Opinion
B163621.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. STEVEN ALAN LOYD, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Carl N. Henry, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Steven Alan Loyd appeals from a judgment of conviction entered after he pleaded no contest to one count of possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378), following the courts denial of his motion to traverse the search warrant. Defendant also pleaded no contest in a separate case (People v. Loyd (Super.Ct. L.A. Co., 2001, No. NA054731)) to one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The court thereafter sentenced defendant to state prison for a term of three years and eight months.
Defendant contends the trial court erred in failing to permit a Franks evidentiary hearing on his motion to quash the search warrant and suppress evidence. He also claims he received ineffective assistance of counsel. Inasmuch as we disagree, we affirm the judgment.
Franks v. Delaware (1978) 438 U.S. 154.
FACTS
At approximately midnight on August 17, 2000, Long Beach police officers executed a search warrant at 165 Sunset Street, a residence from which defendant emerged. The search yielded several bags containing an off-white substance suspected to be methamphetamine, a triple beam scale, $10,000 in counterfeit currency, a police scanner, suspected pay and owe ledgers and several rounds of live ammunition. The methamphetamine was a large enough quantity to be possessed for the purpose of sale.
DISCUSSION
Defendants amended motion to quash the search warrant and suppress evidence included declarations from defendant and his daughter, from an investigator with the Federal Public Defenders Office concerning a federal prosecution of defendant and from defense counsel. The amended motion also included a copy of the search warrant and affidavit signed by Officer Goodman.
Before presenting his case at the hearing on the motion to quash, defense counsel sought dismissal on the theory that the federal courts grant of a suppression motion collaterally estopped the People from litigating the validity of the search warrants probable cause affidavit. The court ultimately denied the request on the ground that there was no privity between federal and state prosecuting agencies. (People v. Meredith (1992) 11 Cal.App.4th 1548, 1557-1558.)
The affidavit recites that between late 1999 and August 16, 2000, Officer Goodman and another officer received complaints from citizen informants and admitted drug users that a white male was selling drugs from the residence and garage at 165 Sunset Street in Long Beach. Officer Goodman personally received three complaints from admitted drug users that defendant lived in that residence and was selling methamphetamine. Officer Goodman watched the residence on many occasions. When he did so, he observed a great deal of vehicular traffic there. Defendant had been convicted of selling methamphetamine in 1993.
On August 16, 2000, Officers Goodman and Bell spoke to Joel Eugene Pruett (Pruett), the driver of a vehicle that had parked in front of 165 Sunset Street. Pruett admitted he was a convicted drug dealer. He said he was there to help defendant tow a car. Pruett had $4,600 in cash. That sum is consistent with the average price of a pound of methamphetamine. Pruett previously had been convicted of ordinary possession of methamphetamine and possession for the purpose of sale.
When Officer Goodman attempted to contact defendant at the residence, he noticed a semi-concealed surveillance camera facing the front door. Officer Goodman had seen surveillance equipment of this type on approximately 20 other Long Beach residences, the occupants of which were involved in the sale or use of illegal narcotics. Officer Goodman also observed that there were steel security doors on the front and back of the residence and the surrounding windows were "fortified with steel screening which prohibits anybody from seeing into or entering the residence."
After defendant failed to answer the door, Officer Goodman walked toward the detached garage where he had seen defendant working on many occasions. Defendants daughter, who lived at 169 Sunset Street, walked toward a car parked in defendants driveway. The daughter thought defendant was at home because his vehicles were there.
As Officer Goodman approached the garage, he saw several marijuana plants growing in the back yard of 169 Sunset Street. Defendants daughter was arrested and her residence was searched. Police officers found a rifle inside which the daughter said her father had placed there. The daughter said she had seen a great deal of vehicular traffic at her fathers residence. She also said she believed her father possibly was selling drugs but she did not know what kind.
Officer Goodman discovered that defendant was the subscriber for utilities at both 165 and 169 Sunset Street. He also had spoken with two Long Beach drug investigation detectives about this case. They concurred in his judgment that marijuana and methamphetamine were being possessed for the purpose of sale at 165 Sunset Street.
Defendant attested that there were no surveillance cameras or equipment monitoring either his or his daughters residence. The house at 165 Sunset Street has six windows and two doors. Of the four windows visible from the front and side, only the bathroom window has a screen. Both the front and the back doors have ordinary screened security doors. Defendant installed the rear security door after the residence was burglarized. He did so with his landlords permission and received reimbursement of the cost. The front security door and the screen on the bathroom window were in place when defendant began renting the property. A six-foot wooden fence encloses the back yard.
Defendants daughter declared that she did not tell Officer Goodman "she believes her father is possibly selling drugs but does not know what kind of drugs." That statement is false. She specifically told the police that she had no knowledge of her father dealing drugs. She told the police that her father is the owner of Loyds Towing Service, which he operates from his residence. There is traffic to and from her fathers residence that is related to that business.
According to Keith Williams (Williams), the investigator assigned to assist defendants federal public defender in United States v. Loyd, CR00-924-ER, defendants daughter told the police that her father operated Loyds Towing Service from his residence and that the business produced traffic to and from her fathers residence. She denied knowing that her father sold drugs.
Williams took photographs of 165 and 169 Sunset Street, as well as of the surrounding neighborhood. Williams observed that 165 Sunset Street has six windows, a front door and a back door. Four windows are visible from the front and side. Of these four, only the bathroom window has a screen. The two doors have ordinary screened security doors. A six-foot fence encloses the back yard. Williams did not observe any surveillance camera or equipment monitoring defendants residence. He did see two motion-sensor light fixtures, however, one of which is at the front of the residence.
There are 25 homes on the 100 block of Sunset Street, 13 of which have screened security doors similar to those on defendants residence. Some neighboring houses have custom bars on the windows.
On November 2, 2000, Williams spoke to Gary Lavine (Lavine), the owner of 165 and 169 Sunset Street. Lavine told Williams that the window screens presently in place were the same as when he originally purchased the homes more than 10 years earlier. Lavine purchased and installed the screened security door at the front of 165 Sunset Street. Lavine authorized installation of the ordinary $99 screened security door at the rear after the residence was burglarized and reimbursed defendant for his expenditure. Lavine is not aware of any surveillance camera or equipment monitoring either of the Sunset Street residences.
Defendants daughter testified at the hearing on the amended motion to quash the search warrant and suppress evidence. She testified that she never told the officers that defendant sold drugs, never told them there was a lot of vehicular traffic at her fathers house and never saw a camera mounted to her fathers front window. Other houses in the area had security bars on the front comparable to those on defendants door.
Defendant argues that the probable cause affidavit contains three willfully or recklessly false statements that, when deleted, nullify probable cause to search his residence. The first purported misstatement is that he had a surveillance camera monitoring the front door of a type Officer Goodman personally observed on 20 other Long Beach residences, the occupants of which were involved in the use or sale of narcotics. The second is that the windows of defendants residence are fortified with steel screening. The third is that defendants daughter told the police that her father possibly was selling drugs but she did not know what kind.
As noted in People v. Amador (2000) 24 Cal.4th 387 at page 393, "Courts have a `strong policy favoring search by warrant rather than upon other allowable basis. [Citations.]" Accordingly, when "the police do obtain a warrant, that warrant is presumed valid. `Thus if the defendant attempts to quash a search warrant, . . . the burden rests on him. [Citation.] A defendant claiming that the warrant or supporting affidavit is inaccurate or incomplete bears the burden of alleging and then proving the errors or omissions. [Citations.]" (Ibid.)
When a defendant challenges the veracity of statements in an affidavit of probable cause made in support of a search warrant, he is entitled to an evidentiary hearing only if he "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 affidavits remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause." (People v. Bradford (1997) 15 Cal.4th 1229, 1297.) The evidentiary hearing at which the defendant challenges the veracity of statements in the affidavit of probable cause commonly is called a Franks hearing. "Because of the difficulty of meeting the `substantial preliminary showing standard, Franks hearings are rarely held." (People v. Estrada (2003) 105 Cal.App.4th 783, 790.)
As the trial court found, the statement that the windows of defendants residence are fortified with steel screening is either deliberately or recklessly false. All evidence is that the windows were unscreened or, in the case of the bathroom window, had an ordinary screen.
There is no evidence, however, that Officer Goodman could not have been mistaken or negligent in the observation that made him conclude there was a surveillance camera at the front of the residence. The trial court specifically noted that reference to a surveillance camera did not seem false or misleading in light of the photographs attached to the affidavit. Defendant presented no evidence that the motion sensor light mounted at the front of defendants residence does not resemble a surveillance camera of the type often used by drug dealers. In the absence of such evidence, the presumption that the warrant is valid prevails. (People v. Amador, supra, 24 Cal.4th at p. 393.)
With respect to defendants daughters statement to the police that her father possibly was selling drugs but she did not know what kind, the only evidence of falsity is the daughters own testimony. The trial court expressly determined that she was not a credible witness. As the court noted, the police have no conceivable motive to attribute such a false statement to defendants daughter but the daughter has every motive to lie on her fathers behalf. Stated otherwise, it is difficult to believe that the police fabricated the statements about defendant possibly selling drugs and heavy vehicular traffic but just happened to find a large quantity of methamphetamine in defendants residence. (See, e.g., People v. Benjamin (1999) 77 Cal.App.4th 264, 276-277.) The statements of a witness who lacks credibility fall far short of the "substantial showing" required for a defendant to be entitled to a Franks hearing. (People v. Bradford, supra, 15 Cal.4th at p. 1297.)
In summary, as the trial court found, there is only one deliberately or recklessly false statement in the probable cause affidavit. When that statement is removed from the affidavit, the remaining content still establishes ample probable cause to search defendants residence. The trial court consequently did not err in denying defendant a Franks hearing.
Defendant also argues that the warrant omitted three material facts. Officer Goodman failed to mention that more than half the residences in defendants neighborhood have steel security screen doors and some have barred windows. He also failed to mention that defendant operates Loyds Towing Service from his residence, which business generates traffic to and from his residence, and that the rifle found at 169 Sunset Street is an inoperable antique in two separate pieces.
When a defendant challenges a search warrant on the basis that there are omissions from the probable cause affidavit, he must demonstrate that the omissions were material to the determination that probable cause existed. In determining materiality, the court considers the totality of the circumstances. (People v. Bradford, supra, 15 Cal.4th at p. 1297.)
The only evidence that Officer Goodman knew defendant operated Loyds Towing Service from his residence or that the towing service generated considerable vehicular traffic to and from defendants residence is the statements of a witness who, the trial court determined, lacked credibility. Such evidence is worth little.
In any event, the assertion that operation of the towing service generated considerable vehicular traffic to and from defendants residence defies common sense in the absence of some explanation of how or why it generates such traffic. A tow truck operator generally tows a vehicle to one of three locations: an automotive repair facility, a licensed impound lot or the vehicle owners residence. The operator of a tow truck—particularly one operating from his residence—would seldom tow a vehicle to his premises unless he also operated an automotive repair shop or licensed impound lot from his residence. The only other explanation for heavy vehicular traffic would be the employment of independent tow truck operators who came to the residence to receive assignments.
There is no evidence that defendant operates an automotive repair facility or a licensed impound lot, or that he hires independent tow truck operators who come to his residence to receive an assignment, after which they go forth to tow. Without such evidence, defendants operation of Loyds Towing Service is not a material fact. It has no importance unless it offers an alternative explanation for the vehicular traffic Officer Goodman observed.
Given the excision from the probable cause affidavit of the statement that the windows of defendants residence are fortified with steel screens, omission from the affidavit of defendants neighbors use of security doors and window bars is utterly insignificant. That defendant supposedly had "hardened the target" was not an essential part of the magistrates probable cause determination. The remainder of the information in the affidavit was more than sufficient to establish probable cause. Moreover, there is no evidence that Officer Goodman, like Williams, had done a survey and knew how widespread was the use of security features in the neighborhood, and thus no evidence that he deliberately or recklessly omitted this fact.
Finally, the nature of the gun found at defendants daughters residence would have had no bearing on whether there was probable cause to search defendants residence. Considering the totality of the circumstances, it, too, was not a material fact. Inasmuch as none of the purported omissions involves a material fact, defendant was not entitled to have the search warrant quashed on this ground. (People v. Bradford, supra, 15 Cal.4th at p. 1297.)
We have assumed for the sake of argument that defendants failure to renew the motion to quash the search warrant in the superior court has not waived his right to challenge denial of the motion. (But see People v. Lilienthal (1978) 22 Cal.3d 891, 896-897 ; People v. Hoffman (2001) 88 Cal.App.4th 1, 3; People v. Hart (1999) 74 Cal.App.4th 479, 485-486.) Inasmuch as the challenge lacked merit, he suffered no prejudice from his counsels failure to renew the motion to quash in the trial court. Defendant consequently did not receive ineffective assistance of counsel. (People v. Hart (1999) 20 Cal.4th 546, 623-624.)
The judgment is affirmed.
We concur: ORTEGA, J., MALLANO, J.