P. v. Trembly

Filed 1/30/07 P. v. Trembly 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Pursuant to a negotiated disposition, defendant pleaded no contest to cultivation of marijuana (Health & Saf. Code, 11358). Defendant pleaded no contest after unsuccessfully moving to suppress evidence and to unseal the search warrant affidavit. On appeal, defendant maintains that the lower courts in camera review to determine whether to disclose the informants identity was improper because the informant did not testify. Additionally, defendant contends that probable cause did not support the search warrant because there was insufficient corroboration of the informant. We affirm the judgment.

BACKGROUND

A deputy with the Lake County Sheriffs Department filed an affidavit in support of a search warrant to search defendants person, residence, and vehicle. The deputy or affiant stated that a confidential informant had contacted him within the last 10 days. The informant, who was untested and did have a criminal history, was providing information in exchange for remuneration. The affiant provided a sealed three-page confidential attachment in support of the search warrant. On March 11, 2005, a magistrate judge in Mendocino County issued a search warrant for the search for controlled substances of defendants residence, person, and automobile.

The following day, on March 12, 2005, agents located defendant driving his 1991 Toyota sedan and contacted him while he was in the car in a parking lot.^[1] Defendant refused to leave his vehicle and had to be forcibly removed from the car. An agent arrived with his drug detection dog, and the dog indicated there were drugs in the trunk of the car. An agent opened the trunk and found 4611.0 grams of marijuana (about 10 pounds) in 10 clear plastic bags inside an unlocked suitcase. Defendant asserted that all of the marijuana was medical marijuana. The agents placed defendant under arrest.

Later that same morning, agents went to defendants residence. They entered the home through an unlocked front door and encountered Michelle Holland in the hallway. A search with the officers canine alerted the agents to a black garbage bag hidden in the corner of the garage. Inside of the bag were loose marijuana buds and shake. There were several zip lock bags containing additional marijuana buds. Agents located three zip lock bags containing marijuana bud in a dresser inside defendants bedroom. Agents also found a digital gram scale and four zip lock bags containing marijuana shake inside a plastic bin in a shed on the east side of the residence. They also located and seized from the shed two garbage bags containing marijuana stems and buds (approximately 780 grams). The total amount of marijuana collected by the agents at the residence was 2261.13 grams (approximate gross weight) of marijuana buds packaged for sale, marijuana leaves, and marijuana stems with buds and leaves still attached.

The agents spoke with Holland. She stated that she knew defendant was selling marijuana but she was unaware of the large amounts in the garage or in his vehicle. She said that she smoked marijuana and that defendant gave it to her, but she did not have a medical reason for smoking it. She stated that she had never seen defendant sell marijuana from the residence.

Defendant denied that he had any marijuana in either his vehicle or his garage. Defendant admitted that the marijuana found in his bedroom as well as a gram scale belonged to him. He also claimed that he had a prescription for marijuana. Defendant said he had glaucoma and a bad knee, but he could not remember his physicians name or where his recommendation could be located.

On March 15, 2005, defendant was charged in count 1 with possession of marijuana for sale (Health & Saf. Code, 11359), in count 2 with transportation of marijuana (id., 11360, subd. (a)), and in count 3 with cultivation of marijuana (id.,  11358). On March 21, 2005, the court ordered the confidential attachment provided in support of the search warrant sealed.

On June 17, 2005, defendant moved to dismiss the information pursuant to People v. Mower (2002) 28 Cal.4th 457 on the basis that he was immune from prosecution under the Compassionate Use Act (Health & Saf. Code, 11362.5) as the caregiver of a medical marijuana patient. After the trial court heard evidence and the testimony of various witnesses, it denied the motion. The court stated that it was sure some of the marijuana was being used by defendant medically, but it had strong suspicion that some of that 10 pounds was going to be used commercially. Probably the majority of it.

On June 17, 2005, defendant moved to suppress the evidence on several grounds, including the absence of probable cause to issue the search warrant. Approximately two months later, on August 17, defendant filed a motion to disclose the informant and the sealed portions of the affidavit in support of the search warrant. On October 13, 2005, the court reviewed the sealed portion of the affidavit and then held an in camerahearing on the matter.

After the in camerahearing, the court denied the motion to disclose the informant or to unseal the sealed portions of the affidavit. It also denied the motion to suppress evidence. The court explained in pertinent part: As is clear from the unsealed portion of the affidavit, there was an informant involved in the case. The information provided by the informantwell, first of all, I understand the informant to have had a record. I understand the informant to be doing this for purposes of receiving payment. So were not dealing with a citizen informant. Were dealing with an informant that needs corroboration. There was corroboration, I think, found in the unsealed portion of the affidavit; in particular, the identification of the suspect in this case was confirmed through a California drivers license, his residence in Healdsburg was confirmed through a California drivers license, a vehicle described as the defendants vehicle by the informant was confirmed to be at the residence in Healdsburg by the informants personal observation and corroborated, again, information received by the informant.

The affiant described his conversation with the informant in terms of satisfying himself that the informant had some knowledge of marijuana and possession of marijuana sales. . . . [] . . . I did speak with the deputy district attorney, received information about the occurrence of the event itself. I did confirm that with thewith other information contained in the complaint itself and Im satisfied that the occurring event in this casethe triggering event did occur in this particular case.

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Ive also been provided additional information about the safety of the informant in this particular case, the concern for the informants safety, and Im satisfied that there is a viable reason to have had the portion of the affidavit that was sealed sealed and it continues to exist. [] Further, I have reviewed the information, as I said, not only in the affidavit, but the sealed portion of the affidavit for purposes of determining whether probable cause existed, and I think it clearly exists in this case.

On December 21, 2005, defendant pled no contest to cultivation of marijuana. On February 10, 2006, the court sentenced defendant to 36 months of probation.

Defendant filed a timely notice of appeal.

DISCUSSION

I.In Camera Review

Defendant challenges the lower courts in camera review of the sealed attachment in support of the search warrant and the courts refusal to disclose the identity of the informant. He claims that failing to reveal the informants identity violated his due process rights. Further, he claims that the court should have heard testimony of the informant at the in camera hearing.

The Supreme Court in People v. Hobbs noted the tension between the Peoples privilege to refuse disclosure of a confidential informants identity and the defendants limited discovery rights in connection with any challenge to the search warrants validity. (People v. Hobbs (1994) 7 Cal.4th 948, 964 (Hobbs).) The court held that all or any part of a search warrant affidavit may be sealed if necessary to implement the privilege and protect the identity of a confidential informant. (Id. at p. 971.) Lower courts may utilize an in camera review and discovery procedure to effectuate implementation of the privilege. (Ibid.)

At the in camera hearing, the trial court must initially determine whether the affidavit is properly sealed, i.e., whether valid grounds exist for maintaining the informants confidentiality, and whether the extent of the sealing is justified as necessary to avoid revealing his or her identity. (Hobbs, supra, 7 Cal.4th at p. 973.) Once the court determines the affidavit was properly sealed, the court then determines whether the defendants general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing. Generally, in order to prevail on such a challenge, the defendant must demonstrate that (1) the affidavit included a false statement made knowingly and intentionally, or with reckless disregard for the truth, and (2) the allegedly false statement is necessary to the finding of probable cause. (Id. at p. 974.) If the trial court finds that the affidavit and related materials furnished probable cause for issuance of the warrant, the court should simply report this conclusion to the defendant and enter an order denying the motion to quash. (Id. at p. 975.)

In the present case, the trial court on October 13, 2005, held an in camera hearing and reviewed the sealed materials supporting the search warrant. Thereafter the court denied the motion to quash and traverse the search warrant and denied the related motion to unseal the search warrant affidavit.

Defendant claims that the informant should have testified at the in camera hearing. Defendant acknowledges that generally there is no requirement that the informant testify at the in camera hearing. (People v. Dimitrov (1995) 33 Cal.App.4th 18, 30; People v. Alderrou (1987) 191 Cal.App.3d 1074, 1079-1080.) However, he claims that an informant who is a participant or an eyewitness to the alleged offense is required to testify at the in camera hearing and he relies principally on People v. Ruiz (1992) 9 Cal.App.4th 1485. (See also People v. Lee (1985) 164 Cal.App.3d 830, 840 [although the informant was not a material witness to the charge of possession, only the informant could testify as to whether defendant personally had been selling [drugs], whether she or another or others exercised dominion and control over the drugs and the nature and extent of the informants personal knowledge of these matters].)

In People v. Ruiz, the court stated that there is no general requirement that an informant must be present or testify at an in camera hearing on a motion to disclose the informants identify. (People v. Ruiz, supra, 9 Cal.App.4th at p. 1489.) However, in the case before it, the informants in camera testimony was essential because defendant had established that the informant was an eyewitness to the alleged drug transaction and the defendant had denied giving any person drugs. (Ibid.) Defendant argues that, similarly here, the court should have determined whether there was any reasonable possibility that the informant had information favorable to defendant.

The present case does not resemble the situation in People v. Ruiz. Here, the informant was not present when the police found the marijuana in defendants vehicle and his home. Further, there is no assertion that the informant provided defendant with any of the drugs found on him. The charges of possession, cultivation, and transportation of marijuana were established at the time of defendants arrest and the search of his residence and anything the informant might have said would have been ineffective in establishing defendants innocence. He was neither a percipient witness nor otherwise a material witness and therefore the court did not have to hear his testimony. Since the informant could not provide any exculpatory evidence, the courts refusal to disclose the informants identity did not violate defendants due process rights.

Even if the lower court did not violate his due process rights by refusing to disclose the informants identity, defendant contends the courts sealing of the entire three-page affidavit was overbroad and unnecessary to protect the confidentiality of the informant. Our review of the sealed documents establishes that no portion of the three-page affidavit could be unsealed without revealing the identity of the informant. Accordingly, the sealing of the affidavit was not overbroad.

Accordingly, we conclude that the lower court properly conducted an in camera hearing and it was not required to hear testimony from the informant. Our independent in camera review of the sealed attachment establishes that the trial court properly found that the informants identity should not be disclosed and that his or her identity could only be protected by sealing the entire unredacted attachment.

II. Probable Cause

Defendant maintains that the search was not legal because probable cause did not support the search warrant. He claims the informant was untested and only pedestrian facts corroborated the untested informants statements.^[2]

The basic standard for probable cause to issue a search warrant is whether, given all the circumstances set forth in the affidavit . . . , there is a fair probability that contraband or evidence of a crime will be found in a particular place. (Illinois v. Gates (1983) 462 U.S. 213, 238.) Probable cause is not measurable by formulas; rather, its existence depends on the totality of the circumstances. (Id. at p. 236.)
We overturn the lower courts determination to issue a search warrant only if the affidavit upon which it is based fails as a matter of law to set forth sufficient competent evidence to support the magistrates probable cause finding. (People v. Butler (1966) 64 Cal.2d 842.) Moreover, the affidavit carries with it a presumption of validity. (Franks v. Delaware (1978) 438 U.S. 154, 171.) Courts resolve doubtful or marginal cases in favor of the warrant (United States v. Ventresca (1965) 380 U.S. 102, 109), but must review the sufficiency of affidavits conscientiously to ensure that the magistrate had sufficient information and did not merely ratify the bare conclusions of others (Illinois v. Gates, supra, 462 U.S. at p. 239).

In the present case, defendant argues that the information provided by the untested informant was not corroborated. [U]nverified information from an untested or unreliable informant is ordinarily unreliable [and] does not establish probable cause unless it is corroborated in essential respects by other facts, sources or circumstances.  (People v. Johnson (1990) 220 Cal.App.3d 742, 749, disapproved in part on another ground in People v. Camarella (1991) 54 Cal.3d 592, quoting People v. Fein (1971) 4 Cal.3d 747, 752; accord People v. Gotfried (2003) 107 Cal.App.4th 254, 263-264.)  For corroboration to be adequate, it must pertain to the alleged criminal activity; accuracy of information regarding the suspect generally is insufficient. [Citation.] Courts take a dim view of the significance of pedestrian facts such as a suspects physical description, his residence and his vehicles. [Citation.] However, the corroboration is sufficient if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant. (People v. Johnson, supra, at p. 749.) A suspects narcotics arrest record is not sufficient corroboration but it is relevant to a determination of probable cause. (People v. Scott (1968) 259 Cal.App.2d 268, 276.)
In the present case, the informant contacted the deputy sheriff and provided the sheriff with defendants name and specified the city in which defendant lived. The deputy sheriff confirmed that the informant could identify defendant and also confirmed that defendant lived in that city specified by the informant. It is true that these are pedestrian facts but, additionally, the affiant questioned the informant and opined that the informant was knowledgeable regarding controlled substances. Thus, unlike the situation in People v. Gotfried, supra, 107 Cal.App.4th at page 264, where the sheriff failed to establish directly the basis of knowledge of the anonymous informant, the deputy sheriff in the present case established that the informant was knowledgeable about the selling of controlled substances. It was reasonable for the magistrate to consider the affiants determination that the informant was knowledgeable because the deputy had been involved in over 100 controlled substance investigations and had spoken to at least 50 people who were known to possess, use, and sell controlled substances. In determining probable cause, a magistrate may properly consider an affiants opinion based on training, experience, or expertise. (See, e.g., People v. Mayoff (1986) 42 Cal.3d 1302, 1319-1320.)

Additionally, in the present case, the affiant checked the California Criminal Identification Index. He found that defendant had arrests for battery, possession of marijuana for sale, sales of marijuana, possession of controlled substances for sale, and transportation of controlled substances from 1979 to 1999.

Our in camera review of the sealed attachment confirms that there was other corroborating evidence. This information provided a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. (People v. Kraft (2000) 23 Cal.4th 978, 1040.)

Accordingly, our review of the sealed documents establishes that the trial court properly found sufficient probable cause justified issuance of the search warrant.

DISPOSITION

The judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Richman, J.

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^[1] Since this is an appeal from a negotiated disposition, the facts are from the probation report.

^[2] The People argue that, even if probable cause did not support the search warrant, the good faith exception applies under United States v. Leon (1984) 468 U.S. 897, 923. The People, however, fail to point to any place in the record where this argument was raised in the lower court. Even if we conclude that the People could raise this issue for the first time on appeal, the People have done little more than argue in a conclusory fashion that the good faith exception applies. The People have therefore failed to meet their burden of establishing the good faith exception to the exclusionary rule. (See, e.g., United States v. Hendricks (9th Cir. 1984) 743 F.2d 653, 656 [prosecution has burden of proof to establish good faith exception to exclusionary rule].)