Opinion
Rehearing Granted June 29, 1989.
Previously published at 211 Cal.App.3d 547
Ira Reiner, Dist. Atty. of Los Angeles County, Arnold T. Guminski and Martha E. Bellinger, Deputy Dist. Attys., for plaintiff and appellant.
Markman, Arczynski, Hanson & Goldman and F. Elliot Goldman, Brea, for defendant and respondent Millette.
Wilbur F. Littlefield, Public Defender of Los Angeles County, Lawrence M. Sarnoff, Michael Shannon, William Klump, and Victoria E. Samuels, Deputy Public Defenders, for defendant and respondent Nieves.
COMPTON, Acting Presiding Justice.
The People appeal from an order of the superior court denying their motion for reinstatement of a criminal complaint pursuant to Penal Code section 871.5. The complaint had been dismissed by the magistrate at the preliminary hearing after that magistrate had ordered the suppression of all of the evidence seized pursuant to a search warrant and without which evidence the People were unable to proceed. We reverse.
Penal Code section 871.5 reads in pertinent part: "(a) When an action is dismissed by a magistrate pursuant to Section ... 871 ..., or a portion thereof is dismissed pursuant to those same sections which may not be charged by information under the provisions of Section 739, the prosecutor may make a motion in the superior court within 15 days to compel the magistrate to reinstate the complaint or a portion thereof and to reinstate the custodial status of the defendant under the same terms and conditions as when the defendant last appeared before the magistrate...."
On May 3, 1987, the Honorable R. Bruce Minto, a judge of the Municipal Court in the Citrus Judicial District, sitting as a magistrate, issued a search warrant commanding members of the Los Angeles County Sheriff's Office to search a single-family home for drugs and paraphernalia.
The warrant was executed that same date and substantial quantities of cocaine and marijuana were seized. A three count complaint was filed in the Municipal Court of the Pomona Judicial District charging defendants Paul Millette and Christopher Nieves with violating Health and Safety Code sections 11352 (sale and transportation On February 5, 1988, the date set for a preliminary hearing on the complaint, the Honorable Thomas A. Peterson, a judge of the Municipal Court for the Pomona Judicial District, also sitting as a magistrate, purported to entertain a motion pursuant to Penal Code section 1538.5 to quash the search warrant and suppress all evidence seized thereunder.
In so doing, Judge Peterson ruled not only that Judge Minto had erred in issuing the search warrant but that the officer executing the warrant could not in good faith rely on the warrant for the reason that such reliance, although in "subjective good faith," was "objectively unreasonable," citing United States v. Leon (1984) 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.
At the hearing on the motion to suppress the evidence, the officer who provided the information for the affidavit upon which the search warrant was based testified. After listening to that testimony, Judge Peterson indicated that, while there were some minor differences between the testimony and the affidavit, the officer acted in good faith. He made no finding that there was any false or misleading information in the affidavit.
Thus, both the issuing magistrate, Judge Minto, and the suppressing magistrate, Judge Peterson, based their decisions on the same evidence--the facts contained in the affidavit which accompanied the application for the search warrant.
We thus set forth the factual background for the issuance of the search warrant.
The house in question was located in the Diamond Bar area of Los Angeles County and was owned by one Kevin Toohey. Toohey had leased the house to defendant Millette. The lease expired on April 4, 1987.
On March 1, 1987, Toohey directed a letter to the defendant, who was apparently two months in arrears in the rent, telling him to vacate the premises by April 4, 1987.
After several unsuccessful attempts to contact defendant, Toohey received a call from defendant on April 12th advising that defendant would vacate the premises on April 13th.
Subsequently, Toohey went to the property only to find other unknown persons there who refused to answer the phone or the door. Various cars were observed parked at the location none of which belonged to defendant.
Toohey, desirous of determining whether his property had in fact been abandoned by defendant Millette or whether it was being occupied by squatters and being subjected to waste, sought assistance from the sheriff's office to gain entrance to the premises. He was advised by the sheriff's office that, while they would not become involved in a landlord-tenant dispute, they would assign a deputy sheriff to accompany him to the premises in an effort to gain entrance. By prearrangement Deputy Sheriff Pohl met Toohey at the premises on May 3, 1987. The deputy knocked on the door. He heard a commotion inside, the slamming of doors, the flushing of toilets and the running of water. He again knocked identifying himself as a deputy sheriff and, after considerable delay, a female, who was unknown to Mr. Toohey, opened the door. It was at once apparent that this individual was under the influence of narcotics. She stated that no one else was there. Toohey and the deputy then entered the premises. Once inside, the deputy located defendants Millette and Nieves, both of whom were also under the influence of narcotics. In the kitchen, the deputy observed in plain view what appeared to be both cocaine and marijuana residue, along with packaging materials. While the deputy was on the premises, the telephone rang. When the deputy answered the telephone, an individual asked to purchase cocaine.
Deputy Pohl apparently made his observations in the kitchen after he had located the two defendants on the premises. His stated reason for entering the kitchen was
At that point, Toohey advised the deputy that he had learned from neighbors that there had been a large volume of foot and vehicle traffic at the house at all hours of the night. Individuals carrying small paper bags were seen leaving the premises.
All of the foregoing facts were relayed by Deputy Pohl to another deputy--an expert in narcotic traffic--who opined that marijuana and cocaine were being used, packaged, and sold at the location. That deputy prepared an affidavit which was presented to Judge Minto and a search warrant was obtained to further search the house and seize any contraband that might be found therein. The evidence suppressed was contraband seized in the search that was conducted under the warrant.
Clearly, the affidavit presented to Judge Minto, which disclosed that there were three persons in the house all under the influence of narcotics and that there was cocaine and marijuana residue in plain sight in the kitchen, would support a finding of probable cause to believe that additional quantities of narcotics would be found on the premises.
The only real issue presented was purely the legal one of whether the officer's presence in the house when he made the observations of the condition of the occupants and the presence of the narcotic debris was reasonable and proper.
In issuing the warrant, Judge Minto obviously concluded that the deputy's presence in the house was reasonable. Judge Peterson's analysis, however, was that, while the initial entry of the deputy onto the premises was perfectly proper, once defendant Millette was identified as the former tenant, the deputy was then required to close his eyes and make no further observations on the premises. The judge then reached the startling conclusion that the deputy should have known that he had no further reason to be on the premises and that Judge Minto should not have been permitted to read that part of the affidavit which recited the observations made after the identification of the defendant Millette.
The law, of course, is to the contrary and envisions that an officer seeking a warrant should present all information he has in order to enable the judge to make an informed determination. (See People v. Kurland (1980) 28 Cal.3d 376, 384-385, 168 Cal.Rptr. 667, 618 P.2d 213; Morris v. Superior Court (1976) 57 Cal.App.3d 521, 527, 129 Cal.Rptr. 238; Malley v. Briggs (1986) 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271.)
According to Judge Peterson, he was required to excise from the affidavit any reference to those observations and that the affidavit as excised failed to support the issuance of the search warrant. He further concluded that the deputy had no right to rely on Judge Minto's decision to issue the warrant because such reliance was "objectively unreasonable."
In essence what occurred is that Deputy Pohl took certain action in assisting Mr. Toohey in entering the house. He then presented a full account of those activities to Judge Minto. The latter, in effect, rendered a legal opinion that the actions were reasonable and proper and directed the deputy to conduct a search of the premises. The deputy relying on that legal opinion followed the directive of Judge Minto.
Judge Peterson then later rendered an opinion on the exact same facts that as a matter of law Judge Minto was wrong and, adding insult to injury, indicated that Deputy Pohl should have known that Judge Minto's The "exclusionary rule" is designed to encourage the use of search warrants in preference to warrantless searches. When a search warrant has been issued, it carries with it a presumption of validity. It is a court order which mandates the police to conduct the search and should be examined "in a practical, realistic, and common sense manner, consistent with the strong preference which is accorded search warrants. [Citation.]" (People v. Kashani (1983) 143 Cal.App.3d 77, 81, 191 Cal.Rptr. 562.)
A logical extension of that concept is that when a police officer in good faith acts in reliance on a warrant, he should not be expected to second guess the judge who issued the warrant and should not be faulted for carrying out the court's direction. (United States v. Leon, supra, 468 U.S. 897, 921, 104 S.Ct. 3405, 3419.) Under the Fourth Amendment to the United States Constitution, the ultimate test is whether under the whole of the circumstances the officer's conduct in making a search and seizure was reasonable. (Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527.)
Judge Peterson's reference to objective reasonableness comes from United States v. Leon, supra, where the United States Supreme Court held that suppression was appropriate in the case of a search with a warrant if the affidavit on which it was based was " 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' [Citation.]" (Id. 468 U.S. at p. 923, 104 S.Ct. at p. 3420.) Further, "an officer who does not merely execute but prepares and submits a warrant application containing misstatements and omissions cannot rely on the acceptance of that application as evidence that his conduct was objectively reasonable. A magistrate who determined that probable cause exists on the basis of such an affidavit did not make a fully informed decision." (People v. Maestas (1988) 204 Cal.App.3d 1208, 1215, 252 Cal.Rptr. 739, emphasis added.)
As we have pointed out, there was no question that the affidavit here contained facts to support a finding of probable cause and that Judge Minto made an informed decision. Hence, the reasonableness of Deputy Pohl's reliance on the warrant does not fall under the principles annunciated above.
The question here is can an officer reasonably rely on a judge's interpretation of the law? We think the question answers itself. (Massachusetts v. Sheppard (1984) 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737.)
In any event, the warrant here was perfectly valid. The facts set forth in the affidavit portrayed reasonable conduct on the part of Deputy Pohl.
The property owner, Toohey, had legal reason to seek admission to the premises to determine if it had been abandoned and to inspect for waste. The officer being validly on the premises as a result of the property owner's invitation (see De Conti v. Superior Court (1971) 18 Cal.App.3d 907, 910, 96 Cal.Rptr. 287), was not required to blind himself to things which were in plain view (see People v. Block (1971) 6 Cal.3d 239, 243, 245-256, 103 Cal.Rptr. 281, 499 P.2d 961; People v. Coffee (1980) 107 Cal.App.3d 28, 34, 165 Cal.Rptr. 676.)
The facts of this case expose a further procedural problem which warrants discussion. The problem is that of the decision of the magistrate in issuing a search warrant being reviewed by another magistrate at the same level. Here, both Judge Minto and Judge Peterson were municipal court judges.
The fundamental purpose for the adoption of Penal Code section 1538.5 was to require the pretrial resolution of the issue of the validity of a search and seizure in a proceeding where a ruling adverse to the prosecution could be reviewed before defendant was placed in jeopardy.
There have always been procedures for challenging the validity of a search warrant--procedures which antedated the exclusionary rule and traditionally any challenge When the California Supreme Court in People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905 declared a new rule of evidence in California by adopting the exclusionary rule, there were, of course, no statutes in place which prescribed a procedure for invoking the rule.
In People v. Butler (1966) 64 Cal.2d 842, 52 Cal.Rptr. 4, 415 P.2d 819 and People v. Keener (1961) 55 Cal.2d 714, 12 Cal.Rptr. 859, 361 P.2d 587, both decided prior to the enactment of Penal Code section 1538.5, the Court was still struggling with the procedural ramifications of the exclusionary rule and was primarily concerned with insuring that defendants were not unduly restricted in their ability to invoke the rule.
Thus, in holding that a defendant could attack the validity of a search, with or without a warrant, at the preliminary hearing, on a motion under Penal Code section 995 or at trial, the court in those cases did not address the issue under consideration here.
Justice Mosk, in his well-reasoned dissent in People v. Butler, supra, discerned the need for a more orderly procedure and certain reasonable limits on a defendant's ability to invoke the rule.
Penal Code section 1538.5, as noted earlier, was the Legislature's response to the need for a comprehensive mechanism under which the rights of both the people and the defendant could be preserved in an orderly procedural framework. The drafters of that procedure had the benefit of the prior statutory and case law dealing with the use of search warrants as well as searches conducted without warrants.
Hence, Penal Code section 1538.5, subdivision (b) provides: "When consistent with the procedures set forth in this section and subject to the provisions of Section 170 through 170.6 of the Code of Civil Procedure, the motion should first be heard by the magistrate who issued the search warrant if there is a warrant." (Emphasis added.)
On the other hand, Penal Code section 1538.5, subdivision (f) provides: "If the property or evidence relates to a felony offense initiated by a complaint, the motion shall be made in the superior court only upon filing of an information, except that the defendant may make the motion at the preliminary hearing in the municipal or justice court but the motion in the municipal or justice court shall be restricted to evidence sought to be introduced by the people at the preliminary hearing." (Emphasis added.)
Here, the defendant did not seek to traverse the warrant before the magistrate who issued it. He simply raised the issue of the validity of the warrant in an ordinary suppression hearing pursuant to 1538.5, subdivision (f).
Thus, we have the unseemly spectacle of one municipal court judge, acting as a magistrate, purporting to review the decision of another municipal court judge, acting in a similar capacity, and declaring that the judge who issued the warrant was ignorant of the law.
In Cuevas v. Superior Court (1976) 58 Cal.App.3d 406, 130 Cal.Rptr. 238, a District One opinion, the court purported to hold that subdivision (b) was not mandatory and that ostensibly a defendant could attack a search warrant in a preliminary hearing conducted by a magistrate other than the one who issued the warrant. While that case was cited with approval in a footnote in People v. Fleming (1981) 29 Cal.3d 698, 175 Cal.Rptr. 604, 631 P.2d 38, the situation in Fleming did not deal with the precise issue which is presented here and Cuevas has never been cited in any other case that we can find for the proposition that one judge may sit in review of the actions of a judge of a court of equal or greater dignity.
Technically, there is a distinction between a judge and a magistrate in that a magistrate's powers are limited to those which are specifically provided by statute. (People v. Brite (1937) 9 Cal.2d 666, 684 In People v. Kashani, supra, a superior court judge had issued a search warrant which was being attacked in a suppression hearing conducted before another superior court judge under Penal Code section 1538.5, subdivision (m) on the basis that the judge who issued the warrant had not read the affidavits.
There, the court conducting the hearing quashed a subpoena served on the issuing judge. The Court of Appeal affirmed. "A challenge to the veracity of a search warrant affidavit is not allowed as a routine step in every case. [Citations.] A fortiori, no justification exists for arraigning a magistrate every time a search warrant is issued and requiring him to explain his conduct in the premises. Indeed there are compelling reasons why it should not be so. Such practice would effectively eliminate the statutory requirement that motions to suppress evidence first be heard by the magistrate who issued the search warrant. (Pen.Code, § 1538.5, subd. (b)." (Id. 143 Cal.App.3d at p. 80, 191 Cal.Rptr. 562; emphasis added.)
We cannot believe that the Legislature, in enacting Penal Code section 1538.5, intended to invest one magistrate with the power of review over another magistrate in determining the validity of a search warrant. We think that the word "should" as used in subdivision (b) is stronger in its directive than the word "may" in subdivision (f) which simply gives a defendant several options in pursuing his claim.
It is consistent with the spirit, purpose and provisions of Penal Code section 1538.5 to limit the options set forth in subdivision (f) to the extent that absent a showing of impossibility or unfeasibility, a search warrant should first be challenged before the magistrate who issued it. Further review of that magistrate's decision on the challenge should be by a court of higher jurisdiction. Such a holding does not unreasonably impede a defendant's ability to attack a search warrant. In the case at bench, Judge Peterson should not have entertained the challenge to the warrant but should have given the warrant the credit to which it was entitled.
In view of our determination that the search was valid and no suppression was in order, we need not reach the issue of defendant Nieves' standing to attack the warrant.
The order is reversed. The matter is remanded to the superior court with directions to order the complaint reinstated and for further proceedings in accordance with this opinion.
GATES and FUKUTO, JJ., concur.
The only discrepancy of any consequence was the order in which Deputy Pohl discovered Millette and Nieves on the premises. The affidavit indicated that Nieves was found on the premises and then Millette. In his testimony Deputy Pohl reversed the order. In view of the circumstances of this case, the chronology was irrelevant. Both Deputy Pohl's testimony and the affidavit clearly reflected that the observations he made in the kitchen were made after Millette was identified.