Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F043A
BUTZ, J.An information charged defendant Deborah Lenore Bodge and codefendant Dean Everett Dana with cultivation of marijuana (Health & Saf. Code, § 11358--count one) and possession of marijuana for sale (id., § 11359--count two). Defendant was also charged with possession of methamphetamine (id., § 11377, subd. (a)--count three). It was further alleged that a principal was armed with a firearm, to wit, a .22-caliber rifle. (Pen. Code, § 12022, subd. (a)(1).)
This appeal does not include codefendant Dana. Defendant Bodge will hereafter be referred to as defendant and codefendant Dana will be referred to as Dana.
After defendant and Dana’s motions to suppress the evidence, to disclose informants, to unseal, traverse, and to quash the search warrant were denied, defendant entered a negotiated no contest plea to possession of marijuana, a misdemeanor (Health & Saf. Code, § 11357, subd. (c)), and possession of methamphetamine, a misdemeanor (id., § 11377, subd. (a)).
Granted probation, defendant appeals. She contends that this court must independently examine the sealed portion of the affidavit submitted in support of the issuance of the search warrant to determine whether the trial court erroneously denied her motion to unseal, traverse and quash the warrant. We have reviewed the sealed portion of the affidavit and conclude that the trial court properly denied the motion to traverse but erroneously sealed the affidavit and erroneously found that probable cause supported issuance of the warrant. We shall reverse the trial court’s ruling on the motion to unseal and to quash the search warrant and remand for further proceedings.
FACTUAL BACKGROUND
On April 22, 2006, officers went to the property belonging to Dana where defendant had been living for a few months to execute a search warrant and discovered a total of 37 marijuana plants in two separate mobile homes, about five pounds of dried marijuana, packaging material and scales. Officers also found methamphetamine totaling 1.5 grams under defendant’s bed. Defendant told officers the plants were being grown for medicinal purposes for her, Dana and two other people. Dana had an expired medicinal marijuana prescription card while defendant’s was valid and current. A .22-caliber rifle was found in Dana’s bedroom.
DISCUSSION
In the public portion of the search warrant affidavit, Trinity County Deputy Sheriff Royce Grossman stated that he had probable cause to believe that he would find marijuana and paraphernalia of cultivation and use at Dana’s residence where “possibly” defendant lived and where “possibly” Keven Floyd resided. Deputy Sheriff Ron Hanover provided the description of Dana’s homes by color, style, and location (by driving directions). Grossman sought a warrant to search not only the two residences on the property but also sheds, barns, greenhouses, campers, camp trailers and vehicles on the property.
The public portion of the affidavit set forth limited facts in support of issuance of the warrant as follows:
“In December 2005 I received a telephone call from a confidential informant, hereafter referred to as C.I. #1, who told me that a male subject named Dean Dana had just purchased a piece of property located near Wildwood in September 2005. C.I. #1 went on to tell me that Dean Dana intended to grow marijuana on that property. C.I. #1 told me that the Trinity County Assessor’s Parcel number was 019-690-31-00.
“C.I. #1 also told me that Dana, Bodge and Floyd had been involved in the cultivation of marijuana and ran a small[-]scale methamphetamine laboratory while Dana and Bodge resided in the Santa Cruz area. C.I. #1 told me that the chemicals and laboratory apparatus would be found buried somewhere on Dean Dana’s property.
“C.I. #1 would not provide me with a telephone number so that I could contact him/her but agreed to call me back.
“After speaking with C.I. #1 I checked the Trinity County Assessor[’]s records and found that parcel number 019-690-31-00 had been purchased by Dean Dana in September 2005. The property records also listed Dean Dana’s mailing address as 572 Eden Avenue, Boulder Creek, CA (I know that Boulder Creek is in Santa Cruz County).
“Between December 2005 and March 2006 I have spoken with C.I. #1 on at least six occasions. During those conversations I was provided with a telephone number where I can reach C.I. #1.
“Further information provided to me by C.I. #1 is contained in a sealed portion of this affidavit.
“Since speaking with C.I. #1 I have located information of Dean Dana, Deborah Bodge and Keven Floyd in the California Law Enforcement Telecommunications System (CLETS).
“The CLETS information on Floyd shows an address in Hayfork, CA[] and a 1994 arrest for [Health and Safety Code section] 11359 . . . which resulted in a misdemeanor conviction.
“The CLETS information on Bodge shows an address in Boulder Creek, CA[], a vehicle belonging to her with the address of [P.O.] Box 205 in Wildwood, CA and no criminal history.
“The CLETS information on Dana shows an address in Boulder Creek, CA and no criminal history.
“In March 2006 I received a memo [from] Trinity County Deputy Sheriff Ron Whitman regarding information he had received from a confidential informant, hereafter referred to as C.I. #2, regarding Keven Floyd and Deana [sic] Dana. The information received from C.I. #2 is contained in the sealed portion of this affidavit.
“It is my desire to keep the identity of the aforementioned confidential informant(s) confidential for the following reasons[:]
“(1) The confidential informants have asked that their identity be kept confidential.
“(2) According to my training and experience such confidential informants suffer social, physical and emotional retribution if their identities are revealed.
“(3) It has been my experience that once a confidential informant’s identity becomes known that it impairs their ability to aid law enforcement.
“(4) It is my experience that revealing the identity of confidential informants discourages other citizens from disclosing information to law enforcement.
“(5) Often times a confidential informant will provide information on more than one occasion or concerning more than one investigation and disclosure would jeopardize any other pending investigations.”
In requesting that a portion of his search warrant affidavit be sealed, Deputy Grossman listed the following reasons: “If the information in this affidavit is disclosed it would put the life and health of the informant in jeopardy. [¶] If the information in this affidavit is disclosed it would compromise any further information which the informant may provide at a later date. [¶] If the information in this affidavit is disclosed it would make it very difficult for the informant to obtain any further information.”
Deputy Grossman recounted his training, education and experience. Grossman had been employed with the Trinity County Sheriff’s Department since 1986 and had been assigned as a narcotics investigator for over 15 years, conducting over 1,000 controlled substance related investigations. He had written over 400 search warrants and assisted in the service of over 200 warrants written by other officers. Based on the public portion and the sealed portion of the affidavit, Grossman stated that he had probable cause to believe that the property was being used for cultivation and sales of marijuana.
The affidavit was dated April 21, 2006. Deputy District Attorney W. James Woods reviewed the search warrant affidavit. Judge Anthony Edwards issued the warrant and the warrant was executed on April 22, 2006.
Defendant and Dana moved to suppress, to unseal the search warrant affidavit, to disclose the identities of the informants, to traverse and to quash the search warrant.
Defendant and Dana asserted that the court was required to review both the public portion and sealed portion of the search warrant affidavit in order to determine whether probable cause had been stated. Defendant and Dana argued that the corroboration of pedestrian facts, that is, defendant’s residency and vehicles, did not amount to corroboration of claims of criminal activity. Based on the public portion of the affidavit, defendant and Dana argued that no facts had been presented to support a probable cause finding in that Deputy Grossman merely stated that he had information that Dana and Floyd planned to grow marijuana. Defendant and Dana also argued that the public portion of the affidavit provided no facts to support the conclusion that the informants were reliable in that C.I. #1 “refused to give his name or contact information” until sometime later and there was no corroboration of any allegation of criminal activity nor did Grossman investigate the motivations or criminal histories of C.I. #1 or C.I. #2. Defendant and Dana argued the public portion failed to set forth anything to suggest that the vague and stale information from C.I. #1 had been updated. Defendant’s motion requested that the court review the sealed affidavit for a violation of Franks v. Delaware (1978) 438 U.S. 154, 155-156 [57 L.Ed.2d 667, 672] (Franks). Defendant and Dana believed the confidential informants were “highly biased individuals” whose “true desires [were] to get revenge on [Dana] and/or [defendant]” that “some simple investigation would have revealed.”
Defendant and Dana believed that “[C.I. #1] is Chris Daley, the jealous ex-boyfriend of [defendant]. If this is true, minimal investigation by officers would reveal that Mr. Daley and [defendant] used to live together and grow medical marijuana in the Walnut Creek area and that when [defendant] left, Mr. Daley was incessantly irate at her. For instance, after the large fight, [defendant] was forced to leave her residence. Mr. Floyd tried to talk to Daley about returning [defendant’s] personal belongings. Mr. Daley was so irate about [defendant] leaving him that he continued to say that she ‘sabotaged his relationship with his son’ amongst other things. His anger at being left has not diminished with passing time. [¶] Mr. Daley would continually harass [defendant] at her place of work, would let the air out of her tires to make her late to work, and burnt personal possessions of [defendant]. To take a break from the constant pressure being applied by Mr. Daley, [defendant] relocated to Wildwood to stay with her friend Dean Dana. This made Mr. Daley violent, angry, and jealous. Mr. Daley is a violent person who also blames Mr. Dana for his break-up with [defendant]. Mr. Daley made several threats against the person and property of Dean Dana. Mr. Daley also suffers from a severe methamphetamine addiction. [¶] Through investigation of this matter it was determined and it is believed at this time that [C.I. #2] is Misty Floyd, the daughter of Keven Floyd who is named in the affidavit. Misty Floyd is the daughter of separated couple Keven Floyd and Tami Floyd. C.I. #2 never contacted Grossman but did contact Deputy Ron Whitman. It is believed that Misty contacted Deputy Whitman . . . .” (Fns. omitted.) Defendant and Dana noted, “Should either of these be the actual informants in the warrant, these facts as stated would be attested to by [Dana] and[/]or [defendant] via affidavit.”
The court initially granted the motion to disclose but later reversed itself, denying such motion. The court reviewed the sealed portion of the search warrant affidavit in camera and concluded that there was probable cause for issuance of the search warrant. The court stated: “[T]he court has reviewed the sealed portions of the affidavit and is satisfied as to what’s in there as to probable cause, and further finds that the--with respect to the staleness issue, the defendant hasn’t produced any evidence showing a reasonable possibility that the evidence that exists--statements existing and the evidence might result in the exoneration of defendant.” The court denied the motion to quash. The court did not make any findings whether sufficient grounds existed to maintain the informants’ confidentiality, whether any part of the sealed affidavit should be unsealed, or whether there were material misstatements.
“[A] defendant may challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower courts must conduct an evidentiary hearing if a defendant makes a substantial showing that: (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. At the evidentiary hearing, if the statements are proved by a preponderance of the evidence to be false or reckless, they must be considered excised. If the remaining contents of the affidavit are insufficient to establish probable cause, the warrant must be voided and any evidence seized pursuant to that warrant must be suppressed.” (People v. Bradford (1997) 15 Cal.4th 1229, 1297 (Bradford), citing Franks, supra,438 U.S. at pp. 155-156 [57 L.Ed.2d at p. 672].)
“[T]here is, of course, a presumption of validity with respect to the affidavit supporting the search warrant.” (Franks, supra,438 U.S. at p. 171 [57 L.Ed.2d at p. 682].) Defendant has the burden of showing material misstatements and/or omissions in the affidavit. (Bradford, supra,15 Cal.4th at p. 1297.)
In People v. Luttenberger (1990) 50 Cal.3d 1, the California Supreme Court set forth a procedure for discovery of material related to confidential police informants in order to challenge an affiant’s statements made in support of a search warrant. “To justify in camera review and discovery, preliminary to a subfacial challenge to a search warrant, a defendant must offer evidence casting some reasonable doubt on the veracity of material statements made by the affiant” (id. at p. 21), that is, “some reasonable doubt regarding either the existence of the informant or the truthfulness of the affiant’s report concerning the informant’s prior reliability or the information he furnished” (id.at p. 22).
However, defendant cannot reasonably be expected to make the preliminary showing required by Luttenberger where part or all of the search warrant affidavit has been sealed. (People v. Hobbs (1994)7 Cal.4th 948, 971-972 (Hobbs).) In that circumstance, the court should follow procedures that “strike a fair balance between the People’s right to assert the informant’s privilege and the defendant’s discovery rights.” (Id. at p. 972.) Thus, on a properly noticed motion by the defense to quash or traverse the warrant, the court should conduct the in camera hearing to determine: (1) “whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity”; and (2) “whether the extent of the sealing is necessary to avoid revealing the informant’s identity.” (Ibid.)
In Hobbs,the Supreme Court concluded that “taken together, the informant’s privilege ([Evid. Code,] § 1041), the long-standing rule extending coverage of that privilege to information furnished by the informant which, if disclosed, might reveal his or her identity, and the codified rule that disclosure of an informant’s identity is not required to establish the legality of a search pursuant to a warrant valid on its face ([Evid. Code,] § 1042, subd. (b)) compel a conclusion 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. [Evidence Code] [s]ection 915, subdivision (b), expressly authorizes lower courts to utilize an in camera review and discovery procedure to effectuate implementation of the privilege.” (Hobbs, supra,7 Cal.4th at p. 971.)
Hobbs outlined the procedure the lower court should follow when a defendant seeks to quash or traverse the search warrant. “[T]he court must initially determine whether the affidavit is properly sealed, i.e., whether valid grounds exist for maintaining the informant’s 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.) If properly sealed and the defendant moves to traverse, the court determines “whether the defendant’s 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.” (Id. at p. 974.) Generally, to prevail on a motion to traverse, “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.’” (Ibid.,quoting Franks, supra,438 U.S. at pp. 155-156 [57 L.Ed.2d at p. 672].) If the trial court finds the defendant’s claims of material misrepresentation are not supported, “the court should simply report this conclusion to the defendant and enter an order denying the motion to traverse.” (Hobbs, supra,7 Cal.4th at p. 974.)
If the court determines that the affidavit is properly sealed and defendant moves to quash, the court determines “whether, under the ‘totality of the circumstances’ presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was ‘a fair probability’ that contraband or evidence of a crime would be found in the place searched pursuant to the warrant.” (Hobbs, supra, 7 Cal.4that p. 975.) If the court finds the affidavit sets forth probable cause, “the court should simply report this conclusion to the defendant and enter an order denying the motion to quash.” (Ibid.) But if the court determines that “there is a reasonable probability the defendant would prevail on his motion to quash the warrant . . . then the district attorney must be afforded the opportunity to consent to disclose the sealed materials to the defense, after which the motion to quash can proceed to decision, or, alternatively, suffer the entry of an order adverse to the People on the motion to quash the warrant.” (Ibid.)
Hobbs applied the foregoing guidelines and determined that “the trial court acted within its sound discretion in conducting its own in camera review of the sealed materials, affirming the magistrate’s determination that the sealing of the entirety of Exhibit C was necessary to implement the People’s assertion of the informant’s privilege, and in thereafter denying defendant’s motions to traverse and quash the search warrant.” (Hobbs, supra,7 Cal.4th at p. 976.) In concluding that the defendant’s motions were properly denied, the Supreme Court stated, “based on our review of the record and sealed materials, . . . it was not reasonably probable defendant could prevail on her motions to traverse or quash the search warrant.” (Id. at p. 977.)
On appeal, defendant requests that this court independently review the sealed portion of the search warrant affidavit to determine whether it was properly sealed, contains material misrepresentations or omissions and establishes probable cause for issuance of the search warrant.
“The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] ‘The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041 (Kraft), quoting Illinois v. Gates (1983) 462 U.S. 213, 238-239 [76 L.Ed.2d 527, 548].)
“Because unverified information from an untested or unreliable informant is ordinarily unreliable, it does not establish probable cause unless it is ‘corroborated in essential respects by other facts, sources or circumstances.’ [Citations.] 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 suspect’s 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 (1990) 220 Cal.App.3d 742, 749, disapproved on another point in People v. Camarella (1991) 54 Cal.3d 592, 606, fn. 6.)
“Corroboration is not limited to a given form but includes within its ambit any facts, sources, and circumstances which reasonably tend to offer independent support for information claimed to be true. In a police investigation the information given by informants, even where the informant’s reliability is not complete, can nevertheless be sufficient to establish the requisite probable cause if it is corroborated in essential respects by other facts, sources or circumstances. [Citation.] Not only may the information in a search warrant affidavit which has been supplied by an informant be corroborated by investigation conducted by law enforcement officials [citation], but also this corroboration need only give the officers reasonable grounds to believe that the informant is truthful [citation].” (People v. Levine (1984) 152 Cal.App.3d 1058, 1065.) “The fact that two apparently unassociated persons make the same assertion increases the probability that it is true; the mutually[] supporting nature of two tips is an important ingredient in the ‘probable-cause mix.’” (People v. Terrones (1989) 212 Cal.App.3d 139, 147.) Interlocking tips from different confidential informants enhance the credibility of each. (Id. at p. 149.)
The trial court did not develop a record of its in camera review of the sealed portion of the affidavit. There is no indication in the record that the trial court questioned the affiant or the informants. After reviewing the sealed portion of the search warrant affidavit, we cannot conclude that the court followed the procedures described in Luttenberger and Hobbs. The court impliedly concluded that the sealed portion of the warrant should remain sealed to protect the informants. We have examined the record and find that no valid grounds existed for maintaining either informants’ confidentiality and sealing the affidavit. No specific facts relative to either informant were stated, such as their fears of retaliation based on prior history or an ongoing criminal investigation. (Hobbs, supra, 7 Cal.4th at p. 974.)
We conclude that there is no reasonable cause to suspect that the affiant (Deputy Grossman) made any material misstatements or omissions. Having reviewed the entire record, however, no specific facts were stated to support the conclusion that there was criminal activity on Dana’s property where defendant lived. The sealed portion of the affidavit is entirely lacking in details and corroboration to support the belief that contraband was likely to be found there. The affidavit is “‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” (United States v. Leon (1984) 468 U.S. 897, 923 [82 L.Ed.2d 677, 699].) Based on his years of experience, Deputy Grossman had “no reasonable grounds for believing that the warrant was properly issued.” (Id.at p. 923 [82 L.Ed.2d at p. 698].) We conclude the trial court erred in finding under the totality of the circumstances there was a fair probability that contraband or evidence of a crime would be found on the property where defendant resided. (Kraft, supra,23 Cal.4th at p. 1041.)
DISPOSITION
The trial court’s ruling denying defendant’s motion to unseal the affidavit and to quash the search warrant is reversed. The matter is remanded to the trial court for further proceedings.
We concur: BLEASE, Acting P. J., NICHOLSON, J.