Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06-0000150
BUTZ, J.Following his plea of no contest to one count of possession of methamphetamine for sale, defendant Victor Allen Michel appeals the denial of his motion to quash and traverse the search warrant. Since the issuance of the warrant was largely based on information obtained from a confidential reliable informant (CRI), defendant requests we independently review the sealed attachment supporting the warrant and the in camera proceedings pursuant to People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs). We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Following the execution of a search warrant at defendant’s home on January 31, 2006, defendant was charged with multiple drug offenses, specifically related to methamphetamine, and receiving stolen property. It was also alleged defendant was personally armed with a firearm while possessing methamphetamine for sale.
Defendant moved to quash and traverse the search warrant, and suppress the evidence found during the search, on the grounds that the warrant was not supported by probable cause, the affidavit was materially inaccurate, and in executing the search the police exceeded the scope of the warrant. Because a significant portion of the affidavit supporting the warrant was based on information from a CRI, this portion was sealed. Accordingly, defendant requested the court conduct an in camera review of the sealed affidavit, pursuant to Hobbs.
Defendant also filed a supplement to the motion for suppression of evidence, contending the warrant was facially over broad. In the supplement, filed on November 17, 2006, defendant indicated that in early December 2006 (sic), he had entered into an automobile transaction with Gilbert Wilden which had “created animosity” between defendant, Ellie Mae Clark and Dave Coke. Defendant also indicated he had been the victim of a home invasion robbery on December 12, 2006 (sic). He provided the sheriff’s department with the names of people he thought might be responsible for the robbery. These included, Ellie Mae Clark, Dave Coke, “D.J.,” Donny Ball, Jason Kitchen, Joe, “Cling Cling” and Rachel. A person named William Dixon was arrested, but the charges were ultimately dropped. Also, Ellie Mae Clark’s daughter told defendant that Ellie Mae Clark and Dave Coke “were behind” the home invasion robbery of defendant’s home. Defendant also submitted questions for the court to ask in the in camera hearing.
Presumably, defendant’s references to events taking place in December 2006 were meant to be dates in December 2005.
After conducting the in camera hearing, the court denied defendant’s motion. The court found sufficient grounds to maintain the CRI confidentiality. The court also found defendant’s claims regarding the affidavit were not supported. Specifically, the court found there was insufficient evidence to demonstrate the warrant was false or made with reckless disregard for the truth or falsity of statements made within it, and there was sufficient probable cause to support the issuance of the warrant.
The motion to suppress was renewed at the superior court level and the court denied the motion. The court found the CRI was not a suspect or participant in the home invasion robbery and that incident was not how the informant came to law enforcement’s attention. The court also found there was no basis to disclose the CRI’s identity, because the CRI did not have personal knowledge of defendant’s activities and was not a percipient witness to the crime charged.
Following the denial of this motion, defendant pleaded no contest to possessing methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Under Proposition 36, he was placed on formal probation for three years.
DISCUSSION
Defendant has requested we independently review sealed attachment A to the affidavit and the in camera proceedings on the motions to quash and traverse the warrant and reveal the identity of the CRI to determine whether the trial court complied with the requirements of Hobbs.
Under Hobbs, “[i]t must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant’s identity.” (Hobbs, supra, 7 Cal.4th at p. 972.)
“If the affidavit is found to have been properly sealed, and the defendant has moved to traverse the warrant, the court should then proceed to determine 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. Generally, in order to prevail on such a challenge, 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.’” (Hobbs, supra, 7 Cal.4th at p. 974.)
“Similarly, if the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant (Pen. Code, § 1538.5), the court should proceed to determine 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. [Citations.] In reviewing the magistrate’s determination to issue the warrant, it is settled that ‘the warrant can be upset only if the affidavit fails as a matter of law . . . to set forth sufficient competent evidence supportive of the magistrate’s finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony.’” (Hobbs, supra, 7 Cal.4th at p. 975.)
Here, the trial court reviewed the sealed portion of the affidavit and conducted the requisite in camera hearing. Officer Christian Sachs, the affiant, was sworn and testified concerning the CRI and the sealed portion of the affidavit. The court found sufficient grounds to keep the CRI’s identity confidential and to seal the portions of the affidavit that were sealed by the magistrate. The court also found there was not sufficient evidence the warrant rested on intentionally or knowingly false statements or omissions and accordingly denied defendant’s motion to traverse the warrant. Lastly, the court found the warrant was supported by probable cause and thus denied defendant’s motion to quash the warrant and suppress the evidence seized.
After reviewing the transcript of the in camera hearing, and both the public and sealed portions of the search warrant affidavit, we conclude the trial court followed the procedures described in Hobbs. After questioning the affiant under oath, including the areas encompassed in the nine questions defense counsel proposed, the court concluded that good cause existed to keep the CRI’s identity confidential and that the sealed portion of the warrant should remain sealed to protect the CRI. We find no error with these conclusions. We also find there were no material misrepresentations or omissions in the affidavit. Finally, we find that, when viewed together, the public and sealed portions of the affidavit demonstrate there was probable cause for issuance of the warrant. Because the affidavit provided probable cause to search defendant’s residence, the trial court properly denied defendant’s motion to quash the search warrant and suppress the evidence seized during the search.
DISPOSITION
The judgment (order of probation) is affirmed.
We concur: BLEASE, Acting P.J. HULL, J.