P. v. Pulliam
Filed 6/24/13 P. v. Pulliam CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
DOUGLAS WADE PULLIAM,
Defendant and Appellant.
B244795
(Los Angeles
County Super.
Ct.
No. KA097244)
APPEAL from
a judgment of the Superior Court
of
County, George Genesta, Judge.
Affirmed.
Richard L.
Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, and Idan Ivri, Deputy Attorney General, for Plaintiff
and Respondent.
_________________________________
Defendant
and appellant Douglas Wade Pulliam was charged in counts 1 and 2 with
warrant that led to the discovery of the weapons was denied.
was dismissed, and defendant was placed on formal probation for a period of
three years. We affirm.
FACTS
title="">[3]
On November 3, 2011, Pomona Police
Department Officer Karen Callaghan interviewed Misty Pulliam
that day. Misty provided Officer
Callaghan with a recording of the call, in which a male caller said, “Soon soon
soon you’re dead. Soon you’re
dead.†The caller did not identify
himself. Misty identified the caller to
Officer Callaghan as defendant, who was her estranged husband. Officer Callaghan did not independently
verify Misty’s claim. Misty stated that
she saw the caller’s phone number on her caller ID. She told Officer Callaghan the call was made
from a phone with a 760 area code, and that defendant’s son possessed a phone
with the same area code. Officer
Callaghan did not request the full phone number of the threatening caller or
defendant’s son’s phone number.
Misty
explained that she and defendant were involved in a contentious divorce and
custody dispute, and that defendant had recently been informed he would be
dropped from her insurance coverage.
Approximately one year before the call, when Misty was still living with
defendant, she had discovered photographs on the family computer of firearms
arrayed in the kitchen of their home.
Misty gave Officer Callaghan 14 pages of photographs of guns printed
from the computer. She stated that
defendant had gone hunting with his brother in Arizona
but did not say that defendant was transporting guns across state lines or that
she knew him to be an arms trafficker.
Misty recounted that when she lived with defendant, she personally saw
guns in the bedroom on one occasion. She
did not say how many guns she saw or identify the guns as those depicted in the
photographs. Officer Callaghan confirmed
that defendant lived at the address in question and determined that there were
prior domestic violence calls to
police originating from defendant’s home.
Later that
day, Officer Callaghan spoke to Pomona Police Department Corporal James Suess
regarding the threat against Misty so that he could prepare a search warrant
affidavit. Officer Callaghan repeated
the information Misty had provided as detailed above. Corporal Suess’s memory of the details varied
from Officer Callaghan’s account in that he recalled Officer Callaghan stating
that defendant, rather than defendant’s son, had a phone number with the 760
area code. Additionally, when Officer
Callaghan showed Corporal Suess the gun photographs provided by Misty and told
him that defendant had taken the guns to Arizona
to go hunting, Corporal Suess characterized this activity in the affidavit as
weapons “trafficking,†although Misty had not made that characterization. Officer Callaghan stated that defendant had
between 17 and 22 guns in his home based on the information Misty gave her,
although Misty had not been present in the house since December of 2010, approximately
11 months before the affidavit was prepared.
Corporal
Suess conferred with Sergeants Lena Becker and Mike Niederbaumer about the
case. Sergeant Niederbaumer confirmed
that there were no firearms legally registered to defendant. Corporal Suess prepared a search warrant for
defendant’s home, which was signed by Judge Lopez-Giss on November 3, 2011.
That same
day, Corporal Suess executed the search warrant at defendant’s home, where he
discovered assault weapons inside the house and garage, including a TEC-9 and
an Uzi. Defendant was present for the
search. The guns were transported to the
Pomona Police Department, where they were identified as assault weapons within
the meaning of section 12280, subdivision (b).
DISCUSSION
Defendant
contends the affidavit in support of the search
warrant contained factual misrepresentations that vitiated probable cause,
and that the search therefore violated his Fourth Amendment right against
unreasonable search and seizure. Because
no exception to the warrant requirement applies, defendant argues that evidence
of the guns should have therefore been suppressed.
The Fourth
Amendment protects the right of persons to be free from unreasonable searches
and seizures. (People v. Allen (2000) 78 Cal.App.4th 445, 448-449.) With some exceptions, “[t]his right is
preserved by a requirement that searches be conducted pursuant to a
warrant.†(Id. at p. 449.) A search
warrant must be based on probable cause and “supported by affidavit, naming or
describing the person to be searched or searched for, and particularly
describing the property, thing, or things and the place to be searched.†(§ 1525.)
A motion to
traverse a search warrant attacks the truth of the factual allegations
contained in the supporting affidavit. (
957.) To prevail on a motion to
traverse, the defendant must first make 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 . . . .’ [Citations.]†(People
v. Thuss (2003) 107 Cal.App.4th 221, 230 (Thuss).) If the defendant
makes a successful preliminary showing, the trial court must conduct an
evidentiary hearing pursuant to Franks v.
Delaware (1978) 438 U.S. 154, in which the defendant is required to prove
the same two elements by a preponderance of the evidence. (Thuss,
supra, at p. 230.) If the defendant meets the preponderance of
the evidence standard, the warrant must be voided and any evidence seized
pursuant to it must be suppressed. (
“‘The
question facing a reviewing court asked to determine whether probable cause
supported the issuance of the warrant is 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, commonsense decision whether, given all the circumstances
set forth in the affidavit before him, 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.]’ [Citations.]
‘[T]he warrant can be upset only if the affidavit fails as a matter of
law [under the applicable standard announced in Illinois v. Gates [(1983)] 462 U.S. [213,] 238] to set forth
sufficient competent evidence supportive of the magistrate’s finding of
probable cause, since it is the function of the trier of fact, not the
reviewing court, to appraise and weigh evidence when presented by affidavit as well
as when presented by oral testimony.
[Citations.]’ [Citation.] This standard of review is deferential to the
magistrate’s determination.
[Citation.]†(
standard of review applies when reviewing the trial court’s ruling on the
motion to suppress on appeal. (
879, overruled on another point by Illinois
v. Gates, supra, 462 U.S. at p.
238.)
Defendant
specifically objects to the gun trafficking characterization, the statement
that Misty saw the guns pictured in the photographs, and the statement that
defendant had a phone with a 760 area code.
Defendant concedes the trial court properly followed the procedure for
the hearing set forth in Franks v.
Delaware, supra, 438 U.S. 154 but
argues that it should have found the supporting affidavit insufficient after
the misstatements were removed. We hold
that, even excising these misstatements from the supporting affidavit, the
remaining statements establish probable cause and the motion to traverse was
properly denied.
Corporal
Suess’s characterization of defendant’s activity as weapons trafficking, while
not supported by Misty’s statements, does not negate the existence of guns in
defendant’s home. Misty personally
observed guns in defendant’s home and provided numerous printouts of
photographs of guns from the family computer, which she identified as having
been taken in defendant’s kitchen.
Whether or
not Misty actually saw the specific guns depicted in the photos, she was able
to verify the approximate date the photos were taken and to place them within
defendant’s home. Defendant’s argument
that the information was stale and unworthy of weight in the trial court’s
consideration fails, because the staleness of the information was rejected as a
basis for suppressing evidence in the motion to quash, which defendant does not
challenge here. Moreover, although in
some circumstances information that is remote in time may not be sufficient to
establish probable cause, “if there are special circumstances that would
justify a person of ordinary prudence to conclude that the alleged illegal
activity had persisted from the time of the stale information to the present,
then the passage of time has not deprived the old information of all value.†(People
v. Mikesell (1996) 46 Cal.App.4th 1711, 1718.) As the Attorney General points out,
defendant’s collection of numerous illegal assault weapons is activity that is
likely to be ongoing, and even if defendant determined to rid himself of the
weapons, doing so would be difficult and time-consuming. In such a case, information that is only
approximately a year old is worthy of consideration.
Finally,
excising the misstatement that defendant had a phone with a 760 area code,
there was still sufficient evidence that defendant made the telephone call,
because Misty identified the caller’s voice as defendant’s. As defendant’s estranged wife, Misty had the
level of personal knowledge to correctly identify defendant’s voice in a phone
call. The combination of evidence that
defendant placed a call to Misty threatening to kill her and evidence that he
had numerous weapons in his house approximately one year before the threatening
call was made provide a “‘substantial basis for concluding a fair probability
existed that a search would uncover wrongdoing . . .’†sufficient to support
issuance of the warrant. (
The judgment is
affirmed.
KRIEGLER, J.
We
concur:
MOSK, Acting P. J.
O’NEILL, J.
name="_ftn1" title="">[1] Unless
otherwise indicated, all statutory references are to the Penal Code.
warrant but does not challenge the denial of that motion on appeal.
