Opinion
NOT TO BE PUBLISHED
Super. Ct. No. TF033980A
BUTZ , J.After the trial court denied defendant Wathanack Suon’s motions to suppress evidence and for an evidentiary hearing pursuant to Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667] (Franks), defendant pleaded no contest to cultivation of marijuana (Health & Saf. Code, § 11358). Defendant was placed on five years’ probation upon certain conditions, including one year in county jail.
The information also charged defendant with counts of possessing marijuana for sale (Health & Saf. Code, § 11359) and utility services theft (Pen. Code, § 498). These counts were dismissed as part of the plea bargain.
Defendant appeals, contending the trial court erred in denying his motion to suppress evidence and in denying his motion for a Franks hearing. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 3, 2006, Tracy police officers obtained a search warrant for defendant’s residence in Tracy. The affidavit, prepared by Officer Perry Anderson, contained the following salient facts:
Officer Anderson has been a police officer for approximately six and a half years. He has received job training in narcotics and has made more than one hundred arrests involving narcotics. He has participated in at least 10 search warrants relating to manufacturing, distribution, possession, and possession for sale of controlled substances.
On September 22, 2006, Officer Anderson met with a citizen informant (CI), who told him that he/she suspected the residents of 406 Glenbriar Circle were growing marijuana. The CI stated that he/she observed a “bluish colored UV light coming from the garage”; the air conditioner was “running all hours of the day and night”; and that the odor of marijuana was coming from inside the residence. The CI further stated that the occupants would come to the house once a week, staying only three to four hours before departing. According to the CI, the house was purchased “about two month[s]” earlier and no furniture had been moved in.
Following this conversation, Officer Anderson drove to defendant’s residence during nighttime and made the following observations: “All the windows to the residence had mini blinds on the windows and they were closed. The upstairs windows were left open approximately 6-8 inches and I could hear what sounded like a blower or fan running from upstairs. While standing next to the garage, I could smell the odor of marijuana coming from the garage area. The house was completely dark inside, however the PG&E meter was spinning at a fast rate, which would indicate the windows, were covered with some type of material. This set up [sic] is very similar to the Stockton and Elk Grove cases as well as the house on Deer Run Ln. [¶] Based on my training, experience and observations, I believe the address at 406 Glenbriar Cir. is currently being used to grow and cultivate marijuana.”
Based on this affidavit, the magistrate issued a search warrant for defendant’s residence. The following day, a search of the residence resulted in the discovery of 249 marijuana plants, with grow lights and fans attached by ducting. The windows of the house were covered with black plastic.
Defendant moved to suppress the evidence seized, claiming the facts stated in the affidavit failed to constitute probable cause to search the residence. The trial court denied the motion. Specifically, the court noted the odor of marijuana that came from the house was smelled on two different occasions, by the CI and by Officer Anderson. The court also cited the CI’s observation of UV lighting when no one was at the house, the spinning PG&E meter, and Officer Anderson’s six or seven years of experience.
Defendant then moved for a Franks hearing based upon defense counsel’s affidavit alleging that certain facts stated in Officer Anderson’s affidavit were false and made with reckless disregard for the truth. The trial court denied the motion, stating that even if the allegedly false material were excised, the remaining information in the affidavit was sufficient to issue the search warrant.
DISCUSSION
I. Probable Cause
Defendant contends the search warrant affidavit failed to establish probable cause to search his residence because “[t]he mere odor of marijuana coming from a home is not sufficient to establish probable cause to believe that marijuana is being grown inside” and “[t]he factors [cited in the affidavit] other than the odor of marijuana added nothing meaningful to the assessment of probable cause.”
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
A warrant must be upheld if it meets the totality of the circumstances test of Illinois v. Gates (1983) 462 U.S. 213 [76 L.Ed.2d 527] (Gates). Under that analysis, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, 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. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for... [concluding]’ that probable cause existed.” (Gates, at pp. 238-239 [76 L.Ed.2d at p. 548].) “Doubtful or marginal cases are to be resolved by the preference to be accorded to warrants.” (People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716 (Mikesell).)
In this case, the facts in the affidavit gave rise to a fair probability that contraband or evidence of a crime would be found inside defendant’s residence. The CI stated that the air conditioner was running all day and night, and the odor of marijuana came from inside the home. The CI had seen a bluish colored UV light coming from inside the garage. The occupants of the house would visit once a week, staying only three to four hours, then leave. Apparently, the house was purchased about two months earlier and had no furniture.
In applying the totality of the circumstances analysis, courts have “consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” (Gates, supra, 462 U.S. at p. 241 [76 L.Ed.2d at p. 550]; Mikesell, supra,46 Cal.App.4th at pp. 1717-1718; seealso People v. Ramey (1976) 16 Cal.3d 263, 269.) Officer Anderson’s visit to the home corroborated the CI’s information in key respects. First, the upstairs windows were left slightly open and Officer Anderson could hear the sound of a fan or blower running from inside. Second, while standing next to the garage, he could smell the odor of marijuana. Officer Anderson further observed that all of the windows had mini-blinds that were closed. Finally, although the house was dark, the PG&E meter was spinning at a fast rate.
Defendant claims Officer Anderson’s experience in narcotics investigation failed to add anything meaningful to the trial court’s probable cause determination. He asserts that Anderson was inexperienced and lacked formal training in drug trafficking investigations, and that Anderson’s averment that the “setup” of the home was similar to other cases he worked on, was meaningless.
Officer Anderson had been a police officer for approximately six and a half years. He received job training in narcotics and made more than one hundred arrests involving narcotics. He also participated in search warrants relating to manufacturing, distribution, possession, and possession for sale of controlled substances. Courts have repeatedly held that the magistrate may properly consider an officer’s experience and training in narcotics investigations and arrests as a relevant factor in the probable cause determination. (People v. Deutsch (1996) 44 Cal.App.4th 1224, 1232; People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784.) Although we agree that the affidavit’s reference to the “Stockton[,] Elk Grove [and] Deer Run Ln.” cases, inasmuch as it lacked any specifics, added nothing to the probable cause inquiry, the officer’s training and experience must be added into the mix in assessing the sufficiency of the affidavit.
Defendant’s attempt to limit the probable cause inquiry by focusing only on the odor of marijuana and discounting all the other salient facts, is unpersuasive.
In isolation, each of the factors cited by defendant might appear insufficient for the requisite probable cause showing. However, defendant’s analysis is inconsistent with the “totality of the circumstances” rule promulgated in Gates, supra,462 U.S. at pp. 238-239 [76 L.Ed.2d at p. 528]. Our duty as a reviewing court is to ensure the magistrate had a substantial basis for finding probable cause, given all the circumstances set forth in the affidavit. We are not to focus merely on odor of marijuana alone as defendant urges us to do, but rather we are to view the factors in their totality.
Defendant’s citation to Bailey v. Superior Court (1992) 11 Cal.App.4th 1107 and People v. Gotfried (2003) 107 Cal.App.4th 254 to support his argument that “courts have required more than a mere odor of marijuana to search a home” is puzzling, since neither case involved the odor of marijuana. In both cases, the magistrate was presented with nothing more than observations of innocent activity and an uncorroborated tip. “‘“An opinion is not authority for propositions not considered.”’” (People v. Knoller (2007) 41 Cal.4th 139, 155; see also People v. Stanley (1995) 10 Cal.4th 764, 793 [failure to cite adequate authority waives appellate review of issue].)
Defendant also argues there is a critical distinction between the odor of burnt and fresh marijuana, and suggests that Officer Anderson’s failure to specify which type of odor was present is fatal to the probable cause finding.
Although the affidavit does not indicate whether the odor of marijuana was burnt or fresh, the omission was not critical. The odor of marijuana was smelled on two separate occasions, once by the CI and once by Officer Anderson. Regardless of which type of marijuana odor emanated from the house, the magistrate could properly consider it a significant factor in making his probable cause determination.
II. Franks Hearing
A. Procedural Background
Defense counsel submitted a declaration in support of his Franks motion, claiming that Officer Anderson made two assertions in his affidavit that were recklessly false or misleading. The first alleged misrepresentation related to the purchase of the home. The CI told Officer Anderson that defendant’s home was purchased “about two month[s]” ago. Counsel stated that he had hired a private investigator to check the ownership records for defendant’s house and had discovered that the most recent sale of the home occurred on June 10, 2005, three months before the search warrant was issued. The second alleged misrepresentation related to Anderson’s personal observation that he saw the PG&E meter “spinning at a fast rate.” In his declaration, defense counsel referred to Anderson’s police report, which stated that the equipment used to grow the marijuana “was wired to a secondary sub-panel which tapped the electrical power line and bypassed the PG&E meter.” Counsel also averred that he personally visited the home and “confirmed that electrical cable had been installed through holes in the walls and connected each of the growing locations to a point behind the interior garage wall where the PG&E cable entered the home.”
The trial court denied defendant’s motion. The court found it insignificant that the CI was mistaken about the home being purchased two, rather than three, months earlier. In any event, the court ruled that the remaining facts, which included the occupants not being home most of the time, fans constantly running, and the odor of marijuana smelled on two separate occasions, were sufficient to furnish probable cause for the magistrate to issue the warrant.
The court did not specifically rule upon the materiality of Officer Anderson’s statement that he saw the PG&E meter spinning rapidly.
B. Analysis
Defendant contends that counsel’s declaration provided strong evidence that the affiant’s assertions that the house was recently sold and that the PG&E meter was spinning fast were deliberately or recklessly false. Because these two facts were material to the probable cause inquiry, defendant claims the court erred in refusing to hold a Franks hearing.
“[A] defendant may challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. When presented with such a challenge, the lower courts must conduct an evidentiary hearing 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 justify a finding of probable cause.” (People v. Bradford (1997) 15 Cal.4th 1229, 1297, citing Franks, supra,438 U.S. at pp. 155-156 [57 L.Ed.2d at p. 672].)
However, “there is a presumption of validity with respect to the affidavit. To merit an evidentiary hearing[,] the defendant[’s] attack on the affidavit must be more than conclusory and must be supported by more than a mere desire to cross-examine.... The motion for an evidentiary hearing must be ‘accompanied by an offer of proof... [and] should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished,’ or an explanation of their absence given.” (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1316 (Sandlin), quoting Franks, supra, 438 U.S. at p. 171 [57 L.E.2d at p. 673].) “The trial court’s decision to not hold a Franks hearing is reviewed de novo on appeal.” (Sandlin,at p. 1316.)
In order to justify holding a Franks hearing, the defendant must make 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 justify a finding of probable cause.” (Bradford, supra, 15 Cal.4th at p. 1297.) We need not decide whether defendant satisfied the first prong of this test as we agree with the trial court that defendant failed to satisfy the second prong.
The allegedly false facts were the CI’s statement that the house was purchased only two months earlier and Officer Anderson’s observation that the PG&E meter was spinning at a “fast rate.” However, even if we excise this information, the affidavit still contains abundant facts from which the magistrate could find probable cause that marijuana was being cultivated, including (1) an air conditioner or fan running continuously, even at night with partially open windows; (2) the odor of marijuana smelled by both the officer and the CI; (3) a bluish colored UV light emanating from inside the garage; (4) the occupants’ habit of visiting the home only once a week for just a few hours; and (5) Officer Anderson’s belief, based on his training and experience, that marijuana was being cultivated in the house.
We have no difficulty concluding that these factors, viewed in their totality, provided a substantial basis to support the belief that contraband would be found at the home. Because, even disregarding the alleged recklessly false statements, sufficient information remained in the affidavit to support a finding of probable cause (People v. Thuss (2003) 107 Cal.App.4th 221, 236), no Franks hearing was required.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. HULL , J.