P. v. Jones

Filed 6/26/08 P. v. Jones CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This is an appeal from a judgment of conviction for possession of a firearm by a felon. The judgment was reached after the trial court denied appellant Jerome D. Joness motion under Penal Code section 1538.5 to suppress evidence.[1] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 13, 2006, San Francisco Police Officer Brian Schaffer presented an affidavit for a search warrant to a magistrate in the San Francisco County Superior Court. The warrant identified appellants person, his residence, his vehicle and any locked shed or safe on the premises as the subjects of the proposed search.

According to the affidavit, Officer Schaffer was a member of the San Francisco Police Departments Narcotics Division and had over 10 years of law enforcement experience and training, including specific experience and training in narcotics. On or about June 7, 2006, Officer Schaffer received information from a confidential, reliable informant (CRI) that appellant was selling crack cocaine from his residence at 173 Alta Vista Way in Daly City, San Mateo County. Officer Schaffer was further told by the CRI, who he had successfully worked with before, that the CRI had purchased crack cocaine from appellant numerous times over the past two months from different locations in the City and County of San Francisco.

According to the affidavit, after receiving the CRIs information, Officer Schaffer conducted his own surveillance of appellants residence and vehicle, and arranged for the CRI to buy narcotics from appellant with San Francisco City funds at a location in San Mateo County. As a result of this controlled buy, Officer Schaffer sent suspected narcotics to the police laboratory, which positively identified the substance as crack cocaine. Officer Schaffer thereafter concluded: Based on my training and experience I believe that [appellant] is selling crack cocaine in the City & County of San Francisco and is using his residence of 173 Alta Vista way [sic] in Daly City to store his crack cocaine in and his wifes 2001 Nissan Altima to transport his crack cocaine in.

The San Francisco County magistrate reviewed Officer Schaffers affidavit and signed a warrant authorizing the search of appellants Daly City residence, vehicle and person for narcotics and related paraphernalia, including weapons.

Pursuant to the warrant, Officer Schaffer and his colleagues searched appellants Daly City residence on June 16, 2006. As a result of the search, the officers seized items from appellants home that included a 9-millimeter assault weapon and ammunition. Appellant was then charged by information in San Mateo County with possession of a firearm by a felon ( 12021, subd. (a)(1)) (count 1); possession of ammunition by a felon ( 12316, subd. (b)(1)) (count 2); and possession of an assault weapon ( 12280, subd. (b)) (count 3). In addition, the information alleged as enhancements that appellant had prior convictions, one of which was a strike ( 1170.12, subd. (c)(1)), and had served prior prison terms ( 667.5, subd. (b)).

On June 15, 2007, appellant moved to suppress evidence seized at his residence under the San Francisco-issued search warrant. The trial court denied the motion, after which appellant entered a plea of no contest to count 1, possession of a firearm by a felon, and admitted the strike prior. Appellant was sentenced to a total prison term of 32 months. This timely appeal followed.

DISCUSSION

In denying the motion to suppress evidence, the trial court found that the warrant issued in San Francisco County to search appellants San Mateo County residence was defective, and therefore invalid, because insufficient information was provided to the magistrate that a nexus existed between appellants alleged crimes and San Francisco County. The trial court nonetheless found the evidence seized under the warrant to be admissible because Officer Schaffer acted in good faith in relying on the warrant.

On appeal, appellant, not surprisingly, agrees with the trial courts initial finding that the warrant to search his San Mateo residence was defective. Appellant disagrees, however, with the trial courts ultimate conclusion that the evidence seized under the defective warrant was nonetheless admissible because Officer Schaffer acted in good faith reliance on the warrant.

When reviewing the grant or denial of a motion to suppress, an appellate court must uphold the trial courts express or implied findings of fact if the facts are supported by substantial evidence. (People v. Lim (2000) 85 Cal.App.4th 1289, 1296 (Lim).) We must, however, use our independent judgment to determine whether, under those facts, a search and seizure was legal. (People v. Ruiz (1990) 217 Cal.App.3d 574, 580 (Ruiz).) Further, we are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so. (Lim, supra, 85 Cal.App.4th at p. 1296; In re Lance W. (1985) 37 Cal.3d 873, 896.)

The relevant federal constitutional standards are rooted in the Fourth Amendment of the United States Constitution. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[2]

Under the judicially-crafted exclusionary rule, certain evidence obtained in violation of the Fourth Amendment must be excluded. (United States v. Leon (1984) 468 U.S. 897, 906 (United States v. Leon).) The exclusionary rule is designed to deter constitutional violations by law enforcement officers. It is not a personal constitutional right of the party aggrieved; it was not intended to protect against all illegalities connected with a search; and it was not intended as a sanction against judges and magistrates. (United States v. Leon, supra, 468 U.S. at pp. 906-913 [82 L.Ed.2d at pp. 687-692].) (Ruiz, supra, 217 Cal.App.3d at pp. 585-586.)

Applying these standards here, we thus must determine whether the search and seizure of appellants property was legal and, if not, whether the Fourth Amendment required the trial court to suppress evidence obtained as a result of it.

As the California Supreme Court has made clear, there is no absolute territorial restriction on a magistrates jurisdiction.[3](People v. Fleming (1981) 29 Cal.3d 698, 704 (Fleming).) Rather, when the magistrate has probable cause to believe that the evidence relates to a crime committed within the county and pertains to a present or future prosecution in that county, he has authority to issue a warrant authorizing a county peace officer to search property located in another county.[4] (Ibid.; see also People v. Galvan (1992) 5 Cal.App.4th 866, 869-870.)

Here, appellant argues that the search warrant issued by a San Francisco County magistrate to Officer Schaffer, a San Francisco police officer, was invalid because, contrary to the Fleming rule, the warrant neither  relate[d] to a crime committed in the magistrates county nor pertain[ed] to a present or future prosecution in that county. (Fleming, supra, 29 Cal.3d at p. 704.) We disagree.

As set forth in the affidavit offered in support of the search warrant, Officer Schaffer had over 10 years of experience and training in law enforcement, including specialized experience and training in narcotics. Officer Schaffers statement of probable cause provided that, according to a CRI who he had successfully worked with before, appellant delivers his crack cocaine in the City & County of San Francisco and had sold crack cocaine to the CRI numerous times over the last two months [at] different locations in the City & County of San Francisco. Moreover, Officer Schaffer averred that, [b]ased on [his] training and experience [he] believe[s] that [appellant] is selling crack cocaine in the City & County of San Francisco. Officer Schaffer further averred that, based on his experience and training, he was aware that people who sell narcotics often maintain in their residences, among other things, a supply of narcotics, weapons, and accounting and other records indicating the identities of both customers and persons in the narcotics sales organization.

This affidavit, we conclude, is sufficient to show probable cause that illegal narcotics or related contraband would be found in appellants San Mateo County residence.

The affidavit also appears at least minimally sufficient to show probable cause that the proposed search related to crimes appellant committed in San Francisco County and pertained to a present or future prosecution in that county. (Fleming, supra, 29 Cal.3d at p. 707.) Specifically, while appellants San Mateo County residence was the source of the drugs, San Francisco County was at least one of the locations where appellant was known to sell those drugs. Such facts are similar to those found in two other cases, Fleming and Ruiz, in which the validity of a search warrant was upheld on appeal. In both cases, like here, a warrant was issued by a magistrate in one county for execution in another county where the defendant subject to the search was alleged to be selling drugs in the county of issuance and storing the drugs and arranging the sales in the county of execution.[5] (Fleming, supra, 29 Cal.3d at pp. 701, 702; Ruiz, supra, 217 Cal.App.3d at pp. 578-580.)

To the contrary, appellants authority, People v. Dantzler (1988) 206 Cal.App.3d 289 (Dantzler), is distinguishable. In Dantzler, a San Francisco County magistrate issued a warrant to police officers authorizing the search of a San Mateo County residence. (206 Cal.App.3d at p. 291.) The officers affidavit in support of the warrant, unlike the one under consideration here, did not state that any crime had been committed in San Francisco, much less that any prosecution would be conducted in San Francisco. (Id. at p. 293.) As such, the appellate court concluded the warrant was defective under Fleming. (Ibid.)

Putting aside this case law on the probable cause issue, however, we note that, even were we to find that probable cause was lacking in this warrant, we would nonetheless conclude, like the trial court, that the evidence seized pursuant to it was admissible. Courts have long refused to exclude evidence seized pursuant to defective search warrants unless the defect is fundamental in the sense that it rises to the level of a constitutional violation. (Ruiz, supra, 217 Cal.App.3d at pp. 585-586; accord United States v. Leon, supra, 468 U.S. at pp. 922-923.)

Consistent with this rule, our colleagues in the Court of Appeal, Third Appellate District, held in Ruiz that, even if a warrant is defective based on the territorial limitations placed on a magistrates jurisdiction, suppression of evidence seized under the warrant is not compelled by the Fourth Amendment so long as the officer executing the warrant otherwise acted in good faith. (Ruiz, supra, 217 Cal.App.3d at p. 587.) The mere fact that a magistrate has issued a warrant is normally sufficient to establish that the officer acted in good faith in conducting a search. (Id. at p. 581, citing United States v. Leon, supra, 468 U.S. at p. 922.) Yet there are four exceptions to this so-called good faith rule: (1) the magistrate was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) the magistrate wholly abandoned his judicial role; (3) the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) depending upon the circumstances of a particular case, the warrant is so facially deficient, i.e., in failing to particularize the place to be searched or the things to be seized, that officers cannot presume it to be valid. ([United States v. Leon, supra,] at p. 923 [82 L.Ed.2d at p. 699].) (Ruiz, supra, at p. 581.)

Here, appellant contends Officer Schaffer failed to act reasonably and in good faith in executing the warrant because, under Leon, his affidavit was so lacking in indicia of probable cause as to render his reliance on it wholly unreasonable. (United States v. Leon, supra, 468 U.S. at p. 923.) Appellant further contends Officer Schaffer misled the magistrate into issuing the warrant by insert[ing] wholly irrelevant information into the affidavit. (Ibid.) Appellant speculates that the officer was just too lazy to seek the warrant from the proper source a San Mateo County magistrate.

As California courts have interpreted United States v. Leon, an affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable if a reasonably well-trained officer in the officers position would have known probable cause was lacking and that the warrant should not have been issued. (Lim, supra, 85 Cal.App.4th at pp. 1296-1299; see also People v. Camarella (1991) 54 Cal.3d 592, 604, 606.)

Applying that standard here, we conclude a reasonably well-trained officer faced with the same facts would, like Officer Schaffer, have sought the warrant. (Lim, supra, 85 Cal.App.4th at p. 1299 [reversing an order to suppress evidence where, based on the information contained in the affidavit, it would not have been entirely unreasonable for an officer to believe that [probable] cause existed].) Officer Schaffers affidavit, discussed in detail above, contained accurate information that was not likely to have been misconstrued by the San Francisco County magistrate. Specifically, the affidavit explained that the CRI had several times purchased crack cocaine from appellant in San Francisco; that the CRI had, at Officer Schaffers direction and with San Francisco public funds, engaged in a controlled buy of crack cocaine from appellant in San Mateo County; and that the officer wished to search appellants San Mateo County residence for crack cocaine intended for sale in San Francisco and contraband used in support of such sales.

In addition, Officer Schaffer testified without contradiction at the suppression hearing that he had completed at least 70 other affidavits for search warrants, including some for warrants issued in San Francisco County and executed in San Mateo County; that he believed based on his experience and training that he provided the magistrate with a complete affidavit in this case; that he decided to seek the warrant in San Francisco County rather than San Mateo County because the CRI informed him appellant was selling and delivering crack cocaine in San Francisco and because it was more convenient; and that he included in the affidavit no information he knew to be false or misleading. While Officer Schaffer did not recall asking a district attorney to review his affidavit, which is the preferred method for San Francisco police officers seeking warrants, he did have the acting police sergeant review the affidavit before submitting it to the magistrate.

Given the information contained in the affidavit, as well as Officer Schaffers undisputed testimony regarding his conduct in preparing it, even if the affidavit lacked probable cause, it was not misleading or so lacking in indicia of probable cause as to render a reasonably well-trained officers reliance on it unreasonable. As such, we conclude, like the trial court, that exclusion of the evidence was not compelled by the Fourth Amendment. The judgment is thus affirmed.

DISPOSITION

The judgment is affirmed.

_________________________

Jenkins, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Penal Code section 1538.5 provides in relevant part:

(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:

   (A) The search or seizure without a warrant was unreasonable.

   (B) The search or seizure with a warrant was unreasonable because any of the following apply:

     (i) The warrant is insufficient on its face.

     (ii) The property or evidence obtained is not that described in the warrant.

     (iii) There was not probable cause for the issuance of the warrant.

     (iv) The method of execution of the warrant violated federal or state constitutional standards.

     (v) There was any other violation of federal or state constitutional standards.

Unless otherwise stated, all statutory citations herein are to the Penal Code.

[2] California Constitution article I, section 13, provides nearly identical protection.

[3] We clarify as an initial matter that, in this context, we are concerned with a magistrates jurisdiction in the sense of power to issue a search warrant, not with the magistrates jurisdiction in the fundamental sense of the power to hear and determine the matter. (Ruiz, supra, 217 Cal.App.3d at p. 587.)

[4] In setting forth this rule, the Fleming court explained: Section 1528 [of the Penal Code] specifies that if the magistrate is . . . satisfied of the existence of the grounds for the application . . . he must issue a search warrant . . . to a peace officer in his county . . . (italics added); section 1529 also provides that the warrants run from The people of the State of California to any sheriff . . . in the County of . . . . These sections thus anticipate that the magistrate will issue the warrant to an officer in his county, but do not specify that the search must be conducted in that same county. [] The California Legislature has made it clear that peace officers authority extends beyond the jurisdiction of the county of their employment. In 1968 the Legislature enacted section 830.1 which in subdivision (a) provides that the authority of . . . [a] peace officer extends to any place in the state . . . as to any public offense committed or which there is probable cause to believe has been committed within the political subdivision which employs him. Read together with section 830.1, sections 1524, 1528 and 1529 imply that, at the very least, when the magistrate has probable cause to believe that the evidence relates to a crime committed within the county and pertains to a present or future prosecution in that county, he has authority to issue a warrant authorizing a county peace officer to search property located in another county. (Fleming, supra, 29 Cal.3d at pp. 703-704 (fns. omitted).)

[5] We note that, in both Fleming and Ruiz, the officers investigating the defendants arranged for controlled buys of narcotics in the counties where the warrants were issued. (Fleming, supra, 29 Cal.3d at pp.701, 702; Ruiz, supra, 217 Cal.App.3d at pp. 578-579.) Here, the CRI informed Officer Schaffer that he had purchased crack cocaine several times from appellant in San Francisco. The CRI apparently purchased the drugs for personal use and did not turn them in to San Francisco law enforcement for use in prosecuting appellant. Officer Schaffer then arranged for the CRI to make a controlled buy of narcotics from appellant in San Mateo County. After the narcotics from the controlled buy tested positive for crack cocaine, Officer Schaffer applied to the San Francisco County magistrate for the warrant to search appellants San Mateo County residence. The facts relating to the location of the controlled buy in this case thus differ somewhat from those in Fleming and Ruiz. The record, however, is nonetheless clear that Officer Schaffer was investigating drug transactions occurring in San Francisco, and that he sought the warrant to search the San Mateo residence for, among other things, the supply of drugs being sold in San Francisco and records possibly indicating the identities of customers in San Francisco.