Filed 3/28/18 P. v. Plowright CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS RIDER PLOWRIGHT III,
Defendant and Appellant.

A149797

(Mendocino County Super Ct.
Nos. SCUKCRCR 15-80387,
SCUKCRCR 16-86034)


Police make a valid traffic stop, in daytime, which leads to a valid decision to impound the vehicle because the driver’s license and vehicle registration are expired, and the driver is unable to furnish proof of insurance. The driver of the vehicle accepts the offer to be driven to the nearest town in a police cruiser. The driver asks for a sealed cardboard box from his vehicle to take with him on the trip. The box is large; one of the officers described it as “two foot by three foot.” After the tow truck arrives, the driver is seated in a nearby police cruiser, without the box. The driver is not under any physical restraint. At this point the officers discover—in the impounded vehicle—a forged driver’s license with the driver’s photograph but a different name (“Todd Planters”). The sealed box is promptly cut open and discovered to contain a large quantity of marijuana and methadone pills. The stated reason for opening the box was to “check for weapons or to inventory it.” The officer was not searching for contraband, and only opened the box because the driver had elected to be driven in the police vehicle. It was at this point that the driver was arrested. Approximately five pounds of packaged, processed marijuana was discovered in the box and in the driver’s vehicle.
Three days later, with a search warrant, officers discovered “a concealed carry card in the name of ‘Todd Planters’ with [the driver’s] photo, and a social security card in the name of ‘Todd Planters,’ ” together with a firearm in defendant’s home. While the search was proceeding, the driver appeared on the scene. He was arrested, and a search of his person revealed a bottle of methadone pills, and another forged driver’s license in the name of “Joel Andrew Mills.”
Defendant Thomas Rider Plowright III (aka Thomas Riley Plowright) unsuccessfully challenged the legality of both searches. He does so again on this appeal. Like the magistrate and superior court, we conclude defendant has not demonstrated that he is the victim of a constitutionally unreasonable search or seizure.
BACKGROUND
Following the denial of his motion pursuant to Penal Code section 1538.5 to suppress evidence obtained in a warrantless vehicle inventory search, and then the denial of his motion to traverse the affidavit used to obtain a warrant authorizing search of his residence, defendant entered pleas of no contest to being a past-convicted felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), transporting methadone (Health & Saf. Code, § 11352, subd. (a)), and possessing a forged operator’s license (Pen. Code, § 470b). Defendant also admitted a prior conviction enhancement allegation. In due course, defendant entered a plea of no contest to the additional charge of failure to appear while released on his own recognizance (Pen. Code, § 1320, subd. (b)). Defendant was sentenced to state prison for an aggregate term of ten years and eight months. His sole claim of error is that his motions were erroneously denied.
The History of Defendant’s Suppression Efforts
The initial complaint against defendant was filed on January 22, 2015. On March 16, defendant noticed a motion, to be heard on March 23, to suppress all observations, statements, “items seized and photographs taken” as a result of “the illegal search and seizure conducted on January 3, 2015” by “California Highway Patrol Officer [CHP] Dave Rowan.” The prosecution filed written opposition on March 19. But on March 23 the prosecution filed an amended complaint with additional charges.
On March 30, defendant refiled his suppression motion, together with a “supplemental” motion expanding the scope of the motion to “the illegal search and seizure conducted on January 6, 2015, at the residence located at 3500 Little Mill Creek Road.”
The notice of the “supplemental” motion stated its broad scope: “This motion is made on the grounds that the search and seizure was unreasonable in violation of the Fourth and Fourteenth Amendments to the United States Constitution and violated the defendant’s reasonable expectation of privacy. More specifically, the search of the property pursuant to a warrant was illegal because: the warrant was based upon evidence obtained from a prior illegal search; the warrant is insufficient on its face; there was not probable cause for the issuance of the warrant; the method of execution of the warrant violated federal or state constitutional standards, and other violations of federal or state constitutional standards.”
The prosecution filed a written “supplemental opposition” on April 2.
April 6 was the date for hearing defendant’s suppression motion(s), and it was also the date set for defendant’s preliminary examination. The court heard testimony from CHP Officers Rowan and Heinke. After hearing extensive argument, the magistrate (Hon. David Nelson) took the matter under submission.
On April 10, defendant filed a short “supplemental brief” arguing that the “search of the box in the back seat of defendant’s vehicle was illegal.” That same day, the prosecution also filed a short “letter brief” arguing that nothing illegal occurred, hence, nothing warranted suppression.
On April 16, Magistrate Nelson filed a detailed “Ruling on Motion to Suppress Brown Cardboard Box,” which will be quoted at length in a later part of this opinion.
Proceedings resumed on May 18, at which time Magistrate Nelson heard testimony from CHP Officer Partlow, who prepared the affidavit for the search warrant. Following argument, Magistrate Nelson denied the remainder of defendant’s motion(s). This ruling will also be quoted later.
The information was filed on May 22.
On July 16, defendant filed a motion to set aside the information pursuant to Penal Code section 995. As stated in his moving papers, the motion was based on the ground that defendant “was committed without reasonable or probable cause because the commitment was based solely upon evidence obtained in violation of the Fourth Amendment,” that is evidence that was “the product of an illegal search,” specifically, “the warrantless search of the box located in Mr. Plowright’s truck,” which tainted the subsequent search warrant. Moreover, “without the information obtained during the illegal search of the box, the search warrant affidavit does not contain information sufficient to support probable cause.” The affidavit also had one material factual omission and was full of “stale” information.”
The motion was the subject of extensive argument heard by Judge John Behnke. He denied defendant’s motion on the ground that “I think the magistrate’s decision was correct . . . . [¶] . . . [T]he evidence found [in the box was] competent evidence. And . . . the evidence is . . . sufficient.”
DISCUSSION
Standard of Review
Defendant, explicitly, and the People, implicitly, treat the issue as the validity of a suppression motion renewed in the superior court in accordance with Penal Code section 1538.5, subdivision (m). This is not correct. The motion denied by Judge Behnke in the superior court was made pursuant to Penal Code section 995, which provides that an information may be set aside when “the defendant had been committed [by the magistrate] without reasonable or probable cause.” (Pen. Code, § 995, subd. (a)(2)(B).) Because defendant made such a motion, challenging the denial of his suppression efforts by Judge Nelson, the correctness of that denial was preserved for our review. (People v. Hawkins (2012) 211 Cal.App.4th 194, 199–200 and authorities cited.) However, it imposes distinct limits upon the scope of our review.
“ ‘[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoing powers and sits merely as a reviewing court; it must draw every inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.] On review by appeal . . . the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate . . . .’ ” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) If the salient evidence is not in dispute, “ the determination of probable cause ‘constitute[s] a legal conclusion which is subject to independent review on appeal.’ ” (People v. Superior Court (Bell) (2002) 99 Cal.App.4th 1334, 1339, quoting People v. Watson (1981) 30 Cal.3d 290, 300.)
It is now time to examine the rulings made by Judge Nelson, in his role as magistrate.
Magistrate Nelson’s Rulings
As already mentioned, Magistrate Nelson’s denial of defendant’s suppression motion(s) was mostly written, with some parts stated from the bench. With the addition of minor editorial modifications, the pertinent parts of the written ruling are as follows:
“The motion to suppress filed by the defendant involved . . . a car stop on January 3, 2015 that led to the search of a brown cardboard box which contained contraband. . . .
“The facts related to the vehicle stop are largely uncontested but the legal effects are much disputed. . . . In summary, the truck was stopped on Highway 128 near Boonville for expired registration. CHP Officer Rowan contacted the driver, defendant Plowright, and determined that his driver’s license was also expired and he could not produce proof of insurance. Officer Rowan decided to impound the vehicle because the passenger, defendant’s mother, could not provide proof of insurance either and the vehicle was not current in its registration. He called for a tow truck and back-up.
“He gave the defendant and his mother a choice between walking, calling a taxi or accepting a ride to Boonville. They chose the ride and waited in the vehicle for the tow truck. When it came Officer Rowan asked the defendant if he had any valuables in his truck he wished to take with him when he was transported in another CHP vehicle. Defendant chose certain items, including a large cardboard box, about 2 feet by 3 feet, which was taped as if to be mailed. As the inventory search began by Officer Rowan and two back-up officers, Rowan opened the box to check its contents. He said he did so to check it for weapons or explosives in keeping with the CHP inventory protocol for items released to owners. He said he also did it for officer safety since the box would be riding along with Mr. Plowright in the vehicle.
“When he cut the tape and opened the box he saw a plastic storage container that had marijuana, methadone and other contraband. Just before he opened the box, his partner had found a California driver’s license on the back floor of the truck that had defendant’s picture but the name of ‘Todd Planter.’ He was aware of this find before he opened the box but he did not open the box because of the finding of the false identification. After opening the box and finding the contraband, Officer Rowan arrested defendant . . . .
“INVENTORY SEARCH
“The Court finds that the officer had the statutory discretion to impound the vehicle and do an inventory search. The search of the box cannot be justified as an inventory search, however. The CHP 180 inventory policies are cited by both parties. They provide the option of an owner to have property released to him or her before the search. Defendant Plowright exercised that option and the box was going to be released to him. It was no longer subject to an inventory search.
“The policy provides at Page 1-7 that ‘If the driver or other occupants in the vehicle request possession of property from inside the vehicle (e.g., purse, clothing, backpack) the officer conducting the inventory may pat down the item for weapons for the officer’s safety before handing it over.’ The district attorney attempts to justify the search as part of this ‘pat down’ process but the cutting of the tape and opening of the box was not a ‘pat down.’ The search of the box cannot be justified as consistent with this exception.
“PROBABLE CAUSE TO SEARCH FOR FALSE IDENTIFICATION
“Both officers testified that the falsified identification was found within a minute before opening the box. This was not disputed and the Court believes the officers. Officer Rowan was candid in testifying that this was not the reason he opened the box. But under Fourth Amendment jurisprudence, his subjective reason for searching the box is not controlling. As defendant concedes in his ‘Reply to People’s Opposition’ at pp. 2–3, ‘It goes without saying that “[w]hether a search is reasonable must be determined based upon the circumstances known to the officer when the search is conducted.” People v. Sanders (2003) 31 Cal.4th 318, 334.’ Probable cause, whether to arrest or search, is measured by an objective standard—the officer’s subjective belief is immaterial. Scott v. United States (1978) 436 U.S. 128, 138. In other words, ‘an arresting officer’s state of mind (except for the facts he knows) is irrelevant to the existence of probable cause. [Citations.] That is to say, the officer’s subjective reasons for making the arrest need not be the criminal offense as to which the known facts provided the probable cause’ Devenpeck v. Alford (2004) 543 U.S. 146, 153.
“There was probable cause to search the vehicle and the box for evidence related to identification or falsified identification. The officer is not required to recite the penal or vehicle code section outlining the offense and there are various sections that would apply as recited in the district attorney’s opposition briefs such as Vehicle Code section 14610. Once the officers found the false driver’s license, they had probable cause to search the vehicle and any containers in the vehicle for evidence related to this offense. The lawful scope of the search extends to closed containers, packages, suitcases, and others, when there is probable cause to believe that they contain the object of the search. California v. Acevedo (1991) 500 U.S. 565. The permissible scope of the search is not defined by the type of container or the degree of expectation of privacy as to its contents, but by the reasons for the search. United States v. Ross (1982) 456 U.S. 798, 824.”
Magistrate Nelson’s oral ruling was—again with our added changes—as follows:
“I do find . . . [¶] . . . sufficient probable cause to justify the issuance of the warrant . . . .[ ]
“Then as to the issue of Franks and . . . with respect to intentional misstatements or reckless misstatements or intentional omissions or reckless omissions, it involves the address that was given, as well as the issue of the omission regarding the growing of the marijuana the previous summer, and the fact he was in jail for a period of that time.
“The Court has already indicated and found that there wasn’t sufficient particularity to justify a separate hearing regarding Franks. And even if we did make any modifications or additions . . . there would still be probable cause in the affidavit.
“The final issue is the staleness issue. . . . [¶] . . . [¶] As I review the affidavit, if it weren’t for the arrest and search and the seizure of the information in the box, the items in the box on January 3rd, then we would be talking about staleness if they just tried to get a warrant based on old information.
“Here we have very recent information that links the five pounds [of marijuana found in the cardboard box] to the property to be searched. And the other older information is used to buttress the new information, but the new information is certainly not stale. It’s a couple of days old or one day old at the time the search warrant is obtained, in that range.
“So the argument that there’s a problem with staleness of the information in the affidavit, that is also denied.
“So the motion to suppress as to the issues raised with respect to the search warrant is denied.”
DEFENDANT’S CONTENTIONS
The Cardboard Box
Defendant opens the analysis in his brief by conceding the traffic stop by Officer Rowan was reasonable, but he then attacks the “inventory search” as unlawful. The point of this analysis is not apparent, given that Magistrate Nelson refused to uphold the search on this basis, and the People make no effort to prove that Magistrate Nelson’s inventory search reasoning was inaccurate or legally deficient. Nor, we add, do the People try to refute Magistrate Nelson’s conclusion that the search of the box cannot be justified by Terry v. Ohio (1968) 392 U.S. 1.
Our puzzlement continues when defendant, under the caption “the trial court improperly denied appellant’s suppression motion in violation of his Fourth Amendment rights,” returns to the subject: “In determining whether an inventory search of an automobile is unreasonable in violation of [the] Fourth Amendment, courts focus on the purpose of the impound rather than the purpose of the inventory, and an inventory search conducted pursuant to an unreasonable impound is itself unreasonable.” He then spends most of a page to arguing the cardboard box “was not part of an inventory search.”
The next caption in defendant’s brief is “The search of the box was not justified because [the] officers had no articulable suspicion that defendant was armed or had contraband in the vehicle.” The ensuing argument leaves no doubt that defendant is maintaining the box could not be searched under Terry v. Ohio, which, as already noted, was Magistrate Nelson’s conclusion, and one tacitly accepted by the People.
The next two captions in defendant’s brief are “An inventory search of the vehicle was illegal because it was conducted as a pretext to allow the officer[s] to search the vehicle for evidence of a crime,” and “the search of the box found in the back seat of defendant’s vehicle was illegal because the search was not part of an established procedure for conducting inventory searches.” Again, defendant focuses on the inventory search issue. Granted, Officer Rowan obviously thought he was making an inventory search because he was completing the CHP paperwork (the form “180” mentioned in Judge Nelson’s written ruling) for that procedure. Again, the point of this non-issue is neither apparent to us nor explained by defendant.
Thus ends defendant’s opening brief on the discovery and seizure of the contents of the cardboard box; the rest of his brief is directed against the asserted defects of the search warrant.
We could simply stop at this point and reject this part of defendant’s appeal because he has failed the most elemental principle of appellate procedure—he has failed to demonstrate error. (E.g., People v. Giordano (2007) 42 Cal.4th 644, 666; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409.) Nevertheless, mostly out of respect for the care and attention shown by Magistrate Nelson, we will address the merits as we see them. It will not take long, for there is justification quickly discernible from his written ruling. Magistrate Nelson’s quote from Devenpeck v. Alford, supra, 543 U.S. at page 153 provides the key.
Although defendant is not explicit, he does not spend any time trying to show that the CHP officers lacked probable cause to arrest him for possessing a forged driver’s license. This is understandable in light of Magistrate Nelson’s express findings (“Both officers testified that the falsified identification was found within a minute before opening the box. . . . [T]he Court believes the officers”). Since the 1950s, California has followed the thinking of (then) Justice Traynor, thinking subsequently adopted by the United States Supreme Court, that if police have probable cause to arrest, it is of no consequence that a search incident to arrest occurs before the actual arrest. (People v. Simon (1955) 45 Cal.2d 645, 648; People v. Martin (1955) 45 Cal.2d 755, 762; Rawlings v. Kentucky (1980) 448 U.S. 98, 111.) “The crucial point is whether probable cause to arrest existed prior to the search notwithstanding ‘the fact that the officer does not have the state of mind [i.e., to make an arrest] which is hypothecated by the reasons which provide the legal justification for the officer’s action.’ ” (People v. Fay (1986) 184 Cal.App.3d 882, 892.) The inner quote is from Scott v. United States, supra, 436 U.S. at page 138, which was cited by Magistrate Nelson.
The timing of the officers’ discovery of the forged license is also significant, for it occurred after the officers had decided to impound defendant’s vehicle, another decision he does not challenge. Moreover, as part the process of impounding his vehicle, defendant had already indicated he wanted to retrieve the box in his vehicle and take it with him, as Magistrate Nelson, phrased it, “when he was transported in another CHP vehicle” into Boonville. “[W]hen an officer lawfully arrests ‘the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile’ and any containers therein.” (Arizona v. Gant (2009) 556 U.S. 332, 340–341.) “[F]ollowing standardized procedures” (Colorado v. Bertine (1987) 479 U.S. 367, 372–373) of the CHP, the need to inventory defendant’s belongings would then justify opening the box. (See, e.g., Florida v. Wells (1990) 495 U.S. 1, 4–5; People v. Williams (1999) 20 Cal.4th 119, 126–127, 138; People v. Green (1996) 46 Cal.App.4th 367 [arrest for driving with license & registration].) More importantly, the need to make sure defendant was not armed fully justified the officers’ opening and inspecting the cardboard box (see, e.g., Colorado, at p. 373 [“Knowledge of the precise nature of the property . . . helped to avert any danger to police . . . that may have been posed by the property”]; United States v. Robinson (1973) 414 U.S 218, 234–235), particularly before defendant was allowed to have it in his possession while being driven to Boonville. Not only is this CHP protocol, it is plain common sense, as wryly noted by Judge Behnke: “I’m kind of sympathetic to the idea that a police officer shouldn’t have to take into his vehicle something that a person who’s getting a ride . . . wants to take along without having some way to figure out that that’s safe.” The non-violent or non-firearm-related nature of the underlying offense is not a restriction on the officer’s ability to protect his or her safety. (See People v. Stoffle (1991) 1 Cal.App.4th 1671, 1684 [“one of the rationales for the search-incident-to-arrest exception is the safety of the arresting officer. This rationale is dependent upon the mere fact of a custodial arrest rather than the nature of the offense comprising the arrest,” citing United States v. Robinson].)
In short, defendant has failed to demonstrate error and in any event the search of the box was justified as a search incident to arrest. Hence, defendant has not established that either Magistrate Nelson or Judge Behnke erred in concluding defendant was not the victim of an illegal search and seizure on January 3.
THE SEARCH WARRANT
Insofar as defendant attacks the warrant search on the basis of the allegedly illegal warrantless search of the cardboard box and the seizure of its contents, the preceding discussion established that the warrantless search was not invalid. Thus, the predicate of defendant’s argument is missing.
“ ‘In reviewing a search conducted pursuant to a warrant, an appellate court inquires “whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” [Citations.] “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], 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.” [Citation.] The magistrate’s determination of probable cause is entitled to deferential review. [Citations.] Probable cause sufficient for issuance of a warrant requires a showing in the supporting affidavit that makes it substantially probable that there is specific property lawfully subject to seizure presently located in the particular place for which the warrant is sought.’ ” (People v. Scott (2011) 52 Cal.4th 452, 483.) “The showing required in order to establish probable cause is less than a preponderance of the evidence or even a prima facie case.” (People v. Carrington (2009) 47 Cal.4th 145, 163.)
Probable Cause
Defendant’s argument, in its entirety, is as follows:
“Based on the totality of circumstances set forth in the affidavit in this case, there was no fair probability that contraband or evidence of a crime would be found at the property located at 3500 Little Mill Creek Road, Philo, CA at the time of the search. The affidavit makes it apparent that Mr. Plowright did not live at the property. In the search warrant affidavit, Special Agent Partlow states that Mr. Plowright: ‘stated he resided [at] 350 Budd Avenue, Campbell, CA with his mother Patricia.’
“Additionally, the information in the affidavit indicates that Mr. Plowright had not recently been on the property. In the search warrant affidavit, Special Agent Partlow states that Mr. Plowright: ‘related he owned a vacation cabin on 55 acres near Philo, CA which he and his mother were on their way to when they got stopped by CHP.’ Additionally, in the search warrant affidavit, Special Agent Partlow states that Mr. Plowright: ‘told your affiant that the marijuana found in the vehicle was his, and was from marijuana he grew on his property in Philo, CA last summer.’ ”
This is utterly inadequate to establish defendant’s point. Defendant makes no attempt to demonstrate why the affidavit is so comprehensively vacant that no warrant should have issued. The first and second of defendant’s quoted comments are more than nullified by what is in the affidavit and unmentioned by defendant: that defendant “was arrested in 2010 on his property at 3500 Little Mill Creek Rd, Philo, CA”, and that Partlow “used Parcel Quest and identified 3500 Little Mill Creek Rd, Philo, CA as still being owned by Patricia and Thomas Plowright.” (Italics added.) And defendant focuses exclusively on marijuana, overlooking that the warrant authorized search of other things, most notably “documentation of personal information,” which clearly would cover the additional forged documents found in the search.
The Franks Motion
A motion to traverse the affidavit which led to issuance of a search warrant is commonly called a “Franks motion” after Franks v. Delaware (1978) 438 U.S. 154, the United States Supreme Court decision authorizing a post-search evidentiary challenge to the veracity of the search warrant affidavit. “[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” (Id. at pp. 155–156.) When presented with a Franks motion, “ ‘the lower court must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. At the evidentiary hearing, if the statements are proved by a preponderance of the evidence to be false or reckless, they must be considered excised. If the remaining contents of the affidavit are insufficient to establish probable cause, the warrant must be voided and any evidence seized pursuant to that warrant must be suppressed.’ ” (People v. Benjamin (1999) 77 Cal.App.4th 264, 272.)
Initially, it should be noted that Magistrate Nelson determined that defendant’s showing was insufficient to merit a full evidentiary hearing, which suggests he did not believe any statements or omissions were deliberate or material. (See People v. Scott, supra, 52 Cal.4th at p. 484 [“Innocent or negligent misrepresentations will not support a motion to traverse”].)
Defendant argues the affidavit (1) “included false statements made knowingly and intentionally, or with reckless disregard for the truth,” (2) “intentionally omit[ted] facts for the purpose of deceiving the magistrate or recklessly disregards accuracy and completeness,” and (3) “contains stale information that cannot establish probable cause.”
Again, defendant points to the statement in the affidavit that has him owning 3500 Little Mill Road. He points to a 2003 Grant Deed from “THOMAS R. PLOWRIGHT and PATRICIA A. PLOWRIGHT, Husband and Wife” to “THOMAS R. PLOWRIGHT and PATRICIA A. PLOWRIGHT, as Trustees of the PLOWRIGHT FAMILY TRUST.” But this only proves that he did not own the property as of 2003. It does not establish that he had no ownership interest in 2015. And even if he had no actual ownership interest, he still had access to it and use of it, as shown by his being arrested there. In short, however characterized, the nature of defendant’s ownership interest, if any, in the property would not be so material that he would otherwise be unconnected to the property, thus defeating probable cause.
With respect to his having reported that he grew marijuana “last summer” at 3500 Little Mill Road, defendant brands this an intentional omission because “Special Agent Partlow failed to include information that Mr. Plowright was in custody in the Mendocino County Jail last summer. Mr. Plowright surrendered himself to custody on April 15, 2014 and was not released from custody until December 10, 2014. Clearly, Mr. Plowright could not have grown marijuana on the property in question while he was in custody at the Mendocino County Jail.” This omission, whether intentional or not, is not so potent that it defeats probable cause, for the same reasons given in the preceding paragraph.
Finally, regarding defendant’s assertion of staleness, he reasons: “The search warrant in this case was based upon a large amount of stale information. In the search warrant affidavit, Agent Partlow relates he was told by another CHP officer that: ‘Thomas Plowright was arrested in 2010 on his property . . . .’ Agent Partlow also states he spoke with Agent Peter Hoyle who related to Agent Partlow that: ‘he went onto the property in 2010 . . . .’ Furthermore, in the search warrant affidavit, Agent Partlow states: ‘Thomas Plowright’s criminal history was extensive and showed he had been convicted multiple times for possession of a controlled substance for sales.’ Noticeably, Agent Partlow fails to inform the Court the prior offenses took place years ago. None of the above information contained in the search warrant affidavit suggests a fair probability that contraband or evidence of a crime will be found at the property at the time of the search. The statements are stale, have no value and do not support a finding of probable cause.”
At first glance, this seems troubling. But it is not when set against the other information in Agent Partlow’s affidavit.
First, it was Partlow who provided the very details on which defendant builds his argument. “ ‘An affidavit need not disclose every imaginable fact . . . . It need only furnish the magistrate with information, favorable and adverse, sufficient to permit a reasonable, common sense determination whether circumstances which justify a search are probably present.’ ” (People v. Sandoval (2015) 62 Cal.4th 394, 410, italics added.) This may account for why Magistrate Nelson declined to treat any flaws in the affidavit as materially misleading.
Second, it was clear from the affidavit that Agent Partlow had considerable personal familiarity with the case, namely, that he was one of the officers when the cardboard box was opened, that he interviewed defendant that same day, and that during the course of that interview, defendant “told your affiant that the marijuana found in the vehicle was his, and was from marijuana plants he grew on his property in Philo, CA last summer.” Defendant focuses upon the last two words, but he does not realize that his effort to prove them wrong will not aid him. If the words “last summer” are accepted as false and excised, what remains—defendant stating “the marijuana found in the vehicle was his, and was from marijuana plants he grew on his property in Philo, CA” (italics added)—is sufficient for Magistrate Nelson to conclude that, if five pounds of packaged marijuana were discovered with defendant on January 3, there was a reasonable prospect that additional marijuana might be found at that property three days later.
DISPOSITION
The judgment of conviction is affirmed.
 




STEWART, J.



We concur.




KLINE, P.J.




RICHMAN, J.






















People v. Plowright (A149797)