The opinion
*533 BROWN (G. A.), P. J.
I dissent.
First, I disagree that as a matter of law the record herein compels a finding by this court that the omission of the information from the affidavit was done intentionally and deliberately for the purpose of withholding data from and deceiving the magistrate. The petitioner makes no such contention. 1
The thrust of petitioner’s argument is that where information is withheld from the affidavit, whether intended or negligent, the situation is different from that where information is intentionally or carelessly included in the affidavit in that in the former case such excluded information, if it is material to probable cause, should result in automatically quashing the affidavit. Petitioner does not attempt to make a clear distinction between an intended and a careless omission but argues merely that in either case the affidavit is “constitutionally defective.”
By denying the motion to suppress, the trial court inferentially found against petitioner on this factual issue. We are, of course, bound by the factual determinations of the trial court, and we must infer findings in favor of the trial court’s determination in support of the order, rather than seek a basis for upsetting it. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [ 118 Cal.Rptr. 617 , 530 P.2d 585 ]; People v. Superior Court (Peck) (1974) 10 Cal.3d 645, 649 [ 111 Cal.Rptr. 565 , 517 P.2d 829 ].)
Notwithstanding petitioner’s failure to make the contention which is the basis of the majority’s opinion, and despite the applicability of the substantial evidence rule to the trial court’s order, the majority laces its opinion with such tendentious and argumentative conclusions as “Detective Southerland deliberately withheld pertinent factual information pertaining to the informant’s reliability.” “Detective Southerland knew that his informant was totally unreliable.” “It was for this very reason *534 that Southerland asked the suspect if he knew where to obtain some marijuana and then proceeded to create an aura of reliability by arranging a controlled buy.” “Yet the detective deliberately omitted all of these pertinent facts from his affidavit. Instead, he worded the affidavit in the manner to suggest to the unsuspecting reader that the informant was reliable because he provided information leading to a controlled buy of marijuana before he told the detective that he had seen the stolen guitar in petitioner’s house. Clearly, the conduct of the detective transcended negligence.” “Here the record leads, inescapably, to the conclusion that Detective Southerland not only concealed his own distrust of the informant and the information upon which the distrust was grounded but that he deliberately attempted to manufacture reliability through the auspices of a controlled buy and then concealed this important fact as well.”
It is submitted that the above conclusional statements might be warranted if they had been made by the trial court, but the record in this case is such as to preclude this court from coming to those conclusions as a matter of law. The facts before the court are clearly susceptible of an interpretation that would impute only careless conduct to the officer.
If it was a careless omission, as the trial court impliedly found, the case could be disposed of under the persuasive precedent of People v. Barger (1974) 40 Cal.App.3d 662, 668-669 [ 115 Cal.Rptr. 298 ]. Under that case the omitted material should be placed in the affidavit and probable cause determined based on the included material, thus disposing of the case upon precedent without reaching for the issue of intentional and deliberate omission. An appellate court should decide a case upon grounds as narrow as possible and not reach out for bases not necessary to the disposition or which have not been fully explored by the parties.
If the omitted information is included, it does not as a matter of law render the informant unreliable. This necessarily follows for the reasons stated by the Attorney General.
Secondly, assuming I am in error in my conclusion that this omission was not intentional and deliberate as a matter of law, I would nonetheless affirm the trial court.
In Theodor v. Superior Court (1972) 8 Cal.3d 77, 96 [ 104 Cal.Rptr. 226 , 501 P.2d 234 ], the court said: “However, if a magistrate is presented with false or inaccurate information in an application for a warrant, the *535 interences he draws from such information are not based on reality but on the fantasies of the misinformed or misinforming affiant. 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.” (Italics added.)
The Theodor case dealt with inaccurate included information. People v. Barger, supra, 40 Cal.App.3d at pages 668-669, extended the same philosophy to excluded information. The majority herein approves Barger and concedes that had the information been carelessly omitted, the facts should be added to the affidavit and probable cause tested in the light of the additional information.
From these precepts, it must be apparent that there is not, and indeed the petitioner does not contend that there is, one whit of difference in the effect on the magistrate’s inference-drawing process whether the omission is in good faith, negligent or intended. In each case, the magistrate does not have the information which may be pertinent to determining the issue of probable cause.
It is also inescapable that this defect in the inference-drawing process can be cured by adding the excluded information whether the omission is in good faith, negligent or intentional. By adding the excluded information and testing probable cause in the light of the additional information the processes of justice, the defendant, the victim and the pu'blic have in each instance been deprived of nothing. On the other hand, if the warrant is automatically quashed the defendant will, in most cases, go free, and society is the loser.
It follows that the only justification for automatically quashing the warrant is reliance upon the necessity of (1) allegedly preventing interference with the “integrity of the judicial system” and (2) punishing the officer.
The former, largely meaningless, all inclusive generality is usually relied upon to justify a conclusion where there is no readily recognizable, more specific rationale upon which to base a result. So far as the term may be intended to relate to the regard and respect of the public and the criminal defendant for the judicial system, experience with the exclusionary rule demonstrates the opposite.
*536 That rule has resulted in impracticable and technical hair-splitting analyses (such as that undertaken in this case) equivalent in many respects to determining the solution to that classical conundrum of how many angels can dance on the head of a pin. But does the exclusion of the evidence cause such punishment to the officer as to have a deterrent effect upon the officer’s future misconduct? While to my knowledge there are no definitive studies on the subject, it is common knowledge that the reaction of the officer and the public generally is that the officer did his job in catching the suspect and providing the evidence to convict but the (expletive) court let him go. The officer is commended—the court is condemned. The public is appalled and the victim is shocked. As a consequence, the deterrent effect of rendering the evidence inadmissible has not worked out in practice and has turned out to be a myth, largely because the sanction imposed does not reach the heart of the problem. And until some criminal and/or civil penalty is brought directly, to bear upon the officer and the public entity for which he is employed, the deterrent effect will continue to be minimal—certainly too minuscule to justify the price the public pays in return.
The realistic, visible and practical result has been to clog our court calendars in endless and confused debate, invoke the derision of criminals who have “beat the rap” in the face of perfectly competent suppressed evidence and to cause the citizenry to have grave concern for the “integrity of the judicial process” and to lose respect for a system whose rules are apparently designed to let criminals go free at the expense of the innocent victim and the public. There are far better and more effective ways to deter illegal conduct by officers, such as a statutoiy suit for damages against the officer and the public entity for which he works. One such program is explicated in the cogent and forceful statements of Mr. Chief Justice Burger in his dissent in Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, 412-428 [ 29 L.Ed.2d 619, 636-645 , 91 S.Ct. 1999, 2012-2020 ],
While the exclusionary rule is still with us, and as an intermediate appellate court we are bound by its tenets, I do not think it should be extended beyond the limits to which it has already been extended by higher courts. As Professor Anthony Amsterdam, who is no enemy of the exclusionary rule, has noted: “As it serves this function, the rule is a needed, but grudgingly taken medicament; no more should be swallowed than is needed to combat the disease. Granted that so many criminals must go free as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity *537 inflicts gratuitous harm on the public interest...(Amsterdam, Search, Seizure, and Section 2255: A Comment (1964) 112 U.Pa.L.Rev. 378, 389; fn. omitted.) (See also Kaplan, The Limits of the Exclusionary Rule (1974) 26 Stan. L. Rev. 1027 .)
The Supreme Court has already opened the way to a restriction of the exclusionary rule. United States v. Calandra (1974) 414 U.S. 338 [ 38 L.Ed.2d 561 , 94 S.Ct. 613 ] and Michigan v. Tucker (1974) 417 U.S. 433 [ 41 L.Ed.2d 182 , 94 S.Ct. 2357 ] manifest not only a growing disenchantment with the rule but also the court’s belief that it should not be universally applied.
I would deny the writ.
A petition for a rehearing was denied May 21, 1976. Brown (G. A.), J., did not participate therein. The petition of the real party in interest for a hearing by the Supreme Court was denied June 17, 1976.
The most the petitioner has said is; “In the present case, it must be said that Officer Southerland intentionally prepared an affidavit which omitted information of which he had knowledge. (The evidence does not show that the officer realized that his omission deceived the court, nor does it show the extent of his experience in preparing such affidavits.)” Obviously, he intentionally prepared the affidavit which omitted information. However, this is not the equivalent of intentionally and deliberately omitting the information to deceive the magistrate. By petitioner’s caveat in the parentheses, he has disavowed any knowledge of whether the omission was intended or was innocent or careless.