PEOPLE v. MURPHY (1986)

In January of 1985 defendant was charged in separate counts with possession, possession for sale and cultivation of marijuana and possession, possession for sale and manufacture of psilocybin mushrooms (Health & Saf.Code §§ 11357, subdivision (c), 11358, 11359, 11377, 11378 and 11379).   He ultimately pleaded guilty to three counts:  possession for sale of marijuana and possession for sale and manufacture of psilocybin.   The superior court, Monterey County, admitted him to probation on condition of a substantial fine and confinement in the county jail for 180 days.

The evidence supporting these charges was discovered in a search of defendant's home in Pacific Grove.   The search was conducted pursuant to a search warrant issued on the basis of an affidavit sworn to by Officer Richard Cox.   The affidavit reflected information furnished to the officer by a confidential informant.   The affidavit was facially more than sufficient under the “totality of the circumstances” test laid down in Illinois v. Gates (1983) 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527.

At the preliminary hearing, defense counsel was allowed over objection to call the affiant and to question him in aid of traversing the warrant by challenging the reliability of the informant.   That examination disclosed the following facts not set forth in the affidavit:  (1) the informant had frequently in the past received payment for information from law enforcement, (2) in this case, the informant was paid but only after the search had been completed, and (3) the informant probably had a criminal record but the officer “wasn't sure.” ¹

In superior court, defendant renewed his efforts to attack the veracity of the informant.   He filed a discovery motion seeking (1) the record of all arrests and convictions suffered by the informant in the last five years, (2) a statement of all monies paid to him by law enforcement agencies, (3) records evidencing such payments, and (4) the records of all information furnished by him in the last five years including a list and type of cases, number of arrests, etc.   The motion was denied on the authority of Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, discussed hereafter.

Defendant persisted.   He filed a motion under Penal Code section 1538.5 and served a subpena duces tecum on the supervising investigator of the Monterey County District Attorney's Office which commanded the official to bring to court the records previously sought in the discovery motion.   At the hearing, the investigator asserted the privilege for official information under Evidence Code section 1040.   The objection was sustained and the motion was ultimately denied.   A plea of guilty, judgment and appeal followed in due course.²

 Proposition 8, through the 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.  (In re Lance W. (1985) 37 Cal.3d 873, 890, 210 Cal.Rptr. 631, 694 P.2d 744.)   We therefore look to Federal Constitutional standards to determine admissibility of evidence.

 The governing decision is Franks v. Delaware, supra, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667.   In Franks, the United States Supreme Court created for the first time a right in a defendant to challenge the veracity of a facially valid search warrant affidavit.   In reaching this conclusion, the Court overruled a Delaware Supreme Court opinion 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.   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.”

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.   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 ³ and (2) show that the affidavit is insufficient to justify a finding of probable cause without the allegedly false statements.   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 non-governmental 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.”  (Id., at pp. 171–172, 98 S.Ct. at p. 2684.)

It is clear, therefore, that the magistrate was in error in permitting the defense to call Officer Cox whose entire testimony was objectionable under Franks.

 Then, by a remarkably audacious tour de force, defendant sought to utilize the information improperly procured from the officer as a springboard for further enterprise.   The trouble with his endeavor is twofold.   First the omissions were not deliberate or reckless.   The officer testified that he didn't put the fact of payment in the affidavit because the informant wasn't paid until after the search and, with regard to payment on prior occasions, “I just didn't think to put it in there.”   More importantly, the omitted matter would not have negatived probable cause had it been included in the affidavit.   Payment only after the search is made, i.e. after the information has proved reliable, enhances rather than detracts from credibility.   As to criminal record, the affiant wasn't sure that the informant had one.   What is more, the fact, if it is a fact, is of no significance here.   This point was discussed in People v. Kurland, supra, 28 Cal.3d 376, 168 Cal.Rptr. 667, 618 P.2d 213.   Criminal convictions, especially those bearing on integrity and veracity, are highly relevant in cases involving disinterested citizen-informants who are presumptively reliable.   But a different rule applies to professional police tipsters.   The magistrate and the reviewing court must initially assume that information from such sources is unreliable because experienced stool pigeons “ ‘are generally motivated by something other than good citizenship.’ ”   Such persons may be impelled by revenge, braggadocio, self-exculpation or hope of compensation.  (Id., at p. 393, 168 Cal.Rptr. 667, 618 P.2d 213;  emphasis in original.)   In the case at bench, the affidavit made clear that the informant was a pro.  “[I]n most cases, the issue of possible unreliability is adequately presented to the magistrate when the affidavit reveals that the affiant's source of information is not a ‘citizen-informant’ but a garden-variety police tipster.   In such circumstances, predictable details of the informer's criminal past will usually be cumulative and therefore immaterial.”  (Id., at p. 394, 168 Cal.Rptr. 667, 618 P.2d 213, emphasis added.)

At the hearing upon the motion to suppress, defense counsel virtually conceded that he could not lay a foundation under Franks sufficient to traverse the warrant.   He therefore placed his reliance on two California appellate cases, 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.  Tharp and Rivas are in our view inconsistent with Franks.   Higher authority therefore compels us to disregard Tharp and Rivas.   The motion to suppress was properly denied.

Judgment affirmed.

FOOTNOTES

1.   In this court, defendant points to two additional discrepancies which however were not called to the trial court's attention and therefore will not be considered here.  (People v. Rogers (1978) 21 Cal.3d 542, 146 Cal.Rptr. 732, 579 P.2d 1048.)

2.   The appealability of the discovery motion did not survive the plea of guilty but that fact is of no consequence as the motion to suppress tendered the same issue, and that ruling is appealable.  (Pen.Code § 1538.5, subd. (m);  People v. Lilienthal (1978) 22 Cal.3d 891, 897, 150 Cal.Rptr. 910, 587 P.2d 706.)

3.   The Attorney General concedes that deliberate omissions designed to mislead the magistrate are the equivalent of deliberate falsehoods.   (United States v. Dennis (8th Cir.1980) 625 F.2d 782, 791;  People v. Kurland (1980) 28 Cal.3d 376, 390, 168 Cal.Rptr. 667, 618 P.2d 213.)

BRAUER, Associate Justice.

AGLIANO, P.J., and PHILLIPS, J.*, concur.