People v. Cook

CLARK, J., Dissenting.

The fundamental question presented is, of course, whether evidence obtained pursuant to a warrant issued in reliance on an affidavit containing deliberately false statements of *101 fact—lies—must be excluded, regardless of the effect of those lies on probable cause.

Assuming that the remedy fashioned by this court in Theodor v. Superior Court (1972) 8 Cal.3d 77 [ 104 Cal.Rptr. 226 , 501 P.2d 234 ] is the only alternative, the majority conclude that such evidence must be excluded. The Theodor remedy of course calls for excising the false allegations from the affidavit and then testing the remaining—presumably truthful—allegations for probable cause. (8 Cal.3d at pp. 100-101.) This remedy is inadequate when lies, rather than negligent misrepresentations, are involved, the majority note, because in such a case the remaining allegations cannot be presumed truthful. Had the magistrate known that the affiant was lying in making certain allegations, he might well have disbelieved some or all of the affiant’s remaining allegations. (Ante, pp. 86-87.)

Granted. Mere excision is, for the reason stated, an inadequate remedy for lies. However, this deficiency can easily be cured by holding that the judge conducting the Theodor hearing is to entirely reweigh the affiant’s credibility if he is found to have lied in part. That is, upon finding that the affiant lied in making the challenged allegations, the judge, bearing in mind the doctrine expressed in the maxim “falsus in uno, falsus in omnibus” (ante, p. 86), should be required to reweigh the affiant’s remaining allegations, testing for probable cause only those allegations—if any—he finds to be true. If allegations providing probable cause survive this scrutiny, the warrant should be upheld. 1

A possible objection to this proposal is that reweighing credibility is the one thing a reviewing court has no business doing. The answer to this objection is, of course, that reweighing credibility is the very endeavor upon which the superior court embarks in conducting a Theodor hearing into the question whether the affiant lied in making the challenged allegations. Having the affiant before it, having determined that certain of his allegations were lies, and having parties before it interested in *102 attacking or supporting his credibility as to the remaining allegations, the superior court is clearly in a better position than was the magistrate to assess credibility and then, depending upon that assessment, to determine probable cause.

Another objection, raised by the majority (ante, pp. 87-88), is that automatic exclusion of evidence obtained under the warrant is the only effective means of deterring lying in an affidavit in support of a search warrant. However, a police officer found by the superior court to have not merely “blundered” but to have deliberately lied under oath in preparing a search warrant affidavit is clearly subject to prosecution for perjury (ante, pp. 87-88) and to administrative discipline commensurate with the extreme gravity of his misconduct. Surely it is obvious that an officer contemplating perjury is much more likely to be deterred by a sanction penalizing him personally, possibly resulting in imprisonment and the end of his career, than by a sanction indiscriminately penalizing all law-abiding citizens by letting a criminal go free.

A related objection, also raised by the majority (ante, p. 87, fn. 10), is that, as a matter of purported fact, the guilty officer is not likely to be either criminally prosecuted or administratively disciplined. This objection not only manifests a curious cynicism concerning the rule of law in our society, but also underestimates the moral force of this court. If we were to make it unmistakably clear in this case that a police officer found by-the superior court to have lied under oath should be prosecuted for peijury, and that the Attorney General is obligated to uphold the law if for any reason the local prosecutor fails to do so (Cal. Const., art. V, § 13; Gov. Code, § 12550), I am confident justice would be done. 2

I would reverse the judgment and remand the case for proceedings consistent with this opinion.

. Respondent’s petition for a rehearing was denied October 18, 1978. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.

That this remedy is more than adequate to pass constitutional muster is confirmed by the high court’s recent decision in Franks v. Delaware (1978) 438 U.S. 154 [ 57 L.Ed.2d 667 , 98 S.Ct. 2674 ], discussed ante, page 88. There is, of course, absolutely no reason to believe that the draftsmen of article I, section 13 of the California Constitution intended to provide a criminal defendant greater protection in this respect than did the draftsmen of the Fourth Amendment to the United States Constitution. (See, e.g., People v. Maher (1976) 17 Cal.3d 196, 204 [ 130 Cal. Rptr. 508 , 550 P.2d 1044 ] (Clark, J., dis.); People v. Pettingill (1978) 21 Cal.3d 231, 252-254 [ 145 Cal.Rptr. 861 , 578 P.2d 108 ] (Clark, J., dis.).)

Consider the spot the district attorney, an elected official, would be in. The superior court, having found that the officer lied under oath, would expect prosecution to follow.The defense bar would blow the whistle on any dereliction of duty. “Investigative reporters” and organized groups of interested citizens would make the political price of such dereliction too costly.