Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 5-051579-1
Ruvolo, P. J.
Appellant pleaded guilty to various offenses involving the possession and distribution of controlled substances; firearm possession; and child abuse. He argues that the evidence seized from his home under a search warrant should have been suppressed, because of factual errors and omissions in the affidavit underlying the warrant, and because the warrant was issued by a magistrate outside the county in which appellant resided. We reject these contentions, and affirm the judgment.
facts and procedural background
During the first several months of 2005, Detective Scott Whitehouse of the Vacaville Police Department and Detective Steve Mariani of the Solano County Narcotics Enforcement Team (SolNET) jointly supervised an ongoing investigation of a parolee and suspected methamphetamine dealer named James Earl Higgins. On March 22, 2005, Sergeant Michael Wood of the Vacaville Police Department, who was working on the case with SolNET, was keeping watch on Higgins’s home in Fairfield because the police had reason to believe that Higgins was going to go somewhere to buy methamphetamine that day.
Our narrative of the facts is based on the evidence introduced at the hearings on appellant’s motions challenging the admissibility of the evidence obtained under the warrant issued for the search of his home.
When Wood saw Higgins leave the house and get into a car driven by a woman named Kathleen Choisy, he followed the car across the boundary between Solano and Contra Costa counties, to DiMaggio Street in Pittsburg. Wood then contacted Whitehouse and told him where Higgins was. The investigation of Higgins had not previously involved any information about DiMaggio Street or Pittsburg; rather, the police believed that he was going to buy methamphetamine in Antioch, which is adjacent to Pittsburg.
The police did not know Choisy’s name until later, but we will refer to her by name for convenience. The record does not indicate who owned the car Choisy was driving. For convenience of identification only, we will refer to it as “Higgins’s car” or “the car.”
Choisy and Higgins arrived at DiMaggio Street sometime shortly before 10:00 p.m. Choisy made a U-turn at the north end of DiMaggio Street, where it ends at a cross street, and parked on the west side of the street, facing south. Wood parked his own car on the east side of the street, facing north, in front of 117 DiMaggio, about 70 to 80 yards away from Higgins’s car.
At most a minute later, Wood saw Higgins and Choisy get out of the car. Neither of them appeared to Wood to be carrying anything in their hands. Wood could not see their hands, however. At some point, Wood told Whitehouse that Higgins and Choisy did not appear to be carrying anything large when they walked away from the car, but he did not think he had told Whitehouse that he had seen them enter a house “empty-handed,” although he could have done so.
Whitehouse testified that Wood had told him this. He also testified that Wood told him that neither Higgins nor Choisy appeared to be carrying any large items in their hands when they got out of the car.
Higgins and Choisy crossed the street from west to east, passing a U-Haul truck. Wood then lost sight of them briefly. They then walked in front of a car with a light-colored cover, which was sitting in the driveway of the house in front of which the U-Haul was parked. After that, Wood saw them briefly illuminated by a porch light, and concluded that they had entered a house. He could not see which house, however, and he could not see the doorways, color, or details of any of the houses near their location.
About 10 minutes later, Wood saw two young black men leave the area into which Higgins and Choisy appeared to have gone, and walk south to a large SUV parked against the east curb on DiMaggio Street. Wood testified that he transmitted a report of this incident at the time it occurred, but Whitehouse explained that he was en route to DiMaggio Street at this time, and missed some of the information Wood reported because of poor reception on his telecommunications equipment. Wood testified that he told Whitehouse about the incident before Woodhouse prepared the search warrant affidavit, but Whitehouse did not remember learning about it until later.
Wood also saw a white man in his late 20’s or early 30’s walk across DiMaggio toward where Higgins and Choisy had gone, but did not see him after that. Wood reported this incident by radio, but again, Whitehouse missed the report due to communications problems, and did not learn of it until after he applied for the search warrant.
About 10 to 20 minutes after Wood arrived at DiMaggio Street, Whitehouse also arrived. He drove to the north end of the block, turned around, and parked at the curb on the west side of the street, across the street and a little north of the houses later identified as 41 and 53 DiMaggio Street. According to Whitehouse, Wood told him that Higgins and Choisy had gone into a house that had a covered car in the driveway and a U-Haul parked in front of it. Whitehouse saw only one house meeting this description, but could not see the house number. Whitehouse said that Wood told him the house was yellow, with white trim, but Wood testified that he did not verify that the house was yellow until later.
The street numbers of the two houses in question were not known to Wood and Whitehouse until later. For convenience, however, we will refer to them as 41 and 53 DiMaggio Street. The two houses are next door to one another on the east side of DiMaggio Street, with 53 situated to the south (i.e., to the right, viewed from the street) of 41.
From where he parked, Whitehouse could see the front doors of both 41 and 53 DiMaggio Street. Both houses had their front doors at the side of the house, facing north, rather than on the street side, facing west. Higgins’s car was parked about 60 feet ahead of Whitehouse’s car, on the same side of the street and facing the same way, with two or three other cars parked in between.
Wood and Whitehouse were in communication during the period when they were both at DiMaggio Street. Sometime after Whitehouse arrived, at about 10:30 p.m., he saw the door of the house he was watching open, and multiple persons leave. Whitehouse told Wood that Higgins and Choisy were leaving the house they had been in. Within a few seconds, Wood saw them pass by the covered car and walk across the street. Whitehouse lost sight of them momentarily, but later saw what appeared to be the same two people who had left the house heading for Higgins’s car.
Both Wood and Whitehouse saw that Higgins had a black object in his hands when he walked from the house back to the car. Whitehouse could see the object well enough to identify it as a grocery-type bag with something inside it. Wood identified it at the hearing as being consistent in appearance with the bag later found in the trunk of Higgins’s car. Whitehouse saw Higgins go to the trunk of the car, still carrying the bag, and he saw the trunk open briefly, but he could not see what Higgins did there. After spending three or four seconds near the trunk, Higgins walked to the passenger side door and got into the car. Whitehouse could see that he was no longer carrying the bag at that point, and concluded, based on his experience with the methods used to transport illegal drugs, that Higgins had put it in the trunk of the car.
Higgins’s car then left DiMaggio Street; at this point, it was about 15 or 20 minutes since Whitehouse had arrived there. Right after Higgins’s car pulled away from the curb, Whitehouse saw a purple, maroon, or burgundy van back out of the driveway of 41 DiMaggio Street and drive south, following Higgins’s car as it turned a corner. Whitehouse thought that the two vehicles might have been traveling together, but was not sure. By the time he prepared the warrant affidavit, Whitehouse had learned that the van stopped following Higgins’s car shortly after he lost sight of it.
Wood followed Higgins’s car, and, together with other officers, stopped it and searched it after it had crossed back into Solano County. The officers found a black grocery-type bag in the car’s trunk, in which was a shoebox containing what the officers believed was about two or three pounds of methamphetamine inside a plastic bag. The officers informed Whitehouse of these facts.
In the meantime, Whitehouse went back to DiMaggio Street to try to determine the house number of the house Higgins had visited so that he could apply for a telephonic search warrant for the house. He drove by the yellow house with the covered car in the driveway and the U-Haul in front, saw the number 41 on a sign, and thought it was the number for that house. Later, Wood came back to the area also, and confirmed the description of the correct house, but could not see a house number.
Whitehouse then went to the Pittsburg Police Department to prepare to obtain an application for a telephonic search warrant. At about 1:13 a.m., he called Solano County Superior Court Judge Mike Nail and applied for a search warrant for 41 DiMaggio Street.
Whitehouse’s telephonic search warrant affidavit (the affidavit), a transcript of which is attached to appellant’s opening brief in this court, identified the house to be searched as 41 DiMaggio Street, and described it as “a single-story, single-family residence with . . . a yellow stucco exterior with white trim [and] a red brick facia.” The affidavit also explained that according to the Pittsburg Police Department, the “only contact at the residence was an occupant named Adolpho Mendoza.” The warrant described Mendoza as a Hispanic male and authorized the search of his person as well as the premises.
To establish probable cause for the search, the affidavit related that Higgins had been followed to DiMaggio Street, and averred that Wood had then seen him “exit the vehicle and enter the residence,” and that “[a]t the time that he entered the residence, Higgins was empty-handed.” The affidavit did not mention the two black men or the lone white man who were seen in the area of the residence between the time of Higgins’s arrival and his departure, nor did it mention the van that departed at the same time as Higgins’s car. It stated that Whitehouse had seen Higgins leave the residence 20 minutes after arriving, carrying a black grocery-type bag in his hands, and had seen him place the bag in the trunk of the car. The affidavit went on to explain that the car was followed into Solano County, and did not stop or meet anyone on the way, and that a search of the car in Solano County had revealed a black plastic grocery-type bag in the trunk, which contained a large amount of methamphetamine in a plastic bag inside a shoebox.
When the officers arrived at 41 DiMaggio to execute the search warrant, the maroon or burgundy van that Whitehouse and Wood had seen earlier was in the driveway. When the officers entered the house, they discovered a Hispanic family in residence. Shortly after that, Whitehouse began to suspect that they were searching the wrong house, because there was a window in the garage, and the house he had been watching earlier did not have a window in that location.
This suspicion was reinforced when Whitehouse learned two additional facts. First, a Pittsburg police officer who had been keeping watch on the back yard reported seeing a black man, a black girl, and a pit bull puppy in the back yard of the house next door. Second, one of the officers who had participated in the arrest of Higgins told Whitehouse that Choisy had described the house’s occupants as a black adult male, a black juvenile female, and a pit bull puppy.
Wood testified that he had learned this information while the officers were still at the Pittsburg Police Department, before they went to 41 DiMaggio to execute the search warrant.
Whitehouse then went and looked at the front of the houses, which were both yellow, and observed that the covered car and the U-Haul were at the next house to the south. This confirmed that the house Whitehouse had been watching earlier, when Higgins was present, was the one next door, not the one he had been searching. Whitehouse discussed the matter with Wood, who was of the same opinion. Whitehouse then walked to the house next door to verify the house number, which turned out to be 53 rather than 41.
At about 2:25 a.m. that same night, Whitehouse called Judge Nail again, and reported that the officers had executed the warrant at 41 DiMaggio, and had realized that it was the wrong house. Whitehouse explained that “[t]he description that I provided in my search warrant [affidavit] was accurate to . . . the residence located at []53 [DiMaggio],” and that “the facts of the statement of probable cause [in the affidavit] were from 53 [DiMaggio] and it was my mistake and I transposed [sic] the wrong numbers . . . .” He further explained that the police were seeking to amend the warrant application to cover 53 DiMaggio. Judge Nail agreed to issue the amended warrant.
As Whitehouse later explained in his testimony, the police were only watching one house during their surveillance of Higgins; they just had the house number wrong.
This was not entirely correct. The affidavit described the house as having a white security screen door, which was true of 41 DiMaggio, but 53 DiMaggio had a black security screen door.
When the officers went to 53 DiMaggio to execute the amended search warrant, they found appellant there, along with his nine-year-old daughter. Appellant and his daughter are both black.
The search of 53 DiMaggio revealed methamphetamine, cocaine, and marijuana, as well as paraphernalia associated with drug sales such as packaging material, scales, and large amounts of currency. Marijuana was being grown in the garage. The methamphetamine was found on the floor of what appeared to be the child’s bedroom. There were two handguns in the house, one in a bag of dog food and one, which was loaded, under a couch cushion in the family room.
Appellant was charged in Contra Costa County Superior Court with 12 counts: (1) conspiracy to possess, transport, sell, and distribute a controlled substance (Pen. Code, § 182, subd. (a)(1)); (2) selling, distributing, and transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)); (3) possession of methamphetamine (Health & Saf. Code, § 11378); (4) possession of cocaine for sale (Health & Saf. Code, § 11351); (5) selling marijuana (Health & Saf. Code, § 11360, subd. (a)); (6) possession of marijuana for sale (Health & Saf. Code, § 11359); (7) controlling a place for the preparation, storage, or sale of methamphetamine (Health & Saf. Code, § 11366.5, subd. (a)); (8) possession of cocaine while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)); (9) and (10) two counts of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)); (11) possession of ammunition by a convicted person (Pen. Code, § 12316, subd. (b)(1)); and (12) child endangerment (Pen. Code, § 273a, subd. (a)). With respect to counts 2, 3, 4, and 7, appellant was alleged to have been personally armed with a firearm. (Pen. Code, § 12022, subds. (a)(1) & (c).) Appellant was also alleged to have several prior convictions.
There was no evidence that appellant physically abused his daughter. The charge of violating Penal Code section 273a, subdivision (a), was based on the presence in the home of readily accessible illegal drugs and loaded firearms.
Before he was charged, appellant challenged the warrant and moved to suppress the evidence seized from his home, and the court held an extended evidentiary hearing under Franks v. Delaware (1978) 438 U.S. 154, which was combined with the preliminary hearing. The court denied appellant’s motion to suppress based on the alleged misstatements in the warrant affidavit, and rejected appellant’s jurisdictional challenge based on the issuance of the warrant in Solano County. Appellant renewed his motion to suppress after he was indicted, but the motion was again denied.
Technically, appellant filed a motion to traverse and quash the warrant; a motion to suppress; and a motion for an evidentiary hearing. For convenience, we refer to these motions collectively as appellant’s motion to suppress.
On July 3, 2006, appellant pleaded guilty to all 12 counts, and admitted all the enhancements. On September 8, 2006, he was sentenced to 12 years 4 months in state prison. He filed a notice of appeal on the same day.
Discussion
Appellant argues that his motion to suppress should have been granted for two reasons: first, the search warrant affidavit contained material misrepresentations, and second, the warrant was issued by a Solano County magistrate for a search of a Contra Costa County location without an adequate showing of a nexus with Solano County.
In his opening brief on appeal, appellant raised a third issue, challenging the denial of his motion to dismiss the conspiracy count. In his reply brief, however, appellant acknowledged that this issue is foreclosed by his guilty plea, and withdrew it.
A. Errors and Omissions in Warrant Affidavit
“ ‘An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] “The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.” [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.’ [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155, 182.)
“When presented with . . . a challenge [to a search warrant under Franks v. Delaware, supra, 438 U.S. 154], 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. At the evidentiary hearing, if the statements are proved by a preponderance of the evidence to be false or reckless, they must be considered excised. If the remaining contents of the affidavit are insufficient to establish probable cause, the warrant must be voided and any evidence seized pursuant to that warrant must be suppressed. [Citation.] [¶] A defendant who challenges a search warrant based upon an affidavit containing omissions bears the burden of showing that the omissions were material to the determination of probable cause. [Citation.] ‘Pursuant to [California Constitution, article I,] section 28[, subdivision] (d), materiality is evaluated by the test of Illinois v. Gates (1983) 462 U.S. 213 . . ., which looks to the totality of the circumstances in determining whether a warrant affidavit establishes good cause for a search. [Citation.]’ [Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1297.)
In the present case, after hearing the evidence relevant to appellant’s motion to suppress, the trial court concluded that the information about the two black males and one white male whom Wood saw while Higgins was inside 53 DiMaggio was not material, and that its omission from the warrant affidavit was therefore not problematic. It found, however, that the statement that Higgins was seen entering 53 DiMaggio, and was “empty-handed” when he did so, was made recklessly, because Wood did not actually see Higgins enter the residence, and did not tell Whitehouse that Higgins was “empty-handed” when he walked away from his car. Nonetheless, the court concluded that even without these statements, the warrant affidavit established the existence of probable cause to search 53 DiMaggio.
Given the applicable standard of review, we accept the trial court’s finding that the statement that Higgins entered the residence empty-handed was recklessly made. Stripped of this fact, however, the affidavit still established that Higgins was seen walking toward 53 DiMaggio; emerged 20 minutes later carrying a black plastic bag; and put that bag in the trunk of his car. It also established that shortly after this occurred, and before Higgins had an opportunity to visit any other location or meet with anyone, Higgins’s car was stopped, and its trunk contained a black plastic bag holding about two or three pounds of a substance that the police had ample reason to believe was methamphetamine. These facts alone are sufficient to supply probable cause to believe that Higgins obtained methamphetamine at 53 DiMaggio.
Whitehouse’s statement that Higgins put the bag in the trunk of the car before driving away was an entirely logical and reasonable inference from his observations.
We recognize that in order to determine that the affidavit, as corrected, established probable cause for the search of 53 DiMaggio, it would have been necessary for the magistrate who issued the warrant to rely on inferences from the officers’ reported observations. However, a showing of probable cause to issue a search warrant may be based in part on reasonable inferences from the facts set forth in the affidavit. (People v. Sandlin (1991) 230 Cal.App.3d 1310, 1314-1315.)
We also agree with the trial court that neither the officers’ observations regarding the other people who came and went in the vicinity of 53 DiMaggio between the arrival of Higgins and Choisy and their departure, nor their observation of the maroon van that left the area at the same time, were material in relation to the showing of probable cause. These facts are subject to a number of possible interpretations, at least some of which are consistent with the conclusion that 53 DiMaggio was where Higgins obtained the bag of methamphetamine found in his car. For example, the fact that other people were coming and going from the residence after 10:00 p.m. is consistent with the conclusion that illegal drugs were being distributed there. Thus, the inclusion of these facts in the affidavit—even assuming they should have been included—would not have altered the reasonableness of the conclusion that there was probable cause to search for evidence of drug distribution at that location.
B. Search Warrant from Different County
Appellant also challenges the legality of the search of his home based on the fact that the warrant was issued by a magistrate in a different county. This issue raises a pure question of law, which we decide de novo. (See People v. Ruiz (1990) 217 Cal.App.3d 574, 580 (Ruiz).)
It is well settled that “a magistrate has jurisdiction to issue a search warrant to any peace officer within the magistrate’s own county, even if the warrant is to be executed outside the magistrate’s judicial district. [Citations.] Furthermore, a magistrate has jurisdiction to issue to any peace officer a warrant for a search in another county if the magistrate finds that the search ‘relates to a crime committed within his county and thus pertains to a present or future prosecution in that county.’ [Citation.]” (People v. Galvan (1992) 5 Cal.App.4th 866, 869-870 (Galvan).)
Appellant argues that the warrant in this case was invalid, even though issued by a Solano County magistrate to a Solano County officer, because the warrant neither “relate[d] to a crime committed in the magistrate’s county” nor “pertain[ed] to a present or future prosecution in that county,” as required by the leading California Supreme Court case on the subject, People v. Fleming (1981) 29 Cal.3d 698, 701 (Fleming). We disagree.
Whether or not appellant could have been prosecuted in Solano County, it was abundantly clear from the search warrant affidavit that Higgins was subject to prosecution there, because the affidavit said that Higgins had been stopped by police in Solano County with methamphetamine in his car, and that he was under investigation for drug sales in Solano County. The affidavit made clear that the officers had probable cause to search the DiMaggio Street residence, in Contra Costa County, in order to seek evidence against Higgins, because that residence appeared to be the source of the methamphetamine in his possession. The amount of drugs found, two to three pounds, was also sufficient to justify a reasonable inference that the drugs were not for personal use but for sale in Solano County.
Both Fleming, supra, 29 Cal.3d 698, and Ruiz, supra, 217 Cal.App.3d 574, upheld the validity of search warrants issued under the exact same fact pattern, i.e., where the warrant was issued by a magistrate in County A, to peace officers in County A, to search a location in County B where a suspect in County A was allegedly obtaining drugs for distribution in County A. Thus, under Fleming and Ruiz, it is clear that Higgins could not have successfully challenged the search warrant in this case on jurisdictional grounds.
In Ruiz, supra, 217 Cal.App.3d 574, the court held that the warrant was invalid because the warrant affidavit failed to state explicitly that the search related to crimes that the officer believed were being committed in County A. It is clear from the court’s opinion, however, that if that statement had been included in the warrant affidavit, the warrant would have been upheld. (See id. at p. 587 [“a magistrate may issue an out-of-county warrant when he has probable cause to believe the evidence relates to a crime committed within his county and pertains to present or future prosecution there. [Citation.]”].)
In contrast, in Galvan, supra, 5 Cal.App.4th 866, the warrant was issued by a magistrate in County A (San Bernardino), to peace officers from County B (Los Angeles), for the search of a location in County A. The court held that under those circumstances, the warrant was not valid without the consent of the sheriff in County A. (Id. at pp. 869-871.) Nonetheless, the evidence was held admissible, because the officers were acting in good faith. (Id. at pp. 871-872.) The Galvan court also acknowledged the principle that “a magistrate in Los Angeles County could have issued the search warrant for a search in San Bernardino County on a showing that the search sought evidence related to a crime in Los Angeles County.” (Id. at p. 870.)
The only distinction between this case and Fleming and Ruiz is the identity of the defendant challenging the search warrant. In those cases, the challenge was brought by the defendant in County A whose alleged drug crimes in County A were detailed in the search warrant affidavit (the role played in the present case by Higgins). Here, in contrast, the challenger is the defendant in County B (i.e., appellant) from whom the person in County A was alleged to have obtained the drugs.
In our view, however, this distinction makes no difference. The parties have not cited, and our research has not disclosed, any case supporting appellant’s attempted distinction. The purpose of the jurisdictional limitation on search warrants is to guard against abuse of a magistrate’s authority by ensuring that out-of-county warrants must relate to criminal activity in the magistrate’s jurisdiction. (See Fleming, supra, 29 Cal.3d at p. 707 [“Defendant’s fears that officers may forum shop to obtain uninformed, distant magistrates can be alleviated by limiting a magistrate’s jurisdiction to issue out-of-county warrants to cases in which a crime was committed within the issuing county and prosecution likely there.”].) Given this purpose, as long as evidence was seized under a valid out-of-county warrant, there is no reason to bar the admission of such evidence in prosecutions occurring outside the issuing county. (Cf. Ruiz, supra, 217 Cal.App.3d at pp. 586-588 [reversing order granting motion to suppress, even though out-of-county warrant was issued improperly due to failure to show nexus with issuing county, based on good faith exception to exclusionary rule]; People v. Dantzler (1988) 206 Cal.App.3d 289 [affirming denial of motion to suppress, under same circumstances, based on good faith exception].)
Indeed, the Supreme Court recognized in Fleming that in order to protect the rights of a third party in the county where the warrant was executed, who was not the target of the original investigation but whose property was seized in the search, it is sufficient to permit that third party to seek the return of that property by “attack[ing] the validity of the warrant in the courts of the county where the property was located.” (Fleming, supra, 29 Cal.3d at p. 707.) We see no reason why this rationale does not apply to a motion to suppress evidence as well. Defendants seeking to suppress evidence seized under out-of-county warrants can file their motions to suppress in the county where they are being prosecuted, as appellant in fact did in this case. Thus, concern for the rights of out-of-county defendants “does not require that we limit the magistrate’s jurisdiction to issue an out-of-county warrant for crimes committed within his county and where prosecution will probably take place . . . .” (Ibid.)
In this case, the evidence that appellant sought to suppress was clearly admissible against Higgins, because it was obtained from a search under a warrant validly issued by a Solano County magistrate based on evidence that Higgins had committed crimes in that county. Accordingly, the evidence was equally admissible against appellant, even if the warrant could not have been issued in Solano County based on facts relating solely to appellant’s activities in Contra Costa County.
Because our analysis makes it unnecessary to decide whether the warrant would have been valid under those hypothetical circumstances, we do not reach this question.
disposition
The judgment is affirmed.
We concur: Reardon, J., Rivera, J.