P. v. Rogers

Filed 6/23/06 P. v. Rogers CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Under Franks v. Delaware (1978) 438 U.S. 154 (Franks), a defendant has a limited right to challenge a search warrant by demonstrating that the affidavit contains false statements made knowingly and intentionally or with reckless disregard for the truth. In this case, the affidavit in support of a search warrant was based on information from two confidential informants. After the search was conducted and defendant Chris Rogers was arrested, one informant recanted all the information he had provided to the investigating police officer. The trial court held a Franks hearing, but denied defendant's motion to traverse the warrant. Defendant now challenges that decision.

FACTUAL BACKGROUND[1]

Around 7:30 a.m. on February 23, 2004, a search warrant was served and executed at 775 Lotus Street in San Jose, defendant's residence. Defendant was initially found in the passenger seat of a car at a nearby intersection. When San Jose Police Officer Fernando Pedreira informed defendant that he had a warrant to search his residence, defendant admitting living there, but said he did not have keys. Defendant appeared to be under the influence of methamphetamine, so Officer Pedreira arrested him and found the residence keys during a search of defendant.

On the back of defendant's driver's license, the police found a series of numbers, which appeared to be a combination. The combination opened a safe in defendant's bedroom, inside of which they found two bulletproof vests, a stolen .357 Ruger revolver, and a small caliber semi-automatic pistol. A laptop computer with the serial numbers scratched off was found in the house. In the attached garage, the officers found a saleable quantity of methamphetamine and indicia of sales.

At the police processing center, after defendant had been removed from the holding cell, officers discovered that he had concealed additional methamphetamine on his body. Defendant was advised of his Miranda[2] rights and then confessed to possessing and selling methamphetamine, as well as knowingly and illegally possessing the handguns.

Officer Pedreira had started an investigation of defendant several weeks before the search when he received similar information from two informants. On February 8, 2004, Officer Pedreira arrested Lonnie Nunley (identified as Informant X)[3] during a domestic violence call. X offered information about a friend who was a dope dealer and a fence. Officer Pedreira told X he would â€