Sandlin

Kent Sandlin and Barbara Tustison pleaded no contest to several charges of cultivation and possession of marijuana for sale following the denial of their motions to suppress evidence seized pursuant to a search warrant. (Pen. Code, § 1538.5.) Sandlin contends there was no probable cause for issuance of the search warrant. Both contend the trial court abused its discretion when it refused to hold a Franks v. Delaware (1978) 438 U.S. 154 [ 57 L.Ed.2d 667 , 98 S.Ct. 2674 ] evidentiary hearing on the veracity of the affidavit in support of the search warrant. We affirm.

I

The facts are taken from the affidavit of Los Angeles County Sheriff Deputy Joseph Nunez. During the week of June 13, 1988, Nunez was told by a confidential informant that the informant was in a parking lot in Costa Mesa when he saw a woman, believed to be Tustison, engage in a drug sale. The woman arrived in a white Isuzu pickup truck and met with a man on a bicycle. The man called her “Barbara” several times. The woman removed a plastic bag containing a “green leafy substance” from the truck and gave it to the man in exchange for cash. He asked if it was “prime smoke.” The informant was positive the…

Dissenting. —I would reverse and remand for a Franks (Franks v. Delaware (1978) 438 U.S. 154 [ 57 L.Ed.2d 667 , 98 S.Ct. 2674 ]) hearing on the veracity of Nunez’ statements regarding his independent observations of Sandlin and Tustison. The “substantial showing” required by Franks requires only an offer of proof to directly controvert the affiant’s statements. That offer must include affidavits or statements of reliable witnesses, or explanations for their absence. Here the two defendants submitted declarations, signed under penalty of perjury, directly controverting the affidavit. The declarations carried with them the clear implication that the allegedly false statements were made “ ‘knowingly and intentionally, or with reckless disregard for the truth.’ ” (People v. Luttenberger (1990) 50 Cal.3d 1, 10 [ 265 Cal.Rptr. 690 , 784 P.2d 633 ].)

In U.S. v. Johns (9th Cir. 1988) 851 F.2d 1131 , the defendants’ allegations that they did not do what was alleged in the affidavit merited an evidentiary hearing when those allegations were supplemented with affidavits of experts. (Id. at p. 1134.) Here the only conceivable supporting proof for Sandlin or Tustison would have been a…

Kent Sandlin and Barbara Tustison pleaded no contest to several charges of cultivation and possession of marijuana for sale following the denial of their motions to suppress evidence seized pursuant to a search warrant. (Pen. Code, § 1538.5.) Sandlin contends there was no probable cause for issuance of the search warrant. Both contend the trial court abused its discretion when it refused to hold a Franks v. Delaware (1978) 438 U.S. 154 [ 57 L.Ed.2d 667 , 98 S.Ct. 2674 ] evidentiary hearing on the veracity of the affidavit in support of the search warrant. We affirm.

The facts are taken from the affidavit of Los Angeles County Sheriff Deputy Joseph Nunez. During the week of June 13, 1988, Nunez was told by a confidential informant that the informant was in a parking lot in Costa Mesa when he saw a woman, believed to be Tustison, engage in a drug sale. The woman arrived in a white Isuzu pickup truck and met with a man on a bicycle. The man called her "Barbara" several times. The woman removed a plastic bag containing a "green leafy substance" from the truck and gave it to the man in exchange for cash. He asked if it was "prime smoke." The informant was…