Murtha

Appellant John Francis Murtha appeals following his conviction, based upon a plea of nolo contendere, to a charge of residential burglary. (Pen. Code, §§459-460, former subd. 1.) He asserts the court erroneously denied his motion to quash the search warrant and suppress the seized evidence. We affirm.

Statement of the Facts

On September 12,1989, Officer Anthony Welch of the Suisun City Police Department received a telephone call from Sergeant Cimino of the Fairfield Department of Public Safety. Cimino told Welch he had received an anonymous tip that appellant and Anthony Moraga were going to commit a burglary in Suisun City. The informant reported that appellant and Moraga were going to meet at a Round Table Pizza restaurant in Fairfield, and were then going to burglarize a white house with green trim on Buena Vista Avenue in Suisun City. The informant could not provide the address, but indicated that a blue four-wheel drive vehicle would be parked in front of the house.

Officers Welch and Rowe drove to Buena Vista Avenue and determined that the house at 52 Buena Vista matched the informant’s description. The officers performed a security check on the home, and found…

I concur in the judgment of

affirmance.

A. The Redacted Affidavit for Search Warrant Established Probable Cause for Its Issuance

Assuming arguendo, as Justice Kline’s lead opinion indicates, that the tape recording was made in violation of title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. 1 § 2510 et seq.) (hereafter the Act or Title III), after excision of all reference to it from the affidavit for search warrant, the remaining content of that affidavit furnished probable cause for issuance of the warrant and the searches made thereon. The trial court explicitly found that if the references to that tape-recorded conversation were stricken from the affidavit there was, nonetheless, “information [the informant’s telephone call] obtained other than on the tape . . . that a burglary was going to occur at a certain residence that was described .... Six hours later, the burglary occurs. The burglary is corroboration of the information by the informant.” (Italics added.) This finding, after consideration of the redacted affidavit, fully supports the trial court’s order denying appellant’s suppression motion based on the remaining averments of the…

I concur with the reasoning and conclusion of section II of the lead opinion. The warrant can be upheld because the supporting affidavit provides the requisite probable cause quite apart from any references to the illegally obtained tape recording. Therefore, I do not feel it necessary to address the questions contained in section I of the lead opinion.

Appellant John Francis Murtha appeals following his conviction, based upon a plea of nolo contendere, to a charge of residential burglary. (Pen. Code, §§ 459-460, former subd. 1.) He asserts the court erroneously denied his motion to quash the search warrant and suppress the seized evidence. We affirm.

On September 12, 1989, Officer Anthony Welch of the Suisun City Police Department received a telephone call from Sergeant Cimino of the Fairfield Department of Public Safety. Cimino told Welch he had received an anonymous tip that appellant and Anthony Moraga were going to commit a burglary in Suisun City. The informant reported that appellant and Moraga were going to meet at a Round Table Pizza restaurant in Fairfield, and were then going to burglarize a white house with green trim on Buena Vista Avenue in Suisun City. The informant could not provide the address, but indicated that a blue four-wheel drive vehicle would be parked in front of the house.

Officers Welch and Rowe drove to Buena Vista Avenue and determined that the house at 52 Buena Vista matched the informant's description. The officers performed a security check on the home, and found the rear…