The opinion
TOBRINER, J., Dissenting.
The issue in this case is whether the order of the superior court suppressing the items seized from the 41st Place and 59th Street residences is supported by substantial evidence. A review of the record before the superior court demonstrates that the evidence, and inferences reasonably derived from that evidence, is sufficient to sustain the superior court’s determination.
Section 1538.5, subdivision (i) expressly endows the defendant with the right to obtain a determination of the superior court as to “the validity of a search or seizure de novo on the basis of the evidence.” (Italics added.) Our task is therefore to review the determination of the superior court in order to find whether substantial evidence in the record supports the rulings of the superior court. (People v. Superior Court (1969) 71 Cal.2d 265, 274 [ 78 Cal.Rptr. 210 , 455 P.2d 146 ]; People v. Superior Court (1970) 9 Cal.App.3d 203, 209 [ 88 Cal.Rptr. 21 ]; People v. Superior Court (1970) 3 Cal.App.3d 476, 488 [ 83 Cal.Rptr. 771 ]; Bergeron v. Superior Court (1970) 2 Cal.App.3d 433, 436 [ 82 Cal.Rptr. 711 ]; People v. Superior Court (1968) 264 Cal.App.2d 165, 166 [ 70 Cal.Rptr. 362 ], Clearly we do not perform the role of a trial court here and preside over a third de novo hearing of the issue.) 1
I now turn to a review of the evidentiary record before the superior court. In such a review, we must observe the well-established principle that in an appellate proceeding “all conflicts must be resolved in favor of the respond *716 ent, and all legitimate and reasonable inferences indulged to uphold the findings of the trial court if possible.” (Leonard v. Rose (1967) 65 Cal.2d 589, 593 [ 55 Cal.Rptr. 916 , 422 P.2d 604 ].) By the same token, this court is bound to reject any inference contrary to the finding of the trial court unless on the record such contrary inference is the only one which can reasonably be drawn. (See Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72 [ 64 Cal.Rptr. 785 , 435 P.2d 553 ].)
We begin with the asserted justification for search of the 59th Street residence. The affidavit of Sergeant James of the Los Angeles Sheriff’s office shows that defendant, Stanley Johnson, who was engaged in forging and selling drivers’ licenses, lived at that address, that Deputy Germany bought a forged license from Stanley at Ralph’s Market, and that Ralph’s Market was located near the 59th Street residence. Finally, the record shows that on one occasion Levy, a probably reliable informer, talked to Stanley at that address, and Stanley told Levy that Stanley could get licenses for Levy. One could reasonably infer from the affidavit that (a) on that occasion Stanley supplied Levy with blank license forms, and (b) this transaction took place on November 30 or December 1 of 1969. The record, however, does not compel such inferences, and in fact, while the trial court drew inference (a), it declined to draw inference (b), stating that “there is no spelling out of a date with any sufficiency as to' when this occurred.”
The fact that Johnson lived at 3130 West 59th Street, and engaged in criminal activity near that place, is plainly not enough to justify a search of his residence. If we add the fact that at some uncertain date, possibly long before the date of the affidavit, Levy received license blanks at the 59th Street address, we have an additional fact supporting the possible inference that Levy saw those blanks during the month preceding the search, and perhaps that the blanks were still on the 59th Street premises. But the trial court could reasonably refuse to draw those inferences, and insist upon a greater measure of specificity in the affidavit to justify the search.
Turning now to the search of the 41st Place location, we again find substantial evidence to support the superior court’s finding. This search rested on information given to Sergeant James by an unnamed and undescribed informant of unproven reliability. The information was that “Stanley Johnson was aware that his residence at 3130 West 59th Street, Los Angeles was under observation by law enforcement officers and subsequently moved all or part of his equipment used in the making of false identification, to 620 West 41st Place, Los Angeles, upstairs, the downstairs being vacant. He further stated that the persons residing at that location were known to him as ‘T.J. and Betty.’ The informant further stated that he observed *717 blank checks, blank drivers’ licenses, and fluid used in the operation of making drivers’ licenses, at 41st Place, Los Angeles.”
The majority opinion ackowledges that the affidavit must contain facts to show the reliability of the informant, but asserts that “his reliability would appear to have been established by the detailed nature of his observations and by corroborating information about the 59th Street address.” (Ante, pp. 713-714.) The majority correctly observe, however, that the informant’s statements regarding Stanley Johnson are conclusionary (ante, p. 713) and that his reference to fluid used in making licenses may constitute an opinion which the informant was not qualified to render. (Ante, p. 713.) We are left with the assertions that Johnson moved “all” or “part of his equipment” to 41st Place, that T.J. and Betty live there, and that the informant saw blank checks and licenses. The informant does not tell us specifically what equipment was moved. He provides no surnames or descriptions for T.J. and Betty. He does not state when he saw the blank checks and licenses. His affidavit, in sum, is not the precise and detailed account of a careful observer. (Cf. Draper v. United States (1959) 358 U.S. 307 [ 3 L.Ed.2d 327 , 79 S.Ct. 329 ].)
As for corroboration, all that the informant said about the 59th Street address is that Stanley knew the police were watching that address and moved all or part of his equipment elsewhere; the record contains nothing to corroborate either statement. Nor is there any corroboration for the informant’s assertions respecting the 41st Place location.
The affidavit averred that the informant had previously given information which led to the arrest of a forgery suspect. The affidavit does not assert that the suspect had been convicted, or that the information supplied had been verified in any other fashion. Certainly the fact that the informant had once supplied the police with data of uncertain reliability does not transform him into a witness of established reliability.
The majority opinion states that “there is some question whether the affidavit showed probable cause to search the 41st Place location” (ante, p. 17), but concludes that doubtful or marginal cases should be resolved in favor of upholding the warrant. This conclusion mistakes the function of an appellate court in reviewing a determination under Penal Code section 1538.5. Since the findings of the superior court must be upheld if supported by substantial evidence, including all reasonable inferences which can be drawn in support of those findings, doubtful or marginal cases are not resolved for or against the warrant—they are resolved in favor of the determination of the superior court.
I submit that the majority opinion distorts the role of this court in hold *718 ing that it should reverse the ruling of the superior court, despite the fact that the holding is supported by substantial evidence. The result of such misconception of our function will be to plunge an overburdened court into the task of upsetting rulings based upon substantial evidence—a twisting of the decisions, the statute and the synchronization of the judicial tribunals.
I conclude that the affidavit was clearly insufficient to justify search of the 41st Place location. The search of the 59th Street residence is somewhat closer, but, in accord with the accepted principles of appellate review under section 1538.5, I would resolve both issues in favor of affirming the determination of the superior court to suppress the evidence seized at those locations.
Peters, J., and Sullivan, J., concurred.
The petition of real parties in interest Johnson and Crowder for a rehearing was denied March 30, 1972. Peters, J., Tobriner, J., and Sullivan, J., were of the opinion that the petition should be granted.
The language of the United States v. Ventresca (1965) 380 U.S. 102, 109 [ 13 L.Ed.2d 684, 689 , 85 S.Ct. 741 ], that “the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants,” would appear to state a principle for the trier of fact, not a standard of appellate review. Once the trier of fact has made its finding of fact, federal appellate courts do not reverse that finding unless they adjudge it to be “clearly erroneous.” (Jackson v. United States (1965) 353 F.2d 862, 864-865 [ 122 App.D.C. 324 ]; 3 Wright, Federal Practice and Procedure (1969) p. 130; see United States v. Montos (5th Cir. 1970) 421 F.2d 215, 219, fn. 1 .)