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Month: May 2016

Are you a Letter Inner or Not (Selfish)?

This question “Are We More Selfish Then Animals?” popped into my head while waiting frustrated and bewildered at the junction of my busy road. I counted the cars going past, the 22nd let me out! It took no more time for them but makes a massive difference to the poor sod waiting!

Givers, Takers, and Parasites.

We all experienced selfish behavior ranging from little to huge levels of selfishness, and even from those suppose to love us! We have all experience generosity, kindness, and unconditional acts of love. Are animals any better than us? Lets take a look;

Four main types of interactions between animals including Us;

Altruistic – Animals that behave in ways that reduce their fitness but increase the fitness of other individuals in the population (sacrifice). Extreme examples of sacrifice are shown in protecting young. One example is matriphagy (the consumption of the mother by her offspring) in the spider Stegodyphus. We do not let our own children eat us BUT they can suck us dry, however we would die for them.

Commensalism – Relationship between two organisms where one is helped and the other is unaffected. Example the Anemone fishes (Nemo) or Clown fishes (Fig 1) – live amid the tentacles of the anemones which protects them from predators. Predators are poisoned by the nematocysts (stinging cells) of the anemones.

Fig 1. Clown Fish (Who you calling Selfish?)

Parasitic – One organism, the parasite, lives off of another organism, the host, harming it and possibly causing death. The parasite lives on or in the body of the host. A few examples of parasites are tapeworms, fleas, barnacles, and humans. Parasitic people – those that expect everything and take without giving and hurt us along the way.

Mutualistic – Two organisms of different species “work together,” each benefiting from the relationship. One example is that of the Oxpecker (Fig 2) a bird that eats the parasites from, rhinoceros, zebra, and the antelope. In a relationship Two people working equally towards a common goal.

Fig 2. Oxpecker

SO where does that leave us?

Are we fundamentally self-interested? Studies have found that people’s first impulse is to cooperate rather than compete; that toddlers spontaneously help people in need.

Recent neuroscience studies have shown that when people behave altruistically, their brains activate in regions that signal pleasure and reward, similar to when they eat chocolate (or have sex). So does this mean we behave Altruistically because it makes us feel better therefore we are Selfish?

The evidence suggests we have deeply ingrained tendencies to act in either direction. Our challenge lies in finding ways to evoke the better angels of our nature. And that my friends comes down to CHOICE again.

When you see a poor fellow motorist waiting at a junction to come out- let them out, your feel good (like eating chocolate or having Sex) and your be a Altruist.

AN HONEST LIVING OR NOT!

Many animals work an “honest” living through their size, strength, and hunting prowess to survive. Likewise, we do the same to get what we want in life. If we are lacking in some way, we do what animals do to survive;

Deception, Treachery, and Downright Fraud

A selection of animals have chosen deception, treachery, and downright fraud to either resemble dangerous animals for protection (defensive mimicry). For example the Milk snake (Fig 1). This beautiful harmless Snake has a coloration that mimics the highly venomous Coral Snake and in doing so avoids being eaten by predators, very clever!.

Fig 1: Milk Snake

Some animals pass as a literal wolf in sheep’s clothing to get within striking distance of prey (aggressive mimicry). A strange and rather morbid feat of deception shown by the NimbochromisCichlids (Fig 2) is to lie limply on their sides on the lake bottom. When a curious scavenging fish approaches, the fishy corpse suddenly “resurrects” into a truly lethal predator, consuming the curious investigator. The strange fish are often nicknamed “sleepers” due to their rather creepy hunting habits.

Fig 2. Nimbochromis cichlid (Sleepers)

Survival of the Adapters

Unlike animals, we no longer have predators to worry about that will eat us! But we do, however, have stresses like animals to either blend in or stand out. We can mimic a bad or good behavior of a person either consciously or subconsciously to be like them to impress. This is adapting to a situation so we can to control it. We do this like animals as a survival technique.

We are different.

A positive example of mimicry is emulating a positive role model to make a positive change in your life. A negative example would be a negative person imprinting on you. We are higher thinking animals and this is where the difference lies, the good news is we can control how we react to ANY situation.

Please subscribe to my blog for more updates and incites leave comments if you wish

Change is inevitable and essential. We grow old; our bodies change, we go to school, change schools, we move Jobs, we move home, we can change our sexual orientation, we lose loved ones, we end relationship and friendships, we date new people and meet new people, we have children. The list goes on and on.

The BAD NEWS… Change is out of our control and will happen if we like it or not! The GOOD NEWS… We are in control of how we react, respond and adapt to change.

In this series I will be using my PhD on Neurophysiology and degree in Zoology to draw comparisons with the mighty Cuttlefish (Cephalopod) and other extraordinary animals and how they have evolved to survive and thrive in a ever changing world and how this can help you. Also, I will be using my 49 years of experience in the changing market both as an academic and business woman, and boy do I embrace change!

My Aim is to provide an understanding, some comfort, and strategies that will help you survive and accept change. My wish for you is to flourish in our fast changing society in which ever way YOU choose!.

Cuttlefish change their skin color with elaborate patterns, and even texture, to fit in to their surroundings; to camouflage away from predators or to lay in ambush for prey or dazzle a mate. Can you relate to hiding under the radar and trying to be invisible, either at school, in the work place, when out, or even at home; to not get noticed? Or shown off in front of your peers, classmates, teachers, boss, or friends to impress them with displays of your brilliance ?!

Cuttlefish also use color to attract a mate and warn off rivals (Fig 1). They can also communicate a feeling through color and we also do the same. Another stunning example are the male Birds of Paradise which show impressive displays and plumage to attract a mate (Fig 2). While we do not display the same level of elaborate and intricate skin changes as the Cuttlefish or Plumage like the Birds of paradise, we do wear make-up and attractive clothes to attract a mate, we blush with shyness or sexual desire, we go red with anger or pale with fear.


Some computing devices (e.g., mobile phones, tablet computers, etc.) may provide a graphical keyboard as part of a graphical user interface for composing text (e.g., using a presence-sensitive input device and/or display, such as a touchscreen). The graphical keyboard may enable a user of the computing device to enter text (e.g., an e-mail, a text message, or a document, etc.). For instance, a display device of a computing device may output a graphical (or “soft”) keyboard that enables the user to enter data by indicating (e.g., by tapping) keys displayed at the presence-sensitive display.
In some cases, the computing device may present a graphical keyboard with which the user interacts by tapping individual keys of the keyboard or essentially gesturing out a word by sliding his or her finger over the regions associated with the keys. In this way, graphical keyboards provide an input method that allows the user to enter characters, words, or a group of words by one or more gestures. As such, a graphical keyboard may allow the user to achieve a certain degree of efficiency by quickly and accurately entering text.
However, graphical keyboards have certain drawbacks. For example, a computing device may receive a series of tap gestures or sliding gestures from a user paying little attention to accuracy. The characters inputted by the computing device, though, may be different than the characters that the user attempted to select. Consequently, the user may need to correct the inputted characters. As such, entering text with gestures using a graphical keyboard may be difficult and reduce the speed at which the user may interact with the computing device.


Edward James Olmos joins The Predator

First he’s fighting Replicants, then Cylons, now Predators. The Hollywood Reporter has announced that Battlestar Galactica actor Edward James Olmos has joined the cast of Shane Black’s The Predator. Olmos will play a military figure as Boyd Holbrook and his team hunt down the Predator.


57 Cal.App.3d 521 (1976)
129 Cal. Rptr. 238
KARL STEPHAN MORRIS, Petitioner,
v.
THE SUPERIOR COURT OF MERCED COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Docket No. 2789.
Court of Appeals of California, Fifth District.
April 21, 1976.
*523 COUNSEL
John W. Ellery, Public Defender, and James M. Barnett, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Eddie T. Keller, Charles P. Just and Nancy L. Sweet, Deputy Attorneys General, for Real Party in Interest.
OPINION
GARGANO, J.
(1a) The question presented in this proceeding is of constitutional dimensions; it is whether evidence adduced through the execution of a search warrant must be suppressed if the officer who procured the warrant intentionally withheld factual information from his supporting affidavit. We have concluded that the integrity of the judicial system must be preserved no matter how painful the result may be, and *524 that the evidence must be suppressed if the facts intentionally withheld from the affidavit were material and relevant, to the extent that it can be said, fairly, that the magistrate's inference-drawing process was interfered with, substantially.
On June 14, 1975, an unknown person or persons broke into the home of Alverez Arceo in Merced, California, and took a six-string Gibson standard electric guitar and a black guitar case. Two days later Arceo reported the burglary to the City of Merced Police Department; Detective Gary Southerland was placed in charge of the investigation.
On June 18, Arceo informed Detective Southerland that a neighbor, Clifton Robinson, offered to return the stolen guitar for $10. Robinson was known to Southerland as a person on the "fringes" of crime, and believing that the suspect was involved in the burglary, the detective went to Robinson's home and interrogated him. The suspect explained that he knew what the stolen guitar looked like because he had seen it in Arceo's house on several occasions and that he merely told his neighbor that he wanted $10 to find it. Southerland informed Robinson that he could be prosecuted for burglary. Upon further interrogation Robinson told Southerland that the guitar was in petitioner's house; he also produced the stolen guitar case and gave it to the detective. Then Southerland asked Robinson if he knew where to obtain some marijuana, and when the suspect said that he did a controlled marijuana buy was arranged.
On the evening of June 18, Detective Southerland and a fellow law enforcement officer, Detective West, drove Robinson to a location on "I" Street in the City of Merced; West watched Robinson walk through an alley toward the 200 block of 17th Street; then Southerland saw Robinson exit from the end of the alley and approach someone; a few minutes later Robinson returned to West with some marijuana; subsequently, he told the detectives that the person from whom he had purchased the marijuana had 1,300 lids of the contraband in his car.
On June 19, 1975, Detective Southerland obtained a search warrant authorizing the search of petitioner's house for the guitar, and the police executed the warrant on the same day; the stolen guitar was found in the house. The warrant was issued upon Southerland's supporting affidavit which read in pertinent part as follows:
*525 "That on June 18, 1975, a reliable confidential informant advised the affiant that he, the informant observed on the ... premises [at 623 West 7th Street in the City of Merced] within the past three days [a Gibson standard six-string electric guitar, yellow and brown in color]. The informant stated that he has observed the guitar in the possession of a A. Arceo in the past and that he is familiar with the guitar and the fact that it belongs to Arceo. Affiant further deposes and states that Arceo reported the guitar taken from his residence on June 14, 1975 and Arceo made a report to the Merced Police Department on June 16, 1975 in which the guitar was reported stolen....
"Affiant further deposes and states that the aforementioned informant is reliable inasmuch as he has provided information and rendered assistance to the affiant that has led to the obtaining of marijuana during a controlled buy of narcotics."
On September 18, 1975, an information was filed in the Superior Court of Merced County, charging petitioner with burglary in violation of section 459 of the Penal Code; in a second count petitioner was charged with receiving stolen property in violation of subdivision 1 of section 496 of the Penal Code. He entered pleas of not guilty to both charges. Thereafter, petitioner noticed a motion pursuant to section 1538.5 of the Penal Code to suppress the evidence obtained in the execution of the search warrant; the basis for the motion was that critical information in the affidavit in support of the search warrant was furnished by the informant, Clifton Robinson, and that Detective Southerland deliberately withheld pertinent factual information pertaining to the informant's reliability.
On October 24, 1975, after a de novo hearing in respondent court, petitioner's suppression motion was denied even though the People presented no evidence explaining why the pertinent factual information was omitted from the affidavit. Then petitioner petitioned this court for a writ of mandate to compel the lower court to grant his motion to suppress the evidence. Because we were impressed by the importance of the question presented, we issued an order to show cause.
(2) It now is settled that pursuant to a 1538.5 suppression motion a person charged with a crime founded upon evidence adduced through the execution of a search warrant may go behind the face of the supporting affidavit in an effort to prove that there was no probable cause for the issuance of the warrant. (Theodor v. Superior Court (1972) 8 *526 Cal.3d 77, 90-95 [104 Cal. Rptr. 226, 501 P.2d 234].) Therefore, an accused may show that the affidavit contains factual misstatements or material factual omissions which could have had an adverse effect upon the normal inference-drawing process of the magistrate.
(3) If the factual misstatements are not intentional and are the result of reasonable conduct, they are retained in the document and probable cause is tested by what appears upon the face of the affidavit; on the other hand, if the factual misstatements, though not intentional, are the result of negligent conduct, they must be excised and probable cause tested from the remaining information. (Theodor v. Superior Court, supra, 8 Cal.3d 77, 95-101.) (4) Likewise, if material factual omissions are not intentional and are reasonable under the circumstances, the omitted matters are disregarded and the existence of probable cause is tested by whatever appears upon the face of the affidavit; if the failure to include material information, though not intentional, is negligent, the omitted facts are added to the affidavit and probable cause is tested in light of the additional information. (People v. Barger (1974) 40 Cal. App.3d 662, 668-669 [115 Cal. Rptr. 298].)
(1b) Left unanswered is the fundamental question which arises when factual misstatements are intentional (Theodor v. Superior Court, supra, 8 Cal.3d 77, 101, fn. 14), or when material information is omitted deliberately (People v. Barger, supra, 40 Cal. App.3d 662, 669).
The Attorney General argues that Detective Southerland acted "negligently" in failing to disclose in the affidavit all of the facts known to him pertaining to his informant's reliability. He seizes upon the ratio decidendi of the Barger opinion to argue that the detective's affidavit must be tested with the omitted matter included. The Attorney General concludes that when the omitted information is included, it strengthens the reliability of the informant because the affidavit shows that Robinson not only "provided information and rendered assistance" leading to a controlled buy of the marijuana but his statement to Detective Southerland concerning the whereabouts of the stolen guitar was a declaration against penal interest. (See Skelton v. Superior Court (1969) 1 Cal.3d 144, 154, fn. 7 [81 Cal. Rptr. 613, 460 P.2d 485]; Ming v. Superior Court (1970) 13 Cal. App.3d 206, 214 [91 Cal. Rptr. 477]; see also United States v. Harris (1971) 403 U.S. 573, 583-584 [29 L.Ed.2d 723, 733-734, 91 S.Ct. 2075, 2082].)
*527 We are not persuaded by this argument. Detective Southerland knew that his informant was totally unreliable. Robinson was a person bordering upon the "fringes" of crime, and the detective had good cause to suspect that he participated in the theft of Arceo's guitar; the suspect had offered to return the guitar to its owner for $10, and he had the stolen guitar case in his home. It was for this very reason that Southerland asked the suspect if he knew where to obtain some marijuana and then proceeded to create an aura of reliability by arranging a controlled buy. Yet the detective deliberately omitted all of these pertinent facts from his affidavit. Instead, he worded the affidavit in the manner to suggest to the unsuspecting reader that the informant was reliable because he provided information leading to a controlled buy of marijuana before he told the detective that he had seen the stolen guitar in petitioner's house. Clearly, the conduct of the detective transcended negligence.
Furthermore, the factual information Southerland omitted from his affidavit was material, in the sense that it could have negated the magistrate's finding of probable cause. (Theodor v. Superior Court, supra, 8 Cal.3d 77, 96, fn. 11; see also United States v. Averell (E.D.N.Y. 1969) 296 F. Supp. 1004, 1018; cf. People v. Rummler (1975) 44 Cal. App.3d 638, 643 [118 Cal. Rptr. 872].) Robinson did not inculpate petitioner until he realized that he was himself a suspect about to be arrested for the burglary; his statements were in large part exculpatory. Then, the informant agreed to participate in a controlled buy at Southerland's suggestion, obviously, to curry favor with the police. It is conceivable that if the detective had disclosed all of the facts in his affidavit, the magistrate might have determined that the informant was unreliable and his information untrustworthy; the magistrate could have believed that Robinson told Southerland that the guitar was in petitioner's house and then agreed to participate in a controlled buy to shift the blame on someone else until he could rid himself of the stolen instrument.
(5) It is uncontestable that an officer who is seeking a search warrant has a duty to disclose to the magistrate all material facts relevant to the issue of probable cause. (People v. Barger, supra, 40 Cal. App.3d 662, 668; People v. Legard (1970) 12 Cal. App.3d 1006, 1010 [91 Cal. Rptr. 257].) (1c) It is also uncontestable that Detective Southerland failed to fulfill his burden and that the failure painted a distorted picture which adversely affected the normal inference-drawing process of the magistrate. In short, the detective's deliberate omission of material facts resulted in an affidavit that was factually inaccurate (Theodor v. Superior *528 Court, supra, 8 Cal.3d 77, 96, fn. 11; see also United States v. Averell, supra, 296 F. Supp. 1004, 1018; cf. People v. Webb (1973) 36 Cal. App.3d 460, 469-471 [111 Cal. Rptr. 524]), and it became the People's burden "to show proper justification" (Theodor v. Superior Court, supra, 8 Cal.3d 77, 102). The People failed to meet this burden, and we have no alternative but to order the suppression of the evidence.
We summarize briefly. This is not a case where an officer who prepared an affidavit in support of a search warrant intentionally omitted a few immaterial facts which he reasonably believed, in good faith, were irrelevant or inconsequential. Here the record leads, inescapably, to the conclusion that Detective Southerland not only concealed his own distrust of the informant and the information upon which the distrust was grounded but that he deliberately attempted to manufacture reliability through the auspices of a controlled buy and then concealed this important fact as well. To uphold the warrant now merely because it is arguable that the omitted information does not negate, necessarily, the existence of probable cause, would invite gross abuses by over-zealous law enforcement officers; it is precisely this type of police conduct the exclusionary rule was designed to discourage. (See People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513].) If we were to uphold the search warrant under the facts of this case, we would impair, seriously, the independent-judgment-by-a-neutral-magistrate concept visualized by the framers of the Constitution as the safeguard needed to protect the citizens of this nation from unfettered and unreasonable police searches of homes and other sanctuaries. (See Chapman v. United States (1961) 365 U.S. 610, 614-615 [5 L.Ed.2d 828, 832-833, 81 S.Ct. 776, 778-779.)
We do not reach the question as to whether a police officer who receives information from an untested informant may establish reliability on the part of the informant by thereafter arranging a police buy of contraband as was done in this case. Nor do we answer the question as to whether Robinson's primarily exculpatory statement that the stolen guitar was in petitioner's house qualifies as a declaration against penal interest. (See People v. Shipe (1975) 49 Cal. App.3d 343, 352-354 [122 Cal. Rptr. 701].) Under the circumstances of this case, the search warrant must be quashed without regard to the effect of the omissions on probable cause.
Let a peremptory writ of mandate issue directing respondent court to suppress the evidence obtained in the execution of the search warrant in question.
*529 CARKEET, J.[*]
I concur in the foregoing opinion and the reasoning underlying the same. I would enlarge upon one aspect of the case.
At the conclusion of the 1538.5 hearing in the superior court, the court stated: "I think under the circumstances of this case, the acts of the officer were proper...." This could be inferred to be a finding that the affiant did not omit the material facts with a deliberate intent to deceive the magistrate, and removes from the case the issue of intentional bad faith falsification, whether by misstatement or omission.
In Theodor v. Superior Court (1972) 8 Cal.3d 77, 100-101 [104 Cal. Rptr. 226, 501 P.2d 234], the court held that the presence in an affidavit for a search warrant of inaccurate facts that were not intentional but were caused by unreasonable police activity, such as negligence, requires that such information be deleted and that the validity of the affidavit be tested by the remaining accurate information. The court noted: "We add that as the prosecution is thus barred from relying on negligent mistakes in an affidavit, it is a fortiori barred from relying on information known by the affiant to be intentionally false. Since in the latter situation there obviously can be no question of showing a reasonable belief in the truth of deliberate misinformation, any such statements must also be stricken prior to testing the warrant for probable cause." (Supra, 8 Cal.3d at p. 101, fn. 14.) Whether the use of such intentional misstatements should result in automatically quashing the warrant without regard to the effect of those misstatements on probable cause was left undecided in Theodor. (Ibid.)
In People v. Barger (1974) 40 Cal. App.3d 662 [115 Cal. Rptr. 298], it was argued that the magistrate's finding of probable cause could not be upheld since, by omission, facts relevant to the reliability of an informant were withheld from the magistrate. The court reasoned that inaccuracies in an affidavit caused by omission of material facts creates the same problem as factual inaccuracies placed in the affidavit. The court said: "The Supreme Court [in Theodor] pointed out that false or inaccurate information in an application for a warrant adversely affects the normal inference-drawing process of the magistrate. (8 Cal.3d at p. 96.) The magistrate's inference-drawing process would also be hindered if the affiant were permitted to `edit' his informant's allegations by omitting unfavorable facts." (Supra, 40 Cal. App.3d at p. 668.) Left undecided in *530 Barger was the question whether an intentional omission of material facts should result in automatically quashing the warrant without regard to the effect of the omitted material facts on probable cause, if the affidavit were read with those facts inserted; in Barger, the court found the omission to be due to "negligence" of the officer rather than wilfulness.
If the omission intentionally were done to create a false image of reliability, the element of reasonable belief in the truth of the affidavit as doctored by the omission would be absent, and under the reasoning expressed in Theodor, as extended in Barger, the missing information, at least, would have to be inserted prior to testing the affidavit for probable cause.
Although this court may infer a finding by the lower court which negates any deliberate bad faith omission of material facts with an intent to deceive the magistrate, the same record (i.e., the transcript of testimony at the 1538.5 hearing) which supports such an inferred finding clearly shows that the material facts which were missing from the affidavit were the result of knowing, or intentional, conduct on the part of Detective Southerland.[1]
One need only to insert the missing material facts in the affidavit to illuminate the obvious fact that the inaccuracies created by Detective Southerland's omissions were due to something more censurable than mere negligence.[2] The testimony at the 1538.5 hearing compels an inferred finding that the omissions were intentional.
*531 Theodor indicates that the problem of inaccuracies creates the same result, however caused: "Regardless of whether misstatements are intentionally false or the product of reasonable or unreasonable cerebration, their ineluctable result is an adverse effect upon the normal inference-drawing process of the magistrate." (Supra, 8 Cal.3d at p. 96.) The same rationale would apply to inaccuracies created by omission. (People v. Barger, supra, 40 Cal. App.3d 662, 668-669.)
That an unintentional error can be deemed "correctible" in the manner above indicated now is established law which is grounded upon the statement in Theodor that: "There is no reason to hold an officer to a standard of absolute accuracy in those instances in which the inference-drawing power is reserved for the magistrate who is to issue a warrant, when the officer is only required to reach a reasonable factual deduction *532 in those instances in which he makes the inferences and acts without a warrant. In both cases, the constitutional standard is one of reasonableness." (Theodor v. Superior Court, supra, 8 Cal.3d 77, 100.)
The same reasoning, however, does not permit of a conclusion that an officer should be permitted by intentional misstatement of facts, or intentional omission of material facts, to create a purported factual portrayal upon which to rest his claim of probable cause.
The evil that can accompany such performance is manifest from an examination of the affidavit in the instant case with the omitted material inserted (see fn. 2, ante). From such examination, it becomes immediately apparent that the magistrate was not made aware of many, very material facts relating to the question of the reliability of the informant: for example, that the informant had lied to the detective about the $10 offer to the owner of the guitar and so rephrased it as to attempt to exculpate himself; that the informant himself was suspected of and accused by the detective of participating in the burglary but had denied it; that the informant only had agreed to make the marijuana buy when he was asked to do so after he had been implicated in the burglary; and that there had been no past experience with the informant to test his reliability.
The foregoing data immediately raises a question as to the informant's reliability and as to the reasonableness of the detective's belief in his reliability, which the magistrate was deprived of evaluating.
While there may be merit in the contention that the exclusionary rule should not be extended beyond the limits to which it already has been extended by the appellate courts, the conduct here criticized is of the type which brought about the decision in People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513], in the first instance.
An intentional usurping of the decision-making process of the court in the manner done in this case clearly illustrates the need for a plainly enunciated rule that such conduct will invalidate a search warrant without regard to the effect of the omissions on probable cause.
I concur that the peremptory writ of mandate should issue directing respondent court to suppress the evidence obtained in the execution of the search warrant in question, for the reasons enunciated in Justice Gargano's opinion.
*533 BROWN (G.A.), P.J.
I dissent.
First, I disagree that as a matter of law the record herein compels a finding by this court that the omission of the information from the affidavit was done intentionally and deliberately for the purpose of withholding data from and deceiving the magistrate. The petitioner makes no such contention.[1]
The thrust of petitioner's argument is that where information is withheld from the affidavit, whether intended or negligent, the situation is different from that where information is intentionally or carelessly included in the affidavit in that in the former case such excluded information, if it is material to probable cause, should result in automatically quashing the affidavit. Petitioner does not attempt to make a clear distinction between an intended and a careless omission but argues merely that in either case the affidavit is "constitutionally defective."
By denying the motion to suppress, the trial court inferentially found against petitioner on this factual issue. We are, of course, bound by the factual determinations of the trial court, and we must infer findings in favor of the trial court's determination in support of the order, rather than seek a basis for upsetting it. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [118 Cal. Rptr. 617, 530 P.2d 585]; People v. Superior Court (Peck) (1974) 10 Cal.3d 645, 649 [111 Cal. Rptr. 565, 517 P.2d 829].)
Notwithstanding petitioner's failure to make the contention which is the basis of the majority's opinion, and despite the applicability of the substantial evidence rule to the trial court's order, the majority laces its opinion with such tendentious and argumentative conclusions as "Detective Southerland deliberately withheld pertinent factual information pertaining to the informant's reliability." "Detective Southerland knew that his informant was totally unreliable." "It was for this very reason *534 that Southerland asked the suspect if he knew where to obtain some marijuana and then proceeded to create an aura of reliability by arranging a controlled buy." "Yet the detective deliberately omitted all of these pertinent facts from his affidavit. Instead, he worded the affidavit in the manner to suggest to the unsuspecting reader that the informant was reliable because he provided information leading to a controlled buy of marijuana before he told the detective that he had seen the stolen guitar in petitioner's house. Clearly, the conduct of the detective transcended negligence." "Here the record leads, inescapably, to the conclusion that Detective Southerland not only concealed his own distrust of the informant and the information upon which the distrust was grounded but that he deliberately attempted to manufacture reliability through the auspices of a controlled buy and then concealed this important fact as well."
It is submitted that the above conclusional statements might be warranted if they had been made by the trial court, but the record in this case is such as to preclude this court from coming to those conclusions as a matter of law. The facts before the court are clearly susceptible of an interpretation that would impute only careless conduct to the officer.
If it was a careless omission, as the trial court impliedly found, the case could be disposed of under the persuasive precedent of People v. Barger (1974) 40 Cal. App.3d 662, 668-669 [115 Cal. Rptr. 298]. Under that case the omitted material should be placed in the affidavit and probable cause determined based on the included material, thus disposing of the case upon precedent without reaching for the issue of intentional and deliberate omission. An appellate court should decide a case upon grounds as narrow as possible and not reach out for bases not necessary to the disposition or which have not been fully explored by the parties.
If the omitted information is included, it does not as a matter of law render the informant unreliable. This necessarily follows for the reasons stated by the Attorney General.
Secondly, assuming I am in error in my conclusion that this omission was not intentional and deliberate as a matter of law, I would nonetheless affirm the trial court.
In Theodor v. Superior Court (1972) 8 Cal.3d 77, 96 [104 Cal. Rptr. 226, 501 P.2d 234], the court said: "However, if a magistrate is presented with false or inaccurate information in an application for a warrant, the *535 inferences he draws from such information are not based on reality but on the fantasies of the misinformed or misinforming affiant. Regardless of whether misstatements are intentionally false or the product of reasonable or unreasonable cerebration, their ineluctable result is an adverse effect upon the normal inference-drawing process of the magistrate." (Italics added.)
The Theodor case dealt with inaccurate included information. People v. Barger, supra, 40 Cal. App.3d at pages 668-669, extended the same philosophy to excluded information. The majority herein approves Barger and concedes that had the information been carelessly omitted, the facts should be added to the affidavit and probable cause tested in the light of the additional information.
From these precepts, it must be apparent that there is not, and indeed the petitioner does not contend that there is, one whit of difference in the effect on the magistrate's inference-drawing process whether the omission is in good faith, negligent or intended. In each case, the magistrate does not have the information which may be pertinent to determining the issue of probable cause.
It is also inescapable that this defect in the inference-drawing process can be cured by adding the excluded information whether the omission is in good faith, negligent or intentional. By adding the excluded information and testing probable cause in the light of the additional information the processes of justice, the defendant, the victim and the public have in each instance been deprived of nothing. On the other hand, if the warrant is automatically quashed the defendant will, in most cases, go free, and society is the loser.
It follows that the only justification for automatically quashing the warrant is reliance upon the necessity of (1) allegedly preventing interference with the "integrity of the judicial system" and (2) punishing the officer.
The former largely meaningless, all inclusive generality is usually relied upon to justify a conclusion where there is no readily recognizable, more specific rationale upon which to base a result. So far as the term may be intended to relate to the regard and respect of the public and the criminal defendant for the judicial system, experience with the exclusionary rule demonstrates the opposite.
*536 That rule has resulted in impracticable and technical hair-splitting analyses (such as that undertaken in this case) equivalent in many respects to determining the solution to that classical conundrum of how many angels can dance on the head of a pin. But does the exclusion of the evidence cause such punishment to the officer as to have a deterrent effect upon the officer's future misconduct? While to my knowledge there are no definitive studies on the subject, it is common knowledge that the reaction of the officer and the public generally is that the officer did his job in catching the suspect and providing the evidence to convict but the (expletive) court let him go. The officer is commended  the court is condemned. The public is appalled and the victim is shocked. As a consequence, the deterrent effect of rendering the evidence inadmissible has not worked out in practice and has turned out to be a myth, largely because the sanction imposed does not reach the heart of the problem. And until some criminal and/or civil penalty is brought directly to bear upon the officer and the public entity for which he is employed, the deterrent effect will continue to be minimal  certainly too minuscule to justify the price the public pays in return.
The realistic, visible and practical result has been to clog our court calendars in endless and confused debate, invoke the derision of criminals who have "beat the rap" in the face of perfectly competent suppressed evidence and to cause the citizenry to have grave concern for the "integrity of the judicial process" and to lose respect for a system whose rules are apparently designed to let criminals go free at the expense of the innocent victim and the public. There are far better and more effective ways to deter illegal conduct by officers, such as a statutory suit for damages against the officer and the public entity for which he works. One such program is explicated in the cogent and forceful statements of Mr. Chief Justice Burger in his dissent in Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, 412-428 [29 L.Ed.2d 619, 636-645, 91 S.Ct. 1999, 2012-2020].
While the exclusionary rule is still with us, and as an intermediate appellate court we are bound by its tenets, I do not think it should be extended beyond the limits to which it has already been extended by higher courts. As Professor Anthony Amsterdam, who is no enemy of the exclusionary rule, has noted: "As it serves this function, the rule is a needed, but grudgingly taken medicament; no more should be swallowed than is needed to combat the disease. Granted that so many criminals must go free as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity *537 inflicts gratuitous harm on the public interest...." (Amsterdam, Search, Seizure, and Section 2255: A Comment (1964) 112 U.Pa.L.Rev. 378, 389; fn. omitted.) (See also Kaplan, The Limits of the Exclusionary Rule (1974) 26 Stan.L.Rev. 1027.)
The Supreme Court has already opened the way to a restriction of the exclusionary rule. United States v. Calandra (1974) 414 U.S. 338 [38 L.Ed.2d 561, 94 S.Ct. 613] and Michigan v. Tucker (1974) 417 U.S. 433 [41 L.Ed.2d 182, 94 S.Ct. 2357] manifest not only a growing disenchantment with the rule but also the court's belief that it should not be universally applied.
I would deny the writ.
A petition for a rehearing was denied May 21, 1976. Brown (G.A.), J., did not participate therein. The petition of the real party in interest for a hearing by the Supreme Court was denied June 17, 1976.
NOTES
[*]   Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
[1]  The testimony of Detective Southerland at the 1538.5 hearing clearly shows that the omitted material facts were within his knowledge, and he gives no reasonable explanation for leaving them out.
[2]  The writer of this opinion has attempted to reproduce the detective's affidavit in support of the search warrant, with the missing information placed in it. Such operation produces an affidavit which would contain the following information (facts omitted from the original affidavit but within the detective's knowledge according to his testimony at the 1538.5 hearing, are underscored):

  1. A. Arceo, owner of a Gibson guitar, reported on
    June 16, 1975, to the Merced Police Department that
    said guitar and the guitar case had been stolen in
    a burglary of his residence on June 14, 1975.
  2. On June 18, 1975, affiant (Detective Southerland)
    was informed that the "confidential" informant in
    this case had offered to return the guitar to Arceo
    if the latter paid the informant $10.
  3. Because of this information affiant suspected the
    informant of the burglary and interrogated him
    about the $10 offer.
  4. Informant stated that he has observed the guitar
    in the possession of Arceo in the past and that he
    is familiar with the guitar and the fact it belongs
    to Arceo.
  5. Informant stated that he merely had told Arceo
    that "he thought he could get the guitar back for
    about $10 if he could find it."
  6. Informant stated that he had seen the guitar in
    the residence of Karl Morris (petitioner) in the
    last three days.
  7. On June 18, 1975, informant produced the guitar
    case for affiant and stated to affiant that he had
    received it from Karl Morris in exchange for some
    kind of a stereo tape or stereo tape deck.
  8. On the basis of the foregoing information,
    affiant, on June 18, 1975, accused the informant of
    committing the burglary and affiant denied doing
    so.
  9. Affiant did not personally know the informer
    prior to this transaction but on the basis of
    general knowledge knew him to be on the "fringes of
    crime," although affiant had no knowledge of any
    prior criminal convictions against informant.
  10. On June 18, 1975, affiant indicated to informant
    that informant might be prosecuted for the Arceo
    burglary.
  11. Because of the foregoing facts, affiant did not
    know on June 18, 1975, whether informant's
    statement as to the location of the guitar was
    reliable.
  12. In order to make a test of his reliability
    affiant, after informant knew he was a suspect in
    the burglary, asked informant if he knew where he
    could make a "buy" of marijuana, and informant then
    stated that he did know and would make a buy for
    the police.
  13. On the evening of June 18, 1975, informant made a
    controlled buy of a "lid" of marijuana for affiant
    and upon his return with the purchased marijuana
    informed the affiant that the subject he had bought
    it from had 1,300 lids of marijuana in his
    automobile.
  14. That informant further offered to assist affiant
    in getting the guitar back and stated that he did
    not want to go to jail for something he didn't do
    and that he knew where the guitar was and could get
    it back.
  15. Because informant had implicated himself to the
    extent of revealing his own possession of the
    guitar case and knowledge of the location of the
    guitar in the residence of K. Morris, where
    informant had admittedly visited and seen it, and
    because informant carried out the drug "buy"
    without any deceptive practices against the police,
    affiant believes the informant in this case to be
    reliable.

(NOTE: As to other necessary details, the affidavit was in standard form and is not objectionable.)
[1]  The most the petitioner has said is: "In the present case, it must be said that Officer Southerland intentionally prepared an affidavit which omitted information of which he had knowledge. (The evidence does not show that the officer realized that his omission deceived the court, nor does it show the extent of his experience in preparing such affidavits.)" Obviously, he intentionally prepared the affidavit which omitted information. However, this is not the equivalent of intentionally and deliberately omitting the information to deceive the magistrate. By petitioner's caveat in the parentheses, he has disavowed any knowledge of whether the omission was intended or was innocent or careless.


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Justice News

Former Union Officer Sentenced to 1½ Years for Embezzling over $280,000 in Union Funds

Portland, Maine: United States Attorney Halsey B. Frank announced that Ryan Jones, 35 of Bath, Maine was sentenced today in U.S. District Court by Judge George Z. Singal to 1½ years in prison and three years of supervised release for embezzling $280,865 from a union during a period when he served as an officer of that union. He was also ordered to pay $280,865 in restitution. He pleaded guilty on September 6, 2017.

According to court records, from 2009 until January 2017, the defendant was the Secretary-Treasurer of the International Association of Machinists and Aerospace Workers, Local Lodge S6, a labor union. The defendant’s tenure ended when he failed to win re-election. In January, the newly elected union officials discovered discrepancies with union finances. The ensuing federal investigation revealed that the defendant made almost 200 unauthorized withdrawals from the union’s bank account, he fabricated monthly bank statements to conceal his withdrawals, he provided the fabricated bank statements to union auditors to deceive them, and he embezzled about $280,865 between May 2012 and November 2016.

The investigation was conducted by the Bath Police Department; the U.S. Department of Labor, Office of Labor-Management Standards; and the Federal Bureau of Investigation.


Q:

Chemoautotrophy in large organisms?

The major nutritional mechanisms include chemoautotrophy, heterotrophy (including parasitism and saprotrophy) and photoautotrophy. All of these modes of nutrition developed first in prokaryotic ancestors, and gradually, through the course of evolution, these prokaryotes formed complex eukaryotic, multicellular organisms. Some of these complex descendants (the majority of Kingdom Plantae) possessed the photoautotrophic mode and some (the majority of Kingdom Animalia, some of Kingdom Protista & Kingdom Fungi) possessed the heterotrophic mode.
My question is, since all the three modes developed quite early in evolutionary history, why didn't any chemoautotrophic multicellular, eukaryotic organism develop? (Or, if they did, why did they not form a wide-diverse group as the organisms with other two modes of nutrition did.)
(One possible reason could be lesser availability of chemoautotrophic substrates, but I have no proof, nor any argument to support this.)

A:

I've been thinking about this question for a few days and along the lines of @ThomasIngalls comment, the simple answer is that cooperation between organisms has such a huge advantage in selection that any chance a eukaryote would become a chemautotroph would simply not adapt fast enough to compete with those that are already holding these niches.
The chemautotrophs I'm aware of are usually archaeabacteria.  They are optimized to grow slowly and have a large number of genes that can break down the unusual chemical compounds to grow in an inorganic often anoxic environment.  These bacteria have genes evolved from the chemautotrophic earliest days of life on earth.  They live deep within the earth, under ground, in volcanic vents.  There are animals that live in some of these environments, but its simply too easy for these to use the bacteria that are already growing here readily rather then re-evolve the genes to do it by themselves.
Eukaryotes are already symbiotes - they used bacteria to create ATP and photosynthetically fix carbon to the extent that they absorbed them as mitochondria and chloroplasts respectively.  If eukaryotes were under a tremendous amount of selective pressure, some of them might absorb symbiotic chemautotrophs, but without such pressure, it doesn't happen when you are competing against plants with roots and animals that eat for their energy.
Forming systems of organisms is much more stable than having individual species that can do it all.  This question is actually similar to other questions that ask why we don't have metal armor, run as fast as cheetahs, etc.  Evolution doesn't actually create super animals that are completely self contained.  The ones that reproduce the best are the ones that can actually spread out the risk of survival and contribute to an ecosystem.
It kind of makes me think of human beings - the only superorganism on the planet in this regard.  We don't really need to compete against any organism - we are in fact killing most of them out there without really thinking about it.  That might now turn out to be good for us long term.


340 F.Supp. 1368 (1972)
UNITED STATES of America ex rel. Henry JOHNSON, H-8407
v.
R. L. JOHNSON, Superintendent.
Civ. A. No. 71-1528.
United States District Court, E. D. Pennsylvania.
March 10, 1972.
*1369 Henry Johnson, pro se.
Arlen Specter, Dist. Atty., Mark Sendrow, Asst. Dist. Atty., Philadelphia County, Philadelphia, Pa., for respondent.

OPINION AND ORDER
EDWARD R. BECKER, District Judge.
This is a petition for a writ of habeas corpus by a state prisoner who is serving a five to ten year sentence following his conviction by Judge Robert W. Honeyman of the Court of Common Pleas of Montgomery County, Pa., sitting without a jury, of the crimes of burglary, larceny, and conspiracy. In his petition, relator claims entitlement to relief on essentially three grounds: (1) that he was arrested without probable cause; (2) that the search of the automobile in which he was riding at the time of his arrest violated the Fourth Amendment; and (3) that the testimony of his co-defendant, Albert Johnson, exonerated him of the crimes charged. Relator has essentially exhausted his available state remedies and his case is properly before us for an adjudication of his constitutional claims.[1]*1370 Since the only issues which we must now decide concern facts which are amply developed in the existing state court records, we deem it unnecessary to hold an evidentiary hearing.[2] Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963). For the reasons stated herein, we must deny relator's petition.
We shall first consider the question of probable cause for relator's arrest, i. e., did the "facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed [citations omitted]." Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). Accord, United States v. Dento, 382 F.2d 361 (3d Cir. 1967), cert. denied, 389 U.S. 944, 88 S.Ct. 307, 19 L.Ed.2d 299, rehearing denied, 389 U.S. 997, 88 S.Ct. 493, 19 L.Ed.2d 502. Since questions of probable cause must be viewed in light of all the surrounding circumstances, a particularized recitation of the facts is necessary to our discussion. The facts are ably summarized by Judge Honeyman in his opinion:
"On Sunday, January 14th, 1968, at approximately 4:35 a. m., an Officer of the Springfield Township Police was on motor patrol in the vicinity of the intersection of Bethlehem Pike and Mill Road. As he approached the intersection he observed a car starting to pull out of a closed gas station onto Bethlehem Pike. As the Officer proceeded to the gas station the car stopped, backed up and parked. At this time, with the exception of a small light in the gas station, the station was dark.
After the Officer drove into the station and parked in front of the car the two occupants, the defendants, alighted from the car and walked over to the police car. The driver, defendant Albert Johnson, upon request of the Officer, who was still in his car, produced his driver's license. The license indicated that the defendant lived at 4316 Terrace Street, Philadelphia, Pennsylvania. When asked to produce his owner's card, the driver said that it was inside the gas station. He went on to explain that he had had his car repaired in the station earlier in the day and then had gone to Allentown. On the return trip from Allentown the car trouble reoccurred and he had pulled into the gas station to leave the car for further repairs. The defendants then asked for the location of a pay phone and were directed to a telephone booth adjacent to an Acme market which was approximately 100 yards away. The two defendants then walked towards the telephone booth.
After they had left, the Officer pulled his car around behind the defendants' car and noted its license number. He then made a radio call to the County Police Radio Room to ascertain the registered owner of the car. He was told that the car was registered in the name of a Lucille Philpot of Philadelphia.
Upon receiving this information the Officer got out of his car and with *1371 the aid of a flashlight looked into the defendant's automobile. He observed two large boxes filled with between 300 and 400 cartons of cigarettes on the back seat and a five foot length of angle iron, partially covered with ice and snow, in the front seat.
The Officer, after making this observation, drove over to the defendants who were in the vicinity of the telephone booth. He arrested the defendants for larceny of the automobile and for possession of stolen goods, i. e., cigarettes. The defendants were then taken back to the car and the trunk was opened. Inside were found many loose cartons of cigarettes.
The defendants were then taken to the Springfield Township Police Building. The next morning the arresting Officer swore out an affidavit for a search warrant and a warrant was issued by Justice of the Peace Thomas Jenkins. A search was subsequently made of the car. The items seized, the angle iron and cigarettes, were physically shown to Mr. Jenkins but no written return was made on the warrant itself. The warrant and the affidavit were retained by the Police until the Court hearing on the defendants' Motion to Suppress."
While the caselaw has enunciated certain basic standards, in the final analysis, probable cause must be determined on a case by case basis in light of the totality of surrounding circumstances existing at the time of the arrest. Our analysis of the facts reveals a number of ingredients relative to a finding of probable cause.
The suspects were first observed at 4:30 A.M. on a Sunday morning, pulling out of a closed gasoline station; as the officer proceeded to the gas station, their car backed up and parked. The driver, who also represented himself to be the owner of the car,[3] did not live in the immediate area, and could not produce proof of ownership. His justification for his presence at a closed gas station, i. e., that he was bringing the car in for repairs on his return from Allentown, was suspicious in light of the officer's personal observation that when he first saw the car, it was exiting from the gas station and was not entering or parked. Furthermore, the information received by the officer that the license plate (and apparently the car) was registered in another's name, with no apparent connection with the driver, was at variance with the representation that the driver owned the car. As of this point, the officer at least had reason to be highly suspicious that a crime had been or was being committed by relator and his companion.
We do not have to decide if probable cause to arrest the relator existed at this point in time because the presence in the car of the two large boxes full of cartons of cigarettes and the long length of "angle iron" covered with snow and ice, when combined with the other facts known by the officer, clearly created probable cause. However, if the search of the interior of the car from the outside with a flashlight by looking through the windows constituted an illegal warrantless search, then the knowledge gained through an illegal search cannot be used as an indicia of probable cause to arrest. Alderman v. United States, 394 U.S. 165, 176-177, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). But see, Scearce v. Field, 292 F.Supp. 807 (C.D. Cal.1968).
On similar facts, some courts have concluded that there was not a "search" within the meaning of the Fourth Amendment. United States v. Hanahan, 442 F.2d 649 (7th Cir. 1971); United States v. Johnson, 431 F.2d 441 (5th Cir. 1970) (alternative holding); United States v. Polk, 433 F.2d 644 (5th *1372 Cir. 1970); United States v. Morales, 440 F.2d 1332 (5th Cir. 1971); Gil v. Beto, 440 F.2d 666 (5th Cir. 1971). Other courts have held that there was a search but that it was reasonable. Marshall v. United States, 422 F.2d 185 (5th Cir. 1970); United States v. Vilhotti, 323 F.Supp. 425 (S.D.N.Y.1970). Also, United States v. Johnson, supra (alternative holding). Regardless of the basis for upholding these visual acts, the cases require that the officer have the right to be in the position to have that view. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). In this case, it is obvious that the officer who was on the premises of a gasoline service station which is open to the public met this requirement. Therefore, we conclude that the knowledge of the cigarettes and angle iron was lawfully obtained by the officer for "what a person knowingly exposes to the public is not a subject of Fourth Amendment protection. See Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L. Ed.2d 312 (1966); United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L. Ed. 898 (1924)." Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 2059 n. 6, 29 L.Ed.2d 564 (1971) (Mr. Justice Black, concurring and dissenting).[4]
We find that the presence of some 200 cartons of cigarettes on the back seat of a passenger motor vehicle[5] is highly unusual; the normal smoker does not purchase cigarettes in such large quantities. Moreover, where there is visualized in the same car an "angle iron" still covered with ice and snow which indicates that it had been used very recently (for there was snow on the ground at the time), the point is reached when a group of facts, no one of which would constitute probable cause, but each one of which is highly suspicious, fits together to cement the pattern. In our view, the combined and collated facts are such as would reasonably lead a prudent officer to believe that a felony has been committed. Having found that probable cause existed for the warrantless arrest of relator, we must determine if the warrantless search at the scene and the warrantless search and seizure at the police station comport with the requirements of the Fourth Amendment.[6]
We disagree with the characterization that the trial judge and the relator have given the searches and seizure involved in this case. They both have described it as a search and seizure incident to arrest. Such a characterization of the issue, if accurate, would invalidate the seizure of the contraband at the police station for "`[o]nce an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to arrest.'" Chambers v. Maroney, 399 U.S. 42, 47, 90 S.Ct. 1975, 1979, 26 L.Ed.2d *1373 419 (1970), citing Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Moreover, the search incident to arrest theory might not support the search of the trunk at the gas station, since the relator was under arrest and in custody at the parking lot across the street from the gas station where the car was located. However, as we shall see infra, we are not confronted with the thorny problems attendant to the search incident to arrest theory, for the recent case of Coolidge v. New Hampshire, supra, reaffirms the principles of automobile searches as first enunciated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).[7]
Coolidge makes clear that the warrantless search of an automobile must meet two requirements  (1) probable cause to search; and (2) "exigent circumstances."[8] The first requirement is satisfied if the officer has probable cause to believe that contraband, weapons or evidence of a crime[9] will be found in the car. Moreover, the right to search is not determined by the right to arrest.
"The Court [in Carroll] also noted that the search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest:
`The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the arresting officer has for belief that the contents of the automobile offend against the law.'" Chambers v. Maroney, supra, 399 U.S. at 49, 90 S.Ct. at 1980, citing Carroll v. United States, supra, 267 U.S. at 158-159, 45 S.Ct. 280.
Therefore, we are not bound by the spatial limitation imposed by the search incident to arrest theory, except as it relates to the second requirement  the presence of "exigent circumstances." But as for the probable cause (the first requirement), the circumstances that give rise to probable cause for arrest are often (as they are here) the same that will furnish probable cause for a search.[10] Chambers v. Maroney, supra, 399 U.S. at 47, n. 6, 90 S.Ct. 1975. We, therefore, conclude that the arresting officer *1374 had probable cause to conduct an immediate warrantless search of the automobile.
Having found that the arresting officer had probable cause to search, we must next decide if "exigent circumstances" existed for "no amount of probable cause can justify a warrantless search or seizure absent `exigent circumstances.'" Coolidge v. New Hampshire, supra, 91 S.Ct. at 2039.[11] An examination of Coolidge is illustrative for this purpose. While the Court in Coolidge conceded that the arresting officers had probable cause to search the defendant's auto while it was parked in his driveway, it found no "exigent circumstances." The following quotation from Coolidge will not only validate the court's conclusion, but will also highlight some of the types of situations constituting "exigent circumstances" sufficient to justify an automobile search.
"In this case, the police had known for some time of the probable role of the Pontiac car in the crime. Coolidge was aware that he was a suspect in the Mason murder, but he had been extremely cooperative throughout the investigation, and there was no indication that he meant to flee. He had already had ample opportunity [about 4 weeks] to destroy any evidence he thought incriminating. There is no suggestion that, on the night in question, the car was being used for any illegal purpose, and it was regularly parked in the driveway of the house. The opportunity for search was thus hardly `fleeting.' The objects which the police are assumed to have had probable cause to search for in the car *1375 were neither stolen nor contraband nor dangerous.
... There was no way in which he could conceivably have gained access to the automobile after the police arrived on his property. When Coolidge had been taken away, the police informed Mrs. Coolidge, the only other adult occupant of the house, that she and her baby must spend the night elsewhere and that she could not use either of the Coolidge cars. Two police officers then drove her in a police car to the house of a relative in another town, and they stayed with her there until around midnight, long after the police had had the Pontiac towed to the station house. The Coolidge premises were guarded throughout the night by two policemen.
The word `automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States  no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile." Coolidge v. New Hampshire, supra, 91 S.Ct. at 2035-2036.
It is readily apparent why the court concluded that there were no "exigent circumstances" to justify a warrantless search or seizure.[12]
However, contrary to Coolidge, the facts of this case present numerous kinds of the "exigent circumstances" enumerated there. The car was stopped on a public thoroughfare and thus movable. The arresting officer had probable cause to believe that contraband was contained in the auto. Obtaining a warrant would have necessitated "the inconvenience of a special police detail to guard the immobilized automobile." When the suspects went across the street to use the telephone, they may have been alerting a confederate to come and move the car or remove the contraband, or other confederates may have been in the vicinity, armed or otherwise ready for ambush.
We conclude that the warrantless search at the gas station was lawful because the officer's probable cause to search was accompanied by "exigent circumstances."
This does not end our discussion, however. We must decide if the warrantless search and seizure of the cigarettes, "angle iron", lighter fluid, etc., at the police station comports with the Fourth Amendment standards. In that regard, we are governed by Chambers v. Maroney, supra.
In Chambers, it was argued, in circumstances similar to the present ones, that when an arrest is made in a car on the open highway, and the car and the accused are transported to the police station, the question of probable cause to search the car should be submitted to a detached magistrate in the form of a search warrant. The car is no longer movable and the suspects are in custody. In short, it was contended that all of the "exigent circumstances" which justify a warrantless search on the highway no longer obtain at the police station. The court rejected this argument and held that when the initial intrusion is permissible under Carroll, i. e., when there are probable cause and "exigent circumstances" necessary to *1376 justify a warrantless search of the car on the highway, a subsequent search made at the station house is also permissible.
"For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search [at the station house] without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment." Chambers v. Maroney, supra, 399 U.S. at 52, 90 S.Ct. at 1981, 26 L.Ed.2d 419.
Thus, the touchstone of the court's holding is probable cause.[13] The Court reasons that a suspect's Fourth Amendment rights are adequately protected if probable cause exists at the time that the automobile is stopped; the same probable cause to search is present when an immediate search is conducted at the station house. We conclude that the search and seizure at the police station were lawful and reasonable under the Fourth Amendment and that evidence was properly admitted at trial.[14]
The relator's final contention is that his co-defendant's testimony exonerated the relator from any complicity in the crime. Such matters of credibility must be left to the trial judge or jury and are not properly before this court to consider in a petition for a writ of habeas corpus. 28 U.S.C.A. § 2254; Trujillo v. Tinsley, 333 F.2d 185 (10th Cir. 1964); Judy v. Pepersack, 284 F.2d 443 (4th Cir. 1960); United States ex rel. Rooney v. Ragen, 173 F.2d 668 (7th Cir. 1949); United States ex rel. Williams v. Myers, 196 F.Supp. 280 (E.D.Pa.1961).
NOTES
[1]  Following his conviction, relator moved for a new trial and for arrest of judgment. His motions were heard by the Court of Common Pleas, en banc, and were denied per curiam on April 29, 1969. The Superior Court of Pennsylvania affirmed his conviction per curiam on February 5, 1970, Commonwealth v. Johnson, 216 Pa.Super. 785, 261 A.2d 102.

In his petition, petitioner alleged that the Supreme Court of Pennsylvania had "Denied Per Curiam" his Petition for Allowance of Appeal. We accepted this allegation and proceeded with the research and writing of this opinion. Just prior to filing, we learned from the Prothonotaries of the Superior and Supreme Courts that no such appeal had been taken. We feel that justice would not be best served by dismissing this petition, thereby requiring the petitioner to seek further relief in state court with the probable eventual filing of a second petition for writ of habeas corpus. Two considerations militate against dismissal at this juncture for failure to exhaust:
(1) the unlikely success of a petition to appeal nunc pro tunc in state court and, even if granted, the unlikely success of that appeal in light of the Pennsylvania Supreme Court's unfavorable ruling on the co-defendant's timely appeal; and
(2) the fact that "[t]he rule of exhaustion `is not one defining power but one which relates to the appropriate exercise of power.' [citations omitted]." Fay v. Noia, 372 U.S. 391, 420, 83 S.Ct. 822, 839, 9 L.Ed.2d 837 (1963).
Accordingly, we have reached the merits of relator's petition.
[2]  The record is comprised of testimony taken at the pretrial motion to suppress evidence (which was denied) and at the trial itself.
[3]  From the record, it is apparent that the driver consistently referred to the car as "his" car, although the officer never directly asked him if he actually owned the car.
[4]  Our discussion of this point would not be complete without some reference to the opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Mr. Justice Stewart (with Justices Douglas, Brennan and Marshall concurring in that portion of the opinion) presented a thorough discussion of the "plain view" exception to the warrant requirement. A careful reading of that discussion discloses that it is unapplicable to this part of our case. The thrust of Justice Stewart's discussion concerns the seizure of evidence or contraband after a search is already in progress. Here, we are not concerned with the seizure of the cartons of cigarettes, but whether the knowledge of its presence in the car was lawfully obtained by the officer, which knowledge can be added to other facts otherwise lawfully obtained in order to constitute probable cause for arrest.
[5]  375 to 400 cartons were seized from the back seat and the trunk of the car. At trial, it was estimated that the majority of the cartons were contained in boxes located on the back seat.
[6]  Both searches must be judged by exceptions to the warrant requirements since the subsequently-obtained search warrant is conceded to be defective because the police failed to return the warrant and affidavit to the Justice of the Peace.
[7]  See also, Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
[8]  "[Our] legal system ... regards warrantless searches as `per se unreasonable' in the absence of `exigent circumstances.'" Coolidge v. New Hampshire, 403 U.S. 443, 470, 91 S.Ct. 2022, 2040 (1971).
[9]  See, Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782.
[10]  There are circumstances where probable cause to arrest exists but probable cause to search is lacking. In Preston v. United States, supra, the defendants were arrested for vagrancy. While the court found that the arrest was valid, there could be no probable cause to search because there are no fruits or instrumentalities of the "crime" or vagrancy subject to seizure. Likewise, in Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538, the court found that there was no probable cause to search a car, the occupants of which had been arrested for reckless driving. The court stated that the Carroll line of cases insisted that the searching officers have "`probable cause' to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search." Id. at 221, 88 S.Ct. at 1475.

It should be noted that probable cause to believe that an automobile is stolen apparently will justify an immediate warrantless search. Preston v. United States, supra, 376 U.S. at 367-368, 84 S.Ct. 881. See also, Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).
There may be situations where an officer has probable cause to stop an automobile on the highway and conduct a warrantless search, but he does not have probable cause to arrest. Such a situation would exist when the police have received information from a reliable informant that the fruits of a recent crime are hidden in a particular car but the same information exonerates the occupants of the car.
[11]  The Carroll line of cases are often cited to justify a distinction between an automobile and a home in terms of circumstances allowing a warrantless search. Chambers v. Maroney, supra, 399 U.S. at 48, 90 S.Ct. 1975. This concept has spawned what is called the "automobile exception" to the warrant requirement. In a sense, such language has only clouded the real issues vis-a-vis automobile searches, for in terms of pure legal issues there is no "automobile exception." As stated previously, automobiles, like homes or offices, cannot be searched without a warrant except on probable cause and when accompanied by "exigent circumstances." As we see it, then, the standard to be applied is essentially the same regardless of the object to be searched. What has created the distinction is what normally inheres in the very nature of the object searched and not the application of different standards. Generally, courts have presumed the existence of "exigent circumstances" when the validity of an automobile search is questioned for "the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained" Chambers v. Maroney, supra, at 51, 90 S.Ct. at 1981. On the other hand, courts have generally presumed that there are no "exigent circumstances" to justify a warrantless search of a home or office.

This is not to suggest that the stringent standards for a warrantless search would never allow a warrantless search of a home or office, but it is a great deal more difficult to sustain the existence of "exigent circumstances" in such a situation. Likewise, we do not suggest that "exigent circumstances" are always present in searches of automobiles.
"Neither Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords." Chambers v. Maroney, supra at 50, 90 S.Ct. at 1980.
We feel that this language infers what we are here saying, i. e., that it is at least difficult to sustain the nonexistence of "exigent circumstances" in automobile searches. We do not conclude that any search of an automobile with probable cause is per se reasonable (see, Mr. Justice Stewart's characterization of the concurring and dissenting opinion by Mr. Justice White, Coolidge v. New Hampshire, supra, 91 S.Ct. at 2045), only that "exigent circumstances" are far more likely to be present in automobile searches than in house searches.
[12]  In fact, Coolidge is almost sui generis because of the unusual set of circumstances, and we do not feel that it has disturbed, in any way, the law of automobile searches as enunciated in Carroll and its progeny; it is mainly the fruition of the warning in Chambers (see n. 11) that we cannot dispense with the search warrant in every automobile search. Notwithstanding Coolidge, the existence of "exigent circumstances" accompanying automobile searches is still the normal rule but that determination must be made in each case after reviewing all of the surrounding circumstances.
[13]  The court in Chambers is not unmindful of the "exigent circumstances" requirement of the warrantless search at the station house. However, the court takes a pragmatic approach to the problem.

"The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search [at the station house] without a warrant and the car's immobilization until a warrant is obtained." Chambers v. Maroney, supra at 52, 90 S.Ct. at 1981.
[14]  It appears from the court's discussion that the search at the station house must be "immediate." It is possible that this qualification will pose line-drawing problems in future cases, but we are not presented with such problems here. As pointed out in Coolidge, 91 S.Ct. at n. 20, the search in Chambers was conducted "many hours" after the car had been removed to the station house. In the present case, the relator was stopped at 4:30 a. m., Sunday morning, and the search and seizure was started at the police station at 12:30 p. m., Sunday afternoon. Thus, the search and seizure in our case appears to be as "immediate" as it was in Chambers.


GT Advanced Technologies Inc. (NASDAQ: GTAT) (the “Company”) today announced the pricing of $205 million aggregate principal amount of its 3.00% Convertible Senior Notes due 2017. The Company has granted the underwriters an option to purchase up to an additional $15 million aggregate principal amount of the notes from the Company.

The notes will mature on October 1, 2017, unless repurchased or converted in accordance with their terms prior to such date, and will bear interest at a rate of 3.00% per year, payable semiannually in arrears on April 1 and October 1 of each year, beginning on April 1, 2013. The notes will be convertible, under certain circumstances, into cash, shares of the Company’s common stock, or a combination of both, at the Company’s election, at an initial conversion rate of 129.7185 shares of the Company’s common stock per $1,000 principal amount of notes, which is equivalent to an initial conversion price of approximately $7.71 per share of the Company’s common stock. The Company will not have the right to redeem the notes prior to maturity.

The Company has also entered into convertible note hedge transactions with certain financial institutions, some of which are affiliates of the underwriters (the “Option Counterparties”) , which are intended to reduce its exposure under the notes to future increases in the price of the Company’s common stock. The Company has also entered into separate warrant transactions with the Option Counterparties, and the warrants have an exercise price that is approximately 67.5% higher than the closing price per share of the Company’s common stock on September 24, 2012. The issuance of the warrants could have a dilutive effect on the Company’s common stock to the extent that the market price exceeds the exercise price of the warrants. If the underwriters exercise their option to purchase additional notes, the Company may enter into additional convertible note hedge transactions and additional warrant transactions with the Option Counterparties.

The Company estimates that the net proceeds of this offering will be $198.3 million (or $212.9 million if the underwriters’ option to purchase additional notes is exercised in full), after deducting the underwriters’ discounts and commissions and estimated offering expenses. The Company expects to use approximately $15.2 million of the net proceeds from the offering to pay the cost of the convertible note hedge transactions (after such cost is partially offset by the proceeds to the Company from the sale of the warrants in the warrant transactions). The Company intends to use the remainder of the net proceeds of the offering for general corporate purposes, which may include the acquisition of companies or businesses, repayment and refinancing of debt, working capital and capital expenditures.

In connection with the convertible note hedge transactions and the separate warrant transactions, the Option Counterparties (or their affiliates) that will be parties to those transactions have advised the Company that they expect to enter into various derivative transactions in the Company’s common stock, and may purchase and sell the Company’s common stock in secondary market transactions, concurrently with or shortly after the pricing of the notes. This activity could increase (or reduce the size of any decrease in) the market price of the Company’s common stock or the notes at that time. In addition, the Option Counterparties or affiliates thereof may modify their hedge positions by entering into or unwinding various derivatives with respect to the Company’s common stock and/or purchasing or selling the Company’s common stock or other securities of the Company in secondary market transactions following the pricing of the notes and prior to the expected maturity of the notes (and are likely to do so during any observation period related to a conversion of notes). This activity could also cause or avoid an increase or a decrease in the market price of the Company’s common stock.

This press release shall not constitute an offer to sell or a solicitation of an offer to buy these securities, nor shall there be any sale of these securities, in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.

UBS Investment Bank, BofA Merrill Lynch and Credit Suisse will act as joint book-running managers for the offering. The issuer has filed a registration statement (including a base prospectus and related preliminary prospectus supplement) with the Securities and Exchange Commission, or SEC, for the offering. Before you invest, you should read the preliminary prospectus supplement, the accompanying prospectus and the other documents the issuer has filed with the SEC for more complete information about the issuer and the offering. You may get these documents for free by visiting EDGAR on the SEC web site at www.sec.gov. Alternatively, the issuer, the underwriters or any dealer participating in the offering will arrange to send you the preliminary prospectus supplement and the accompanying prospectus if you request them by contacting UBS Investment Bank, Attn: Prospectus Department, 299 Park Avenue, New York, NY 10171 or by calling (888) 827-7275, by contacting BofA Merrill Lynch, Attn: Prospectus Department, 222 Broadway, 7th Floor, New York, NY 10038, by calling (866) 500-5408 or by emailing dg.prospectus_requests@baml.com or by contacting Credit Suisse Securities (USA) LLC, Attn: Prospectus Department, One Madison Avenue, New York, NY 10010, by calling (800) 221-1037 or by emailing newyork.prospectus@credit-suisse.com.

About GT Advanced Technologies Inc.

GT Advanced Technologies Inc. is a global provider of polysilicon production technology, and sapphire and silicon crystalline growth systems and materials for the solar, LED and other specialty markets. The company's products and services allow its customers to optimize their manufacturing environments and lower their cost of ownership. For additional information please visit www.gtat.com.

Forward-Looking Statements

This press release contains forward-looking statements regarding our planned offer and sale of senior convertible notes and the use of the net proceeds from any such sale. We cannot be sure that we will complete the offering or, if we do, on what terms we will complete it.Forward-looking statements are based on current beliefs and expectations and are subject to inherent risks and uncertainties, including those discussed under the caption “Risk Factors” in the prospectus and prospectus supplement.In addition, management retains broad discretion with respect to the allocation of the net proceeds of this offering.The forward-looking statements speak only as of the date of this release, and GT Advanced Technologies Inc. is under no obligation to, and expressly disclaims any such obligation to, update or alter its forward-looking statements, whether as a result of new information, future events, or otherwise.


Q:

Checking if an attribute exists in a shortcode

I've written a small plugin that spits out html for a button. It works great, except for one thing: If the user doesn't specify an image, the image appears broken. Is there a way for me to check and see if the user has specified an image, and only print the image code if that's the case?
Here's my plugin code:
function button_shortcode($args) {
    return "" . $args["smalltext"] . "" . $args["bigtext"] . "";
}
add_shortcode("button", "button_shortcode");

Here's the shortcode:
[button url="http://www.example.com/" img="/path/to/image.png" smalltext="Smaller Text" bigtext="Bigger Text"]

A:

Okay, I've re-written the function so that it does the following:

checks that your array values are set before using them. You can't always be sure they'll be there.
if the image is empty, it returns with an error message. Not sure if this is what you want, but you can just remove it.
first creates your image html.
then, if there's a URL specified, it wraps up the image in your link HTML.  If not, it'll just return your image HTML.

Note the way I've created your HTML.  Breaking and opening strings and escaping quotes etc. is messy and difficult to read.  Use single quotes when constructing HTML strings so you can use double-quotes without escaping them.
I've also used sprintf() and then substitute each piece I want.  Much easier to read, and modify later.
Hope it helps!
function button_shortcode($args) {

    if ( empty( $args['img'] ) ) {
        return 'Error - no image source was specified';
    }

    $sBigText = isset( $args['bigtext'] )? $args['bigtext'] : '';
    $sSmallText = isset( $args['smalltext'] )? $args['smalltext'] : '';

    $sHtmlToReturn = sprintf( '%s%s', $sBigText, $args['img'], $sSmallText, $sBigText );

    if ( !empty( $args['url'] ) ) {
        $sHtmlToReturn = sprintf( '%s', $args['url'], $sHtmlToReturn );
    }

    return $sHtmlToReturn;
}

Paul.

A:

Borek pointed in the right direction, here's my fine code*:
function button_shortcode($attributes, $content) {
    if ($attributes["image"] != "") {
        $img = "";
    } else {
        $img = "";
    }
    if ($attributes["intro"] != "") {
        $intro = "" . $attributes["intro"] . "";
    }
    return "" . $img . $intro . $content . "";
}
add_shortcode("button", "button_shortcode");

*Note: I did change some of the attribute names and stuff as well, but that wasn't necessary.


National differences in environmental concern and performance are predicted by country age.
There are obvious economic predictors of ability and willingness to invest in environmental sustainability. Yet, given that environmental decisions represent trade-offs between present sacrifices and uncertain future benefits, psychological factors may also play a role in country-level environmental behavior. Gott's principle suggests that citizens may use perceptions of their country's age to predict its future continuation, with longer pasts predicting longer futures. Using country- and individual-level analyses, we examined whether longer perceived pasts result in longer perceived futures, which in turn motivate concern for continued environmental quality. Study 1 found that older countries scored higher on an environmental performance index, even when the analysis controlled for country-level differences in gross domestic product and governance. Study 2 showed that when the United States was framed as an old country (vs. a young one), participants were willing to donate more money to an environmental organization. The findings suggest that framing a country as a long-standing entity may effectively prompt proenvironmental behavior.