The opinion
*529 CARKEET, J. *
I concur in the foregoing opinion and the reasoning underlying the same. I would enlarge upon one aspect of the case.
At the conclusion of the 1538.5 hearing in the superior court, the court stated: “I think under the circumstances of this case, the acts of the officer were proper . . . .” This could be inferred to be a finding that the affiant did not omit the material facts with a deliberate intent to deceive the magistrate, and removes from the case the issue of intentional bad faith falsification, whether by misstatement or omission.
In Theodor v. Superior Court (1972) 8 Cal.3d 77, 100-101 [ 104 Cal.Rptr. 226 , 501 P.2d 234 ], the court held that the presence in an affidavit for a search warrant of inaccurate facts that were not intentional but were caused by unreasonable police activity, such as negligence, requires that such information be deleted and that the validity of the affidavit be tested by the remaining accurate information. The court noted: “We add that as the prosecution is thus barred from relying on negligent mistakes in an affidavit, it is a fortiori barred from relying on information known by the affiant to be intentionally false. Since in the latter situation there obviously can be no question of showing a reasonable belief in the truth of deliberate misinformation, any such statements must also be stricken prior to testing the warrant for probable cause.” (Supra, 8 Cal.3d at p. 101, fn. 14 .) Whether the use of such intentional misstatements should result in automatically quashing the warrant without regard to the effect of those misstatements on probable cause was left undecided in Theodor. (Ibid.)
In People v. Barger (1974) 40 Cal.App.3d 662 [ 115 Cal.Rptr. 298 ], it was argued that the magistrate’s finding of probable cause could not be upheld since, by omission, facts relevant to the reliability of an informant were withheld from the magistrate. The court reasoned that inaccuracies in an affidavit caused by omission of material facts creates the same problem as factual inaccuracies placed in the affidavit. The court said: “The Supreme Court [in Theodor] pointed out that false or inaccurate information in an application for a warrant adversely affects the normal inference-drawing process of the magistrate. ( 8 Cal.3d at p. 96 .) The magistrate’s inference-drawing process would also be hindered if the affiant were permitted to ‘edit’ his informant’s allegations by omitting unfavorable facts.” (Supra, 40 Cal.App.3d at p. 668 .) Left undecided in *530 Barger was the question whether an intentional omission of material facts should result in automatically quashing the warrant without regard to the effect of the omitted material facts on probable cause, if the affidavit were read with those facts inserted; in Barger , the court found the omission to be due to “negligence” of the officer rather than wilfulness.
If the omission intentionally were done to create a false image of reliability, the element of reasonable belief in the truth of the affidavit as doctored by the omission would be absent, and under the reasoning expressed in Theodor , as extended in Barger , the missing information, at least, would have to be inserted prior to testing the affidavit for probable cause.
Although this court may infer a finding by the lower court which negates any deliberate bad faith omission of material facts with an intent to deceive the magistrate, the same record (i.e., the transcript of testimony at the 1538.5 hearing) which supports such an inferred finding clearly shows that the material facts which were missing from the affidavit were the result of knowing, or intentional, conduct on the part of Detective Southerland. 1
One need only to insert the missing material facts in the affidavit to illuminate the obvious fact that the inaccuracies created by Detective Southerland’s omissions were due to something more censurable than mere negligence. 2 The testimony at the 1538.5 hearing compels an inferred finding that the omissions were intentional.
*531 Theodor indicates that the problem of inaccuracies creates the same result, however caused: “Regardless of whether misstatements are intentionally false or the product of reasonable or unreasonable cerebration, their ineluctable result is an adverse effect upon the normal inference-drawing process of the magistrate.” (Supra, 8 Cal.3d at p. 96 .) The same rationale would apply to inaccuracies created by omission. (People v. Barger, supra, 40 Cal.App.3d 662, 668-669 .)
That an unintentional error can be deemed “correctible” in the manner above indicated now is established law which is grounded upon the statement in Theodor that: “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 *532 in those instances in which he makes the inferences and acts without a warrant. In both cases, the constitutional standard is one of reasonableness.” (Th eodor v. Superior Court, supra, 8 Cal.3d 77, 100 .)
The same reasoning, however, does not permit of a conclusion that an officer should be permitted by intentional misstatement of facts, or intentional omission of material facts, to create a purported factual portrayal upon which to rest his claim of probable cause.
The evil that can accompany such performance is manifest from an examination of the affidavit in the instant case with the omitted material inserted (see fn. 2, ante). From such examination, it becomes immediately apparent that the magistrate was not made aware of many, very material facts relating to the question of the reliability of the informant: for example, that the informant had lied to the detective about the $10 offer to the owner of the guitar and so rephrased it as to attempt to exculpate himself; that the informant himself was suspected of and accused by the detective of participating in the burglaiy but had denied it; that the informant only had agreed to make the marijuana buy when he was asked to do so after he had been implicated in the burglaiy; and that there had been no past experience with the informant to test his reliability.
The foregoing data immediately raises a question as to the informant’s reliability and as to the reasonableness of the detective’s belief in his reliability, which the magistrate was deprived of evaluating.
While there may be merit in the contention that the exclusionary rule should not be extended beyond the limits to which it already has been extended by the appellate courts, the conduct here criticized is of the type which brought about the decision in People v. Cahan (1955) 44 Cal.2d 434 [ 282 P.2d 905 , 50 A.L.R.2d 513 ], in the first instance.
An intentional usurping of the decision-making process of the court in the manner done in this case clearly illustrates the need for a plainly enunciated rule that such conduct will invalidate a search warrant without regard to the effect of the omissions on probable cause.
I concur that the peremptory writ of mandate should issue directing respondent court to suppress the evidence obtained in the execution of the search warrant in question, for the reasons enunciated in Justice Gargano’s opinion.
Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
The testimony of Detective Southerland at the 1538.5 hearing clearly shows that the omitted material facts were within his knowledge, and he gives no reasonable explanation for leaving them out.
The writer of this opinion has attempted to reproduce the detective’s affidavit in support of the search warrant, with the missing information placed in it. Such operation produces an affidavit which would contain the following information (facts omitted from the original affidavit but within the detective’s knowledge according to his testimony at the 1538.5 hearing, are underscored):
1. A. Arceo, owner of a Gibson guitar, reported on June 16, 1975, to the Merced Police Department that said guitar and the guitar case had been stolen in a burglary of his residence on June 14,1975.
2. On June 18, 1975, affiant (Detective Southerland) was informed that the “confidential” informant in this case had offered to return the guitar to Arceo if the latter paid the informant $10.
3. Recause of this information affiant suspected the informant of the burglary and interrogated him about the $10 oiler.
4. Informant stated that he has observed the guitar in the possession of Arceo in the *531 past and that he is familiar with the guitar and the fact it belongs to Arceo.
5. Informant stated that he merely had told Arceo that “he thought he could get the guitar back for about $10 if he could find it.”
6. Informant stated that he had seen the guitar in the residence of Karl Morris (petitioner) in the last three days.
7. On June 18, 1975, informant produced the guitar case for affiant and stated to affiant that he had received it from Karl Morris in exchange for some kind of a stereo tape or stereo tape deck.
8. On the basis of the foregoing information, affiant, on June 18, 1975, accused the informant of committing the burglary and affiant denied doing sol
9. Affiant did not personally know the informer prior to this transaction but on the "Basis of general knowledge knew him to be on the “fringes of crime,” although affiant had no knowledge of any prior criminal convictions against informant. ~
10. On June 18, 1975, affiant to informant that informant might be prosecuted for the Arceo burglary.
11. Because of the foregoing facts, affiant did not know on June 18, 1975, whether informant’s statement as to the location of the guitar was reliable.
12. In order to make a test of his reliability affiant, after informant knew he was a suspect in the burglary, asked informant if he knew where he could make a “buy” of marijuana, and informant then stated that he did know and would make a buy for the police.
13. On the evening of June 18, 1975, informant made a controlled buy of a “lid” of marijuana for affiant and upon his return with the purchased marijuana informed the affiant that the subject he had bought it from had 1,300 lids of marijuana in his automobile? ■
14. That informant further offered to assist affiant in getting the guitar back and stated That he did not want to go to jail for something he didn’t do and that he knew where the guitar was and could get it back.
15. Because informant had implicated himself to the extent of revealing his own "possession of the guitar case and knowledge of the location of the guitar in the residence of K. Morris, where informant had admittedly visited and seen it, and "Because informant carried out the drug “buy” without any deceptive practice's "against the police, affiant believes the informant in this case to be reliable.
(NOTE: As to other necessary details, the affidavit was in standard form and is not objectionable.)