stating that the “crucial, inference-drawing powers of the magistrate” are hindered as much by omissions as by outright misstatements in an affidavit
How later courts described this case
- stating that the “crucial, inference-drawing powers of the magistrate” are hindered as much by omissions as by outright misstatements in an affidavit
- affidavit adequate when it merely identified tip as coming from police informant because factors which might suggest that such informants were less reliable were common knowledge, making predictable details of the informant’s criminal past cumulative
Written by the judges who cited it.
The opinion
CLARK, J.
I concur in the judgment and opinion of the court except insofar as it reaffirnjs the holding of People v. Cook (1978) 22 Cal.3d 67 [ 148 Cal.Rptr. 605 , 583 P.2d 130 ]—that evidence obtained pursuant to a warrant issued in reliance on an affidavit containing deliberately false statements of fact must be excluded regardless of the effect of those statements on probable cause. I continue to believe the appropriate remedy in such a case is for the judge conducting the Theodor 1 hearing to entirely reweigh the affiant’s credibility if he is found tb have lied in part: ( 22 Cal.3d at p. 101 (Clark, J., dis.).)
Theodor v. Superior Court (1972) 8 Cal.3d 77 [ 104 Cal.Rptr. 226 , 501 P.2d 234 ].
Where the omitted adverse facts are merely cumulative, the warrant should stand. While this exception to the rule of exclusion might encourage law enforcement personnel to substitute their assessments of relevance for that of the magistrate, this will be at most a minor tendency. As the discussion below suggests, the magistrate’s determination of probable cause will not be suspect in such cases, despite the police’s breach of their constitutional duty to inform the magistrate of all relevant adverse information known to them. Thus, suppression is not warranted as a means of enforcing the Fourth Amendment in this limited situation.