P. v. Swaid

Filed 12/10/07 P. v. Swaid 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Based on evidence obtained under a search warrant, appellant was convicted of several felonies relating to the manufacture and sale of methamphetamine. The sole issue he raises on appeal is to request that this court review the sealed portion of the affidavit on which the warrant was based, in order to determine whether there was probable cause for the search, and whether the identity of a confidential informant should have been disclosed. We have reviewed the sealed portion of the affidavit, and find no error. We therefore affirm the judgment.

facts and procedural background

Because of the limited scope of the appeal, we summarize the facts only briefly. On September 30, 1999, Alameda County Narcotics Task Force Detective Steve Angeja obtained a warrant (the warrant) authorizing the search of appellant, appellants vehicles, a residence located at 1741 34th Avenue in Oakland, and another residence located at 15976 Windsor Drive in San Leandro. The searches authorized by the warrant were executed on October 1, 1999.

At around 8:37 a.m. on that date, an officer assisting in the execution of the warrant saw appellant leave what appeared to be a cottage or shed adjacent to 1741 34th Avenue (the shed) and get into a car. The car was stopped by other officers, who searched it and found several bags containing over a pound of methamphetamine; an electronic scale; and $45,500 in cash. Appellant was carrying a drivers license with a false name, and keys that opened the doors of the shed. Cash in the amount of $116,340 was found during a search of appellants home at 15976 Windsor Drive.

Detective Angeja then entered the shed, discovered that it was actually a separate living space attached to a building adjacent to 1741 34th Avenue, and obtained an additional warrant by telephone adding it to the scope of the premises to be searched.[1] The shed contained 62 pounds of methamphetamine (including the weight of the packaging), a police scanner, a methamphetamine recipe, several cases of pseudoephedrine tablets (a methamphetamine ingredient), 64 coffee carafes (used in the manufacture of methamphetamine), numerous cans of acetone (used in the methamphetamine manufacturing process), and a ledger recording transactions in the amount of hundreds of thousands of dollars. Appellants fingerprints were later recovered from some of the coffee carafes, a Pyrex beaker found in the shed, and the transaction ledger, which appellant admitted at trial was in his handwriting.

Appellants defense was that a man named Michael Ringold, from whom he bought items to resell at flea markets, had set [him] up. Appellant testified that the boxes of pseudoephedrine in the shed were Ringolds, that he moved them into the shed at Ringolds request, and that Ringold told him they contained jewelry-making tools for a business they were going to start together manufacturing artificial crystals for use in costume jewelry. Appellant acknowledged that he realized Ringold was performing some sort of chemical manufacturing work in the shed, but maintained that he thought it had to do with making crystals for jewelry.

Appellant averred that the car he was driving on the day of the search had been rented by Ringold, and that the methamphetamine found in the car (though not the cash) belonged to Ringold. He also explained that his handwriting was in the ledger because Ringold had asked him to copy the entries to make it more legible, because Ringolds writing was not good. Appellant and his brother, who lived with him at the house on Windsor Drive, testified that they were in possession of large sums of cash partly in connection with the operation of their legitimate businesses, and partly due to their receipt of a sum of money from their mother, who lived overseas, to be used as a down payment on a house.

On December 1, 1999, which was after appellants arrest but before he was indicted, appellant moved to traverse and quash the warrant, to suppress evidence, and to unseal the sealed portion of the affidavit that had been relied upon as grounds for the issuance of the warrant.[2] The trial court conducted an in camera review of the sealed affidavit, ordered a portion of it disclosed, and ordered the remaining portions of the affidavit maintained under seal, having found that this was necessary to protect the identity of the confidential informant. On January 19, 2001, the court denied appellants motion to traverse and quash the warrant, and to suppress evidence.

On January 27, 2000, appellant was indicted and charged with transportation and sale of methamphetamine (Health & Saf. Code,  11379, subd. (a)); two counts of possession of methamphetamine for sale (Health & Saf. Code,  11378); manufacture of methamphetamine (Health & Saf. Code,  11379.6, subd. (a)); possession of ephedrine with intent to manufacture methamphetamine (former Health & Saf. Code,  11383, subd. (c)(1), recodified as Health & Saf. Code,  11383.5, subd. (b)(1) by Stats. 2006, ch. 646,  2-3); and possession of over $100,000 in cash or negotiable instruments with knowledge that it was obtained from the sale of methamphetamine, and with the intent to use it to purchase methamphetamine (Health & Saf. Code,  11370.6, subd. (a)).

During pretrial proceedings, appellant moved to suppress the evidence seized in the search of the shed, but the motion was denied. Appellant also filed a motion for discovery of the identity of the confidential informant, asserting that the defense believed it was Ringold, and that Ringold either was, or knew the identity of, the true owner of the items seized from the shed and from the car that appellant was driving when he was arrested. The trial court found that the confidential informant was not a material witness, and that there was no reasonable possibility that the informant could supply evidence that might result in appellants exoneration, and accordingly denied the motion.

After other pretrial proceedings, appellants jury trial began in May 2006. Appellant was convicted on all counts. On September 29, 2006, appellant was sentenced to a total term of 20 years in prison. This timely appeal ensued.

discussion

The sole issue raised by appellant in this court is whether the trial court correctly determined that the sealed affidavit supplied probable cause for the search, contained no material misrepresentations or omissions, and did not show that the informant was a material witness on the issue of guilt or innocence. Appellant requests that this court review the sealed affidavit and independently review those issues, citing People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), and People v. Collins (1986) 42 Cal.3d 378, 395, fn. 22. Respondent agrees that this court should conduct such a review, adding only that we should consider the unsealed as well as the sealed portions of the search warrant affidavits in determining these issues.

The scope of the common law privilege to refuse disclosure of the identity of a confidential informant was discussed by the United States Supreme Court in Roviaro v. United States (1956) 353 U.S. 53 . . . : The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed . . . the privilege is no longer applicable. [] A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informers identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. [Citation.] (Hobbs, supra, 7 Cal.4th at pp. 958-959.)

Whether disclosure of an informants identity or the contents of his communication is relevant and helpful to the defense of an accused or essential to a fair determination of a cause will depend in large part on whether the informant is a potential material witness on the issue of guilt. (Hobbs, supra, 7 Cal.4th at p. 959.) An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] (People v. Lawley (2002) 27 Cal.4th 102, 159-160, italics added.)

To compel disclosure of the identity of a confidential informant, the defendant has the burden to show that,   in view of the evidence, the informer would be a material witness on the issue of guilt and nondisclosure of his identity would deprive the defendant of a fair trial. [Citations.] That burden is discharged . . . when [the] defendant demonstrates a reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in [the] defendants exoneration. [Citation.] (People v. Borunda (1974) 11 Cal.3d 523, 527, italics omitted; see also People v. Austin (1994) 23 Cal.App.4th 1596, 1610, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 864-865.) The existence of a reasonable possibility [that] an informant could provide exonerating evidence must be determined on a case-by-case basis. [Citation.] (People v. Austin, supra, 23 Cal.App.4th at p. 1610.) A  defendants showing to obtain disclosure of an informants identity must rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility. [Citation.] (People v. Luera (2001) 86 Cal.App.4th 513, 526, italics omitted.)

When, as in the present case, a drug possession charge is based on the location of narcotics discovered pursuant to a valid search warrant, and upon the immediate contemporaneous personal observations of the arresting officers, the unnamed informant who furnished information relative only to the probable cause [for the search warrant] is not a material witness to the issue of guilt. (People v. Hardeman (1982) 137 Cal.App.3d 823, 831.) Where the facts show that an arrest is made on the basis of direct police observation and discovery of contraband without the immediate and direct participation or observation of the informant, no reasonable possibility which is based upon more than utter speculation can be found that the informant could provide relevant testimony to the issue of the arrestees guilt or innocence of the offense allegedly committed. (Id. at p. 832.)

[W]hen an in camera hearing has been held and the trial court has reasonably concluded, as in [this] case, that the informant does not have knowledge of facts that would tend to exculpate the defendant, disclosure of the identity of the informer is prohibited by Evidence Code section 1042, subdivision (d), since the public entity . . . invoked the privilege pursuant to [Evidence Code] section 1041. (People v. McCarthy (1978) 79 Cal.App.3d 547, 555.) Where [t]he guilt of the defendant was established by evidence totally independent of the informer, the denial of a motion to disclose the informers identity does not deprive the defendant of a fair trial. (People v. Thomas (1975) 45 Cal.App.3d 749, 755.)

We have performed the independent review requested by appellant. Based on that review, and on the applicable legal principles summarized above, we agree with the trial court that there was probable cause for the search; that there is no indication that the affidavit contains any material misrepresentations or omissions; and that the confidential informant was not a material witness, because there is no reasonable possibility that the informant could have given evidence that might have resulted in appellants exoneration of the charged crimes. Accordingly, we affirm the judgment.

disposition

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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[1] In the trial court, appellant challenged the initial entry into the shed on the basis that it constituted a search and was outside the scope of the original warrant. He does not renew these challenges on appeal.

[2] Perhaps because of its timing, this motion is not included in the record on appeal. Appellant requested that it be forwarded by the trial court, but this does not appear to have been done. We have based our account of the relevant procedural history, which does not appear to be disputed, on the papers and exhibits filed by the prosecution in opposition to the motion.