Filed 5/24/22 P. v. Garner CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

On appeal from a judgment following a no contest plea to two weapons possession charges, Cean Garner contends the trial court erred when it denied his motions to (1) suppress evidence seized in a search incident to an unlawful arrest; and (2) dismiss a charge of possessing a large-capacity magazine as violative of the Second Amendment. We agree the trial court’s denial of the suppression motion was erroneous, and that the error requires reversal.

BACKGROUND

Garner resolved this case by plea, so we draw our statement of facts from the evidence at the suppression hearing. Sonoma County Deputy Sheriff Myers was patrolling in the early morning hours in a rural part of Sonoma County. He had been with the Sonoma County Sheriff’s Department (the Department) for about eight months following four years with another law enforcement agency.

Around 2:00 a.m., while driving north on Geysers Road, Deputy Myers spotted a pickup truck parked on the east shoulder of the road, facing south. The truck caught Myers’s attention because he’d seen very few vehicles parked in the area in the five or six months he’d been patrolling it.

A man wearing a headlamp looked up from behind the bed of the truck, looked at the patrol car, and quickly lowered his head. Myers turned on his rotating white spotlight, parked north of the pickup truck, and approached it on foot.

Garner was sitting on a toolbox in the bed of the truck. Myers greeted him and asked what he was doing. Garner replied that he was watching the stars and clearing his head from a recent argument with his girlfriend. He volunteered that he was out on bail for obstruction of justice.

Concerned about being alone in a remote rural area and aware that Garner had the height advantage, Myers asked him to come down from the truck bed so he could ascertain whether Garner was armed. Garner disclosed that he had a pocketknife and a magazine, but no firearm. Deputy Myers was concerned; people with magazines typically have guns to use them with, and Garner was wearing baggy clothing that could conceal a weapon. Myers repeated his request to step down from the truck. Garner said he was nervous “because he was not sure what was in his pockets,” but he complied.

Deputy Myers assured Garner that he was not being detained and asked for permission to pat search him for a weapon. He explained that they were “the only ones up on the hill” and that he wanted them both to go home safely to their families. Garner responded, “ ‘[O]h, sure. Definitely.’ ” Myers believed he had Garner’s consent to perform a pat search.

The deputy conducted the search and felt a hard rectangular object in Garner’s front pants pocket. He thought it was the knife Garner had mentioned, but when he removed the object it turned out to be a magazine for a 1911-style semiautomatic pistol with eight live rounds of ammunition. Deputy Myers asked Garner if he was a convicted felon; Garner said no. When Myers asked about the gun associated with the magazine, Garner said it was at his house. Continuing with the pat search, Myers found an empty holster for a 1911-style pistol and another magazine with several live rounds of ammunition beneath Garner’s clothing.

Myers then contacted the Department’s dispatch center to ascertain whether Garner was a felon. He testified that he generally contacted the dispatchers hourly when he was on patrol and relied on their reports while he conducted investigations in the field. In his experience, their information was reliable.

In this case, the dispatcher informed Deputy Myers that Garner had a felony conviction. Despite Garner’s repeated protests that his conviction had been expunged, Myers placed him under arrest for being a felon in possession of ammunition and conducted a search incident to arrest. On Garner’s person he found three more 1911-style magazines, each containing eight live rounds of ammunition; a single live 12-gauge round; a single live .308-caliber round; two live .45-caliber rounds; and a 12-inch-long silencer. A search of Garner’s pickup truck produced a loaded 1911-style semiautomatic pistol; six large suitcase-sized cases containing numerous high-capacity magazines; and ammunition cans containing an estimated total of 20,000 to 30,000 rounds. Garner said the items were his.

Later, after Garner was transported to jail, Officer Myers obtained his criminal history printout from the same dispatch center that had identified him as a convicted felon. The printout showed that Garner’s felony conviction had been reduced to a misdemeanor and expunged in 2013.

At the preliminary hearing, Garner moved to suppress the evidence on the grounds the initial encounter was an unlawful detention; the pat search was unsupported by a reasonable suspicion he was armed and dangerous; and the subsequent search of his person and truck incident to his arrest as a felon in possession of ammunition was unlawful because he was not a felon. The magistrate denied the motion.

Garner renewed the motion in the trial court, focusing this time on the search incident to arrest. Garner argued that Deputy Myers’s reliance on the erroneous dispatcher’s report was not subject to the good faith exception to the Fourth Amendment exclusionary rule. Emphasizing that the error was created by the same law enforcement agency that relied on it to arrest him and that he had notified Myers repeatedly of the error, Garner asserted the deputy’s reliance on the report was “well outside the realm of the good faith exception” to the exclusionary rule.

The trial court disagreed. Although it was undisputed that Garner’s conviction had been expunged long before his encounter with Deputy Myers, the court found the deputy reasonably relied on the dispatcher’s report and that, “without any information that this is some ongoing systemic problem with dispatch information,” the error did not rise to the level of deliberate conduct or reckless or systemic negligence that would trigger the exclusionary rule.

Garner pleaded no contest to possession of a silencer and possession of a large-capacity magazine; the other charges were dismissed. Pursuant to the negotiated plea, the court reduced the silencer charge to a misdemeanor and sentenced Garner to time served. Garner timely appealed and obtained a certificate of probable cause.

DISCUSSION

Garner argues the search of his person and truck was neither supported by probable cause nor subject to the good faith exception to the exclusionary rule. The People do not dispute that the sole justification for the search was the erroneous dispatch report that Garner was a convicted felon, but contend the trial court properly found Deputy Myers reasonably arrested him in the good faith belief that he was a felon and therefore unlawfully in possession of ammunition. Reviewing the trial court’s factual findings for substantial evidence and exercising our independent judgment as to whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment (People v. Macabeo (2016) 1 Cal.5th 1206, 1212), we disagree.

When applicable, the exclusionary rule “forbids the use . . . of evidence obtained in violation of the Fourth Amendment.” (People v. Pearl (2009) 172 Cal.App.4th 1280, 1292 (Pearl).) However, the suppression of evidence gathered as a result of an unlawful seizure is not automatic. (Herring v. United States (2009) 555 U.S. 135, 137 (Herring).) Under the good faith exception to the exclusionary rule, “evidence will not be suppressed if the police officer had an objectively reasonable belief the search or seizure was constitutionally permissible.” (Pearl, supra, 172 Cal.App.4th at p. 1292.) The burden is on the prosecution to establish that the exception applies, including the burden of proving that a recordkeeping error that led to the unlawful search was not the fault of any part of the law enforcement team. (Id. at pp. 1292–1293; People v. Willis (2002) 28 Cal.4th 22, 36–37 [“Establishing that the source of the error acted objectively reasonably is part of that burden”].)

In Herring, the United States Supreme Court addressed the applicability of the good faith exception where police officers arrested the defendant based on information from a computer database indicating the existence of an outstanding arrest warrant. (Herring, supra, 555 U.S. at p. 137.) Only after they arrested and searched the defendant did the officers learn the information in the database was erroneous. (Id. at pp. 137–138.) The Court held the applicability of the exclusionary rule in such cases “turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” (Id. at p. 137.) The Court explained, “ ‘an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus’ of applying the exclusionary rule” (id. at p. 143) and requires consideration of “the actions of all the police officers involved,” including those who provided information material to the probable cause determination (id. at p. 140).

The Court thus reasoned that application of the good faith exception in cases involving police mistakes turns on whether the mistakes result from negligence “rather than systemic error or reckless disregard of constitutional requirements.” (Herring, supra, 555 U.S. at pp. 147–148; see People v. Robinson (2010) 47 Cal.4th 1104, 1126 [under Herring, focus is on whether application of the exclusionary rule is warranted to deter deliberate, reckless, or grossly negligent conduct or recurring or systemic negligence].) “If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation.” (Herring, supra, 555 U.S. at p. 146; id. at pp. 137, 147–148.) That burden was satisfied in Herring by evidence that the court clerk or judge’s chambers normally called the warrant clerk when a warrant was recalled and the clerk would then enter the information in the sheriff’s computer database. (Id. at pp. 137–138.) Although “[f]or whatever reason” that had not happened (id. at p. 138), the arresting investigator testified he had no reason to question the information he received about the warrant, and, further, two county warrant clerks testified that they could remember no similar failures ever having happened on their watch (id. at p. 147). The prosecution evidence thus established that the failure to update the arrest warrant database resulted from “isolated negligence” as opposed to systemic error or reckless disregard of constitutional requirements. (Id. at pp. 137, 147–148.)

The prosecution made no such showing in this case. The People do not argue otherwise, but, rather, rest their argument on their view that it was Garner’s burden to show the dispatcher’s error was more than an isolated mistake. They are mistaken; the burden was squarely on the prosecution to establish that the error did not result from deliberate, reckless, or grossly negligent conduct or recurring or systemic negligence. (People v. Willis, supra, Cal.4th at pp. 36–37; Pearl, supra, 172 Cal.App.4th at pp. 1292–1293.) It did not do so. Neither the dispatcher who relayed the erroneous information nor any other personnel from the Department or its dispatch center testified to the circumstances of the error, the frequency of such errors, or any practices the Department employs to ensure the accuracy of its dispatch reports. Absent any such evidence, Deputy Myers’s cursory testimony that during his brief tenure with the Department he had found the dispatchers’ information to be reliable was insufficient to prove the good faith exception applied. Accordingly, the evidence should have been excluded. Reversal is required.[1]

DISPOSITION

The judgment is reversed. The case is remanded with directions to reverse the order denying the motion to suppress, enter a new order granting the motion, and allow Garner to withdraw his plea.

NADLER, J.*

WE CONCUR:

STREETER, Acting P. J.

BROWN, J.

[1] As a result of this conclusion, we do not address Garner’s challenges to the initial detention and pat search or his argument that the charge of possessing a large-capacity magazine violates the Second Amendment.

* Judge of the Superior Court of California, County of Sonoma, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.