I concur.
I agree completely with the court’s opinion on federal preemption of electronic surveillance. On the subject of the search warrant, however, I concur under compulsion of People v. Hamilton (1969) 71 Cal.2d 176 [77 Cal.Rptr. 785, 454 P.2d 681].
The admonition to magistrates on the improvident issuance of search warrants, and on the two-pronged requirements of Aguilar v. Texas (1964) 378 U.S. 108 [12 L.Ed.2d 723, 84 S.Ct. 1509], is well advised. With relatively simple effort and a minimum of cerebration, issuing judges can prevent the embarrassment that is theirs, and the potential injustice to society, when a faulty warrant prevents evidence from being introduced at a trial.
On the other hand, there are also two-pronged mitigating considerations for reviewing courts. First, the exigent circumstances under which search warrants are originally sought often preclude careful preparation and thoughtful consideration by the magistrate; the motor vehicle in transit here is a typical example of the necessity for haste. Second, the lay character of those who generally prepare affidavits for warrants suggests the documents will seldom be drafted with consummate legal skill.1
The manner in which warrants should be interpreted has divided courts from Draper v. United States (1959) 358 U.S. 307 [3 L.Ed.2d 327, 79 S.Ct. 329], through Aguilar and its progeny, down to United States v. Harris (1971) 403 U.S. 573 [29 L.Ed.2d 723, 91 S.Ct. 2075]. Often as a last refuge, reliance upon an illusory test of “common sense” has been employed in a wide variety of search and seizure contexts. For example, in United States v. Ventresca (1965) 380 U.S. 102, 109 [13 L.Ed.2d 684, 689, 85 S.Ct. 741], Justice Goldberg wrote that the affidavit should be “read in a commonsense way.” In the same opinion he insisted that “affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.” Justice Black, dissenting in Katz v. United States (1967) 389 U.S. 347, 366 [19 L.Ed.2d 576, 591, 88 S.Ct. 507], stated that “common sense requires ... a liberal construction.” Conflicting views in Spinelli v. United States (1969) 393 U.S. 410 [21 L.Ed.2d 637, 89 S.Ct. 584], invoked the same doctrine: Justice Harlan, for the majority, wrote, “[Ijssuing magistrates are not to be confined ... by restrictions on the use of their common sense” (id. at p. 419 [21 L.Ed.2d at p. 645]); Justice Fortas, disagreeing in the same case, maintained that “a policeman’s affidavit is entitled to common-sense evaluation.” (Id. at p. 439 [21 L.Ed.2d at p. 657].) *902Justice Black, dissenting in Vale v. Louisiana (1970) 399 U.S. 30, 36 [26 L.Ed.2d 409, 415, 90 S.Ct. 1969], repeated his earlier opinion for the majority in Preston v. United States (1964) 376 U.S. 364 [11 L.Ed.2d 777, 84 S.Ct. 881], that “common sense dictates that reasonableness varies with the circumstances of the search.” In United States v. Harris, supra, at page 583 [29 L.Ed.2d at p. 734], Chief Justice Burger wrote that “Common sense . . . would induce a prudent and disinterested observer to credit these statements.” And even a majority of this court spoke of “a commonsense interpretation” in People v. Superior Court (Johnson) (1972) ante, pp. 704, 711 [100 Cal.Rptr. 319, 493 P.2d 1183].
Whatever may be the appropriate test, I have urged numerous times that this court must give law enforcement officers every encouragement to seek warrants, rather than to compel them to depend upon their hasty and competitive judgment in the field. (See my dissents in People v. Scoma (1969) 71 Cal.2d 332, 340 [78 Cal.Rptr. 491, 455 P.2d 419]; Péople V. Hamilton, supra, at p. 183; People v. Sesslin (1968) 68 Cal.2d 418, 431 [67 Cal.Rptr. 409, 439 P.2d 321].) An excessively restrictive interpretation of affidavits, or as the high court in Ventre sea, supra, put it, a “grudging or negative attitude by reviewing courts toward warrants” will in the long run “tend to discourage police officers from submitting their evidence to a judicial officer before aoting.” (380 U.S. at p. 108 [13 L.Ed.2d at p. 689].)
It is of vital importance to society, to suspects, and for the protection of law enforcement officers themselves, that probable cause be determined by a “neutral and detached magistrate.” (Johnson v. United States (1948) 333 U.S. 10, 14 [92 L.Ed. 436, 440, 68 S.Ct. 367].) To this end. “it obviously is not desirable to place unnecessary burdens” upon the use of warrants. (People v. Keener (1961) 55 Cal.2d 714, 723 [12 Cal.Rptr. 859, 361 P.2d 587].)
Were it not for Hamilton and if we were writing on a clean slate, I would be inclined to treat the instant warrant—though certainly it is no model— somewhat more tolerantly, and to find it does not offend the Fourth Amendment, or article I, section 19, of the Constitution of California.
The petition of the real party in interest for a rehearing was denied May 23, 1972.
Here more expertise could have been expected, since a deputy district attorney personally appeared before the magistrate.