PEOPLE v. LEDESMA (1986)

Defendant, Jose Luis Ledesma, was charged in an information filed January 9, 1984 with possession for sale of cocaine (Health & Saf.Code, § 11351), possession of cocaine (Health & Saf.Code, § 11350), and possession of Lysergic Acid Diethylamide (LSD) (Health & Saf. Code, § 11377).   Following the denial of his motion to suppress evidence (Pen.Code, § 1538.5) ¹ , defendant pled guilty to count II (possession of cocaine).   The remaining two counts were dismissed as part of the conditional plea.   The court suspended the imposition of sentence and granted defendant probation for three years on various conditions, including confinement in county jail for 180 days.

Defendant appeals from the judgment claiming erroneous denial of his section 1538.5 motion based on invalidity of a search warrant.   Specifically, he contends he was improperly denied the opportunity to cross-examine the police officer affiant for the search warrant in order to show the omission of facts from the affidavit relating to the officer's reliance on a confidential informant.   We find the contention to be without merit and affirm.

Facts

On November 22, 1983 Detective Fred Schloss of the Salinas Police Department executed an affidavit for a warrant to search a specific mobile home in Salinas for cocaine and cocaine paraphernalia.

The affidavit recited the following facts:  on November 3, 1983 the affiant (Detective Schloss) received information from a “reliable informant” identified as “C–1”.   C–1 admitted buying one-quarter gram of cocaine from defendant for his personal use on November 2, 1983.   On November 22, C–1 again contacted the affiant, stating he had been in defendant's mobile home within the past 72 hours and had watched defendant sell two one-quarter bindles of cocaine for $50.   C–1 also observed an estimated 40 bindles of cocaine in a plastic bag.   “C–1” admitted to the affiant that he is “marginally involved” in cocaine usage.

The affidavit further stated:  the affiant has known C–1 for five years during which the informant has provided him with information about criminal activity on at least five occasions, resulting in one arrest.   Though all other information was later proven true, the affiant was “unable to take action in a timely fashion.”   In addition, Detective Huff of the Salinas Police Department has known C–1 for approximately four years and has received information from him on approximately 20 occasions.   This information led to two search warrants and three arrests and convictions.   All other information was verified but Detective Huff “was unable to utilize the information in a timely fashion.”

The magistrate issued a search warrant based on the described affidavit.   On November 29, 1983, Detective Schloss and three other Salinas Police Officers served the search warrant at defendant's residence and in the ensuing search the officers found 21 bindles of cocaine, totalling 3.8 grams in weight, and five hits of LSD.   Defendant was subsequently arrested.

At the preliminary examination, following introduction of the search warrant and affidavit into evidence, defense counsel attempted to cross-examine the affiant, Detective Schloss, about the confidential informant and the nature of the information he had provided.   When asked for an offer of proof, defense counsel responded:  “I believe, and I can not say I know for sure, but I wish to explore the fact that the so-called informant—well, first of all, the only information that Detective Schloss has is on five occasions.   He's given information which on one occasion lead [sic] to an arrest.   I don't believe that is sufficient, but then, he has Detective Huff's information which is a little bit different.  [¶ ] I assume to add to it.   If that informant, in fact, has pending cases and is being paid by Detective Huff during this time;  in fact, was an addict or arrested recently and had every intention of giving Huff information, that, I believe, should have been correlated [sic] to the Magistrate to determine the credibility of that person, the person it seems to be based upon.”   The magistrate ruled the offer of proof inadequate and precluded defense counsel from examining the affiant about the reliability of the informant.   At the conclusion of the evidence, defense counsel moved to dismiss on the grounds he had been prevented from cross-examining the affiant as to this subject matter.   The magistrate denied the motion and held defendant to answer.

In superior court defendant moved for dismissal of the information pursuant to Penal Code section 995 based on the denial of cross-examination.   The court denied the motion.   At the conclusion of the hearing counsel stipulated that the section 995 motion would be deemed a motion to suppress the evidence (§ 1538.5) for purposes of appeal and that the trial court denied the motion.

Discussion

The instant crime occurred on November 29, 1983, after the enactment of Proposition 8 by the voters of the State of California.   Hence, the provisions of Proposition 8 are applicable to our analysis of this case.  (See People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149.)

Proposition 8, through its enactment of section 28, subdivision (d) of Article I of the California Constitution, “prevents exclusion of evidence on state constitutional grounds where the evidence would be admissible under the United States Constitution.”  (People v. Luevano (1985) 167 Cal.App.3d 1123, 1128, 213 Cal.Rptr. 764;  In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.)   Accordingly, we look to federal constitutional standards to determine the admissibility of evidence in the instant case and conclude the rules set forth in Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 control the case before us.  (See People v. Luevano, supra, 167 Cal.App.3d at p. 1128, 213 Cal.Rptr. 764;  People v. Lopez (1985) 173 Cal.App.3d 125, 218 Cal.Rptr. 799.)

In Franks v. Delaware, supra, 438 U.S. 154, 98 S.Ct. 2674 the United States Supreme Court determined for the first time that a defendant has the right under limited circumstances to challenge the veracity of a facially valid search warrant affidavit.   In reaching this conclusion, the court overturned a ruling by the Delaware Supreme Court which had held that a defendant under no circumstances may challenge the veracity of a sworn statement used by police to procure a search warrant.  (Id., at p. 155, 98 S.Ct. at p. 2676.)   Justice Blackmun, writing for the majority, emphasized however that a defendant's right to assert such a challenge was of “limited scope, both in regard to when exclusion of the seized evidence is mandated, and when a hearing on allegations of misstatements must be accorded.”  (Id., at p. 167, 98 S.Ct. at p. 2682.)

The Franks court specifically dealt with the question whether a defendant is entitled to an evidentiary hearing to prove affirmative misstatements in the warrant affidavit.  (Franks, supra, 438 U.S. at pp. 155–156, 98 S.Ct. at p. 2676.)   The court held a defendant must (1) offer specific proof that the affiant made statements which were deliberately false or in reckless disregard of the truth and (2) show that the affidavit is insufficient to justify a finding of probable cause without the allegedly false statements.  (Ibid.;  see United States v. Bulgatz (8th Cir.1982) 693 F.2d 728, 732.)   The court explained:  “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 (fn. omitted).   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.”  (Franks, supra, 438 U.S. at pp. 171–172, 98 S.Ct. at 2684.)   Applying these principles to the instant case, defendant clearly failed to meet the threshold burden required to trigger an evidentiary hearing.

Defendant sought to question Detective Schloss concerning whether the informant was pending criminal charges, was being paid, was an addict, or had been recently arrested.   At that point, defendant was in fact requesting an evidentiary hearing to test the veracity of the search warrant affiant.  (See Theodor v. Superior Court (1972) 8 Cal.3d 77, 109 Cal.Rptr. 226, 501 P.2d 234.) ²  However, defendant failed to offer any proof that material facts were omitted from the search warrant affidavit.   Nor did he contend the purported omissions were knowing and deliberate or in reckless disregard of the truth.   Indeed, it appears defendant did not profess to believe the affidavit suffered from any omission or misstatement.

In the absence of the required offer of proof, we must hold the court correctly denied defendant examination of the police officer regarding the veracity of his statements in the search warrant affidavit.

Defendant acknowledges the Franks requirement of a substantial preliminary showing to challenge a search warrant affidavit.³  Defendant contends, however, this rule applies only where a search warrant is attacked on the basis of affirmative misstatements rather than omissions.   We do not read Franks so narrowly and for purposes of the issue before us we perceive no essential difference between the two.   A number of federal courts have recognized that “allegations of material omissions [are] to be treated essentially similarly to claims of material misstatements.”  (United States v. Martin (5th Cir.1980) 615 F.2d 318, 328;  see e.g. United States v. Ferguson (2nd Cir.1985) 758 F.2d 843;  United States v. Haimowitz (11th Cir.1983) 706 F.2d 1549, 1556;  United States v. Harvey (S.D.Fla.1982) 560 F.Supp. 1040, 1074;  United States v. Dusablon (D.Me.1982) 534 F.Supp. 1368, 1377.)

Moreover, we believe the Supreme Court's reasons for limiting the right to an evidentiary hearing apply equally whether the allegation of falsity be characterized as an affirmative misstatement or an omission of material fact.   In Franks, the court recognized there were numerous “competing values” bearing upon the propriety of an absolute ban on post search impeachment of veracity and therefore the court found the right to a hearing only of “limited scope.”  (Franks, supra, 438 U.S. at p. 167, 98 S.Ct. at p. 2682;  see Lefave, Search and Seizure, § 4.4., p. 59.)   For example, the court noted “the magistrate already is equipped to conduct a fairly vigorous inquiry into the accuracy of the factual affidavit supporting a warrant application.   He may question the affiant, or summon other persons to give testimony at the warrant proceeding.   The incremental gain from a post-search adversary proceeding, it is said, would not be great.”  (Franks, supra, at p. 166, 98 S.Ct. at p. 2681.)   The court additionally explained the requirement of a “sensible threshold showing” was necessary to “prevent the misuse of a veracity hearing for purposes of discovery or obstruction” and that a threshold showing would eliminate the “need [for a] large scale commitment of judicial resources [since] many [unfounded] claims will wash out at an early stage.”  (Id., at p. 170, 98 S.Ct. at p. 2683.)   In our view, these considerations apply when a defendant alleges that material information has been omitted from the affidavit.

Defendant additionally maintains that “the decisional law of this state permits inquiry to [sic] an affiant at a preliminary examination regarding the reliability of the informant.”   Defendant relies on Tharp v. Superior Court (1984) 154 Cal.App.3d 215, 201 Cal.Rptr. 131 and People v. Rivas (1985) 170 Cal.App.3d 312, 216 Cal.Rptr. 477.   However, neither case confronted the issue in terms of federal law.

In Tharp v. Superior Court, supra, 154 Cal.App.3d 215, 217, 201 Cal.Rptr. 131 the defendant, at a hearing on a motion to quash the search warrant, sought to determine whether the affidavit contained all information possessed by the police on the credibility of the unnamed informant.   On cross-examination, the defendant questioned the affiant police officer about the informant's prior criminal record.  (Id., at p. 218, 201 Cal.Rptr. 131.)   The magistrate sustained relevancy objections to these questions but the appellate court held that the information sought was relevant and cross-examination should have been permitted.  (Ibid.)  However, the court neither discussed nor mentioned the related issue of the adequacy of defendant's preliminary showing.⁴

A similar situation was presented to the court in People v. Rivas, supra, 170 Cal.App.3d 312, 216 Cal.Rptr. 477.   In Rivas, defense counsel was prevented from questioning the search warrant affiant “about the reliability of the informant or anything else that would go behind the face of the warrant.”   (Id., at p. 325, 216 Cal.Rptr. 477.)   The People in that case conceded that cross-examination of the affiant on the subject should have been permitted (Id., at p. 323, 216 Cal.Rptr. 477.) and the court held the magistrate erred in precluding such inquiry.  (Ibid.)  In reaching this conclusion, the court did not confront Franks v. Delaware but instead reasoned that a defendant must be permitted cross-examination of the affiant before making an offer of proof challenging the affiant's veracity of a warrant affidavit.  (Id., at pp. 323–325, 216 Cal.Rptr. 477.)   In our view the holdings of Tharp and Rivas contravene controlling federal law as established by the United States Supreme Court.

Judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

2.   In Theodor, the court recognized that a defendant may bring a section 1538.5 motion at the preliminary hearing in order to challenge the facts contained in a warrant affidavit.

3.   Defendant takes the position that the necessity of a preliminary showing is not an absolute requirement.   Defendant relies on the statement in Franks that “[a]ffidavits or sworn or otherwise reliable statements of witnesses should be furnished or their absence satisfactorily explained.”  (Franks, supra, 438 U.S. at p. 171, 98 S.Ct. at p. 2684.)   However, in our view, the court is merely suggesting the possibility that alternative methods of proof may be acceptable under certain circumstances.

4.   The Tharp court's sole mention of the Franks decision was in terms of whether the state remedy or the federal remedy applies in the case of factual omissions.  (Tharp, supra, 154 Cal.App.3d at p. 218, 201 Cal.Rptr. 131.)   In this regard, the court stated:  “Whether the magistrate, trial court, or appellate court ultimately utilizes a Kurland standard (․ [reckless or intentional omission of such information requires quashing the search warrant] ) or the federal approach (․ [adding and retesting the warrant] ) is academic.   Since the magistrate precluded inquiry into what was clearly relevant cross-examination, petitioner was ultimately prevented from testing the search warrant.”  (Fn. omitted.)  (Ibid.)

AGLIANO, Acting Presiding Justice.

BRAUER and O'FARRELL,* JJ., concur.