Opinion
C077218
07-21-2017
THE PEOPLE, Plaintiff and Respondent, v. RYAN NEIL SHROPSHIRE, Defendant and Appellant.
MODIFICATION OF OPINION UPON DENIAL OF PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
Appellant's petition for rehearing is denied. It is ordered that the opinion filed herein on July 21, 2017, be modified as follows:
1. On page 16, footnote 6, in the first full sentence that reads, "Defendant also contends in his reply brief that the warrant was insufficiently specific as to places to be searched, apparently attempting to raise a facial deficiency argument" the words "apparently attempting to raise a facial deficiency argument" shall be deleted.
2. In the fourth sentence of footnote 6 that reads, "Not only does it specify a list of structures on the property that would necessarily include defendant's trailer, in attachment B, it specified '[a]reas of the residence, property, sheds, garages, barns, storage units, any and all vehicles, trailers and RV's under control of and having access to' both Roberts and defendant" we shall italicize the "and" between "Roberts and defendant."
3. After the fourth sentence of footnote 6, we shall insert a sentence with supporting authority, "As we have reasoned above, there was probable cause for searching both Roberts's and defendant's dwelling units on the property and the warrant was sufficiently specific that defendant's trailer was subject to search. (See People v. MacAvoy (1984) 162 Cal.App.3d 746, 753 [there must be probable cause to search each dwelling unit].)"
4. In the last sentence of the footnote that reads, "Defendant's belated argument is meritless" the word "belated" shall be deleted.
Footnote 6 shall now read:
Defendant also contends in his reply brief that the warrant was insufficiently specific as to the places to be searched. He claims that "[t]he warrant referred vaguely to 'outbuildings, trailer, . . .' [citation], but said nothing about [defendant]'s part of the property." Defendant misreads the warrant. Not only does it specify a list of structures on the property that would necessarily include defendant's trailer, in attachment B, it specified "[a]reas of the residence, property, sheds, garages, barns, storage units, any and all vehicles, trailers and RV's under control of and having access to" both Roberts and defendant. As we have reasoned above, there was probable cause for searching both Roberts's and defendant's dwelling units on the property and the warrant was sufficiently specific that defendant's
trailer was subject to search. (See People v. MacAvoy (1984) 162 Cal.App.3d 746, 753 [there must be probable cause to search each dwelling unit].) Defendant's argument is meritless.
As modified, the petition for rehearing is denied. This modification does not change the judgment. FOR THE COURT: MURRAY, J. BLEASE, Acting P. J. ROBIE, J. 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. 62128342)
Defendant Ryan Neil Shropshire appeals from a judgment of conviction in Placer County following a plea of no contest to one count of possession of concentrated cannabis in violation of Health and Safety Code section 11357, subdivision (a) (count two). He was sentenced to two years in state prison. This case involves a search warrant authorizing a search for stolen property in El Dorado County, the execution of which resulted in the seizure of controlled substances, which the Placer County prosecutor intended to use as evidence in this Placer County prosecution.
On appeal, defendant contends: (1) the trial court erred in denying his motion to quash the search warrant pursuant to section Penal Code section 1538.5 because the affidavit in support of the warrant did not provide probable cause and was based on stale information, and the searching officer did not have a good faith belief in the validity of the warrant, and (2) this court should independently review confidential information to determine whether it was properly sealed by the trial court and whether the court properly denied the motion to quash.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offense.
We have reviewed the confidential information and conclude the trial court did not err in denying the motion to quash.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Search Warrant
The search warrant and affidavit, both signed on February 16, 2014, alleged the following facts:
The warrant identified the place to be searched as 6600 Dewer Road, located in Garden Valley (the Dewer Road property), which was identified as the primary residence of Bryan Roberts. The warrant identified the searchable areas to include "any outbuildings, trailer, RV's, sheds, barns, vehicles or areas capable of being used to store or conceal items of evidence and stolen property." Additionally, the warrant identified both Roberts and defendant as persons to be searched.
El Dorado County Sheriff's Deputy Terrie Cissna recited the basis for the search warrant in an affidavit entitled statement of probable cause.
In describing her background, training, and experience, Deputy Cissna stated she had been a full-time deputy since 1997. She had worked as the lead investigator in more than 200 burglary and theft-related investigations involving receiving and the recovery of stolen property and vehicles. She located and assisted in the investigation of two stolen vehicle chop shops. She coordinated more than 150 probation/parole searches where stolen property was the subject of the search, and personally recovered such items during the execution of the searches. She had previously successfully obtained search warrants for stolen property and vehicles. She indicated she had received training relative to stolen property from two California Highway Patrol (CHP) Officers assigned to the Sacramento Valley Heavy Equipment/Stolen Vehicle Task Force, and an employee of Bobcast West of Sacramento, whose responsibility it was to train local law enforcement regarding the investigation and recovery of stolen Bobcat equipment. In May 2013, she attended an eight-hour seminar on heavy equipment theft sponsored by the Alameda County Sheriff's Department, CHP, and the National Equipment Register. The seminar covered trends related to the theft of commercial, agricultural, and heavy equipment such as tractors, backhoes, and other farming/industrial equipment. She had located and recovered stolen commercial equipment, including Bobcat skid steer loaders.
Deputy Cissna attested that in 2005 she had located a stolen truck at the Dewer Road property. That investigation led to Roberts's arrest and conviction for felony possession of stolen property, a vehicle.
On September 17, 2012, Deputy Cissna obtained and executed another search warrant for the Dewer Road property, and she found a Caterpillar 420 series backhoe, which was missing a serial number plate. Deputy Cissna suspected the backhoe was stolen and took steps to determine its serial number; however, the backhoe was not seized at that time due to its size. While executing this search warrant, Deputy Cissna contacted defendant, who was living in a trailer on the Dewer Road property and on active parole at that time. She noticed that defendant had several off-road vehicles with lift kits and oversized tires. None of those vehicles were determined to be stolen. Around October 2012, during an aerial surveillance flight over the Garden Valley area, Deputy Cissna noticed the backhoe was no longer on the property; she suspected that Roberts had taken steps to hide or conceal it.
Deputy Cissna further attested that on November 29, 2013, she took a report of burglary, grand theft, and vehicle theft from a property on Bear Creek Road, located about two miles south of the Dewer Road property. The owner, K.H., stated that someone had taken "ATV quads, a white Toyota 4x4 truck, numerous items of tools and equipment, growing supplies and equipment, compressors and a generator." K.H. told Deputy Cissna that he found tracks on an ATV trail that led down the hill east of his driveway and found a few smaller items on the ground along the trail that were missing from his garage. Deputy Cissna found that this ATV trail led east of K.H.'s driveway, traveled downhill, and then turned north toward the direction of Robert's Dewer Road property. This prompted Deputy Cissna to recall from her prior investigation of the Dewer Road property that "trail systems from [Roberts]'s driveway area were being used to access the creek, south of [the Dewer Road] property." Deputy Cissna was aware that Roberts had been "creating ATV type four wheel drive roads and trails south and east of his property," and these trails from the Dewer Road property connected to the ATV trail leading northeast from K.H.'s property. There were no other occupied properties between K.H.'s property and the Dewer Road property. Based on this, Deputy Cissna believed that "no other subjects would have had access to these ATV trails or need to use the trail system in order to shuttle back [and] forth in order to steal the number of items reported missing from [K.H.]'s property."
On January 11, 2014, Deputy Cissna "became involved in the recovery of a custom expensive off-road four wheel drive Jeep which had been stolen from the Orangevale area of Sacramento around New Year's night." From her previous interactions with defendant, she knew that defendant was connected with an address in Orangevale within two miles of the place from which the Jeep had been stolen and she suspected "this connection would have created a nexus for [defendant] to have been involved in the theft of the Jeep." The Jeep was recovered "near the One Eye Creek trail head off of Eells Ranch Road, an area due east of the Dewer Road [property]," a very remote area of Garden Valley with few occupied properties nearby. The Jeep was stripped of multiple custom parts, including a custom tailgate, front bumper and winch assembly, seats, high performance off-road tires and rims, radios, a custom steel side mount protection plates, and wheel flares. Deputy Cissna suspected that "[t]he large and heavy nature of some of the missing parts taken from the Jeep indicated that more than one subject was involved in the stripping of the Jeep (one person to drive the Jeep to the area and another to drive a secondary vehicle needed to haul off the heavy equipment taken from the Jeep[)]."
The area where the Jeep was recovered was an off-road U.S. forest service trail that dead ends and is only accessible by vehicle in two ways. First, the area is accessible from Eells Ranch Road, "which has several occupied properties along the way with residents who have a reputation for keeping an eye on their neighborhood." Deputy Cissna noted that while the owners of the Jeep had driven out on this road to recover their vehicle, two neighbors confronted them about using the roadway. Second, the area is accessible from an "old Forest Service rough four wheel drive road (not easily passable with a patrol unit SUV)." This Forest Service trail "takes off east a few hundred yards north of Dewer Road." From the Dewer Road property, "the suspect(s) would only have to drive past one occupied house in view of the roadway to get to the area where the Jeep was found." Deputy Cissna also noted that "tracks consistent with the victim's missing heavy lug off road tires were observed along this back road on the day the Jeep was recovered."
Deputy Cissna noted that from her previous interaction with defendant, she knew that he owned and had an interest in off-road vehicles. Upon reviewing their criminal history, she found that Roberts had one felony conviction for possession of a stolen vehicle and defendant had approximately six arrests for vehicle theft and possession of stolen vehicles, a few of which resulted in felony convictions.
Based on this information and additional information from several confidential informants, discussed post, as well as Deputy Cissna's training and experience, she believed that Roberts and defendant were still in possession of stolen property for their personal use, as opposed to resale, from K.H.'s property and from the Jeep.
An El Dorado County magistrate determined there was probable cause to issue a search warrant based on this information.
While this case was prosecuted in Placer County, the underlying search warrant was issued by an El Dorado County magistrate.
The Execution of the Search Warrant
During the execution of the search warrant in El Dorado County on February 17, 2014, marijuana, butane hash oil, and items used in the manufacturing of butane hash oil were recovered in and around defendant's trailer.
The Charges
On February 17, 2014, while driving a vehicle in Placer County, defendant was found to be in possession of a usable amount of concentrated cannabis, and knew it was a controlled substance.
This was the factual basis offered by the prosecutor at the time of the plea.
On February 19, 2014, a felony complaint was filed in Placer County Superior Court, charging defendant in count one with possession of marijuana for sale in violation of Health and Safety Code section 11359, in count two with possession of concentrated cannabis in violation of Health and Safety Code section 11357, subdivision (a), and in count three with driving when privilege suspended or revoked in violation of Vehicle Code section 14601.1, subdivision (a). With respect to counts one and two, it was also alleged that defendant suffered four prior felony convictions for which he served prison terms within the meaning of section 667.5, subdivision (b). The complaint was subsequently deemed an information on April 2, 2014.
Plea and Sentencing
Following the denial of his motion to quash, discussed in detail post, defendant waived his right to a jury trial and entered a no contest plea on count two, possession of concentrated cannabis. Subsequently, the trial court sentenced defendant to a term of two years in state prison.
DISCUSSION
I. Motion to Quash
A. Background and Defendant's Contentions
After the prosecutor indicated that he intended to introduce evidence obtained during the execution of the search warrant at trial, defendant filed a motion to quash and suppress evidence seized during the search pursuant to section 1538.5 and for an in camera review of the sealed portion of the search warrant affidavit. In his motion, defendant argued that the statement of probable cause in support of the warrant was deficient because it was based on stale information. He contended, "The events described by Dep[uty] Cissna in her affidavit took place years, months, and weeks prior to issuance of the search warrant February 16, 2014. There is no explanation in the affidavit as to why a warrant could not have been sought sooner." The prosecution conceded that an in camera hearing would be required to examine the sealed attachment to the affidavit to evaluate the merits of the motion.
During the hearing on the motion to quash, the prosecutor said he planned to introduce the evidence found during the execution of the El Dorado County search warrant as evidence showing defendant's possession of the concentrated cannabis for which he was charged in Placer County was possessed for the purpose of sale. As the prosecutor described it, "Kind of like saying you grow tomatoes at your house, but if you have a Campbell Soup tomato factory, you're not really making the soup for personal use."
Following the trial court's in camera review of the sealed attachment D and in camera hearing on July 9, 2014, the court unsealed a portion of attachment D pertaining to information provided by H.B. and D.B. After questioning Deputy Cissna during the in camera hearing, the court determined that circumstances had changed with respect to H.B. and D.B. and unsealed that portion of the attachment so that counsel could examine it and continued the proceedings for further hearing. With respect to the information in attachment D from an individual identified as "the jogger," the court found that there was still good cause to continue to keep that portion sealed to protect the jogger's identity.
During the in camera hearing, Deputy Cissna represented that after she submitted the affidavit and requested that some statements be sealed, D.B.'s and H.B.'s statements became public in a separate criminal proceeding related to the theft from K.H.'s property. Consequently, Deputy Cissna did not think it was necessary to keep those statements sealed any longer. However, she testified that the female jogger still asked to remain confidential for reasons disclosed during the in camera hearing.)
In the unsealed portion of attachment D, Deputy Cissna attested that in the fall of 2013, she spoke with D.B. and H.B. about suspicious activities in the area. Deputy Cissna attested that for several years, D.B. had provided information to her about criminal activity in the area. D.B. informed her that Roberts was using a backhoe to help nearby marijuana growers with land improvement projects. Upon hearing this, Deputy Cissna recalled seeing significant leveling and grading work being done at a property on Bear Creek Road, just two properties away from the Dewer Road property. This information validated Deputy Cissna's suspicion that Roberts had temporarily hidden or removed the backhoe from his property after her search in September 2012 but kept it accessible for continued use.
Deputy Cissna further attested that during her investigation of the burglary and theft from K.H.'s property, around November 2013, she contacted D.B. and H.B., who lived on the property adjacent to K.H.'s property on Bear Creek Road. D.B. said that she had heard a lot of noise coming from K.H.'s property and contacted K.H. and his co-owner when she noticed items were disappearing from the property. During the time of these thefts, D.B. ran into Roberts, who told her he was clearing the ATV trails down to the creek and questioned her about whether she could hear noise from him riding on the trails. D.B. told Deputy Cissna that she heard rumors from other neighbors that Roberts was moving stolen property to his brother's home and was caught trying to sell a stolen ATV in Sacramento. D.B. informed Deputy Cissna that her security camera would capture footage of vehicles driving on Bear Creek Road and traveling up to K.H.'s driveway gate; D.B. checked this footage and did not see any of the stolen quads or the Toyota truck come down the main roadway from K.H.'s property. Additionally, H.B. wrote an e-mail to Deputy Cissna, stating, " 'I have no doubt [Roberts] and his parolee ([defendant]) took the property[.] [T]here is a road behind [the Dewer Road property] that goes to the pot house [K.H.'s property] that was raided earlier this year. . . . [Roberts] has all kinds of stuff moving in and out of his land that he ([] Roberts) said people owed him money and he took this in trade.' "
On August 6, 2014, defendant filed supplemental argument and authorities in support of his motion to quash. He contended that in the unsealed portion of attachment D, "[t]he only mention of [defendant] . . . is a conclusory allegation by [H.B.] that he had 'no doubt [] [Roberts] and his parolee ([defendant]) took the property.' [Citation.] This bare allegation is not supported by any facts demonstrating a reliable basis for this assertion which would provide probable cause of the defendant's involvement in any crimes." Defendant further argued that D.B.'s statements were based on hearsay and neighborhood rumors, and they lacked indicia of reliability. Accordingly, he contended that the unsealed portion of attachment D did not cure the defects of staleness and lack of probable cause in the search warrant affidavit. Additionally, defendant argued that the evidence was too facially deficient to provide a basis for the searching officers to reasonably rely on the validity of the warrant under United States v. Leon (1984) 468 U.S. 897, 922 [82 L.Ed.2d 677, 698] (Leon).
The prosecution responded in supplemental argument and authorities that "[t]he combination of the two thefts (neighbor property [and] jeep parts), the location the jeep was stolen, the requirement of at least two people to move the heavy parts, the access from the [d]efendant's trailer via private [trails] to both thefts, the defendant's interest in 4x4 vehicles, and a camera showing that the normal travel routes were not used for at least one of the thefts establishes a substantial basis from the finding of probable cause." The prosecution further argued that this evidence at least formed a basis for good faith reliance on the validity of the warrant under Leon and its progeny. Finally, the prosecution argued that even if the warrant was invalid, the officers' search was lawful as a parole search because defendant was subject to a parole search condition at the time and the searching officers were aware that defendant was a parolee.
After reconvening for hearing on the motion to quash after reviewing the supplemental pleadings, the court heard further oral argument on whether there was sufficient probable cause to support the warrant, the applicability of Leon, and whether the search was otherwise valid as a parole search. The court ruled as follows: "I agree with the defense this is a pretty thin search warrant, but reasonable minds can differ. I think it's close whether there is probable cause given all the facts I think some of the facts the officer relied on were old and some stale even if I were to even consider the observation of the jogger which didn't add much other than seeing suspicious tracks in the mud on the dirt roads. However, when I give deference to the magistrate, and also under Leon I don't find there's any evidence that the officers acted in bad faith or made any false statements or misrepresentation. I think it is just a case of a bunch of circumstantial parts and pieces that reasonable minds can differ whether there is probable cause. So I think the officers were justified under Leon, and I believe they acted in good faith so on that ground I'm going to deny your motion to []quash the search warrant and deny it under 1538.5 mainly on the Leon grounds, so that will be the Court's order."
The court and counsel then discussed whether it was necessary to question Deputy Cissna about whether she knew about defendant's parolee status for purposes of the prosecutor's secondary argument, and the prosecutor said he would elicit that testimony during trial to preserve the argument for appeal. However, because defendant subsequently waived his right to a jury trial and pleaded no contest, Deputy Cissna's testimony on this matter was never presented. Thus, the parole search justification for the search was not preserved and this appeal ensued.
On appeal, defendant contends that the affidavit in support of the search warrant did not establish probable cause for the issuance of a warrant as to defendant's dwelling on the Dewer Road property. Additionally, defendant argues that all of the information in the warrant related to him was stale. He further argues that Deputy Cissna did not have a good faith belief in the validity of the warrant under the Leon exception to the Fourth Amendment exclusionary rule. Defendant urges us to review the sealed portion of the search warrant affidavit to determine whether it should remain sealed and whether the trial court abused its discretion in denying the motion to quash.
B. Analysis
1. Independent Review of Confidential Information
As a preliminary manner, we address defendant's request that we review the sealed portion of Deputy Cissna's statement of probable cause to determine whether the trial court properly sealed the confidential information and whether there is sufficient probable cause to support the warrant. It is settled that "all or any part of a search warrant affidavit may be sealed if necessary to implement the privilege [under Evidence Code section 1041] and protect the identity of a confidential informant." (People v. Hobbs (1994) 7 Cal.4th 948, 971 (Hobbs); see Evid. Code, § 1042, subd. (b).) Consequently, courts are not required to disclose "the identity of an informant who has supplied probable cause for the issuance of a search warrant . . . where such disclosure is sought merely to aid in attacking probable cause." (Hobbs, at p. 959.) Having independently reviewed the sealed portion of the affidavit, we find no abuse of discretion. We agree with the trial court that if the information in the sealed document were disclosed, the identity of the confidential informant might be revealed. Thus, the sealed portion of the affidavit was properly ordered to remain sealed. (Hobbs, at pp. 959-962, 971-973; see also People v. Martinez (2005) 132 Cal.App.4th 233, 242 [reasoning that the confidential attachment was properly ordered sealed where its disclosure "would tend to reveal the identity of the confidential informant"].)
2. Probable Cause
"Courts have a 'strong policy favoring search by warrant rather than upon other allowable basis.' [Citations.] For this reason, when, as here, the police do obtain a warrant, that warrant is presumed valid. 'Thus if the defendant attempts to quash a search warrant, as defendant here seeks to do, the burden rests on him.' " (People v. Amador (2000) 24 Cal.4th 387, 393.) To establish probable cause, an affidavit must contain information that provides a substantial basis upon which a magistrate reasonably could conclude there is a fair probability the place to be searched contains contraband or evidence of a crime. (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548].) The affidavit must state facts rather than mere conclusions or unsupported assertions. (People v. Frank (1985) 38 Cal.3d 711, 727.) However, the opinions and conclusions of an experienced police officer may be submitted in support of the conclusion to be drawn from the facts. (People v. Cleland (1990) 225 Cal.App.3d 388, 393.) "In reviewing the magistrate's determination to issue the warrant, it is settled that 'the warrant can be upset only if the affidavit fails as a matter of law [under the applicable standard announced in (Gates)] to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony.' " (Hobbs, supra, 7 Cal.4th at p. 975.)
In this case, the affidavit prepared by Deputy Cissna detailed her background, training and experience, and her history of ongoing investigations involving the Dewer Road property, including several prior vehicle thefts or suspected vehicle thefts. During a search in 2012, Deputy Cissna found a backhoe, which was missing a serial number plate, and observed that defendant had several specialty off-road vehicles. While she was investigating further and attempting to determine the backhoe's serial number, however, the backhoe was moved. The following year, D.B. informed Deputy Cissna that Roberts was using a backhoe to help nearby marijuana growers with land improvement projects, validating her suspicion that Roberts had temporarily hidden or removed the backhoe from his property but kept it accessible for continued use.
While investigating the theft of the Toyota truck, quads, and other equipment from K.H.'s property in November 2013, about two and a half months before the issuance of the warrant, Deputy Cissna found that an ATV trail connected K.H.'s property with another trail leading to the nearby Dewer Road property. K.H. told Deputy Cissna that he found tracks on the ATV trail and a few smaller items missing from his garage on the ground along the trail. There were no other occupied properties between K.H.'s property and the Dewer Road property, which is also the only occupied property on Dewer Road. Additionally, K.H.'s neighbor, D.B., had a security camera that captured footage of vehicles driving on Bear Creek Road and traveling up to K.H.'s driveway gate; D.B. checked this footage and did not see any of the stolen quads or the Toyota truck come down the main roadway from K.H.'s property. Based on this, Deputy Cissna believed that "no other subjects would have had access to these ATV trails or need to use the trail system in order to shuttle back [and] forth in order to steal the number of items reported missing from [K.H.]'s property."
In January 2014, about a month before the warrant issued, while investigating the stolen Jeep from Orangevale, Deputy Cissna found that the remote back road where the Jeep was recovered was only accessible in two ways: driving through an occupied road that several neighbors actively monitored, or through an off-road trail system that connected to trails near the Dewer Road property. Additionally, she attested that there were tracks consistent with the Jeep's missing heavy lug off-road tires observed along the back road the day the Jeep was recovered. From her training and experience, Deputy Cissna stated, "[t]he large and heavy nature of some of the missing parts taken from the Jeep indicated that more than one subject was involved in the stripping of the Jeep (one person to drive the Jeep to the area and another to drive a secondary vehicle needed to haul off the heavy equipment taken from the Jeep[)]." Deputy Cissna knew defendant was associated with an address in Orangevale that was less than two miles from the location from which the Jeep had been stolen and he had an interest in off-road vehicles. Additionally, she knew that both Roberts and defendant both had prior convictions involving vehicle theft or possession of stolen vehicles. Based on this information and her training and experience, she attested that she believed Roberts and defendant were still in possession of stolen property for their personal use from K.H.'s property and from the Jeep.
Under the totality of the circumstances, the showing was legally sufficient. Defendant's view is that there is little in the affidavit connecting him to criminal activity. However, there was extensive information in the warrant connecting the Dewer Road property to criminal activity, some of which pointed to Roberts alone (the backhoe and some of D.B.'s statements) and some of which pointed more generally to the Dewer Road property (the ATV trails connected to the theft from K.H.'s property and the Jeep). Additionally, Deputy Cissna knew that defendant had lived on the Dewer Road property for years with Roberts and both had prior criminal records involving vehicle theft and possession of stolen vehicles. Deputy Cissna also explained that dismantling and carrying off the large and heavy parts on the Jeep required at least two participants. She also suspected that based on defendant's interest in off-road vehicles and the apparent use of a backhoe to finish the ATV trails between the Dewer Road property and K.H.'s property, that stolen property would still be at the Dewer Road property. Based on this information, the magistrate properly found a substantial basis to reasonably conclude there was a fair probability that stolen vehicles, stolen vehicle parts, or other stolen equipment would be found on the Dewer Road property, including defendant's trailer.
We reject defendant's argument that the information relied upon was too stale. There is no specific limitation upon the age of information which may be relied upon in support of a search warrant. Rather, the rule is that the showing in support of a warrant must establish a fair probability seizable property is currently on the premises to be searched. (People v. McDaniels (1994) 21 Cal.App.4th 1560, 1564.) Evidence that an activity is continuing rather than isolated or irregular may be considered in support of an inference that seizable property will remain on the premises. (People v. Brown (1985) 166 Cal.App.3d 1166, 1170.) "Courts have upheld warrants despite delays between evidence of criminal activity and the issuance of a warrant, when there is reason to believe that criminal activity is ongoing or that evidence of criminality remains on the premises." (People v. Carrington (2009) 47 Cal.4th 145, 164 [fair probability that stolen checks remained at the defendant's home two months after burglary because they could still be forged and cashed]; see also People v. Mikesell (1996) 46 Cal.App.4th 1711, 1714-1715, 1718 [affidavit based on information two to four years old, combined with current information, painted picture of continuing participation in drug trade].) This is particularly the case when, as Deputy Cissna declared in her affidavit, there is reason to suspect that the subjects may be retaining stolen property for personal use or waiting for the opportunity to sell the stolen property. Accordingly, we conclude the information in the affidavit was not stale and established probable cause for issuance of the warrant.
3. Good Faith Exception to the Exclusionary Rule
Even if we agreed with defendant's view that the search warrant was invalid, the good faith exception to the exclusionary rule is applicable. Defendant contends that Deputy Cissna did not rely in good faith on the validity of the warrant. The trial court denied the motion to quash on this basis. Under Leon, a police officer may rely in good faith on a warrant later found to be invalid. (Leon, supra, 468 U.S. at p. 922.) "In most cases, the fact that a warrant was issued by a neutral and detached magistrate will suffice to establish that the officer has acted in good faith in conducting the search." (People v. Spears (1991) 228 Cal.App.3d 1, 19.) However, the exception does not apply where the warrant is "based on an affidavit 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' " (Leon, at p. 923.) In evaluating this question we ask "whether a reasonable and well-trained officer 'would have known that his [or her] affidavit failed to establish probable cause and that he [or she] should not have applied for the warrant.' " (People v. Camarella (1991) 54 Cal.3d 592, 605-606.) Where "a well-trained officer reasonably could have believed that the affidavit presented a close or debatable question on the issue of probable cause," the evidence should not be suppressed. (Id. at p. 606; see also Leon, at p. 926 [where the affidavit "provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause[,] . . . application of the extreme sanction of exclusion is inappropriate."].)
Defendant also contends in his reply brief that the warrant was insufficiently specific as to the places to be searched, apparently attempting to raise a facial deficiency argument. He claims that "[t]he warrant referred vaguely to 'outbuildings, trailer, . . .' [citation], but said nothing about [defendant]'s part of the property." Defendant misreads the warrant. Not only does it specify a list of structures on the property that would necessarily include defendant's trailer, in attachment B, it specified "[a]reas of the residence, property, sheds, garages, barns, storage units, any and all vehicles, trailers and RV's under control of and having access to" Roberts and defendant. Defendant's belated argument is meritless. --------
In this case, a number of factors support the conclusion that Deputy Cissna's reliance on the validity of the warrant in effecting the search was objectively reasonable. First, in the affidavit, Deputy Cissna detailed a significant history of thefts in a remote part of Garden Valley with some physical evidence leading to the Dewer Road property, including tracks on ATV trails connecting the property with both the Jeep dump site and K.H.'s property and some of K.H.'s smaller stolen items scattered along those trails. Second, as it appeared in the affidavit, some of the information provided by D.B., H.B., and the jogger corroborated Deputy Cissna's suspicions about Roberts and defendant using these back road trails and using a backhoe, which Deputy Cissna suspected was stolen, to expand these trails. Third, the affidavit provided evidence of these informants' credibility based on Deputy Cissna's prior interactions with them and information obtained from them in investigating other cases. Finally, Deputy Cissna detailed her prior investigations of stolen vehicles and equipment on the Dewer Road property, defendant's interest in off-road vehicles, and Roberts's and defendant's criminal records involving vehicle theft.
Viewing the affidavit as a whole, Deputy Cissna's "application for a warrant clearly was supported by much more than a 'bare bones' affidavit." (Leon, supra, 468 U.S. at p. 926.) We cannot say that she should have known that her affidavit failed to establish probable cause.
Accordingly, the trial court properly denied defendant's motion.
DISPOSITION
The judgment is affirmed.
MURRAY, J. We concur: BLEASE, Acting P. J. ROBIE, J.