Opinion
A129471
12-30-2011
THE PEOPLE, Plaintiff and Respondent, v. KIRK D. STEWART, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Del Norte County Super. Ct. No. CRF089508)
The People charged appellant Kirk D. Stewart with multiple felonies, including cultivating and possessing marijuana for sale (Health & Saf. Code, § 11359). In the trial court, appellant moved to traverse the warrant and suppress the evidence seized during the August 2008 search of his residence. He claimed Jon Rasmussen — the Drug Enforcement Agency (DEA) special agent who signed the search warrant affidavit — was not qualified to be an affiant. Appellant also argued the execution of the warrant "violated federal or state standards" because Rasmussen was not a peace officer under California law. The trial court denied the motion.
A few months later, appellant filed a renewed motion to suppress (Pen. Code, § 1538.5, subd. (h)), contending the search warrant affidavit omitted material information under Franks v. Delaware (1978) 438 U.S. 154 (Franks). The court denied the motion, concluding counsel for appellant had not demonstrated he "was not aware of the grounds for his motion at an earlier time." Appellant then pleaded no contest to one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and the court placed him on probation.
Unless otherwise noted, all further statutory references are to the Penal Code.
On appeal, appellant claims Rasmussen omitted facts material to the probable cause determination under Franks. As a corollary, appellant contends trial counsel was ineffective because he failed to raise this ground for traversing the warrant at the hearing on the first motion to suppress and "had no tactical reason" for failing to do so.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Search Warrant
On August 14, 2008, DEA agent Rasmussen submitted an affidavit in support of a search warrant. He averred Del Norte Sheriff Deputy Seth Cimino flew a helicopter over Six Rivers National Recreation Area on August 6, 2008, and observed marijuana growing in an open field adjacent to appellant's property on French Hill Road near Gasquet. Cimino saw three separate areas where marijuana was growing and photographed the locations. Cimino verified the plants were on appellant's property. He "walked into the locations where he observed the plants growing and . . . confirmed in person that what he observed and photographed from the air were marijuana plants." Cimino discussed this information with Del Norte Sheriff's Sergeant Steve Morris. Morris presented Rasmussen with appellant's criminal history indicating appellant had a May 1997 felony conviction for cultivating marijuana and possessing it for sale (Health & Saf. Code, §§ 11358, 11359). The magistrate issued a search warrant addressed to "any peace officer in Del Norte County."
That same day, Morris and Rasmussen, along with several Del Norte Sheriff's Office deputies and DEA agents, served the search warrant at the home appellant shared with his wife, Susan. Law enforcement officers found two black powder rifles and a .22 caliber semi-automatic handgun. In a gun safe, officers found multiple firearms and documents belonging to appellant, including a Proposition 215 card. They seized 83 marijuana plants, approximately 100 pounds of dried marijuana, and $2,662 in cash. Law enforcement officers arrested appellant and Fred Otremba. The People charged appellant with numerous felonies, including 18 counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and cultivating marijuana and possessing it for sale (§§ 11358, 11359).
We refer to appellant's wife by her first name for clarity and convenience. (In re Marriage of Green (1992) 6 Cal.App.4th 584, 588, fn. 1.)
The Compassionate Use Act of 1996 (the Act) was approved by California voters in 1996 as Proposition 215 and is codified at Health and Safety Code section 11362.5. Health and Safety Code section 11362, subdivision (d) provides, "Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician." (See also People v. Mower (2002) 28 Cal.4th 457, 467.)
Otremba, appellant's codefendant, is not a party on appeal.
Appellant's First Motion to Traverse the Warrant and Suppress Evidence
Appellant moved to traverse the warrant and to suppress evidence seized pursuant to the warrant, claiming Rasmussen was not a qualified affiant for the purpose of obtaining a California search warrant. He also argued the execution of the warrant "violated federal or state standards" because Rasmussen was not a peace officer under California law.
At a hearing on the motion, Morris testified he and various other sheriff's deputies were "out doing marijuana eradication on forest service property" in Del Norte County and were short-staffed. The DEA had been helping various counties with marijuana eradication and suggested that Rasmussen help Morris. Morris helped Rasmussen prepare the search warrant affidavit: Morris drafted the section on probable cause and the two men took the search warrant affidavit to the magistrate's chambers.
Morris testified he arrested appellant in 2004 or 2005 for cultivating marijuana on a piece of property on Union Street in Crescent City. When Morris arrested appellant, he saw a medical marijuana card posted on the house. The prosecution dismissed the case. Morris testified he "probably would have mentioned [the] prior cases" and appellant's medical marijuana claim to Rasmussen. Morris and Rasmussen discussed the possibility that appellant could be growing "legal medical marijuana" before the warrant was served and while it was being served. Morris believed that having permission to grow medical marijuana might be a "defense in court" but did not preclude an arrest. He testified he might have checked the Del Norte County ordinance regarding the allowable amount of medical marijuana before executing the search warrant.
Rasmussen testified he arrested appellant in 2004 or 2005, but court records show the arrest occurred in January 2007.
After Morris testified, defense counsel reiterated his claim that Rasmussen was not a "proper affiant" and was not permitted to serve the warrant under California law. Counsel also contended "[t]he medical marijuana claims were known to Sergeant Morris and omitted from the affidavit which he says was a mistake and . . . I believe that's true. It was a mistake. Those claims should have been in there because this was always a state operation, never a federal operation. . . . ."
At the hearing, counsel for Otremba argued the good faith exception set forth in United States v. Leon (1984) 468 U.S. 897 (Leon) did not apply because Morris knew about appellant's Proposition 215 status but failed to include that information in the search warrant affidavit, which misled the magistrate under Franks. According to counsel, "the officer should have told the [m]agistrate that [appellant] . . . twice had marijuana seized from him and that on at least one of those occasions that [he] had a medical marijuana card, so as to give the [m]agistrate . . . information upon whether it was objectively reasonable to believe that some four or five years later [appellant] was or wasn't in possession of a then-valid medical marijuana recommendation from a doctor." Counsel argued the officers "duped the [m]agistrate and there was just no objective reasonableness based on what the officers knew when they went into chambers."
In February 2009, the court denied the motion, concluding the person who provides the information in the search warrant affidavit need not be a peace officer. The court also determined the warrant was lawfully executed because the Del Norte County Sheriff's Department "was involved from the formation of the warrant, was present at the time of [its] issuance, [and] was present at the time that the warrant was served. . . ." Finally, the court determined the good faith exception to the exclusionary rule set forth in Leon, supra, 468 U.S. 897, applied.
Susan's Motion to Suppress and Appellant's Renewed Motion to Traverse and Suppress About one year later, appellant's wife, Susan, filed a motion to suppress and for return of property seized during the search. Among other things, Susan claimed the search warrant affidavit was intentionally misleading or recklessly inaccurate because it omitted material facts "favorable to the Stewarts . . . that, had they been included would have negated a finding of probable cause," specifically that Rasmussen and Morris recklessly withheld evidence from the affidavit suggesting the marijuana grown on the Stewart's property "was being cultivated in full compliance with State medical marijuana laws." According to Susan, "Drug Task Force Agents," including Morris, knew about "the Stewarts' medical marijuana patient and caregiver status" because Morris and others applied for and executed search warrant at appellant's house in January 2007 and seized appellant's Prop 215 Cards and medical marijuana documentation. Susan noted the prosecution dismissed the case against appellant in 2008 "due to the strength of [appellant's] medical marijuana defense" and returned appellant's Proposition 215 card. Before a hearing on Susan's motion, the prosecution returned various firearms to Susan and she withdrew the motion.
A few months later, in April 2010, appellant brought a second motion to suppress pursuant to section 1538.5, subdivision (h) arguing the search was unlawful because law enforcement intentionally or recklessly omitted facts from the search warrant affidavit that were material to the probable cause determination. The motion attached, among other things, a December 2007 letter from appellant's doctor indicating appellant's "use of medicinal cannabis [was] appropriate" from December 2007 to December 2008 and authorizing appellant to possess no more than three pounds of dried cannabis and 19 immature or 10 mature cannabis plants. In the motion, counsel for appellant stated Susan's motion "introduced much evidence which had not been evident to the defense until researched and gathered together." Counsel also claimed the information he learned at the hearing on appellant's first motion to suppress was new to him.
Section 1538.5, subdivision (h) provides, "If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial."
The court denied the renewed motion, concluding appellant failed to demonstrate "[he] was not aware of the grounds for his motion at an earlier time." That same day, appellant pleaded no contest to one count of possession of a firearm by a felon (§ 12021, subd. (a)(1)) and the prosecution dismissed the remaining charges. The court placed appellant on probation for three years. Appellant obtained a certificate of probable cause and timely appealed.
DISCUSSION
Appellant claims trial counsel's "belated[ ] attempt[ ]" to traverse the warrant in April 2010 constituted ineffective assistance of counsel. According to appellant, trial counsel knew of the ground for traversing the warrant pursuant to Franks at the hearing on appellant's first motion to suppress but did raise this ground until almost two years later, in a second motion to traverse. Motions to Traverse the Warrant Under Franks
Under Franks, "[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. Innocent or negligent misrepresentations will not support a motion to traverse." (People v. Scott (2011) 52 Cal.4th 452, 484, citing Franks, supra, 438 U.S. at pp. 156-158.)
"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." (Scott, supra, 52 Cal.4th at p. 484.) An omission can be "(1) reasonable, (2) negligent, or (3) recklessly inaccurate or intentionally misleading." (People v. Kurland (1980) 28 Cal.3d 376, 387-388.) "A material omission is reasonable when despite the exercise of due care, [the] affiant was ignorant of the omitted fact or forgot to include it. . . . Negligent omissions of material fact occur when the affiant is unreasonably ignorant of facts, unreasonably forgets to include them, or makes a good faith but unreasonable decision that they need not or should not be included." (Id. at p. 388.) The "defendant has the burden of demonstrating recklessness or intent to mislead." (Id. at p. 390.) A mere discrepancy between the actual facts and those recited in the affidavit does not establish reckless disregard for truth; there must be some evidence of affiant's mental state for such a showing. (People v. Costello (1988) 204 Cal.App.3d 431, 442.)
Omissions are material "if their [absence] would make the affidavit substantially misleading" or if "there is a substantial possibility they would have altered a reasonable magistrate's probable cause determination." (Kurland, supra, 28 Cal.3d at p. 385.) An officer preparing an affidavit in support of a search warrant "need not disclose every imaginable fact however irrelevant. [He] need only furnish the magistrate with information, favorable and adverse, sufficient to permit a reasonable, common sense determination whether circumstances which justify a search are probably present." (Id. at p. 384.) When material information has been intentionally omitted from a search warrant affidavit, the remedy is to restore the omitted information and reevaluate the affidavit for probable cause. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1581; People v. Sousa (1993) 18 Cal.App.4th 549, 562-563.)
Trial Counsel Was Not Ineffective for Failing to Bring the Motion to Traverse Under Franks at the Hearing on Appellant's First Motion to Suppress
Appellant contends trial counsel should have moved to traverse the warrant pursuant to Franks at the hearing on his first motion to suppress, brought pursuant to section 1538.5, when counsel was assertedly made "aware of the facts giving rise to the Franks claim . . . ." According to appellant, the evidence at the hearing on his first motion to suppress established Rasmussen "made omissions knowingly and intentionally or with reckless disregard for the truth" because Rasmussen knew "law enforcement had recently participated in a prior seizure of marijuana from [him], knew that [he] had a medical marijuana card, and that the grow on [his] property might be legal medical marijuana" and failed to include this information in the search warrant affidavit.
We disagree. At the hearing on appellant's first motion to suppress, Morris testified he: (1) arrested appellant in 2007 in Crescent City and saw a medical marijuana caregiver card posted on the house; (2) knew the prosecution dismissed that case; (3) "probably would have mentioned" the 2007 case to Rasmussen; (4) discussed the possibility that appellant could have been growing medical marijuana legally before serving the warrant with Rasmussen; and (5) drafted the probable cause portion of the search warrant affidavit.
A careful look at what Morris did not say at the motion to suppress hearing is telling. Morris did not testify appellant had a medical marijuana card in 2008, when Rasmussen applied for a warrant. Nor did Morris testify that he knew — but did not tell Rasmussen — that appellant had a medical marijuana card in 2008. Evidence that the prosecution dismissed appellant's case in 2008 based on a medical marijuana defense and returned appellant's Proposition 215 card was based on documents offered in support of Susan's motion, not on Morris's testimony at the hearing on appellant's first motion to suppress. Although Morris testified he probably told Rasmussen about the 2007 case and the possibility that appellant was growing marijuana legally, he did not testify he told Rasmussen this information before Rasmussen signed the search warrant affidavit. He simply stated he discussed this information before the warrant was served. Notably, Morris did not testify he deliberately withheld information from Rasmussen, or that he communicated the information to Rasmussen but told him to omit it from the search warrant affidavit. While "'police [cannot] insulate one officer's deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity' nothing in the record indicates [Morris] . . . deliberately withheld from [Rasmussen] information" regarding appellant's 2007 case. (People v. Bradford (1997) 15 Cal.4th 1229, 1300, quoting Franks, supra, 438 U.S. at pp. 163-164, fn. 6.)
As noted above, a "discrepancy between the actual facts and those recited in the affidavit does not establish reckless disregard for truth; there must be some evidence of affiant's mental state for such a showing. (Costello, supra, 204 Cal.App.3d at p. 442.) Here, there was no evidence of Rasmussen's mental state at the hearing on appellant's first motion to suppress. It is plausible Rasmussen simply forgot to include the facts in the affidavit; it is equally plausible he made a "good faith but unreasonable decision that they need not or should not be included" in the search warrant affidavit. (Kurland, supra, 28 Cal.3d at p. 388.) Negligent omissions do not support a motion to traverse. (People v. Panah (2005) 35 Cal.4th 395, 456; County of Contra Costa v. Humore, Inc. (1996) 45 Cal.App.4th 1335, 1350.) We cannot — as appellant urges — conclude "Rasmussen's omissions were made knowingly and intentionally or with reckless disregard for the truth," especially when appellant's trial counsel characterized the omissions as a "mistake."
Therefore, trial counsel was not required to make a motion to traverse under Franks at the hearing on appellant's first motion to suppress because counsel could not demonstrate the alleged omissions in the search warrant affidavit were reckless or made with the intent to mislead. Although counsel was aware of appellant's 2007 case, he could only speculate whether Rasmussen might have knowingly or intentionally omitted material information from the search warrant affidavit because Rasmussen did not testify at the hearing on the first motion to suppress. (Kurland, supra, 28 Cal.3d at pp. 387388.) Because "there is a presumption of validity with respect to the [search warrant] affidavit," (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1316), it was not enough for trial counsel to speculate about the omissions from the search warrant affidavit. Moreover, counsel may have determined — accurately — that even intentional or reckless omissions in the search warrant affidavit did not negate probable cause. "Counsel's failure to make a futile or unmeritorious motion . . . is not ineffective assistance." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
Appellant does not argue trial counsel was ineffective for failing to argue more persuasively in his renewed motion to suppress why he was unable to raise the Franks motion at an earlier time. Nor does appellant argue the court erred by denying the renewed motion to suppress.
--------
The Omissions Did Not Negate Probable Cause
Even if we assume for the sake of argument the omissions here were made recklessly or with the intent to mislead, we are not persuaded they were material to the probable cause determination under Franks, supra, 438 U.S. at page 156.
"'An arrest warrant which is not supported by a showing of probable cause must fail, and an arrest made pursuant to it is illegal.' [Citation.] 'In determining the sufficiency of an affidavit for the issuance of a . . . warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant . . . . 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.] Stated another way, the issuing magistrate's task is to make a practical and commonsense determination whether, given all the information in the affidavit, 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.' [Citation.]" (People v. Hochanadel (2009) 176 Cal.App.4th 997, 1014-1015.) "[W]e resolve doubtful or marginal cases in favor of upholding the search warrant as it is the duty of a reviewing court 'to save the warrant if it can in good conscience do so . . . .'" (Id. at p. 1015, quoting Caligari v. Superior Court (1979) 98 Cal.App.3d 725, 729-730.) As noted above, "[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." (Scott, supra, 52 Cal.4th at p. 484.)
The omission of information about appellant's 2007 case — as testified to by Morris at the hearing on appellant's first motion to suppress — does not render the affidavit insufficient to support a finding of probable cause. First, appellant's 2007 case concerned property in Crescent City and the 2008 search warrant concerned a different property in Gasquet. Second, Morris did not testify he knew appellant had a Proposition 215 card in August 2008, when he and Rasmussen prepared the search warrant affidavit. Finally, and perhaps most importantly, Health and Safety Code section 11362.5, subdivision (d) "does not grant any immunity from arrest, and certainly no immunity that would require reversal of a conviction because of any alleged failure on the part of law enforcement of officers to conduct an adequate investigation prior to arrest." (Mower, supra, 28 Cal.4th at p. 469.) "Even when law enforcement officers believe that a person who 'possesses or cultivates marijuana' is a 'patient' or 'primary caregiver' acting on the 'recommendation or approval of a physician' they may — as in this case — have reason to believe that that person does not possess or cultivate the substance 'for the personal medical purposes of the patient[.]'" (Mower, supra, 28 Cal.4th at p. 469; see also People v. Fisher (2002) 96 Cal.App.4th 1147, 1149 [officers not required to abandon a search for marijuana authorized by a search warrant where the resident of the premises "produces documents that suggest he has a physician's permission to possess the marijuana pursuant to the Compassionate Use Act of 1996 . . . ."].)
In his reply brief, appellant relies on Mower for the proposition that "[p]robable cause depends on all of the surrounding facts . . . including those that reveal a person's status as a qualified patient or primary caregiver under [Health and Safety Code] section 11362.5(d)." (Mower, supra, 28 Cal.4th at p. 469.) We agree. At the hearing on appellant's first motion to suppress, Morris testified: (1) when he arrested appellant in 2007 in Crescent City, he noticed a medical marijuana caregiver card posted on the house; (2) the case was dismissed in 2008; (3) Morris "probably" told Rasmussen about the 2007 case at some point; and (4) Morris and Rasmussen discussed the possibility that appellant could have been growing medical marijuana legally before executing the search warrant.
The express addition of this information to the affidavit would not "render the search warrant" insufficient to support a finding of probable cause." (Scott, supra, 52 Cal.4th at p. 484.) The affidavit described marijuana growing in three separate locations in an open field next to appellant's property near Gasquet, suggesting the amount of marijuana plants exceeded the limit permitted by the Compassionate Use Act of 1996. In addition, the affidavit noted appellant had a prior conviction for cultivating marijuana and possessing it for sale. Based on the totality of circumstances, and regardless of whether the magistrate was aware of the prior case and appellant's possession of a medical marijuana prescription card in 2007, there was probable cause for the issuance of the search warrant. (See Hochanadel, supra, 176 Cal.App.4th at pp. 1017-1018; Avalos, supra, 47 Cal.App.4th at pp. 1581-1582.)
DISPOSITION
The judgment is affirmed.
___________________________
Jones, P.J.
We concur:
___________________________
Simons, J.
___________________________
Needham, J.