Opinion
F055280.
3-3-2009
THE PEOPLE, Plaintiff and Respondent, v. PAUL EUGENE HARRIMAN, Defendant and Appellant.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
Before Gomes, Acting P.J., Dawson, J., and Hill, J.
United States v. Leon (1984) 468 U.S. 897.
Appellant, Paul Eugene Harriman, pled no contest to cultivation of marijuana after his motion to suppress was denied. On appeal, Harriman contends the court erred when it denied his motion to suppress. We will affirm.
FACTS
On November 20, 2007, Kern County Sheriff deputies executed a warrant at a building located at 8004 Kearney Street in Lamont that was rented by Harrington and found a sophisticated indoor marijuana garden with over 390 plants.
On March 5, 2008, the district attorney filed an information charging Harrington with cultivation of marijuana (Health & Saf. Code, § 11358) and possession for sale of marijuana (Health & Saf. Code, § 11359).
On March 25, 2008, Harriman filed a motion to suppress, which had the warrants affidavit of probable cause attached to it. In this affidavit, Deputy Anthony Todisco stated that on November 16, 2007, at approximately 9:00 a.m. he was told by Deputy Throne that while assisting in an investigation in front of the building located at 8004 Kearney he smelled the odor of marijuana coming from the building. Deputy Throne also stated that he saw new vents on the roof and that the windows facing the street were covered with plastic. From the sidewalk, he was able to see an operating recirculation fan and a thermostat on the east wall.
At approximately 12:00 p.m., Deputy Todisco went to the building and noticed that it appeared to be vacant and had a for sale sign on the southwest section of the property. He walked outside the property to the east side of the building and saw the thermostat and the recirculation fan that was working. Todisco examined the two doors facing toward the street and saw that they had been sprayed with insulation foam that sealed the area between the bottom of the door and the floor. He then walked onto the property through a 6-foot high by 10-foot wide unlocked gate on the west side of the building and saw a pickup parked on the property. He walked around the building and saw that a window on the north side of the building was also covered. At the northeast corner of the building he saw water and smelled the odor of marijuana coming from a door. He examined the thermostat on the east side of the building and saw that it showed 80 degrees and 40 percent humidity and that the thermostat was spinning at a high rate of speed for an unoccupied building.
The affidavit also detailed Deputy Todiscos experience and training with respect to possession, sales, distribution, cultivation, and trafficking in drugs and marijuana.
On April 17, 2008, at a hearing on Harrimans motion to suppress Deputy Todisco testified that the building was a commercial building. He conceded that no one gave him permission to go onto the property. Todisco did not call the number on the for sale sign to contact the realtor. Although the gate was already open about 12 inches, Todisco had to open it wider so he could enter the property. At the conclusion of the hearing, the court denied the motion.
DISCUSSION
Harriman contends the affidavit in support of the search warrant was tainted because it included evidence that Deputy Todisco illegally obtained by entering the property he rented. He further contends that without the tainted information the warrant affidavit did not establish probable cause to search his property and that the Leon 1 good faith exception is inapplicable. Thus, according to Harriman, the court erred when it denied his motion to suppress. We will reject these contentions.
"A search warrant must be supported by probable cause. [Citation.] In determining whether probable cause exists, the magistrate considers the totality of the circumstances. [Citation.] `Probable cause, unlike the fact itself, may be shown by evidence that would not be competent at trial. [Citation.] Accordingly, information and belief alone may support the issuance of search warrants, which require probable cause. [Citations.] [Citation.]
"Because they are often written by nonlawyers in the midst of an investigation, technical requirements for elaborate specificity have no place in the review of search warrant affidavits. [Citations.]
"A magistrate may reasonably rely on the special experience and expertise of the affiant officer in considering whether probable cause exists.
"While, in a particular case it may be difficult to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants. [Citation.]
"A court reviewing the issuance of a search warrant defers to the magistrates finding of probable cause unless the warrant is invalid as a matter of law. [Citation.] The duty of the reviewing court is to ensure there was a substantial basis for the magistrate concluding there was probable cause to issue the warrant. [Citation.]" (People v. Varghese (2008) 162 Cal.App.4th 1084, 1103-1104.)
"A search warrant obtained upon information acquired by an illegal search is invalid, unless the prosecution can show that no information gained from the illegal entry affected the magistrates decision to grant the warrant. In other words, the probable cause supporting the warrants issuance must be from an independent source, not a product of the unlawful activity. [Citations.]" (People v. Lucatero (2008) 166 Cal.App.4th 1110, 1115.)
We need not decide whether Deputy Todiscos observations after he walked onto Harrimans rented property through an unlatched gate were properly included in the search warrant affidavit because the affidavit provided probable cause to search the building on the property even if these observations are excised from the affidavit.
The strong odor of marijuana can provide probable cause to search. (People v. Gale (1973) 9 Cal.3d 788, 794.)
Here, Deputy Todisco stated in his supporting affidavit that Deputy Throne advised him that he smelled an odor of marijuana coming from the building rented by Harriman, the buildings windows were covered with a dark plastic, the building had two new vents, and that the east wall of the building had a recirculation fan that was on. Deputy Todisco went to the location and observed that the building appeared to be vacant. Prior to walking onto the property, he confirmed that the windows were covered up, the building had a new vent on the roof, and that a recirculation fan on its east wall was on. He also determined that the buildings two doors that faced toward the street had been sealed on the bottom preventing air from the inside of the building to escape. The court could reasonably find that given Deputy Todiscos experience these circumstances alone provided him with probable cause to believe that the building housed an indoor marijuana garden.
Harriman contends that there was no evidence of high electricity usage prior to Deputy Todisco walking onto the property and seeing the electric meter. However, as discussed above, there were other circumstances that would have caused a reasonable person to suspect that the building was housing an indoor marijuana garden and which corroborated Deputy Thrones statement that the smell of marijuana was emanating from the building. In any event, even if we concluded that the warrant did not provide probable cause for the search we would find the evidence admissible under the good faith exception of United States v. Leon, supra, 468 U.S. 897.
"In Leon, the high court held `the Fourth Amendment exclusionary rule should be modified so as not to bar the use in the prosecutions case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. [Citation.] The court made clear that the government has the burden of establishing `objectively reasonable reliance [citation], and it described four limited situations in which such reliance would not be established, and in which suppression under the exclusionary rule would remain an appropriate remedy: (i) the issuing magistrate was misled by information that the officer knew or should have known was false; (ii) the magistrate `wholly abandoned his judicial role; (iii) the affidavit was `"so lacking in indicia of probable cause" that it would be `"entirely unreasonable" for an officer to believe such cause existed; and (iv) the warrant was so facially deficient that the executing officer could not reasonably presume it to be valid. [Citation.]" (People v. Camarella (1991) 54 Cal.3d 592, 596.)
Harriman does not claim, nor do we find, that any of the situations described in paragraph i, ii, or iv, occurred here. Further, in light of case law clearly holding that the strong smell of marijuana alone is sufficient to justify a search, we conclude that the search warrant here was not so obviously devoid of probable cause as to preclude a police officer from believing that such cause existed. Accordingly, we reject Harrimans contention that the court erred when it denied his motion to suppress.
DISPOSITION
The judgment is affirmed.