Opinion
H035334
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. DANIEL PLANCARTE, et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC896684)
Following the denial of motions to discover information relating to a confidential informant, to quash a search warrant, and to suppress evidence pursuant to Penal Code section 1538.5, defendant Daniel Plancarte pleaded no contest to manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), possessing methamphetamine for sale (Health & Saf. Code, § 11378), possessing cocaine for sale (Health & Saf. Code, § 11351), and endangering the health of a child (§ 273a, subd. (a)); defendant Daniel Charles Martinez pleaded no contest to conspiracy (§ 182, subd. (a)(1)) and possessing methamphetamine for sale; and defendant Gabriela Toscano pleaded no contest to endangering the health of a child and making space available for manufacturing controlled substances (Health & Saf. Code, § 11366.5). The trial court sentenced Plancarte to prison for five years and Martinez to prison for three years eight months. As to Toscano, the court suspended imposition of sentence and placed her on probation for four years.
All further unspecified statutory references are to the Penal Code.
On appeal, defendants contend that the trial court erred in denying their motions. For the reasons we state below, we will affirm all three judgments.
BACKGROUND
The Search Warrant Affidavit
On February 15, 2008, California Highway Patrol (CHP) Officer Edward Whitfield applied for a warrant to search the premises at 2475 Glen Angus Way in San Jose and 2597 Borax Drive in Santa Clara. According to Officer Whitfield's affidavit in support of a warrant, he had been a CHP officer since August 1995, and an active member of the California Narcotics Officers Association since 2000, and he had training and experience relating to the manufacturing and sale of controlled substances as well as relating to the recognition of the objective symptoms displayed by people under the influence of a controlled substance. Whitfield stated that X, a confidential informant, assisted him in his investigation in this matter for consideration on pending charges. The magistrate could assume that X has prior felony convictions, but that X does not have any prior conviction for providing false information to the police.
Within the eight months prior to the preparation of the affidavit, X stated that Martinez is a "long time" methamphetamine seller. He stores and sells the drug from the Borax Drive residence. X stated that people will "come and go from the residence, staying short periods of time," in order to buy methamphetamine from Martinez. X stated that this pattern has been occurring for "a long period of time," and that Martinez is a "full time" methamphetamine seller whose income is derived primarily from drug sales. X also stated that Martinez uses his blue and white van to deliver drugs to customers. After receiving this information, Whitfield "ran" Martinez's criminal history and saw only an arrest for spousal battery (§ 243, subd. (e)) in 2004, which subsequently resulted in a conviction for disturbing the peace (§ 415).
Santa Clara County Specialized Enforcement Team (SCCSET) agents "periodically" surveilled the Borax Drive residence over several months after receiving X's information. Within the 30 days prior to the preparation of the affidavit, SCCSET agents observed "several persons come and go" from Martinez's home, "staying short periods of time." "One person, late at night, parked her vehicle near the residence, and walked to the gate. She stayed at the gate, appearing to place her hands near the top of the gate and/or fence area. She soon left the area. Another person arrived, entering the residence and staying a short time before departing. On another occasion a white female adult parked near the side gate of the residence. She walked to the gate and entered into the rear yard. After approx. five minutes she exited the residence through the side gate and drove away in her vehicle. A registration check was made on the license plate of the White female adult's vehicle which returned to a Debra Anne Vanek with an address out of Campbell, Ca. A CJIC check to Debra Vanek revealed that she has an outstanding warrant for a narcotic related offense."
On January 30, 2008, SCCSET agents again surveilled the Borax Drive residence. "Agents observed Martinez drive away from his residence, in his above described van. Martinez first went to a nearby bank, where he entered the facility. He soon exited, holding an envelope. This was consistent with the withdrawing of a large amount of money, over the ATM limit, which is generally $300. Martinez then drove to the city of San Jose. He exited on Tully Road driving in a westerly direction. He conducted several turns in a neighborhood before driving back to the east side of the freeway, and several miles towards a residential area. This driving pattern was consistent with counter surveillance driving techniques. [Whitfield was] familiar with drug traffickers using this technique to detect and or elude police, based on [his] experience. After this flurry of turns in an unrelated neighborhood, Martinez drove directly to the area of 2475 Glen Angus Way. [¶] Martinez exited his vehicle and walked to the house. He was allowed in by unknown persons. The garage door soon rolled up approximately one third of the way. Based on [Whitfield's] experience, [he] know[s] that drug sales and or the weighing of drugs is often done in the garage, often to keep unrelated residents or family members away from the illicit activity. The garage is also often rolled up slightly to allow drug odors to exit the garage, but not rolled up completely to prevent law enforcement or other persons to see what is occurring inside. [¶] After approximately thirty minutes, Martinez exited the garage, which rolled up quickly before rolling back down. Martinez was carrying a cardboard box. The box appeared to be a portable fan box. It should be noted that it was a cold, rainy day when this was occurring, and there are plenty of retail stores which sell fans closer to Martinez'[s] Santa Clara residence than the Glen Angus Way residence. Agents followed Martinez as he drove off from the residence. He drove away from the way he came in [sic], and performed several counter surveillance techniques similar to what he did when he first exited the freeway in the general area. He stopped in the roadway, conducted several turns for no apparent reason, driving very slow at one point, before departing. Agents followed him directly back to his residence in Santa Clara at 2597 Borax Drive. Based on [Whitfield's] experience, [he] suspected what had occurred was consistent with a person purchasing a large amount of illicit drugs from the Glen Angus residence."
SCCSET agents began watching the Glen Angus Way residence. Within the 10 days prior to the preparation of the affidavit, SCCSET agents observed "suspected 'customers' come and go to the house, staying a short period of time. On February 6th, Agents observed a Hispanic male adult park in the driveway of the residence and walk to the front door. The door was opened and closed and then the Hispanic male walked back to the side of his vehicle and waited as someone inside the residence opened the garage door. Shortly afterwards the Hispanic male exited the garage of the residence and entered into his vehicle and drove away. [¶] Also on February 6th, Agents observed a Hispanic male adult park across the street from the residence and walk to the front door. The subject was let inside. While the subject was inside, two other males who had been inside walked out a side door from the garage area, with one of the males walking to the rear of a vehicle parked in the driveway. This male soon entered the passenger side of the vehicle, before returning back inside what appeared to be the garage area via the north side of the residence. Approx. five to ten minutes later, the original male, the suspected buyer, walked outside and directly back to his vehicle. He entered his vehicle and drove off. [Whitfield] recognized this pattern as being consistent with a buyer of methamphetamine, and suspected that is what the male just purchased. [¶] After the male drove off, he committed California Vehicle [Code] Violations and a vehicle stop was initiated by San Jose Police Department uniformed Officer Cusimano. The male, identified as Eduardo Cortez, had an outstanding warrant for his arrest. He also displayed symptoms consistent with drug use- red/glassy eyes which had little reaction to light, nervous behavior, etc. A search of the area near where Cortez sat, incident to his arrest, revealed a small baggy of methamphetamine hidden in the center console area. The baggy was wrapped in paper, and appeared clean and newly packaged, as if just purchased. The amount was approximately one half gram of methamphetamine, which [Whitfield] recognized as a usable amount. [Whitfield] also recognized it as an amount that a buyer would normally purchase from a drug seller. [Whitfield] spoke with Cortez, who said he had just come from eating dinner, and was driving back home. He said he had no knowledge of where the drugs could have come from, though he later admitted to being a user of illicit drugs. [Whitfield] did not tell him of SCCSET Agents' observations of him just visiting a suspected methamphetamine selling residence, and that he appeared to have just purchased it. Cortez was booked into jail. A 'narco-pouch' test was conducted on the suspected methamphetamine. The substance tested positive for methamphetamine. From [Whitfield's] training and experience in narcotic related investigations, [he] know[s] that the 'narco-pouch' test is a reliable and accurate mechanism by which to determine the presence of methamphetamine."
Within the 10 days prior to the preparation of the warrant, Whitfield "observed a Hispanic male adult exit the residence located at Borax Drive through the side gate. The Hispanic male drove away from the residence on a motorcycle. Agents followed the motorcycle away from the residence and obtained a license plate. A check of the license plate revealed that the owner had a suspended Driver's License and a history of narcotic violations. Other arrivals had similar patterns of arriving and or visiting a short time. Based on [Whitfield's] experience, [he] recognized these short visits as being consistent with persons purchasing illicit narcotics."
SCCSET Agent S. Munoz conducted an employment check of Martinez through EDD and found that Martinez had not been employed since the fourth quarter of 2006. Whitfield checked a public information database and found that the owner of the Glen Angus Way residence is Gabriela Toscano. Whitfield conducted a DMV driver's license search and found a match to Toscano and the Glen Angus Way address. However, agents had not seen any females enter or exit the residence while conducting surveillance at the residence.
"Based on the totality of the above facts and circumstances," Whitfield believed that the residents at the Glen Angus Way address and Martinez at the Borax Drive address, "are presently selling methamphetamine and conspiring to sell methamphetamine, and that they may possess more methamphetamine for sale located at these residences, in addition to evidence that could identify Martinez'[s] co-conspirators." "Based on the totality of the above facts and circumstances," Whitfield believed that evidence of commission of a felony (possession of methamphetamine for sale, Health & Saf. Code, § 11378) and property used in the commission of the felony "will be located at the above-described premises, and the attachments and appurtenances thereto, including the surrounding grounds and any yards, garages, carports, storage areas and sheds . . . and all containers therein and thereon which could contain any of the items sought . . . ." The items sought included methamphetamine, scales suitable for weighing methamphetamine, packaging materials for methamphetamine such as baggies, cutting agents such as MSM, and drug paraphernalia.
The search warrant was issued the same day. The items seized pursuant to the warrant in the subsequent search of the Glen Angus Way residence included a loaded firearm; a total of about 720 grams of methamphetamine; 9.7 grams of cocaine; 16.7 grams of marijuana; and glassware items, containers, and chemicals consistent with manufacturing methamphetamine. Inside the master bedroom of the residence at the time of the search were Toscano, her 11-month old child, and Plancarte; inside a second bedroom was Jose Reyes; and inside a third bedroom was Asuncion Rueda.
The items seized pursuant to the warrant in the subsequent search of a dresser in Martinez's bedroom inside the Borax Drive residence included 4.7 grams of methamphetamine, two digital scales, 50 miscellaneous small baggies, a glass pipe with white powder residue, a bottle of MSM, and an unloaded firearm. Also seized from the Borax Drive residence was a piece of paper found on the refrigerator in the kitchen which contained specific ingredients used to manufacture methamphetamine. In addition, the officers observed in a room off the kitchen "an exhaust set-up fan system with duct tape, plastic tubing, heating element, stained 22 liter glass flask, additional glassware, buckets containing chemicals and numerous black plastic bags containing containers," which were consistent with the manufacturing of methamphetamine.
The Procedural History
By first amended/consolidated felony complaint, Plancarte and Toscano were charged with manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a); count 1), possessing a methamphetamine for sale (Health & Saf. Code, § 11378; count 2), possessing cocaine for sale (Health & Saf. Code, § 11351; count 3), and endangering the health of a child (§ 273a, subd. (a); count 7). Martinez was charged with conspiracy to commit a violation of Health and Safety Code section 11379.6, subdivision (a) (§ 182, subd. (a)(1); count 8), and possessing methamphetamine for sale (count 9). The complaint further alleged that Plancarte and Toscano were both armed with a firearm in the commission of the offense in count 1 (§ 12022, subd. (a)(1)); that they knew that a principle in the commission of the offenses in counts 1, 2, and 3, was personally armed with a firearm (§ 12022, subd. (d)); that Plancarte had a prior drug conviction (§ 1203.07, subd. (a)(11)), and that Martinez was personally armed with a firearm in the commission of the offenses in counts 8 and 9 (§ 12022, subd. (c)).
The complaint also including charges against Jose Luisgarcia Reyes and Rueda Ambriz Asuncion, neither of whom are parties to this appeal. Reyes has filed a separate appeal (H035299), which the court ordered considered with this appeal. We have disposed of that appeal by separate opinion.
On August 5, 2008, Plancarte moved to suppress evidence seized from his residence pursuant to the search warrant, contending that the warrant was issued without probable cause. Plancarte also moved to discover information regarding the confidential informant referred to in the affidavit underlying the warrant. Toscano and Martinez later joined in the motions. The People filed opposition to the motion to quash the search warrant and to suppress the evidence seized.
A joint preliminary examination and hearing on the motions was held on October 20, 2008. The court informed the parties that it had already held an in camera review of the documents relating to the confidential informant and had "found nothing in the documents that would [impugn] the veracity or sufficiency of the affidavit in support of the search warrant nor would be germane under the Luttenberger or Rivas cases."After hearing argument on the motion to quash the search warrant and suppress the evidence seized, the court denied the motion stating: "I think that the defense indulges in many possible scenarios that are innocent activity, but notwithstanding that such activities do not necessarily dispel the reasonable subjective conclusion by the affiant.
Sealed copies of the documents presented to the trial court and a sealed transcript of the in-camera hearing are included in the record on appeal.
People v. Luttenberger (1990) 50 Cal.3d 1 (Luttenberger); People v. Rivas (1985) 170 Cal.App.3d 312, disapproved on another point in People v. Luttenberger, supra, 50 Cal.3d at pp. 20-21.
I think, Leon[ surely does apply in this matter and would be another reason for denying the motion at this level."
United States v. Leon (1984) 468 U.S 897 (Leon).
The court granted the People's motion to amend the complaint by striking the arming allegations as to Plancarte and Toscano in counts 1, 2, and 3. The parties then stipulated that if Officers Clint Tada, Gabriel Escobedo, and Edward Whitfield were called to testify, and they testified consistently with what was contained in police reports, there would be sufficient evidence to support the counts in the amended complaint relating to the three defendants. Based on the stipulation, the court held the defendants to answer on the amended complaint.
On October 30, 2008, an information was filed charging Plancarte and Toscano with manufacturing methamphetamine (count 1); possessing methamphetamine for sale (count 2); possessing cocaine for sale (count 3); and endangering the health of a child (count 5); and Martinez with conspiracy to commit a violation of Health and Safety Code section 11379.6, subdivision (a)(count 6); and possessing methamphetamine for sale (count 7). The information also alleged that Plancarte had a prior drug offense, and that Martinez was personally armed with a firearm during the commission of counts 6 and 7.
On November 19, 2008, Plancarte filed a motion seeking de novo review pursuant to section 1538.5, subdivision (i), of the denial of his motion to suppress. Martinez filed a separate motion to suppress on November 26, 2008. Toscano filed a joinder as to both motions. The People filed opposition to the motions. On January 16, 2009, after hearing argument from the parties, the court found that the affidavit in support of the search warrant set forth probable cause to search both the Borax Drive and the Glen Angus Way residences, and therefore denied the motion to suppress.
On February 5, 2009, Plancarte filed a motion "to reopen his previously filed Motion to Suppress and for a Franks hearing, pursuant to Penal Code § 1538.5." Toscano and Martinez later joined in the motion, and the People filed opposition. On June 30, 2009, after hearing argument from the parties, the court denied the motion to reopen the motion to suppress. The court also found that "the facts brought forth by the defendants . . . do not rise to the required level to warrant a Franks hearing."
Franks v. Delaware (1978) 438 U.S. 154.
The Pleas and Sentencing
On September 21, 2009, the People amended the information to add as count 8, a charge against Toscano of making space available for manufacturing controlled substances (Health & Safety Code, § 11366.5). Toscano then pleaded no contest to count 5 (endangering the health of a child, § 273 a, subd. (a)), and count 8, on condition that she receive felony probation. Plancarte entered a "no conditions plea" of no contest to count 1 (manufacturing methamphetamine, Health & Saf. Code, § 11379.6, subd. (a)), count 2 (possessing methamphetamine for sale, Health & Saf. Code, § 11378), count 3 (possessing cocaine for sale, Health & Saf. Code, § 11351), and count 5 (endangering the health of a child), and he admitted that he had a prior drug conviction. Martinez entered a no contest plea to count 6 (conspiracy, § 182, subd. (a)(1)) and count 7 (possessing methamphetamine for sale), and admitted the personal arming allegation as to both counts (§ 12022, subd. (c)).
On February 4, 2010, the court sentenced Martinez to three years eight months in prison. The sentence consists of the mitigated term of three years for the conspiracy count and a consecutive term of eight months (one-third the middle term) on the possession count. The court struck the punishment for the personal arming enhancement. The court sentenced Plancarte to prison for five years. The sentence consists of the middle term of five years for the manufacturing count, and concurrent terms for the remaining counts. The court struck the additional punishment for the prior. The court suspended imposition of sentence for Toscano and placed her on probation for four years with various terms and conditions, including that she serve one year in county jail.
DISCUSSION
The Parties' Contentions
Martinez contends that the trial court erred in denying his motion to suppress the evidence seized because the search warrant was issued based on a "fatally flawed" affidavit and the "good faith exception" in Leon did not apply. He argues that the affidavit failed to establish the reliability of the confidential informant, the information provided by the informant was stale, and the affidavit failed to corroborate the tip provided by the informant. Martinez argues that the affidavit did not provide probable cause to search his residence on Borax Drive because the observations of people coming and going from his residence as well as the observation of his trip to the bank were "meaningless"; the officer's beliefs about Martinez's activities while going to and from, and while at, Toscano's residence relating to Martinez were "mere conjecture" or "gross speculation"; and the arrest of Eduardo Cortez after leaving Toscano's residence did not provide any information linking the drugs found in his car to Martinez's residence. Martinez also argues that it was objectively unreasonable for Officer Whitfield to believe that the affidavit in support of the search warrant contained sufficient indicia of probable cause. In addition, Martinez joins in the arguments of Plancarte and Toscano.
Plancarte first requests that this court review in camera the sealed materials submitted to the trial court relating to the veracity of the confidential informant to determine whether the trial court complied with the procedures set forth in Luttenberger, and whether the reviewed materials contained information "that tended to contradict a material misrepresentation, or that constituted a material omission from the search-warrant affidavit." Plancarte then contends that "the facts of the instant case did not amount to a situation which justifies probable cause to believe that there was a nexus between Plancarte, the alleged criminal activities, and the two premises." Lastly, Plancarte contends that "[u]nder the circumstances here, the Leon good faith exception is inapplicable because no reasonably objective police officer could have concluded that, as to Plancarte, the warrant was supported by probable cause." Plancarte also joins in the arguments raised by Martinez and Toscano.
Toscano contends that the search warrant affidavit fails to establish probable cause that her Glen Angus Way residence was being used for either drug sales or manufacturing. Toscano further contends that "neither well trained police officers, nor thoughtful and competent jurists would reach any different conclusion." Toscano also joins in the arguments raised by Martinez and Plancarte.
The People agree with defendants that, in order to resolve their claims, this court should review the sealed documents. Nevertheless, the People contend that the affidavit submitted to the magistrate established probable cause to believe that drugs were possessed and being sold at both the Borax Drive and the Glen Angus Way residences. The People further contend that, in the event this court finds that probable cause did not support the warrant, the good faith exception in Leon should apply.
Analysis
Discovery of Information Regarding the CI
In Luttenberger, our Supreme Court fashioned a detailed set of rules to govern discovery of information relating to misstatements or omissions in a search warrant affidavit that relies on a confidential informant for its probable cause showing. "The decision whether to convene an in camera examination or to order discovery will remain a matter within the trial court's discretion. [Citations.]" (Luttenberger, supra, 50 Cal.3d at p. 21.) "To obtain an in camera hearing, however, the defendant must raise a substantial possibility that the allegedly untrue statements were material to the probable cause determination." (Id. at p. 23.) "A defendant is not entitled to require the trial court to examine the documents in question, and to expurgate and produce them, absent some showing that the presumptively valid warrant affidavit is questionable in some way." (Id. at p. 21.) "Once this preliminary showing is made, the trial court should determine, in its in camera examination of the police records specified by the defendant, whether the defendant's allegations of material misrepresentations or omissions are supported by the requested materials. If the trial court decides the documents do not support defendant's charges of misrepresentation, the court should report only this conclusion to the defendant, and should not order production of any of the reviewed materials. [Citations.]" (Id. at p. 24; see also People v. Hobbs (1994) 7 Cal.4th 948, 974 (Hobbs).)
"In all instances, a sealed transcript of the in camera proceedings, and any other sealed or excised materials, should be retained in the record along with the public portions of the search warrant application for possible appellate review. [Citations.]" (Hobbs, supra, 9 Cal.4th at p. 975.) On appeal, the appellate court conducts an independent review of the record and sealed materials. (People v. Martinez (2005) 132 Cal.App.4th 233, 241; see also Hobbs, supra, at pp. 976-977.)
We have reviewed the sealed documents presented to the trial court as well as the sealed transcript of the in camera hearing, and, like the trial court, we have found "nothing in the documents that would [impugn] the veracity or sufficiency of the affidavit in support of the search warrant nor would be germane under . . . Luttenberger . . . ."
The Motion to Suppress
"Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, 'the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness.' [Citation.]" (People v. Hua (2008) 158 Cal.App.4th 1027, 1033; see also People v. Snead (1991) 1 Cal.App.4th 380, 383-384.)
"We summarize the relevant legal principles governing an appellate challenge to the validity of a search warrant and the search conducted pursuant to it. The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. (Illinois v. Gates (1983) 462 U.S. 213, 238-239 . . . .) 'The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him [or her], 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, supra, at p. 238.) In a pre-Proposition 8 case, we stated: 'In determining the sufficiency of an affidavit for the issuance of a search warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant, . . . [citations], namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.' [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041 (Kraft).) The magistrate must "consider [the officer's] affidavit in its entirety, giving significance to each relevant piece of information and balancing the relative weights of all the various indicia of reliability (and unreliability) attending the tip." (Massachusetts v. Upton (1984) 466 U.S. 727, 732.)
"The magistrate's determination of probable cause is entitled to deferential review." (Kraft, supra, 23 Cal.4th at p. 1041; Illinois v. Gates, supra, 462 U.S. at p. 236.) "Accordingly, the magistrate's determination will not be overturned unless the supporting affidavit fails as a matter of law to support the finding of probable cause. (People v. Hobbs[, supra,] 7 Cal.4th [at p.] 975 . . . .)" (Fenwick & West v. Superior Court (1996) 43 Cal.App.4th 1272, 1278.) " ' "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." ' [Citations.]" (People v. Weiss (1999) 20 Cal.4th 1073, 1082-1083.) "Doubtful or marginal cases are resolved in favor of upholding the warrant. [Citations.]" (Fenwick & West, supra, at p. 1278.)
The existence of probable cause for issuing a search warrant is measured by a "totality-of-the-circumstances approach." (Illinois v. Gates, supra, 462 U.S. at p. 230.) "[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules." (Id. at p. 232.) "Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision. While an effort to fix some general, numerically precise degree of certainty corresponding to 'probable cause' may not be helpful, it is clear that 'only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.' [Citations.]" (Id. at p. 235.)
" '[A]n untested noncitizen informant's claims must be independently corroborated . . . .' [Citation.] The corroboration need not, however, be in any particular form," and it need not be all-encompassing. (People v. Clark (1992) 3 Cal.4th 41, 141; see also Idaho v. Wright (1990) 497 U.S. 805, 832-833.) " 'Because unverified information from an untested or unreliable informant is ordinarily unreliable, it does not establish probable cause unless it is "corroborated in essential respects by other facts, sources or circumstances." [Citations.] For corroboration to be adequate, it must pertain to the alleged criminal activity; accuracy of information regarding the suspect generally is insufficient. [Citation.] Courts take a dim view of the significance of "pedestrian facts" such as a suspect's physical description, his residence and his vehicles. [Citation.] However, the corroboration is sufficient if police investigation has uncovered probative indications of criminal activity along the lines suggested by the informant. [Citation.] Even observations of seemingly innocent activity provide sufficient corroboration if the anonymous tip casts the activity in a suspicious light.' [Citation.]" (People v. Gotfried (2003) 107 Cal.App.4th 254, 263-264; see also People v. Clark, supra, 3 Cal.4th at p. 141.) "For corroboration to be incriminating it is not necessary that the activities the police observe point unequivocally toward guilt. It is sufficient that those activities give rise to a reasonable inference or strong suspicion of guilt." (People v. Kershaw (1983) 147 Cal.App.3d 750, 759.)
However, "the reliability of an informant is now just one factor to consider in assessing probable cause . . . ." (People v. Mayer (1987) 188 Cal.App.3d 1101, 1116, citing Illinois v. Gates, supra, 462 U.S. at p. 233.) "Stale information in a search warrant affidavit does not establish present probable cause for a search." (People v. Hirata (2009) 175 Cal.App.4th 1499, 1504.) "As a general rule, information is stale, and hence unworthy of weight in the magistrate's consideration of an affidavit, unless the information consists of 'facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.' [Citations.] No clear cut rule, of course, tells us when the time span must be deemed too attenuated. 'The length of the time lapse alone is not controlling since even a brief delay may preclude an inference of probable cause in some circumstances while in others a relatively long delay may not do so. Nonetheless, there are obviously some limits.' [Citation.]" (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393.) "[I]t is well settled that evidence more than four weeks old is generally considered too stale for the magistrate to issue a warrant [citation] . . . ." (People v. Hulland (2003) 110 Cal.App.4th 1646, 1655 (Hulland); Hemler v. Superior Court (1975) 44 Cal.App.3d 430, 434.)
But where the circumstances "justify a person of ordinary prudence to conclude that the alleged illegal activity had persisted from the time of the stale information to the present, then the passage of time has not deprived the old information of all value." (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1718.) Thus, the fact that the activity is likely to be ongoing negates the staleness of older information, and older activity may be coupled with more recently obtained information so as to justify the finding of probable cause. (Hulland, supra, 110 Cal.App.4th at p. 1655.) And, in any event, "the question of staleness depends on the facts of each case." (People v. Gibson (2001) 90 Cal.App.4th 371, 380.)
In Leon, the United States Supreme Court held that "evidence may not be suppressed if the officer executing the warrant relies in good faith on a warrant issued by a detached and neutral magistrate that later is determined to be invalid. An officer will have no reasonable grounds for believing the warrant was properly issued where the magistrate was misled by information in an affidavit which the officer knew or should have known was false, where the magistrate wholly abandoned his [or her] judicial role, where the affidavit was so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable, or when the warrant was so facially deficient that the officer could not reasonably presume it to be valid. ([Leon, supra, 468 U.S.] at p. 923.)
Application of the good faith exception requires a factual presentation of the officers' activity, which is then measured against a standard of objective reasonableness. [Citation.] This objective standard 'requires officers to have a reasonable knowledge of what the law prohibits.' [Citation.]" (People v. Gotfried, supra, 107 Cal.App.4th at pp. 264-265.)
In this case, an untested noncitizen confidential informant gave information to law enforcement officers that implicated Martinez in sales of methamphetamine from his Borax Drive residence, which reportedly had been occurring for a long period of time and from which Martinez reportedly primarily derived his income. Although the information from the informant may have been stale by the time an officer prepared the affidavit in support of a search warrant, officers undertook activities to corroborate the information to determine whether the alleged criminal activity had "persisted from the time of the stale information to the present." (People v. Mikesell, supra, 46 Cal.App.4th at p. 1718.) Some of the corroborating information may have been obtained as much as four weeks prior to the preparation of the affidavit, but some of it was obtained as recently as within the prior 10 days. The older activity could be coupled with the more recently obtained information so as to justify the finding of probable cause because the information the officers obtained indicated that the activity was likely to be ongoing. (Hulland, supra, 110 Cal.App.4th at p. 1655.)
Officers determined that Martinez had not been employed since the fourth quarter of 2006. He lived at the Borax Drive residence and he drove a van described by the confidential informant. Within 30 days prior to the preparation of the affidavit, officers observed two people late at night "come and go from the residence, staying short periods of time," as the confidential informant reported often occurred. On another occasion in that same time period, officers observed a woman who had an outstanding warrant for a narcotic-related offense arrive at the residence, enter it, and leave approximately five minutes later. Then, within 10 days prior to the preparation of the affidavit, officers observed a man who had a history of narcotic violations drive away from the residence, and other people visiting the residence for a short period of time. Based on the affiant's experience, he recognized these short visits to the residence as being consistent with persons purchasing controlled substances. " 'Even observations of seemingly innocent activity provide sufficient corroboration if the [confidential informant's] tip casts the activity in a suspicious light.' " (People v. Gotfried, supra, 107 Cal.App.4th at p. 264.)
Sixteen days before the preparation of the affidavit, on a cold, rainy day while the officers were attempting to obtain corroborating evidence of Martinez's reported criminal activity, they observed him drive from his residence to a nearby bank and leave the bank with an envelope. This was consistent with the withdrawal of an amount of cash over the ATM limit, which is generally $300. Martinez then drove from the bank to the Glen Angus Way residence. However, before driving directly to the residence, Martinez made several turns in a residential area on the other side of the freeway from that residence. Soon after Martinez entered the residence, the garage door rolled up approximately one third of the way. Martinez exited the garage approximately 30 minutes later carrying a cardboard box for what appeared to be a portable fan, and the garage door rolled back down. When Martinez drove away from the residence the same way he drove to it, he again made several turns for no apparent reason and stopped in the roadway before driving directly back to his own residence. Based on the affiant's experience, the affiant suspected that Martinez, a suspected methamphetamine dealer, had purchased a large amount of controlled substances in the garage of the Glen Angus Way residence. Within the 10 days prior to the preparation of the affidavit, officers observed other men come and go from the Glen Angus Way residence, staying a short period of time. Nine days before the preparation of the affidavit, officers conducted a traffic stop of a man who had just left the Glen Angus Way residence after staying there a short period of time. The man displayed symptoms consistent with drug use, and a search of his car revealed a small, recently packaged baggie containing a usable amount of methamphetamine in the center console. The Glen Angus Way residence was owned by Toscano, but officers had not seen any women enter or exit the residence during the time that they had conducted surveillance at the residence.
All of this recent information regarding the Glen Angus Way residence, together with all the information that the affiant had gathered regarding Martinez's activities at the Borax Drive residence, provided probable cause to believe that methamphetamine sales were occurring at the Borax Drive and the Glen Angus Way residences. Therefore, although the activities the officers observed during the 10 days just prior to the preparation of the affidavit did not point unequivocally toward Martinez's reported criminal activity at the Borax Drive and Glen Angus Way residences, those activities, together with the information obtained from the confidential informant within eight months of the preparation of the affidavit and the observations made within 30 days of the preparation of the affidavit, did give rise to a reasonable inference or strong suspicion of criminal activity at the residences. (People v. Kershaw, supra, 147 Cal.App.3d at p. 759; Hulland, supra, 110 Cal.App.4th at p. 1655.) Accordingly, we find that the affidavit provided probable cause for issuance of the search warrant for the Borax Drive and the Glen Angus Way residences.
Even if we were to find that the affidavit lacks sufficient indicia of probable cause to support issuance of a search warrant for one or both of the residences, we cannot say that "the affidavit was so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable." (People v. Gotfried, supra, 107 Cal.App.4th at p. 264; Leon, supra, 468 U.S. at p. 923.) Although the information provided by the confidential informant may have been stale, officers undertook activities to corroborate the information to determine whether the reported criminal activity was still ongoing at the Borax Drive residence. The officers recently observed activity that not only showed that the reported criminal activity at that residence was still ongoing, but that the criminal activity there was also linked to recent criminal activity at the Glen Angus Way residence. The observed activity included short visits to the Borax Drive residence by two people with narcotic-related offenses; a visit from Martinez, a suspected methamphetamine dealer, at the Glen Angus Way residence consistent with the purchase there of controlled substances; and a short visit of the Glen Angus Way residence by a person who both possessed methamphetamine and showed symptoms of drug use shortly after the visit. On this record, we believe that the officers executing the warrant relied in good faith on the issuance of the warrant. (Leon, supra, at p. 923.) The trial court did not err in denying defendants' motions to suppress.
DISPOSITION
The judgment as to Plancarte is affirmed. The judgment as to Martinez is affirmed. The judgment (order of probation) as to Toscano is affirmed.
BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
DUFFY, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.