P. v. Fourdyce

Filed 10/4/06 P. v. Fourdyce CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart and Lee P. Felice, Judges.^“

H.A. Sala for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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Following the denial of his motion to suppress evidence and quash and traverse the search warrant pursuant to which the evidence was seized (motion to traverse), appellant Earl Albert Fourdyce pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and operating a “chop shop” (Veh. Code, § 10801). The court imposed a prison term of two years.

On appeal, appellant’s sole contention is that the court erred in denying his motion to traverse. Specifically, he argues that the trial court erred in concluding that although the affidavit supporting the warrant did not establish probable cause for the search, under what is commonly called the “good faith” exception to the exclusionary rule announced in United States v. Leon (1984) 468 U.S. 897 [104 S.Ct. 3405],^[1] suppression was not required. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Detective Augustine Ronquillo of the City of Bakersfield Police Department (BPD) testified at the preliminary hearing that on the afternoon of May 1, 2005,^[2] he and other officers executed a search warrant at appellant’s residence on 10621 Meacham Road in Bakersfield (the premises). Appellant subsequently moved to traverse and quash the search warrant and suppress evidence, arguing that (1) the affidavit in support of the warrant omitted material facts; (2) the affidavit did not establish probable cause for the issuance of the warrant; and (3) the Leon “good faith” exception to the exclusionary rule did not apply. As is set forth more fully below, the court found the first two of these arguments to be meritorious, but denied the motion to traverse on the ground that the challenged search was valid under Leon.

The Affidavit

On May 1, Detective Ronquillo executed an affidavit in support of a request for a search warrant (affidavit) for a search of the premises; two motor vehicles, described with specificity in the affidavit; and appellant’s person. In the affidavit the detective stated as follows. On the morning of May 1, BPD Sergeant Scott informed him that Daniel Barton was in custody, and that Barton had been found in possession of a Honda Accord which had been reported stolen from the sales lot of Family Motors in Bakersfield on April 30, and which had been stolen between April 23 and April 30. Also stolen from Family Motors during this time period was a “black 2003 Mazda,” which was reported stolen on April 30, and a “2004 Chevrolet Silverado Duramax pickup,” reported stolen on April 26.

Detective Ronquillo spoke with BPD Officer Eddy who told him the following: “Barton was cooperative and had supplied him with information regarding other stolen vehicles.” On April 30, Officer Eddy spoke with John Bensusen, who identified himself as the brother of Daniel Barton (Daniel) and Shane Barton, both of whom according to Bensusen, “were involved in stealing vehicles from Family Motors.” Bensusen further stated Daniel was in possession of a stolen “black Honda Accord” and a “black 2003 Mazda.”

At approximately 2:45 a.m. on May 1, Officer Eddy arrested Daniel “for being in possession of stolen black Honda Accord . . . .” BPD officers recovered the Mazda, which was being driven by another person. At approximately 7:40 a.m. on May 1, Detective Ronquillo spoke with Daniel at the BPD. Daniel refused to “supply [the detective] with any information,” stating that he had already spoken with Officer Eddy. Daniel said “he was under the impression that by his supplying the police with information, he would be allowed to go free.”

Detective Ronquillo contacted Officer Eddy, who told him that Daniel stated the following: he (Daniel) “was stealing vehicles to exchange them for methamphetamine”; “he was taking the stolen vehicles to an address described as being on Meacham Road,” located “two or three residences west of Verdugo Lane on the south side of the street on Meacham Road”; “there is a chair near the front door of the residence”; and “the person living at this residence, who would take the stolen vehicle and exchange it for methamphetamine was known to him as ‘Earl’ . . . .” Daniel provided a description of this person, and later identified a photograph of appellant as that of the person he knew as “Earl.”

Daniel further told Officer Eddy that “ ‘Earl’ wanted him to steal a Chevrolet Silvarado Duramax pickup from the parking lot of Family Motors,” and Earl offered him $4,000 to drive this vehicle to Los Angeles. Daniel “did not admit stealing it.” Officer Eddy checked the BPD “stolen vehicle log” and “found that the truck described by Daniel Barton had been reported stolen” on April 26, and “was still outstanding.”

Daniel also told Officer Eddy that “ ‘Earl’ should also have” another stolen vehicle, viz., a “pewter-colored Hyundai Tiburon” in his possession, “at his residence on Meacham Road.” Detective Ronquillo “was unable to locate any record of a stolen Hyundai Tiburon . . . .”

On May 1, Detective Ronquillo drove by the premises and “notice[d] it appeared to be a large one-acre lot,” on which was located a “residence”; a “large metal workshop with three large roll-up doors in the backyard” and, parked in the backyard, “a black Mustang and a newer red Chevrolet pickup.”

Detective Ronquillo “conducted a CJIS [Criminal Justice Information System] check on the [premises],” which revealed that “there is a subject by the name of Earl Albert Fourdyce . . . residing at that residence,” and that that person “has prior arrests for [being] under the influence of a controlled substance and currently has two outstanding misdemeanor traffic bench warrants . . . .”

Based on the information set forth in the affidavit, Detective Ronquillo “believe[d] the search of [appellant’s] residence [would] reveal the listed stolen vehicles [described earlier in the affidavit], evidence to show that other stolen vehicles were at his residence, as well as possibly methamphetamine.”

Omissions from the Affidavit

Appellant filed the motion to traverse on August 24, and in his moving papers asserted that certain material information, contained in police reports prepared by Officer Eddy and in CJIS records, was available to Detective Ronquillo but not included in the affidavit. On September 7, the court asked appellant to file supplemental pleadings setting forth the information that he contended should have been included in the affidavit. On September 12, appellant filed a “SUPPLEMENTAL EXHIBIT IN SUPPORT OF MOTION TO TRAVERSE . . .” in which he asserted that the following should have been included in the affidavit:^[3]

Officer Eddy informed Detective Ronquillo that he had conducted a “follow up investigation” during which he spoke to the manager of Family Motors and determined that “the suspects in the theft of the vehicles from Family Motors were Shane Barton and Daniel Barton. . . .” When Officer Eddy arrested Daniel, Daniel “lied . . . about his identity”; stated he did not know to whom the stolen Honda Accord belonged; denied he had driven or had ever been in the Honda, even though Officer Eddy saw Daniel exit the car; “stated he did not have any knowledge of the Honda Accord”; and “lied . . . when he adamantly denied being involved in the theft of the Honda from Family Motors.”

Daniel has a “substantial criminal record consisting of at least . . . 15[] arrests and convictions within the last five . . . years” including two convictions of receiving stolen property (Pen. Code, § 496, subd. (a)), four convictions of second degree burglary (Pen. Code, § 460, subd. (b)); one conviction of assault with a deadly weapon (Pen. Code, § 245, subd. (a)); and a felony conviction of vehicle theft (Veh. Code, § 10851). Daniel “was sentenced to state prison” on the last of these offenses and “is presently on active parole . . . .”

Appellant “has one prior arrest for being under the influence of a controlled substance” when he was 18 years old. The charge “was ultimately dismissed . . . .”

There is no dispute that the foregoing information was taken from police reports and records, was available to Detective Ronquillo at the time he executed the affidavit and was not included in the affidavit.

Court’s Findings and Ruling

By written order, the court “[made] the following findings and ruling”: “The affiant left out material facts in his affidavit and accordingly the court considers the affidavit plus the rest of the facts as set forth in the supplemental pleading submitted by defense counsel, such additional facts being those contained in Officer Eddy’s report and in the Criminal Justice Information System, all of which were readily available to the affiant at the time that he put together his affidavit. Upon consideration of the affidavit as augmented, I find that there is a lack of fresh facts with regard to whether drugs and/or stolen property would likely be found at the property which was the subject of the search warrant in this case. On the other hand, I also find that there was no lack of good faith on the part of the affiant, such that [Leon] is applicable. The motion is denied . . . .”

DISCUSSION

At the outset we seek to clarify what is not at issue.

The Fourth Amendment to the United States Constitution states that “no warrants shall issue but upon probable cause, supported by Oath or affirmation . . . .” (U.S. Const. Amend. IV.) “Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched.” (People v. Stanley (1999) 72 Cal.App.4th 1547, 1554.)

The People do not dispute the trial court’s findings that the affidavit contained material omissions. (See People v. Carpenter (1997) 15 Cal.4th 312, 363 [when a search warrant is attacked on the ground the supporting affidavit is incomplete, “ ‘the reviewing court must determine whether any of the asserted omissions are material,” i.e., whether there was a “substantial probability [the omitted facts] would have altered a reasonable magistrate’s probable cause determination”].) Moreover, the People do not dispute the trial court’s finding that the affidavit did not establish probable cause for the challenged search.

At issue here is whether the court erred in denying the motion to traverse on the basis of the Leon “good faith” exception to the exclusionary rule.

Under Leon, the Fourth Amendment exclusionary rule does not bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in an objectively good faith belief in the validity of a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. (Leon, supra, 468 U.S. at p. 926.) The Leon inquiry is limited to the “objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” (Id. at p. 922, fn. 23.) Thus, the objective standard “requires officers to have a reasonable knowledge of what the law prohibits.” (Id. at pp. 919-920, fn. 20.) And an officer does not “manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ [Citations.]” (Id. at p. 923.)

Appellant argues that Detective Ronquillo could not have harbored an objectively reasonable belief in the validity of the warrant because the detective omitted from the affidavit “probative and material facts,” viz., information “regarding the Informant’s extensive criminal record . . . and the plethora of lies he told Officer Eddy,” which “would have eviscerated the Informant’s credibility had that information been disclosed to the magistrate.” He bases this contention on People v. Maestas (1988) 204 Cal.App.3d 1208. In that case a search warrant authorizing search of the defendant’s residence and a bar owned by the defendant for, inter alia, cocaine, was issued on January 2, 1986, pursuant to an affidavit executed by a police detective who stated, in relevant part, the following. On December 24, 1985, an informant, Nina Giannini, told the detective the defendant had been selling cocaine for years, she (Giannini) could buy cocaine from the defendant and she had done so in the past. (Id. at p. 1212.) That same day, police “wired” Giannini and sent her into the defendant’s bar to purchase cocaine from defendant. (Ibid.) The defendant told Giannini “his shipment would not arrive until after the holiday” and “he might be able to supply her with a sample on December 27, 1985.” (Ibid.) Based in large part on the foregoing, the detective concluded “ ‘[i]t [was] obvious from this information that [the defendant] maintains an ongoing cocaine distributorship.’ “ (Ibid.)

However, a tape recording of the conversation between the defendant and the informant revealed the following. “[C]ontrary to the statement in [the detective’s] affidavit that Giannini said she had purchased from defendant in the past, the tape of Giannini’s contact with defendant contained the statement by Giannini: ‘I heard your shit was real good.’ Also, whereas the affidavit stated ‘[the defendant] said he would provide the sample on Friday, [December 27, 1985],’ . . . when Giannini asked defendant for cocaine, [the defendant] had actually stated he ‘ain’t got shit,’ and then ‘maybe after Christmas.’ Moreover, it appears that it was Giannini, not defendant, who suggested that she return on Friday.” (People v. Maestas, supra, 204 Cal.App.3d at pp. 1212-1213.)

The Maestas court stated: “[M]isstatements and omissions in the affidavit

relate . . . to the . . . situation[] . . . where the affidavit is ‘ “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’ “ (Leon, supra, 468 U.S. at p. 923 . . . .) . . . If, as in this case, the officer whose good faith is in question was involved in preparation of the affidavit, the fact that he misstated or omitted any information . . . tends to show the objective unreasonableness of belief in the existence of probable cause.” (People v. Maestas, supra, 204 Cal.App.3d at p. 1219.) The court concluded that the record “suggest[ed] [the detective] sought to create the false impression of informant reliability.” (Ibid.) Based on the detective’s misrepresentations and the fact the detective “made no effort to corroborate” the indications that the defendant had engaged in criminal activity, the court reversed the denial of the defendant’s suppression motion, on the ground that “the record in this case strongly suggests that a well-trained police officer would have known that the affidavit in question failed to establish probable cause.” (Id. at p. 1221.)

Maestas is readily distinguishable. The patently false representations contained in the affidavit in Maestas constituted virtually the entire purported showing of probable cause in that case. But here, the omitted information in the instant case was not nearly so critical to the probable cause showing. Although the omitted information was highly probative on the important issue of the informant’s credibility, the affidavit contained other information which called the informant’s credibility into serious question, viz. information that he was a car thief, engaged in an ongoing criminal enterprise, and a methamphetamine user. Having supplied this information, it was not “entirely unreasonable” (Leon, supra, 468 U.S. at p. 923) for Detective Ronquillo to believe that he had adequately conveyed to the magistrate factors relating to the informant’s credibility. Unlike Maestas, this is not a case in which the affiant presented such a false picture of the factors relating to probable cause that it can be inferred he deliberately or recklessly sought to create a false impression of informant credibility. Therefore, Detective Ronquillo’s omissions do not establish that it was unreasonable for him to rely on a warrant.

Appellant also argues Leon is inapplicable because the affidavit contained no information on when the informant delivered stolen vehicles in exchange for methamphetamine, and therefore the affidavit provided no basis for the magistrate to conclude stolen cars or methamphetamine would be present at the site of the search at the time of the search. We disagree.

We recognize that “an affidavit in support of a search warrant must provide probable cause to believe the material to be seized is still on the premises to be searched when the warrant is sought.” (People v. Mesa (1975) 14 Cal.3d 466, 470, citing SGRO v. United States (1932) 287 U.S. 206, 210 [53 S.Ct. 138].) “The general rule is that information that is remote in time may be deemed to be stale and therefore unreliable.” (People v. Gibson (2001) 90 Cal.App.4th 371, 380.) “[I]nformation is deemed stale unless it consists of facts so closely related to the time of the issuance of the warrant that it justifies a finding of probable cause at that time. The question of staleness turns on the facts of each particular case.” (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.)

Here, as appellant asserts, the affidavit states that although Daniel stated he “was stealing vehicles to exchange them for methamphetamine” and “taking the stolen vehicles to an address described as being on Meacham Road,” Daniel did not specify dates or provide any indication of precisely when these stolen vehicle deliveries occurred. However, the affidavit also contains the following: Officer Eddy spoke to Daniel on May 1, at which time, according to Daniel, appellant offered him $4,000 to drive a particular stolen vehicle to Los Angeles; and a check of police records that same day revealed that vehicle had been reported stolen on April 26 and had not been recovered. We assume without deciding the court correctly found that the affidavit did not contain information sufficiently “fresh” to establish probable cause. But, in light of the information contained in the warrant that appellant had in his possession a stolen vehicle that had been reported within the last five days, we cannot say it was entirely unreasonable for Detective Ronquillo to conclude the information conveyed to the magistrate was sufficiently timely.

Finally, appellant argues it was not objectively reasonable for Detective Ronquillo to rely on the warrant because the affidavit contained insufficient corroboration of the informant’s claims of criminal conduct; “there was no reason” police could not have conducted further investigation, such as surveillance, to attempt to obtain corroborating information, such as the presence of “heavy vehicular or pedestrian traffic”; and the affidavit contains other information which cast doubt on the informant’s credibility, viz., his assertion that a stolen pewter-colored Hyundai Tiburon “should have been” found at the premises, coupled with the absence of any such vehicle and the detective’s failure to find any record of such a vehicle being stolen.

However, “We cannot say that an objective and reasonable officer would have ‘known’ this affidavit failed to establish probable cause. It is plain from the affidavit that [Detective Ronquillo] conducted more than a mere ‘bare bones’ investigation [citations].” (People v. Camarella (1991) 54 Cal.3d 592, 606.) We reiterate that in addition to the informant’s claims that he delivered stolen vehicles to appellant, the affidavit also contained information from police records that a vehicle that the informant claimed was in appellant’s possession within five days of the issuance of the warrant in fact had been stolen and had not been recovered at the time of the execution of the affidavit. That the police might have been less than diligent conducting surveillance of the premises, and the fact that one of the informant’s predictions that a certain stolen vehicle would be found on the premises proved untrue merely makes the probable cause determination “a close question for any objectively reasonable and well-trained officer, and, indeed, for reasonable judicial officers as well. [Citation.]” (People v. Camarella, supra, 54 Cal.3d at p. 606.) Therefore, the detective could reasonably rely on the magistrate’s finding of probable cause, and suppression of the fruits of the search is not required. (Ibid.)

DISPOSITION

The judgment is affirmed.

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^* Before Gomes, Acting P.J., Dawson, J., and Kane, J.

^“ Judge Stuart denied appellant’s motion to suppress evidence and quash and traverse the search warrant; Judge Felice was the sentencing judge.

^[1] The California Supreme Court has recognized “that the term ‘good faith exception’ may be something of a misnomer, because [as we discuss post,] the exception focuses on the objective reasonableness of the officer’s conduct.” (People v. Willis (2002) 28 Cal.4th 22, 29, fn. 3.) But, like our Supreme Court, “we use the term because of its common acceptance by commentators and courts, including the [United States Supreme Court]. . . .” (Ibid.)

^[2] Except as otherwise indicated, all references to dates of events are to dates in 2005.

^[3] Material from the supplemental exhibit quoted here was underlined and in bold face in the document. All emphasis has been omitted.