Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F18215
Mihara, J.
Defendant Donald Peter appeals from a judgment of conviction entered after he pleaded guilty to possessing methamphetamine for sale (Health & Saf. Code, § 11378), maintaining a place for selling or using methamphetamine (§ 11366), and possessing metal knuckles (Pen. Code, § 12020, subd. (a)), and admitted prior narcotics conviction (§ 11370.2, subd. (c)) and prior prison term (Pen. Code, § 667.5, subd. (b)) allegations. The trial court placed him on three years’ felony probation. On appeal, defendant challenges the denial of his motion to traverse and quash the search warrant and suppress evidence (Pen. Code, § 1538.5). We affirm.
Further statutory references are to the Health and Safety Code unless otherwise noted.
I. Factual and Procedural Background
Because defendant pleaded guilty, the facts are taken from the search warrant affidavit and from the transcript of the preliminary examination.
On August 10, 2009, Detective Peter Hansen sought a search warrant for 114 Park Avenue in Santa Cruz. In an accompanying statement of expertise, he explained that he had been employed by the sheriff’s department since 2001 and had been a member of the Santa Cruz County Narcotics Enforcement Team (SCSO NET) since 2008. He had completed more than 275 hours of formal training in narcotics and narcotics enforcement and had made more than 150 narcotics-related arrests, more than 20 for possession of controlled substances for sale.
In his statement of probable cause, Hansen reported meeting within the previous 10 days with a confidential informant (CI) whose assistance “in the past” had resulted in “felony arrests and crucial investigative leads.” The CI, whom the magistrate could “assume” had “both felony and misdemeanor convictions, ” was assisting law enforcement “for case consideration.” Hansen did not want to identify the CI because that would “endanger his/her safety.”
The CI had known a marijuana and methamphetamine dealer named “Donnie” for more than five years and had been buying methamphetamine from him for “between 1 and 2 years.” The CI said Donnie operated a sober living environment (SLE) at “114 Seaview Avenue” in Santa Cruz. “The [CI] told me that he/she has purchased methamphetamine from ‘Donnie’ both at the SLE and at various locations within Santa Cruz County. The [CI] told me he/she has purchased quantities of methamphetamine between $100.00 and $50.00 within 2 weeks at the SLE and within 10 days at areas within Santa Cruz County....” The CI said Donnie’s room at the SLE was the only bedroom on the ground floor, with a window facing Seaview and a door opening onto a walkway between Seaview and Park Avenues. The CI offered to drive Hansen to the SLE and point out Donnie’s room. The CI told Hansen that Donnie drove a tan Cadillac and a maroon Suburban.
Hansen described what he did to confirm the information the CI gave him. He showed the CI a mug shot of defendant, and the CI identified the person in the photo as Donnie. Hansen drove the CI by the SLE, which he noted was located at 114 Park (not Seaview) Avenue. A maroon Suburban was parked on the street in front of the residence. A records check revealed that it and a 1995 Cadillac were registered to a Donald Carl Peter at “114½ Park Avenue” in Santa Cruz. A records check using the Santa Cruz County Assessor’s Office database revealed that the assessor “does not recognize this residence as having multiple addresses, 114 and 114½, associated with it.”
Hansen tried to run defendant’s criminal history but the computer program indicated it was too large for electronic transmission. Hansen explained that upon learning that, “I conducted a local criminal history and located extensive criminal history from 8/7/95.” He summarized his findings: “The charges related to this investigation are[:] arrest on 8/4/95 for 12020(a) - possession of a dangerous weapon with a conviction for 4149 BP - possession of a syringe; arrest on 10/19/97 for 4140 BP - possession of hypodermics and conviction for same; arrest on 9/12/98 for 11377 H&S - possession of a controlled substance with a conviction for 11379(a) - sales of a controlled substance with three prior prison terms 667.5(b) PC admitted to; arrest on 12/1/01 for 11550 H&S - under the influence of a controlled substance with a conviction for 11550(a) H&S - under the influence of a controlled substance and 4140 BP - possession of hypodermics; arrest on 1/16/02 for 11550(a) H&S - under the influence of a controlled substance, charges dismissed; arrest on 9/6/02 for 11350(a) H&S - possession of a controlled substance is [sic] a conviction of the same; arrest on 2/3/03 for 11550 H&S - under the influence of a controlled substance with a conviction of the same and additionally 148.9(a) PC - false identity given to a peace officer; arrest on 3/5/04 for 496 PC - receiving stolen property with 11377(a) H&S - possession of a controlled substance filed and dismissed but a 667.5(b) PC - prior prison term admitted to; and an arrest on 9/5/06 for 11550(a) H&S - under the influence of a controlled substance dismissed.” Hansen added, “I have attached and incorporated into this statement of probable cause the local criminal history related to the above described arrests as ‘Exhibit D.’ ” Exhibit D was nine pages long. The page detailing defendant’s 1998 conviction in Santa Cruz County Superior Court case No. S8 09737 said “HS 11379A” in the boxes labeled “Charge” and “IMPORT/SELL/DIST CONTROL SUBST” in the boxes labeled “Description.” The box labeled “Plea” said “GUILTY, ” and the box labeled “Status” said “CONVICTED.”
Hansen asked Assistant District Attorney Kristina M. Oven to review the search warrant, then submitted it to the magistrate. The magistrate issued the warrant, and three days later, SCSO NET officers executed it. They found five persons besides defendant in the SLE and determined that four of those five were under the influence of drugs. One said she had injected methamphetamine earlier that morning.
Hansen found defendant in the downstairs bedroom. His driver’s license was in the room, and “basically, all of the documents supported that that was his room.” Hansen seized a lockbox that contained $69 in cash, 9.9 grams of methamphetamine in a canister, resealable baggies of methamphetamine and marijuana, four digital scales with white residue on them, a counterfeit detector pen, and “hundreds” of unused small baggies. Elsewhere in the room, Hansen found more methamphetamine, paraphernalia, $382 in cash, and a set of brass knuckles. Two cell phones were on the bed, and one “was ringing constantly.” Hansen found numerous incoming and outgoing drug-related text messages on the phones.
Defendant admitted he was a drug addict, said the items he possessed were for personal use, and claimed he had a large amount of methamphetamine because he had just received a $2,600 insurance check.
At the preliminary examination, defendant moved to traverse and quash the warrant and suppress evidence obtained in the search. The motion to traverse alleged that Hansen deliberately or in reckless disregard for the truth falsely described one of defendant’s prior convictions as a conviction for sales of a controlled substance. The magistrate denied defendant’s request for an evidentiary hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154 (Franks), finding no showing of intent to deceive or reckless disregard for the truth.
Defendant’s motion to quash asserted a lack of probable cause due to Hansen’s alleged failure to establish the CI’s reliability or corroborate his or her allegations of criminal activity. The magistrate expressed her tentative inclination to grant the motion because “there [wa]s not a clear statement of a track record with the informer” or corroboration of more than pedestrian facts. After reviewing United States v. Leon (1984) 468 U.S. 897 (Leon) and state law cases, however, the magistrate denied the motion, ruling that Hansen’s affidavit was not “so lacking in indicia for probable cause, other than the one paragraph that could have been more detailed, ” that no reasonable officer could have relied on it. “There [wa]s, in fact, I believe, support for probable cause, ” and therefore, “under Leon and the cases that follow Leon, ... the exclusionary sanction is an extreme one and one that would not be applied in this case.”
Without presenting additional evidence, defendant renewed his suppression motion in the trial court. The question of probable cause was a “close” one, the court acknowledged, but that was “not to say that [the affidavit] was so wholly lacking in probable cause that the warrant should not have issued....” The court denied the motion, ruling that “while there may not have been probable cause as presented and as written, ” the affidavit was not so deficient that no reasonable officer could have in good faith relied on its issuance.
II. Discussion
A. Standard of Review
When a defendant makes a suppression motion at the preliminary hearing and subsequently challenges its denial by a renewed motion in the superior court without presenting any new evidence, the factual findings of the magistrate are binding on the superior court to the extent they are supported by substantial evidence. (People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223 (Trujillo).) A reviewing court considering the denial of a suppression motion must likewise give deference to the magistrate’s express and implied factual findings. (Trujillo, at p. 1224.) We exercise our independent judgment, however, on the magistrate’s conclusions of law, and determine whether the police conduct was reasonable under the Fourth Amendment. (People v. Williams (1988) 45 Cal.3d 1268, 1301.)
B. Motion to Traverse the Warrant
Defendant’s motion to traverse the warrant was based on the allegation that Hansen falsely described defendant’s section 11379 prior as “a conviction for 11379(a) - sales of a controlled substance.” (Italics added.) “In fact, ” defendant asserted in his motion, he “was convicted... of transportation of a controlled substance.” (Italics added.) Defendant argues that the false assertion was either intentional or reckless, and therefore, both “[t]he magistrate and Superior Court judge erred in declining to provide a Franks evidentiary hearing.” We disagree.
A defendant has a limited right under the Fourth Amendment to challenge the veracity of an affidavit underlying a facially valid search warrant. (Franks, supra, 438 U.S. at pp. 155-156, 167.) “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.” (People v. Bradford (1997) 15 Cal.4th 1229, 1297 (Bradford).) “To merit an evidentiary hearing, the defendants’ attack on the affidavit must be more than conclusory.... The challenge must contain allegations of deliberate falsehood or of reckless disregard for the truth.” (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1316 (Sandlin).) “Allegations of negligence or innocent mistake are insufficient.” (Franks, at p. 171.) “The motion... must be ‘accompanied by an offer of proof... [and] should be accompanied by a statement of supporting reasons. Affidavits or otherwise reliable statements of witnesses should be furnished, ’ or an explanation of their absence given. [Citation.]” (Sandlin, at p. 1316.) “There is... a presumption of validity with respect to the affidavit supporting the search warrant.” (Franks, at p. 171.) The trial court’s decision whether to hold a Franks hearing is reviewed de novo on appeal. (People v. Panah (2005) 35 Cal.4th 395, 457.)
Here, defendant offered no affidavits or statements of witnesses to support his challenge to Hansen’s affidavit. Instead, he submitted three documents from Santa Cruz County Superior Court case No. S8-09737 , the 1998 case in which he was convicted of violating section 11379, subdivision (a). The documents were admitted into evidence as exhibits A and B. Exhibit A was a 1998 probation report, and exhibit B comprised two minute orders that had been entered three years later, after defendant violated the terms of his probation.
Section 11379, subdivision (a) states in pertinent part that unless otherwise provided, “every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import in this state or transport any controlled substance... shall be punished by imprisonment in the state prison for a period of two, three, or four years.” (§ 11379, subd. (a).)
The 1998 probation order did not establish the nature of defendant’s section 11379 conviction. Contrary to his assertions, it did not “show that this was, in fact, transportation of a small quantity of methamphetamine for personal use.” Instead, the probation report incorrectly referred to the 1998 conviction as one for possession of methamphetamine.
Although the 2001 minute orders do not establish that defendant’s section 11379 conviction was for transporting a controlled substance either, they do suggest that it was not for selling a controlled substance. The first minute order, from an August 17, 2001 probation violation hearing, listed “11379(A)” as one of the “[c]harges” and stated, “Defendant is Prop. 36 eligible.” The second, from an August 28, 2001 probation violation sentencing hearing, listed “11379(A)” as one of the “[c]harges” and stated, “Enter and complete [P]rop 36 program.” Unlike persons convicted under section 11379 for transporting a controlled substance for personal use, those convicted of selling a controlled substance are not eligible for Proposition 36 treatment. (Pen. Code, §§ 1210, subd. (a), 1210.1, subd. (a).) The minute orders thus support an inference that Hansen’s description of defendant’s 1978 conviction was incorrect.
The 2001 minute orders do not, however, establish or even suggest that Hansen deliberately mischaracterized defendant’s section 11379 conviction. Evidence comprising the substantial preliminary showing that Franks requires “must focus on the state of mind of the affiant.” (People v. Madrid (1992) 7 Cal.App.4th 1888, 1899.) Defendant submitted no such evidence. (Bradford, supra, 15 Cal.4th at p. 1297; see People v. Lewis and Oliver (2006) 39 Cal.4th 970, 989 (Lewis) [Franks showing insufficient where the defendant proffered no evidence that affiant lied about what witness told him or knew that witness was lying or mistaken, if indeed she was].)
Here, the only evidence reflecting Hansen’s state of mind was the affidavit itself, which in our view supported an inference that his misstatement was not deliberate. Had he wanted to mislead the magistrate with an intentionally false statement about defendant’s prior “sales” conviction, we doubt he would have buried that false statement in what defendant’s counsel called “a laundry list” of defendant’s other relevant local arrests and convictions. We doubt he would have attached the “Open Access” printouts describing each of those arrests and convictions, particularly since the printout for the section 11379 offense did not reveal a conviction for sales but instead described it as “IMPORT/SELL/DIST CONTROL SUBST.” We also doubt Hansen would have pointedly called the magistrate’s attention to those printouts by stating, in the body of his affidavit, that the results of his research were “attached and incorporated into” it.
Defendant argues that Hansen’s statement was made “at a minimum” in reckless disregard for the truth because “[t]he minute order indicating that [defendant] was sentenced to treatment was available on Open Access but the detective failed to include the information with his affidavit.” Had defendant submitted evidence that Hansen was aware defendant had been sentenced to a treatment program three years after his 1998 conviction, we might have agreed. (See People v. Costello (1988) 204 Cal.App.3d 431, 441 [where affiant who reported that officers saw three men loading a truck with suspected stolen property acknowledged having been told only one man was doing so, substantial evidence supported trial court’s finding of reckless disregard].) Here, there was no showing that Hansen was aware that defendant’s 1998 conviction was not for sales.
To the extent defendant claims Hansen had an obligation to review post-conviction “police or probation reports” in an effort to uncover the precise nature of the 1998 conviction and that his apparent failure to do so constituted a reckless omission, we reject that contention. Defendant cites no authority to support the proposition, and we are aware of none.
As the California Supreme Court has explained in the context of alleged omissions of material fact from a search warrant affidavit, an omission can be reasonable, negligent, or recklessly inaccurate or intentionally misleading. (People v. Kurland (1980) 28 Cal.3d 376, 387-388 (Kurland).) “A material omission is reasonable when despite the exercise of due care, [the] affiant was ignorant of the omitted fact or forgot to include it.... [¶] Negligent omissions of material fact occur when the affiant is unreasonably ignorant of facts, unreasonably forgets to include them, or makes a good faith but unreasonable decision that they need not or should not be included.” (Kurland, at p. 388, citations omitted.) The “defendant has the burden of demonstrating recklessness or intent to mislead.” (Kurland, at p. 390.)
Here, defendant argues that Hansen should have located the 2001 minute orders. He claims that “[a]t the preliminary hearing, [defendant] presented facts to show the ease with which Detective Hansen could have obtained accurate information regarding [defendant’s] conviction had he been acting conscientiously.” Contrary to his assertions, however, defendant presented no evidence at the preliminary examination. The record discloses only argument at the subsequent hearing on his motion to quash, where his trial counsel asserted that “[a] couple more clicks of the button” would have uncovered the 2001 minute orders. Even if we ignore that counsel’s oral argument at the hearing is not the type of evidence Franks requires (see Sandlin, supra, 230 Cal.App.3d at p. 1318), that argument does not establish that it would have been a simple matter for someone who did not know precisely what he was looking for to find the pertinent information. After reading counsel’s brief explanation, it appears to us that Hansen would have had to review three years’ of minute orders to find the ones defendant relies on. That does not sound like “[a] couple more clicks.”
Defendant’s trial counsel argued that in the Open Access program, “[w]hen you go to a case for a particular case number for a particular defendant, one of the options is to check a minute order for that case, and they all pop up. And when you get to the next step of choosing what minute order to look at, it gives you the date and the reason why the case is on calendar. On multiple occasions, it showed that this case was on calendar for Prop. 36 review. He would have had to click on minutes and then click down on one more window to find a date to pick. And... he would have seen that this was on for Prop. 36 review, and that, therefore, this couldn’t have been a conviction for sales.” Alternatively, counsel argued, “he could have done a case report or even just reviewed it online and seen the number of times that this case was on for Prop. 36 probation review.”
We think Hansen acted reasonably by attaching the results of his research to his affidavit and expressly calling the magistrate’s attention to that attachment, which described the 1998 conviction as one for “IMPORT/SELL/DIST CONTROL SUBST.” (Kurland, supra, 28 Cal.3d at p. 386 [“if the affidavit reflects a reasonable attempt at truth, constitutional principles are satisfied....”]; Theodor v. Superior Court (1972) 8 Cal.3d 77, 97[“once it has been determined that the affiant has acted reasonably under the circumstances, little more can be required of him”].)
We conclude that defendant failed to make the “substantial preliminary showing” that Franks requires, and therefore, the magistrate did not err when she denied his request for an evidentiary hearing.
B. Motion to Quash for Lack of Probable Cause
Defendant contends the trial court erred in denying his motion to suppress the evidence obtained in the search. He argues that the search warrant was not supported by probable cause because the affidavit on which it was based did not sufficiently establish the CI’s reliability or adequately corroborate the CI’s allegations of criminal activity. Nor could the good faith exception to the exclusionary rule save the warrant, defendant argues, because “Detective Hansen... had reason to know that his affidavit failed to establish probable cause.”
The trial court upheld the search based on the good faith exception after determining that there was not probable cause to support issuance of the warrant. Whether that determination was correct is unnecessary to our resolution of this appeal. Accordingly, we will proceed on the assumption that probable cause was lacking and examine whether, under Leon, exclusion of the seized evidence was unnecessary.
In Leon, the United States Supreme Court modified the Fourth Amendment exclusionary rule so as not to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant that was issued by a detached and neutral magistrate but later found to be unsupported by probable cause. (Leon, supra, 468 U.S. at p. 922.) Reliance is not objectively reasonable where the affidavit is “ ‘so lacking in indicia of probable cause’ ” that it would be “ ‘entirely unreasonable’ ” for an officer to believe such cause existed. (Leon, supra, 468 U.S. at p. 923.) The relevant inquiry is “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization” (Leon, at p. 922, fn. 23) or, stated differently, “ ‘whether a reasonable and well-trained officer... would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.’ ” (People v. Camarella (1991) 54 Cal.3d 592, 604 (Camarella).) Objective good faith “requires officers to have a reasonable knowledge of what the law prohibits.” (Leon, at p. 919, fn. 20.) In assessing good faith, it is “proper to consider... whether the affidavit was previously reviewed by a deputy district attorney.” (Camarella, at p. 605, fn. 5, citations omitted.)
“ ‘[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.’ [Citation.]” (Camarella, supra, 54 Cal.3d at p. 601.) “ ‘[A]n informant’s “veracity, ” “reliability, ” and “basis of knowledge” ’ are ‘all highly relevant’ factors that, together or separately, ‘usefully illuminate the commonsense, practical question whether there is “probable cause” to believe that contraband or evidence is located in a particular place.’ [Citation.]... ‘[A] deficiency in one [of these factors] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.’ [Citation.]” (Camarella, at p. 601.) “The opinions of an experienced officer may legitimately be considered by the magistrate in making the probable cause determination.” (People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232.)
In Camarella, an anonymous informant telephoned a deputy sheriff to report that the defendant was selling cocaine from his home and from his workplace. The informant used to purchase cocaine from the defendant, and one of her relatives had recently done so. The informant provided the name of the bar where the defendant worked and said his residence was near a specific golf course. In checking the “ ‘Sheriff’s office records and intelligence files’ ” for corroborating information, the deputy confirmed that the defendant worked at the bar and lived near the golf course. (Camarella, supra, 54 Cal.3d at pp. 597-598.) The deputy also discovered that the defendant had a prior arrest for possession of cocaine, and that a different anonymous and untested informant had provided similar information about him. (Id. at p. 598.)
Reversing the Court of Appeal, and without addressing the issue of probable cause, the court upheld the search because “a well-trained officer reasonably could have believed that the affidavit presented a close or debatable question on the issue of probable cause.” (Camarella, supra, 54 Cal.3d at p. 606.) The court acknowledged that a reasonable officer might have investigated further and augmented the affidavit before submitting it to the magistrate. (Id. at p. 606.) “The question under Leon, supra, 468 U.S.879, however, is not whether further investigation would have been reasonable but whether a reasonable officer... would have known that the affidavit, as it existed at the time it was to be presented to the magistrate, was legally insufficient....” (Id. at p. 606.) The deputy had conducted “more than a ‘bare bones’ investigation” and had obtained “substantial corroborating information that, although stale, was sufficient to make the probable cause determination a close question....” (Ibid.) A deputy district attorney reviewed and approved the affidavit. “[W]e conclude [the deputy] acted reasonably when he took this affidavit to a judicial officer.... His subsequent reliance on the warrant... was thus objectively reasonable under Leon....” (Id. at pp. 606-607.)
Here, the showing of probable cause was at least as strong as in the showing in Camarella. The reliability of a CI can be confirmed in a variety of ways, “as by corroboration of the information received [citations], the informant’s previous record of accuracy in similar situations [citation], or indications that the informant has spoken against penal interest. [Citation.]” (Kurland, supra, 28 Cal.3d at p. 392.) Here, Hansen confirmed that defendant was “Donnie, ” that he lived at the slightly misstated address and owned the described vehicles. Hansen also discovered that defendant had an extensive criminal history with numerous local drug and weapons-related offenses. Hansen knew, based on his training and experience, “that drug dealers often use their own product. Many times the drug dealers are dealing to support their own addiction to the various narcotics.” As he stated in his affidavit, “[t]his explains the numerous local arrests of [defendant] for 11550(a) H&S - under the influence of a controlled substance.” The CI here, moreover, had a previous record of accuracy, unlike the anonymous informant in Camarella, having previously provided assistance resulting in “felony arrests and crucial investigative leads.” Finally, Hansen submitted his affidavit to a deputy district attorney, who approved it. Thus, we cannot conclude that Hansen, or any reasonable and well-trained officer, “ ‘would have known that his affidavit failed to establish probable cause....’ ” (Camarella, supra, 54 Cal.3d at pp. 605-606.) The motion to quash was properly denied.
The cases defendant relies on do not compel a different conclusion. Rodriguez v. Superior Court (1988) 199 Cal.App.3d 1453 (Rodriguez) is contrary to defendant’s position. In that case, an affidavit riddled with typographical errors stated little more than that a confidential informant was “ ‘at’ ” (not “in”) a residence where heroin was sold. The affidavit explained that the informant had accompanied others to the residence “for the purpose of purchasing heroin, ” had “observed” them enter and then exit the residence “ ‘in a short period of time, returning directly to said informants’s [sic] locaiton [sic] and displaying to said informant a quanity [sic] of heroin that said indiiduals [sic] had stated were purchased from within said residence from a person whose identity is unknown to said informant.’ ” (Id. at p. 1462-1463.) Attesting to the credibility of the CI, the affidavit referred to “ ‘numerous occasions’ ” when the informant “ ‘provided narcotic intelligence information to your affiants and other [unidentified] law enforcement officers, which has been corroborated with various sources and that information has been found to be factual.’ ” (Id. at p. 1464.) The affidavit in Rodriguez, unlike the affidavit here, provided no link between the defendant and the informant’s allegations of criminal activity, and the paragraph attesting to the informant’s reliability was weaker than the corresponding paragraph in this case. But the Rodriguez court upheld the search, concluding that although “legally this affidavit was factually insufficient, [it] was not so wholly lacking in indicia of probable cause as to render [the officer’s] belief in its existence entirely unreasonable.” (Id. at p. 1466.)
In Higgason v. Superior Court (1985) 170 Cal.App.3d 929, the court did not analyze whether the officers’ conduct was objectively reasonable because the record on appeal was insufficient. (Id. at pp. 944-945.) Higgason does not advance defendant’s position.
In Bailey v. Superior Court (1992) 11 Cal.App.4th 1107 (Bailey), an anonymous informant and an unidentified citizen informant telephoned police, each reporting heavy foot traffic in and out of the defendant’s apartment. Neither had purchased drugs from the defendant or witnessed any criminal activity but both concluded the defendant was dealing drugs or engaging in prostitution. The police confirmed only that the defendant lived at the address in question. Noting that “heavy foot traffic may just as likely reflect that the suspect is engaged in innocent activity, such as selling soap or cosmetics, ” the court held that the affidavit lacked sufficient indicia of probable cause so as to make reliance upon it unreasonable. (Bailey, at p. 1113.) Bailey is easily distinguished. In Bailey, unlike here, the informants were anonymous and untested, and neither witnessed any illegal activity.
In People v. Johnson (1990) 220 Cal.App.3d 742 (Johnson), disapproved on related grounds in Camarella, supra, 54 Cal.3d at p. 606, fn.6, an anonymous and untested informant telephoned police to report that the defendant had robbed a bank and was also responsible for two other robberies and a shooting. Police confirmed the informant’s information about the defendant’s vehicle and residence and discovered that his physical description in DMV and police records did not match the descriptions that eyewitnesses to the bank robbery had provided. Police did not show the defendant’s photo to the bank robbery eyewitnesses, confirm that the other robberies the informant accused the defendant of committing had taken place, or determine whether descriptions of the perpetrator of those robberies matched the defendant’s description. The court concluded that “a well-trained officer would have known the corroboration was insufficient and that the affidavit was ‘ “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” ’ [Citation]” (Johnson, at p. 751.) Here, unlike in Johnson, the officer corroborated that the person the CI knew as “Donnie” was, in fact, defendant.
The Camarella court disapproved Johnson “to the extent it may be read to require an officer to exhaust all avenues of investigation and corroboration at the risk of falling within Leon’s third [so lacking in indicia of probable cause] situation.” (Camarella, supra, 54 Cal.3d at p. 606, fn. 6.)
IV. Disposition
The order of probation is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.