People v. Crabb

Opinion

Defendant Dennis Albert Crabb appeals from a judgment of conviction for possession of cocaine for sale (Health & Saf. Code, § 11351). The sole issue is whether the defendant was erroneously denied discovery of information contained in police records. Such discovery, defendant contends, might have armed him with evidence with which to challenge

The court recognized various considerations for so limiting challenges to the veracity of the affidavit: the societal cost of applying the exclusionary rule; the protections afforded a citizen’s privacy interests by the “requirement that applicants for a warrant submit a sworn affidavit and by the magistrate’s independent determination of sufficiency based on the face of the affidavit” (id. at p. 166 [57 L.Ed.2d at p. 679]); the ability of the magistrate to conduct a vigorous inquiry into the accuracy of the warrant affidavit (ibid.); the need to preserve judicial resources and “prevent the misuse of a veracity hearing for purposes of discovery or obstruction” (id. at p. 170 [57 L.Ed. at p. 681]); and the fact that the accuracy of an affidavit is in large part beyond the control of the affiant since “[a]n affidavit may properly be based on hearsay, on fleeting observations, and on tips received from unnamed informants____” (Id. at p. 167 [57 L.Ed. at p. 679].)

In People v. Wilson (1986) 182 Cal.App.3d 742 [ 227 Cal.Rptr. 528 ], this court followed Franks in holding that without a preliminary showing the defendant was not entitled to cross-examine the affiant for the purpose of trying to establish that the search warrant affidavit contained allegations known by the affiant to be false or made with reckless disregard for the truth.

In the instant case, defendant concedes he was not in possession of evidence of misstatements or omissions sufficient to trigger a right to an evidentiary hearing under Franks. He asserts, however, that Franks is not controlling. Relying upon People v. Rivas (1985) 170 Cal.App.3d 312 [ 216 Cal.Rptr. 477 ], defendant contends he properly seeks to inspect police records in order to find evidence with which to discredit the affiant and thereby invalidate the warrant. Defendant maintains such evidence, if it exists, is in the sole possession of the prosecution and it is improper to

Further, defendant disputes the People’s characterization of his discovery requests as a “fishing expedition” by arguing that he “was able to raise serious and substantial questions about the validity of the search warrant” through his cross-examination of the affiant at the preliminary hearing. We reject defendant’s contentions for several reasons.

Defendant does not contend this testimony revealed misstatements or omissions sufficient to satisfy the preliminary showing required under Franks. In this regard, we observe that the information elicited by the affiant’s testimony was of minimal significance. The affidavit sufficiently disclosed that the confidential informants here were members of the drug culture and three of them were prior police informants. As noted by our Supreme Court in People v. Kurland (1980) 28 Cal.3d 376 [ 168 Cal.Rptr. 667 , 618 P.2d 213 ]: “Such persons frequently have criminal records and a history of contact with the police. Often they are free only on probation or parole or are themselves the focus of pending criminal charges or investigations. All familiar with law enforcement know that the tips they provide may reflect their vulnerability to police pressure or may involve revenge, braggadocio, self-exculpation, or the hope of compensation. [Citations.] The details of their criminal pasts are not necessary to place the magistrate on notice of their potential unreliability. [Citation.] [It] Both an issuing magistrate and a reviewing court must initially assume that information from such sources is unreliable for purposes of probable cause. Such a rule alerts the magistrate to the very danger defendant urges—that the statements of tipsters from ‘criminal society’ may receive unwarranted weight. [If] We therefore conclude that, in 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 pp. 393-394.)

The discovery motion in the instant case was a random search for evidence that the affiant might have misstated or omitted facts which might then have cast doubt upon the affiant’s veracity. Under the essential rationale of Franks, such discovery is not permissible under these circumstances. In our

Franks's premise in part is that the magistrate’s acceptance of the affiant’s veracity is not to be disturbed, and further judicial inquiry into the subject is not warranted, unless the defendant first shows some reason to believe the affiant has willfully misstated or omitted material facts from the affidavit. It is worthy of note that inspection of police records usually entails the court’s in camera review and expurgation of such records to prevent the improper disclosure of the identity of confidential informants. This undertaking requires a substantial commitment of scarce judicial resources which cannot, in balance, be deemed justified under the circumstances presented here.

Finally, we note that the constitutional imperative for discovery arises only “where the evidence is material either to guilt or to punishment.” (Brady v. Maryland (1963) 373 U.S. 83 , 87 [ 10 L.Ed.2d 215 , 218, 83 S.Ct. 1194 ]; accord Smith v. Phillips (1982) 455 U.S. 209 , 219 [ 71 L.Ed.2d 78 , 87-88, 102 S.Ct. 940 ]; United States v. Agurs (1976) 427 U.S. 97 [ 49 L.Ed.2d 342 , 96 S.Ct. 2392 ]; see In re Imbler (1963) 60 Cal.2d 554 , 569 [ 35 Cal.Rptr. 293 , 387 P.2d 6 ].) The legality of a search or seizure, however, does not relate to the factual issues of guilt or punishment.

In California, a defendant’s right to pretrial discovery is founded upon “the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. [Citation.]” (Pitchess v. Superior Court (1974) 11 Cal.3d 531 , 535 [ 113 Cal.Rptr. 897 , 522 P.2d 305 ].) Even in this context, however, it has been consistently held that a defendant must establish “some cause for discovery other than ‘a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.’ [Citations.]” (Id. at p. 537, quoting People v. Cooper (1960) 53 Cal.2d 755 , 770 [ 3 Cal.Rptr. 148 , 349 P.2d 964 ]; accord People v. Memro (1985) 38 Cal.3d 658 , 682 [ 214 Cal.Rptr. 832 , 700 P.2d 446 ]; Joe Z. v. Superior Court (1970) 3 Cal.3d 797 , 804 [ 91 Cal.Rptr. 594 , 478 P.2d 26 ]; People v. Terry (1962) 57 Cal.2d 538 , 561 [ 21 Cal.Rptr. 185 , 370 P.2d 985 ].)

We do not here suggest that any particular showing would suffice to warrant discovery of the kind sought by defendant, Our holding is simply that defendant’s showing in this case does not justify discovery of the information sought.

Brauer, J., and Capaccioli, J., concurred.

Appellant’s petition for review by the Supreme Court was denied July 30, 1987.