P. v. Bernier

Filed 9/13/07 P. v. Bernier CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Frederick R. Rotenberg, Judge. Affirmed.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

Norman Bernier (appellant) appeals from a judgment entered after a jury trial in which he was convicted of possession of a destructive device, in violation of Penal Code section 12303.2, and possession of methamphetamine, in violation of Health & Safety Code section 11377, subdivision (a). We affirm.

CONTENTION

Appellant contends that the trial court erred in denying his motion to suppress evidence. Specifically, appellant contends that the affidavit in support of a search warrant that was issued on suspicion of drugs being sold out of appellants residence failed to establish probable cause to search the residence. Appellant further contends that the good faith exception to the warrant requirement does not apply because the officers reliance on the warrant was not objectively reasonable.^[1]

BACKGROUND

1. The Search Warrant

On April 10, 2006, Deputy Sheriff Richard Doray sought a warrant to search a residence occupied by appellant, his adult siblings, Joan Bernier and Raymond Bernier, and their parents (the location); the persons of appellant and his siblings; and two vehicles, one registered to appellant and the other registered to Joan. Deputy Doray executed an affidavit in support of issuance of the warrant. The affidavits statement of probable cause contained the following information:

On March 13, 2006, Deputy Doray was contacted by patrol Deputy S. Chapman, who informed him that the residents of the location were selling methamphetamine. Deputy Chapman indicated that Joan Bernier had been arrested on March 12, 2006 on drug charges, and that there had been arrests at the location over the past five years for narcotics and stolen vehicles.

Deputy P. Valle provided additional information to Deputy Doray regarding activity at the location. Deputy Valle had arrested Joan Bernier for possession of a controlled substance (methamphetamine) on December 17, 2004. In addition, Deputy Valle arrested a female for outstanding warrants and possession of a controlled substance from a vehicle in front of the location. The female, who had two baggies of methamphetamine in her possession, was sitting in the drivers seat of the vehicle, and Raymond Bernier was in the passenger seat.^[2] Deputy Valle also indicated that he had received information from people he had arrested and citizen informants that Joan Bernier was selling methamphetamine and heroin from the location.

Deputy Doray learned that a controlled purchase of methamphetamine was made from Joan Bernier in October 2004, and Deputy Valle informed him that both Norman and Raymond Bernier were also involved in the sale of drugs from the location.

On March 28, 2006, Deputy Doray conducted a surveillance of the location. He observed a white male, approximately 50 years old, with gray hair and a gray beard, walk down the driveway and onto the sidewalk. The male looked both ways down the street, then walked to a car parked on the street and looked in the window. He then looked at the license plate of the vehicle. He then walked in the opposite direction and looked into two other cars, and stood in front of a white two-door Acura. After approximately five minutes, another white male walked down the driveway and entered the driver door of the Acura. The man with the beard entered the passenger side. They drove off and returned after approximately 10 minutes; the passenger exited and walked up the driveway of the location and the man with the beard drove away.

Approximately 30 minutes later, yet another white male walked up the driveway of the location and out of view, exiting after about 10 minutes. Deputy Doray was unable to get a patrol car to contact that male due to unavailability.

On April 5, 2006, Deputy Doray received a call from a citizen informant regarding narcotics sales and use at the location. Deputy Doray conducted a check of criminal history for Joan Bernier, Raymond Bernier, and Norman Bernier. He found that Joan Bernier has an extensive arrest record and that her last arrest was March 12, 2006, for violation of Health & Safety Code section 11377 (unauthorized possession of a controlled substance). He further found that Raymond Bernier has a similar record and his last arrest was March 24, 2006, for the same violation. In addition, appellant had an extensive arrest record and his last arrest was May 18, 2005, for a violation of Penal Code section 496 (receiving stolen property).

On the basis of the above information, a magistrate judge issued the search warrant on April 10, 2006.

2. The Search

On April 13, 2006, Deputy Doray led a team of eight deputies and a canine to execute the search warrant. The search included a semi-enclosed service porch which contained a desk and a small bed. Inside a black coffee cup located on one of three bookcases in that area, Deputy Doray found a small baggie containing what later tested to be a small but usable quantity of methamphetamine. Also, two galvanized steel pumps, each with end caps and a fuse attached, were found in the service porch area. Deputy Doray recognized these as pipe bombs and evacuated the house and the surrounding area.

The Los Angeles County Sheriffs bomb squad arrived on the scene and rendered the two bombs safe. According to prosecution witness Irma Gonzales of the Los Angeles County Sheriffs bomb squad, the two pipe bombs were fully functional, and if they had detonated, shrapnel could have been carried at least 200 feet.

Deputy Doray testified that he asked appellant if the service porch was appellants room. Appellant confirmed that he slept on the service porch and that he was the only individual that used the porch. However, appellant denied that the pipe bombs were his.

3. The Trial Court Proceedings

An information filed May 17, 2006, charged appellant with a felony count of possession of a destructive device in violation of Penal Code section 12303.2 and a felony count of possession of a controlled substance (methamphetamine) in violation of Health & Safety Code section 11377, subdivision (a). Appellant pleaded not guilty to both counts. Appellant filed a motion to traverse and quash the search warrant for lack of probable cause and to suppress evidence, which was denied on August 11, 2006. In denying appellants motion, the trial court agreed with appellant that the statement of probable cause contained a fair amount of information from a long period of time ago, including the assertions that problems had been occurring at that location for the previous five years and an assertion that the defendants sister was arrested in December 2004. However, the trial court noted that there was also more recent information, including the officers surveillance, information from a citizen informant, and more recent arrests of appellant and his siblings. The court concluded that, taken as a whole, there was sufficient probable cause for issuance of the warrant. Further, the court noted that even if sufficient probable cause had not existed, the good faith exception applies.

On November 13, 2006, the jury returned guilty verdicts on both counts. Appellant was sentenced the same day. The court imposed the low term of two years on count 1 (Pen. Code, 12303.2) and the low term of 16 months, concurrent, on count 2 (Health & Saf. Code, 11377, subd. (a)).

Notice of appeal was filed on November 13, 2006.

DISCUSSION

I. The Trial Courts Finding of Probable Cause

Appellant argues that the information contained in the statement of probable cause was not valid, current, specific factual information and therefore did not support a finding of probable cause. Instead, appellant argues, the information contained in the statement of probable cause fit into five general categories: (1) stale information; (2) information about drug possession; (3) uncorroborated anonymous tips; (4) surveillance showing unremarkable foot traffic in and out of the location during a single one-hour period; and (5) opinions of law enforcement officers that drugs were being sold by the Berniers out of the location.

Appellant first addresses the opinions of Deputies Chapman and Valle, who informed Deputy Doray that the Berniers were involved in the sale of methamphetamine and that the location had been a community problem for many years. Appellant cites Nathanson v. U.S. (1933) 290 U.S. 41, 47 for the proposition that a warrant to search a private dwelling may not rest upon mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances. (See also People v. Garcia (2003) 111 Cal.App.4th 715, 721 [A statement that the affiant has cause to suspect and does believe that the evidence is located at the targeted premises is insufficient].)

Next, appellant points to two specific pieces of information stated in the affidavit which appellant alleges were particularly stale: (1) information regarding a controlled narcotics purchase from Joan Bernier in October 2004; and (2) the arrest of Joan Bernier on December 17, 2004, for possession of a controlled substance and vehicle theft. Appellant acknowledges that there is no bright line rule indicating when information becomes stale, but, citing Hemler v. Superior Court (1975) 44 Cal.App.3d 430, 434, states that delays of more than four weeks are generally considered insufficient to demonstrate present probable cause.

Citing People v. Pressey (2002) 102 Cal.App.4th 1178, 1190, appellant next argues that drug possession or use arrests do not automatically provide probable cause to search the arrestees home. Appellant then targets Deputy Dorays reference to unnamed sources who informed Deputy Valle that drugs were being sold from the location. Appellant points out that nothing in the affidavit indicated that these sources were reliable, and that the information provided by these sources did not necessarily engender criminal activity. Further, appellant argues that Deputy Dorays independent police work did not corroborate any suspicious activity. In sum, appellant argues that the affidavit, taken as a whole, did not establish probable cause for issuance of the search warrant.

A. Standard of Review

Our review of a trial court determination on a motion to suppress evidence is a two-step process. Express or implied findings of fact are upheld if supported by substantial evidence. We then use our independent judgment to determine whether the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Leyba (1981) 29 Cal.3d 591, 596-597.)

The magistrates decision is entitled to deferential review and must not be overturned unless the supporting affidavit fails, as a matter of law, to support a finding of probable cause. Doubtful or marginal cases are to be resolved in favor of upholding the warrant. (People v. Garcia, supra, 111 Cal.App.4th at p. 720; see also People v. Mesa (1975) 14 Cal.3d 466, 470.)

B. The Trial Court Did Not Err in Finding Probable Cause to Issue the Search Warrant

In exercising our independent review of the trial courts decision, we must determine whether the magistrate had a substantial basis for concluding that a search warrant would uncover evidence of criminal activity. (Illinois v. Gates (1983) 462 U.S. 213, 238-239; People v. Hepner (1994) 21 Cal.App.4th 761, 775.) In deciding if an affidavit provides probable cause, the magistrate is charged with making a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or other evidence of a crime will be found in a particular place. (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041, quoting Illinois v. Gates, supra, at pp. 238-239.) The totality of circumstances must be considered in determining the sufficiency of the affidavit, and a finding of probable cause is not defeated simply because individual facts in an affidavit are susceptible to more than one reasonable inference. (People v. Stanley (1999) 72 Cal.App.4th 1547, 1555.) Probable cause is a fluid concept that turns on assessment of particular factual contexts, and thus is not reducible to a prescribed set of rules. (Illinois v. Gates, supra, at p. 239.) However, it is clear is that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. [Citation.] (Id. at p. 235.)

Under these standards, we find that the magistrate had a substantial basis for concluding that the search of appellants residence would probably uncover evidence of criminal activity. Specifically, Deputy Dorays surveillance of the location on March 28, 2006, corroborated what he had been told by Deputies Chapman and Valle as to the activities going on there. While the activity that Deputy Doray observed did not amount to prima facie evidence of narcotics sales on the premises, only the probability of such activity need be shown. (Illinois v. Gates, supra, 462 U.S. at p. 235.)

The affidavit also provided evidence of recent arrests of appellant and his siblings, the most recent of which was Raymond Berniers arrest on March 24, 2006, for a drug offense. Joan Bernier was also recently arrested on March 12, 2006, for a drug offense. Appellant had been arrested less than a year before, on May 18, 2005, for receiving stolen property. People v. Pressey, supra, 102 Cal.App.4th 1178, cited by appellant for the proposition that simple drug possession or use arrests do not establish probable cause for a search warrant, is distinguishable. In Pressey, the only basis for the search warrant was the affiants belief that because the defendant was arrested for possessing marijuana and driving under its influence, contraband was likely to be found in his residence. Here, other corroborating evidence existed, including information from police officers, a citizen informant, and Deputy Dorays own observations of the residence. Thus, the recent drug-related arrests of both Joan Bernier and Raymond Bernier were supportive of the magistrates finding of probable cause.

In sum, we find that under the totality of the circumstances, there was a fair probability that evidence of drug activity would be found in the Bernier residence.

II. Even if Probable Cause Did Not Exist, the Good Faith Exception Applies Under the Circumstances of This Case

Under the good faith exception to the search warrant requirement, evidence obtained in violation of the Fourth Amendment need not be suppressed where the officer executing the warrant did so in objectively reasonable reliance on the warrants authority. (United States v. Leon (1984) 468 U.S. 897, 913.) The government has the burden of establishing objectively reasonable reliance under Leon. (People v. Willis (2002) 28 Cal.4th 22, 36-37; People v. Camarella (1991) 54 Cal.3d 592, 596.) The test for determining whether the exception applies is whether a reasonably well-trained officer would have known the search was illegal despite the magistrates authorization. (United States v. Leon, supra, at pp. 922-923, fn 23.)

The officers reliance on the warrant is not objectively reasonable if the record reflects that: (1) the issuing magistrate was misled by information that the officer knew or should have known was false; (2) the magistrate wholly abandoned his or her judicial role; (3) the affidavit was so lacking in indicia of probable cause that it would be entirely unreasonable for an officer to believe such cause existed; or (4) the warrant was so facially deficient that the executing officer could not reasonably presume it to be valid. (United States v. Leon, supra, 468 U.S. at p. 923; People v. Lim (2000) 85 Cal.App.4th 1289, 1296.)

Appellant argues that the good faith exception cannot apply in this case under the third prong of the test set forth in Leon. Appellant argues that the warrant was completely devoid of anything establishing probable cause to search the premises. We disagree. Even if the information contained in the warrant itself did not amount to probable cause, a reasonably well-trained officer could have objectively relied upon it in good faith. As set forth above, the warrant contained reports from two officers and a citizen informant, arrest records, and the affiants own observations after performing a surveillance of the location. Accordingly, we conclude that suppression of the evidence obtained during execution of the search warrant was not required even if the magistrate erred in issuing the search warrant.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

CHAVEZ

We concur:

_______________________, Acting P. J. ______________________, J.

DOI TODD ASHMANN-GERST

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^[1] Appellant has also filed a petition for writ of habeas corpus (case No. B200128), which is being considered concurrently with this appeal. A separate order will be filed in that matter.

^[2] The affidavit did not provide a date for this arrest, but did provide the Sheriffs Department file number for the case.