P. v. Alderman

Filed 3/5/07 P. v. Alderman CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Terry Gene Alderman appeals a judgment following his guilty plea after the trial court denied his motion pursuant to Penal Code section 1538.5.

On appeal, defendant asserts the trial court erred in denying his motion because the affidavit in support of the search warrant failed to establish probable cause for the search of his house. In addition, defendant argues the good faith exception does not cure the defects in the affidavit.

Statement of the Facts and Case

As the result of a search of defendants home pursuant to the execution of a search warrant, defendant was charged in a criminal complaint with possession for sale of cocaine (Health & Saf. Code, 11351); possession for sale of methamphetamine (Health & Saf. Code, 11378); possession for sale of marijuana (Health & Saf. Code, 11359); and possession for sale of hydrocodone and oxycodone (Health & Saf. Code, 11350, subd. (a)). The information also alleged that defendant was personally armed with a firearm (Pen. Code, 12022, subd. (c)), that he had suffered two prior serious felony convictions under the Three Strikes law (Pen. Code, 667, subds. (b)-(i), and that he was ineligible for probation (Health & Saf. Code, 11370.2, subd. (a)).

Prior to the preliminary hearing, defendant filed a motion to suppress evidence seized as a result of the execution of the search warrant on his home, on the grounds that the confidential informants that provided information to the officers were not reliable. The magistrate denied the motion, and an information charging the same crimes as the complaint was filed in superior court.

After the information was filed, defendant filed a motion pursuant to Penal Code section 995, challenging the denial of the motion to suppress heard at his preliminary hearing. The motion was heard and denied.

Following the denial of defendants motion pursuant to Penal Code section 995, defendant pleaded guilty to all the charges in the information and admitted the prior convictions and enhancements. Defendant was sentenced to 10 years in state prison.

Defendant filed a timely notice of appeal pursuant to Penal Code section 1538.5, subdivision (m), limiting the issue on appeal to the motion to suppress.

Discussion

On appeal, defendant contends the affidavit supporting the search warrant failed to establish probable cause. In particular, defendant asserts: the informants were not shown to be reliable; and the remaining information in the affidavit is insufficient to establish probable cause. Finally, defendant argues, the police did not act in good faith in relying on the invalid warrant.

Background Facts

The affidavit in support of the search warrant was provided by Officer Scott McCulloch, and included a description of defendants house, his date of birth, and a description of defendants three cars. Officer McCulloch also described the property to be seized including drugs, scales and indicia of drug sales, firearms, and counterfeiting materials.

In addition to the descriptive facts about defendant, Officer McCulloch included information about his training and experience, including his education on controlled substances, and his participation in over 200 narcotics cases in the course of his career. Officer McCulloch also stated in his affidavit information regarding the practices of methamphetamine dealers, including how the drugs are packaged, and how dealers use and transport the drug.

The affidavit also included information from 4 confidential informants (CIs), identified as A, B, C, and D. All four CIs indicated they were personally acquainted with defendant, described defendants residence, including the address of 1543 Saratoga Avenue in San Jose, and provided a physical description of defendant. In addition to this consistent descriptive information, the CIs also provided information specific to their individual experience with defendant:

CI A said that defendant was selling large amounts of methamphetamine from his home. A also stated that on more than one occasion he had purchased methamphetamine from defendant, and had personally observed methamphetamine inside defendants home. A personally observed surveillance cameras outside defendants home, and saw the television monitors inside the home that corresponded with the cameras.

CI B said that he personally observed defendant making counterfeit money in his home.

CI C indicated that he had purchased methamphetamine from defendant for $900 an ounce, and that he personally observed numerous sales of methamphetamine occurring in defendants home. With regard to CI C, the affidavit also contained an averment that Officer McCulloch believed C to be reliable because on at least one occasion in the past three months, C provided information to law enforcement that led to an arrest.

CI D indicated that he had personally observed firearms inside defendants house. Specifically, D saw a shotgun on the couch in the home, and saw defendant holding an unknown type of pistol. D also said he observed methamphetamine in a desk drawer in defendants house. D said that he saw a machine that prints counterfeit money on a desk defendants house, and that D had seen the machine print counterfeit money.

Officer McCulloch stated that he checked defendants criminal history, and that it contained a physical description and the fact that he lived at 1543 Saratoga Avenue in San Jose. Officer McCulloch also checked defendants Department of Motor Vehicle (DMV) photograph that he said matched the physical descriptions provided by all four CIs. Based on this information, Officer McCulloch conducted surveillance of defendants house and saw a man outside the house that matched the CIs description of defendant and defendants DMV photograph, and that the man walked into the house while Officer McCulloch was watching.

Probable Cause to Support the Search Warrant

The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. (People v. Kraft (2000) 23 Cal.4th 978, 1040 (Kraft), citing Illinois v. Gates (1983) 462 U.S. 213, 238-239 (Gates) & People v. Camarella (1991) 54 Cal.3d 592, 600-601 (Camarella).) [T]he magistrates determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause. [Citations.] Doubtful or marginal cases are resolved in favor of upholding the warrant. [Citations.] (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.)

Probable cause is a strong suspicion that what is being sought will be in the location to be searched. (People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232, quoting Wimberly v. Superior Court (1976) 16 Cal.3d 557, 564.) Probable cause is a fluid conceptturning on the assessment of probabilities in particular factual contextsnot readily, or even usefully, reduced to a neat set of legal rules. [Citation.] (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1783, quoting Gates, supra, 462 U.S. at p. 232.) Whether sufficient probable cause exists in a particular case depends on the totality-of-the-circumstances . . . . (Camarella, supra, 54 Cal.3d at p. 601, quoting Gates, supra, 462 U.S. at p. 241.) The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Kraft, supra, 23 Cal.4th at pp. 1040-1041, quoting Gates, supra, 462 U.S. at p. 238.)

The Informants Reliability

In urging the lack of sufficient probable cause, defendant challenges the reliability of the CIs on two grounds. Defendant first points to the absence of any averment in the affidavit that CIs A, B, and D had any previous contact with the officer on which to establish his reliability. Defendant also argues that informant Cs reliability was not established, because the affidavit contained a reference to only one previous tip that resulted in an arrest, not a conviction. Finally, defendant asserts the CIs do not corroborate each other.

While an informants veracity, reliability, and basis of knowledge are all highly relevant in determining the value of his report, these elements should not be understood as entirely separate and independent requirements to be rigidly exacted in every case, but understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question of whether there is probable cause to believe that contraband or evidence is located in a particular place. (People v. Terrones (1989) 212 Cal.App.3d 139, 146, citing Gates, supra, 462 U.S. at p. 230.) In other words, the reliability of an informant is now just one factor to consider in assessing probable cause . . . . (People v. Mayer (1987) 188 Cal.App.3d 1101, 1116, citing Gates, supra, 462 U.S. at p. 233.)

An informants reliability may be established in a number of ways, including independent police work that corroborates the information. (People v. Terrones, supra, 212 Cal.App.3d at p. 147.) Although reliability is not shown by corroborating easily obtainable facts unrelated to the reported criminal activity (Higgason v. Superior Court (1985) 170 Cal.App.3d 929; see Gates, supra, 462 U.S. at p. 245; Alabama v. White (1990) 496 U.S. 325, 332), corroboration need not . . . be in any particular form. [T]he authorities need only confirm the untested informants reliability in essential respects; they need not establish every element of probable cause by independent means. [Citations.] [Citation.] In addition, [i]t is . . . possible for an informants bare conclusion to be buttressed by secondary information, which itself does not amount to probable cause but which fortifies the first, and for the two in combination to provide sufficient cause for the issuance of a search warrant. [Citation.] (People v. Clark (1992) 3 Cal.4th 41, 141, original italics; see People v. Fein (1971) 4 Cal.3d 747, 754; People v. Caron (1981) 115 Cal.App.3d 236, 242.)

Because unverified information from an untested or unreliable informant is ordinarily unreliable, it does not establish probable cause unless it is corroborated in essential respects by other facts, sources or circumstances. [Citations.] For corroboration to be adequate, it must pertain to the alleged criminal activity; accuracy of information regarding the suspect generally is insufficient. [Citation.] . . . [Citation.] However, the corroboration is sufficient if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant. (People v. Johnson (1990) 220 Cal.App.3d 742, 749, disapproved on another point in Camarella, supra, 54 Cal.3d 592, 606, fn. 6.)

The purpose served by corroboration is to establish that the information provided by the informant did not constitute a made-up story, one fabricated out of whole cloth. Corroboration of part of the information provided by the informant [gives] credibility to the remainder of the information. [Citation.] It is sufficient that an informants statements are corroborated in a number of key respects, and a piecemeal approach is not required. (People v. Rochen (1988) 203 Cal.App.3d 684, 689.)

Here, all four CIs said that the defendant was named Terry, gave the same physical description of him and the fact that he lived at the Saratoga Avenue address. McCulloch corroborated that defendant was named Terry through a search of his DMV records confirming both defendants physical description as well as his address, confirmed that the cars parked in front of the house were registered to defendant, confirmed defendants physical description and connection to the house through surveillance. In addition, CI B and D, both of whom said they saw a counterfeiting operation in defendants home corroborated each other. Finally, McCulloch verified that defendants criminal history and physical description through the Criminal Justice Information Control System.

It may be true that information received from sources who are themselves the focus of pending criminal charges or investigations is inherently suspect. (People v. Duarte (2000) 24 Cal.4th 603, 617; but see United States v. Tarazon (9th Cir. 1993) 989 F.2d 1045, 1049 [admissions of crimes carry their own indicia of credibilitysufficient at least to support a finding of probable cause to search].) And here, McCulloch might have done more to corroborate the informants information, such as to arrange for one of the CIs to actually purchase methamphetamine from defendant. But the pivotal point is that (1) all four CIs identified defendant by physical description, and address; (2) three of the CIs said they saw methamphetamine or actually purchased it from defendant in his home; and (3) two of the informants said they saw a counterfeiting operation in defendants home. Officer McCulloch confirmed some of the information by investigation and surveillance. Having corroborated a part of the investigation, the [agent] had reasonable cause to believe the remaining unverified information was likewise true. (People v. Rochen, supra, 203 Cal.App.3d at p. 689.)

We find that McCullochs investigation was sufficient to corroborate the CIs information and establish its reliability. Moreover, taken together, the four CIs and McCullochs information further established probable cause to search the residence for methamphetamine and counterfeit production, and clearly provided a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. (Kraft, supra, 23 Cal.4th at p. 1040, citing Gates, supra, 462 U.S. at pp. 238-239.)

There is no need to reach the issue of whether the good-faith exception to the Fourth Amendment exclusionary rule is applicable in light of our conclusion the magistrate properly determined there was sufficient probable cause to issue the search warrant.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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