Opinion
C082099
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER SCOT NOVAK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. P13CRF0707)
In March 2016, defendant Christopher Scot Novak pleaded no contest to misdemeanor allowing a place for the storing or processing or cultivation of a controlled substance. (Health & Saf. Code, § 11366.5, subd. (a).) Per the parties' agreement, the trial court suspended imposition of the sentence and granted defendant three years' probation with 90 days in county jail. The remaining counts were dismissed.
Undesignated statutory references are to the Health and Safety Code.
Defendant was also charged with cultivating marijuana (§ 11358; count 1) and possession of marijuana for sale (§ 11359; count 2).
On appeal, defendant contends (1) the trial court erred in denying his motion to traverse the search warrant and not holding an evidentiary hearing based on material omissions and misrepresentations in the affidavit and (2) the trial court erred in granting the prosecutor's motion to quash the subpoena duces tecum for records from Western States Information Network (WSIN). We conclude there was sufficient evidence in the affidavit to establish probable cause for the search warrant and no material omissions or misrepresentations in the affidavit. Based on our conclusion there was sufficient probable cause even without the information from WSIN, we need not reach defendant's contentions regarding the motion to quash the subpoena served on WSIN. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. September 2013 search warrant
In September 2013, a magistrate signed a search warrant authorizing the search of defendant and his residential property that was on 11 acres and included a home, a barn, and several other buildings. Law enforcement officers were directed to search for marijuana, as well as indicia of drug manufacturing and sales, electronic devices such as phones or computers that could be used in selling narcotics, and firearms.
The record does not make clear what police found during the search, as the parties stipulated to a factual basis for defendant's plea but did not recite it. Defense counsel stated during an October 2015 hearing that police found 99 marijuana plants.
The supporting affidavit for the warrant request was from Detective Robert St. Pierre. St. Pierre had completed approximately 1,100 narcotic investigations and had been qualified as an expert witness in the field of possession of marijuana for sale. St. Pierre had investigated defendant's property in 2012 for suspicion of marijuana cultivation and sales. St. Pierre observed that numerous plants had been harvested but he did not pursue the investigation. On June 13, 2013, St. Pierre conducted aerial overflight operations to attempt to identify illegal marijuana cultivation operations. He observed 99 suspected marijuana plants growing on defendant's property. St. Pierre subsequently discovered defendant had registered a business license to the property in the name of Green Cuisine, for ranches and farms.
On August 29, 2013, St. Pierre again flew over defendant's property and again saw 99 marijuana plants being cultivated. St. Pierre also observed black plastic pots and an object that looked like a light hood that is used for indoor marijuana cultivation. He saw no other crop being grown on the property. That same day, St. Pierre conducted a check of defendant and his property through the WSIN and learned "Detective Griffin," with Placer County Special Investigations Unit (SIU), had entered defendant and his property into WSIN as subjects of an investigation. Griffin informed St. Pierre that he was investigating defendant and the property for marijuana sales. Griffin "had information that the occupants of [defendant's property] are cultivating marijuana and transporting it to southern California to sell at marijuana dispensaries."
On September 9, 2013, St. Pierre conducted an internet search for Green Cuisine and defendant. St. Pierre saw "numerous" YouTube videos related to marijuana cultivation. Defendant even had his own YouTube channel, called, "GreenCuisine Novak," with links to and personal videos of marijuana, including a video ad for Green Cuisine marijuana delivery service in the Sacramento area. In one video, defendant stated his name and identified himself as the founder and CEO of Green Cuisine. He also stated he "tries to keep the medication priced fairly," with prices for an eighth of an ounce of marijuana (3.5 grams) at an average of $25, or $200 per ounce, or $3,200 per pound. St. Pierre also found five listings for Green Cuisine on "weedmaps.com." The listings were for marijuana delivery services out of Isla Vista, Camarillo, Santa Barbara, Ventura, and Oxnard. The prices for an eighth of an ounce ran from $35 to $45, or $4,480 to $5,760 per pound. Another detective conducted a third overflight of defendant's property on September 12, 2013. The detective saw marijuana plants still being grown.
Based on defendant's videos and business license, St. Pierre opined defendant was commercially cultivating marijuana with intent to sell. St. Pierre also believed the amount being grown was above what would be needed for personal use, based on the "large quantity and size" of the plants he saw during his aerial overflights of defendant's property.
2. Defendant's July 2015 subpoenas
In July 2015, defendant issued subpoenas to the custodian of records for the Placer County Sheriff's Office, Rocklin Police Department, and Roseville Police Department requesting documents and records related to any and all investigations of defendant, including investigations involving his residence, a former store front dispensary, marijuana business, weedmaps.com, Detective Griffin, and WSIN. Placer County responded it had none of the records described in the subpoena. Rocklin provided 148 pages of police incident reports between May 2005 and July 2015, including reports regarding: (a) a February 2012 complaint from the new husband of defendant's ex-wife that defendant had a marijuana card, grew and smoked marijuana, and that, when he picked up defendant's son, the boy smelled of marijuana and had a contact high; (b) an October 2010 anonymous call that defendant was harvesting more than 200 marijuana plants at his residence and selling it; (c) an August 2010 call from defendant's ex-wife that defendant had 700 marijuana plants at his residence, without a prescription (the information was forwarded to SIU for follow up); and (d) a July 2010 police investigation of a building violation that noted SIU was aware of a marijuana growing operation in defendant's backyard.
The records from Rocklin also included reports regarding: (a) an ongoing dispute between defendant and his neighbor about defendant's dog, (b) reports regarding compliance by defendant and his ex-wife with respect to a custody order regarding their son, (c) domestic violence disputes involving defendant, and (d) building code compliance. Officer "Luke Griffin" also participated in a "stakeout" in November 2011, although the police report does not provide further information. The record is unclear whether this is the same Detective Griffin mentioned in Detective St. Pierre's affidavit.
Roseville provided 63 pages of police reports, including reports regarding an investigation of "Roseville Compassionate Care," a marijuana dispensary co-owned by defendant. On December 7, 2010, police went to the dispensary and spoke with defendant, who said he was "aware" of an "illegal" city ordinance prohibiting medical marijuana dispensaries. Defendant also told police he had been providing marijuana to "[his] patients" for a week and that he operated a legitimate business. Defendant explained the client's doctor would be contacted and clients were required to fill out applications before they became "members." If the doctors did not "check out," defendant would not allow the individual to become a "member." Police issued a citation and released defendant. On January 21, 2011, police again interviewed defendant regarding Roseville Compassionate Care. Defendant said the business was a "co-op," not a dispensary, and had over 500 members. Police issued a citation based on Roseville Municipal Code Ordinance section 9.95.030 that prohibits medical marijuana dispensaries, and forwarded the matter to the district attorney and city attorney.
In March 2011, a trial court granted the City of Roseville a preliminary injunction against Roseville Compassionate Care. In April 2011, police executed a search warrant at Roseville Compassionate Care and discovered the business was violating the injunction by continuing to sell marijuana.
The matter was forwarded to the district attorney for prosecution under Penal Code section 166, subdivision (a)(4). The record does not indicate the outcome.
3. Defendant's August 2015 motion to traverse warrant
On August 21, 2015, prior to pleading no contest, defendant brought a motion to traverse the search warrant and suppress evidence pursuant to Penal Code section 1538.5, subdivision (a)(1)(B). In support of his motion, defendant filed a copy of (a) the search warrant, (b) Roseville Police Department reports regarding defendant, (c) subpoenas of Placer County law enforcement agencies regarding defendant, (d) records involving Detective Griffin, and (e) records involving marijuana activity at defendant's Rocklin property.
In his motion, defendant stated he lived in Placer County between 2006 and 2012, and established a medical marijuana collective "in full compliance" with the Compassionate Use Act (CUA) (§ 11362.5, subd. (d)) and Medical Marijuana Program (§ 11362.7 et seq.) (MMP). In 2010, defendant had a store front dispensary for the collective in Roseville. When defendant's store was shut down due to municipal code violations and failure to comply with a court-issued injunction, defendant moved his operations to his residence in Rocklin. Although the police records indicated they visited defendant's Rocklin residence "dozens" of times, according to defendant, these visits were due to a dispute with his neighbor over a dog and disputes related to domestic violence and child custody. Defendant also argued the records regarding Detective Griffin established he did not investigate defendant for suspected marijuana sales, although Griffin was involved in a stakeout regarding a dispute over defendant's dog and went to defendant's residence regarding a missing persons check. Defendant further argued the records regarding defendant's Rocklin property merely showed the SIU was aware as of July 2010 that defendant grew marijuana there, but the police never obtained evidence of illegal marijuana sales or cultivation. In 2012, defendant moved to El Dorado County. Although St. Pierre investigated defendant in 2012 and 2013, according to defendant, St. Pierre discovered "no evidence of illegal cultivation or sales."
Defendant argued in his motion that St. Pierre's affidavit in support of the search warrant contained false statements and material omissions. According to defendant, St. Pierre knew or should have known defendant was in compliance with the CUA and MMP, based on the detective's internet research of defendant and his knowledge that defendant had "transferred his lawful marijuana operation from Placer County to El Dorado County because of a technical municipal code violation." However, St. Pierre hid this "exculpatory information" from the magistrate. In addition, contrary to St. Pierre's statements in the affidavit, Detective Griffin was not investigating defendant for marijuana sales. Defendant also argued the observation of 99 marijuana plants did not amount to probable cause, because "even ten times that amount can be lawful under the CUA and MMP."
The prosecution opposed defendant's motion, challenging defendant's contention that St. Pierre intentionally omitted information defendant had previously been found in compliance with the CUA while living in Placer County. The prosecutor also argued the information was not material, since the status of a qualified patient does not confer immunity from arrest.
In October 2015, defendant submitted a transcript of one of his YouTube videos, in support of his motion. In the video, defendant described himself as the "founder and CEO" of Green Cuisine Delivery. Defendant said he "first opened up shop donating all of it. . . . I was told that I cannot give it away and that there are certain things that I have to follow to be legal in [California]. So [now I] operate within all of their guidelines and so now I get to deliver medication to a greater number of people." Defendant also said he likes to "make sure that the guys are on top of their game," providing quality medication that is "priced fairly," an average of $25 for an eighth of an ounce. "[F]or a minimal donation, you can get a pretty good bang for the buck."
California Department of Justice, Attorney General Guidelines for Security and Non-diversion of Marijuana Grown for Medical Use (Aug. 2008) section IV.C.2, at page 11 (the State Guidelines) <https://oag.ca.gov/system/files/attachments/press_releases/n1601_medicalmarijuanaguidelines.pdf> [as of Aug. 27, 2018], archived at <https://perma.cc/S8HP-Y2YT>).)
On October 2, 2015, the trial court denied without prejudice defendant's motion to traverse the warrant. In making its ruling, the trial court noted that if there is a record within WSIN, that would tend to support St. Pierre's version of events and if there is no such record, then it would tend to cast doubt on St. Pierre's version of events.
4. Defendant's October 2015 subpoena and the people's motion to quash
On October 2, 2015, defendant sent a subpoena to the custodian of records for WSIN, requesting all reports, documents, electronic records, audio transmissions, and photographs related to any and all investigations and law enforcement contacts involving defendant, including investigations involving defendant's residence, Detective Griffin, and WSIN.
On October 27, 2015, the prosecution moved to quash defendant's subpoena of WSIN. The prosecutor argued there was no affidavit establishing good cause to disclose the records, the records were privileged under federal law (34 U.S.C. § 10231(c), formerly 42 U.S.C. § 3789g(c); 28 C.F.R. § 23.20(e)-(f)), and privileged under state law because production of the records would "undermine legitimate law enforcement efforts and create a threat to public safety." (Evid. Code, § 1040.) The prosecution filed a supporting declaration from a WSIN manager stating disclosure would be "extremely detrimental to the public and public safety," since WSIN records "often contain confidential and sensitive information about undercover agents, or the specifics of ongoing investigations."
During a hearing on October 30, 2015, defendant argued there was no evidence that disclosure would endanger public safety and encouraged the trial court to review the evidence in camera. In addition, the evidence could be relevant to defendant's motion to traverse the search warrant. Defendant also argued he had a constitutional right to the information sought, including, "the due process clause, the right to subpoena, . . . the right of confrontation, and . . . the right to a fair trial." The trial court granted the motion to quash the subpoena, reasoning the records were "privileged" under federal and state law and there was nothing in the "paperwork" to indicate the privilege should be breached.
DISCUSSION
I
Search Warrant
Defendant contends the search warrant was not supported by probable cause. In addition, he argues, the warrant affidavit contained material omissions and misrepresentations, and the trial court erred in not holding an evidentiary hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154, 155-156 [57 L.Ed.2d 667, 668, 669] (Franks). We reject defendant's contentions.
A.
Standard of Review for Motions to Traverse a Search Warrant
"We review a trial court's ruling on a motion to suppress evidence under [Penal Code] section 1538.5 by applying the substantial evidence test to the factual determinations made by the court, with all presumptions favoring the trial judge's findings." (People v. Manderscheid (2002) 99 Cal.App.4th 355, 359.) " 'However, we use our independent judgment to determine whether those facts establish probable cause. [Citation.] We are prohibited from ordering the suppression of evidence unless federal constitutional standards require us to do so. . . . [¶] Doubtful or marginal cases are to be resolved by the preference to be accorded to warrants.' " (People v. Lim (2000) 85 Cal.App.4th 1289, 1296.)
Under federal and California law, a search warrant must be supported by a showing of probable cause. (People v. Campa (1984) 36 Cal.3d 870, 879.) A magistrate issuing a search warrant must make a practical and commonsense determination 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." (Illinois v. Gates (1983) 462 U.S. 213, 238 (Gates).) The magistrate's determination of probable cause is entitled to deferential review. (People v. Kraft (2000) 23 Cal.4th 978, 1041.)
B.
Probable Cause Supported the Search Warrant
The essence of defendant's argument is that there can be no reasonable suspicion an entity is illegally selling marijuana if (1) it has a business license, (2) a prior police investigation of a different entity involving defendant did not result in prosecution, and (3) there is a publicly available video from its sole proprietor that it "operate[s] within all of [the State G]uidelines." We reject defendant's arguments.
In determining whether probable cause exists for a search warrant, there is no requirement that law enforcement officers investigate whether a suspect's marijuana possession or cultivation complies with the CUA or MMP. Both are affirmative defenses at trial. The CUA provides an affirmative defense to prosecution for the crimes of possession and cultivation, but does not grant immunity from arrest for those crimes. (People v. Kelly (2010) 47 Cal.4th 1008, 1013; People v. Mower (2002) 28 Cal.4th 457, 464.) Similarly, the MMP provides an affirmative defense at trial by eliminating criminal liability for certain actions by qualified marijuana users, including cultivation. (See People v. Wright (2006) 40 Cal.4th 81, 85, 93-94.)
According to defendant, under People v. Hochanadel (2009) 176 Cal.App.4th 997, 1017, where the defendant is operating a medical marijuana business in a "transparent fashion," a reviewing court "must determine if the facts stated in [the affidavit supporting the search warrant] gave probable cause to believe defendants were not operating within the confines of the CUA and MMP[]."
We disagree that Hochanadel, supra, 176 Cal.App.4th 997, which involved an investigation and search of a storefront marijuana business, places such a high bar for a search warrant of a residential growing operation where the defendant advertised a marijuana delivery service on YouTube and weedmaps.com. Because the CUA and MMP are affirmative defenses, individuals suspected of possessing or cultivating marijuana are not shielded from investigation, and there is no affirmative duty on law enforcement to investigate whether a suspect is complying with the CUA or MMP prior to seeking a search warrant. (People v. Clark (2014) 230 Cal.App.4th 490, 499-500; People v. Fisher (2002) 96 Cal.App.4th 1147,1152.)
In People v. Clark, supra, 230 Cal.App.4th 490, the trial court denied the defendant's motion to suppress evidence of illegal marijuana cultivation and sale discovered pursuant to a search warrant. The supporting affidavit stated the police had received information from a confidential informant that the defendant was growing marijuana illegally in his garage. (Id. at p. 494.) During surveillance, the police detected a strong marijuana smell from the garage and observed an air conditioner running in the garage, even though it was a cold night. (Ibid.) In the officer's experience, indoor marijuana growing operations often require an air conditioner to cool the room. (Ibid.) The defendant argued he was cultivating the marijuana legally under the CUA and the affidavit did not establish probable cause because it did not address whether the marijuana was cultivated or possessed for medical purposes. (Id. at p. 495.) The appellate court disagreed, concluding the CUA did not "impose an affirmative duty on law enforcement officers to investigate a suspect's status as a qualified patient or primary caregiver under the act prior to seeking a search warrant." (Id. at pp. 499-500.) Although the CUA "provides a defense at trial or a basis to move to set aside the indictment or information prior to trial, it does not shield a person suspected of possessing or cultivating marijuana from an investigation or arrest." (Ibid.)
Similarly, in People v. Fisher, supra, 96 Cal.App.4th 1147, the police obtained a search warrant for the defendant's property based on their observation during a flyover of at least three marijuana plants near the defendant's home. (Id. at p. 1149.) Before officers could execute the warrant, the defendant showed them a "certificate" purporting to be a physician's permission to possess marijuana for medical use under section 11362.5. (Fisher, at p. 1149.) The officers believed a crime may have nevertheless been committed, so they searched the residence and found marijuana and additional contraband. (Ibid.) The defendant filed a motion to suppress, arguing the officers no longer had probable cause to search once they were shown the certificate. (Id. at p. 1150.) The appellate court affirmed the trial court's denial of the motion, reasoning the defendant's "claim to the officers that he had a certificate that allowed him to legally possess marijuana for medicinal purposes asserted an affirmative defense. Investigation of the truth and legal effect of defenses to criminal charges is what motions and trials are for; to hold otherwise would create disorder and confusion." (Id. at pp. 1150, 1152.)
Despite defendant's arguments, St. Pierre's affidavit provided substantial evidence of a fair probability that evidence of a crime would be found at defendant's residence. The police observed multiple suspected marijuana plants growing on defendant's property in June, August, and September 2013, in an amount "well above" what would be needed for personal medical use. St. Pierre also observed a suspected light hood that is often used in indoor growing operations. There was also evidence defendant was selling marijuana for an "average" price of $25 for one eighth of an ounce, including a video ad for Green Cuisine marijuana delivery service in the Sacramento area and five listings on "weedmaps.com," for Green Cuisine delivery services based in southern California. St. Pierre learned Detective Griffin was investigating defendant and the property for marijuana sales, including transporting marijuana to sell it at southern California dispensaries.
In any event, defendant's arguments do not show he was lawfully operating a marijuana business. Although defendant had a business license for Green Cuisine and stated in a video that he tried to "keep the medication priced fairly," these facts alone are insufficient to establish defendant was lawfully operating a marijuana collective or cooperative. Regardless, "[i]n assessing the affidavit's facts it is possible to imagine '[s]ome innocent explanation. . . . But "[t]he possibility of an innocent explanation does not deprive the [magistrate] of the capacity to entertain a reasonable suspicion." ' " (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784; see also Gates, supra, 462 U.S. at p. 245, fn. 13 ["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 non-criminal acts"].)
Moreover, cooperatives or collectives must not only obtain a business license but also must comply with all laws. (See §§ 11362.765, subd. (a), 11362.768; Guidelines, § IV.C.2, p. 11.) Whether defendant was previously complying with the laws is not material to whether he was doing so at the time the warrant was issued, especially since his prior store had been shut down due to municipal code violations and he had failed to comply with a court-issued injunction. Defendant's self-serving statement in his video that he operated "within all of [the State G]uidelines" did not mean he was doing so. (See Fisher, supra, 96 Cal.App.4th at p. 1152 [defendant's claim he had a certificate allowing him to legally possess marijuana was an affirmative defense and did not negate probable cause].)
On this record, we conclude there was sufficient evidence to establish probable cause for the search warrant.
C.
No "Franks" Evidentiary Hearing was Required
Under Franks, supra, 438 U.S. 154, "A defendant has 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. The trial court must conduct an evidentiary hearing only 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." (People v. Scott (2011) 52 Cal.4th 452, 484, citing Franks, supra, 438 U.S. at pp. 154-156.)
Similarly, "[a] defendant can challenge a search warrant by showing that the affiant deliberately or recklessly omitted material facts that negate probable cause when added to the affidavit." (People v. Eubanks (2011) 53 Cal.4th 110, 136.) Still, not all omissions make an affidavit "inaccurate." (People v. Sandoval (2015) 62 Cal.4th 394, 410 (Sandoval).) "First, the reviewing court must determine whether any omissions asserted are material. . . . Because an affidavit with no material omissions is substantially accurate and truthful, it corresponds for most purposes to an affidavit with no misstatements. Once all the asserted omissions have been deemed immaterial, the primary question is whether the affidavit on its face supports probable cause. If it does, the warrant usually must stand. [Citations.] [¶] If an omission is found material, the reviewing court must next determine . . . whether it arose innocently or from culpable conduct." (People v. Kurland (1980) 28 Cal.3d 376, 387.)
Omissions are material if they render the affidavit " 'substantially misleading,' " that is, " 'if, because of their inherent probative force, there is a substantial possibility [the omitted facts] would have altered a reasonable magistrate's probable cause determination.' " (Sandoval, supra, 62 Cal.4th at p. 410; see also People v. Lee (2015) 242 Cal.App.4th 161, 171-172.) Accordingly, "[a] defendant who challenges a search warrant based on omissions in the affidavit bears the burden of showing an intentional or reckless omission of material information that, when added to the affidavit, renders it insufficient to support a finding of probable cause." (People v. Scott, supra, 52 Cal.4th at p. 484.)
The "substantial showing" required for a Franks hearing poses a high threshold. (People v. Estrada (2003) 105 Cal.App.4th 783, 790 ["Because of the difficulty of meeting the 'substantial preliminary showing' standard, Franks hearings are rarely held"].) There is "a presumption of validity with respect to the affidavit supporting the search warrant" that defendant must overcome with "allegations of deliberate falsehood or of reckless disregard for the truth, . . . accompanied by an offer of proof." (Franks, supra, 438 U.S. at p. 171.) We review the denial of a Franks hearing de novo. (Sandoval, supra, 62 Cal.4th at p. 410.)
Defendant claims St. Pierre's affidavit mischaracterized the information from Detective Griffin and attempted to portray it as evidence of illegal marijuana sales. According to defendant, St. Pierre omitted exculpatory information, including that his internet searches established defendant was in compliance with CUA and MMP.
On this record, we conclude defendant has not established St. Pierre misrepresented whether Detective Griffin was investigating defendant for marijuana sales. Although the police and sheriff departments' responses to defendant's subpoena did not contain a report from Griffin detailing any investigation regarding marijuana, this is not dispositive. Two of the incident reports provided information that (1) defendant was referred to SIU in August 2010 after police received information he had 700 marijuana plants at his residence without a prescription, and (2) SIU was aware in July 2010 of a marijuana growing operation in defendant's backyard.
Moreover, whether Detective Griffin was investigating defendant for marijuana sales was not material to the magistrate's determination of probable cause. (See People v. Hobbs (1994) 7 Cal.4th 948, 974 [defendant may only prevail if the allegedly false statement is necessary to the finding of probable cause].) St. Pierre based his conclusion that defendant was commercially cultivating marijuana with the intent to sell it on (1) the video where defendant states he was the founder and CEO of Green Cuisine, (2) defendant's valid business permit for Green Cuisine, and (3) the large quantity and size of the marijuana plants police observed, being "well above that of what would be needed for personal medical use." Even if we do not include the information from Detective Griffin, we conclude the affidavit contains more than sufficient evidence for probable cause.
As to any omitted exculpatory information, including that his internet searches established defendant was in compliance with CUA and MMP, we conclude there were no material omissions. According to defendant, St. Pierre knew or should have known defendant had lawfully used, possessed, cultivated, and sold marijuana "for years," via a lawful medical marijuana collective under the CUA and the MMP. Defendant points to his medical marijuana operation in Placer County from 2006 to 2012. According to defendant, the police investigation of Roseville Compassionate Care showed defendant operated a lawful collective, where volunteers checked for verifiable recommendations from licensed physicians and obtained members' driver's license information. In addition, local law enforcement officers "never" obtained any evidence of illegal marijuana sales or cultivation in Rocklin, despite knowing about his activities, as indicated in the police reports in July 2010, August 2010, October 2010, and February 2012.
Defendant also claims the information in St. Pierre's affidavit established defendant was operating a medical marijuana collective in compliance with the CUA and MMP. According to defendant, St. Pierre must have realized the 99 plants he observed growing on defendant's property were consistent with defendant growing marijuana for Green Cuisine. Defendant notes St. Pierre found defendant's business license for Green Cuisine and watched defendant's YouTube videos regarding marijuana cultivation and delivery. Defendant points to the transcript of a YouTube video he submitted in support of his motion to traverse that described Green Cuisine as a collective that "operate[s] within all of [the State G]uidelines."
Contrary to defendant's argument that the affidavit omitted exculpatory information showing defendant was in compliance with CUA and MMP, defendant admits the affidavit included information about defendant's marijuana operation. Defendant believes this information shows his marijuana operation was lawful and, therefore, there was no probable cause to issue a search warrant. Defendant's argument misses the mark; he disagrees with the conclusion reached by St. Pierre that the information in the affidavit provided substantial evidence of a fair probability evidence of a crime would be found at defendant's residence. To the extent there were any omissions, we conclude they were not material because, as we explained above, there is no requirement for law enforcement officers to investigate whether a defendant's marijuana possession or cultivation is lawful prior to issuing a search warrant.
We conclude St. Pierre did not omit information material to the determination of probable cause, and the affidavit on its face supported probable cause. (People v. Kurland, supra, 28 Cal.3d at p. 387 [if the asserted omissions are immaterial and the affidavit on its face supports probable cause, "the warrant usually must stand"].) We also conclude that even without the information from Detective Griffin, there was sufficient evidence in the affidavit to establish probable cause for the search warrant.
II
Motion to Quash Subpoena for WSIN
Given our conclusion there was sufficient probable cause even without the information from Detective Griffin, we need not reach defendant's contentions regarding the motion to quash the defense subpoena served on WSIN. Whether Griffin was investigating defendant was not material to whether there was probable cause to issue the search warrant.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
MURRAY, J.