In this case, the sole issue is whether illegally obtained information contained in a search warrant affidavit tainted the magistrate’s decision to issue the warrant. Under the "independent source" exception to the exclusionary rule, evidence discovered in an unconstitutional search is admissible if the evidence was also obtained from an independent untainted source. (Murray v. United States (1988) 487 U.S. 533, 537-538 (Murray).) When a search warrant is obtained after an illegal search, the prosecution must show "that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it" for the independent source rule to apply. (Id. at p. 540.) In Murray, the illegal entry was not mentioned in the search warrant application.

The Court of Appeal, Third Appellate District has held that if a warrant affidavit includes illegally obtained information, it is not enough for the prosecution to establish that the affidavit supports a finding of probable cause after the improper portion is deleted; Murray requires the court to make a factual finding that the magistrate’s decision was not influenced by the illegally obtained information. (People v. Koch (1989) 209 Cal.App.3d 770, 788 (Koch).) We disagree with the Koch court’s view that such a finding is required. Most federal and state jurisdictions to consider the matter have concluded that in order to determine whether the magistrate’s decision was tainted, the court need only examine the warrant application to see if probable cause is established after the improperly discovered information is excised. We are persuaded this is the correct approach. Here, we conclude that the search warrant affidavit contained sufficient legally obtained information to provide probable cause. Accordingly, we affirm the trial court’s denial of appellant’s motion to suppress.

BACKGROUND

Officers serving a search warrant at a residence on Mirabel Road in Forestville discovered 83 marijuana plants growing under lights in the basement. The basement was accessible through an interior trap door, which was locked with a padlock, and a small exterior door, which was locked with a combination lock. Bruce Nicolaisen, who lived on the property, was confined to a wheelchair and could not have used either door to the basement. He told an officer he did not have the key or combination to the locks, and refused to say who did. Nicolaisen’s roommate, Lynnette Kester, arrived after the officers served the warrant. She told an officer that a friend of Nicolaisen’s named Carl came by daily to take care of the pool and a garden at the back of the property. While watching Nicolaisen’s residence during the previous week, officers had seen a visiting vehicle they identified as belonging to appellant Carl William Weiss. Department of Motor Vehicles records provided a description of Weiss that matched Kester’s description of "Carl."

The officers decided to question Weiss about the marijuana growing operation in Nicolaisen’s house. They arrived at Weiss’ home on Giovanetti Road in Forestville late in the afternoon. Weiss answered the door, and an officer asked to come in and speak with him. Weiss asked if the officer had a search warrant. The officer said he did not. Weiss stepped outside, and the officer said he wanted to ask about Weiss’ potential involvement in marijuana cultivation. The remainder of the search team had arrived by this time, amounting to at least six officers. Weiss looked around nervously, and said he did not want to talk. One officer walked around the house, which was built on a slope and rested on posts in the rear. In the area beneath the rear of the house, the officer observed a variety of materials used for indoor marijuana cultivation. Other officers who were in the driveway in front of the house observed several five-gallon plastic buckets painted with camouflage colors next to the driveway, a larger brown barrel wedged between trees with an irrigation line connected to its bottom, and a section of plastic pipe painted in camouflage colors running down the hill toward a vegetable garden.

The officers left about ten minutes after their arrival, but two of them guarded the entrance to Weiss’ driveway, which was not visible from the house. After about an hour, Weiss drove away from his house but was stopped and detained by the officers. They recovered a key from him that was later found to fit the lock on Nicolaisen’s trap door. Weiss was taken back to his house, which the officers entered and secured pending the issuance of a search warrant.

The affidavit supporting the search warrant application described the following: (1) the service of a warrant and the legal search at Nicolaisen’s house; (2) the information provided by Kester; (3) the identification of Weiss from Department of Motor Vehicles records; (4) the interview with Weiss at his home; (5) the observation of the water barrel and the pipeline in front of his house and the growing materials at the rear; and (6) Weiss’ detention as he was attempting to leave home. An immediate nighttime search was requested and granted. The officers served the warrant shortly after midnight. They discovered a shed behind Weiss’ house, which appeared to be the site of a hastily uprooted marijuana garden. The next morning, the officers followed a trail of fresh marijuana debris and found 22 freshly cut plants in a wooded area about 250 yards from Weiss’ house.

Weiss and Nicolaisen were charged jointly with marijuana cultivation and possession for sale. Nicolaisen moved to suppress the evidence seized from his residence, on the grounds that the warrant was based on 3-year-old information from a confidential informant, and the warrant application omitted or misstated facts that explained Nicolaisen’s elevated electricity and water usage and the results of thermal imaging tests at his house. The motion was granted and the charges against Nicolaisen were dismissed. On Weiss’ motion to suppress, the court ruled that the agent who observed the growing materials beneath the house had no justification for searching down the hillside, and the court suppressed those observations. However, the court determined that the warrant application provided sufficient probable cause after the illegal observations were excised. Therefore, the court upheld the warrant.

Weiss submitted supplemental points and authorities, arguing that Koch, supra, required the court to go further and determine whether the search behind the house had affected either the officers’ decision to seek a warrant or the magistrate’s decision to grant the warrant. The court then made a supplemental finding that the officers would have sought the warrant and the magistrate would have granted it without the information derived from the illegal search. Weiss had conceded at the hearing on his motion that the officers would have sought the warrant even if they had not looked beneath his house. Regarding the effect of this information on the magistrate’s decision, the court found "that was not a major consideration by the Court in issuing the warrant." Weiss changed his plea to no contest on the cultivation charge, and this appeal followed.

DISCUSSION

When the superior court sits as the finder of fact on a motion to suppress brought in the first instance in superior court, we must uphold the court’s factual findings if they are supported by substantial evidence. However, we independently determine whether the facts establish probable cause, and whether suppression of evidence is required under federal constitutional standards. (People v. Lawler (1973) 9 Cal.3d 156, 160; People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223-1224; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.)

In Nix v. Williams (1984) 467 U.S. 431, the United States Supreme Court observed: "The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired." (Id. at pp. 442-443.) However, "[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position tha[n] they would have been in if no police error or misconduct had occurred." (Id. at p. 443.) Therefore, "[t]he independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." (Ibid.)

In Nix v. Williams, supra, 467 U.S. 431, the court was concerned with the "inevitable discovery" doctrine, a close relative of the independent source doctrine. The independent source doctrine was most recently considered and applied by the Supreme Court in Murray, supra, 487 U.S. 533. In Murray, officers investigating an illegal drug distribution conspiracy saw two vehicles leaving a warehouse. The vehicles were followed and lawfully seized. After learning the vehicles contained marijuana, officers forced entry into the warehouse and saw numerous bales wrapped in burlap. They left, kept the warehouse under watch, and applied for a search warrant without mentioning their entry into the warehouse or the observations they made there. The warrant was issued about eight hours after the initial entry. Upon reentering the warehouse, the officers seized 270 bales of marijuana and notebooks listing customers for the contraband. (Id. at pp. 535-536.)

The Murray court noted that the independent source doctrine has its roots in the earliest development of the exclusionary rule. (Id. at p. 537, citing Silverthorne Lumber Co. v. United States (1920) 251 U.S. 385, 392.) Murray reaffirmed the reasoning outlined in Nix v. Williams for the independent source exception to the exclusionary rule: " ‘When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.’ " (Murray, supra, 487 U.S. at p. 537, quoting Nix v. Williams, supra, 467 U.S. at p. 443.)

The petitioners in Murray invoked the policy of deterrence underlying the exclusionary rule, but the court was unpersuaded. "Petitioners’ asserted policy basis for excluding evidence which is initially discovered during an illegal search, but is subsequently acquired through an independent and lawful source, is that a contrary rule will remove all deterrence to, and indeed positively encourage, unlawful police searches. As petitioners see the incentives, law enforcement officers will routinely enter without a warrant to make sure that what they expect to be on the premises is in fact there. If it is not, they will have spared themselves the time and trouble of getting a warrant; if it is, they can get the warrant and use the evidence despite the unlawful entry. . . . We see the incentives differently. An officer with probable cause sufficient to obtain a search warrant would be foolish to enter the premises first in an unlawful manner. By doing so, he would risk suppression of all evidence on the premises, both seen and unseen, since his action would add to the normal burden of convincing a magistrate that there is probable cause the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it." (Murray, supra, 487 U.S. at pp. 539-540.)

The court also deemed it insignificant that in the case at bench the officers had effectively seized the marijuana before seeking a warrant. "[R]eseizure of tangible evidence already seized is no more impossible than rediscovery of intangible evidence already discovered. The independent source doctrine does not rest upon such metaphysical analysis, but upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawful seizure is genuinely independent of an earlier, tainted one (which may well be difficult to establish where the seized goods are kept in the police’s possession) there is no reason why the independent source doctrine should not apply.  [¶]  The ultimate question, therefore, is whether the search pursuant to warrant was, in fact, a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry, [fn. omitted] or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant." (Murray, supra, 487 U.S. at p. 542.)

The Murray court underlined the factual nature of the inquiry into whether there was a "genuinely independent source" by remanding the case for a finding on whether the officers would have sought a warrant if they had not earlier entered the warehouse, even though the Court of Appeal had been "absolutely certain" there was "no causal link whatever," and the District Court had determined the warrantless entry was partly motivated by a desire "to guard against the destruction of possibly critical evidence," which suggested the officers had already planned to obtain the evidence with a warrant. (Murray, supra, 487 U.S. at pp. 542-543.)

Murray, of course, is significantly different from our case because the warrant application in Murray did not refer to the illegal entry (as was also the case in Segura v. United States (1984) 468 U.S. 796, and People v. Bennett (1998) 17 Cal.4th 373). Here, the application included the observations made by the officer who searched illegally beneath Weiss’ house. A similar scenario was presented in Koch, supra, 209 Cal.App.3d 770. There, the defendant was arrested during a traffic stop for possession of a controlled substance. Officers entered his apartment, observed contraband, and included those observations in their application for a warrant, which was granted. (Id. at pp. 775-776.) On the defendant’s motion to suppress, the superior court excised from the affidavit the observations made during the illegal entry, found the remaining averments sufficient to establish probable cause, and denied the motion. (Id. at p. 777.) The Court of Appeal acknowledged that the superior court had followed the procedure adopted by both federal and California courts for testing the validity of warrants obtained partly on the basis of illegally obtained information. (Id. at p. 787, citing United States v. Grandstaff (9th Cir. 1987) 813 F.2d 1353, 1355; United States v. Veillette (1st Cir. 1985) 778 F.2d 899, 904; People v. Angulo (1988) 199 Cal.App.3d 370, 375; and People v. Gesner (1988) 202 Cal.App.3d 581, 589-590.)

However, the court decided "this line of analysis is no longer sufficient" after Murray, because "the prosecution must satisfy additional burdens before the taint of the earlier illegality may be said to have been purged." (Koch, supra, 209 Cal.App.3d at p. 787.) Koch concluded that for the independent source doctrine to apply in such a case, the court must make two explicit findings in addition to determining that the redacted affidavit established probable cause: (1) the officers would have sought a warrant if they had not entered the residence first; and (2) the magistrate would have issued the warrant if the information derived from that entry had not been included in the affidavit. Accordingly, the court remanded for further findings. (Id. at p. 788.)

Here, only the second of these findings is at issue because Weiss conceded below that the officers would have sought a warrant even if they had not known about the cultivation equipment beneath his house. As a result, the District Attorney did not recall the officer who drew up the warrant application to testify about the influence of that knowledge on the decision to seek a warrant, and Weiss cannot fairly contest the sufficiency of the evidence or the superior court’s finding on this point. We do not agree with the Koch court, however, on the nature of the second finding required by Murray. We follow the approach taken by the great majority of courts that have considered the issue - a finding that the redacted affidavit is sufficient to establish probable cause is enough to meet the burden of showing the magistrate would have issued the warrant without the illegally obtained information; no further finding is necessary.1

In a footnote, the Koch court suggested the prosecution might meet its burden of proving the magistrate would have issued a warrant either by calling the magistrate to testify, or "by arguing from the facts and circumstances already before the court that it is unlikely that the magistrate was influenced in favor of issuing the warrant by the illegally obtained information." (Koch, supra, 209 Cal.App.3d at p. 788, fn. 5.) However, a magistrate deciding whether to issue a search warrant is required to consider the "totality of the circumstances" set out in the affidavit when evaluating probable cause. (Illinois v. Gates (1983) 462 U.S. 213, 238-239; People v. Camarella (1991) 54 Cal.3d 592, 600-601; People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232.) Therefore, a magistrate who properly performed his or her function would have to testify that any material piece of information in the warrant application "affected" the probable cause determination,2 and a reviewing court would have to infer that all but the most trivial details "influenced" the magistrate. If, on the other hand, the improperly obtained information is deleted from the affidavit supporting the warrant application, and the affidavit still discloses a fair probability that the evidence sought will be found at the specified location (Illinois v. Gates, supra, 462 U.S. at pp. 238-239), a reviewing court can be confident that the warrant would have issued without regard to the unconstitutional search, and the second finding required by Murray is satisfied.

We recognize that retesting the warrant application for probable cause after excising the unconstitutionally obtained information is not entirely consistent with the notion that "the normal burden of convincing a magistrate that there is probable cause" must be supplemented by "the much more onerous burden of convincing a trial court that no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it." (Murray, supra, 487 U.S. at pp. 539-540.) There is some force in the argument that under our approach, an officer with probable cause sufficient for a search warrant has nothing to lose by verifying the presence of contraband through an unconstitutional search, and even by using the information gained in the search to bolster a subsequent warrant application. If the defendant moves to suppress in such a case, given the preexistence of probable cause (and the discovery of contraband in the defendant’s possession) it may not be difficult to convince a judge that the warrant would have been requested anyway, and the redacted affidavit will pass muster.

Nevertheless, we concur with other courts that have considered and rejected a literal reading of Murray’s comments on whether illegally obtained information "affected" the magistrate’s decision on a search warrant application. It has been noted that Murray is a plurality opinion,3 and that its remarks on the impact of an illegal entry on the magistrate’s decision were dicta since in Murray the warrant application included no improperly obtained information. (United States v. Restrepo, supra, 966 F.2d at p. 970, fn. 13; United States v. Markling, supra, 7 F.3d at p. 1317; see also 5 LaFave, Search and Seizure, supra, § 11.4(f), pp. 291-292.) Furthermore, Murray does not mention Franks v. Delaware (1978) 438 U.S. 154, 172, which established the rule that deliberately or recklessly false statements may be excised from a warrant application and probable cause reevaluated based on the remaining information. It makes little sense to impose a stricter standard where true but illegally obtained information is included in the affidavit. (United States v. Markling, supra, 7 F.3d at p. 1316.)

It is true the United States Supreme Court has never analyzed the procedure it adopted in Franks v. Delaware in terms of its impact on the deterrent function of the exclusionary rule. The petitioner in Franks conceded that the inaccuracies in the affidavit were irrelevant if other statements were sufficient to sustain probable cause. (Franks v. Delaware, supra, 438 U.S. at p. 172, fn. 8.) The Supreme Court has applied the Franks test only once, without discussing its ramifications. (United States v. Karo (1984) 468 U.S. 705, 719; see dissent at p. 736 [complaining that sufficiency of redacted affidavit was neither raised by petition nor briefed by parties].) Nevertheless, the Franks test has been widely applied in federal and state courts and it satisfies the Murray court’s overriding concern, which was that the exclusionary rule should not be applied in a way that puts law enforcement in a worse position than it would have occupied if no violation had occurred. (Murray, supra, 487 U.S. at pp. 537, 541; United States v. Herrold, supra, 962 F.2d at p. 1141; United States v. Gillenwaters, supra, 890 F.2d at p. 682.) We believe the Franks test is fully consistent with the independent source doctrine as interpreted by the United States Supreme Court, other federal courts, and most state courts. (See fn. 1, ante.)4

The search warrant application before us provides sufficient probable cause after the report of the incriminating materials under Weiss’ house is deleted. The officer’s affidavit shows that Weiss visited daily at a residence where a large quantity of marijuana was being cultivated, behaved evasively and nervously when confronted by the officers, and kept items regularly used in marijuana cultivation in plain view in his front yard (a water barrel with an irrigation line attached, and a pipeline painted with camouflage colors). This information establishes as a matter of common sense a fair probability that evidence of marijuana cultivation would be found at Weiss’ residence. (Illinois v. Gates, supra, 462 U.S. at pp. 238-239.) The superior court properly denied Weiss’ motion to suppress.

DISPOSITION

The judgment is affirmed.

_________________________

Parrilli, J.

We concur:

_________________________

Corrigan, Actg. P. J.

_________________________

Walker, J.

FOOTNOTES

1  See, e.g., U.S. v. Ford (1st Cir. 1994) 22 F.3d 374, 379; U.S. v. Herrold (3d Cir. 1992) 962 F.2d 1131, 1141-1143; U.S. v. Gillenwaters (4th Cir. 1989) 890 F.2d 679, 681-682; U.S. v. Restrepo (5th Cir. 1992) 966 F.2d 964, 969-970; U.S. v. Shamaeizadeh (6th Cir. 1996) 80 F.3d 1131, 1136; U.S. v. Markling (7th Cir. 1993) 7 F.3d 1309, 1315-1316; U.S. v. Reed (9th Cir. 1994) 15 F.3d 928, 933; State v. Gulbrandson (Ariz. 1995) 906 P.2d 579, 591; Williams v. State (Ark. 1997) 939 S.W.2d 264, 268; People v. Sprowl (Colo.App. 1989) 790 P.2d 848, 850-851; State v. Joyce (Conn. 1997) 705 A.2d 181, 185; People v. Bielawski (Ill.App. 1994) 627 N.E.2d 710, 713-715; State v. Seager (Iowa 1997) 571 N.W.2d 204, 212, footnote 5; State v. Hills (La.App. 1993) 626 So.2d 452, 454-455; Klingenstein v. State (Md. 1993) 624 A.2d 532, 538; People v. Melotik (Mich.App. 1997) 561 N.W.2d 453, 458; State v. Lieberg (Minn.App. 1996) 553 N.W.2d 51, 55; State v. McLean (N.C.App. 1995) 463 S.E.2d 826, 828-829; People v. Cassadei (App.Div. 1991) 565 N.Y.S.2d 286, 289-290; State v. Lange (Wis.App. 1990) 463 N.W.2d 390, 397, footnote 3.

Compare State v. Lewis (Alaska App. 1991) 809 P.2d 925, 929-930 [although police had probable cause for warrant before entry, they used information from illegal entry to obtain warrant; thus warrant was not "wholly independent" of entry]; Commonwealth v. Melendez (Pa. 1996) 676 A2d 226, 231 [source must be "truly independent" from both tainted evidence and from investigative team that conducted illegal search]; State v. Clark (Tenn. 1992) 844 S.W.2d 597, 600 [independent source doctrine does not apply if tainted information was presented to magistrate in warrant application]. See also U.S. v. Dawkins (D.C. Cir. 1994) 17 F.3d 399, 408 [illegally obtained information played "large role" in decision to grant warrant; other information not considered].

See generally 5 LaFave, Search and Seizure (3d ed. 1996) § 11.4(f), pp. 287-292.

2 Another practical problem with the Koch court’s suggestion that magistrates be called to the witness stand is that under Penal Code section 1538.5, subdivision (b), the magistrate who issued the warrant should ordinarily hear the motion to suppress, when consistent with other procedural rules. (See People v. Fleming (1981) 29 Cal.3d 698, 704-705, fn. 6 [requirement is permissive, not mandatory].)

3 Justice Scalia authored the lead opinion in Murray, joined by Justices Rehnquist, White, and Blackmun. Justice Marshall dissented, joined by Justices Stevens and O’Connor. Justices Brennan and Kennedy did not participate.

4 A literal reading of broadly stated principles of Fourth Amendment jurisprudence is often ill-advised when the factual situation at issue was not before the court that announced the principles. For instance, while the Supreme Court has characterized the independent source rule as applying to "evidence that has been discovered by means wholly independent of any constitutional violation" (Nix v. Williams, supra, 467 U.S. at p. 443), and to a lawful seizure that is "genuinely independent of an earlier, tainted one," (Murray, supra, 487 U.S. at p. 542), it is well established that a defendant has no standing to complain that police conduct violating someone else’s Fourth Amendment rights led to the discovery of evidence incriminating the defendant. (United States v. Payner (1980) 447 U.S. 727, 731, 735; People v. Badgett (1995) 10 Cal.4th 330, 343; 5 LaFave, Search and Seizure, supra, § 11.4, pp. 233-234.)

In this case, therefore, Weiss cannot (and does not) challenge the unconstitutional search of Nicolaisen’s residence. Nothing in the record suggests the officers would have arrived at Weiss’ front door without the information gained in the earlier search. Even if the officers had strictly observed Weiss’ constitutional rights, it could hardly be said in a literal sense that any observations they made at his residence were "wholly independent of any constitutional violation," or "genuinely independent of an earlier, tainted" search. Nor can it reasonably be maintained that by relying on such an "independent source" "the prosecution is not . . . put in a better position than it would have been in if no illegality had transpired." (Nix v. Williams, supra, 467 U.S. at pp. 442-443.)