P v.MICHAEL
Filed 3/16/06; pub. order 4/14/06 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Amador)
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| THE PEOPLE, Plaintiff and Respondent, v. MICHAEL OLIVER RUSSELL, Defendant and Appellant. | C048339
(Super. Ct. No. 03CR4750)
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Defendant Michael Russell pleaded guilty to violating Health and Safety Code section 11377, subdivision (a) (possession of a controlled substance, psilocybin mushrooms) and to being a convicted felon in possession of ammunition in violation of Penal Code section 12316, subdivision (b)(1).[1] His guilty plea followed an unsuccessful motion to suppress evidence seized at his residence pursuant to a search warrant, and an unsuccessful motion to set aside the information pursuant to section 995.
At issue in this case is whether probable cause to issue a search warrant exists where the only facts known to law enforcement are that a suspect is cultivating marijuana legally pursuant to the Compassionate Use Act (Health & Saf. Code, § 11362.5). Defendant claims under these circumstances there was no probable cause to support the search warrant of his residence, and the trial court should have granted his motion to suppress the evidence recovered as a result of the search or should have set aside the information. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
Superior Court Judge, Susan Harlan, issued a search warrant for defendant's residence located at 25452 Highway 88, Pioneer, California. Officer James Wegner submitted the affidavit in support of the warrant. The affidavit related the following pertinent information.
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