PEOPLE v. FOGELBACH (1981)

Kenneth Fogelbach pleaded guilty to unlawful possession of cocaine for sale (Health & Saf.Code, § 11351), and unlawful possession of barbituric acid and amphetamines (Health & Saf.Code, § 11377, subd. (a)).  On appeal, he argues that the trial court erred in failing to quash the warrant for search of his residence because the affidavit contained an intentional misstatement of fact made to the affiant, Deputy Michael Pegg, by a third party, Deputy Frank Dixon.

The relevant paragraph of the affidavit in support of the search warrant reads as follows:

“On February 5, 1980, at approximately 2330 hours Deputy Dixon told your affiant that he had contacted Morgan Hill Fire Department.   Deputy Dixon said he obtained a map of Racoon Court in Morgan Hill.   Deputy Dixon obtained a location and confirmed that location to be described by Deputy Rinna.   The residence 17608 Racoon Court is listed by the Morgan Hill Fire Department to be occupied by Ken Fogelbach.”  (Emphasis added.)

Appellant moved to controvert the search warrant and suppress evidence (Pen.Code, §§ 1538.5, 1539).   In denying the motion to suppress, the trial court found that (1) Deputy Dixon's statement concerning the identity of the resident of 17608 Racoon Court is “either recklessly inaccurate or intentionally misleading,” (2) the statement was relied on in good faith by Deputy Pegg, and (3) the statement does not constitute a material fact making the affidavit defective.

Appellant does not dispute the trial court's findings.   Rather, relying on People v. Cook (1978) 22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130, he argues that a warrant must be quashed when its supporting affidavit contains an intentional misstatement of fact by a third party to the affiant on which the affiant reasonably relies.

We approach the issue by examining the holdings and reasoning of the Supreme Court in Theodor v. Superior Court (1972) 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234, as well as People v. Cook, supra.

In Theodor v. Superior Court, supra, the Supreme Court confirmed the right of a defendant to challenge factual averments in a facially sufficient affidavit.   The case involved the alleged factual misstatements of two affiants.   The court held that “only when the affiant has acted unreasonably in making factual mistakes must those errors be excised from the affidavit before testing the existence of probable cause.”  (Id., at p. 97, 104 Cal.Rptr. 226, 501 P.2d 234.)   While recognizing that the result of any misstatement is “an adverse effect upon the normal inference-drawing process of the magistrate” (id., at p. 96, 104 Cal.Rptr. 226, 501 P.2d 234), the court refused to require excision of inaccuracies that were reasonable.   The court's decision was informed by a “rule of reason” (People v. Kurland (1980) 28 Cal.3d 376, 386, 168 Cal.Rptr. 667, 618 P.2d 213;  see Theodor v. Superior Court, supra, 8 Cal.3d at p. 97, 104 Cal.Rptr. 226, 501 P.2d 234)—a recognition that probable cause, not certainty, is the cornerstone of the warrant-issuing process (id., at pp. 96, 100, 104 Cal.Rptr. 226, 501 P.2d 234) and that no deterrent purpose would be served by excluding evidence obtained pursuant to a warrant issued on the basis of facts on which the affiant has reasonably relied as being accurate (Theodor v. Superior Court, supra, at p. 97, 104 Cal.Rptr. 226, 501 P.2d 234).

Subsequently, in People v. Cook, supra, the court considered the response appropriate when an affidavit contains intentional misstatements of fact by the affiant.   The court first reaffirmed its recognition in Theodor that no deterrent purpose would be served by excluding evidence “ ‘obtained pursuant to a warrant issued on the basis of facts upon which an affiant has reasonably relied as being accurate ․ since, by definition, the affiant has already made a reasonable attempt to comply with the requirements of the Fourth Amendment.’ ”  (People v. Cook, supra, 22 Cal.3d at p. 82, 148 Cal.Rptr. 605, 583 P.2d 130.)   In contrast, the court then observed, “ ‘more can be required’ of an affiant who makes ‘unreasonable’—i.e., negligent or intentional—misstatements:  in such a case exclusion does serve the ‘purpose of deterrence to unlawful conduct,’ because it induces the affiant to thereafter make ‘a reasonable attempt to comply with the requirements of the Fourth Amendment.’ ”  (Id., at pp. 82–83, 148 Cal.Rptr. 605, 583 P.2d 130.)

Moreover, the court reasoned, exclusion is necessary in the case of deliberate misstatements because once it is determined that the affiant deliberately lied to the magistrate, the magistrate's “ignorance of this crucial fact undermines his determination of the officer's credibility, and the reviewing court can no longer rely on that determination for the facts necessary to test the magistrate's conclusion of probable cause.”  (People v. Cook, supra, 22 Cal.3d at pp. 86–87, 148 Cal.Rptr. 605, 583 P.2d 130.)

 Whether the principles of Theodor v. Superior Court, supra, and People v. Cook, supra, apply to a third party's misstatements to an affiant evidently has not been decided.¹  (Cf. People v. Tallmadge (1980) 103 Cal.App.3d 980, 986–987, 163 Cal.Rptr. 372.)   We conclude that they do not apply.

First, we note that in Theodor v. Superior Court, supra, the Supreme Court recognized that misinformation in an affidavit may be in the form of an officer's miscalculation of the reliability of an informant or inaccurate information gathered by the informant.  (8 Cal.3d at pp. 95–96, 104 Cal.Rptr. 226, 501 P.2d 234.)   We view this as a recognition that an affiant may reasonably, albeit mistakenly, rely on misinformation provided either unintentionally or deliberately by a third party.

Second, we are of the view that neither deterrence of an affiant's unlawful conduct, nor preservation of the integrity of the magistrate's fact-finding function, the twin bases for the court's decisions in Theodor v. Superior Court, supra, and People v. Cook, supra, would be further served by extending the holdings of those cases to a third party's misstatements reasonably relied on by the affiant.

When, as here, an affiant has accurately related the statements of a third party on which he in good faith relied, no deterrent purpose would be served by excluding the evidence thereby obtained, “since, by definition, the affiant has already made a reasonable attempt to comply with the requirements of the Fourth Amendment.”  (Theodor v. Superior Court, supra, at p. 97, 104 Cal.Rptr. 226, 501 P.2d 234.)

Nor is there any impairment of the magistrate's function when, as here, he determines on the basis of facts averred by a credible affiant that there is probable cause for issuance of a warrant.   The purpose of the warrant requirement is to interpose “the deliberate, impartial judgment of a judicial officer ․ between the citizen and the police ․”  (Wong Sun v. United States (1963) 371 U.S. 471, 481–482, 83 S.Ct. 407, 414, 9 L.Ed.2d 441.)   That purpose is served when an officer presents to the magistrate “the facts and circumstances within ․ [his] knowledge and of which [he has] reasonably trustworthy information” (Brinegar v. United States (1949) 338 U.S. 160, 175–176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879;  see Theodor v. Superior Court, supra, 8 Cal.3d at p. 96, 104 Cal.Rptr. 226, 501 P.2d 234) so the magistrate, rather than the officer, can determine whether those facts and circumstances are sufficient to justify police intrusion on an individual's privacy interests.

As the court in Theodor observed:  “There is no reason to hold an officer to a standard of absolute accuracy in those instances in which the inference-drawing power is reserved for the magistrate who is to issue a warrant, when the officer is only required to reach a reasonable factual deduction in those instances in which he makes the inferences and acts without a warrant.   In both cases, the constitutional standard is one of reasonableness.”  (8 Cal.3d at p. 100, 104 Cal.Rptr. 226, 501 P.2d 234.)

 Accordingly, we conclude that under Theodor v. Superior Court, supra, and People v. Cook, supra, the scope of inquiry in assessing the truthfulness of an affidavit is limited to the state of mind of the affiant.   Once it is determined that the affiant accurately and in good faith averred what he had been told, there is no occasion for further inquiry.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Contrary to appellant's assertion Cook did not hold that a defendant may challenge the truth of hearsay or a third party's statements to the affiant.   The court merely observed that the affiant's customary reliance on hearsay and confidential informants would make it difficult for a defendant challenging the veracity of the affidavit “to discover in advance of the hearing each and every allegation [i.e., of the affiant] that he can ultimately prove false.”  (People v. Cook, supra, 22 Cal.3d at p. 92, 148 Cal.Rptr. 605, 583 P.2d 130.)

THE COURT: ** FN** Before RACANELLI, P. J., and NEWSOM and MARTIN, JJ., sitting under assignment by the Chairperson of the Judicial Council.