Opinion
A160529
03-04-2022
THE PEOPLE, Plaintiff and Respondent, v. LA CARL MARTEZ DOW, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 15NF001448A
RICHMAN, ACTING P. J.
In the course of investigating certain robberies that took place in San Francisco in 2015, the police obtained five search warrants for defendant La Carl Martez Dow's car, residence, and phone. Dow was later arrested and charged with robbery and attempted robbery. Dow moved (1) to suppress the evidence obtained pursuant to the warrants and (2) for a hearing under Franks v. Delaware (1978) 438 U.S. 154 (Franks). Both motions were denied, following which Dow pleaded guilty to the robbery count and was sentenced to 15 years in prison. Dow appeals, contending that the motions were denied in error. We disagree, and we affirm.
BACKGROUND
In 2015, Sergeant Thomas Maguire of the San Francisco Police Department was investigating certain robberies that took place in San Francisco between May and November of that year, in connection with which he sought and obtained several search warrants for Dow's phone, car, and residence.
Warrants SW37768, SW37771, and SW37770
The first warrant (SW37768), issued on November 12, sought subscriber information, call detail records, text message content records, and E911 location alerts for Dow's cell phone number. The second warrant (SW37771), also issued on November 12, sought to place GPS monitoring equipment on Dow's white Chevy Impala. Both warrants attached the same affidavit with a statement of probable cause by Sergeant Maguire, which included by way of background that:
Sekou Carson was arrested on October 29, and confessed to committing two armed robberies at Roxy's Market at 500 Kirkham Street and at the 76 Gas Station at 443 Divisadero, both on October 27. Sergeant Mason was investigating a series of six armed robberies dating back to May 23, 2015, one of which took place at 500 Kirkham Street on September 25, and another at 443 Divisadero on October 8.
Sergeant Maguire's affidavit continued:
"Based on the fact that Carson was arrested for armed robberies that occurred at the same locations where two prior unsolved robberies occurred, Sgt. Mason and I believe that Carson may be involved as part of the larger robbery series. I believe Carson may have been either the unknown suspect who committed the robberies, or may have been involved with the suspects that committed the unsolved robberies at these locations.
"Additionally, the method Carson used during the commission of the robberies for which he was arrested, matches the method used by the suspects who have committed the (6) other unsolved robberies that Sgt. Mason is investigating. Carson walked into the establishments, selected an item to purchase and approached the register with money in hand. Carsen [sic] then pulled out a firearm and robbed the cashier of U.S. Currency. This is the same method that has been used in the other (6) unsolved robberies that Sgt. Mason is investigating."
In addition, the affidavit indicated that Sergeant Maguire obtained a search warrant for Carson's cell phone records, which showed that Carson made four outgoing phone calls on October 27 (the day of the robberies) to a contact labeled "Blacc Jesus." Sgt. Maguire recognized this name as a "moniker" used by Dow, based on a prior incident in which Dow was arrested for possession of stolen property. By reviewing the report from that arrest, Sergeant Maguire found that the phone number for "Blacc Jesus" belonged to Dow and that the report listed an alias for Dow of "Black Jesus."
The report further stated that Dow was driving a white, 4-door Chevy Impala when he was arrested. "Sgt. Mason advised me that a white 4-door sedan was used as the getaway vehicle in one of the robbery incidents he is investigating . . . . Sgt. Mason provided me with still images of the video surveillance that captured the getaway vehicle used in this robbery. . . . I obtained images of Dow's white Chevy Impala which were captured and stored by the Automated License Plate Reader Database on prior occasions. [¶] I compared the image of the getaway vehicle used in the robbery at 6333 Geary to the image of Dow's vehicle, and they appear to be the same color, make and model.
"Based on the fact that Carson called Dow (4) times prior to the robberies he committed on 10/27/15, and the fact that the getaway vehicle used in a later robbery matches Dow's vehicle, I believe that Dow is possibly associated with the larger robbery series that Sgt. Mason is investigating."
The third warrant (SW37770), issued on November 17, sought to obtain Fast Track records for Dow's white Impala. In addition to the above information, the warrant stated that Sergeant Maguire and other officers had conducted surveillance of Dow and observed him driving the white Impala, which had a Fast Track device affixed to the front windshield. The statement also indicated that the dates of the six robberies were May 23, July 14, July 18, August 23, September 25, October 8, and November 4, 2015, and sought Fast Track records for those dates.
Warrant SW37774
The fourth warrant, issued on November 19, sought to search Dow's residence, car, and person. In addition to the facts above, the statement of probable cause included the following further information:
Sergeant Maguire and other officers conducted surveillance of Dow and observed him driving his white Impala, and entering and exiting an apartment complex in San Leandro. Sergeant Mason then conducted an open-source internet records check and spoke with the apartment manager, who confirmed that Dow lived at that address.
On November 18, 2015, Sergeant Maguire and other officers conducted surveillance of Dow and saw him get into the black Honda of Namon Taylor, who was also a suspect in the robbery investigation.
"Taylor and Dow drove back to San Leandro where they parked around the comer of a Walgreens. Dow exited the Honda and walked to the front door of the Walgreens. I observed that Dow now had a dark jacket on, with a hood up, covering his head and he was wearing dark colored gloves. Dow walked to the front door of the Walgreens, but the door was locked, so he turned and walked back to the Honda. Based on my training and experience, I believed Dow's behavior was consistent with suspects who are casing commercial establishments to commit a robbery.
"Taylor and Dow then drove to a 76 Gas Station on Hesperian Boulevard and they parked in the rear of the gas station. Dow then approached the front door of the gas station mart. I observed that Dow was again wearing a dark jacket, with a hood up covering his head, and he had gloves on his hands. The door was locked, so Dow turned around and walked away back to the Honda."
Sergeant Maguire concluded that "[b]ased on the fact that Carson was arrested for two armed robberies, which were committed at the same locations and utilizing the same [modus operandi] as (6) other unsolved armed robbery incidents, the fact that Carson had numerous phone communications with Dow on the day he committed two armed robberies, the fact that Dow's white Impala matches the getaway vehicle used in a prior armed robbery incident, the fact that we observed Dow as he travelled around the East Bay Area wearing similar clothing and gloves as worn by the suspects in prior unsolved robberies, and the that Dow's actions led me to believe he was casing commercial establishments to commit a robbery while we were conducting surveillance, I fully believe that Dow is involved as a suspect in the larger robbery series that is being investigated by Sgt. Mason."
Warrant SW37775
The fifth warrant (SW37775), issued on December 1, sought to search information stored on Dow's cell phone. The additional information for this warrant was as follows:
"On the night of 11/19/2015, members of the SFPD and I conducted surveillance of Dow and his associate, Namon Taylor, as they drove to a Chevron gas station in San Leandro. Dow and Taylor parked around the back side of the Chevron. Taylor exited the vehicle as Dow remained with the vehicle. Taylor entered the Chevron Mini-Mart, wearing yellow gloves and a beanie cap on his head. Taylor proceeded to rob the cashier at gunpoint, and we arrested Taylor as he exited the front door. Simultaneously, SFPD Officers arrested Dow as he remained with the getaway vehicle." Officers seized Dow's cell phone as part of his arrest.
The Charges
On June 14, 2019, the San Mateo County District Attorney filed a felony information charging Dow with second degree robbery on October 28, 2015 (Pen. Code, § 212.5, subd. (c)) (count 1) and an attempted second degree robbery on November 9, 2015 (§ 212.5, subd. (c), 664) (count 2). The information alleged that Dow had previously been convicted of a serious or violent felony (§ 667, 1170.12) and had served four prior prison terms (§ 667.5, subds. (a), (b)).
Further statutory references are to the Penal Code.
Motion to Quash and Traverse
In advance of trial, Dow filed a motion to quash and/or traverse the warrants and to suppress the evidence seized pursuant to them. He argued that (1) the four outgoing calls between himself and Carson on October 27 did not establish probable cause to search his phone, and (2) Sergeant Maguire's opinion that Dow's vehicle was the "getaway" vehicle did not establish probable cause. Dow further argued that he was entitled to a hearing under Franks, supra, 438 U.S. 154 because he had included two materially false statements in his affidavit: (1) Sergeant Maguire "failed to provide any context to the magistrate" regarding the phone calls because he did not mention "that the calls occurred hours prior to the robbery, that the affiant was unsure whether the calls resulted in any actual conversation; the number of calls that were made by Mr. Dow's phone the day of the robbery; the number of calls received by Mr. Carson on the day of the robbery; or the number of calls between the two numbers, on the day of the robbery or in any other period of time"; and (2) the evidence did not support the statement that "there was a 'getaway vehicle' used in the Grocery Outlet robbery; that it was a particular car he observed on surveillance footage; and that the particular car belongs to Mr. Dow."
In addition to the five search warrants, the motion attached excerpts of Sergeant Maguire's testimony preliminary hearing testimony in Alameda County Superior Court Case No. 249925. On cross-examination, with respect to other numbers in Carson's cell phone, Sergeant Maguire admitted that he "did [not] actually trace those numbers or do anything with those phone numbers themselves." With respect to the surveillance video, Sergeant Maguire testified that he watched the video himself and obtained still images from it.
The motion also attached a declaration from a defense investigator, Doug Eckles, summarizing his review of the surveillance video. According to Eckles: "The suspect exits a white sedan. The suspect is seen entering the Grocery Outlet, carrying out an armed robbery, and running out of the Grocery Outlet. The suspect travels on Geary street before turning onto 28th Avenue and running past the white sedan. The suspect appears to be on the opposite side of the street from the white sedan when he runs past. . . . The suspect goes out of camera view at approximately 8:14:21 p.m., and the white car drives away at 8:16:21 p.m. At no time can the suspect be seen getting into the white sedan."
Hearing on the Motion
Hearing on the motion was held on October 3, 2019. Following the argument of counsel, the trial court denied the motions, first the motion to quash:
"On the motion to quash, the Court is going to deny the motion to quash at this time, finding that there was probable cause for the warrant to be issued. Particularly, I'm looking at the surrounding circumstances that the affidavit seems to set forth that there was a series of robberies that were similar; that Mr. Carson had confessed to two of these robberies; Mr. Carson's cell phone, including calls to this defendant on the day of two of the robberies; and that the defendant's vehicle, according to the affidavit, matched the vehicle that was used in one of the unsolved robberies."
With respect to the motion to traverse, defense counsel had argued that Sergeant Maguire's affidavit intentionally omitted the fact that Carson's phone made 106 phone calls on October 27, 2015, whether the calls actually connected, and the timing of the calls relative to the robberies. Defense counsel further argued that the affidavit misrepresented that the surveillance footage was down a "completely different street," and that the term "getaway" vehicle was misleading because at no time did the suspect get into the car before it drives away. Defense counsel also offered to play the video footage for the court.
After suggesting that the car was used as a "I drove him there car" as opposed to a "getaway" car would not be a material misrepresentation, the court denied the motion to traverse, explaining:
"[L]et me look first at the phone calls. I don't find that there was [sic] false statements knowingly made, recklessly disregarding, as you set forth. The fact there were 126 [sic] calls, the Court doesn't look at that as a material omission of fact. The significance was there were four calls to this particular individual who, because of other evidence, was tied to possibly being involved in these robberies.
"And so when you put both of those facts together, not going into how many calls were made that day prior to it, or whether they were brief calls or long calls, it just shows an indication of a connection between the defendant and these robberies. And, again, the timing of the calls, it's prior to these things. And so the timing doesn't seem significant to the Court. And even if it had been included that they were several hours before or whatever, the Court would not find that would make a significant difference in the finding of probable cause.
"I think on the video, it's obviously a closer question. You've pointed out several factors in the video. But as the Court discussed with you already, I find the use of the term 'getaway vehicle' would fall more in a mistake of fact than a knowing falsehood or a knowing omission of facts. The importance is not whether it's a getaway car or whatever, but it was a car involved in the robbery, and the suspected person who committed the robbery is directly associated with that car.
"And for all of those reasons, the Court cannot find that the defendant-congratulations for putting all this together-but cannot find that you've shown me by a preponderance of evidence a substantial likelihood that the statements were false and, if false, were made knowingly and with a reckless disregard of the truth."
Sentence
On July 10, 2020, pursuant to a plea agreement and in exchange for a sentence of 15 years, Dow pleaded no contest to count 1 and admitted one of the priors. The trial court granted the prosecution's motion to dismiss the balance of the charges and sentenced Dow to the agreed-upon 15 years in prison.
DISCUSSION
Dow argues that none of the warrants established probable cause, that he made a showing that Sergeant Maguire made intentional misrepresentations sufficient to require a hearing under Franks, and that the trial court violated his due process rights by ruling on his Franks motion without viewing the surveillance video or hearing testimony from Sergeant Maguire.
The Affidavit in Support of the First Three Warrants Established Probable Cause
Dow argues that the first four warrants lacked probable cause. With respect to the first three warrants, he asserts (1) that the facts in the affidavit did not support the conclusion that the series of robberies involved multiple suspects, (2) that the four phone calls between Dow and Carson did not establish probable cause, and (3) that describing the white sedan as a "getaway vehicle" was a bare conclusion without factual support.
Applicable Law
"In reviewing a search conducted pursuant to a warrant, an appellate court inquires 'whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.' (People v. Kraft (2000) 23 Cal.4th 978, 1040, citing Illinois v. Gates (1983) 462 U.S. 213, 238-239.) 'The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], 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.' (Illinois v. Gates, supra, 462 U.S. at p. 238.) The magistrate's determination of probable cause is entitled to deferential review. (People v. Kraft, supra, 23 Cal.4th at p. 1041, citing Illinois v. Gates, supra, 462 U.S. at p. 236.)
"Probable cause sufficient for issuance of a warrant requires a showing that makes it' "substantially probable that there is specific property lawfully subject to seizure presently located in the particular place for which the warrant is sought."' (People v. Frank (1985) 38 Cal.3d 711, 744, quoting People v. Cook (1978) 22 Cal.3d 67, 84, fn. 6.) That showing must appear in the affidavit offered in support of the warrant. (People v. Frank, supra, 38 Cal.3d at p. 744.)" (People v. Carrington (2009) 47 Cal.4th 145, 161.)
"Whether an affidavit provided the magistrate' "substantial basis"' for concluding there was probable cause is an issue of law 'subject to our independent review.' (People v. Camarella (1991) 54 Cal.3d 592, 601 (Camarella).) But, because '[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause,' we accord deference to the magistrate's determination and' "doubtful or marginal"' cases are to be resolved with a preference for upholding a search under a warrant. (United States v. Leon (1984) 468 U.S. 897, 914 (Leon); see also [Illinois v.] Gates, [supra, 462 U.S.] at pp. 236-237 & fn. 10; People v. Weiss (1999) 20 Cal.4th 1073, 1082.) Ultimately, 'the magistrate's determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause. [Citations.]' (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278 (Fenwick).)" (People v. French (2011) 201 Cal.App.4th 1307, 1315.)
Analysis
Dow argues that the method used in the robberies as described by the affidavit-that the perpetrator "walked into the establishments, selected an item to purchase and approached the register with money in hand," then "pulled out a firearm and robbed the cashier of U.S. Currency" -was not novel or distinctive, and thus did not support any inference that the robberies were connected. While perhaps not entirely novel, we do not agree that this method was so undistinctive so as to add nothing to the probable cause equation. Moreover, it was not all that connected the robberies, which took place close in time-over a period from late May to early November of 2015- and all in San Francisco. When considered with the fact that Sergeant Mason was investigating the robberies as a series, these facts were sufficient to support an inference that the robberies were connected.
Dow also argues that the affidavit does not support the conclusion that the series of robberies involved multiple suspects, and instead that the "most logical inference . . . was that Carson robbed the same locations more than once." But this is not entirely accurate. As the Attorney General notes, the affidavit in support of the second warrant stated that Carson was already in custody during the robbery that took place on November 4 at 6333 Geary Boulevard, and thus that robbery necessarily involved a second suspect.
On reply, Dow acknowledges that Carson could not have committed the November 4 robbery, but argues that this is irrelevant because there are not facts to connect the November 4 robbery to the other robberies in the series. We disagree.
Dow argues that the fact of his four phone calls with Carson before the robberies adds "nothing to the probable cause equation" because the affidavit does not include the content of the calls, whether they connected at all, and did not suggest that the calls occurred "close in time" to the robbery. But this lack of additional information does not mean that the phone calls themselves did not support a finding of probable cause. As the trial court found, the fact that Carson called Dow four times on the day of the robbery, before it took place, connects Dow to that robbery.
Finally, Dow argues that Sergeant Maguire's statement that he "compared [the image] of the 'getaway vehicle' used in the robbery at 6333 Geary [to the image of Dow's vehicle, and] they appear to be the same color, make, and model" was a "bare conclusion" without factual support, because it did not inform the magistrate how he concluded that the car was a "getaway" vehicle. But the affidavit is clear that this information came from Sergeant Mason: "Sgt. Mason advised me that a white 4-door sedan was used as the getaway vehicle in one of the robbery incidents . . . . Sgt. Mason provided me with still images of the video surveillance that captured the getaway vehicle used in this robbery." In any event, the affidavit makes clear that whether the vehicle was a "getaway" vehicle or not, it was connected to the robbery because it appeared to Sergeant Maguire to be the same color, make, and model as a vehicle captured on surveillance video at the scene, which supported the finding of probable cause.
In addition, Dow errs by considering each part of the affidavit separately instead of together as a whole. (See Illinois v. Gates, supra, 462 U.S. at p. 238 [in determining whether probable cause exists magistrate considers "all the circumstances set forth in the affidavit before him"].) To summarize, Sergeant Mason was investigating a series of unsolved robberies using a similar method, Carson confessed to two robberies at two of the same locations in that series of robberies, Carson called Dow four times on the day of those two robberies before they took place, and a vehicle that appeared similar to Dow's was captured on surveillance video at one of the unsolved robberies that took place while Carson was in custody. Given the deferential standard of our review, these facts provided probable cause for the searches related to Dow's cell phone and vehicle.
Given our conclusion, it is unnecessary to reach Dow's further argument that the fourth warrant was not supported by probable cause. As discussed, the affidavit in support of the fourth warrant-for Dow's residence, car, and person-contained the same information as the affidavit in support of the first three warrants, plus the additional information that, according to Maguire, officers had observed Dow "casing" two locations in order to commit robbery.
Dow Failed to Make a Sufficient Showing to Require a Franks Hearing
Dow next argues that he was entitled to a hearing under Franks, supra, 438 U.S. 154, because Sergeant Maguire made certain statements in his affidavit that were false or made in reckless disregard for the truth.
Applicable Law
Under Franks, supra, 438 U.S. 154, "[a] defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. The trial court must conduct an evidentiary hearing only 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 support a finding of probable cause." (People v. Scott (2011) 52 Cal.4th 452, 484 (Scott), citing Franks, supra, 438 U.S. at pp. 154-156.)
A defendant similarly "can challenge a search warrant by showing that the affiant deliberately or recklessly omitted material facts that negate probable cause when added to the affidavit." (People v. Eubanks (2011) 53 Cal.4th 110, 136.) Omissions are material if they render the affidavit" 'substantially misleading, '" that is," 'if, because of their inherent probative force, there is a substantial possibility [the omitted facts] would have altered a reasonable magistrate's probable cause determination.'" (People v. Sandoval (2015) 62 Cal.4th 394, 410, quoting People v. Kurland (1980) 28 Cal.3d 376, 385.) Thus, "[a] defendant who challenges a search warrant based on omissions in the affidavit bears the burden of showing an intentional or reckless omission of material information that, when added to the affidavit, renders it insufficient to support a finding of probable cause." (Scott, supra, 52 Cal.4th at p. 484.)
The "substantial showing" required for a Franks hearing presents a high threshold. (People v. Estrada (2003) 105 Cal.App.4th 783, 790 ["Because of the difficulty of meeting the 'substantial preliminary showing' standard, Franks hearings are rarely held"].) The defendant must overcome "a presumption of validity with respect to the affidavit supporting the search warrant" by "allegations of deliberate falsehood or of reckless disregard for the truth, . . . accompanied by an offer of proof." (Franks, supra, 438 U.S. at p. 171.) And "[a]ffidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained." (Ibid.) Further, as the Court of Appeal noted in People v. Lee (2015) 242 Cal.App.4th 161, "when the allegedly false representations are set aside-or, in this case, when the omitted information is included-'if . . . there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.'" (Id. at p. 172, quoting Franks, supra, at pp. 171-172.)
We review the denial of a Franks hearing de novo. (People v. Sandoval, supra, 62 Cal.4th at p. 410.)
Analysis
In arguing that he made the requisite showing for a Franks hearing, Dow points to certain evidence attached to his motion, including his trial counsel's declaration that the surveillance footage "did not display the vehicle's license plate or any emblem indicating a particular vehicle brand," Sergeant Maguire's testimony that he watched the video and obtained stills from it himself instead of receiving them from Sergeant Mason as he stated in the affidavit, his counsel's statement in his declaration that Carson had called Dow "hours" before the robberies on October 27, and most importantly, the fact that the robbery suspect on the surveillance video did not get into the white vehicle before it drove away, so it was not a "getaway" vehicle as Sergeant Maguire's affidavit stated.
We easily reject Dow's argument. To begin with, Sergeant Maguire's affidavit did not state that the surveillance footage showed the vehicle's license plate or any "emblem" indicating the vehicle brand, so this was not a misrepresentation or omission of any kind. It could nevertheless be true, notwithstanding the lack of license plate or emblem, that the vehicle "appear[ed to Sergeant Maguire] to be the same color, make and model" as Dow's vehicle, as his affidavit stated.
With respect to whether Sergeant Maguire watched the video himself or obtained stills from the video from Sergeant Mason, this obviously made no difference to the magistrate's probable cause determination-there was no dispute that Sergeant Maguire relied on still images from the surveillance video, however obtained, and compared them with images of Dow's vehicle to conclude that Dow's vehicle was present at the robbery.
Turning to the four phone calls from Carson to Dow on October 27, defense counsel's declaration, citing Sergeant Maguire's preliminary hearing testimony, states they occurred "hours prior" to the robberies. But Sergeant Maguire's testimony nowhere indicates the timing of the calls. Counsel's argument at the hearing was that the affidavit contained no information on the timing of the calls relative to the robbery, even though that information would have been contained in the phone records. In any event, Sergeant Maguire's affidavit accurately states that the calls took place the same day as the robberies, and before they took place. There was no misrepresentation on this score.
Finally, we reject Dow's argument that describing the white sedan as a "getaway" vehicle was a misrepresentation justifying a Franks hearing. The defense investigator's own summary of the video indicated that the robbery suspect exited the white sedan, entered Grocery Outlet, and conducted an armed robbery. The white vehicle was thus connected directly with the suspect and the robbery, even if the suspect fled on foot afterwards. Had Sergeant Maguire accurately stated that the suspect arrived in the vehicle rather than left in it, the sedan was still connected with the suspect and the robbery, and the finding of probable cause would not have been affected.
There Was No Due Process Violation
Finally, Dow argues that he was denied his due process right to a "fair opportunity to litigate" his claim when the court did not view the surveillance video or permit him the opportunity to cross-examine Sergeant Maguire. (See People v. Hansel (1992) 1 Cal.4th 1211, 1219 ["[A]t a suppression hearing, the defendant must have a fair opportunity to litigate the claim"].)
We do not find any due process violation. With respect to the surveillance video, the trial court did not watch the video but relied instead of the defense's own summary of it, and the defense investigator's declaration stated the undisputed fact that the video showed the robbery suspect exiting the white sedan. (See People v. Carlin (2007) 150 Cal.App.4th 322, 335 ["A mere limitation on the form of evidence presented is not, however, a due process violation"].) And the trial court explained that even if the video showed the suspect running past the sedan after the robbery and thereby contradicted Sergeant Maguire's characterization of the sedan as a "getaway" vehicle, the probable cause determination would have been unaffected. Under these circumstances, we cannot agree that the trial court denied Dow a "fair opportunity to litigate" his Franks motion by not viewing the surveillance video.
Dow further argues that was denied a fair opportunity to litigate his Franks motion because he should have been permitted to cross-examine Sergeant Maguire to determine whether he reasonably believed that the white sedan was a "getaway" vehicle, because the trial court at one point characterized this statement as a "mistake of fact." But defense counsel never sought to cross-examine Sergeant Maguire nor objected to the court's ruling on this basis, meaning this argument has not been preserved for appeal. (See People v. McKinnon (2011) 52 Cal.4th 610, 638 [" '[A]s a general rule, "the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal."' [Citation.] This applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights"].) And we reiterate, the characterization of the sedan as a "getaway" vehicle made no difference to the probable cause determination.
Objecting to this alleged error was not futile, nor was the error a "pure question of law on undisputed facts," as Dow suggests. Had defense counsel sought to examine Sergeant Maguire or argued that his testimony was necessary to rule on the Franks motion, the trial court would have had the opportunity to correct the alleged error.
DISPOSTION
The judgment is affirmed.
We concur: Stewart, J., Mayfield, J. [*]
[*]Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.