Costello

The superior court ordered burglary and receiving stolen property charges against codefendants Richard Lee Costello, William George Bain and Stephen Paul Rainford dismissed after granting defense motions to suppress the fruits of a warrant search on grounds that the warrant affidavit, when retested without misrepresentations made in violation of the federal Constitution under Franks v. Delaware (1978) 438 U.S. 154 [ 57 L.Ed.2d 667 , 98 S.Ct. 2674 ] (Franks), failed to support probable cause. The People appeal from the dismissal. (Pen. Code, §§ 1238, subds. (a)(7), (c), 1538.5, subd. (a)(2), 1385, subd. (a).)

We reverse, concluding that the court went too far in striking parts of the search warrant affidavit and that the affidavit, when properly corrected and retested, supports probable cause.

Background

Evidence on the Franks hearing consisted of testimony from defendants’ joint preliminary hearing plus documents and testimony produced in the *435 superior court. We briefly summarize that evidence here and will set out additional details as needed in the discussion of issues that follows.

The charges arise from three 1984 burglaries occurring in Santa Rosa over a…

I respectfully dissent.

The majority gives lip service but does not genuinely adhere to the applicable standard of review. Indulging all presumptions in favor of the trial court’s findings, they must be upheld if supported by substantial evidence. Applying the standard properly, it seems to me inescapable that the trial court’s finding of reckless disregard for the truth as to all three misrepresentations in the affidavit is supported by substantial evidence and that, when redacted to reflect the true facts, the affidavit does not establish probable cause for issuance of the search warrant.

The trial court found that Olivares acted recklessly in stating that three men, rather than one, were loading the truck, that “unk. type equipment” was being loaded into the truck, and that the garage light was out but the subjects were using a flashlight. As the majority concedes, the recklessness finding as to the statement regarding “three males” is supported by substantial evidence, as Detective Smith had expressly reported to Olivares that one man was loading the truck. The majority then goes on to conclude that although “the existence of one deliberate misstatement in an affidavit…

The superior court ordered burglary and receiving stolen property charges against codefendants Richard Lee Costello, William George Bain and Stephen Paul Rainford dismissed after granting defense motions to suppress the fruits of a warrant search on grounds that the warrant affidavit, when retested without misrepresentations made in violation of the federal Constitution under Franks v. Delaware (1978) 438 U.S. 154 [ 57 L.Ed.2d 667 , 98 S.Ct. 2674 ] ( Franks ), failed to support probable cause. The People appeal from the dismissal. (Pen. Code, §§ 1238, subds. (a)(7), (c), 1538.5, subd. (a)(2), 1385, subd. (a).)

We reverse, concluding that the court went too far in striking parts of the search warrant affidavit and that the affidavit, when properly corrected and retested, supports probable cause.

Evidence on the Franks hearing consisted of testimony from defendants' joint preliminary hearing plus documents and testimony produced in the superior court. We briefly summarize that evidence here and will set out additional details as needed in the discussion of issues that follows.

The charges arise from three 1984 burglaries occurring in Santa Rosa over a…