Opinion
A149386
01-11-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD LEE BOLTON, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR 15-80254-02)
Appellant Richard Lee Bolton, Jr. (appellant) appeals following his no contest plea to one count of maintaining a location for the unlawful sale of a controlled substance (Health and Saf. Code, § 11366). He contends the search warrant that yielded the evidence underlying the charge was not supported by probable cause and the trial court erred in other respects related to the search warrant. We affirm.
BACKGROUND
In July 2014, Mendocino Major Crimes Task Force Special Agent Pete Hoyle applied for a warrant to search the premises at 25056 Robin Place in Willits. Hoyle's affidavit in support of the application for a search warrant relied in substantial part on an attached "Exhibit A" describing information reported to Hoyle by an informant. Exhibit A stated that on July 2, Hoyle met with Courtney Figghoblyn, who told Hoyle she previously was in a relationship and lived with appellant. She still has contact with him because they have a child together and share child supervision. Figghoblyn told Hoyle that appellant had been growing marijuana in the rear yard of the Robin Place residence for the past two to three years. He ships it to Texas and also acts as a broker to help others sell marijuana. Figghoblyn told Hoyle she had been at the Robin Place residence within the past week and saw what she estimated to be 50 pounds of packaged marijuana. Appellant said he planned to ship the marijuana to Texas. Figghoblyn contacted Hoyle again during the weekend of July 12; she said she had been at appellant's residence that weekend and had seen about 10 pounds of marijuana packaged in one pound bags. Figghoblyn told Hoyle she was providing the information about appellant's activities because she "does not want their infant child exposed to drugs [sic] trafficking."
Exhibit A was sealed when filed but later unsealed by the trial court.
Hoyle's affidavit stated that he drove past 25056 Robin Place on July 2, 2014, and saw a 2005 Ford truck parked in front. Hoyle determined from the license plate that the truck was registered to appellant. On July 3, Hoyle spoke to Mendocino County Sheriff's Deputy Wells, who was assigned as an investigator on the Mendocino County Marijuana Eradication Team. Wells told Hoyle he flew over the Robin Place residence on July 3 and saw marijuana plants growing in the rear yard. Wells had seen marijuana from the air at least 200 times and is familiar with its appearance. "[D]ue to the amount of foliage," Wells was not able to determine how many plants were in the yard.
Hoyle's affidavit requested that the identities of informants be kept confidential, referring to informants "X" and "Y." Figghoblyn was later disclosed to be informant X, but neither Hoyle's affidavit nor the attached Exhibit A referred to any information obtained from an informant "Y."
A magistrate issued the requested search warrant and Hoyle searched 25056 Robin Place, recovering weapons, ammunition, marijuana plants, and bagged marijuana.
In July 2015, appellant was charged by information with one count of possessing marijuana for sale (Health & Saf. Code, § 11359) and one count of cultivation of marijuana (Health & Saf. Code, § 11358). Trial on the charges ended in a mistrial because the jury was unable to reach a unanimous verdict on either count.
In May 2016, prior to a second trial, appellant moved to unseal Exhibit A to the search warrant affidavit and to reveal the identifies of all confidential informants. He also moved to quash the search warrant and to suppress the evidence obtained during the search under the warrant. The trial court unsealed Exhibit A and denied appellant's motion to quash the warrant for lack of probable cause.
In June 2016, appellant filed a supplemental motion to disclose the identity of informant "Y," referenced in Hoyle's affidavit; the trial court informed appellant it had learned during an in camera hearing that there was no informant "Y." Appellant also requested a Franks evidentiary hearing regarding alleged misstatements in Hoyle's search warrant affidavit. The trial court denied the request.
Franks v. Delaware (1978) 438 U.S. 154 (Franks).
In August 2016, respondent amended the information to add a count alleging appellant violated Health and Safety Code section 11366 (maintaining a location for the unlawful sale of a controlled substance). Pursuant to a plea agreement, appellant pled no contest to that offense, and the trial court dismissed the other charges on the prosecutor's motion. The trial court suspended imposition of sentence and placed appellant on probation for three years, subject to various conditions.
This appeal followed.
DISCUSSION
I. The Search Warrant Was Supported by Probable Cause
A. Legal Framework
The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
" 'The question facing a reviewing court asked to determine whether probable cause supported the issuance of [a] warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] "The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, 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." [Citation.]' [Citations.] Whether an affidavit provided the magistrate ' "substantial basis" ' for concluding there was probable cause is an issue of law 'subject to our independent review.' [Citation.] 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. [Citations.] 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.' " (People v. French (2011) 201 Cal.App.4th 1307, 1315.)
"It is a long established rule that a search warrant affidavit containing only the opinions and conclusions of the affiant, without disclosure of the underlying facts, will not constitute 'probable cause supported by oath or affirmation' as required by the Fourth Amendment of the United States Constitution." (People v. Smith (1986) 180 Cal.App.3d 72, 86.) Accordingly, the underlying facts included in the affidavit and the source of those facts are central to this court's review. Critically, "[t]he courts have recognized a distinction between informers who are virtual agents of the police and 'citizen informants' who are chance witnesses to or victims of crime. The former are often criminally disposed or implicated, and supply their 'tips' to the authorities on a recurring basis, in secret, and for pecuniary or other personal gain. The latter are innocent of criminal involvement, and volunteer their information fortuitously, openly, and through motives of good citizenship. [Citations.] Because of these characteristics, the requisite showing of reliability in the case of a citizen informant is significantly less than that demanded of a police informer." (People v. Ramey (1976) 16 Cal.3d 263, 268-269 (Ramey); accord People v. Brown (2015) 61 Cal.4th 968, 982 (Brown); People v. Scott (2011) 52 Cal.4th 452, 475-476 (Scott).)
In particular, there is no requirement that the information provided by a citizen informant be corroborated for it to constitute probable cause for issuance of a warrant. As Ramey explained, "It may therefore be stated as a general proposition that private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable. This does not, of course, dispense with the requirement that the informant -- whether citizen or otherwise -- furnish underlying facts sufficiently detailed to cause a reasonable person to believe that a crime had been committed and the named suspect was the perpetrator; and the rule also presupposes that the police be aware of the identity of the person providing the information and of his status as a true citizen informant. [Citation.] In short, probable cause will not be provided by conclusionary information or anonymous informants, but neither a previous demonstration of reliability nor subsequent corroboration is ordinarily necessary when witnesses to or victims of criminal activities report their observations in detail to the authorities." (Ramey, supra, 16 Cal.3d at pp. 268-269; accord People v. Stanley (2017) 18 Cal.App.5th 398; see also People v. Smith (1976) 17 Cal.3d 845, 852 ["An untested citizen-informant who has personally observed the commission of a crime is presumptively reliable."]; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1045 ["Information provided by a crime victim or chance witness alone can establish probable cause if the information is sufficiently specific to cause a reasonable person to believe that a crime was committed and that the named suspect was the perpetrator."].)
Where an affidavit supporting a search warrant contains information derived from unlawful conduct as well as other untainted information, "the reviewing court must excise all tainted information but then must uphold the warrant if the remaining information establishes probable cause." (People v. Weiss (1999) 20 Cal.4th 1073, 1081 (Weiss).)
B. Analysis
Appellant contends the trial court erred in denying his motion to suppress the evidence seized pursuant to the search warrant because the warrant was not supported by probable cause. He argues Deputy Wells' aerial observations of marijuana cultivation must be excised from the probable cause analysis because the affidavit lacked sufficient detail from which the magistrate could have determined the aerial surveillance was constitutional. He further argues that Figghoblyn's observations are insufficient to support issuance of the warrant because they lacked independent corroboration. We conclude there was probable cause for the search warrant.
For purposes of the present appeal, we presume the affidavit included insufficient information showing the constitutionality of the aerial surveillance, and we therefore consider the adequacy of the affidavit without consideration of Deputy Wells' aerial observations. (See Weiss, supra, 20 Cal.4th at p. 1081.) That essentially leaves for consideration the observations Figghoblyn relayed to Special Agent Hoyle and Hoyle's confirmation that appellant had some connection to the house identified by Figghoblyn (because appellant's car was parked in front.) We do not understand appellant to argue that Figghoblyn's observations were insufficient to establish probable cause if no corroboration was required. Instead, appellant contends corroboration of Figghoblyn's observations was required because of her "severed romantic relationship with [appellant] and her motivation regarding child custody issues."
Such a contention would be without merit. The basis for Figghoblyn's knowledge of appellant's criminality was clear and she provided specific information to Special Agent Hoyle regarding her observations. (See Scott, supra, 52 Cal.4th at p. 483.) In other words, she "furnish[ed] underlying facts sufficiently detailed to cause a reasonable person to believe that a crime had been committed and [appellant] was the perpetrator." (Ramey, supra, 16 Cal.3d at pp. 268-269; see also Gillan, supra, 147 Cal.App.4th at p. 1045.)
No corroboration was required. As explained previously, citizen informants are "presumptively reliable." (People v. Smith, supra, 17 Cal.3d at p. 852.) Figghoblyn was a private citizen who witnessed criminal acts that she reported to the police without the cover of anonymity. Accordingly, she was a citizen informant within the meaning of Ramey, supra, 16 Cal.3d at pages 268-269. Appellant argues the presumption of reliability does not apply because Figghoblyn's relationship with appellant "cast[s] doubt upon" the information she provided the police. (Ibid.) In particular, he asserts that Figghoblyn may have been motivated to gain some advantage in custody proceedings because she told Special Agent Hoyle she did not want her infant exposed to appellant's drug dealing. But appellant cites no authority that this is the sort of circumstance that can undermine the presumption of reliability. A parent who reports drug dealing by a co-parent in order to limit the co-parent's access to her child is analogous to a parent who reports neighborhood drug dealing in order to protect her child while playing outside. Figghoblyn's motive to protect her infant from appellant's criminality does not make her equivalent to a police informant who is "often criminally disposed or implicated, and suppl[ies] 'tips' to the authorities on a recurring basis, in secret, and for pecuniary or other personal gain." (Ramey, supra, 16 Cal.3d at pp. 268-269.) Appellant's argument would require magistrates reviewing search warrant requests to speculate regarding the motives of citizen informants who have prior intimate relationships with the targets of warrants, or to categorically exclude such persons from the presumption of reliability. We decline to impose either requirement. (See Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 576 (Humphrey) [rejecting a different categorical exclusion and stating, "[w]e have never conditioned a victim's presumptive reliability as petitioner proposes, and decline to do so now"].)
Furthermore, the possibility that a citizen witness will provide a false report is substantially mitigated by the lack of anonymity. (Humphrey, supra, 29 Cal.4th at pp. 575-576 [" 'Such a person, who may expect to be called to testify after an arrest, and may be exposing himself to an action for malicious prosecution if he makes unfounded charges, is more than a mere informer who gives a tip. . . .' "]; People v. Stanley, supra, 18 Cal.App.5th at p. 405 ["Unlike information provided by an anonymous tip, information from a true citizen informant is considered reliable because a citizen informant 'can be held responsible if her allegations turn out to be fabricated.' "]; see also Brown, supra, 61 Cal.4th at p. 982; Scott, supra, 52 Cal.4th at p. 476; cf. Higgason v. Superior Court (1985) 170 Cal.App.3d 929, 953 ["Every citizen is entitled to be secure from the possibility that angry neighbors, misguided practical jokers, ex-spouses, heartbroken ex-lovers or other personal enemies will provide anonymous information leading to police intrusion into their homes and personal effects."] (Italics added.).) These authorities suggest that significant indication of a motive to lie is required to overcome the presumption of reliability that attaches to an identified citizen informant. Appellant has not overcome that presumption in the present case.
Because Figghoblyn's observations as reported to Special Agent Hoyle were alone sufficient to support the finding of probable cause, the trial court did not err in denying appellant's motion to quash the warrant. II. The Trial Court Did Not Err in Failing to Hold a Franks Hearing
Appellant contends the trial court erred in denying his request for a hearing pursuant to Franks, supra, 438 U.S. 154, which provides a defendant "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." (People v. Panah (2005) 35 Cal.4th 395, 456.) Under Franks, a trial court "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 support a finding of probable cause." (Panah, at p. 456.) "The deliberate falsity or reckless disregard whose impeachment is permitted . . . is only that of the affiant, not of any nongovernmental informant." (Franks, at p. 171.) We review the trial court's denial of an evidentiary hearing de novo. (Panah, at p. 457.)
Appellant based his request for a Franks hearing on "material misstatements of fact" contained in Exhibit A of the affidavit, which was Special Agent Hoyle's summary of his July 2014 interview with Figghoblyn. Appellant argued that the statements attributed to Figghoblyn by Hoyle were "significantly different" from statements attributed to Figghoblyn in a summary of a different interview conducted by the District Attorney's investigator, N. Butch Gupta, in December 2015. For example, Figghoblyn told Gupta appellant started growing marijuana in 2013, while she told Hoyle in 2014 that appellant had been growing marijuana for the past two or three years. Figghoblyn told Gupta she saw pounds of marijuana in the trunk of appellant's car on more than one occasion, but only described one instance of seeing large amounts of marijuana in the house, while she reported two such instances to Hoyle. Appellant asserted below that Hoyle's "misstatements and embellishment of facts material to a probable cause determination reflect[] a reckless indifference to the truth, and, as such, an intent to deceive the magistrate."
Appellant's claim is without merit. At the outset, we note that Figghoblyn's two accounts were given a year-and-a-half apart and are not so different as to give rise to an inference of deception. It appears Figghoblyn described somewhat different incidents to Hoyle and Gupta, and it appears she had different recollections regarding the length of time appellant had been growing marijuana. According to the prosecutor below, Gupta had not seen the summary of Figghoblyn's July 2014 interview and, thus, he was not able to ask her to clarify any discrepancies. More fundamentally, appellant has failed to explain why any falsity or reckless disregard for the truth should be attributed to Special Agent Hoyle rather than to Figghoblyn, as required to justify a Franks hearing. (Franks, supra, 438 U.S. at p. 172.) Either of Figghoblyn's accounts would have been sufficient to establish probable cause for a warrant, so there is no basis to conclude Hoyle had reason to embellish Figghoblyn's statements. The trial court did not err.
III. Appellant Has Not Shown Prejudicial Error as to Informant "Y"
When a defendant seeks the identity of a confidential informant for the purpose of traversing or quashing a warrant, he may request that the court conduct an in camera hearing to determine "whether sufficient grounds exist for maintaining the confidentiality of the informant's identity." (People v. Hobbs (1994) 7 Cal.4th 948, 972.) "In all instances, a sealed transcript of the in camera proceedings, and any other sealed or excised materials, should be retained in the record along with the public portions of the search warrant application for possible appellate review." (Id. at p. 975.) However, in cases where the record is incomplete, " ' "reversal is indicated only where critical evidence or a substantial part of a [record] is irretrievably lost or destroyed, and there is no alternative way to provide an adequate record so that the appellate court may pass upon the question sought to be raised." ' " (People v. Galland (2008) 45 Cal.4th 354, 370.)
In the present case, the search warrant affidavit mentioned an informant "X" (revealed to be Figghoblyn) and an informant "Y." In particular, it stated, "Your affiant requests that the identity of 'X' and 'Y' and the identity of any other confidential informant(s) referred to in this affidavit be kept confidential." Appellant requested the identity of informant "Y," but the trial court informed appellant's counsel there was no informant "Y." The court said that information was based on an in camera hearing, but there is no transcript of any such hearing.
This court granted appellant's motion to augment the record to include the transcript, but the clerk of the superior court responded by declaration dated April 26, 2017 that there "was no in camera proceeding regarding [a]ppellant's motion to seal and quash the search warrant and disclose confidential informants."
In any event, while Special Agent Hoyle's affidavit refers in passing to a confidential informant "Y", there is no reference to such an informant in Exhibit A. Appellant fails to explain how the trial court's failure to record the in camera hearing could possibly have prejudiced his effort to traverse or quash the warrant when the warrant was not based on any information from an informant "Y." His claim fails.
Appellant asserted below that informant "Y" may have been a material witness who could have exonerated appellant by testifying he did not live at the Robin Place residence. However, appellant fails to explain why or present authority that he was entitled to disclosure of the informant's identity on that basis, assuming the informant existed, or why the lack of a record of the hearing was prejudicial. --------
DISPOSITION
The trial court's judgment is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.