Kaylor

Our response to the following question is dispositive. May a search or seizure warrant be maintained when (1) the supporting affidavit incorporated by reference over 155 pages of material, principally police reports, some of which were illegible, and (2) the magistrate did not read some of the reports which formed a part of the affidavit. We hold, under the facts of this case, that the search warrant fails and that, accordingly, the evidence seized in the search must be suppressed.

*454 By writ of mandate petitioner Doug Kaylor seeks review of the denial of a Penal Code section 1538.5 motion to suppress evidence seized in a search of his residence. Petitioner is currently charged with burglary, receiving stolen property, and conspiracy. These charges are based upon evidence obtained during a search pursuant to two search warrants. One warrant authorized a search of petitioner’s residence, and the other authorized a search of another residence.

I

A Nevada County deputy district attorney and two deputy sheriffs from the same county went to see Magistrate George Pifer at his home on the evening of March 9, 1979, at approximately 7 p.m. Their purpose was to obtain the two…

I dissent.

The majority, in a seemingly over-zealous quest to find some constitutional infirmity in the warrant process, seize upon the magistrate’s admitted failure to read every word of each police arrest report incorporated in the supporting affidavits, as a defect of sufficient magnitude to support their decision to invalidate the search warrants.

Admittedly, copies of some of the police report attachments were difficult to read if not totally illegible; however, it is clear that the vast majority of them, particularly those relied upon by the magistrate, were easily readable.

*459 The statement by the majority that, “The attachments were part of the affidavits; Xerox machines cannot be permitted to weaken the Constitution. We may fairly conclude that such illegible declaration or exhibits cannot form the basis for a probable cause ruling” appears ludicrous when considered in the context of the entire record. It does not appear in any way from the record that the illegible “Xerox machine” copies were the basis of the magistrate’s determination of probable cause. To assume so requires an indulgence in judicial imagination.

I find the following facts from the record to be…

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Robert D. Marshall and John W. Spittler, Deputy Attorneys General, for Real Party in Interest.

OPINION

REYNOSO, J.

Our response to the following question is dispositive. May a search or seizure warrant be maintained when (1) the supporting affidavit incorporated by reference over 155 pages of material, principally police reports, some of which were illegible, and (2) the magistrate did not read some of the reports which formed a part of the affidavit. We hold, under the facts of this case, that the search warrant fails and that, accordingly, the evidence seized in the search must be suppressed.

By writ of mandate petitioner Doug Kaylor seeks review of the denial of a Penal Code section 1538.5 motion to suppress evidence seized in a search of his residence. Petitioner is currently charged with burglary, receiving stolen property, and conspiracy. These charges are based upon evidence obtained during a search pursuant to two search warrants. One warrant authorized a search of petitioner's residence, and the other authorized a search of…