Cal.1st: One unsupported informant is not probable cause, but three unsupported informants is the good faith exception; or “three wrongs make a right”

One unsupported informant is not probable cause, but three unsupported informants is the good faith exception because past cases suggested that it might be OK. People v. French, 201 Cal. App. 4th 1307, 134 Cal. Rptr. 3d 383 (1st Dist. 2011):

A search warrant affidavit contains information from three informants, none of whom are reliable. Each informant states two named individuals are selling drugs from a particular residence and drive a particular vehicle. The affiant officer corroborates those facts and determines that one of the alleged drug dealers has a history of narcotics offenses, but fails to include in the affidavit the dates and any details of those offenses. We conclude that the affidavit was insufficient to establish probable cause to issue the warrant, in part because the police corroboration of the informants’ statements and the “interlocking” details of those statements related to “pedestrian” facts. However, we find the good faith exception to the exclusionary rule applicable and affirm.

. . .

The minimal police investigation and lack of detail in the affidavit are factors weighing against application of the good faith exception. Where “neither the veracity nor basis of knowledge of the informant is directly established, the information is not so detailed as to be self-verifying and there is no logistical or other reason why verification from other sources cannot be achieved, … the failure to corroborate may be indicative that it was objectively unreasonable for the officer to believe in the existence of probable cause.” (Maestas, supra, 204 Cal.App.3d at pp. 1220–1221.) Nevertheless, the question under Leon, supra, 468 U.S. 879, “is not whether further investigation would have been reasonable, but whether a reasonable officer in [the affiant’s] position would have known that the affidavit, as it existed at the time it was to be presented to the magistrate, was legally insufficient without additional and more recent corroboration.” (Camarella, supra, 54 Cal.3d at p. 606, fn. omitted.)

We apply the good faith exception in the present case because broad language in several prior court decisions may have led a reasonable officer to conclude the affidavit presented a debatable question as to the existence of probable cause. In particular, several decisions contain language flatly suggesting that multiple unreliable informants can corroborate each other. Thus, in Sheridan, supra, 2 Cal.App.3d at page 489, the court stated, “[I]t may not be said as a matter of law, that two or more independent reports of previously untested informers each corroborating the other, of the same criminal activity, do not constitute probable cause for an arrest or search. … [S]imilar information from separate unrelated sources substantially increases the probability of its credibility.” In Balassy, supra, 30 Cal.App.3d at page 621, the court stated, “one ‘unreliable’ informer’s statements may be corroborated by those of another, if they were interviewed independently, at a different time and place. [Citations.]” (Accord, Green, supra, 117 Cal.App.3d at p. 205.) And in Laws, supra, 808 F.2d at page 103, the court stated, “The fact that two apparently unassociated persons make the same assertion increases the probability that it is true.” (See also Hyde, supra, 574 F.2d at p. 863, fn. omitted.)

. . .

As explained previously, all of those cases are distinguishable from the present case. However, because the broad language in the decisions in the previous paragraph was “arguably supportive legal authority” in favor of issuance of the warrant, we conclude the existence of probable cause was debatable and, therefore, the trial court properly denied the motion to suppress the evidence seized under the search warrant. (Garcia, supra, 111 Cal.App.4th at p. 723; see also People v. Pressey (2002) 102 Cal.App.4th 1178, 1191 [126 Cal. Rptr. 2d 162] [“Given the dearth of authority directly on point and the existence of potentially supportive precedent, the issue of probable cause was ‘debatable’ when the warrant herein was sought, even though the issue, upon examination, is not a particularly close one.”].)

[Note: So, California: what about the next time? Does this case mean that the good faith exception will not be applied, or is it still “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation” that warrants can, in fact, still be issued without probable cause? In this case, probable cause was “debatable” so there is no change in the law.]