Opinion
B229401
09-21-2011
THE PEOPLE, Plaintiff and Respondent, v. FITZGERALD CHARLES FIELDS, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Blythe J. Leszkay and Taylor Nguyen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MA048862)
APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie C. Laforteza, Judge. Reversed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Blythe J. Leszkay and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Fitzgerald Charles Fields appeals from the judgment following his no contest plea to possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).) He contends the trial court erred in denying his Penal Code section 1538.5 motion to quash the search warrant and suppress evidence when it concluded that the magistrate had a substantial basis for issuing the warrant and that, alternatively, the good faith exception to the exclusionary rule applied to the search. We agree and reverse.
FACTUAL AND PROCEDURAL SUMMARY
On April 14, 2010, a house located at 45512 Corkwood Avenue in Lancaster was searched pursuant to a warrant to search the residence of one Wardell Jones, who had given that as his address. Defendant and his family lived in the house at the time. A semi-automatic gun, stun gun and ammunition were found in defendant's bedroom. Defendant was charged in three separate counts as a felon in possession of those items. The charges also alleged three prior strikes and two prior prison terms.
Defendant filed a motion to quash the search warrant and suppress the evidence. The trial court denied the motion on the ground that the magistrate had a substantial basis for concluding probable cause existed for the search, and even if he did not, the good faith exception applied to execution of the warrant. After trial began, defendant pled no contest to count 1, possession of a firearm by a felon, and was sentenced to 4 years in prison. Defendant filed this timely appeal, accompanied by a certificate of probable cause as to the denial of his motion to suppress.
DISCUSSION
I
Defendant contends the affidavit submitted in support of the search warrant failed to establish probable cause for the search. "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.' [Citation.]" (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.) "The affidavit must establish a nexus between the criminal activities and the place to be searched. [Citation.] 'The opinions of an experienced officer may legitimately be considered by the magistrate in making the probable cause determination.' [Citation.] However, an affidavit based on mere suspicion or belief, or stating a conclusion with no supporting facts, is wholly insufficient. [Citation.]" (People v. Garcia (2003) 111 Cal.App.4th 715, 721.) On appeal, we consider "whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing." (People v. Kraft (2000) 23 Cal.4th 978, 1040.)
Here, on April 12, 2010, detective Rick Cartmill sought a warrant to search several houses, including Jones's residence, "located at 45512 Corkwood St.," as part of the investigation of a gang-related shooting that occurred on March 20, 2010, in Lancaster. The affidavit in support of the search warrant indicated that Tommy Crane, a leader of the 62nd Street Brims gang, was a suspect in the shooting. The detective was an expert on the gang and had personal contacts with Crane. In the course of the investigation, detective Cartmill learned that, on September 25, 2009, a deputy had contacted Jones, who was in the company of Crane. The detective ascertained Jones's address to be 45512 Corkwood Avenue "through a recent FI card in which he gave this address and DMV records." The detective stated that gang members had a practice of hiding weapons at safe houses, places accessible to them but not known to the police. They tended to keep weapons at such places for a long time, passing them amongst themselves. They also tended to stay at the houses of other gang members or close friends. Based on the fact that Jones recently had been contacted in Crane's company, the detective believed that a search of Jones's house could uncover weapons used in the shooting, as well as other weapons. He offered his expert opinion that the persons described in the warrant, "all members or associates" of the 62nd Street Brims gang, were engaged in violent gang activity.
Defendant argues that Jones's address information was stale. Whether information remote in time may be unreliable depends on the facts of the case. (People v. Gibson (2001) 90 Cal.App.4th 371, 380-381 [six-month-old address information not stale because no reason to believe the defendant had moved].) Here, the affiant relied on a field identification card and DMV records. The information on the card was six months old and the affiant did not state the date of the DMV record check. But the affidavit makes clear that the DMV check was conducted as part of the investigation of the March 22, 2010, shooting. The address information confirmed through DMV records less than a month before the search was not remote in time.
The affidavit nevertheless fails because it does not include sufficient facts linking Jones to the 62nd Street Brims gang. The affiant sought a warrant to search the residences of known gang members as well as persons who had been contacted while in the company of known gang members. On appeal, both sides read the affidavit as stating that Jones had been contacted only once, six months before the shooting, and a single field identification card with his address had been filled out at the time. The trial court's finding that Jones had been "F.I.'d a couple of times" is not supported by evidence. Nor are any circumstances of the contact stated in the affidavit. Although expert opinion is admissible on gang culture and individual membership or association, the expert's opinion is no better than the facts on which it is based. (People v. Gardeley (1996) 14 Cal.4th 605, 617-618.) In People v. Castenada (2000) 23 Cal.4th 743, the defendant, who was seen seven times over 14 months in the company of known gang members, bragged that he "kicked back" with the gang. (Id. at pp. 752-753.) A gang expert explained that in gang parlance this meant the defendant was a gang associate or member. (Id. at p. 753.) Here, there was no evidence that Jones's one-time presence in Crane's company was anything but coincidental. The affiant's expert opinion that Jones was a gang associate engaged in gang activity was unsupported. The magistrate did not have a substantial basis for concluding probable cause existed to search what was believed to be Jones's house for gang-related paraphernalia.
II
Under United States v. Leon (1984) 468 U.S. 897, a police officer may rely in good faith on a warrant later found to be invalid. (Id. at p. 922.) But the exception does not apply where, as here, the warrant is "based on an affidavit 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' [Citations.]" (Id. at p. 923.) "An officer applying for a warrant must exercise reasonable professional judgment and have a reasonable knowledge of what the law prohibits. [Citations.] If the officer 'reasonably could have believed that the affidavit presented a close or debatable question on the issue of probable cause,' the seized evidence need not be suppressed." (People v. Pressey (2002) 102 Cal.App.4th 1178, 1191.)
The Fourth Amendment prohibits wide-ranging exploratory searches. (People v. Amador (2000) 24 Cal.4th 387, 392.) Guilt may not be premised only on association. (Alexander v. Superior Court (1973) 9 Cal.3d 387, 394.) The affiant's attempt to justify a broad search for gang-related evidence on his opinion that Jones was a gang associate engaged in criminal activity based only on information that he had been seen once in the company of a known gang member is contrary to law. Regardless of its merits as to the other homes to be searched, as to Jones's home, the affidavit was based on a "bare bones" investigation that was entirely uncorroborated by other information. It did not establish probable cause for the search. (Cf. People v. Camarella (1991) 54 Cal.3d 592, 606 [officer's investigation was not bare bones as he obtained substantial corroborating information].)
The search warrant was based on an affidavit so lacking in indicia of probable cause as to Jones that no officer could reasonably have relied on it to search defendant's house, where Jones was believed to live. Since the evidence against defendant was found solely on the basis of this defective warrant, it should have been suppressed. It was error to deny defendant's motion to suppress that evidence.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
MANELLA, J.
SUZUKAWA, J.