Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TA108231, Kelvin D. Filer, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Brandon Niter appeals from a judgment entered after he pleaded no contest to possession of marijuana for sale, following the trial court’s denial of his motions to unseal a search warrant affidavit, to quash and traverse the search warrant and to suppress evidence. He contends the trial court erred in denying his motion to suppress evidence, arguing that the warrant was not supported by probable cause and “contained stale information.” He also contends the court erred in denying his request to unseal the search warrant affidavit. We affirm.
The motion to suppress was based on the arguments made in support of the motion to quash. Although Niter states that he is appealing from the denial of his motion to suppress, we conclude that he is challenging the denial of both motions.
BACKGROUND
I. Search Warrant
The search warrant was issued on September 1, 2009. It authorized the search of three residences, including the location where Niter was arrested, 9306 South Wall Street in Los Angeles. The public portion of the search warrant affidavit states that police believed a Main Street Crips gang member named Steven Johnson was living at or utilizing the three residences. On May 1, 2008, police recovered weapons and ammunition that belonged to Johnson. Police suspected that Johnson was “involved in a variety of crimes, including drug trafficking.” Between July 1, 2008 and August 1, 2009, Johnson routinely visited the residence at 9306 South Wall Street and also “appeared to have spent the night at this location.” In the morning on August 28, 2009, police saw Johnson exit that residence and drive off in his car which was parked outside. As stated in the search warrant affidavit: “Based on the frequency of Johnson’s visits to this location, as well as it’s [sic] discrete location, [police] believed this to be another ‘stash house’ or ‘safe house’ utilized by Johnson.”
II. Preliminary Hearing Evidence
On September 2, 2009, at about 6:00 a.m., the Los Angeles Police Department executed the search warrant at 9306 South Wall Street, a residence of approximately 500 square feet. Niter was at the location. Police recovered 13 plastic baggies containing what appeared to be marijuana, a digital scale with marijuana residue on it, $847 from Niter’s pockets, and $80 from the kitchen where the marijuana and scale were found. Niter had on his person keys that operated the door locks at the residence. Officer Pete Cabral, who recovered the items, formed the opinion that Niter possessed the marijuana for sale.
According to Officer Cabral, after Niter was advised of and waived his Miranda rights, Niter told a detective that he sold marijuana “for his kids and that he carrie[d] less than an ounce, so if he [wa]s ever detained by law enforcement, he wouldn’t be arrested. He would just get a ticket.”
A gang enforcement officer presented expert testimony that Niter was a member of the Main Street Mafia Crips gang, and that Niter committed this crime for the benefit of his gang.
III. Procedural Background
An information filed October 6, 2009 charged Niter with one count of possession of marijuana for sale (Health & Saf. Code, § 11359), and also alleged that he committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)).
Further statutory references are to the Penal Code.
On November 2, 2009, Niter filed a motion to unseal the search warrant affidavit and to quash and traverse the search warrant, and a motion to suppress evidence under section 1538.5. Niter argued there was no probable cause for issuance of the warrant because (1) there are “no facts listed in the affidavit regarding any criminal conduct occurring at 9306 South Wall Street” or any connection between Steven Johnson and 9306 South Wall Street; and (2) there is “no indication in the affidavit that Johnson ha[d] done anything illegal since his arrest in [sic] May 1, 2008, for weapons and ammunition violations.” Niter asserted that the information provided in the affidavit in support of the search warrant was stale by the time the Los Angeles Police Department requested the warrant (September 1, 2009). Niter requested that the trial court review in camera the sealed portion of the search warrant affidavit pursuant to the procedures outlined in People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs) for reviewing privileged information.
Niter argued below that the in camera review procedure mandated by Hobbs violated his constitutional rights to a public trial, due process and counsel. He does not assert this argument on appeal.
On December 4, 2009, the trial court heard Niter’s motions. The prosecutor argued that Niter did not have standing to challenge the search warrant because there was no evidence that Niter was an owner or renter of the residence searched, and therefore he did not have a reasonable expectation of privacy. The court decided to reserve the standing issue, and first conduct an in camera review of the search warrant affidavit pursuant to Hobbs.
After the in camera hearing, at which the judge and affiant, Detective Christian Mrakich, were present, the trial court informed the parties that it had reviewed the sealed portion of the search warrant affidavit and had asked the detective questions about the affidavit and the confidentiality of the informant. The court ordered the affidavit resealed, denying Niter’s request to unseal it. The court stated: “I’m not going to order the detective to disclose the identity of the confidential informant. I did, as I indicated, read the affidavit, and I’m satisfied that the information that was presented in that affidavit addresses the issue of staleness, and that at the time the warrant was executed, the information contained in the affidavit was not stale, and did, in fact, reflect Mr. Johnson may have been conducting narcotics activity at that particular location on Wall Street.” [¶] And it’s the court’s position the search warrant was properly issued.” The court denied Niter’s motions.
At this point, there was no need for the court to address the issue of Niter’s standing to challenge the search warrant.
On January 21, 2010, Niter waived his constitutional rights and pleaded no contest to possession of marijuana for sale. On the People’s motion, the trial court dismissed the gang enhancement allegation. The court sentenced Niter to the midterm of two years in prison, but suspended the sentence and placed Niter on probation for three years.
Niter filed a notice of appeal, stating that he was challenging the denial of his motion to suppress evidence under section 1538.5. He requested a certificate of probable cause, which the trial court issued.
On this court’s own motion, we ordered the record augmented with the search warrant and its underlying affidavit (both public and sealed portions).
DISCUSSION
Niter contends the trial court erred in denying his motion to suppress evidence. He argues that the search warrant “was not supported by probable cause and was stale.” He also asks this court to unseal the search warrant affidavit or, in the alternative, to “release information relating to the staleness of the affidavit.”
All or part of a search warrant affidavit may be sealed when disclosure will reveal or tend to reveal the identity of a confidential informant. (Hobbs, supra, 7 Cal.4th at p. 971.) Where a search warrant affidavit has been sealed, the trial court should follow certain procedures “to strike a fair balance between the People’s right to assert the informant’s privilege and the defendant’s discovery rights.” (Hobbs, supra, 7 Cal.4th at p. 972.) If the defendant challenges the issuance of the search warrant, the court should conduct an in camera hearing and “determine first whether there are sufficient grounds for maintaining the confidentiality of the informant’s identity.” (People v. Galland (2008) 45 Cal.4th 354, 364.) If there are, the court should then determine whether the sealing of the affidavit, or any part of it, is necessary to protect the informant’s identity. (Ibid.; Hobbs, supra, 7 Cal.4th at p. 972.)
If the trial court concludes the affidavit was properly sealed and the defendant has moved to quash the warrant, “the court should proceed to determine whether, under the ‘totality of the circumstances’ presented in the search warrant affidavit... there was a ‘fair probability’ that contraband or evidence of a crime would be found in the place searched pursuant to the warrant.” (Hobbs, supra, 7 Cal.4th at p. 975, quoting Illinois v. Gates (1983) 462 U.S. 213, 238.) The court may disturb the warrant “‘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.’” (Hobbs, supra, 7 Cal.4th at p. 975.) “If the court determines... that the affidavit and related materials furnished probable cause for issuance of the warrant... the court should simply report this conclusion to the defendant and enter an order denying the motion to quash.” (Ibid.) Whether the magistrate had a substantial basis for concluding there was probable cause to search is a question of law and therefore subject to independent review. (People v. Camarella (1991) 54 Cal.3d 592, 601.)
Although Niter states that he is appealing from the denial of his motion to suppress evidence, we review the trial court’s denial of Niter’s motion to quash the warrant because Niter is challenging the finding of probable cause. Absent success on his motion to quash, there is no ground to suppress the evidence seized during the search.
On appeal Niter does not challenge the denial of his motion to traverse the search warrant. We note that our independent review of the search warrant affidavit, including the sealed portion, did not cause us to suspect that any material misrepresentations or omissions were made.
Niter asserts that the warrant was not supported by probable cause and “contained stale information.” “Information that is remote in time may be deemed stale and thus unworthy of consideration in determining whether an affidavit for a search warrant is supported by probable cause. Such information is deemed stale unless it consists of facts so closely related to the time of the issuance of the warrant that it justifies a finding of probable cause at that time. The question of staleness turns on the facts of each particular case. [Citations.] If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale. [Citation.]” (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) “Although there is no bright line rule indicating when information becomes stale [citation], delays of more than four weeks are generally considered insufficient to demonstrate present probable cause.” (Ibid.)
We have independently reviewed the public and sealed portions of the search warrant affidavit. We also have examined the sealed transcript of the in camera hearing. Viewing the totality of the circumstances, the affidavit, including the sealed portion, established a fair probability that evidence of a crime or contraband would be found at 9306 South Wall Street. As the trial court stated on the record during the public proceedings, “at the time the warrant was executed, the information contained in the affidavit was not stale, and did, in fact, reflect Mr. Johnson may have been conducting narcotics activity at that particular location on Wall Street.”
Because we conclude the warrant was supported by probable cause, we need not review Niter’s claim that it was unreasonable for the officers to rely on a search warrant that lacked probable cause.
We reject Niter’s request that we unseal the affidavit or “release information relating to the staleness of the affidavit.” Disclosure of the sealed portion of the affidavit or information therein would have revealed or tended to reveal the informant’s identity, and therefore sealing was proper. (Hobbs, supra, 7 Cal.4th at p. 972.)
The trial court did not err in denying Niter’s motions to unseal the search warrant affidavit, to quash and traverse the search warrant and to suppress evidence.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.