What is the test for probable cause in a search warrant application based on a sworn statement of an informant?

California, United States of America


The following excerpt is from People v. Gonzales, E070827 (Cal. App. 2020):

In the context of a search warrant, one is looking at an informant's statement within an affidavit in an ex parte situation. (Ruiz v. Superior Court, supra, 26 Cal.App.4th at p. 940.) At a preliminary hearing, the defendant has the opportunity to cross-examine the police officer about the informant's statements and the opportunity to call witnesses to impeach the testimony of the prosecution's witnesses. (Id. at pp. 941-942.) Further, the law permits probable cause, at a preliminary hearing, to "be based in whole or in part upon the sworn testimony of a law enforcement officer . . . relating the statements of declarants made out of court offered for the truth of the matter asserted." ( 872, subd. (b).) The law enforcement officer must have "either five years of law enforcement experience or [have] completed a training course . . . that includes training in the investigation and reporting of cases and testifying at preliminary hearings." ( 872, subd. (b).) The preliminary hearing and search and seizure procedures are roughly analogous, in that they both involve probable cause (Ruiz, at p. 941), but there are sufficient differences such that we do not find defendant's reliance on the search and

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seizure requirements to be persuasive. Therefore, we are not persuaded that the trial court erred.

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