271, 281, fn. 9.   That such deference by the police to the magistrate is required by the United States Supreme Court can be seen from a recent qualified immunity case applying Leon standards, where the justices indicated that objectively unreasonable police reliance on a warrant would only be likely to occur when the magistrate acted with “gross incompetence or in neglect of duty.”  (Id., 475 U.S. at p. ––––, fn. 9, 106 S.Ct. at p. 1103, fn. 9, 89 L.Ed.2d at p. 281, fn. 9.)

ABBE, Associate Justice.

STONE, P.J., concurs.