Filed 10/27/17 P. v. Peel CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN CHRISTOPHER PEEL,

Defendant and Appellant.


C081592

(Super. Ct. No. 15F83)


After his motions to traverse the search warrants and suppress the evidence and to reconsider were denied, defendant Kevin Christopher Peel entered a negotiated plea of no contest to six counts of grand theft (Pen. Code, § 487, subd. (a)) and admitted the allegation of aggravated white collar crime over $100,000 (Pen. Code, § 186.11) in exchange for dismissal of the remaining counts and allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The trial court suspended imposition of sentence and placed defendant on probation subject to certain terms and conditions including 240 days in jail with 12 days credit.
Defendant now contends the trial court erred in denying his motion to traverse the search warrant without a hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667] (Franks), arguing he demonstrated a substantial probability that certain statements contained in the affidavit of probable cause were deliberately false or were made with reckless disregard for the truth and that the affiant knowingly or intentionally made material omissions. We will affirm the judgment.
BACKGROUND
In his affidavit for a search warrant dated October 9, 2014, Detective Mark Haslam of the Shasta County Sheriff’s Office declared that security personnel for United Parcel Service (UPS) reported that between August and October 2013, precious metals including coins and bars worth over $250,000 had been processed at its sorting facility in Anderson for delivery to Chuck’s Coins and Gold Mart, both in Redding, but the items were never delivered. UPS Security also reported that between August 2013 and September 2014, several parcels containing handguns which had been processed at the Anderson sorting facility were missing. UPS Security reported to Detective Haslam that it had conducted in-house interviews of all employees, and that defendant, a driver for UPS who delivered parcels, “showed signs of deception during his interview.”
On October 8, 2014, UPS Security Investigator Jason McLean called Detective Haslam to report that “five ‘high value’ parcels containing a total of [$25,000] in precious metals came up missing” that day and were never delivered. UPS drivers had been asked to submit to a search by a supervisor before leaving the facility but defendant, whose lunchbox appeared “stuffed with unknown items,” refused. Defendant’s supervisor Jeff Green reported to Detective Haslam that defendant had parked his UPS delivery truck next to his personal truck which was against the rules. Defendant had two lunch boxes with him, one of which was “bulg[ing]” with “squared type objects.” Detective Haslam had learned during his investigation that such objects would be consistent with containers used in shipping coins. Green reported that he told defendant there were missing parcels and Green needed to search but defendant twice refused. Green told defendant to stop or he was going to call the police but defendant backed up his truck, hitting Green. Green opened defendant’s driver’s door and told defendant he could be fired for disobeying his supervisor’s directives. Defendant shoved Green away with his hand, shut his door, and fled in his truck.
That evening, sheriff’s detectives went to defendant’s home in Anderson. Defendant refused to consent to a search of his home. The detectives had defendant and his girlfriend “exit the residence so a search warrant could be obtained.” During a protective sweep, detectives noted expensive furnishings in the house, several motorcycles that appeared new, and a safe in the garage. Defendant agreed to go to the sheriff’s office for an interview.
Defendant spoke to Detective Haslam who informed defendant he was not under arrest. Defendant claimed he had sold some silver coins at a pawn shop in Chico and had more coins in his safe, along with several 100-ounce silver bars and 50 one-ounce gold bars but no gold coins. When informed of defendant’s statements about the precious metals he possessed, McLean said, “ ‘that’s pretty much everything that was in the stolen parcels from last year.’ ”
Detectives executed a warrant for defendant’s home and vehicles, finding cases of one-ounce gold bars, silver coins, and 100-ounce silver bars, all in the safe in defendant’s garage, consistent with items reported stolen from UPS between September 2013 and October 25, 2013. The safe also contained about $100,000 in cash. An open parcel was found hidden in a tool box. The address label was for Gold Mart in Redding. The tracking number on the label was for a parcel reported missing or stolen from the UPS sorting facility in Anderson in June 2014. Also found inside the open parcel was a shipping strap that read “ ‘Canadian Mint.’ ” Additional search warrants were obtained based on what was found in executing the initial warrant.
Defendant moved to traverse all the search warrants and suppress all the resulting evidence, contending the affidavit in support of the first search warrant was based on false information and omitted information. Defendant claimed the referenced parcels had been delivered, no silver bars had been reported stolen in 2013, and it was not a violation of UPS policy for drivers to park next to their personal vehicles. Defendant also claimed there is no evidence he was involved in the theft of the firearms, UPS employees are allowed to refuse to have their personal belongings searched, defendant was not the driver for missing precious metal packages, and there are procedures to ensure a package makes it onto a delivery truck.
The prosecutor conceded that five high-value parcels had not gone missing on October 8, 2014 but instead had been delivered on October 7, 2014. The prosecutor explained that the “misinformation was the result of a computer error by UPS” but when Detective Haslam included the information in his affidavit, “he believed it to be true” because he did not have access to UPS records and he relied upon information from UPS security. After the execution of the warrant, “UPS informed Detective Haslam that the information was in error.” The prosecutor argued defendant failed to demonstrate recklessness or bad faith by Detective Haslam in including the information in the affidavit.
After hearing argument, the trial court determined that defendant had not established a substantial preliminary showing that warranted a Franks hearing, finding defendant had not presented any evidence that Detective Haslam intentionally made a false statement or had recklessly disregarded the truth in averring that five high-value parcels had gone missing on October 8, 2014. The trial court determined that Detective Haslam was, at most, negligent in relying on UPS security’s incorrect statements that such packages had gone missing on that date. The trial court also found that the UPS investigators were not agents of law enforcement.
Defendant pleaded no contest to the following counts: count 1, grand theft of 500 one-ounce U.S. silver Eagle coins on September 4, 2013; count 3, grand theft of seven 100-ounce Englehart silver bars on September 30, 2013; count 5, grand theft of 500 one-ounce U.S. silver Eagle coins on October 17, 2013; count 8, grand theft of 100 one-ounce gold bars on October 25, 2013; count 9, grand theft of a 2014 Panda Five gold coin set on May 23, 2014; and count 10, grand theft of 500 one-ounce silver Canadian Maple Leaf coins on June 24, 2014.
APPLICABLE LAW AND STANDARD OF REVIEW
A defendant has the right to challenge the veracity of a facially valid search warrant affidavit on the grounds it contains misstatements. (Franks, supra, 438 U.S. 154, 155-156 [57 L.Ed.2d 667, 672]; People v. Luttenberger (1990) 50 Cal.3d 1, 11; People v. Kurland (1980) 28 Cal.3d 376, 384 (Kurland).) Under Franks, a defendant is entitled to a hearing if he “makes a substantial preliminary showing” that the affiant included in a warrant affidavit “a false statement knowingly and intentionally, or with reckless disregard for the truth” and the “allegedly false statement is necessary for a finding of probable cause.” (Franks, supra, 438 U.S. at pp. 155-156 [57 L.Ed.2d at p. 672].) “There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable case, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue.” (Id. at pp. 171-172 [57 L.Ed.2d at p. 682], fn. omitted.)
Franks also applies to facts omitted from an affidavit. (People v. Eubanks (2011) 53 Cal.4th 110, 136.) “[A]n affidavit may be insufficient when it omits facts adverse to the warrant application. [Citations.] [¶] . . . An affidavit may be as inaccurate when it omits facts as when it misstates them. The crucial, inference-drawing powers of the magistrate may be equally hindered in either case, with identical consequences for innocent privacy. [Citation.] . . . [¶] Though similar for many purposes, omissions and misstatements analytically are distinct in important ways. Every falsehood makes an affidavit inaccurate, but not all omissions do so. An affidavit need not disclose every imaginable fact however irrelevant. It need only furnish the magistrate with information, favorable and adverse, sufficient to permit a reasonable, common sense determination whether circumstances which justify a search are probably present. [Citations.] [¶] . . . [A]n affiant’s duty of disclosure extends only to ‘material’ or ‘relevant’ adverse facts . . . [which means] only those omissions which significantly distort[] the probable cause analysis. [Citation.]” (Kurland, supra, 28 Cal.3d at pp. 384-385, fn. omitted.) “[F]acts are ‘material’ and hence must be disclosed if their omission would make the affidavit substantially misleading.” (Id. at p. 385, original italics.)
“ ‘We review [the] denial of a Franks hearing de novo. [Citation.]’ [Citation.]” (People v. Sandoval (2015) 62 Cal.4th 394, 410.)
DISCUSSION
It is undisputed that Detective Haslam reported in the affidavit information that he had received from McLean -- that five high-value parcels had gone missing on October 8, 2014. It is likewise undisputed that this information turned out to be incorrect. But defendant did not make a substantial showing that Detective Haslam’s setting forth what he had been told by UPS security was a deliberate lie or reckless disregard for the truth.
Defendant also challenged Detective Haslam’s statement in the affidavit that according to McLean, defendant possessed “pretty much everything that was in the stolen parcels from last year.” Again, however, defendant did not make a substantial showing that Detective Haslam’s statement in the affidavit, relating what he had been told by McLean -- a nongovernmental informant -- was a deliberate lie or made in reckless disregard for the truth.
Accordingly, the trial court did not err in finding that defendant failed to make a substantial preliminary showing that Detective Haslam intentionally made a false statement or recklessly disregarded the truth in making the statements challenged in his affidavit.
Moreover, defendant failed to show an intentional or reckless omission of material information in the affidavit. He claimed Detective Haslam said UPS had reported firearms were missing but Haslam omitted the fact that defendant was not tied to the theft of firearms. However, the fact that defendant was not tied to missing firearms was not a material or relevant adverse fact in this context and did not render the affidavit substantially misleading. There was not a substantial probability that the magistrate’s knowledge of such a fact would have altered his or her probable cause determination.
The trial court did not err in concluding that defendant failed to make the required showing for a Franks hearing.
DISPOSITION
The judgment is affirmed.


/S/
MAURO, Acting P. J.

We concur:


/S/
DUARTE, J.


/S/
RENNER, J.