Opinion
F074028
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. ERWIN CORREA, Defendant and Appellant.
C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PCM306578)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary M. Johnson, Judge. C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Meehan, J. and Ellison, J.†
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INTRODUCTION
Appellant Erwin Correa pled guilty to a misdemeanor public nuisance count after his motion to suppress pursuant to Penal Code section 1538.5 was denied. Correa contends the trial court erred in denying his motion to suppress because the affidavit in support of the search warrant failed to establish probable cause. We affirm.
References to code sections are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
Because Correa challenges only the denial of his motion to suppress, we focus our recitation of facts and procedure on those relevant to the issue.
On September 19, 2014, Porterville Police Sergeant Chris Contreras applied for and was granted a search warrant for Correa's residence. In his affidavit in support of the search warrant, Contreras stated he had been employed by the Porterville Police Department since March 2005. Prior to being hired in Porterville, Contreras was working for the Farmersville Police Department, commencing in 2002.
In July 2007, Contreras was assigned to investigations in the general investigations unit, where he conducted hundreds of investigations into various felonies. In 2008, he was assigned to a unit that focused on gang and narcotics-related crimes. In 2010, Contreras began working as a patrol officer in a K-9 unit. In 2012, he was promoted to sergeant.
Contreras attended numerous training courses presented by various agencies, including the California Department of Justice. He also earned an associate of arts degree in social science and a bachelor of science degree in criminal justice management.
In the affidavit, Contreras stated he was assigned as watch commander on September 4, 2014. He reviewed numerous complaints and calls for service related to ongoing complaints from Correa that "dogs in his neighborhood continually bark and disturb his peace." Correa had "issued seven City Ordinance violation citations for 'barking dog complaints' " against the residents directly west of Correa's house.
Between September 4 and the date of the affidavit, Contreras conducted an investigation, interviewing "over 20 witnesses." All the witnesses reported that Correa deliberately antagonized and tormented the dogs. Correa engaged in several different actions to antagonize the animals, including banging on the fence, howling and barking like a dog, yelling and swearing at the dogs, using an amplified horn similar to a car horn, and using a "high pitch dog whistle."
As part of his investigation, Contreras obtained video evidence from neighbors that depicted Correa yelling "vulgar curse words" that were heard by surrounding neighbors, and that included audio of the high-pitched sound coming from Correa's backyard. He had video evidence where Correa was heard howling and barking like a dog. Contreras was provided photographic evidence of a sign Correa erected in his backyard, facing his neighbors, which read "EAT SHIT." Contreras also obtained photographic evidence that Correa had placed two large halogen lights in his backyard, facing into his neighbors' yard and house.
Contreras opined that a search of Correa's residence would reveal evidence that Correa "maliciously torments animals by using amplified devices" and "then falsely reports that his peace [has been] disturbed." Contreras also expected a search to uncover evidence that Correa "is continually stalking and harassing numerous neighbors that live next to him." The affidavit asked for a warrant to search the house, garage, any outbuildings and grounds, as well as any vehicles on the property belonging to Correa.
The affidavit asked to search for and seize any items capable of producing a high-pitched or honking sound as described by neighbors; any "vulgar signs" directed toward neighbors; any documents describing how to annoy, harass, or torment animals or humans; any documents or other evidence establishing the filing of a false police report; and anything else that tends to show evidence of maintaining a public nuisance.
A felony complaint was filed against Correa on September 23, 2014. On October 2, 2014, a criminal protective order was issued restraining Correa from having contact with multiple persons.
The preliminary hearing was held on December 15, 2014. Contreras testified that the investigation began as a "result of numerous and unusual amount of calls for service" by Correa complaining about his neighbors. Contreras investigated and spoke with the family to the east of Correa and the family to the west of Correa. He also spoke with the other neighbors living near Correa. In all, he spoke with 15 to 20 people, all neighbors of Correa, as part of his investigation. All of them indicated they "avoid being in their backyard because of Mr. Correa." During the course of his investigation, Contreras did not recall hearing any of the dogs in the area barking.
After obtaining the search warrant, Contreras and Officer Bray went to Correa's house to conduct the search. Initially, Correa opened the door, but then attempted to deny them entry. Correa tried to "forcefully close the door" on the officers. Contreras and Bray placed Correa in handcuffs and sat him in the living room before conducting a search.
During the search, a car horn hooked up to a battery was found on Correa's back patio; an electronic device labeled "Bark Solver," which was a dog whistle, was on a tool chest in the garage near the back patio. The sign saying, "Eat shit" was along the fence in Correa's backyard. Also in the backyard was a mature marijuana plant and a "significant amount" of "processed marijuana" on the patio. Correa did not have a current physician's recommendation for marijuana.
Correa was held to answer. The criminal protective order was modified to reflect the correct first name of Correa. A modified criminal protective order was filed in December 2015.
The information filed January 6, 2015, charged Correa with multiple offenses, including cultivation of marijuana; possession of more than 28.5 grams of marijuana; resisting or obstructing a peace officer in the performance of his duties; and being a public nuisance. It also was alleged that Correa previously suffered four narcotics related convictions.
On June 24, 2015, Correa filed a motion to suppress evidence pursuant to section 1538.5. The motion asserted the issuance of the search warrant was not supported by probable cause because the affidavit failed to set forth sufficient facts that Correa "[tormented] any animal" or is "continually stalking and harassing numerous neighbors." The People filed written opposition to the motion to suppress. Correa filed a reply to the opposition.
The trial court held a hearing on the motion to suppress on September 24, 2015. At the hearing, Correa argued there was no probable cause for issuance of the warrant and "no good faith exception" to the warrant requirement. The People responded that the probable cause showing is that "there might be evidence of a crime or contraband." The People opined that probable cause of a defendant's guilt did not have to be established in an affidavit for a search warrant, unlike an arrest warrant.
In ruling on the motion to suppress, the trial court stated:
"In analyzing this and I read the warrant itself, it talks about ... the investigation of what all these individuals have related to the officer. He was going to do an investigation of animals being tormented by Mr. Correa and it says stalking and harassing, which I know that Counsel is focusing on stalking but harassing is what I read and based on all of the evidence that the officer had before him and presented to me, I felt there was sufficient evidence and probable cause for them to conduct the investigation to further the investigation and in doing so, they needed and
asked for the search warrant and there was probable cause as far as I could tell in my estimation, in my opinion, for that investigation to be furthered by the search warrant.
"I will tell you that things that I focused on is that there was allegedly a whistle or a horn or some sort of device that he was using on these animals, and so I think there's clearly evidence or that's clearly probable cause for them to investigate further.
"In fact he is tormenting these dogs with some sort of a device and the lights that were erected to shine into windows of the neighbors would be in my estimation evidence of possible harassment of the neighbors, the sign that reads, "eat shit," those types of things, the whistle, the horns, the devices, and the 20 people who said that all of this was going on harassing the neighbors and the barking dogs causing the dogs to bark and being tormented by some sort of device, that's what caused me to have probable cause to issue the warrant."
The trial court further stated that it was not asked to issue an arrest warrant. The search warrant was granted "because I believe there's probable cause for them to search and investigate more to see what if these people were claiming was going to be further bolstered by what they found. That's why I issued the warrant and that happens all the time in lots of cases. That's what search warrant[s] do." The trial court then concluded with:
"I am not sure how this is, quite frankly, any different than 99.9 percent of the search warrants that come through this court and not just this courtroom but the court as a whole in this county on a daily basis.
"I am going to deny the motion to quash."
After his motion to suppress was denied, Correa pled guilty to one misdemeanor count of violating section 372, public nuisance, in exchange for dismissal of the other counts. The criminal protective order was to remain in place. The trial court imposed a sentence of 24 months' probation.
He also pled guilty to a misdemeanor charge in another case arising out of his violating the criminal protective order issued in this case.
The trial court imposed a sentence of two years' probation at the hearing. The minute order erroneously reflects a three-year term of probation.
Correa filed a notice of appeal, which initially was heard by the appellate division of the superior court. On July 8, 2016, the appeal was ordered transferred to this court.
DISCUSSION
Correa contends the affidavit did not provide probable cause for the issuance of a search warrant because: (1) the information in the affidavit was "stale" or vague as to time; (2) the affidavit failed to establish an ongoing pattern of behavior that continued to the present in that it had no temporal context; and (3) the affidavit failed to establish probable cause that criminal activity was occurring. He also contends the good faith exception to a warrant requirement is inapplicable here.
Fourth Amendment
The Fourth Amendment to the Constitution of the United States 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." A magistrate's task in deciding whether probable cause exists to issue a search warrant has been described as "simply to make a practical, common-sense 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." (Illinois v. Gates (1983) 462 U.S. 213, 238 (Gates).)
The California Constitution also contains a prohibition against unreasonable searches and seizures. Article 1, section 13 of the California Constitution is an almost word for word replication of the United States Constitution's Fourth Amendment.
Legal Principles
"In determining whether an affidavit is supported by probable cause, the magistrate must make a 'practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.) Probable cause may be established through evidence that would not be admissible at trial, including an officer's information and belief. (People v. Varghese (2008) 162 Cal.App.4th 1084, 1103.) A suspect's arrest record is also relevant and part of the totality of the circumstances. (People v. Aho (1985) 166 Cal.App.3d 984, 992.)
Magistrates may also rely upon the expertise of officers about where evidence of a crime would likely be found. (People v. Lazarus (2015) 238 Cal.App.4th 734, 764; People v. Pressey (2002) 102 Cal.App.4th 1178, 1183.) A suspect's residence is a logical place to look for specific incriminating items, depending upon the nature of the crime and items sought. (People v. Pressey, supra, at p. 1183; People v. Miller (1978) 85 Cal.App.3d 194, 204; see People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 167-168.)
A warrant is presumed valid and a defendant seeking to quash a search warrant bears the burden of proving it is not supported by probable cause. (People v. Amador (2000) 24 Cal.4th 387, 393.) A reviewing court should pay great deference to a magistrate's determination of probable cause. (Gates, supra, 462 U.S. at pp. 236, 238-239.) "We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
" 'In reviewing the denial of [a motion to suppress evidence], we must view the record in the light most favorable to respondent [citation], uphold all express and implied factual findings of the trial court that are supported by substantial evidence, then independently apply the proper federal constitutional standards to those facts [citations].' [Citation.] ' "[T]he power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power ...." [Citations.]' " (People v. Gomez (2004) 117 Cal.App.4th 531, 537.)
" '[Probable] cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens' demands.... In making a determination of probable cause the relevant inquiry is not whether particular conduct is "innocent" or "guilty," but the degree of suspicion that attaches to particular types of noncriminal acts.' " (People v. Costello (1988) 204 Cal.App.3d 431, 446.)
Not Remote in Time
Correa contends that the information in the affidavit was "stale." We disagree.
In the affidavit, Contreras stated his investigation began on September 4, 2014, into "ongoing complaints" by Correa that dogs in the neighborhood "continually bark and disturb his peace." After conducting an investigation between September 4 and 19, 2014, and interviewing "over 20 witnesses," Contreras concluded that Correa was engaging in behavior that constituted a public nuisance. Multiple witnesses reported Correa was antagonizing and tormenting the dogs, sometimes using a device to create a high-pitched sound or amplified horn; and that he was harassing neighbors by yelling "vulgar curse words" that could be heard in the surrounding neighborhood, pointing strong halogen lights into a neighbor's house and yard, and posting a sign facing neighbors that read "EAT SHIT."
"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." (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652 (Hulland).) 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. (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718 (Mikesell).) The "question of staleness turns on the facts of each particular case." (Hulland, supra, 110 Cal.App.4th at p. 1652.)
It is the magistrate who makes the determination, based upon the facts of each case, on whether the passage of time is so prolonged that a search is based upon stale information. (Hulland, supra, 110 Cal.App.4th at p. 1652.) A fair reading of the affidavit, however, is that the activity constituting harassment and a nuisance by Correa is ongoing.
First, Contreras's affidavit stated that the investigation began into "ongoing complaints" by Correa about dogs in the neighborhood; thus, there were open complaints to be investigated. Second, the affidavit states that Contreras interviewed over 20 witnesses who reported that Correa was engaging in specific behavior that potentially constituted a public nuisance and harassment; video and photographic evidence was provided Contreras showing some of the behavior by Correa. A reasonable and commonsense interpretation of the affidavit is that the conduct was presently occurring; it is unlikely an officer would seek a search warrant if the activity of the type described in the affidavit had ceased months ago. (Gates, supra, 462 U.S. at p. 236.) The affidavit provided sufficient information justifying a person of ordinary prudence to conclude that the activity was ongoing and any passage of time did not render the information stale. (Mikesell, supra, 46 Cal.App.4th at p. 1718.)
As for Correa's claim that the affidavit must set forth specific dates and times of each alleged act engaged in by Correa in order to establish probable cause, he is mistaken. Search warrant affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation" and technical "requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area." (United States v. Ventresca (1965) 380 U.S. 102, 108; Gates, supra, 462 U.S. at p. 235.) " 'A grudging or negative attitude by reviewing courts toward warrants,' [citation], is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant; 'courts should not invalidate [warrants] by interpreting [affidavits] in a hypertechnical, rather than a commonsense, manner.' " (Gates, supra, 462 U.S. at p. 236.)
Given the totality of the circumstances, the affidavit provided a substantial basis for a magistrate to conclude the information was sufficiently current. (Gates, supra, 462 U.S. at pp. 238-239.)
Temporal Context
Correa contends the affidavit failed to establish a pattern of criminal activity because it did not provide any temporal context. He contends neighbors could have been discussing events that occurred weeks or months prior when interviewed by Contreras.
This contention is similar to Correa's contention that the information in the affidavit was stale. It assumes an affidavit must state in detail the dates and times on which persons witnessed potential criminal activity. Correa cites Hulland for the proposition that Contreras's affidavit failed to provide the requisite temporal context. Hulland does not support his contention. In Hulland, an officer witnessed a controlled buy in a parking lot; waited 52 days after the controlled buy to seek a search warrant; the search warrant was for the defendant's house, which was in a city different than where the controlled buy occurred; and the officer made no effort to determine if the defendant continued to engage in the conduct during the 52 days. (Hulland, supra, 110 Cal.App.4th at pp. 1649-1650, 1653, 1655-1656.)
Here, Contreras applied for the search warrant 15 days after commencing his investigation into the "ongoing complaints" filed by Correa. The affidavit stated that during his investigation, Contreras spoke with over 20 witnesses who reported that Correa was engaging in harassing and public nuisance behavior and provided some video and photographic evidence to support their statements. A reasonable, commonsense interpretation of the affidavit is that Contreras was seeking the search warrant because his investigation disclosed an ongoing problem that needed to be addressed, not incidents occurring months in the past, and the affidavit should be interpreted in a manner that supports the issuance of the warrant. (Gates, supra, 462 U.S. at p. 236.)
We note that Contreras testified at the preliminary hearing the neighbors indicated Correa's actions were ongoing and currently occurring. --------
Criminal Activity
Correa contends the affidavit failed to establish that any criminal activity was occurring, or that any evidence of criminal activity would be found at his residence. "The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought." (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556.)
Section 372 specifies that any person who "maintains or commits any public nuisance" is guilty of a misdemeanor. Section 370 defines "public nuisance" as:
"Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons, ... is a public nuisance."
Here, the affidavit described activity by Correa that would constitute a public nuisance as defined in section 370; maintaining or committing a public nuisance is a violation of section 372. Contreras described those activities as including antagonizing neighborhood dogs by using an "amplified horn similar to a car horn as well as an amplified high pitched whistling device." The affidavit also described harassment of neighbors by posting a sign that read "EAT SHIT" and shining large halogen lights into neighbors' homes and backyards.
The affidavit asked to search for and seize any items capable of producing a high-pitched or honking sound as described by neighbors; any "vulgar signs" directed toward neighbors; any documents describing how to annoy, harass, or torment animals or humans; any documents or other evidence establishing the filing of a false police report; and anything else that tends to show evidence of maintaining a public nuisance. There was a nexus between Correa's house and the alleged criminal activity of maintaining or committing a public nuisance. The affidavit sought specific items that Contreras, an experienced officer, reasonably expected to find at Correa's residence based upon his investigation, and which Contreras had reason to believe Correa possessed "with the intent to use them as a means of committing a public offense." (§ 1524, sub. (a)(3); People v. Garcia (2003) 111 Cal.App.4th 715, 721.)
Good Faith Exception
In 1982 the voters of California adopted article 1, section 28 of the California Constitution (also known as "The Victims' Bill of Rights"). Subdivision (d) of this new provision stated in part "relevant evidence shall not be excluded in any criminal proceeding ...." (Cal. Const., art. 1, § 28, subd. (d).) In In re Lance W. (1985) 37 Cal.3d 873, the California Supreme Court interpreted this new provision to permit exclusion of relevant but unlawfully obtained evidence "only if exclusion is also mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment." (In re Lance W., supra, 37 Cal.3d at p. 896.) The scope of the federal exclusionary rule is governed by United States v. Leon (1984) 468 U.S. 897 (Leon), to which we now turn.
In Leon, the court adopted a "good-faith exception" to the exclusionary rule for situations in which a search is conducted pursuant to a warrant. (Leon, supra, 468 U.S. at p. 924.) The court stated: "We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." (Id. at p. 922; accord, People v. Camarella (1991) 54 Cal.3d 592, 602.) The Leon court also made clear that an officer's personal, subjective belief about whether probable cause existed when the officer sought to obtain a warrant is not significant. (Leon, supra, 468 U.S. at p. 922, fn. 23.) "Accordingly, our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization. In making this determination, all of the circumstances ... may be considered." (Id. at pp. 922-923, fn. 23.)
Even if we were to conclude that the search warrant affidavit was deficient in setting forth probable cause to search Correa's residence, it is clear that suppression of the evidence is not required because the search warrant provides an objectively reasonable basis for a search of Correa's residence. (See Leon, supra, 468 U.S. at p. 907.) As we have concluded, this was not a case in which the information provided in the affidavit was clearly stale (or stale, at all, for that matter) (see Hulland, supra, 110 Cal.App.4th at p. 1657). The affidavit stated over 20 witnesses connected Correa to behavior that potentially constituted harassment and a public nuisance. The affidavit included information connecting this behavior of Correa to specific items used by Correa in engaging in potentially criminal behavior and likely located at his residence. Under these circumstances, we cannot here conclude that "a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." (Leon, supra, 468 U.S. at p. 922, fn. 23.)
DISPOSITION
The judgment and denial of the motion to suppress are affirmed.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.