Opinion
C041022.
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. JASON ROBERT KEPPELER, Defendant and Appellant.
MORRISON, Acting P.J. We concur: KOLKEY, J., ROBIE, J.
Peace officers executing a search warrant found over 1,600 marijuana plants, over 11 pounds of marijuana and several loaded guns, including two assault weapons, on defendants land. He pleaded guilty to possession for sale of marijuana and admitted an arming allegation. (Health & Saf. Code, § 11359; Pen. Code, § 12022, subd. (a)(1).) The trial court sent him to prison for three years.
On appeal, defendant contends his motion to suppress should have been granted and the trial court should have granted his motion for an evidentiary hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154 [57 L. Ed. 2d 667, 98 S. Ct. 2674] (Franks) to allow him to unearth misstatements in the warrant affidavit.
The affidavit partly included information derived from the warrantless aerial thermal imaging of defendants barn. Later, the United States Supreme Court ruled that thermal imaging of a house is a search. (Kyllo v. United States (2001) 533 U.S. 27 [150 L. Ed. 2d 94, 121 S. Ct. 2038] (Kyllo).) The trial court concluded that the affidavit did not show probable cause once the thermal imaging evidence was excluded, but the officers had an objectively reasonable belief in its validity (see United States v. Leon (1984) 468 U.S. 897 [82 L. Ed. 2d 677, 104 S. Ct. 3405] (Leon) and defendant failed to show cause for a Franks hearing.
Based on the facts other than the thermal imaging and because the issue of whether thermal imaging of a barn is subject to the Kyllo rule is still an open question, it cannot be said the affiant should have known that the warrant was not supported by probable cause. Therefore, we agree with the trial court that the affiant sought and relied on the warrant in good faith. We also conclude defendant did not show good cause for a Franks hearing. We shall affirm.
BACKGROUND FROM THE SUPPRESSION HEARING
After defendants property was searched, the property of two codefendants, the Bogdans, was searched. The warrant for the Bogdan property was based partly on evidence found on defendants property. The Bogdans and defendant joined each others motions to suppress.
In his affidavit for a warrant, Deputy Sheriff Richer presented a number of facts which we divide into two categories.
Facts not based on thermal imaging:
(1) In October 2000, federal law enforcement officer Frick told Richer he had found a chest on federal land next to defendants land, which had maps, sketches and letters pertaining to marijuana growing.
(2) On October 27, 2000, Richer went to the area where Frick found the chest and saw people working on a barn with covered windows on defendants land.
(3) In early November, 2000 Richer learned defendant was the owner of record of the land with the barn.
(4) On March 23, 2001, Richer and Detective Rist went near defendants land and heard "a very large generator" running, and as they neared the sound it appeared to come from the barn. From about 100 yards away, Richer "smelled briefly, what appeared to be the odor of green marijuana" and Rist thought he smelled it too.
(5) On April 5, 2001, Frick told Richer he had been at the property the previous morning and heard a large generator sound coming from the barn. He also reported to Richer that he had seen a large, laden, truck back up to that barn "and persons unloading unknown objects from this truck." The license number of a vehicle on the property was checked, and was traced to names reflected on the indicia found in the chest the previous October.
(6) On April 13, 2001, in the early afternoon, Frick, Richer and Rist heard the generator running. It was also running late that same night.
(7) Richer had some knowledge about the use of generators for residential purposes as well as for marijuana cultivation, and the generator he heard was too large and ran too often to be for household use.
Additional facts based on thermal imaging:
(1) In May, 2001 officers had flown over defendants land using thermal imaging, and Richer reviewed a videotape of this flight. An officer with expertise in such matters (Deputy Royce Grossman) told him the images showed unusual thermal activity in the barn.
(2) Grossman filed a separate affidavit in support of the warrant explaining his thermal imaging expertise and what he saw on the tape. The relevant images were of the barn, and the readings showed "a great deal of excess heat coming from the barn." The only statement about the residence is that it was colder than the barn, "even though [it] is where the people live."
Before Richer gave his affidavit to a judge, it was reviewed by a deputy district attorney.
Judge Edwards issued the warrant on May 16, 2001. The property was searched on May 23, 2001.
On June 11, 2001, Kyllo was decided, holding that any invasion of the home is intrusive, that the Fourth Amendment drew "a firm line at the entrance to the house," and where the government uses thermal imaging "to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant." (Kyllo, supra, 533 U.S. at p. 40 .) The court distinguished a decision which involved "enhanced aerial photography of an industrial complex," which was not a search because it did not involve "an area immediately adjacent to a private home, where privacy expectations are most heightened[.]" (Id. at p. 33 [150 L. Ed. 2d at p. 102, discussing Dow Chemical Co. v. United States (1986) 476 U.S. 227 [90 L. Ed. 2d 226, 106 S. Ct. 1819].)
Defendant claimed evidence about thermal imaging should be redacted from the affidavit, which then did not show probable cause. He claimed Richer must have entered his property illegally because the seized generator matched what Richer claimed he had heard and it was improbable that he could detect the type of generator by hearing; also, he claimed Richer willfully omitted from the affidavit facts, such as that the Keppeler house relied on generator power and no other evidence of cultivation was seen.
The People argued (1) Kyllo did not prohibit thermal imaging of a barn; (2) the affidavit showed probable cause even without thermal imaging information; (3) the officers acted with good faith as defined in Leon; and (4) defendants request for a Franks hearing lacked substance.
Judge Letton concluded the Kyllo evidence should not have been used and doubted Richers ability to identify the generator by sound. He ruled the affidavit did not contain probable cause, but Richer acted in good faith, partly due to the Kyllo evidence. He also concluded no Franks hearing was required.
DISCUSSION
We agree with the People that defendant conflates Franks, supra, 438 U.S. 154 and Leon, supra, 486 U.S. 897 . A Franks hearing presumes a valid warrant and seeks to traverse the warrant by proof of misstatements and omissions which can lead to redaction and retesting of probable cause; a Leon hearing presumes a facially invalid warrant "and the burden is on the prosecution, not the defense." (People v. Maestas (1988) 204 Cal. App. 3d 1208, 1216, 252 Cal. Rptr. 739.) We will separately address these strands of the appeal.
I. No Franks Hearing was Required.
A ruling denying a Franks hearing is reviewed de novo. (People v. Benjamin (1999) 77 Cal.App.4th 264, 271 (Benjamin).)
The defendant must make a "substantial" showing that the affidavit contains statements that are deliberately false or made with reckless disregard of the truth and show the rest of the affidavit does not contain probable cause. (Id. at pp. 271-272; see People v. Bradford (1997) 15 Cal.4th 1229, 1297, 939 P.2d 259 [defendant "bears the burden of showing that the omissions were material to the determination of probable cause"].) We presume the warrant is valid and defendant must show tangible evidence of the alleged improper statements: Franks does not authorize fishing expeditions. (People v. Wilson (1986) 182 Cal. App. 3d 742, 750, 227 Cal. Rptr. 528; see Benjamin, supra, 77 Cal.App.4th at p. 272.)
For the purposes of assessing whether a Franks hearing is required on the ground that the affidavit contains statements that are deliberately false or made in reckless disregard of the truth, we have recently held it is permissible to look at the results of the search, which might tend to show either that the affidavit was accurate or inaccurate. "Where an affiant states that strong marijuana odors could be smelled, and there are rows and rows of adult marijuana plants in the house, the latter would tend to corroborate the truthfulness of the former." (Benjamin, supra, 77 Cal.App.4th at p. 275.) Richer averred that from a distance he smelled "fresh marijuana" by the barn and many marijuana plants were found there. That tends to show his truthfulness in general.
Richer also averred that he could hear a generator, too large for residential use. He set forth his experience with generators and averred that household generators are typically in the 7-10 watt range, that "Whisperwatt type generators are the generators of choice for marijuana growers" and that what he heard sounded like a 25-65 watt generator. The search revealed that defendants marijuana operation was powered by a 45-watt Whisperwatt generator.
For purpose of the Franks hearing, defendant offered Richers preliminary hearing testimony. Richer testified he found a 45-watt Whisperwatt generator, which he has encountered in "Numerous indoor marijuana cultivation operations," and which was being used both for the growing operation and to power defendants house. He also testified he had trespassed to make the observations reflected in his affidavit. He had not identified the make of the generator until the search, but knew it could not be a Honda brand generator because it was "a very large, commercial-type generator" that he heard.
On appeal defendant claims that Richer must have entered the property illegally, because it is improbable that he could with precision identify the type and size of generator from a distance. In the trial court, defendant showed that there were many types of generators available on the market. One occasion when Richer heard the generator was when he also smelled the marijuana from "within 100 yards." Nothing indicates Richer could not have heard what he claimed to have heard, and the fact there are other generators does not provide reason to believe Richer illegally entered defendants shed to determine what model defendant was using. Richer did not claim he could identify the generator as a 45-watt generator, only that it sounded like a 25-65 watt generator, and he did not claim it was a Whisperwatt brand generator, only that "Whisperwatt type generators are the generators of choice for marijuana growers," and he provided energy information for a generic 45-watt generator. Nor is defendants claim aided by the fact his investigator was able to find out about the prices of other generators, which, if believed, showed Richer was not fully informed about the generator market. That does not detract from the affidavit, nor bolster defendants unsupported claim that Richer entered his property to identify the generator before he prepared the affidavit.
Defendant also complains that Richer failed to state that the Keppeler house needed a generator. But, as the trial court indicated, that fact was implicit in the affidavit, which explained Richers opinion that the generator he heard was too large for ordinary household usage.
In the trial court defendant alleged that he "believes that Officer Frick will testify that the materials in the box were undated . . . ." No such evidence was produced at defendants hearing, and defendants reliance on his statement of belief in his motion does not provide substantial evidence to warrant a Franks hearing. Similarly, defendants trial-court claim that the thermal imaging evidence was defective is no substitute for evidence that it was defective. Further, that evidence was excised from the warrant and thus attacks on that evidence via a Franks hearing would have been pointless.
Defendant claims no light came from the barn. This does not detract from the affidavit, which stated the barn windows were covered. He also claims the affidavit failed to state the police saw no evidence of cultivation. That, too, does not detract from the affidavits showing of probable cause.
Defendant failed to show Richer made intentionally false or recklessly misleading statements or omissions and therefore the trial court properly denied his motion to traverse.
II. The Good Faith Exception Validates the Search.
An affiant must state what facts, under the totality of the circumstances, answer the "commonsense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place." (Illinois v. Gates (1983) 462 U.S. 213, 230 [76 L. Ed. 2d 527, 543, 103 S. Ct. 2317].)
"When reviewing the grant or denial of a motion to suppress, an appellate court must uphold the trial courts express or implied findings of fact if the facts are supported by substantial evidence. However, we use our independent judgment to determine whether those facts establish probable cause. . . . [P] A reviewing court will consider the totality of the circumstances to determine whether the information contained in an affidavit supporting the application for a warrant establishes a fair probability that a place contains contraband or evidence of a crime. [Citation.] Doubtful or marginal cases are to be resolved by the preference to be accorded to warrants." (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716; see Caligari v. Superior Court (1979) 98 Cal. App. 3d 725, 729-730, 159 Cal. Rptr. 534 ["it is the duty of the court to save the warrant if it can in good conscience do so"].)
Where probable cause is lacking, the "good faith" exception requires a court to determine 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. [Citation.] But if such an officer would not reasonably have known that the affidavit (and any other supporting evidence) failed to establish probable cause, there is no reason to apply the exclusionary rule, because there has been no objectively unreasonable police conduct requiring deterrence." (People v. Camarella (1991) 54 Cal.3d 592, 606, 286 Cal. Rptr. 780, 818 P.2d 63 (Camarella [* 14] ).) Where the "the affidavit presented a close or debatable question on the issue of probable cause," the "good faith" exception applies. (Ibid; see People v. Machupa (1994) 7 Cal.4th 614, 618, fn. 1, 872 P.2d 114 ["good faith exception" a misnomer, because test is objective reasonableness].)
On appeal defendant reiterates a mistake made by trial counsel for the Bogdans, who claimed Richer only "thought he might have smelled green marijuana when about 100 yards from the barn." The affidavit states: "Also while standing and looking at [the barn] at this time [from "within 100 yards"] Your Affiant smelled briefly, what appeared to be the odor of green marijuana. Your Affiant asked Rist if he had also smelled the odor of marijuana. Rist told Your Affiant that he thought he had but that it had been so brief that he could not be sure." Thus, Richer did smell "green marijuana"; it was Rist who thought he smelled it too. Detecting the smell of contraband may supply probable cause, so long as the affiant is qualified to detect the distinctive odor. (Benjamin, supra, 77 Cal.App.4th at p. 273.)
Richers direct perception of fresh marijuana near the barn within two months of the affidavit by itself strongly tips the scale in favor of probable cause. But Richer had more than smell to go on. The indicia of cultivation found some months before was linked to the property by vehicles seen the day a truck was unloaded into defendants barn. Although the trial court stated the value of the indicia for probable cause was "close to zero," no doubt because the details of the indicia were not set forth in the affidavit, the officer could reasonably rely on the federal agents assertion about which names were contained in the chest, and link those names to the vehicle later seen on the property: Thus, the information was significant for the good faith evaluation. Finally, defendant operated a generator which was too large and ran too often to be chalked up to ordinary residential usage. These facts, coupled with the direct perception of the "fresh" marijuana, tend to show that marijuana cultivation was taking place in the barn. Therefore, even if we agreed with Judge Letton that the affidavit lacked probable cause, the facts show good faith without the thermal imaging evidence because the question of probable cause was debatable. (Camarella, supra, 54 Cal.3d at p. 606.)
We also believe the thermal imaging evidence is relevant to good faith, as did the trial court.
The defense argued that Leon could not apply because the problem with the affidavit stemmed from the officers legal error, not a factual one. The trial court stated that warrantless thermal imaging was legal at the time of this case, based on the Ninth Circuit Court of Appeals decision which was reversed in Kyllo. (See U.S. v. Kyllo (9th Cir. 1998) 190 F.3d 1041.) Defendant notes on appeal that a contrary California case (also involving the search of a home rather than a barn) concluded otherwise, albeit over a strong dissent. (See People v. Deutsch (1996) 44 Cal.App.4th 1224, 1233 (conc. & dis. opn. of Anderson, P.J.).)
Defendant asserts it is "the epitome of bad faith" for officers to follow a Ninth Circuit opinion over a California Court of Appeal opinion. We agree with defendant that a California peace officer is not free to follow nonbinding federal cases over binding California cases. However, here, neither the California case nor the federal case was binding because each involved a materially different fact: In both cases the warrantless thermal imaging device was directed at a house, rather than a barn, as in this case. We agree that it would have been error for a California trial court to follow a lower federal court case over a conflicting California appellate case. (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal. Rptr. 457, 460 P.2d 129; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.) But this jurisprudential argument does not show bad faith, that is, it does not show that a reasonably well-trained officer must have known that the use of thermal imaging information about a barn was improper in the face of conflicting decisions of the California and federal intermediate courts involving thermal imaging of houses. We agree that an officer must "have a reasonable knowledge of what the law prohibits." (Leon, supra, 468 U.S. at p. 919, fn. 20 [also approving training programs "that make officers aware of the limits imposed by the fourth amendment and emphasize the need to operate within those limits"].) But an officer is not held to the standards of an attorney, and need only "exercise reasonable professional judgment." (People v. Bradford, supra, 15 Cal.4th at p. 1292.) We cannot ordinarily expect a reasonably competent police officer to master the intricacies of the application to new facts (i.e., the barn) to conflicting state and federal intermediate appellate cases, when competent jurists often disagree on what law controls a given case. For Leon purposes, "the knowledge and understanding of law enforcement officers and their appreciation for constitutional intricacies are not be judged by the standards applicable to lawyers." (U.S. v. Cardall (10th Cir. 1985) 773 F.2d 1128, 1133.)
In other cases involving uncertain legal questions, courts have applied Leon. (See, e.g., United States v. Rowland (10th Cir. 1998) 145 F.3d 1194, 1207 ["Given the unsettled state of the law, it was not unreasonable for the officers to rely on the magistrates authorization"]; United States v. Henderson (9th Cir. 1984) 746 F.2d 619, 625 [because warrant "was based on a probable cause determination that comported fully with applicable legal standards at that time . . . agents reasonably relied on that warrant"] affd. other grounds, Henderson v. United States (1986) 476 U.S. 321 [90 L. Ed. 2d 299, 106 S. Ct. 1871].)
The law of thermal imaging as applied to structures other than houses is still unsettled, and the officers in this case made a choice within the range of reasonable jurists - after all, four members of the United States Supreme Court would have held the thermal imaging of a house was not a search. (Kyllo, supra, 533 U.S. at pp. 40-51 [150 L. Ed. at pp. 106-113] (dis. opn.).) Other courts have held or at least suggested that Leon applies to Kyllo errors. (U.S. v. Huggins (9th Cir. 2002) 299 F.3d 1039, 1044, cert. den. sub. nom Huggins v. United States (2002) 537 U.S. 1079, 154 L. Ed. 2d 579, 123 S. Ct. 681; see Lynch v. Com. (2002) 39 Va.App. 89, 94 [570 S.E.2d 871, 874] ["requiring [officers] to anticipate the constitutional standard announced in Kyllo is not reasonable"]; U.S. v. Holmes (D.Me. 2001) 175 F. Supp. 2d 62, 73 ["Because the warrant here was issued prior to [Kyllo]. . . the officers, affiants, and issuing judge relied on then-current caselaw holding that thermal imaging wasnot a search"]; clarified by U.S. v. Holmes (D.Me. 2002) 183 F. Supp. 2d 108, 110 [officers acted "in good faith"].)
There is no showing the officers knew the thermal imaging information was illegal. This is especially true because of the barn versus house issue we have already discussed. (See State v. Mordowanec (2002) 259 Conn. 94, 104 [788 A.2d 48, 54-55] [Kyllo "did not address the question of whether a search warrant would be required to conduct a thermal imaging scan of premises other than a home"].) Thus, although we need not decide whether Kyllo applies to a barn, that legal point is yet unsettled, showing Richer acted in good faith.
Another important fact is Richer did not rely on his own view, he consulted with a deputy district attorney, who also signed the affidavit. (Camarella, supra, 54 Cal.3d at p. 605, fn. 5, pp. 606-607; U.S. v. Freitas (9th Cir. 1988) 856 F.2d 1425, 1431-1432 [agents had no reason to question opinion of Assistant U.S. Attorney].) A reasonably well-trained officer would accept the opinion of the prosecuting attorney from his or her jurisdiction on a legal question. "We believe that an officers consultation with a government attorney is of even greater importance where, as here, a point of law relating to the scope of Fourth Amendment search and seizure was not yet settled at the time the warrant issued." (U.S. v. Brown (9th Cir. 1991) 951 F.2d 999, 1005.)
The trial court correctly denied the motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: KOLKEY, J., ROBIE, J.